ATTACHMENT A
Master Services and Hosting
Agreement
Master Services and Hosting Agreement
This Master Services and Hosting Agreement (this “ Agreement”) by and between Selectron Technologies, Inc., an Oregon corporation having a principal place of business at 12323 SW 66th Avenue, Portland, OR 97223, and its successors and assigns (“Selectron”), and City of Victorville, California (“Licensee”).
Recitals
Whereas, as between Selectron and Licensee, Selectron is the owner of all rights, titles, and interest in and to certain software and materials, identified more particularly in this Agreement as the “Licensed Software”; and Whereas, Selectron wishes to gr ant to Licensee, and Licensee desires to obtain from Selectron, certain rights to access and use, and to permit authorized Licensee employees to access and use the Licensed Software through Selectron’s application hosting service, as more particularly described below and in accordance with the terms and conditions of this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties and obligations of the parties:
Agreement
1. Definitions
For purposes of this Agreement, the following terms shall have the following meanings. Any capitalized terms used in this Agreement that are not defined in this Section 1 shall have the meaning given to them elsewhere in this
Agreement.
1.1 “Aggregate Data ” means information,
data, and statistics about a group of individuals,
organizations, or transactions that cannot be used to
identify Licensee or a particular indiv idual, including Licensee Data that has been de-identified and anonymized and combined with data about other individuals and
transactions.
1.2 “Authorized User” means an Employee
that Licensee provides with access to the Licensed
Software.
1.3 “Customer Tools ” mea ns the Licensed
Software components and interfaces that, as described in the Documentation, are designed and intended to be
accessed by customers of Licensee through an application that is set up and maintained as part of the Services and/or Licensee’s website.
1.4 “Derivative Work” shall mean a new or
modified work that is based on or derived from a
preexisting work, including, without limitation, a work that in the absence of a license, would infringe the Intellectual Property Rights associated with such preexisting work.
1.5 “Documentation” shall mean the
standard documentation for the Licensed Software, as
generally provided by Selectron to its other customers.
1.6 “Employee” shall mean a then -current
employee of Licensee.
1.7 “Intellectual Property Rights ” shall
mean all rights associated with (a) patents, designs,
algorithms, and other industrial property rights; (b) works of authorship, including copyrights, “moral rights”, and derivative works thereof; (c) the protection of trade and industrial secrets and confid ential information;
(d) Trademarks (as defined herein); (e) all other
intellectual and industrial property rights (of every kind and nature throughout the world and however
designated), whether arising by operation of law, contract, license, or otherwise; and (f) all registrations, initial applications, divisions, continuations, renewals,
extensions, divisions, and re -issuances of any of the
foregoing, now existing or acquired in the future.
1.8 “Licensed Software ” shall mean,
collectively, (a) the software pro grams that are listed in Exhibit A and further described in Exhibit C ; (b) the Documentation; and (c) any Updates.
1.9 “Licensee Data ” means structured data
about and identifiable to customers of Licensee, including without limitation data about transactions b etween such customers and Licensee, (a) that Licensee provides to
Selectron to enable Selectron to provide the Licensed
Software and the Services, (b) that Selectron collects from Licensee’s customers to facilitate payments by those
customers to Licensee, or (c) that Selectron otherwise
collects or creates, including by automated means, in the course of performing the Services or providing the
Licensed Software to Licensee.
1.10 “PCI Data ” means Cardholder Data
(including, without limitation, Primary Account Num ber, cardholder name, expiration date, and Service Code) and Sensitive Authentication Data (including without limitation full magnetic stripe data or the equivalent on a chip,
CAV2/CVC2/CW2/CID, PINs/PIN block), as such terms are
defined by the PCI Security Standards Council.
1.11 “Security Incident ” means a breach of
security resulting in an unauthorized third party gaining access to Licensee Data if (a) such breach creates a
substantial risk of harm to Licensee or any individual(s) and (b) the Licensee Data was accessed in unencrypted, usable, or readable form or it is reasonably likely that the
unauthorized third party has acquired or will acquire the decryption key or other means of converting the Licensee Data to readable or usable form.
1.12 “Services” means the outbound call
management, customization, training, set -up,
configuration, or other services listed in Exhibit A and further described in Exhibit C hereto, the Technical
Support Services, and any other services Selectron
provides to Licensee as described herein.
1.13 “Technical Support Services” means the
maintenance and technical support services described in Exhibit B hereto.
1.14 “Term” shall have the meaning set forth
in Section 11.1.
1.15 “Trademarks” shall mean (a) the
trademarks, trade names, and service marks used by a
party, whether registered or unregistered; (b) the
respective stylistic marks and distinctive logotypes for such trademarks, trade names, a nd service marks; (c) such
other marks and logotypes as either party may designate from time to time in writing; and (d) the goodwill
connected with the use of and symbolized by any of the
foregoing.
1.16 “Updates” shall mean any modifications,
error corrections, bug fixes, new releases, or other updates of or to Licensed Software, including the Documentation, that may be provided or otherwise made available
hereunder by Selectron to Licensee during the Term.
1.17 “Work Product” means any and all work
product, delive rables, materials, drawings, works of
authorship, creative works, designs, inventions,
documentation, methods, processes, techniques,
software, reports, or data created or developed by
Selectron in the course of performing the Services or
providing the Licensed Software, excluding Licensee Data.
2. Grant of License; Restrictions
2.1 Grant of License to Use Licensed
Software. Subject to the terms and conditions of this
Agreement, including the End User License Agreement
(“EULA”) attached hereto as Exhibit D which is
incorporated into and made a part hereof, and the timely payment of all fees hereunder, Selectron hereby grants to Licensee a non -exclusive, nontransferable,
nonsublicensable, limited license, during the Term, to
access and use the Licensed Software solely in accordance with the Documentation and the EULA and solely for
Licensee’s own internal business use. Except as set forth in this Section 2.1 or the EULA, no other right or license of any kind is granted by Selectron to Licensee hereunder
with respect to the Licensed Software.
2.2 Software Restrictions. Licensee hereby
acknowledges and agrees that it shall not use the Licensed Software for any purpose other than the purpose for which Selectron has developed the Licensed Software, and that it shall use the Licensed Software in accordance with the
EULA and all applicable laws, rules, and regulations. In the event of any violation of this Section 2.2 or the terms of the EULA by Licensee or any person Licensee provides with access to the Licensed Software (whether or not such
person is an Authori zed User), Selectron may terminate this Agreement in accordance with Section 11.2, and shall be entitled to equitable relief in accordance with
Section 12.5.
2.3 Data Restrictions . Selectron hereby
acknowledges that the Licensee Data may contain
sensitive, pe rsonally-identifiable information. Selectron will not disclose Licensee Data to any third-party except as required to perform its obligations under this Agreement (e.g., transmittal of PCI Data to Licensee’s designated payment gateway) and will maintain a nd use the Licensee Data only for purposes of performing its obligations under
this Agreement. Except as otherwise expressly provided herein, Selectron will promptly delete any Licensee Data that Licensee requests in writing to be deleted (except for data retention required by law).
2.4 Rights in Aggregate Data.
Notwithstanding Section 2.3, Selectron may, (a) during the term of this Agreement, use and analyze the Licensee Data to generate Aggregate Data and (b) during and after the term of this Agreement, retain, use, publish, and otherwise disclose Aggregate Data without restriction, so long as the Aggregate Data is disclosed in a form in which it cannot be used to identify Licensee or any particular individual(s). By way of example and without creating any limitation,
Selectron may analyze the Licensee Data along with data gathered from other sources to generate statistics and
analytics about success rates of municipalities in collecting payments in response to application notification calls.
3. Deliverables and Services
3.1 Services. Selectron shall perform the
Services described in Exhibit A and Exhibit C and the Technical Support Services described in Exhibit B in
accordance with the terms of this Agreement.
3.2 Delivery, Testing, and Acceptance. All
deliveries of equipment or physical goods required under this Agreement shall be F.C.A. Selectron’s facilities.
Selectron shall provide Licensee with the Documentation and access to the Licensed Software according to the
delivery, testing, and acceptance schedule and terms and conditions set forth in Exhibit A and Exhibit C . Unless a testing period of different duration is set forth in Exhibit A or Exhibit C, Licensee shall have a testing period of thirty (30) days from the date of delivery of any Licensed
Software, including any customized Licensed Software, to inspect and test the Licensed Software. If Licensee
provides Selectron with written notice during the
applicable testing period describing the Licensed
Software’s failure to substantially comply with the limited warranty set forth in Section 7.2 in sufficient detail to enable Selectron to reproduce such fail ure, the Service Fees for the non -conforming Licensed Software shall be suspended until Selectron corrects any such substantial non-conformity. If Licensee does not provide such notice during the testing period, the Licensed Software shall be deemed accepted, and Licensee’s sole remedy for any non- conformance shall be the Technical Support Services
provided hereunder.
3.3 Authorized Users; Licensee
Identification and Passwords . Except as provided in
Section 3.4, Licensee shall not permit any person to access the Licensed Software other than Employees whom
Licensee has designated as Authorized Users. Each
individual natural person shall be a separate Authorized User for purposes of this Agreement. Licensee shall create or request that Selectron create unique log -in credentials, consisting of a “User Identification” and “User Password”, for each individual Authorized User who shall be accessing the Licensed Software. L icensee hereby acknowledges
that Licensee and its Authorized Users bear sole
responsibility for protecting the confidentiality of all User Passwords and shall remain fully responsible and liable for (and Selectron shall not be responsible or liable for) an y unauthorized use of any User Identifications or User
Passwords. Licensee shall not share or disclose, and shall not permit any Authorized User to share or disclose, such Authorized User’s log -in credentials with or to any other individual or entity, even if such other individual is also an Authorized User. A User Identification may not be
transferred from one Authorized User to another
Authorized User. Licensee shall promptly terminate (or cause to be terminated by requesting that Selectron
terminate) the User Identification for any individual who ceases to be an Authorized User for any reason, including without limitation due to termination of such individual’s employment with Licensee. Licensee shall promptly notify Selectron if it discovers or suspe cts that any log -in credentials have been accessed or used by any person
other than the Authorized User to which such log -in
credentials were granted, in which case Selectron shall promptly reset or provide Licensee with a means of
resetting the password a ssociated with such log -in
credentials.
3.4 Customer Tools. Licensee may permit its
customers to access and use the Customer Tools solely
through Licensee’s website and/or an application that is set up and maintained as part of the Services, and solely for the purpose of enabling such customers to (a) receive notifications sent by or on behalf of Licensee, (b) make payments to Licensee, (c) view their invoices from Licensee and history of payments to Licensee, and (d) update their contact information with Licensee.
3.5 Hosting. During the Term, Selectron
and/or its designees shall host and maintain the Licensed Software, and provide access thereto, subject to the terms and conditions of this Agreement and the EULA.
3.6 Updates, Maintenance, and Technical
Support. During the Term, Selectron shall provide
Licensee with Updates as they are made generally
available by Selectron to its other customers, as well as maintenance and technical support, in accordance with
the terms and conditions set forth in Exhibit B. Any Update provided or made available by Selectron hereunder shall be deemed part of the Licensed Software and shall be
subject to the terms and conditions of this Agreement.
3.7 Other Modifications to the Licensed
Software. Licensee understands and agrees that Selectron may make modifications and updates to the Licensed
Software from time to time. Selectron may determine in its sole discretion whether to provide such modifications and updates to Licensee and its other customers as an
Update hereunder, or wh ether such modifications and
updates will be issued as a separate or new product or
premium version of the Licensed Software that is available only at an additional charge.
3.8 Further Licensee Obligations . Licensee
shall be solely responsible for acquiring a nd maintaining, at its own expense, the necessary equipment and Internet and telecommunication services required to access the
Licensed Software and the Services. Licensee
acknowledges that Selectron shall have no obligation to assist Licensee in using or accessing the Licensed Software or the Service except as expressly set forth in this
Agreement.
4. Fees and Payment
4.1 Service Fees. Licensee shall pay to
Selectron service fees (“Service Fees”) in the amounts and according to the terms and conditions set forth in
Exhibit A. In addition to the payment of Service Fees, unless different terms are provided for in Exhibit A ,
Licensee agrees to reimburse Selectron for all actual,
documented and rea sonable travel and out -of-pocket
expenses incurred by Selectron in connection with the
performance of any Services.
4.2 Payment Terms. Unless different
payment terms are set forth in Exhibit A , all fees and expenses payable hereunder shall be due thirty (30) days from the date of invoice, and any amounts not paid when due will incur late fee charges at the rate of 1.5% per month, or the maximum rate permitted by applicable law, whichever is lower, calculated on a daily basis. If any amounts are past due and outstanding, Selectron reserves the right to suspend the licenses granted hereunder,
suspend access to the Licensed Software, and discontinue the Services until all outstanding amounts are paid.
Selectron is entitled to recover all costs of collection, including attorney’s fees and related expenses.
4.3 Disputed Amounts. Any disputed
charges must be presented by Licensee to Selectron in
writing within fifteen (15) days of the date of invoice, and the parties agree to cooperate in good faith to promptly resolve any disputed invoice within fifteen (15) days of Selectron’s receipt of Licensee’s written notice of dispute.
In the event Licensee disputes any amounts invoiced by
Selectron in good faith, the undisputed amount shall be paid when due, and only disputed amounts shall be
withheld pending resolution of the dispute. If payment of a disputed amount has already been made and later
resolution of the dispute is in Licensee’s favor, a credit will be issued by Selectron to Licensee on the next invoice.
4.4 Fee Increa ses. During the Initial Term,
the Service Fees set forth in Exhibit A shall apply. After the Initial Term (as defined in Section 11.1 below), Sel ectron may increase or change its fees by providing Licensee with notice of such increase or change at least ninety (90) days prior to the effective date of such increase or change.
Licensee’s sole alternative to such fee increase or change shall be to te rminate this Agreement by providing notice of termination to Selectron within twenty (20) days after receipt of the notice of price increase or change, which termination will become effective thirty (30) days after such written notice of termination.
4.5 Taxes. All prices set forth in this
Agreement are in U.S. Dollars and are exclusive of any
applicable taxes. Licensee shall pay, indemnify, and hold Selectron harmless from all import and export duties,
customs fees, levies, or imposts, and all sales, use, value added, or other taxes or governmental charges of any
nature, including penalties and interest, and all
government permit or license fees assessed upon or with respect to any products sold, leased, or licensed to
Licensee and any services rendered to Licensee; provided, however, that Licensee shall not be responsible for paying any taxes imposed on, or with respect to, Selectron’s
income, revenues, gross receipts, personnel, or real or personal property or other assets.
5. Proprietary Rights
As between Se lectron and Licensee, Selectron and/or its licensors own and shall retain all right, title and interest, including, without limitation, all Intellectual Property Rights in and to the Licensed Software and any Work
Product resulting from performance of the Services and
any portions thereof, including without limitation any copy or Derivative Work of the Licensed Software (or any
portion thereof) and any Updates and upgrades thereto.
Licensee agrees to take any action reasonably requested
by Selectron to evidence, maintain, enforce, or defend the foregoing. Licensee shall not take any action to jeopardize, encumber, limit, or interfere in any manner with
Selectron’s or its licensors’ ownership of and rights with respect to the Licensed Software or Service, o r any
Derivative Work or Update or upgrade thereto. The
Licensed Software and any Work Product are licensed, not sold, and Licensee shall have only those rights in and to the Licensed Software and Work Product and any Derivative
Work or Update or upgrade thereto as are expressly
granted to it under this Agreement, including the EULA.
6. Proprietary Information
During the Term of this Agreement and after the
termination of this Agreement, the parties will take all steps reasonably necessary to hold the other p arty’s
Proprietary Information in confidence, will not use the disclosing party’s Proprietary Information in any manner or for any purpose not expressly set forth in this
Agreement, and will not disclose any such Proprietary
Information to any third party without the disclosing
party’s express prior written consent; provided, however, that each party (the “ receiving party ”) may disclose
Proprietary Information of the other party (the “disclosing party”) (a) to such receiving party’s employees, directors, officers, contractors, and agents (collectively,
“Representatives”) who have a need to know such
information and who have been advised of and have
agreed to comply with the confidentiality restrictions
contained in this Section 6 and (b) to such third part ies as are authorized or directed by the disclosing party in
writing. Each party shall be responsible and liable for the actions and omissions of its Representatives. “Proprietary Information” belonging to a disclosing party includes, but is not limited to, such disclosing party’s (a) trade secrets, inventions, ideas, processes, formulas, source and object codes, data, other works of authorship, know -how,
improvements, discoveries, developments, designs, and
techniques; (b) information regarding its plans for
research, development, new products, marketing and
selling, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of
employees, and (d) other informati on about or belonging to such disclosing party that the receiving party should reasonably know, due to the nature of the information or the circumstances surrounding its disclosure, is regarded by the disclosing party as confidential. Proprietary
Information includes reports, analyses, notes, and other information or materials that contain or are derived using the disclosing party’s Proprietary Information, even if developed in whole or in part by the receiving party.
For clarity, information about the Li censed Software,
including information about its features, functionality, and pricing, are and shall remain the Proprietary Information of Selectron. For further clarity, Licensee Data is and shall remain the Proprietary Information of Licensee.
Notwithstanding the foregoing, information will not be
considered to be Proprietary Information if (a) it is readily available to the public other than by a breach of this
Agreement; (b) it has been rightfully received by the
receiving party from a third party wi thout confidentiality limitations; (c) it has been independently developed by the receiving party without reference to or use of the
disclosing party’s Proprietary Information; or (d) it was rightfully known to the receiving party prior to its first receipt from the disclosing party. The receiving party shall be entitled to disclose the disclosing party’s Proprietary Information if required by law or a judicial order; provided that the receiving party first provides prompt notice of the required disclosure to the disclosing party, and complies with any protective or similar order obtained by the
disclosing party limiting the required disclosure.
7. Representations and Warranties; Warranty
Disclaimer.
7.1 Mutual Representations . Each party
represents and warrants to the other party that the
execution, delivery and performance of this Agreement
(a) is within its corporate, municipal, or governmental powers, as the case may be (b) has been duly authorized by all necessary corporate, municipal, or governmental
action on such party’s part, and (c) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any law, regulation,
judgment, decree or order, or any contract, agreement, or other undertaking, applicable to such party.
7.2 Limited Software Warranty and
Exclusive Remedy. Subject to the limitations set forth in this Agreement, Selectron represents and warrants to
Licensee that the Licensed Software, when used in
accordance with the Documentation, shall throughout the Term substantially conform to the functional specifications in such Documentation. If Licensee finds what it
reasonably believes to be a failure of the Licensed
Software to substantially conform to the functional
specifications in the Documentation, an d provides
Selectron with a written report that describes such failure in sufficient detail to enable Selectron to reproduce such failure, Selectron shall use commercially reasonable
efforts to correct or provide a workaround for such failure at no additio nal charge to Licensee in accordance with
Exhibit B hereto. Outside the United States, this limited warranty is only available with proof of purchase from an authorized source. EXCEPT FOR THE EXPRESS WARRANTY
ABOVE, SELECTRON PROVIDES THE LICENSED SOFTWA RE
TO LICENSEE “AS IS” AND “AS AVAILABLE.” SELECTRON
MAKES NO WARRANTY THAT ALL ERRORS, FAILURES, OR
DEFECTS SHALL BE CORRECTED, OR THAT ACCESS TO OR
USE OF THE LICENSED SOFTWARE SHALL BE
UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ORAL OR
WRITTEN INFORMATI ON OR ADVICE PROVIDED BY
SELECTRON, ITS AGENTS, OR ITS EMPLOYEES, SHALL
CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS
AGREEMENT. This Section states the entire liability of Selectron and the sole and exc lusive remedy of Licensee with respect to any breach of the foregoing express
warranty.
7.3 Limited Services Warranty and
Exclusive Remedy. Subject to the limitations set forth in this Agreement, Selectron warrants that the Services shall be performed in a professional and workmanlike manner.
Selectron’s sole obligation, and Licensee’s exclusive
remedy for breach of the foregoing warranty, is that
Selectron shall use its commercially reasonable efforts to re-perform the Services or otherwise cure such breach. If, in Selectron’s sole judgement, curing the breach is not commercially feasible, Selectron shall credit Licensee for a portion of the fees allocable to the affected period of time that is proportionate to the period the Services or
Licensee’s abilit y to access or use the Licensed Software was impaired.
7.4 Disclaimer of Other Warranties . THE
EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7 AND
SECTION 8.5 CONSTITUTE THE ONLY WARRANTIES MADE
BY SELECTRON WITH RESPECT TO THE LICENSED
SOFTWARE AND THE SERVICES AND ANY OTHER SUBJECT
MATTER OF THIS AGREEMENT. SELECTRON MAKES NO
OTHER, AND HEREBY DISCLAIMS ALL OTHER,
REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF
ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT
OR BY OPERATION OF LAW), OR STATUTORY, WITH
RESPECT TO THE LICENSED SOFTWARE, THE SERVIC ES, OR
ANY OTHER SUBJECT MATTER OF THIS AGREEMENT.
SELECTRON EXPRESSLY DISCLAIMS ALL WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT,
AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF
DEALING, COURS E OF PERFORMANCE, OR USAGE OF
TRADE. SELECTRON DOES NOT WARRANT THAT ANY USE
OF OR ACCESS TO THE LICENSED SOFTWARE SHALL BE
ERROR-FREE OR SECURE, OR THAT OPERATION OF THE
LICENSED SOFTWARE SHALL BE UNINTERRUPTED, AND
HEREBY DISCLAIMS ANY AND ALL LIABILITY IN
CONNECTION THEREWITH. LICENSEE ACKNOWLEDGES
THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN
THE EXPRESS WARRANTIES IN SECTION 7 AND SECTION 8.5
OF THIS AGREEMENT.
7.5 Defects Not Covered by Warranties .
Selectron shall have no obligations under Section 7.2 to the extent any nonconformance or failure of, or error in, the Licensed Softwa re is caused by (a) use of any
attachment, feature, hardware, software, or device in
connection with the Licensed Software, or combination of the Licensed Software with any other materials or service, unless the combination is performed by Selectron;
(b) transportation, neglect, misuse, or misapplication of the Licensed Software, or any use of the Licensed Software that is not in accordance with this Agreement, the EULA, and/or the Documentation; (c) alteration, modification, or enhancement of the Licensed Software, except as may be performed by Selectron; (d) failure to provide a suitable use environment for all or any part of the Licensed
Software; or (e) failure to maintain systems and
environments that are compatible with Updates.
8. Security
8.1 Internet Secu rity. Selectron’s Licensed
Software is made available through the Internet and may be used to access and transfer information over the
Internet. Licensee is solely responsible for the security and integrity of information it transfers from the Licensed Software, if any. Selectron makes no representations or warranties to Licensee regarding (a) the security or privacy of Licensee’s network environment, or (b) any third -party technologies’ or services’ ability to meet Licensee’s
security and privacy needs. These third-party technologies and services may include, but are not limited to, operating systems, database management systems, web servers, and
payment processing services. Licensee is solely
responsible for ensuring a secure environment for
information it transfers from the Licensed Software, if any.
Further, Licensee acknowledges and agrees that Selectron does not operate or control the Internet and that Selectron shall have no responsibility or liability in connection with a breach of security or p rivacy regarding the Licensed
Software or information contained therein that is caused by (a) viruses, worms, Trojan horses, or other undesirable data or software; (b) unauthorized users, e.g., hackers; or (c) any other third party or activity beyond Selec tron’s reasonable control; in each of the foregoing cases, except to the extent caused by Selectron’s breach of Section 8.4 or 8.5.
8.2 Remote Access Se curity. In order to
enable code development and support and maintenance
of the software, Selectron may require remote access
capability. Remote access is normally provided by
installing PC -Anywhere, ControlIT, or other industry
standard remote access software. It may also be provided through a Licensee solution such as VPN access.
Regardless of what method is used to provide remote
access, or which party provides remote access software, it is Licensee’s responsibility to ensure that the remote
access m ethod meets Licensee’s security requirements.
Selectron makes no representations or warranties to
Licensee regarding the remote access software’s ability to meet Licensee’s security or privacy needs. Selectron also makes no recommendation for any specifi c package or
approach with regard to security. Licensee is solely
responsible for ensuring a secure network environment.
8.3 Outbound Services Disclaimer .
Outbound services are intended to create additional
methods of communication for Licensee’s employees who
use the Licensed Software in support of existing processes.
These services are not intended to replace all interaction with Licensee’s end users or employees. While the
outbound services have been created with the best
available tools and practices, they are dependent on
infrastructure that is inherently not fail -proof, including but not limited to infrastructure such as software,
computer hardware, network services, telephone services, and e-mail. Examples of situations that could cause failure include but are not limited to: down phone lines, all lines busy, equipment failure, email address changes, and
Internet service disruptions. For this reason, while
outbound services are valuable in providing enhanced
communication, they are specifically not designed to be used as the sole method to deliver critical messages.
Licensee acknowledges that it is aware of the potential hazards associated with relying on an automated
outbound service feature, when using the Licensed
Software, and Licensee acknowledges and agrees that it is giving up in advance any right to sue or make any claim against Selectron, and that Licensee forever releases
Selectron from any and all liability caused by (a) any failed call attempts (including excess of calls over and above network or system capacity), incomplete calls, or any busy- outs; (b) any failure to transmit, obtain or collect data from callers or for human and machine errors, faulty or
erroneous input, inarticulate caller communication, caller delays or call lengths exc eeding estimated call lengths or omissions, delays and losses in connection with the
Services provided hereunder; or (c) if Licensee, Licensee’s employees, or Licensee’s end user suffer injury or damage due to the failure of outbound services to operate, even though Licensee does not know what or how extensive
those injuries or damages might be , unless such losses were directly attributable to Selectron’s gross negligence or willful misconduct.
8.4 Privacy and Security Standards.
Selectron agrees that it will gather, collect, receive, generate, store, use, maintain, transmit, process, import, export, transfer and disclose the Licensee Data
substantially in compliance with applicable data
protection, security, breach notification and privacy laws, rules, regula tions and industry standards to which
Selectron is subject. Selectron shall, at all times, use reasonable measures to protect the confidentiality of the Licensee Data in its possession or care, including technical, administrative, and physical safeguards that are
appropriate given the nature of the Licensee Data.
8.5 PCI Compliance. Selectron warrants
that, during the Term of this Agreement, (a) all system components, people, processes, and the cardholder data
environment that are used in Selectron’s collection,
transmittal, or other processing of PCI Data on behalf of Licensee are and shall remain compliant with the
applicable provisions of PCI DSS; and (b) Selectron
PayEngine™, Selectron’s proprietary payment application, is and shall remain complia nt with PA -DSS. On an annual basis or upon Licensee’s request, Selectron shall provide Licensee with an Attestation of Compliance or Attestation of Validation confirming such compliance.
8.6 Incident Response . In the event
Selectron becomes aware of a confir med or suspected
Security Incident involving the unauthorized disclosure or theft of PCI Data, Selectron shall (a) notify Licensee, (b) cooperate in any investigation, (c) promptly take
reasonable measures to prevent further unauthorized
access or use of the Licensee Data, (d) cooperate with
Licensee’s notification to affected individuals if such notification is required by applicable law or regulation, and (e) perform all such other acts, or cooperate with
Licensee’s performance of all such other acts, that are required with respect to such Security I ncident by
applicable law or regulation.
8.7 Limited Scope of PCI Data Processing.
The parties acknowledge that Selectron’s sole processing of PCI Data on behalf of Licensee shall consist of (a)
collecting PCI Data needed to facilitate payments to
Licensee, (b) transmitting such PCI Data to a third party payment gateway designated by Licensee, and (c)
receiving confirmation via the payment gateway that the payment transaction has been completed. After
transmittal of PCI Data to the payment gateway, Selectron will not retain, store, or continue to use or process such PCI Data.
8.8 Data Transfers Between Licensee and
Selectron. The parties acknowledge that, to facilitate providing the Services and the Licensed Software,
Selectron and Licensee shall regularly tran sfer Licensee Data to each other. Licensee, not Selectron, is responsible for providing and maintaining a secure file transfer
protocol for such transfer of Licensee Data, and shall be responsible for maintaining the security of the system
components, env ironment, and procedures of such file
transfer protocol.
8.9 Licensee’s Privacy Practices . Licensee
acknowledges that the Licensee Data includes information about individuals with whom Licensee, rather than
Selectron, has direct relationships. Therefore, it is
Licensee’s obligation, and not Selectron’s obligation, to provide any privacy notic es or disclosures to, and obtain any consent from, such individuals as may be required by applicable law with respect to processing of the Licensee Data by Selectron on Licensee’s behalf. Licensee
represents, warrants, and covenants to Selectron that (a) Licensee has the authority to transmit the Licensee Data to Selectron; and (b) Selectron’s collection, storage,
transmittal, and other processing of the Licensee Data on behalf of Licensee, as described in the Documentation and this Agreement, does not and will not violate any
applicable laws, regulations, ordinances, contracts,
policies, orders, or decrees to which Licensee is subject.
9. Indemnification
9.1 Infringement Indemnity Obligations of
Selectron. Selectron shall defend any action brought
against Licensee to the extent it is based on a third party claim that use by Licensee of the Licensed Software as
furnished hereunder, which use is in accordance with the terms and conditions of this Agreement, directly infringes or misappropriates any valid United St ates patent,
copyright, or trade secret. Selectron shall pay any
liabilities, costs, damages, and expenses (including
reasonable attorney’s fees) finally awarded against
Licensee in such action that are attributable to such claim.
Licensee agrees to promptly notify Selectron of any known or suspected infringement or misappropriation of
Selectron’s proprietary rights of which Licensee becomes aware. Should the Licensed Software become, or be likely to become in Selectron’s opinion, the subject of any claim of infringement, Selectron may, at its option (a) procure for Licensee the right to continue using the potentially infringing materials; (b) replace or modify the potentially infringing materials to make them non -infringing; or
(c) terminate this Agreemen t and provide Licensee with a refund equal to the set -up fees paid by Licensee, less an amount equal to the depreciated portion of such fees
calculated on a five (5) year straight -line basis. This Section 9.1 states the entire liability of Selectron and the exclusive remedy of Licensee with respect to infringement of any third -party intellectual property or other rights, whether under theory of wa rranty, indemnity, or
otherwise.
9.2 Infringement Indemnity Obligations of
Licensee. Selectron shall have no liability for any claim based upon (a) the use, operation, or combination of the Licensed Software with non -Selectron programs, data,
equipment, or documentation if liability would have been avoided but for such use, operation, or combination;
(b) use of other than the then -current, unaltered version of the Licensed Software that incorporates all Updates; (c) Licensee’s or its agents’ or Employees’ acti vities after Selectron has notified Licensee that Selectron believes such activities may result in infringement; (d) any
modifications to or markings of the Licensed Software that are not specifically authorized in writing by Selectron; (e) any third party software; (f) any Licensee Data; or (g) Licensee’s breach or alleged breach of this Agreement.
Licensee shall indemnify, defend, and hold Selectron
harmless for, from and against all liabilities, costs,
damages, and expenses (including reasonable attorne y’s fees) awarded against or incurred by Selectron in such
action(s) that are attributable to such claim.
9.3 Security Related Indemnity Obligations
of Selectron. If an investigation performed by a qualified third party forensic investigator confirms that a Security Incident was caused solely by an act or omission of
Selectron, including any security vulnerability in system components, procedures, or environments owned or
controlled by Selectron, then Selectron shall defend,
indemnify, and hold harmless Lice nsee for, from and
against all liabilities, costs, damages, fines, penalties, and expenses (including reasonable attorney’s fees) incurred by Licensee as a result of such Security Incident, including the reasonable costs of investigation and reasonable costs of notification to affected individuals and providing credit monitoring or other fraud prevention services, but only to the extent such notification, credit monitoring, or other fraud prevention services are required by applicable laws, regulations, a court order or consent decree, or the terms of a settlement and release of claims arising from such Security Incident that Selectron has consented to
(collectively, “Losses”).
9.4 Security Related Indemnity Obligations
of Licensee. Selectron shall have no lia bility or obligation to defend or indemnify Licensee with respect to any Losses caused by Licensee’s breach of Sections 8.8 or 8.9 or any Security Incident to the extent caused in whole or in part by an act or omission of Licensee or any third party (other than Selectron’s subcontractors) or a ny of their affiliates, employees, directors, officers, agents, or contractors
(other than Selectron), including without limitation any of the following acts or omissions: (a) their loss of control of any device, (b) their failure to maintain the confidentiality of log -in credentials, (c) their transmission of data via methods that are not secure, (d) their failure to maintain systems and environments that are compatible with any
Update, (e) their violation of th e applicable terms of this Agreement or any applicable laws, regulations, or industry standards, or (f) any vulnerability in their environment, systems, hardware, software, or physical or administrative security safeguards or procedures, including without
limitation any vulnerability in the file transfer protocol maintained by Licensee pursuant to Section 8.8. Licensee shall indemnify, defend, and h old harmless Selectron for, from and against all Losses arising from any such Security Incident or Licensee’s breach of Sections 8.7 or 8.8,
including without limitation any expenses incurred by
Selectron in complying with its obligations under Section
8.6. 9.5 Conditions for Indemnification. The
parties’ indemnification obligations hereunder shall apply only if (a) the party to be indemnified (the “ indemnitee” notifies the party obligated to indemnify them (the
“indemnitor”) in writing of a claim promptly upon learning of or receiving the same; and (b) the indemnitee provides the indemnitor with reasonable assistance requested by
the indemnitor, at the indemnitor’s expense, for the
defense and settlement, if applicable, of any claim. The indemnitee's failure to perform any obligations or satisfy any conditions under this Section 9.5 shall not relieve the indemnitor of its obligations hereunder except to the
extent that the indemnitor can demonstrate that it has
been materially prejudiced as a result of such failure.
9.6 Control of Defense. After receipt of
notice of a claim, the indemnitor shall be entitled, if it so elects, at its own cost, risk and expense (a) to take control of the defense and investigation of such lawsuit or action; and (ii) to employ and engage attorn eys of its own choice to handle and defend the same; provided, however, that the indemnitee’s consent shall be required for any
settlement that does not include a full release of all claims.
If the indemnitor fails to assume the defense of such claim within ten (10) business days after receipt of notice of the claim, the indemnitee will (upon delivering notice to such effect to the indemnitor) have the right to undertake, at the indemnitor’s cost and expense, the defense,
compromise or settlement of such c laim on behalf of and for the account and risk of the indemnitor; provided,
however, that such claim shall not be compromised or
settled without the written consent of the indemnitor. The party that assumes control of the defense of the claim will keep the other party reasonably informed of the progress of any such defense, compromise or settlement.
Notwithstanding the foregoing, the indemnitee shall be
entitled to conduct its own defense at the cost and
expense of the indemnitor if the indemnitee establis hes that the conduct of its defense by the indemnitor would reasonably be likely to prejudice materially the indemnitee due to a conflict of interest between the indemnitee and the indemnitor; and provided further that in any event, the indemnitee may part icipate in such defense at its own
expense.
10. Limitation of Liability
10.1 Limited Remedy. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, TO THE MAXIMUM EXTENT ALLOWED
BY APPLICABLE LAW, IN NO EVENT SHALL SELECTRON OR
ITS SUPPLIERS OR LICENSORS BE LIABLE FOR, OR BE
OBLIGATED TO INDEMNIFY LICENSEE FOR, ANY LOSS OF
PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE
DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS
ARISING FROM OR RELATING TO THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF, EVEN IF SELECTRON HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
HOWEVER CAUSED.
10.2 Maximum Liability. Notwithstanding
anything in this Agreement to the contrary or the failure of essential pur pose of any limited remedy or limitation of liability, Selectron’s entire liability arising from or relating to this Agreement or the subject matter hereof, under any legal theory (whether in contract, tort or otherwise), shall not exceed the amounts actua lly received by Selectron
from Licensee hereunder in the twelve (12) months
immediately preceding the action that gave rise to the
claim. Licensee acknowledges that the Service Fees reflect the allocation of risk set forth in this Agreement and that Selectron would not enter into this Agreement without the limitations on liability set forth in this Agreement.
11. Term and Termination
11.1 Term. The term of this Agreement shall
commence on the Effective Date and continue for an initial period of five (5) years therefrom (the “Initial Term”), and shall automatically renew for successive one (1) year
periods unless either party notifies the other of its
intention not to renew at least ninety (90) days before the end of the then -current term (collectively, the “ Term”). If Licensee cancels prior to the end of the Initial Term of five (5) years, all fees for the Initial Term of this agreement that are unpaid will become immediately due.
11.2 Termination for Default . If either party
materially defaults in any of its obligatio ns under this Agreement, the non -defaulting party, at its option, shall have the right to terminate this Agreement by written
notice to the other party unless, within sixty (60) calendar days after written notice of such default, the defaulting party remed ies the default, or, in the case of a default which cannot with due diligence be cured within a period of sixty (60) calendar days, the defaulting party institutes within the sixty (60) day-period substantial steps necessary to remedy the default and thereafter diligently prosecutes the same to completion. Notwithstanding anything herein to the contrary, in the event Licensee breaches the EULA or Sections 2.2, 5 and/or 6 of this Agreement, Selectron may immediately terminate this Agreement. Licensee
shall notify Selectron within twenty -four (24) hours of Licensee’s becoming aware of any breach (other than by
Selectron) of the terms and conditions of this Agreement, including, without limitation, any breach of Sections 2.2, 5 or 6.
11.3 Termination for Bankruptcy . Either
party may terminate this Agr eement if the other party
(a) becomes insolvent; (b) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (c) is declared insolvent or admits its insolvency or inability to pay its debts or perform its obliga tions as they mature; or (d) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation,
dissolution, receivership, attachment, or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after the institution thereof.
11.4 Effect of Termination . Upon the
expiration or termination of this Agreement, all rights and licenses granted to Licens ee hereunder shall immediately and automatically terminate. Within ten (10) days after any termination or expiration of this Agreement, Licensee shall, at its sole expense, return to Selectron (or destroy, at Selectron’s sole election) all Licensed Softwa re and Proprietary Information of Selectron (and all copies,
summaries, and extracts thereof) then in the possession or under the control of Licensee and its current or former employees. Licensee shall furnish to Selectron an affidavit signed by an officer of Licensee certifying that, to the best of its knowledge, such delivery or destruction has been fully effected. Termination of this Agreement by either party shall not act as a waiver of any breach of this
Agreement and shall not act as a release of ei ther party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of
terminating this Agreement in accordance with its terms.
Either party’s te rmination of this Agreement shall be
without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve either party of liability for breaches occurring prior to the effective date of such termination. Any provisions that would reasonably be expected by the parties to survive termination of this Agreement shall survive such termination, including
without limitation the provisions of the EULA and
Sections 1 (“Definitions”), 2.2 (“Software Restrictions”),
2.3 (“Data Restrictions”), 2.4 (“Rights in Aggregate Data”), 4 (“Fees and Payment”) (with respect to amounts accrued but as-yet unpaid), 5 (“Proprietary Rights”), 6 (“Proprietary Information”), 7 (“Representations and Warr anties;
Warranty Disclaimer”), 8 (“Security”), 9
(“Indemnification”), 10 (“Limitation of Liability”), 11 (“Term and Termination”) and 12 (“General Provisions”).
12. General Provisions
12.1 Notices. Any notice, request, demand or
other communication required or per mitted hereunder
shall be in writing, shall reference this Agreement, and shall be deemed to be properly given (on the earliest of) (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt; or (c) upon receipt three ( 3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
All notices shall be sent to the address set forth on the signature page below (or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 12.1).
12.2 Governing Law; Jurisdiction . This
Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon, U.S.A., without reference to its conflicts of law provisio ns. The United Nations Convention on Contracts for the
International Sale of Goods does not apply to and shall not be used to interpret this Agreement. Any dispute
regarding this Agreement must be brought in the state or
federal courts located in Multnom ah County, Oregon,
U.S.A.
12.3 Construction. This Agreement has been
negotiated by the parties and their respective counsel.
This Agreement shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.
12.4 Attorneys’ Fees . If any legal action is
brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment shall be entitled to the full amount of all reasonable expenses, including all court costs and reasonable attorney fees paid or incurred.
12.5 Injunctive Relief . In the event that
Licensee breaches any provision of the EULA or Sections 2, 5, or 6 or any other material provision of this Agreement, Licensee acknowledges and agrees that there may be no
adequate remedy at law to compensate Selectron for such breach, that any such breach may result in irreparable
harm to Selectron that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Selectron shall be entitled to seek injunctive and other appropriate equitable relief (without the necessity of
proving actual damages or of posting a bond or other
security), in addition to whatever remedies Selectron may have at law, in equity, under this Agreement, or otherwise.
12.6 Waiver. The waiver by either party of a
breach of or a default under any provision of this
Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor
shall any del ay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder, operate as a waiver of any right or remedy.
12.7 Severability. If the application of any
provision of this Agreement to any particu lar facts or circumstances shall be held to be invalid or unenforceable, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent
possible so as to effect the intent of the parties, and reformed without further action by the parties, to the
extent necessary to make such provision valid and
enforceable. Without limiting the generality of the
foregoing, Licensee agrees that Section 7.4 will remain in effect notwithstanding t he unenforceability of any other provision hereof.
12.8 Independent Contractor Relationship .
Selectron’s relationship with Licensee will be that of
independent contractor, and nothing contained in this
Agreement shall be deemed or construed as creating a
joint venture, partnership, or employer -employee
relationship. Licensee is not an agent of Selectron and is not authorized to make any representation, contract, or commitment on behalf of Selectron, or to bind Selectron in any way. Selectron is not an agent of Licensee and is not authorized to make any representation, contract, or
commitment on behalf of Licensee, or to bind Licensee in any way. Selectron will not be entitled to any of the
benefits that Licensee may make available to its
employees, such as gr oup insurance, profit sharing, or retirement benefits.
12.9 Force Majeure. Except for the payment
of monies due hereunder, neither party shall be
responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and
acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason the refor and uses its reasonable efforts to limit the resulting delay in its
performance and to mitigate the harm or damage caused
by such delay.
12.10 Public Announcements . Licensee shall
cooperate with Selectron so that Selectron may issue a
press release concer ning this Agreement; provided,
however, Selectron may not release any such press release without the prior approval of Licensee (which shall not be unreasonably withheld, delayed, or conditioned).
However, without seeking prior approval in each instance, Selectron shall have the right to use Licensee’s name as a customer reference, and to use Licensee’s trade name on Selectron’s customer lists.
12.11 U.S. Government Rights . (a) The
Licensed Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial
computer software” and “commercial computer software
documentation,” as such terms are used in 48 C.F.R.
12.212 or 48 C.F.R. 227.7202, as applicable. Consistent
with 48 C.F.R. 12.212 and 48 C.F.R 227.7202 -1 through
227.7202-4, the Licensed Software are licensed to any U.S.
Government End Users (i) only as a commercial item and
(ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Manufacturer is Selectron Technologies , Inc., 12323 SW 66th Avenue, Portland, OR 97223 , USA. This Section,
consistent with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202 is in lieu of, and supersedes, any other Federal Acquisition Regulation, Defense Federal Acquisition Regulation
Supplement, o r other clause or provision that addresses United States Government rights in computer software,
technical data, or computer software documentation.
(b) The parties agree that, in the event that Licensee
is a governmental entity, all other state and local
governments within Licensee’s state may purchase a
license from Selectron to use the Licensed Software under the same terms and conditions as set forth in this
Agreement by entering into a master services and hosting agreement with the same terms and conditions as set forth herein with Selectron.
12.12 Export Controls. The Licensed Software
is subject to the export control laws of the United States and other countries. Licensee may not export or re -export the Licensed Software, unless Licensee has first obtained Selectron’s prior written permission and the appropriate United States and foreign government licenses, at
Licensee’s sole expense. Licensee must otherwise comply with, and contractually require that all of its employees comply with, all applicable export control laws and
regulations in the use of the Licensed Software. None of the Licensed Software may be downloaded or otherwise
exported or re-exported (a) into any country for which the United States has a trade embargo, or (b) to anyone on the U.S. Trea sury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied
Persons List. Licensee represents and warrants that it is not located in, under the control of, or a national or
resident of any such country or on any such list. Licensee shall defend, indemnify and hold Selectron and all
successors, assigns, affiliates, suppliers, and each of their officers, directors, employees, and agents harmless for, from, and against any and all claims, allegations, damages, liabilities, and costs and expenses (including without
limitation attorneys’ fees and costs) arising out of
Licensee’s violation of such export control laws. Licensee further agrees to comply with the United States Foreign Corrupt Practices Act, as amended.
12.13 Captions and Section Headings . The
captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
12.14 Counterparts. This Agreement may be
signed in one or mor e counterparts, each of which will be deemed to be an original copy of this Agreement, and,
when taken together, shall be deemed to constitute one
and the same agreement. Each party agrees that the
delivery of this Agreement by facsimile transmission or b y PDF attachment to an e -mail transmission will be deemed to be an original of the Agreement so transmitted and, at the request of either party, the other party will confirm facsimile or e-mail transmitted signatures by providing the original document.
12.15 Modification; Subsequent Terms . No
amendment or modification of any provision of this
Agreement shall be effective unless in writing and signed by a duly authorized signatory of Selectron and Licensee.
To the extent that the terms and conditions of the Exhibits hereto or Exhibits to subsequent amendments or
modifications of or to the Agreement (“Subsequent
Terms”) differ from those herein, those Subsequent Terms shall control the interpretation and any conflict resolution thereof. The terms on any purchase order or similar
document submitted by Licensee to Selectron will not
modify the terms and conditions of this Agreement.
12.16 Entire Agreement; Amendment . This
Agreement, including the Exhibit(s) attached hereto,
constitutes the entire agreement between the pa rties
concerning the subject matter hereof, and supersedes
(a) all prior or contemporaneous representations,
discussions, proposals, negotiations, conditions,
agreements, and communications, whether oral or
written, between the parties relating to the subject matter of this Agreement, and (b) all past courses of dealing and industry custom.
In Witness Whereof, the parties have caused this Agreement to be executed by duly authorized representatives of the parties as of the Effective Date.
SELECTRON TECHNOLOGIES, INC. LICENSEE
By: By:
Signature Signature
Name: Todd A. Johnston Name:
Title: President Title:
Date: Date:
Address: 12323 SW 66th Avenue
Portland, OR 97223
Address:
EXHIBIT A
Scope of Work
Upgrade to Relay IVR – Utility Application and Relay Outbound and Move to Managed GSA Contract # GS-35F-0315X
GSA
5-Year Contract Year 1 Year 2 Year 3 Year 4 Year 5 TOTAL SIN 54151S, Part # PS-WSSLS
(432 Hours for Upgrade) $72,364.32 $72,364.32
SIN 54151S, Part # PS-WSSLS
(86 Hours for Hosting Services) $14,405.86 $14,405.86 $14,405.86 $14,405.86 $14,405.86 $72,029.30 SIN 511210, Part # PP-SM $22,850.00 $23,535.00 $24,240.00 $24,970.00 $25,715.00 $121,310.00 GSA Total $109,620.18 $37,940.86 $38,645.86 $39,375.86 $40,120.86 $265,703.62 Non-GSA
5-Year Contract Year 1 Year 2 Year 3 Year 4 Year 5 TOTAL Universal Message Bundle for
Relay Channels (250,000) $0.00 $47,000.00 $47,000.00 $47,000.00 $47,000.00 $188,000.00 Non-GSA Total $0.00 $47,000.00 $47,000.00 $47,000.00 $47,000.00 $188,000.00 GSA & Non-GSA Combined
5-Year Contract Year 1 Year 2 Year 3 Year 4 Year 5 TOTAL GSA $109,620.18 $37,940.86 $38,645.86 $39,375.86 $40,120.86 $265,703.62 Non-GSA $0.00 $47,000.00 $47,000.00 $47,000.00 $47,000.00 $188,000.00 GSA & Non-GSA Total $109,620.18 $84,940.86 $85,645.86 $86,375.86 $87,120.86 $453,703.62
2.5% GSA Volume Discount -$2,740.50
GSA & Non-GSA Total $106,879.68 $84,940.86 $85,645.86 $86,375.86 $87,120.86 $450,963.12
PRICING & PAYMENT INFORMATION
Pricing does not include additional application integration charges that may be required as part of this solution.
This includes Application Vendor API, user, or implementation fees, additional licensing fees, or other surcharges directly or indirectly charged by or remitted to the Application Vendor.
PROFESSIONAL SERVICES PAYMENT SCHEDULE
45% Invoiced at time of execution of contracts
55% Invoiced upon system available for initial user acceptance testing
ANNUAL FEES, BUNDLES, AND SUPPORT
100% Invoiced at time of execution of contracts. Recurring fees are invoiced 45 days prior to renewal.
Service Year Start Date:
• If IVR is on active support: Year 1 starts when system is available for initial user acceptance testing
• If IVR is not on active support: Year 1 starts May 1, 2024
In the event the customer terminates agreement prior to the end of the commitment term, 100% of all remaining unpaid fees for the term become immediately due.
CHANGE ORDERS INCLUDING TIME AND MATERIAL RATES
• All service work and/or deliverables not listed, defined, or provided as optional deliverables in this document are considered outside of the scope of this project effort. Out of scope services will be invoiced at Selectron’s then current rate.
• If the out of scope services require a formal change order, the Company and Customer will mutually agree in writing, which will include a scope of work, timeline for delivery, Company and Customer responsibilities and the price terms and conditions. Upon acceptance by Customer and issuance of required purchasing documentation, all Change Orders shall be governed by the terms and conditions of this Agreement, no other terms or conditions shall apply. Customer acknowledges that such Change Orders may affect the implementation schedule and dates otherwise established as part of the project plan.
TAXES
Sales Tax or any other applicable taxes are not included in any of the pricing in this agreement. All applicable taxes will be invoiced, collected and remitted in accordance with state and local tax laws.
PAYMENT TERMS
Terms are net 45 days from date of invoice. Past due invoices are subject to a 1.5% per month late fee. All presented pricing is in US Dollars.
EXHIBIT B
Maintenance and Technical Support
This Exhibit describes the software maintenance and support services that Selectron shall provide for Licensee.
I. Definitions
Unless defined otherwise herein, capitalized terms used in this Exhibit shall have the same meaning as set forth in the Agreement.
A. “Error” means any failure of the Licensed Software to conform in any material respect with the Documentation.
B. “Error Correction” means either a bug fix, patch, or other modification or addition that brings the Licensed Software into material conformity with the Documentation.
C. “Priority A Error” means an Error that renders Licensed Software inoperative or causes a complete failure of the Licensed Software, as applicable.
D. “Priority B Error” means an Error that substantially degrades the performance of Licensed Software, as applicable, or materially restricts Licensee’s use of the Licensed Software, as applicable.
E. “Priority C Error” means an Error that causes only a minor impact on Licensee’s use of Licensed Software, as applicable.
II. Error Reporting and Resolution
A. Error Reporting. Selectron shall provide Licensee with telephone customer support twenty -four (24) hours per day, seven (7) days per week for the reporting of Priority A Errors, and telephone support during Selectron’s normal business hours for the reporting of Priority B and Priority C Errors, in each event excluding Selectron holidays.
B. Licensed Software Error Resolution. Selectron shall use commercially reasonable efforts to:
(a) notify applicable Vendors of all Licensed Software Errors properly reported by Licensee i n accordance with Section II(A) of this Exhibit B; (b) make available to Licensee any Error Corrections that are made available by such Vendor(s) to Selectron promptly after such Error Corrections are delivered to Selectron; and (c) update Licensee with respect to the progress of the resolution of all Licensed Software Errors.
C. Error Resolution. Licensee shall report all Errors in the Licensed Software to Selectron in sufficient detail, with sufficient explanation of the circumstances under which the Erro r occurred or is occurring, and shall reasonably classify the Error as a Priority A, B, or C Error. Selectron shall use commercially reasonable efforts to correct any Error in the Licensed Software reported by Licensee, in accordance with the priority lev el actually assigned by Selectron to such Error, as follows:
1. Priority A Errors. In the event of a Priority A Error, Selectron shall, within two (2) hours of receiving Licensee’s report, commence verification of the Error. Upon verification, Selectron sha ll use commercially reasonable efforts to resolve the Error with an Error Correction. Selectron shall use commercially reasonable efforts to provide a workaround for the Error within twenty -four (24) hours of receiving Licensee’s report of such Error, and an Error Correction within forty-eight (48) hours of receiving Licensee’s report. Selectron shall provide Licensee with periodic reports (no less frequently than once every eight (8) hours) on the status of the Error Correction.
2. Priority B Errors. In the event of a Priority B Error, Selectron shall, within six (6) hours of receiving Licensee’s report, commence verification of the Error. Upon verification, Selectron shall use commercially reasonable efforts to resolve the Error with an Error Correction. Selectron shall use commercially reasonable efforts to provide a workaround for the Error within forty -eight (48) hours of receiving Licensee’s report of such Error, and an Error Correction within six (6) business days of receiving Licensee’s report. Selectron shall provide Licensee with periodic reports (no less frequently than once every twelve (12) hours) on the status of the Error Correction.
3. Priority C Errors. In the event of a Priority C Error, Selectron shall, within two (2) business days of receiving Licensee’s report, commence verification of the Error. Upon verification, Selectron shall use commercially reasonable efforts to resolve the Error with an Error Correction. Selectron shall use commercially reasonable efforts to provide a workaround for the Error within six (6) business days of receiving Licensee’s report of such Error, and an Error Correction within three (3) weeks of receiving Licensee’s report.
Selectron shall provide Licensee with periodic reports on the status of the Error Corre ction.
Statement of Work
Victorville, CA
Relay
UTILITY PACK
1. Overview ...................................................................................................... 2
1.1. Revision History ................................................................................................................ 2
2. Functionality ................................................................................................. 3
2.1. The Relay Platform ........................................................................................................... 3
2.2. Utility Pack ........................................................................................................................ 3
2.3. Relay Builder..................................................................................................................... 4
2.4. Relay Outbound................................................................................................................ 4
2.5. Payment Processing ......................................................................................................... 6
2.6. Languages ......................................................................................................................... 6
3. System Integration ........................................................................................ 7
3.1. Application Database Interfaces ...................................................................................... 7
3.2. Payment Gateway Interfaces ........................................................................................... 7
4. Deployment Model ....................................................................................... 8
4.1. Hosted IVR Access ............................................................................................................ 8
5. Administrative Tasks ..................................................................................... 8
5.1. Activity Widgets ............................................................................................................... 8
5.2. Run System Reports ......................................................................................................... 9
5.3. Schedule Outbound Campaigns ..................................................................................... 10
6. Responsibilities ........................................................................................... 11
6.1. Selectron Technologies, Inc............................................................................................ 11
6.2. Victorville, CA ................................................................................................................. 13
EXHIBIT C
Statement of Work
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1. Overview
This Statement of Work (SOW) outlines the services provided by Selectron Technologies, Inc. (Selectron) to Victorville, CA (Victorville or Customer). This project will be completed in two phases.
Phase 1: Move the existing Gen4 IVR and Outbound solution from on-premise deployment to Selectron’s Managed Services environment.
Phase 2: Upgrade the Gen4 solution to the latest release point of Relay IVR, Outbound, and Builder.
The features, functionality, and services are provided through Selectron Technologies’ Relay communication platform (Relay).
1.1. Revision History
Version # Details Date
1.0 Initial Release 05/31/2024
1.1 Update: including cash-only flag
to e-checks and convenience fee
to credit card payments
8/15/2024
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2. Functionality
This section details the functionality of each application included in Relay. All functions and features are dependent upon the accessibility of Victorville’s Munis CIS application database to provide the given data to Relay.
2.1. The Relay Platform
The Customer’s solution is powered by Selectron’s Relay platform. Relay is a multi- channel, multi-department platform designed to connect Customers and government agencies, and utilities. The Relay platform uses a number of different application packs specific to the market being serviced. In addition to each application pack, the Relay channels include interactive voice response (IVR), web, outbound, call center agent assistance, and interactive texting capabilities all in a single platform.
The following sections detail the functionality that will be implemented for the Customer. Additional channels, applications, and integrations that are not specified in this SOW are not included but may be able to be added to the system under a supplemental statement of work.
2.1.1. Application Packs and Channels
The Customer’s solution includes the following application pack and channels:
• Application packs:
o Utility Pack
• Channels:
o IVR
o Outbound
2.2. Utility Pack
The solution will be configured with the Utility Pack. The Utility Pack offers the Customer’s end user with a central point of access for account management and payments. The end user will be able to enter an account number and access account data and activities based on the channel being implemented.
2.2.1. IVR Channel
The IVR Channel for the Utility Pack provides callers with an Interactive Voice Response (IVR) system for accessing account information and making payments over the phone.
Citizens can call the Utility IVR channel to hear account information and to make a payment. Citizens will access their account using an account number or other identifier as indicated below. The IVR validates this data against the Customer’s application database. Once the account is validated, the IVR will speak the service address, followed August 15, 2024 Page 4 of 14
by the current balance owed and the due date. During the kickoff phase of the implementation project, Selectron and the Customer will need to determine the exact terminology and methodology around presenting ‘current’ and ‘delinquent’ amounts due to the user. The caller will then be prompted to make a payment. If no payment is due, then the IVR will say there is currently no payment due.
The functionality of the IVR will include the following:
• Current balance owed
• Last billing date and amount (up to last 6)
• Last payment date and amount (up to last 6)
• Next payment due date
• Payment Processing – Credit Card and E-Check
Callers will also be able to transfer to an agent. If a caller requests a transfer, the IVR performs a transfer to a number specified by the Customer.
IVR service requires a local-to-customer phone number. Selectron can either use an existing number provided by customer, or obtain and provide a number if needed.
IVR Services are provided by the Call. A Call is defined as a successful completed connection. A Call can be up to 4 minutes in length, with each additional 4 minute period counted as an additional Call. Actions such as transfer that result in multiple connected circuits are counted on the per circuit basis and are measured for the duration of the connection including the time after a transfer occurs.
2.3. Relay Builder
Relay Builder allows users to create their own Interactive Voice Response (IVR) call tree within the web-based Relay Portal. Through step-by-step call flow construction, Builder guides callers to the information they need. With Builder, users can add nodes and menus for:
• Spoken information
• Document requests by fax
• Transfers to departments or representatives
• Options to funnel callers directly into specific sections of pre-existing Selectron IVR(s)
2.4. Relay Outbound
Relay Outbound provides the Customer’s staff with a multi-channel outbound communication platform capable of sending citizens voice, SMS, and email messages. Messages can be configured to include dynamic account data designed to be sent to specific recipients or can be designed as ‘general
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information’ messages without customer-specific data. This implementation includes Spanish language for Selectron-generated Outbound campaigns only.
Messaging Channels:
• Voice: Phone campaigns with options for Selectron-created notifications that utilize professional voice recording and/or Customer-generated messages created using text-to-speech technology. • SMS: Attention grabbing text message notifications that can be configured to send both dynamic customer information or general messages.
• Email: Notifications sent directly to the customer’s inbox. Can include dynamic, customer specific information or generalized messaging depending on campaign configurations.
Notification Options:
• Event-triggered notifications
These notifications are a reactive response to a specific event.
• Automated Notifications
These notifications are designed to be sent to a list of specific recipients. These notifications are created by Selectron based on the needs of the Customer using the business rules of the customer. All campaigns are run based on the schedule outlined by Customer. In addition to the customer-configured messages, Selectron will design one message template during the implementation process. This Selectron-created template will use professional voice recording for voice messages instead of text-to-speech. This project includes one Selectron-built notification to be determined between the City and Selectron.
• User-Generated Campaigns
These notifications are designed to be sent to a list of specific recipients. Outbound messaging campaigns can be designed by the Customer’s staff using Relay Portal, and use text-to-speech technology.
Relay Portal allows users to:
• Schedule one time, daily, weekly or monthly outbound campaigns • Use dynamic data variable in any campaign
• Set runtime windows and overflow rules for campaigns
2.4.1. User-Generated Notifications
The Customer can send end-user-defined notifications to citizens via phone, email, or SMS text. The Customer is responsible for defining and configuring these notifications, which can be done via the Relay Portal. Training for configuring and recording these notifications will be provided at the end of the implementation process.
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2.4.2. Smart Transfers
Allows a call recipient to request a transfer to the agency's hosted Selectron IVR in order to make a payment. Data is carried over with this transfer, allowing the user to make a payment without having to re-enter their account information.
2.5. Payment Processing
The Relay solution can be configured to accept credit card and e-check payments, allowing citizens to make payments. The payment processing engine is a PA-SSF-Verified payment system that does not retain any payment information. Users will need to enter their payment information for each transaction.
The Relay payment application interacts with the Customer’s selected payment gateway to provide payment functionality. To make a payment, users will need to authenticate and provide valid payment information. Relay validates the user’s payment information before passing it to the payment gateway. When a payment is reported as successful, Relay will post an update to the Customer’s application database in real-time (as long as an API for such an update is available).
The solution will be able to take payments from citizens via the following payment methods: Credit/debit or E-check
2.5.1. Credit Card
The interactive solution accepts Visa®, MasterCard®, Discover®, and American Express®.
Victorville can elect to accept all or a subset of these card types. Any credit card types not accepted by the Customer will not be accepted by the solution. When taking a payment, Relay verifies the credit card number and expiration date. For more security, the Customer can choose to verify the cardholder’s zip code and/or security code. All credit card transactions are sent through the designated payment gateway.
2.5.1.1 Convenience Fees
The solution will be configured to add a convenience fee to the payment amount for credit card transactions only. The fee can be a flat amount or a percentage of the payment amount. The fee must be disclosed to the payer before submitting their payment for authorization.
The agency’s required merchant service provider’s (MSP) API must support a convenience fee model. In addition, the MSP and agency negotiate the fee that is charged and collected as well as the credit card association rules associated with this model.
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2.5.2. E-Check via Cybersource
Users wishing to pay via E-Check will need to enter their bank routing number and bank account number. All E-Check transactions are sent through the designated payment gateway. The solution will also recognize customers who are flagged as “cash only” in the backend database and prevent them from making e-check payments via the IVR.
2.6. Languages
The Customer’s Relay application will be configured to support English and the following additional language(s):
• Spanish
The additional language module(s) enables the solution to support non-English-language users. Additionally, all dates, numbers, ordinals, currencies, and letters are translated voice recorded to the appropriate language.
The generated-voice prompts use a vocabulary and dialect predetermined by Selectron.
Additions and changes to the prompts to account for regional differences are subject to time and materials billing.
The Customer will be able to define a transfer destination for each language available on the IVR.
3. System Integration
Depending on the implemented features, Relay requires varying levels of integration with other database components. These are described in the following sections.
3.1. Application Database Interfaces
It is anticipated that Selectron will be integrating with the Customer’s backend application database. All data-based interactivity on the solution is reliant upon data being available via the application vendor APIs.
During the implementation phase, if necessary data are not available via the included APIs, the project will be impacted. This may affect the implementation timeframe and result in additional professional service fees.
3.2. Payment Gateway Interfaces
For payment processing, Relay will be integrating to the Customer’s selected payment gateway. The payment processing service is PCI - SFF validated. Integration to the payment gateway initiates the collection and reconciliation of the payments being gathered by the department.
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The purchase of the application does not cover the following processing fees and services:
• Transaction fees
• Merchant accounts
• Third-party payment processing services, fees, and software
4. Deployment Model
This implementation of Relay will be deployed in Selectron’s Relay Managed Services environment.
Relay Managed Services is a hosted application environment, located in Selectron’s local hosting facility. Selectron’s hosting facility is a co-located data center featuring keyed entry and individual server locks for security. With a Managed Services solution, Selectron owns all hardware and is responsible for security, ongoing maintenance, and proactive support.
4.1. Hosted IVR Access
For optimal user experience and telecom usage, it is recommended that callers access the hosted IVR by dialing directly into the hosted solution using a local 10-digit number, which Selectron will provide. If the Customer elects to have calls routed through their phone system first before connecting to the IVR, two customer telecom channels may be tied up during the duration of the entire call, and callers may experience a decrease in call quality.
5. Administrative Tasks
This section details administrative tasks that can be performed to manage Relay. All system administration for Relay is handled through the Relay Portal web application. The Customer’s administrator will be provided with user credentials for Relay Portal during the implementation process. Additional users can be created by the administrator as needed. Permissions can be assigned per-user; permissions govern the functionality available to a given user.
The Relay Portal provides administrators with a single platform for viewing system usage and health, running reports, and configuring various system settings. The Relay Portal is supported on Chrome, Firefox, Microsoft Edge, and Safari.
5.1. Activity Widgets
The Customer’s solution is equipped with the following dashboard widgets, allowing for the easy tracking of daily activity and statistics.
Activity
o Builder Activity – Tracks and reports IVR activity trends, displayed through a line graph
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o Call Activity – Tracks and reports call activity with line graph o IVR Usage – Display call statistics, including peak (concurrent) call activity Payments
o Payments Widget – Tracks and reports payment activity with displayed numbers Support System
o System Status Widget – Tracks status of the system through Ping and Database displays
o Today Widget – Displays date, holiday, office hours, and greeting information Outbound
o Outbound: Completed Summary – Summarizes and displays data of completed outbound campaigns
o Outbound: Running Now – Tracks, reports, and displays current outbound data through a percentage chart
o Outbound: Up Next – Tracks, report and displays upcoming outbound campaign data through a time countdown
5.2. Run System Reports
Administrators will be able to run system reports via the Relay Portal.
5.2.1. Reports Center
• Running / Saving Reports - Depending on your permissions, the Reports Center has a large number of system, activity, and usage reports that you can run. Saving a Report - To save a report (including how you have set the filters), click the desired file type you want to download, either PDF or Excel. The Portal will automatically generate the file and allow you to download it.
The solution will also be equipped to provide the following reporting functions:
5.2.1.1 Activity Reports
• Call Activity Report - This report provides a graph of different activity types performed by callers on the IVR over a relative span of time (hour over hour, day over day, month over month, and more).
• Call Activity Detail Report - Use this report to find a specific call or group of calls. Search by date/time, the caller’s phone number, or other identifying information to find calls of interest.
• Call Statistics Report - This report provides aggregate facts and statistics about calls into the IVR including average call lengths, longest calls, and whether or not actions were completed by callers.
• Email Activity Report - This report provides a list of all emails sent on a specified date.
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• IVR Usage Report - This report provides data on peak (concurrent) calls and average calls, hour by hour, over a selected date range. • Multiple Calls Report - This report provides insight on how many times incoming phone numbers have called the IVR within a specified range of time.
• System Status Report - See a log of system events, including reboots and changes in the system's overall status or health.
Payment Reports
• Payment Detail Report - This report shows the details of all payments attempted and approved through available channels (such as IVR and web) for a selected time range and/or account number.
• Payment Summary Report - This report shows the summary of payments attempted and approved through available channels (such as IVR and web) for a selected time range.
• Payment by Day Report - This report shows the cumulative transactions by type (Credit Card or Check) for each day of the month for a selected time range.
• Payment Response Time Summary Report - This report displays the average response time to the payment gateway for all payment attempts, by channel.
Relay Outbound Reports
• Outbound Campaign Detail Report – This report shows the detail of Outbound campaign messages delivered for a specific Campaign Type. • Outbound Campaign Summary Report – This report shows the summary of Outbound campaign messages delivered for a specific Campaign Type. • Outbound Import Errors Report - This report shows all recipients that were not contacted due to incomplete data or errors.
5.3. Schedule Outbound Campaigns
Using the Relay Portal, administrators can create, edit, and review outbound campaigns made using Relay Outbound. Each instance of an outbound campaign must be scheduled individually. This includes selecting the type of notification, the date/time of delivery, and (for user-generated notifications) the configuration of the message.
The administrator will also need to upload a contact list in .csv format for the notification. The exact formatting of the .csv file will vary depending on the notification being scheduled. Selectron will provide the Customer with example .csv files for the configured notifications included in this project, as well as assistance in generating the outbound call list.
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6. Responsibilities
6.1. Selectron Technologies, Inc.
This section outlines Selectron Technologies’ responsibilities regarding service initiation and operation.
6.1.1. Provide Project Management
Selectron Technologies assigns a Project Manager to the service implementation. The Project Manager is the Customer’s primary contact at Selectron Technologies and coordinates all necessary communication and resources.
6.1.2. Provide Documentation
The Project Manger provides the Customer with the documents to help facilitate the service implementation process. Some or all of these may be provided depending on the scope of the project.
• Implementation Questionnaire- gathers critical information needed to set up and initiate the service. This includes information on the toll-free numbers, call volume, APIs, account validation information, and the types of payments being gathered.
• Remote Access Questionnaire- details information that Selectron Technologies needs to remotely access the Customer’s network and application database prior to system initiation, allowing for complete system testing.
• Implementation Timetable- details project schedule and all project milestones.
• Quality Assurance Test Plan- assists the Customer in determining that the interactive solution is functioning as specified in the Contract. • Service Acceptance Sign-off Form- indicates that the Customer has verified service functionality.
6.1.3. Develop Channel Design
The Project Manager works with the Customer to develop and complete the following portions of channel design:
• IVR call flow design
• Outbound messaging configuration
Software development can begin once these design elements are completed and approved by the Customer.
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6.1.4. Perform Quality Assurance Testing
Selectron Technologies thoroughly tests all applications and integration points prior to initiation, ensuring system functionality. This includes data read from and written to the application database and the general ability for a customer to successfully access live data and complete a transaction.
6.1.5. Provide Installation and Administrative Training Selectron will provide remote training for the Relay solution. All installation is handled by Selectron technical staff at our remote hosting facility.
6.1.6. Provide Marketing Materials
Selectron Technologies provides marketing collateral that the Customer can use to promote the interactive solution to citizens. Marketing collateral includes a poster, tri- fold brochure, and business card; standard templates for each item are used. Collateral is provided to the Customer in PDF format (original Adobe InDesign files are provided upon request).
Marketing collateral will be provided for each department included in this project.
Selectron Technologies’ Project Manager will assist in gathering the correct information to be displayed on the marketing collateral. Information displayed includes the following:
• IVR phone number(s)
• Department logo (preferably in EPS format)
• Department address
• A description of functionality
• Additional contact/informational phone numbers
• Samples: where to find account/ permit/ case numbers, etc.
Any changes to the collateral that do not include the items listed above (e.g., design changes to the template) are billed on a time and materials basis. Any changes to the marketing materials after final delivery are also billed on a time and materials basis.
6.1.7. Interface Upgrades
After service initiation, the Customer’s database application may release new updates to their application or its interface. Upgrading the Relay interface to be compatible with any of the Customer’s application databases (or other application database software) may require professional services outside the scope of this service.
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6.2. Victorville, CA
This section outlines the Customer’s service implementation and maintenance requirements and responsibilities.
6.2.1. Return Questionnaires and Information
Selectron Technologies’ Project Manager provides the Customer with an implementation questionnaire. The implementation questionnaire must be returned prior to developing the call flow design and the implementation timetable.
6.2.2. Provide Customer Specific Information
The following information should be supplied to Selectron Technologies, in conjunction with the Implementation Questionnaire, to help create a precisely integrated product.
For further clarification on the format and detail of the following data, refer to the Implementation Questionnaire or contact your Selectron Technologies’ Project Manager.
• Street names
• Observed holidays
• Extensions used for transfer functions
• Utility account numbering scheme
• Validations used for receiving payment on a utility bill
6.2.3. Approve Channel Configuration
The Customer is responsible for approving the application design developed by Selectron Technologies’ Project Manager. This includes reviewing:
• IVR call flow design
• Outbound messaging configuration
• Builder call flow design
Once the channel design(s) have been approved, software development begins.
6.2.4. Provide Remote Network Access to Application Database(s) To fully test the interactive solution, Selectron Technologies requires access to the Customer’s application database(s) prior to installation. The Customer will help facilitate communication between Selectron and the database vendor.
6.2.5. Provide System Access
Selectron Technologies requires access to the Customer’s network and database/ system. Changing or deleting access accounts could disrupt service for the interactive solution and/or Selectron Technologies’ ability to provide timely support. Please notify August 15, 2024 Page 14 of 14
Selectron Technologies immediately if the accounts for the Application Database, the payment gateway, or the network are modified. The Customer is responsible for providing Selectron with appropriate application database and payment gateway network access as defined in the System Integration section.
6.2.6. Confirm Service Functionality
The Customer has 30 calendar days after service initiation to verify the functionality of the interactive solutions. Within the 30-day system acceptance period, the Customer should test system functionality using the provided Quality Assurance Test Plan.
Additionally, the System Acceptance Sign-off form must be sent to Selectron Technologies’ Project Manager within this period.
6.2.7. Contact Customer Support
Anytime the Customer requests a significant change to their Selectron interactive solution, an authorized contact from the agency must provide acknowledgment to Selectron’s Customer Support Department. A significant change is a modification that will A) change system behavior, B) allow users to change the system, or C) allow access to protected data.
EXHIBIT D
SELECTRON TECHNOLOGIES, INC.
END USER LICENSE AGREEMENT
This End User License Agreement (this “ EULA”) is part of a Master Services and Hosting Agreement (the “Master Agreement”) between Selectron Technologies, Inc., an Oregon corporation (“ Selectron”, “we”, “our”, or “us”) and the person or entity identified in the Master Agreement as the Licensee purchasing Services from us (“Licensee”). This EULA governs use by Licensee and all natural persons t o whom Licensee provides access to the Licensed Software (each, an “ Authorized User ”). In this EULA, unless the context clearly indicates otherwise, all references to “you,” or “your” means both the Licensee and the Authorized User. All capitalized terms used but not defined in this EULA have the meanings given to them in the Master Agreement.
SELECTRON PROVIDES THE LICENSED SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. IF YO U DO NOT AGREE TO THE
TERMS OF THIS EULA, SELECTRON WILL NOT AND DOES NOT LICENSE THE LICENSED SOFTWARE TO YOU, AND YOU MUST NOT USE OR ACCESS THE SOFTWARE.
1. License Grant . Subject to your strict compliance with this EULA, Selectron hereby grants you a non - exclusive, non -transferable, non -sublicensable, limited license to use the Licensed Software solely in accordance with the Documentation, the Master Agreement, and this EU LA, for Licensee's internal business purposes. The foregoing license will terminate immediately on the earlier to occur of:
(a) the expiration or earlier termination of the Master Agreement between Selectron and Licensee; or
(b) your ceasing to be authorized by L icensee to use the Licensed Software for any or no reason.
2. Scope of License. Subject to and conditioned upon Licensee's timely payment of the fees set forth in the Master Agreement and your strict compliance with all terms and conditions set forth in thi s EULA and the Master Agreement, you have a limited right and license to:
(a) Use and access the Licensed Software in accordance with this EULA and the Documentation, solely for Licensee's internal business purposes. (b) Download, display, and use the Documentatio n, solely in support of Licensee’s use and access of the Licensed Software in accordance herewith. (c) Download, display, copy, use, and create derivative works of reports and structured data generated using the Licensed Software, solely for Licensee’s internal business purposes.
3. Copies. All copies of the Licensed Software and Documentation made by you:
(a) Will be the exclusive property of Selectron;
(b) Will be subject to the terms and conditions of the Master Agreement and this EULA; and (c) Must include all trade mark, copyright, patent and other intellectual property rights notices contained in the original.
4. Use Restrictions. You shall not, directly or indirectly:
(a) Use the Licensed Software beyond the scope of the license granted in the Master Agreement and Section 2 of this EULA;
(b) Copy all or any portion of the Licensed Software, except as expressly permitted in Section 2 of this EULA;
(c) Decompile, disassemble, decode, or otherwise reverse engineer the Licensed S oftware, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Licensed Software or any portion thereof; (d) Modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Licensed Software or any part thereof; (e) Provide any other person, including any subcontractor, independent contractor, affiliate, service provider, or other employee of Licensee, with access to or use of the Licensed Software, except as expressly permitted by the Master Agreement or this EULA;
(f) Distribute, disclose, market, rent, lease, lend, sell, timeshare, sublicense, assign, distribute, pledge, publish, transfer or otherwise make available the Licensed Software or any features or functionality of the Licensed Software, to any third party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service, except as expressly permitted by the Master Agreement or this EULA; (g) Use the Licensed Software for the commercial or other benefit of a third party; (h) Permit the Licensed Software to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise used for processing data or other information on behalf of any third party; (i) Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices, legends, symbols, or labels appearing on or in the Licensed Software, including any copy thereof;
(j) Perform, or release the results of, benchmark tests or other comparisons of the Licensed Software with other software or materials;
(k) Incorporate the Licensed Software or any portion thereof into any other materials, products, or services, except as expressly permitted by the Master Agreement or this EULA; (l) Use the Licensed Software for any purpose other than in accordance with the terms and conditions of this EULA and the Master Agreement.
(m) Use the Licensed Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including (i) power generation systems; (ii) aircraft navigation or communication systems, air traffic contro l systems or any other transport management systems; (iii) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; (iv) military or aerospace applications , weapons systems or environments;
(n) Use the Licensee Data or the Licensed Software in any way that is fraudulent, misleading, or in violation of any applicable laws or regulations (including federal, state, local, and international laws and regulations), including but not limited to export or import control laws, information privacy laws, and laws governing the transmission of commercial electronic messages; or
(o) Use the Licensed Software for purposes of competitive analysis of the Licensed Software, the development of a competing software product or service or any other purpose that is to Selectron's commercial disadvantage.
5. Collection and Use of Information . Selectron may, directly or indirectly through the services of others, including by automated means and by means of providing maintenance and support services, collect and store information regarding your use of the Licensed Software , its performance, the equipment through which the Licensed Software accessed and used, such as dates and times of use by e ach Authorized User, activities conducted using the Licensed Software , the type of web browser used to access the Licensed Software, the operating system/platform you are using, your IP address, and your CPU speed. You agree that the Selectron may use suc h information for any purpose related to the Licensed Software , including but not limited to improving the performance of the Licensed Software , developing Updates, and verifying compliance with the terms of this Agreement and enforcing Selectron's rights, including all intellectual property rights in and to the Licensed Software.
6. Intellectual Property Rights . You acknowledge that the Licensed Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Licensed Software under this EULA or the Master Agreement, or any other rights to the Licensed Software other than to use the Licensed Software in accordance with the license granted under this EULA and the Master Agreement, subject to all terms, conditions and restrictions contained therein and herein. Selectron reserves and shall retain its entire right, title and interest in and to the Licensed Software and all intellectual property rights arising out of or relating to the Licensed Software, subject to the licenses expressly granted in the Master Agreement and this EULA. You shall use commercially reasonable efforts to safeguard all Licensed Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
7. Login Credentials. You, the Authorized User, shall not share or disclose your log -in credentials with or to any other individual or entity, even if such other individual is also an Authorized User. If you discover or suspect that log-in credentials of any Authorized User have been accessed or used by anyone other than the individual to whom such log-in credentials were originally granted, you will promptly notify Selectron, and Selectron shall promptly reset or provide Licensee with a means of resetting the password associated with such log-in credentials.
8. Export Regulation. The Licensed Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, r e-export or release the Licensed Software to, or make the Licensed Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Licensed Software available outside the US.
9. Governing Law. This EULA shall be governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction) that w ould cause the application of laws of any jurisdiction other than those of the State of Oregon.