"C.1" 1-• • %ta. —
MASTER MASTER SOFTWARE LICENSE AND PROFESSIONAL SERVICES AGREEMENT This Master Software License and Professional Services Agreement ("Agreement") is entered into effective fr•A—.,45 30 , 2016 ("Effective Date") by and between Systema Software LLC, a California limited liability company, with a place of business at 900 Larkspur Landing Circle, Suite 201, Larkspur, CA 94939 ("LICENSOR"), and City of Anaheim, a California Municipal Corporation with its place of business located at 201 S. Anaheim Blvd, Suite 503, Anaheim, CA 92805 ("LICENSEE").
RECITALS
A. LICENSOR is engaged in the business of providing claims management software and services to the general public: and
B. LICENSEE wishes to license certain software from LICENSOR; and, C. LICENSEE and LICENSOR desire to enter into a business relationship under which LICENSEE may acquire, from time to time, professional services and licenses to Software (as defined below) as required by LICENSEE as set forth under this agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants contained in this Agreement, the parties hereby agree as follows.
AGREEMENT
I. DEFINITIONS.
1.1. "Acceptance shall have the meaning set forth in Section 8 below.
1.2. "Acceptance Testing Period" shall mean a period of fifteen (15) days from the date of installation in the Designated Environment of the applicable Software during which LICENSEE shall verify that the Software substantially performs to the Documentation.
1.3. RESERVED
1.4. "Agreement" shall mean this Master Software License and Professional Services Agreement.
1.5. "Authorized User(s)" shall mean the number of licenses for "Concurrent Full Access Users" that can login to the Software for which LICENSEE has paid license fees for as set forth in Appendix A. The Software supports the ability for LICENSEE to configure an unlimited number of user profiles, but the number of users that can login simultaneously to the Software will be limited by the number of licensed Concurrent Full Access Users.
1.6. "Confidential Information" shall have the meaning set forth in Section 11.1 below.
1.7. "Consideration" shall have the meaning set forth in Section 9 below.
1.8. "Designated Environment" shall mean the hardware, operating system and/or database where the Software shall be installed.
1.9. "Documentation" shall mean the Documentation for the Software as set forth in User Help and in each applicable Software Appendix describing the Software.
1.10. "Installation Process" shall mean LICENSOR's standard installation procedures which involve the Software delivery and installation steps.
I .11. "License" shall have the meaning set forth in Section 3 below.
1.12. "License Fee" shaft mean the amount of the Software License paid for under the Payment Terms Section of Appendix A and/or each applicable Addendum to Appendix A.
1.13. "Limited Warranty" shall have the meaning set forth in Section 13.1 below.
1.14. "Maintenance and Support Services" shall have the meaning set forth in Section 9.1 below.
1.15. "Maintenance Release" shall mean patches, revisions and updates made available by LICENSOR to LICENSEE under the terms of the Maintenance and Support Agreement between the parties.
1.16. "Payment Terms" shall have the meaning set forth in Section 9.2 below.
1.17. "Permitted Site(s)" shall mean the designated LICENSEE facility(ies) or the SIMS Cloud Hosting Environment provided by LICENSOR.).
1.18. "Production Use" means the capability to use the system in a live environment (i.e. open new claims, make payments, set reserves, process transactions).
1.19. "Professional Services" shalt mean any project management, business analysis, training, data conversion, development, or consulting services offered by LICENSOR to LICENSEE on the terms and conditions set forth in Appendix A.
1.20. "Remedies" shall have the meaning set forth in Section 13.5 below.
1.21. "Software" shall mean the software programs, in object code format, developed by LICENSOR as set forth in Appendix A, including any related Documentation and Maintenance Releases to such Software delivered by LICENSOR to LICENSEE, which can be downloaded from LICENSOR'S website at www.systemasoft.corn.
1.22. RESERVED
1.23. "Tax(es)" shall have the meaning set forth in Section 10 below.
1.24. "Term and Termination" shall have the meaning set forth in Section 16.1 below.
2. MASTER AGREEMENT. This Agreement is a master agreement under which LICENSEE may order Software or Professional Services from LICENSOR now and in the future through use of Appendix A, which will act as a scope of work, listing the software modules being licensed and the Professional Services associated with implementing the software modules. The Software to be licensed by LICENSOR to LICENSEE and services provided under the terms of this Agreement shall be added to this Agreement from time to time. These changes will be made through attaching Addendum(s) to Appendix A. Each Addendum shall describe, at a minimum, the number of additional Authorized Users being licensed and or the additional software modules being licensed including the License Fee, the Designated Environment, the Permitted Site(s), and any associated implementation services fees including the hourly rates, maintenance support services fees, the license term and payment terms. Upon mutual agreement of LICENSOR and LICENSEE, each Addendum will be executed by LICENSOR and LICENSEE and deemed incorporated by reference into and governed by this Agreement
3. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement as set forth in Appendix A, LICENSOR hereby grants to LICENSEE a non-exclusive, U.S.-only, non-transferable, royalty-free License (the "License") (i) to install a copy of the applicable Software on the Designated Environment at the Permitted Site(s); (ii) to license the Authorized Users' for the applicable Software to use the applicable Software solely for LICENSEE's internal business purposes; (iii) to use reporting outputs from the applicable Software, as such applicable Software is configured, to perform other internal LICENSEE services and to deliver such reporting outputs to LICENSEE's customers, agents, and business partners in the course of performing LICENSEE services; (iv) to use the Documentation solely in connection with the permitted use, operation and support of the applicable Software and (v) to make backup copies of the applicable Software for archival, backup, disaster and recovery purposes only,
3.1. Limitations. The parties agree that LICENSEE has licensed an initial number of Authorized Users as set forth on Appendix A. If LICENSEE desires to increase the number of Authorized Users of the Software set forth in Appendix A, LICENSEE agrees to contract with LICENSOR to upgrade the applicable Software capacity and increase the number of Authorized Users by creating an Addendum to Appendix A.
LICENSEE shall not duplicate or reproduce copies of the Software, or any component thereof, except as expressly permitted herein. LICENSEE shall have no right to use the Documentation to manufacture any non-LICENSEE services, products or competing products using the Software and LICENSEE agrees not to reverse engineer the Software or any component thereof. LICENSEE shall have no right to distribute or disclose the Software, or any component thereof, to any third party, except to the extent that such third party needs access on a need to know basis, subject to obligations of confidentiality, to assist LICENSEE in the use, operation and support of the Software. LICENSEE shall not permit any employee, agent or third party to attempt to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, 2 or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose the source code, source listings, or component thereof, or any trade secret information or process contained in the Software.
3.2 LICENSEE hereby designates the City's Human Resources Director or his/her designee to execute one or both of the annual options discussed in Appendix A for a sixth and possibly seventh year to the term thereof, as well as to execute addenda to Appendix A as discussed in Section 3.1 above as long as such options and addenda do not bring the amount spent by LICENSEE under this Agreement over Six Hundred Seventy Five Thousand Dollars and no/100 ($675,000.00), It is understood by and agreed between the Parties to this Agreement that full and complete payment by LICENSEE for all services pursuant to this Agreement, including all fees, expenses, fees billed on time and expense basis, as well as all amounts paid under the Maintenance Agreement attached hereto as Exhibit B, shall not exceed Six Hundred Seventy Five Thousand Dollars and no/100 ($675,000.00).
4. PROFESSIONAL SERVICES. From time to time, LICENSEE may order development, training, consulting or other Software-related services from LICENSOR. In each case, LICENSOR shall perform such Professional Services pursuant to the terms of this Agreement and the applicable addendum to Appendix A. LICENSOR will own all right, title and interest in any software developed hereunder and such software will be deemed to be "Software" and governed by the terms applicable to "Software" hereunder. The developed software will be tested and accepted by LICENSEE in conjunction with the acceptance procedures described in Section 8 ("Acceptance").
5. INSTALLATION. In the event LICENSEE elects to host the "Software" at LICENSEE's facility(ies), LICENSEE will install the applicable Software on the Designated Environment at the Permitted Site(s) in accordance with the Installation Process. In the event LICENSEE changes the Permitted Site(s), LICENSEE shall notify LICENSOR in writing of such change within ten (10) days of such change.
6. RESERVED
7. RESERVED
8. ACCEPTANCE. Upon completion of the Software Installation Process on the Designated Environment at the Permitted Site(s), LICENSEE will conduct Acceptance Testing under the guidance of LICENSOR at the Permitted Site(s) and the parties will determine whether the Software performs substantially in conformance with the applicable Documentation. LICENSEE may reject a Software program only if such Software program does not substantially conform to the Documentation. LICENSEE's rejection must be in writing, must describe the non-conformity in detail, and must be provided to LICENSOR within the Acceptance Testing Period.
LICENSOR will have a reasonable period of time in which to correct or provide a workaround for any such non-conformity. LICENSEE will be deemed to have accepted the Software after the expiration of the Acceptance Testing Period, unless LICENSOR has received written notice of rejection within the Acceptance Testing Period.
9. CONSIDERATION. In consideration of LICENSOR's license of the Software, LICENSEE agrees to pay LICENSOR as is described in this Section 9 ("Consideration").
9.1. Pricing. The pricing for the applicable Software License and the associated Professional Services will be set forth in Appendix A. The pricing for maintenance and support services for the applicable Software will be set forth in Appendix A ("Maintenance and Support Services").
9.2. Payment. The payment terms for License Fees, Professional Services fees, and Maintenance and Support Service Fees shall be as set forth in Appendix A ("Payment Terms"). All such fees shall be due and payable thirty (30) days after delivery of LICENSOR's invoice to LICENSEE.
10. TAXES. LICENSOR will actively cooperate with LICENSEE to reduce Tax obligations; however, all Taxes are the responsibility of LICENSEE. LICENSEE agrees to indemnify and hold LICENSOR harmless from any Taxes including, but not limited to, sales tax, customs and excise taxes, use tax, withholding, value-added or similar tax, and property taxes that may be assessed or levied by any jurisdiction arising out of the performance of this Agreement, but excluding any taxes based upon or determined by reference to LICENSOR's income or level of business activity ("Taxes"). It is understood and agreed that the prices and estimates set forth in this Agreement do not include provision for Taxes.
11. CONFIDENTIALITY.
11.1. Description of Confidential Information. The term "Confidential Information" shall mean any information 3 disclosed by one party to the other party pursuant to this Agreement which is in written, electronic, graphic, machine readable or other tangible form and is marked "Confidential," "Proprietary" or in some other manner to indicate its confidential nature, or that by law, regulation, or contract either party is required or becomes required to treat as confidential. Additionally, Confidential Information shall mean (i) LICENSOR's unique application of technology, and proprietary software programs; (ii) information concerning the business or financial affairs and methods of operation or proposed methods of operation of LICENSOR, its affiliates or any vendor of LICENSOR; (iii) internal controls and security procedures of LICENSOR; (iv) source code; and (v) the Documentation. Confidential Information may also include oral information disclosed by one party to the other pursuant to this Agreement, provided that such information is designated as confidential at the time of disclosure. In addition, all technical and confidential information exchanged prior to the Effective Date, including all materials, if any, disclosed under a Non- disclosure Agreement between the parties, shall be treated as "Confidential Information" and shall be subject to the terms of this Section 11 ("Confidentiality") after the Effective Date.
11.2. Use of Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of the other party's Confidential Information and shall not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, subject to imposition of written confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, with respect to protection of the Confidential Information, each of the parties shall use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care. Each party shall ensure that its employees and independent contractors who will have access to the Confidential Information are aware of and will comply with the provisions of this Section 11.2 ("Use of Confidential Information"). Each party shall be responsible to the other party for the acts of its employees, subcontractors, and third party consultants in conjunction with the provisions set forth herein.
11.3. Exception. Notwithstanding the foregoing, the obligations of confidentiality described above will not apply with regard to any Confidential Information of the other which the receiving party can document: (i) was generally known and available in the public domain at the time it was disclosed or becomes generally known and available in the public domain through no fault of the receiver; (ii) was rightfully known to the recipient at the time of disclosure as shown by the files of the recipient in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the other party; (iv) was independently developed by the recipient without any use of the Confidential Information by employees or other agents of the recipient who have not been exposed to the Confidential Information provided that the recipient can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; (v) becomes known to the recipient from a source other than the discloser without breach of this Agreement by the recipient and otherwise not in violation of the discIoser's rights; or (vi) is disclosed pursuant to the order of any court of competent jurisdiction, or any order of any government agency; provided, that the recipient shall, to the extent reasonably practical, provide prompt, advanced notice thereof to enable the discloser to seek a protective order or otherwise prevent such disclosure.
11.4. Terms of the Agreement. LICENSOR acknowledges that LICENSEE is a public entity subject to the California Public Records Act ("CPRA"). To the extent permitted by law, LICENSEE agrees to take all reasonable steps to protect Confidential Information it possesses from disclosure based on a CPRA request. LICENSEE also agrees to notify LICENSOR within five (5) days following receipt of a CPRA request seeking Confidential Information to allow adequate time for LICENSOR, at its sole cost and expense, to seek a protective order or other appropriate remedy concerning such request. If subject to a CPRA request for Confidential Information, LICENSEE shall disclose only such information as legally required and shall use all economically reasonable means to assert an exemption based on the protected status of Confidential Information. LICENSEE is not required to incur legal costs to seek judicial relief from disclosure, but will cooperate with efforts of LICENSOR in seeking judicial relief. LICENSOR acknowledges that LICENSOR's Proposal and this Agreement and related documents shall be retained in the City's official files and will become public records after award of the Agreement unless they can, in whole or in part, be shown to be exempt by law.
12. PROPRIETARY RIGHTS
12.1. Proprietary Rights, Ownership and Title. LICENSEE and Authorized Users are licensed pursuant to Section 3 ("Grant of License") to use the Software; however, no ownership rights in the Software are 4 transferred to LICENSEE or the Authorized Users. LICENSEE acknowledges and agrees that all right, title and interest in the Software, including any modifications, enhancements or derivative works created therefrom or thereto by any party and any copy thereof, without limitation, and all patent, copyright, trade secret, trademark and all other intellectual property rights embodied in the Software, shall be and remain in LICENSOR and/or its applicable suppliers. LICENSEE shall not at any time during or after expiration of or termination of this Agreement in any way challenge, question, or dispute the title and ownership by LICENSOR and/or its suppliers of any such intellectual property rights. LICENSEE shall not remove any trademark, copyright or other proprietary notices on or in any portion of any Software as delivered hereunder, and LICENSEE agrees to reproduce such notices on any copies of any such reproducible materials made by LICENSEE.
12.2. Injunctive Relief. Each party acknowledges that the restrictions contained in Section 11 ("Confidentiality") and Section 12 ("Proprietary Rights") are reasonable and necessary to protect the other party's interests and that any violation of these restrictions may cause irreparable damage to the other party within a short period of time. Each party agrees that the other party will be entitled to injunctive relief against each such violation.
13. WARRANTIES AND SUPPORT.
13.1. Limited Warranty. LICENSOR warrants that the Software at each Permitted Site(s) as delivered and installed by LICENSEE under this Agreement and accepted by LICENSEE and operated within the capacity restrictions as provided for in the applicable Documentation as of the date of acceptance by LICENSEE under the terms of Section 8 ("Acceptance"), will substantially conform to the Documentation for a period of thirty (30) days from the date of acceptance by LICENSEE ("Limited Warranty"). This Limited Warranty only covers problems of which LICENSOR has or is given notice during the warranty period set forth in this section. Following the limited warranty period, support for Software will be provided as per Appendix B Maintenance and Support Agreement.
13.2. Remedies. LICENSEE agrees to notify LICENSOR in writing of any material non-conformity of the Software with the warranty described in Section 13 ("Warranties and Support"), and to provide LICENSOR with (a) LICENSEE's estimation of the severity of such non-conformity and (b) such printouts, typescripts, documentation and other details of such non-conformity as LICENSOR shall reasonably request. LICENSOR's sole obligation, and the Company's sole and exclusive remedy under the warranty granted by LICENSOR in Section 13.1 ("Limited Warranty") is for LICENSOR to use reasonable commercial measures to remedy or provide a work-around for such non-conformities which causes the Software not to perform as described in Section 13 ("Warranties and Support"), taking into account the severity of the non-conformity in accordance with the terms of the then-current Maintenance and Support Agreement. In the event that LICENSOR demonstrates that the cause of the non-conformity is external to the Software, LICENSEE shall reimburse LICENSOR for the LICENSOR support services at LICENSOR's then-current rates for such services.
13.3. Warranty of Title. LICENSOR warrants that it is the exclusive owner or licensor of all right, title and interest in the proprietary rights applicable to the Software.
13.4. Service Warranty. LICENSOR warrants that LICENSOR's services will be of a professional quality conforming to generally accepted industry standards and practices.
13.5. Exceptions. LICENSOR's Limited Warranty shall not extend to problems affecting the Software that result from: (i) third party software; (ii) electrical work or problems external to the Software; (iii) any alterations of the Software other than those performed or authorized in writing by LICENSOR under this Agreement; (iv) accident, negligence, or misuse of the Software; (v) operation outside of the Documentation.
13.6. Limitations. Except as otherwise specifically provided by this Agreement, LICENSOR's sole liability under the warranty in Section 13.1, shall be limited to the remedies described in Section 132 ("Remedies") regardless of whether liability is based on contract or other theory. LICENSOR shall defend and indemnify LICENSEE, pursuant to Section 14, from any claims alleging a breach of LICENSOR's Warranty of Title in Section 13.3. LICENSOR's breach of its Service Warranty in Section 13.4 shall constitute a material breach sufficient to terminate this Agreement under Section
16.2 herein.
13.7. Disclaimer. THE WARRANTIES IN THIS SECTION 13 ("WARRANTIES AND SUPPORT") ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY LICENSOR.
LICENSEE RECEIVES, NO ADDITIONAL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, 5 OR STATUTORY, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE (EXCLUDING THIRD PARTY SOFTWARE INCORPORATED THEREIN) WILL MEET ALL OF
LICENSEE'S REQUIREMENTS OR THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ARE ERROR OR BUG FREE. LICENSEE ACKNOWLEDGES THAT
NEITHER LICENSOR NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSER OF DATA
OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE
PERMITTED SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATION FACILITIES. LICENSOR IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
13.8. Support. LICENSOR will provide support services for Software as described in Appendix B ("Maintenance and Support Agreement") and for the applicable Support Services Fees as set forth on the applicable Software Appendix.
14. INDEMNIFICATION.
14.1. By LICENSOR. LICENSOR agrees, at LICENSOR's own expense as applicable, to indemnify, defend and hold LICENSEE harmless, or at LICENSOR's option to settle, any claim, demand, cause of action, debt, or liability, including reasonable attorneys' fees, arising from any claim that the Software nfringes any United States copyright, patent, trademark, trade name, trade secret, propriety or any other intellectual property right of any nature whatsoever of any third party, provided that LICENSEE provides LICENSOR with: (i) prompt written notice of such claim as it comes to LICENSEE' s attention; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. LICENSEE shall, at its option, have the right, but not the obligation, to fully participate in such defense at its own expense. It within a reasonable time after notice of a claim and request for defense, LICENSOR fails or refuses to provide for such defense, LICENSEE shall have the right, but not the obligation, to undertake its own defense, and to conclusively compromise or settle the claim or other matter, and may thereafter exercise its right to recover all costs, including payment of the claim and defense costs and legal fees, from LICENSOR. If LICENSOR assumes the defense, it shall not thereafter be liable to the LICENSEE for any costs of litigation including, but not limited to, court costs and attorney fees, incurred subsequent to such decision to assume the defense of any such action.
If an injunction is entered, or LICENSOR believes in its sole discretion an injunction is likely to be entered, prohibiting LICENSEE from exercising its right to use the Software as granted hereunder, LICENSOR may, at its sole option and expense: (i) procure for LICENSEE the right to use the Software as provided herein; (ii) replace the Software or a portion thereof with other non-infringing functionally equivalent products; or (iii) modify the Software so that it is non-infringing. If such settlement or such modification is not reasonably practical in the sole opinion of LICENSOR after giving due consideration to all factors, including financial expense, and in the alternative, LICENSEE, in LICENSEE's sole discretion, is not willing to bear the financial expense directly, LICENSOR may cancel this Agreement and the licenses granted hereunder upon fifteen (15) days' written notice to LICENSEE. In such case, LICENSOR shalt refund to LICENSEE the License Fees for the applicable month in which such termination occurs. Also upon such cancellation, LICENSEE' s data, documents, and attachments will be delivered to LICENSEE by LICENSOR. The data shall be provided in a SQL Server database backup format and the documents and attachments will be provided in their native format (i.e. pdt jpg, etc.)
14.2. Exceptions. Notwithstanding the provisions of this Section 14 ("Indemnification"), LICENSOR assumes no liability for infringement claims arising from: (i) combination of the Software with other products not originally embodied in the Software as delivered by LICENSOR if such infringement would have been avoided by not combining with such products; and (ii) any modifications to the Software (unless such modifications were made by LICENSOR) to the extent the infringement is caused by such modifications.
LICENSOR's indemnification obligation under this Section 14 ("Indemnification") will be further limited to the extent to which a court of final jurisdiction finds that the LICENSEE contributed to the infringement
14.3. Limitation. The foregoing provisions of this Section 14 ("Indemnification") state the entire liability and obligations of LICENSOR and the sole and exclusive remedy of LICENSEE, with respect to any actual or alleged infringement of any intellectual property rights by the Software.
14.4. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR OR LICENSEE BE LIABLE FOR
LOST PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF GOODS AND SERVICES, LOSS 6 OF USE OF THE SOFTWARE, OR FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL,
INDIRECT, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF
LIABILITY AND WHETHER OR NOT LICENSOR OR LICENSEE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY CAUSE OF ACTION AND IN ANY
WAY OUT OF THIS AGREEMENT OR THE SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDIES HEREUNDER. IN NO EVENT SHALL THE TOTAL
LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY EXCEED THE LICENSE FEE(S) FOR THE SOFTWARE PAID BY LICENSEE.
14.5. Insurance.
14.5.1. Without in any way limiting LICENSOR's liability pursuant to Section 14 ("Indemnification"), LICENSOR must maintain in force, during the full term of the Agreement, insurance in the following amounts and coverages:
14.5.1.1. Workers' Compensation, in statutory amounts, with Employers' Liability limits not less than $1,000,000 each accident; and
14.5.1.2. Commercial General Liability Insurance with limits not less than $1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations; and
14.5.1.3. Commercial Automobile Liability Insurance with limits not less than $1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage for Non-Owned and Hired auto coverage, as applicable.
14.5.1.4. Programmers' and Systems Errors and Omissions Insurance with limits not less than $1,000,000 per occurrence.
14.5.2. Commercial General Liability policy must provide the following:
14.5.2.1. Name as Additional Insured LICENSEE, its Officers, Agents, and Employees.
14.5.2.2. That such policy is primary insurance to any other insurance available to the Additional Insureds, with respect to any claims arising out of this Agreement, and that insurance applies separately to each insured against whom claim is made or suit is brought.
IS. NON-SOLICITATION. During the term of this Agreement and for a period of twelve (12) months thereafter, LICENSEE agrees not to (i) hire anyone who is employed by LICENSOR or was employed by LICENSOR at any time during the preceding twelve (12) months and who LICENSEE had contact with in connection with this Agreement or (ii) solicit or cause others to solicit any employee to terminate their employment with LICENSOR.
16. TERM AND TERMINATION.
161 Term. The term of this Agreement shall continue in full force and effect until the expiration of the later of the last Appendix A or any of its addendums or as terminated under this Section 16 ("Term and Termination"). Both Parties recognize that the continuation of this Agreement after the close of any fiscal year of LICENSEE, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget. LICENSEE does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to LICENSEE in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on items delivered, Services provided, monies paid and monies due.
16.2. Termination by Either Party for Material Breach. Either party may terminate this Agreement, Appendix A or any of its Addendurns upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of the written notice specifying the breach in detail, or within a mutually agreeable time frame agreed to in writing.
16.3. Early Termination of License by LICENSEE. In the event LICENSEE terminates this Agreement, other than for LICENSOR'S material breach, this Early Termination provision shall apply. LICENSEE may terminate this Agreement for convenience upon ninety (90) days written notice to LICENSOR. LICENSEE shall immediately pay 100% of the Software License Fees, together with any undisputed amounts due LICENSOR for any Professional Services rendered by LICENSOR to LICENSEE under Appendix A and any associated 7 addendurns as applicable, as of the effective date of such termination.
16.4. Effect of Termination and Return of Property. Upon termination of this Agreement or a Software Appendix, the license granted in Section 3 ("Grant of License") shall be deemed canceled and LICENSEE shall discontinue all use of the applicable Software and either return same to LICENSOR or, with LICENSOR's consent, destroy same and provide LICENSOR with appropriate certification thereof. Also upon termination, LICENSEE's data, documents, and attachments will be delivered to LICENSEE by LICENSOR. The data shall be provided in a SQL Server database backup format and the documents and attachments will be provided in their native format (i.e. pdt jpg, etc.)
16.5. Survival. The provisions of Section 9.2 ("Payment"), Sections 11 ("Confidentiality"), 12 (Proprietary Rights"), 13.7 ("Disclaimer"), 14 ("Indemnification"), 14.4 ("Limitation of Liability"), 15 ("Non- Solicitation"), 16 ("Term and Termination), and 18 ("General") shall survive any termination or expiration of this Agreement.
17. MARKETING
17.1. LICENSEE agrees to allow LICENSOR to prepare and distribute a press release within 60 days of the effective date of the Agreement announcing the commitment LICENSEE has made to licensed software.
LICENSEE will have the opportunity to review in good faith the release for accuracy and clarity. All content in the release and the timing of the release will be jointly agreed upon.
18. GENERAL.
18.1. Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, (i) the remaining terms and provisions of this Agreement shall be unimpaired and (ii) the invalid term or provision shall be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision.
18.2. Notice. Unless otherwise agreed to by the parties, all notices required under this Agreement shall be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail or (iv) facsimile (confirmed as received) as follows:
For LICENSEE:
City of Anaheim 200 S. Anaheim
Boulevard, 2nd Floor Anaheim, CA
92805
Attention: City Clerk
and to:
City of Anaheim
201 S. Anaheim Boulevard, Suite 503
Anaheim, CA 92805
Attn: David Nurdey, Risk Manager
For LICENSOR:
Systema Software LLC
900 Larkspur Landing Circle, Suite 201,
Larkspur, CA 94939
Attention: Mr. Jose Tribuzio
President & CEO
8 18.3. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns provided, however, neither party shall assign this Agreement or any other duty, obligation, interest or right hereunder without the prior written consent of the other party, except in the case of a merger, acquisition or, in the case of LICENSOR only, a sale of the relevant assets of LICENSOR. Each party is required to provide the other prior written notice of any merger, acquisition, or in the case of LICENSOR only, sale of the relevant assets of LICENSOR.
18.4. Force Majeure. Neither party shall be liable to the other for any failure to comply with the terms of the Agreement or for any delay in the performance hereof or for failure to perform under the terms and provisions of this Agreement where such failure or delay results from any cause beyond the control of such party.
I 8.5.No Waiver. No amendment, modification, termination or waiver of any provision of this Agreement, nor consent to any departure by either party therefrom, shall in any event be effective unless the same shall be in writing and signed by the other party, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
18.6. Independent Contractor Status. This Agreement shall not be construed as creating an employee/employer, agency, partnership, or joint venture relationship between LICENSOR (or any of its agents or employees) and LICENSEE. Each party shall have the obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed under this Agreement and shall be liable for the acts or omissions of their employees and agents in performing their respective obligations hereunder.
18.7. Headings. The headings and captions of this Agreement are included merely for convenience of reference.
They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions.
18.8. Governing Law. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Venue for all litigation relative to the formation, interpretation and performance of this Agreement shall be in California. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
18.9. Attorneys' Fees. The prevailing party in any action taken to enforce the terms or conditions of this Agreement will be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees, incurred therein.
18.10. Entire Agreement. This Agreement, together with the appendices hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes in all respects all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof, and no subsequent alterations, amendments, changes or additions hereto shall be binding and valid unless reduced to writing and signed by each party. 9 LICENSOR:
Systema Saw e LL
By:
Print Name: Jose Tribuzio
Date:
ATTEST-
By:
City Clerk o Anaheim
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers, have executed this Agreement.
Title: President & CEO
APPROVED AS 0 FORM:
KRISTIN A ETIER, ACTING CITY ATTORNEY
B •
Attorney
Dated: zz1 6
LICENSEE:
City of
By: gale
Print Name: Hon. Tom Tait
Title: Mayor
Date:
10 Included Add-On Modules and Connectors
Modules
CMS Direct
Document Image Management Module
SIMS Portal Module
SIMS Insight with PowerBI (Dimensional data mining and analysis) Connectors
ISO Claim Search Connector
Medical Bill Review Connector —Stratacare
Pharmacy (PBM) Connector - Express Scripts
Accounts Payable (AP) Connector — CGI Advantage
Employee (HR) Connector - CGI Advantage
Flash Form SSL + Disability Rates (workerscompensation.com ) Appendix A
SCOPE OF WORK AND PRICING DETAIL
This Appendix describes the Software to be licensed and Professional Services provided by LICENSOR. All the terms used in this Appendix shall retain the same meaning as defined in the Agreement and such definitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Appendix, the provisions of this Appendix shall prevail. The terms and conditions of this Appendix are applicable solely to the Software described herein and in no way affect or alter the terms of any other Appendix incorporated into the Agreement prior to or after the effective date of this Appendix.
MS Pricing Details
S-Year Term License and Cloud Hosting Fee $64,284/year SIMS Claims Base Software Component License
Includes a license for the following Line of Business Modules:
• Workers' Compensation, Liability
User Licenses
• 10 Concurrent Full Access Users
• Includes Unlimited Read/View Only Users and Unlimited Reporting Users • Additional Users May Be Added For $3,000/User/Year
'Includes one Power BI user license. Additional Power BI users to be purchased by the City directly from Microsoft or from Systema at $20/user/month.
Modifications to Modules/Connectors, if required, will be billed on a time and expense basis. Project Management/Business Analysis (IM/BA) and Annual Maintenance Fees are associated with the implementation of each of these items and will increase/decrease if any of these modules are selected/deselected. If you would like to implement any items other than what has already been selected, we recommend requesting an updated proposal. Pricing does not include fees from third party vendors.
11 For California, SIMS provides EDI FROI/SROI functionality as a built in component of SIMS. FROI transactions are created automatically by SIMS Claims. SROI transactions are entered by the claims examiner into SIMS at the claim file level. FROI and SROI transactions are then extracted and sent directly to the State authority. No module, connector or transaction fees apply. This approach has been included in this proposal for WCIS reporting. An optional about leveraging our EDI partner Ebix is outlined below.
EBIX FROI/SROI Transaction Fees (OPTIONAL APPROACH TO EDI) Based on Table Below Systema and Ebix have partnered to offer an automated solution to submitting FROI and SROI transactions to the states. Data will be exported from SIMS into Ebix's product, Workers Compensation Incident Reporting Service ("WCIRS"). As claim data is imported into WCIRS, the process will validate that the State mandatory data is present and the claim is being sent in the correct sequence (i.e., 00 sent first, and so on). If a mandatory data element is missing or the claim is out of sequence, the claim will be written to an error report. Error reports will be transmitted to the State based upon a method agreed upon during the implementation process. If the data meets the jurisdiction data reporting requirements, then the claim will be processed according to the jurisdictional mandate. For the jurisdictions where Ebix's claims data automation has not been configured, Ebix will transmit data to state and federal jurisdictions as provided by Subscriber or Contractor.
For each FROI or SRO' transaction submitted to the state, a Transaction Fee will be incurred.
Transaction Fees will be invoiced on a monthly basis. As more transactions are submitted, the monthly fee per transaction is reduced at specific intervals. The current fee structure and tiered intervals are detailed below, and are subject to revision after the one-year anniversary of this Appendix:
WC EDI Fee per FROI/SROI
Transactions / filing with the
1 1 month jurisdiction
1-100 $2.730
101-250 $2.275
251-500 $1.820
501-1,000 $1.365
1,001-5,000 $0.910
5,001-10,000 $0.819
10,001-20,000 $0.728
For Example:
• In one month, there are 200 FROI/SROI transactions. The City will be billed $500.50 for that month based on the following calculation: 200 transactions x $2.275. • The next month, there are 300 FROI/SROI transactions. The City will be billed $546.00 for that month based on the following calculation: 300 transactions x $1.82.
EBIX EDI fees are not included in the annual term license fee and will be billed monthly as incurred based on transactional volume.
12 Annual Maintenance and Support
Annual Maintenance and Support includes contacts to our support center during regular business hours, product updates, and services included to implement product updates.
Standard and custom connectors/interfaces created for the City will continue to work with SIMS Claims updates. However, if the destination system (3' party vendor SIMS Claims is connected to) changes their system causing the connector/interface to no longer work, thus requiring Systema to modify the connector/interface, these modifications can be done on a T&E basis at a rate of 5165/hour.
Limplementation Services
$156,750
Project Management/Business Analyst Services
It is estimated that based on the current known scope of work that the project will require 950 hours of Implementation Services. Pricing provided in this section are estimates only. implementation Services are performed on a time and expense basis at a rate of $165/hour. The PM/BA amount is based on implementing the known scope of work, including configuration services for the licensed software modules. Per our response in Section 9. Project Management, Staffing, Organization to Question 8, it is dependent upon the City to provide the resources listed.
SIMS includes a set of standard reports as well as training for SQL Server Reporting Services with the assumption that the City will develop and/or modify existing report templates to meet their needs. As noted in the City's Addendum 1, "the City plans on utilizing standard reports offered in the chosen solution's report library where appropriate. The City anticipates some additional custom reports will be required, and a detailed list will be provided to the chosen vendor later in the REP process," If chosen, Systema agrees to work with the City to compare our standard report templates to the City's requirements to identify standard reports that meet the City's needs. If it is determined that custom reports are needed, the City can leverage the reporting tools provided to create or modify existing templates to meet these specific reporting needs or Systema can create custom reports on a time and expense basis at a rate of $165/hour.
Data Conversion
The data conversion estimate is based on the following assumptions:
• Conversion of 1 consolidated database from American Technical Services (ATS) and 1 consolidated database from GenSource.
• Includes 1 Trial Data Conversion and 1 Final Data Conversion for one Go-live event • The method in which the City extracts their data must be repeatable so there is consistency in the deliverables of the Trial and Final Conversions • The City has staff available that understands their old system data layouts • Financial balancing information is provided by the City. Reports should include: claim counts, claim level detail, monthly and yearly financial reports, total incurred, outstanding reserves, recovery amounts, etc.
• The City validates trial data and final data in a timely fashion • Estimate excludes conversion of log files, pending automatic/scheduled payments, and FROI/SROI history
• The data conversion includes a maximum of 25 custom fields converted (i.e. client defined fields).
• Systema will work closely with the City and leverage our years of experience performing 13 prior data conversions. The City will ultimately be responsible for providing its historical data to Systema. This would include extracting the raw data from the GenSource system in a fixed length file format and providing a SQL Server database backup of the ATS system. Systema will work very closely with the City to apply our resources and experience and will thoroughly review and cleanse the data in partnership with the City. As part of this data review and cleansing process, there will likely be choices that need to be made regarding the data reconciliation process and those decisions will need to be made by the City.
SIMS Training
5 days of training will be performed on-site at the City's computer training facilities unless arranged otherwise. Training classes assume a maximum of 10 attendees per class and include General User Training, System Administrator Training, and SQL Server SSRS Reporter Training.
Other
Travel Expenses
$10,000-$13,000
The City will reimburse Systema for any reasonable travel and travel related expenses made in accordance with the City's Travel policy and incurred by Systema in connection with providing services in this Statement of Work/Contract. All such incurred expenses will be included in the monthly invoices submitted to the City. This estimate assumes a maximum 15-20 days onsite at the City in 3-4 trips.
All pricing is exclusive of travel and incidental expenses and will be reimbursed as incurred. 14 Payment Terms
Payment Schedule for Professional Services
LICENSEE agrees to pay LICENSOR all Professional Service Fees monthly as incurred on a time and expenses basis. These services include (but are not limited to): Custom Development, Project Management, Business Analysis, Training, and Data Conversion Services.
Payment Schedule for Term License Fees
The Term License Fee includes Term License, Cloud Hosting and Maintenance Fees. LICENSEE agrees to pay LICENSOR the Annual Term License Fee to use the Software for a Term of 5 years.
Annual Term License Fee $ 64,284/yea r
Initial payment is due upon contract execution
Licensee shall have the option to renew this agreement for 2 additional one-year terms. Upon the first renewal, the Annual Term License Fee shall increase by 5% over the preceding term. At the end of this cumulative seven (7)-year period, LICENSEE and LICENSOR will either mutually agree to extend the Term of the license, agreeing to a new Term License Fee amount, or terminate the Agreement.
LICENSOR reserves the right to modify its Professional Service Fees post initiation of production use during the term of the Agreement or any renewal thereof.
It is understood by and agreed between the Parties to this Agreement that full and complete payment by LICENSEE for all services pursuant to this Agreement, including all fees, expenses, and fees billed on time and expense basis, as well as all amounts paid under the Maintenance Agreement attached hereto as Exhibit B, shall not exceed Six Hundred Seventy Five Thousand Dollars and no/100 ($675,000.00).
15 l et 2.2 S • 1
1 L FRIST AMENDMENT TO AGREEMENT ORIGIN
2 3
4 5
THIS FIRST AMENDMENT TO AGREEMENT, dated for purposes of identification only this 4."rday of (:)c-"ra G. 1.. It , 2017, is made and entered into by and between the
CITY OF ANAHEIM, a municipal corporation, hereinafter
referred to as "ANAHEIM"
6 7
A
N
D
8 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
INSURITY CLAIMS SOFTWARE LLC, a California limited
liability company, formerly known as SYSTEMA SOFTWARE,
LLC, a California limited liability company, hereinafter referred to as "LICENSOR."
11 WITNES SETH:
WHEREAS, the parties have previously entered into a Master Software License and Professional Services Agreement dated August 30, 2016 for purchase and implementation of SIMS Claims Risk Management Information System (RMIS) (hereinafter referred to as "Agreement"); and
WHEREAS, the parties desire to amend the Agreement to reflect LICENSOR' s new name.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. LICENSOR has undergone a change that resulted in changing its name Systema Software, LLC, a California limited liability company to Insurity Claims Software LLC, a California limited liability company. The Agreement is hereby amended to reflect LICENSOR' s new name.
2. Except as expressly amended hereby, all the remaining provisions of the Agreement shall remain in full force and effect.
3. LICENSOR and LICENSOR'S signators represent that the signators hold the positions set forth below their signatures and are authorized to execute this First Amendment 9 10
1 2
3 to Agreement on behalf of LICENSOR and to bind LICENSOR hereto.
4. This First Amendment to Agreement shall be effective on the date on which this First Amendment to Agreement is executed by ANAHEIM. 4 5 [Signatures appear on the followitig page]
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 2
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Agreement to be executed on the dates hereinafter respectively set forth. 1 2
3 DATE OF EXECUTION: City of Anaheim,
a municipal corporation
4 5
DATED: !Dial 6
7 ,2017
By:
"•NAHEIM"
DATE OF EXECUTION: ATTEST:
t (I .0 DATED: , 2017
Theresa Bass, Acting City Clerk
"ANAHEIM"
8 9
10 11
12 13
14 INSURITY CLAIMS SOFTWARE LLC, a
California limited liability company, formerly
known as T. SOFTWARE, LLC, a
Califomi. Inn .110 • lity company
By:
warif Name:
Title: - _
15 16
17 18
19 I CENSOR"
APPROVED AS TO FORM:
KRIS I A. PELLETIER, AlG CITY ATTORNEY
20 21
22 23
24 25
26 27
28 By:
Dated:
124864
4-11or ey
DV ut City Attorney
óR-IO22 '-
D ORIGINAL
2023-01 AMENDMENT
This 2023-01 Amendment, effective the date last signed below ("Effective Date"), by and between Insurity LLC, successor in interest to Systema Software LLC, ("Insurity") and City of Anaheim ("Customer," and together with Insurity, the "Parties") (this "Amendment") amends that certain Master Software and Professional Services Agreement dated August 30, 2016 by and between Insurity and Customer (the "Agreement"). The Parties agree as follows:
1. Commencing on the Effective Date, Appendix A is hereby amended by deleting the following:
"5-Year Term License and Cloud Hosting Fee $64,284/year" and replacing with:
"1-Year Term License (Sept. 1, 2023 — Aug. 31, 2024)
$74,717/year"
2. Commencing on the Effective Date, Appendix A is hereby amended by deleting "Payment Terms" and the corresponding paragraphs thereunder and replacing with:
"Licensee shall pay $74,717.00, due in full, Net 30, upon receipt of invoice."
3. Commencing on the Effective Date, Appendix C is hereby deleted in its entirety and replaced with a new Appendix C as follows:
"Service Level Agreement. Insurity will provide technical support and service levels for the Software as described at https://ciocs.insurity ronVcategoryipioductanciserviceciocurnentation, as updated by Insurity from time to time."
4. The terms and conditions contained in this Amendment are valid until December 13, 2023. In the event this Amendment is not accepted or executed within such period, it shall be deemed to be null and void and of no further effect.
Except as provided in this Amendment, all other terms and conditions of the Agreement shall remain in full force and effect. In the event there are any conflicts among the terms of this Amendment and the Agreement, this Amendment shall control. Any capitalized term used but not so defined in this Amendment shall have the meanings assigned to such terms in the Agreement. This Amendment may be executed in one or more counterparts, by facsimile or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. <signature page follows>
1 APPROVED A TO FO
ANAHEI
In witness of the foregoing, each Party has duly executed and delivered this Amendment to Agreement as of the day and year first above written.
INSURITY LL CITY OF ANAHEIM
Printed Name
600 Ira,/ (DAP S
Title
Date
- olv, 111?1-)2 y
utvIcix -Pv\c4.6Li Printed Name
fi eStucC-02- Title
Date
Signature
/VOA. 1 ()jps,
T eras Bass, City Clerk 5 )t5 Jfr
2