HomeMy WebLinkAboutAgenda Report - November 16, 2011 I-01AGENDA ITEM Tom,
0CITY OF LODI
` COUNCIL COMMUNICATION
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AGENDA TITLE: Adopt Resolution Authorizing City Manager and Treasurerto Execute Agreements
for Remit Plus Software, Merchant Card Services and Remote Deposit Services
with Jack Henry and Associates, Inc., Elavon, Inc., and Farmers & Merchants Bank
of Central California, and Direct City Manager and Treasurer to Negotiate a
Banking Services Contract with Farmers & Merchants Bank
MEETING DATE:
PREPARED BY:
November 16,2 011
Treasurer
RECOMMENDED ACTION: Adopt resolution authorizing City Manager and Treasurer to
execute agreementsfor Remit Plus Software, Merchant Card
Services and Remote Deposit Services with Jack Henry and
Associates, Inc., Elavon, Inc., and Farmers & Merchants Bank of Central California, and direct City
Manager and Treasurer to negotiate a banking services contractwith F&M Bank.
BACKGROUND INFORMATION: In May 2011, staff brought forward recommendations for award of
banking services based upon responses received to a Request for
Proposals issued in February 2011. Council directed staff to obtain
additional information and bring the matter back at a later date.
Since the May Council meeting, staff has had discussions with a number of the proposing banks
regarding the services required by the City. As Council will recall, the City separated banking services
into Mandatory Services and Optional Services. Staff is recommending that action be taken on the
Optional Services as discussed below and recommending that Council direct the City Manager and
Treasurer to negotiate a contract with Farmers and Merchants Bank of Central California (F&M Bank) for
Mandatory Services.
Lockbox
Staff requested proposalsfor a classic lockbox -type service wherein customerswould mail their utility
payments to a post office box and a third party would process those payments and depositfunds into the
City's bank account. The desire to contract out this service was driven by significant costs associated
with replacing outdated, worn-out equipment. Staff had initially recommended award of this serviceto
Bank of America at a five-year cost of $182,661.
F&M Bank subsequently brought an alternative proposal to the City utilizing a Jack Henry and Associates
product called Remit Plus. Staff viewed a demonstration of the product and checked references on other
California cities that currently use this product, including a site visit to one customer. Staff was
impressed with the ease of use of both the hardware and software and small footprint of the hardware.
Current customers rated the product very highly. One-time hardware and software costs total $20,389.
Annual software maintenance costs are $2,306.25. Monthly processing fees based upon a transaction
APPROVED: _A / -�-
Konradt Bartlam, City Manager
volume of 12,400 items per month are $1,118. Total five-year costs, including one-time costs, are
$99,000. Staff estimates five-year costs for maintaining the status quo operation at about the same as
that of the Bank of America lockbox proposal (approximately $182,000). The recommended solution will
save the City an estimated $83,661 over the five years.
Merchant Card Services
The City accepts a variety of debit and credit card products as a way for our customers to pay for fees
and services. The City is currently on a "Tiered and Category" pricing structure and it is proposedto
move to an "Interchange Plus"fee basis. Staff had initially recommendedthat services be awarded to
Elavon, based upon its proposal submitted with the Bank of the West proposal.
F&M Bank subsequently broughtforward a proposal from Elavon to move the City to an Interchange Plus
pricing structure, at a pricing structure slightly betterthan that provided in the Bank of the West proposal.
Further, F&M Bank proposesto retroactively apply the new pricing structure, giving the City a refund of
past fees totaling $12,000. Based upon the quantities used in the Requestfor Proposals and the revised
pricing, total five-year costs (excluding interchange fees) would be $19,129, or $2,903 lower than Bank of
the West/Elavon. Total City costs for merchant card services (including i ntercha nge fees) for the period
of April 2010 through March 2011 were $63,266 under the Tiered and Category pricing structure. Total
costs for merchant card services for the same timeframe underthe Interchange Plus fee structure would
have been $51,030, a savings of $12,236. Extrapolating this savings over a five-year period yields
savings of $61,180.
Remote Deposit Capture
Remote Deposit Capture (RDC) is a banking service that allows for the conversion of a paper check into
electronic media that can be processed through the banking system. RDC will speedup the deposit
process by allowing electronic deposit of checks instead of the current process of posting in Finance and
transmittal to the bank via courier. This service is targeted for locations other than Finance that take
payments. Staff had initially recommended award of this service to Bank of the West.
F&M Bank has developed an offering at a significantly reduced per -item fee and will provide the
hardware without charge to the City. Total costs are estimated to be $7,702 over a five-year period as
compared to the $12,144 proposed by Bank of the West. Further, this service will be expanded into
outlying departments that accept checks so that such payment may be converted to electronic media and
processed immediately. The expanded services are included in the estimated costs noted above.
Adopting this service will save the City a penny pertransaction over continuing the paper processing and
increase the City's funds availability. Estimated cost savings over a five-year period will amount to about
$1,500.
Banking Services Contract
Staff is seeking authority from the Council to negotiate a banking services contract with F&M Bank with
the following basicterms:
Five-yearterm, with option to extend for up to two years
• Fixed pricing for the term of the contract
• Basic banking servicesto include, but not be limited to, deposit processing, electronicfunds
transfers, direct deposit, positive pay services, account reconciliation and appropriate
collateralization
• Earnings credit rate of at least 0.75 percent
• Clearly defined reserve requirements, exposure limitations and security interest levels
• Liability commensurate with exposure
Banking services is one of the few services the City receives that is not backed by a comprehensive
written contract. Best business practices would dictate that such services are defined in a written
contract.
FISCAL IMPACT Approval of the agreementsfor Remit Plus, Merchant Card Services and
Remote Deposit Capture services will cost the City approximately $125,800
over a five-year period, including one-time costs of $20,389. Approval of
the Merchant Card Services agreement will generate a refund to the City of $12,000, partially offsetting
the one-time costs for hardware and software for Remit Plus. Securing a long-term banking services
agreement will provide for known costs over the term of the agreement.
FUNDING AVAILABLE: FY 2011/12 costs budgeted across various business units. Additional one-
time costs for Remit Plus hardware and software will be absorbed within
Finance Division appropriations. Future year costs will be included in
budgets presented for adoption.
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Attachments
Profitst.r
OFFICE ADDRESS OF JHA:
Jack Henry & Associates, Inc.
663 West Highway 60
Monett, MO 65708
NAME AND ADDRESS OF CUSTOMER:
City cf Lodi
221 W. Pine Street
Lodi, CA 95240
MASTER SOFTWARE LICENSE AGREEMENT
ProfitStars® Software
DATE: October 24, 2011
Jack Henry & Associates, Inc., acting through its Profitstars Division ("JHA"), is engaged in the business of
licensing computer software and providing related services for use by organizations. By their execution of this
Agreement, Customer agrees to obtain from JHA, and JHA agrees to furnish to Customer, on the terms and
conditions contained herein, all of the computer software products and associated maintenance support and
professional services detailed in Exhibit A and addenda to this Agreement.
JHA and Customer agree as follows:
1. JHA grants and Customer accepts a non -transferable (except as authorized herein) and non-
exclusive license (the "License") to use the Software described in Exhibit A or an addendum to this Agreement
during the term of this Agreement.
2. The License granted to Customer shall be subject to all Standard Terms and Conditions set forth
in this Agreement, Exhibit A and any additional attached Exhibit or addenda documents (if any), all of which are
incorporated in and specifically made a part of this Agreement.
The Standard Terms and Conditions shall apply in all events except where specifically superseded in Exhibit A or
superseded as to individual items of Software in the additional attached Exhibit or addenda documents (ifany).
I n witness of this agreement, authorized representatives of the parties have signed this Agreement where
provided below, in duplicate copies.
]HA: Customer:
Jack Henry& Associates, Inc. City of Lodi
Profitstars Division
By: By:
Printed Name
Title:
Date:
JS: 87388
Sales Rep: Gary Holt
Profitstars Master SGA-nonFI-US rev 1009M
Printed Name:
Title:
Date:
ProfitStars® Software
Standard Terms and Conditions
1. DEFINITIONS
1.1 "Affiliates" means the parent company of a party; a subsidiary
of a party in which the party owns controlling ownership interest; or a
subsidiary of a party's parent company in which the parent company
owns controlling ownership interest.
1.2 "Confidential Information" includes, but is not limited to, the
following types of information and other information of a similar nature
whether provided in writing (whether marked as confidential or not),
orally, or on magnetic disk or tape or by any other means or medium
whatsoever: (a) trade secrets, software, documentation, systems,
procedures, manuals, confidential reports, business plans and customer
lists; (b) nonpublic personal information and data of Customer's
customers and consumers which is subject to applicable data privacy
laws and regulations ("PI Data"); and (c) the terms and conditions of
this Agreement and each Exhibit or addendum to this Agreement.
Notwithstanding the foregoing, Customer may disclose the provisions of
this Agreement in accordance with the Open Records laws of the State of
California.
1.3 "Customization" means any modification of the Software
program code and/or Documentation made by JHA pursuant to a
Services order executed between JHA and Customer. Once incorporated
with the Software programs, a Customization becomes an integrated
part of the Software program and will be deemed as Software for the
purpose of this Agreement.
1.4 "Documentation" means all installation, operating instruction
and end user manuals, in hard copy or electronic form, provided by JHA
with the Software programs to support the use and operation of the
Software programs.
1.5 "Enhancements" mean new Software program features or
functions provided by JHA to Customer and other Software Customers as
part of Maintenance which are not licensed by JHA separately for an
additional License fee payable by its customers generally. Once installed
by Customer, Enhancements become an integrated part of the Software.
1.6 'Error" means (a) with respect to Software, any malfunction of
a Software program feature or function that causes the program not to
operate in accordance with its Documentation; and (b) with respect to
Professional Services, any nonconformity of the Professional Services
with the warranty stated in Section 5.1 below.
1.7 'License" means the licensed rights granted to Customer to
install and use the Software as provided in this Agreement.
1.8 "Maintenance" means the Software maintenance support
performed by JHA under this Agreement to provide Error correction
services and deliver Updates and Enhancements for the Software to
Customer.
1.9 "Professional Services" means any Software installation,
conversion, customization, consulting, training or other services
performed by JHA to assist in Customer's implementation of the
Software.
1.10 "Software" means the JHA software programs identified in
Exhibit A to this Agreement and any subsequent addendum to this
Agreement; Documentation accompanying the software programs; and
all Enhancements, Updates, Upgrades, Customizations, and
modifications thereto.
1.11 "Third Party Software" means any software program and
accompanying documentation that is identified as a Third Party Software
product in Exhibit A or an addendum to this Agreement and is owned
and licensed by a party other than JHA,
1.12 "Updates" means periodic Software program fixes, patches
and releases issued by JHA to correct Errors reported in the Software
ProFitStars MasterSLA-nonF1•US rev 1009M 2
programs as part of standard Maintenance. Once installed by Customer,
Updates become an integrated part of the Software.
1.13 "Upgrades" means new versions of the Software issued by JHA
which include major new features and functionality for which JHA
requires the payment of a separate license fee from its customers
generally.
2. SCOPE OF AGREEMENT
2.1 This Agreement pertains to Software Licenses, Maintenance
and Professional Services acquired by Customer and its Affiliates from
JHA and its Affiliates. The initial transaction is identified in Exhibit A to
this Agreement. Subsequent Software License, Maintenance and/or
Professional Services transactions will be documented in separate
addenda, Statements of Work or services orders executed between the
parties.
2.2 Affiliates of JHA and Customer may transact business together
and participate in this Agreement by executing separate addenda,
Statements of Work and services orders pertaining to Software Licenses,
Maintenance and Professional Services which specifically reference this
Agreement. I n such instances, all references to JHA in this Agreement
shall be read to apply to the JHA Affiliate and all references to Customer
in this Agreement shall be read to apply to the Customer Affiliate, unless
otherwise specifically indicated in an individual addendum,
2.3 This document establishes the terms and conditions that will
apply to and govern the JHA product Software Licenses acquired by
Customer from JHA. With respect to Third Party Software products
acquired by Customer from JHA, the third patty owner's software license
agreement accompanying those products will govern Customer's use.
For a particular Software product, a supplemental exhibit or addendum
document may be included with this Agreement that provides terms and
conditions applicable specifically to that Software product. The defined
terms shown in Section 1 (Definitions) above shall have the same
meaning in any supplemental exhibit or addendum document
incorporated as a part of this Agreement. In the event of any conflict
between a provision in this Standard Terms and Conditions document
and a supplemental exhibit or addendum document, the provision of the
supplemental exhibit or addendum document will govern and control
with respect to the particular Software product covered by the
supplemental exhibit or addendum document.
2.4 JHA may offer for sale to Customer certain third party
hardware for Customer's use with the Software. All hardware and any
related installation and maintenance services provided by JHA to
Customer shall be documented in accordance with a separate hardware
agreement between the parties.
3. FEES
3.1 Customer shall pay to JHA the fees, payments and expenses
set out in the attached Exhibit A and any subsequent addendum to this
Agreement, for the Software Licenses, Maintenance and Professional
Services described in the Exhibit A addendum, Statement of Work or
services order. All fees will be quoted, invoiced and payable in U.S.
dollars, unless otherwise indicated in Exhibit A or an individual
addendum, Statement of Work or services order.
3.2 Customer shall promptly reimburse JHA for all actual,
reasonable out-of-pocket expenses incurred by JFWs personnel traveling
to and from Customer's site to perform Professional Services. JHA will
incur these expenses in accordance with JFWs corporate travel policies
and procedures and will invoice these expenses to Customer on a
monthly basis as incurred. A copy of JHA's corporate travel policies will
be provided to Customer upon request. In addition, JHA will apply
reasonable efforts to comply with Customer's written corporate travel
policy requirements communicated by Customer to JHA in advance of
JFWs booking of reimbursable travel to and from Customer's location.
3.3 Customer shall be responsible to pay all taxes, duties and
other charges which may be imposed by a government entity on the
transactions completed under this Agreement, except for taxes based on
JHAs revenue or income. If Customer is exempt from paying taxes on
the transactions, Customer shall deliver a copy of its then -current tax
exemption certificate, which JHA shall be entitled to rely upon in not
invoicing Customer for applicable taxes on the transaction.
4. SOFTWARE LICENSE
4.1 1 n consideration of Customer's payment of the Software
License fees for each copy of the Software licensed by Customer as
shown in Exhibit A or an addendum to this Agreement, JHA grants to
Customer the following non -transferable (except as authorized herein)
and non-exclusive License rights, subject to the restrictions stated
below:
(a) Customer may install the Software copy on its computers and
access and use the Software copy solely for its internal
operations and in its deployment environment, in accordance
with the scope and metrics of the License described in Exhibit
A or an addendum to this Agreement and pursuant to the
terms and conditions of this Agreement. Customer may
acquire additional License copies of the Software for use in
Customer's production and nonproduction deployment
environments (e.g. development, testing and disaster
recovery).
(b) The Software copy shall be used only to process data of
Customer's organizations and Affiliates listed in Exhibit A or an
addendum to this Agreement, in one operating environment,
in one data library on one or more computers operated only by
Customer's employees or contractors or the employees or
contractors of such Affiliates. Customer shall use the Software
only at the site locations of Customer and its Affiliates that are
identified in Exhibit A or an addendum to this Agreement.
(c) For Software which is designated as server -based Software,
Customer shall be entitled to install, access and use the
Software copy programs on a single server computer located
at Customer's site identified in Exhibit A or an addendum to
this Agreement. Customer may transfer the installation of the
Software copy programs to another server at Customer's site
by giving JHA prior written notice and the full installation
details of the new Customer site of the installation so that JHA
can issue any new license keys required for operation of the
Software on a different server.
(d) For Software which is designated as being workstation -based
Software, Customer may install the Software copy programs
on the number of Customer -owned client workstations and
access the Software programs up to the maximum limit of the
authorized users shown in Exhibit A or an addendum to this
Agreement for the workstation License purchased by
Customer.
(e) For Software which is licensed by an individual operating
system, database system, internet browser, hardware or other
technology platform type, Customer shall be entitled to use
the Software solely in conjunction with the technology
platform with which the Software has been designed and
certified by JHA or its licensors to operate. Licensing of the
same Software product based on a different technology
platform type by Customer may require the payment of
separate License and Maintenance fees to JHA.
(f) For Software which is designated as being a Software
application template, Customer shall be entitled to modify and
customize the Software application template programs in order
to create and deploy a completed software application for
deployment and use in Customer's operations.
Exhibit A or an addendum to this Agreement may include supplemental
licensing terms and restrictions which pertain to the specific Software
products identified therein.
ProfitStars Master SLA-nonFl-US rev 1009 M
4.2 Each License acquired by Customer to use the Software
described in Exhibit A or an addendum to this Agreement shall be in
effect for the period of time specified in Exhibit A or the addendum under
which the Software was licensed, beginning upon the date of initial
delivery of the Software products to Customer. If no license term period
is specified, the default term period for any License shall be for twenty -
Five (25) years. For any additional copies of the Software or additional
components of the Software subsequently licensed by Customer, the
license term period shall be coterminous with the license term period
applicable to the original Software License acquired by Customer for the
Software product(s).
4.3 Additional License fees will be due and payable by Customer to
JHA for using the Software to process the data of additional Customer or
Affiliate organizations other than those listed on Exhibit A; for an
increase in the scope of its existing Software Licenses; or for licensing
additional Software products or components.
4.4 Except as authorized in this Agreement, the License and the
Software shall not be assigned, sublicensed, or otherwise transferred or
copied in any manner by Customer without the prior written consent of
JHA. The Software may not be installed or used by Customer in a
timesharing, rental, ASP/hosted or service bureau environment, without
the prior written consent of JHA. Customer shall be authorized to make
up to three (3) copies of the Software for its own archival or back-up
purposes only. Customer may print a reasonable number of hard copies
of the online Documentation for the sole reference and use by individual
users of the Software within Customer's organization. All authorized
copies of the Software programs or Documentation made by Customer
shall include all of the proprietary notices and legends included by JHA or
its licensors on the original Software programs and Documentation.
4.5 Customer shall not disassemble, reverse engineer, decompile
or perform any other action to determine the source code of the
Software programs unless such action is authorized by applicable law, or
create any derivative works from the Software programs or
Documentation. Customer shall not remove or alter proprietary notices
of JHA or its licensors on any of the Software programs or other
materials associated with the Software.
4.6 Customer shall install and use the server -based Software only
at the server site location of Customer specified in Exhibit A or an
addendum to this Agreement. Customer further agrees that prior to
providing any functions performed by the Software to any other
organization, Customer will require the other organization to sign JHA's
standard performance guarantee regarding that organization's use of
and access to the Software. However off-site testing and/or disaster
processing is permitted provided the owner/operator of the off-site
facility has signed JHA's Confidentiality Agreement, and JHA is promptly
notified by Customer.
4.7 Customer also covenants and warrants to JHA that Customer's
Affiliates and all other organizations authorized to access and use the
Software and off-site test/disaster facilities shall conform to, abide by
and be governed and bound by this License Agreement as though they
were Customer. Customer accepts full responsibility and liability to JHA
for any breach of this Agreement by Customer's Affiliates and any other
organization granted access to the Software by Customer and/or in an
off-site test/disaster facility used by Customer. If Customer, its Affiliates
or any other organization accessing the Software and/or in an off-site
test/disaster facility breaches this Agreement, and such breach is not
corrected within thirty (30) days after Customer receives written notice
of the breach from JHA, then JHA may terminate Customer's license to
use the Software, and Customer shall immediately cease using the
Software and shall return all copies of the Software to JHA
4.8 For any Third Party Software products identified in Exhibit A or
an addendum to this Agreement, the License granted to Customer for
use of the Third Party Software is specified in and governed by the
separate software license agreement provided by the owner of the Third
Party Software with the Third Party Software programs or as identified in
the supplemental exhibit or addendum pertaining to the Third Party
Software product. JHA makes no separate License grant or extends any
product warranties, indemnities and liabilities for Third Party Software to
Customer, Any warranties or indemnities provided by the third party
Software owner in its standard software end-user license agreement for
the third party Software product shall exclusively apply to the product.
JHA shall pass through to Customer for Customer's benefit all end-user
software warranties and indemnities that the third party Software owner
provides directly to JHA.
4.9 JHA may incorporate license management functionality with
the Software programs to restrict the access and use of the Software
programs by Customer within the scope of the authorized License
acquired by Customer. Customer shall not disable or take any actions to
avoid or override the license management features of the Software
programs. As a condition of licensing the Software to Customer, JHA
may require that Customer identify the details of the server upon which
the Software programs will reside. Upon JHA's written request to be
issued not more frequently than once each calendar year, Customer shall
furnish JHA with a written certification signed by an executive or senior
manager of Customer verifying the location of the Software installation
and acknowledging that Customer's use of the Software has been in
continuous compliance with the terms of this Agreement.
4.10 If Customer is a U.S. government entity, the Software
products and/or Services are provided with RESTRICTED RIGHTS. Use,
duplication or disclosure by the Government is subject to restrictions set
forth in subparagraphs (a) through (d) of the Commercial Computer
Software—Restricted Rights at FAR 52.227-19 when applicable, or in
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013, and in similar clauses in the
NASA FAR supplement, as applicable.
5. WARRANTIES
5.1 JHA warrants to Customer that:
(a) For a period of ninety (90) days following JHA's delivery of the
Software to Customer (the "Warranty Period"), the unmodified Software
programs will operate in accordance with the Documentation in effect at
the time of delivery. If Customer has contracted for JHA to perform the
Software installation, the Warranty Period will commence on the date of
Software installation at Customer's site (the "Implementation Date").
Under this warranty, JHA will apply commercially reasonable efforts to
correct Errors in the Software reported by Customer during the Warranty
Period at no extra charge to Customer. If JHA does not correct the
Errors reported by Customer within thirty (30) days following the
expiration of the Warranty Period, Customer may terminate this
Agreement and receive a full refund of all fees paid by Customer to JHA
for the affected Software covered by this warranty. Errors reported by
Customer after expiration of the Warranty Period will be addressed by
JHA solely in accordance with the Maintenance provisions of Section 15
(Software Maintenance) below. JHA does not warrant that the Software
is Error -free or will operate in an uninterrupted manner.
(b) The Software furnished hereunder is free and clear of all liens
and encumbrances, and IHA has full power and authority with respect to
the Software to license the Software to Customer without the consent of
any other person, or in the event such is required JHA has obtained all
required consents.
(c) JHA will utilize commercially available virus protection software
in order to ensure that the Software programs will be free from known
viruses, bombs and other destructive elements which negatively affect
Customer's use and operation of the Software.
(d) The Maintenance will be provided to Customer in a timely and
professional manner consistent with software industry standards for
maintenance support of commercial software products comparable to the
Software products licensed by Customer under this Agreement.
(e) The Professional Services provided by JHA to Customer under
this Agreement will be performed in a timely and professional manner
consistent with software industry standards and in accordance with the
requirements and specifications identified in Exhibit A an addendum to
this Agreement, or a separate Statement of Work or services order
executed between the parties (whichever is applicable). These
warranties are valid for a period of thirty (30) days commencing from
the completion date of the Professional Services project. If Customer
reports any Errors in the Professional Services to JHA within this
warranty period, IHA shall re -perform the affected Professional Services
at no additional charge to Customer. Upon completion of this second
delivery of the Professional Services, Customer shall have an additional
thirty day warranty period to confirm that the Professional Services
conform to the warranty stated above. If the second delivery of
ProfitStars Master SLA-nonR-US rev 1009 M
Professional Services does not correct the Errors in the Professional
Services, then the affected Exhibit A addendum to this Agreement,
Statement of Work, and/or services order (whichever is applicable) may
be terminated by either party and JHA shall refund to Customer all fees
and reimbursable expenses previously paid by Customer to JHA for the
defective Professional Services.
THE WARRANTIES STATED IN THIS SECTION 5.1 ARE EXPRESSLY IN
LIEU OF ALL OTHER WARRANTIES RELATING TO THE SOFTWARE,
MAINTENANCE AND PROFESSIONAL SERVICES, EXPRESS CR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
MERCHANTABILITYOR FITNESS FORA PARTICULAR PURPOSE.
5.2 Each party warrants to the other party that:
(a) It has all requisite legal right, power and authority to execute
and deliver this Agreement and each Exhibit, addendum, Statement of
Work and services order executed against this Agreement, as a legal,
valid and binding obligation of that party, which is enforceable against
that party in accordance with its terms.
(b) There is no agreement or understanding with any third party
that interferes with or will interfere with its performance of its
obligations under this Agreement and any Exhibit, addendum, Statement
of Work or services order executed against this Agreement.
OWNERSHIP
6.1 All Software and any other intellectual property furnished now
or hereafter by JHA to Customer shall be and remain the exclusive
property of JHA and its licensors, subject to the License rights granted to
the Customer in this Agreement and Exhibit A and addenda to this
Agreement. All Software provided by IHA to Customer under this
Agreement is licensed and not sold.
6.2 All software programs, data, technology and any other
intellectual property owned by Customer and its licensors and provided
or made accessible to JHA under this Agreement shall be and remain the
exclusive property of Customer and its licensors.
TRADE SECRETS
7.1 Customer acknowledges that the Software provided by JHA
under this Agreement incorporates trade secrets of JHA and its licensors,
and as such is protected by civil and criminal law, is very valuable to JHA
and its licensors, and that its use must be carefully and continuously
controlled. Customer shall use the highest standard of diligence to
protect the confidentiality of the Software, but in no event exercising not
less than reasonable care, and shall prohibit the unauthorized access to,
use or duplication of any of the Software in its possession. Customer
shall keep all machine-readable Software in a secure place which is as
secure as Customer provides for its own confidential materials of like
nature and importance. Customer shall notify JHA immediately of the
unauthorized possession, use or knowledge of any item supplied under
this Agreement by any person or organization not authorized by this
Agreement to have such possession, use or knowledge. Customer shall
promptly furnish JHA full details of such possession, use or knowledge,
and shall cooperate fully with JHA in any litigation against third parties
deemed necessary by JHA to protect its proprietary rights. Customer's
compliance with the above shall not be construed in any way as a waiver
of JHA's right to recover damages or obtain other relief against Customer
for its negligent or intentional harm to JHA's proprietary rights or for
Customer's breach of its contractual obligations to protect the
confidentiality of the Software.
7.2 If Customer attempts or allows others to attempt to use, copy,
duplicate, transcribe or convey the items supplied by JHA pursuant to
this Agreement, in a manner contrary to the terms of this Agreement or
in derogation of JHA's proprietary rights, whether these rights are
explicitly herein stated, determined by law, or otherwise, JHA shall have,
in addition to any other remedies available to it at law or equity, the
right to seek injunctive relief enjoining such actions. Customer hereby
acknowledges that in such instances irreparable harm will occur to JHA
and that other remedies are inadequate.
COMPLIANCE WITH LAWS
8.1 Customer assumes all responsibility for using the Software in a
manner that is in compliance with all laws and regulations relating to
such use of the Software.
8.2 With respect to NPI Data disclosed under this Agreement, the
parties shall comply with applicable data privacy and security laws and
regulations pertaining to NPI Data, including but not be limited to the
Gramm -Leach -Bliley Act ("GLBA") and the Health Insurance Portability
and Accountability Act ("HIPAA").
8.3 The parties represent that they are equal opportunity
employers and do not discriminate in the employment of persons or
awarding of subcontracts because of a person's race, sex, age, religion,
national origin, veteran or handicap status. Without limiting the
foregoing, the parties agree to comply with applicable federal and state
laws, regulations and orders pertaining to the activities contemplated by
this Agreement, including but not limited to (a) Executive Order 11246,
as amended or superseded in whole or in part, and as contained in
Section 202 of the Executive Order as found at 41 C.F.R. § 60-1.4(a)(1-
7); (b) Section 503 of the Rehabilitation Act of 1973 as contained in 41
C.F.R. § 60-741.4;and (c) The Vietnam Era Veterans' Readjustment
Assistance Act of 1974 as contained in 41 C.F.R. § 60-250.4.
8.4 The Software and related technical data provided by JHA to
Customer under this Agreement is of U.S. origin and therefore subject to
U.S. export control laws and regulations. Both parties shall comply with
all export control laws and regulations applicable to the export or re-
export of the Software and technical data to persons or destinations
prohibited or restricted by law.
9. SOFTWARE DELIVERABLES
9.1 The Software programs will be delivered to Customer in an
object code format, unless otherwise specified in Exhibit A or an
addendum to this Agreement.
9.2 The Documentation for the Software will be in electronic
format unless otherwise noted in Exhibit A or an addendum to this
Agreement and shall be complete and accurate so as to enable a
reasonably skilled Customer user who has received JHA's training to
effectively use all of its features and functions without assistance from
JHA. The Documentation delivered to Customer shall be JIM most
current version applicable to the Software programs involved.
10. CONFIDENTIAL INFORMATION
10.1 All Confidential Information communicated by one party to the
other party under this Agreement, whether before the effective date or
during the term of this Agreement, shall be received in strict confidence
and shall be used by the receiving party only for the purposes authorized
by this Agreement. Except as provided below, Confidential Information
shall not be disclosed by the receiving party to parties other than its
employees, agents, contractors, auditors and advisors (collectively, the
"Representatives"), without the prior written consent of the disclosing
party. The receiving party shall ensure that each Representative given
access to the disclosing party's Confidential Information shall be legally
bound to honor and protect the Confidential Information of the disclosing
party on terms consistent with the confidentiality obligations applicable
to the receiving party under this Agreement. Each party agrees to take
all reasonable precautions to prevent the unauthorized disclosure of the
Confidential Information to third parties, including without limitation, the
terms of this Agreement, except as the disclosure may be necessary or
mandated by reason of legal, accounting or regulatory requirements
beyond the reasonable control of JHA or Customer, as the case may be.
The receiving party shall apply the same standard of care with respect to
the disclosing party's Confidential Information that it applies to its own
Confidential Information of like nature and importance, but in no event
with less than a reasonable standard of care. If Third Party Software
products or Professional Services are specified in Exhibit A or an
Addendum to this Agreement, then JHA shall be authorized to disclose
the terms and conditions of this Agreement to the owner of the Third
Party Software products or Professional Services to fulfill its contract
reporting obligations to the third party owner.
10.2 With the exception of NPI Data, the receiving party shall be
under no obligation with respect to Confidential Information which (a)
was in the public domain prior to the receipt of the information by the
receiving party, or subsequently becomes part of the public domain by
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publication or otherwise, except disclosure by or the wrongful act of the
receiving party, its owners, officers, directors, employees, agents or
representatives; (b) was in the lawful possession of the receiving party
prior to its receipt from the disclosing party and was not acquired by the
receiving party directly or indirectly from the disclosing party or any of
disclosing party's customers, and the sources of such information had
not obtained the information wrongfully and had no obligations of
confidentiality or secrecy with respect thereto; (c) was independently
developed by the receiving party without access to the Confidential
Information; or (d) is provided by the disclosing party to another person
or party without being subject to an obligation of confidentiality by the
other person or party with respect to the Confidential Information. The
receiving party has the burden of proving that the Confidential
Information was subject to one or more of the above listed exceptions.
10.3 Confidential Information may be disclosed by the receiving
party pursuant to a government or court order requiring such disclosure,
provided that the receiving party has first notified the disclosing party of
its receipt of the government or court order to disclose the disclosing
party's Confidential Information and has given the disclosing party an
opportunity to seek a protective order or other remedy limiting such
disclosure without confidentiality obligations.
10.4 Each party confirms that it has implemented a written
information security policy and program which is sufficient to meet its
responsibilities under applicable data privacy and security laws and
regulations and its confidentiality obligations under this Agreement.
10.5 If Customer wishes to reveal any portion of JHAs Confidential
Information to any third party provider to Customer, Customer and the
third party provider shall first execute JHA's standard three party
confidentiality agreement prior to revealing the JHA Confidential
Information to the third party provider.
10.6 All information and materials disclosed to the Customer at
JHA's User Group conferences shall be treated as JHA's confidential
Information. Nothing in this Section shall be interpreted to preclude or
impede Customer's participation in any User's Group with respect to the
Software.
11. PRIVACY AND SECURITY OF N P I DATA
11.1 1 n accordance with data privacy and security laws and
regulations applicable to this Agreement, JHA shall not disclose or permit
access to or use of any NPI Data made available by Customer to JHA for
any purposes other than those specifically required to fulfill JHA's
contractual obligations with Customer. JHA shall not sell the information
regarding Customer's consumers for any reason. In connection with
providing services to Customer, JHA shall take all commercially
reasonable steps to ensure the privacy and security of the NPI Data and
protect against anticipated threats and hazards to the security of the NPI
Data. JHA shall take all commercially reasonable steps to prevent
unauthorized access to or use of the NPI Data that could result in
substantial harm or inconvenience to Customer or its customers or
consumers. JHA has implemented policies and procedures to ensure the
proper disposal of the NPI Data in accordance with applicable federal and
state requirements. In the event any court or regulatory agency seeks
to compel disclosure of the information, JHA shall, if legally permissible,
promptly notify Customer of the disclosure requirement and will
cooperate so that Customer may at its expense seek to legally prevent
this disclosure of the information.
11.2 JHA has separately published its data privacy and security
compliance commitment to its customers, which corresponds at a
minimum to the provisions of this Section 11 as of the effective date of
this Agreement. To the extent that additional commitments by IHA are
reflected in future published versions of this policy, these additional
commitments shall be incorporated as part of this Agreement without
further actions by the parties. I n no event shall a future published data
privacy and security compliance statement issued by JHA lessen or
eliminate any of the commitments by JHA stated in this Section 11.
11.3 If a breach of security results in an unauthorized intrusion into
JHA's systems which directly and materially affects Customer or its
customers or consumers, JHA will take appropriate measures to stop the
intrusion; report on the intrusion to customer within a reasonable time
after discovery of the intrusion; subsequently report the corrective
action taken by JHA in response to the intrusion; and provide reasonable
assistance to Customer to support any mandatory disclosures about the
intrusion by customer to its customers and consumers required by law.
If JHA has notified law enforcement agencies about the intrusion, JHA
may delay its notification of the intrusion to Customer until authorized to
do so by the law enforcement agencies.
12. SOFTWARE DELIVERY
12.1 If Customer has not contracted with JHA to install the
Software at Customer's location, delivery of the Software to Customer
shall occur within thirty (30) days following (a) the execution of this
Agreement, with respect to the Software originally licensed under this
Agreement, and (b) the execution of any follow-on addendum to this
Agreement, with respect to additional Software licensed under this
Agreement. The Software will be delivered by physical shipment to
Customer, or if JHA makes the Software available for electronic delivery,
by download on an FTP site designated by JHA for this purpose.
12.2 If Customer has contracted for JHA to install the Software at
Customer's location, the delivery of the Software will be scheduled to
occur at the commencement of the Software installation project, for use
by JHA Professional Services personnel to perform the installation. In
such instance the delivery date shall be scheduled to occur not more
than one hundred twenty (120) days following the mutual execution of
this Agreement or an addendum to this Agreement (whichever is
applicable) unless otherwise agreed by JHA. Customer and JHA may
agree to stage the delivery and installation of individual Software
products or components in phases, in order to allow Customer to begin
productive use of those products and components in advance of the
remaining Software products and components to be delivered and
installed by JHA.
13. PROFESSIONAL SERVICES
13.1 If Customer has contracted for JHA to install the Software at
Customer's location, JHA will install the Software at Customer's location
specified in Exhibit A or an addendum to this Agreement, and will assist
Customer in converting Customer and its Affiliates to production use of
the Software. Prior to commencement of the project, JHA and Customer
may enter into a separate Statement of Work or services order
document which describes the project details and the specifications and
requirements applicable to JHA's professional services delivery.
Customer shall be responsible for providing all hardware, other third
party software, and internet/network/infrastructure components
necessary to install and operate the Software products in its production
environment, which shall be installed by Customer and operational as of
the scheduled commencement date of the Software installation project.
All such installation environment components shall meet at a minimum
the technical requirements stated in the Documentation relating to the
Software. Customer will furnish data needed and requested by JHA to
perform the installation and testing of the Software in Customer's test
and production environments, and will co-operate with and assist JHA
personnel in the installation and conversion of the Software in a timely
manner and as reasonably requested by JHA. For the installation and
conversion of the Software, Customer agrees to pay JHA the Professional
Services fees described in Exhibit A an addendum, the Statement of
Work or the services order (as applicable) and reimburse JHA for
reasonable out-of-pocket travel expenses incurred by JHA personnel
traveling to and from Customer's location to perform the Professional
Services.
13.2 JHA provides the following additional Professional Services for
the Software:
(a) Software Customizations;
(b) Software training for Customer's employees concerning the
operation and use of the Software; and
(c) Consulting concerning Customer's electronic data needs, problems
and solutions which may be addressed through Customer's use of
the Software.
For the purchase and delivery of Professional Services not specified in
Exhibit A or an addendum to this Agreement, the parties may document
these Professional Services requirements in a separate Statement of
Work or services order document executed by both parties which
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identifies the mutually agreed Professional Services project details,
specifications and requirements.
13.3 JHA may utilize subcontractor personnel to supplement its
Professional Services delivery resources on a project to be performed by
JHA for Customer. JHA will be and remain fully and solely liable and
responsible for the performance and activities of its subcontractors
participating in Customer's project, and JHA shall ensure that its
subcontractors are legally bound to honor and protect Customer's
Confidential Information to which the subcontractors have been provided
access as part of the project activities, consistent with the confidentiality
obligations of JHA under this Agreement. JHA will identify to Customer
all subcontractor personnel participating in a Professional Services
project to be conducted at Customer's location.
14. INSTALLATION VERIFICATION
The following provisions shall apply when Customer has contracted with
JHA for installation of the Software at Customer's location:
14.1 When JHA has materially completed the installation of the
Software programs in accordance with the written specifications and
requirements of Exhibit A an addendum to this Agreement, or a
Statement of Work or services order executed between the parties
(whichever is applicable), JHA will present to Customer an installation
certificate, verifying that JHA has installed the Software and that the
Software is fully installed, operational and ready to use in Customer's
production environment and otherwise meets all of the applicable
specifications and requirements. Customer shall have a reasonable
opportunity to test and confirm JHA's verification of this compliance with
these specifications and requirements, and upon completion of its
testing, Customer shall sign and return the installation certificate to JHA.
If Customer fails to provide the signed installation certificate to JHA
within fifteen (15) business days after JHA has delivered the installation
certificate to Customer and Customer has not identified material
noncompliance with these specifications and requirements during that
period, then the installation shall be deemed to be fully completed and
compliance with these specifications and requirements fully achieved by
JHA.
14.2 If during the fifteen (15) day business period specified above
Customer discovers any material noncompliance with the applicable
specifications and requirements, Customer shall immediately notify JHA
in writing of the details of the noncompliance, and JHA shall address and
resolve the reported noncompliance at no additional charge to Customer
and issue a replacement installation certificate to Customer. I n this
event, Customer shall have a second opportunity within fifteen (15)
business days following receipt of JHA's replacement installation
certificate to confirm JHA's compliance with these specifications and
requirements. If Customer fails to provide the signed installation
certificate to JHA within this second fifteen (15) business day period
after JHA has delivered the replacement installation certificate to
Customer and Customer has not identified material noncompliance with
these specifications and requirements during that period, then the
installation shall be deemed to be fully complete and compliance with
these specifications and requirements fully achieved by JHA.
14.3 If Customer identifies in writing to JHA further material
noncompliance with the applicable specifications and requirements
during this second fifteen (15) business day period, then the JHA and
Customer shall either (a) mutually agree upon an additional course of
action required to address and resolve the remaining noncompliance
issues, or (b) Exhibit A or the addendum to this Agreement shall be
terminated, Customer shall uninstall and return the affected Software
and the hardware acquired by Customer from JHA for use with the
Software, and JHA shall refund to Customer all fees paid by Customer
under Exhibit A or the addendum to this Agreement for the affected
Software and under the separate agreement for purchase of the
hardware (if applicable).
15. SOFTWARE MAINTENANCE
15.1 During the term of this Agreement, in consideration of
Customer's payment of the annual Maintenance fees for the Software,
JHA will provide Customer with the following standard Maintenance for
the Software:
(a) Updates and minor enhancements of the Software programs
which are provided by JHA to other then -current active Maintenance
customers of the Software.
(b) Customer support help -desk, for the reporting, handling and
resolution of Software Errors discovered by Customer. JFWs standard
customer support help desk hours of operation are specified in Exhibit A
or the addendum applicable to the Software being maintained.
(c) Correction of Software Errors, including the delivery of
program Error fix releases or PTF's.
JHA's provision of standard Maintenance and the applicable service level
commitments pertaining to standard Maintenance delivery may be more
particularly defined in JHA's published Maintenance policies and
procedures relating to the specific Software products involved.
15.2 Customer, at its expense, will provide JHA with remote VPN
communication access (or comparable remote access technology) to its
server on which the Software has been installed to enable JHA to perform
remote Software Maintenance diagnosis and troubleshooting activities. If
remote dial up access is provided, Customer shall initiate the call for the
remote support session. JHA shall comply with all TT system access and
security policies and procedures communicated by Customer regarding
authorized access to its rT systems.
15.3 JFWs provision of standard maintenance support described
above shall apply only to the then -current major release of the Software
and the immediately preceding major release of the Software. Support,
if any, offered by JHA for older releases of the Software shall be provided
under a separate Professional Services engagement.
15.4 Standard Maintenance excludes Software Errors or other
problems caused or contributed to by any of the following:
(a) Errors or performance issues which originate in third party
operating system, database system or other software programs which
are utilized by Customer in conjunction with the Software;
(b) A modification of the Software not created by JHA or its
subcontractors;
(c) Program Errors that were previously corrected by JHA and
delivered to Customer in a Maintenance Update release which has not
been installed by Customer;
(d) Inadequate hardware memory capacity or any problems with
data on tape, disk or diskettes which have been caused by defects in
hardware manufacturers programming;
(e) Failure of Customer to install hardware manufacturers
operational/system software new Releases and/or Program Temporary
Fixes (PIFs);
(f1 Program Errors or problems which are the result of improper
operator handling or use;
(g) Program Errors or problems which result from any program
interface not provided by JHA which has been created or deployed by
Customer or a third party with the Software;
(h) Program Errors or problems which result from equipment,
software, networks, browsers, telecommunications or other IT
infrastructure in Customer's TT environment or operating environment
for the Software, which are not certified by JHA in the then -current
Documentation to operate with the Software; or
(I) Program Errors or problems which originate from the World
Wide Web.
15.5 Standard Maintenance excludes any retrofitting, reintegration,
and recoding of any Customization which has been made to the Software
in order for the Customization to work with any then -current release of
the Software. Any such Professional Services agreed between JHA and
Customer shall be documented in a separate Statement of Work or
services order executed between JHA and Customer which includes the
project specifications and details, scope of services deliverables, and
services fees applicable to the Professional Services performed.
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15.6 Standard Maintenance provided by JHA for customizable
Software application templates which Customer licenses from ]HA under
this Agreement is expressly limited to delivery of future standard
Updates to the unmodified, non -customized version of these Software
application templates which JHA may issue and provide to its customers
generally who have licensed the Software application templates. Any
maintenance of Software application templates which have been
customized and deployed by Customer as completed applications in its
production environment is outside the scope of standard Maintenance
provided by JHA and will require a separate Professional Services
engagement and fees for JFWs provision of such maintenance. Any such
Professional Services agreed between JHA and Customer shall be
documented in a separate Statement of Work or services order executed
between JHA and Customer which includes the project specifications and
details, scope of maintenance services deliverables, and services fees
applicable to the Professional Services performed.
15.7 Maintenance Fees:
(a) Customer will pay JHA the initial annual Maintenance fee set
forth in Exhibit A or an addendum to this Agreement. After completion of
the first full annual Maintenance term, this annual fee may be increased
by JHA by no more than seven percent (7%) per year. Increases
resulting from events described in paragraph (b) below are excluded
from this limitation. JHA shall give Customer at least sixty (60) days
written notice of any Maintenance fee increase, prior to the end of the
then -current annual Maintenance term.
(b) The annual Maintenance fee will be increased if and when (i)
Customer contracts with JHA for additional Software components; (ii) an
increase in the scope of the License is acquired by Customer; (iii)
Customization of the Software is contracted for by Customer from JHA;
(iv) there is an increase in the net asset size of Customer which would
trigger an increase in the Maintenance fees due for the Software, where
those metrics are used to determine the amount of the Maintenancefees
due from Customer; and/or (v) additional organizations not listed in
Exhibit A or an addendum to this Agreement are permitted to access and
use the Software covered by the Maintenance fee.
15.8 The commencement date of the initial annual Maintenance
term for the Software products shall be:
(a) the date when the Software products have been installed and
are ready for Customer's initial use in its production environment, if
Customer has contracted with JHA to perform the installation of the
Software products; or
(b) the date of JHA's delivery of the Software products to
Customer, if Customer has not contracted with JHA to perform the
installation of the Software products.
The initial annual Maintenance term commences on the commencement
date specified above and expires on the next following June 30. The
annual Maintenance term will automatically renew for successive terms
of twelve (12) months each commencing on each July 1 thereafter,
unless either party gives the following written notice of non -renewal of
the annual Maintenance term to the other party in advance of the
expiration of the then -current term:
(a) Notice by Customer to JHA: 30 days
(b) Notice by JHA to Customer: 180 days
16. BILLING TERMS
16.1 JHA's billing terms are payable net thirty (30) days from
Customer's receipt of JFWs correct and valid invoice. Customer will pay
JHA the lower of (a) 1.5% interest per month (18% annually) or (b) the
highest interest rate chargeable by applicable law, plus all attorney fees
and expenses actually incurred by JHA in collecting any delinquent or
past due fees, payments or reimbursements of any kind which are valid
and rightfully due to be paid by Customer to IHA. JHA reserves the right
to halt the delivery of any Software, equipment, Maintenance or
Professional Services if Customer is delinquent in the payment of any
amounts due JHA, except where such amounts are legitimately in
dispute.
16.2 1 n the event of a phased partial delivery and installation of the
Software as specified in Section 12.2 above, JHA will bill Customer in
project completion increments and Customer will pay JHA the License
and Maintenance fees pertaining to the Software products and
components delivered and installed by JHA for which Customer begins to
use productively in its operations, in advance of the remaining Software
products and components to be delivered and installed by JHA for
Customer.
17. INDEMNIFICATION
17.1 JHA shall defend, indemnify and hold harmless Customer
against and from, any and all damages, losses and expenses (including
reasonable attorneys fees) arising out of, in connection with, resulting
from or based on allegations of, any third party claim that the JHA
Software provided hereunder infringes any patent, copyright, trademark,
trade secret or other intellectual property right recognized as valid and
enforceable in the United States by law, treaty or international
convention. JHA shall not be liable for any such infringement claim
which arises out of: (a) any combination with the JHA Software with any
other non -JHA software; or (b) any modification or customization of the
JHA Software by Customer or any third party; or (c) any corrective JHA
Software which is delivered by JHA to Customer but is not installed or
implemented by Customer; or (d) use of the JHA Software programs not
in compliance with its Documentation. In the event of an infringement
claim based on or resulting from any of the foregoing, Customer shall
indemnify, defend, and hold harmless JHA from and against all claims
and actual losses, damages and expenses (including reasonable
attorneys fees), related to, resulting from, or arising out of any of the
foregoing.
17.2 In the event that Customer is enjoined, or is otherwise
prohibited, from using any JHA Software as a result of or in connection
with any claim described in Section 17.1, JHA promptly shall, at its sole
expense: (a) procure for Customer the right to continue to use the JHA
Software; (b) modify the JHA Software so that it becomes noninfringing,
without substantially diminishing the form, features, functionality or
performance of the JHA Software; or (c) replace the JHA Software with
JHA Software that is noninfringing with materially equivalent form,
features, functionality and performance. I n the event that JHA cannot,
after using its best efforts to do so within a reasonable period of time,
procure, modify or replace the JHA Software involved then JHA shall
terminate Customer's right to use the JHA Software, giving Customer at
least ninety (90) days advance written notice of this termination if
legally permitted to do so. Upon termination, JHA will refund a prorated
amount of the License fees paid by Customer based on a five (5) year
straight-line depreciation schedule commencing from the date of
installation the Software involved, and if applicable the unused amount
of the then -current annual Maintenance fees paid by Customer for the
Software involved.
17.3 With respect to Professional Services performed by JHA at
Customer's location, each party shall defend, indemnify and hold
harmless the other party against and from, any and all damages, losses
and expenses (including reasonable attorneys fees) that the other party
may suffer or incur that arise out of, are connected with or result from
bodily injuries (including death, no matter when death occurs) or
damages to property that are caused by, arise out of, are connected with
or result from the negligence or willful misconduct of its own personnel
during the course of the conduct of Professional Services at Customer's
location.
17.4 If a notice of commencement or threatened commencement of
a claim or cause of action is received by a party entitled to
indemnification under this Section 17, such party (the "Indemnified
Party") shall provide the party that is obligated to provide
indemnification under this section (the "Indemnifying Party") with: (i)
prompt written notice of each claim received; (ii) control over the
defense and settlement of the claim; and (iii) full information and
reasonable assistance to settle or defend the claim. Notwithstanding the
foregoing, the Indemnifying Party shall not settle the claim without the
Indemnified Party's prior written approval if such settlement requires the
Indemnified Party to take any action, refrain from taking any action or
admit any liability. The Indemnified Party shall be entitled to participate
in the defense of any such claim at its own expense.
17.5 THE PROVISIONS OF SECTIONS 17.1 AND 17.2 ABOVE STATE
JHNS ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR
JHA'S INFRINGEMENT OF INTELLECTUALPROPERTY RIGHTS.
18. LIMITATION OF LIABILITY
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18.1 Neither party shall be liable to the other party or to any other
person, firm or company, for failure to fulfill its obligations hereunder
due to the occurrence of an event beyond its reasonable control,
including but not limited to acts of God, public disaster, fire, flood, riot,
war, terrorism, labor strikes/disputes involving its suppliers, judicial
orders/decrees, government laws/regulations, or interruptions of
communications, transportation or electricity.
18.2 Any liability of JHA for any loss, damage, or cost hereunder
shall be limited to actual direct damages incurred by Customer, but in no
event shall the aggregate of liability exceed the total amount of License
fees actually paid by Customer to JHA under this Agreement with regard
to the Software products involved or affected, nor shall any amount of
the liability include any indirect, incidental, consequential, punitive or
special damages incurred by Customer. The foregoing limitation on the
amount of recoverable actual direct damages shall not apply to JHA's
indemnification liability under Section 17 (Indemnification) above or to
any action or omission of action which constitutes the gross negligence
or willful misconduct of JHA.
18.3 Customer shall be solely responsible for any loss or damage
caused to the data of Customer or its customers during the transmission
of the data to and from JHA's location, provided that the loss or damage
to the transported data is not caused by JHA's negligence in packaging
the data for shipment. At its own expense, Customer shall be
responsible for contracting the services of a third party common carrier
of its choice to perform these delivery services for Customer. JHA's sole
responsibility in handling the data shall be to reasonably package the
data for return transmission in accordance with industry standards and
deliver the packaged data to Customer's selected carrier for its delivery
to Customer. If Customer should fail to secure the services of a
common carrier to perform these delivery services, JHA may secure the
services of a reputable common carrier to perform these delivery
services and pay the common carrier for the delivery charges and
shipment insurance fees associated with its delivery services, which shall
be reimbursed by Customer to JHA.
19. TERMINATION
19.1 The term of this Agreement shall commence on the date of
this Agreement shown on the signature page and continue in effect for
the term specified in Section 4.2 above unless terminated earlier as
provided below.
19.2 Either party may terminate this Agreement for cause by
written notice to the other party, upon the occurrence of a breach of this
Agreement which has not been cured by the other party following thirty
(30) days prior written notice of such breach. If the breach is due to
Customer's failure to pay a correct and valid invoice when due without
legitimate dispute, this cure period shall be reduced to ten (10) days
following receipt of notice of the delinquency from JHA.
19.3 JHA may terminate this Agreement for cause in the event that
Customer undergoes voluntary or involuntary bankruptcy,
reorganization, receivership, conservatorship, custodianship, assignment
for benefit of creditors, seizure of assets, liquidation, dissolution,
cessation of business, or action by government authorities which would
divest control from the present ownership of Customer or allow this
Agreement or individual Licenses to be assigned to other parties without
JHA's written consent.
19.4 In the event JHA ceases to do business, the successorto JHA's
assets will be bound by this Agreement the same as JHA, and Customer
may continue to use the Software under all the terms and conditions of
this Agreement. If there is no successor to JHA's assets, then the
Software shall become the non-exclusive proprietary product of
Customer subject to the confidentiality restrictions described in Section 7
(Trade Secrets) above. If JHA has ceased to do business, Customer may
reveal Software and/or materials to third parties for the sole purpose of
maintenance and customization of the Software for the sole use of
Customer, provided that the third parties have agreed to be bound by
similar written confidentiality restrictions with respect to the Software.
19.5 1 n the event of JHA's termination of this Agreement for cause,
Customer shall immediately cease using all copies of the Software in its
possession, uninstall the Software from all locations, and return the
Software copies to JHA or destroy the Software copies and certify this
destruction to JHA in writing by an officer or senior manager of
Customer.
20. SOURCE CODE ESCROW
20.1 For all JHA Software which is delivered to Customer in an
object code format, JHA shall maintain current versions of the source
code of the JHA Software ("Source Code") in a third party source code
escrow arrangement with an independent escrow agent ("Escrow
Agent"). JHA shall enter into and maintain a written escrow agreement
with the Escrow Agent which will provide for the Escrow .Agent to release
to Customer the Source Code for the JHA Software in the event that JHA
ceases to do business, provided that Customer has a then -current active
and paid-up Maintenance contract for the Software affected with JHA.
20.2 With respect to Third Party Software, JHA will provide
reasonable assistance to Customer for establishing Customer's
participation in any source code escrow arrangement offered by third
party Software owners for their third party Software products. All
contractual participation in the third party Software source code escrow
arrangement shall be directly transacted between Customer and the
third party Software owner and its source code escrow agent.
21. AUDIT
Not more often than once each calendar year, JHA or its third party
auditor may at JFWs expense conduct an audit at Customer's site upon
at least thirty (30) days prior written notice to verify that Customer's use
of the Software conforms to the terms of this Agreement. If an audit
uncovers wrongful use or copying of the Software by Customer,
Customer shall pay to JHA the then -current License and Maintenance
fees for the additional license usage. Further, if Customer's wrongful
copying or usage of the Software exceeds 110% of its licensed Software
installation, Customer shall reimburse JHA for its reasonable costs of
conducting the audit.
22. INSURANCE
At its own expense, JHA shall secure and maintain throughout the term
of this Agreement insurance policies provided by insurance carriers with
an A.M. Best Financial Strength Rating of at least "A", covering JHA's
activities under this Agreement and reflecting the following minimum
policy coverages and limits:
(a) Commercial General Liability: $2,000,000 per occurrence
(b) Automobile Liability: $1,000,000 combined single limit
(c) Excess Liability: $10,000,000 per occurrence
(d) Workers Compensation: Statutory limits; no coverage in
monopolistic states—in those states, Employers Liability
coverage applies with a limit of $500,000
(e) Employee Dishonesty: $10,000,000
Upon request, JHA will provide Customer with a current certificate of
liability insurance evidencing these policy coverages and limits and
showing Customer as an additional insured.
23. GENERAL PROVISIONS
23.1 The parties are and shall remain independent contractors and
shall have no legal right or authority to make any binding commitments
on behalf of the other party, Each party shall be solely responsible for
the provision of insurance, workers compensation and other benefits to
its own employees.
23.2 Any notice under this Agreement shall be in writing and shall
be deemed delivered when actually received, or five days after it is sent
by United States Postal Service certified mail, return receipt requested,
or by overnight express mail, with proof of delivery retained, when
addressed to the other party at its above address, which may be
changed by written notice. A copy of any written notice of breach or
termination of this Agreement given by Customer to JHA shall be
delivered to the attention of JHA's Legal Department at the same
address listed above.
23.3 No action arising out of this Agreement may be brought by
Customer or JHA more than two (2) years after the cause of action has
accrued and the injured party has actual knowledge of the accrual. The
prevailing party in any litigation conducted in relation to this Agreement
ProfitStars Master SLA-nonF7--US rev 1009 M 9
shall be entitled to recover its reasonable attorneys fees from the other
party.
23.4 This Agreement supersedes all prior license or use agreements
for the Software, if any, and contains the entire agreement between the
parties with respect to the transactions contained herein. This
Agreement shall be modified or altered only by a written instrument
signed by authorized representatives of both parties. The attached
Exhibits and any addenda executed under this Agreement are part of
this Agreement.
23.5 The headings of each Section in this Agreement are provided
only for convenience and shall not be deemed controlling.
23.6 This Agreement shall be binding upon and inure to the benefit
of the parties and their respective assigns and successors.
23.7 Except as provided below, this Agreement shall not be
transferable or assignable by Customer without the prior written consent
by JHA, which shall not be unreasonably withheld. Customer may assign
its rights and obligations under this Agreement in their entirety to a
successor entity which acquires controlling ownership interest in
Customer, continues to operate the business of Customer, and is
contractually bound to perform all of the obligations and liabilities of
Customer under this Agreement. Customer or the successor entity shall
provide written notice of the assignment to JHA within thirty (30) days
following the effective date of the assignment. ff the assignment
permits the successor entity to exercise an expanded use of the
Software beyond the scope of the Software license acquired by Customer
from JHA under this Agreement, then the successor entity shall pay to
JHA any additional Software license and Maintenance fees due for such
expanded use, as an express pre -condition to the successor entity's use
of the Software in that manner.
23.8 This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without reference to
its conflict of laws provisions, and applicable U.S, federal laws and
regulations. The application of the United Nations Convention on
Contracts in the International Sale of Goods is expressly excluded from
this Agreement.
23.9 Throughout the term of this Agreement and for a period of one
(1)year thereafter, neither party shall proactively and directly solicit or
hire for employment any of the personnel of the other party who have
been directly involved in a Professional Services project conducted under
this Agreement, without the prior written consent of the other party. The
foregoing restriction shall not apply to the employment of the other
party's personnel which occurs solely through general employment
search vehicles (e.g. Monster.com) or employment notices or
solicitations published publicly (e.g. through corporate website postings
or employment advertisements).
23.10 The provisions of Sections 5, 7, 9, 10, 11, 17, 18, 19, 20, 21
and 23 shall survive the expiration or termination of this Agreement.
23.11 If any of the provisions of this Agreement are invalid under
any applicable statute or rule of law, they are, to that extent, deemed
omitted. Such omission does not change the intent or binding nature of
any or all of the rest of this Agreement. A party's failure to enforce any
right or duty under this Agreement against the other party in any
instance shall not be deemed to constitute a waiver of that party's right
to enforce such right or duty against the other party in the future.
23.12 Any purchase orders, order acknowledgements or other form
documents issued by either party to document transactions completed
under this Agreement shall be utilized for administrative purposes only.
No terms and conditions contained in any such form documents shall
supplement or modify the terms and conditions of this Agreement and
exhibits, addenda, Statements of Work or services orders executed
between the parties under this Agreement.
23.13 This Agreement and individual Exhibits, addenda, Statements
of Work and services order documents may be executed by the parties
by applying manual or electronic signatures of its authorized
representatives to original documents or facsimile, scanned or other
electronic copies of original documents and transmitted by physical or
electronic means for this purpose. For legal evidentiary purposes, a
facsimile, scanned or other electronic copy of this Agreement bearing the
signatures of the authorized representatives of both parties shall be
accepted as an equivalent to a signed original copy of the document.
23.14 The provisions of this Section shall apply only in the sole event
that Customer is not headquartered in the United States of America or in
the event that any JHA Software, Maintenance or Professional Services
are delivered to Customer outside of the United States. In that event
the parties agree that all courts of the State of Missouri, USA, shall have
jurisdiction over the subject matter and over the parties, and venue in
any suit, claim, proceeding, dispute or disagreement arising from or
relating in any way to this Agreement. Customer hereby agrees that by
entering into this Agreement it specifically consents to the jurisdiction
and venue of all courts of the State of Missouri, USA, hereby waives
notice and service of process, and further agrees that valid service of
process in any Missouri court proceeding is confirmed seven (7) days
after notice thereof is sent to Customer at its address contained herein
via United States Postal Service Registered Mail. Customer also
specifically agrees that any final judgment entered against Customer
may be registered and enforced against Customer in any other foreign
country or jurisdiction as though such final judgment was rendered by
the courts or other legal process of that country orjurisdiction.
< End of Standard Terms and Conditions >
ProOtStars MaslerSLA-nonFl-US rev 1009M 10
EXHIBIT A
ProfitStars® RemitPlus® Software
Customer: City of Lodi, 221 W. Pine Street, Lodi, CA 95240
1. Products and Services:
1.1 Software License: The following Software components are licensed by JHA to Customer for installation and internal use
in Customer's production environment on Customer's computer system:
prnfitctarcrnl Rarnitplua Snftwnre—Annual License Fee Ootion
1.2 Third Party Services: The following Third Party Services are licensed by JHA to Customer for installation and internal use
in Customer's production environment on Customer's computer system:
rs RemitPlus• Orbo ra h Convene Third Partv Services
Description of Services
Install/One-Time
Fee
Fee per 1,000 Key
Strokes
Software
Orbo ra h Convene Checks N/A $1.80
Orbo ra h Convene Forms N/A $1.80
# of
Base Software
Installation
L
Annual License
Description
Copies
License Fee
Fee
Fee
3HA Software:'
RemitPlus® Software
1 $9,750.00
$1,800.00 $1,462.50
Concurrent
Seat License:
5 concurrent seats
Initial Item
Up to 200,000 Items
Processing
processed per Annual License
Volume Tier
Fee term
License:
MultiUser
2 $2,000.001
$0.00 $300.00
Electronic Deposit
1 2 000.00
0.00 $300.00
ScanForm (up to 190 DPM)
$250.001
$0.00137.50
Third Pa : Software: s
Parascript CheckPlus® Software
CAR LAR — Server Version
1
$1,375.00
N/A
$206.25
Volume Tier Up to 500,000 Counts
'License: rocesseder Ye ar
Due:
$15,375.00
o a et Fees
I $1,800.00
$2,306.25
1.2 Third Party Services: The following Third Party Services are licensed by JHA to Customer for installation and internal use
in Customer's production environment on Customer's computer system:
rs RemitPlus• Orbo ra h Convene Third Partv Services
Description of Services
Install/One-Time
Fee
Fee per 1,000 Key
Strokes
Third, Pa ,:Semites:
Orbo ra h Convene Checks N/A $1.80
Orbo ra h Convene Forms N/A $1.80
1.3 Annual License Fee 00tion:
(a) The Annual License Fee option allows Customer to acquire a License for the Software products listed in this
Schedule on an annually renewable term basis. The Annual License Fee shown above includes Customer's licensed use of the
Software in accordance with the licensing terms described in this Schedule and JHA's provision of standard Maintenance for the
Software during the annual license term. All JHA Software and Third Party Software products shown in the table above are licensed
by JHA to Customer on an Annual License Fee term basis, unless a different license term period is specified above. The initial Annual
License Fee term will commence upon the following date:
(1)
If Customer has contracted for JHA to perform the installation of the Software at Customer's site, then the Annual
License Fee term will commence on the Implementation Date.
(2) If Customer has not contracted for JHA to perform the installation of the Software at Customer's site, then the
Annual License Fee term will commence on the date that JHA's delivers the Software to Customer, or the date
that Customer downloads the Software programs from JFlNs FTP site, whichever is applicable.
(b) After completion of the initial Annual License Fee term, JHA reserves the right to prorate the Annual License Fee
term so that it will commence on each July i thereafter. Approximately sixty (60) days in advance of the expiration of the current
Annual License Fee term, JHA will issue an invoice to Customer for the next following Annual License Fee term, which will be due and
JHA Master SLSA ProfitStars ExhibitA
Profitstars RemitPlus Annual License-US-rev081 1
payable by Customer no later than the first day of the next following Annual License Fee term. If Customer fails or declines to pay
this renewal Annual License Fee term invoice received in a timely manner from JHA, then Customer's license of the Software shall
automatically terminate without any notice or action by either party. In addition, either party may elect not to renew the Annual
License Term applicable to any of the Software by giving the following advance written notice of non -renewal to the other party:
(1) Notice of non -renewal by Customer to JHA: Thirty (30) days in advance of the expiration date of the current
Annual License Fee term.
(2) Notice of non -renewal by JHA to Customer: One hundred eighty (180) days in advance of the expiration date of
the current Annual License Fee term, provided however that JHA shall not exercise this right of non -renewal prior
to the occurrence of at least three (3) full Annual License Fee terms for the Software affected.
(c) After completion of the initial Annual License Fee term, JHA reserves the right to increase the Annual License Fee
applicable to the Software products and licenses covered by this Schedule with respect to any renewal Annual License Fee term by
not more than ten percent (10%) over the then -current Annual License Fee. JHA shall deliver to Customer advance written notice of
any such fee increase not less than ninety (90) days prior to the expiration of the then then -current Annual License Fee term.
1.4 RemitPlus Software License:
(a) Licensino and Pricina Metrics: JHA RemitPlus Software is licensed on the basis of two licensing metrics (the
number of concurrent seats authorized to access and use the RemitPlus Software, and Item processing volume tier) and priced on the
basis of the base Software license fee ("Base License Fee" or 'BLF') shown above and a recurring renewable Annual License Fee
shown above, for the cumulative volume of Items (defined below) which are processed during each Annual License Fee term of this
License.
(1) Base License Tier: The Base License Fee is calculated initially on the basis of the maximum number of
concurrent seats on workstation computers owned or leased by of Customer and its Affiliates that will be
authorized to access and use the RemitPlus Software in their operations, which is determined as of the date of
this License purchase. The license size of this maximum number of concurrent seats is identified in Section 1.1
above. For the purpose of this licensing calculation, a "seat" is defined as a single workstation computer on
which the client version of the RemitPlus Software has been installed. The licensed number of concurrent seats
represents the maximum number of seats that can simultaneously access and use the Remitplus Software.
(2) Item Processino Volume Tier: If during the course of any Annual License Fee term Customer's use of the
RemitPlus Software reaches the maximum limit of the Item processing volume tier license previously acquired by
Customer, Customer will be required to purchase an Item processing volume tier license upgrade for the Remit
Plus Software in order to enable the Remit Plus Software to process a higher volume tier of Items covering the
remainder of the then -current Annual License Fee period and each renewal Annual License Fee term thereafter.
The Remit Plus Software License upgrade fee payable by Customer in this instance will be priced at the then -
current standard JHA Base Software license fee and Annual License Fee applicable to the higher tier volume of
Items to be processed, as selected by Customer, against which will be applied a full credit of the Base Software
License fee and the then -current Annual License Fee already paid by Customer, which amount will be prorated to
cover the remaining period of the then -current Annual License Fee term.
(b The term "Item" used in this licensing metric is defined as a single payment transaction processed by use of the
RemitPlus Software, including one or more checks and one or more accompanying payment documents ("coupons"), such as payment
stubs, deposit tickets and remittance coupons. The Item count is determined in accordance with the following principles:
(1) The primary determinant of the Item count in a single payment transaction is the number of checks being
processed. One check equals one Item count, regardless of the number of coupons processed with the check.
For example, processing one check with six coupons results in an Item count of one; processing six checks with
one coupon results in an Item count of six.
(2) 1 f only coupons and no checks are being processed as part of the payment transaction, then the determinant of
the Item count in the payment transaction is the number of coupons being processed. Forexample, if no checks
and six coupons are processed in a single payment transaction, the Item count equals six.
(c) Customer's failure to pay a Base License Fee upgrade fee or an Item Processing volume tier License upgrade fee
when due will result in automatic termination of Customer's Licenseof the Software.
(d) Proiects: The RemitPlus Software license shown above includes the right for Customer to deploy up to five (5)
Projects using the RemitPlus Software, Deployment of additional Projects by Customer will require the purchase of a separate license
upgrade of the Remitplus Software.
1.5 Parascriot Software License: If Customer has licensed the Parascript Software product(s) identified above as Third Party
Software, the following terms and conditions apply to that License:
(a) The Parascript Software (for which JHA is an authorized reseller) is owned by Parascript, LLC and sublicensed by
JHA to Customer for Customer's use solely in conjunction with the JHA RemitPlus Software. The Parascript Software is licensed on
the basisof the following licensing metrics:
(1) The hardware platform upon which the Parascript Software will be installed and used (e.g. on a desktop scanner
or on a server computer);
JHA Master SLSAProfitStars Exhibit
Profitstars Remitplus Annual License -US -rev 0811
(2) The number of copies of the Parascript Software to be installed by Customer on the designated hardware
platform for use with the RemitPlus Software; and
(3) The number of Counts processed by Customer using the Parascript Software during per each Year, calculated in
accordance with the formula set forth in clauses (b) and (c) below.
(b) The term "Count" used in this licensing metric is defined and tracked by Parascript LLC and means a single
instance in which the Parascript Software is used to read a character, field or document and results in a billable unit. A billable unit
may also be a preset quantity of "Counts" (e.g. a volume tier). Parascript LLC has assigned Count values for individual field types
which may be read on a document of a check or coupon being processed. Parascript LLC's schedule of Count values will be
communicated to Customer on JHA's customer website; by publication in the Documentation that applies to the Parascript Software;
or provided in a written document if requested by Customer. The term "Year" used in this licensing metric is defined as a 12 calendar
month, which period is set by Parascript LLC in its license key for the Parascript Software.
(c) Each copy of the Parascript Software is licensed for Customer's use solely with the RemitPlus Software.
Customer's installation and use of the Parascript Software with any other JHA or non -JHA Software product will require Customer's
purchase of a separate Parascript Software license for such use.
1.6 Orbooraoh Convene Services: If Customer utilizes the Orbograph Convene Services identified in Section 1.2 above, the
following terms and conditions apply to the Orbograph Convene Services:
(a) The Orbograph Convene Services (for which JHA is an authorized reseller) is owned by Orbograph Ltd.
("Orbograph") and its licensors and is provided by Orbograph to Customer for Customer's use solely in its internal business operations
and in conjunction with the Customer's licensed RemitPlus Software.
(b) The fees shown for the Orbograph Convene Services are calculated and billed by JHA to Customer on a calendar
monthly basis, based on the number of key strokes actually processed by Customer using the Orbograph Convene Services.
(c) The following supplemental provisions are included in this Agreement or Addendum between JHA and Customer
with regard specifically and solely to the Orbograph Convene Services:
(1) All intellectual property rights to the Orbograph Convene Services are owned exclusively by Orbograph and its
licensors. Customer is granted the non-exclusive right to use the Orbograph Convene Services solely in
conjunction with the licensed RemitPlus Software. Any other intended use of the Orbograph Convene Services
requires the prior written approval of JHA or Orbograph and may be subject to the payment of additional fees for
such additional use of the Orbograph Convene Services.
(2) Orbograph has warranted to JHA and JHA warrants to Customer that the Orbograph Convene Services will
conform in all material respects to the written descriptions and specifications published by Orbograph for the
Orbograph Convene Services. Orbograph does not warrant that the operation of the Orbograph Convene
Services will be error -free or will meet Customer's requirements. JHA's and Orbograph's sole responsibility and
Customer's sole remedy under this warranty will be for Orbograph to repair or replace any Orbograph Convene
Services which do not conform to the foregoing warranty and are confirmed by Orbograph to be defective. If
Orbograph does not repair or replace the defective Orbograph Convene Services, Customer may terminate its use
of the Orbograph Convene Services. JHA does not make or extend any other separate warranties, guarantees,
indemnities or liabilities to Customer with respect to the Orbograph Convene Services. EXCEPT FOR THIS
EXPRESS LIMITED WARRANTY, NEITHER JHA NOR OREOGRAPH MAKES ANY WARRANTY, EXPRESS OR IMPLIED,
WITH RESPECT TO ANY ORBOGRAPH CONVENE SERVICES, AND JHA AND ORBOGRAPH EXPRESSLY DISCLAIM
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY STATUTE, CUSTOM OR TRADE USAGE,
14 LEND BUT NOT LIMITED TO WARRAMIES OF MERCHANTABILITY OR FITNESS FOR A PARTICtIAR
PURPOSE.
(3) 1 N NO EVENT SHALL EITHER JHA OR ORBOGRAPH BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING
LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA) OR ANY INDIRECT, SPECIAL,
PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND, EVEN I FJHA OR ORBOGRAPH HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL JHA'S OR ORBOGRAPH'S AGGREGATE LIABIILTY IN
CONNECTION WITH THE OREOGRAPH CONVENE SERVICES FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT,
STATUTE OR OTHERWISE) EXCEED THE AMOUNTS PAID BY CUSTOMER TO JHA FOR THE ORBOGRAPH CONVENE
SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDINGTHE DATE OF SUCH CLAIM.
(q) For the limited purpose of enforcing or protecting its rights to the Orbograph Convene Services directly against
Customer, Orbograph and its licensors shall be an intended third party beneficiary of this Agreement or
Addendum between JHA and Customer. Customer acknowledges that Orbograph and its licensors shall have no
responsibility or liability with regard to JHA's obligations to Customer under this Agreement or Addendum.
1.7 Server -Eased Software Licenses: Unless otherwise specifically indicated in the table above or this Exhibit A all JHA
Software and Third Party Software products listed in the table above are for installation and use of the JHA Software and
Third Party Software products on a server computer owned or controlled by Customer.
2. Software Deliverables: JHA will furnish to Customer one copy of the object code software programs of the JHA and
Third Party Software product(s) listed above which will be installed on Customer's IBM-compatible computer, and one set of the
standard software user documentation for the Software product(s). The installation location of the Software shall be at the address
for Customer first shown above, unless a different address is indicated in this Exhibit.
J HA Master SLSA ProfitStars Exhibit
ProfitStars RemitPlus Annual License -US -rev 0811
Product Group Hours of Operation
Remit Plus Software 8:00 am through 5:00pm, Central US time zone
All times listed are for Monday through Friday, excluding standard US banking holidays published by the US Federal Reserve System.
5.2 Third Party Software Products: In consideration of Customer's payment of the Annual License Fee for Third Party
Software, JHA will provide the following standard Maintenance for the Third Party Software:
(a) The JHA customer support organization will receive and process Error incident reports submitted by Customer with
regard to the operation of the Third Party Software, during the same hours of operation specified above for JHA
Software. JHA will perform a basic level of Error troubleshooting and resolution activities with respect to Errors
determined by JHA to be caused by the Third Party Software and escalate the Error incident to the owner of the Third
Party Software for handling and resolution if the Error requires access to the source code of the Third Party Software
or advanced technical expertise with the Third Party Software programs which is beyond JHAs technical competency
to resolve.
(b) JHA will provide to Customer periodic standard Update releases of the Third Party Software issued by the owner of the
Third Party Software to JHA, which have been tested and certified to interoperate with the RemitPlus Software.
6. Payment Term: Customer shall pay the fees shown above to JHA, together with reimbursement of ]HA's reasonable,
actual out-of-pocket travel expenses incurred by its Professional Services personnel traveling to and from Customer's location to
deliver the Professional Services specified in this Exhibit. These fees shall be due to JHA on the following schedule and paid by
Customerwithin thirty (30) days following receipt of]HA's invoice:
Transaction
Payment Due by Customer
Base Software License Fees and Initial
Annual License Fees
100% on the Implementation Date
Professional Services Fees
100% on the Implementation Date
Supplemental Terms and Conditions: The following terms and conditions apply to the Software listed above:
7.1 Remit Plus Software Products:
(a) The Software programs will be delivered by JHA to Customer in object code format only.
(b) The initial License copy of the Software shall be installed and used by Customer solely in its production
environment. I n addition to this primary production License copy of the Software acquired by Customer,
Customer may acquire from ]HA additional License copies of the same Software product or product component for
Customer's internal use in conjunction with its production environment License copy which the Customer will use
(1)as additional production environment License copies, and/or (2) solely for non -production purposes, such as
development, test or disaster recovery.
(c) The Software requires the use of third party software, such as client and server operating systems, relational
database systems, communications/networking systems, and internet browsers in order to be fully functional. In
JHAMaster SLSAProfitStars Exhibit
Profitstars RemitPlus Annual License -US -rev 0811
addition, the Software requires appropriate computer hardware with an adequate amount of memory as indicated
in JHA's published specifications for the Software. Customer is responsible for obtaining and maintaining such
hardware and third party software for use with the Software. Any purchase of the hardware and licensing of the
third party software through JHA shall be documented in a separate hardware sales agreement executed between
JHA and Customer.
< End afExhibitA >
JHA Master SLSA Profitstars ExhibitA
Profitstars RemitPlus Annual License -US -rev 0811
REMOTE DEPOSIT SERVICES AGREEMENT
This Remote Deposit Services Agreement ("Agreement")is entered into between Farmers & Merchants
Bank of Central California (`Bank") and City of Lodi ("Customer"),. This Agreement is intended to work in
concert with the Customer Agreement & Schedule of Charges Effective May 15,2009 (as amended) and the Letter
from Bank to City of Lodi dated June 1,20 11 but the terms of those agreements are not incorporatedherein. In the
event of conflicts between the terms of this Agreement and the terms of the Customer Agreement & Schedule of
Charges Effective May 15, 2009 (as amended) and the Letter from Bank to City of Lodi dated June 1, 2011, the
terms of this Agreement shall control.
1. Background. Bank offers the Product and Services for the electronic clearing of items, which would
enable Customer to transmit paper items converted to electronic items to Bank for processing and deposit
into the account of Customer. Customer desires to use the Product and Services to clear checks
electronically.
2. Definitions. Capitalized terms defined in this Agreement shall have the meanings indicated in this
Agreement (including in Exhibit A).
3. Services. Bank will provide to Customer the Product and Services described in this Agreement to enable
Customer to transmit Items to Bank to be cleared as Substitute Checks or Image Exchange Items. Bank
and Customer will comply with the terms and provisions of this Agreement with respect to the use of the
Product and the performance of the Services. If Customer is approved by Bank to transmit Items to Bank
to be cleared as ACH entries, a new or separate ACH agreement ("ACH Agreement") will be required to be
executed by Customer and Bank. In that event, unless otherwise provided, all ACH entry transactions will
be governed by the ACH Agreement and all Substitute Check and Image Exchange Item transactions will
be governed by this Agreement.
4. Implementation. Customer will capture digitized images of Items using equipment provided by or
through Bank or other equipment acceptable to Bank, and will ensure that the output files are compatible
with the Product. Customer may also be required to use such Software as Bank may reasonably require in
connection with the transmission of output files to Bank. Any Software deemed necessary by Bank shall
be maintained by Customer, except as the parties may otherwise agree in writing, and must meet technical
specifications acceptable to Bank. Customer shall otherwise transmit its output files as provided in the
Documentation.
5. Customer Responsibilities. In connection with the Product and the Services, Customer shall comply with
the following:
5.1. Customer's General Responsibilities.
5.1.1. Customer shall maintain one or more bank accounts at Bank for the receipt of deposits of
Items.
5.1.2. Customer shall be responsible for training its own employees in the use of the Product
and Services.
5.1.3. Customer only will submit Items for processing to Bank that meet the definition of
"Item" in Exhibit A and will ensure that the Items scanned meet the ANSI X9.37 standards for image quality
required by Regulation CC, or other standards established by Bank or applicable law. Bank's processing of any
Items that do not meet the definition on Exhibit A ("on -qualifying Items") shall not constitute a waiver by Bank or
obligate it to process such Non -qualifying Items in the future. Bank may discontinue processing of Non -qualifying
Items at any time, without cause or prior notice.
5.1.4. Bank reserves the right, upon written notice from Bank to Customer, to prohibit
Customer from attempting to scan and transmit to Bank any Item which is drawn on a deposit account of Customer
at Bank or any other financial institution, or a deposit account of any business entity of which Customer is a
principal, officer or authorized signer. Customer agrees to comply with any such written notification from Bank.
Page 1 Revised 11/2011
5.1.5. Customer will not attempt to scan and transmit to Bank any previously truncated and
reconverted Substitute Check. Any previously truncated and reconverted Substituted Check must be physically
deposited with the Bank.
5.1.6. Customer will (i) ensure that Items are restrictively endorsed or otherwise processed to
permit only financial institutions to acquire rights of a holder in due course in the collection process of Items,
(ii) handle, process, maintain and destroy Original Checks and Electronic Items as set forth in the Documentation,
and (iii) ensure that no financial institution (depositary, collecting or payor), drawee, drawer or endorser receives
presentment or return of, or otherwise is charged for an Item or its corresponding Electronic Item more than once.
5.1.7. Customer will use the Product and Services, including the entering, processing and
transmittal of Items, in accordance with the Documentation.
5.1.8. Customer will retain each Item in accordance with the Documentation. If not directed
otherwise and except as provided in paragraph 5.1.6, Customers will store Items in a safe and secure environment
for such for a minimum of 15 days and not to exceed 90 days after such Item has been digitized and processed.
Customer will promptly (but in any event within 5 business days) provide any retained Item (or, if the Item is no
longer in existence, a sufficient copy of the front and back of the Item) to Bank as requested to aid in the clearing
and collection process to resolve claims by third parties with respect to any Check or as Bank otherwise deems
necessary. Customer will use a commercially reasonable method to destroy Items after Customer's retention period
has expired. Bank reserves the right to approve or reject any method used by Customer for the destruction of Items
and otherwise reserves the right to determine the method of destruction to be used by Customer.
5.1.9. Customer understands and agrees that an Item or its corresponding Electronic Item that is
not paid by a Payor Financial Institution, or is otherwise returned for any reason, will be returned to Customer and
Customer's account charged for the amount of the Item or corresponding Electronic Item plus any associated fee as
disclosed in Bank's schedule of fees. Bank's right to charge the account of Customer will apply without regard to
whether the Item or corresponding Electronic Item is timely returned to Bank or whether there is any other claim or
defense that the Item or Electronic Item has been improperly returned to Bank.
5.1.10. Customer shall maintain fully qualified, properly trained and experienced administrative
staff and employees sufficient to perform its obligations under this Agreement.
5.2. Remote Capture Service.
5.2.1. Customer's Account will receive credit through the deposit of Items that Customer
provides to Bank.
5.2.2. Customer will create images of Items at Customer's location by use of scanning hardware
and Software approved or provided by Bank. Customer will enter all amounts and any other required information
correctly.
5.2.3. The electronic images of Items will be transmitted by Customer to Bank, or Bank's
authorized processor, over the intemet through a web -based interface. It is Customer's obligation to ensure that
Customer has a valid Internet connection to use the Service and is using the latest version of Internet Explorer or
other Internet browser accepted or required by Bank.
5.2.4. Bank will maintain the appropriate Account for Customer to receive credit and provide
other specific information required by Bank related to the Service. All deposits are accepted subject to Bank's
verification and final inspection and may be rejected by Bank in Bank's sole discretion. All deposits are subject to
the terms of the Deposit Account Agreement.
6. Compliance with Law. Customer shall comply with all laws, rules, and regulations applicable to
Customer, to the business and operation of Customer, and to the Products and Services, including, without
limitation, Regulation CC, the Uniform Commercial Code and any rules established by an image exchange
network through which Image Exchange Items are processed pursuant to this Agreement. Customer shall
have the responsibility to fulfill any compliance requirement or obligation that Bank and/or Customer may
have with respect to the Service under all applicable U.S. federal and state laws, regulations, rulings,
Page 2 Revised 11/2011
including sanction laws administered by the Office of Foreign Assets Control, and other requirements
relating to anti -money laundering, including but not limited to, the federal Bank Secrecy Act, the USA
PATRIOT Act and any regulations of the U.S. Treasury Department to implement such Acts, as amended
from time to time.
7. Communications Security Software.
7.1. Customer agrees to use the communications security Software as Bank may
reasonably require in connection with the transmission of output files to Bank. Bank may, from
time to time, require and change the Software required for this purpose, provided such change
does not result in any additional license or maintenance fees payable by Customer, upon 30 days
advance notice to Customer.
7.2. Initially, Bank will provide to Customer a capture device for Customer to scan
Items for conversion to digitized images and may also provide to Customer, at any time after
execution of this Agreement, Software to be used in connection with the Services.
7.2.1. Customer will implement and use the capture device and any required Software, as set
forth in the Documentation and any applicable materials relating to the Documentation to transmit output files to
Bank.
7.2.2. Customer acknowledges that (i) its license to any Software required for the Service is
directly from the Software provider, pursuant to the license agreement that appears when any such Software is
electronically accessed by Customer, (ii) Bank may provide certain "first level" support to Customer with respect to
the Software, but that Bank will have no responsibility, for maintenance, support, infringement protection, or
otherwise, to Customer with respect to the Software, and (iii) Customer will look strictly to the Software provider, or
its successors, with respect to any issues concerning the Software that cannot be satisfactorilyresolved with Bank's
assistance.
7.2.3. Customer will use any required Software solely for the purpose of transmitting output
files to Bank consistent with this Agreement and not for communications with any other party. Customer will not
allow access to the Software or the use of the Productby any person other than Customer, and will not process Items
except Items arising from a transaction or obligation between Customer and its direct payor. Customer will not
process any third -party Items. Customer represents, agrees and warrants to Bank that (except as otherwise
specifically disclosed in writing to Bank) Customer is not now engaged, and will not during the term of this
Agreement engage, in any business that would result in Customer being or becoming a "money service business" as
defined in the Federal Bank Secrecy Act and its implementing regulations.
7.2.4. As set forth in Paragraph 13.2 below, Customer will promptly return the capture device,
all copies of any required Software, and the Documentation, including materials related to the Documentation, to
Bank upon termination of the Agreement.
8. Bank Rights and Responsibilities.
8.1. For all Items processed by Customer pursuant to this Agreement, either
(i) digitized images will be converted to Substitute Checks and presented for payment to
established Endpoints, or (ii) Image Exchange Items will be presented for payment through image
exchange networks. Bank may in its sole discretion determine the manner ofprocessing. All such
processing and presentment shall be done in accordance with timeframes and deadlines set forth in
the Documentation and as otherwise establishedby the Bank from time to time.
8.2. Unless otherwise agreed by Customer and Bank, Bank will process any returned
Items in accordance with applicable law and the Customer Agreement & Schedule of Charges
Effective May 15, 2009 (as amended) and the Letter from Bank to City of Lodi dated June 1,
2011.
Page 3 Revised 11/2011
8.3. Subject to Paragraph 8.5 below, availability of credit from Items processed
under this Agreement will be subject to the availability schedule of Bank, which may be amended
without notice.
8.4. Bank may at its sole option, at any time and from time to time, refuse to process
Items or any corresponding Electronic Item. However, Bank will manually review refused items
for approval unless review shows the items cannot be approved. Bank may from time to time
establish prospective exposure limitations and assign them to Customer upon immediate
notification to Customer.
8.5. In addition to any other rights Bank may have as regards the accounts of
Customer, Bank may hold and use funds in any account following termination of this Agreement
for such time as Bank reasonably determines that any Item or Electronic Item processed by Bank
prior to termination may be returned, charged back or otherwise a cause for any loss, liability,
cost, exposure or other action for which Bank may be responsible. Without limitation, Customer
recognizes that under the Rules, the UCC, Regulation CC and the rules of any image exchange
network Bank's representations and warranties as regards Electronic Items and Substitute Checks
may expose Bank to claims for several years following processing of the Electronic Items or
Substitute Check.
8.6. Bank shall be excused from failing to act or delay in acting if such failure or
delay is caused by legal constraint, interruption of transmission, or communication facilities,
equipment failure, war, emergency conditions or other circumstances beyond Bank's control. In
the event of any of the foregoing failure or delays, Customer acknowledges that it may instead
deposit directly with Bank any Original Items for processing and presentment, provided such
Original Items have not been previously imaged and processed in connection with the Product and
Services. In addition, Bank shall be excused from failing to transmit or delay in transmitting an
Entry if such transmittal would result in Bank's having exceeded any limitation upon its intraday
net funds position established pursuant to Federal Reserve guidelines or if Bank's otherwise
violating any provision of any risk control program of the Federal Reserve or any rule or
regulation of any other U.S. governmental regulatory authority.
8.7. Customer shall have a normal security reserve of $50.000.00 for purposes of the
offset rights set forth in this paragraph (`Normal Security Reserve"). If Customer's accounts fall
below the Normal Security Reserve, Customer shall immediately fund the reserve amount with
good funds. Bank may withhold and use any amounts due to Customer to maintain the Normal
Security Reserve amounts. To secure all obligations of Customer to Bank arising from this
Agreement, Customer grants to Bank a security interest in all accounts of Customer at Bank, all
funds in those accounts, any reserve accounts or funds therein, all Items and Entries (including any
funds in process of settlement), whether now or hereafter established by or for the benefit of
Customer at Bank, and all proceeds of the foregoing. Bank's security interest will survive after
termination of this Agreement. This security interest shall be limited to the value of the Normal
Security Reserve and is supplemental to and not in lieu of the security interest granted by
Customer to Bank under any other agreement. In the event a single item is processed in excess of
the Normal Security Reserve, Bank's security interest shall be temporarily increased to the full
amount of that single item until 60 days after that single item has cleared, at which time the
security interest shall revert to the Normal SecurityReserve amount.
8.8 Bank has the right, upon reasonable notice, to audit, review and require specific
controls in connection with Customer's policies, practices, procedures, and compliance with this
Agreement for the Product and Service , including but not limited to, on-site inspection of any
Customer facility, such as an office or data center, as it deems necessary or desirable, arising out
of Customer's use of the Product and Services, Customer's management, operational controls,
processes, risk management practices, staffing, training, support and information technology,
infrastructure and other specific risks and practices of Customer, such as Services Customer may
provide to third parties ("users"). Customer will also promptly provide additional information, as
reasonably requested by Bank, relevant to the Product and the Service, including information
aboutusers.
Page Revised 11/2011
As provided in Section 16, BANK MAKES NO WARRANTY OR REPRESENTATION, WHETHER EXPRESS
OR IMPLIED, WITH RESPECT TO THE SERVICES, PRODUCT, REVIEWS OR REQUIREMENTS UNDER
THIS SECTIONS."
9. Processing Times.
9.1. The Service is available for use only on business days during the times set forth
in the Documentation, except during maintenance periods, or such other hours as established by
Bank from time to time. Transmissionsprocessed after these hours on a business day, or on any
day that is not a business day, are treated as occurring on the next business day.
9.2. Items will be processed and ready for presentment by Bank after Bank receives
all good digitized images and associated data for any given transmission from Customer. Bank
will use commercially reasonable efforts to present Items or corresponding Electronic Item to the
applicable Endpoint within a reasonableperiod of time following such receipt.
9.3. If the digitized images are not complete, are not useable, are illegible or do not
adhere to Bank's data specifications, the images may not be processed by Bank, and Customer's
deposit will be adjusted and notification will be promptly provided to Customer. Customer may
then submit the original voided Item for processing or contact the maker to reissue the Item. Bank
may change the method of notification as described in this Agreement, including use of Internet
sites to be checked by Customer.
9.4. It is Customer's responsibility to understand and build into its transmission
schedules the appropriate deadlines necessary to meet the availability schedules of Bank.
Customer is further responsible for understanding and building into its transmission schedule the
changes in transmission windows required by time changes associated with Daylight Savings
Time.
10. Security Procedures. Customer will be solely responsible for establishing, maintaining and following
such security protocols as it deems necessary to ensure that output files transmitted directly to Bank are
intact, secure and confidential until received by Bank. In addition to the Customer's security protocols,
Customer agrees to implement security procedures that Bank may offer to verify the authenticity of any
output files transmitted to Bank in the name of Customer. If Bank verifies the authenticity of an output file
using security procedures chosen by Customer, then Customer agrees that Bank may rely on and Customer
will be obligated on the output file, whether or not the output file was authorized by Customer. Also, if an
output file was authorized by Customer, Customer will be obligated on the output file. Customer agrees
that the securityprocedures are intended to verify authenticity and not to detect error.
11. Customer Representations and Warranties. Customer makes the following representations and
warranties with respect to each Item processed by Customer pursuant to this Agreement (and, if applicable,
any corresponding Electronic Item):
11.1. The Electronic Item is a digitized image of the front and back of the Item and
accurately represents all of the information on the front and back of the Item as of the time
Customer converted the Item to an Electronic Item;
11.2. The Electronic Item contains all endorsements applied by parties that previously
handled the Item in any form for forward collection or return; and
11.3. All encoding, transfer, presentment and other warranties made under applicable
law as Bank is deemed to make under applicable law, including without limitation those under the
UCC, Regulation CC and the rules of any image exchange network.
Page 5 Revised 11/2011
11.4. There will be no duplicate presentment of an Item as a digitized image, as a
paper negotiable instrument or otherwise and Customer assumes responsibility for any such
duplicate presentment of any Item.
12. Fees. Customer will pay to Bank the initial setup and on-going service fees listed in Exhibit B attached.
Fees may, at Bank's option, be billed and paid through Bank's account analysis system.
13. Term and Termination.
13.1. The term of this Agreement will commence upon full execution of this
Agreement and will continue thereafter for five (5) years, or until terminated as follows,
whichever is earlier:
13.1.1. Customer may terminate this Agreement at anytime, with or without cause, upon 30 days
prior written notice to Bank, (Customer's termination notice period shall be shortened to 25 days if the termination
is made in response to a Bank initiated unilateral change in the terms of this agreement or additions to the terms of
service made); and
13.1.2. Bank may terminate this Agreement on 5 days written notice to Customer in the case of
cause, e. g., fraud or duplicate presentment, and on 30 days prior written notice to Customer for any other reason.
13.2. Any termination will not affect any obligations arising prior to termination, such
as the obligation to process any Items or corresponding Electronic Items, that were processed or in
the process of being transmitted or collected prior to the termination date, or any returns of the
same. Upon termination, Bank may terminate Customer's access to the Product and Services, and
Customer will terminate its access to and use of the Product and Services, except to the extent
necessary to process and collect Electronic Items that were in process prior to the termination date.
Within 30 days after termination of this Agreement, Customer will, at its expense, return to Bank
all hardware and equipment provided by Bank for the Service, including scanner, the
Documentation and any materials relating to the Documentation in its possession or under its
control, destroy all copies of the Documentation and materials relating to the Documentation that
cannot be returned, and certify in writing to Bank that all copies have been returned or destroyed.
Customer will be responsible and liable to Bank for all lost, stolen or damaged equipment that was
provided by Bank to Customer in connection with the Service. Customer agrees not to develop a
product or service substantially similar to the Product and Services within 3 years after
termination of this Agreement.
13.3. All Sections of this Agreement which are intended by their terms to survive
termination of this Agreement, including without limitation Sections 7 through 12, will survive
any such termination.
14. Customer Indemnification. Customer will indemnify and hold harmless Bank, its licensors and providers
of the Product and Services, and their respective directors, officers, shareholders, employees and agents,
against any and all third party suits, proceedings, claims, demands, causes of action, damages, expenses
(including reasonable attorneys' fees and other legal expenses), liabilities and other losses that result from
or arise out of: (i) the wrongful acts or omissions of Customer, or any person acting on Customer's behalf
(including without limitation Customer's Authorized Processor, if any), in connection with Customer's use
of the Product or Services or processing of Items under this Agreement, including without limitation (a) the
breach by Customer of any provision, representation or warranty of this Agreement, (b) the negligence or
willful misconduct (whether by act or omission) of Customer or its Customers or any third party on behalf
of Customer, (c) any misuse of the Product or Services by Customer, or any third party within the control
or on behalf of Customer, (d) the failure by Customer to comply with applicable state and federal laws and
regulations, or (e) any fine, penalty or sanction imposed on Bank by, any clearing house, or any
governmental entity, arising out of or connected with any Item (or any corresponding Electronic Item)
processed by Bank for Customer or at Customer's instruction (except for a fine, penalty, or cost imposed
that was caused by the Bank); (ii) any act or omission of Bank that is in accordance with this Agreement or
instructions fmm Customer (except for a fine, penalty, or cost imposed on the Bank for a Bank action that
the Bank knew or should have known would draw a fine, penalty, or cost); (iii) actions by city or its agents,
Page 6 Revised 11/2011
such as the introduction of a virus that delay, alter or corrupt the transmission of an Electronic Item to
Bank, (iv) any loss or corruption of data in transit from Customer or its Authorized Processor to Bank,
(v) any claim by any recipient of a Substitute Check corresponding to an Item processed by Customer (or
its Authorized Processor, if any) under this Agreement, that such recipient incurred loss due to the receipt
of the Substitute Check instead of the Original Check; or (vi) any claims, loss or damage resulting from
Customer's breach of, or failure to perform in accordance with, the terms of this Agreement.
15. Bank Indemnification. To the extent Bank's liabilities are insured or bonded as provided in paragraph
15.1 of this Agreement, Bank will indemnify and hold harmless Customer, and its elected and appointed
directors, officers, employees and agents, against any and all third party suits, proceedings, claims,
demands, causes of action, damages, expenses (including reasonable attorneys' fees and other legal
expenses), liabilities and other losses that result from or arise out of: (i) the wrongful acts or omissions of
Bank, or any person acting on Bank's behalf, in connection with Bank's provision of the Product or
Services or processing of Items under this Agreement, including without limitation (a) the breach by Bank
of any provision, representation or warranty of this Agreement, (b) the negligence or willful misconduct
(whether by act or omission) of Bank or any third party on behalf of Bank, (c) any misuse of the Product or
Services by Bank, or any third party within the control or on behalf of Bank, (d) the failure by Bank to
comply with applicable state and federal laws and regulations, or (e) any act or omission of Customer that
is in accordance with instructions from Bank, (f) any loss or corruption of data while under Bank or its
agent's control; or (g) any claims, loss or damage resulting from Bank's breach of, or failure to perform in
accordance with, the terms of this Agreement. For liabilities that are required to be insured or bonded by
paragraph 15.1 of this agreement, and are in fact so insured or bonded„ Bank's Indemnity obligations shall
be limited to the value of the required Insurance or Bonding.
15.1. Insurance: At a minimum, Bank shall at all times during the life of this
agreement, maintain the insurance and bonding requirements attached as Exhibit C.
16. Disclaimer. BANK'S REPRESENTATIONS, WARRANTIES, OBLIGATIONS AND LIABILITIES,
AND CUSTOMER'S RIGHTS AND REMEDIES, SET FORTH IN THIS AGREEMENT ARE
EXCLUSIVE. BANK AND ITS LICENSORS HEREBY DISCLAIM, AND CUSTOMER HEREBY
WAIVES AND RELEASES BANK, ITS LICENSORS AND THEIR RESPECTIVE OWNERS,
OFFICERS AND EMPLOYEES FROM ALL OTHER REPRESENTATIONS, WARRANTIES OF ANY
NATURE, OBLIGATIONS AND LIABILITIES, WHETHER EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY AND ALL DOCUMENTS, SERVICES,
INFORMATION, ASSISTANCE, SOFTWARE PRODUCTS, OR OTHER MATTERS PROVIDED
UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION (i) ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A SPECIFIC USE, PURPOSE OR
APPLICATION, OR OTHER IMPLIED CONTRACTUAL WARRANTY; (ii) ANY IMPLIED
WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE
OF TRADE; (iii) ANY WARRANTIES OF TIMELINESS OR NON -INFRINGEMENT; AND (iv) ANY
OTHER WARRANTY WITH RESPECT TO QUALITY, ACCURACY OR FREEDOM FROM ERROR.
NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, NEITHER BANK NOR ITS
LICENSORS WARRANT THAT OPERATION OF THE PRODUCT WILL BE ERROR -FREE OR
THAT ITS OPERATION WILL BE UNINTERRUPTED.
17. Bank's Liability.
17.1. Bank will not be liable to Customer for any of the following: (i) any damages,
costs or other consequences caused by or related to Bank's actions that are based on information or
instructions that Customer provides to Bank, (ii) any unauthorized actions initiated or caused by
Customer or its employees or agents; (iii) the failure of third persons or vendors to perform
satisfactorily, other than persons to whom Bank has delegated the performance of specific
obligations provided in this Agreement; (iv) any refusal of a Payor Financial Institution to pay an
Electronic Item or Substitute Check for any reason (other than the breach of contract, negligence
or willful misconduct of Bank), including without limitation, that the Item, Electronic Item or
Substitute Check was allegedly unauthorized, was a counterfeit, had been altered, or had a forged
signature; (v) any other party's lack of access to the Internet or inability to transmit or receive data;
Page 7 Revised 11/2011
(vi) failures or errors on the part of Internet service providers, telecommunications providers or
any third party's own internal systems, or (vii) any of the matters described in Section 11 above.
17.2. Except as otherwise specifically provided in this Agreement, in no event will
either party be liable to the other for any consequential, indirect, incidental, special, exemplary or
punitive damages, including without limitation any loss of use or loss of business, revenue, profits,
opportunity or good will, under any theory of tort, contract, indemnity, warranty, strict liability or
negligence, even if such party has been advised or should have known of the possibility of such
damages.
17.3. Customer and Bank acknowledge and agree that the limitations of liability in
this Section are a bargained for allocation of risk and liability, and agree to respect such allocation
of risk and liability. Each party agrees and acknowledges that the other party would not enter into
this Agreement without the limitations of liability set forth in this Section.
18. MISCELLANEOUS.
18.1. Assignment. Neither party may assign its rights or obligations under this
Agreement without the written consent of the other party; provided, however, Bank may assign or
transfer this Agreement, by operation of law or otherwise, to any person that becomes the
successor entity of Bank, in connection with a change of control (which shall include a direct or
indirect transfer of all or substantially all of Bank's stock or assets to a third party, a merger,
reorganization or other such transaction, or any such transaction by a parent corporation of Bank)
and Customer hereby consents to such assignment or transfer in advance. The legal successor(s)
resulting from such aforementioned assignment or transfer will succeed to and be bound by this
Agreement. Bank may subcontract any of the work, services, or other performance required of
Bank under this contract without the consent of Customer. In the event of a change in service
provider pursuant to this paragraph, City may immediately terminate agreement.
18.2. Consent to Breach Not Waived. Neither party will, by the lapse of time, and
without giving written notice, be deemed to have waived any of its rights under this Agreement.
No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent
breach of this Agreement.
18.3. Notices. Notices must be in writing, must be delivered according to clause (a),
(b) or (c) below, and must be delivered to the address set forth on the signature page of this
Agreement, or to such other address as a party may designate by notice in accordance with this
provision. All notices under this Agreement will be deemed given on the date of (a) sending by
regular U.S. mail, (b) delivery by a nationally recognized overnight courier, or (b) delivery by
certified mail, return receipt requested.
18.4. Force Majeure. Neither party will be liable to the other for any delay or
interruption in performance as to any obligation in this Agreement resulting from governmental
emergency orders, judicial or governmental action, emergency regulations, sabotage, riots,
terrorist action, vandalism, labor strikes or disputes, acts of God, fires, electrical failure, major
computer hardware or software failures, equipment delivery delays, acts of third parties, or delays
or interruptions in performance beyond its reasonable control.
18.5. Entire Agreement: Amendment. Bank and Customer may amend this
Agreement only by written amendment signed by both parties. This Agreement will not be more
strongly construed against either party, regardless of who is more responsible for its preparation.
18.6. Severability. If any part of this Agreement is found to be illegal or
unenforceable, then that part will be curtailed only to the extent necessary to make it, and the
remainder of the Agreement, legal and enforceable.
Page 8 Revised 11/2011
18.7. Applicable Law. This Agreement will be governed by federal law, and to the
extent not preempted, by internal laws of the State of California (without regard to that state's
principles of conflicts of law).
18.8. Independent Contractor. Nothing in this Agreement creates a joint venture,
partnership, principal agent or mutual agency relationship between the parties. No party has any
right or power under this Agreement to create any obligation, expressed or implied, on behalf of
the other party.
[signature page on following page]
Page 9 Revised 11/2011
18.9. Headings. The titles or captions used in this Agreement are for convenience
only and will not be used to construe or interpret any provisionhereof.
EXECUTED as of the last date indicated below.
FARMERS & MERCHANTS BANK OF CENTRAL
CALIFORNIA
CUSTOMER
Title:
Title:
Date:
Date:
Address:
Phone:
Fax:
V*1=44011N
Page 10 Revised 11/2011
EXIIIBIT A
DEFINITIONS
"ACH" means Automated Clearing House.
"BusinessDays" has the same meaning as "business day" under Regulation CC and means a calendar day other than
a Saturday or a Sunday, January 1, the third Monday in January, the third Monday in February, the last Monday in
May, July 4, the first Monday in September, the second Monday in October, November 11, the fourth Thursday in
November, or December 25. If January 1, July 4, November 11, or December 25 fall on a Sunday, the next Monday
is not a business day.
"ConfidentialInformationwith respect to either party as recipient" means any information obtained by, or disclosed
or made available to such party (whether in writing, verbally or by observation of objects or processes) from or by
the other party, that is accompanied by a clear indication that the disclosing party considers the information to be
confidential or proprietary, or is of a type that the recipient should reasonably consider it the confidential or
proprietary information of the disclosing party or its licensors. Confidential Information does not include
information that (i) is or becomes generally available to the public other than as a result of a disclosure by the
recipient; (ii) was in the recipient's possession before the time of disclosure, (iii) becomes available to the recipient
on a non-confidentialbasis from another source, provided that the recipient has no actual knowledge that the source
of such information was bound by and in breach of a confidentiality obligation with respect to such information; or
(iv) is independently developed by the recipient without reference to or use of the disclosing party's other
Confidential Information. The Documentation and any materials relating to the Documentation will be deemed the
Confidential Information of Bank for purposes of this Agreement. Any nonpublic personal information regarding
Customer's Customers shall be deemed the Confidential Information of Customer for purposes of this Agreement.
"Documentation" means all documentation, the user manual, any other manuals, all instructions (including on-line
instructions) relating to the Product and Services which Bank may provide to Customer from time -to -time in
connection with the Product or Services.
"Electronic Item" means a digitized image of an Item and any Image Exchange Item or other electronic data arising
from an Item.
"Endpoint" means any Federal Reserve Bank, financial institution, local clearing house, courier or other entity or
location for the delivery of cash letters or other presentment of Electronic Items or Substitute Checks.
"Image Exchange Item" means a digitized image of an Item cleared and settled directly with a Payor Financial
Institution without conversion to a Substitute Check.
"Item" means a draft that is payable on demand, drawn on or payable through or at an office of a United States
Financial Institution, whether negotiable or not, and payable or endorsed to Customer, and includes Original Checks
and Substitute Checks. Such term does not include Noncash Items or Items payable in a medium other than United
States money.
"Noncash Item" means an Item that would otherwise be an Item, except that: (i) a passbook, certificate or other
document is attached; (ii) it is accompanied by special instructions, such as a request for special advice of payment
or dishonor; (iii) it consists of more than a single thickness of paper, except an Item that qualifies for handling by
automated check processing equipment; or (iv) it has not been preprinted or post -encoded in magnetic ink with the
routing number of the Payor Financial Institution.
"Original Check" means the first paper Item issued with respect to a particularpayment transaction.
"Payor Financial Institution" means the United States Financial Institution ordered in an Item to make payment to
the payee(s) named on the Item.
Page 11 Revised 11/2011
"Product" means collectively the procedures, protocols, and software used by Bank and its licensors and contractors
in connection with the electronic processing of Items, and includes without limitation the Services.
" RegulationCC" means 12 C.F.R. Brt 229, as it may be amended from time to time.
"Services" means the services described in this Agreement, to be provided by Bank to Customer to enable the
processing of Items digitally as Image Exchange Items through image exchange networks or through creation of
Substitute Checks and presentment to established Endpoints.
"Software" means any software which may be offered or required by Bank for use in receiving, validating and
packaging images and data from a bulk file to be forwarded to Bank for additional processing.
"Substitute Check" means a paper reproduction of an Item that satisfies the requirements and definition of
"substitute check" set forth in Regulation CC.
"UCC" means the Uniform Commercial Code as enacted and amended in the state whose law governs interpretation
of this Agreement.
"United States Financial Institution" means (i) any person, located in the United States, engaged in the business of
banking; (ii) a Federal Reserve Bank, (iii) a Federal Home Loan Bank; and (iv) to the extent it acts as a payor, the
U.S. Treasury, the U.S. Postal Service, or a State or local government.
Page 12 Revised 11/2011
EXHIBIT B
FEES
REMOTE DEPOSIT CAPTURE
Service Provided
Unit Price
Monthly Maintenance
$50.00
CAR/LAR Item Processing
$0.03
Check 21 Items Processed
WANED
Remote Deposit Corrections
$0.08
Remote Deposit MICR Repair
$0.08
TerminalOntion Eason One Caature 30dpm*
WAIVED
* Bank shall provide six (6) terminals at no cost to the City
Page 13 Revised 11/2011
EXHIBIT C
INSURANCE REQUIREMENTS
Farmers & Merchants Bank
Financial Institution Coverages
May 17,2011
Directors& Officers Liability
Each Policy Year Limit of Liability
Each D&O:
All D&O's:
Company Liability
Corporate Reimbursement:
Broad Form Company Liability Coverage
Each Policy Year Limit of Liability
3rd Party Liability
Depositor Liability (E&O)
Fiduciary Liability Coverage
Each Policy Year Limit of Liability
Insurance Services Liability
Each Policy Year Limit of Liability
Brokerage/Advisory Services Liability
Each Policy Year Limit of Liability
Employment Practices Liability
Each Policy Year Limit of Liability
3rd Party Liability
Combination Safe Depository Policy
Liability& Property Coverage Including Money
Internet Banking Liability
Basic Internet Banking Liability
Social Networking
Correction Expense
Optional Coverage
Business Interruption
Limit
Retentions
$10,000,000
Included $0
Included $0
Broad Form Company Liab
$150,000
Separate
$10,000,000 $150,000 Limit
Included
Included
Separate
$10,000,000 $5,000 Limit
No Coverage
$10,000,000 $150,000 Sublimit
$5,000,000
$100,000 Separate
Included
Sublimit
$5,000,000
$100,000
$1,000,000
$100,000
$25,000
$5,000
$500/hour 24 hr retenfion
Page 14 Revised 11/2011
Page 15 Revised 11/2011
$500,000
Aggregate
Liability Mitigation Expense
$700,000
$50,000
Financial Institution Bond
Fidelitywith EDP (includes Trading Loss)
$10,000,000
$150,000
On Premises
$10,000,000
$150,000
In Transit
$10,000,000
$150,000
Counterfeit Money
$10,000,000
$150,000
Forgery or Alteration (incl Counterfeit Check)
$10,000,000
$150,000
Unauthorized Signature
$10,000,000
$150,000
Electronic/Computer Systems
$10,000,000
$150,000
Securities with Loan Participation
$10,000,000
$150,000
Extortion- Persons& Property
$5,000,000
$25,000
Fraudulent Mortgages
$10,000,000
$150,000
On/Off Premises ATM
$125,000
$5,000
Servicing Contractors
$5,000,000
$100,000
Money Order Issuers
$500,000
$100,000
Check Kiting Fraud
$250,000
$35,000
Stop Payment Legal Liability
$500,000
$5,000
Transit Cash Letter
$500,000
$0
Safe Deposit Box - Liability& Propertyw/Money
$5,000,000
$0
Audit Expense
$25,000
$0
Claims Expense
$10,000
$0
Court Costs and Attorney's Fees
$10,000,000
$150,000
Indemnityfor Directorsand Officers
$2,500
$0
Reward Payment
$2,500
$0
Excess Liability- $5m xs $10m
Excess Liability over D&O, Broad Form Company
Liabilityand Fiduciary Coverages
$5,000,000
Page 15 Revised 11/2011
RESOLUTION NO. 2011-184
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING
THE CITY MANAGER AND TREASURER TO EXECUTE AGREEMENTS
FOR REMIT PLUS SOFTWARE, MERCHANT CARD SERVICES,
AND REMOTE DEPOSIT SERVICES WITH JACK HENRY AND
ASSOCIATES, INC.; ELAVON, INC.; AND FARMERS & MERCHANTS
BANK OF CENTRAL CALIFORNIAAND DIRECTING THE
CITY MANAGERAND TREASURER TO NEGOTIATEA BANKING
SERVICES AGREEMENT WITH FARMERS & MERCHANTS BANK
WHEREAS, City desires to purchase Remit Plus software through Jack Henry
and Associates, Inc. to operate and manage its remittance processing function; and
WHEREAS, City desires to contract with Elavon, Inc. to process debit and credit
card transactions at multiple City facilities; and
WHEREAS, City desires to contract with Farmers & Merchants Bank of Central
Californiafor remote deposit services at multiple City facilities; and
WHEREAS, all vendors have submitted proposals that meet City's needs and
are cost effective; and
WHEREAS, City desires to formalize its banking services with an agreement with
Farmers& Merchants Bank based upon the following basic terms:
• Five-yearterm with option to extend for up to two years,
• Fixed pricing for the term of the agreement,
• Basic banking service to include, but not be limited to, deposit
processing, electronic fund transfers, direct deposit, positive pay
services, account reconciliation, and appropriate collateralization,
• Earnings credit rate of at least 0.75%,
• Clearly defined reserve requirements, exposure limitations, and security
interest levels, and
• Liability commensurate with exposure.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Lodi
does hereby authorize the City Manager and Treasurer to execute agreements for
Remit Plus software, merchant card services, and remote deposit services with Jack
Henry and Associates, Inc.; Elavon, Inc.; and Farmers & Merchants Bank of Central
California; and
BE IT FURTHER RESOLVED that the City Council of the City of Lodi directs the
City Manager and Treasurer to negotiate a banking services contract with Farmers &
Merchants Bank based upon the basic terms noted above.
Dated: November 16, 2011
hereby certify that Resolution No. 2011-184 as passed and adopted by the City
Council cf the City of Lodi in a regular meeting held November 16, 2011, by the
following votes:
AYES: COUNCIL MEMBERS — Hansen, Katzakian, Nakanishi, and
Mayor Johnson
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Mounce
ABSTAIN: COUNCIL MEMBERS — None
I JOHL
City Clerk
2011-184
Banking Services
Lodi City Council
November 16, 2011
Current State
. RFP issued February 2011
. Recommendations to Council May 2011
. Referred back to staff
2
Today's Recommendations
• Optional Services
• Lockbox Alternative
• Jack Henry and Associates
• Merchant Card Services
. Elavon
• Remote Deposit Services
. F&M Bank
. Mandatory Services
• Negotiate Banking Services Contract with F&M
Bank
3
Lockbox Alternative
. Currently process in-house with
antiquated equipment
. Recommended solution
. Remit Plus
• Simple equipment and software
. Continue processing in-house
0
Lockbox Alternative Costs
. Bank of America solution
. $182,661 over 5 years
. Jack Henry solution
. $99,,000 over 5 years
5
Merchant Card Services
. Currently provided by Elavon under a
Tiered and Category pricing strategy
. Recommended solution
. Elavon, under an Interchange Plus pricing
strategy
. Expand usage to departments not currently
directly accepting payments
. Includes back -dating pricing for 12 months
0
Merchant Card Services Costs
. Elavon/Bank of the West solution
.
$22,,032 over 5 years (plus interchange
costs)
. Elavon/F&M Bank solution
. $19,,129 over 5 years (plus interchange
costs)
. Additional $12,,000 refund of past fees
Remote Deposit Capture
. Service not currently used
. Recommended solution
. F&M Bank provided service
. Allows customers to pay certain services at
locations other than Finance
. Increases cash availability for City
. Reduces processing costs and time
Remote Deposit Capture Costs
. Bank of the West solution
. $12,,144 over 5 years
. F&M Bank solution
. $7,,702 over 5 years
. Hardware provided at no cost to City
9
Banking Services Contract
. Currently operate with a variety of
agreements for specific services
through F&M Bank
. No comprehensive agreement for services
. Recommended solution
. Negotiate a comprehensive banking
services agreement with F&M Bank
10
Banking Services Contract
. Basic Business Terms
. 5 year term,, with up to 2 year extension
. Fixed pricing for the term of the agreement
. Basic banking services
. Earnings credit rate of at least 0.75%
. Clearly defined reserve requirements,
exposure limits and security interest levels
. Liability commensurate with exposure
11
Action Requested
. Adopt resolution authorizing City
Manager and Treasurer to execute
agreements for Remit Plus software,
Merchant Card Services and Remote
Deposit Services with Jack Henry and
Associates,, Inc, Elavon, Inc, and F&M
Bank and Direct City Manager and
Treasurer to negotiate a Banking
Services Contract with F&M Bank
12
Questions?