This Agreement is made on this 28th day of June, 2011 (“Effective Date”) by and between Perceptive Software, LLC, a Delaware limited liability company (“Perceptive”) and South Orange County Community College District, a California community college district (“District” or “Customer”).
R E C I TA L S
WHEREAS, the District issued a Request for Proposals (“RFP”) for a single integrated document scanning, retrieval and workflow solution across multiple work groups in a multi-campus environment (“Document Management Solution”), a copy of which is attached hereto as Exhibit “A” for informational purposes only; and
WHEREAS, Perceptive responded to the District’s RFP, a copy of said response is attached hereto as Exhibit “B” for informational purposes only, and is able to provide software licenses that will support document and form management and workflow/routing between users, planning and deployment services, remote administration, training, and software maintenance and support, as required by the District; and
WHEREAS, Perceptive is specially skilled, trained, experienced and competent to license and install the Document Management System and to render the special services and advice described herein, which will provide an enterprise content management (ECM) solution integrated with the District’s locally developed SIS application suite, provide direct access to documents from the displayed locally developed SIS screens, provide users with simple electronic access to documents, records and information, streamline the processing of documents and information, including but not limited to incoming transcripts from other institutions, and provide District staff with instant and simultaneous access to documents, in various departments.
NOW, THEREFORE, Perceptive and District mutually agree as follows:
1. Term of Agreement. The term of this Agreement shall be five (5) years from the Effective Date unless this Agreement is earlier terminated as provided herein in which case this Agreement will terminate as of such earlier date (“Term”). This Agreement shall automatically renew for additional five (5) year terms unless either party elects, by written notice to the other party, not to renew the Agreement.
2. Grant of License- Client Combo (ImageNow and WebNow) Software. (Referencing EULA Section 1 in its entirety) Perceptive hereby grants to the District a perpetual, nonexclusive and nontransferable license (“License”) to use the computer programs provided under this Agreement in the original, unmodified, machine-readable, object code form only, as delivered by Perceptive, including without limitation, any data structures created by such programs and any upgrades and new version releases (collectively “Software”), listed in Exhibit “C” accompanying the Software and related
EXHIBIT A Page 2 of 45 User Documentation. Up to fifty (50) unique users may be logged on to the Software at any one time; however, during the Term of this Agreement, District may add up to fifty (50) additional unique users at the same per person cost as the original fifty (50) by providing written notice to Perceptive. Access shall be available at the District’s Saddleback College Campus and Irvine Valley College Campus. The District may not use the Software outside the District and may not sublicense or assign its rights under this License to any other party. The License shall survive the termination of this Agreement.
The parties acknowledge that the License granted pursuant to this Agreement is subject to the terms and conditions of the specific copy of the ImageNow Product Suite End-User License Agreement (the EULA”) attached here to and incorporated herein as Exhibit “I”;
however, if any term of this Agreement, and/or any exhibit to this Agreement conflicts with a term of the EULA, the Agreement and/or any exhibit to this Agreement shall supersede the conflicting term of the EULA, and the parties agree that the terms of the Agreement and/or any exhibit to this Agreement shall apply. This License and the use of the Software under this License are not subject to any altered or revised version of the EULA, any click wrap agreement or any other agreement or contract not specifically mentioned and incorporated into this Agreement.
3. Software Warranty. (Referencing EULA Section 8 in its entirety)
(a) Performance Warranty. Perceptive warrants, for District’s benefit alone for a period of ninety (90) days from the date of Acceptance, as defined in Section 5(c), (referred to as the “Performance Warranty Period”) that installers and/or executables made available by Perceptive to the District are free from defects in material and workmanship. Perceptive further warrants, for District’s benefit alone, that during the Performance Warranty Period the Software shall operate substantially in accordance with the functional specifications in the User Documentation under normal, proper and intended usage and that the Software does not contain any computer worms, viruses or other harmful code or disabling device or any unlawful, discriminatory, libelous, harmful, obscene or otherwise objectionable material of any kind. If the Software is defective, at Perceptive’s expense, Perceptive shall, as soon as possible and within a reasonable time period not to exceed ninety (90) days, either (i) replace, (ii) repair the Software and deliver of a new installer and/or executables, or (iii) failing the foregoing two options, refund all Fees paid by District. A refund of all Fees paid shall be the District’s sole remedy for Perceptive’s breach of the Performance Warranty and shall paid to the District within fourteen (14) business days of determining the Software cannot be replaced or repaired.
(b) Non-Infringement Warranty. Perceptive further warrants, for District’s benefit alone, that (a) Perceptive has the right to possess, use and license the Software to the District for the purposes contemplated herein and stated in the User Documentation and (b) that to Perceptive’s knowledge, the Software does not infringe any copyright, trademark or trade secret of any third party; provided, however, that notwithstanding any other terms of this Agreement to the contrary, Perceptive shall have no obligation to the District with respect to any claim that
EXHIBIT A Page 3 of 45 arises from (a) any modification of the Software by the District or any third party;
(b) District’s combination, operation or use of the Software with any software, hardware, product, or apparatus installed in the District’s application environment following the installation of the Software; or (c) District’s use of any third party software other than in accordance with the license agreements for such software, whether or not such license agreements are provided to Perceptive.
4. Independent Contractor. Perceptive represents and warrants that it is experienced in its profession. In performing its obligations and services under this Agreement, Perceptive is an independent contractor and is not acting as an agent or employee of District.
Nothing contained in this Agreement shall be deemed, construed or represented by the District, Perceptive or any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between the District and Perceptive.
5. Implementation, Data Conversion, and Training Services. Perceptive shall provide professional services associated with the implementation of the Software, data conversion and training of District staff on the use of the Software as follows.
(a) Task List for Implementation and Data Conversion. A list of tasks, milestones and required staff for the implementation of the Software and data conversion, specifically including a project schedule, costs and timeline are set forth in Exhibit “D” attached to this Agreement and incorporated by this reference.
(b) Training. Perceptive shall provide educational and training services to the District pursuant to the schedule, costs and timeline as set forth in Exhibit “E” attached to this Agreement and incorporated by this reference.
(c) Acceptance. District shall accept the Software in writing, upon final testing and satisfactory implementation of the Software as indicated by both parties signing the Solution Design Document (“Acceptance”).
6. Ownership of Data. District shall retain ownership of all data in the Software.
7. Responsibilities of District.
(a) The District shall participate in user training as set forth in Exhibit “E.”
(b) The District shall have hardware and software that meets the minimum requirements outlined in the technical specifications document and scope chart attached hereto and incorporated by this reference as Exhibit “F,” as well as a network infrastructure to support the deployment installed before Implementation of the Software.
(c) The District is responsible for performing routine scheduled backups of critical Software Server data.
EXHIBIT A Page 4 of 45 (d) District shall prepare and furnish to Perceptive upon request such information reasonably requested by Perceptive in order for Perceptive to perform its work under this Agreement.
8. Payment. District will pay the fees (“Payments”) for products and services listed in Exhibits “C,” “D,” “E,” “G” and “H.” Payments shall be due and payable within 30 days of receipt of an invoice from Perceptive. District shall reimburse Perceptive for reasonable travel and living expenses of Perceptive employees, so long as Perceptive receives written approval for such expenses prior to incurring such expenses. District shall not be responsible for unapproved expenses. The fees for this Agreement are as follows:
Type of Fee Amount Frequency and Terms of Payment
Software License Fee $222,150.00 total Invoiced upon execution of the Agreement. One time payment due within thirty (30) days of receipt of invoice.
Professional Services Up to $135,650.00 total Invoiced monthly based on hourly rate for actual hours worked. Invoices shall provide sufficient detail of tasks performed. Support and Maintenance shall not be invoiced as Professional Services.
District not responsible for charges over $135,650.00 without prior written District approval.
Training $7,920.00 total Invoiced upon execution of the
Agreement .District not responsible for charges over
$7,920.00 without prior written District approval.
Managed and Platform Services $2,000.00 Managed Service price quote is Fixed Price - 100% invoiced upon installation.
Support and Maintenance $44,425.00 for first year First year of Support and Maintenance (equal to 20% of Software License Fee). Invoiced upon execution of the Agreement (or renewal agreement in subsequent years). One time
EXHIBIT A Page 5 of 45 payment due within thirty (30) days of receipt of invoice.
Managed Services- Remote Administration
$12,000 for first year ($1,000 x 12 months)
Invoiced upon execution of the Agreement (or renewal agreement in subsequent years).
One time payment due within thirty (30) days of receipt of invoice.
9. Software Maintenance and Support; Managed Services- Remote Administration.
(a) Software Maintenance and Support. Perceptive shall provide maintenance and support of the Software commencing upon the execution of the Agreement. Such maintenance and support provides coverage in the form of corrections to remove deficiencies in the Software, as reported to Perceptive; ongoing telephone and e-mail support for questions regarding operations of the Software;
incorporate/change the Software as necessary for operation including all upgrades and new features; support to District in resolving problems/errors resulting from misuse or hardware/software failure. The initial term of maintenance and support of the Software shall commence upon the date of the execution of the Agreement and shall end on the last day of the month of the one (1) year anniversary of such date. Software maintenance and support is annually renewable upon District’s timely payment of the annual fee for the Software maintenance and support for the next successive renewal term, equal to 20% of the price of the Software as provided in Perceptive Software’s then-current, published Price Book, provided that, for the first three (3) renewal terms, such increase shall not exceed the Consumer Price Index (CPI) increase from the previous year. Perceptive shall provide the maintenance and support services set forth in Exhibit “G” attached hereto and incorporated herein.
(b) Managed Services- Remote Administration. Perceptive shall provide remote administration of the Software on the terms and conditions set forth in the attached Exhibit “H,” incorporated herein by this reference.
10. Indemnification. (Referencing EULA Sections 9 and 10 in their entirety) District shall not indemnify Perceptive.
(a) General Indemnity. Perceptive agrees to and does hereby indemnify, hold harmless and defend the District and its Board of Trustees, officers, employees and agents from every claim or demand made and every liability, loss, damage or expense (including attorneys’ fees), of any nature whatsoever (“Damages”), which may be incurred by reason of any injury to or death of any person(s), or damage to or loss of any property or any and all other actions, claims, liens, damages to persons or property, penalties, obligations or liabilities that may be
EXHIBIT A Page 6 of 45 asserted or claimed by any person, firm, association, entity, corporation, political subdivision, or other organization, caused by any act, neglect, default, or omission of Perceptive, or any person, firm or corporation employed by Perceptive, either directly or by independent contract, arising out of, or related to, the services covered by this Agreement, whether said Damages occur either on or off District’s property, except for liability for Damages which result from the sole negligence or willful misconduct of the District or its officers, employees or agents.
(b) Intellectual Property Indemnity. Perceptive shall indemnify, defend, and hold harmless District, its officers, agents, and employees against all Damages resulting from any judgment or proceeding in which it is determined or any settlement contract approved by Perceptive arising out of the allegation, that Perceptive furnishing or supplying District with goods, components, programs, practices, or methods under this Agreement or the District’s use of such goods, components, programs, practices or methods supplied by Perceptive under this Agreement constitutes an infringement of any patent, copyright, trademark, trade name, trade secret, or other proprietary or contractual right of any third party.
The foregoing shall not apply unless District has informed Perceptive as soon as practicable of the suit or action alleging such infringement. District retains the right to participate in the defense against any such suit or action. District agrees to provide Perceptive with prompt notice of any such claims and to permit Perceptive to defend any claim or suit, and that it will cooperate fully in such defense.
11. Insurance.
(a) Perceptive agrees to carry a comprehensive general and automobile liability insurance with limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for bodily injury and property damage in a form mutually acceptable to both parties to protect Perceptive and District against liability or claims of liability which may arise out of this Agreement. In addition, Perceptive agrees to provide an endorsement to this policy stating, "Such insurance as is afforded by this policy shall be primary, and any insurance carried by District shall be excess and noncontributory." Perceptive shall provide District with certificates of insurance evidencing all coverages and endorsements required hereunder including a thirty (30) day written notice of cancellation or reduction in coverage. Perceptive agrees to name District and its officers, agents and employees as additional insured under said policy. Perceptive agrees to maintain workers’ compensation insurance as required under the laws of the State of California.
(b) Cyber Liability (Security and Identity Theft Coverage). Perceptive shall provide
$5,000,000 in Cyber Liability Insurance to cover Security, Privacy, Business Interruption, Cyber Extortion, and Denial of Service.
EXHIBIT A Page 7 of 45 12. Continued Performance During Dispute. In the event that a dispute arises between District and Perceptive, Perceptive expressly agrees to continue to perform its obligations under this Agreement during the pendency of the dispute. Each party agrees to the other that it shall diligently and in good faith attempt to resolve any disputes which may arise.
13. Force Majeure. (Referencing EULA Section 19 in its entirety) If either party is affected by force majeure it shall immediately notify the other party of the nature and extent thereof. Force majeure means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, fire, floods, acts of God, terrorism, national emergency, governmental acts or omissions, beyond the control of either party). Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other by reason of any delay in performance, or performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any force majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly. If the force majeure in question prevails for a continuous period in excess of 30 calendar days, the parties shall enter into good faith discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements, including termination of this Agreement.
14. Termination. (Referencing EULA Section 7 in its entirety) (a) Termination by District.
District may, at any time, with or without reason, terminate this Agreement and compensate Perceptive only for services rendered to the date of termination. Thirty (30) days advance written notice of termination of this Agreement by District shall be sufficient to stop further performance of services by Perceptive. Notice shall be deemed given when received by the Perceptive or no later than three days after the day of mailing, whichever is sooner. In the event of termination of this Agreement for cause, the District shall be entitled to a prorated refund of any advance payments of the Payments from the effective date of the termination up to the end of the term for which advance payment was made. Notwithstanding the foregoing, if the District terminates this Agreement after the conclusion of the Performance Warranty Period, District shall not be automatically entitled to a refund of the Software License Fee; however, if the District terminates for cause, it may pursue any rights and remedies available, which may result in a refund. Perceptive shall cooperate with the District to provide access to District data, and Perceptive shall not limit access or remove District data, during the termination process.
The rights and remedies provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.
(b) Termination by Perceptive.
Perceptive may terminate this Agreement for cause upon giving of written notice of intention to terminate for cause. Cause shall include any material violation of this Agreement by the District. Written notice by Perceptive shall contain the
EXHIBIT A Page 8 of 45 reasons for such intention to terminate and unless within thirty (30) days after service of such notice the condition or violation shall cease, or satisfactory arrangements for the correction thereof be made, this Agreement shall upon the expiration of the thirty (30) cease and terminate. Written notice by Perceptive shall be deemed given when received by the other party or no later than three days after the day of mailing, whichever is sooner. Perceptive shall cooperate with the District to provide access to District data, and Perceptive shall not limit access or remove District data, during the termination process.
The rights and remedies provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.
15. Proprietary Rights. (Referencing EULA Section 5 in its entirety) District acknowledges that the Software licensed hereunder, and any designs or inventions related to the Software, contain valuable trade secrets, proprietary and confidential information which are the unrestricted proprietary rights of Perceptive (“Confidential Information”).
District agrees that it will not use this Confidential Information in any way not allowed by this Agreement, that it will not disclose this Confidential Information to anyone other than its own employees who require access, that it will maintain and protect the confidentiality of this Confidential Information, and that it will take all necessary and proper precautions to prevent any unauthorized use or disclosure of this Confidential Information. Notwithstanding the foregoing, District shall not be liable for use or
District agrees that it will not use this Confidential Information in any way not allowed by this Agreement, that it will not disclose this Confidential Information to anyone other than its own employees who require access, that it will maintain and protect the confidentiality of this Confidential Information, and that it will take all necessary and proper precautions to prevent any unauthorized use or disclosure of this Confidential Information. Notwithstanding the foregoing, District shall not be liable for use or