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HomeMy WebLinkAboutJetbar Software/Fire/11,000/Master Agreement Je Bar Software Services Fire Department-2012 Appropriation#102-632.02 ; P.O.#24397 Contract Not To Exceed$11,000.00 AGREEMENT FOR PURCHASE OF GOODS AND SERVICES THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement") is hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("City"), and Jeff Bar Software Services, an entity duly authorized to do business in the State of Indiana ("Vendor"). TERMS AND CONDITIONS 1. ACKNOWLEDGMENT, ACCEPTANCE: Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the Agreement's terms and conditions. 2. PERFORMANCE: City agrees to purchase the goods and/or services (the "Goods and Services") from Vendor using City budget appropriation number 102-632.02 funds. Vendor agrees to provide the Goods and Services and to otherwise perform the requirements of this Agreement by applying at all times the highest technical and industry standards. 3. PRICE AND PAYMENT TERMS: 3.1 Vendor estimates that the total price for the Goads and Services to be provided to City hereunder shall be no more than Eleven Thousand Dollars ($11,000.00) (the "Estimate"). Vendor shall submit an invoice to City no more than once every thirty (30) days detailing the Goods and Services provided to City within such time period. City shall pay Vendor for such Goods and Services within sixty (60) days after the date of City's receipt of Vendor's invoice detailing same, so long as and to the extent such Goods and Services are not disputed, are in conformance with the specifications set forth in Exhibit A, are submitted on an invoice that contains the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Vendor by City and/or by Vendor to and accepted by City, all of which documents are incorporated herein by reference, and that the Goods and Services will be delivered in a timely, good and workmanlike manner and free from defect. Vendor acknowledges that it knows of City's intended use and expressly warrants that the Goods and Services provided to City pursuant to this Agreement have been selected by Vendor based upon City's stated use and are fit and sufficient for their particular purpose. F.Ynnapgf V)fo Das-AdoufLLA WW,,edVluZAn5&Goads SsaVne Vm,VUINFFBAR Sufn,c Sn i„a•0.■h&ens,o do,10/W1012 233 FM; Jefilar Software Services Fire Department-2012 Appropriation#102-632.02 ; P.O. #24397 Contract Not To Exceed 511,000.00 5. TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same ("Effective Date"), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. 6. DISCLOSURE AND WARNINGS: If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods and Services provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to furnish to City sufficient written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is a part of the Goods and Services. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and/or in equity. 9. INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workers' compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor's provision of Goods and Services pursuant to or under this Agreement or Vendor's use of City property. Btsrmymphlher Dom.AAUwllA% h,aSSrvlSvv A&mai Svu0Purc RAl20l7MEMIAR Sollnsc Sauna-(-With 6251.1Cn he Id31P2111E 233 PM) JefBar Software Services Fire Department-2012 Appropriation#102-632.02 ; P.O. #24397 Contract Not To Exceed 511,000.00 Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor's agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. 10. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to Vendor's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 11. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 12. E-VERIFY Pursuant to I.C. § 22-5-1.7 et seq., Company shall enroll in and verify the work eligibility status of all of its newly-hired employees using the E-Verify program, if it has not already done so as of the date of this Agreement. Company is further required to execute the attached Affidavit, herein referred to as Exhibit D, which is an Affidavit affirming that: (i) Company is enrolled and is participating in the E-verify program, and (H) Company does not knowingly employ any unauthorized aliens. This Addendum incorporates by reference, and in its entirety, attached Exhibit D. In support of the Affidavit, Company shall provide the City with documentation that it has enrolled and is participating in the E-Verify program.This Agreement shall not take effect until said Affidavit is signed by Company and delivered to the City's authorized representative. Should Company subcontract for the performance of any work under this Addendum, the Company shall require any subcontractor(s) to certify by affidavit that: (i) the subcontractor does not knowingly employ or contract with any unauthorized aliens, and (ii) the subcontractor has enrolled and is participating in the E-verify program. Company shall maintain a copy of such certification for the duration of the term of any subcontract. Company shall also deliver a copy of the certification to the City within seven (7) days of the effective date of the subcontract. If Company, or any subcontractor of Company, knowingly employs or contracts with any unauthorized aliens, or retains an employee or contract with a person that the Company or subcontractor subsequently learns is an unauthorized alien, Company shall terminate the employment of or contract with the unauthorized alien within thirty (30) days ("Cure Period"). Should the Company or any subcontractor of Company fail to cure within the Cure Period, the City has the right to terminate this Agreement without consequence. The E-Verify requirements of this Agreement will not apply should the E-Verify program cease to exist. 1Wnrn,q.,IWSU W,..AE,,uiLLnV%bwwlMolS.u.kCmtlr.S,4WVU 0g1\3R,2VEtBAR 5,Swnc S ,..[1m,b 5unm.bcl0.'1M0,2221 PM1 JcfBar Software Services Fire Department-2012 Appropriation#102-632.02 ; P.O. #24397 Contract Not To Exceed$11,000.00 13. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 14. NON-ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without City's prior written consent. 15. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement. 16, GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 17. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 18. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to City: City of Carmel AND Douglas C. Haney, City Attorney One Civic Square Department of Law Carmel, Indiana 46032 One Civic Square ATTENTION: Carmel, Indiana 46032 If to Vendor: JefBar Software Services 81 Blue Ravine Road, Suite 230 Folsom, CA 95630 Telephone: 800-495-2772 E-Mail: barry.christian @jefbar.com ATTENTION: Barry Christian, President Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. U.unrygvlWsv Oµo A.mz\L&`Mapxv4Pn,PSUn&C.O,,%,Sw, eflq" _ULPSAR So waa SVNm-OoMS&.bmuabxrl0'3W1rn1 U3 PM] JefBar Software Services Fire Department-2012 Appropriation#102-632.02 ; P.O.#24397 Contract Not To Exceed$11,000.00 19. TERMINATION: 19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount of conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 20. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 21. ADDITIONAL GOODS AND SERVICES Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods and services to City. When City desires additional goods and services from Vendor, the City shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods and services, shall such goods and services be provided by Vendor to City. A copy of the City's authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by City. 22. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2012 and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise agreed by the parties hereto. 23. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 24. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. Nanapp.ILL. Da.Ad,,s LAWW..vNm,t%a,&ca.a Slo'FiieO kVV,2VC'ilAR SSIWMt S(r,1MU-G,W,4I. c..,acmc:im3rcmI2 z:n MU Jefaar Software Services Fire Department-2012 Appropriation#102-632.02 ; P.O. #24397 Contract Not To Exceed$11,000.00 25. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 26. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 27. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA JEFBAR SOFTWARE SERVICES by and through its Board of Public Works and Safety 4nardding r Authorize d Signature TJVer defTi-‘24./ Printed Name Mary Anti Burke, emir Date: / J — — o2a217 Title A. Lori S. Wafso em er FID/TIN: )7 -/`7"' /'3/ Date: It/ &.1 q I a_ Last Four of SSN if Sole Proprietor: ATTEST: Date: /3 NoV /.2 Diana Cordray, IAM , lerk-Treasurer Date: ( l ;21i tY \V.,i.,c.I1Vm f1.4e-AdnuLLANW'.:u n1U'mlSn,. Good.Sru'Rir[Dip,dJUI2UCYUAR S.afwuc Sun,t-Good,b,6mw'n,CI&!QI2W25':i YMI ter,, �k `r1 '7 sO.TW*xt st•ons MASTER CUSTOMER AGREEMENT This Master Customer Agreement dated as of 1 Nov 2012,is made and entered into by and between JefBar Software Services, ("JSS"), and between Carmel Fire Department 2 Civic Square Carmel IN 46032("Customer"). I. TERMS OF AGREEMENT. This Agreement (as defined below) shall commence on 1 Nov 2012 and continue until terminated in accordance with this Agreement (the "Agreement Period"). Customer desires to purchase from JSS and .155 desires to sell/rent to Customer the products, equipment, software, licenses (collectively, "Products" and individually, a "Product") and/or services (collectively, "Services" and individually, a "Service") identified on the Addenda checked below or on any Supplement (as defined below) to the Agreement (which are attached hereto and incorporated herein by this reference (collectively, "Addenda" and individually, "Addendum")), upon the provisions of this Agreement, including those certain terms and conditions set forth in the Standard Terms and Conditions attached hereto as Addendum B (the "Standard Terms and Conditions"). The Products and/or Services purchased by Customer for the Agreement Period and the costs of such Product and/or Service are set forth in Addendum A "Quantity and Price List" and/or the other Addenda attached hereto or any Supplement. Check All That Apply Addendum A: Quantity and Price List No. 1 Q Addendum B: Standard Terms and Conditions Q Addendum C: Software and Maintenance II. SUPPLEMENTS. The parties anticipate that after the Effective Date, from time to time, Customer may want to purchase from JSS and JSS may desire to sell to Customer additional Products and/or Services. In such event, the parties shall execute a supplement to this Agreement, which shall be numbered according to the chronological order in which such supplement is executed, and which shall have the applicable Addendum or Addenda attached thereto, which may include an additional Quantity and Price List (also numbered according to the chronological order in which such Addendum is executed) (collectively, "Supplement"). The provisions of each Supplement shall he incorporated herein and made a part of this Agreement. III. ENTIRE AGREEMENT. This Master Customer Agreement, which includes any and all Supplements, the Standard Terms and Conditions, all Quantity and Price Lists and any other Addendum or Addenda, shall be collectively referred to herein as the "Agreement" and constitutes the final expression of and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. IV. CONFLICT. In the event any provision of a fully executed Addendum A Quantity and Price List conflicts with a fully executed Addendum B,Addendum C, Addendum D or Addendum E, the provision of the Quantity and Price List shall control. In the event any provision of Addendum B conflicts with a fully executed Addendum C, Addendum D or Addendum E, the provision of Addendum B shall control. In the event any provision of a fully executed Addendum C, Addendum D or Addendum E (each a "Products/Services Addendum") conflicts with any other Products/Services Addendum, then the provision of (a) Addendum C shall control over Addendum D and Addendum E, and (b) Addendum D shall control over Addendum E. In the event any provision of a fully executed Addendum A, Addendum C, Addendum D or Addendum E conflicts with a respective supplemental Addendum, the provision of the most recently executed Addendum shall apply and control. V. ADDENDA. The Addenda checked above and referred to herein are attached hereto and incorporated herein by this reference. VI. EFFECTIVE DATE. This Agreement shall become effective on the date upon which this Agreement is fully executed by the parties. VII. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original (including copies sent to a party by facsimile transmission or in portable document format (pdf))as against the party signing such counterpart, but which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as set forth below. JSS: CUSTOMER: Carmel Fire Department 2 Civic Square Carmel IN 46032 JEFBAR SOFTW SERVICES By: By: Name: Barry C ristian, Presiden /3/Val Vela- Title: 81 Blue Ravine Road Suite 230 Address: Folsom, CA 95630 Phone: (800)495-2772 Phone: Fax: (916)669-0853 Fax: Email: barry.christian®jefbar.com Email: Pt sibit r' 1 1 1980.038.663322.2 ADDENDUM A-QUANTITY AND PRICE LIST NO. 1 THIS ADDENDUM A- QUANTITY AND PRICE LIST NO. 1( "Addendum A")dated 1 Nov 2012, constitutes part of that certain Master Customer Agreement effective when customer begins use of the software and customer agrees to read and comply with the Master agreements and all the terms of use addendum before using the software.This addendum is dated 1 Nov 2012,as supplemented from time to time, (the"Agreement")by and between Carmel Fire Department 2 Civic Square Carmel IN 46032("Customer") and JefBar Software Services. The provisions of this Addendum A are hereby incorporated into the Agreement. All capitalized terms not otherwise defined in this Addendum A are defined by the terms of the Agreement. Customer will not begin use of the software until they have read and agree to the terms and conditions of software use which will be delivered at the time of the software installation. By signing this document they agree to not use the software until they agree with the terms and conditions delivered with the software. • ADDENDUM C-LICENSED SOFTWARE&'MAINTENANCE SERVICES • • NO. OF. • • —PRICE PER PURCHASE PRICE DESCRIPTION _ SITES/USERS RUNS TOTAL 1 site unlimited Up to 500 Purchase price for CAD and Billing Software Transports/runs per $11,000 users Month Billing includes all modules and maintenance provides the rights to all newly released modules. Billing Includes - Interlace to EPCR and CAD import,Ticket/Run Included Data Entry, search and retrieval,View print, Function to scan dots and attach to Trip Ticket in System and View/Print from System, Patient Search, Entry, All the tools for billing electronic and on paper for patient, Insurance carriers,Medicare,Medicaid in State installed, Patient Invoices, Collections, Payer and Patient merge, Cash Receipts, Cash and aging,complete report writer,custom fields creation and printing, and collections tools. Any Billing function developed by JefBar Billing Services comes included as part of the system-Maintenance provides for any and all new updates and functions. Hardware requirements are a Windows Server and Windows PC (XP, Vista or Windows 7)and SQL Server. SQL Express is free can be Microsoft products used for 1 Database and under 10 Gig (usually about 7 years of data and hardware not for 2000 runs a month). Requires SQL 2008, and prefer Windows included Server 2008. Custom reports and modifications available upon request. Initial reports and set up is included and reports built with report writer and interface to outside collection etc. included with SMA. Yearly Maintenance(SAM) starts 6 months after go live and is 20%of license fees. When number of runs per month increases above 500 transports/runs per month for more than 3 months in a row an additional License fee is due. (See chart below) Payment terms listed below Addendum C Total $11,000 Each upgrade level Is in addition to the previous already paid levels. To jump more than one level simply adds together each upgrade level. Upgrade applies when runs per month is exceeded far more than 3 months in a row. Run per month level and upgrade fees are: 501- 1,000 $ 5000 1,001-2,000 $ 7500 2,001-3,000 5 7500 3,001-4,000 $15,000 4,001-6,000 $15,000 6,001-8,000 517,500 Each additional 4,000 runs a month level is additional$20,000 2 A- 1988.038-663322.2 r— v'4 `1 L — t ADDENDUM'D-.EQUIPMENT Tt•TNIRD'PARTY SOFTWARE ' NO. OF PRICE PER ■DESCRIPTION •UNTS - 'UNIT TOTAL Third party software such as a paging system for CAD,Windows, SQL if too Large for SQL Express, and other Microsoft Products (Windows - Excel)products may be required. ADDENDUM E'TPROFESSIONAL SERVICES ' ' DESCRIPTION/SCOPE OF WORK __. ' TOTAL No charge for install of software and training. Training will be remote or on-site for one week per product and continue with remote support Included if needed. On-Site training cost are fixed for Airfare, Hotel, Rental cars and meals 1 Person travel Travel Expense are Optional and are based on each person per week on site. Charged at 52,000 per expenses for 1 actual with maximum week per person. week on site $2,000 per person- on-site training and support is optional. Conversion of data from previous systems can be purchased for a Fixed Price for Optional and Fixed at discount rate of$125 per hour. Conversion is not required but may Conversion from $5,000 for custom make change from another system easier and allow user to have all the FoxPro or conversion. data on one system. Existing Database 1500 Forms, patient invoices,statements, Electronic transmissions,and , Included standard reports set up included. Client may need to purchase laser printers and/or modem for ECS and 1500 forms printing. All other professional services are at the hourly rate of$150 per hours. Currently no other professional services are authorized and Optional client will be required to sign a statement of work for any other billable services prior to work being performed. Addendum E Total Purchase price includes 6 months of Maintenance Month 7 is 20% (25%for Billing Companies) per year $11,000 Addendum C Total Addendum 0 Total _ _ GRAND Total $11,000 A- M l 3 1988.038-663322.2 Payment terms: Due prior to Install 100%of$11,000 Travel and Conversion cost if selected will be billed afterwards and due in 30 days after go live. All other Professional Services due 30 days after each billing cycle which is currently month end,but none are currently planned other than the optional travel and conversion. First 6 months after go live maintenance is free and month 7 is billed at 20%per year of License fees. Maintenance includes all upgrades and newer versions. 1. Licensed Sites; Licensed Servers are located at a facility designated by Customer and customer will notify J55 and provide us Remote desktop or VPN access to provide support for the customer. Addendum A has been executed by the parties pursuant to the document checked below and agreed to before use of the Software: © Master Customer Agreement ❑ Supplement No._to Master Customer Agreement JSS and Customer hereby approve of the terms and condit•ns :..•• • ...ve. � JSS Signature: �2%,/ 7 CUSTOMER Signature: DATE: /l'✓C �C/ DATE: A, 4 1988.038.663322.2 ADDENDUM B-STANDARD TERMS AND CONDITIONS TNIS ADDENDUM B-STANDARD TERMS AND CONDITIONS( "Addendum B")constitutes part of that certain Master Customer Agreement dated 1 Nov 2012,as supplemented from time to time,(the"Agreement")by and between Carmel Fire Department 2 Civic Square Carmel IN 46032("Customer")and JefBar Software Services("J55"). The provisions of this Addendum B are hereby incorporated into the Agreement. All capitalized terms not otherwise defined in this Addendum B are defined by the terms of the Agreement. 1. Agreement Scope. The Products and/or Services constitute the scope of services and products anticipated to be provided to Customer by JSS as of the effective Gate of the Agreement,the Addendum or Addenda or any supplement to the Agreement,as applicable("Agreement Scope"). Customer acknowledges that the Fee(as defined below)is based on the Agreement Scope. If.155 determines that the Agreement Scope may be or has been increased anytime during the Agreement Period, JS5 reserves the right to increase the Fee to compensate for the unanticipated or additional services. 2. Payment; Late Fee; Interest; Dispute. For purposes of the Agreement, the price of the Products and/or Services set forth on the Addendum or Addenda and any other applicable cost(Including, without limitation, shipping costs and restocking charges)or fee under the Agreement shall be collectively referred to herein as the"Fee"or"Fees." Unless otherwise expressly provided in the Addendum or Addenda, Customer shall pay the entire amount of the Fee within thirty(30)days of the date of the.155'invoice. A late charge of thirty-five dollars(S35.00)will be applied if any invoice is not paid in full within such thirty(30)day period. In the event Customer disputes any portion of an invoice, Customer shall timely pay the full invoiced amount and provide J55,within thirty(30)days of such payment, a written statement explaining such dispute and which contains all supporting documentation. 155 shall thereafter determine, in Its good faith business judgment, whether such invoice is erroneous, and may issue an appropriate credit to Customer. Any sum owed by Customer to JS5 shall bear interest at a rate of one percent(1%)per month or the maximum rate allowed by law(whichever is less)from the date said sum was first due until the date it is paid in full. Some Products and/or Services wilt be charged based on a "Time"and "Materials" basis. The term "Time"shall refer to any Product or Service billed at the applicable hourly rates ("Time Rate")of 155 In effect at the time such Product and/or Service Is provided. Time Rates will be billed in minimum increments of one-quarter(1/4)of an hour. Travel time will be billed up to a maximum charge of eight(8)hours per day. The term"Materiats"shall refer to the out of pocket expenses reasonably incurred by JSS in providing the Product and/or Service to Customer,including, but not limited to, any travel expenses, and telephone line,media or shipping charges. 3. Taxes. Customer agrees to pay any and all federal, state, county, local or governmental taxes(including, but not limited to, sales taxes, but excluding any taxes based solely on JS5' net income), duties, fees and amounts In lieu thereof, now or hereafter applied to or based on(a)amounts payable to 155 pursuant to the Agreement,including, without limitation,any licenses granted pursuant to any Addendum of the Agreement;or(h)Customer's production,storage,transportation,import,export,or use of any license, software or equipment purchased pursuant to the Agreement. Any such amounts, including interest and penalties thereon, paid or payable at any time by 155, shall promptly be reimbursed to JSS by Customer. 4. Estimates. If J55 provides Customer with any written estimate of the Fee or an estimated delivery date (collectively, "Estimate"), JSS shall exercise commercially reasonable efforts to provide such Products and/or Services within such estimate;provided that all J55 estimates are based, in part,upon information supplied to 155 by Customer and upon conditions as they are known by 155 prior to providing such Estimate, It is agreed that circumstances or conditions may arise that affect the Fee which could not have been reasonably expected or foreseen despite the exercise of due care. Therefore,the Fee set forth in any Estimate is not intended to be a fixed price or a"not to exceed"price. Customer shall notify JSS if Customer becomes aware of any changes in such information or conditions,and J55 shalt notify Customer if 155 determines that the Fee set forth in an Estimate may be exceeded. Customer acknowledges that Customer shalt be obligated to pay for the entire Fee owed to J55 even if the amount of such Fee exceeds the amount of any Estimate. All Estimates are(a)subject to change and may be revoked by JSS without prior notice to Customer(unless otherwise stated in an Estimate signed by an authorized representative of 155);(b)subject to J55'approval of Customers credit;and(c)based on and subject to the terms and conditions of the Agreement,including this Addendum B. 5. Termination. Except as otherwise expressly provided in the Addendum or Addenda, either party may terminate the Agreement, any supplement or any Addendum or Addenda,with or without cause, by delivering written notice of termination to the other party not later than thirty(30)days prior to the effective date of termination set forth In such notice. In the event Customer has breached any provision of the Agreement,a supplement or an Addendum,J55 may immediately terminate the Agreement,any supplement or any Addendum or Addenda and shalt provide notice of such termination to Customer. Upon termination,JSS will invoice Customer for any Fees and costs incurred by JS5 and Customer shall pay the full invoice amount within thirty(30)days after receipt of JSS'invoice whether such Fees are due before or after termination, except for any'Time"and "Materials" fees for any services to be provided under the Agreement but not yet performed. In the event any Addendum, Supplement or the Agreement is terminated by(a) Customer for any reason,or(b)J55 due to Customer's breach of or pursuant to any Addendum,Supplement or the Agreement, then Customer shall be obligated to pay 155 for any and all costs and expenses paid by JSS prior to such termination and/or incurred by J55 during the Agreement Period. Customer and 155 shall have any and all rights of termination and non-renewal of each Addendum to the Agreement as specified in such Addendum. Termination of an Addendum to the Agreement,as permitted by this Section or any such Addendum, will not terminate the balance of the Agreement or any other Addendum or Addenda still in force. Upon the termination of the Agreement, all Addenda and supplements shall also automatically terminate. All provisions of the Agreement concerning payment of Fees, confidentiality, limitation of liability, disclaimer of warranty,and indemnification shall survive the termination of the Agreement. 6. Independent Contractor. The parties agree that J55 is an independent contractor and the Agreement shall not oe construed to create a relationship of agent, servant, employee,partnership,joint venture,association or any other relationship. 7. Right to Suspend Performance. Without prejudice to J55'right to terminate pursuant to Section 5 above, JSS has the right to immediately suspend all or any portion of its performance under the Agreement,any supplement or any Addendum or Addenda,without notice to Customer,if JS5 determines,in its sole and absolute discretion,that Customer has breached any provision of the Agreement, any supplement or any Addendum or Addenda. In such event, prior to resuming Its performance,J5S may require Customer to pay any and all financial obligations in full and/or perform any and all obligations owing hereunder. Customer shall pay JS5 for all Services completed to the date of such suspension plus any reasonable or necessary costs incurred by.155 as a result thereof. 8. Customer's General Responsibilities; Customer Acknowledgment. During the Agreement Period, In addition to the obligations set forth on the Addenda and any supplement, Customer is responsible for the following: (a) ensuring that Customer, its employees and contractors properly identify and comply with laws and regulations applicable to Customer's activities;and(b)providing any and all documents and information required by J55 to provide the Products and/or Services. Customer acknowledges that JSS' full, accurate and timely performance under the Agreement, any Addendum or Addenda and/or any supplement is materially dependent upon Customer's reasonable cooperation and assistance. Customer further acknowledges that the Agreement Scope and Fee presume a reasonable amount of cooperation and assistance from Customer,such as Customer's timely provision of relevant information, documentation and personnel, including any of the foregoing, as requested by 155. Customer shall promptly report any difficulties it experiences with its use of any Products and/or Services to JSS in accordance with any procedures reasonably established by 155,or set forth in the Agreement,any Addendum or Addenda,any supplement or any documents provided to Customer by 155 during the Agreement Period. J55 has explained its requirements in this regard to Customer and Customer agrees to meet these requirements. 9. Notice. All notices under the Agreement must be in writing,directed to the party's address set forth below such parry's signature in the Agreement and shall be deemed to be received in accordance with the following: (a)in the case of personal delivery,on the date of such delivery; Ibl in the case of facsimile transmission,on the date upon which the sender receives confirmation by facsimile transmission that such notice was received by the addressee,provided that a copy of such transmission is additionally sent by mail as set forth in(d)below,(c)in the case of overnight courier,on the second business day following the day such notice was sent,with receipt confirmed by the courier;and(d)In the case of mailing by first class ccrtiffed•mail,postage prepaid,return receipt requested,bn the fifth businesi day following such mailing. A party may change the address stated In the Agreement by giving written notice,to the other party. 10. Further Assistance. Upon request of the other party, J55 or Customer shall execute and deliver additional instruments and take additionat actions as may be necessary or appropriate to perform the Agreement. 11. Assignment Prohibited. Customer may not assign any right or obligation under the Agreement without the prior written consent of JefBar Software Services. Any purported asslgnmentin violation of the provisions of this Section I1 shall be.null and void. T 5 19860163322.2 12. Non-Solicitation of Employees, Customer acknowledges that JSS'employees are a valuable asset in the operation of JSS'business. During the Agreement Period and for a period of one(1)year after termination of the Agreement,Customer shall not directly or indirectly solicit,hire,recruit, or encourage any other employee of JSS to leave JSS or work for any person or entity that is in competition with JSS. Customer agrees that the actual amount of damage sustained by a breach this Section shall be impracticable or extremely difficult to fix,and that one hundred percent(100%)of such employees yearly salary shall be deemed to be the amount of damage sustained by JSS as a result of such breach. The foregoing liquidated damage provision is in addition to any other remedy JSS might have,including,without limi ration,an entitlement to injunctive relief without proof of irreparable injury and without posting bond. 13. Confidentiality. Each party understands and acknowledges that it may be granted access to certain"Confidential Information"las defined below)of the other party In the course of performing such party's obligations under the Agreement. "Confidential Information"includes all oral and written information which,at the time of transmittal,has not been made public or is not generally available from public sources. By way of illustration and not limitation,Confidential Information includes trade secrets,technology,concepts, programs, business processes, methods, operational techniques, work product or JSS and documentation produced by JSS hereunder, the Agreement (including the Addenda any supplements to the Agreement),any other agreement entered into between the parties pursuant to the Agreement, source code, object code and specifications for J55'software provided under the Agreement, any other information capable of being a trade secret under applicable law, financial information and data and other records regarding the other party,its customers and other third parties. Each party hereby(a)acknowledges and agrees that all Confidential Information is confidential and proprietary;(b)agrees to hold the Confidential Information in confidence and protect Confidential Information from unauthorized use or disclosure, using a high level of care according to the standards of the high technology industry; (c)agrees to limit access to its employees and/or contractors who have a"need to know";and(d)further agrees not to disclose the Confidential Information, or any portion thereof, to third persons without the prior written consent of the other party except:(i)to the extent necessary,to comply with any law, rule or regulation,or the valid order of any governmental agency or any court of any governmental agency or any court of competent jurisdiction; (ii)as part of such party's normal reporting or review procedure,to its auditors and/or its attorneys;or(iii)as necessary to enforce such party's rights and perform its agreements and obligations under the Agreement. The parties hereby agree that monetary damages would not be an adequate remedy for the breach of this Section 13 and either party shall have the right to seek injunctive relief or similar equitable remedies to enforce such party's rights under this confidentiality provision. 14. Governing Law; Legal Costs; Cause of Action. The Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue for any proceeding relating to the Agreement shall be in Sacramento County,California. If any party to the Agreement shall take any action to enforce the Agreement or bring any action or commence any proceeding for any relief against any other party, declaratory or otherwise, arising out of the Agreement, the losing party shalt pay to the prevailing party its attorneys' and experts' fees and costs incurred in taking such action, bringing such suit and/or enforcing any judgment granted therein, all of which shalt be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorneys'and experts'fees and costs incurred in enforcing such judgment. The amount of attorneys'and experts'fees and costs due hereunder shall be determined by a court of competent jurisdiction and not by a jury. For the purposes of this Section,attorneys'and experts'fees and costs shall include, without limitation, fees and costs incurred in the following; (a) post•judgment motions; (b)contempt proceedings; (c) garnishment, levy, and debtor and third party - examinations; (d) discovery;and(e) bankruptcy litigation; and(f) appeals. If any legal action Is commenced to enforce the Agreement's terms or a party's rights or obligations under the Agreement,then the prevailing party shalt be entitled to recover all fees and costs incurred by the action, including attorneys'fees and arbitrators'fees, in addition to any other relief to which the party may be entitled. Any cause of action Customer may have with respect to the Agreement(including,without limitation, the Products and/or Services) or any other relationship of the parties must be commenced within one(1)year after the claim or cause of action arises, otherwise such claim or cause of action is barred. 15. Indemnification. a. Customer shalt indemnify, defend (with counsel selected by JSS in its sole and absolute discretion) and hold harmless !SS, its employees, agents, representatives and consultants,from and against any and all claims,liabilities,demands,damages, losses,costs and expenses,including,but not limited to,attorneys'fees and costs(collectively,the "Liability")caused by the performance of the Agreement(including,without limitation,the Products and/or Services);provided, however, that Customer shall have no obligation under this Section for any Liability caused by(a)any breach or default by JSS of any of its obligations under the Agreement;or(b)the negligent acts,errors,omissions or willful misconduct of JSS, its agents, subcontractors or employees. JSS shall indemnify, defend (with counsel selected by JSS in its sole and absolute discretion) and hold harmless Customer, its directors, officers, employees, agents, representatives and contractors, from and against any Liability caused by(a) any breach or default by J55 of any of his obligations under the Agreement;or(b)the negligent acts,errors,omissions or willful misconduct of!SS, Its agents,subcontractors or employees. b. In the event of a claim, suit, or proceeding against JSS, alleging that any Customer has infringed any copyright, patent, trademark, trade secret, or other intellectual property right of a third party, Customer shall, at its sole cost and expense, defend and indemnify JSS, or at its option, settle such claim, suit, or proceeding. Customer has no obligation to defend and indemnify JS5 pursuant to this provision for any gross negligence or willful misconduct of J55, or if such infringement is solely caused by an act of JSS. Customer agrees to pay any settlement or final judgment entered against JSS on such issue in any such claim, suit,or proceeding defended by Customer,provided that..155 shall select, in its sole and absolute discretion, Its defense counsel and must promptly notify Customer in writing of any such claim,suit,or proceeding,and must fully cooperate with Customer in Customer's'defense thereof. In the event of a claim, suit or proceeding against Customer alleging that the Licensed J55 Software infringes any copyright, patent, trademark,trade secret,or other intellectual property right of any third party,JSS shall,at its sole cost and expense,defend and indemnify Customer or at its option,settle such claim,suit,or proceeding. J55 shall select,in Its sole and absolute discretion,Customer's defense counsel. Customer must promptly notify JSS in writing of any such claim, suit, or proceeding, and must fully cooperate with JS5 in JSS' defense thereof. JSS has no obligation to defend and indemnify Customer pursuant to this provision for any gross negligence or willful misconduct of Customer,or if such infringement is caused by an act of Customer. Judicial Reference.Any dispute shalt be decided by general reference procedures pursuant to Code of Civil Procedure Section 638 et seq., as modified by the provisions of this Section 17. The reference shall be conducted in accordance with California law, including, but not limited to, the Code of Civil Procedure and the Evidence Code. The parties shall be allowed to conduct discovery in the manner provided by Code of Civil Procedure Section 2017 et. seq. BOTH PARTIES HEREBY WAIVE A JURY TRIAL OR PROCEEDING IN CONNECTION WITH ANY DISPUTE ARISING OUT OF THE AGREEMENT. Alt general reference proceedings hereunder shall,unless all parties hereto otherwise agree,be conducted in a mutually agreeable location in the County of Sacramento,State of California. 16. Remedies. In the event that Customer breaches any provision of this Agreement, including, without limitation, the failure to pay any sum to JS5 when due under the Agreement, JSS may exercise any and all rights and legal remedies available to it, including, without limitation, any remedies as a secured creditor, without prejudice, against Customer for such breach. If Customer's financial ability becomes impaired or inadequate to meet Customer's obligations under the Agreement,as determined by JSS in its sole and absolute discretion,or if Customer fails to make any payment to JSS in accordance with the terms and provisions of the Agreement,the terms of any credit provided by J55 to Customer may be modified or terminated by J55,in JSS'.sole and absolute discretion,and/or,JSS may require an advance cash payment or a satisfactory security Interest. 17. Modification; Interpretation; Severability; Construction. No modification to any provision of the Agreement (including, without limitation, the Addenda and any supplement to the Agreement)shall be valid,unless executed in writing by both parties. Neither the course of conduct between parties nor trade practices shall act to modify any provision of the Agreement. If any term, provision, covenant or condition of the Agreement is held to be invalid or otherwise unenforceable, the rest of the Agreement shall remain in full force and effect and shall In no way be affected, impaired or invalidated. J55 shall have the full power and authority to interpret, construe and administer the Agreement and JSS'determination shall be binding and conclusive on the parties for all purposes. The headings preceding each Section and subsection of the Agreement are solely for the convenience of reference only, are not part of the Agreement,and shall be disregarded in the interpretation of any portion of the Agreement. Whenever required by the context of the Agreement,the singular shall include the plural and the masculine shall include the feminine and vice versa. The Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to paragraphs, Sections, subparagraphs and subsections are to the Agreement. 18. Time of the Essence; Dates. Time is of the essence of the Agreement. In the event that any date specified in the Agreement falls on Saturday, Sunday or other day on which public agencies and major banks are not open for business(each a"Non-Business Day"),such date shall be deemed to be the succeeding business day. For purposes of the Agreement,a"business day"shall mean a day other than a Non-Business Day. 19. Waiver. Either party's failure at any time to enforce any defaulter right reserved to it,or to require performance of any of the Agreement's terms,covenants,or provisions, by the other party at the time designated,shall not be a waiver of any such default or right to which such party is entitled, nor shall it in any way affect the right of the party to enforce such provisions thereafter. 6 /yy`' 1988.038.663322.2 20. Force Majeure. No party shall be liable for any delay, failure in performance•or interruption due to events outside such party's reasonable control, including, without limitation,acts of God, the other party or any third party, acts or orders of governmental authorities, acts of civil or military authorities, shortages of supplies,labor disputes, catastrophes or other circumstances beyond its reasonable control, except circumstances caused by financial issues (collectively, a "Force Majeure Event"), and such nonperformance will not be a default hereunder. In the event that a party is unable to perform any of its obligations under the Agreement or to enjoy any of the benefits provided thereby because of a Force Majeure Event.such patty shalt immediately provide written notice to the other party and make diligent efforts to resume performance. Upon a party's.receipt of the notice described in this Section,the delivery date for any'Product and/or Service delayed as a result of a Force Majeure Event shall automatically be extended for a period equal to the duration of Force Majeure Event. 21. Binding. Neither the Agreement,nor any modification of amendment or supplement to the Agreement,nor any waiver of rights by JSS under the Agreement,will be binding on either party unless it as signed on behalf of.155 by the President of ZS or one(1)or more persons authorized in writing by the President. The Agreement shall be binding not only upon the parties,but also upon their heirs,personal representatives,permitted assigns and other successors in interest. JSS and Customer hereby approve of the terms and conditions set forth above. firs 7 7$ 1988.038663322.2 ADDENDUM C-JSS SOFTWARE AND PURCHASE AGREEMENT THIS ADDENDUM C - JSS SOFTWARE AND PURCHASE AGREEMENT ("Addendum C") dated 1 Nov 2012(the "Addendum C Effective Date"), constitutes part of that certain Master Customer Agreement dated 1 Nov 2012, as supplemented from time to time, (the"Agreement")Carmel Fire Department 2 Civic Square Carmel IN 46032 ("Customer")and JefBar Software Services ("JSS"). The provisions of this Addendum C are hereby incorporated into the Agreement for all purposes. All capitalized terms not otherwise defined in this Addendum C are defined by the terms of the Agreement. 1. License. .155 hereby grants to Customer and Customer hereby accepts a non-exclusive, revocable license to use all of the following (as defined below): (a) the standard, off-the-shelf modules of JS5' software identified in Addendum A of the Agreement (the "Base JSS Software"); (b) those certain documents prepared by JSS and provided to Customer that explain the installation and use of the Base..155 Software(the".155 Documentation"); and (c) any modifications made to the Base.155 Software for Customer(the ".155 Modifications") (the "License"). The License includes the object code and any and all executable code. The Base J55 Software, .155 Documentation and any JSS Modifications shalt collectively be referred to as the".155 Licensed Software". 2. Software Delivery. JS5 shall deliver to Customer at the address set forth in the Agreement the Base JSS Software as soon as possible after documents are signed and returned. 3. License Fees. Customer shall pay to.155 all of the fees set forth below(collectively, the"License Fees"). a.That certain "Site License Fee"charged to Customer for each Licensed Server(as defined in Addendum A)in the amount set forth on Addendum A Quantity and Price List. b.The"User License Fee"or maximum Monthly/Yearly Runs/Tickets charged to Customer for each User or number of transactions(Runs/Tickets) (as defined below) in the amount set forth on Addendum A Quantity and Price List, For purposes of this Addendum C and Addendum A, "User"shall mean each individual who has the ability to concurrently sign on to the Licensed Server and Runs/Tickets shall be defined as a single Ticket/Run number with unlimited number of bills or printouts. c.That certain "SMA-Annual Maintenance Fee"charged to Customer for each server of Customer and each User of such server in the amount set forth on Addendum A Quantity and Price List. The Annual Maintenance Fee shalt be paid initially on the Addendum C Effective Date and each year thereafter no later than the anniversary date of the Addendum C Effective Date. If Customer fails to pay the Annual Maintenance Fee in accordance with the terms set forth herein,JSS shall have the right to terminate this Addendum C without notice to Customer. In the event Customer elects to add additional servers and/or Users after execution of this Addendum C, the parties shall execute a supplement to the Agreement which sets forth the additional applicable Annual Maintenance Fees and such additional servers and/or Users. 4. Term. The term of this Addendum C shall be for a one (1) year period commencing on the Addendum C Effective Date. Each year thereafter, the term of this Addendum C shall automatically renew for an additional one(1)year term (each one(1)year term shalt be referred to•herein as the"Term"), unless(a)Customer fails to pay the License Fees when due; (b)this Addendum C is terminated by a party as provided herein;or(c)the Agreement is terminated. 5.Termination. Upon termination,Customer shalt(a)destroy the original and all copies in Customer's possession or control of the Licensed.155 Software,except that Customer may retain one (1) archive copy thereof If required by law or a governmental regulation; and (b) discontinue its use, copying, and/or modification of the Licensed.155 Software. Customer shall not be entitled to any reimbursement of the License Fees or any portion thereof if(a)Customer terminates this Addendum C; or (b) .155 terminates this Addendum C pursuant to Section 3(c) above or because Customer has violated a provision of this Addendum C and/or the Agreement . Monthly License Fees and any applicable termination fee shall be deemed to be fully eamed when due and are non-refundable. Upon J55' request, an officer or director of Customer shall sign a certification providing that Customer has complied with the requirements of this Section 5 6. Services. During the Term, JS5 shalt provide to Customer for the License Fees (as defined below) the following support and services (collectively, "Maintenance Services"): a. .155 shall make Error Corrections (as hereinafter defined)to the Base JSS Software. An "Error"is a failure of the JS5 Base Software to conform to the published specifications or a failure of the JS5 Modifications to conform to the specifications prepared by.155 for Customer. An "Error Correction" is a service provided by.155 under this Addendum C pursuant to which.155 shall correct an Error, provided that such Error can be duplicated on a consistent basis and has not resulted from (i(the misuse of Customer(including,without limitation,any User)at the Licensed J55 Software;or(ii)any change in the coding of such software. b...155 shall respond,as JS5 deems appropriate and in its sole discretion, to Customer's written request to correct a suspected Error(a"Correction Request")within a reasonable amount of time,based on the severity of such Error,after receiving such request. c. .155 shall answer Customer's questions regarding its use of the JSS Licensed Software and assist Customer in identifying suspected Errors over the telephone ("Telephone Support")Monday through Friday from the hours of 7:00 a.m. to 5:00 p.m. Pacific Standard Time("Normal Business Hours"). d..155 shall maintain facilities capable of remotely accessing the Licensed JSS Software on the Licensed Server or Licensed Servers. e. JSS shall maintain on staff a technical consultant familiar with the.155 Modifications, if any. f. If Customer is authorized by.155 to use the Licensed.155 Software at more than one(1)"Licensed Site"identified in Addendum A (the"Licensed Site"),.155 shall make available to Customer,for each Licensed Site,the same Error Corrections. g. JSS shall maintain a record of Customer's Correction Requests and, upon request,will provide Customer with a status report of each Correction Request. h. Customer shall receive a reduced rate, in the amount determined by JSS in its sole and absolute discretion, for services provided on a Time and Materials basis pursuant to a separate written agreement. 7. Additional Professional Services. Any other services of J55 not provided herein may be provided to Customer, in.155'sole and absolute discretion,on a Time and Materials basis pursuant to a separate written agreement between the parties. Customer acknowledges that all such additional services are subject to a separate Time and Materials charge,and includes,without limitation,the following services: (a)Correction Requests after Normal Business Hours, (b)Telephone Support after Normal Business Hours,and (d)except for Error Corrections,any consulting services,which are requested and approved in advance by both parties. In response to a Correction Request or another request by Customer, JSS may assist Customer by seeking appropriate services from third parties, and such assistance will be billed on a Time and Materials basis. 8. Permitted Uses. Contingent upon the timely and complete payment of the License Fees In accordance with the Agreement and provided that Customer is not in breach the Agreement,any Addendum or Addenda or any supplement,Customer shall be permitted to do all of the following: a. Install the Licensed JSS Software on a Licensed Site; b. Use the Licensed .155 Software for the processing of data owned by Customer, provided that Customer shall not use the Licensed JSS Software to provide outsourcing services or act as a service bureau, with the exception of Ambulance Billing Services Who's License has a maximum number of runs allowed. c. Temporarily use the Licensed JSS Software on another server of Customer(not a Licensed Site)only in the event the Licensed Server is malfunctioning, provided that Customer immediately provides written notice to JS5 of such temporary use; d. Make backup copies of the Licensed JSS Software In a machine readable form solely for archival purposes,provided that Customer reproduces all JSS proprietary notices on each archival copy made;and e. Make no more than five (5) copies of the JS5 Documentation for Customer's internal use at a Licensed Site or another Customer site supported by the Licensed Server,provided that Customer reproduces all JSS proprietary notices on each such copy. a r)1 1988.038-663322.2 `(D G1(J` 9. Unauthorized Uses. The use, access,copying, duplication or modification of the Licensed JSS Software not expressly allowed under this Addendum C by Customer (or any third party with Customer's permission or knowledge),or Customer's failure to comply with the restrictions set forth herein and in the Agreement,will result in the immediate termination of this Addendum C without notice thereof. Any such action also constitutes copyright infringement and may be punishable in a federal criminal action. 10.Ownership. Title to the Licensed JSS Software,all proprietary and intellectual property rights in the Licensed JSS Software(including,without Limitation,patents, trade secrets, copyrights, and trademarks), and title to any copy of the Licensed JSS Software made by or for Customer shall be held solely by JSS. The Licensed JSS Software is copyrighted and is protected by United States and international copyright laws.Customer hereby acknowledges and agrees that nothing in the Agreement or this Addendum C shalt give Customer any right,title or interest in any ownership of the licensed JSS Software. 11.Assignment, Customer shall not transfer or assign the License or the Licensed JSS Software without the prior written approval of JSS. 12. Customer Responsibilities. Customer shall provide JSS with reasonable access to Customer's equipment,software, data and personnel,as requested by J55. JSS shall have access to the Licensed J55 Software via a high-speed Internet connection which shalt be made available to J55 before loading the Licensed.155 Software. Customer is solely responsible for the selection of hardware used by Customer and ASS shall not be responsible for the sizing,speed, or performance of such hardware even if J55 makes recommendations regarding the same. During the Term,Customer shall at all times acquire and install the most current or next-to-most-current server operating system software and system release levels; provided that upon notice to Customer, JSS may require prompt installation of the most current operating system release level prior to ASS performing any work regarding the Licensed JSS Software. Customer shalt notify JSS in writing before any changes to Customer's hardware system are made. Customer is responsible, at its sole cost and expense, for keeping its personnel properly trained in the operation and use of the Licensed JSS Software. Upon the Addendum C Effective Date, Customer shall provide JSS with the contact information of a person who is to serve as Customer's primary contact with .155. Customer shall promptly report any difficulties it experiences using the Licensed JSS Software to JSS in accordance with any current JSS procedures reasonably established by ASS. Customer must purchase and install a high speed internet access at the Licensed Site on the Licensed Server in accordance with the Agreement. 13.Warranty. J5S warrants that it has the right to grant the License to Customer. 14. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS PROVIDED IN SECTION 13, .155 DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED. NO PROPOSAL, ESTIMATE, ADVERTISEMENT,BID,RECOMMENDATION OR STATEMENT SHALL CONSTITUTE A WARRANTY OR GUARANTY OF THE LICENSED ASS SOFTWARE. ASS SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE LICENSED ASS SOFTWARE 15 MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT THE OPERATION OF SUCH SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. 15. Limitations. a. LIMITATATION OF LIABILITY. REGARDLESS OF THE TYPE OF ACTION, THE AGGREGATE LIABILITY OF JSS TO CUSTOMER SHALL NOT EXCEED THE SUM PAID TO J55 BY CUSTOMER UNDER THIS ADDENDUM C. IN NO EVENT WILL JSS BE LIABLE FOR ANY DIRECT, REMOTE, INDIRECT, PUNITIVE, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF DATA, LOST OR IMPUTED PROFITS OR ROYALTIES, BUSINESS INTERRUPTION,OR THE COST OF COVER FOR PROCUREMENT OF SUBSTITUTE GOODS OR ANY SERVICES. THIS LIMITATION SHALL APPLY EVEN IF ASS HAS BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THE AGREEMENT,INCLUDING THIS ADDENDUM C,TO FAIL OF ITS ESSENTIAL PURPOSE. b. Other Limitations. .155 will not be responsible for any Error Correction unless ASS can replicate such Error, on its own software and equipment or through modem access to Customers software and equipment. Errors and Error Corrections do not include and do not apply to any of the following circumstances: (i)Customer changes to configurations; (ii)any third party software; (iii).damage due to the fault of any person or entity other than ASS; (iv)Customer is in material breach of the Agreement; or (v) hardware. This Addendum C covers the Licensed JSS Software for all of the Licensed Servers and Users identified on Addendum A, as may supplemented from time to time. Customer shall be obligated to pay the License Fees for all computers on which,and all servers where, Customer uses the Licensed ASS Software. This Addendum C has been executed by the parties pursuant to the document checked below and attached thereto: 0 Master Customer Agreement ❑ Supplement No._to Master Customer Agreement J5S and Customer hereby approve of the terms and con 'ons set forth above. ASS INITIALS: CUSTOMER INITIALS: ? DATE: /.. /t/F72‘17 DATE: • 9 (-) i 1988.038.663322,2