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Agenda 04/27/2010 Item #16D12 Agenda Item No. 16012 April 27, 2010 Page 1 of 9 EXECUTIVE SUMMARY Recommendation to waive formal competition and authorize the Chairman to execute Contract 10-5486 - "Clienttrack Subscription Agreement" in order to administer the Homeless Management Information System (HMIS). OBJECTIVE: For the Board of County Commissioners to waive the formal competitive process in the best interest of the County and approve and authorize the Chairman to sign an agreement with Data Systems International (DSI) for the Clienttrack software being utilized for the Homeless Management Information System (HMIS). CONSIDERATIONS: At the May 27,2003 BCC meeting, the Board gave approval for the County to become the Lead Agency and apply to HUD on behalf of the County's social service agencies for the annual Continuum of Care Homeless Assistance (CoC) grant. On December 15, 2009 (Item 16D3), the Board approved the after the fact submission of a Continuum of Care (Coe) grant application to HUD for three projects requesting $330,761 for homeless funding. On December 23, 2009 HUD notified the County that it had received funding in the amount of $330,761. Jurisdictions which administer Continuum of Care funding are required to maintain a Homeless Database Information System (HMIS) in order to track services and beds provided for our most vulnerable and at-risk population. This grant funded program was administered via a sub-recipient agreement with the Collier County Hunger and Homeless Coalition. On March 12, 2010, the Coalition, via its Board Chair, Lynda Waterhouse and its Executive Director, Debra Mahr, notified Collier County that it was turning over HMIS administration to Collier County Housing and Human Services, as the Lead Agency. In order to facilitate a smooth transition between HMIS administrators, Housing and Human Services is recommending a continuation of the HMIS Clienttrack software currently utilized by over twelve (12) local not for profit agencies. Staff recommends that the Board waive formal competition in accordance with Section IV(B)(4) of the Purchasing Policy and approve Contract 10-5486 with Data Systems International in order to administer the Homeless Management Information System in the best interest of the County. FISCAL IMPACT: The contract amount of $34,650 will be funded exclusively with CoC grant funds from the Department of Housing and Urban Development. No general fund dollars will be used in this project. GROWTH MANAGEMENT IMPACT: Continuation of the Homeless Management Information System will further the goals and objectives of the Housing Element of the Growth Management Plan. Agenda Item No. 16012 April 27,2010 Page 2 of 9 LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office. It is legally sufficient for Board action. - CMG RECOMMENDATION: That the the Board of County Commissioners waive the formal competitive process and approve and authorize the Chairman to sign an agreement with Data Systems International (DSI) for the Clienttrack software being utilized for the Homeless Management Information System (HMIS). Prepared by: Marcy Krumbine, Director, Housing and Human Services Agenda Item No. 16012 April 27. 2010 Page 3 of 9 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16012 Recommendation to waive formal competition and authorize the Chairman to execute Contract 10-5486 Clienttrack Subscription Agreement in order to administer the Homeless Management Information System (HMIS). 4/27/20109:00:00 AM Meeting Date: Prepared By Marcy Krumbine Director - Housing & Human Services Date Public Services Division Human Services 4/15/201012:53:09 PM Approved By Marcy Krumbine Director - Housing & Human Services Date Public Services Division Human Services 4/15/201012:56 PM Approved By Lyn Wood Administrative Services Division Contracts Specialist Date Purchasing & General Services 4/15/20101:24 PM Approved By Colleen Greene Assistant County Attorney Date County Attorney County Attorney 4/15/20103:03 PM Approved By Kathy Carpenter Executive Secretary Date Public Services Public Services Admin. 4/15/20103:34 PM Approved By Marla Ramsey Administrator - Public Services Date Public Services Division Public Services Division 4/15/20104:27 PM Approved By Joanne Markiewicz Manager - Purchasing Acquisition Date Administrative Services Division Purchasing & General Services 4/15/20104:33 PM Approved By Steve Carnell Director - PurchasingfGeneral Services Date Administrative Services Division Purchasing & General Services 4f15/2010 4:42 PM Approved By OMS Coordinator Date County Manager's Office Agenda Item No. 16012 April 27, 2010 Page 4 of 9 Office of Management & Budget 4/16/2010 10:45 AM Approved By Sherry Pryor Office of Management & Budget Management! Budget Analyst, Senior Date Approved By Office of Management & Budget 4/16/201011:39 AM Jeff Klatzkow County Attorney Date Approved By 4/16/20104:37 PM Leo E. Ochs, Jr. County Managers Office County Manager Date County Managers Office 4/17/20103:55 PM Agenda Item No. 16012 April 27. 2010 Page 5 of 9 CLIENTTRACK™ Subscription Agreement Organization Name: Collier County Board of County Commissioners Initial Number of Active User Seats: _75_ Initial Number of Agencies: _8_ THIS AGREEMENT, made this _ day of ,20_ by and between Data Systems International ("DSI"), a Utah corporation, having a principal place of business at 545 East 4500 South, Suite E260, Salt Lake City, Utah 84] 07 and Collier County Board of Count v Commissioners ("CUSTOMER"), with a principal place of business at 330] Tarniarni Trail East. Nap]es. FL 34112; and set forth the terms and conditions of a C]ientTrack™ Software as a Service (SaaS) subscription. Definitions: Active User: A named end-user of a ClientTrack™ system that has current login privileges. An Active User account (scat) cannot be shared or used by more than one individual Active User but may be reassigned from time to time to new Active Users who are replacing former Active Users who have terminated employment or otherwise changed job status or function and no longer use the Service. Inactive User: A named end-user of a ClientTrack™ system that DOES NOT have current login privileges. An Inactive Users may be maintained in the system for historical and data integrity reasons. Term of Agreement: The term of this Agreement shall be in effect from the Effective Date statcd above and run for twelve (12) consecutive months. The Customer may, at its discretion and with the consent of DSI, renew the Agreement under all of the terms and conditions containcd in this Agreement for subscqucnt additional one (1) year periods. The Customer shall give DSI written notice of the Customer's intention to extend the Agreement term not less than thirt)' (30) days prior to the end of the Agreement tern1 then in effect. Grant of SaaS Subscription and Limited LTse Software License: CUSTOJvlER must obtain from DSI a valid SaaS seat subscription sufficient for each Active User authorized to use the ClientTrackTM Service. DSI hereby grants and CUSTOMER hereby accepts, a limited, non- exclusive license for Customer's Active Users to usc the ClientTrack.NetlM software provided CUSTOMER complies with all terms and conditions oflhis agreement; including but not limited to. the Software as a Service (SaaS) Subscription Terms & Conditions a part of this Agreemcnt as Exhibit A. DSI reserves the right to modify the Software as a Service (SaaS) Subscription Terms & Conditions terms and conditions of this A!,'Teement or its policies relating to the Service at any time, effective upon \Hitten notice as provided in this Agreement; any continued use of the Service atter any such changes shall constitute your consent to such changes. This license shall immediately temlinate and be null and void upon termination or upon Customer's violation of this Agreement. I'rice and I'ayment Terms: Customer agrees to make prompt payment to DSI upon receipt of a properly completed invoice. Customer shall bear all applicable federal, state, municipal and other govemment taxes (such as sales, use and similar taxes). and similar charges, however designated or levied. DSI's pricing docs not include charges. Payment will be made upon receipt of a proper invoice and in compliance with Section 2 J 8.70, Fla. Stats.. otherwise known as the "Local Government }'rompt Payment Act." Tax Exemption certificates, if applicable, must be presented prior to invoice if they are to be honored. DSI shall only bill the Customer lor de!iverables and services specifically stated in this agreement or otherwise approved in writing in advance by the Customer. The Customer shall pay DS! SaaS setup and subscription fees as specified in SaaS I'ricing Table. part of this Agreement as Exhibit B. Monthly SaaS Subscription Fees are due and payable in advance on a quarterly basis; SaaS billing shall be deemed supported by documentation of Sa as active user count defined as the greater of a) actual number of active users or b) the minimum number of user specified herein. Additional users may be added by the Customer as desired. Billing for Setup Fees and on a pro-rated basis SaaS Subscription Fees for additional users shall be added to the next quarterly billing based upon the time the user was created Requirement for Minimum Number of .Active Users: During the initial term of this Agreement the minimum number of Active Users subscriptions required under this contract shall be no less than seventy-five (75) users. No Rental/No Commercial Hosting: You may not rent, lease, lend. or provide commercial hosting services with the Software. Software Ownership: The Software is owned by Data Systems International. The Software is licensed to CUSTOMER not sold. All rights not specifically granted in this Agreement. including Federal and International Copyrights. are reserved by Data Systems International. Software Limited Warranty: DSI warrants to CUSTOMER, that the software \\ill operate substantially in accordance with its accompanying documentation for term of this Agreement. This warranty is void iffailure of the software has resulted trom accident, abuse, or misapplication. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE IS PROVIDED "AS IS,": DATA SYSTEMS INTERNATIONAL DISCLAlMS ALL WARRANTIES, WI/ETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY. FrJNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEJ\1ENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS: YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. Limitation of Liability: NOTWITHSTANDING ANYTHING ELSE IN TIllS AGREEMENT OR OTHER WISE. DSI SHALL IN NO EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT tINDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WJIETIlER OR NOT AOVTSm IN ADVANCF- OF THE POSSIBILITY OF SUCH DAMAGES: OR (ii) DAMAGES FOR r.oST PROFITS 01l. LOST DATA; OR (Iii) COST Of PROC'UllI!MENT OF SlJBSTmm GOODS. TECHNOLOGY OR SCRVICr::s. NOD-Payment and SO'PI'llllo": III ..wil;"" to ony olher riglll' granlL'll1O OSI he:rrin. DSll'CIerves Ihe tillhllo wspmd or lenninal.this A~I Ind CUSlnrT1Ct'1 leeess 1.0 tl"O ~ervice irCustomer's I~'.'ounl become< delinquent I f.lls inlo 1.1TeIJ'I). I)elinqtt."t in. u~s tae8BU"" iR BWM~~ 8R1liWhj_ ~8 i'R-" . .r I QfK..... MeAth 11ft. ."y ow.tl;tlMai......I., .'tt.. If lit. InIHi'lfttl"" "~",,ht8d 8) Ilu" ..'hiehe ., is 'e. $ft" rl:lfi all IIJI,."..s.r l.tIlha.i9". YOII wIll ronlinuelo be charlled ror A.live UlCB during an)' period or suspcn,iOll.lrCuslo",.r or DSllnitialcs termination DrinkS A~reem...t. Cu.lomel will be obhl!aled I" PlY lhe bal=ce dlle on C""lnmct', lICeounl. OSI n.tl!I'\'CS lbe riJlllI to impo.;e a l'CConned'OI\. Ie. ill tho eYCI)l )'C'Iu ~ 5USJlCJldcd and thclllllftl:T n:qU~llceesllC \he Sn"'ice. You.~ Ulel aeknow1edce rhat OSI hn I1U Qbli~imIlo retain Cuslomer Olla or Confi,f;uralicn AND C'u$lume. nata lIrId Configunl;"" rnoy be im:lricvably deleted ifCuslorner's accounl is 90 days,,, ""'... delinquent. T .rmiutlo. Either party may 1enn;na'" lhi. Ai'CC'mcnt or redu~ lhe number or :kensC!. err""live nnly upon the expiration of Ihe then CIJr'I'el\t .erm. by "otify:nll"'C: other PII11y in wril;ng all..... .nil1)' PO) bu..MIS "11)II prior 10 I~e da.e oft"" invoice r", lite rollowing term. m lhe evenl thi~ As-menl is lerminaled (olher than by relson "fyouI breoehl. OSI will mnke I,allable 10 CuslOme. 8 ftl. uf"" ('IIstoma D.... wiLhin 30 day. ofl<"ll11inaticln irCuolomer so rcqllC$lS II th. lime ofterminalion. CUSIOIl1Cl'"g;r= ond ackn",,, 1edr.es Ih.1 DSII1a, no obli!!811 on 10 rc~i" the Cl/.SlOmcr n.to, and may delete sueh Customer Ow. more than :10 days Iller 'enmn.li"". An)' breach of)'Our poyrnen' obligations or lIn.ul~nrized usa oftlte Servi~e w,lI be deemed. "",!erial brc:OK:h of thi. ^~mcnl. DS! in i13 ,ole dis<lcti011 may tenniua.c yeur pallSwunl, aeeount or use "rlhe S....."ic. iryou bre.....h nr IIlhe,wi,e r.illo eumllly with tit,. Agreemenl. In any d"pule an..n/.! nul uf OS/'s duties and oblil,':l1ions under this A~n.ent, OSllllld Custumer shall lake ali reasDnRblc Mcp5 \(I rcool.. stdt diSJIules prior 10 the initiation of for",~l DCI;"". Su<:b ,Ier' ~ltall Agenda Item No. 16012 -ApriI27,2010- Page 6 of 9 Inc:ludt:. but are lIOIlimhed 10. clelll' notilieation by eit1ler party 10 Ihe other uran~ pen:-cived faillln. 10 porfnnn IInd...lhi. agreement and a rcasonabk time periOd or nollC$5 lhlll Thin)' 00} da~ for wn:. IlIlhr event 1 mutJ.ll11y acceplable mol\Jlion cannot be .e.chad. either ral'1)l may lenninale Ihis Agnocmonl by providing Thir1~ (30) dlYS wrillcn nonce tn the olbe. at Ihr pan~'5 lasl knOll," addre5~. In llle evcnllhtll any disptlle ,h.lI requi.., wnilTlirion "roltter IcpJ proceedings be1"''''''' thoc panies ",gardin, IhlS Agrcem:nlelCh piny Ig=-' to beat its own e""'. CeDeral This ....Ilrecmenl Ind lhe Pani.. bc:rc to lIF"" and con.<en.thol thi, Agn:cmenl shlU be IlDvcmcd b)' l~ inlemal la_or the Slate ofUUlh. withe'M ll;y;ng .n;,.t 10 principle. of cDnniel (If laws and lhe exclusivc juri"'i.lion and venue uf the ,laic ~"art. silll"ll in Sall Lake COlll1ty. UlaIl or lhe fedcrlll enUft' in Ihe DlslriCI of Utah 10 ".."ot~ an, dl!<J1uletl ill'isinll under Ih i. AgrccmCIII. In acI1 CL"l: this sollli'arc IiCi:llse and .4,gret'm.nl sh.1I be conslrued ~nd cnron:cd Wi~'o-Jl regard ID the United Naliool COll\'enllon OR Ihe InlClTllltiolll1 Sale of Goods. Thill ....S_menl eontains \he L'Omplete agreem.rn bet_eho parlics wilb mpecl to In. subject maIler hereor. and sllJ'Cl"""~S Illl prior or cumempol"l1lenus "l.!rcernenu tlr III1dcrstandings. wh"'lhe'" oral or written, The failure or lIt!a)' "r0511O ex...ci.. all)' of hs righ'" undef tbi$ ....~menl or "pon 1111)' b=" of Ihis A~me1Il shall 001 be dcenuod a wai~e' ofth.... .il:ht> '" ufthe hreich. Nn OS! tlaler. agem 111' employee is 8UlhonllCd 10 make an)' Imcndmellllo tnia ^I:'"menl uniess !meh I"ICndmcnl is ill w,;lil1lllnd .il!J1ed by I duly authori:ood n:plC'lCnllllVe of OSI. If any J1fn":~i"n of Ibis Agreement ,hall be hold by. coun ofct>mpetenl jurisdiction 10 he eo111l"4ry 10 law Ihl' pmvi.ion will be enForced to lite maximum ex lent permissible anti the remain in, provision, ofthi. Agreemcnt will TeIlIAln in fulll(nt:e and efleet. DS!. C1ienIT1'8.Ck.Nelnl and other InKlcmarks.;otllatnc:d in !hi:: Soll,.,arc .aJ"r' rradcmark~ or re~i~tCftd ll"i1tJc:muui::s of Ow S~tC'rn\ rnlernlJttunal In Ihe Uniloo Stal'" andlor oUtrf cnunl1i...,. Affiliate U$Cr may lKll rem<>vc 01' all'" any lrademark. lrade MITlC'. pmduel nathe>. logo. COl'yriJ:ht 01 other pr"f'"Cl.lry nuticc<, legends. symbols or label. in the Soll.an:. ThIS Agrem1l:'llt doc< nol authorize)'Ou to u.e DSI or its hctns<J"" nA""" l11 ony of thetr re5P<<li...... IraJel1\ll,k.. IN WITNESS WliEREOf.lhe.U1IlOlized repre,cotatives Mthe I1lniClO Ita,-. exocuttld .bis I/lrcemtnt on elae uy arod )'1'11 wri_ below: -K ~ E~r:&Vtcdlhis.J..!.f::::d.YOr-4-r~.2ol;L. COllier County Board of County Corrmissioners os!'. S'lYv.Jre: C...lOmcr Signature: Prinl Name: TIlk:: Chilfrinancial om_ Tille: ved as to folm & legal sufficIency Colleen Greene, Assistant County Attorney Fred W. Coy Ie Chairman ATTEST: DWIGHT E. BROCK. Clerk By: Exhibit A Agenda Item No. 16012 April 27, 2010 Page 7 of 9 Software as a Service (SaaS) Subscription Terms & Conditions This Software as a Service Agreement (" Agreement") is made as of the Order Oate of the service, by and between OataSystems International Incorporated, a Utah Corporation, ("OSI"), and the ordering party ("CUSTOMER"). Services OSI \\;11 provide, subject to the terms herein, the CUSTOMER with a non-exclusive license to use of the application server, software set and the support services set forth in this Agreement (collectively, the "Services"), solely for the purpose of access and execution of Customer's subscription to the ClientTrackTM software application ("ClientTrack") delivered as Software as a Service over the Internet. DSI alone (and its licensors, where applicable) own all right, title and interest, including all related Intellectual Property Rights, in and to ClientTrack™ and associated products, technology, the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the ClientTrack™ or the Intellectual Property Rights owned by DS!. CUSTOMER will have access to the Services for tbe purpose of using the Services for its intended purpose and in accordance with the specifications set forth in any documentation relating to the Services provided by OS!. Such use and access will be conti nuous on a 24 hour basis except for interruptions by reason of maintenance or downtime beyond Licensor's reasonable control. All standard features and functions ofClientTraekT" Core-Package \\;11 he available to Customer a, part of the monthly user fees. DSI \\;11 provide up to 2 Gigabytes (GB) of storage space on the application server for CUSTOMER to use for storage of data necessary for use of ClientTrack. If CUSTOMER's use exceeds the base storage space allotted, CUSTOMER will be responsible to pay for additional data storab'C fee at DSI's prevailing rate; incremental fees will be calculated on the average monthly storage overage and invoiced quarterly. Databases smaller than I Gigabyte can be exported through the Application's "Export Whole Database" feature. The exportation of databases larger than I Gigab}te must be perfonned by Licensor's professional staff \\;th Customer bei ng charged for associated time and material. DSI will maintain ClientTrack during the term of this Agreement. In the event ClientTrack has been modified or customized, and DSI personnel performed those modifications, OSI agrees to maintain ClientTrack as modified. The cost of regular application maintenance (break/fix) is included in the Monthly User Fees. Software support beyond regular application maintenance may be billable to CUSTOMER at DSI's prevailing Professional Services rates. DSI reserves the right to moddy any Service fTOm time to time; provided that Customer may terminate a Service without penalty in the 30 days follo\\;ng notice from DSI of the implementation of any change to a Service that has a material adverse affect on the functionality of that Service, ifDSI fails to correct the adverse effect in the 30 days following Customer's written notification to OSI of such effect. DS!, its affiliates or subcontractors may perform some or all ofOSI's duties and/or obligations hereunder. CUSTOMER Responsibilities CUSTOMER must obtain from DSI a valid SaaS scat licensing sufficient for the number of authorized users to use the ClientTrack Software. CUSTOMER will use the ClientTrack only for its internal business operations and will not permit CI ientTrack to be used by or for the benefit of anyone other than CUSTOMER. CUSTOMER will not have the right to re-license or sell rights to access and/or use the Licensed ClientTrack Application or to transfer or assign rights to access or use ClientTrack, except as expressly provided herein. CUSTOMER may not modifY, translate, reverse engineer, decompile or create deri vative works bascd upon ClientTrack. Customer agrees to use ClientTrack in a manner that complies with aJl applicable laws including intellectual property and copyright laws. Licensor expressly reserves all rights not expressly granted to CUSTOMER herein. CUSTOMER shall not (i) license. sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modifY or make derivative works ba'iCd upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Contcnt on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas. features, functions or graphics of the Service, or (c) copy any idea" features, functions or graphics of the Service. CUSTOMER shall not. (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, thrcatcning, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere \\;th or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. CUSTOMER can add users at will; DSI will monitor the CUSTOMER's database to verify number of users. CUSTOMER agrees to pay a onetime user setup fees and ongoing sofhv.rre subscription fees for each user added. Should the CUSTOMER add users above CUSTOMER's initial base subscription level, the new total number of users created within a calendar month replaces and becomes the CUSTOMER's base contractual user subscription and will be billed accordingly for the month added and for the remainder of the contract period. CUSTOMER will not: (i) transmit or share identification or password codes to persons other than authori?.ed users (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users, or (iii) permit access to the ClientTrack Application through a single identification or password code being made available to multiple users on a network. CUSTOMER will he responsible to provide, install, and maintain all workstations equipment and operating system and other software to establ ish and utilize a supported World Wide Web browser; as well CUSTOMER is responsible for establishing and maintaining an Internet connection necessary to access and use the Services. CUSTOMER is responsible for all costs and fees (including, but not limited to telephone service, or other telecommunications service. computers and modems) associated with such providing user workstations and Internet services. DSI recommends a broadband Internet connection typically this is a minimum connection method/speed ofa DSL Internet line. DSI does not recommend using a dial- up modem as an Internet connecti vity method in the use of ClientTrack. SERVICES MA Y BE SUBJECT TO LIMIT A TlONS, DELAYS, AND Ol1lER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICA TIONS. DSI IS NOT RESPONSIBLE FOR ANY OELA YS, DELIVERY FAILURES. OR OTHER DAMAGE RESUL TlNG FROM SUCH PROBLEMS. As part of the registration process for service, each CUSTOMER's user will be given a password. CUSTOMER will be responsible for maintaining the confidentiality of any password used to access the service. CUSTOMER will be fully responsible for any and all activities that occur und~-r CUSTOMER'S account and passwords. Data O\\11ership; Confidentiality; Loss All data created or transmitted by CUSTOMER and stored on DSI servers as part of the Services shall at all times be o\\11ed by CUSTOMER. All data pertaining to CUS1DMER disclosed to DSI in connection with the performance of this Agreement and residing on DSl's application server will be held as confidential by DSI and will not. \\;thout the prior \\Titten consent of CUSTOMER, be disclosed or be used for any purposes other than the performance of this Agreement. DSI \\;11 safeguard the confidentiality of such data using the same standard of care that DSI uses for its 0\\11 confidential materials. This obligation does not apply to data that: (i) is or becomes, through no act or failure to act on the part of DSI. generally kno\\n or available; (ii) is known by OSI at the time of receiving such infonnation as evidenced by its \\Tittcn records; (iii) is hereafter furnished to DSI by a third party, as a matter ofright and without restriction on disclosure; (iv) is independently developed by OSI as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by CUSTOMER. Further notwithstanding the forgoing, disclosure of data will not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body of the United States; (ii) is otherwise required by law, or (iii) is otherwise necessal)' to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. CUSTOMER acknowledges that the ClientTrack and other data on DSI's application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to DSI. CUSTOMER will safeguard the right to access ClientTrack and other applications installed on DSI's application server using the same standard of care that CUSTOMER uses for its own confidential materials. DSI will perform a regular backup of Client Track data on its application servers, using the same standard of care that DS! uses for its own data, but DS! shall in no event be liable to Customer or any third party for loss, destruction or corruption of CUSlDMER Data. CUSTOMER agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with loss of CU STOMER Data and that the fees payable under this Agreement have been calculated on the basis that DS! shall exclude liability as provided in this Section. DSI specifically recommends that CUSTOMER. make use of the ClientTrack Application's "Export Whole Database" feature to ensure that the CUSTOMER maintains a viable copy of CUSTOMER's data to meet CUSTOMER's Disuster Recovery I Business Continuity requirements. Service Levels Except as otherwise provided herein, DS! will use commercially reasonable efforts to make the Services available in accordance with prevailing Software us a Service I Application Service Provider industry standards, taking into account the CUSTOMER's workstations and the speed oftheir Internet connection to access and use the Services. DS! will use commercially reasonable efforts under the circumstances to remedy any interruptions, omissions, mistakes, accidents or errors in the Services (hereinafter "Defects") and substantially restore the Services to conform to specifications included in the current CustomerlDSI contract documents and current ClientTrack documentation. If the Services fail to substantially conform to specifications included in the current Customer contract documents and current ClientTrack documentation over a continuous period of thirty (30) days after written notice to DS! of such nonconformity. CUSTOMER may terminate Services, provided that the Defect is not caused or contributed to, directly or indirectly, by any act or omission of CUSTOMER or its customers, affiliates, agents, represcntatives, or invitees, other than normal use of the Services. Technical Support. CUSTOMER acknowledgcs that, except as expressly provided in this Section, all support for the ClientTrack Software shall be provided as defined by DSI pursuant to current Customer/DSI contract documents and prevailing DSI business practice. DSI shall provide support to CUSTOMER only with respect to access and availability of the ClientTrack Software maintained by DS! pursuant to this Agreement ("DSI Support"). DSI Support shall be available via telephone and email during the hours of 8:00 a.m. to 5:00 p.m., Mountain Time, Monday through Friday, excluding federal holidays. Support after the provided hours, may be provided by DSI at a rate twice DSI's prevailing professional services time and material rates. billed for each hour or fraction thereof. CUSTOMER acknowledges that issues outside the normal scope of DS!' s standard technical support may be billable to the CUSTOMER as professional services at DSI's prevailing professional services time and material rates; however, DSI will not perform nor bill for such services without prior approval in writing by the CUSTOMER. Term and Termination 111is Agreement commences on thc first substantial use of the ClientTrack system by the CUSTOMER shall continue until the CUSTOMER formally terminates this agreemcnt under thc terms hercin or as provided in the current Customer/DSI contract. Agenda Item No. 16012 April 27. 2010 Page 8 of 9 Disclaimer ofWarrdnties, Limitation of Damages EXCEPT AS EXPRESSLY SET FORTH HEREIN OR AS PROVIDED IN THE CURRENT CUSTOMERfDSI CONTRACT, DSI MAKES NO WARRANTIES OF ANY KIND, WHETIlER EXPRESS OR IMPLIED, FOR TIlE SERVICES IT IS PROVIDING. DS I exercises no control over and accepts no responsibility for the content of the information passing through the Serviccs. DS! spccifically denies any responsibility for thc accuracy or quality of information obtained through the Services. Use of any information obtained via the Services is at Customer's own risk. EVEN IF ADVISED OF TIlE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL E!TIIER PARTY OR ANY OF DSrS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST REVENUE, OR LOST DATA). NOR SHALL DSrS SUPPLIERS OR LICENSORS BE LIABLE FOR DIRECT DAMAGES TO TIlE EXTENT PERMmED BY APPLICABLE LAW. Customer agrees and acknowledges that it is in a bettcr position to foresee and evaluate any potential damage or loss it may suffer in connection with the Services and that the fees payable under this Agreement have been calculated on the basis that DSI shall exclude liability as provided in this Section. Force Majeure DSI shall not be decmed to be in default of any provision of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes. changes in law, regulation or government policy, riots. war, fire. epidemics, acts or omissions of vendors or supplicrs, equipment failures. transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond DSl's reasonable control Agenda Item No. 16012 April 27, 2010 Page 9 of 9 Exhibit B Pricing One Time per User Setup Fee One Time per Agency Setup Fee Total Setu Fees Monthly SaaS Subscription Fees These amounts are billed and payable quarterly in advance o o 150.00 150.00 NA NA NA Monthly Rate"'''' $ 38.50 These amounts are billed and payable as invoiced. Hourly Rate -Time and Materials After Hours Rate Rate $ ] 50.00 $ 300.00