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Selectron
TECHNOLOGIES, INC,
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 the City of San Rafael, 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 grant 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 individual, 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" means 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 confidential 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 programs 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 between 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 Number,
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, and 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, deliverables, 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 Authorized 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, personally -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 and 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 failure, 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 teriod, 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. Licensee 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) any
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 suspects 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 associated 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 whether 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 and 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 reasonable 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 Increases. 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), Selectron
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 terminate 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.
S. Proprietary Rights
As between Selectron 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, or 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 party'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 parties 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 information 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 Licensed 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 without 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, and 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 additional 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 SOFTWARE
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 INFORMATION 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 exclusive 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 ability 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 8.5.5 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 SERVICES, 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, COURSE 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
8.55 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 Software 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 Security. 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 privacy 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 Selectron'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 Security. 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, ControllT, 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 method 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 specific 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 exceeding 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, regulations 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 TM, Selectron's proprietary payment application,
is and shall remain compliant 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 confirmed 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 Incident 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 transfer 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, environment, 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 notices 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 States 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 Agreement 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 warranty, 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' activities 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 attorney'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 Licensee 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 liability 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 any 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 the 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 hold 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 attorneys 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 claim 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 establishes
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 participate 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 TOTHIS 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 purpose 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 actually 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 obligations 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 remedies 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 Agreement 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 obligations 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 Licensee 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 Software 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 either 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 termination 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 Warranties;
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 permitted 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 provisions. 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 Multnomah 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 delay 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 particular 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 the 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 group 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 therefor 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 concerning 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
66`h 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, or 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. Treasury 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 more 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 by
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 parties
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.
SELECTRarECHNOLWIES, INC.
Nt'
By: L�
Sig ature
Name: Todd A. Johnston
Title: President
Date: 1�-, l /Z,� j 1 ( 4
Address: 12323 SW 661h Avenue
Portland, OR 97223
LICENSEE
By: d",
Signature
Name: �� Yom- At I I ill 4,
Title: iCl -
Date: �I I� 8
Address:
EXHIBIT A
Scope of Work
San Rafael
MANAGED SERVICES QUOTE
W5408C
6/28/2018
Quote is Valid for 90 Days
SYSTEM SETUP COSTS $27,500
ANNUAL MANAGED SERVICE FEE $11,700
ANNUAL CALL FEES $7,500
Annual Calls Included 15,000
Cost Per Call Over Included $0.60
*Pricing above assumes a 3 year contract
Yearly Investment Rollup
System Setup Cost $27,500 - -
Managed Service Fee $11,700 $12,285 $12,895
Annual Call Fees $7,500 $7,500 $7,500
YEARLY TOTAL $46,700 $19,785 $20,395
Total Investment $86,880
MANAGED SERVICES APPLICATION SCOPE & ASSUMPTIONS
• Channels:
- IVR
• Functionality:
o Relay Permit Pack with IVR
• Application Database Integration: TRAKiT
Integration to TRAKiT requires appropriate ports enabled within the City of San Rafael's network
and VPN connectivity, as determined is necessary during the system implementation.
• Number of IVR Ports: 4
• Telephone Number: 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.
• Call Definition: 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.
Required Items Not Included with Relay
Required Host Interface (Please Contact Superion to purchase, if applicable)
Host interface components must be installed and functioning prior to development
SELECTRON MANAGED SERVICES
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.
SETUP FEE PAYMENT SCHEDULE
50% Invoiced at time of execution of contracts
50% Invoiced at delivery of product for UAT
ANNUAL MANAGED SERVICE FEE & CALL FEE PAYMENT SCHEDULE
100% Invoiced 45 days prior to beginning of next service year
* Per call overage fees are charged monthly after included call limit has been reached
TAXES
Sales Tax or any other applicable taxes are NOT included in any of this proposal's pricing information. If taxes
become applicable, these taxes will then need to be added to the proposed pricing.
PAYMENT TERMS
Terms are net 30 from date of invoice. Past due invoices are subject to a 1.5% per month late fee. All presented
pricing is in US Dollars.
VENDOR INFORMATION
Selectron Technologies, Inc.
12323 SW 66th Avenue
Portland, OR 97223
Ph: 503.443.1400 Fax: 503.443.2052
San Rafael W5408C
RELAY CLOUD SERVICES OUTBOUND QUOTE 6/28/2018
Quote is Valid for 90 Days
SETUP FEES
@M�7 . , .
771
1 Customer Setup (includes Voice, Email, and SMS $5,000 Waived
channels, and Static Notifications)
1 Dynamic Notifications (created by Selectron) $1,500 Waived
0 Add On Spanish for Dynamic Notifications $300 $0
0 Transfers to Relay IVR* $1,500 $0
SETUP FEE SUBTOTAL $0
PRE -PAID MESSAGE BUNDLES
n 1_ts aF'f a lybtnft�2 l
1 20,000 Delivered Messages $9,000 $9,000
0 50,000 Delivered Messages $10,000 $0
0 100,000 Delivered Messages $15,000 $0
PRE -PAID MESSAGE BUNDLE SUBTOTAL
$9,000
Pre -Paid Messages Purchased
20,000
Average Cost Per Message
$0.45
RCS OUTBOUND TOTAL $9,000
Includes Setup and Message Bundles
RCS OUTBOUND SCOPE
The Relay Cloud Services Outbound system offers the following functionality.
• English Language
• Static Notification: General Information / non -account specific messages that are configured and recorded by
the Customer.
• Dynamic Notifications: Account -specific message created by Selectron that utilizes account specific information
that is accessed through a real-time interface OR a flat file provided by the City of San Rafael. Dynamic
Notifications to be created for the City of San Rafael include:
Expired Permit Notification
• Flat file information, consisting of call lists and account information, can be uploaded directly on the RCS
website or automatically placed and uploaded via an FTP site.
• RCS Outbound has a web -based interface to configure and send messages as campaigns. Campaigns are
initiated by the Customer; however some Target Notifications are automated based on system data.
• A transfer is treated as an additional message in terms of the total bundle of messages purchased by the
Customer, and are charged on a per -call basis. A "call' is defined as any valid telephone connection (does not
include telephony errors and no answers). A single call is up to 4 minutes in length; each subsequent period up
to 4 minutes is considered an additional call.
Outbound messages are purchased in message bundles. Initial outbound pre -paid message bundle will expire after
three years.
RCS OUTBOUND
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.
SETUP FEE PAYMENT SCHEDULE
100% Invoiced at time of execution of contracts
PRE -PAID MESSAGE BUNDLE FEE SCHEDULE
100% Invoiced 45 days prior to beginning of next service year
*Outbound messages are purchased in message bundles. Initial outbound pre -paid message bundle will expire after
three years.
TAXES
Sales Tax or any other applicable taxes are NOT included in any of this proposal's pricing information. If taxes
become applicable, these taxes will then need to be added to the proposed pricing.
PAYMENT TERMS
Terms are net 30 from date of invoice. Past due invoices are subject to a 1.5% per month late fee. All presented
pricing is in US Dollars.
VENDOR INFORMATION
Selectron Technologies, Inc.
12323 SW 66th Avenue
Portland, OR 97223
Ph: 503.443.1400 Fax: 503.443.2052
10:113rd-3
Maintenance and Technical Support
This Exhibit describes the software maintenance and support services that Selectron shall provide for Licensee.
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.
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 in accordance with
Section II(A) of this Exhibit B; (b) make available to Licensee any Error Corrections that are made available by such
Vendors) 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 Error 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 level
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 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 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 Correction.
EXHIBIT C
Statement of Work
Selectron
TECHNOLOGIES, INC
Statement of Work
San Rafael, CA
Relay
Permits
1. Overview....................................................................................................24
1.1. Revision History.............................................................................................................. 24
2. Functionality...............................................................................................25
2.1. The Relay Platform......................................................................................................... 25
2.2. Permits Pack................................................................................................................... 25
2.3. Relay Cloud Services Outbound..................................................................................... 26
3. System Integration......................................................................................27
3.1. Application Database Interfaces.................................................................................... 27
4. Deployment Model.....................................................................................27
4.1. Hosted IVR Access.......................................................................................................... 27
5. Administrative Tasks...................................................................................27
5.1. Run System Reports....................................................................................................... 28
5.2. Schedule Outbound Campaigns..................................................................................... 28
6. Responsibilities...........................................................................................28
6.1. Selectron Technologies, Inc............................................................................................ 28
6.2. San Rafael, CA................................................................................................................. 30
1. Overview
This Statement of Work (SOW) outlines the services provided by Selectron Technologies, Inc. (Selectron) to
San Rafael, CA (San Rafael or Customer). The features, functionality, and services are provided through
Selectron Technologies' Relay communication platform (Relay).
1.1. Revision History
1.0 1 Initial Release 1 5/14/2018
2. Functionality
This section details the functionality of each application included in Relay. All functions and features are
dependent upon the accessibility of San Rafael's TRAKiT application database to provide the given data to
Relay.
2.1. The Relay Platform
San Rafael's solution is powered by Selectron's Relay platform. Relay is a multi -channel, multi -
agency platform that is designed to connect customers, constituents, and field workers to
government agencies and utilities. Relay offers interactive voice response (IVR), web, mobile,
outbound, call center agent, and field worker capabilities all in a single platform.
The following sections detail the functionality that will be implemented for San Rafael.
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.
Please contact your Selectron representative for more details for additional functionality.
2.1.1. Application Packs and Channels
San Rafael's solution includes the following application pack and channels:
• Application packs:
o Permits Pack
• Channels:
o IVR
o Outbound
2.2. Permits Pack
San Rafael will be configured with the Relay Permits Pack. The Permits Pack offers San Rafael's
customers with a central point of access for permit information and services. Callers will be able
to enter a permit number and perform the following actions:
• Contractor Menu
o
Access inspection results
o
Permit based messaging
o
Schedule inspections
o
Cancel inspections
o
Hear site address for the permit
• Inspector Menu
o
Post inspection results
o
Post correction codes
o
Leave message for contractor
All permit, inspection, and/or code information is made available through an API to the
TRAKiT application database. For any of the features detailed below to function as
described, data must be available in this database to be presented to users.
2.2.1. IVR Channel
The IVR Channel for the Permits Pack provides callers with an Interactive Voice
Response (IVR) system for accessing and posting permit information. The IVR offers
functionality in the form of a Contractor Menu and an Inspector Menu.
Using the Contractor Menu, a contractor can enter a permit number to access permit
information and functions. Upon entering a valid permit number, the user can schedule,
reschedule, and/or cancel inspections. After an inspection has been scheduled/
rescheduled/canceled, the caller will receive a confirmation number. Additionally,
contractors can use the IVR to access inspection results, including any associated
correction codes and descriptions. Finally, the contractor can access messages left for
them by an inspector, or leave a message for an inspector.
Using the Inspector Menu, accessible via a hidden main menu option, an inspector can
enter a permit number to post inspection results via the IVR. When posting results, the
caller will need to enter a valid Inspector PIN number (or some other validation number
to be determined during implementation). The PIN can be determined by San Rafael,
but must be validated by the TRAKiT database. When posting results, inspectors can add
correction codes as well as leave a message for the contractor.
If desired, callers can be given the option to transfer to an agent. If a caller requests a
transfer, the Relay IVR performs a transfer to a number specified by San Rafael.
2.3. Relay Cloud Services Outbound
Relay Cloud Services (RCS) Outbound provides San Rafael with a multi -channel outbound
communication platform capable of sending Voice, SMS, and email messages to citizens. Two
kinds of notifications can be sent: Targeted Notifications, which include dynamic account data
and are designed to be sent to specific recipients; and Static Notifications, which do not include
customer -specific data and are designed as more 'general information' style messaging. Static
Notifications can be designed and recorded by San Rafael staff using the Relay Portal.
San Rafael's RCS Outbound will include targeted notification messaging in the following
language(s): English.
Dynamic Notifications require development and are designed during the implementation
process. This project includes the following Dynamic Notifications:
2.3.1. Expired Permits Notification
The Expired Permits Notification contacts permit holders about their expiring and expired
permits. It includes the following information: the permit number and the expiration, or expired,
date. The date and time of notification delivery, relative to the expiration date, can be configured
during the implementation process to fit the Customer's business rules.
2.3.2. Static Notifications
San Rafael will be able to send Customer -defined static notifications to citizens via
phone, email, or SMS text. San Rafael is responsible for defining and configuring these
notifications, which can be done via the Relay Portal. Training for configuring and
recording static notifications will be provided at the end of the implementation process.
3. System Integration
Depending on the implemented features, Relay requires varying levels of integration with other San Rafael
components. These are described in the following sections.
3.1. Application Database Interfaces
It is anticipated that Selectron will be integrating with San Rafael's TRAKiT 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 data elements are identified as necessary but are not
available via the included APIs, the project will be impacted. This may affect the implementation
timeframe and will result in additional professional services fees.
4. Deployment Model
This implementation of Relay will be deployed in Selectron's single -tenant Relay Managed Services
environment.
Relay Managed Services is a single -tenant hosted application, 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.
San Rafael's solution is licensed for:
• Four (4) inbound VoIP/SIP IVR ports allowing for up to four concurrent calls
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 San Rafael 10 -
digit number. Selectron can either use an existing number provided by San Rafael or
obtain and provide a number if needed. If San Rafael elects to have calls routed through
your 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.
S. Administrative Tasks
This section details administrative tasks that can be performed in order to manage Relay. All system
administration for Relay is handled through the Relay Portal web application. An administrator from San
Rafael will be provided with user credentials for the Relay Portal application during the implementation
process. Additional users can be created by the administrator as needed. Permissions can be assigned on a
per -user basis; permissions govern the functionality available to a given user.
The Relay Portal provides San Rafael administrators with a single platform for viewing system usage and
health, running reports, and configuring various system settings. The Relay Portal is supported on all modern,
"evergreen" browsers including: Chrome, Firefox, IE10+, Microsoft Edge, and Safari.
5.1. Run System Reports
San Rafael administrators will be able to run system reports via the Relay Portal. Reports that can
be run by the administrator include:
• Call Statistics
Call Activity
Call Detail
5.2. 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 static
notifications) the configuration of the message.
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 Manager provides the Customer with the following documents to help facilitate the
service implementation process:
• Implementation Questionnaire- gathers critical information needed to
setup and initiate the service. This includes information on the toll-free
numbers, call volume, APIs.
• Remote Access Questionnaire- details information needed by Selectron
Technologies to remotely access the Customer's network and application
database, prior to system initiation, to allow 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 cannot begin until these design elements are completed and approved by
the Customer.
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, San Rafael's TRAKiT database application may release new updates to
their application or its interface. Upgrading the Relay interface to be compatible with any San
Rafael application database (or other application database software) may require professional
services outside the scope of this service.
6.2. San Rafael, 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 San Rafael 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
• Permit status codes and types
• Inspection types and descriptions
• Validations used for scheduling an inspection
• Correction codes and descriptions
• Permit numbering scheme
6.2.3. Approve Channel Configuration
The Customer is responsible for approving the application design developed by Selectron
Technologies' Project Manager. This includes reviewing:
• Call flow for the IVR solution
• Outbound messaging format
Once the channel design(s) have been approved, software development begins.
6.2.4. Provide Remote Network Access to Application Database(s)
In order to fully test the interactive solution, Selectron Technologies requires access to San
Rafael'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 lead to disruption in service for the interactive
solution and/or Selectron Technologies' ability to provide timely support. Please notify Selectron
Technologies immediately if the accounts for the Application Database or network are modified.
San Rafael is responsible for providing Selectron with appropriate application database network
access as defined in the System Integration section.
6.2.6. Confirm Service Functionality
San Rafael, CA 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 acknowledgement 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 to 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 YOU 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 EULA, 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 Licensee 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 this 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 Documentation, 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 trademark, 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 Software,
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;
(1) 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 control 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.
S. 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 each 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 such
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, re-export or release
the Licensed Software to, or make the Licensed Software accessible from, anyjurisdiction 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 would cause the application of laws of any jurisdiction other than those of the State
of Oregon.
ESelectron
TECHNOLOGIES, INC
June 28, 2018
Paul A. Jensen
Community Development
City of San Rafael
1400 5th Ave., 3rd Floor
San Rafael, CA 94901
Hello Paul,
12323 SW 66th Ave I Portland, OR 97223
Phone: 866.878.0048 1 Fax: 503.443.2052
www.stigov.com I info@stigov.com
Third time is the charm! Enclosed you will find two updated and original copies of the final
Selectron-signed Master Services & Hosting Agreement. Please execute both copies and return
one original to me at the address below.
Please let me know if you have any questions or concerns.
Sincerely,
Jacob Wolff, Account Executive
Selectron Technologies, Inc.
12323 SW 6611 Ave.
Portland, OR 97132
(503) 597-3326
Trusted Solutions.
Real Value.
CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Community Development
Project Manager: Paul Jensen
Extension: 5064
Contractor Name: Selectron
Contractor's Contact: Jacob Wolff
Contact's Email: JWolff@selectrontechnologies.com
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
T DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
DATE
Check/Initial
1 Project Manager
a. Email PINS Introductory Notice to Contractor
5/15/2018
b. Email contract (in Word) & attachments to City
5/15/2018
Atty c/o Laraine.Gittens@cityofsanrafael.org
❑
2 City Attorney
a. Review, revise, and comment on draft agreement
6/15/2018
® LG
and return to Project Manager
6/15/2018
® LG
b. Confirm insurance requirements, create Job on
, / /�
PINS, send PINS insurance notice to contractor
Il//
3
Project Manager
Forward three (3) originals of final agreement to
Click here to
❑
contractor for their signature
enter a date.
4
Project Manager
When necessary, * contractor -signed agreement ❑ N/A
agendized for Council approval
*PSA > $20,000; or Purchase > $35,000; or Or
Public Works Contract > $125,000
7/16/2018
PRINT
Project Manager
Date of Council approval
CONTINUE ROUTING PROCESS WITH HARD COPY
Forward signed original agreements to City
.5
City Attorney
Attorney with printed copy of this routing form
6
Review and approve hard copy of signed
7/ J
agreement
7
City Attorney
Review and approve insurance in PINS, and bonds
(for Public Works Contracts) V
8
City Manager/ Mayor
Agreement executed by Council authorized official
9
City Clerk
Attest signatures, retains original agreement and
forwards copies to Project Manager n
l ��