2000 - IDC Financial - Financial Resource Management, Budget, Cash Receipts SoftwareIN MATION DEVELOPMENT CONSU~NTS, INC
PPLICATION SERVICE AGREEME ASA)
This APPLICATION SERVICE AGREEMENT ("Agreement") is made
and entered into this _ of Moy,._2007 by and between
INFORMATION DEVELOPMENT CONSULTANTS, INC. (iDC) an
Illinois Corporation with an address at 6 West Hubbard Street,
Suite 700, Chicago IL 60610 and
The City of Rosemead, California (Customer)
with its principal place of business at:
8838 East Valley Road
Rosemead, CA 91770
the Scheduled Maintenance Times during which the Outage is
planned. In addition, iDC reserves the right to perform any
immediately required maintenance work outside of the Scheduled
Maintenance Times with prior notice to Customer.
~14 tCustomec:5upport Services..-:-:
iDC shall provide Customer with standard support services as
described in Exhibit B attached hereto. Customer will identify two
points of contact to manage the support interaction between iDC
and Customer. These individuals must have full security
authorizations in the use of the software to permit complete
support and be fully trained in the use of the software.
WHEREAS, iDC provides 4gov® financial resource management
and citizen services ("Services"), and selected other third party
software products, from its hosted site ("Site") on the World Wide
Web portion of the Internet ("Web"); and
WHEREAS, Customer desires to engage iDC, and iDC desires to be
engaged by Customer, to provide the Services on the terms and
subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set
forth herein, iDC and Customer hereby agree as follows:
1. iDC Undertaking -
1.1 - iDC Services
iDC Agrees to provide the Services pursuant to the terms and
conditions of this Agreement and the Software Hosting and
Support Schedule attached hereto as Exhibit A.
1.2- Availability of the Services
The Services shall be accessible to Customer via the Site twenty-
four hours per day, seven days per week, except for scheduled
maintenance and required repairs, and except for any loss or
interruption of Services due to causes beyond the reasonable
control of iDC. In the event of a loss or interruption of Services
exceeding a total of four hours in any week, other than as a result
of the maintenance activities described in Section 1.4, below, a
pro rata portion of Fees (as hereinafter defined) for the period of
the downtime and the applicable monthly'invoice will be adjusted
accordingly. For the purposes of this Agreement, a week shall be
considered to run from Sunday to Saturday. Customer's Internet
server shall be--deemed to be not available for purposes of this
Section 1.3, if iDC's standard hardware, software, or operating
system is functioning in a manner that prevents http, ftp, or
access to the Internet server or the Software ("Unavailability").
For purposes of this Section 1.3, Unavailability shall not be
deemed to occur hereunder as a result of Customer action or
inaction, including, but not limited to, Customer utilization or
Customer owned, non-standard, or unsupported software
installed by iDC at the Customer's request.
1.3 Maintenance .
iDC designates time periods (;-Scheduled Maintenance Times")
during which it may limit or suspend the availability of the
hardware and/or software involved in providing its Services and
products (an "Outage") to perform necessary maintenance or
upgrades or selected backups of the data. Scheduled
Maintenance Times currently are each Tuesday and Thursday
between the hours of 2 a.m. and 6 a.m. Central Standard Times
(CST) and the third Sunday of each month between the hours of
12 a.m. and 8 a.m. CST. If planned maintenance has the
possibility of making the server or servers, as the case may be,
utilized by Customer inaccessible to the Internet during a
Scheduled Maintenance Time, iDC will provide not less than
twenty-four hours' electronic mail or other notice to Customer of
Technical Support for Hardware is available 24 hours a day at the
telephone number listed in Appendix A. This is for access
problems as they relate to the Internet Usage of the !DC site.
Customer Support is available 5 days per week and 8 hours per
day through an e-mail support line, as well as a telephone
support line. This is for questions related to the usage of the
software products. The coverage extends from 8:00 a.m. to 5:00
p.m. CST, with iDC response within two business hours. Holidays
are exempted from coverage.
1.5 Customer:'. Data I'.
Customer's data for the applications as shown on Exhibit A will be
maintained on server(s) at iDC's Site, and iDC will provide these
standard backup services: Daily backup of changed Customer
data files (the most recent four copies of a changed data file are
kept, and with each subsequent change to a data file, the oldest
copy is discarded); Storage of backup tapes on Site for a period
of 30 days; and Up to three data file restoration operations per
month (additional data file restore operations are available for an
additional charge). At the option of the Customer, and for an
additional fee, iDC shall provide the Customer with a back-up
copy of any Customer data maintained at iDC's Site, provided the
Customer has paid all current and past due fees.
2 Gustomer,:Undertakings
2.1. Fees:Payable toiDC
In consideration of the obligations undertaken by iDC hereunder,
Customer shall pay to iDC the fees for the Initial Installation
Services according to the Price set forth in Exhibit A and the Total
Monthly Recurring Charges ("Service Fees") for Application
Software, and Support Services, as described in Exhibit A.
22 :Payment Terms -
iDC will invoice Customer and Customer will pay for the Initial
Installation as such services are rendered and products are
ordered by iDC on Customer's behalf. iDC will invoice Customer
and Customer will pay for the first month's service fees on the
first day of Service, which shall be on or about
Thereafter, iDC will invoice customer on or before the 15" day of
the month for the next month's use as well as adjustments for
any additions or custom work performed during the prior month.
Payment of all fees will be by check due on the 1" day of the
month, or by automatic debit of the Customer's designed U.S.
bank account in U.S. dollars on a date chosen by the customer,
which shall be on or before the 5t6 day of the month and shall be
listed in Exhibit A.
All past due amounts are subject to a late charge equal to the.
lower of the highest lawful rate or 1.5% per month. In addition,
the parties hereby agree that failure of Customer to fully pay any
Fees within 20 days after the applicable due date may be deemed
a material breach of this Agreement, justifying suspension of the
performance of Services by iDC, and will be sufficient cause for
immediate termination of this Agreement by iDC. Any such
r
5uspenslon does not relieve Customer paying past due Fees,
plus interest, and in the event of collection enforcement,
Customer shall be liable for any costs associated with such
collection, including, without limitation, legal costs, attorneys'
fees, court costs and collection agency fees.
2.3 . Taxes
Customer shall pay or reimburse iDC for all sales, use, service,
transfer, privilege, excise, and all other taxes and all duties,
whether international, national, state, or local, however
designated, which are levied or imposed by reason of the
performance by OC under this Agreement; excluding, however,
(a) income tax on profits which may be levied against OC, and
(b) taxes for which Customer provides iDC with a valid tax
exemption certificate.
3. Restrictions on Use
3.1 Terms of Use Customer agrees to use the Software and Services only for
Customer's own business. Customer will be responsible for
assigning, maintaining, and monitoring the use and password
authorization of the software and data files-to staff, elected
officials, auditors, and other such authorized contractors.
Customer shall not (i) permit any other agencies, affiliated
entities or third parties, other than contractors or subcontractors
for which client licenses have been paid, to use the Software or
Services, (ii) use the Software or Services for any other party's
financial management resource services, or (iii) use the Software
or Services in the operation of a service bureau without the
express written permission of iDC.
3.1.1 Modifications,ReverseFEngineering: -
Customer agrees that only OC shall have the right to change,
maintain, delete, enhance or otherwise modify the Software.
Customer shall not disassemble, decompile or reverse-engineer
the Software's computer programs.
3.2 Specific. Prohibitions...!
Without limitation, the Customer agrees that it and its users of
the system will not use the Services or the hosted Site to:
a) upload, store, post, email or otherwise transmit,
distribute, publish or disseminate any information that is
-unlawful, harmful, threatening, abusive, harassing, tortuous,
defamatory, vulgar, obscene, or libelous, or promotes such
activity;
_b), upload, store, post, link to, email or otherwise transmit,.
distribute, publish or disseminate any site information, content or
-_other information or material that infringes any patent,
trademark, trade secret, copyright or other proprietary rights of
any party or otherwise violates the legal rights (such as rights of
privacy and publicity) of others, violates any contractual or
fiduciary relationships or is otherwise objectionable;
C) upload, store, post, link to, email or otherwise transmit,
distribute, publish or disseminate any material that contains
software viruses, trojan horses, worms, time bombs, cancelbots
or any other computer code, files or programs designed to
interrupt, destroy or limit the functionality of any computer
software or hardware or telecommunications equipment or
circumvent any "copy-protected" devices, or any other harmful or
disruptive program, or any cracks, hacks, associated utilities or
other privacy related-information.
d) Violate (intentionally or unintentionally) any applicable
local, state, national or international law or regulation, including,
but not limited to, laws regarding the transmission through the
Services of technical data or software exported from the United
States and/or the country (ies) in which the Customer and/or its
users reside, and all local laws and regulations regarding online
conduct and acceptable content.
v:
CJ
4. :Term: and-Termination
4.1 Term
This Agreement shall commence as of the date first written above
and shall continue for a period of three (3) Years from that date,
unless earlier terminated as provided below. After the initial four
year period, this Agreement shall renew automatically for
successive one-year terms, unless otherwise agreed by both
parties.
4.2 Termination.-..
.insolvency
4:2.1 : - :
Either party may terminate this Agreement immediately upon
delivery of written notice in the event that the other party shall be
unable to pay its liabilities when due, or shall make any
assignment for the benefit or creditors, or shall file a petition
under any federal or state bankruptcy statute or a voluntary
petition in bankruptcy, or an involuntary petition shall be filed and
not discharged within 60 days after such filing, or shall be
adjudicated bankrupt or insolvent, or if any receiver shall be
appointed for its business or property, or any trustee in
bankruptcy or insolvency shall be appointed under any law of the
United States or the several states.
4.2.2 Breach .
If either party is alleged to be in material breach of any provision
of this Agreement, that party shall have 60 days from receipt of
specific notice to cure the indicated breach. If the breach is not
cured within the 60-day period, the non-breaching party will have
the option, but not the obligation, to terminate the Agreement.
4 2 3 Termination, for Convenience::::
The Customer reserves the right to terminate this agreement for
its sole convenience. In the event of such termination, Customer
shall pay to iDC the amounts set forth in paragraph 4.3.
4.3. Effect of Termination ._:5.
Upon any termination or expiration of this Agreement, Customer
shall pay all unpaid and outstanding Fees through the effective
date of termination or expiration. In the event Customer
terminates the monthly service in whole or in part prior to the
expiration of the 36 month term plan (except as otherwise
permitted in this agreement), Customer will be liable for any early
termination charges imposed by the carrier(s) of any Dedicated
Communications Services. If Customer terminates for con-
venience, Customer shall pay OC an additional amount equal to
six times the then current monthly service fee. The termination of
this Agreement shall not prejudice the right of OC to recover any
Fees or other sums otherwise due it at the time of termination or
cancellation.
4.4. COStomer:Data
Upon termination of the agreement, Customer agrees that OC
may remove from its servers all of the Customer's data, site
information, registration data and personal information, provided
that iDC shall first give Customer at least thirty (30) days' notice
of its intent to remove any such data. Upon termination of the
Agreement Customer may receive a copy of the Customer data
through the payment of the then-current data export fee.
5.. 'Proprietary; Information
5..1 Proprietary.giohts'.of.COstonier
As between Customer and OC, Customer's data shall remain the
sole and exclusive property of Customer. iDC further
acknowledges and agrees that any data and materials supplied by
Customer are confidential and proprietary trade secrets of
Page 2 Contract Number - G1040
Customer protected by law, and of s ntial value to Customer,
and their use and disclosure must be carefully and continuously
controlled by iDC. iDC shall notify Customer immediately of the
unauthorized use or knowledge of any item supplied to iDC
pursuant to this Agreement.
5.2' - Proprietary lRights of DC.:
Customer further acknowledges and agrees that (a) any data and
materials supplied by iDC are confidential and proprietary trade
secrets of iDC protected by law, and of substantial value to iDC,
and their use and disclosure must be carefully and continuously
controlled by Customer, and (b) the Software is protected by the
Copyright Laws of the United States. Customer shall notify iDC
immediately of the unauthorized use or knowledge of any item
supplied to Customer pursuant to this Agreement. Customer
agrees not to challenge the rights of iDC in and to such data and
materials, including without limitation, the copyrights in the
Software. In the event Customer threatens to breach any of the
provisions of this paragraph, iDC shall have the right, in addition
to such other remedies that may be available to them, to
injunctive relief, without posting bond, enjoining such actions or
attempts, it being acknowledged that iDC would suffer irreparable
injuries and that legal remedies are inadequate. The provisions of
the paragraph shall survive the termination of this Agreement.
6. Warranties.
6~1 Warranties:of:iDC
6.1.1 Workmanship
iDC represents and warrants that (i) the Software and Services
shall perform substantially in accordance with the current
documentation provided by iDC, as amended from time to time
and (ii) the Software and Services will not infringe any third-party
proprietary rights. In the event of any breach of the foregoing
warranty, iDC shall, as the Customer's sole and exclusive remedy,
use commercially reasonable efforts to correct any problems
specifically identified by Customer in writing.
6.1.2. Limitation Iof!Warranties
THE FOREGOING ARE THE ONLY WARRANTIES MADE BY iDC, and
0C SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL
OTHER WARRANTIES TO CUSTOMER, OR OTHER THIRD PARTY,
EXPRESS OR IMPLIED, INCLUDING, WITH LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. NEITHER iDC NOR ANY OF ITS
AFFILIATES OR AGENTS MAKES ANY WARRANTY THAT ACCESS
TO THE SERVICES WILL BE UNINTERRUPTED, SECURE,
COMPLETE, ACCURATE OR ERROR-FREE, NOR DOES iDC MAKE
ANY WARRANTY AS TO-THE LIFE OF ANY URL GENERATED OR
PUBLISHED-By iDC. CERTAIN SOFTWARE USED BY END-USERS
MAY NOT BE CAPABLE OF SUPPORTING CERTAIN iDC FEATURES.
_-6C SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS
RELATING TO ANY END-USER'S ABILITY TO ACCESS THE WEB
SITE PROPERLY OR COMPLETELY.
-6.1.3 Limitation of : Liability „
The parties acknowledge that the limitations set forth in this
Section 6.1.3 are integral to the amount of fees levied in
connection with Agreement, and that, were iDC to assume any
further liability other than as set forth herein, such fees would of
necessity be set substantially higher. IT IS UNDERSTOOD AND
AGREED THAT iDC SHALL HAVE NO LIABILITY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING LOSS OF PROFIT, LOSS OF USE OF THE SERVICES,
COSTS OF SUBSTITUTE SERVICES, OR DOWNTIME COSTS)
SUFFERED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF !DC
HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. NOT WITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, THE ENTIRE LIABILITY OF iDC FOR DAMAGES
FOR ANY CAUSE WHASOEVER, AND REGARDLESS OF THE FORM
OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID BY
CUSTOMER TO4 IN THE ONE-YEAR PERIOD PRIOR TO THE
EVENT GIVING R SE TO SUCH DAMAGES.
6 2 ::Customer's Representations. Warranties and
Indemnity - -
6.2.1 Representations and.:Warranties:
Customer covenants, represents and warrants that all of
customer's software and code used to access the Services do not,
and will not during the term of this Agreement, be in violation of
any software license agreement which Customer has entered with
iDC or any third party. No third party software used by Customer
to access the services contains any feature which would in any
way impair the operation of (i) the Services, or (ii) the software
or hardware of any other user using the Services, in each
instance including, without limitation, any form of virus, a Trojan
horse, worm, or other software routine or hardware component
which may disable, erase or otherwise harm software, hardware,
or data.
6 2 2'Indemnificationby. Customer
Customer shall be liable for, and shall fully indemnify and hold
iDC harmless against, any loss, liability, cost, expense (including
attorneys' fees and expenses) or damages arising from any
action, inaction, breach or failure to perform under this
Agreement by Customer, or by the officers, employees, elected
officials, agents, representatives, consultants, clients or
customers of customer. This indemnification obligation shall
survive the termination of this Agreement.
7 (:General _ :
7X:...... : :E.........xp
ort Control Rest[ictions .-Software available on the Site is subject to United States export
controls. No software from the Site may be downloaded or
otherwise exported or re-exported (I) into (or to a national or
resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria, or
any other country to which the United States has embargoed
goods, or (li) to anyone on the U.S. Treasury Department's list of
Specially Designated National or the U. S. Commerce
Department's Table of Denial Orders. By using the Services or
the Software, Customer 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.
7.2._1:.:.. .Third-Pa rty~Materials:and:Web Site Links
The site contains references and links to third party web sites,
which are not under the control of iDC. iDC makes no
representations whatsoever about any other web site to which
Customer may have access through the Site, including without
limitation any site whose services may be described or offered on
the Site.
7.3
~Assrgnment":~"'_
Customer shall not assign, grant a security interest in, or transfer
this Agreement or the Services without the express prior written
consent of 0C in each instance. "
I* Notices
All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be
effective when . delivered personally, when transmitted by
facsimile or electronic mail to the address provided by the
receiving party, or by certified mail, return receipt requested,
addressed to the other party at their respective addresses set
forth on the first page hereof, unless by notice a different address
shall have been designated for giving notice hereunder.
7.5 Force Majeure -
Neither party shall be liable for any delay or failure to perform its
obligation under this Agreement if prevented from doing so by a
cause or causes beyond its reasonable control. Without limiting
Page 3 Contract Number - G1040
the geherality of the foregoing, suchoes include acts of God,
the public enemy, fires, floods, storms, hurricanes, earthquakes,
riots, strikes, blackouts, wars or war operation, restraints of
government, utility or communications failures, or other causes
which could not with reasonable diligence be controlled or
prevented by the party.
7.6. Amendments,. Waivers.
This Agreement may be amended from time to time only by
written agreement of the parties. No term or provision of this
Agreement may be waived or modified unless such waiver or
modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced. No failure
on the part of any party to exercise and no delay in exercising,
any right, power, or remedy under this Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right under this Agreement preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided
in this Agreement are cumulative and not exclusive of any
remedies provided by law.
7.7 Severability If any provision of this Agreement is held by final judgment of a
court of competent jurisdiction to be invalid illegal or
unenforceable, such invalid, illegal or unenforceable provision
shall be severed from the remainder of this Agreement, and the
remainder of this Agreement shall be enforced.
7.8 Governing-Law ' - - - This Agreement has been negotiated, executed and
delivered at and shall be deemed to have been made in
Illinois. This Agreement shall be governed by and
construed in accordance with the domestic laws of the
State of Illinois without giving effect to any choice or
conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the
application ot! laws of any jurisdiction other than the
State of Illinois.
7.9 Entire. Agreement
This Agreement, including the exhibits attached hereto, if any,
together with any duly executed Software License Agreements in
force between Customer and iDC, contains the entire agreement
of the parties with respect to the subject matter of this
Agreement, and supersedes all prior agreements between them
whether oral or written of any nature whatsoever with respect to
the subject matter hereof. This agreement is binding upon the
parties hereto, their successors and permitted assigns. No
amendment, alteration, or modification of this Agreement shall be
valid unless in each instance such amendment, alteration, or
modification is expressed in a written instrument duly executed
by the parties.
7.10 Headings, Construction
The section titles in this Agreement are for convenience only and
shall have no effect on the interpretation of any part or provision
regardless of the title heading under which the part or provision is
located. Whenever the context of this Agreement requires, the
gender of all words herein shall include the masculine, feminine,
and neuter, and the number of all words herein shall include the
singular and plural. All references to section numbers in this
Agreement shall be references to sections in this Agreement,
unless otherwise specifically indicated.
7.11 -Counterparts
This Agreement may be executed in any number of counterparts
and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall
constitute but one and the same instrument. A telecopy facsimile
of an executed counterpart of this Agreement shall be sufficient to
evidence the binding agreement of each party to the terms
hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on their behalf by their duly
authorized officers as of the date first above set forth.
The City of Rosemead,; California
Jas
nsultants, Inc.
Vf
Page 4 Contract Number - G1040
Exhibit A
Installation, Training, Software Hosting and Support Schedule
4gov.com iDC Application Software
Initial Installation :Purchase Price _ Month ly:Fee
Will use existing Client.Firewall and TS. No Charge
IBM Installation and connection No Charge
.
Application Hosting.
4gov
Web Manager 10 Users
Print Manager One,. required for each Customer Lan
5 gig disk storage forliTachment data
Cyberquery Report Writer no[ included
Page5 Contract Number-G1040