HomeMy WebLinkAboutRES 17-198RESOLUTION NO. 17-198
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be, and he is hereby, authorized to pay an invoice in the
amount of $81,361.95 to Superion for the renewal of an annual maintenance agreement
for financial software support beginning October 1, 2017.
The meeting at which this resolution was approved was in all things conducted in
strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter
551.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 10th day of
October, 2017.
ASP Order
By file signatures oflheir duly.amhorized representatives below, tite Superion,"LLC entity identified below ("Superlon") and tile:
customer identified below ("Customer"), intending to be..legally bound, agree to all of the provisions of thus Order (the"`Orcici"),
and agree that this Order represents a separate contract.between such Superion entity find Customer, with an order execution:date of
the latest date shown -on the signature page below ("Order Execution Date") and order .effective date of the first of:the month
.following the Order Execution Date ("Order:Effeetive Date") and an. This Order incorporates and is governed by all ofthe ternis
of the Superion Standard Terms and Conditions, attached hereto as Exhibit 3 ("SST") as if tile'Superion entity was "Superion" and
Customer was "Customer" thereunder.
Capitalized terns not defined in this Order have the ineaning:given them in the SST..
Superion; LLC
City of Beaumont
1000 Business Center Dr.
Lake Mary, FL 32'746
80`l Main St;, Suite 350
Beariniont, TX 7770.1
By .1.)o- C 1 L��) �` V1G 1(�
By
Print Name; G / j ����,t��
Print Name: Kyle Hayes
Print Title:
Print Title: City Manager
Date Signed: �Q (
Date Sighed:
SUPERION ORDEkit 10981,0-170090-1
SOLUTION AND RtLATED INFOIWATION
L SOLUTION: Superion NfiviLtne Public Adminish•atlon applications ideiititied In Exhibit I.
2, TRANSMISSION OF CUSTOMER SUPPLIEDDATA: The Solution will be operated by the C.ustonter via workstations.
Customer n►ustprovide remote, access to its facility using a Superion approved remote access client so that Superion call
perform the.support obligations and/or services under this Order; and will provide appropriate security access and.accoimts
for Superion:staffand each session participant.: In addition, and,subjectto. a separate written agreement between the. parties,
including.agreement upon the additional fees payable in that respect to cover.dedicated comiinmication costs, Superion-may
provide .WAN/VPN connectivity to Customer for accessing the hosted environntent,for custom application and interfaces,
3. DOCUMENTATION: Sup6rion's standard user inanuals for the Solution listed above:
4. INITIAL TERM: Twelve (12) months commencing.on the Order Effective Date.
5. RENEWAL RIGHTS: Upon expiration of (lie Initial Term set' fodh above .this Order shall automatically renew for
successive.one (1) year Renewat Terms at the then -current rates. Either party may elect to not enter Into a Renewal Term by
providing, the other: party with written nolice at.heast one hundred and twenty (120),days prior to the end of the Initial Term
or then-curreitV Renewal Term; as the case niny be.
G. SCOPE OF USE
A. DrSIGNATED LOCATION(s): Customer's offices in Beaumont, TX. Customer's Authorized Uscis, ilia . access the
Soititlou from anywhere in the United States, subject always to lie-Export:Laws and the total number of Authorized
Users licensed.hei•eunder.
1 of 26
7. FEES
A. ANNUAL ACCESS hEESr SEE EXHIBIT 1
n. ADDITIONAL AUTHORIZED USERS74EES: Custoincr acknowle"dges that the.AnnuaLAccess Fee set forth above.
lias"beets determined used on'the numbe►•'of Authorized Users liconse"d on"dhe.Order Effective Date; tf Customer d6sires itt
any tinic;during-the.tcrn. of this,0rder to iitci•case the nuinUer.of Authorized: Users; beyond the number of, Authorized Users
set fort(. above, CustOlner sli ll l rovide:Superion With advance written notice aitd,Superiou;n►ay increase"the Aceoss:Fee
payabi'dtniderthis Order accordingly.
b. OTHER FEES= If"Custontcr's use of the Solution i icrcAAses in any tv6y wl.liclt ,�vottld ieasotiibly cause Superion-to
incur sidditioiial l►ardware costs to maintain such increased usage, Superion shall invoice Customer for such, fees as are
reasonabie-in respect ofsuch additional liardwire cost lncurred.
B; PROFlsSSIONAL SERviCES, START-UP, AND 1ViAINTENANCE.FEES-SEE PROJECT COST SUA4MARY -
EXIIIBIT 1"
8 TIE LIABILITY CAP; Shill be the total of lieProfessionaI Services and Annual Access Fees:aetually paid by Customer to.
Superion under this Order.during the twelve (12) u►onth period 'immediately preceding the evert giving rise to:;;tl►e=claim
occtu•ring,
9, PAYMENT TERMS'
a. S(firtup Fees are time as foliows: m6ko upon receipt of invoice- Custonie►~will` be -contacted by Superion Project
Mannger to begin the implementation process -of this project upon"receilit ofstartup fees.
b. Atinual Access Fee are flue as follows; 100%:on the. Execution Date. The Annual:Aceess Fee for,any additional
ipl licatiom purchased will be placed oil (lie same term as (lie original contract:.
c. Travel aiid Living E�peiises:'rravei Ind (will- expenses areinaddilio►i to the prices quoted, above and will beinvoiced
as incurfed Lind shall be governed bythe Superion Corporate Travel. Expense.Guidelines attached hereto as l xhibit2.
W. ADDRESSES
a. CUSTOMER ADDRESS FOR INVOICES: 801 Main St., Sulte 350, Beaumont, TX 77101
b. CUSTONIER ADDRESS FOR NOTICES: 801 Amin St., Suite350, Beauiiiont; T.l' 77701
c. CUS'FOMER ADDIZLsSS I?Olt SOFTNS'AIt[S SHIPA•IENT: , 861 Main St., Sulte 350, Bea n►notit, T\ 77701
d. "SUPERIONIS ADDRESS FORNOTICCS:
;Superion,,LLC.
Asti►; Iegil Counsel
1000 Business Center:Drive
LokclvMary ,FL 3274E
j't. OTH ER TERMS:
a. Customer shall procure the Specified Configuration set forth in Annex I'ih.accordance with Section 2 of the SST.
b. Superion shall provide.the..access to the Solution during the hours"described.. ih Annex 2 attached hereto, and."i-mide
the Solution Sulipo►t described in_Aniiex2,
2 of 2G
'c. Superion sliall provkle altd install ilow,releases of the Solution at no additional charge, However Custoiner shalIbe
responsible for the' payment of`consulting fees on a Mime and material basis: in respect of any professional services
pro yided by Superioii`for the upgrade of any customizations tg the Solution made bySuperion at Customer's request;
provided the parties enter into`a profession it services sclicduI6 in respeoVantlysuch upg6ide which'sliall st'iptihit0 the
applicable (lien -current professional fee,rales in respect thereof.
As nad wheti Custoiner is,rcquircd,to upgrade to,a iiew.release, Superion shall stake such new release'nvailable to
Customer ina test enviroltment for a_period of at least sixty (60) days (the"Parallel Run Period"). UnlessCustomer
reports to Superion any inaterial errors`insuch new release, Ciistouter shail.nedept modifications, revisions and updates
in'the;Solution and Docuiiientatioa,.iitclttciing changes in pn•ogranuning laitguages, miles of operation and sdrd6h or
report -format, as and when they are implemented by Superion.-If material errors are discovered during-the'Parallel
Run Period, the Parallel Run Period;sliill autontaticallybe extended by.the iuunbero.fdays between the datelhat any
uaterial:ei•rors ivhei•e reported and: (lie date tliat Superion has remedied such el-ro's. Cusfortier acknowIddg: s'tlit t
modifications, revisions and updates' in the Solutiot'lietihitted by this Order may -result iri`clianges ill the forni, timing
or;otlier. features of on-line services, repots_and'.other Solution provided tinderdhis Order,
If Customer's use of the0olution increases in any wily which would reasonably cause Sitlie`rioli to iticur:additional
hardware costs to;main(ain such increased usage, Superion sliall invoice Custonier for such fees as are reasonable in
respect of siicli additional liardware:cost incurred:
Conversion: Conversion, if provided( for herein, or, requested by the Customer after contract execution, .will be
conteolled_ by the Si peridn S.yslenis Change Request`(SCR) form which, will be prcpated for the Customer. by the
Superioi ConversioiiTeani Nfant<gcr. There will'be a Two"I-ituidred Fifty dallir (S250A0) non•refundabldhMcess Fee
for preparation of each SCR requested by the Customer. Superion will proceed on the SCR when the signed SCR is
returned with fhe Customer's aiithorimtion along with "fifty percent (50%) payiuent, wh chinchuies the•non-refundable
Access; }gee. The final fitly percent (50%) payment is diie upon completion: Dicta `must, be given to Suiieeion in all
IBIvi coiiipitible format on a specifted niagtietic media aril mist motel( data field defini(ioii, input..dnta file clean up
shall be the responsibility of the Customer. Additional conversion, if necessary, will be invoiced at the prevailing rate
perhour: it is agreed that no two systen)s.and file structures are exactly alike and niay;hc a need for sonid ininual
conversion efforts to take place aloig with the electronic conversion.. SCR. form(s) for Any coirversion serices
included in this Order are attached for Customer signature and return to Superionalong with this Order.
if afier the cxpirat Ion of the term of'this Order Customer converts to a dif''ercnt vendor's app liotidAsi 'Superion
will provide, upon payment of Superion's then -current 'standard deconversion fee, reasonable assistance and
ilocuntentation for such deconversion iii order to assist Customer in retiioving its inforniation and plading said
ii fori)W(ioin,`in Superion's standard format for Input to tl)o'otlice vendor's.'applications. Iti the event Custom,er�regtiests
<;non-staudardjdeconversion, Superion, shall. be entitled to receive, compensation fog consmliation, software and
documentation provided to assist iu ih`e decoiiversion°oii,a thtieand materials basis at (tie standard 'prevaiiing.eate then
charged'bySupei•ionfoe sitch services.
1,2. OTiiER TERMS, APIyL[CA,BLE TO THIS ORDER: (If applicable)
o. SUPCRION TRAVEL I YPRNSI GUIDELINES - EXHIBIT 2
o SUPCRION STANDARD TICRMS (SST) — hXHIBIT 3
o SUPPORTSTANDARDSSUPPLIMGNT
a ANNEN I-SPECIF ICDCONFIGURAI'ION
o. ANNEX2- SOLUTION AVAILABILITYANDSUPPORT
o PART 1 - SERVICE LEVEL CONI ti'IITNIENTAND. CLOUD: PRIOCEDURi S
o PART 2.—ERROR CORRECTION '
3 of 26
IiAll [BIT I — ANNUAL ACCESS AND SE IWICE S..FE ES
A. ANNUAL ACCEss F E E s - INITULTEklm
MtcssFc-cs r6rany "Yentsubsequent to thic.1nitial Teeiiiniesubject t(5cititige,,i-iid will bospeciftiM by Stiperlon in an: annual
HIM=
APPLICABLETAXES-ARE NOT INCLUDED IN THIS ORDEk! FORM,: AND, IF APPLICABLE, WILL ' BEADDED
TO THE ANIOUNT IN THE PAYMENT INVOICE(S) BEING SHNTSEPARATtiffi-o THE CuSt&IER,
B;- OTHER FEES - COST'SUMMARY (Start -Up Fees; Ajoitual Access Fees)
Applications and/or Services
slart7utiF.00
Annual Access
F66
Ex [sting, NaviLlne Products.
Click2Gov Cord Module (M), ClicMov-Custon-W
2.000
8;737
(CurroOtly,I-Ic-ensed)
Inforinatlon:Systern (1<2), ClIck2Go.v Case Management
(KE)
Horizon Cloud.Seivic6s.
Hardware and sofware viiill'be hosted and n-onaged by
Included In Startup
Included In Annual
Supefi . On. Site -to Site VPN,Se1u Setup, ImWenrentatiion,
Fees.
Mews Fee
Disaster Recovery Plan for Supeflon appllcations-
Total Proposod
2,0001
$ '0.057
4 of,26
L\HIBIT 2
SOPERION`GRAVEL EXPENSE, GUIDELiNES
Superion will.adhere to"the following guidelines when incuiringtravel expenses:
All arrangements for travel are to be,made through, (lie Superion Corporate Tr"el Agetit unless ofhcr arrangements have
been made with the'Customer and are docunieiitod III writing,
AIR TRAVEL — Superion will use the least cxNc isive class of service available withst ininimiun of.seven (7), day, ma'\imtmr of
thirty (10) day, ,tidvanee.purcliase:'Upoii_roquest, Superion shall proYide,the travel itinerary.as (lie receipt for reimbursement of (lie
airfare and any fees. Fers not listed.on'the itinerary will require a'receipt for reinibursenicut.
Trips fewer (Juan 25.0 miles round are considered local. Unless a. nighthas been otherwise apliroved by'thc.Customer, Customer will
reimburse the eufrentlRS_approxed mileage rate for nll,locnl trips.
LODGING —Superion will use (lie ntost. reasonable dmonmiodatiolis,possible, dapenciciit onllie city. All food items; tiiov cs, and
phone/iiiteriicCchacg"cs are not reiiiibttrsable.
RENTAL CAR— Compactor Intermediate cars will be required unless there are three or more Superioweniployees sharing the car
III which case.themse_of a full sizi;.car is nutborized. Gas is reimbursable however,,jire-(laid gas,purchases .will not be autliorizell
and all rentalcars are to lie rdturned with a fill tank `of gas. Upon request, rcccipts for car rental aiid gas purchases will be submit(M
to'Customer. Stiperiob shall decline all rental car insurance offered- ,by(lie car rental agency as sniff members will be covered under
the Superion auto insurance policy, Fines for traffic^violations are not, reimbursable expenses.
OTHER TRANSPORTATION — Superion staff ineiiibers are expected to use the most economical meRns.for traveling to and from
the nirpott (Airport bus, Hotel -shuttle service). Airport taxi or tnilei,ige for the employee's personal vdhicic (per IRS mileage
guidelines) are re1nibursable, ifnecessary. Upon renties 1,xeceipl(s) for tlie taxi will be submitted to.Cuslomer, Proofofmileage may
be required and maybe documen tedbya readily available elect onIotnnppingservice. The mileage.rate 'w.i bo:tlie then -current IRS
mileage guideline rate (subject to change with any chango in IRS'gi idelines)
OTHER BUSINESS EXP LASES - Parking it the:aimorl Is reimbursable. Tolls -to and,from the airport and while traveling atahe
client site are:.reinibursab(e. Tippiog•on cab fare exceeding 150/6 is'not. reiinbursable Porten tifis are,reinibursable; not exceeding
$1.00 per bag: Latiiidry is reimb nsable When travel inchides a week-o d day .or Conipa,uy Holiday and tltc hotel stay is four nights
or iiiorc. Laun fry 'dliarges'nutst'be incurred duriiig'the trip and the liniI(is 'otie shift alid one pair of pants/skiit per day. With'tlie
exception of tips,receipts shall be provided to:Custonierupon request for till of the aforementioned items.
N,,IGALS —,Standard per Dieui, Subjeefto change due to cost of living;
5 of 26'
EXHIBIT 3
These Superlon Standard Terms ("SST") may be Incorporated into one or more orders referencing these SST (each, air "Order'), Each
Order, together:vAth these SST, shall forma separate agreement (this "Agreement" ),by and between the,PersonidentiRed on tiie Order
("Customer') and the-Superion Companyidentifled on the Order ("Stirperion"), applicable to the proprietary solution Ideittifled'on the
Order (the "Solution"), as such Solution may be modified, revised and updated from time totlme..Only the Customer and,5uperion:
entitles that execute the Order will be "liable for the obligations under. that Order. Each_Ordeewlll be effective upon the latestdatesl own
on the signature page of the Order ("Order, Execution Date").
1. Scope. Customer may use the only (n (he ordinary
course of. Customer's Internal business operations for the benefit of
Custonier and only In 'accordance with the terms on the Order, the
Documentation„(tits Agreement, including the. Scope of 11se, Customer
shall be liable :forany breach of the terms'of thlsAgreementbyany persons
given access to the?Solution by Customer,
2 Specified Configuration. Customersliall,-atIt's expense, procure -
and maintain the computer hardware, systems software and other Items
required for use of, or access to, the Solution, Including those -described In
the Order and Documentation (the "Specified Configuration") and for
updating the Specified Configuration in accordance with Superior's,
published updates, if not yet completed,_ Customer shall complete Its
procurement and Installation of the Specified Conflguration'prlor to the
.sclieduled start of implementation. Customershall devote all equipment,
faculties; personnel and other resources reasonably necessary to begin
using the Solutlon'Irt produclionon a;timely basis as, contemplated by thls.
Agreement and satisfy any. Customer requirements necessary forSuperion
to complete the professional servlcesdescribed in Section 6. Superlon 1s.
not responsible for any'delays or additional fees and cosfs'associated with
Customer's failure to (Imely perform its obligations under this Section 2.
3. Payments:
3.1 Fees. Customer shall pay`to Superion the fees stated in the
Order, 'in accordance' with the payment terms stated on the Order;
Superion shall involce'all other fees, as and when incurred, All Involces
shall be sent to Customer's addressfor Invoices stated on theOrder. Except
as otherwise specified on the Order, Customer's payments shall be due
v+ithin thirty (30) days'after,the lnvolce date- A late payment fee at the rate
of 12% per year (or, if lower, tiie maximum rate permitted by applicable
law) shall accrue•on any amounts tlirty,(30) days past Clue and unpaid by
Customer to Superion, exceptfor. Disputed Amounts, Superion may not
Increase the fees and charges payable under this Agreement, unless
otherwise stated In this Agreement ;or In the Order. Except as provided in
Section 4.2(c);°all fees and other amounts paid by Customer under this
Agreement•are non-refundable.
3.2 Taxes. The fees and other -amounts payable by Customer to
Superion under this Agreement do not Include any taxes, duties, levies,
fees or similar charges of any Jurisdiction ("Taxes") that may be assessed
or'Imposed in connection with the transactions contemplated by this
Agreement, excludingonly taxes based. upon Superion's net Income.
Customer shall directly pay any sucli Taxes assessed against it, and
'Customershall promptly reimburse Superion for any such Taxes payable or
collectable by Superion,
,33 Certain i;emedles for Non-payment, if Customerfails to pay
n to Superlon, within ten (10) days after5uperiomakes:wrtten demand
therefor, any past -due amount payable under this `Agreement.
(Including any applicable late payment fee) that Is not'a Disputed
6 of 26
Amount, in addition to all other rights and remedies vAlch Superion
may have, Superion may, In its sole discretion'and with further notice
to.Custonier stating the-suspension,date, suspend performance of any
or all of its obligations under this Agreement (other than Section 5).
Superion shall have,no liabilityfor.Customees-use of the Solution until
all such past -due amounts and anyapplicable reinstatement fees are
paid In full.
A. Warranties, Cove nants'orid.Limitations.
4.1 CompllInce with Lavis: Superlon shall comply With al(laws,
enactments, orders and regulations applicable to it as he provider of
services under Oils Agreement.: Customer shall comply with all laws,
enactments, orders and regulations applicable to itas'the recipient arid
user of services underihlsAgrgement.
4.2 No Infringement. Superion shall- indemnify and °defend
Customer against, any third -party claim asserting that the:,Solution,.as
and when made available.to Customer by Sup'erion and when properly
used-3orthe purpose.and In the mannerspecifica►ly authorized by this
Agreement,'Infringes upon (i) any patent Issued asofthe.date.ofthis
Agreement by a country that Is a,signatory Wthe Par►s.Convention, III)
.any copyrightof`any country that is a member, of the Berne Convention
as of the date of .thIs..Agreement, ,or (III) -any trade secret or other -
proprietary right c,f a ny Person (collectively, "Ip Rights"),, Superion shall
have no obligation, under this Section 4.2 unless Customer promptly
gives notice to Superion within ten (10) days;after the,date-Customer
Rrst.receives notice of the-applicablelnfr►ngementdaini (provided that
later notice shall relieve Superlon of.lts liability and obligations under
this Section 4.2-only.to the extent that Superlon is pre)udiced.bysuch
later notice) and alloys Superlon to lave sole control of the defense or
settlementof the claini. Customer may monitor any such litigation or
proceeding at its expense, using counsel ofltsthoosing. The remedies
provided In this Section 4.2 are' the sole remedies for a claim of
infringement or misappropriation hereunder. If any applicable
infringementclaim Is initiated, or`fn;Superion's sole oMhlon is likely to
beinitiated, Superion may at its option and expense:
(a) modify or replace all or :the allegedly Infringing part of the.
Solution so that It is no Ionger,allegedly infringing, provided'that
the ,functionality does, not change in any material adverse
respect; or
(b) procure for Customer the right to continue using the allegedly
Infringing part of the Solution; or
(p) remove all or the allegedly Infringing part oftherSolution, and (1)
If Customer has paid a one-time upfront initial license fee for the
applic.ablet Solution, ,refund to Customer the .corresponding
portion of the license fee paid by Customer'to Superion for the
applicable Solution, less a reasonable rental charge equal to one
sixtieth (1/60) of the initial license. fee for each month' of .use
following 46—Order Execution Date; or (11) if Customer.ls paying,
for the use of the= Solution on a recurring bask,: refund to
Customer. #fie correspond ft. portion .of the unusedrecurring
fee(s) ,paid by Customer to Superlon with, respect to the.
applicable Solution, and In each such case this Agreement shall
terminate With respect to the Solution or part thereof removed.
43 Harmful Code. Using a recent version of a reputable virus -
checking product (to the extent commercially available), Superion will
check the Solution, as well as any systems used to deliver the Solution,
for: any viruses, worms or similar harmful code ("Harmful,Code") and
will use commercially reasonable efforts to eliminate any "such Harmful
Code that Superiondiscovers.
414 Exduslon for Unauthorized Actions: Superlon is not liable
under any provision of this Agreement for any performance problem,
claim of Infringement or other matter to the extent attributable to any
unauthorized or improper use or modlficailon of the Solution by or on
behalf of Customer, ariy unauthorized°cornbinatlon of the Solution with
other software or services (other than as specified In4he Specified
Configuration), a.ny"use of any version of the:Solution other than the
Supported Release,'a failure to subscribe "to supportservices If then
offered for the Solution," any. Third -Party Hardware or Third -Party
Services, and Third -Patty Software or Open Source Software (except as
set forth in Sectlons 410 and.4.12), any wrongful -act or omisslon by
Customer, its Affiliates or its customers or any breach of thlsAgreement
by Customer.
4.S Force Majeure. Neither par shall be liable for, nor shall
either party be considered In breach of this Agreement due to, any
failure to perform its obligations under this Agreement (other than its
payment obligations, which shall besus pended.only for so long aS the
force niajeure event renders Customer unable by any means to
transmit paymegts when (filehereunder) as aresult of a cause beyond
its control, including'am/ act of God or a public enemyor terrorist, act
of any military, civil or regulatory ;authority, change In any law" or
regulation, fire, flood,,earthquake, storm or other like event, theft or
criminal misconduct byunrelated third partles, disruption oroutage of
communications (including the Internet 'or other networked
envlroriment),.power,or other utility, unavailability of supplies or any
other cause, whether similar or dissimilar to any of the foregoing,
which could not have been prevented by the -non -performing party
with reasonable care,
4.6Discialmer. EXCEPT.AS STATED IN SECTIONS4, 6.5 AND 9.55,
THE SOLUTION, DOCUMENTATION AND SERVICES ARE PROVIDED "AS
IS," AND ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS OR
CONDITIONS,, ORAL OR WRITTEN,: EXPRESS OR IMPLIED, ARISING
FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE, QUALITY` .OF INFORMATION, QUIET ENJOYMENT OR
OTHERWISE (INCLUDING IMPLIED `WARRANTIES, TERMS OR
CONDITIONS OF MERCHANTABILITY,`SATISFACTORY QUALITY; FITNESS
FOR PARTICULAR PURPOSE, TITLE,.NON•INTERFERENCE; OR NON -
INFRINGEMENT) ARE,. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT.
4.7 L'Imitations Cap. EACH PARTY'S'TOTAL LIABILITY UNDER THIS
AGREEMENT SHALL, UNDER NO CIRCUMSTANCES EXCEED THE
LIABILITY CAR
7 of 26
4.8 Consequential Damage. Exclusion. UNDER NO
CIRCUMSTANCES SHALL EITHER • PARTY (OR ANY OF iTS AFFILIATES
PROVIDING OR -.RECEIVING THE SOLUTION, SERVICES OR- OTHER
SOFTWARE UNDER THIS AGREEMENT) BE LIABLE TO THE OTHER OR
ANY OTHER PERSON FOR LOSSES OR DAMAGES WHICH FALL INTO
ANY OF THE FOLLOWING CATEGORIES: (aj LOST "REVENUES, (b) LOST
PROFITS, (c) LOSS'OF BUSINESS; (d) TRADING LOSSES, (e)INACCURATE
,DISTRIBUTIONS OR (f) ANY INCIDENTAL; INDIRECT,: EXEMPLARY;
CONSEQUENTIAL; SPECIAL OR PUNITIVE DAMAGES OF ANY KIND;
INCLUDING ANY OF THE 'FOREGOING LOSSES :OR' DAMAGES
RESULTING FROM CUSTOMER'S USE OF THE SOLUTION OR SERVICES
PROVIDED HEREUNDER, OR ARISING FROM ANY BREACWOF THIS
AGREEMENT OR ANY TERMiNATION.OF'THIS AGREEMENT, WHETHER
SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT
(INCLUDING'NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND
WHETHER OR NOT FORESEEABLE, EVEN IF THE RELEVANT PARTY HAS
BEEN ADVISED OR WAS AWARE OFTHE POSSIBILiTY,OFSUCH LOSS -Oft
:DAMAGES. FOR PURPOSES OF CLARIFICATION, THE .FOLLOWING
SHALLBE DEEMED"DIRECT DAMAGES" AS BETWEEN C.USTOMERAND
SOPERION FOR THE PURPOSES.OF THIS AGREEMENT'(i):ANY AND ALL
DAMAGES, INCLUDING CONSEQUENTIAL AND SIMILAR DAMAGES,
AWARDED TO A -'THIRD: PARTY FOR WHICH INDEMNIFICATION IS
PROVIDED BYA PARTY UNDER SECTION 4;2; (ii) CUSTOMER'S OUT OF=
POCKET COSTS TO. NOTIFY AFFECTED PERSONS AND/OR PAY FOR
CREDIT MONITORING SERVICES FOR SUCH PERSONS FORA ONE-YEAR
PERIOD INCURRED AS RESULT OF SUPERION'S BREACH OFSECTION
4.9 Exceptions. THE LIMITATIONS AND EXCLUSIONS SET FORTH
IN SECTIONS 4.7;AND 4.8 SHALL NOT APPLY TO: (a)'BREACHES'OF THE
SCOPE OF USE; (b); FAILURE.TO.PAY FEES WHEN DUET (6) DAMAGES
CAUSED BYIEITHER'PARTY'S FRAUD OR WILLFUL`MISCONDUCT, (d) A
PARTY'S LIABILITY' FOR DEATH, OR PERSONAL INIJJRY'OUETO THAT
PARTY'S NEGLIGENCE; OR (e) A PARTY'S`LIABILITY FOR DAMAGES TO
THE EXTENT THAT SUCH LIMITATION OR EXCLUSION IS NOT
PERMITTED BY APPLICABLE _LAW.. THE LIMITATIONS' SET FORTH IN
SECTION 4.7 DO NOT APPLY TO. CLAIMS FO.R WHICH
INDEMNIFICATION IS PROVIDED BY'A PARTY.UNDER SECTiONA.2.
4.10 Third -Party Software. To facilitate Customers access and
use of the Third -Party Software, the licensor(s) of such Third -Party
Software have agreed to allow Superlon to provide tiie Third -Party
Software to Customer subject to the following additional
conditions; (1) the Third -Party Software shall 'be used only in
conjunction with any permissible use of the Solution specifically
autliorized.in thlsAgreenrent anil (II) the Third -Party Software sliall be
used only In accordance with ►icensor's terms and conditions and
documentation forthe Third, -Party, Software whicit, unless otherwise,
included In a specific Supplement to the,Order, shall be provided to
Customerwithfhe, rik. iptofsuchThird=Pa,rtySoftware Superionshall
use reasonable efforts to provide Customer the b"emrt of all
Indemnities and'%yafranties granted to Superlon by theaicensor(s) of
the Third -Party Software, to the extent possible without additional cost
to Superlon, as and, if permitted by Supelon's agreement with the.
licensor of the Third -Party Software, and to the extentsuch warranties
and Indemnities pertain to Custorner's use of the Third -Party Software
Iereunder. In the event of.any defect -I any Third -Party Software (In
the form delivered by" Superlon, and when properly used for the<
purpose and In the mannerspedficaily authorized by ttils Agreement),
Superion will us,e commerci.aliy reasonable efforts to replace or correct
the Third -Party Software without charge. If'Superion complies with this
provision, it shail face, no further liability with respect to any defect in
any ThIM-Party Software.
Unless as otherwise provided in a specific Supplement to the Order, or
as provided in the licensors terms and conditions, Superion shail
provide .Level 1 support of the Third-Party,Software. For purposes
hereln, Level 1"Suppcet-shall mean:
1) Taking the first support call from `Customer -and quaiifyingthe
call priority, or if an existing'case; obtaining case Information;
2), Gathering information about the case; defining and
describing the problem, and determlriingllthe Tilied Party
Software is the cause of- the problem. Analyze problem
symptoms, attempt to flied roo(cause if appr"oprlate and
document result of such :attempts. D'etennlning: If the
problem isa known Third -Party Software problem by
accessing tfilyd partyonline support resources;and
3) If it Is, determined to be ,a Third -Party Software problem,
contacting the Third -Party Softwaretechnical support. For
new cases, opening a case,and selecting a priority. For
existing cases; providing the�case number and Information
gathered to,the Third -Party Software support engineer.
4.11 TOrd Party- Ha rdwa re and Third-Parly Services: Customer is
hereby advised thaf the third party, and not Superioi,;assumes all
responsibility for and liability in connection with the Third -Party
Hardware and Third -Party Services;.:and Is solely responsible for
delivering the Third -Party Hardware and Third -Party -Services to
Customer. Superion Is riot authorized to make any representations or
warranties that are'binding upon the third party or to engage In any
other acts that are -binding upon the third party; excepting specifically
that Superion Is authorized to represent the fees -for the.Thlyd-Party
Hardware or, Third -Party Services as the same is provided for In the
Order and to acceptpayment of such amounts. from Customer on
behalf of the third,party.
4.12 Open Source Software Components: The Solution -may be
provided with or Included open Source Software; including.that Open
Source.Software identified In the Documentation or on the support
services website'forthe Solution. The Open Source Software is licensed
under the -terms of the open source license that accompanies or is
made available twith. such Open Source Software, including, via a
v�ebsite designated by Superion: Nothing In this Agreement limits
Customer's rights tinder, or grants Customer rights that'supersede, the
terms -,and conditlons'of any applicable license'for such Open Source
Software, Open Source Softwareshallnot be deemed to.be pairt of the
Solution under tills Agreeriient and Superion shall have no liability
relating to such Open Source Software; provided, however, that
Superion 'shall be: responsible for fixing ,Errors caused' by the. Open
.Source Software to the same extent:as Superion's.ongoing support
obligations assetforthln Se4tion"8:5 and,9:33 of ails Agreement.
4,1a, OpenNegatiation, Customer and Superion, have freely and
openly negotiated; this Agreement, including the pricing, with the
knowledge that tile liability of the parties Is to be limited in accordance
with the, prov4lobs.of this: Agreement.
8 of16
4.14 Tifle'and Rlsk of Loss.16 no event will Superion be deemed
to have taken title or.any similar right or Interest in or ofany Thlyd-Party
Software or Thlyd-Party Hardware in the chain of`distribution. to
'Customer, and title; risk of loss, andjor'such simllar right orinterestin
or to. the Third -Party Software orTliird-Party Hardware will be deemed
to vest in Customer ° either zit -the, point •of delivery to' carrier for
,shipment or as otherwise provided for In the licensor's terms and
conditions;
4.15 Disclaimer. Except as relay be provided In Section 4.10
above; Customer agrees and understands that SUPERION MAKES NO
WARRANTIES WHATSOEVER;.EXPRESSED OR:IMPLIEIj'WITH REGARD
TO THE'THIROwPARTY PRODUCTS: .ALL WARRANTIES (IF ANY) ARE
PROVIDED TO CUSTOMER BY THE=LICENSORS, MANUFACTURERS OR
,'PROVIDERS OF SUCH THIRD -PARTY PRODUCTS; SUPERION EXPLICITLY
DISCLAIMS ALL WAR.RANTIES.OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, EXCEPT FOR ITS OBLIGATION TO REMIT
PAYMENT RECEIVED FROM CUSTOMER TO THE THIRD PARTY
PURSUANT TO THIS AGREEMENT, SUPERION WILL HAVE NO LIABILITY
WHATSOEVER IN CONNECTION WITH THE THIRD -PARTY PRODUCTS',
4.16' Other Limitations. The warranties made bySuperion In this
Agreement, and the obligations of:Superion under this. Agreement; run
onlyto Customer and 'not toots Affiliates, its customers or any other'
_Persons. Under no.circumstancesshall any Affiliate or customer of
Customer or,any: other, Person be_ ,considered. a thlyd-parity beneficlary-
.of this: Agreement, or otherwise entitled to any rights -or remedies
wider ,this Agreement- (including, any right to be: consulted 1n
connection with any variation or rescission of the Agreeriient agreed
between Superion and Customer), even If Affiliates, customers or
other Personvareprovided access.to..the Solution or.data maintained
in the Solution via the Internetorother networked environment.
Except to the extent specified In an Order, Superion shall not be
deemed Customer's official record keeper for regulatory or other
purposes and shall have no obligation to retain any records or data on
Customer's behalf after termination or expiration of this,Agreement.
Confidentiality, Security, Ownership and Use Restrictions.
5,1 Confidentiality. The patty:receivingConfiden(lafiriformation
("Recelving Patty").of the other ("Disclosing Party") shall not, and shall
cause its Authorized Recipients not.to, use Co.nfidentialinformation for
any purpose except as necessary to Implement, perform Ior enforce this
Agreement, RecefvingAartyw111 use the same reasonable efforts:to: (a)
protect'the Confidential Information of Disclosing Party as it uses to
protect Its oval proprietary information and. data. Prior to disclosing
the Confidential, Information to its Authorized Recipients, Receiving
Party shall inform them of the confidential riature of the Confidential
Information and r0tilre hem to ablde by the terms of this Agreernent,
Receiving Party w ill promptly notifyIsclosing PartylPReceiving Party
discovers any Improper use or disclosure of Confidential Irifonnation
and will promptly commence all reasonable. efforts to investigate and
correct the causes Of -such Improper use. or.dlscfos6re: If Receiving
Party believes. the Confidential information must be disclosed :under
applicable law, Receiving Party relay do so,providedthat, to the extent
permitted by law, the,other party Is:given i reasonable•opportunity to.
contest such disclosure or obtain a protective order,
5.2 Security,
(tt) Superion will implement commercially reasonable
administrative, technical and physical safeguards designed to:
(1) ensure the; security and "confidentiality of Customer Data;
(iQprotectagainst=any anticipated threats or hazards to the
security cir Integrity of Customer Data; -and (lit) protect against
unauthorized access to or use of Custorier'Data. Superlon will
review and test suchsafeguardsoii no less than an annual basis.
(G); if Customer makes the Solution or data maintained by the
Solution accessible through tile Internet or other networked
environment, Customershall be solely responsible forall aspects
of Internet use, and shall maintain, in connection with the
operation or use of the Solution, adequate technical and
procedural access controls and system security requirements
and devices, necessary for data privacy, confidentiality, Integrity,
authorization, authentication and "non -repudiation ;and virus
detection 'and eradication.
(e) To the extent .that- Third -Party, Users- are permitted to have
access to tite Solution; Customusli"all maintain agreements with
such Third 'Party Users that adequately protect the
confidentlality and Intellectual property rights of Superion in the
Solution and Documentation, and disclaim any liability or
responsibility ofSuperionytith resp"ect:to such Third Party Users.
S3 Personal Data. If Superion processes or otherwise has access
'to .any personal data or personal Information on Customer's behalf
when performing Superion's obliga(io.ns under this Agreement, then:
(1) Customer shall ,be the data controller (where "data controller"
means an entity .which alone or Jointly with others determines
purposes forwhich and the manner inwhich any pe,rsonal data are, or
are to be, processed) and Superion shall be a data processor (where
"data processor" means' an entity which processes the data only on
Behalf of the. data controller and not for any purposes of its own);
(11) Custoriier sh all ensure that Itihas obtained all necessary consents
and'It is entitled to transfer the relevant personal data or personal
16formationto.Superion so that 5uperlon- may lawfully use, :process:and
transfer the personal data and personal Information in accordance with
this Agreement on Customer's behalf; which may include Superion
processing and transferring the relevant, personal data or personal
information outside the country whe.re'Customer and the Authorized
Use.rs.are located in order for Superion to provide the Solution and
perform its other obligations under this Agreement; and,( IiI) Superlon
shall process tine personal data and personal information only In
accordance with any lawful and reasonable Instructions given by
Customer from time to time as set out In *and in accordance with the
terms.of this Agreement; and (Iv) each party shall take appropriate
technical and organizational measures :against unauthorized or
unlawful processing of the personal data and personal Information or
its'accidental loss,destructlon or damage so that, having regard to the
state of technological development and the costof Implementing any
measures, the measures taken ensure a level.of security appropriate to
the harm that might result from such unauthorized or unlawful
processing or accidental loss, destruction or damage'ln relation to the
personal data and personal information and the nature of the personal
data and personal lnforniation .being protected. If necessary, ,the
parties will cooperate to document these measures taken.
5.4 SGSolution Details. The SG Solution Detalls are trade secrets
and proprietary property of Superion or Its licensors, having great
9 of 26
commercial value to Superion or Its licensors. Title to.all.SG Solution
Details and all related` intellectual property and other ownership lights.
-
shall be and remalnexclusively VAtill :SuperionorIts licensors, even with
respectto such.items that were created by.:Superion specifically for or,
on behalf of Customer. ;Superion and Its Affiliates may freely -use
Feedback without attribution or tine need forSuperion, its Affiliates or
any third party to pay Customer or any third partyany royalties orother
fees of -any kind. This Agreementis not an agreement of sale, and no
Intellectual property or other ownership rights to any. SG Solution
Details are transferred to Customer by virtue.of this Agreement. All
copies of SG Solution Details in Customer's pots esslon:s hail I be deemed
to be on loan to Custoner during.the term of this Agreement.
5.5 Use Restrictions. Except to the extent specifically authorized
by this Agreement, Customer shall not, shall not attempt to, andshall
not permit any other Pyr'son under its'reasonable control to: (a) use.any
SG Solution Detail for any purpose; at any location,orin;any manner
not specifically authorized by this Agreement; (b) make or retain any
Copy of -any SG'Splutlop Detail; (c),create or recreate;the�source.code
for 'the. Solution,. or re -engineer, reverse engineer, decompile or
Alsassemble the Soiutlonexcepfto,the extent specifically permitted
applicable law; (d) modify, adapt, -translate or create derivative works
based upon the Solutlonor Docunentallon, or combine or merge any
part of the Solution or Documentation with or into any other software
or documentation except to tine extent specifically permitted by
applicable law, (e) refer to, disclose or otherwise use any SG;Solution
Detail as part of any effort either(1) to -develop a program having any
functional attributes, visual expresslons or other features similar to
those of the Solution or (ii) to compete with Superion; (f) remove,.erase
or tamper vrith,any copyright or.other proprietary r;oticeprinted,or
stamped on,•'affixed to, or encoded.or recorded in any SG 'Solution
Detail, or Pali to preserve all copyright and other proprietary noticesin
.any Copy of any Solution Detail made by Customer; (g) sell, market,.
license, sublicense; .distribute or otherwise. grant to any Person;
including•anyoutsourcer,vendor,sub-contractor, coijsultant'&partner,
any.right to use;any SG Solution. Detail or allow suclltoiher Person to
use or have access to anySG-Solution Detall,_whethe. e on'Customer's
behalf or otherwise; or (h) use therSolution.to conduct' any type ,of
application service provider, service bureau or time-sharing operation
or to provide remote processing,. network processing, network
telecommunications orsimilae servicesto any Person, whetheron a fee
basis or otherwise.
5.6 Notice:aind Remedy of Breaches. Each party shall promptly
give notice to the -other of anyactual orsuspected breach by It of any
of the provisions of`this.Sectlon'5, whether or not Intentional, and the
breaching party shall, at Its expense, take all steps reasonably
requested by the.olher party to,p"reventor remedy the breach;
5.7 Enforcement. Each party acknowledges that any -breach of
any of the provisions of`this Secilon 5 may result lh1rreparable Injury
to the other for which money damages would not adequately
compensate. if there is a breach, then the injured party shall be
entitled, In addition to.all other rights and remedies which It may have,
to haye.a decree of specific performance or an injunction. issued by any
competent ;court, requiring the breach to be,cured or enjoining all
Persons Involved from continuing the breach.
Professional Services
6.1 Professional Services; An ;Order may' Identify certain
Professional Services. .
6i2 Professidnal-Servlces Fees, Customer shall pay to, Superlon
the professlonalservices fees stated on the Order. In each casewhere,
professional seivices fees.are not'specifled on the Order,, then the fees
for such services stall be based upon ;Superion's then standard
professional services fee rates.,
6.3 Expensei Reimbursements. Customer shall reimburse
Superlon for reasonable. travel, living and othdrout-of-pocket expenses:
Incurred by Superlon personnel ,In connection withall services;.
Including; but hot 'limited .to, Professlonal' Services andmaintenance
and support rendered by Superlon. Reimbursable expenses shall be
Incurred by Superlon personnel In accordance with Superion's then
current per dlern;travel expense guidelines, a copy of which will be
included In the: Order. Superlon` shall Invoice Customer for.
reimbursement of these expenses on monthly basis, as incurred. J
6.4 Cooperation And Access to'Fadlities, Data and Employees.
To the extentreasonably necessary for Superlon -to perform Its,
obligations under this Agreement,.Custorner shall provide-to_Superlon
access to Customer's location site, equipment, data and employees,
and shall otherwise cooperate with Superion In- its performance
hereunder, all as reasonably necessary for Superion to perform Its
obligations under this Agreement.
65 Professionai Services Warranty. Superlon warrants to
,Customer that -Professional Services will be performed. In a good and
viorknianlike manner by qualified personnel, subject to Section 6.4.
Superiors shall have no liability under ,this,Section 6,5 unless, within -
thirty (30) days after the actual date of the particular Professional
Services; Superion receives notice from Customer describing the
breach of this warranty, together with adequate supporting
documentation and data. Upon recelptof anysuch notice, Superion's
only obligation uhder=this Section 6,5 Into remedy the breach and
reperform the particular Professional Services. affected as soon as
reasonably practical atno additional.charge.
6.6` Compliance with Customer Policies. While Superlon
personnel are perforrning.services at Customer's site, Superlon wM
ensure that such personnel comply with Customer's reasonable
security procedures°and site policies that are generally applicable to
Customer's other suppliers providing similar services and that have
been provided to Superlon In writing and In advance. Customer shall
promptly. reimburse Superlon for any out-of-pocket costs -incurred in
complying with such procedures and policies.
6.1 -Contributed Material. In the process of Superlon's
performing Professional Services, Customer may, from time to time,
provide Superlon with designs, plans, or.specifications, Improvements,
works or other material for incluslPh In, or making modifications to, the
Solution, the Documentation or any.other deliverables,("Contributed
Material'). Customer grants to Superlon a nonexclusive, Irrevocable,
perpetual,, transferable right, without the payment of any royalties or
other compensation of:any kind and without the right of attribution,
for Superlon, Superion's Affiliates and Superlon=s. licensees to make,
use, sell and create, derivative works of the`Contributed Material.
10 of26
Term arid 7enninatton.
7.1 Order Term. The Order may state an initial term for the use
of the Solution;("initial Terns") and rimy state renewal terms (each a
"Renewal Term"),., "Order Term" meansaiie Initial Term together with
any Renew pi Terms.
7.2 Termination'. EititerpartymaytermlnatethisAgreementby
giving notice of termination to tlie. other party if the other party
breaches any of its material obligations (other than Customer's failure
to pay Support. Fees during a Renewal Support Term) :under this
Agreementand does not cure the breach vAthin thirty. (30) days after
receiving noticeidescribing the breach In reasonable detall.
7.3 Effect of Termination, The provisions of Sectloiis 3, ti, 5, 7.3
and 10 shall survive any termination of this Agreement; whether under
this Section 7 or'otherwlse.. Custoinershali be liable for -all payments
due to Superlon for the period ending, on. the date of termination.
Upon a' termination of`tiftAgreement, whether underthis Section 7'or
otherwise, or, upon -the expiration or terminationofan Order Term,
Customer shall: (1)' discontinue-a11 .use of the affected Solution, and
Documentation, (i) promptly return to-5uperion Al copies of .the
affected Solution arid Documentation and any other affected S.G.
Solution Details then in Customer's possession; and (ill) give notice to
5uperion certifying that all copies ofsuch,items have been permanently
deleted.
8. Ternis:Ajtpllcable To Saas; ASP and Hosting;: The following
provisions in't1% Section 8 apply solely to Hosting -Services and to
Orders for and ASP Solution or SaaS'Solution,
811 Sans, ASP. and Hosting. Superlon shail:provide the Hosting
,Services and/or access to the ASP Solution or, Saps solution, as
described and: for the term speeified on the Order.
8.2 Passwords and Solution Access, If Superlon provides
Customer or Its: Authorized Userswith :unique .access codes to access
the Solution (each,. a "Password"), Customer shall hold any such
Passwords in strict confidence and. shall: not assign, share; misuse or
abuse the Passwords or attemptto render ineffective the. password
protection of the Solution. If Customer suspects or learns that '.a
Password Is being used to gain unauthorized access to the Solution,
Customer will 16fmedlately notify Superlon so that ]can change, or
assist. Customer, in changing, the applicable Password. To the.extent
the Solution is within Superion's network, Superlon may suspend
access to the -'Solution without advance notice If Superlon reasonably
•believes the Solution is being used or accessed in an unauthorized,
illegal :or disruptive manner, provided that Superiors will promptly
noilfy,Custonler o.f, any.such.event.
0 Customer Data.
(a) Customer shall supply, or cause to be supplied; all Customer
Supplied Data. Customer shall transmltthe Customer;Suppiled 'Data to
Superlon by communications link or iwanother mannerclescribe.d-on
the Order. As between Superlon ;and Customer; Customer shall be
responsible for ensuring that the Customer Supplied Data is Accurate.
and complete.. Customer represents and warrant to Superion' that
Customer has the -full legal right for Customer and Superlon; Its
affiliates and agents to use Use Customer Supplied Data forprocessing
hereunder.
(b) Within thirty (30) days after termination of Hosting Services or of
an Order for an ASP Solution or SaaS Solution, Customer shall give
Superioman instruction notice regarding the d!sposltlon of any tapes;
data, files and other property belonging to Customer and then in
Superiorl's possession. To the extent; practicable and at Customer's
expense,after recelptof such notice,_Superion shall use commercially
reasonable efforts comply with the=notice,.1n*dud!ng converting the
data on the Solution to machine-readabie form. Superion may retain
such property. until Superion receives all payments due to Superion
under that Order.: If;Cuitomer fallssto give that notice within thirty (30)
days after.such 'termination, then Superion `may dispose. of such
property Ina commercially reasonable manner.
'(c) .In order to.improve,Superion's:product and service offerings for
customers, Superion ma, 'maintain a'database.of inforniationresiding
on the Solution-'Superionand its affiliates may use and distribute' such
data in an°aggregated and de,identlfied format, Including as a: part of
the'' development, distribution and licensing of any Super!on'product or
service,offe.ring.
8.4 Regulatory Access, To the extent permitted by law, each
party :will notify tile' other promptly of any formal request by an
authorized -governmental agency or:regulator to exaimine Customer
Data or other records, if any, regarding, Customer that are maintained
In Superion facilitles under this Agreement. •Customer will reimburse
Superion for the reasonable out-of-pocket costs Superion incurs; and
for time spent, . in making such Customer Data or other records, if any,
available for examination and audit:by the governmental agency or
regulatory authority that has Jurisdiction over Custome"r's business.
85 Support. Superion shall provide to Customer the ongoing
support services'as.described In"the Order.
8.6 Data Backup and Disaster Recovery. If the Solution
maintains a database'then, unless otherwise stated on the Order:
(a) Superionshajl provide an eleclronicbackup of the Customer Data
accordance with the backup cycle defined in the Order (and if no
backup'cycle, s defined, at reasonable intervals); and
(b) Superion shall maintain a disaster recovery plan Which Includes
a procedure for the restoration of Customer's production
environment at an alternate• facility in the event of a.disaster.
Superion's disaster recovery=plan shall be testgo, at least.once
each calendaryear,
8.7 Interruption to Solution. From time to time, Superion shall be
entitled (at its discretion, without Incurring liability' for so doing) to
Interrupt the Solution to: (i) perform repairs and other maintenance
and Install enhancements on Superfon's equipment, software and/or
oihersystems that are.requlred forthe provision of the Solution, or (II)
make adjustments to It's infrastructure (including, for example, In
relation to resources shared by its other customers) and thereby cause
a disruption In tife provision of`the Solution. Except ,In the case of
emergency repairs, maintenance oradjustments, Superion will (a) give
Customer reasonable prior notice of the interruption; (b)llmit-such
4riterruptions to outside.of Superfon's normal business' hours; aril (c)
usecommercially'reasonable efforts to minimize the impact of tine
interruption..
8:8 Harmful Code, Using a recent version of a reputable virus -
checking, product(Wthe.extent. commercially available), Customerwill
I I of 2G
'check the Specified Configuration for'Harmful Code and ensure no
Harinful Code•is=introduced by Its, Md users or from its•systerns Into
=any systems used in the Solution arid will use.commerciaily reasonable
efforts'to ellminate any such Harmful Code "that -either Customer or
Superion discovers;
8.9 Volume Increases. Customer shall :give notice to Superion
whenever Customer intends to materially Increase the,;volume of data
to be processed on the Solution. Any such` increase that r6u'Its'In an
Increase beyond the Scope of Use,requlres an'addltiona► executed
Order and the paymentof additional fees.
9. Terms ,ltpplfcable to Software Licenses. 'The foilowing
provisions in tills Section 9 apply solely to an -Order that' provides the
right for Custorner;to install the Solution°at the facility identified on the
Order.
9.1 Grant,,: Except as otherwise provided In an Order, Superion
grants -to Customer a non -transferable; non-exclusive, term 1!cense.to
use the Solution.in accordance,with-this Agreement and the Scope,of
Use. The Solution shall .be installed in object cod2 form only at
Customer's.location(s) listed on Ufa order ("Desig eitect Locatlon(s)").
Customer may, subject to Section 10,4; use or access the Solution ator'
from Customer locations worldwide. Customer may change a
Designated 'Location'by giving prompt notice thereof to Superion;
Customer may copy:and use the Solution installed at tiie Designated
Location for inactive liack-up and disaster recovery purposes:
Customer may copy the Documentation to the :extent reasonably
necessary for use of the Solution under this Agreement,
9.2 Initial installation, 'Superion shall deliver to Customer the
initial Copes of the Solution stated on the Order'by<supplying-such
Inlllal Copies (a)byphysical shipment, such as on adlsc orother media,
or (G) by electroniccle!ivery, such as by posting it onSup erIbn's network
for downloading: Physical shipment Is on F.O.B. terms, Superion's
t shipping poinand electronlc,delivery Is deemed effective at the time
Superion provides Customer with -access to -download tine Solution.
The date of such`;delivery shall be, referred to as the."De..l!veryDate:'-
9.3 Support; Beginning on the Order Execution Date and
continuing for.the duration of the Initial support teen set forth on the
Order ("Initial Support Term"), Superion shall provide'the-ongoing
support services described in that order; and Customer shall pay to
Superion support fees stated on such Order ("Support:Fees" )._ Upon
expiration of the Initial. Support.Term, the. ongoing support services
shall automatically renew and Customer shall be obligated to pay the
Support Fees,foraddltlonal annual.supportperiods (each a "Renewal
Support Term"), until the earller of.
(a) a party giv!ng,the other notice: of Its-intent'to terminate -ongoing.
support services (in accordance with'Section 10.1) at least sixty (60)
clays before the -end of'. tile In Support Term or Renewal Support
Term, as applicable, provided' that Superion shall not provide such
notice of'support'termination if such termination would be effective
prior to whicheve"r.Is,tile later of (1) tile. fifth (5th) anniversary of the
order Execution Date; or (g) the date which falls at. the end of. the
period"equal t'o.two (2) times the Initial, Sup port Term; or
(b) termination of this, Agreement,
On an annual basis,Super!on may increase the Support Fees, payable.
9.4 SupportTernilnailon. Upon the effective date of termination
of ongoing support services by either party or at anytime when
Customer has failed to pay Support Fees, ("Su pportTerinrnation Date"):
(1); Superion shall discontinue providing all o..ngoing supportservlces,
Including Superion's obligations under Section 9.3; (if) any Superion
warranties under thls.Agreement shall cease to apply for the period
after tlieSupportTernilnation Date; amid (IiI) Superlon shall notbe liable
for_Customer's use of`the Solution after the`Support Termination Date
except for Superfon's'fidemniRcatl6h obligations for any third -party
claims covered by Section 4.2 that arose prior to the Support
Termination Date (but only to the "extent such claim would not have
been remedled by a Release made:+available by Superlon after the
Support Termination Date).
9.5 Software Warranty. Superion warrants to Customer that for
a'period'of twelve, (12);months from the. Delivery Date, the Solution (as
delivered to Customer by Superion.and when properly used for the
purposeand in themanner specifically authorized by this Agreement),
willperform as described in the Documentation in all material respects.
Superion's sole obligation and liability under this warranty is to comply
With the provisions of Section9.3 of this Agreement.
9.6 Remote Access of Installed Software. Provided that
Superlon performs sucti'services In accordance.witti the confidentlality
provisions of this Agreement, Customer shall permit Superion, at
Superton's option, to remotely access the Solution Installed at the
Designated Location(or the purpose of providing support services to
Customer under Section9.3 and otherwise implementing time purposes
of this Agreement. In.remotely accessing such.Solution, Superlon will
coriiply with Customer's reasonable -security procedures and.company
policies that have been provided toSuperlon in writing .Customer shall
promptly.reimburse Superion for any out-of-pocket costs incurred In
complying with such procedures.and'policies;
V 8ackup.,,Cu"stomeracknowledge"s thatlt lsaha best)urlge of
the:value and Importance of thedata field on Customer's systems and
that Customer shall be solely responsible for maintaining. secure and
complete back-up copies of all data that Customer processes using the
Solution, which data will be backed -up on not less than a daily basis
and which willl be readily available onrnachines controlled by Customer
to facilitate the prompt restoration of such data in the eventof any loss
of or damage Wit. Superlon shall have no liability for any loss or
damage caused 1) Customer's failure to maintain such backed -up
copies.
.9.8 Audit. AkSuperion's expense and upon written request with
,reasonable notice,,Customer will permit Superion, its. personnel or its
outside :auditors to enter the relevant Customer locations during
normal business hours and audit the number`of copies of time Solution
;and Documentation in Customer's possession and Information
pertaining to Customer's compliance with thls Agreement. Such audits
shall not occur more than once in any twelve (12) month period (unless
Superion believes,. in good faith, that there has been a breach of this
Agreement by Customer) and shall be performed in a mariner not to
disrupt Customer's business and operations and will. respect the
conRdentialityofCustomer,Its suppiiers•andcustomers, Customerwill,
In a timely manner, reasonably cooperate with the auditors and provide
'the auditors all assistance -as they may reasonably request in
connection with the.audit. Customer may require auditors acting on
behalf of Superion to execute reasonable confidentiality agreements
12 of 26
and complyvilih Customer's reasonablesecurityrequirements, butthe
requirement will not apply to Superion's Internal audltors.otherv&e,
bound by!he confidentiality conditions of this Agieenient..
10. Other Provisions.
10.1 Notices. All notices, consents and other communications
under or regarding this Agreement shall be. in .writing and shall be
deemed to lave beenreceived on the.:eniler of: (a)`the date of actual
receipt; (b)-the-:third, business day after being mailed by firstclass,
certified or air mail or (c) the firstbuslness'day after.) eing sent bye
reputable overnight delivery service. Any notice may be given by
facsimlle, or email if notice by one of the foregoing Is provided
promptly thereafter. Customer's address for notices Is stated on the
Order. Superlon'saddress for notices lsstatedonthe Order. Inthecase
of (1) any notice by'Custonter alleging:a breach of this Agreement by
Superlon or (il) a termination of this. Agreement. Either party may
change. its address for notices by 'giving written notice of, the new
address to the other party.
10.2 Defined Terms.. As used In this Agree inent,;tlie terns below
(and their plural forms) have the following meanings;
(a) "affiliate" whether capitalized or not, means, with respect -to a
specified Person, any Personwhich directly or indirectlycontrols,
Is controlled by; or is under common control with -the specified.
Personas of the date of this Agreement, for as long as' such
relationship remains in effect.
(b) "Authorized Recipient" means: (1) with respect to. Customer,
Customer, any AUthorized,Userand any employee of a Customer
contractor, provided that the contractor. Is not a., competitor
Superlon^, and (ii) with respecttoSuperion, Superion, its foreign
and domestic Affiliates and.their respective.contractors.
(C) "Authorized, User" means a:C istomer employee.
(t1) "Confidential Information" -means. all business or technical
Information disclosed by Disciosing Party to Recelving'Party in
connection with this Agreement, Confidential Information
includes without limitation: (1) Customer Data and the details of
Customer's computer operations; and (0) the SGSolution Detalls.
Confidential I forination does not include Information (aa).
prior to the receipt thereof under this Agreement, had been
developed Independently by Receiving Party, or was lawfully
known to Receiving Party, or .had been lawfully received by
Receiving Party from other-sources,;provided,such other source
did not receive It due to a breach of an agreement with
Discloshig;Party;.:and Receiving'.Party knew of such breach or
ought to.have reasonablyknown of such breach;'(bb) Is publicly
known at>or after the time ;either party first learns of such
Information, or genericinforniation or knowledge which either
party would have learned_ in the course of its work in the trade,
business or industry; or (cc) subsequent to..the receipt thereof
under thls.Agreement; (1)Is published by Disciosing Party or is
disclosed generally by Disclosing Party to. others vAthout.
restrictlon on Its use and disclosure; or (2) has been lawfully
obtained by Receiving Party from.other sources which Receiving
Party reasonably believes lawfully tame to possess it.
(e) "copy" whethercapitalized or not,:means any paper disk, tape,
film, memory. device or other material or object on or in which
any words, object code, source code or otlier symbols are
written, recorded or encoded, whether permanent or transitory.
W' "Customer Data" means data stored In, or processed by, the
Solution; provided that aggregated data that Is not`personally
Identifiable data and not identifiable to Customer shall not be
deemed Customer Data nor Customer's Confidential
Information.
(g) "Customer .Supplied .Data" means any Information or data
introduced Into the Solution by or, on behalf of Customer.
(11) "Disputed Amount" means a good falth dispute by Customer of
certain amounts invoiced under this Agreement. An amount will
only constitute a. Disputed Amount If (g Customer has given
notice'of.the dispute to Superlon promptly after receiving the.
Invoice and (ti) the notice explains Customers position In
reasonable detail:. A disputed will not exist as to an invoice in Its
entirety merely because certain amounts on the invoice are
Disputed Amounts.
(j) Documentation" means the standard user documentation
Superion provides for the Solution, as such Documentation may
be updated from thne to time.
(j) "Error" means a failure of a Supported Release to perform In all
material respects In accordance -with the Documentation.:
(k) "Export Laws" means any laws; administrative regulations and
executive orders of the U.S., the United Kiigrtoni and any other
jurisdiction where,any SG Solution Details will be. located or from
where any SG Solution Details will be accessed under this
Agreement relating to the, control of imports and exports of
commodities and technical data, use or remote use of software
and related property or services, embargo of goods. or services
or registration of this Agreement Including the Export
Administration Regulations of the U.S. Department of
Commerce ;and the regulatlons and executive orders
administered by the Office of Foreign Asset Control of the U.S.
Departmehtof the Treasury.
(1) "Feedback"'means any suggestions or recommendations for
Improvements or modifications to the Solution made by or on
behalf of Customer.
(111) 'including" whether capitalized ormot, means Including but not
limited to.
(11) "Liability Cap" means the greater of Fifty Thousand.U.S. Dollars
(US$50,000)o'rthe amount Identified on the Order as the llability
cap, provided however that, If no amount is Identified on the
Order then the liability cap shalt be Fifty Thousand U.S. Dollars
(U5.$50;000)
(0). "Open source Software'.' means computer software made
generally available at no cliaree by the copyright holder under a
license which provides the., right to modify and distribute the
software to:anyone for any purpose at no charge.
13 of 26
(1)) "poison" whether capitalized or not, means anyandividual,-sole
proprietorship, Joint venture, partnership, corporation,
company, firm, bank, association, cooperative, trust, estate,
government, governmental agency, regulatory authority or
other.entily of -any nature.
(q) "Professional Services" means installation, Implementation,
training or -consulting services including custom modification
programming, support services relating to custom nodifications,
on -site support services, assistance with data transfers, system
restarts and relnstallattons provided by Superlon under this
Agreement.
(1) "Release" means a modification or update to the Solution, which
Superlon;: in its sole discretion, Incorporates into the Solution
without'requiring its then.existing cilent" base:to pay a separate
fee (other than support fees).
(S) "Scope of Use" means the Designated Computer(s), Designated
Location(s), Llcense.Term, Platform; Business Purpose,: Number
of Trades, Number of Work Stations, Number of Developers,
Number of 'Users, Volume Limit, Number of Production
Databases, Number of Production Servers; and/or other
restrlctlons or parameters as are stated In Section 5.5_or on the
Order. Scope of Use, shall not include the processing of any
Acquired Business. Customer shall use the Solution In
production to process Customer's. business; provided that all
Increases in the Scope of Use require the execution, of an
.amendment amending the Scope of Use.
(t) "SG Solution Details" means any of the following: the Solution
and Documentation; the object code and the source code for the
Solution, the visual expressions, screen formats,report formats
and other design features of the Solution, all Ideas; methods,
algorithms, formulae and concepts used in developing and/or
incorporated, Into the Solution or Documentation, all future
modifications, updates, Releases, improvements and
enhancements of the Solution or Documentation; all'derivalive
works (as. such term is used in the U.S. copyright laws) based
upon any of the foregoing and all copies of theforegoing.
(11) "Supported Release" means„ unless otherw(se stated in the
Order, the latest Release of the Solution tfiat Is generally
available to Superlon's clientbase.
(V) "Third -Party Product" means Third -Party Software, Third Party
Hardware, Third -Party Data or Third -Party Services.
(w) "Third -Party Hardware" means that hardware specified as thlyd
party.hardware on the Order.
(x) "Third -Party _S'ervices" means those services. specified as third
party.services on the Order.
(y) "Thlyd-Party Software" means the software_ specified as third
party software on the Order.
(z) "Third -Party User" means any of Customers customers, ortheir
customers,'tothe extent such persons are provided access to the
Solution orThIrd-Party Data hereunder.
10.3 Parties In Interest.
(t) This Agreement shall bind, .benefit and be, enforceable by and
agalnst4Sup.erion and Customer and, their respective permitted
successors,and assigns:
(b) Customer shall not assign .thls'-Agreement or any of its rights
hereunder;- nor delegate any of its obligations hereunder,
wlthouCSuperlon's prior written consent, except such consent.
shall not be required in the case of an assignment of tills
Agreement (but not of any Individual rights or obligations
hereunder) to(i)a purchaser of or"successor to substantially all
of Customer's business (unless such purchaser or successor Is a.
software; clata processing or computer services vendorthatis a
competitor of Superion, its parent company or' any of its
Afiiliates);or(li).an Affiliate of Customer; provided1n. the case.of
such.an assignment, Customer guarantees the obligations of the
Assignee and the use of the Solution,ls not,broadened beyond
"the Scope of Use. Any assignment by Customer In breach of this
Sectionshallbevoli;L Any expressassignme.ntoftlilsAgreement
any change in control of Customer (or.fts Affiliate In1he case of
an assignmentto that Affiliate under this Section 10:3(b) and any
assignent by merger or otherwise by operation of lawshall
constitute an assignment of this.Agreement by Customer for
purposes of this. Section 0 ("Customer Assignment"), In the
event of a CustomerAsslgnmerit, or any acquisition of additional
business by. Customer, whether by asset acquisition; merger or
otherwise by: operation of law (collectively with the Customer
Assignment, "Customer *.Additional Bushress- Acquisition"),
Customer shall 'give notice to Superion notifying `Superion if
Customer desires to us"e the Solution to process any additional
business related to such Customer Additional Business
Acquisition (''Acquired Oushiess".).
10.4 Export Laws, Customer acknowledges that the SG Solution
Details and the services provided by Superlon hereunder.'and this
Agreementare subject tothe Export Lava. Customer shallriot violate
the Export Laws or_otherwise export, re-export or use, directly or
Indirectly (including: Via remote access), any part of the Solution,
Confidential Information orservices'in a manner, or to or fQranyperson
or entity, for which a license.or other authorization is requleed under
the.Export'Laws without first obtaining such license or authorization.
10.5 Relationship: Tile mlatlonship betweent a parties created
by tills AgreementJs that of Independent contractors and.not partners,
joint venturers or agents.
106 Entire understanding. This Agreement, which includes and
Incorporates the Orde; and any other schedules, exhlbitsand addenda
hereto states the entire understanding between the parties with
respect to its subject matter, and 'supersedes all prior proposals;
marketing materials, negotiations, representations. (whether
negligently or Innocently made), agreements and otherwritten or oral
communications between the parties with ,respect to. the subject
matter of this Agreement. In the event of a conflict between the
provislons.of the SST'and an Order Incorpqra,tIng tile SST, the terms of
such Order shall p"revail. Any written, printed or other materials which
Superion provides to Customer that are not Included in the
Documentatiori`are.providedon an"as `Is" basis, withoutsvarranty, and
solely as an accommodation to Customer. In entering Into tills
Agreement each party acknowledges and agrees that It has not relled
on -any express or Implied representation, warranty, collateral contract
of26
or other assurance (whether,riegiigently or innocently made), except
those expressly set outin this Agreement. Each party waives 611YIghts
and remedies which, Vut for this Section 10.6; might othenvlse be
available to It In respect of any suuch representation ,(whether
negligently or Innocently made),' warranty, collateral contract or other
assurance. Nothing Indhis Agree mentshall limit or exclude any. liabllity
for fraud or fraudulent'misrepre'seritation..
10.7 Modification and WW6r. No modification of- this
Agreement, and no waiver of any breach of this Agreement, shall be
effective unless!in writingand signed by an authorized representative
of the"party against whom enforcement Is sought. This Agreement may
not - be modified.Or 'amended by:°electronic means without -written
agreement of the parties with respect to. formats and protocols. No
waiver of any breach of_this Agreement. and no course of dealing
between the patties, shall be construed as a vraiver'of any subsequent
[)reach of this Agreement.
10.8 Severabllily, Heading and Counterparts. A determination
Ghat any provision of this Agreement Is Invalid or unenforceable shall
not affect the otiierprovislonsofthTsAgreement. Secti inheadingsare
for convenience of reference only and shall not affect the
interpretation_of tills Agreement. Tills Agreement may:be executed In
one :ormore counterparts, each of which shall be deemed an original
anti ail of which together shall constitute one and the same instrument.
10.9 Personnel: Customer- acknowledges that;, (a) .Superion
expends substantial time and money, oirari ongoing:'basis, to recruit
and train its programmers; trainers, data processing, customer support
and professional services team personnel ("Strpe' don "Personnel"); (b)
Superlon's businesslshighly competitive, Is marketed througkout the
United States, Europe and in many other locations svorldwlde, and
requires long sales lead limes"often exceeding one (1) year;.and(c) if
Customer were to hire Superion, Personnel, then Superion maysuffer
lost sales opportunitiesand would Incur: substantial brae and money In
hiring and training replacements) for those 'Superlon Personnel.
Accordingly, If Custoriier, directly or through one or,more subsidiaries
or other controlled.entities, hires-,any5uperion Personnel at -anytime
when such Superlon-Personnel is employed or engaged by Superion or
during the six (6);months after such employment or engagement ends,
then Customer,"hall pay to:5uperlon as llquldated damages (and not a
penalty) an amount equal to twelve (12) months of such Superion
Personnel's salary. and. 'other compensation (including, 'bonus or
commission payments) .al.the.time of Ieavinghis/her employment:or
engagement. with :Superion. For purposes of this provision; "hire"
means to employ as an employee;or to engage as an independent
contractor, whether on a full-tinle,,paitAlme or temporarybasls. This
provision will remain in_effectduring the term of this:Agreement"and
for a period of`one'(1) year after expiration or termination ofthis
Agreement.
10,10 Jurisdiction a.nd. Governing Law. ThIs'Agreement and'any
dispute or claim arising, directly orindirectiy, out or in connection
with It or'its subject matter or formation (Including pon•contractua)
dlsputesor cialms) Is governed by,..and shall be construed.and enforced
in accordance with, the laws of the State. of Texas excluding choice,of
law, Each partyirrevocably (I) agrees that a County or Circult.Court In:
the Eastern_ District: of 'Texas, Jefferson County, shall `have exclusive
jurisdiction to settle any dispute, controversy or ciaim.arlsing, directly
or Indirectly, out of or.in connection with tills Agreement, or the
breach, lermlriatJon or validity thereof (including non contractual
disputes or claims) and<that'sucli court shall be the proper venue
therefor; (11) walves;the right to trial by jury, (Ill) consents to service of
process by first class certlfled mall, return receipt requested, postage
prepald, to the address at which the, Party Is to receive notice and (iv)
agrees that the ;prevailing party shall be entitled to recover its
15 of26
`reasonable attorney% fees(Including, if applicable; charges "for in
house -counsel); court..costs and other;legal expenses:from the :other
part.
Support Standrifds
d. Support hours: lloul•s nttrhig Which Stq}ei,l.(,ili's,'I'cici)lioi c;Supiiort Will be Available to: Customer In Connection, with
the Proylslon of 111nintennpee: Unless otherwise noted in the Order as to Support Type, support,liours.are Monday through
Friday, 8:00 A.M. to 5:00 P.A.Customer's Local Time within the continental Uuited States; excluding liolidays ("5xo').
IT. Tnrgeted,ResponscTimes
"Nolifcatiou" means a.coinmunication to Sauperlon's help desk'by means of:'(i) Superion.'.s web lielpline; (ii) the placement ofa
teleplione:eall; or (iii) tilesending,of an e-ninil, in each case,. in Rccordnnce with-Superion's then-currentpolicies and procedures
for subini(ting such communications:
With respect to Superior's support obligations, 'Superior will use diligent,., commercially reasonable efforts' to respond. to
Noliriicntiolis froin Custonieu fe'latingto Ilie, Solution.identifaed in the Order inaccordance Willi (lie following guidelines with the
time period'(6 be picasured, beginning with the;titst applicable Superion "Teleph,one`Support"liour occurring after. Superion'.s:
receipt of the Notification:
Puloa Ilya
Acsca ilitiaa ,
Respoiase Gonln
Rcsolittiaa Goalx
Urgent.
A support issue shall be considered Uageut=wilen
Superion has a stated
Although resolution
I
it produces ,a Total System Failure; meaning
goal to respond
tinies vary depending
Superior's. Solution is not performing a process
within 60 nihiules of
oil ;lid exaet;issue'aitd
that hms caused a complete_ w&k'stolipage.
(lie issue being
customer
reported and have a
environment,,
resolution pinnwitlilir
Superion has a stated
24 hours;
goal to resolve: tin
ar't;cnt issue tvitltin-24
Hours or -provide a
Critical
A support issue shall be considered CriNcal.when
Superion has a stated,
2
a criticajl failure in operations occurs; mealiing
'gotii to respond
adsolu. plan, with
Superior's Solutions is not performing,n critical
within :two hours of
urgent issues within
process ant. prevents (lie 'continuation of basic
the issue being
24 hours of thoIssue
operations. Critical .problems do not ,have ai
reported;
being reported:
worktirou d. This classificatioai does not apply -to
intermillent problems.
A resolution " ,plan
details the. steps
Non,-
A support issue shall be considered Non -Critical
Superion has a stated
Critical
when a non -critical failure in operations occurs;
goal io respond
necessary to;
3
meaning Superior's Solutions is not performing
within, four hours of
understand and
non -critical processes, bill the system. is still usautile,
tlae issue being
liossihly resolve the:
for its intended,pinpose orthere ere is "a workaround.,
reported.
issue.
minor
A supportissue will be considered Minor when tile
Superion has,a started
4
issue, causes minor disruptions'in the way tasks ai'c
goal to respond
performed; bill flocs trot affect workflow 'or
within 241hours ofthe
operations. This may hiclud'e cosmetic issues;
issue being°,reported.
general questions, and flow" to use .certaiii features
of (lies stem:
kleasur•eefro n the nioirrerit;d.Case number is crerdeel As used herein a "Case:number" is createe! when n) Superion"s support
representative has been dlrectl)t contacted by Customer either by phone, entail, hi person, oi•,tlirough Superior's 'online:suppoi"l
Portal, and b) when Sirperloh s support representative assigns a case rq nber and cohveys that case puhiber to .lhe
16 of 26
Clistotuer: Ciislonrer• must provide renrole access to rls facility rising a Su1)crion aplimi eel r eurole irecess. clier)t so'!!tall Srrherioii
can peiforiii tlre_srrhpo t obllgalions and/or seriiices under this Order; and id/l'provide cipproprlate sectu•i(), ciccess.and accolttrls
for Superion slq ff eind each session participant.
Customer must provide remote access fo !ts facility using a Superlon approved remole access client `so died Superioii'ecru pelforIn
the supporT obi gci(ons nniilor services under this,Agreenrenl; turd irlll provider appropr•iale security access and'acc unls for
Superlon stgff (ind each session participant.
17 of 2b
ANNEX I - SPECIFIED CONFIGURATION
Hardin re. Customer is'respons'tble for providing the DMS server. `'I'lie DMS. server It owned by Ctstomer itnd shall reside at
Customers site for ease;of management, The Click2Gov Servershnll.reside at n Superior dmin center. The Click2Gov,Servcr'it
owned by Sulierion;andis not the imperty of cite Cust6mcr.. The VPN Concenlrator Oiition_inc.ludes a router,,'which will be provided
by Suiierion to Custoiiicf. The rbutei, is, and shall remain, file property of Sup erion..
I S of 26
ANNC,,N 2 —SOLUTION AVAILABILITY AND SUPPORT
1. Suherimt'sResponsibilities
Silperioii tiudertakes;all retiionsib lities;as outlined under Parts I and 2 oftl is Annex2.
2 customer Responsibilities
Superion.will nol;be;liable fora Whim to perform its responsibilities under this,Annex2 to the extent sudh failure is directly caused. by
tlic,,Ctistomer licit complying with its obligations raider this Agreement.
A. Customer will designate named contacts for contacting sitpporL These named coatacts will have ti dertaked specific teaining
under the'supervision off:Superiou in order to log faults and interact with supportcservice%
B. Customer may be.asked to perform probleiit deteentinatioii:activities as suggestWIby 'Superroti. Problem deterniiiintioh,activ..ities
may include-capturing'error messaga d`ociuuenting steps -taken acid collecting eonfigu.ratiort inforniatioti: Customer may irlso
be reguested•to perform. resoltit ion act ivities. including mod ifyiag,processes..Customer -agrees to_cooperate with such requests;.
ifieasonable.
C. Customer is responsible. ('or the'tritiniug and organization ofits staff.
D. Siiperio t is notrcquiied to li•ovide;any.services,roliiting to lit'oblenis arising out ofatiy alterationsoforadditions'to the:Solutioti.
perforiiiedor atitftorizccl'by {iarties other lharr Superior (iiclut{ing'ils`eontractors, or third parties under'Superion's control):
l The So ion does not fnchrile ,development: work on sgRwarc not licensed lions 'Strper'ron or development °work for
enhancements or features that are outsideilte documcnted.fiiiictioiiality of the Solution except such work described in Exhibit.
i 1. Custoriiar stay rcquest;consulting and dovelopliicnt work front Snperion;as a separate biteable service.
l ..
E. Customer will appoint a vendor liaison manager who will be Customer's piiniaty contact with Sup rion.o.i all eotnmercial
matters related to flip, Solution.
1 Disagreement procedure
incase the partics.are in disagreetitent as to wllethei` Superion has fulfilled its obligations -under this ASP'Order:the parties shall use all
reasonable efforts to amicably settlesneli-dispute withimfrve (5) working days: If the dfsag eenicil re, ains,fo.11owing suci `:f ydAvoi'kigg.
i day period, the patties shall escplate (lie probleni to;tl a following representatives for the respective company to'resolve ihedisj tite:
1
Superion: lliiectorofOperations:(frsticvcl);VPofServices .(escalation-IS'level);(cneralManager•(esc;tlmiom-2"s eye1),
Custonier:
l 1he;disagreemer t procedure proposed herein shnll'not'. liinit erthe..i ;patty's right to firing a claim as provided f6r i.414e Agreement.
f Notwitlistatidingp iy"dispute under this Annex, the parties have>a duty to continue fulfilling.all tlieir other obligatfons.underthis
Agreement:
19 of 2G
PART 1—SCRViCC LEVEL COi1t[1IITNiriV'I' AIVD CLOUi)-PROCCDURi;S
CLOUD SOLUTIONS
Service Leyel Commitments and Cloud Procedures
'Service Level Commitments
The following Service Level commitments apply to the Customer's production systems. This "does not Include testing, or training
systems.
A. Availability
' �- S'ERVICE.I.EVELS --OR.THE APPLICATION SER.UICES Y
Superlon shall. provide the Application.dervices in accordance withthe following service levetcommitment provisions..
1. Overall System Availabltity
1.1 `Target, ln,each Service Period, the target for availability of the Application Services,is 99.9% CAvailability Target'). "Service Period"
means 'N hours per day Monday through Sunday each calendar month that:Customer receives the Application Services, excluding
Sundays between the hours of 12:01AM and,12'noon Eastern Time for scheduled' maintenance. During this time, Customers may
expert ence'intormittent interruptions. Superionwl.11 make commercially reasonable efforts to minimize tiie'fregbencyand duration of
these interruptions: Superion will notify the Customer if the entire maintenance window will be.required
12 Measurement. Service "availability 1s measured as. the total fume that the Application Services •are availableduring each .Service
Period for access'by Customer ("Service Availability). Unless otherwise specified, the measurement:period'for.Service Availability
Is each Service Period and Service -Availability shall be calculated at the end of' each Service Period. Service Availability
'measurenient,sfiaii'be applied to.the production enviroiiinent, and:thd points of measurement for all Application Services monitoring
shall be the servers and theInternet connections at Superion's hosted, environment,
Superion hos•te.chnology monitoring, measuring,: and recording'ServiceAvailability. The'Client, at thel discretion, may also employ
monitoring tools: Said additional reporting tool:must be non-invasive and may not:reside,tn total or in part on Superions systems:
Additionally, the use of said to must be mutually agreed upon by Superlon-and the Client. The Client shall be wholly responsible for
anyand all coslsassociated including but not limited to licenses, Installation on Client's systems, support, maintenance, and reneviai
costs. In (lie event, service availability does not meet contracted service levels and a discrepancy. exists between :Superion's
monitoring toolsand'the Client'si the Service Availability indicated by Superion's system shall apply for the purposes of,this:Appendix
B Standards Sheet.
1.3 Calculation. Service Availability Targets are subject to change monthly due to the variance of the number of days Ina month. The
total number of minutes which° the service was'NOT available in a given month sliall.exclude those items_ listed 48botion G. Service
Availability (bra given month shall be calculated using the following calculation:
The total number of minutes which'the service was NOT available in a given month shall be subtracted from the total number of
minutes available.in thegiven month. The resulting figure, is divided by the total number of minutes available in the given month.
1.4 Remedy. If the esdrvice Period target measurement, as calculated in 1.3, is .not met with the result trial the Customer's use of the
Application Services Is severely interrupted Ina given month, then the. Customer'shall be entitled to a credit calculated'as follows:
20 of-26
gctuat Servlce Availabllity;in tho rolovant
PercentagoRoductlon,in Monthly Fea.frr
� ,� � � Seruico Period
payablo by Customer hi3the hnmediatety�;
^
Sutise"'l 'CS°ontico�Period., ,
Less than 99.9% but greater than or equal to
5%
.99.b% '
Less than 99.0%. but;greater than or equal to.
10%;
95%0
Less than 95%
26%
if"during the term of lhis.Ag"reement, Superiors fails to meel,the service level commitment targets specified;above, the Gustorner's
sole and exclusive remedy in relation to such' failure shall be the applicable credits specified.ln'no evenUshall Superion be. obliged
to provide any refund.'rn relation to any credit, butrather the.credit shall be applied to the next followind.invoice'due to, the Customer:
Superiomwill utilize monitoring' software to track and report actual service availability In the relevant' service period: If the actual
service availability during the relevant service period;does not achleve:the Availability Target, Superion'wiil apply a service credit per
the speciticalionszabove.
However, any.,credit entitlement that is not reported by Superion must be requested by the Customer within-silt(6) months of its
occurrence or it shall,no longer be available and the Customer will be deemed to have waived any rights'in.relation thereto and (for
the avoid ance,of'doubt) Superior's failure lo.meet the relevant service level commitment. In no %entwill credits due .in. any given
Month exceed hventy-five percent (25%). of that month's fees; Customer shall not be' entHied to offset any"monthly Application
Services fee payments„nor withhold fee payments; on account ofa pending credit! 'Customer shall not be eligible'for credits for.any
period -where CustomerIs more'than_lhirty,(30) days past -due on their account. The amount of'any unused credit shalt be paid'in
cash to Customer upon termination of file Agreement.
Superion will provide reporting, as provided in Section G, showing performance and monthly service levels.
B:. Server Performance
Superiors :shall provide, sufficient server capacity for the duration ,of this hosting Agreement, to meet the reasonable:"performanoe
requirements forlhe number of concurrent system users provided for inthfs hosting Agreement.
Superion shall provide hardware resources sized for the number of users and software modules licensed in the hostmg,Agreement. If
ihe_ Customer requests, at some later date, to add additional software.modules, increase user licenses, increase storage requirement,
andlor request additional environments, the -hardware and software. requirements -of such additlons�wlll bq ovaluated.. lVadditional
resources are required to support such modifications; additional"tees may apply:
If.the.addilion of users, unusually heavy use; or other factors require additional resources for support the. Customer (e:g., hardware,
software,. people, data comm unicatIons link,; etc:); Superion and the Customer Will confer on the matter until:a mutually agreeable
solution is ideritifred.
Performance monitoring and tuning will be performed as necessary tomaintaimanaverage in-nehvork interactiveresponse time.
`In network° is defined as any point behveen which tile data packet'enters the Superion environment;and subsequently departs the
Superion environment: Any point of communications. outside .of the Superion protected_nemork environment shalf be deemed as
.out -of -network.."
Superion is not, responsible for Internet connectivity and/or performance outside the internal Superion host site infrastructure:
c, Server Performance Stress Test
At the request of the. Customer,: Superion will coordinate a performance stress testwilh the Cuslo aler, at_an agreed upon time, during
Implementation :and upon request after go -live; Superion will work with the Customer to Identify. critical application. screens to
benchmark during the performance stress test and coordinate with the. Customer to create an accurate: test scenario with 'ihe
Customer's End Users. Upon completion of the performance stress test, Superion and the Customer. will mutually'agree,to the
performance benchmarks for the identified critical screens taking Into consideration Internet latency,. End User workstations
limitation's, and the Customer's Local Area Network:
[). 'Scheduled and Emergency Mal ntenance: for Application Services_
:Scheduled maintenance
21 of26
System maintenance
Superiors will provide all hosted systems and network maintenance as deemed�appropriate and necessary by Superion: All
maintenance will be completed outside of the Customer's `s(andard business hours of operation, unless requested by. Customer.
Superion application maintenance. and.'upgrades
Software maintenance and upgrades will ,be performed. outside of the Customer's standard<business hours of operation,
traditionally 8AM to 5PM;Monday through Friday, unless requested. b"y Customer; Softwa_ re maintenance and upgrades"vrill be
scheduied,in advance with the dustorner's'primary contact.
HardWare malntenance and upgrades
Hardware melntenance;dnd upgrades�4ili be performed outside;of the Customer's standard business flours of operation, unless
,requested by Customer. The primary Customer contact will be notified, via the on -file e-mail address, prior to hardware upgrades
being performed.
Emergency maintenance
Emergency situations will be handled on a cese•bycase basis In such a manrieras to.cause the least possibie'disruption to
overall system operations and availability without negatively affecting system stability and integrity; The primary Customer
contact.will`be notified, when possible, via the. on -file e-mail.address, prior to emergency maintenance.being performed, if nod
contact lSrmade; emergency maintenance Will move forward as deemed necessary by-Superion management."
E,, tncidont Rosnonse
Incidents are defined as interruptionsao existing service and can range in priorityfrom urgent to lowdepending,on the. Impact to the
Customer.. Incident priorities are:clefinedas the following:
Priority
impact
Cescrrptfon'
Level
Urgent_
An Incident that (a) results in loss ofGustomer connectivity to all of the Application
Services or (b)'resuits in loss, corruption-ordamage to- Customer's Data.
Critical
An Incident that has an adverse material 'Impact on ,the° performance of, the
2
Application Services. or materially restricts Customer's day -today cperaliona:
Non -Critical
An: Incident that does not result in a failure:of the Application Services but a'fault
3
exists in the'Managed IT Services thatrestricts Customer's use -of the. Managed
IT Services.
Minor
An Incident that does not affect or which has minimal adverse impact on'the use of
4
the Application Services.
Superion will make commerclally reasonable efforts to respond to Application Services incidents for live production systems using
the following guidelines:
Priority Level
Performance Target
Mininiumq.
F
� 4
Performance
�7... . _ ,a . ..:
. ,.•_ �. .. 4 _•.
%;Goal..
Priority 1 (Urgent)
Superion will respond WIth(n 1 hour of the, ssue being reported.
95%,
Pr16rity.2.(Critical).
5uperlon will:respond_within 2 hours of the issue,being reported.,
'95%.
priority (Non'-
Superion will respond within 4 flours of the issue being reported.
:95%
Critical)
Priority 4 (Minor)
Superion will respondwilhin 24 hours of the issue being reported.
95%
Measuron ent Superion shall'track and reporlon response acid resolutiontime.f ir.appiication and,hosting suppori issues identified
by the Customer.
F. Disaster Recovery.
22 of 2G
Superion provides. Disaster Recovery (DR)services for the systems hosted in a Superion data center'for our hosted
clients. The costs for DR services are included in the monthly fees. Services:cover the following scenarios:
(a) Loss. of client client data center. In the event the client's data center' is inaccessible: or rerWered non-functional.
Superion will provide the ability to connect to the appropriate Superion data center using software..provided by
Superion.' This will provide the -appropriate software to.allow the client to -connect to their systems from a"remote
site to previously identified -critical. Functionality may be diminished, due to lack of 'access to hardware .and/or
,software located in the client's,facilities;
0., Koporting
Superion'sh'all pleasure its performance against the performance metrics, as sefforth here n,,and shalhprovide a report
of such performance on a monthly basis. .Such -report (s) shall be delivered via an agreed upon method and within ten
(10) days following the end of the applicable monthly measurement, period, Superion will schedule a performance.
review with, the Customer upon request.
Exceptions.
NOW lhstanding,anything herein, Superionshall not be responsible.(or. (allure to.ca.[ry out.any of its obligations under'thisExhibif A
and Uhlbit C. (including. liability to -apply any ;credit`for any failure to meet a service Level commitment target) if the failure is caused.
by,
(a) scheduled downtime in order to carryout Maintenance'or suspensions in the:Application Services that Customer has been
notified of in advance that occurs outside of Normal Businessit-lours, provided'that, in event of any critical orurgentsystem,
Issue, thatdoes not reasonably permitadvancenotice.to C tstomer..Superion shall piovide,nol ce as.and when commercially
reasobabiewith respect to such.urgentlssue; or as othe►wise reasonabiyagreed between Customer and Superion. Thesystem
Is reserved for maintenance on Sundaysftoni 801 to 12'noon Eastern Time;
(b) adverse impact due to the defectiveness of tile r's e Customeenvironment, Customer's systems; or"due to Customer corrupt,
incomplete, or inaccurate data supplied t.o the Application "Services;
(c) adverse impact'as a result of dehlal of reasonable access by Superion personnel to relevant portion of Customers'systems or
premises that.prevents Superion from addressing and provided that no other commercially; reasonable rnethod is available to
attain Such information; _
(d) adverse impact due to material changes made to the usage of the Application Services by: Customer where Superion has not
agreed to such changes in advance "and In writing;
(e) adverse,impact.due to.the modification.or aiteration,.in-any way, byCustomer or Its subcontractors, of communications links
necessary to; the proper performance of'the Application Services,
(t) adverseimpact due to a,Docuniented Defect;
(g) a force ,majeure.eve rit, or (tie negligence;;intentionai acts, or"omissions.of Customer or its agents:
Cloud Procedures
A: IncidontRosolution
Performance Aargets vary due, to issue complexity and priority. For critical requests, Superion provides a continuous resolution effort
until -the Issue Is'eesolved.
B. 'Service-Reniiests
Service requests are neW requesit that will take less,than 8 hours to accomplish. The Superion Cloud Solutlons.management.team'
wili.perform the: prioritization for these -requests. There will be a targeted resolution goal of up to five_(5) days, with extra time being
:allowed if equipment or software needs to,he ordered or.multiple products have to be analyzed. However, more complexrequests
may take longer to complete. Any new service requests requiring more than 8 hours: to accomplish may constitute a. project and
must be scheduled.
0. Non -Production Environments
Superion:will:make commercially reasonable efforts to provide non -production environment during'Customer business hours. For
avoidance of doubt, the aforementioned non -production environment are not included under the SLA metrics period(s) hereunder.
23 of 26
Scliotiuled`Malnteiiance
:System maintenance
Superion will provide -all necessary hosted'systems and network maintenance for non-productlori environments::as deemed
appropriate and necessaryby Superion Cloud Solutions. All necessarymalntenance will be scheduled wilh.the. Customer and
may be•completed during business hours.
Superion application -maintenance and Upgrades
Software maintenanco and .upgrades. for non -production environments may be performed during the Customer's standard
business hours; Software maintenance and.upgrades viill be scheduled In advance; vrilh the Customer's primary.contact.
Hardware maintenance and;upgrades
Hard}vane maintenance and upgrades for nomproduclion environments may be.,performed during the Customer's standard
busyness hours. Thb.primary QL)StOmer contact wtil be riotiribd,' the on -file o=mail address prfor to liardwaro upgrades being
performed.
Emercdency maintenance
Emergency situations will;be handled on a case -by -case Basis in such a manner: as to cause.the-le"ast possible`disruptlon to
overall system- operations,and availability without negatively m affecting systestability and, integrity. The primary. Customer
contact"will be notified; When n possible, Via - ill o on -rile a -mall address; -prior to"emergency maintenance being performed. if no
contact is made,, emergency naintenbnoe will move fonward,as. seemed necessary by Superion Cloud- Solutions management.
Incidents and service requests:
Non -pro. duction environment'Incidents will be 'considered priority 3 or priority 4 inciderits as circumstances dictate and handled
as such. Servioe requests Yids be priorilized'and scheduled similar to production service requests.:
Non -Production environment refroshos
Non -Production environnient refreshes will be provided in accordance to the Customer's Superion Application Services Provider
agreeinent,.which indicates-llie number of refreshes provided,laa.calendar;year:'Uponnwritten recelpt of.a Customer's refresh
request; Superion will schedule and complete:the refresh within 4 weeks of the request,
24 of 26
I: RespotisUillity Sitritmary Matrix.
Responsibility Suinniary,Matrix
Resoription
Superion
Responsibility
Customer
Res onsibilit'
ASP Server. Hardware management
X
ASP 'ServerFile system mana bind t
X.
ASP Server OS upgrades and maintenance
X
-ASP Database`' `roduct upoWes and maintenance
`X
ASP 3r0 Party. product -upgrades and maintenance
X
ONESolution Application Update InMallalion
Request to install applicMory°u dates
X
Installation of application,updates
X
ASP Backup Management
x
Data and or File restoration
Request to restore,data and or files
X.
Restoratiwof data and.or"files
X
Network
ASP. Network up to and including the router'at Superion's location
X
ASP Router at Customer's location
X
Customer's network uo to the router at Customer's location
X
Customer Workstations
X
;System Performance
X
X
`Add/Chan a=users
User addlchan a requests,
X
User add/change.: implementation for System Access
X
User addlchan a Implementation for Software A . Iicalions
X
Add/Clian e Printers
Printer'add/chap erequests,
X
Printer'add/chan a inm lenient"ation on ASP network
X
Printer,addlchan a In lontentation for Software Application's
X
Disaster RecoVe
X
Password Management
X
X
Application Management
-Application Configuration
X
A , lication Securit Management
X
Mcbracy,and Control of Data
X
Secudl
Inlruslonand Penetralton Testing
X.
25-of 26
PART 2.— BRROR•CORRECTION:
L $ulicrion "shall provide to Custouier, duritig St perion's supporthours as: "set forth in t1ie.Stippor( Stiniclards below ("Stigport Hoprs"),
telephone assistance.regarding Customer's proper:and:authorized use of new edition'ofa Solution"(tlic "Release"), asapplicable.
2. ;Snperion shill provide WCustonier,:during the Siippoil Hours, commercially reasonably eftoit"s in solving eti5ors.repoiied'oy'Ctistomee
in accordance.with this Order. .Customer shall provide to Superion reasonably detailed documentation and explanation, together with
'underlying.data, to substantiate any error=and to assist.Superion itt its eliorts to diagnose, reproduce and correctthe error., T esc support
services, sl>itll'bc pi-ovided,by Superion at Castotiier location(s). if and when Svper on iiiid Customec'agree that on -site: services: are-
'necessary to diagnose"or resolve tlie.liroblem. Ira repot•teii error'did iiot, in fact,"existor was not at(riptttable (o;a defect iit;dieSolution
or nit act or:oniission of Superion, then -Customer shall pay for Superior's investigaiion'and related services at. -.Si Yerio Ws standard
professional set vices, lutes. Custoii ei most provide Superior with Stich;fadities, equipinent:and suppo.it as aro seasonably necessary
;for Superi.mi"toperform its obligations under this Order, inch dipg'remote access,to the'SpeciGeN "Configuration.
Customer shall proniptly install and/or use any Release provided'by Superion to avoid or ni tigate- a. performance problem or
infringement claim. All inodikations; revisions atut tipdates to the Solution shall be fi ctiislicd by nietius°ofiiewReleascs oftho Solution.
and shall be accompanied by updates. to the Documentation whcneverSuiierion.deterniines; in its sole.discretion, that such updates are
necessary;
26 of 26