HomeMy WebLinkAbout2021 CON Legal Files - software applications, modules, and associated contentExhibit A
General Terms and Conditions
1. Overview. These General Terms and Conditions for the End User License Agreement ("Agreement") set forth
the terms on which, pursuant to the Order attached hereto as Exhibit C and any subsequent orders placed by
Customer and accepted by Licensor (each an "Order"), Licensor shall provide Customer with: (a) a perpetual
license to use the Licensor software applications, modules, and associated content ("Software") identified in and
licensed to Customer under a corresponding Order; and (b) maintenance and technical support, installation,
training, data conversion, and other professional services ("Services") provided or made available by Licensor to
Customer in connection therewith.
2. License. Subject to the provisions of this Agreement Licensor grants Customer a perpetual (unless terminated
pursuant to the provisions of this Agreement), non-exclusive, non -transferable, non-sublicensable license to: (a)
install a single production instance of the Software in accordance with the Documentation and in compliance with
all applicable laws (unless additional production or non -production instances are expressly identified in and
licensed under the Order) on Customer's compatible computer systems located on Customer's premises or at a
third party hosting facility in accordance with the "Hosting" section below; (b) make the Software available for use
by up to the number of named (i.e., non -concurrent) individual employees and contract staff of Customer and its
wholly -owned subsidiaries for which Customer has paid the applicable license fees; and (c) make a single copy of
the Software solely for back-up purposes. Customer's license is strictly limited to installation and use of the
Software for Customer's internal business purposes, in accordance with Licensor's then -current online help manual
and end user documentation for the Software ("Documentation"), and subject to any additional requirements set
forth in the Order.
3. License Restrictions. Customer shall not, nor shall Customer authorize or permit any other person or entity to:
(a) use or make the Software available for use by non -Users, or in excess of the Users for which Customer has
purchased licenses; (b) allow User credentials to be shared or used by more than one individual (except for
Customer's bona fide, non -temporary transfer of credentials from one individual to another in connection with a
User's re -assignment, departure, or similar event); (c) sublicense, lease, rent, loan, distribute, publicly display,
publicly perform, transfer, or otherwise make the Software or Documentation available for use by third parties; (d)
modify, adapt, alter, translate, or create derivative works of the Software or Documentation; (e) merge the
Software with any other software; (f) use the Software in or as part of a service bureau, timesharing, or
outsourcing capacity, including acting as an ASP, host or data processor for any third party; (g) reference, rely
upon, study, or otherwise use the Software or Documentation to develop a similar, alternative, or competing
product or service; (h) use or distribute the Software in violation of any import, export, re-export or other
applicable laws or regulations; (i) attempt to deactivate, bypass, or otherwise circumvent the license keys or other
security measures for the Software; (j) remove or obscure any copyright or other proprietary rights notices,
trademarks, logos or trade designations for the Software or Documentation; or (k) reverse engineer, decompile,
disassemble, or otherwise attempt to derive the source code for the Software.
4. Installation; Updates. After receipt of the required up -front payment under the corresponding Order, Licensor
shall make the Software available to Customer for remote download from Licensor's customer portal or via other
mutually acceptable means. During the term of Customer's support subscription under the corresponding Order,
Licensor shall make available to Customer bug fixes, service packs, updates, and upgrades for the Software that
Licensor issues for general availability release ("Updates") in the same manner. Updates do not include separately
licensed applications, modules, or content, or new versions incorporating platform upgrades or substantial
additional functionality that Licensor makes generally available for an additional or separate license fee. All
Updates are licensed to Customer as part of the Software under and subject to the license and other provisions of
this Agreement and the corresponding Order.
5. Maintenance and Support; Additional Services. During the term of Customer's support subscription under the
corresponding Order, Licensor shall (a) provide maintenance and technical support for the Software as provided in
the Order, (b) if purchased by Customer, provide managed services for Customer's on premise or hosted
installation of the Software, and (c) make available for purchase by Customer any additional installation, training,
data conversion, and other Services that Licensor makes generally available to licensees of the Software. All such
Services are provided subject to and in accordance with this Agreement and Licensor's Services and Support Policy,
the most current version of which is attached hereto as Exhibit B. Customer acknowledges that Licensor is
responsible only for those Services documented and within scope of the Order. Any additional or out -of -scope
Services requested by Customer shall be subject to Licensor's availability and Customer's payment of the
additional corresponding fees and charges. Licensor reserves the right to suspend performance of Support and
other Services if Customer is delinquent in payment or otherwise in material breach of its obligations hereunder.
6. Hosting. Customer may, at its option and expense, install the Software on computer systems that are hosted
for Customer at one or more United States data centers by a reputable third party hosting provider, provided that
(i) Customer notifies Licensor of the hosting arrangement and obtains Licensor's email or other written consent
(not to be unreasonably withheld), (ii) the hosting provider is not a direct competitor of Licensor, (iii) the Software
is made available solely for Customer's use under and in accordance with the license, license restriction, and other
provisions of this Agreement, and (iv) Customer enters into an appropriate agreement with the hosting provider
that supports Customer's compliance with the foregoing requirements. As between the parties, Customer is solely
responsible for any Software hosting arrangement, including for contracting with, complying with the terms, and
paying the fees and charges of the hosting provider. Licensor assumes no responsibility or liability for the hosting
infrastructure, or the availability, security, or operation thereof, even if Licensor facilitates the hosting
arrangement or provides managed services for Customer's hosted Software installation.
7. Customer Responsibilities. Customer is responsible for: (a) assigning qualified personnel to coordinate with
Licensor regarding Services and manage Customer's responsibilities as outlined in this Agreement and the
corresponding Order; (b) procuring, installing and maintaining all client -side equipment and third -party software,
and peripherals required to install and use the Software, including operating system and browser software and
network connectivity meeting Licensor's then -current system requirements; and (c) the accuracy, quality, integrity,
reliability, and suitability of all data that Customer inputs, processes or stores using the Software, including
securing all necessary licenses and permissions therefor (it being understood that Customer shall at all times
remain the primary custodian and record keeper of its data); (d) creating a restore point for its systems and
backing up all data; (e) adopting reasonable measures to safeguard Customer's facilities, systems and network; and
(f) performing any other Customer responsibilities identified in this Agreement or the applicable Order. Licensor
shall have no responsibility or liability arising out of or resulting in whole or in part from Customer's failure or delay
to perform any such responsibilities, or for acts or omissions of third parties, Internet or telecommunications
failures, or force majeure or other events beyond Licensor's reasonable control.
8. Pricing and Payment. All Software and Services are billed at the pricing and in accordance with the payment
schedule set forth in the corresponding Order, or if no pricing or payment terms are specified, at Licensor's then -
current pricing with payment due net 30 days after the date of invoice. Licensor reserves the right to require a
retainer in advance of any larger projects. All amounts are stated and payable in U.S. Dollars, and, except as
otherwise expressly stated herein, are non-refundable. The fees are exclusive of any taxes or duties associated
with the Software and Services, however designated or levied in any jurisdiction by any taxing authority. Customer
is solely responsible for all such taxes and duties, excluding taxes based on Licensor's net income. The fees are
exclusive of travel, meals, lodging and expenses for on -site services, which shall be invoiced by Licensor as incurred
and reimbursed by Customer net 30 days after the date of invoice. Licensor reserves the right to charge interest
on overdue amounts at the lesser rate of 1.5% per month (18% per annum), or the maximum rate permitted by
applicable law, accruing from the due date until the date paid. In the event any amount owed by Customer
requires collection efforts, Customer agrees to reimburse Licensor for all reasonable costs of collection.
9. Term: Termination.
(a) Term of Agreement. This Agreement shall commence on the Effective Date and continue in full force and effect
for so long as Licensor provides any Software or Services to Customer under one or more Orders, unless otherwise
terminated as set forth herein.
(b) Support Subscription Term; Renewal. The term of Customer's support subscription is as set forth in the
corresponding Order. Unless otherwise expressly stated in the Order, subscriptions are billed annually in advance,
and shall automatically renew on an annual basis, unless either party provides at least 60 days' prior written notice
of non -renewal. Non -renewal of Support will not result in termination of Customer's license to the Software;
however, Customer will not be entitled to further Updates or Support after the date of non -renewal. If Customer
allows support subscriptions to lapse, Licensor reserves the right to condition reinstatement on payment: of fees
for back subscription fees and charges, as well any professional services required to bring Customer's configuration
current.
(c) Termination. Either party may terminate this Agreement and/or any Order: (i) if the other party materially
breaches this Agreement or the Order (including non-payment) and fails to cure the breach within 30 days (or 15
days for non-payment) after receiving written notice thereof; (ii) if the other party becomes or is declared
insolvent, makes a general assignment for the benefit of creditors, suffers a receiver to be appointed for it, enters
into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, files
a voluntary petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it, which petition is
not dismissed with prejudice within 60 days after the filing thereof; or (iii) for any other basis expressly set forth in
the applicable Order. Termination does not relieve Customer of its obligation to pay for all Software and Services
ordered prior to termination.
(d) EFFECTS OF TERMINATION. UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND/OR A
CORRESPONDING ORDER FOR ANY REASON: (a) Customer's LICENSE TO THE SOFTWARE shall automatically and
immediately terminate; (b) Customer shall immediately discontinue all use of the Software and shall promptly
(within 5 days) uninstall and remove any remnants of the Software and Documentation from its computers,
network, and systems, and destroy (or return to Licensor) all tangible copies of the Software and Documentation in
its possession; and (c) Customer shall pay all amounts due and owing to Licensor. Sections 3, 9, 12, 13, 14, 15, 16,
18 and 19, and any other provisions of this Agreement which by their terms or nature are intended to survive, shall
survive the expiration or termination of this Agreement for any reason, and shall be binding on and inure to the
benefit of the parties and their respective successors and permitted assigns.
10. SoftwareWarranty. For a period of 90 days after the date the Software Is first made available to Customer for
installation (or with respect to a later, separately purchased application or module not provided as an Update, the
date such separately purchasedapplication or module is first made available to Customer for installation), Licensor
warrants that the Software (or such separately purchased application or module), when properly installed and
used by Customer in accordance with this Agreement, shall operate in all material respects in accordance with the
technical specifications set forth in Documentation. The foregoing warranty is subject to Customer notifying
Licensor promptly, and in any event within 30 days after discovery of the nonconformity, of a breach of the
foregoing warranty, and providing all information and assistance reasonably requested by Licensor in connection
therewith. Upon receiving such timely notice, as Licensor's entire obligation and Customer's sole and exclusive
remedy, Licensor shall provide a workaround for or otherwise remedy the nonconforming Software at no
additional charge to Customer, or if Licensor is unable to do so within 60 days after receipt of Customer's warranty
claim, accept return of the nonconforming Software in exchange for a refund of the corresponding Software
license fees paid.
11. Services Warranty. Licensor warrants that it shall perform the Services in a professional and workmanlike
manner, consistent with generally accepted industry standards and practices. The foregoing warranty is subject to
Customer notifying Licensor promptly, and in any event within 30 days after the date of performance of the
nonconforming Services, of a breach of the foregoing warranty, and providing all information and assistance
reasonably requested by Licensor in connection therewith. Upon receiving such timely notice, as Licensor's entire
obligation and Customer's sole and exclusive remedy, Licensor shall use commercially reasonable efforts to
remedy the nonconforming Services at no additional charge to Customer.
12. Exclusions. The Software and Services warranties exclude, and Licensor assumes no obligations or liability
under warranty, support, or otherwise for: (i) problems caused by misuse, neglect or abuse of the Software; (ii)
modifications to the Software or to Customer's database structure not made or approved by Licensor; (iii) failure
to install and use the most current release of the Software or the immediately prior release, or to implement
Updates, recommendations or solutions previously supplied or made available by Licensor; (iv) Customer's
network, firewall, systems, hardware, third party software, or data, including a decision to operate on a system
incompatible with the then -current system requirements for the Software; (v) back-up, replication or recovery of
files or data, including corruption or loss of data or Software due to Customer hardware failure or fault (although
Licensor shall use reasonable efforts to assist if such problems arise); or (vi) Customer's failure or delay to perform
its responsibilities, acts or omissions of third parties, telecommunications failures, or force majeure or other events
beyond Licensor's reasonable control. Licensor reserves the right to charge at its then -current rates for time spent
responding to, investigating, or resolving out -of -scope warranty and support requests.
13. Customer Responsible for Legal Services. The Software is intended for use by qualified legal professionals in
connection with case management and related activities. Licensor does not provide legal advice, and neither the
Software nor the Services should be viewed or relied upon as a substitute for the counsel and independent
judgment of an attorney or other legal professional. Customer is solely responsible for its provision (or receipt) of
legal services, and for its selection and use of the Software and Services in connection therewith. Customer shall
indemnify, defend and hold Licensor harmless from and against any and all claims, demands, suits, damages,
losses, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from any legal
services provided or received by Customer or the use, non-use or misuse of the Software or the Services in
connection therewith.
14. DISCLAIMER. EXCEPT FOR THE EXPRESS SOFTWARE AND SERVICES WARRANTIES SET FORTH ABOVE, THE
SOFTWARE AND SERVICES ARE PROVIDED "AS IS" WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, LICENSOR HEREBY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR RESULTS. LICENSOR
DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE UNINTERRUPTED OR
ERROR -FREE, OR MEET CUSTOMER'S PARTICULAR BUSINESS, TECHNICAL OR OTHER REQUIREMENTS. CUSTOMER
IS SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF ITS NETWORK, SYSTEMS AND DATA. THE
SOFTWARE AND SERVICES MAY BE SUBJECT TO TRANSMISSION ERRORS, DELIVERY FAILURES, DELAYS, AND OTHER
LIMITATIONS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NO EMPLOYEE OR
AGENT HAS AUTHORITY TO BIND LICENSOR TO ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT.
15. Confidentiality. From time to time in connection with this Agreement, each party may receive, observe or
otherwise be provided with certain confidential information of the other party, its affiliates or suppliers, in written,
visual or oral form, including but not limited to business, marketing, sales, technical, creative, human resources,
customer and other information that a person familiar with the party's industry would consider confidential in
nature (collectively, "Confidential Information"). Confidential Information does not include information that: (i)
was known by the receiving party prior to any disclosure by the disclosing party; (ii) is disclosed to the receiving
party on a non -confidential basis by a third party that is legally entitled to make such disclosure; (iii) is
independently developed by the receiving party without reference to or reliance on the disclosing party's
information; (iv) is generally known or available to the public or in the public domain; or (v) is required to be
disclosed by law, subpoena, or court order, but then only to the extent necessary to comply with the foregoing,
and provided that the disclosing party is notified in advance so that it may seek to contest, limit or modify such
disclosure. Each party shall hold the Confidential Information of the other party in confidence, exercising at least
the same care used to protect its own Confidential Information of a similar nature, but no less than reasonable
care. Each party shall access, use and disclose Confidential Information of the other party only for the limited
purpose of exercising its rights and fulfilling its obligations under this Agreement, or as otherwise expressly
authorized in writing by the other party. Upon the expiration or termination of this Agreement, each party shall
promptly return to the other party or destroy all. Confidential Information of the other party in its possession, and
upon written request of the other party, certify in writing that it has retained no copies or summaries of the same.
16. PROPRIETARY RIGHTS. NOTWITHSTANDING ANY REFERENCES TO "PURCHASE," "SALE" OR SIMILAR TERMS
IN THIS AGREEMENT OR THE ORDER, THE SOFTWARE IS LICENSED, NOT SOLD. Licensor and its suppliers retain
exclusive right, title and interest in and to the Software (in both binary executable code and source code form) and
Services, including the program architecture, design, coding methodology, Documentation, screen shots and "look
and feel" therefor, all Updates and other enhancements, modifications and improvements thereto, all goodwill
associated with the foregoing, and all present and future copyrights, trademarks, trade secrets, patent rights and
other proprietary and intellectual property rights of any nature throughout the world embodied therein and
appurtenant. thereto. All rights and licenses not expressly granted to Customer in this Agreement are reserved by
Licensor and its suppliers. From time to time, Customer may provide suggestions; comments, ideas, or other
feedback regarding the products or services of Licensor. Licensor shall be free to access, use, disclose, and
otherwise commercialize and use such feedback, including for developing improvements to its products and
services, free of any claims, payment obligations, or proprietary, confidentiality or other restrictions of any kind.
17. IP Infringement Indemnity. Licensor shall defend at its own expense any claim brought against Customer by a
third party in a court of competent jurisdiction alleging that the Software infringes such third party's copyright,
United States patent, or registered trademark or misappropriates such third party's trade secrets, and shall
indemnify and hold Customer harmless from and against those costs and damages awarded to such third party, or
agreed to by Licensor in a monetary settlement, that are specifically attributable to such claim. The foregoing
obligations of Licensor are subject to Customer notifying Licensor promptly in writing of such claim, providing
Licensor sole control over the defense and settlement thereof (provided, however, Customer may participate in
the defense or settlement of such claim at its own expense with counsel of its choice), and providing all
information and assistance reasonably requested by Licensor in connection therewith. Notwithstanding the
foregoing, Licensor shall have no obligation or liability for any claim to the extent arising out of or resulting in
whole or in part from: (i) unauthorized use or misuse of the Software by Customer or its Users; (ii) modifications to
the Software not made by Licensor; (iii) blueprints, designs or other materials supplied by Customer; (iv)
combination of the Software with hardware, software or other items not supplied by Licensor; (v) use of the
Software as part of a Customer or third party method or system; (vi) use of an unsupported version of the
Software; (vii) the specific data or type(s) of data input, processed or stored by Customer using the Software; or
(viii) any third party products and services bundled or Integrated with the Software or otherwise made available by
Licensor to Customer (it being understood such products and services are subject to the license and terms of the
respective third party suppliers, and are warranted if at all only as expressly provided by such suppliers). In the
event Licensor has reason to believe that the Software is or may become subject to an Infringement claim, in
addition to Licensor's indemnification obligation, Licensor shall have the right to modify the Software so that it
becomes non -infringing, to secure the right for Customer to continue using the Software, or, if the foregoing
options are not commercially practicable, as determined by Licensor in its reasonable discretion, toterminate this
Agreement and accept return of the Software in exchange for a refund equal to the unamortized portion of the
license fees paid by Customer for the Software, calculated by amortizing the actual license fees paid by Customer
over a five (5) year straight-line basis from the date the first such license fees became due and payable.
18. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE
SOFTWARE, THE SERVICES OR THIS AGREEMENT, INCLUDING LOSS OF BUSINESS, PROFITS, OR REVENUE, LOSS OR
DESTRUCTION OF DATA, OR BUSINESS INTERRUPTION OR DOWNTIME, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THE
SOFTWARE, THE SERVICES AND THIS AGREEMENT SHALL NOT, REGARDLESS OF THE NUMBER OF INCIDENTS OR
CAUSES GIVING RISE TO ANY SUCH LIABILITY, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO LICENSOR UNDER
THE CORRESPONDING ORDER IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM OR
ONE THOUSAND U.S. DOLLARS ($1,000), WHICHEVER IS GREATER. THE LIMITATIONS ON LIABILITY IN THIS SECTION
SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS. OF THE CAUSE OF
ACTION OR BASIS OF ,LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE); PROVIDED, HOWEVER, SUCH
LIMITATIONS SHALL NOT APPLY TO, OR LIMIT THE LIABILITY OF A PARTY FOR ITS GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, OR IN THE CASE OF CUSTOMER, FULFILLMENT OR BREACH OF ITS OBLIGATIONS UNDER SECTION 3
("LICENSE RESTRICTIONS"), SECTION 8 ("PRICING AND PAYMENT"), OR SECTION 13 ("CUSTOMER RESPONSIBLE FOR
LEGAL SERVICES"). THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT, AND SHALL
BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
19. Miscellaneous
(a) Goveming Law. This Agreement shall be governed and interpreted for all purposes by the laws of the State of
Illinois, U.S.A., without reference to any conflict of laws principles that would require the application of the laws of
a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the
Uniform Computer Information Transactions Act (as enacted by any jurisdiction) do not and shall not apply to this
Agreement, and are hereby specifically excluded.
(b) Jurisdiction; Venue. Any dispute, action or proceeding arising out of or related to the Software, the Services or
this Agreement shall be commenced in the state courts of Sangamon County, Illinois or, where proper subject
matter jurisdiction exists, the United States District Court for the Central District of Illinois. Each party submits to
the personal jurisdiction and exclusive venue of such courts and irrevocably waives any objections thereto,
including based on forum non conveniens.
(c) Notices. All notices under this Agreement shall be in writing and in the English language, and shall be delivered
personally or by postage prepaid certified mail or express courier service, return receipt requested, to the other
party's address set forth in the most recent Order for Software or Services. Either party may change its address for
notices from time to time by providing written notice of such change to the other party in the foregoing manner.
(d) Assignments. Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the
prior written consent of the other party; provided, however: (i) Licensor may fulfill appropriate duties under this
Agreement through its qualified subcontractors, provided that Licensor remains responsible for the performance
of such subcontractors; and (ii) Licensor may assign this Agreement to an affiliate, successor, or acquirer in
connection with Licensor's merger, acquisition, corporate reorganization, or sale of all or substantially all of its
business or assets to which this Agreement relates. Any attempted assignment or transfer in violation of the
foregoing shall be null and void from the beginning and of no effect.
(e) Relationship; Third Party Beneficiaries. The parties hereto are independent contractors. Nothing in this
Agreement shall be deemed to create any agency, employment, partnership, fiduciary or joint venture relationship
between the parties, or to give any third party any rights or remedies under or by reason of this Agreement;
provided, however, the disclaimers, limitations on liability and contractual indemnification protections in this
Agreement shall extend to the parties' respective directors, officers, employees, agents, and affiliates.
(f) Publicity. Neither party shall, without the prior written consent of the other party in each instance: (I) issue any
press releases or make any other public statements concerning their relationship under this Agreement; (ii)
disclose the pricing or terms of this Agreement to any third party, except to its legal, financial and other advisors
under a duty of confidentiality, as may be required by applicable law, or as may be required in order to enforce
this Agreement in a court of competent jurisdiction; or (iii) use in any advertising or marketing materials the name,
logo or trademarks of the other party or its affiliates; provided, however, Customer may disclose to third parties
that it is a client of Licensor, and Licensor may identify Customer as a licensee of the Software on its website.
(g) Equitable Relief. The Software and Documentation comprise the confidential and proprietary information of
Licensor and its suppliers, constitute valuable trade secrets, and are protected by federal and international
copyright laws and treaties. Customer acknowledges that its breach of the license or ownership provisions of this
Agreement would cause irreparable harm to Licensor, the extent of which would be difficult and impracticable to
assess, and that money damages would not be an adequate remedy for such breach. Accordingly, in addition to all
other remedies available at law or in, equity, and as an express exception to the jurisdiction and venue
requirements of this Agreement, Licensor shall be entitled to seek temporary or permanent injunctive or other
'equitable relief in any court of competent jurisdiction.
(h) Audit. During the term of this Agreement and for 12 months thereafter, Customer agrees to complete and
return promptly any Software usage questionnaires issued by Licensor, to provide Licensor and/or Its designated
auditor with reasonable access to Customer's relevant facilities, systems, and records to verify that Customer's use
of the Software is in compliance with the provisions of this Agreement, and to promptly pay any amounts
determined to be due and owing as a result of such audits. All audits shall be conducted in a reasonable manner at
Licensor's expense and shall occur no more than once annually; provided, however, if an audit reveals or Licensor
reasonably suspects material non-compliance, Licensor may conduct additional audits until compliance is achieved.
If an audit reveals material noncompliance by Customer, Customer shall reimburse Licensor for the reasonable
costs of the audit, in addition to payment of any shortfall determined to be due and owing.
(i) U.S. Government Restricted Rights. The Software and Documentation are licensed with RESTRICTED RIGHTS as
"Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software"
and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R.
§227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as
applicable, the Commercial Computer Software and Commercial Computer Software Documentation is licensed (if
at all) to U.S. Government end users only as Commercial Items, and with only those rights as are granted to other
licensees pursuant to this Agreement.
(j) Export Control. The Software and underlying information and technology may not be accessed or used except
as authorized by United States and other applicable law, and further subject to compliance with this Agreement.
The Software may not be exported or re-exported into any U.S. embargoed countries, or to anyone on the U.S.
Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's
List or Entity List. Customer represents and warrants that Customer and its Users are not located in, under the
control of, or a national or resident of any country or on any such list.
(k) Amendment; Waiver. This Agreement may be amended only by a written instrument signed by an authorized
representative of each party. No right or obligation shall be waived by any act, omission or knowledge of a party,
except by an instrument in writing expressly waiving such right or obligation and signed by an authorized
representative of the waiving party. Any waiver on one occasion shall not constitute a waiver on subsequent
occasions.
(1) Severability; Construction. If any provision of this Agreement is determined to be invalid or unenforceable
under applicable law, such provision shall be amended by a court of competent jurisdiction to accomplish the
objectives of such provision to the greatest extent possible under applicable law, or severed from this Agreement if
such amendment is not possible, and the remaining provisions of this Agreement shall continue in full force and
effect. The headings in this Agreement are for reference purposes only, and shall not affect the meaning or
interpretation of this Agreement. The term "including" as used herein means "including without limitation." The
terms "herein," "hereto," "hereof," and similar variations refer to this Agreement as a whole, rather than to any
particular section.
(m) Counterparts; Facsimile. This Agreement may be signed in counterparts, each of which shall constitute an
original, and all of which together shall constitute one and the same instrument. Any signature may be delivered
by facsimile (including signed PDF, PEG or similar electronic copy attached to an email), which shall have the same
effect as an original signature.
(n) Entire Agreement. This Agreement sets forth the entire agreement of the parties, and supersedes all prior and
contemporaneous proposals, agreements and understandings, whether written or oral, pertaining to the subject
matter hereof. Where Customer requires a purchase order as part of its procurement process, such purchase
order may be issued for administrative purposes only. Any additional or conflicting terms proposed by Customer
in any purchase order, request for proposal, acknowledgement, or other writing shall not be binding on Licensor,
and are hereby objected to and expressly rejected.
(o) Cooperative Purchasing Arrangements. Licensor and Customer support cooperative purchasing arrangements
pursuant to which one or more public sector entities may purchase additional Software and Services under an
existing contract between Licensor and another public sector entity. Licensor and the additional public sector
entity(s) may enter into an addendum to this Agreement that outlines the additional Software and Services
purchased, subject to the existing terms of this Agreement. Any such arrangement is subject to the consent of all
parties involved.
Exhibit B
Services and Support Policy
This Services and Support Policy describes the installation, training, data conversion, maintenance, technical
support, and other Services made available by Licensor for the Software, and details Licensor's and Customer's
responsibilities in connection with any Order for such Services.
A. Installation
Licensor will deliver the Software for installation at Customer's site, and will provide installation instructions that
must be followed by Customer for the installation. Customer is primarily responsible for installation and
configuration of the Software, and its personnel should be experienced in the network, database, and server
platforms on which the Software and database will run.
In connection with Customers' initial installation and configuration of the Software, Licensor will make available
the following services:
• For application installation, up to 8 hours of technical telephone support to assist Customer's personnel
with installation, at no additional charge.
• Additional remote installation assistance is available upon request, and will be billed at Licensor's then -
current hourly consulting rate.
• Onsite installation assistance is available upon request, subject to Licensor's reasonable scheduling and
availability, and will be billed at Licensor's then -current daily consulting rate plus reimbursement of travel
and expenses.
For purposes hereof, installation means the date that Customer first installs the Software on its server, exclusive of
subsequent configuration or implementation work. If Customer does not install the Software within 90 days after
order placement (subject to a day -for -day extension for any delay directly attributable to Licensor), the Software
will be deemed to have been installed on such date, and any payments tied to installation will become due and
payable.
B. Training
Licensor will provide any training ordered by Customer in accordance with Licensor's standard training methods
and using its standard training materials. Training is provided at Licensor's then -current daily rate plus
reimbursement of travel and expenses. If outside training facilities and equipment are utilized, such outside costs
are Customer's responsibility.
C. Electronic Data Conversion
Licensor will provide data conversion services ordered by Customer at its then -current rates and in accordance
with its standard electronic data conversion procedures. Where the order specifies a number of hours for the data
conversion, such number is an estimate only, and subject to adjustment based on format, quality and quantity of
Customer data, timeliness of Customer cooperation and other factors outside of Licensor'. reasonable control. The
general progression and allocation of responsibility for data conversion services is as follows:
• Data conversion programs will be created at Licensor's facilities. In order to prepare the
conversion program, all source data must be provided by Customer to licensor in an acceptable,
machine-readable format and must be corruption free.
• If necessary, including where in-house expertise or local consultants are not available, Licensor
will visit Customer's site to obtain the source data and documentation required to create the
conversion program. Such onsite services will be charged at Licensor's daily consulting rate plus
reimbursement of travel and expenses.
• Data scrubbing is the process of fixing or eliminating individual pieces of data that are incorrect,
incomplete or duplicated in the source database when the data is passed to the target database.
Unless specifically noted in the order, Licensor's conversion estimate does not include data
scrubbing. If desired or required, such services will be made available at an additional charge.
• Licensor will create a data mapping document that defines where the source data will reside in
the target Software database. Once complete, the data mapping document must be approved by
Customer via email or other writing before the conversion program can be created.
• Licensor will perform a test data conversion to provide Customer with the ability to review the source
data as it was mapped and will appear in the Software application. The test data conversion must be
approved by Customer via email or other writing before the final data conversion can be performed.
If changes to the data mapping document or test data conversion are requested by Customer after they have been
approved, Licensor reserves the right to charge an additional fee for time worked, and to delay any previously
estimated completion dates.
D. Maintenance and Support
During the term of Customer's subscription under the corresponding Order, Licensor will make available
maintenance and technical support to Customer in its use and operation of the Software comprised of the
following:
(a) Scope of Support. Customer may contact Licensor with questions and troubleshooting related to use and
operation of the Software, as well as for remote diagnosis and priority resolution of material bugs, errors or other
malfunctions encountered using the Software. A bug, error or malfunction is deemed "material" if it represents a
nonconformity of the Software with Licensor's then -current published specifications and materially interferes with
or degrades usability of the Software.
(b) Contacting Technical Support. Support queries may be submitted by email at Support@LegalFiles.com or by
phone at (217) 726-6400 during Licensor's normal business hours: Monday through Friday from 8:00 a.m. to 5:00
p.m. U.S. Central Time (excluding holidays). Customer must appoint one primary contact person and one alternate
contact person who have been trained and are competent in use and operation of the Software to place technical
support queries.
(c) Classification of Issues. When contacting Licensor for Support, Customer should assign an initial severity based
on the severity level classifications listed below, and should provide a detailed description of the issue or support
request. The initial assignment of severity may be raised or lowered by Licensor, in its reasonable discretion,
based on the information provided by Customer and/or subsequent diagnosis or remediation efforts, including the
availability of a work -around.
Level
Description
1
A problem with the Software which renders the Software inoperative or causes a
significant and ongoing interruption to Customer's business activities.
2
A problem with the Software which degrades or disrupts operation, but does not
cause a significant and ongoing interruption to Customer's business activities.
3
A problem with the Software which has only a minor impact on Customer's
business activities, or for which an acceptable work -around Is readily available.
4
General questions, suggestions, and feedback pertaining to use and operation of
the Software.
(d) initial. Response; Status Updates. Licensor will use commercially reasonable efforts to provide an initial
response and ongoing status updates for support requests within the target timeframes listed below. All
timeframes are during Licensor's normal business hours only, and are further subject to Customer providing all
information and assistance reasonably requested in connection therewith. Licensor will escalate support requests
through its technical support channels as necessary to address covered support issues.
Level
MOW' Response
Status;Update
1
2 hours
Daily until workaround or correction available.
2
4 hours
Every 2 days until workaround or correction available.
3
1 day
As necessary or upon request.
4
2 days
As necessary or upon request.
(e) Remote Access. Upon request, Customer will provide Licensor remote access to Customer's computer system
for the purpose of remote diagnostics. Any such remote access will be subject to Customer's remote access
security policies and procedures as communicated to Licensor at the time.
(f) On Site Visits. If in the reasonable judgment of the parties, an onsite visit to Customer's facility is necessary to
resolve a critical problem, Licensor will make an onsite visit. If the critical problem was not caused by a defect in
the current or immediately preceding release of the Software or is otherwise outside of warranty and Support
coverage, Customer will reimburse Licensor for the onsite visit at Licensor's then -current daily consulting rate plus
reimbursement of travel and expenses.
E. Managed Services
Legal Files offers Managed Services for on premise or hosted installations of the Software.
The server -side components of the Software are comprised of the Web Server containing the Legal Files Web
Application, the Database Server which houses the Legal Files Database, the Document Store which contains all the
documents and attachments stored within the Software, and the services and peripheral components such as
Document. Generation and Document Text Search.
In the Managed Services model, Legal Files will install and configure these components, which includes deploying
Operating System upgrades and implementing upgrades to the server side components as necessary. General
server troubleshooting and support issues involving server -side components are also included in the Managed
Services model.
Managed Services are custom -quoted by Legal Files based on the nature of Customer's deployment. Customer is
responsible for providing all remote access and administrative privileges necessary for Legal Files to provide the
Managed Services, and for obtaining any necessary permissions if hosting with a third party hosting provider.
Exhibit C
Order Form
Customer: City of National City
Order Date: June 22, 2021
Customer's purchase includes the following Legal Files software and professional services:
Description
Price
Qty
Cost
Legal Files'' Named User License
$1,190/user
5
$5,950
Legal FHesTM Server License
$2,995
1
$2,995
Maintenance and Support — One Year Subscription
20% License Fees
$1,789
License and Support Subtotal:
$10,734
Administration/End User Training and Configuration
assistance
$1,500/day
4
$6,000
Project Sessions -Management
$200/hour
10
$2,000
Remote Installation Support
$200/hour
8
No Charge
Implementation Services Subtotal:
$8,000
Custom Data Conversion
$200/hour
0
$0
Custom Programming
$200/hour
0
$0
Additional Services Subtotal:
$0
Total:
$18,734
Note 1: Total identified above is due and payable 50% with placement of order, balance on installation. Any
additional services ordered by Customer are billed as incurred and due net 30 days after date of invoice.
Note 2: Software is licensed on a per named (i.e., non -concurrent) user basis. Licensor will honor per user
license pricing above for twelve (12) months after initial purchase; thereafter, additional user licenses
may be purchased at Licensor's then -current pricing.
Note 3: Maintenance and support is for an initial one (1) year subscription, commencing on installation, and is
priced as a percentage of the total License Fees ordered by Customer. Maintenance and support
pricing will be adjusted automatically based on any additional modules and licenses purchased by
Customer, with prorated payment due for any adjustment made mid-term. Additionally, Licensor
reserves the right to increase maintenance and support pricing by an amount not to exceed five percent
(5%) per year over Customer's then -current pricing, assuming the same number of licenses and users
Note 4: Any out -of -scope services requested by Customer shall be billed monthly in arrears at Licensor's then -
current rates, and due net 30 days after receipt of invoice.
Note 5: All fees are exclusive of travel, meals, lodging and expenses for on -site services, which will be invoiced
by Licensor as reasonably incurred and reimbursed by Customer net thirty (30) days after date of
invoice.
Note 6: Any services scheduled and subsequently cancelled by Customer are subject'to the following
cancellation charges, plus reimbursement of non -recoverable travel and expenses:
o 15 days or more notice of cancellation — no cancellation charge.
o Less than 15 days notice of cancellation -100% daily rate for scheduled days and personnel.
Software End User License Agreement
This End User License Agreement (this "Agreement"), effective as of the date of last signature below (the "Effective
Date"), is entered into by and between Legal Files Software, Inc. ("Licensor"), an Illinois corporation, and the
"Customer" identified below.
1. CUSTOMER INFORMATION
Full Legal Name: City of National City
Billing Address: 1243 National City Boulevard
National City, CA 91950
Primary Contact: Charles E. Bell, Jr. Email: cbell@nationalcityca.gov Phone: (619) 336-4220
Billing Contact: Ron Williams Email: rwilliams@nationalcityca.gov Phone: (619)336-4373
II. TERMS AND CONDITIONS
The Agreement consists of this cover page and the following Exhibits attached hereto, and incorporated herein by
this reference:
Exhibit A:
Exhibit B:
Exhibit C:
General Terms and Conditions
Services and Support Policy
Order Form
Ill. SIGNATURE BLOCK
All software is licensed and services are provided subject to and in accordance with the provisions of this
Agreement. Each party, by the signature of its authorized representative below, acknowledges that it has
reviewed and understands, and agrees to be legally bound by the provisions of this Agreement.
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