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Agenda 03/24/2009 Item #16E 4 /I},genda item ND. L.~;~:A March ='4,J09 Pag:; 1 f 27 EXECUTIVE SUMMARY Recommendation for the Board of County Commissioners to approve and authorize the Chairman to sign the Assumption Agreement from Paymetric, Inc. to Business Applications Associates, Inc. ("BizAps") for XiBuy software license and services. OBJECTIVE: To complete the assignment of the agreement from the original party, Paymetric, Inc., to Business Applications ,1I,ssociates, Inc. ("BizAps"). CONSIDERATIONS: The original contract was dated January 15, 2008, and approved by the BCC as Agenda Item 16.E.3. The Contract was by and between Collier County and Paymetric, Inc. The Purchasing Department utilizes the services provided under this contract. Subsequently, BizAps purchased the assets of Paymetric, Inc. on December 23, 2008. County staff was notified on January 5, 2009, of the asset purchase. Following the Procurement Administration Procedures, staff has acquired the necessary documents from BizAps which have been reviewed and approved by the County Attorney's staff. The Purchasing Department is recommending approval of the assumption of this Contract by the new firm BizAps. FISCAL IMPACT: There is no fiscal impact. .- GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This item is not quasi-judicial, and as such ex parte disclosure is not required. This item requires majority vote only. This item is legally sufficient for Board action. - CMG RECOMMENDATION: That the Board of County Commissioners approves and authorizes the Chairman to sign the Assumption Agreement Pay metric, Ino to Business Applications Associates, Inc. for the Xi Buy software license and services PREPARED BY: Diana De Leon, Contracts Technician, Purchasing Department Item Number: Item Summary: Meeting Date: Page I of 1 it2rn !~o. 1 SE4 f',,:1ait;h 24, 20C.\9 Page 2 of 27 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 1GE4 Recommendation for the Board of County Commissioners to epprove and authorize the Chairman to sign the t'-.ssumption Agreement from Paymetric Inc to Business Applications Associates, Inc. (BizAps) for XiBuy software license and services 3/24:'200990000 AM Prepared By Diana Deleon Administrative Servic0s Administrative As.sistant Date Purchasing 3!9f2009 11 58:56 AM Approved By Steve Carm.'1I f...dministrahvc Services Purchasing/General Svcs Di.eGtor Date Purchasing 3/12!2009 e:25 AM Approved By Joff Klat::l;ow County Attorney Ass!stant County .t.o,ttomey Date County Attorney Office 3f12fZ00912:G1 PM Approved By Len Golden Price f:..dministrative Scr\/~c~;s Administrative Services Administrator DatG Ajministr3-t~ve SCtVi::25 Jl.dnlin. 3112;'2003 -1:43-?M Ar)proved By OMS Coordinator County Manager's Offi::::o OMS Cc.at'dir.ator 8Me Office of Management 8, Bung"t 3112f2009 2:38 rf;/l Approved By Laura Davisson County Manager's OffiCiO! Man2gement & Budget Analyst Date C:Hr.~ of Mi:nagOlmmt,g, Budgot 311612003 11 52 AM Approved By James V. Mudd Board of Cou;-:ty Comm:ssioners C:)unty Manager De.te Cou:-:ty rf:ar..:'qer's Offic~ 3!16fZ009 1: 52 PM Paymetric, Inc. i" 't :_L ,~:i ---:- 1 , l ,. ',; Master SLA and SJ~i~,- -11 7 .... paymetrlc Paymetric Master Software License Agreement (SLA) and Services Agreement (SA) Agreement No. PC 039671207 Effective Date: January 31,2008 Collier County Board of County Commissioners, a political subdivision of the State of Florida, having its principal place of business at 3301 Tamiami Trail East, Naples, FL 34112 (hereinafter "LICENSEE") and PAYMETRIC, INC., a Texas corporation, with its principal place of business at 13340 Northwest Freeway, Suite 900, Houston, TX 77040, (hereinafter "PAYMETRIC"), by their execution hereof do hereby agree as follows: LiCEi\iSEE desires to iicense certain Sott\Nare I-'roducts and receive certain ServIces from PAYMETRIC and PAYMETRIC desires to grant software license rights and provide such Services to LICENSEE in accordance with the terms and conditions set forth in this Agreement. Section 1. Definitions and Terms a. "Agreemenf' means this Agreement, as amended from time to time in accordance with the terms of thiS Agreement, together with all exhibits, attachments, Product Order Forms, and Statements of Work attached hereto and made a part hereof. More than one Product Order Form or Statement of Work may apply to or reference the terms and conditions of this Agreement. ~Completion Criteria" means the specific conditions, if any, that PAYMETRIC is I'equired to meet to fulfill its obligations as defined in a Statement of Work. "Confidential Information" means (a) the Licensed Materiais: (b) all PA YMETRIC technology ideas, know- how, any other documentation, processes, algorithms and trade secrets embodied in the Software Products. and any deriv8tives thereof including any translation, modification, enhancement, compilation, abridgement; (c) any other information disclosed by either party to the other, whether disclosed orally or in written or magnetic media, that is identified as "confidential," ~proprietary" or with a 5imilar legend at the time of disclosure subject to Chapter 1 i 9, Florida Statutes, aiso known as the Public Records Law. "Documentation" means all user documentation and software release notes related to a Software Product or Work Product in effect at the time of shipment of such Software Product or Work Product to the LICENSEE. "Effective Date" means the effective date set forth above. "Knowledge Base" means PAYMETRIC Solutions Knowledge Base, accessible through a secure Internet website. "License" means the license granted in Section 0 ("GRANT OF LICENSE") and fur1her defined by tfle terms and conditions of Section 2. "Licensed Copies" means the maximum number of copies of each Software Product as set torth on Product Order Forms, and for which LICENSEE has paid the applicable license fee(s). "Licensed Materials" means the Software Products, PAYMETRIC Work Product, the Knowledge Base, and .h.... r.........,'.-,"'~.~.;~~ ",e... '-'Ve...U"''''''lQl'V''. ~ I ~ " I I I * I b. c. d. e. L I , I I l I ! ! g. h. L , L~___ H~68?331~1___ j. "Maintenance and Support' means all maintenance and support services that PA YMETRIC provides to LICENSEE in connection with Software Products under this Agreement. k. "Maintenance and Support Fees" means the fees related to PA YMETRIC's performance of Maintenance and Support. "Maintenance and Support Term" means the period beginning on the Effective Date and ending one year thereafter unless renewed in accordance with this Agreement. m. "Product Order Form" means the product order form attached as Exhibit B, and any future Product Order Form executed between the parties under this I Agreement. II n. "Services" means consulting services provided by PAYMETRIC to LICENSEE for the purposes defined in a related Statement of Work. o. "Renewal Date' means each one-year anniversary of the Effective Date. p "Software Products" means PA YMETRIC proprietary computer software program(s) in object code form, and the modifications, updates, new releases, and added functionality of such programs provided under this Agreement. "Statement of Work" means a Statement of Work substantially in the form of Exhibit A executed under this Agreement. "Third Party Materials" means materials owned by a third party that have been licensed by LICENSEE or PAYMETRIC for use in performing Services, including, without limitatlon, any products and services proVided by such third party. "Transaction" means any debit or credit assocIated with q. r. s. I t I I u ! ., """,~"h",,,inn """r! th.,t ;n"nh,~",,, ,..."n""H:"C';nn into''''....t,n... ..... ~....,',,"'.......,"'::1 .........,..... "".... ",.....'v......., t-".................'-''''~ "".....'u....."'-',. I r f. l- i. ! with the Software. "Transaction Tiel' means the pricing category specified on a Product Order Form for each Software Product. ~Travel Expenses' means airtare. lodging, car rental, ~~.-J ~"",I<,, u"'''' "'v"",:'> for P,!\YMETRiC personnel pc:iorming Services. 1 of 11 -----. .-.-.--------c-- -l Confident/a! ~ -------,----_..._~---_._--- Paymetric, Inc. -, v. ,. Warranty Period' means a period of time beginning upon LICENSEE's receipt ot a Software Product and ending one hundred eighty days (180) days thereafter. w. "Work Product' means all computer software, databases, code, documentation, inventions, analyses, studies, recommendations, reports, plans, results, data compilations and other media, materials, objects, information and intellectual property produced in connection with the Services provided and/or delivered by P A YMETRIC, its employees, agents and subcontractors. I >> Section 2. License 2.1. License Grants and Restrictions GRANT OF LICENSE, Subject to the terms and conditions of this Agreement, PA YMETRiC grants LICENSEE a non- exclusive, non-transferable (except as otheflNise set forth in this Agreement), perpetual license (except as otherwise set forth in this Agreement) to use the Software Products. SCOPE OF USE. LICENSEE may use the Sohware Products only for LICENSEE's internal business purposes. LICENSEE may install each Software Product on as many computers as the LICENSEE has Licensed Copies for such Software Product. LICENSEE may make one (1) copy of each Software Product licensed hereunder solely for archive purposes, and may make customary and usual hard disk backups of the Software Products. TRANSACTION VOLUME. LICENSEE understands that licensing and pricing for certain Software Products are based on monthly Transaction volume. LICENSEE's use of Software Products shall not exceed the Transaction Tier associated with each Software Product. If LICENSEE's monthly Transaction volume exceeds the related Transaction Tier, LICENSEE shall immediately contact PA YMETRIC and upgrade to the appropriate Transaction Tier associated wiih LICENSEE's monthly Transaction volume. Notwithstanding LICENSEE's failure to notify PAYMETRIC of such change in monthly Transaction volume, PA YMETRIC may automatically upgrade LICENSEE to the next Transaction Tier for a Software Product if LICENSEE's monthly Transaction volume for a Software Product exceeds the related Transaction Tier. USE RESTRICTIONS. LICENSEE shall not ailow any machine readable, human readable or other version of the Software Products to be printed, listed, reproduced, or copied for purposes of modifying, adapting, translating, or creating derivative works based upon, in whole or in part, any Software Products. Further, LICENSEE shall not reverse compile or disassemble Software Products, and LICENSEE shall not lease, rent, sub-lease, sub-license, loan, sell or otherwise transfer Software Products except as provided in this Agreement. LICENSEE shall not use Software Produ(;\s in a service bureau or any other similar use. Any right or license not expressly granted to LICENSEE under this Agreement is hereby reserved by PAYMETRIC. TRANSFER OF LICENSE. Upon no less than 90.days prior \r\/ritten notice, LICENSEE may, with P,t.,YMETR!C'S written agreement, transfer the Agreement, provided I I I I I ~______~82331 ~1 :; ;:;r: ; ',~,'. j C:JL.4 r\~arc:.1 2,1 2009 Master SLA and S;.e;,,,'!]'3 ~ of '27 LICENSEE holds greater than a 50% voting interest in the transferee. The transferee must fully and completely assume, in writing, LICENSEE's obligations under this Agreement. DOCUMENTATION. LICENSEE may make, for its internal use, only in conjunction with use of the Software Products, a reasonable number of printed copies of the Documentation, in electronic and/or hard copy format, provided that LICENSEE includes all PA YMETRIC copyrights and all other proprietary notices on such copies. Further, LICENSEE agrees not to remove or destroy any proprietary markings or proprietary legends pi aced on or contained within the licensed Materials. IITlE. thiS Agreement grants LICENSEE no litle or rights of ownership in or to the licensed Materials. All Licensed Materials furnished by PA YMETRIC, and all copies thereof made by LICENSEE, including translations, derivatives, compilations, and partial copies, and aU patches, revisions, and updates thereto are and shall remain the property of PAYMETRIC or PAYMETRIC'S licensors, as applicable. NOTHING IN THIS AGREEMENT SHAll BE CONSTRUED AS, OR IS MEANT TO BE A SALE OF THE INTEllECTUAL PROPERTY CONTAiNED WITHIN THE LICENSED MATERIALS OR ANY COPY THEREOF. All intellectual property rights in derivative works of the Licensed Materials, created by LICENSEE or otherwise, are hereby conveyed to PA YMETRIC as of their creation and shall become the sole and exclusive property of PAYMETRIC. LICENSEE hereby agrees to execute any documents requested by PAYMETRIC to evidence the conveyance of such intellectual property rights in derivative works of the Licensed Materials. VERIFICATION OF SOFIWARE PRODUCTS DEPLOYED. Upon reasonable notice, PA YMETRIC or its designees may conduct an audit of the usage of the Licensed Materials by LICENSEE. Section 3. Maintenance and Support 3.1. Maintenance and Support Coverage GENERAL. During the initial Maintenance and Support Term and any renewal Maintenance and Support Terms, for which LICENSEE has paid for Maintenance and Suppcrt, P A YMETRIC will provide Maintenance and Support for (a) the most current released version of each Software Product and (b) for the previous sequential version of each Software Product for a period of twelve (12) months after release of the most current released version of the Software Product, with respect to: a. CODE CORRECTIONS. PAYMETRiC will supply code corrections to correct any substantial non. conformance with Documentation of unmodified Software; b. SOFTWARE PRODUCTS UPDATES AND UPGRADES. PA YMETRIC will provide LICENSEE with improvements, enhancements and other changes to the Software Products which PA YMETRIC, at its sole discretion, deems to be logical improvements or enhancements to Ql"'lfhAr"'~<> P~l"'lrll ,....tC'. ~",..,...,~. ,...................., ~ 2 at 11 Confidential ~ ., Paymetric, Inc. I I ~ c. CALL CENTER SUPPORT. PAYMETRIC Will provide support service via telephone, fax and e- mail during the hours of 8:00 AM to 5:00 PM, Central Standard Time, Monday through Friday, except on PAYMETRIC's standard holidays. OFF-HOURS SUPPORT. PA YMETRIC will provide off-hours support via a paging service for twenty-four (24) hours per day, seven (7) days per week. Off-hours support is reserved for issues related to production, time.sensihve, critical or downed systems. LICENSEE shall be charged for off-hours support at PA YMETRIC's then current off. hours support rates. Updated rate sheets will be supplied to Licensee ON-SITE ASSISTANCE. It on-site assistance is required and the problem is not due to the failure of the Software Products to perform in accordance with the Documentation, or if the problem is due to other non- Software Product causes, then the parties may negotiate the Services to be performed at PAYMETRIC's then current Services rales. SOLUTIONS KNOWLEDGE BASE. LICENSEE and any employee directly involved in the operation of Software Products or constituent applications may access the Knowledge Base. LIMITATIONS ON PAYMETRIC'S OBLIGATIONS. LICENSEE understands and agrees that PAYMETRIC may develop and market new or different computer programs ("New Software") which may use one or more component(s) of the Software Products and that may peliorm any of the functions performed by the Software Products. PAYMETRIC in its soJe discretion may determine whether or not to extend the License to such New Software. Nothing contained in this Agreement gives LICENSEE any rights with respect to such New Software without consideration of additional license fees and/or terms and conditions. 3.2. Excluded Support Items SUPPORT SCOPE. PA YMETRIC will proVide support dealing only with thG operation of the Soft\.vare Products and other systems utilized or enabled with PAYMETRIC Software Products as they interact with PAYMETRIC Software Products. PA YMETRIC is not responsible for (i) end-user training for business processes modified by the use of PAYMETRIC software unless explicitly stated in a separate Statement of Work, (ii) resoiutions 01 business process related issues not associated with any Software Product, (iii) resolution of issues directly with LICENSEE's bank, merchant services provider, or bank clearinghouse beyond the operation of any Software Product. PAYMETRJC will not provide Support and Maintenance wittl regard to the following: a. Issues that C3n be resolved by <:In update or upgrade of the Software Product that has been reieased for general availability and liCENSEE chooses not to upgrade. b. Modifications made to Software Products In function or configuration by LICENSEE or any third party. ! I , I I ~ I ~ I L~~-6823311-~=~--=~==-_________3 0111 ^~1 :~::;rn :j!) I 5~-4 ';c;r'(~;: .=-<. :~~D:J9 Master SLA and SNc_',~e 5 'jf 'J.7 I. c. Issues related to any third party product or the effect of a third party product on the operation of any Software Product. 3.3. Renewal and Cancellation RENEWAL CHARGES FOR SUBSEQUENT YEARS. The initial Maintenance and Support Term shall begin on the effective date and end one year thereafter. If LICENSEE does not give PA YMETR1C prior written notice canceling Maintenance and Support in accordance with Section 3.3.2 below, and PAYMETRIC is providing Maintenance and Support to its general customers, then the Maintenance and Support Term shall automatically renew on the applicable Renewal Date and end on the next appiicabie Renewal Date. PA YMETRIC wlit continue to provide Maintenance and Support to LICENSEE, during the initial Maintenance and Support Term and any renewal Maintenance and Support Terms, proVided that LICENSEE pays the then current PAYMETRIC Maintenance and Support Fees. PA YMETRIC may at its sole option provide LICENSEE with a reminder of an approaching Renewal Date by prOViding an inVOice to LICENSEE at least thirty (30) days prior to the next applicable Renewal Date. CANCELLATION .~ND REINSTATEMENT. LICENSEE may cancel its subscription for Maintenance and Support effective as of the next applicable Renewal Date by sending written notice to PAYMETRIC that is received thirty (30) days prior to the next applicable Renewal Date. LICENSEE may reinstate Maintenance and Support at a later time by paYing the Maintenance and Support Fees in effect at the time of reinstatement plus a fee equal to 50% of the then current annual Maintenance and Support Fees for the Software Products times the number of annual periods, prorated monthly for partial annual periods, that Maintenance and Support was interrupted. Any such reinstatement shall change the Renewal Date to the date of reinstatement. Section 4. Services 4.1. Services Each Statement of Work will set torth the tasks to be undertaken by PA YMETRIC in providing Services to LICENSEE. The Statement of Work also includes any specific Completion Criteria against which such tasks are measured. Each party agrees to make reasonable efforts to carry out its respective responsibilities according to any estimated schedule; however, if Completion Criteria are applicable, then the project is complete when PA YMETRIC meets Completion Criteria. 4.2. Mutual Responsibilities Both parties agree that; a) each is free to enter into similar agreements With others; b) each will notify the other in writing of obligations not met and specify the amount of time to comply before it claims that the other has not met its oblIgations; c) If any legal action is taken in connection with this Agreement, all cost of that litigation, including reasonable attorney fees, will be paid by the party who does not prevail. I 4.3. UCEr~SEE's Responsibilliies ---.. --.- ---.-~---~---~. ~----------'-:=J Confidential ---------.--------- Paymetric, Inc. LICENSEE agrees not to (a) assign this Agreement or LICENSEE's rights under this Agreement, (b) delegate LICENSEE's obligations, or (c) resell any Services to third parties without PAYMETRIC's prior written consent, and any attempt by LICENSEE to do (a)-(c) is void. LICENSEE agrees to provide PAYMETRIC with full, free, and safe access to LICENSEE's facilities for PAYMETRIC to fulfill its obligations. LICENSEE shall also provide PAYMETRIC with reasonable remote access to L1CENSEE's enterprise so that PAYMETRIC may perform Services. 4.4. Project Expenses 4.4.1 Due to LICENSEE's consulting needs for PAYMETRIC personnel, LICENSEE shall accept all Travel Expenses associated with any on site project with the LICENSEE. Travel expenses shall be reimbursed as per Section 112.061 Florida Statutes. Reimbursements shall be at the following rates: Mileage: Breakfast: Lunch: Dinner: Airfare: Rental car: of midsize or smaller car Lodging: reasonable lodging $ .445 per mile $6.00 $11.00 $19.00 Actual ticket cost Actual rental cost Actual cost of at single occupancy rate Parking: Actual cost of parking 4.4.2AII receipts and documentation will be provided by PAYMETRIC to LICENSEE at the time of generating an invoice, and LICENSEE shall reimburse PAYMETRiC upon receipt of such receipts and documentation in accordance With Section 218.73, Florida Statutes, also known as the "Florida Prompt Payment Act". 4.5. Independent Contractors PA YMETRIC is an independent contractor. Nothing herein shall form or be construed to form a joint venture or partnership 4.6. Insurance PAYMETRIC shall procure and maintain, during the term of this Agreement, the following insurance policies on an occurrence basis with companies admitted to do business in the State where the Services are to be pertormed: a. Workers' Compensation insurance in accordance with the applicable law of the state where the Services are to be pertormed, or in which PAYMETRIC is obligated to pay compensation and Employer's Liability insurance with a limit nolless than $500,000 per occurrence; b. Comprehensive General Liability Insurance, including contractual, completed operations, personal injury, bodily injury (including death) and property damage liability (including elimination of the care, custody and control I ,'j3 :~,::::ni :-;u. .i Qc4 rv;an~h :::.t 2009 Master SLA and S~C (!L. ,~) ()1 '::.7 exclusion) With a combined single limit of not less than $1 million per occurrence; c. Comprehensive Automobile Liability insurance, covering owned, non-owned and hired motor vehicles utilized in the performance of this Agreement with a combined single limit of not less than $1 million per occurrence. d. PA YMETRIC will provide a certiticate of insurance to Licensee evidencing the above policies. LICENSEE shall be noted as Certificate Holder and as Additional Insured with regard to the General Liability Insurance. 4,7, Ownership Rights PAYMETRIC WORK PRODUCT. Unless otherwise expressly provided in a Statement of Work, all Work Product shall be the exclusive property of PAYMETRIC and shall not be deemed a "work made for hire" within the meaning of the copyright laws of the United States and any similar laws of other jurisdictions. PA YMETRIC shall retain all right, title and interest in all patents, copyrights and trademarks and other intellectual property rights to such Work Product, in its onginal form and any derivative works or modified versions. If any such Work Product may be considered a "work made for hire" under applicable law, LICENSEE hereby irrevocably assigns to PAYMETRIC Without further consideration, aU of LICENSEE's right, title and interest in and to such Work Product, including United States and foreign patents, trademarks, copyrights, or other intellectual property. LICENSEE acknowledges that PAYMETRIC and the successors and assigns of PAYMETRIC shall have the right to obtain and hold in their own name any intellectual property rights in and to sllch Work Product. LICENSEE agrees to execute any documents and take any other actions requested by PAYMETRIC to effectuate the purposes of this provision. Upon LICENSEE's satisfaction of all payment obligations to PA YMETRIC, PAYMETRIC shall grant to LICENSEE a non-exclusive, non-transferable, perpetual license to use the Work Product solely in conjunction with the Software Product. PAYMETRIC shall retain all right, title and interest in and 10 any modifications, enhancements, updates, or derivative works of Work Product licensed under this provision. LICENSEE WORK PRODUCT. Upon LICENSEE's satisfaction of all payment obligations to PA YMETRIC under a Statement of Work, PA YMETRIC shall assign to LICENSEE all right, title and interest in Work Product designated in a Statement of Work as owned by Licensee, provided that LICENSEE shall grant to PA YMETRIC (1) an irrevocable, nonexclusive, worldwide. paid-up license to use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based on such Work Product and (2) the right to sublicense others to use derivative works based upon such Work Product. THIRD PARTY MATERiALS. All rights, title, and interest in Third Party Materials shall remain with the respective owner of such Third Party Materials. I H__ 682331 40f 11 ---~ Confidential _.~ Paymetric, Inc. Section 5. Payment 5.1. Payment Terms Pricing shall be set forth on Product Order Forms and/or Statements of Work. Payment by LICENSEE shall be in accordance with Section 218.73, Florida Statutes, also known as the "Florida Prompt Payment Act". PAYMETRIC may transmit invoices upon shipment of Software Products, completion of Work Product, or completion of Services, but in no event shall PA YMETRIC invoice more often than once every thirty (30) days. Software Products will be shipped FOB destination and LICENSEE's acceptance of Software Products shall not be contingent upon inspection or completion of any Services. The Maintenance and Support Fees are payable in accordance With Section 218.73, Florida Statutes, also known as the "Florida Prompt Payment Act". PAYMETRIC may transmit an invoice upon shipment of the Software Products but in no event shall PA YMETRIC invoice more often than once every thirty (30) days. Maintenance and Support Fees are set forth on Product Order Forms. LICENSEE's obligation to pay all accrued charges shall survive the expiration or termination of this Agreement 5.2. Taxes and Delinquent Payments TAXES. LICENSEE agrees to pay amounts equal to any applicable taxes resulting from any transaction under thiS Agreement (but not including taxes based on PAYMETR1C's net income. net worth, or taxable capital), or provide PAYMETRIC documentation of a statutory exemption certificate or direct pay certificate and number. LICENSEE agrees to defend, indemnify and hold harmless PA YMETRIC against any taxes for which LICENSEE is responsible, subject to the limitations of Section 768.28, Florida Statutes. LICENSEE IS sales tax exempt pursuant to Chapter 212, Florida Statutes. DELINQUENT PAYMENTS. Invoices that are delinquent according to the payment terms set fOl1h in this Agreement will be subject to an interest charge of one and one-half percent (1-1/2%) per month (or the maximum amount allowed by law, whichever is less), prorated on the basis of a thirty (30) day month. LICENSEE will pay all reasonable and necessary attorney fees and costs required for PA YMETRIC to collect on any outstanding balance. In the event that any third party finances or otherNise agrees to pay any fees or amounts owed by LICENSEE hereunder, LICENSEE hereby agrees that all payment obligations under this Agreement shall remain those of LICENSEE and that payment by liCENSEE to PAYMETRIC is not contingent upon or subject to receipt of payment from or collection efforts against any such third party and PAYMETRIC is under no obligation to seek any payment or collection from such third party. Section 6. Warranty, Indemnity, and Liability 6.1. Limited Warranty ~ License For each Software Product, PAYMETRIC warrants to LICENSEE for the duration of the Warrantv Period. that such unmodified Software Product will be capable of operating [- ---- -- -- ~_~ 682331~ ______ I,::::;i ;'J:.:.c-i- [-..;C:i:-C:l 2-+ ::::Y<~ Master SLA and S~?r:e 7 ::.1 ~7 substantially 10 conformance with the Documentation. If, during the Warranty Period, it is determined that such Software Product does not operate substantially according to such Documentation due to PAYMETRIC's fault, PAYMETRIC will undertake good faith efforts to cure the nonconformity. LICENSEE's sole remedy in the event of nonconformity in the Software Products, even if such remedy is found to have failed of ItS essential purpose, shall be, at PAYMETRIC'S sole option, either; (i) return of the price paid for the Software Products, or (ii) repair or replacement of the Software Products. 6.2. Limited Warranty - Services PAYMETRIC warrants that it will pertorm Services in a workmanlike manner and according to the Statement of Work associated with such Services. PAYMETRIC does not warrant Third Party Materials; however, the manufacturers or providers of such Third Party Materials may provide their own warranties to LICENSEE. LICENSEE shall look solely to such manufacturer or provider for any remedy in connection with Third Party Materials. LICENSEE's sole remedy with regard to breach of any warranties related 10 Services, even if such remedy is found to have failed of its essential purpose, shall be correction of any errors which are due to mistakes by employees of PAYMETR1C or to malfunction of PAYMETRIC'S products, provided that LICENSEE provides written notice of such errors to PA YMETRIC within thirty (30) days 01 the date of performance of the nonconforming Services. PAYMETRIC shall have a reasonable period of time after written notice from LICENSEE to cure any such errors. PA YMETR1C shall not be responsible for the correction of any error or omission resulting directly or indirectly from LICENSEE's acts, omissions, or failure to execute any of its responsibilities under this Agreement. 6.3. Limitation of Liability IN NO EVENT SHALL PAYMETRIC BE LIABLE FOR LOSS OF PROFITS, LOSS OF PRODUCT, LOSS OF BUSINESS OPPORTUNITY, SPECIAL, CONSEQUENTIAL, AND/OR PUNITIVE DAMAGES. IN NO EVENT SHALL PAYMETRIC'S CUMULATIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER BASED IN CONTRACT, TORT, NEGliGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SPECIFIC SOFTWARE PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. THIS SHALL BE LICENSEE'S SOLE REMEDY WITH REGARD TO ANY PAYMETRIC LIABILITY FOR DAMAGES, EVEN IF SUCH LIMITED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRE- SENTATIONS, INDEMNITIES AND GUARANTEES WITH RFSPECT TO THE SOFTWARE PRODUCTS, PROFESSIONAL SERVICES, AND WORK PRODUCT I ~ WHETHER EXPRESS OR iMPliED, ARiSfNG BY LAW, CUSTOM, PRIOR ORAL OR WRiTIEN STATEMENTS 5 of 11 Confidential ~ Paymetric, Inc. BY PAYMETRIC OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED. I 6.4. Indemnity PA YMETRIC shall indemnity, defend and hoid LICENSEE harmless on any action brought against LICENSEE to the extent It is based upon a claim that the Software Products infringe any U.S. patent, copyright, or trade secret PA YMETRIC will pay any costs, damages and reasonable attorneys' fees attributable to such claim, provided that LICENSEE promptly notifies PAYMETRIC of any such claim. If the Software Products or any part thereof becomes, or in the opinion of PA YMETRIC is likely to become, subject to a valid claim of infringement under any patent, copyright, or trade secret, PA YMETRIC, at its own cost and expense, shall (i) obtain a license permitting the continued use of such Software Product; (ii) replace or modify such Software Product so that it becomes non-infringing, provided that the replacement or modification retains substantially the same functionality as such replaced Software Product; or if (i)-(ii) are commercially unreasonable, then (iii) refund any fees paid by LICENSEE in connection with such Software Product, less a proportional adjustment for the time the Software Product was used by the LICENSEE equal to the ratio of the time elapsed since the delivery date to seven (7) years. For any claim or other liability PA YMETRIC IS obligated to indemnify LICENSEE against, PA YMETRIC shall have the right to control the defense thereof, including the right to select legal counsel, and LICENSEE shall cooperate promptly and fully with PAYMETRIC and its counsel in such defense. Notwithstanding the foregoing, the indemnity provided herein shall not apply if the alleged infringement arises from: (i) use of other than the latest unmodified release of the Software Products available to LICENSEE; or (ii) use or combination of the Software Products with non- PAYMETRIC products if infringement would not have occurred without the combination; or (iii) use of the Software Products after the LICENSEE has been enjoined from further use. The foregoing states PAYMETRIC's sole and exclusive liability for infringement of a third party's intellectual property or other proprietary rights. Section 7. Governing Laws and Termination 7.1. Governing Lawj Severability THIS AGREEMENT WILL BE GOVERNED BY AND INTER- PRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAV-J RULES. PAYMETRiC AND liCENSEE HEREBY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN A FEDERAL OR STATE COURT IN THE STATE OF FLORIDA LOCATED IN COLLIER COUNTY. If [ H 682331 1 i~(::rn ~\iCJ_ :,:::;t:4 [./:(:11:::1'1 ~~4, .2CJ',J9 Master SLA and S:'1:;ge 5Jf 27 any provisions of this Agreement or the application of any such provision shall be held by a tribunal of competent Jurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect. 7.2. Export Law Controls; Export Assurance Declaration 7.2.1. LICENSEE agrees to comply with all export and re- export restrictions and regulations imposed by the governments of the United States or the country to which the Software Product is shipped to LICENSEE. LICENSEE will not commit any act or omission that will result in a breach of any such export requirements. This section shall survive the expiration or termination of the license or this Agreement. LICENSEE acknowledges that (i) PAYMETRIC Software Products may contain routines that implement the U.S. Government Data Encryption Standard ("DES") and (II) that export of DES technology is controlled by agencies of the U.S. Government. If LICENSEE desires to export the Software Products, LICENSEE certifies as follows: The PAYMETRIC Software Products consisting of the items ordered on Product Order Forms and any updates thereto, furnished by PA YMETRIC (il are to be used for LICENSEE's internal business purposes use only and (ii) after delivery by PA YMETRIC to LICENSEE, will not be re-exported or re-Iicensed for export until and unless LICENSEE has complied in all respects with all export and re-export restrictions of the United States of America and the country to which the Software Products are shipped. LICENSEE further agrees that the Software Products Will not be transferred or re.licensed for export if LICENSEE knows or suspects that the Software Products will be exported in violation of such restrictions. LICENSEE further certifies that the Software Products will not be re- exported to countries included in prohibited Country Groups of the U.S. Export Administration Regulations, or delivered to nationai citizens of these countries, or to any person or group as currently listed under such regulations 7.3. Termination and Disputes AGREEMENT TERMINATION. PAYMETRIC may terminate this Agreement with sixty (60) days written notice to LICENSEE, without further obligation or liability and without judicial or administrative resolution or obligation to refund (i) If LICENSEE is delinquent in making payments of any sum due under this Agreement and continues to be delinquent for a period of sixty (60) days after the day on which such payment is due, or (iI) LICENSEE commits any other breach of this Agreement and fails to remedy such breach within thirty (30) days after wrillen notice by PAYMETRIC of such breach. This Agreement will terminate automatically if LICENSEE ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for U""le purpose of recollstruclion or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors' rights or takes or suffers any similar action in consequence of debt. 6 of 11 -'1 J Confidential Paymetric, Inc. Section 1 (Definition and Terms), Seclion 0 (Title), Seclion 4.7 (Ownership Rights), Section 5 (Payment), Section 6.3 (limitation of liability) and Section 7 (Governing Laws and Termination) shall survive termination of this Agreement. LICENSEE may terminate this Agreement upon sixty (60) days written notice to PAYMETRIC if (i) PAYMETRIC is in breach of this Agreement and fails to remedy such breach within thirty (30) days, (ii) if the Board of County Commissioners does not appropriate funding for this Agreement, or (iii) for convenience. il ~ I I I i I DISPOSITION OF SOFTWARE PRODUCTS ON TERMINATION. Upon terminalion of this Agreement or cancellation of the License for any reason, the License, any Work Product licenses to LICENSEE and all other rights granted to LICENSEE shall cease, and LICENSEE shall immediately (i) return the Licensed Materials to PAYMETRIC, or alternatively, provide written certification that all copies of the Licensed Matenals have been destroyed, and (ii) purge all copies of the Licensed Materials or any portion thereof from all computers and from any computer storage device or medium on which LICENSEE has placed or has permitted others to place the Licensed Materials. Upon termination, PAYMETRIC will stop work on any unfinished Services. LICENSEE agrees to pay PAYMETRIC for all Services provided by PAYMETRIC up until the time of termination, includIng, without limitation, any partially finished Work Product, any supplies or other goods that have been obtained or consumed through the project's termination and any charges PA YMETRIC incurs in terminating subcontracts. If liCENSEE and PAYMETRIC cannot settle a claim, dispute or controversy that arises from or relates to this Agreement, both parties agree to initially submit any and all such claims, disputes, and controversies to mediation, using one or more neutral third party. LICENSEE and PAYMETRtC further agree to SlJspend any applicable statute of limitations during the penod of mediation- related discussions. All negotiations and discussions held pursuant to this provision shall be treated as confidential and as compromise and settlement discussions for purposes of applicable rules of evidence. If, however, LICENSEE and PAYMETRIC fail to reach settlement of such claim, dispute, or controversy during mediation, they shall submit this claim, dispute or contiOversy to any court having jurisdiction. 7.4. General WAIVER, MODIFICATION The waiver, amendment or modification of this Agreement or any right hereunder shall not be effective unless made in writing and signed by an authorized representative of both parties. UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS ~ . ! ~ ,; I !I 1 I i 4 l. ~ ii Y " " il ij il !, I , .t.,GREEME~JT OR ANY PAYMETRiC PURCHASr::: ORDER BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERCEDED OR REPLACED BY ANY NON.PAYMETRIC INVOICE OR NON. PAYMETRIC PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY LICENSEE TO PAYMETRIC. EACH PARTY ACKNOWLEDGES AND ----..,--- , H_682331 1 "/-,a :k;,i-11-b _][.:1- r,iar:.::h:2.1 ~DC\J Master SLA and Sl~8'Je ~1 ~',f 27 AGREES THAT, AS A CONVENIENCE TO LICENSEE AND ONLY FOR LICENSEE'S INTERNAL ACCOUNTING PROCEDURES, LICENSEE MAY DELIVER TO PA YMETRIC A LICENSEE INVOICE OR liCENSEE PURCHASE ORDER OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY PAYMETRIC, INCLUDING PAYMETRIC'S DELIVERY OF ANY SOFTWARE OR MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH LICENSEE INVOICE OR liCENSEE PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY PAYMETRIC PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES AND EXPRESSLY REFERRING TO THIS SECTION 7.4.1. CONFIDENTIALITY. Each party shall take all reasonable precautions necessary to safeguard the confidentiality of all Confidential Information disclosed by the other party, including those precautions (i) taken by the disclosing party to protect it's own Conffdential Information and (ii) whIch the disclosing party or Its authorized representative may reasonably request from time to time. Neither party shall remove, deface, or allow another party to remove or deface any confidentiality or proprietary notice placed on the Confidential Information disclosed by lhe disclosing party. The placement of copy- nght notices on Confidential Information shall not consti- tute publication or otherwise impair the confidential nature of such information. LlCENSEE acknowledges that the Licensed Materials incorporate confidential and proprietary information developed or acqujred by PAYMETRIC acqUired, or I!censed to PAYMETRIC. All applicable common law and statutory rights in the Licensed Materials including, without limitation, rights in PA YMETRIC Confidential Information and trade secret material, data, source code, object code and copyrights, shall be and shall remain the property at PA YMETRIC. If an unauthorized use or disclosure of the disclosing party's Confidential Information occurs within the recipient party's enterprise, the recipient party will immediately notify the disclosing party or its authorized representative and take, at recipient party's expense, all steps which may be available to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination. LICENSEE agrees that LICENSEE's threatened or actual unauthorized use of Confidential Information or disclosure of PAYMETRIC Confidential Information will result in immediate and irreparable damage to PA YMETRIC for which there is no adequate remedy at law, and, in such event, PAYMETRIC may seek appropriate injunctive relief, without the necessity of posting bond or other security. PAYMElR1C's pursuit of any remedy will not constitute a waIver of any other right or remedy available under this Agreement or under applicable law. If any Confidential Information must be disclosed to any third party by reason of legal. accounting or regulatory requirements h8yond thE' reAsonable control of the disclosing party, the disclos!ng party shall promptly notify the other party of L I I: " fi 1 .J 7 of 11 Confidential Paymetric, Inc. --" the order or request and permit the other party (at its own expense) to seek an appropriate protective order. FORCE MAJEURE. In Ihe event circumstances beyond either party's reasonable control prevent such party, ("Affected Party") from pertorming its obligations under this Agreement, the pertormance of such obligations shall be suspended to the extent as is reasonable under the circumstances; provided, however, that during the suspension the Affected Party shall use its commercially reasonable efforts to resume its pertormance under this Agreement; and provided, further, however, that if the Affected Party's perlormance is suspended for a period of greater than ninety (90) days, the other party shall have the option to terminate this Agreement upon written notice thereof to the Affected Party. A party's inability to pay an obligation of payment shall not be a force majeure condition. . NOTICE. Any notice or other communication required or permitted hereunder shall be given in writing to the other party at the address stated on page one or such other address as shall be given by one party to the other in writing and sent to the attention of Debra South, Chief Financial Officer, at the address at the beginning of this agreement. PA YMETRIC further reserves the right to develop case studies and/or other media relations documents that may include such details as approved by an authorized representative of LICENSEE in writing. SUCCESSORS AND ASSIGNS. All terms and provisions at this Agreement shall be binding upon and inure for the benefit of the parties hereto, and their successors and assigns and legal representatives, except that LICENSEE may not assign this Agreement or any right granted hereunder, in whole or in part without PAYMETRIC'S prior written consent. PROHtBtTION OF GIFTS TO COUNTY EMPLOYEES. No organization or individual shall offer or give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to any County employee, as set forth in Chapter 112, Part Ill, Florida Statutes, Collier County Ethics Ordinance No. 2004-05, and County Administrative Procedure 5311. Violation of this provision may result in one or more of the following consequences: a. Prohibition by the Individual, firm, and/or any employee of the firm from contact with County staff for a specified period of time; b. Prohibition by the individual and/or firm from doing business with the County for a specified period of time, including but not limited to: submitting bids, RFP, and/or quotes; and, c, immediate termination of any contract held by the individual and/or firm for cause. Immigration Law Compliance: By executing and entering into this agreement, the Consultant is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, ~ seo. and regulations relating thereto, as either may be amended. Failure by the Consultant to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the disCf8tion to unilatt;1 aily tel millale this agreement immediately. :-- H 682331 1 1:_!c:J it~~m j\b. iG::.,+ f''::::ITh :."4 ;'-:JUa Master SLA and ~Sl~9 Ci~;.f .~~1 Offer Extended to Other Governmental Entities: LICENSEE encourages and agrees to PAYMETRIC extending the terms and conditions of this Agreement to other governmental entities at the discretion of the successful bidder/proposer. PA YMETRIC hereby further agrees that for each entity given written approval by the County to utilize this option, PAYMETRIC shall provide LICENSEE With a credit of one and one-half percent (1.5%) of the License cost for each new entity's Agreement. The credit earned by the LICENSEE can be applied as an offset to either the Annual Maintenance and Support cost or additional Services work. PA YMETRIC shall be required to provide yearly documentation of such entities' total annual Lir.ense purchases in a form approved by LICENSEE. Source Code Escrow: As of the Effective Date, PAYMETRIC will place the entire source code for the Software, together with all Documentation as such now exists or hereafter becomes available, including but not limited to, the then current versions of the Software products being used by LICENSEE will have been deposited and maintained, at PAYMETRIC's expense, in an escrow account (the "Escrow Account") pursuant to an agreement between an escrow agent (the "Escrow Agent"), and PAYMETRIC (the "Escrow Agreement"). Such Escrow Agent shall be instructed to certify in wnting within thirty (30) days from the Effective Date that such source code and Documentation have been delivered to it. Such Escrow Agent shall be instructed In writing by PA YMETRIC upon execution hereof to promptly deliver all such source code for the Software and Documentation to LICENSEE upon written notice thereof by LICENSEE after any of the follOWing occurrences: (i) PAYMETRIC suspends or discontinues business Or indicates its intention to suspend or discontinue business and there is no successor to the business; or (ii) PAYMETRIC files for bankruptcy, makes a general assignment for the benefit of its creditors, or the appointment of a receiver on the account of the insolvency of PAYMETRIC; or (iii) PAYMETRIC ceases to provide Maintenance and Support for the Software and there is no successor for PA YMETRIC's Maintenance and Support obligations; or (iv) PAYMETRIC removes the Software from its price lists with the intent to stop marketing/selling the Software before such removal would be called for under its generally applicable product life cycle policies, and there is no successor to market/sell such Software. b. Upon the occurrence of any of the above events set forth in subsection (a) above, liCENSEE shall have the right to receive the source code for each Licensed Product from the Escrow Agent within thirty (30) calendar days of such event and use such source code to modify or augment the Software and continue use of said Software consistent With the terms and i ._-, J Confidential 80t 11 , ! , ri. II ~ I ~ ~ ~ ~ Paymetric~ Inc. ! [':::i"ll :J ~)~ :\/:a r;:)'! ,~~ 'I Master SLA and Shg-3 '11~t I conditions of the licenses granted under this Agreement. ENTtRE AGREEMENT. The parties acknowledge that this Agreement expresses their entire understanding and agreement, and that there have been no warranties, representations, covenants or understandings made by either party to the other except such as are expressly set forth herein. ATTEST: BOARD OF COUNTY COMMISSIONERS FOR COLliER COUNTY, FLORiDA, ~ By: Ja s Coletta, Chairman Approved as to form and legal sufficiency: r~ft1A1r7~ Assistant County :n.ttomey W;I'1,~~ Debra South, CFO Type N PAYMETRIC, Inc;:7~ ~ ~ I,',' , I ~ f r I f I'. , r I ~ \ By: ey Steve.Rr.esJ.deRtsident Typed Name and Title ndiota Vice President ame and Title 1---- ---1 Confidential ~___~ H__682331 1 9 of 11 I Q I I I i I I I i I I it:~.:r; i\'). "1 GE4 f"k;lrch :24, 2009 Pdg8 '12 of 27 ~'-" Statement of Work Contract #: PC03271207 XA03165 1/16/2008/ 01/31/08 r/VI pavmetrl C SOW#: Date: Valid through: 13430 Northwest Freeway, Suite 900 Houston, TX 77040 www.paymetric.com Licensee: Collier County Government Contact: Joanne Markiewicz Address: 3301 Tamiami Trail E Naples. FL 34112 Telephone: (239) 774-8975 E.Mail: .oannemarkiewicz@collierov.net SOW Title: Target Start Date: XiBu 3.X Installation and SAP Integration TBD Target End Date: TBD Introduction This SOW describes the roles, responsibilities and tasks required to implement the specified aspects of XiBuy 3, the payment card processing solution, to address the documented business needs of the Licensee. Guideline to Schedule, Milestones and Resources . The elapsed time of a project will depend on a number of critical factors. However, a typical and recommended elapsed timeline exists for our standard projects to enable better understanding of real-world experiences. . As a guide, Professional Services resources will be assigned to SOW project(s) with a lead-time of 30 days. . This is an integration project and, as such, will be successful through mutual collaboration and partnership between the Licensee and Paymetric. . "'S14~I!)Ilir.sk'(41~\. . "(fc,. . As with all projects, the ability to maintain milestone dates and deliverables by all parties is key to the success of subsequent project phases and the overall success of the project. The standard project(s) in this SOW will generally correlate to a corresponding Paymetric project plan, and will tallow the milestones and high-level tasks accordingly. . Unless noted as an exception. Paymetric does not provide Project Management of the overall proJect. . , . Unless noted, ALL Paymetric work will be delivered off site. Note: There is one scheduled on-site visit tor the Knowledge Transfer / Training Workshop. . Paymetric resources deliver expertise in tasks that are within their focused skilfs and experience, however it is the Licensee's responsibility to allocate the appropriate resources to execute and own the project and solution as a whole, thus ensuring a successful project and iong.term business soiution. Page 1 of 7 :~'.:J :: '';; I, :".'':'-1,~:h :.1 ;,'::.4 :~OO) ~ ::~ (if '.:.7 Business Requirements ''''';It:i'r''rJ~~l' "~~~"~~-ij'!j';" ,."" 'I""'''''~;;;'~'''4'o!'''''''' ,<" '" "',' "'''''~~~'1;;''''''"''':M'',", t~\"1 ~:.!'~'~''5.';.'iii'l.'''~ ~'!t~~~ 'IJ-'-illi"~ "',T , ",- , ,"~""'" ~I .;ll 1:, l__ ,l,_:,,~,'j...-;'_~'~.;;;:':":' " -:: :_^I..I!^i'_l<~" '." _":''Z:J)ifltfW':tr~la;;..h.,-~:~ ;.'" ,'~)...;"7:."":~~ The following business requirements have been agreed as the high-level scope. Unless specificaJly indicated as an exception or custom project, these transaction processing requirements are a general statement of the overall transaction processing requirement and do not imply that all combinations of transaction cri1eria can be satisfied for all possible business workflows, Standard Project: XiBuy 3 Installation and SAP Integration Results: . Licensee business and technical requirements and projecl milestone dates are identified and documented . Architectural landscape identified. including SAP server environment. as well as transmission method lor receipt of Daily transaction and Monthly Statement fiies. . Finalized requirements and project schedule are agreed to, publiShed and signed off by both panies. - Project kickoff, resource assignment, agreement on project milestone dates - Deline SAP business, technicai requirements (Xi Buy Configuration Document) - Define Non-SAP business, technical requirements . Define architeclurallandscape . Identify layout of Monthly Statement File . Review and advise refinements to requirements . Joint sign off on requirements x X X X X X X X X X X X X X X X I I Pre-requisites: . Relevant client per,:;onnel or process to facilitate determination of business requiremer,ls and decisions regarding processing or technical options available. Client documentation relaiina to hlJsinp.ss 1p.lllJirp.mpnts tA(:hnicCiI rP<1:Jirpmpnts hlllArrint or oth8r relevant documents Page 2 ot 7 .l~3;11 ,',; ',GE4 f'\i':z,lrch :',1. 2009 Paga 4 A:2 7 ~.. Required Resources to be Provided by Licensee: . Project Manager (Licensee) . P-Card Program Administrator . Accounting and/or Accounts Payable Representative . SAP FJ configuration resource . SAP Basis and/or IT architecture resource . Appropriate resources as determined by Licensee to enable determination of requirements Expected Pa metric Hours - SAP Solution Consultant Off Site 1"!'r;ffi'~:W~~:'<)'i""t~~~'Wie"''':'!t"'''r''il!1~.1f~i'r~~J''IT'.''''''''":'l'::'''~~~:~1iWrf:Jf.'~:Hi''''''''",.~~.,. "J.;',.~, """ "1'''''''''1 ;~\!1i!i.i"r ,! -;~I~~~~'ji~~J!>' ::.1' """~',~.~i:"':,'" '''"i',l''ti';t'' "" .,'j,.~~j'~ ;!1~"'i1-';'!'!}'i:;1O;,\'!'\""'~'''' 1 "I.., ; ',' ".. H~", W.."aH.~...j\o,~....t.;L':"''.r'.J~~hi'J\~'!Ii;..'~lf.;,$J~:Wii;;Jt~t:c''\'''''-J^ tl'~;I\'Jt<tl"i'fi !i':t~jH~.~'$1i'<<,'.j)...~.l ~I i \ ,,,,,;. , , .. "~l 'L Results: . XiBuy installed, configured and ready for integration and lesting activities. . Relevant S,.....P Plug-ins and utilities instarled and ieady for integiation activiti8s. , Relevant Non"SAP utilities installed and ready for integration activities. - Review and validate the SAP configuration to meet prerequisites - OSS Note identification and application of SAP Plug-ins (if necessary) - Install Decryption Soilware - Make XiBuy software available to licensee - Install Xi Buy software in licensee DEVor TEST box + Conduct preliminary configuration session (XiBuy Core product and PO Module) - Conduct limited tests to validate installation/configuration - Joint sign off on InSlallation x X X X X X X X X X X X X Pre-requisites: . Completion of REQUIREMENTS activities . All Preliminary requirements identified in "X/Buy Setup and Configuration" document successfully addressed . SAP instance is implemented and fully operalional Required Resources to be Provided by Licensee: . Project Manager (Licensee) . P-Card Program Administrator . Accounting and/or Accounts Payable Representative . SAP FI configuration resource . SAP Basis and/or IT architecture resource . Appropriate resources as determined by Licensee to enable determination of requirements Expected Pa metric Hours - SAP Solution Consultant Off Site I 'I i Page 3 of 7 ~a :teit! 1\l0. :C,C4 !',,';DI-ch 24. 2009 Page '15 of 27 M"':"""'~"'\.."+;~!I!rI:r:'....,~'M'''' ,""""~.~"" '~';f:""'i"Ii>;'~L""'.' . .r"':T",,,.!~~~,r,!j;''Tti'~~~'i'!j -~'."(""~'TI'l:t;,~~rf-;" ,~< "."':'11 "'" , ,'"- - ....,~:f,'rf: <,j~ ,;~ .-' r ~,~ '''j ",', J;i~~ :~r~;..<;jI'f,:,:\{"~J~"I;!:N" 't/'I'>':r;~.t~',.;.'> "e," -,' , ,",l 1".... <,"'''"l''<'l ~"f'""~j,,, ,J> h ,\ T ,\,",.{..~~...,~t ~', ..'1. h.,.., \. ','-Ii> .",~'., " Results: . Licensee Server landscape will be configured and ready to begin receiving daity transaction files and monthly statement files. r~~,!%~'W;>lffj}l"~\Ill~~~~~J~'"~~~tJft1,~~0~\~~~;:,~"~~~f~_~~":';~-f'1.';~""~I~'''~:ifi:''t..;:.'' 'r'~. " : T ",.", 'i ~-.c:"i"'I"' "ij "",', ,'., ,~~,<;t"", ''', <.);'"flJ \i '>:,I~f_ ,''''I,,""J'~-W~+W'f!l," 1Ji..::lI';;'~flfL,('I\~~'\I...~...~~.,J,,,~~, ..If "-" ~~" ^ ~ - Define Server(s) to receive Daily and Monthly files - Create Interface fOT receipt of Daily Transaction files - Fill out transmission torms - Create Interface for receipt of Monthly Statement files - Fill out transmission forms - Define upload and archive directory structure - Write scripts to move decrypted files to upload directories, archive directories x x X X X X X X X X X - Test receipt 01 Daily Transactiol' files - Test receipt of Monthly Statement files - Sign off on completion of Integration and Knowledge Transfer X X X X Pre~requisites: . Completion of INSTAllATION activities (above) . All Preliminary requirements identified in "XiBuy Setup and Configuration" document successfully addressad . SAP instance is implemented and fully operational Required Resources 10 be Provided by Licensee: . Project Manager (Licensee) . P-Card Program Administrator . Cardholders and Managers (designated by licensee to receive !he initial training) . Accounting and/or Accounts Payable Representative . SAP FI configuration resource , SAP Basis andlor IT architecture resource . Appropriate resources as determined by licensee to enable determination of requirements Ex ected Paymetric Hours" SAP Solution Consultant Off Site ~ ~ I I I Page 4 of 7 - I ! I I I;ern 1'10. i~E4 !\,1arch :=A. 2009 Pclge 16 of 27 Results: . XiBuy and SAP will be configured to successfully post and process Purchasing Card Transactions . Knowledge transfer of Cardholder, Manager, and Administrator roles and responsibflities 10 Licensee resources . Licensee personnel will demonstrate technical knowledge of XiBuy operations and working knowledge of Purchasing card processing , Knowledge transfer generallopics: XiBuy functionality (by role - cardholder, manager, administrator), Troubleshooting . Xi Buy: Setup and migrate application to testing environment(s) - SAP: Configuration 10 meet licensee testing requirements - Conduct Training Workshop (2 days) - Sign off on completion ot Integration and Knowledge Transfer x X X X X X Pre-requisites: . Completion of INSTALLATION activities (above) . All Preliminary requirements identified in "XiBuy Setup and Configuration" document successfully addressed . SAP instance is implemented and fully operational Required Resources to be Provided by Licensee: . Project Manager (Licensee) . P-Card Program Administrator . Cardholders and Managers (designated by licensee to receive the inilial training) Accounting and/or Accounts Payable Representatlve . SAP Fl configuration resource . SAP Basis and/or IT architecture resource . Appropriate resources as determined by Licensee to enable determinalion of requirements Note: We recommend that no more than 20 or 25 people attend the training sessions in order to keep the sessions productive. Expected Paymetric Hours. SAP Solution Consultant Ex ected Paymetric Hours. SAP Solution Consultant On Site Off Site ~~ft"dil(r~~~1'~~it~!r\'t*~~~:~~;:~~,fM[Ki\!f:;~'1\~f&~1Ijtttf~~~~~~.~;?i: Results: . Licensee standard SAP functionality and workflow tested . Licensee custom functIonality and workflow lested ~~';'tftT,:D']u~N{'~jD>~\.~M:lwt.(~i'~;~fl [ "~;"; . Setup and migrate configuration and custom code to tesling environments . Review [Licensee] testing scenarios - Begin [licensee) SAP, XiBuy testing - Run all testing scenarios identified and proposed by licensee Review testing results and resolve all issues. repeat as necessary - Sign off on test results and all issue resolutions X X X X X X X X X Pre-requisites: . Completion of REQUIREMENTS AND PLANNING, INSTAllATION, INTERFACES - DESiGN AbJD CREATE, and INTEGRATION (KNOWLEDGE TRANSFER) steps above. Required Resources to be Provided by Licensee: . Project Manager (Licensee) . P-Card Program Administrator . Cardholders and rv'lanagers (designated by licensee to receive the initial training) . Accounting and/or Accounts Payable Representative . SAP FI configuration resource . SAP Basis and/or IT architecture resource . Appropriate resources as determined by Licensee to enable determination of requirements I ~ I Expected Pa metric Hours. SAP Solution Consultant Off Site Page 5 of 7 d ~eln :<~, '~;::-4 :3!Ch ="~ ~:C').~l "17 Jf 27 , Results: . Preparation and planning for Licensee go-live . Migration to production environments (XiBuy, Interfaces) . Live transactions in production environment according to Licensee requirements . Project closure and transition to supporVmaintenance stalus - Schedule go-live date wilh card issuer (s) . Schedule [licensee] go-live resources - Go-live with Implemenled solution - Product support during [Licensee] go-live (where needed) - Document and resolve production environment issues . Sign off on go-live and project closure - Project closure and lransition to Paymetric Support Pre-requisites: . Completion alllCENSEE TEST steps above , Scheduling, by Licensee, of go-live with Card Issuer (and bank, if necessary). . Production SAP environment x x X X X X x X X X X X Required Resources to be Provided by Licensee: . Project Manager (licensee) , P.Card Program Administrator . Cardholders and Managers (designated by licensee to receive the initial training) . Accounting and/or Accounts Payable Representative . SAP FI configur8.tion resource . SAP Basis and/or IT architecture resource . Appropriate resources as determined by licensee to enable determination of requirements ! I l t Expected Paymetric Hours - Solution Consultant Off Site Subtotal Expected Paymetric Hours. SAP Solution Consultant Subtotal Expected Paymetric Hours - SAP Solution Consultant On Site Off Site 16.0 164.0 I Ii lSubtotal Hours 180.0 I ~ ~ I. ~ ,. ~ ~ II i ~ " f. j I I , '. 'L Page 6 of 7 I I- I I iL';j:Ti ~D. CE.4 [,,'lardl ~A, 2UCJ9 Pclge 18 of 27 ~~~~~~~;ltt..;j.t"'l'~' "",~,<,,, .' .~,~ _" ~r.''"""I>, """7 '11+~;I;'.,J,.]<."~,,~ .~_'~'~I"t -"r~ , ""'tIl ,"",,<"\ '~.j;1"v;'\4 ~-t'}'J;;fi~'1lI~,~~;f:';J,;'f~1',P",,::,f{w; ";.:}~: j" 1_.) /: '"'" ." ~, .~ _, ~'.~,~ ~ _,..I,,-'f;'JI~~ "h'" '-"~'I,_-' '",',; ~~ ~':\J-':'.!f', l~ ;I~ :',.~;","it General: 1.1) Professional Services quote does nol include travel-related expenses related to on-site work 1.2) Where ansile is specifically identffied, aU on-site work will be completed within a single trip to the Licensee's site Systems and access: 2.1) Licensee provides Paymetric consultants with adequate remote connectivity 10 Licensee network and SAP. 2.2) All Paymetric software is implemented with "out of the box" functionality as identified in the product User Guide. 2.3) Target SAP environment is version EGC 6.0. til 1) Functionality beyond that provided "out of the box" as defined by the XiBuy 3 User Guide will incur additional billable hours. 2) Installation of ass notes identified by Paymetric or Licensee will incur additional billable hours. 3) Assistance with enablement of any native SAP functionality beyond identification of relevant ass notes required for integration will incur additional biiiabie hours. 4) User Exit programming will incur additional billable hours 1) Licensee will be responsible for coordinating all project activities and scheduling of appropriate Licensee resources 2) licensee will maintain all hardware on which Ihe XiBuy application is installed 3) Licensee will maintain the dalabase on which Ihe XiBuy application is installed, including all DBA activities involving backups and reorganizations. 4) Licensee will determine which OSS notes are relevant to their project (a spreadsheet will be provided by Paymetric as a starting point) 5) Licensee will be responsible for acceptance and sign-off of each phase of the implementation and the overall project implementation 6) Licensee will be responsible for hardware procurement, network infrastructure architecture and related documentation (including installation 01 non- Paymetric required software, fulfillment of related network connectivity requirements, and database administration) c~ Irotal Project Hours -- 1) Actual T&E expenses for on~site work to be billed to the client separately after on~site work completed. 2) This implementation includes the PO functionality of XiBuy. 3) $25,000 installation/configuration minimum Page 7 of 7 ::,~m f;() ~ !';'i ,,,h :.:1 I ~)!.::..j. '20t',~) I else:':'; ~-!f 2. 'I Licensee: Collier County Government Contact: Joanne Markiewicz Address: 3301 Tamiami Trail E Paymelric, Inc. 131.30 Norll'1west Freeway, Suite90Q Houston, TX 77040.6000 Phone: 713-895.2000 Fax: 713,895,2001 Naples, FL 34112 Telephone: (239) 774-8975 E-Mail: roa~r)emarklewi:l@colliercO",r)el Contract #: PC03271207 POF #: BK - COLLIER Date; 12/14/2007 Valid Thru: 12/31/2007 POW ERE D BY SAP NetWe__r~ -....----- .~ SAP Certified ~lH~ha5ing Card trarlsaclion marlagement 3opliCal1orl t~at Inctudes tradillQnallransaction processi'1g, 'acil,taledPurchaseCrderreconc,l.atron, ancllhe reconcil13110n tOOlS Statement ReView and Balancing Accoun ActiVIty, Charge IS per SAP instance - tnCludes 1 Da:lyCharge Fiieancl' Statemer-t Bil!i'1g File; cardprolilemillr'lenancelunctionality PO Expense Marl3gemerltfunctionality $ 75.000 $ 75,000 ~..~~~~~1,~~"~}!irf~';{::r"';~~ Additional Dally Charge File -Yl:lrill'yprovided OY!;le:ssUi'lg banKS or the card ilst.oclatlllns io'Arrerican Express) , 4,OUO $ Additional Statement Billing File I i ;:Cr~,v:aed [;y the ~ard Issut'r C01ta'nS 8.11 tr8.nFachClns 1:lal jco",:mse the ::;~'~porilte li~Clilt)' tll the :ard !SSUW 3,000 Card Profile Import File Ic'aa~es new Cil'C prolilcs, UPjillos OXI.<;ting card profiles, and ~1i\;;lS rar1s whe" ~.IQSea hylh~ ''>Suer Ca.rrj Issu~r must mao '0 thE! Paymp.trlC s~andald I a I ! I I ;-i"/' , . . :n-;1'ih'!"j:,~c ,~i::\! ~,;~',\';~\' .','< :~';:;:1i} ;1,,;C'\~":.:':4 'iI.,I'~, 4. ., . ';.f;~~r~';i~~-i\: ","""'_"- ;;'ii,,:!:;~;J;,-,':1;),~;;~1 ,;:'~t.'~'i;~~:~-ilii:':'I:i[' ;';'i' ."'!;.I " (", 2. 3. Name and TitIO-~ I- t ).--"......,.'"',. "", .~',--,' , .' Page 1 of 1 PRODUCER WM RIGG CO. ~ HOUSTON 10777 WESTHEIMER. SUTIE HOUSTON TX 77042-3454 (713) 978-6568 300 DATE (MMIODfYYYY) 4/5/2007 THIS CERTIFICATE IS ISSUED AS A MA TIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. :~,'). 1 [':::4 ;lOCi3 oin ACORD,. CERTIFICATE OF LIABILITY INSURANCE 13430 NORTHWEST FRwY #900 HOUSTON TX 77040 ~~~__' INSUR~S AFFORDING COVERAGE !INSURER A: MARYLAND CASUALTY COMPANY r;SURFR 13 TEXAS MUTUAL INSURANCE COMPANY I I IN$JRER C AMERIC~~:r~~~IONAL INS INS0RER D_____.___.__ INSURERE: _I NAIC # ! (713) 978-6799 INSURED paymetric, In::. i-- COVERAGES I THE POUC1ES OF iNSURANCE liSTED BELQvV HAVI::. BI::.t:N IS:::;UED TO THE INSURED NAMED ABOVE FOR THE POltCY PERIOD INDICATED. NOWV1THSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT VV1TH RESPECT TO \fv'HICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFOR:JED BY THE POliCIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POliCIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I~~~ Jlp~ TYP NCE I POLICY NUMBER i P6'.k+~Y ~~j86:WE 10/4/2006 I Pg~I.fEY ~~bRt~!9N I I eACH OCCURRENCE DAMAGE 10 RENTi:O I P;;:EOMISES EaoGClJrence LIMITS A GENERAL LIABILITY COMMERCIAlSENERI.l UA!3ilITY -- CLAIMS MADE [" iJ OCCUR PFS01156456 10/4/2007 i$ , 1L-QQ .O_....QQL A GEN'L AGGREGATE LIMIT APPLIES PER: i X POLICY II ~R9- -- LOC' AUTOMOBILE lIA81L1TY ANY AUTO I ALL CWNE'D AUTOS - SCHml)lEDA.UTOS r!J >-lIRED ^U~OS I" x i NON OWNED "UT::JS r~ ~__ I_~;RAGE UABILJTY r 'ANY AUTO PPSOl155455 10/4/2C07 MEa EXP (Anyone person) PERSOI~AL & ADV INJURY I $ :;:~::;;~;~:~;~~g. ~.-.:-=~ ~ENA.N"!'S r..EG1>.L LrlUlJ.LITY 1 , ! COMBI'-lED SINSLE L1M,:, (Eaac.cjdant) 10,000 EXCLUDED 2,000,000 ._~(..9.Q.~ 1,000,000 10/4/2006 I, , -r- , '$ 1- BODilY INJURY 1 (Peraccideol) $ ,--------- +-~~ I I I i-',<QP"RTY DAMAGE I ~ ; (Per accident) :'" _~.1..000,000 800lL Y INJURY (pmrf!rson) L____ I , B D=:OUCTI8LE RETENTION WORKERS COMPENSATlON AND EMPLOYERS' LIABILITY I^' Y PROPRIETORfPi\RTNERiE'oXF.:CUTNE OFFICCR/MEMBER ExciliL7E::n Ilyes,describeunder SPECIAL PROVISIONS below OTHER TSF0001147540 8/3/2006 8/3/2007 l AUTO O~. E.o. ACCIDENT I $ : OTHER TH/IN __~2~r; : AUlD ONLY. ~i : EAcH OCCURREN~~ _~~ _"_____.___ I AGGR~G~E.... _ _ __ L$. . I !, ;------- -.---------r--- " --------...-l---~- " , T~~T~JI~~ _lOl;1-__,,_~__"__ _~~E~S:H ACCIDENT 1$____. ..1,000,000__ EL.OISEASE-EAEMPLOYE~$ 1,000,000 E.L DISEASE-POllCYLIMIT'-!$ 1,000,000 EACH OCCURRENCE $1,000,000 GENERAL AGGREGATE $1,000.000 REh~ENTION $10,000 I EXCESSJUMBRElLA LIABILITY -, O~~. 'R cU-f ~. - MADE f----J '-A.l) \...V\IMc, c ERRORS & OMISSIONS 7133296 3/30/2007 3!30/2QCa DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDeD BY ENDORSEMENT I SPECIAL PROVISIONS None . I CERTIFICATE HOLDER I "SA.'PLE" I L_-L CANCELLATION SHOULD ANY OF THE ABOVE DESCRI8CD POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, mE ISSUiNG INSURER WILL ENDEAVOR TO MAIL _~ DAYS WRITTEN ~:QT!CE TO ',!-!!:: C!::Rll!'!C.",T!:: !-10!...DER ~!f'.~.~=D TO THS. LEfT, BUT FI\!!.URS. T0 DO SO S!-!.h.L!... IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON TME INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REFRESE:NTA TIVE ~-- ~ @ACORD CORPORATION 1988 ACORD 25 (2001!O8) P'lq2 1 of 2 , I ". .! \ ">\' -,... ~ / "~~" FLOElDA DEPARTMENT OF STATE Division of Corporations ~:~ : I '1CJ . ,';) :.:; i!J~"-::-1 2C)'!:J L } .r7 December 31,2007 DEBRA D. SOUTH, CFO D^VlIICTDIf"' 1~1r> I f""'\ IIVlL- 1111.......,11\1\..1. 13430 NORTHWEST FWY, SUITE 900 HOUSTON, TX 77040 Qualification documents for PAYMETRIC, INC. were filed on December 31,2007 and assigned document number F07000006351. Please refer to this number whenever corresponding with this office. Your corporation is now qualified and authorized to transact business in Florida as of the file date. A corporation annual report/uniform business report will be due this office between January 1 and May 1 of the year following the calendar year of the file date. A Federal Employer identification (FEI) number will be required before tnis report can be filed. If you do not already have an FEI number, please apply NOW with the Internal Revenue by calling 1-800-829-4933 and requesting form SS-4. . i ~ , Please be aware if the corporate address changes, it is the responsibility of the corporation to notify this office. Should you have any questions regarding this matter, please contact this office at (850) 245-6933. Dale White Regulatory Specialist II New Filing Section Division of Corporations Letter Number: 107 A00072123 I P.O. BOX 6327 -Tallahassee., 1"lorida :32:311 a it~"n f'Jo. i GE4 i'v1;::r~~jl 24, 2009 -- - - _ ~__ L...... .,_, _. ASSUMPTION AGREEMENT This Assumption Agreement is made and entered into as of ,2009, by and between Business Applications Associates, Inc. ("BizAps") and Collier County, a political subdivision of the State of Florida ("County"). WHEREA.S, en January! 5, 2008, the Collier County Board of Count)' Commissioners entered into an Agreement with Paymetric, Inc. for XiBuy software to integrate purchasing card transactions into SAP (attached hereto as Exhibit A, and hereinafter referred to as the ~'Agreementl'); and WHEREAS, BizAps hereby represents to Collier County that by virtue of an asset purchase agreement BlzAps is the successor in interest to Paymetric, Inc. in relation to the Agreement; and WHEREAS, the panies wish to formalize BizAps' assumption of rights and obligations under the Agreement effective as of the date first above written NOW THEREFORE, IN CONSIDERA nON of the mutual promises in this Assumption Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, it is agreed as follows: 1. BizAps accepts and assumes all rights, duties, benefits, and obligations of the Contractor under the Agreement, including all existing and future obligations to pay and perform under the Agreement. ,.\iI' ~ ' 2. BizAps will promptJ'l1deliver to County evidence of insurance consistent with Section 4.6 ofthe Agreement. 3. Except as expressly stated, no further supplements to, or modifications of, the Agreement are contemplated by the parties. 4. Notice required under the Agreement to be sent to Contractor shall be directed to: CONTRACTOR: Business Applications Associates, Inc. Conor Mullaney, Sales Marketing Director 420 Lexington Avenue Suite 2515 New York NY 10170 ;~ , ~ ~. 5, The County hereby consents to BizAps' assumption of the Agret::menl. No waivers of performance or extensions of time to perform are granted or authorized. The County will treat BlzAps as the Contractor for.1I purposes under the Agreement. ,: :~ . ',~ ~'i/j3 it;":rn f'~O. LjE4 f\'i2il-ch 2.1. 2;]09 Q':l"'r'I '1') ,-,f ')7 :"''''''''''' IN WITNESS WHEREOF, the undersigned have executed and delivered this Assumption Agreement effective as of the date first above written. COLLIER COUNTY: ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: Deputy Clerk DONNA FIALA, CHAIRMAN BUSINESS APPLICATIONS ASSOCIATES, INC.: plM- Attest: - Corporate Secretary By ~ JvJ1~:;, Conor Mullaney, Sales Mklg, Director Date: ~/J() (Vrl Date: 4U'/L'( I @proVed as to fonn and legal sufficiency: #B' Jeffrey A. Klatzkow County Attorney 2 " Ibm ~"Jo" 1 SE4 r'k3iCh 24, ;~009 P3Je 24 of 27 ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (thi, "Agreement") is made and enlered into on December 23, 2008 (the "Closing Date"), by and bel ween PA YMETRIC, INC., a Tcx~s corporation, (the "Assign",,"), and BUSINESS APPUC."TIONS ASSOCIATES INC., a Delaware corporation (the "Assignee"), The Assignor and Assignee rnay be referred 10 herein individuaJJy as a "Pal't)''' and colleclively as the "Pa"ties'" RECITALS WHEREAS, Assignor anJ Assignee have cntered into an Assel ['!lrellUsc Agreement erfeGli"e as of December 23, 200g (the "Assd Purchase AgreemenC), LInder which Assignor h;.:~."; agreed 10 set I., transfer. convey, dc.liver and assign to Assignee: and Assignee hilS agreed LO acquire and aSSlIlTlC from Assig.nnr. certain of Assignor';.; right, lillc and imcrCSl in and tel lhe Purchase in Dccordancc witb the provisions of 111(' ASSCl Purchase Agn.:;,crllcnt; and 'VHEREAS, As,..;ignor intends 10 assign all or its rights and illlCrcsts in those certain contracts listed on SchcduJc 1 of lhis Agreement and attached hereto (the: "Cust'Olne.r Contracts"): NOW THEREFORE, in consideration of the pmmiscs, m111",,1 covel1ants, and agreements conlaincd herejn and for other good and valuabk considenttion. the rectipt and SUCfLcicncy of v.;hich arc hereby ackncnvkdged, the Panics herehy agree as follows: AGREEMENT 1. Definitions, Capiwlized terms used und nol otherwise defined herein lhat :110 defined in the Asset Purchase Agreement shall hJve tbe mcanlJ1gs given such tcrrllS in the. Asset Pu:"cha:-.c Agreement, 2. Assil!nmenl and Assulllption of Customer Contracts, As of the dale hereof. As;.;ignor hereby distributes. assigns. transfers, conveys and delivers to Assignee, and ih sllccessors and assigns foreverl a]] of As~ignor's rights: tiLle and inle-resl in and LO the Customer Contfdc.ls. and Assignee., for its(:J{ and on hehalf or ils successors ilnd assigns, herehy aSsllmes and agrcts to rerfnnn, payor discl.wrg(\ to the extent nol ~herelOfor(' performed, paid 01' discharged. all of the obligations und liahilities of Assignor under ,md in connection with the Customer (\mlr:.lCI.S, exc(',pt 1'01' ohJigations or Ji;itiilllics rcl<lled 10 any failure or hreach of rhe Assignor or any third party on hcJl,df of the Assignor 10 c.omply with the (~nns of J Customer Contract. v. herein such f::.,i]urt or hreJch of stlc.h CllsloHlcr COIJ1rat.t has OCCUlTed or is likely to occur due to Ihe action or inJctIon of the Assignor or any thild pHt)' on bclM]f of (he AssignoJ' 011 ",r prior 10 tbe date hereof. J. Survivat Thi:'1 Agn::crneiJi and aii or (h~ PH1VjSJOJJ.:-:, hereof" shaJi be binding upon ,Jnd iJlLlrC 10 the br;nclit of (he pi1rtics dnd (heir respeclive SUCcessOrs and assigns. 4. Thjrd~Party Bcneticiadcs. This Agreelllc,nl Sh;.llJ IJot confl:r any rights upon any Person not a pany hereto. "i(jI,,!?Tl..'. .1s.\"igll!!;Cnl (;"Iul.A.\"....lIl11plioll /lgi"(,(iII('ill P(I,i;~" I :~8r:l ~",JO. 1SE4 r',,'larch 24. 2009 ?3;)2 25 Jf 27 5, Furtlwr /\ssurances. Assignor :1I1d /\ssigncc shall execute dnd deliver from time 10 lime hereaflcr, upon wrilten request, al] sueh fUrlher document, Jnd instrumem, and shall do and perform ~.dJ slIch ,.lets as may he rCHsolwbJy necessary 10 give full effect to the intent of this AgreemCtll. (l, Bindint! Effect. Thi:s Agreement ~;haIJ be binding upon, inure to the benefit of, and he cnf"orcc.;1bJc hy and againsl the respective successors ~ll1d permjtted assigns. of the Pdrtics. 7. Govel'nine Law. This :\grcemcnl sh:iJI be construed umkr the lavl,'s uj' lhc Stat;.:: of Texas, without giving Ci.y~Cl to confljcts~of-l<l\vs principles thereof. For any l<.lw.<;uil arising under ihis Agrccrncllt, venue shull be proper only in Harris CULlnty, Texas. 8. Sevel'ahilitv. in the event that any term of" ihis Agreement is held 10 be' invalId or unenforceable. ,.:;uch term or lcnns ~h~dl he null and void and shull be ;-;cvered from this Afrecmcl1l. All rCll"laining lcrms of 1hi,-: AgrCCJ1IC.rll shall rcrr:.ain in full (o!"t:(::. 9. Count.erparts and FacsiIl1ih.~ Sieuatures. This Agrc.cmcnl lllay be cxeCLllcd ~Il any llunlber oj" l'OHlltCJ'p(JIts~ each of which when so cxc.ctlicd shall he deemed to he JrJ onginaJ and, all or \.vbich laken logclhcr shalj consli[U[(.:: c:ne anJ the .same. Agreement. In 1'111.': evenl thar any signult::-c i~ dcJivcn.:d hy j';j(,:simiJc 11':msnllssion or c]eclrollic lnmsmission using a portable c!ocumenL fnrn:at. sllch signature shall create a v~~lid binding obligation of the. p;;n:y executing (or on \\.'hClse behalf sllch signature I:'; executed) the ~;~'(Ji1C' \vi!h Lhe: ~"J1ne force and effect as if ;.;uch bcsiJ1)jJc or electronic signature wen:- lhc onginaJ thci'cnf. [SIGNATl'RES 0)\ THE FOLLOWING PAGE] -'ti-'l..j!.\77,:\ .'1.\.\'ignmem ((lid AI.',!Ui!ji/i:}!,' A.t:i{'(l/.t('J;,r r.>",?(. ? '[sm ~~o. 1 'SE4 fviBr::h 24. 2009 Page 26 of 27 IN WITNESS '''HEREOF, the parties hereto have executed this Agreemenl as of the day and year firs! ahove written. ASSIGNOR: PA YMETRIC, INC. a Texas corporation By: AL~dL)l /2{~ _____ Name: Dehra South ~~ Title: CFa U ASSIGNEE: BUSINESS APPLICATIONS ASSOCIATES INC. ;;} DeLaware c:orporalion BY~ J)c.<---02-_______ Name: Anti Oavda Title: Board memher of" Business Applications Associatcs 1nc. and CEO of" \VNS Technology Scrviccs 7lll-i i :177_~ Sig,//{Ifl/I'I' PII.l;{' 10 A\sif,:I/J/Il'J.'1 (flld A\.I'II/lljlo'i(III /\.>,;/'('CIII(I/I SCHEDULE] it8m 1\10. 'j 6E4 Harch 24. 2009 ?aga 27 of 27 CVSTOMEU COI\TRACTS fv1isc(.;llanl;!OUS Technical Services Agreement "p-aym. elrlc"M"a"sler' Soflware r'-pa}~Yle(-rJC:Jnc Lb~nS0 Agreement (SLf.\1 and Selvlces f.I.gl"oemGnt (SA) P21'j/liletnc il/12.ster SOfl~~a~'e-----"".1 Pa metnc, Inc', ---------~ license f.\9rl:~cmenl (SAL) and ~""rolessional Secvices Agreement fPSA) ~~=~T:~CDU~~ Nam~---- I , i L-_ I 2 I . I I I i i J' , . i : , , i3--~~-------- i 4-~--- I I ! I ~ ----1 I I c " 6 Collier Couflty i 7 , I I L_ 7(}l'JI.\!,..) Contract Name --Masie';'Card Smaf~linkltt., Sojtware Licr:msc AgnZiemoJit /l.m8ndrrl€r111n to Software License ,A.-;Jreement (St_A) Dated December .23, 2004 Payrnetric r~f{8slel' SoftW31'8 License Agreement (SLA) and Serv\cc,;'$ Agrf!emem (SA) Proll?ssionai Servic{~ Con:l'2tct- P8yrnel1'1c MasterCard Srnartll1KTf.1 Sclt~"/ar~~ Licens-? .Agreement I - ~_. .------.. j Parties to Agreement Effective Date 23 D;;C 2004 11 r eb 2008 15 Aug 2008 I I 29 Aug 2008/ , , . ._.__...-______1 112 Sep 2007 i --.--1.-- 14 Dec 2006 , 1 Dee 2006 . 22 D.e~;2604~ Paymetric, lnc. CoBier' County Buard 01 Couniy COfTlrrtissionefs 31 ,Jan 2008 Pa~'melric, lnc 'i)'a-Yf:;;efricM~st0r Software Lic8r1se Agl'(~err;e11 (Sl.A) a!~d Services ll,gl'CClT18nt (SA) Software License Agreement Letter ,ll"weemenl 30 r'",1ar 2007 --- P8vnr;etrlc-, .illC. I .._--~....+---~ i 0 Sl'lp 2007 I ! Paymetric, Inc. : Deioitle Services LP j --~ I Paymstr!c, lnc. , 23 Aug 2007 15 Feb 2005 14 Nov 2008 L-___.__ Srhtdufc l ,II) A }-'-'I<~I.'mr-/!i (!!il-/ r\'.\.'IfI,puon Agrn'melll