Backup Documents 04/27/2010 Item #16D121601
MEMORANDUM
Date: May 27, 2010
To: Lyn Wood, Purchasing
Contract Specialist
From: Teresa Polaski, Deputy Clerk
Minutes & Records Department
Re: Contract #10 -5486: "Homeless Management Information
System"
Contractors: Data Systems International Corporation
Enclosed is a copy for the contract change order, referenced above
(Agenda Item #16D12), approved by the Board of County
Commissioners on Tuesday, April 27, 2010.
An original contract will be kept in the Minutes and Records
Department as part of the Board's Official Records.
If you should have any questions, please contact me at 252 -8411.
Thank you.
Enclosure (1)
ITEM NO.:
FILE N .: 10 -PRC- 01605'
ROUTED TO•,
DO NOT WRITE ABOVE THIS LINE
REQUEST FOR LEGAL SERVICES
Date: May 20, 2010
To: Scott Teach
Deputy County Attorney
From: Lyn M. Wood, C.P.M., Contract Specialist
Purchasing Department, Extension 2667 1k
DATIE RESEIV16 L 12
12
VIA
(r
\,� LA-t SIZIP
Re: Contract: 10 -5486 - "Homeless Management Information System"
Contractor: Data Systems International Corporation
BACKGROUND OF REQUEST:
This contract was approved by the BCC on April 27, 2010, Agenda
Item 16.D.12
This item has been previously submitted. You requested
original signatures on the Agreement by Data Systems
International Corporation.
ACTION REQUESTED:
Contract review and approval.
OTHER COMMENTS:
Please forward to BCC for signature after approval. If there are any
questions concerning the document, please contact me. Purchasing would
appreciate notification when the documents exit your office. Thank you.
y �jm
5 f1tP/1a
MEMORANDUM 16012
TO: Ray Carter
Risk Management Department
FROM: Lyn M. Wood, C.P.M., Contract Specialist
Purchasing Department
DATE: May 20, 2010
RE: Review Insurance for Contract: 10 -5486 - "Homeless
Management Information System"
Contractor: Data Systems Internation Corporation
This Contract was approved by the BCC on April 27, 2010, Agenda Item
16.D.12.
Please review the Insurance requirements for the above referenced contract
which is a software subscription. If everything is acceptable, please forward to
the County Attorney for further review and approval. Also, will you advise me
when it has been forwarded. Thank you. If you have any questions, please
contact me at extension 2667.
DATE W-MIVM
MAY 21 2010
RaymondCarter 16D 12
From:
RaymondCarter
Sent:
Tuesday, April 27, 2010 2:07 PM
To:
LynWood
Subject:
RE: ClientTrack Subscription Agreement
Thank you Lyn, no I do not see the need for insurance.
Ray
From: LynWood
Sent: Tuesday, April 27, 2010 2:05 PM
To: RaymondCarter
Subject: RE: ClientTrack Subscription Agreement
Ray, This is a software system used by local non - profits to coordinate client services and eliminate duplication of
services. Housing and Human Services is required to have and use this software or they will not receiving funding for
our Continuum of Care program. Colleen Greene has reviewed the agreement and signed off prior to being put in
Novus. Do we need to require insurance from DSI? Lyn
From: RaymondCarter
Sent: Tuesday, April 27, 2010 1:49 PM
To: LynWood
Subject: FW: ClientTrack Subscription Agreement
Lyn, I am unclear from reading the agreement what type of information /service this vendor has access to or will be
"passed" on the internet on apparently their server. That said, the Limitation of Liability clause in their agreement may
or may not have implications if data is breached in any way.
Ray
Limitation of Liability:
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, DSI SHALL IN NO EVENT BE LIABLE WITH
RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY), INDEMNITY OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (h ANY INDIRECT, SPECIAL,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND
WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (it) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (iii)
COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
From: LynWood
Sent: Tuesday, April 27, 2010 12:58 PM
To: RaymondCarter
Subject: ClientTrack Subscription Agreement
Ray, This agreement is for the use of software by the County. There will be no one from Utah visiting CdFlA1pL2
don't think we need insurance but would like your affirmation of that fact. Thanks. Lyn
<< File: SaaS Agreement CollierCountyBoardofCountyCommissioners .pdf >>
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Foreign Profit Corporation
DATA SYSTEMS INTERNATIONAL CORPORATION
Filina Information
Document Number
F04000004421
FEI/EIN Number
870412185
Date Filed
07/30/2004
State
UT
Status
ACTIVE
Last Event
CANCEL ADM DISS /REV
Event Date Filed 10/18/2005
Event Effective Date NONE
Principal Address
545 EAST 4500 SOUTH
SUITE E260
SALT LAKE CITY UT 84107
Changed 08/25/2006
Mailing Address
545 EAST 4500 SOUTH
SUITE E260
SALT LAKE CITY UT 84107
Changed 08/25/2006
Registered Aaent Name & Address
FLORIDA RESEARCH & FILING SERVICES, INC.
1211 CIRCLE DR.
TALLAHASSEE FL 32301 US
Officer /Director Detail
Name & Address
Title C
CHAMPAGNE, CARL
4107 BRIDLEWOOD DRIVE
BOUNTIFUL UT 84010
Title COO
BRUMMETT, JAY
548 JULEP CIRCLE
MURRAY UT 84107
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02/22 /2008 --
2007 03/27/2007
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ANNUAL REPORT
2009 03/19/2009
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I * 1 ClientTrack 16D12
DATA SYSTEMS INTERNATIONAL
DELEGATION OF AUTHORITY
The undersigned, as Chairman and Chief Executive Officer of Data Systems International, a
Utah corporation, pursuant to the authority vested in him by a Resolution of the Board of
Directors of the Company adopted on May 20, 2010, hereby authorizes the following
individuals,
Jon P Hammarstrom President and Chief Operating Officer
Terry L. Johnson Chief Financial Officer, Secretary
on behalf of the Company, to execute and deliver any and all contracts for the performance of
work, the sale of software licenses, the furnishing of services and any other instruments in
connection with the Company providing software and implementation services to:
Collier County
3301 Tamiami Trail East
Naples FL 34112
The authority granted herein shall remain in full force and effect until amended or revoked by the
undersigned.
,l
Executed at Salt Lake City, Utah, this day of Z 2010.
Car ton J. Champagne
Chairman and Chief Execu ' fficer
Attest.
Sec
Data Systems International - ClientTrackTM
545 East 4500 South Building E Suite 260, Salt Lake City, UT 84107
Tel +1888 449 6328 1 Tel +1 801 451 2885 1 Fax +1801.263.1958
http: //ww .clienttrack.com
16D 12
CLIENTTRACKTM
Subscription Agreement
Organization Name: Collier County Board of County Commissioners
Initial Number of Active User Seats: 75__ Initial Number of Agencies: _ 8
ri
THIS AGREEMENT, made this oZ7 day of _ t t , 20 LO 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 84107 and
Collier County Board of County Commissioners ( "CUSTOMER "), with a principal place of business at 3301 Tamiami Trail East
Naples, FL 34112; and set forth the terms and conditions of a ClientTrackTM Software as a Service (SaaS) subscription.
Definitions:
Active User: A named end -user of a ClientTrackTM system that has
current login privileges. An Active User account (seat) 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 ClientTrackTM 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
stated 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 contained in this Agreement for
subsequent additional one (1) year periods. The Customer shall give
DST written notice of the Customer's intention to extend the Agreement
term not less than thirty (30) days prior to the end of the Agreement
term then in effect.
Grant of SaaS Subscription and Limited Use Software License:
CUSTOMER 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 use the
ClientTrack.NetTM software provided CUSTOMER complies with all
terms and conditions of this agreement; including but not limited to, the
Software as a Service (SaaS) Subscription Terms & Conditions a part of
this Agreement as Exhibit A.
DSI reserves the right to modify the Software as a Service (SaaS)
Subscription Terms & Conditions terms and conditions of this
Agreement or its policies relating to the Service at any time, effective
upon written notice as provided in this Agreement; any continued use of
the Service after any such changes shall constitute your consent to such
changes.
This license shall immediately terminate and be null and void upon
termination or upon Customer's violation of this Agreement.
Price and Payment 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 government taxes (such as sales, use and
similar taxes), and similar charges, however designated or levied.
DST's pricing does not include charges. Payment will be made upon
receipt of a proper invoice and in compliance with Section 218.70, Fla.
Stars., otherwise known as the "Local Government Prompt 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 for
deliverables and services specifically stated in this agreement or
otherwise approved in writing in advance by the Customer.
The Customer shall pay DSI SaaS setup and subscription fees as
specified in SaaS Pricing 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 SaaS 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 will operate
substantially in accordance with its accompanying documentation for
term of this Agreement. This warranty is void if failure of the software
has resulted from accident, abuse, or misapplication.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE
IS PROVIDED "AS IS, "; DATA SYSTEMS INTERNATIONAL
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRTNGEMENT 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 THIS AGREEMENT
OR OTHERWISE, DSI SHALL IN NO EVENT BE LIABLE WITH
RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER 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
WHETHER OR NOT ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES; OR (ii) DAMAGES FOR
LOST PROFITS OR LOST DATA; OR (iii) COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR
SERVICES.
Non - Payment and Suspension:
In addition to any other rights granted to DST herein, DST reserves the
right to suspend or terminate this Agreement and Customer's access to
the Service if Customer's account becomes delinquent (falls into
arrears). Delinquent invoices (aeoraints in ai*effs) ate subjest to interest
._d ti.M laMr, h ehe _-:S 109S, !US H T e.,..e....e,. ,.r,.,. 11 e,,:OR, You
will continue to be charged for Active Users during any period of
suspension. If Customer or DST initiates termination of this Agreement,
Customer will be obligated to pay the balance due on Customer's
account.
DST reserves the right to impose a reconnection fee in the event you are
suspended and thereafter request access to the Service. You agree and
acknowledge that DST has no obligation to retain Customer Data or
Configuration AND Customer Data and Configuration may be
irretrievably deleted if Customer's account is 90 days or more
delinquent.
Termination
Either party may terminate this Agreement or reduce the number of
licenses, effective only upon the expiration of the then current term, by
notifying the other party in writing at least thirty (30) business days
prior to the date of the invoice for the following term.
In the event this Agreement is terminated (other than by reason of your
breach), DST will make available to Customer a file of the Customer
Data within 30 days of termination if Customer so requests at the time
of termination. Customer agrees and acknowledges that DST has no
obligation to retain the Customer Data, and may delete such Customer
Data, more than 30 days after termination.
Any breach of your payment obligations or unauthorized use of the
Service will be deemed a material breach of this Agreement. DST in its
sole discretion may terminate your password, account or use of the
Service if you breach or otherwise fail to comply with this Agreement.
In any dispute arising out of DST's duties and obligations under this
Agreement, DST and Customer shall take all reasonable steps to resolve
such disputes prior to the initiation of formal action. Such steps shall
16D 12
include, but are not limited to, clear notification by either party to the
other of any perceived failure to perform under this agreement and a
reasonable time period of not less than Thirty (30) days, for cure. In the
event a mutually acceptable resolution cannot be reached, either party
may terminate this Agreement by providing Thirty (30) days written
notice to the other at the party's last known address.
In the event that any dispute shall require arbitration or other legal
proceedings between the parties regarding this Agreement each party
agrees to bear its own cost.
General
This Agreement and the Parties here to agree and consent that this
Agreement shall be governed by the internal laws of the State of Utah,
without giving effect to principles of conflict of laws and the exclusive
jurisdiction and venue of the state courts sitting in Salt Lake County,
Utah or the federal courts in the District of Utah to resolve any disputes
arising under this Agreement. In each case this soliware license and
Agreement shall be construed and enforced without regard to the United
Nations Convention on the International Sale of Goods.
This Agreement contains the complete agreement between the parties
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous agreements or understandings, whether oral or
written. The failure or delay of DST to exercise any of its rights under
this Agreement or upon any breach of this Agreement shall not be
deemed a waiver of those rights or of the breach. No DST dealer, agent
or employee is authorized to make any amendment to this Agreement
unless such amendment is in writing and signed by a duly authorized
representative of DST.
If any provision of this Agreement shall be held by a court of competent
jurisdiction to be contrary to law that provision will be enforced to the
maximum extent permissible and the remaining provisions of this
Agreement will remain in Poll force and effect.
DST, ClientTrackNetTm and other trademarks contained in the Software
are trademarks or registered trademarks of Data Systems International
in the United States and/or other countries. Affiliate User may not
remove or alter any trademark, trade names, product names, logo,
copyright or other proprietary notices, legends, symbols or labels in the
Software. This Agreement does not authorize you to use DST or its
licensors' names or any of their respective trademarks.
IN WITNESS WHEREOF, the authorized representatives of the parties have executed this agreement on the day and year written below:
Executed this day of , 20��! .
DST's Signature'..
Print Nam /e: Carp C1h/ampagnP"' •r-•R—
L--k ' C9'jlYs�
Tide: Chief Executive Officer
top" IQ I SutTicieuCy
d� �} ffiIt Count) Attomy
Collier county � d of County Canmissioners
Customer Signature:
Print Name: Fred W. Coyle
,
Item # LL 1 1 Z
Title: .fyrman', `t
Agenda
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Date �l
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16012
Exhibit A
Software as a Service (SaaS) Subscription Terms & Conditions
This Software as a Service Agreement ( "Agreement ") is made as of the Order Date of the service, by and between DanSystems International Incorporated, a Utah
Corporation, ( "DSI "), and the ordering party ( "CUSTOMER ").
Services
DST will 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
ClientTrackr- software application ( "ClientTrack ")
delivered as Software as a Service over the Internet.
DST alone (and its licensors, where applicable) own
all right, title and interest, including all related
Intellectual Property Rights, in and to ClientTmcV-
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 ClientTrackr- or the
Intellectual Property Rights owned by DST.
CUSTOMER will have access to the Services for the
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 DSI. Stich use and access will be
continuous on a 24 hour basis except for
interruptions by reason of maintenance or downtime
beyond Licensor's reasonable control.
All standard features and functions ofClienlTrackT.
Core - Package will be available to Customer as part
of the monthly user fees.
DS will 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 storage fee at
DST'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
Gigabyte must be perforated by Licensor's
professional staff with Customer being charged for
associated time and material.
DST will maintain ClientTrack during the term of
this Agreement In the event ClientTrack has been
modified or customized, and DST personnel
performed those modifications, DST 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.
DST reserves the right to modify any Service from
time to time; provided that Customer may terminate
a Service without penalty in the 30 days following
notice from DST of the implementation of any
change to a Service that has a material adverse affect
on the functionality of that Service, if DST fails to
correct the adverse effect in the 30 days following
Customer's written notification to DST of such effect
DST, its affiliates or subcontractors may perform
some or all of DSFs duties and /or obligations
hereunder.
CUSTOMER Responsibilities
CUSTOMER must obtain from DST a valid SaaS
seat 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
ClientTrack to be used by or for the benefit of
anyone other than CUSTOMER.
CUSTOMER will not have the right in 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, decompi To or create derivative works based
upon ClientTrack. Customer agrees to use
ClientTrack in a manner that complies with all
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; (it)
modify or make derivative works based upon the
Service or the Content; (iii) create Internet "links" to
the Service or "frame" or "minor" any Content 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
ideas, features, functions or graphics o'the Service.
CUSTOMER shall not: (i) send spam or otherwise
duplicative or unsolicited messages in violation of
applicable laws; 00 send or store infringing,
obscene, threatening, libelous, or otherwise unlawful
or nations 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 with 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 refuted systems or networks.
CUSTOMER can add users at will; DST will monitor
the CUSTOMER's database to verify number of
users. CUSTOMER agrees to pay a onetime user
setup fees and ongoing software subscription fees for
each user added.
Should the C'.USTOMER 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 authorized users (Pi) 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 be responsible to provide, install,
and maintain all workstations equipment and
operating system and other software to establish 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. DST recommends
a broadband Internet connection typically this is a
minimum connection method /speed of a DSL
Internet line. DST does not recommend using a dial -
up modem as an Internet connectivity method in the
use of ClientTrack.
SERVICES MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER
PROBLEMS INHERENT IN THE USE OF THE
INTERNET AND ELECTRONIC
COMM UNTCATIONS. DST IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY
FAILURES, OR OTHER DAMAGE RESULTING
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 under
CUSTOMER'S account and passwords.
Data Ownership; Confidentiality; Loss
All data created or transmitted by CUSTOMER and
stored on DST servers as pan of the Services shall at
all times be owned by CUSTOMER.
All data pertaining to CUSTOMER disclosed to DST
in connection with the pert'ormance of this
Agreement and residing on DST's application server
will be held as confidential by DST and will not,
without the prior written consent of CUSTOMER, be
disclosed or be used for any purposes other than the
performance of this Agreement. DST will safeguard
the confidentiality of such data using the same
standard of care that DST uses for its own
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 DST, generally known or
available; (ii) is known by DST at the time of
receiving such information as evidenced by its
written records; (iii) is hereafter famished to DST by
a third party, as a matter of right and without
restriction on disclosure; (iv) is independently
developed by DST as evidenced by its written and
dated records and without any breach of this
Agreement; or (v) is the subject of written
permission to disclose provided by CUSTOMER.
Further notwithstanding the forgoing, disclosure of
data will not be precluded ifsuch 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
necessary 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 DST'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 DST's application server using the same standard
of care that CUSTOMER uses for its own
confidential materials.
DST will perform a regular backup of ClientTrack
data on its application servers, using the sonic
standard of care that DST uses for its own data, but
DST shall in no event be liable to Customer or any
third party for loss, destruction or corruption of
CUSTOMER 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 CUSTOMER Data
and that the fees payable under this Agreement have
been calculated on the basis that DST shall exclude
liability as provided in this Section.
DST 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 Disaster
Recovery / Business Continuity requirements.
Service Levels
Except as otherwise provided herein, DST will use
commercially reasonable efforts to make the
Services available in accordance with prevailing
Software as a Service / Application Service Provider
industry standards, taking into account the
CUSTOMER's workstations and the speed of their
Internet connection to access and use the Services.
DST 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 Customer /DSI contract
documents and current ChentTrack 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 alter written notice to DST 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, representatives, or invitees, other than normal
use of the Services
Technical Support.
CUSTOMER acknowledges that, except as expressly
provided in this Section, all support for the
ClientTrack Software shall be provided as defined by
DST pursuant to current Customer /DSI contract
documents and prevailing DST business practice.
DST shall provide support to CUSTOMER only with
respect to access and availability of the ClientTrack
SORWare maintained by DST pursuant to this
Agreement ("DST Support"), DST Support shall be
available via telephone and email during the hours of
S:(10 a.m. to 5:00 p.m.. Mountain Time, Monday
through Friday, excluding federal holidays.
Support after the provided hours, may be provided
by DST 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 DST's standard technical support
may be billable to the CUSTOMER as professional
services at DSfs prevailing professional services
time and material rates; however, DST will not
perform nor bill for such services without prior
approval in writing by the CUSTOMER.
Term and Termination
This Agreement commences (in the first substantial
use of the ClientTrack system by the CUSTOMER
shall continue until the CUSTOMER formally
terminates this agreement under the terms herein or
as provided in the current Customer /DSf contract.
16012
Disclaimer of Warranties, Limitation of Damages
EXCEPT AS EXPRESSLY SET FORTH HEREIN
OR AS PROVIDED IN THE CURRENT
CUSTOMER/DSI CONTRACT,
DST MAKES NO WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, FOR THE
SERVICES IT IS PROVIDING.
DST exercises no control over and accepts no
responsibility for the content of the information
passing through the Services. DST specifically denies
any responsibility for the 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 THE POSSIBILITY OF
SUCH DAMAGES, IN NO EVENT SHALL
EITHER PARTY OR ANY OF DSFS 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 USES
SUPPLIERS OR LICENSORS BE LIABLE FOR
DIRECT DAMAGES TO THE EXTENT
PERMITTED BY APPLICABLE LAW.
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 the
Services and that the fees payable under this
Agreement have been calculated on the basis that
DST shall exclude liability as provided in this
Section.
Force Majeure
DST shall not be deemed 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 suppliers, equipment failures,
transportation difficulties, malicious or criminal acts
of third parties, or other occurrences which are
beyond DST's reasonable control
16D 12
Exhibit B
Pricing
Exhibit B -- SaaS Pricing Table
Description
Setup Fees These amounts are billed and
payable as additional users or agencies are added Quantity Rate
One Time per User Setup Fee 0 150.00 NA
One Time per Agency Setup Fee 0 150.00 NA
Total Setun Fees NA
amounts are billed and payable quarterly in
Monthly
Each Quarter
Annual
advance
Quantity
Rate"
Billing —YRI
Cost
Monthly SaaS User Seat Subscription
75
$ 38.50
S 8,662.50
$ 34,650
Exhibit B — Professional Services Pricing
Table
Description
These amounts are billed and payable as
invoiced.
Quantity
Rate
Hourly Rate -Time and Materials
I
$ 150.00
After Hours Rate
$ 300.00