HomeMy WebLinkAbout17- Software License, Maintenance and Support Agreement - Journal Technologies, Inc. - JusticeWeb Software Sales Order r I
Journal Technologies Technologies
843 South 100 West
Logan, Utah 84321
1.877.587.8927
City of Bozeman Sales Order Number: 17-2338
PO Box 1230 Sales Order Date: May 25, 2017
Bozeman,MT 59715 Terms: Due on Invoice Receipt
Account Executive: Ben Stocks
Item Total Price
I JusticeWeb Annual Maintenance Fees $5,000
1 JusticeWeb Training&Configuration $5,000
Sales Order Amount: $10,000
Payment Milestones
Milestone Description Cost Inclusions Amount
1 Acceptance • JusticeWeb Annual Maintenance
Fees $10,000
• JusticeWeb Training & Confi
a s Order Signing
K -� jk
City of Bozeman Authorized Signature,Title and Date
cn=Jon Peek,o=Chief Operating
\� \ Officer,ou=Journal Technologies Inc,
0 email=jpeek@journaltech.com,c=US Jon Peek, COO
2017.05.26 14:34:48-06'00'
Journal Technologies,Inc.Authorized Signature,Title and Date
Journal Technologies,Inc.
SOFTWARE LICENSE, MAINTENANCE AND SUPPORT AGREEMENT
This SOFTWARE LICENSE, MAINTENANCE AND SUPPORT AGREEMENT(this
"Agreement"), by and between Journal Technologies, Inc., a Utah corporation (hereinafter
"Licensor"), and City of Bozeman, a self governing municipal corporation organized and
existing under its Charter and the laws of the State of Montana (hereinafter"Licensee"), is made
as of the date executed by both Licensor and Licensee (the"Effective Date"). In consideration
for the representations and agreements contained herein, the parties hereby covenant and agree as
follows:
1. DEFINITIONS
1.1 Application Administrator is a designated employee or contractor of Licensee
responsible for managing the case management system. This role includes communicating with
Licensor staff for support,troubleshooting problems, and coordinating maintenance tasks.
1.2 Documentation includes user, administrative and technical electronic guides
which facilitate the use of and relate to the Licensed Software, together with any written product
information, instructions, specifications or use guidelines made available by Licensor.
1.3 Go Live means that the Licensed Software is being Used (as defined below) in an
operational capacity with operational data in Licensee's production environment.
1.4 Licensed Software means the proprietary computer software program or
programs identified in Exhibit A("LICENSE, MAINTENANCE AND SUPPORT FEES"),
together with all related Documentation.
1.5 License,Maintenance and Support Fees means the fees to be paid by Licensee
to Licensor annually in advance of each year of the License Term pursuant to Section 2.2.2
("License, Maintenance and Support Fees").
1.6 Maintenance means enhancements, upgrades and new releases of the Licensed
Software,which includes only those additions and/or modifications to the Licensed Software
which (A) enhance functionality and/or performance without fundamentally altering the nature
or manner in which the Licensed Software operates, and (B) are made generally available
without additional or increased charges to other persons entitled to receive maintenance from
Licensor.
1.7 Professional Services Agreement means that certain Professional Services
Agreement between Licensor and Licensee, of even date herewith.
1.8 Support means access to technical assistance for the Licensed Software,
including support for questions about functionality, the resolution of error messages, bug fixes
and troubleshooting.
1.9 Use or Using means (i)transferring any portion of the Licensed Software from
storage units or media into computer or terminal equipment for utilization or processing; (ii)
accessing any portion of the Licensed Software for any purpose (including, without limitation,
viewing information already in the Licensed Software); or(iii) merging any Licensed Software
in machine readable form into another program.
1.10 User means (a) any individual person, computer terminal or computer system
(including, without limitation, any workstation, pc/cpu, laptop and wireless or network node)that
has been authorized by the Licensee (through a username and password)to use the Licensed
Software, (b) any other non-court government employees and contractors who are performing
their jobs, or a computer terminal or computer system used by such a person, in each case,
interfacing with or accessing the Licensed Software through an interface or its public portal or
(c) any individual person who is a member of the general public (including litigants and their
attorneys, reporters and interested citizens, but not government employees or contractors who are
performing their jobs), or a computer terminal or computer system used by such a person,
accessing the Licensed Software at any given time for any reason through its public portal
(including to file documents electronically or to view information already in or accessible
through the Licensed Software).
2. LICENSE
2.1 Grant of License. Upon commencement of the License Term, Licensor grants to
Licensee and Licensee hereby accepts from Licensor a non-exclusive, non-transferable, personal
license to install and Use the Licensed Software; provided, however,that Licensee's rights with
respect to the Licensed Software are at all times and in all respects subject to the terms and
conditions of this Agreement. Licensee's authorized Users may Use the Licensed Software only
during the License Term and only so long as Licensee has paid the required License,
Maintenance and Support Fees and is not otherwise in default under this Agreement. This license
includes the right to make one copy of the Licensed Software in machine-readable form solely
for Licensee's back-up purposes. The Licensed Software is the proprietary information and a
trade secret of Licensor and this Agreement grants Licensee no title or rights of ownership in the
Licensed Software. The Licensed Software is being licensed and not sold to the Licensee. The
Licensed Software is protected by United States copyright laws and international copyright
treaties, as well as other intellectual property laws.
2.2 License Term and License, Maintenance and Support Fees.
2.2.1 License Term. The License Term shall commence on the date of Go Live;
provided that the License, Maintenance and Support Fees for the first year of the License Term
and any unpaid fees for implementation services under the Professional Services Agreement
must be received within 30 days of such date. The License Term shall continue until the fifth
anniversary of the date of Go Live, and shall thereafter automatically renew for successive one-
year periods (the "License Term"), unless Licensee elects to not renew the License Term upon
written notice to Licensor given not less than ninety (90) days prior to the end of the then-current
License Term.
2.2.2 License,Maintenance and Support Fees. Licensee shall make payment of
the License, Maintenance and Support Fees to Licensor based on the number of Users and
calculated in accordance with Exhibit A, in advance of each applicable year of the License Term,
including each year of the original License Term and each one-year extension;provided that the
License, Maintenance and Support Fees for the first year of the License Term and any unpaid
fees for implementation services under the Professional Services Agreement must be paid within
30 days after Go Live. Annual License, Maintenance and Support Fees are subject to increase in
accordance with Exhibit A. All sales taxes or similar fees levied on account of payments to
Licensor are the responsibility of Licensee.
2.2.3 Certain Specific Limitations. Licensee shall not, and shall not permit any
User or other party to, (a) copy or otherwise reproduce, reverse engineer or decompile all or any
part of the Licensed Software, (b) make alterations to or modify the Licensed Software, (c) grant
sublicenses, leases or other rights in or to the Licensed Software, or(d)permit any party access
to the Licensed Software for purposes of programming against it. Licensee is solely responsible
for all data entered, contained in and modified while using the Licensed Software, including,
without limitation,the accuracy, responsibility for archival, loss of, use and misuse of all such
data.
2.2.4 E-Commerce Functionality Fees. If JusticeWeb is included in the
Licensed Software and the e-commerce functionality of JusticeWeb is utilized, Licensor shall
provide a PCI compliant payment gateway and payment processing functionality. A merchant
services agreement will be provided to Licensee upon request. If Licensee requires an alternate
payment processor provider, Licensee is responsible for all additional development costs to
connect JusticeWeb with the payment processor provider.
3. MAINTENANCE AND SUPPORT
3.1 Maintenance. Maintenance will be provided for the Licensed Software provided
that Licensee has paid the applicable License, Maintenance and Support Fees described in
Section 2.2.2, and subject to all of the terms and conditions of this Agreement. Maintenance for
the Licensed Software will be available when the applicable enhancement, upgrade or release is
first made generally available to persons entitled to receive maintenance from Licensor.
3.2 Support. Support for JusticeWeb is available by telephone, e-mail, or internet
support forum from 5:00 am to 7:00 pm Mountain time, Monday through Friday, except for
federal holidays Licensor shall generally provide an initial response within four (4) hours of first
contact. Licensor shall use all reasonable diligence in correcting verifiable and reproducible
errors reported to Licensor. Licensor shall, after verifying that such an error is present, initiate
work in a diligent manner toward development of a solution. If the error is categorized as
"Critical" (meaning an error for which there is no workaround and which causes data loss,
affects a mission critical task or poses a possible security risk that could compromise the
system), Licensor shall provide a solution through a service release as soon as possible. Licensor
shall not be responsible for correcting errors in any version of the Licensed Software other than
the current version, with the exception of Critical errors, for which a service release will be
provided for the most recent previous version as well. Licensor shall not be responsible for
errors caused by hardware limitations or failures, network infrastructure, operating system
problems, operator errors or any errors related to processes, interfaces or other software.
3.3 Conditions to Receive Support.
3.3.1 Licensee must designate one or more Application Administrators, each of
whom shall be an employee or contractor of Licensee. Only a designated Application
Administrator may request Support. It is the responsibility of Licensee to instruct Users to route
Support requests through the Application Administrator.
3.4 Other Support. Services that go beyond routine Support may be provided under
the terms of a professional services agreement upon agreement of the parties.
4. WARRANTY
4.1 Licensed Software Warranty. Licensor warrants that the Licensed Software will
perform in all material respects during the License Term in accordance with the applicable user,
administrative, and technical electronic guides. Notwithstanding the foregoing, this warranty
shall not apply and Licensor will incur no liability whatsoever if there is or has been (a) the
combination of the Licensed Software with any other software not recommended,provided or
authorized by Licensor, (b)modification of the Licensed Software, (c) any use of the Licensed
Software in breach of this Agreement or(d) any failure to satisfy the conditions to receive
Support under Section 3.4 above. If at any time during the License Term the Licensed Software
fails to perform according to this warranty, Licensee shall promptly notify Licensor in writing of
such alleged nonconformance, and Licensor shall provide bug fixes and other Support, but only
so long as the alleged nonconformance is not caused by an act of Licensee or any third party not
under the control of or authorized by Licensor. After the bug fixes and Support have been
provided, if any such non-performance materially impairs the ability of Licensee to utilize the
Licensed Software, Licensee shall have the right, on thirty(30) days' notice, to terminate the
license and this Agreement(with a credit for License, Maintenance and Support Fees paid with
respect to the period in which utilization was materially impaired).
4.2 Warranty of Law. Licensor represents and warrants that to the best of Licensor's
knowledge: (i)there is no claim, litigation or proceeding pending or threatened against Licensor
with respect to the Licensed Software or any component thereof alleging infringement of any
patent or copyright or any trade secret or any proprietary right of any person; (ii) the Licensed
Software complies in all material respects with applicable laws,rules and regulations; (iii)
Licensor has full authority to enter into this Agreement and to consummate the transactions
contemplated hereby; and (iv)this Agreement is not prohibited by any other agreement to which
Licensor is a party or by which it may be bound(the"Legal Warranty"). In the event of a
breach of the Legal Warranty, Licensor shall indemnify and hold harmless Licensee from and
against any and all losses, liabilities, damages, causes of action, claims, demands, and expenses
(including reasonable legal fees and expenses) incurred by Licensee, arising out of or resulting
from said breach.
4.3 Warranty of Title. Licensor further warrants that(i) it has good title to the
Licensed Software; (ii) it has the absolute right to license the Licensed Software; (iii) as long as
Licensee is not in material default hereunder, Licensee shall be able to quietly and peacefully
possess and Use the Licensed Software provided hereunder subject to and in accordance with the
provisions of this Agreement; and (iv) Licensor shall be responsible for and have full authority to
license all proprietary and/or third party software modules, algorithms and protocols that are
incorporated into the Licensed Software (the "Title Warranty"). In the event of a breach of the
Title Warranty, Licensor shall indemnify and hold harmless Licensee from and against any and
all losses, liabilities, damages, causes of action, claims, demands, and expenses (including
reasonable legal fees and expenses) incurred by Licensee, arising out of or resulting from said
breach.
4.4 No Other Warranties. THE WARRANTIES AND REPRESENTATIONS
STATED WITHIN THIS AGREEMENT ARE EXCLUSIVE, AND IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
5. LIMITATIONS ON LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANTICIPATED PROFITS OR
REVENUES IN CONNECTION WITH OR ARISING OUT OF THE SUBJECT MATTER OF
THIS AGREEMENT. FURTHERMORE, LICENSEE'S TOTAL LIABILITY WITH
RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS
AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF
FEES PAYABLE HEREUNDER TO LICENSOR. IN NO EVENT SHALL LICENSOR'S
TOTAL LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT
MATTER OF THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL
AMOUNT OF FEES PAID HEREUNDER TO LICENSOR FOR THE FIRST FIVE-YEARS
OF THE LICENSE TERM.
6. CONFIDENTIALITY
6.1 Licensee's Responsibilities. Licensee hereby agrees that(a)the Licensed
Software and other materials received from Licensor under this Agreement are the confidential
and proprietary information of Licensor, (b) Licensee shall take all necessary steps to protect and
ensure the confidentiality of the Licensed Software and other materials, and (c) except as
permitted by the terms of Section 2.1 ("Grant of License"), neither the Licensed Software nor
any of the other materials shall be in any way disclosed by Licensee to any third party, in whole
or in part, without the prior written consent of Licensor, which may be granted or withheld in its
sole discretion. If Licensee becomes aware of the unauthorized possession of the Licensed
Software or any of the other materials, it shall promptly notify Licensor. Licensee shall also
assist Licensor with preventing the recurrence of such unauthorized possession and with any
litigation against the third parties deemed necessary by Licensor to protect its proprietary rights.
6.2 Licensor's Responsibilities. Licensor hereby agrees that (a) any information
related to the official business of Licensee that Licensor obtains from Licensee in the course of
the performance of this Agreement is the confidential and proprietary information of Licensee,
(b) Licensor shall take all necessary steps to protect and ensure the confidentiality of such
information, and (c) such information shall not be in any way disclosed by Licensor to any third
party, in whole or in part, without the prior written consent of Licensee, which may be granted or
withheld in its sole discretion. If Licensor becomes aware of the unauthorized possession of such
information, it shall promptly notify Licensee. Licensor shall also assist Licensee with
preventing the recurrence of such unauthorized possession and with any litigation against the
third parties deemed necessary by Licensee to protect its proprietary rights.
6.3 Confidentiality Breach. In the event a party breaches any of its obligations under
this Section 6 ("Confidentiality"), the breaching party shall indemnify, defend and hold harmless
the non-breaching party from and against any and all losses, liabilities, damages, causes of
action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred
by the non-breaching party arising out of such breach. In addition,the non-breaching party will
be entitled to obtain injunctive relief against the breaching party.
6.4 Exclusions. The provisions of this Section 6 ("Confidentiality") shall not apply to
any information (a)that is in the public domain prior to the disclosure or that that becomes part
of the public domain other than by way of a breach of this Agreement, (b)that was in the lawful
possession of the Licensor or Licensee, as the case may be, prior to the disclosure without a
confidentiality obligation to any person, (c)that was disclosed to the Licensor or Licensee, as the
case may be, by a third party who was in lawful possession of the information without a
confidentiality obligation to any person, (d)that was independently developed by Licensor or
Licensee, as the case may be, outside the scope of this Agreement or(v)that Licensor or
Licensee, as the case may be, is required to disclose by law or legal process.
7. TERM AND TERMINATION
7.1 Term. The term of this Agreement shall expire at the end of the License Term or,
if earlier, upon termination of this Agreement in accordance with the terms of this Section 7
("Term and Termination").
7.2 Termination by Licensor.
7.2.1 Payment Default. Licensor shall have the right to terminate the license
granted in Section 2.2 ("License Term and License,Maintenance and Support Fees"), and this
Agreement(but reserving cumulatively all other rights and remedies under this Agreement, in
law and/or in equity), for any failure of Licensee to make payments of moneys due when the
same are due, and such failure continues for a period of thirty(30) days after written notice
thereof by Licensor to Licensee.
7.2.2 Other Licensee Defaults. Licensor may terminate the license granted in
Section 2.2 ("License Term and License, Maintenance and Support Fees"), and this Agreement
(but reserving cumulatively all other rights and remedies under this Agreement, in law and/or in
equity), for any other material breach by Licensee which breach continues for a period of thirty
(30) days after written notice thereof by Licensor to Licensee.
7.3 Termination by Licensee. Licensee shall have the right to terminate this
Agreement (reserving cumulatively all other rights and remedies under this Agreement, in law
and/or in equity) without further obligation or liability to Licensor(except as specified herein) if
Licensor commits any material violation or breach of this Agreement and fails to remedy such
breach within thirty(30) days after written notice by Licensee to Licensor of such breach.
Licensee shall have the right to terminate this Agreement effective immediately and without
prior notice if Licensor goes into liquidation or bankruptcy, or if Licensor permanently
discontinues Maintenance and Support for the Licensed Software.
7.4 Actions Upon and Following Termination. Termination of this Agreement shall
not affect any rights and/or obligations of the parties which arose prior to any such termination
and such rights and/or obligations shall survive any such termination. Licensee must cease use
of the Licensed Software immediately upon termination, and must remove and return the
Licensed Software and all other products and information received by Licensee from Licensor
within thirty(30) days after termination. If not removed and returned within such thirty(30) day
period, Licensee hereby grants Licensor the right to remove the Licensed Software. In addition,
the confidentiality obligations of the parties in Section 6 ("Confidentiality") shall survive the
termination of this Agreement.
8. GENERAL
8.1 Waiver Amendment or Modification. The waiver, amendment or modification of
any provision of this Agreement or any right,power or remedy hereunder shall not be effective
unless made in writing and signed by both parties. No failure or delay by either party in
exercising any right, power or remedy with respect to any of its rights hereunder shall operate as
a waiver thereof.
8.2 Notice. All notices under this Agreement shall be in writing and shall be deemed
to have been duly given if delivered in person, by commercial overnight courier or by registered
or certified mail, postage prepaid, return receipt requested, and addressed as follows:
To Licensor: Journal Technologies, Inc.
843 S 100 W
Logan, UT 84321
Attention: COO
and
Munger, Tolles & Olson LLP
355 South Grand Avenue, 36th Floor
Los Angeles, CA 90071
Attention: Mark Sayson
To Licensee: City of Bozeman
PO Box 1230
Bozeman, MT 59771-1230
Attention: City Attorney
8.3 No Third Party Beneficiaries. This Agreement is not intended to create any right
in or for the public, or any member of the public, any subcontractor, supplier or any other third
party, or to authorize anyone not a party to this Agreement to maintain a suit to enforce or take
advantage of its terms.
8.4 Successors and Assigns. Neither party may assign this Agreement in whole or
part without the prior written consent of the other party. Any attempt to assign this Agreement
without the prior written consent of the other party is void and without legal effect, and such an
attempt constitutes grounds for termination by the other party. Subject to the foregoing, all of the
terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and
be binding upon, any successor and any permitted assignees of the respective parties hereto. It is
further understood and agreed that consent by either party to such assignment in one instance
shall not constitute consent by the party to any other assignment. A transfer of corporate control,
merger, sale of substantially all of a party's assets and the like, even though including this
Agreement as an assigned asset or contract, shall not be considered an assignment for these
purposes.
8.5 Dispute Resolution. Any dispute arising under or related to this Agreement shall
be resolved exclusively as follows,with the costs of any mediation and arbitration to be shared
equally by both parties:
8.5.1 Initial Resolution by Meeting. The parties shall first attempt to resolve
amicably the dispute by meeting with each other, by telephone or in person at a mutually
convenient time and location, within thirty(30) days after written notice of a dispute is delivered
from one party to the other. Subsequent meetings may be held upon mutual agreement of the
parties.
8.5.2 Mediation. If the dispute is not resolved within sixty(60) days of the first
meeting,the parties shall submit the dispute to mediation by an organization or company
specializing in providing neutral,third-party mediators. Licensee shall be entitled to select either
(i)the location of the mediation or(ii)the organization or company, and Licensor shall select the
other. The mediation shall be conducted within sixty(60) days of the date the dispute is
submitted to mediation, unless the parties mutually agree on a later date.
8.5.3 Arbitration. Any dispute that is not otherwise resolved by meeting or
mediation shall be exclusively resolved by arbitration between the parties in accordance with the
Comprehensive Arbitration Rules &Procedures of JAMS,with the arbitration to be conducted in
Los Angeles, California, or another location mutually agreed by the parties. The results of such
arbitration shall be binding on the parties, and judgment may be entered in any court having
jurisdiction. Notwithstanding the foregoing, either party may seek interim injunctive relief from
any court of competent jurisdiction.
8.6 Control of Defense. All indemnification obligations under this Agreement are
conditioned upon (i)written notice by the indemnified party to the indemnifying party within
thirty (30) days of the indemnified party's receipt of any claim for which indemnification is
sought, (ii)tender of control over the defense and settlement to the indemnifying party and (iii)
such reasonable cooperation by the indemnified party in the defense as the indemnifying party
may request; provided, however,the indemnifying party shall not, without the prior written
consent of the indemnified party, settle, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim unless the settlement, compromise or consent
provides for and includes an express, unconditional release of such claim against the indemnified
party.
8.7 Nondiscrimination. Licensor agrees that all hiring by Licensor of persons
performing this Agreement shall be on the basis of merit and qualifications. Licensor will have a
policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts. Licensor will not refuse employment
to a person,bar a person from employment, or discriminate against a person in compensation or
in a term, condition, or privilege of employment because of race, color, religion, creed, political
ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender
identity,physical or mental disability, except when the reasonable demands of the position
require an age,physical or mental disability, marital status or sex distinction. Licensor shall
require these nondiscrimination terms of its subcontractors providing services under this
Agreement.
8.8 Nonappropriation. In the event that prior to the commencement of any fiscal year
of Licensee during the term of this Agreement Licensee does not appropriate sufficient funds to
permit Licensee to discharge its payment obligations under this Agreement, Licensee may
terminate this Agreement as of the date of the commencement of such fiscal year by giving
Licensor sixty(60) days prior written notice of Licensee's intent to terminate.
8.9 Governing Law. The validity, construction and performance of this Agreement
and the legal relations among the parties to this Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to its conflict of law
principles.
8.10 Severability. In the event any one or more of the provisions of the Agreement
shall for any reason be held to be invalid, illegal or unenforceable,the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a provision,which, being valid, legal and enforceable, comes closest to the intention
of the parties underlying the invalid, illegal or unenforceable provision.
IN WITNESS WHEREOF,the parties have caused this instrument to be duly executed as
of the date last written below.
JOURNAL TECHNOLOGIES,INC:
cn=Jon Peek,o=Chief Operating
Officer,ou=Journal Technologies
Inc.,email jpeek@journaltech.com,
c=US
BY: 2017.05.2614:35:12-06'00' Date:
Printed Name and Title: Jon Peek, COO
City of Bozeman
By: ?'�-- t Date: ZO —
Printed Name and Title: \ tA N� J tl✓ 13 1 W
Journal Technologies, Inc.
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT(this "Agreement"), by and between
Journal Technologies, Inc., a Utah corporation (hereinafter"Journal Technologies"), and City
of Bozeman (hereinafter"Client'), a self governing municipal corporation organized and
existing under its Charter and the laws of the State of Montana, is made as of the date executed
by both Journal Technologies and Client(the"Effective Date").
In consideration for the representations and agreements contained herein, the parties
hereby covenant and agree as follows:
1. DEFINITIONS
1.1 Deliverable(s)means one or more items (which may include software, services or
other items)to be delivered by Journal Technologies to Client under a Statement of Work or this
Agreement.
1.2 Project means each project undertaken by Journal Technologies under Section 2
("Services")pursuant to a Statement of Work.
1.3 Service Fees means the fees to be paid by Client for Services, as set forth in the
Pricing Proposal attached hereto as Exhibit A for the initial Services or in the applicable
Statement of Work for additional Services.
1.4 Services means those services provided by Journal Technologies to Client under
Section 2 ("Services") of this Agreement.
1.5 Statement of Work means a statement of work,prepared and executed pursuant
to the provisions of Section 2 ("Services") of this Agreement.
2. SERVICES
2.1 Projects. Journal Technologies agrees to provide Services to Client, as such may
be determined from time to time in accordance with the provisions of this Section 2 ("Services").
All Services will be rendered in accordance with the provisions of this Agreement,the applicable
Statement of Work and any other guidelines agreed upon in writing by Journal Technologies and
Client.
2.2 Project Requests. If Client requests Services, Client shall submit a reasonably
detailed Project request to Journal Technologies. Journal Technologies shall have the right to
request additional details about the proposed Project described in the Project request. If Journal
Technologies believes that it can provide the requested services,within a commercially
reasonable time, Journal Technologies shall submit a proposed Statement of Work to Client.
2.3 Completion of Statements of Work.
2.3.1 Final Statement of Work. Upon Client's receipt of a proposed Statement
of Work, Journal Technologies and Client shall attempt reasonably to meet, consult and
agree upon a final Statement of Work.
2.3.2 Incorporations of Statement of Work. At such time as the parties shall
have agreed upon a Statement of Work, the Statement of Work as so completed,
approved and executed by their authorized representatives shall constitute an agreement
under and be subject to the non-conflicting provisions of this Agreement.
2.4 Changes. Modifications to a Statement of Work shall be accomplished by the
negotiation and execution of an amendment reasonably satisfactory to each of the parties, which
may result in an increase or decrease in the overall cost of a Project.
2.5 Journal Technologies' Employees and Subcontractors; Indemnification Generally.
Journal Technologies shall require all of its employees and subcontractors to comply with the
terms of this Agreement and any reasonable and lawful employment and security policies and
procedures adopted from time to time by Client. Journal Technologies shall procure all business
permits necessary to perform under this Agreement and pay all related fees. Journal
Technologies and Client shall each indemnify, defend and hold harmless the other and their
respective affiliates, officers, directors, employees and agents, from and against any and all
losses, liabilities, damages, causes of action, claims, demands, and expenses (including
reasonable legal fees and expenses) incurred by the indemnified party, arising out of or resulting
from (i)the violation by the indemnifying party or its employees, agents, or contractors of any
applicable law, order, ordinance, regulation or code or(ii)the gross negligence or intentional
misconduct of the indemnifying party or its employees, agents or contractors.
2.6 Status Reporting. Journal Technologies will provide reasonable status reports to
Client upon request.
2.7 Status Meetings. If Client so requests, Journal Technologies shall hold periodic
status meetings with Client management in order to review the status of Journal Technologies
activities.
2.8 Record Keeping and Inspection. Journal Technologies shall maintain reasonable
accounting records, in a form sufficient to substantiate Journal Technologies' charges hereunder.
Journal Technologies shall retain such records in accordance with its general record retention
policies. Client shall have the right to inspect any such records upon reasonable notice, at Journal
Technologies' main office and during Journal Technologies' normal business hours.
2.9 Ownership of Product of Services. Unless otherwise specified to the contrary in
the applicable Statement of Work, all data, materials, Deliverables and other products developed
by Journal Technologies under a Statement of Work or this Agreement shall be and remain the
sole and exclusive property of Journal Technologies, which shall retain all rights therein;
provided that upon payment of all required amounts by Client, Client shall have the right to
utilize any Deliverables for Client's internal purposes in accordance with the terms and
conditions of the Statement of Work and the applicable license agreement(or, in the absence of
an applicable license agreement, on a perpetual, royalty-free basis following the payment of all
applicable Service Fees).
3. WARRANTIES
3.1 Services Warranties. Journal Technologies warrants that the Services rendered to
Client pursuant to this Agreement shall be performed in a competent and professional manner,
and that each of Journal Technologies' employees, contractors and agents assigned to perform
Services pursuant to this Agreement shall have training, background and skills commensurate
with the level of performance reasonably expected for the tasks to which he or she is assigned.
3.2 Warranty of Law. Journal Technologies warrants and represents that to the best
of its knowledge: (i) Journal Technologies has full authority to enter into this Agreement and to
consummate the transactions contemplated hereby and (ii) this Agreement is not prohibited by
any other agreement to which Journal Technologies is a party or by which it may be bound (the
"Legal Warranty"). In the event of a breach of the Legal Warranty, Journal Technologies shall
indemnify and hold harmless Client from and against any and all losses, liabilities, damages,
causes of action, claims, demands, and expenses (including reasonable legal fees and expenses)
incurred by Client, arising out of or resulting from said breach.
3.3 No Other Warranties. THE WARRANTIES AND REPRESENTATIONS
STATED WITHIN THIS AGREEMENT ARE EXCLUSIVE, AND IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. WARRANTIES WITH RESPECT TO THE OPERATION OF ANY
DELIVERABLE SHALL BE AS SET FORTH IN THE APPLICABLE LICENSE
AGREEMENT OR STATEMENT OF WORK.
4. PAYMENT
Service Fees shall be payable in respect of Services provided by Journal Technologies
(including its agents and contractors)to, for, or at the request of Client or those acting on its
behalf under this Agreement, including but not limited to installation, configuration,training and
the like. If such Services are provided pursuant to a Statement of Work, all work and all
Deliverables related to such Services, and the payment therefore, shall be completed as provided
in the Statement of Work. If any Services are requested and provided without a Statement of
Work, they will be billed by Journal Technologies to Client in accordance with Journal
Technologies' normal billing practices at the time, on a time-and-expense basis, with hourly
rates at the then-standard rates, and expenses charged at cost, or as the parties may otherwise
agree in writing. Unless otherwise set forth in an applicable Statement of Work or other written
agreement of the parties, payment for a Deliverable shall become due and payable upon delivery,
net thirty (30) days. All sales and similar taxes levied on account of payments to Journal
Technologies are the responsibility of the Client.
5. LIMITATIONS ON LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANTICIPATED PROFITS OR
REVENUES IN CONNECTION WITH OR ARISING OUT OF THE SUBJECT MATTER OF
THIS AGREEMENT. FURTHERMORE, CLIENT'S TOTAL LIABILITY WITH RESPECT
TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT SHALL
NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAYABLE
HEREUNDER TO JOURNAL TECHNOLOGIES. IN NO EVENT SHALL JOURNAL
TECHNOLOGIES' TOTAL LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF
THE SUBJECT MATTER OF THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE
TOTAL AMOUNT OF FEES PAID HEREUNDER TO JOURNAL TECHNOLOGIES.
6. CONFIDENTIALITY
6.1 Client's Responsibilities. Client hereby agrees that(i) all materials received from
Journal Technologies under this Agreement are the confidential and proprietary information of
Journal Technologies, (ii) Client shall take all necessary steps to protect and ensure the
confidentiality of such confidential information, and (iii) except as permitted by a Statement of
Work, none of such materials shall be in any way disclosed by Client to any third party, in whole
or in part, without the prior written consent of Journal Technologies, which may be granted or
withheld in its sole discretion. If Client becomes aware of the unauthorized possession of such
materials, it shall promptly notify Journal Technologies. Client shall also assist Journal
Technologies with preventing the recurrence of such unauthorized possession and with any
litigation against the third parties deemed necessary by Journal Technologies to protect its
proprietary rights.
6.2 Journal Technologies' Responsibilities. Journal Technologies hereby agrees that
(i) any information related to the official business of Client that Journal Technologies obtains
from Client in the course of the performance of this Agreement is the confidential and
proprietary information of Client, (ii) Journal Technologies shall take all necessary steps to
protect and ensure the confidentiality of such information, and (iii) such information shall not be
in any way disclosed by Journal Technologies to any third party, in whole or in part, without the
prior written consent of Client,which may be granted or withheld in its sole discretion. If Journal
Technologies becomes aware of the unauthorized possession of such information, it shall
promptly notify Client. Journal Technologies shall also assist Client with preventing the
recurrence of such unauthorized possession and with any litigation against the third parties
deemed necessary by Client to protect its proprietary rights.
6.3 Confidentiality Breach. In the event a party breaches any of its obligations under
this Section 6 ("Confidentiality"),the breaching party shall indemnify, defend and hold harmless
the non-breaching party from and against any and all losses, liabilities, damages, causes of
action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred
by the non-breaching party arising out of such breach. In addition,the non-breaching party will
be entitled to obtain injunctive relief against the breaching party.
6.4 Exclusions. The provisions of this Section 6 ("Confidentiality") shall not apply to
any information(i)that is in the public domain prior to the disclosure or that becomes part of the
public domain other than by way of a breach of this Agreement, (ii)that was in the lawful
possession of Journal Technologies or Client, as the case may be,prior to the disclosure without
a confidentiality obligation to any person, (iii)that was disclosed to Journal Technologies or
Client, as the case may be, by a third party who was in lawful possession of the information
without a confidentiality obligation to any person, (iv)that was independently developed by
Journal Technologies or Client, as the case may be, outside the scope of this Agreement or(v)
that Journal Technologies or Client, as the case may be, is required to disclose by law or legal
process.
7. TERM AND TERMINATION
7.1 Term. The term of this Agreement shall commence on the Effective Date and
shall continue until terminated in accordance with the terms of this Section 7 ("Term and
Termination").
7.2 Term of Statements of Work. Each Statement of Work pertaining to the provision
of Services, and each other written agreement for such Services, shall commence on the date of
execution of such Statement of Work or other agreement and shall continue in full force and
effect thereafter until terminated in accordance with the provisions thereof or until the Services
required have been provided and paid for. A termination of this Agreement shall simultaneously
terminate any outstanding Statements of Work or other agreement for Services.
7.3 Termination by Journal Technologies.
7.3.1 Payment Default. Journal Technologies shall have the right to terminate
this Agreement(but reserving cumulatively all other rights and remedies under this
Agreement, in law and/or in equity), for any failure of Client to make payments of
moneys due when the same are due, and such failure continues for a period of thirty(30)
days after written notice thereof by Journal Technologies to Client.
7.3.2 Other Client Defaults. Journal Technologies may terminate this
Agreement (but reserving cumulatively all other rights and remedies under this
Agreement, in law and/or in equity), for any other material breach by Client which
violation or breach continues for a period of thirty (30) days after written notice thereof
by Journal Technologies to Client.
7.4 Termination by Client. Client shall have the right to terminate this Agreement
(reserving cumulatively all other rights and remedies under this Agreement, in law and/or in
equity)without further obligation or liability to Journal Technologies (except as specified in
Subsection 7.5 below) if Journal Technologies commits any material breach of this Agreement
and fails to remedy such breach within thirty(30) days after written notice by Client to Journal
Technologies of such breach. Client shall have the right to terminate this Agreement effective
immediately and without prior notice if Journal Technologies goes into liquidation or files for
bankruptcy.
7.5 Effect of Termination. Termination of this Agreement or any Statement of Work
shall not affect any rights and/or obligations of the parties which arose prior to any such
termination and such rights and/or obligations shall survive any such termination. Within thirty
(30) days after the effective date of any such termination, Client shall pay Journal Technologies'
fees and expenses at its then-standard rates for all Services rendered under the applicable
Statement of Work or this Agreement up to the effective date of termination, including,without
limitation, all work in process. Upon termination, each party shall return the confidential
property of the other party obtained under the terminated Statement of Work or this Agreement,
as applicable. This includes, without limitation, all work product of Journal Technologies
produced pursuant to this Agreement or any Statement of Work, and Client shall have no further
right to retain or use such work product following termination. In addition, the confidentiality
obligations of the parties in Section 6 ("Confidentiality") shall survive the termination of this
Agreement.
8. GENERAL
8.1 Waiver,Amendment or Modification. The waiver, amendment or modification of
any provision of this Agreement or any right, power or remedy hereunder shall not be effective
unless made in writing and signed by both parties.No failure or delay by either party in
exercising any right,power or remedy with respect to any of its rights hereunder shall operate as
a waiver thereof.
8.2 Notice. All notices under this Agreement shall be in writing and shall be deemed
to have been duly given if delivered in person, by commercial overnight courier or by registered
or certified mail,postage prepaid, return receipt requested, and addressed as follows:
To Journal Technologies:
Journal Technologies, Inc.
843 S 100 W
Logan, UT 84321
Attention: COO
and
Munger, Tolles & Olson LLP
355 South Grand Avenue, 36th Floor
Los Angeles, CA 90071
Attention: Mark Sayson
To Client: City of Bozeman
PO Box 1230
Bozeman, MT 59771-1230
Attention: City Attorney
8.3 No Third Party Beneficiaries. This Agreement is not intended to create any right
in or for the public, or any member of the public, any subcontractor, supplier or any other third
party, or to authorize anyone not a party to this Agreement to maintain a suit to enforce or take
advantage of its terms.
8.4 Successors and Assigns. Neither party may assign this Agreement in whole or
part without the prior written consent of the other party;provided that Journal Technologies may
assign this Agreement to another subsidiary of Daily Journal Corporation, directly or by
operation of law, without the prior written consent of Client. Any attempt to assign this
Agreement without the prior written consent of the other party is void and without legal effect,
and such an attempt constitutes a material breach and grounds for termination by the other party.
Subject to the foregoing, all of the terms, conditions, covenants and agreements contained herein
shall inure to the benefit of, and be binding upon, any successor and any permitted assignees of
the respective parties hereto. It is further understood and agreed that consent by either party to
such assignment in one instance shall not constitute consent by the party to any other assignment.
A transfer of corporate control, merger, sale of substantially all of a party's assets and the like,
even though including this Agreement as an assigned asset or contract, shall not be considered an
assignment for these purposes.
8.5 Dispute Resolution. Any dispute arising under or related to this Agreement shall
be resolved exclusively as follows:
8.5.1 Initial Resolution by Meeting. The parties shall first attempt to resolve
amicably the dispute by meeting with each other, by telephone or in person at a mutually
convenient time and location, within thirty(30) days after written notice of a dispute is
delivered from one party to the other. Subsequent meetings may be held upon mutual
agreement of the parties.
8.5.2 Mediation. If the dispute is not resolved within sixty(60) days of the first
meeting, the parties shall submit the dispute to mediation by an organization or company
specializing in providing neutral,third-party mediators. Client shall be entitled to select
either(i)the location of the mediation or (ii)the organization or company, and Journal
Technologies shall select the other. The mediation shall be conducted within sixty(60)
days of the date the dispute is submitted to mediation, unless the parties mutually agree
on a later date.
8.5.3 Arbitration. Any dispute that is not otherwise resolved by meeting or
mediation shall be exclusively resolved by arbitration between the parties in accordance
with the Comprehensive Arbitration Rules &Procedures of JAMS, with the arbitration to
be conducted in Los Angeles, California, or another location mutually agreed by the
parties. The results of such arbitration shall be binding on the parties, and judgment may
be entered in any court having jurisdiction. Notwithstanding the foregoing, either party
may seek interim injunctive relief from any court of competent jurisdiction.
8.6 Control of Defense. All indemnification obligations under this Agreement are
conditioned upon(i)written notice by the indemnified party to the indemnifying party within
thirty (30) days of the indemnified party's receipt of any claim for which indemnification is
sought, (ii)tender of control over the defense and settlement to the indemnifying party and(iii)
such reasonable cooperation by the indemnified party in the defense as the indemnifying party
may request;provided, however, the indemnifying party shall not, without the prior written
consent of the indemnified party, settle, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim unless the settlement, compromise or consent
provides for and includes an express, unconditional release of such claim against the indemnified
party.
8.7 Governing Law. The validity, construction and performance of this Agreement
and the legal relations among the parties to this Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to its conflict of law
principles.
8.8 Independent Contractor. Journal Technologies, in performance of this Agreement,
is acting as an independent contractor. Personnel supplied by Journal Technologies (including
personnel supplied by subcontractors) hereunder are not Client's personnel or agents, and
Journal Technologies assumes full responsibility for their acts. Journal Technologies shall be
solely responsible for the payment of compensation of Journal Technologies employees and
contractors assigned to perform services hereunder, and such employees and contractors shall be
informed that they are not entitled to the provision of any Client employee benefits. Client shall
not be responsible for payment of worker's compensation, disability or other similar benefits,
unemployment or other similar insurance or for withholding income or other similar taxes or
social security for any Journal Technologies employee, and such responsibility shall solely be
that of Journal Technologies.
8.9 Nondiscrimination. Journal Technologies agrees that all hiring by Journal
Technologies of persons performing this Agreement shall be on the basis of merit and
qualifications. Journal Technologies will have a policy to provide equal employment opportunity
in accordance with all applicable state and federal anti-discrimination laws, regulations, and
contracts. Journal Technologies will not refuse employment to a person, bar a person from
employment, or discriminate against a person in compensation or in a term, condition, or
privilege of employment because of race, color, religion, creed,political ideas, sex, age, marital
status, national origin, actual or perceived sexual orientation, gender identity,physical or mental
disability, except when the reasonable demands of the position require an age,physical or mental
disability, marital status or sex distinction. Journal Technologies shall require these
nondiscrimination terms of its subcontractors providing services under this Agreement.
8.10 Nonappropriation. In the event that prior to the commencement of any fiscal year
of Client during the term of this Agreement Client does not appropriate sufficient funds to permit
Client to discharge its payment obligations under this Agreement, Client may terminate this
Agreement as of the date of the commencement of such fiscal year by giving Journal
Technologies sixty(60) days prior written notice of Client's intent to terminate.
8.11 Severability. In the event any one or more of the provisions of the Agreement
shall for any reason be held to be invalid, illegal or unenforceable,the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a provision, which, being valid, legal and enforceable, comes closest to the intention
of the parties underlying the invalid, illegal or unenforceable provision.
8.12 Counterparts. This Agreement and any Statement of Work may be executed in
counterparts and by the exchange of signatures by facsimile or PDF.
[Continued on Next Page]
IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed as of the
date last written below.
JOURNAL TECHNOLOGIES, INC.:
cn=Jon Peek,o=Chief Operating
Officer,ou=Journal Technologies
Inc.,email=jpeek@journaltech.com,
c=US
2017.05.2614:35:27-06'00'
By: Date:
Printed Name and Title: Jon Peek, COO
City of Bozeman:
By: Date: �-2,6 —�1
Printed Name and Title:
V*% �701 j y �
Exhibit A
Cost Proposal (000)
Annual License
and Maintenance
One-Time Cost Fees
(in thousands)
Professional services, including expenses
Implementation services $ 5
Annual License and Maintenance Fees $ 5
$ 5 $ 5
Notes
Since governments normally have limited capital budgets, we typically lease our systems so that
our clients are not confronted with large initial capital investments. We have found that this
model allows your agency to plan for growth in a cost conscious way and provides reinforcement
and incentive for us to provide high-quality products and continuing services to our clients. For
a highly service-oriented software agreement, your agency pays an annual fee. These costs
include support, maintenance and upgrades. The continuing licenses are subject to the payment
of the annual fees. This approach also spreads costs over the life of the project. Because we
lease JusticeWeb, it is under continuous warranty.
The annual license and maintenance fees are due when you approve the system ready for
rollout. The professional service fees to date are due when ready for the rollout. Because
JusticeWeb is configurable,there should be no customization required.
The annual license and maintenance fees include licenses, updates, upgrades and routine support.
Non-routine projects will be done pursuant to a Statement of Work using an agreed upon hourly
rate. However, because JusticeWeb is configurable, your IT department will be able to make most
changes. Annual License and Maintenance Fees are subject to an annual increase not to exceed
5%.
Exhibit B
Statement of Work
1. Training
The Training commences upon receipt by Journal Technologies, Inc. of this signed contract.
During the Training, Bozeman City Attorney's Office will receive instruction on how to
configure JusticeWeb. The configuration of JusticeWeb will provide authorized users the ability
to download documents and reports from JustWare.
Journal Technologies,Inc. Deliverables:
• Install of JusticeWeb
• Remote Admin Training and Configuration of JusticeWeb
• Go-live of JusticeWeb
Completion Criteria:
• Delivery of JusticeWeb Installation
• Delivery of Admin Training and Configuration of JusticeWeb
• JusticeWeb is being used in a live capacity