HomeMy WebLinkAboutAgreement A-19-516 with CompuTrust Corporation.pdf1
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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.
COUNTY System Hardware:
The central processing units owned or leased by COUNTY for which
COUNTY is licensed to use the System Software, any back-up equipment
for such central processing units, and any peripheral hardware, such as
terminals, printers, and personal computers, as described in this
Agreement.
COUNTY System Software:
The operating system and database software installed on the COUNTY
System Hardware.
Documentation:
The end-user documentation that explains the use and Installation of the
Program in hard copy or electronic form.
Error:
Any reproducible failure of the Program to conform in material respect to
its Documentation.
Error Correction:
A modification or addition that brings the Program into material conformity
with its Documentation. The Error Correction, when completed, may
consist of a change to the code, a "patch," or a "workaround" to enable
use of the Program.
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Error Reports:
COUNTY may submit an Error Reports for reproducible errors to the
CONTRACTOR, identifying circumstances and steps generating the
error.
Final System Acceptance:
When it is determined by COUNTY that all necessary deliverables have
been delivered, the data has been converted, CT has been successfully
tested, and CT performs all functions required as specified in this
Agreement.
First Production Use:
Date of first use of the system in a production environment.
License:
The meaning assigned to the term 'License," as defined in Section II-A of
this Agreement, and the rights and obligations it creates under the laws of
the United States of America and the State of California, including,
without limitation, copyright and intellectual property law.
Major Enhancements:
Any major modification that substantially improves the performance, utility
or functionality of the Program, which CONTRACTOR offers as a Major
Enhancement at an additional optional fee.
Monies:
The terms "Monies", "Charges", "Price", and "Fees" will be considered to
be equivalent.
Program:
The computer software application known as “CT,” in object code only
and the documentation.
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Public Records:
Public Records includes any writing containing information relating to the
conduct of the public's business prepared, owned, used, or retained by
any state or local agency regardless of physical form or characteristics.
Standard Enhancements:
Any modification or addition that, when made or added to the Program,
changes its utility, efficiency, functional capability, or application, but that
does not constitute solely an Error Correction.
Supplier:
The terms "Supplier", "Vendor", and "CompuTrust" all refer to
CONTRACTOR, and are considered to be equivalent throughout this
Agreement.
System:
The System Software and System Documentation, collectively. Reference
to the "System" shall include any component thereof. All modifications
and enhancements to the System shall be deemed to be part of the
System, as defined herein, and shall be subject to all terms and
conditions set forth herein. The System consists of CT, which supports
the Department of Behavioral Health – Public Guardian’s Office, all
interfaces, and third-party software required for the System to function.
System Documentation:
The documentation relating to the System Software, and all manuals,
reports, brochures, sample runs, specifications and other materials
comprising such documentation provided by CONTRACTOR in
connection with the System Software pursuant to this Agreement.
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System Operation:
The general operation of COUNTY's hardware and all software, including,
but not limited to, system restarts, configuration and operation of system
peripherals (such as printers, modems, and terminals), installation of new
software releases, and other related activities.
System Installation:
All software has been delivered, has been physically loaded on a
computer, and COUNTY has successfully executed Program sessions.
System Software:
CT, that certain computer software described in this Agreement provided
by CONTRACTOR, and all interfaces, coding, tapes, disks, modules and
similar materials comprising such software or on which it is stored.
System Software shall not include operating system software, or any
other Third-Party Software.
Third-Party Software:
Third-party software products purchased on COUNTY’s behalf by
CONTRACTOR. The third-party software is licensed directly to COUNTY
as a one-time only purchase. This Usage License does not apply to third-
party software, which is governed by the license terms and conditions of
each third-party software product. COUNTY does not receive support or
upgrades for third-party software as part of COUNTY’s monthly usage
fees.
Update:
New revisions of the Program containing Error Corrections, modifications,
and Standard Enhancements, which are released by CONTRACTOR
from time to time.
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User:
The terms "User", "Customer" and "Licensee" all refer to COUNTY, and
are considered to be equivalent throughout this Agreement.
II. OBLIGATIONS AND RIGHTS OF THE CONTRACTOR
A. SOFTWARE LICENSE
1. GRANT OF LICENSE
CONTRACTOR grants to COUNTY, and COUNTY accepts, a non-
exclusive, nontransferable License to use CT , subject to the terms and conditions
set forth in this Agreement.
2. SCOPE OF LICENSE
The License granted herein shall consist solely of the non-exclusive,
nontransferable right of COUNTY to operate the System Software in support of
COUNTY's Department of Behavioral Health – Public Guardian’s Office.
3. OWNERSHIP
The parties acknowledge and agree that, as between CONTRACTOR
and COUNTY, title and full ownership of all rights in and to the System Software,
System Documentation, Program, 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 System Software and System Documentation. Ownership of all copies is
retained by CONTRACTOR. COUNTY may not disclose or make available to
third parties the System Software or System 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, updates
(including ownership of all copyrights and other intellectual property rights
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pertaining thereto), 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 System Software and System
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 from the System, are the exclusive property of COUNTY.
This Agreement does not provide COUNTY with title or ownership of the
Program, but only a right of limited use.
4. LIMITATION OF WARRANTY
LIMITATION OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH
IN THIS PARAGRAPH, CONTRACTOR SHALL HAVE NO LIABILITY FOR THE
PROGRAM OR ANY SERVICES PROVIDED, INCLUDING ANY LIABILITY FOR
NEGLIGENCE; CONTRACTOR MAKES AND COUNTY RECEIVES NO
WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER
PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND
CONTRACTOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION OF WARRANTY & EXCLUSION OF CONSEQUENTIAL
DAMAGES
The cumulative liability of CONTRACTOR to COUNTY for all claims
relating to the Program, and any services rendered under this Agreement, in
contract, tort, or otherwise, shall not exceed the total amount of all Usage Fees
paid to CONTRACTOR for the Program or services within the prior year. This
limitation shall not apply to the indemnification in Section XI., herein. In no event
shall either party be liable to the other for any consequential, indirect, special, or
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incidental damages, even if such party has been advised of the possibility of
such potential loss or damage. The foregoing limitation of liability and exclusion
of certain damages shall apply regardless of the success or effectiveness of
other remedies.
6. POSSESSION, USE AND UPDATE OF SOFTWARE
COUNTY shall only use the System Software 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 observed. CONTRACTOR may create, from time to time,
updated versions of the System Software and System Documentation, and
CONTRACTOR shall make such System Updates available to COUNTY. All
System Updates shall be licensed under the terms of this Agreement. COUNTY
agrees to follow the prescribed instructions for updating System Software and
System Documentation provided to COUNTY by CONTRACTOR. COUNTY must
authorize all System Updates in writing.
7. TRANSFER OF SOFTWARE & 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 System Software or the System Documentation, or any of the information
contained therein other than COUNTY data to any other person or entity; (ii)
modify or make derivative works based upon the System Software or the System
Documentation; (iii) create Internet “links” to the System Software or “frame” or
“mirror” any System 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 violative of third party privacy rights; (iv) send or store material
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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 System Software or the data contained therein, including
but not limited to COUNTY Data; (viii) attempt to gain unauthorized access to the
System Software or its related systems or networks; (ix) reverse-engineer or
access the System Software in order to (a) build a competitive product or service,
(b) build a product using similar ideas, features, functions or graphics of the
System Software, or (c) copy any ideas, features, functions or graphics of the
System Software. Any of the actions listed above, occurring on a permanent or
temporary basis, or any attempt to do so, will constitute a breach of this
Agreement.
COUNTY may not install the Program anywhere but the approved
COUNTY site without CONTRACTOR’s prior written consent (which will not be
unreasonably withheld), provided that COUNTY transfers the Program to an
approved, temporary location in the event of an interruption of computer
operations. If COUNTY uses, copies, or modifies the Licensed Program or
transfers possession of any copy, adaptation, transcription, or merged portion of
the Licensed Program to any other party in any way not expressly authorized by
CONTRACTOR, the COUNTY License is automatically terminated. COUNTY
acknowledges that, in the event of any breach, CONTRACTOR will not have an
adequate remedy in money or damages. CONTRACTOR shall therefore be
entitled to obtain an injunction against such breach from any court of competent
jurisdiction immediately upon request. CONTRACTOR's right to obtain injunctive
relief shall not limit its right to seek further remedies.
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.
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8. POSSESSION AND USE OF SOURCE CODE
Source code and other material that results from custom programming by
CONTRACTOR released to COUNTY under this License shall be deemed
CONTRACTOR software, subject to all of the terms and conditions of the
software License set forth in this Agreement. The scope of COUNTY’s permitted
use of the custom source code under this License shall be limited to
maintenance and support of the System Software. For purposes of this Section,
the term “maintenance and support” means correction of System Software errors,
and preparation of System Software modifications and enhancements. If
COUNTY creates computer code in the process of enhancing the System
Software, that specific new code shall be owned by COUNTY, and may be used
by COUNTY’s employees, officers, or agents for COUNTY’s own internal
business operations. However, if COUNTY’s enhancement results in the creation
of a derivative work from the System Software, the copyright to such derivative
work shall be owned by CONTRACTOR, and COUNTY’s rights to use such
derivative work shall be limited to those granted with respect to the System
Software in this Agreement.
9. INTELLECTUAL PROPERTY, TRADEMARK, AND COPYRIGHT
CONTRACTOR retains ownership of the System Software, 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. CONTRACTOR, its suppliers, or licensors own all right,
title, interest, and copyrights in and to the System Software and the
accompanying System Software Documentation, and any copies of the System
Software. All title and intellectual property rights in, and to the content which may
be accessed through use of the System Software are the property of the
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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. SYSTEM INSTALLATION
CONTRACTOR shall supply and install CT in accordance with this
Agreement. Such software installation shall include hardware/network review and
recommendations, consultation, software installation and remote technical
support.
2. TRAINING
CONTRACTOR will conduct “train-the-trainer” training of COUNTY staff
via WebEx, and at a time approved in writing by COUNTY.
3. DOCUMENTATION
CONTRACTOR shall provide to COUNTY CT System Documentation,
which shall consist of electronic media files. The electronic media files must be
printable using PC software normally available at COUNTY. CONTRACTOR
shall provide new System Documentation corresponding to all new Software
Upgrades. COUNTY may print additional copies of all documentation. COUNTY
shall only use System Documentation for the purposes identified within this
Agreement.
C. SYSTEM MAINTENANCE AND SUPPORT BY CONTRACTOR
System maintenance and support includes System Updates as they are
released by CONTRACTOR. COUNTY will identify the first day of production
use, and communicate that to CONTRACTOR. CONTRACTOR will support day-
to-day operation of the System, including the following services:
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1. SUPPORT HOURS/SCOPE
Provide unlimited technical assistance through toll-free telephone
Hot-Line Support at (800) 222-7947, or electronic mail at
ctsupport@computrustcorp.com, Monday through Friday from 8:00 a.m. to 5 p.m.
Pacific Standard Time, excluding CONTRACTOR and COUNTY holidays, to
report problems or request user assistance in use or restoration of the Program
to normal operating condition.
The object of this support will be to answer specific questions related to
the System Software and the application thereof. Support provided under this
Agreement does not include training of new personnel (after initial staff is
trained), operation of hardware, or solving other hardware/software problems
unrelated to the System Software.
2. REMOTE ACCESS
CONTRACTOR offers Remote Access. In order to use Remote Access,
COUNTY must have the communications software set forth in Sections XIII and
XIV. Remote Access includes: (1) diagnostic or corrective actions necessary to
restore proper Program operation; (2) diagnostic analysis to assist in determining
the cause of the reported problem; (3) correction of data file problems; and (4)
downloading Error Corrections or Enhancements.
3. SUPPORT RESPONSE
During the term of this Agreement, CONTRACTOR will (a) correct any
error or malfunctions in the System as supplied by CONTRACTOR that prevent
the System from operating in conformance with the specifications set forth in this
Agreement, or (b) provide a commercially reasonable alternative that will conform
to the specifications set forth in this Agreement.
If analysis by CONTRACTOR indicates a reported problem is caused by
a reproducible error or malfunction in the then-current release of the System
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Software, as supplied and maintained by CONTRACTOR, which significantly
impacts effective use of the System by COUNTY, CONTRACTOR will provide
continuous effort to correct the error or to resolve the problem by providing a
circumvention.
In such cases, CONTRACTOR will provide COUNTY with corrective
information, such as corrective documentation and/or program code.
CONTRACTOR will endeavor to respond to COUNTY's service request no later
than four (4) business hours from the time a CONTRACTOR receives COUNTY’s
call. In the event that a person with the necessary expertise is not available when
the call is received, CONTRACTOR will respond to the service request no later
than within one (1) business day.
4. ERROR REPORTS
Error Reports to CONTRACTOR are not counted towards COUNTY
annual support hours. COUNTY agrees, if requested by CONTRACTOR, to
submit an Error Report which identifies the problem and describes the steps
needed to reproduce the Error (“Error Report”), in addition to a listing of output
and any other data that CONTRACTOR may require in order to reproduce any
Error, and the operating conditions under which the Error occurred or was
discovered.
5. MATTERS NOT COVERED BY SUPPORT
The following matters are not covered as part of the COUNTY Annual
Usage Fee Support, and if COUNTY requests any of the following services,
CONTRACTOR will charge at the prevailing per diem rate:
a) Any problem resulting from the misuse, improper use, alteration, or
damage of the Program;
b) Any problem caused by COUNTY modifications to any version of
the Program;
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c) Any problem resulting from computer software other than the
Program;
d) Any problem relating to COUNTY computer hardware or
peripherals, which includes printers. Adding, modifying and deleting
printers to COUNTY network is expressly not covered.
e) Any problems relating to older unsupported versions.
f) Any support resulting from a system crash. This includes rebuilding
from a backup. Restoring after a system failure or reloading
software as a result of not having a reliable backup.
g) Reloading software other than CT as a result of a system upgrade.
Assistance with reloading CT after a system upgrade is available if
scheduled in advance. This support is limited to two hours, and
CONTRACTOR reserves the right invoice COUNTY for further
assistance in excess of two hours.
h) Assistance with backups of the data or the operating system.
i) Administration and any support/training of the operating system.
j) Initial or reinstallation of the operating system.
k) CT Support, as a result of users not reconciling their bank
account(s) in a timely manner.
l) CT support, as a result of users not running Database Backup and
Recovery and resolving balancing issues in a timely manner.
CONTRACTOR reserves the right to charge additional service fees if
COUNTY seeks assistance for matters that do not directly relate to
the operation of the Program. CONTRACTOR does not hold itself out
as a professional expert or adviser regarding COUNTY’s computer
hardware, Third Party Software, computer peripherals or information
needs. In particular, CONTRACTOR does not support COUNTY’s
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printers. CONTRACTOR is not responsible for obsolescence of the
Program that may result from changes in COUNTY’s requirements.
6. REMOTE ACCESS ABILITY DIAGNOSTICS
Remote Access Ability Support includes:
a) Diagnostic or corrective actions necessary to restore proper
Product operation;
b) Diagnostic actions which attempt to identify the cause of system
problem;
c) Correction of data file problem; and
d) Product modifications
CONTRACTOR product specialists will provide diagnostics via an
approved COUNTY method. COUNTY will provide any required hardware and
equipment necessary at COUNTY for CONTRACTOR support.
7. ERROR CORRECTION PROCESS
If, during the term of this Agreement, COUNTY determines that software
error(s) exist, COUNTY will first follow the error procedures specified in the
System Documentation. If following the error procedures does not correct the
software error, COUNTY shall immediately notify CONTRACTOR, setting forth
the defects noted with specificity. Upon notification of a reported software error,
CONTRACTOR shall have five (5) days to determine if any actual software error
exists, and if so, endeavor to correct such software errors. At CONTRACTOR’s
request, additional time to solve difficult problems will not be unreasonably
withheld. Within fifteen (15) days of correction, COUNTY shall retest the System
Software, and report any other software errors.
8. TECHNICAL INFORMATION
CONTRACTOR will provide technical inf ormation to COUNTY from time
to time. Such information may cover areas such as Product usage, third party
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software, and other matters considered relevant to COUNTY by CONTRACTOR.
CONTRACTOR will provide technical information at the discretion of
CONTRACTOR, which will not be unreasonably withheld.
D. ADDITIONAL SYSTEM MAINTENANCE SERVICE REQUIREMENTS
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 6 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
CONTRACTOR shall provide a specific amount of training pursuant to
this Agreement. Additional training at a COUNTY facility is available upon
COUNTY’S request, at an additional charge, under the terms of this Agreement.
CONTRACTOR will review requests for additional training, which 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 and System Corrections include any corrective actions
accomplished by CONTRACTOR 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 System Documentation. Unauthorized access
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to source code is defined as any COUNTY access whatsoever to system source
code. Services provided by CONTRACTOR are not billable when they result from
errors caused by CT or instruction provided by CONTRACTOR.
3. CUSTOMER 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
including, but not limited to, (1) additional system training on hardware or
software usage; (2) resolution of system difficulties not resulting from actions by,
or otherwise the responsibility of CONTRACTOR (as determined by mutual
agreement between CONTRACTOR and COUNTY); (3) installation of Software
Releases; and (4) assistance in equipment maintenance, movement or
diagnosis. CONTRACTOR will review site visits outside of the scope of project
services, which must be requested in writing in advance by COUNTY’s Contract
Administrator. Charges will be at rates identified in this Agreement, plus
reasonable travel costs.
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 CT.
F. SYSTEM UPDATES AND NEW PRODUCTS
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1. SYSTEM UPDATES
From time to time, CONTRACTOR will develop and provide System
Updates to COUNTY for COUNTY'S licensed CONTRACTOR software. System
Updates shall be subject to the terms and conditions of this Agreement, shall be
deemed licensed System Software hereunder, and will be made available to
COUNTY at no additional charge to COUNTY. System Updates will be made
available to COUNTY at the discretion of CONTRACTOR, and will not be
unreasonably withheld.
2. NEW PRODUCTS
CONTRACTOR may from time to time release new software with
capabilities substantially different from or greater than the System Software
("New Products"), which therefore do not constitute System Updates. These New
Products will be made available to COUNTY at a cost not to exceed
CONTRACTOR's then standard rates for similarly situated customers.
G. OPERATING SYSTEM UPDATES
The application must run on an operating system (O/S) that is
consistently and currently supported by the operating system vendor. O/S
applications are expected to be assessed for maintenance no less than once per
year. An outdated or unsupported O/S will not be implemented on the production
network.
COUNTY will notify CONTRACTOR when a critical security patch is
released. CONTRACTOR will have thirty (30) days to ensure application can
perform in the updated environment. With approval from CONTRACTOR,
COUNTY will apply patches to both the operating system, and non-critical
security subsystems as releases are available from operating system vendors.
The application must perform in this environment. CONTRACTOR shall update
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O/S applications no less than once per year from any given date. These patches
include critical O/S updates and security patches.
H. ANTI-VIRUS MANAGEMENT
COUNTY will actively run anti-virus management, where appropriate, on
all application servers and PCs. The application is expected to perform
adequately while anti-virus management is active.
I. ADHERE TO CHANGE CONTROL PROCESS
CONTRACTOR must adhere to COUNTY’s Change Control Process,
which shall be provided to CONTRACTOR in writing. COUNTY employs a
procedure to implement updates, upgrades, and version releases to a system
that is in production use. This forum allows ISD to inform staff (Help Desk,
Network, Server, Database, Security, and Analysts) of upcoming changes to a
production system. CONTRACTOR must inform ISD a minimum of one (1) week
prior to any planned, non-emergency changes, so that the Change Control
Process may be followed.
J. OTHER
Unless otherwise specified for third-party software, CONTRACTOR shall
provide standard documentation in electronic form (via the Internet or File
Transfer Protocol (FTP)).
The System runs in a Local Area Network and Web environment. As
such, the performance of the System is directly related to, among other things:
available network bandwidth, and the performance of other applications. For this
reason, CONTRACTOR makes no guarantees as to System response time.
K. Protected Health Information
While providing the Services, it is not necessary for CONTRACTOR to
receive, create, maintain or transmit personally identifiable data, including without
limitation, Protected Health Information (“PHI”), as defined in the Health
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Insurance Portability and Accountability Act of 1996 (“HIPAA”), on behalf of
COUNTY. COUNTY agrees not to: (i) permit CONTRACTOR to access, receive,
create, maintain, or transmit such personally identifiable data; or, (ii) to send
CONTRACTOR any personally identifiable data related to the Services.
III. OBLIGATIONS AND RIGHTS OF THE COUNTY
A. COUNTY RESPONSIBILITIES
1. Install the Program in COUNTY’s facility at the Site specified on the
front page of this Agreement.
2. Procure, install, and operate computers, printers and operating
systems required to run the Program.
3. Use and execute the Program on the computer(s) at COUNTY’s Site
on a per user basis, for purposes of serving the internal needs of
COUNTY.
4. Provide a proper environment and proper utilities for the computers on
which the Program operates, including an uninterrupted power supply.
5. Select and train personnel to operate computers and the Program
effectively.
6. Appoint a qualified system administrator with sufficient computer
hardware and software experience to coordinate with CONTRACTOR
in diagnosing reported problems and errors.
7. Nominate a single contact person, to interface with CONTRACTOR
on all Support calls from COUNTY. Such nominated single contact
person shall either be the System Administrator, or someone who is
similarly technically qualified; and
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8. Establish adequate operational back-up provisions in the event of a
defect or malfunction that renders the Program or the computer
systems on which they run non-operational.
B. GRANT OF LICENSE
COUNTY is granted a non-exclusive, annually renewable right to use the
Program and any Updates provided to COUNTY by CONTRACTOR, in machine-
readable form, as well as related materials for the Initial Term, and for minimum
periods of one (1) year thereafter, subject to the terms of this Agreement.
This Program License is nonexclusive and nontransferable, and extends
only to COUNTY’s installation, execution, and use of the Program on COUNTY
computers. COUNTY may not assign, transfer, or sublicense this License or
other rights under this Agreement, whether by operation of law or otherwise,
except with CONTRACTOR’s prior written consent.
1. VERIFICATION
Upon thirty (30) days’ written notice, CONTRACTOR, at its sole option,
may ask to verify in writing that COUNTY is not exceeding the scope of the
License, including the number of users authorized under this Agreement. In the
event the actual number of simultaneous users exceeds the number authorized
under this Agreement, COUNTY shall pay the additional Usage fees as they
apply.
C. SCOPE OF RIGHTS: THE COUNTY MAY:
1. Install the Program at chosen COUNTY site specified and
documented by CONTRACTOR.
2. Use and execute the Program on the computer(s) at COUNTY’s Site
on a per user basis, for purposes of serving the internal needs of
COUNTY.
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D. COUNTY CONTRACT ADMINISTRATOR
COUNTY appoints the 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.
COUNTY’S CIO is authorized to amend this Agreement, with consent of
the County Administrative Office, to adopt an undated pricing structure consistent
with an amended software solution and renewal dates, not to exceed maximum
expenditure limits as listed in section VI(A).
E. CONTRACTOR RESPONSE COMMITMENT
COUNTY will follow its present practices to safeguard System Software
delivered to COUNTY by CONTRACTOR. A copy of COUNTY’S “Information
Technology (IT) Standards and Preferences” will be made available upon request
F. OBJECT CODE
The Program is provided in, and may be used in, machine-readable
object code form only.
G. NUMBER OF USERS
COUNTY is authorized to use the Program for up to the number of users
defined in Section VI.
1. Additional User Licenses. In the event the COUNTY desires to exceed
the authorized number of users, as specified in Section VI, COUNTY
will contact CONTRACTOR to determine the increase to the annual
usage fee.
H. SAFEGUARDING SYSTEM SOFTWARE
COUNTY will follow its present practices to safeguard System Software
delivered to COUNTY by CONTRACTOR. A copy of COUNTY’S “Information
Technology (IT) Standards and Preferred Practices” will be made available upon
request.
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1. COUNTY utilizes a backup and recovery system written and
maintained by Commvault Systems. This application requires a
backup agent to run on the server.
2. COUNTY may make two (2) copies of the Program in machine-
readable, object code form, for nonproductive backup purposes only,
provided that COUNTY reproduces and includes CONTRACTOR's
copyright notice and proprietary legend on each backup copy. Each
backup copy must be stored in a safe and secure location.
3. System Operations: System shall operate as per CONTRACTOR’s
current Program user manual.
4. COUNTY will provide CONTRACTOR with an account with
appropriate administrative rights to administer the application. The
account password shall periodically expire.
5. In order for the application to run on COUNTY-supported servers, the
application must not require the users to have administrative rights on
the servers.
6. COUNTY, at all times, during and after the performance of the
installation of the System Software, is responsible for maintaining
adequate data backups to protect against loss of data.
I. COUNTY INSTALLATION AND TECHNICAL ASSISTANCE
1. Technical assistance from COUNTY’s ISD-IT staff will be provided
during the performance of the installation of the System Software. In
particular, COUNTY will provide:
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).
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d) Expertise to handle issues with PCs, printers, and cabling before,
during, and after roll-out.
J. ACCEPTANCE TESTING
Following delivery and installation, CONTRACTOR shall test CT, along
with COUNTY personnel. COUNTY shall approve Final System Acceptance
when CT has been successfully tested and satisfactorily performs all functions
necessary pursuant to this Agreement, and COUNTY has received all
deliverables identified in this Agreement as required for acceptance.
K. FACILITIES AND PREPARATION
COUNTY will, at its own expense, provide all necessary labor and
materials for site preparation, electrical services, and cabling required for System
Installation. COUNTY shall receive the System Software, and will follow
instructions provided by CONTRACTOR to load it on COUNTY's System
Hardware to prepare the System for processing.
L. SYSTEM HARDWARE AND SYSTEM SOFTWARE
COUNTY will, at its own expense, provide and properly maintain and
update, on an ongoing basis, all necessary COUNTY System Software and
COUNTY System Hardware required to operate CT. Said COUNTY System
Software and COUNTY System Hardware shall meet CONTRACTOR's
recommendations.
As part of COUNTY's responsibility for computer infrastructure, COUNTY
is responsible for ensuring that data is secure and protected at all times.
CONTRACTOR is not responsible for, and cannot be held liable for, inadvertent
data disclosure or theft from COUNTY facilities.
M. COUNTY PROJECT MANAGER
Upon execution of this Agreement, COUNTY's Contract Administrator
shall designate one individual from the Internal Services Department Information
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Technology division (ISD-IT), who will function as Project Manager, with
responsibility for day-to-day management of the project for implementation of CT.
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.
N. RESPONSIBILITY FOR PUBLIC HEALTH INFORMATION
The Software has no requirement for creation, receipt, maintenance or
transmission of, nor does it provide for the creation, receipt, maintenance or
transmission of any personally identifiable information (“PII”) or protected health
information (“PHI”). The only information comprising the Data or Output is
information concerning COUNTY’s HIPAA Compliance program, its information
systems used to create, receive, maintain or transmit sensitive information,
and/or its information risk management program.
COUNTY agrees to take reasonable steps to ensure that Authorized
Users do not upload or otherwise enter any PHI or PII into the Software. In
developing the Software, CONTRACTOR has made commercially reasonable
efforts to interpret and apply the provisions and requirements of the HIPAA
Security Rule, the HIPAA Privacy Rule, and the HIPAA Breach Notification Rule
(the “Rules”), and recommended standards and best practices as set forth by the
Office for Civil Rights (“OCR”) under such Rules.
When used as designed, the Software provides a consistent approach to
the performance of certain activities required or suggested by the Rules by
guiding the User through a series of questions. The Software follows a
proprietary decision flow to pose such series of questions, capture the User’s
responses and, based on those responses, allows the Software to calculate
certain proprietary compliance and/or risk management rating(s), highlight
additional controls COUNTY might consider implementing, and suggest tasks
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that COUNTY might consider completing in managing identified risks or closing
compliance gaps. Although the Subscriptions to the Software shall support and
promote COUNTY's compliance with the Rules, COUNTY’s purchase of
Subscription(s) to the Software, alone, does not assure COUNTY’s compliance
with the Rules.
IV. TERM
The term of this Agreement shall be for a period of two years and nine
months years, commencing on October 7, 2019, through and including June 30,
2022. This Agreement shall automatically renew for two (2) additional
consecutive twelve (12) month periods, beginning on July 1, 2022, unless
terminated earlier according to the terms of this Agreement.
V. TERMINATION
A. TERMINATION WITHOUT CAUSE.
Either party may elect to terminate this Agreement upon ninety (90) days
written notice, prior to the renewal of any one (1) year term.
B. 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 without penalty, by giving
CONTRACTOR ninety (90) days’ advance written notice.
C. BREACH OF CONTRACT
1. Failure to pay any moneys due to CONTRACTOR under this
Agreement, within forty-five (45) days of receipt of written notice of
such failure from CONTRACTOR;
2. Any non-breaching party may terminate this Agreement for breach of
any material term, condition, or covenant in this Agreement if the
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breaching party has failed to cure such breach within thirty (30) days
receipt of written notice of such failure;
3. Either party may terminate this Agreement in the event the other
party: (i) is or becomes insolvent, (ii) is or becomes a party to any
bankruptcy or receivership proceeding or any similar action affecting
the financial condition or property of that party, if such proceeding has
not been dismissed within 30 days, or (iii) makes a general
assignment for the benefit of creditors;
D. BREACH BY COUNTY
CONTRACTOR may immediately suspend or terminate this Agreement in
whole or in part, where, in the determination of the CONTRACTOR, a breach of
Section II-A-3 (proprietary rights) has occurred
E. BREACH BY CONTRACTOR
COUNTY may immediately suspend or terminate this Agreement in whole
or in part, where in the determination of the COUNTY there is:
1. A failure to comply with any term of this Agreement;
2. Improperly performed service as defined by the expectations and
deliverables outlined in this Agreement.
In no event shall any payment by the COUNTY constitute a waiver by
COUNTY of any breach of this Agreement or any default which may then exist on
the part of CONTRACTOR. Neither shall such payment impair or prejudice any
remedy available to COUNTY with respect to the breach or default. COUNTY
shall have the right to demand of CONTRACTOR the repayment to the COUNTY
of any funds disbursed to CONTRACTOR under this Agreement, which in the
judgment of COUNTY were not expended in accordance with the terms of this
Agreement. CONTRACTOR shall promptly refund any such funds upon demand.
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F. CONSEQUENCES OF TERMINATION.
Upon termination, COUNTY agrees to stop using the Program and
destroy all copies in COUNTY’s possession, and shall certify COUNTY’s
compliance in writing, signed by an authorized representative of COUNTY
organization, within five (5) days of the date of termination. COUNTY shall be
responsible for taking adequate precautions to prevent any loss of COUNTY’s
own data. Upon termination, all payments due to CONTRACTOR up until the
date of termination shall immediately be due and payable.
G. RIGHT TO DISABLE SOFTWARE.
In the event that COUNTY fails to cure any material breach in the times
specified above, CONTRACTOR reserves the right to electronically disconnect
COUNTY’s use of the Program, until such breach is cured.
H. WITHOUT CAUSE
Under circumstances other than those set forth above, COUNTY may
terminate this Agreement in full or in part by giving ninety (90) days advance
written notice of an intention to terminate to CONTRACTOR.
VI. COMPENSATION/INVOICING
A. TOTAL AGREEMENT AMOUNT
COUNTY agrees to pay CONTRACTOR, and CONTRACTOR agrees to
receive annual compensation, as displayed in the following rate tables,
regardless of whether COUNTY seeks reimbursement for such costs from
individual cases or clients. COUNTY agrees to pay annual fees for Third Party
Software support and maintenance in cases where solicited.
CONTRACTOR’s current per diem rate is defined in section VI, and
applies to training either on site or via electronic interface, on site installation, on-
site consulting services, and custom programming. Usage fees do not include
travel expenses incurred while providing services to COUNTY under this
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Agreement, shipping charges, or the costs of any recommended hardware.
COUNTY agrees to pay such fees and costs, when and as the services are
rendered and/or such expenses are incurred, upon receipt of invoice from
CONTRACTOR. CONTRACTOR reserves the right to require prepayment or
advance deposit for services and/or expenses.
In no event shall total compensation paid for all services performed under
this Agreement exceed $323,735 during the entire potential four-year-nine-month
term of this Agreement: the total compensation paid for a partial (prorated) first
year, through the third year of web-based CTI-V3 without cloud-based hosting is
$132,591, not to exceed $235,931 if extended for a 4th and 5th year. The
expenditure maximum for conversion from DOS to the web-based CTI – V3
operating system is a one-time cost of $27,550. The potential maximum 5-year
expenditure for support services is $7,000. The potential, additional cost for
utilization of cloud-based data-hosting provided by CompuTrust for a partial
(prorated) first year, through the third year, is an additional $29,829, not to
exceed $53,254 if extended for a 4th and 5th year.
It is understood that all expenses incidental to CONTRACTOR'S
performance of services under this Agreement shall be borne by
CONTRACTOR.
CONTRACTOR may increase Annual Maintenance and Support fees, as
well as additional License/Services Fees, upon sixty (60) days' advance written
notice to COUNTY, provided that CONTRACTOR not increase such fees more
than once in any one year period, and provided that each increase will not
exceed the previous fees by the lesser of (i) three percent (3%) per year or (ii)
the cumulative percentage increase in the Consumer Price Index, All Urban
Consumers for the U.S., during the previous year.
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All usage fees will be subject to a 3% COL increase annually. If COUNTY
requires additional users, fees will be increased accordingly.
B. INVOICING
CONTRACTOR shall submit invoices, either electronically or via mail, to
the County of Fresno ISD-IT, Accounts Payable, 333 W Pontiac Way, Clovis, CA
93612-5613 or Accounts Payable (isdbusinessoffice@fresnocountyca.gov).
COUNTY will pay CONTRACTOR within forty-five (45) days of receipt of a
proper invoice, by mail addressed to CONTRACTOR's remittance address at
18625 Sutter Blvd, Ste 500, Morgan Hill CA 95037-2864.
C. LATE CHARGES
If any fee or cost is not paid within forty-five (45) days after it is due,
CONTRACTOR may, at its option, charge interest at a rate of one and one-half
percent (1½ %) per month (eighteen percent (18%) per annum) or, if less, the
highest rate allowed by applicable law, from the date such fee or charge first
became due.
D. CHARGEABLE SERVICES FOR CTI-V3 UPGRADE
CTI-V3 UPGRADE
Estimated Services to be Performed without customization Milestone
Installation - allows for 2 server environments, 1 testing which
becomes production upon go-live. If multiple installations are
involved, services will be charged accordingly
1
Database Conversion - VB to Standard CTI-V3 version. (ONE
DB)
2
Image conversion 2
System administration training via WebEx 1
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CompuTrust reserves the right to utilize funds from one service item to
another if those funds are available; otherwise a change order will be required.
Payment Amount as
Outlined Below M Item # Services Milestones
01
Testing Environment set up on a
Vendor supported server for system
analysis and project meetings.
Planning and analysis results and
documentation in (SOW)
$5,600
Train the Trainer via WebEx 3
Meetings to review CTI-V3 and discuss customization
requirements, to be documented in a Statement of Work
(SOW) This can be done remotely via WebEx.
1
Customization of forms as outlined in SOW 2/3
Development of 2 new reports 2/3
Customization of ACH 2/3
Customization of Bank Recon 2/3
Customization of Check Printing 2/3
Support for acceptance testing, final conversion, moving the
system into production
3
Estimated Services $32,550
Discount for prior upgrade costs paid in 2009 for cancelled CTI
upgrade. This discount will be deducted upon invoice and
acceptance of Milestone 3. This discount will be void with the
expiration of this contract.
($5,000)
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System Administrator training
02
Delivery of SOW and build of
requirements as outlined, and Data
Conversion – ½ of the cost,
$14,875
03
Acceptance of delivered requirements
- ½ of the cost
Training – Train the Trainer via WebEx
Final data conversion and deployment
of updated application to Production
environment on the Axure Hosted
server for Go-Live
$12,075
03
Discount for prior upgrade costs paid
in 2009 for cancelled and expired CTI
upgrade. This discount will be
deducted upon invoice and
acceptance of Milestone 3. This
discount will be void with the expiration
of this contract.
($5,000)
Totals: $27,550
ANNUAL MAINTENANCE/SUPPORT FEES
Year 1
Annual Usage Fees for current 20 users (prorated):
Effective 10/07/2019 – 6/30/2020
$32,226
Annual Usage fees for 2 additional users: $1,937
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The new mobile CTI-V3 system will consist of fully integrated modules for
Case Management, Accounting, Asset Management, Reports, Banking functions,
File Management. Upgrades to the System are to be included without additional
cost. Payments for any services provided by CONTRACTOR shall be invoiced as
outlined in the above Milestones.
E. ADDITIONAL SERVICE FEES AND CUSTOMIZATION.
1. On-site training/day; per-diem rate $1,400.00
2. Billable support or Programming I hour $175.00
Additional Services Fees shall only be paid to CONTRACTOR if any such
services set forth herein are performed by CONTRACTOR upon COUNTY's
written request.
Additional modifications requested by COUNTY will be completed by CT
at the above-listed rates. Customization will require establishment of a Statement
of Work (SOW) to be approved by both parties for both cost and content. Upon
establishment of the SOW, development will be scheduled and the modifications
Total Annual Fees: $34,163
Year 2
Annual Usage fees for 22 users: Effective 7/1/2020 $47,985
Year 3
Annual Usage fees for 22 users: Effective 7/1/2021 $49,425
Year 4
Annual Usage fees for 22 users: Effective 7/1/2022 $50,905
Year 5
Annual Usage fees for 22 users: Effective 7/1/2023 $52,435
Total CTI Annual Maintenance Fees $234,931
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installed. CT will allow 30 days for COUNTY to review the modifications for sign-
off once they have been installed.
F. CLOUD HOSTED CTI – V3 PRICING
COUNTY’S Department of Behavioral Health – Public Guardian’s Office
may elect to utilize Cloud-Hosted services at any time during this Agreement (a
sample pricing breakout for Cloud-Hosted services is provided in Exhibit A.
VII. TRAINING
A. ON-SITE TRAINING
All training can be provided via WebEx or other electronic program such
as Skype. At COUNTY’s request, CONTRACTOR shall provide training at
COUNTY’s site at a mutually agreed time. Such training is subject to the
CONTRACTOR per diem rates and travel expense, defined in Section VI.
B. HIPAA AND PRIVACY TRAINING.
Software Training will not include the provision training on general subjects not
directly related to the functionality of and administration of the Software and the
Subscriptions, such as, but not limited to, general HIPAA or state privacy or
security regulations and compliance, risk analysis and risk management
requirements or processes, National Institute of Standards and Technology
(“NIST”) publications and requirements, and the like.
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 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
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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. 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.
X. 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.
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XI. INDEMNIFICATION/HOLD HARMLESS
A. INDEMNIFICATION.
If a third party claims that the Program infringes any U.S. patent,
copyright, or trade secret, CONTRACTOR will (as long as COUNTY is not in
default under this Agreement or any other agreement with CONTRACTOR)
defend, indemnify, and hold COUNTY harmless against such claim, at
CONTRACTOR's sole expense, and pay all damages, provided that COUNTY
promptly notifies CONTRACTOR in writing of the claim, cooperates with
CONTRACTOR, and allows CONTRACTOR to control the defense or any related
settlement negotiations.
B. RIGHT TO CURE.
If such a claim is made or appears possible, CONTRACTOR may, at its
option, secure for COUNTY the right to continue to use the Program, modify or
replace the Program so they are non-infringing, or, if neither of the foregoing
options is available in CONTRACTOR's judgment, require COUNTY to return the
Program at CONTRACTOR's cost, or destroy the Program, for a refund equal to
the portion of previously paid License fees allocable to the remaining term of
COUNTY’s License.
C. NO OBLIGATION.
CONTRACTOR has no obligation for any claim based on a modified
version of the Program or their combination, operation, or use with any product,
data, or apparatus not provided by CONTRACTOR.
CONTRACTOR agrees to indemnify, save, hold harmless, , defend the
COUNTY, 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, costs, fees, regulatory fines and
penalties, and forms of legal action involving Cyber Risks, occurring or resulting
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to COUNTY in connection with the performance, or failure to perform, 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.
COUNTY agrees to indemnify, save, hold harmless, and at
CONTRACTOR'S request, defend the CONTRACTOR, its officers, agents, and
employees from any and all costs and expenses (including attorney’s fees and
costs), damages, liabilities, claims, and losses occurring or resulting to
CONTRACTOR in connection with the performance, or failure to perform, by
COUNTY, 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 occurring or resulting to any person, firm, or
corporation who may be injured or damaged by the performance, or failure to
perform, of COUNTY, 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 at
COUNTY’s request, 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
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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 services, software, or any Equipment provided by
CONTRACTOR as part of this Agreement, including, but not limited to, their
materials, designs, techniques, processes and information supplied or used by
CONTRACTOR or any of CONTRACTOR’s subcontractor of any tier in
performing or providing any portion of CONTRACTOR’s obligations as outlined in
this Agreement. 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 services, software or any Equipment provided by CONTRACTOR or any part,
combination or process thereof, 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 of the services, software, or any Equipment provided by
CONTRACTOR as 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.
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The provisions of this Section XI shall survive termination of this
Agreement.
XII. INSURANCE
Without limiting 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 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. 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
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. TECHNOLOGY PROFESSIONAL LIABILITY (ERRORS AND
OMISSIONS)
Technology Professional Liability (Errors and Omissions) Insurance
appropriate to CONTRACTOR’s profession, with limits not less than Two Million
Dollars ($2,000,000) per occurrence or claim, three Million Dollars ($3,000,000)
aggregate. Coverage shall be sufficiently broad to respond to the duties and
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obligations as is undertaken by CONTRACTOR in this Agreement and may
include, but not be limited to infringement of copyright, trademark, trade dress,
invasion of privacy violations, information theft, damage to or destruction of
electronic information, release of private information, alteration of electronic
information, extortion and network security. The policy may provide coverage for
breach response costs as well as regulatory fines and penalties as well as credit
monitoring expenses with limits sufficient to respond to these obligations.
D. CYBER LIABILITY
CONTRACTOR shall obtain cyber liability insurance with limits not
less than Two Million Dollars ($2,000,000) per occurrence. Coverage shall
include, but not be limited to, claims involving Cyber Risks. The cyber
liability policy shall be endorsed to cover the full replacement value of
damage to, alteration of, loss of, or destruction of intangible property
(including but not limited to information or data) that is in the care,
custody, or control of the 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 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)
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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.
E. 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.
F. WORKER'S COMPENSATION
A policy of Worker's Compensation insurance as may be required
by the California Labor Code.
G. 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
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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, Internal Services
Department, Attention: Director of Internal Services/Chief Information
Officer, 333 W. Pontiac Way, Clovis, CA 93612, 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 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
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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 issued by admitted insurers licensed to do
business in the State of California, and such insurance shall be purchased
from companies possessing a current A.M. Best, Inc. rating of FSC VII or
better.
XIII. ADDITIONAL SERVICES AND SYSTEM REQUIREMENTS
A. INSTALLATION
Installation by CONTRACTOR cannot begin until COUNTY’s IT
Department has a server in place with all of the minimal recommendations, as
supplied in our ‘Hardware/Software Requirements’ document. CONTRACTOR
will not install unless COUNTY’s server is properly prepared. CONTRACTOR
can assist in helping COUNTY set up the server for an additional charge. This
includes, and is limited to, IIS configuration, SQL CONTRACTOR DB restores
and updates.
CONTRACTOR is able to perform the installation more effectively while
having VPN full access to the test server and database. If CONTRACTOR is
not provided with full VPN access we have found that there is additional time
needed to perform the install. This will constitute a chargeable expense. There
should be both a testing and production environment set up.
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B. CONVERSION
CONTRACTOR will need to run the Daily Balance Report from the first
transaction date, for each database prior to conversion. Any account(s) out of
balance will need to be corrected before CONTRACTOR can begin the
conversion process. If it takes CONTRACTOR more than 2 hours to resolve
these issues, the additional time to resolve will be charged to the COUNTY.
CONTRACTOR will map the data elements from COUNTY’s current CT
system to the standard fields in the CTI-V3 database. If there is a field needed
that does not exist in CTI-V3, it will require a modification, and will constitute
additional costs. The data should be clean prior to submission to CTfor mapping.
CONTRACTOR will perform a trial conversion of the existing data for Customer
review in the CTI-V3 application. CONTRACTOR will allow 30 days for
COUNTY to review the converted data once it has been installed. If COUNTY is
non-responsive, it will be assumed COUNTY has approved the data conversion,
and COUNTY will be invoiced for the services performed. CONTRACTOR will
then perform a final conversion of the data.
Prior to the final conversion, COUNTY must sign off on the converted
data and system changes.
C. CUSTOMIZATION
Additional modifications requested by COUNTY will be completed by
CONTRACTOR at CONTRACTOR’s per diem rate. Customization will require
establishment of a Statement of Work (SOW), to be approved by both parties.
Upon establishment of the SOW, development will be scheduled and the
modifications installed. CONTRACTOR will allow 30 days for COUNTY to
review the modifications for sign-off once they have been installed. If COUNTY is
non-responsive, it will be assumed to be approved, and COUNTY will be invoiced
for services performed.
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D. REPORT DEVELOPMENT
CONTRACTOR and COUNTY support the use of Microsoft SQL
Reporting Services (SRS) for report development. SRS is a free report writing
tool with extensive functionality. Additionally, the search engine capabilities and
form grids can filter inquiries that can be saved to a report.
CTI-V3 includes a set of “canned” reports. Any additional reports deemed
necessary by COUNTY to be designed by CT or integrated with another report
service will be chargeable at CT’s per diem rate. Additional Reports have not
been quoted at this time.
Court Accounting reporting can be a variable to each individual agency.
CONTRACTOR has a standard Court Accounting report. Should COUNTY wish
CONTRACTOR to customize this report to fit COUNTY needs, this will
constitute a chargeable expense.
E. NAVIGATION
CONTRACTOR will provide WebEx training to show COUNTY users
how to navigate through the new application, in order for them to perform duties
associated with conversion and customization, should it be applicable.
F. SYSTEM ADMINISTRATOR TRAINING
1. COUNTY’s internal system administrator will need to learn how to
manage the new system. This will include:
• Change captions and tool tips, directly on each page or in a
central admin page.
• Create and edit Help contents from an admin page
• Create and edit users
• Create and edit list items
• Add and modify Organizations
• Add and modify Personnel
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• Role administration
• Menu maintenance
G. END USER TRAINING
CT recommends the “train the trainer” approach to COUNTY training.
This could include any number of people, however a minimum of 2 is
recommended. Should end user training be required by COUNTY, either online
or in person, this will constitute a chargeable expense at our per diem rate plus
reasonable travel expenses.
There may be a need to provide additional services. These services will
be quoted separately at the current per diem rate of $1400 or $175/hour.
XIV. HARDWARE/SOFTWARE REQUIREMENTS
A. SERVER REQUIREMENTS
1. Software:
MS IIS 7.5 or newer - Web Deployment Tool
MS .Net Framework 4.7.1
MS SQL Server 2014 or newer, CLR enabled
MS Analysis Server (optional)
MS Reporting Server (optional)
SMTP server access to send out emails
2. Hardware: (The Web App does not have a specific minimum
requirement, these are dictated by the OS and the database server)
Memory 16GB. Recommended 20GB
Disk space should be adopted in accordance with the volume of
documents and images to be stored.
Minimum 4 CPU’s, AMD Opteron, AMD Athlon 64, Intel Xeon with
Intel EM64T support, Intel Pentium IV with EM64T support.
Speed, 2.0 GHz or faster.
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3. Workstations:
The client workstation or device should have installed the
appropriated software in order to display, edit and/or print these
files (PDF, Word, images, audio, video, etc) that may be stored or
generated in the server.
Current Browser Support
Browsers with no HTML 5 implemented are not supported
Browsers must have JavaScript support enabled
Browsers in Beta stage are not supported
All Discontinued browsers are not supported for example: IE &
Netscape
XV. AUDITS AND INSPECTIONS
CONTRACTOR shall at any time during CONTRACTOR'S normal
business hours, and upon prior written notice, as often as the COUNTY may
deem necessary, make available to the COUNTY for examination all of its
records and data with respect to the matters covered by this Agreement.
CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to
audit and inspect all of such records and data necessary to ensure
CONTRACTOR'S compliance with the terms of this Agreement. Any such
Browser (*) \ OS Windows IOS Android
Edge 42.0+ - -
Firefox 62+ 62+ 62+
Chrome 69+ 69+ 69+
Opera 55+ - -
Safari - 11+ -
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examinations or audits shall be at the COUNTY'S expense, and at Contractor’s
facility.
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) at Contractor’s facility.
XVI. NOTICES:
The persons and their addresses having authority to give and receive
notices under this Agreement include the following:
A. AUTHORITY TO GIVE AND RECEIVE NOTICES
COUNTY OF FRESNO CONTRACTOR
Robert Bash
Chief Information Officer
333 W Pontiac Way
Clovis, CA 93612-5613
Anthony Kessel
CEO
CompuTrust Software LLC
18625 Sutter Blvd. Suite 500
Morgan Hill CA 95037-7522
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 telephonic facsimile 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
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delivery, addressed to the recipient. A notice delivered by telephonic facsimile 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 machine record of the
completed 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).
B. PRIMARY ESCALATION CONTACT INFORMATION
The persons and their contact information that the COUNTY or
CONTRACTOR can use to escalate problems or situations are as follows:
COUNTY OF FRESNO CONTRACTOR
(1)
Contact #1
Applications Information
Technology Manager
Office Phone: (559) 600-5800
Email:
helpdesk@fresnocountyca.gov
Contact #1
Lily Yee, Technical Support
Manager
CTSupport@computrustcorp.com
Office Phone: (408) 782-7470
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(2)
COUNTY OF FRESNO CONTRACTOR
Contact #2
Information Technology Division
Manager
Email:
swalden@fresnocountyca.gov
Contact #2
Kristie Garcia
Technical Support
CTSupport@computrustcorp.com
XVII. 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.
XVIII. DISCLOSURE OF SELF-DEALING TR ANSACTIONS
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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XIX. 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.
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Exhibit A
53
COMPUTRUST CTI-V3 QUOTE FOR FRESNO COUNTY DEPARTMENT OF BEHAVIORAL
HEALTH – PUBLIC GUARDIAN OFFICE
CLOUD-HOSTED CASE MANAGEMENT DATABASE
Purpose – The below schedule reflects a proposed pricing schedule for the County’s
implementation of cloud-hosted services effective October 7, 2019. Should the County elect to
implement cloud-hosted services at a later date, a revised pricing structure shall be appended to
the Agreement with the authorization of the County CIO (Section VI-E).
This project would upgrade and migrate Fresno County Department of Behavioral Health –
Public Guardian data to the CompuTrust CTI-V3 cloud-hosted server environment. This version
is a completely new architecture for a mobile-based application.
Terms – Customer and Computrust would agree to mutually determined terms in chronological
alignment with the existing Agreement, in an appended pricing structure document.
All Hosted fees will be subject to a 3% COL increase annually. Should COUNTY require
additional users, fees will be increased accordingly or if projected data storage limits are
exceeded, additional storage costs will incur.
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Exhibit A
54
CLOUD-HOSTED CASE MANAGEMENT DATABASE
Year 1
Annual Usage Fees for current 20 users (prorated):
Annual Hosted Fees for current 20 users (prorated):
Annual Usage Fees for 2 additional users (prorated):
Annual Hosted Fees for 2 additional users (prorated):
Effective 10/07/2019 – 6/30/2020
$32,226
$7044
$1,937
$705
Total Annual Fees: $41,930
Year 2 Annual Hosted fees for 22 users: Effective 7/1/2020 $58,860
Year 3 Annual Hosted fees for 22 users: Effective 7/1/2021 $60,630
Year 4 Annual Hosted fees for 22 users: Effective 7/1/2022 $62,445
Year 5 Annual Hosted fees for 22 users: Effective 7/1/2023 $64,320
TOTAL $288,185
“User(s)” is defined as Customer employees, representatives, consultants, contractors, or
agents who are authorized to use the Software and have been supplied user identifications and
passwords by Customer (or by Vendor at Customer’s request), each of which must be individual
and not shared.
Data Storage Fees – The CTI-V3 Annual Fee provides for unlimited storage of the database.
Documents and images, however, will have a separate storage fee for the term of the
Agreement. This fee is subject to change depending on the amount of legacy and projected
storage that is anticipated at the time of Agreement. COUNTY will be notified if COUNTY is
getting close to its limit. We will work with COUNTY to determine COUNTY’s expected storage
over the remainder of the year, and bill accordingly at $.18/Gb/Mo.
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Exhibit A
55
Annual Fees
Legacy Documents/Images Storage Fees estimated __ Gb @ $.18/Gb/Mo
$ TBD
Projected 1st annual growth increase estimated __ Gb @ 18/Gb/Mo $ TBD
1st year Total Annual Document/Image Storage Fees $ TBD
The new mobile CTI-V3 system includes fully integrated modules for Case Management,
Accounting, Asset Management, Reports, Banking functions, and File Management. Upgrades
to the system are included at no additional cost.
Installation: Installation by CompuTrust cannot begin until COUNTY’s IT Department has a
server in place with all of the minimal recommendations, as supplied in our ‘Hardware/Software
Requirements’ document. CompuTrust will not install unless COUNTY’s server is properly
prepared. CompuTrust can assist in helping COUNTY set up the server for an additional
charge. This includes and is limited to IIS configuration, SQL CompuTrust DB restores, and
updates.
CompuTrust is able to perform the installation more effectively while having VPN full access to
the test server and database. If CompuTrust is not provided with full VPN access we have found
that there is additional time needed to perform the install. This will constitute a chargeable
expense. There should be both a testing and production environment set up.
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Exhibit A
56
Additional Agreement Terms specific to Cloud-Hosted applications
Vendor is in the business of providing case management software for public
guardians, fiduciaries, and administrators. The parties desire that Vendor make
such software available to Customer under the terms and conditions of this
Agreement, and Customer’s access to and use of the software shall conform to
these terms and conditions.
In consideration of the mutual promises and covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Definitions
The following terms shall have the following meaning:
“CTI-V3 Hosted” means the case management software for public guardians,
fiduciaries, administrators. offered via Software as a Service (SaaS), the “Service”
provided under the terms of this Agreement, designed as an alternative to a
customized CTI-V3 residing locally on a customer’s server.
“Content” means the audio and visual information, documents, software, products,
and services contained or made available to Customer in the course of using the
Service.
“Customer Data” means any data, information, or material provided or submitted
by Customer to the Service in the course of using the Service.
“Initial Term” means the initial period during which Customer is obligated to pay
for the Service as defined above attached to this Agreement.
“Intellectual Property Rights” means any unpatented inventions, patent
applications, patents, design rights, copyrights, trademarks, service marks, trade
names, domain name rights, mask work rights, know-how and other trade secret
rights, and all other intellectual property rights, derivatives thereof, and forms of
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Exhibit A
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protection of a similar nature anywhere in the world.
“License Administrator(s)” means those Users designated by Customer who are
authorized to purchase licenses and to create User accounts and otherwise
administer Customer’s use of the Service.
“License Term(s)” means the period(s) during which a specified number of Users
are licensed to use the Service pursuant to this Agreement.
“Vendor Technology” means all of Vendor’s proprietary technology (including
software, hardware, products, processes, algorithms, user interfaces, know-how,
techniques, designs, and other tangible or intangible technical material or
information) made available to Customer by Vendor in providing the Service.
“Service(s)” means access under the terms of this Agreement to Vendor’s case
management software, which is developed, operated, and maintained by Vendor,
accessible via http://www.CompuTrustcorp.com or another designated website or
IP address, or ancillary online or offline products and services provided to
Customer by Vendor, to which Customer is being granted access under this
Agreement, including the Vendor Technology and the Content.
“User(s)” means Customer employees, representatives, consultants, contractors,
or agents who are authorized to use the Service and have been supplied user
identifications and passwords by Customer (or by Vendor at Customer’s request).
3. Customer Responsibilities
Customer is responsible for all activity occurring under Customer’s User
accounts, including activity initiated by third parties, whether such parties are
known or unknown to Customer, with the sole exception of activities which are
specifically initiated by Vendor or caused by the negligence of Vendor and shall
abide by all applicable local, state, and federal laws and regulations in connection
with Customer’s use of the Service, including those related to data privacy, and
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Exhibit A
58
the transmission of technical or personal data, except to the extent such activity is
outside of Customer’s reasonable control. Customer shall: (i) notify Vendor
immediately of any unauthorized use of any password or account or any other
known or suspected breach of security; (ii) report to Vendor immediately and use
reasonable efforts to stop immediately any copying or distribution of Content that
is known or suspected by Customer or Customer Users; and (iii) not impersonate
another Vendor user or provide false identity information to gain access to or use
the Service.
4. Account Information and Data
Vendor does not own any Customer Data. Customer, not Vendor, shall have
sole responsibility for the accuracy, quality, integrity, legality, reliability,
appropriateness, and intellectual property ownership or right to use of all Customer
Data, and Vendor shall not be responsible or liable for the deletion, correction,
destruction, damage, loss, or failure to store any Customer Data, except to the
extent that any such deletion, correction, destruction, damage, loss, or failure to
store such Customer Data is the result of Vendor’s negligence in performing
services pertaining to Customer Data pursuant to this Agreement. In the event this
Agreement is terminated, Vendor will make available to Customer a quality,
industry standard, and useable file of the Customer Data within 10 days of
termination. Upon termination for cause, Customer’s right to the Services shall
cease, but Vendor will make available to Customer a file of the Customer Data
within 10 days of termination.
5. Intellectual Property Ownership
Vendor (and its licensors, where applicable) shall exclusively own all right, title,
and interest, including all related Intellectual Property Rights, in and to the Vendor
Technology, the Content, other than Customer’s data, and the Service and any
suggestions, ideas, enhancement requests, feedback, recommendations, or other
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Exhibit A
59
information provided by Customer or any other party relating to the Service. This
Agreement is not a sale and does not convey to Customer any rights of ownership
in or related to the Service, the Vendor Technology, or the Intellectual Property
Rights owned by Vendor. Vendor’s name, Vendor’s logo, and the product names
associated with the Service are trademarks of Vendor or third parties, and no right
or license is granted to use them as outlined in the COMPUTRUST SOFTWARE
CORPORATION, END-USER LICENSE AGREEMENT.
6. Charges and Payment of Fees
Customer shall pay all fees or charges to Customer’s account in accordance
with the terms and conditions set forth herein. The initial charges will be equal to
the current number of total User licenses requested times the User license fee
currently in effect. Payments must be made annually in advance unless otherwise
mutually agreed upon. Customer is responsible for paying for all User licenses
ordered for the year, whether or not such User licenses are actively used. An
authorized License Administrator may add licenses by initiating an amendment to
this Agreement. Added licenses will be subject to the following: (i) added licenses
will be coterminous with the preexisting License Term (either Initial Term or
renewal term); (ii) the license fee for the added licenses will be the then current,
generally applicable license fee; and licenses added in the middle of a billing month
will be charged on a pro-rated basis for that billing month. Vendor reserves the
right to modify its fees and charges and to introduce new charges at any time.
7. Excess Data Storage Fees
Customer will be charged the then-current storage fees for additional storage
as outlined above. Vendor will use reasonable efforts to notify Customer when the
average storage used reaches approximately 90 percent of the maximum
designated; however, any failure by Vendor to so notify Customer shall not affect
Customer’s responsibility for such additional storage charges. Said notice shall be
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Exhibit A
60
in addition to a monthly usage report to Customer, which shall provide Customer
with its current storage usage and the remaining storage space remaining. Vendor
reserves the right to establish or modify its general practices and limits relating to
the storage of Customer Data. Vendor shall notify Customer of any changes,
limitations, or additions to its general practices and limits relating to the storage of
Customer’s Data 30 days priors to the effective date of said changes.
8. Billing and Renewal
Payment for each year of the initial term is as set forth in this document.
Vendor will automatically issue an invoice to Customer each year on the
subsequent anniversary or as otherwise mutually agreed upon. Renewal fees will
be equal to the then current number of total User licenses times the current license
fees at the time of renewal. Other services will be charged on an as-quoted basis.
Vendor’s fees are exclusive of all taxes, levies, or duties imposed by taxing
authorities, and Customer shall be responsible for payment of all such taxes,
levies, or duties, excluding only U.S. (federal or state) taxes based solely on
Vendor’s income. The parties understand and agree that the transaction resulting
from this Agreement shall not be subject to sales taxes in California, as further
provided in Section 6010.9, 6011, and 6012 of the California Revenue and
Taxation Code. If Customer believes its bill is incorrect, Customer must contact
Vendor in writing within 60 days of the invoice date of the invoice containing the
amount in question to be eligible to receive an adjustment or credit.
Nonpayment and Suspension
In addition to any other rights granted to Vendor herein, Vendor reserves the
right to suspend or terminate this Agreement and Customer’s access to the Service
if Customer’s account becomes delinquent by more than 60 days. Delinquent
invoices and accounts are subject to interest of 1.0 percent per month on any
outstanding balance, or the maximum permitted by law, whichever is less, plus all
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Exhibit A
61
expenses of collection. Customer will continue to be charged for User fees during
any period of suspension. If Customer or Vendor initiates termination of this
Agreement, Customer will be obligated to pay the balance due on Customer’s
account computed in accordance with Section 8 above. Customer agrees that
Vendor may bill Customer for such unpaid fees.
Vendor reserves the right to impose a reconnection fee in the event Customer
is suspended and thereafter requests access to the Service. Customer agrees and
acknowledges that in the event of suspension or termination, Vendor will provide
Customer with a file of the Customer Data upon Customer’s request or before 10
days of account delinquency, as Vendor has no obligation to retain Customer Data
after this time period, and Customer hereby specifically acknowledges that such
Customer Data may be irretrievably deleted by Vendor if Customer’s account is
120 days or more past due.
10. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Term is described in
Section IV of the Agreement. Either party may terminate this Agreement or reduce
the number of licenses, effective only upon the expiration of the then current
License Term, by notifying the other party in writing at least thirty (30) days prior
to the expiration of the term. Customer shall be entitled to a pro-rata refund of all
payments tendered for any period in excess of the remaining year in which
termination notice was served. In the case of free trials, notifications provided
through the Service indicating the remaining number of days in the free trial shall
constitute notice of termination. In the event this Agreement is terminated, Vendor
will make available to Customer a quality, industry standard and useable file of the
Customer Data within 10 days of termination if Customer so requests at the time
of termination. Customer agrees and acknowledges that Vendor has no obligation
to retain the Customer Data, and may delete such Customer Data, more than 120
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Exhibit A
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days after termination.
11. Termination for Cause
Any breach of Customer’s payment obligations or unauthorized use of the
Vendor Technology or Service will be deemed a material breach of this Agreement.
Vendor, in its sole discretion, may terminate Customer’s password, account, or
use of the Service if Customer breaches or otherwise fails to comply with this
Agreement, provided that Customer fails to cure or otherwise resolve a verified
breach within 60 days of receipt of Vendor’s notice. Customer agrees and
acknowledges that Vendor has no obligation to retain the Customer Data, and may
delete such Customer Data, if Customer has not cured within 120 days of notice
of such breach; however, in this instance, Vendor agrees to provide Customer with
a file of the Customer Data upon Customer’s request or within 10 days of such
termination.
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Exhibit B
63
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 (hereinafter referred to as “County Contractor”),
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 directors 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).
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Exhibit B
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(1) Company Board Member Information:
Date:
(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: