2022/02/22 City Council Resolution 2022-022 RESOLUTION NO. 2022-022
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING A MASTER SERVICES AND HOSTING AGREEMENT WITH
SELECTRON TECHNOLOGIES INC. FOR INTERACTIVE VOICE RECOGNITION
(IVR) SERVICES, INCREASING APPROPRIATIONS IN THE DEVELOPMENT
SERVICES OPERATIONAL BUDGET AND RELATED ACTIONS
WHEREAS,the Development Services Department has historically used interactive
voice recognition(IVR)technology to schedule building inspections; and
WHEREAS, the City's permitting and land management database has replaced
integrated IVR scheduling with integrated on-line scheduling; and
WHEREAS, staff has identified a third-party vendor, Selectron Inc.,that can provide
IVR service, compatible with the City's permitting and land management database; and
WHEREAS, consistent with the City's Purchasing Policy Section 7.2, staff is
recommending sole sourcing the IVR service contract to Selectron Inc., because the firm's
product is uniquely postioned to integrate with the City's land management and permitting
system; and
WHEREAS, the City of Rohnert Park has applied for and been awarded a One Hundred
and Fifty Thousand Dollar($150,000) Local Early Action Planning (LEAP) Grant from the
Department of Housing and Community Development; and
WHEREAS, the approved budget for the LEAP grant included $50,000 to implement
interactive voice recognition(IVR) services for scheduling building inspetions; and
WHEREAS, the Development Services Department is also projecting an increase in
building plan check revenue associated with resurgence of multi-family housing developments in
the City; and
WHEREAS,the combination of grant revenue and increased building plan check
revenue will cover the cost of the IVR system; and
WHEREAS, an amendment to the Development Services operational budget is
necessary to recognize the additional revenue and appropriate the funding for the proposed
Master Services and Hosting contract; and
WHEREAS, the City Council has the authority to amend the budget, increase
appropriations and authorize contracts and transfers.
NOW,THEREFORE BE IT RESOLVED that the City Council of the City of Rohnert
Park does hereby resolve, determine, find and order as follows:
Section 1: Budget Amendments Authorized. The City Council of the City of Rohnert Park does
hereby authorize the Finance Director to increase revenues in the Development Services
operational budget line item Other Income" (001-1600-300-3940/1000-00-20-200-2000-00-
50339) and line item Building Permit Fee Revenue (001-1600-300-3235/1000-10-20-200-2000-
00-500530) and increase expenditures in line item Software License and Maintenance (001-
1600-400-5332/1000-00-20-200-2000-00-63160) as outlined in Exhibit A.
Section 2. Services Agreement Approved. The Council of the City of Rohnert Park authorizes
and approves the Service Agreement by and between the City of Rohnert Park and Selectron Inc.
in the amount of One Hundred Sixty Thousand Dollars ($160,000).
Section 3. City Manager Authorized. The City Manager is hereby authorized and directed to take
all actions to effectuate this services agreement for and on behalf of the City of Rohnert Park,
including execution, if necessary, in substantially similar form to the agreement attached hereto
as Exhibit"B," subject to minor modifications by the City Manager or City Attorney.
DULY AND REGULARLY ADOPTED this 22nd day of February, 2022.
CITY OF ROHNERT PARK
J kie Elward, Mayor
ATTEST:
c ._.� --
izabe h Machado, Deputy City Clerk
Attachments:
Exhibit A
Exhibit B
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Resolution 2022-022
2
Exhibit A
Amendments to DEVELOPMENT SERVICES FY21-22 Budget
Account Number Description FY19-20
Actual
FY 20-21
Adopted
Budget
FY 21-22
Adopted
Budget
FY 21-22
Proposed
Budget
Proposed
Increase
REVENUE
001-1600-300-3235
1000-10-20-200-
2000-00-500530
Bldg Plan
Check Fees
283,722 280,000 297,396 1,000,000 702,604
001-1600-300-3940
1000-10-20-200-
2000-00-500530
Other
Income
35,900 0 0 50,000 50,000
EXPENSES
001-1600-400-5332
1000-10-20-200-
2000-00-6316-
Software
Licence &
Maintenance
64,503 80,000 110,000 175,000 65,000
TOTAL CHANGE 687,604
Exhibit B
Master Services and Hosting Agreement
This Master Services and Hosting Agreement (this “Agreement”) by and between Selectron Technologies, Inc., an Oregon
corporation having a principal place of business at 12323 SW 66th Avenue, Portland, OR 97223, and its successors and assigns
(“Selectron”), and the City of Rohnert Park, California (“Licensee”).
Recitals
Whereas, as between Selectron and Licensee, Selectron is the owner of all rights, titles, and interest in and to certain
software and materials, identified more particularly in this Agreement as the “Licensed Software”; and
Whereas, Selectron wishes to grant to Licensee, and Licensee desires to obtain from Selectron, certain rights to access and
use, and to permit authorized Licensee employees to access and use the Licensed Software through Selectron’s application
hosting service, as more particularly described below and in accordance with the terms and conditions of this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants contained herein, the parties agree to the following
terms and conditions, which set forth the rights, duties and obligations of the parties:
Agreement
1. Definitions
For purposes of this Agreement, the following terms shall
have the following meanings. Any capitalized terms used
in this Agreement that are not defined in this Section 1
shall have the meaning given to them elsewhere in this
Agreement.
1.1 “Aggregate Data” means information,
data, and statistics about a group of individuals,
organizations, or transactions that cannot be used to
identify Licensee or a particular individual, including
Licensee Data that has been de-identified and anonymized
and combined with data about other individuals and
transactions.
1.2 “Authorized User” means an Employee
that Licensee provides with access to the Licensed
Software.
1.3 “Customer Tools” means the Licensed
Software components and interfaces that, as described in
the Documentation, are designed and intended to be
accessed by customers of Licensee through an application
that is set up and maintained as part of the Services and/or
Licensee’s website.
1.4 “Derivative Work” shall mean a new or
modified work that is based on or derived from a preexisting
work, including, without limitation, a work that
in the absence of a license, would infringe the Intellectual
Property Rights associated with such preexisting work.
1.5 “Documentation” shall mean the standard
documentation for the Licensed Software, as generally
provided by Selectron to its other customers.
1.6 “Employee” shall mean a then-current
employee of Licensee.
1.7 “Intellectual Property Rights” shall
mean all rights associated with (a) patents, designs,
algorithms, and other industrial property rights; (b) works
of authorship, including copyrights, “moral rights”, and
derivative works thereof; (c) the protection of trade and
industrial secrets and confidential information; (d)
Trademarks (as defined herein); (e) all other intellectual
and industrial property rights (of every kind and nature
throughout the world and however designated), whether
arising by operation of law, contract, license, or otherwise;
and (f) all registrations, initial applications, divisions,
continuations, renewals, extensions, divisions, and re-
issuances of any of the foregoing, now existing or acquired
in the future.
1.8 “Licensed Software” shall mean,
collectively, (a) the software programs that are listed in
Exhibit A and further described in Exhibit C; (b) the
Documentation; and (c) any Updates.
Exhibit B
1.9 “Licensee Data” means structured data
about and identifiable to customers of Licensee, including
without limitation data about transactions between such
customers and Licensee, (a) that Licensee provides to
Selectron to enable Selectron to provide the Licensed
Software and the Services, (b) that Selectron collects from
Licensee’s customers to facilitate payments by those
customers to Licensee, or (c) that Selectron otherwise
collects or creates, including by automated means, in the
course of performing the Services or providing the
Licensed Software to Licensee.
1.10 “PCI Data” means Cardholder Data
(including, without limitation, Primary Account Number,
cardholder name, expiration date, and Service Code) and
Sensitive Authentication Data (including without limitation
full magnetic stripe data or the equivalent on a chip,
CAV2/CVC2/CW2/CID, PINs/PIN block), as such terms are
defined by the PCI Security Standards Council.
1.11 “Security Incident” means a breach of
security resulting in an unauthorized third party gaining
access to Licensee Data if (a) such breach creates a
substantial risk of harm to Licensee or any individual(s) and
(b) the Licensee Data was accessed in unencrypted, usable,
or readable form or it is reasonably likely that the
unauthorized third party has acquired or will acquire the
decryption key or other means of converting the Licensee
Data to readable or usable form.
1.12 “Services” means the outbound call
management, customization, training, set-up,
configuration, or other services listed in Exhibit A and
further described in Exhibit C hereto, the Technical Support
Services, and any other services Selectron provides to
Licensee as described herein.
1.13 “Technical Support Services” means the
maintenance and technical support services described in
Exhibit B hereto.
1.14 “Term” shall have the meaning set forth
in Section 11.1.
1.15 “Trademarks” shall mean (a) the
trademarks, trade names, and service marks used by a
party, whether registered or unregistered; (b) the
respective stylistic marks and distinctive logotypes for such
trademarks, trade names, and service marks; (c) such other
marks and logotypes as either party may designate from
time to time in writing; and (d) the goodwill connected
with the use of and symbolized by any of the foregoing.
1.16 “Updates” shall mean any modifications,
error corrections, bug fixes, new releases, or other updates
of or to Licensed Software, including the Documentation,
that may be provided or otherwise made available
hereunder by Selectron to Licensee during the Term.
1.17 “Work Product” means any and all work
product, deliverables, materials, drawings, works of
authorship, creative works, designs, inventions,
documentation, methods, processes, techniques, software,
reports, or data created or developed by Selectron in the
course of performing the Services or providing the Licensed
Software, excluding Licensee Data.
2. Grant of License; Restrictions
2.1 Grant of License to Use Licensed
Software. Subject to the terms and conditions of this
Agreement, including the End User License Agreement
(“EULA”) attached hereto as Exhibit D which is incorporated
into and made a part hereof, and the timely payment of all
fees hereunder, Selectron hereby grants to
Licensee a non-exclusive, nontransferable,
nonsublicensable, limited license, during the Term, to
access and use the Licensed Software solely in accordance
with the Documentation and the EULA and solely for
Licensee’s own internal business use. Except as set forth in
this Section 2.1 or the EULA, no other right or license of any
kind is granted by Selectron to Licensee hereunder with
respect to the Licensed Software.
2.2 Software Restrictions. Licensee hereby
acknowledges and agrees that it shall not use the Licensed
Software for any purpose other than the purpose for which
Selectron has developed the Licensed Software, and that it
shall use the Licensed Software in accordance with the
EULA and all applicable laws, rules, and regulations. In the
event of any violation of this Section 2.2 or the terms of the
EULA by Licensee or any person Licensee provides with
access to the Licensed Software (whether or not such
person is an Authorized User), Selectron may terminate
this Agreement in accordance with Section 11.2, and shall
be entitled to equitable relief in accordance with Section
12.5.
2.3 Data Restrictions. Selectron hereby
acknowledges that the Licensee Data may contain sensitive,
personally-identifiable information. Selectron will not
disclose Licensee Data to any third-party except as required
to perform its obligations under this Agreement (e.g.,
transmittal of PCI Data to Licensee’s designated payment
gateway) and will maintain and use the Licensee Data only
for purposes of performing its obligations under
Exhibit B
this Agreement. Except as otherwise expressly provided
herein, Selectron will promptly delete any Licensee Data
that Licensee requests in writing to be deleted (except for
data retention required by law).
2.4 Rights in Aggregate Data.
Notwithstanding Section 2.3, Selectron may, (a) during the
term of this Agreement, use and analyze the Licensee Data
to generate Aggregate Data and (b) during and after the term
of this Agreement, retain, use, publish, and otherwise
disclose Aggregate Data without restriction, so long as the
Aggregate Data is disclosed in a form in which it cannot be
used to identify Licensee or any particular individual(s). By
way of example and without creating any limitation,
Selectron may analyze the Licensee Data along with data
gathered from other sources to generate statistics and
analytics about success rates of municipalities in collecting
payments in response to application notification calls.
3. Deliverables and Services
3.1 Services. Selectron shall perform the
Services described in Exhibit A and Exhibit C and the
Technical Support Services described in Exhibit B in
accordance with the terms of this Agreement.
3.2 Delivery, Testing, and Acceptance. All
deliveries of equipment or physical goods required under
this Agreement shall be F.C.A. Selectron’s facilities.
Selectron shall provide Licensee with the Documentation
and access to the Licensed Software according to the
delivery, testing, and acceptance schedule and terms and
conditions set forth in Exhibit A and Exhibit C. Unless a
testing period of different duration is set forth in Exhibit A
or Exhibit C, Licensee shall have a testing period of thirty
(30) days from the date of delivery of any Licensed
Software, including any customized Licensed Software, to
inspect and test the Licensed Software. If Licensee
provides Selectron with written notice during the
applicable testing period describing the Licensed
Software’s failure to substantially comply with the limited
warranty set forth in Section 7.2 in sufficient detail to
enable Selectron to reproduce such failure, the Service
Fees for the non-conforming Licensed Software shall be
suspended until Selectron corrects any such substantial
non-conformity. If Licensee does not provide such notice
during the testing period, the Licensed Software shall be
deemed accepted, and Licensee’s sole remedy for any non-
conformance shall be the Technical Support Services
provided hereunder.
3.3 Authorized Users; Licensee
Identification and Passwords. Except as provided in
Section 3.4, Licensee shall not permit any person to access
the Licensed Software other than Employees whom
Licensee has designated as Authorized Users. Each
individual natural person shall be a separate Authorized
User for purposes of this Agreement. Licensee shall create
or request that Selectron create unique log-in credentials,
consisting of a “User Identification” and “User Password”,
for each individual Authorized User who shall be accessing
the Licensed Software. Licensee hereby acknowledges that
Licensee and its Authorized Users bear sole responsibility
for protecting the confidentiality of all User Passwords and
shall remain fully responsible and liable for (and Selectron
shall not be responsible or liable for) any unauthorized use
of any User Identifications or User Passwords. Licensee
shall not share or disclose, and shall not permit any
Authorized User to share or disclose, such Authorized
User’s log-in credentials with or to any other individual or
entity, even if such other individual is also an Authorized
User. A User Identification may not be transferred from
one Authorized User to another Authorized User. Licensee
shall promptly terminate (or cause to be terminated by
requesting that Selectron terminate) the User
Identification for any individual who ceases to be an
Authorized User for any reason, including without
limitation due to termination of such individual’s
employment with Licensee. Licensee shall promptly notify
Selectron if it discovers or suspects that any log-in
credentials have been accessed or used by any person
other than the Authorized User to which such log-in
credentials were granted, in which case Selectron shall
promptly reset or provide Licensee with a means of
resetting the password associated with such log-in
credentials.
3.4 Customer Tools. Licensee may permit its
customers to access and use the Customer Tools solely
through Licensee’s website and/or an application that is set
up and maintained as part of the Services (IVR), and solely
for the purpose of enabling such customers to (a) receive
notifications sent by or on behalf of Licensee, (b) make
payments to Licensee, (c) view their invoices from Licensee
and history of payments to Licensee, and (d) update their
contact information with Licensee.
3.5 Hosting. During the Term, Selectron
and/or its designees shall host and maintain the Licensed
Software, and provide access thereto, subject to the terms
and conditions of this Agreement and the EULA.
3.6 Updates, Maintenance, and Technical
Support. During the Term, Selectron shall provide
Licensee with Updates as they are made generally
available by Selectron to its other customers, as well as
Exhibit B
maintenance and technical support, in accordance with the
terms and conditions set forth in Exhibit B. Any Update
provided or made available by Selectron hereunder shall be
deemed part of the Licensed Software and shall be subject to
the terms and conditions of this Agreement.
3.7 Other Modifications to the Licensed
Software. Licensee understands and agrees that Selectron
may make modifications and updates to the Licensed
Software from time to time. Selectron may determine in its
sole discretion whether to provide such modifications and
updates to Licensee and its other customers as an Update
hereunder, or whether such modifications and updates will
be issued as a separate or new product or premium version
of the Licensed Software that is available only at an
additional charge.
3.8 Further Licensee Obligations. Licensee
shall be solely responsible for acquiring and maintaining, at
its own expense, the necessary equipment and Internet and
telecommunication services required to access the
Licensed Software and the Services. Licensee
acknowledges that Selectron shall have no obligation to
assist Licensee in using or accessing the Licensed Software
or the Service except as expressly set forth in this
Agreement.
4. Fees and Payment
4.1 Service Fees. Licensee shall pay to
Selectron service fees (“Service Fees”) in the amounts and
according to the terms and conditions set forth in Exhibit
A. In addition to the payment of Service Fees, unless
different terms are provided for in Exhibit A, Licensee
agrees to reimburse Selectron for all actual, documented
and reasonable travel and out-of-pocket expenses
incurred by Selectron in connection with the performance
of any Services.
4.2 Payment Terms. Unless different
payment terms are set forth in Exhibit A, all fees and
expenses payable hereunder shall be due thirty (30) days
from the date of invoice, and any amounts not paid when
due will incur late fee charges at the rate of 1.5% per
month, or the maximum rate permitted by applicable law,
whichever is lower, calculated on a daily basis. If any
amounts are past due and outstanding, Selectron reserves
the right to suspend the licenses granted hereunder,
suspend access to the Licensed Software, and discontinue
the Services until all outstanding amounts are paid.
Selectron is entitled to recover all costs of collection,
including attorney’s fees and related expenses.
4.3 Disputed Amounts. Any disputed
charges must be presented by Licensee to Selectron in
writing within fifteen (15) days of the date of invoice, and
the parties agree to cooperate in good faith to promptly
resolve any disputed invoice within fifteen (15) days of
Selectron’s receipt of Licensee’s written notice of dispute. In
the event Licensee disputes any amounts invoiced by
Selectron in good faith, the undisputed amount shall be paid
when due, and only disputed amounts shall be withheld
pending resolution of the dispute. If payment of a disputed
amount has already been made and later resolution of the
dispute is in Licensee’s favor, a credit will be issued by
Selectron to Licensee on the next invoice.
4.4 Fee Increases. During the Initial Term, the
Service Fees set forth in Exhibit A shall apply. After the Initial
Term (as defined in Section 11.1 below), Selectron may
increase or change its fees by providing Licensee with notice
of such increase or change at least ninety (90) days prior to
the effective date of such increase or change.
4.5 Taxes. All prices set forth in this
Agreement are in U.S. Dollars and are exclusive of any
applicable taxes. Licensee shall pay, indemnify, and hold
Selectron harmless from all import and export duties,
customs fees, levies, or imposts, and all sales, use, value
added, or other taxes or governmental charges of any
nature, including penalties and interest, and all
government permit or license fees assessed upon or with
respect to any products sold, leased, or licensed to
Licensee and any services rendered to Licensee; provided,
however, that Licensee shall not be responsible for paying
any taxes imposed on, or with respect to, Selectron’s
income, revenues, gross receipts, personnel, or real or
personal property or other assets.
5. Proprietary Rights
As between Selectron and Licensee, Selectron and/or its
licensors own and shall retain all right, title and interest,
including, without limitation, all Intellectual Property
Rights in and to the Licensed Software and any Work
Product resulting from performance of the Services and
any portions thereof, including without limitation any copy
or Derivative Work of the Licensed Software (or any
portion thereof) and any Updates and upgrades thereto.
Licensee agrees to take any action reasonably requested
Exhibit B
by Selectron to evidence, maintain, enforce, or defend the
foregoing. Licensee shall not take any action to jeopardize,
encumber, limit, or interfere in any manner with Selectron’s
or its licensors’ ownership of and rights with respect to the
Licensed Software or Service, or any Derivative Work or
Update or upgrade thereto. The Licensed Software and any
Work Product are licensed, not sold, and Licensee shall have
only those rights in and to the Licensed Software and Work
Product and any Derivative Work or Update or upgrade
thereto as are expressly granted to it under this Agreement,
including the EULA.
6. Proprietary Information
During the Term of this Agreement and after the
termination of this Agreement, the parties will take all steps
reasonably necessary to hold the other party’s Proprietary
Information in confidence, will not use the disclosing party’s
Proprietary Information in any manner or for any purpose
not expressly set forth in this Agreement, and will not
disclose any such Proprietary Information to any third party
without the disclosing party’s express prior written consent;
provided, however, that each party (the “receiving party”)
may disclose Proprietary Information of the other party (the
“disclosing party”) (a) to such receiving party’s employees,
directors, officers, contractors, and agents (collectively,
“Representatives”) who have a need to know such
information and who have been advised of and have agreed
to comply with the confidentiality restrictions contained in
this Section 6 and (b) to such third parties as are authorized
or directed by the disclosing party in writing. Each party
shall be responsible and liable for the actions and omissions
of its Representatives. “Proprietary Information” belonging
to a disclosing party includes, but is not limited to, such
disclosing party’s (a) trade secrets, inventions, ideas,
processes, formulas, source and object codes, data, other
works of authorship, know-how, improvements,
discoveries, developments, designs, and techniques; (b)
information regarding its plans for research, development,
new products, marketing and selling, budgets and
unpublished financial statements, licenses, prices and costs,
suppliers and customers; (c) information regarding the skills
and compensation of Selectron’s employees, and (d) other
information about or belonging to such disclosing party that
the receiving party should reasonably know, due to the
nature of the information or the circumstances surrounding
its disclosure, is regarded by the disclosing party as
confidential. Proprietary Information includes reports,
analyses, notes, and other information or materials that
contain or are derived using the disclosing party’s
Proprietary Information, even if developed in whole or in
part by the receiving party. For clarity, information about
the Licensed Software, including information about its
features, functionality, and pricing, are and shall remain the
Proprietary Information of Selectron. For further clarity,
Licensee Data is and shall remain the Proprietary
Information of Licensee.
Notwithstanding the foregoing, information will not be
considered to be Proprietary Information if (a) it is readily
available to the public other than by a breach of this
Agreement; (b) it has been rightfully received by the
receiving party from a third party without confidentiality
limitations; (c) it has been independently developed by the
receiving party without reference to or use of the disclosing
party’s Proprietary Information; or (d) it was rightfully
known to the receiving party prior to its first receipt from
the disclosing party. The receiving party shall be entitled to
disclose the disclosing party’s Proprietary Information if
required by law or a judicial order; provided that the
receiving party first provides prompt notice of the required
disclosure to the disclosing party, and complies with any
protective or similar order obtained by the disclosing party
limiting the required disclosure.
Notwithstanding anything in this Agreement to the
contrary, Selectron acknowledges that Licensee is a public
agency subject to obligations under the California Public
Records Act, and nothing in this Agreement shall be
interpreted to prevent or prohibit Licensee from disclosing
any information subject to disclosure in accordance with
requirements under applicable law. If Licensee receives a
request for records pursuant to the California Public
Records Act, Licensee shall immediately notify Selectron of
such request and withhold disclosure of the requested
information for at least five (5) business days to permit
Selectron to seek judicial protection of such information.
Selectron shall be responsible for attorney fees and costs in
connection with its attempt to seek judicial protection, and
shall save and hold harmless Licensee from any costs,
attorney fees, or penalty assessment under the California
Public Records Act.
7. Representations and Warranties; Warranty
Exhibit B
Disclaimer.
7.1 Mutual Representations. Each party
represents and warrants to the other party that the
execution, delivery and performance of this Agreement (a)
is within its corporate, municipal, or governmental powers,
as the case may be (b) has been duly authorized by all
necessary corporate, municipal, or governmental action on
such party’s part, and (c) does not and shall not contravene
or constitute a default under, and is not and shall not be
inconsistent with, any law, regulation, judgment, decree or
order, or any contract, agreement, or other undertaking,
applicable to such party.
7.2 Limited Software Warranty and Exclusive
Remedy. Subject to the limitations set forth in this
Agreement, Selectron represents and warrants to Licensee
that the Licensed Software, when used in accordance with
the Documentation, shall throughout the Term substantially
conform to the functional specifications in such
Documentation. If Licensee finds what it reasonably
believes to be a failure of the Licensed Software to
substantially conform to the functional specifications in the
Documentation, and provides Selectron with a written
report that describes such failure in sufficient detail to
enable Selectron to reproduce such failure, Selectron shall
use commercially reasonable efforts to correct or provide a
workaround for such failure at no additional charge to
Licensee in accordance with Exhibit B hereto. Outside the
United States, this limited warranty is only available with
proof of purchase from an authorized source. EXCEPT FOR
THE EXPRESS WARRANTY ABOVE, SELECTRON PROVIDES
THE LICENSED SOFTWARE TO LICENSEE “AS IS” AND “AS
AVAILABLE.” SELECTRON MAKES NO WARRANTY THAT ALL
ERRORS, FAILURES, OR DEFECTS SHALL BE CORRECTED, OR
THAT ACCESS TO OR USE OF THE LICENSED SOFTWARE
SHALL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO
ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED
BY SELECTRON, ITS AGENTS, OR ITS EMPLOYEES, SHALL
CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS
AGREEMENT. This Section states the entire liability of
Selectron and the sole and exclusive remedy of Licensee
with respect to any breach of the foregoing express
warranty.
7.3 Limited Services Warranty and Exclusive
Remedy. Subject to the limitations set forth in this
Agreement, Selectron warrants that the Services shall be
performed in a professional and workmanlike manner.
Selectron’s sole obligation, and Licensee’s exclusive
remedy for breach of the foregoing warranty, is that
Selectron shall use its commercially reasonable efforts to
re-perform the Services or otherwise cure such breach. If,
in Selectron’s sole judgement, curing the breach is not
commercially feasible, Selectron shall credit Licensee for a
portion of the fees allocable to the affected period of time
that is proportionate to the period the Services or
Licensee’s ability to access or use the Licensed Software
was impaired.
7.4 Disclaimer of Other Warranties. THE
EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7 AND
SECTION 8.5.5 CONSTITUTE THE ONLY WARRANTIES MADE
BY SELECTRON WITH RESPECT TO THE LICENSED
SOFTWARE AND THE SERVICES AND ANY OTHER SUBJECT
MATTER OF THIS AGREEMENT. SELECTRON MAKES NO
OTHER, AND HEREBY DISCLAIMS ALL OTHER,
REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF
ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT
OR BY OPERATION OF LAW), OR STATUTORY, WITH
RESPECT TO THE LICENSED SOFTWARE, THE SERVICES, OR
ANY OTHER SUBJECT MATTER OF THIS AGREEMENT.
SELECTRON EXPRESSLY DISCLAIMS ALL WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT,
AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF
DEALING, COURSE OF PERFORMANCE, OR USAGE OF
TRADE. SELECTRON DOES NOT WARRANT THAT ANY USE
OF OR ACCESS TO THE LICENSED SOFTWARE SHALL BE
ERROR-FREE OR SECURE, OR THAT OPERATION OF THE
LICENSED SOFTWARE SHALL BE UNINTERRUPTED, AND
HEREBY DISCLAIMS ANY AND ALL LIABILITY IN
CONNECTION THEREWITH. LICENSEE ACKNOWLEDGES
THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN
THE EXPRESS WARRANTIES IN SECTION 7 AND SECTION
8.55 OF THIS AGREEMENT.
7.5 Defects Not Covered by Warranties.
Selectron shall have no obligations under Section 7.2 to the
extent any nonconformance or failure of, or error in, the
Licensed Software is caused by (a) use of any attachment,
feature, hardware, software, or device in connection with
Exhibit B
the Licensed Software, or combination of the Licensed
Software with any other materials or service, unless the
combination is performed by Selectron; transportation,
neglect, misuse, or misapplication of the Licensed
Software, or any use of the Licensed Software that is not in
accordance with this Agreement, the EULA, and/or the
Documentation; (c) alteration, modification, or
enhancement of the Licensed Software, except as may be
performed by Selectron; (d) failure to provide a suitable
use environment for all or any part of the Licensed
Software; or (e) failure to maintain systems and
environments that are compatible with Updates.
8. Security
8.1 Internet Security. Selectron’s Licensed
Software is made available through the Internet and may be
used to access and transfer information over the Internet.
Licensee is solely responsible for the security and integrity of
information it transfers from the Licensed Software, if any.
Selectron warrants that its software shall comply with any
applicable privacy laws and any applicable minimum
security requirements imposed under California law, and, to
Selectron’s knowledge, shall be free of viruses or malicious
code. Selectron makes no representations or warranties to
Licensee regarding (a) the security or privacy of Licensee’s
network environment, or (b) any third-party technologies’ or
services’ ability to meet Licensee’s security and privacy
needs. These third-party technologies and services may
include, but are not limited to, operating systems, database
management systems, web servers, and payment processing
services. Licensee is solely responsible for ensuring a secure
environment for information it transfers from the Licensed
Software, if any. Further, Licensee acknowledges and agrees
that Selectron does not operate or control the Internet and
that Selectron shall have no responsibility or liability in
connection with a breach of security or privacy regarding the
Licensed Software or information contained therein that is
caused by (a) viruses, worms, Trojan horses, or other
undesirable data or software; (b) unauthorized users, e.g.,
hackers; or any other third party or activity beyond
Selectron’s reasonable control; in each of the foregoing
cases, except to the extent caused by Selectron’s breach of
Section 8.4 or 8.5.
8.2 Remote Access Security. In order to
enable code development and support and maintenance
of the software, Selectron may require remote access
capability. Remote access is normally provided by installing
PC-Anywhere, ControlIT, or other industry standard
remote access software. It may also be provided through a
Licensee solution such as VPN access. Regardless of what
method is used to provide remote access, or which party
provides remote access software, it is Licensee’s
responsibility to ensure that the remote access method
meets Licensee’s security requirements. Selectron makes
no representations or warranties to Licensee regarding the
remote access software’s ability to meet Licensee’s
security or privacy needs. Selectron also makes no
recommendation for any specific package or approach
with regard to security. Licensee is solely responsible for
ensuring a secure network environment.
8.3 Outbound Services Disclaimer.
Outbound services are intended to create additional
methods of communication for Licensee’s employees who
use the Licensed Software in support of existing processes.
These services are not intended to replace all interaction
with Licensee’s end users or employees. While the
outbound services have been created with the best available
tools and practices, they are dependent on infrastructure
that is inherently not fail-proof, including but not limited to
infrastructure such as software, computer hardware,
network services, telephone services, and e-mail. Examples
of situations that could cause failure include but are not
limited to: down phone lines, all lines busy, equipment
failure, email address changes, and Internet service
disruptions. For this reason, while outbound services are
valuable in providing enhanced communication, they are
specifically not designed to be used as the sole method to
deliver critical messages. Licensee acknowledges that it is
aware of the potential hazards associated with relying on an
automated outbound service feature, when using the
Licensed Software, and Licensee acknowledges and agrees
that it is giving up in advance any right to sue or make any
claim against Selectron, and that Licensee forever releases
Selectron from any and all liability caused by (a) any failed
call attempts (including excess of calls over and above
network or system capacity), incomplete calls, or any busy-
outs; (b) any failure to transmit, obtain or collect data from
callers or for human and machine errors, faulty or erroneous
input, inarticulate caller communication, caller delays or call
lengths exceeding estimated call lengths or omissions,
Exhibit B
delays and losses in connection with the Services provided
hereunder; or (c) if Licensee, Licensee’s employees, or
Licensee’s end user suffer injury or damage due to the
failure of outbound services to operate, even though
Licensee does not know what or how extensive those
injuries or damages might be, unless such losses were
directly attributable to Selectron’s gross negligence or
willful misconduct.
8.4 Privacy and Security Standards. Selectron
agrees that it will gather, collect, receive, generate,
store, use, maintain, transmit, process, import, export,
transfer and disclose the Licensee Data substantially in
compliance with applicable data protection, security,
breach notification and privacy laws, rules, regulations
and industry standards to which Selectron is subject.
Selectron shall, at all times, use reasonable measures to
protect the confidentiality of the Licensee Data in its
possession or care, including technical, administrative,
and physical safeguards that are appropriate given the
nature of the Licensee Data.
8.5 PCI Compliance. Selectron warrants
that, during the Term of this Agreement, (a) all system
components, people, processes, and the cardholder data
environment that are used in Selectron’s collection,
transmittal, or other processing of PCI Data on behalf of
Licensee are and shall remain compliant with the applicable
provisions of PCI DSS; and (b) Selectron PayEngineTM,
Selectron’s proprietary payment application, is and shall
remain compliant with PA-DSS. On an annual basis or upon
Licensee’s request, Selectron shall provide Licensee with an
Attestation of Compliance or Attestation of Validation
confirming such compliance.
8.6 Incident Response. In the event
Selectron becomes aware of a confirmed or suspected
Security Incident involving the unauthorized disclosure or
theft of PCI Data, Selectron shall (a) notify Licensee, (b)
cooperate in any investigation, (c) promptly take
reasonable measures to prevent further unauthorized
access or use of the Licensee Data, (d) cooperate with
Licensee’s notification to affected individuals if such
notification is required by applicable law or regulation, and
(e) perform all such other acts, or cooperate with
Licensee’s performance of all such other acts, that are
required with respect to such Security Incident by
applicable law or regulation.
8.7 Limited Scope of PCI Data Processing.
The parties acknowledge that Selectron’s sole processing
of PCI Data on behalf of Licensee shall consist of (a)
collecting PCI Data needed to facilitate payments to
Licensee, (b) transmitting such PCI Data to a third party
payment gateway designated by Licensee, and (c) receiving
confirmation via the payment gateway that the payment
transaction has been completed. After transmittal of PCI
Data to the payment gateway, Selectron will not retain,
store, or continue to use or process such PCI Data.
8.8 Data Transfers Between Licensee and
Selectron. The parties acknowledge that, to facilitate
providing the Services and the Licensed Software,
Selectron and Licensee shall regularly transfer Licensee
Data to each other. Licensee, not Selectron, is responsible
for providing and maintaining a secure file transfer
protocol for such transfer of Licensee Data, and shall be
responsible for maintaining the security of the system
components, environment, and procedures of such file
transfer protocol.
8.9 Licensee’s Privacy Practices. Licensee
acknowledges that the Licensee Data includes information
about individuals with whom Licensee, rather than
Selectron, has direct relationships. Therefore, it is
Licensee’s obligation, and not Selectron’s obligation, to
provide any privacy notices or disclosures to, and obtain any
consent from, such individuals as may be required by
applicable law with respect to processing of the Licensee
Data by Selectron on Licensee’s behalf. Licensee
represents, warrants, and covenants to Selectron that (a)
Licensee has the authority to transmit the Licensee Data to
Selectron; and (b) Selectron’s collection, storage,
transmittal, and other processing of the Licensee Data on
behalf of Licensee, as described in the Documentation and
this Agreement, does not and will not violate any
applicable laws, regulations, ordinances, contracts,
policies, orders, or decrees to which Licensee is subject.
9. Indemnification
9.1 Infringement Indemnity Obligations of
Exhibit B
Selectron. To the fullest extent permitted by law, Selectron
shall, at its own expense, indemnify, protect, defend (by
counsel reasonably satisfactory to Licensee) and hold
harmless Licensee and any and all of its officers, officials,
employees, agents and volunteers (“Indemnified Parties”)
from and against any and all liability (including liability for
claims, demands, damages, obligations, suits, actions,
arbitration proceedings, administrative proceedings,
regulatory proceedings, losses, expenses or costs of any
kind, whether actual, alleged or threatened, including
attorneys fees and costs, court costs, interest, defense
costs and expert witness fees) of any nature (“Liability”),
whether actual, alleged or threatened, which arise out of
any claim that the Licensed Software as furnished
hereunder, which use is in accordance with the terms and
conditions of this Agreement, directly infringes or
misappropriates any valid United States patent, copyright,
or trade secret or other intellectual property right.
Licensee agrees to promptly notify Selectron of
any known or suspected infringement or misappropriation
of Selectron’s proprietary rights of which Licensee becomes
aware. Should the Licensed Software become, or be likely
to become in Selectron’s opinion, the subject of any claim
of infringement, Selectron may, at its option (a) procure for
Licensee the right to continue using the potentially
infringing materials; (b) replace or modify the potentially
infringing materials to make them non-infringing; or (c)
terminate this Agreement and provide Licensee with a
refund equal to the set-up fees paid by Licensee, less an
amount equal to the depreciated portion of such fees
calculated on a five (5) year straight-line basis. This Section
9.1 states the entire liability of Selectron and the exclusive
remedy of Licensee with respect to infringement of any
third-party intellectual property or other rights, whether
under theory of warranty, indemnity, or otherwise.
Selectron’s duty to indemnify, protect, defend and hold
harmless as set forth in this Section shall include the duty
to defend (by counsel reasonably satisfactory to Licensee)
as set forth in California Civil Code § 2778. This
indemnification obligation is not limited in any way by any
limitation on the amount or type of damages or
compensation payable by or for Selectron under worker’s
compensation, disability or other employee benefit acts or
the terms, applicability or limitations of any insurance
held or provided by Selectron and shall continue to bind
the parties after termination/completion of this
agreement. This indemnification shall be regardless of
and not in any way limited by the insurance requirements
of this contract. This indemnification is for the full period
of time allowed by law and shall survive the termination
of this agreement. Selectron waives any and all rights to
express or implied indemnity against the Indemnified
Parties concerning any Liability of Selectron arising out of
or in connection with Selectron’s failure to comply with
any of the terms of this Agreement.
Selectron’s duty to indemnify, protect, defend and hold
harmless as set forth in this Section shall not be excused
because of Selectron’s inability to evaluate liability, or
because Selectron evaluates liability and determines that
Selectron is not or may not be liable. Selectron must
respond within thirty (30) calendar days to any tender by
Licensee, unless the time for responding has been
extended by an authorized representative of Licensee in
writing. If Selectron fails to timely accept such tender, in
addition to any other remedies authorized by law, as much
of the money due or that may become due to Selectron
under this Agreement as shall reasonably be considered
necessary by Licensee may be retained by Licensee until
disposition has been made of the matter subject to
tender, or until Selectron accepts the tender, whichever
occurs first. Selectron agrees to fully reimburse all costs,
including but not limited to attorney’s fees and costs and
fees of litigation incurred by the City in responding to
matters prior to Selectron’s acceptance of the tender.
Selectron also covenants that it shall cooperate with
Licensee in the event of any pending litigation or
investigation related to any Security Incident.
9.2 Infringement Indemnity Obligations of
Licensee. Selectron shall have no liability for any claim
based upon (a) the use, operation, or combination of the
Licensed Software with non-Selectron programs, data,
equipment, or documentation if liability would have been
avoided but for such use, operation, or combination; use
of other than the then-current, unaltered version of the
Licensed Software that incorporates all Updates;
Licensee’s or its agents’ or Employees’ activities after
Selectron has notified Licensee that Selectron believes
such activities may result in infringement; (d) any
modifications to or markings of the Licensed Software
that are not specifically authorized in writing by Selectron;
Exhibit B
(e) any third party software; (f) any Licensee Data; or (g)
Licensee’s breach or alleged breach of this Agreement.
Licensee shall indemnify, defend, and hold Selectron
harmless for, from and against all liabilities, costs,
damages, and expenses (including reasonable attorney’s
fees) awarded against or incurred by Selectron in such
action(s) that are attributable to such claim.
9.3 Reserved
9.4 Security Related Indemnity Obligations
of Licensee. Selectron shall have no liability or obligation to
defend or indemnify Licensee with respect to any Losses
caused by Licensee’s breach of Sections 8.8 or 8.9 or any
Security Incident to the extent caused in whole or in part by
an act or omission of Licensee or any third party (other than
Selectron’s subcontractors) or any of their affiliates,
employees, directors, officers, agents, or contractors (other
than Selectron), including without limitation any of the
following acts or omissions: (a) their loss of control of any
device, (b) their failure to maintain the confidentiality of
log-in credentials, (c) their transmission of data via methods
that are not secure, (d) their failure to maintain systems and
environments that are compatible with any Update, (e)
their violation of the applicable terms of this Agreement or
any applicable laws, regulations, or industry standards, or
(f) any vulnerability in their environment, systems,
hardware, software, or physical or administrative security
safeguards or procedures, including without limitation any
vulnerability in the file transfer protocol maintained by
Licensee pursuant to Section 8.8. Licensee shall indemnify,
defend, and hold harmless Selectron for, from and against
all Losses arising from any such Security Incident or
Licensee’s breach of Sections 8.7 or 8.8, including without
limitation any expenses incurred by Selectron in complying
with its obligations under Section 8.6.
9.5 Conditions for Indemnification. The
parties’ indemnification obligations hereunder shall apply
only if (a) the party to be indemnified (the “indemnitee”
notifies the party obligated to indemnify them (the
“indemnitor”) in writing of a claim promptly upon learning
of or receiving the same; and (b) the indemnitee provides
the indemnitor with reasonable assistance requested by the
indemnitor, at the indemnitor’s expense, for the defense
and settlement, if applicable, of any claim. The indemnitee's
failure to perform any obligations or satisfy any conditions
under this Section 9.5 shall not relieve the indemnitor of its
obligations hereunder except to the extent that the
indemnitor can demonstrate that it has been materially
prejudiced as a result of such failure.
9.6 Control of Defense. After receipt of
notice of a claim, the indemnitor shall be entitled, if it so
elects, at its own cost, risk and expense (a) to take control of
the defense and investigation of such lawsuit or action; and
(ii) to employ and engage attorneys of its own choice to
handle and defend the same; provided, however, that the
indemnitee’s consent shall be required for any settlement
that does not include a full release of all claims. If the
indemnitor fails to assume the defense of such claim within
ten (10) business days after receipt of notice of the claim,
the indemnitee will (upon delivering notice to such effect to
the indemnitor) have the right to undertake, at the
indemnitor’s cost and expense, the defense, compromise or
settlement of such claim on behalf of and for the account
and risk of the indemnitor; provided, however, that such
claim shall not be compromised or settled without the
written consent of the indemnitor. The party that assumes
control of the defense of the claim will keep the other party
reasonably informed of the progress of any such defense,
compromise or settlement. Notwithstanding the foregoing,
the indemnitee shall be entitled to conduct its own defense
at the cost and expense of the indemnitor if the indemnitee
establishes that the conduct of its defense by the
indemnitor would reasonably be likely to prejudice
materially the indemnitee due to a conflict of interest
between the indemnitee and the indemnitor; and provided
further that in any event, the indemnitee may participate in
such defense at its own expense.
10. Limitation of Liability
10.1 Limited Remedy. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, TO THE MAXIMUM EXTENT ALLOWED
BY APPLICABLE LAW, IN NO EVENT SHALL SELECTRON OR
ITS SUPPLIERS OR LICENSORS BE LIABLE FOR, OR BE
OBLIGATED TO INDEMNIFY LICENSEE FOR, ANY LOSS OF
PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE
DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS
ARISING FROM OR RELATING TO THIS AGREEMENT OR
THE SUBJECT MATTER HEREOF, EVEN IF SELECTRON HAS
Exhibit B
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
HOWEVER CAUSED
10.2 Maximum Liability. Notwithstanding
anything in this Agreement to the contrary or the failure of
essential purpose of any limited remedy or limitation of
liability, Selectron’s entire liability arising from or relating to
this Agreement or the subject matter hereof, under any
legal theory (whether in contract, tort or otherwise), shall
not exceed the amounts actually received by Selectron from
Licensee hereunder in the thirty-six (36) months
immediately preceding the action that gave rise to the
claim. Licensee acknowledges that the Service Fees reflect
the allocation of risk set forth in this Agreement and that
Selectron would not enter into this Agreement without the
limitations on liability set forth in this Agreement.
11. Term and Termination
11.1 Term. The term of this Agreement shall
commence on the Effective Date and continue for an initial
period of five (5) years therefrom (the “Initial Term”), and
shall automatically renew for successive one (1) year periods
unless either party notifies the other of its intention not to
renew at least ninety (90) days before the end of the then-
current term (collectively, the “Term”).
This Agreement shall be subject to termination for non-
appropriation by Licensee at any time.
If Licensee cancels prior to the end of the Initial Term of
three (3) years Selectron shall be entitled to compensation
based on the number of months services were actually
provided and the annual managed service fee shall be pro-
rated accordingly. In no event shall the City be billed for an
annual managed service fee for years in which no services
are provided by Selectron.
11.2 Termination for Default. If either party
materially defaults in any of its obligations under this
Agreement, the non-defaulting party, at its option, shall
have the right to terminate this Agreement by written
notice to the other party unless, within sixty (60) calendar
days after written notice of such default, the defaulting
party remedies the default, or, in the case of a default which
cannot with due diligence be cured within a period of sixty
(60) calendar days, the defaulting party institutes within the
sixty (60) day-period substantial steps necessary to remedy
the default and thereafter diligently prosecutes the same to
completion. Notwithstanding anything herein to the
contrary, in the event Licensee breaches the EULA or
Sections 2.2, 5 and/or 6 of this Agreement, Selectron may
immediately terminate this Agreement. Licensee shall
notify Selectron within twenty-four (24) hours of Licensee’s
becoming aware of any breach (other than by Selectron) of
the terms and conditions of this Agreement, including,
without limitation, any breach of Sections 2.2, 5 or 6.
11.3 Termination for Bankruptcy. Either
party may terminate this Agreement if the other party (a)
becomes insolvent; (b) fails to pay its debts or perform its
obligations in the ordinary course of business as they
mature; (c) is declared insolvent or admits its insolvency or
inability to pay its debts or perform its obligations as they
mature; or (d) becomes the subject of any voluntary or
involuntary proceeding in bankruptcy, liquidation,
dissolution, receivership, attachment, or composition, or
makes a general assignment for the benefit of creditors,
provided that, in the case of an involuntary proceeding, the
proceeding is not dismissed with prejudice within sixty (60)
days after the institution thereof.
11.4 Effect of Termination. Upon the
expiration or termination of this Agreement, all rights and
licenses granted to Licensee hereunder shall immediately
and automatically terminate. Within ten (10) days after any
termination or expiration of this Agreement, Licensee shall,
at its sole expense, return to Selectron (or destroy, at
Selectron’s sole election) all Licensed Software and
Proprietary Information of Selectron (and all copies,
summaries, and extracts thereof) then in the possession or
under the control of Licensee and its current or former
employees. Licensee shall furnish to Selectron an affidavit
signed by an officer of Licensee certifying that, to the best of
its knowledge, such delivery or destruction has been fully
effected. Termination of this Agreement by either party shall
not act as a waiver of any breach of this Agreement and shall
not act as a release of either party from any liability for
breach of such party’s obligations under this Agreement.
Neither party shall be liable to the other for damages of any
kind solely as a result of terminating this Agreement in
accordance with its terms. Either party’s termination of this
Agreement shall be without prejudice to any other right or
remedy that it may have at law or in equity, and shall not
relieve either party of liability for breaches occurring prior to
Exhibit B
the effective date of such termination. Any provisions that
would reasonably be expected by the parties to survive
termination of this Agreement shall survive such
termination, including without limitation the provisions of
the EULA and Sections 1 (“Definitions”), 2.2 (“Software
Restrictions”), 2.3 (“Data Restrictions”), 2.4 (“Rights in
Aggregate Data”), 4 (“Fees and Payment”) (with respect to
amounts accrued but as-yet unpaid), 5 (“Proprietary
Rights”), 6 (“Proprietary Information”), 7 (“Representations
and Warranties;
Warranty Disclaimer”), 8 (“Security”), 9
(“Indemnification”), 10 (“Limitation of Liability”), 11
(“Term and Termination”) and 12 (“General Provisions”).
12. General Provisions
12.1 Notices. Any notice, request, demand or
other communication required or permitted hereunder
shall be in writing, shall reference this Agreement, and
shall be deemed to be properly given (on the earliest of) (a)
when delivered personally; (b) when sent by facsimile, with
written confirmation of receipt; or (c) upon receipt three
(3) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid. All notices
shall be sent to the address set forth on the signature page
below (or to such other address as may be designated by a
party by giving written notice to the other party pursuant
to this Section 12.1).
12.2 Governing Law; Jurisdiction. This
Agreement shall be governed by and construed in
accordance with the laws of the State of California, without
reference to its conflicts of law provisions. The United
Nations Convention on Contracts for the International Sale
of Goods does not apply to and shall not be used to
interpret this Agreement. Any dispute regarding this
Agreement must be brought in the state or federal courts
located in California.
12.3 Construction. This Agreement has been
negotiated by the parties and their respective counsel. This
Agreement shall be interpreted fairly in accordance with its
terms and without any construction in favor of or against
either party.
12.4 Attorneys’ Fees. If any legal action is
brought relating to this Agreement or the breach hereof,
the prevailing party in any final judgment shall be entitled
to the full amount of all reasonable expenses, including all
court costs and reasonable attorney fees paid or incurred.
12.5 Injunctive Relief. In the event that
Licensee breaches any provision of the EULA or Sections 2,
5, or 6 or any other material provision of this Agreement,
Licensee acknowledges and agrees that there may be no
adequate remedy at law to compensate Selectron for such
breach, that any such breach may result in irreparable harm
to Selectron that would be difficult to measure; and,
therefore, that upon any such breach or threat thereof,
Selectron shall be entitled to seek injunctive and other
appropriate equitable relief (without the necessity of
proving actual damages or of posting a bond or other
security), in addition to whatever remedies Selectron may
have at law, in equity, under this Agreement, or otherwise.
12.6 Waiver. The waiver by either party of a
breach of or a default under any provision of this
Agreement, shall be in writing and shall not be construed
as a waiver of any subsequent breach of or default under
the same or any other provision of this Agreement, nor
shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy that it has or
may have hereunder, operate as a waiver of any right or
remedy.
12.7 Severability. If the application of any
provision of this Agreement to any particular facts or
circumstances shall be held to be invalid or unenforceable,
then (a) the validity and enforceability of such provision as
applied to any other particular facts or circumstances and
the validity of other provisions of this Agreement shall not in
any way be affected or impaired thereby, and (b) such
provision shall be enforced to the maximum extent possible
so as to effect the intent of the parties, and reformed
without further action by the parties, to the extent
necessary to make such provision valid and enforceable.
Without limiting the generality of the foregoing, Licensee
agrees that Section 7.4 will remain in effect notwithstanding
the unenforceability of any other provision hereof.
12.8 Independent Contractor Relationship.
Selectron’s relationship with Licensee will be that of
independent contractor, and nothing contained in this
Exhibit B
Agreement shall be deemed or construed as creating a
joint venture, partnership, or employer-employee
relationship. Licensee is not an agent of Selectron and is
not authorized to make any representation, contract, or
commitment on behalf of Selectron, or to bind Selectron in
any way. Selectron is not an agent of Licensee and is not
authorized to make any representation, contract, or
commitment on behalf of Licensee, or to bind Licensee in
any way. Selectron will not be entitled to any of the
benefits that Licensee may make available to its
employees, such as group insurance, profit sharing, or
retirement benefits.
12.9 Force Majeure. Except for the payment
of monies due hereunder, neither party shall be responsible
or have any liability for any delay or failure to perform to
the extent due to unforeseen circumstances or causes
beyond its reasonable control, including, without limitation,
acts of God, earthquake, fire, flood, embargoes, labor
disputes and strikes, riots, war, error in the coding of
electronic files, Internet or other network “brownouts” or
failures, power failures, novelty of product manufacture or
other unanticipated product development problems, and
acts of civil and military authorities; provided that such
party gives the other party prompt written notice of the
failure to perform and the reason therefor and uses its
reasonable efforts to limit the resulting delay in its
performance and to mitigate the harm or damage caused
by such delay.
12.10 Reserved.
12.11 U.S. Government Rights. (a) The Licensed
Software is a “commercial item,” as that term is defined at
48 C.F.R. 2.101, consisting of “commercial computer
software” and “commercial computer software
documentation,” as such terms are used in 48 C.F.R. 12.212
or 48 C.F.R. 227.7202, as applicable. Consistent with 48
C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4,
the Licensed Software are licensed to any U.S. Government
End Users (i) only as a commercial item and (ii) with only
those rights as are granted to all other end users pursuant to
the terms and conditions herein. Manufacturer is Selectron
Technologies, Inc., 12323 SW 66th Avenue, Portland, OR
97223, USA. This Section, consistent with 48 C.F.R. § 12.212
and 48 C.F.R. § 227.7202 is in lieu of, and supersedes, any
other Federal Acquisition Regulation, Defense Federal
Acquisition Regulation Supplement, or other clause or
provision that addresses United States Government rights in
computer software, technical data, or computer software
documentation.
(b) The parties agree that, in the event that Licensee
is a governmental entity, all other state and local
governments within Licensee’s state may purchase a
license from Selectron to use the Licensed Software under
the same terms and conditions as set forth in this
Agreement by entering into a master services and hosting
agreement with the same terms and conditions as set forth
herein with Selectron.
12.12 Export Controls. The Licensed Software is
subject to the export control laws of the United States and
other countries. Licensee may not export or re-export the
Licensed Software, unless Licensee has first obtained
Selectron’s prior written permission and the appropriate
United States and foreign government licenses, at Licensee’s
sole expense. Licensee must otherwise comply with, and
contractually require that all of its employees comply with,
all applicable export control laws and regulations in the use
of the Licensed Software. None of the Licensed Software
may be downloaded or otherwise exported or re-exported
(a) into any country for which the United States has a trade
embargo, or (b) to anyone on the U.S. Treasury
Department’s list of Specially Designated Nationals or the
U.S. Commerce Department’s Denied Persons List. Licensee
represents and warrants that it is not located in, under the
control of, or a national or resident of any such country or
on any such list. Licensee shall defend, indemnify and hold
Selectron and all successors, assigns, affiliates, suppliers,
and each of their officers, directors, employees, and agents
harmless for, from, and against any and all claims,
allegations, damages, liabilities, and costs and expenses
(including without limitation attorneys’ fees and costs)
arising out of Licensee’s violation of such export control
laws. Licensee further agrees to comply with the United
States Foreign Corrupt Practices Act, as amended.
12.13 Captions and Section Headings. The captions
and Section and paragraph headings used in this Agreement
are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement.
Exhibit B
12.14 Counterparts. This Agreement may be
signed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement, and,
when taken together, shall be deemed to constitute one
and the same agreement. Each party agrees that the
delivery of this Agreement by facsimile transmission or by
PDF attachment to an e-mail transmission will be deemed
to be an original of the Agreement so transmitted and, at
the request of either party, the other party will confirm
facsimile or e-mail transmitted signatures by providing the
original document.
12.15 Modification; Subsequent Terms. No
amendment or modification of any provision of this
Agreement shall be effective unless in writing and signed
by a duly authorized signatory of Selectron and Licensee.
To the extent that the terms and conditions of the Exhibits
hereto or Exhibits to subsequent amendments or
modifications of or to the Agreement (“Subsequent
Terms”) differ from those herein, those Subsequent Terms
shall control the interpretation and any conflict resolution
thereof. The terms on any purchase order or similar
document submitted by Licensee to Selectron will not
modify the terms and conditions of this Agreement.
12.16 Entire Agreement; Amendment. This
Agreement, including the Exhibit(s) attached hereto,
constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes (a)
all prior or contemporaneous representations,
discussions, proposals, negotiations, conditions,
agreements, and communications, whether oral or written,
between the parties relating to the subject matter of this
Agreement, and (b) all past courses of dealing and industry
custom.
Exhibit B
In Witness Whereof, the parties have caused this Agreement to be executed by duly authorized representatives of the
parties as of the Effective Date.
SELECTRON TECHNOLOGIES, INC. LICENSEE
By: _______________________________________ By: ____________________________________
Signature Signature
Name: Todd A. Johnston Name:
Title: President Title:
Exhibit B
Date: Date:
Address: 12323 SW 66th Avenue
Portland, OR 97223
Address: ________________________________
Exhibit B
EXHIBIT A
Scope of Work
MANAGED SERVICE RELAY PERMIT IVR
Pricing*
Year over Year Pricing Year 1 Year 2 Year 3 Year 4 Year 5 TOTAL
Annual Managed Service Fee
Includes: Platform Setup; Application
Support; Managed Services Fee;
25,000 Annual calls
$65,000 $23,750 $23,750 $23,750 $23,750 $160,000
TOTAL $65,000 $23,750 $23,750 $23,750 $23,750 $160,000
* pricing above illustrated over a 5-year period for planning purposes.
Required Items Not Included with Relay
• Required application database interface (please contact your provider to purchase, if applicable)
• Application database interface components must be installed and tested prior to development
Call Definition
IVR Services are provided by the Call. A Call is defined as a successful completed connection. A Call can be up to 4
minutes in length, with each additional 4-minute period counted as an additional Call. When a caller initiates a transfer
from the IVR, this results in an additional Call being counted.
Per call overage fees are charged monthly after included call limit has been reached. Additional calls over 25,000 annual
calls will be charged at $0.45 per call.
Channel Integration
Application Database Integration: TRAKiT
A Standard Application Database is defined as an Application Database that exposes the needed data and transaction
business rules via an Application Programming Interface (API). All functionality is contingent on the accessibility of the
data and business logic from the Application Database via an API
Exhibit B
MANAGED SERVICE PAYMENT TERMS
Pricing does not include additional application integration charges that may be required as part of this solution. This includes the
TrakIt Application API, user, or implementation fees, additional licensing fees, or other surcharges directly or indirectly charged by
or remitted to the TrakIt Application Vendor.
Setup Fee Payment Schedule
45% Invoiced upon execution of contracts
55% Invoiced upon delivery of product for User Acceptance Testing
Annual Managed Service Fee
100% Invoiced 45 days prior to beginning of service period. If applicable, per message overage fees are charged monthly
in arrears after included limits has been reached.
Taxes
Sales Tax or any other applicable taxes are NOT included in any of this proposal's pricing information.
Payment Terms
Terms are net 30 from date of invoice. Past due invoices are subject to a 1.5% per month late fee. All presented pricing is in US
Dollars.
Selectron Information
Selectron Technologies, Inc.
12323 SW 66th Avenue
Portland, Oregon 97223
Phone: 866.878.0048 | Fax: 503.443.2052
Exhibit B
Exhibit B
EXHIBIT B
Maintenance and Technical Support
This Exhibit describes the software maintenance and support services that Selectron shall provide for Licensee.
I. Definitions
Unless defined otherwise herein, capitalized terms used in this Exhibit shall have the same meaning as set forth in
the Agreement.
A. “Error” means any failure of the Licensed Software to conform in any material respect with
the Documentation.
B. “Error Correction” means either a bug fix, patch, or other modification or addition that brings the
Licensed Software into material conformity with the Documentation.
C. “Priority A Error” means an Error that renders Licensed Software inoperative or causes
a complete failure of the Licensed Software, as applicable.
D. “Priority B Error” means an Error that substantially degrades the performance of Licensed
Software, as applicable, or materially restricts Licensee’s use of the Licensed Software, as applicable.
E. “Priority C Error” means an Error that causes only a minor impact on Licensee’s use of
Licensed Software, as applicable.
II. Error Reporting and Resolution
A. Error Reporting. Selectron shall provide Licensee with telephone customer support twenty-four
(24) hours per day, seven (7) days per week for the reporting of Priority A Errors, and telephone support during
Selectron’s normal business hours for the reporting of Priority B and Priority C Errors, in each event excluding
Selectron holidays.
B. Licensed Software Error Resolution. Selectron shall use commercially reasonable efforts to: (a)
notify applicable Vendors of all Licensed Software Errors properly reported by Licensee in accordance with
Section II(A) of this Exhibit B; (b) make available to Licensee any Error Corrections that are made available by
such Vendor(s) to Selectron promptly after such Error Corrections are delivered to Selectron; and (c) update
Licensee with respect to the progress of the resolution of all Licensed Software Errors.
C. Error Resolution. Licensee shall report all Errors in the Licensed Software to Selectron in
sufficient detail, with sufficient explanation of the circumstances under which the Error occurred or is occurring,
and shall reasonably classify the Error as a Priority A, B, or C Error. Selectron shall use commercially reasonable
efforts to correct any Error in the Licensed Software reported by Licensee, in accordance with the priority level
actually assigned by Selectron to such Error, as follows:
1. Priority A Errors. In the event of a Priority A Error, Selectron shall, within two (2) hours
of receiving Licensee’s report, commence verification of the Error. Upon verification, Selectron shall use
commercially reasonable efforts to resolve the Error with an Error Correction. Selectron shall use commercially
reasonable efforts to provide a workaround for the Error within twenty-four (24) hours of receiving Licensee’s
report of such Error, and an Error Correction within forty-eight (48) hours of receiving Licensee’s report. Selectron
Exhibit B
shall provide Licensee with periodic reports (no less frequently than once every eight (8) hours) on the status of
the Error Correction.
2. Priority B Errors. In the event of a Priority B Error, Selectron shall, within six (6) hours of
receiving Licensee’s report, commence verification of the Error. Upon verification, Selectron shall use
commercially reasonable efforts to resolve the Error with an Error Correction. Selectron shall use commercially
reasonable efforts to provide a workaround for the Error within forty-eight (48) hours of receiving Licensee’s
report of such Error, and an Error Correction within six (6) business days of receiving Licensee’s report. Selectron
shall provide Licensee with periodic reports (no less frequently than once every twelve (12) hours) on the status
of the Error Correction.
3. Priority C Errors. In the event of a Priority C Error, Selectron shall, within two (2)
business days of receiving Licensee’s report, commence verification of the Error. Upon verification, Selectron shall
use commercially reasonable efforts to resolve the Error with an Error Correction. Selectron shall use
commercially reasonable efforts to provide a workaround for the Error within six (6) business days of receiving
Licensee’s report of such Error, and an Error Correction within three (3) weeks of receiving Licensee’s report.
Selectron shall provide Licensee with periodic reports on the status of the Error Correction.
Exhibit B
EXHIBIT C
Statement of Work
Exhibit B
Statement of Work
Rohnert Park, CA
Relay
Permits
1. Overview ..................................................................................................... 2
1.1. Revision History ........................................................................................................... 2
2. Functionality ................................................................................................ 3
2.1. The Relay Platform .......................................................................................................... 3
2.2. Permits Pack .................................................................................................................... 3
3. System Integration ....................................................................................... 4
3.1. Application Database Interfaces ..................................................................................... 4
4. Deployment Model ...................................................................................... 5
4.1. Hosted IVR Access ........................................................................................................... 5
5. Administrative Tasks .................................................................................... 5
5.1. Run System Reports ........................................................................................................ 5
6. Responsibilities ............................................................................................ 6
6.1. Selectron Technologies, Inc ............................................................................................ 6
6.2. Rohnert Park, CA ............................................................................................................. 7
Exhibit B
1. Overview
This Statement of Work (SOW) outlines the services provided by Selectron Technologies, Inc.
(Selectron) to Rohnert Park, CA (Rohnert Park or Customer). The features, functionality, and services
are provided through Selectron Technologies’ Relay communication platform (Relay).
1.1. Revision History
Version # Details Date
1.0 Initial Release 4/1/2021
April 1, 2021 Page 2 of 9
Exhibit B
2. Functionality
This section details the functionality of each application included in Relay. All functions and
features are dependent upon the accessibility of Rohnert Park’s TRAKiT application database to
provide the given data to Relay.
2.1. The Relay Platform
Rohnert Park’s solution is powered by Selectron’s Relay platform. Relay is a multi-
channel, multi-agency platform that is designed to connect customers, constituents, and
field workers to government agencies and utilities. Relay offers interactive voice
response (IVR), web, mobile, outbound, call center agent, and field worker capabilities
all in a single platform.
The following sections detail the functionality that will be implemented for Rohnert
Park. Additional channels, applications, and integrations that are not specified in this
SOW are not included, but may be able to be added to the system under a supplemental
statement of work. Please contact your Selectron representative for more details for
additional functionality.
2.1.1. Application Packs and Channels
Rohnert Park’s solution includes the following application pack and channels:
• Application packs:
o Permits Pack
• Channels:
o IVR
2.2. Permits Pack
Rohnert Park will be configured with the Relay Permits Pack. The Permits Pack offers
Rohnert Park’s customers with a central point of access for permit information and
services. Callers will be able to enter a permit number and perform the following
actions:
• Contractor Menu
o Access inspection results
o Permit based messaging
o Schedule/reschedule inspections
o Cancel inspections
o Hear site address for the permit
• Inspector Menu
o Post inspection results
o Post correction codes
o Leave Message for contractor
April 1, 2021 Page 3 of 9
Exhibit B
All permit, inspection, and/or code information is made available through an API to
the TRAKiT application database. For any of the features detailed below to function as
described, data must be available in this database to be presented to users.
2.2.1. IVR Channel
The IVR Channel for the Permits Pack provides callers with an Interactive Voice
Response (IVR) system for accessing and posting permit information. The IVR offers
functionality in the form of a Contractor Menu and an Inspector Menu.
Using the Contractor Menu, a contractor can enter a permit number to access permit
information and functions. Upon entering a valid permit number, the user can
schedule, reschedule, and/or cancel inspections. After an inspection has been
scheduled/ rescheduled/canceled, the caller will receive a confirmation number.
Additionally, contractors can use the IVR to access inspection results, including any
associated correction codes and descriptions. Finally, the contractor can access
messages left for them by an inspector, or leave a message for an inspector.
Using the Inspector Menu, accessible via a hidden main menu option, an inspector can
enter a permit number to post inspection results via the IVR. When posting results, the
caller will need to enter a valid Inspector PIN number (or some other validation number
to be determined during implementation). The PIN can be determined by Rohnert Park,
but must be validated by the TRAKiT database. When posting results, inspectors can
add correction codes as well as leave a message for the contractor.
If desired, callers can be given the option to transfer to an agent. If a caller requests a
transfer, the Relay IVR performs a transfer to a number specified by Rohnert Park.
3. System Integration
Depending on the implemented features, Relay requires varying levels of integration with other
Rohnert Park components. These are described in the following sections.
3.1. Application Database Interfaces
It is anticipated that Selectron will be integrating with Rohnert Park’s TRAKiT
application database. All data-based interactivity on the solution is reliant upon data
being available via the application vendor, TrakIt APIs.
During the implementation phase, if data elements are identified as necessary but are
not available via the included APIs, the project will be impacted. This may affect the
implementation timeframe and will result in additional professional services fees.
April 1, 2021 Page 4 of 9
Exhibit B
4. Deployment Model
This implementation of Relay will be deployed in Selectron’s single-tenant Relay Managed
Services environment.
Relay Managed Services is a single-tenant hosted application, located in Selectron’s local hosting
facility. Selectron’s hosting facility is a co-located data center featuring keyed entry and individual
server locks for security. With a Managed Services solution, Selectron owns all hardware and is
responsible for security, ongoing maintenance, and proactive support.
Rohnert Park’s solution is licensed for:
• Four (4) inbound IVR ports allowing for up to four concurrent calls
• 25,000 inbound calls
4.1. Hosted IVR Access
For optimal user experience and telecom usage, it is recommended that callers access
the hosted IVR by dialing directly into the hosted solution using a local Rohnert Park 10-
digit number, which will be provided by Selectron. If Rohnert Park elects to have calls
routed through your phone system first before connecting to the IVR, two customer
telecom channels may be tied up during the duration of the entire call, and callers may
experience a decrease in call quality.
5. Administrative Tasks
This section details administrative tasks that can be performed in order to manage Relay. All system
administration for Relay is handled through the Relay Portal web application. An administrator
from Rohnert Park will be provided with user credentials for the Relay Portal application during the
implementation process. Additional users can be created by the administrator as needed.
Permissions can be assigned on a per-user basis; permissions govern the functionality available to a
given user.
The Relay Portal provides Rohnert Park administrators with a single platform for viewing
system usage and health, running reports, and configuring various system settings. The Relay
Portal is supported on all modern, “evergreen” browsers including: Chrome, Firefox, IE10+,
Microsoft Edge, and Safari.
5.1. Run System Reports
Rohnert Park administrators will be able to run system reports via the Relay
Portal. Reports that can be run by the administrator include:
• Call Statistics
• Call Activity
• Call Detail
April 1, 2021 Page 5 of 9
Exhibit B
6. Responsibilities
6.1. Selectron Technologies, Inc.
This section outlines Selectron Technologies’ responsibilities regarding service initiation
and operation.
6.1.1. Provide Project Management
Selectron Technologies assigns a Project Manager to the service implementation. The
Project Manager is the Customer’s primary contact at Selectron Technologies and
coordinates all necessary communication and resources.
6.1.2. Provide Documentation
The Project Manager provides the Customer with the following documents to
help facilitate the service implementation process:
• Implementation Questionnaire- gathers critical information needed to
setup and initiate the service. This includes information on the toll-free
numbers, call volume, APIs.
• Remote Access Questionnaire- details information needed by Selectron
Technologies to remotely access the Customer’s network and application
database, prior to system initiation, to allow for complete system testing.
• Implementation Timetable- details project schedule and all project
milestones.
• Quality Assurance Test Plan- assists the Customer in determining that the
interactive solution is functioning as specified in the Contract.
• Service Acceptance Sign-off Form- indicates that the Customer has verified
service functionality.
6.1.2.1. Develop Channel Design
The Project Manager works with the Customer to develop and complete the following
portions of channel design:
• IVR call flow design
Software development cannot begin until these design elements are completed
and approved by the Customer.
6.1.3. Perform Quality Assurance Testing
Selectron Technologies thoroughly tests all applications and integration points prior to
initiation, ensuring system functionality. This includes data read from and written to the
April 1, 2021 Page 6 of 9
Exhibit B
application database and the general ability for a customer to successfully access live
data and complete a transaction.
6.1.4. Provide Installation and Administrative Training
Selectron will provide remote training for the Relay solution. All installation is handled
by Selectron technical staff at our remote hosting facility.
6.1.5. Provide Marketing Materials
Selectron Technologies provides marketing collateral that the Customer can use to
promote the interactive solution to citizens. Marketing collateral includes a poster, tri-
fold brochure, and business card; standard templates for each item are used. Collateral
is provided to the Customer in PDF format (original Adobe InDesign files are provided
upon request).
Marketing collateral will be provided for each department included in this project.
Selectron Technologies’ Project Manager will assist in gathering the correct information
to be displayed on the marketing collateral. Information displayed includes the
following:
• IVR phone number(s)
• Department logo (preferably in EPS format)
• Department address
• A description of functionality
• Additional contact/informational phone numbers
• Samples: where to find account/ permit/ case numbers, etc.
Any changes to the collateral that do not include the items listed above (e.g., design
changes to the template) are billed on a time and materials basis. Any changes to the
marketing materials after final delivery are also billed on a time and materials basis.
6.1.6. Interface Upgrades
After service initiation, Rohnert Park’s TRAKiT database application may release new
updates to their application or its interface. Upgrading the Relay interface to be
compatible with any Rohnert Park application database (or other application database
software) may require professional services outside the scope of this service.
6.2. Rohnert Park, CA
This section outlines the Customer’s service implementation and
maintenance requirements and responsibilities.
April 1, 2021 Page 7 of 9
Exhibit B
6.2.1. Return Questionnaires and Information
Selectron Technologies’ Project Manager provides Rohnert Park with an implementation
questionnaire. The implementation questionnaire must be returned prior to developing
the call flow design and the implementation timetable.
6.2.2. Provide Customer Specific Information
The following information should be supplied to Selectron Technologies, in
conjunction with the Implementation Questionnaire, to help create a precisely
integrated product. For further clarification on the format and detail of the following
data, refer to the Implementation Questionnaire or contact your Selectron
Technologies’ Project Manager.
• Street names
• Observed holidays
• Extensions used for transfer functions
• Permit status codes and types
• Inspection types and descriptions
• Validations used for scheduling an inspection
• Correction codes and descriptions
• Permit numbering scheme
6.2.2.1. Approve Channel Configuration
The Customer is responsible for approving the application design developed by
Selectron Technologies’ Project Manager. This includes reviewing:
• Call flow for the IVR solution
Once the channel design(s) have been approved, software development begins.
6.2.3. Provide Remote Network Access to Application Database(s)
In order to fully test the interactive solution, Selectron Technologies requires access to
Rohnert Park’s application database(s) prior to installation. The Customer will help
facilitate communication between Selectron and the database Vendor.
6.2.4. Provide System Access
Selectron Technologies requires access to the Customer’s network and database/
system. Changing or deleting access accounts could lead to disruption in service for the
interactive solution and/or Selectron Technologies’ ability to provide timely support.
Please notify Selectron Technologies immediately if the accounts for the Application
Database or network are modified. Rohnert Park is responsible for providing Selectron
April 1, 2021 Page 8 of 9
Exhibit B
with appropriate application database network access as defined in the
System Integration section.
6.2.5. Confirm Service Functionality
Rohnert Park, CA has 30 calendar days after service initiation to verify the functionality
of the interactive solutions. Within the 30-day system acceptance period the Customer
should test system functionality using the provided Quality Assurance Test Plan.
Additionally, the System Acceptance Sign-off form must be sent to Selectron
Technologies’ Project Manager within this period.
6.2.6. Contact Customer Support
Anytime the Customer requests a significant change to their Selectron interactive
solution, an authorized contact from the agency must provide acknowledgement to
Selectron’s Customer Support Department. A significant change is a modification that
will A) change system behavior, B) allow users to change the system, or C) allow access
to protected data.
April 1, 2021 Page 9 of 9
Exhibit B
EXHIBIT D
SELECTRON TECHNOLOGIES, INC.
END USER LICENSE AGREEMENT
This End User License Agreement (this “EULA”) is part of a Master Services and Hosting Agreement (the
“Master Agreement”) between Selectron Technologies, Inc., an Oregon corporation (“Selectron”, “we”, “our”, or
“us”) and the person or entity identified in the Master Agreement as the Licensee purchasing Services from us
(“Licensee”). This EULA governs use by Licensee and all natural persons to whom Licensee provides access to the
Licensed Software (each, an “Authorized User”). In this EULA, unless the context clearly indicates otherwise, all
references to “you,” or “your” means both the Licensee and the Authorized User. All capitalized terms used but not
defined in this EULA have the meanings given to them in the Master Agreement.
SELECTRON PROVIDES THE LICENSED SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN
THIS EULA AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. IF YOU DO NOT AGREE TO THE
TERMS OF THIS EULA, SELECTRON WILL NOT AND DOES NOT LICENSE THE LICENSED SOFTWARE TO YOU, AND YOU
MUST NOT USE OR ACCESS THE SOFTWARE.
1. License Grant. Subject to your strict compliance with this EULA, Selectron hereby grants you a non-
exclusive, non-transferable, non-sublicensable, limited license to use the Licensed Software solely in accordance with
the Documentation, the Master Agreement, and this EULA, for Licensee's internal business purposes. The foregoing
license will terminate immediately on the earlier to occur of:
(a) the expiration or earlier termination of the Master Agreement between Selectron and
Licensee; or
(b) your ceasing to be authorized by Licensee to use the Licensed Software for any or no
reason.
2. Scope of License. Subject to and conditioned upon Licensee's timely payment of the fees set forth in the
Master Agreement and your strict compliance with all terms and conditions set forth in this EULA and the Master
Agreement, you have a limited right and license to:
(a) Use and access the Licensed Software in accordance with this EULA and the
Documentation, solely for Licensee's internal business purposes.
(b) Download, display, and use the Documentation, solely in support of Licensee’s use and
access of the Licensed Software in accordance herewith.
(c) Download, display, copy, use, and create derivative works of reports and structured data
generated using the Licensed Software, solely for Licensee’s internal business purposes.
3. Copies. All copies of the Licensed Software and Documentation made by you:
(a) Will be the exclusive property of Selectron;
(b) Will be subject to the terms and conditions of the Master Agreement and this EULA; and
Exhibit B
(c) Must include all trademark, copyright, patent and other intellectual property rights
notices contained in the original.
4. Use Restrictions. You shall not, directly or indirectly:
(a) Use the Licensed Software beyond the scope of the license granted in the Master
Agreement and Section 2 of this EULA;
(b) Copy all or any portion of the Licensed Software, except as expressly permitted in Section
2 of this EULA;
(c) Decompile, disassemble, decode, or otherwise reverse engineer the Licensed Software,
or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques
used or embodied in the Licensed Software or any portion thereof;
(d) Modify, translate, adapt or otherwise create derivative works or improvements, whether
or not patentable, of the Licensed Software or any part thereof;
(e) Provide any other person, including any subcontractor, independent contractor, affiliate,
service provider, or other employee of Licensee, with access to or use of the Licensed Software, except as expressly
permitted by the Master Agreement or this EULA;
(f) Distribute, disclose, market, rent, lease, lend, sell, timeshare, sublicense, assign,
distribute, pledge, publish, transfer or otherwise make available the Licensed Software or any features or
functionality of the Licensed Software, to any third party for any reason, whether or not over a network and whether
or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual
private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology
or service, except as expressly permitted by the Master Agreement or this EULA;
(g) Use the Licensed Software for the commercial or other benefit of a third party;
(h) Permit the Licensed Software to be used for or in connection with any facility
management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise used for processing
data or other information on behalf of any third party;
(i) Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or
other intellectual property or proprietary rights notices, legends, symbols, or labels appearing on or in the Licensed
Software, including any copy thereof;
(j) Perform, or release the results of, benchmark tests or other comparisons of the Licensed
Software with other software or materials;
(k) Incorporate the Licensed Software or any portion thereof into any other materials,
products, or services, except as expressly permitted by the Master Agreement or this EULA;
(l) Use the Licensed Software for any purpose other than in accordance with the terms and
conditions of this EULA and the Master Agreement.
(m) Use the Licensed Software in, or in association with, the design, construction,
maintenance or operation of any hazardous environments or systems, including (i) power generation systems; (ii)
Exhibit B
aircraft navigation or communication systems, air traffic control systems or any other transport management
systems; (iii) safety-critical applications, including medical or life-support systems, vehicle operation applications or
any police, fire or other safety response systems; (iv) military or aerospace applications, weapons systems or
environments;
(n) Use the Licensee Data or the Licensed Software in any way that is fraudulent, misleading,
or in violation of any applicable laws or regulations (including federal, state, local, and international laws and
regulations), including but not limited to export or import control laws, information privacy laws, and laws governing
the transmission of commercial electronic messages; or
(o) Use the Licensed Software for purposes of competitive analysis of the Licensed Software,
the development of a competing software product or service or any other purpose that is to Selectron's commercial
disadvantage.
5. Collection and Use of Information. Selectron may, directly or indirectly through the services of others,
including by automated means and by means of providing maintenance and support services, collect and store
information regarding your use of the Licensed Software, its performance, the equipment through which the Licensed
Software accessed and used, such as dates and times of use by each Authorized User, activities conducted using the
Licensed Software, the type of web browser used to access the Licensed Software, the operating system/platform you
are using, your IP address, and your CPU speed. You agree that the Selectron may use such information for any purpose
related to the Licensed Software, including but not limited to improving the performance of the Licensed Software,
developing Updates, and verifying compliance with the terms of this Agreement and enforcing Selectron's rights,
including all intellectual property rights in and to the Licensed Software.
6. Intellectual Property Rights. You acknowledge that the Licensed Software is provided under license, and not
sold, to you. You do not acquire any ownership interest in the Licensed Software under this EULA or the Master
Agreement, or any other rights to the Licensed Software other than to use the Licensed Software in accordance with
the license granted under this EULA and the Master Agreement, subject to all terms, conditions and restrictions
contained therein and herein. Selectron reserves and shall retain its entire right, title and interest in and to the
Licensed Software and all intellectual property rights arising out of or relating to the Licensed Software, subject to
the licenses expressly granted in the Master Agreement and this EULA. You shall use commercially reasonable efforts
to safeguard all Licensed Software (including all copies thereof) from infringement, misappropriation, theft, misuse
or unauthorized access.
7. Login Credentials. You, the Authorized User, shall not share or disclose your log-in credentials with or to any
other individual or entity, even if such other individual is also an Authorized User. If you discover or suspect that log-in
credentials of any Authorized User have been accessed or used by anyone other than the individual to whom such log-
in credentials were originally granted, you will promptly notify Selectron, and Selectron shall promptly reset or provide
Licensee with a means of resetting the password associated with such log-in credentials.
8. Export Regulation. The Licensed Software may be subject to US export control laws, including the US Export
Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release
the Licensed Software to, or make the Licensed Software accessible from, any jurisdiction or country to which
export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws,
regulations and rules, and complete all required undertakings (including obtaining any necessary export license or
other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Licensed
Software available outside the US.
9. Governing Law. This EULA shall be governed by and construed in accordance with the internal laws of the State
of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California
Exhibit B
or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of
California.
Exhibit B
EXHIBIT E
INSURANCE REQUIREMENTS
Selectron shall procure and maintain the following insurance coverages for the duration of the contract. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (nonowned), with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Not required if consultant provides written verification it has no employees) 4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Selectron in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. 5. Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant’s profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Selectron in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City of Rohnert Park in the care, custody, or control of Selectron. If not covered under Selectron’s liability policy, such “property” coverage of the City may be endorsed onto the Cyber Liability Policy as covered property as follows: If Selectron maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Selectron. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. . Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status
Exhibit B
The City of Rohnert Park, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Selectron including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). General liability and auto policies shall have a “Separation of Insureds” provision substantially equivalent to that used in the ISO form CG 00 01 10 01 or their equivalent. Primary Coverage For any claims related to this contract, Selectron’s insurance coverage shall be primary. Coverage for commercial liability shall be at least as broad as ISO CG 20 01 04 13 with respect to the City of Rohnert Park, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of Selectron’s insurance and shall not contribute with it. Notice of Cancellation Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City of Rohnert Park. Waiver of Subrogation Selectron hereby grants to the City of Rohnert Park a waiver of any right to subrogation which any insurer of Selectron may acquire against the City by virtue of the payment of any loss under such insurance. Selectron agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Self-Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Selectron to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to the City. Claims Made Policies If any of the required policies provide coverage on a claims-made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Selectron must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work. Verification of Coverage Selectron shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to the City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Selectron’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Exhibit B
Subcontractors Selectron shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Selectron shall ensure that the City and its officers, employees and volunteers are additional insureds on insurance required from subcontractors.