HomeMy WebLinkAbout20- Agreements - Selectron - Field Inspection Sytem
July 20, 2020
Josh Waldo CFO, EFO
Fire Chief
Bozeman Fire Department
34 N. Rouse Ave
Bozeman, MT 59771
Dear Mr. Waldo,
This letter is intended to be a letter of understanding between the City and Selectron
Technologies, Inc., regarding the Scope of Work and for the implementation of your Selectron
system.
As accepted by the City below, this will constitute acceptance of the items within this letter, the
enclosed Statement of Work and the terms and conditions currently in effect in the Professional
Services Agreement, Software License Agreement and Support and Maintenance Agreement for
the purchase of the Selectron Solution. If there is a conflict with a term within these documents,
the order of precedence will be:
• Letter of Understanding
• Scope of Work starting on page 2 of this letter
• Statement of Work starting on page 4 of this letter
• Support and Maintenance Agreement dated September 18, 2014
• Software License Agreement dated September 18, 2014
• Professional Services Agreement dated September 18, 2014
If you have any questions or concerns, please do not hesitate to contact us at your earliest
convenience.
Sincerely,
Todd A. Johnston
President and CEO
Accepted By:
Authorized Representative
Date Accepted: August 25, 2020
DocuSign Envelope ID: 890739FC-7983-4DEA-9246-B236075359C0
Exhibit A
Scope of Work
Atlas Insight, Inspections, and Locations with additional inspection groups
Setup Fees – Standard Pricing for Subscriptions Price Total
Atlas Inspections Setup Fees
Base Atlas Inspections Setup $20,000 $20,000
Setup for additional inspection groups (4)
(Fire, Code Enforcement, Engineering/Planning)
$5,000 $20,000
Additional Atlas Inspections Notice Setup (3; 2 inc – total 5) $2,000 $6,000
Digital Attachments Setup $5,000 $5,000
GIS Setup $5,000 $5,000
Total of 40 Days of Professional Services Included**
Atlas Insight Setup Fees
Base Atlas Insight Setup and Integration $10,000 $10,000
Atlas Locations Setup Fees
Base Atlas Locations Setup $3,000 $3,000
Additional Onsite Travel Days (2 included; 4 total) $1,500 $3,000
Setup of second client OS for Atlas platform $15,000 $15,000
Setup Subtotal $87,000
Annual Service (Subscription) Fees Annual Fee
Atlas Inspections Annual Service Fee $20,000
Includes Atlas Inspections, 10 User Licenses, Integration to NaviLine,
Digital Attachments, GIS, and Checklists
Atlas Inspections Additional User Licenses (10) $6,000
Atlas Insight Annual Service Fee $12,500
Includes Atlas Insight, 10 User Licenses, Dashboard, Assignment Manager,
GIS integration, and Review Center.
Atlas Insight Additional User Licenses (10) $4,500
Atlas Locations Annual Service Fee $3,000
Includes Atlas Locations, 10 User Licenses, and Location Services.
Atlas Locations Additional User Licenses (10) $1,500
Atlas Annual Hosting Fee $2,500
Annual service fee for second OS for Atlas platform $30,000
Annual Service Fee Subtotal* $80,000
Setup Fees – Legacy Trade-in Discount
DocuSign Envelope ID: 890739FC-7983-4DEA-9246-B236075359C0
Setup Fee Subtotal $87,000
From previous page
Legacy Setup Trade-in discount $20,000
Initial Setup Total* $67,000
Annual Service Fees – Legacy Conversion Pricing
Annual Service Fee Subtotal $80,000
From previous page
Legacy License Trade-in annual discount 50% (perpetual for this scope) $23,750
Annual Service Fee Total – Year 1* $56,250
Grand Total for Year 1 (Setup & Annual) $123,250
Notes:
• This quote replaces the existing License & Maintenance model of Mobile Inspections with an
ongoing Subscription to Atlas products
• With this change there are no additional maintenance fees (replaced with subscription service
fees)
• The city is responsible for canceling any current maintenance agreement
*all pricing is based on a 60-month term, pre-paid annually
** The Professional Services included in Setup Fees are sufficient to implement, test, and
deploy standard configurations of each module or licensed component, and all quoted add-
ons. Additional out of scope configurations, significant design changes, report enhancements,
or redeployment of previously approved modules will result in additional professional services
fees not included in this pricing.
Required Items Not Included
• Third-Party Integration APIs
• Actual Travel Expenses (Air, Hotel, Car, Per Diem)
Optional Items:
Checklist Setup $3,000
DocuSign Envelope ID: 890739FC-7983-4DEA-9246-B236075359C0
Exhibit A cont.
Statement of Work
Bozeman, Montana
Atlas
Atlas Inspections
Atlas Insight
Atlas Locations
1. Overview ............................................................................................ 3
1.1. Note Regarding Project Scope .......................................................................................... 3
1.2. Revision History ................................................................................................................ 3
2. Functionality ....................................................................................... 4
2.1. Atlas Inspections .............................................................................................................. 4
2.2. Atlas Insight ...................................................................................................................... 5
2.3. Atlas Locations ................................................................................................................. 6
3. System Integration .............................................................................. 7
3.1. Application Database Interfaces ...................................................................................... 7
3.2. GIS .................................................................................................................................... 7
4. Deployment Model ............................................................................. 8
5. Administrative Tasks ........................................................................... 8
5.1. Atlas Inspections .............................................................................................................. 8
5.2. Atlas Insight ...................................................................................................................... 9
6. Responsibilities ................................................................................. 10
6.1. Selectron Technologies, Inc ............................................................................................ 10
6.2. Bozeman, Montana ........................................................................................................ 11
DocuSign Envelope ID: 890739FC-7983-4DEA-9246-B236075359C0
1. Overview
This Statement of Work (SOW) outlines the services provided by Selectron Technologies, Inc.
(Selectron) to Bozeman, Montana (Bozeman or Customer). The features, functionality, and services
are provided through Selectron Technologies’ Atlas solution.
1.1. Note Regarding Project Scope
This SOW describes the scope of Bozeman‘s Atlas solution as understood prior to kickoff
of the project. In order to provide optimal functionality, Selectron will perform an onsite
needs analysis, which may result in some changes in scope. Any scope changes will be
documented in a needs analysis document, as an amendment to this SOW.
1.2. Revision History
Version # Details Date
1.0 Initial Release 5/12/2020
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2. Functionality
This section details the functionality of Selectron’s Atlas products. All functions and features are
dependent upon the accessibility of Bozeman’s CentralSquare Naviline application database to
provide the given data to Selectron.
It is understood that Bozeman’s Atlas solution will be utilized by four departments: Building, Fire,
Code Enforcement and Engineering & Planning. Selectron’s project management and development
staff will work with Bozeman during implementation to understand the needs of each department
and configure the Atlas solution to support those needs.
2.1. Atlas Inspections
Atlas Inspections is the mobile inspection system that allows inspectors to post
inspection results from the field. It is designed to work in conjunction with existing land-
management systems. Atlas Inspections uses data synchronization technology to
provide updated and accurate information for inspections in the field. The mobile
application is installed on field devices and is what inspectors use on a daily basis to
view their work list, find inspection/permit information, and result inspections.
The following section details the functionality that will be implemented for Bozeman.
2.1.1. Licensing
Bozeman’s solution is licensed for:
• TWENTY (20) Atlas Inspections user licenses
2.1.2. Features
All inspection/permit information is made available through an API to the CentralSquare
Naviline 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.
2.1.3. Custom Features
The following features are included in this project (unless otherwise noted) and are
considered to be custom application features designed specifically for use by Bozeman.
Selectron has made our best effort to describe the functionality of these features.
However, many of them require additional scoping and conversations between
Selectron and Bozeman to firmly define the features, which will take place during the
needs analysis.
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2.1.3.1. Additional Atlas Inspections Notice Setup
The Atlas Inspections solution includes two inspection notices. Bozeman’s
solution will be configured with three additional notices, to be designed during
project implementation. Selectron’s project management and development
staff will work with Bozeman to define and configure additional notices to meet
desired specifications.
2.1.3.2. Configuration for a Second Operating System (iOS)
Selectron development personnel will work during implementation to configure
the Atlas solution for use with a second operating system if Bozeman elects to
purchase this as an additional feature.
2.1.3.3. Inspection Checklist Setup (If Purchased)
Selectron development personnel will work during implementation to configure
inspection checklists for use within the Atlas solution, if Bozeman elects to
purchase this as an additional service.
2.2. Atlas Insight
Atlas Insight is a web-based location services and assignment management tool
designed for supervisors and managers in the back office. With Atlas Insight, you can
view inspector locations, manage workforce efficiency, make instant assignment
changes, and review work done in the field.
The following sections detail the functionality that will be implemented for Bozeman.
Additional features 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.
2.2.1. Licensing
Bozeman’s solution is licensed for:
• TWENTY (20) Atlas Insight inspector licenses
2.2.2. Features
Atlas Insight is split into several views, each providing specific workforce efficiency
features. These pages are described below.
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All inspection/permit information is made available through an API to the CentralSquare
Naviline 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.
2.2.2.1. Assign Page
The Assign page is used for workload management, allowing users to assign,
reassign, and unassign inspections; view inspector locations; and auto-assign
inspections based on skill sets, areas, or other parameters.
Assignment parameters, inspection and inspector data, and other assign center
details will be determined during the implementation process.
2.2.2.2. Review Page
The Review page provides real-time reporting through several tabbed tables
with inspector and inspection data. All data can be filtered by a date range as
well as sorted through column headers. Users can view the following
information via this center:
• Results
• Attachments
• Notices
• Exceptions (conditional only if they purchase Inspections)
2.2.2.3. Manage Page
The Manage page is where administrators can configure the Atlas Insight
application as well as create, edit, and delete new users. Atlas Insight features
user-based permissions, allowing Bozeman administrators to define access to
the various Atlas Insight features at the user level. Selectron will work with the
Customer during the implementation process to create administrative users.
Administrators will be trained on creating and configuring additional users and
managing permissions.
Additionally, the Manage Center allows administrators to configure Atlas
Insight. Atlas Insight configuration tasks can be found in Section 5
Administrative Tasks.
2.3. Atlas Locations
Atlas Locations allows for capture and display of inspector location data, integrated to
Atlas Insight. This is typically done through a simple, lightweight service that captures
GPS location data periodically and posts it to the Atlas server.
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2.3.1. Features
Atlas Locations is a field application that communicates with GPS network and the
internet in order to post field locations to the back office. The device will need to be
connected to both the GPS service as well as to the internet (through wireless card,
cellular network, etc.) in order to function.
2.3.1.1. Licensing
Bozeman’s solution is licensed for:
• TWENTY (20) Route Tracker user licenses
2.3.1.2. Enable/Disable Tracking
The primary function of Atlas Locations is to track inspector/field unit locations
and post that information to Atlas Insight. With the Atlas Locations app, users
will need to authenticate and can then start the tracking, and stop it when they
are done for the day.
3. System Integration
Depending on the implemented features, the Atlas applications require varying levels of integration
with other Bozeman components. These are described in the following sections.
3.1. Application Database Interfaces
It is anticipated that Selectron will be integrating with Bozeman’s CentralSquare Naviline
application database. All data-based interactivity on the solution is reliant upon data
being available via the application vendor 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.
3.2. GIS
It is anticipated that Selectron will be integrating with Esri in order to present mapping
for the Atlas Insight and Atlas Inspections applications. Bozeman as indicating the
following layers will be available on the Atlas products:
• Standard Topographical Layer
• One additional GIS layer to be determined during implementation
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4. Deployment Model
This implementation of Atlas will be deployed in Selectron’s single-tenant hosted environment.
Selectron’s hosting facility is a co-located data center featuring keyed entry and individual server
locks for security. With a hosted solution, Selectron owns all hardware and is responsible for
security, ongoing maintenance, and proactive support. As such, Selectron will be providing the
necessary hardware and software.
Selectron will work with Bozeman to build a secure VPN tunnel for real-time read/write functionality
between the hosted Atlas server and the application database. Secure connection options may
include client-level TLS or a persistent IPSec VPN. Each option requires specific ports to be opened
for communication. Depending on the application database integration, these ports vary.
The mobile server stores inspection results and then transfers inspection information to the
permitting database. Communication between the field application and the server occurs whenever
the device is connected to the internet.
Browsers
• Atlas Insight supports the most recent versions of major browser applications; primarily
Chrome and Internet Explorer. When using Internet Explorer, “Compatibility Mode” is not
supported.
Geographic Information System
• ESRI 9.3+ (and others supported by Leaflet)
5. Administrative Tasks
This section details administrative tasks that can be performed in order to manage the Mobile
applications.
5.1. Atlas Inspections
This section details administrative tasks that the City’s staff can perform while
maintaining and operating the Atlas Inspections system.
When users log in, Atlas Inspections automatically syncs their worklist with the Atlas
Server. Users can also check for updates from the work list. When new assignments are
made, they are automatically added to the user’s worklist. Users are notified of new
assignments through a pop-up notification.
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5.1.1. Manage Local Configuration
Through the login page’s settings button, Administrators can configure important back
office communication and connectivity components of the Atlas Inspections application.
5.2. Atlas Insight
All system administration for Atlas Insight is handled through the Manage page. An
administrator from Bozeman will be provided with user credentials for Atlas Insight
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.
5.2.1. Manage Atlas Insight User Profiles
Using the Manage Center, administrators can create, edit, delete and manage user
accounts for each inspector. Each inspector will be assigned a user ID, assignment
configuration, and permissions. The administrator can also assign a specific supervisor
to each inspector.
5.2.2. Group Management
Administrators can manage the composition of assigned groups through the Group
Management tab. New groups can be created, edited, and deleted. Group members can
also be assigned and reassigned to new groups.
5.2.3. Configure Atlas Insight
Administrators can manage configurations and settings, including automatic assignment
for areas, skill sets, and other parameters; and the cap on the total number of
inspections allowed for one inspector in a day.
5.2.3.1. Manage Auto-assign Rules
Bozeman administrators will be able to set, edit, organize and manage the rules
the system will use to automatically assign inspections.
5.2.3.2. Inspector Soft Cap (most inspections allowed before warning)
The soft cap determines the maximum number of inspections that will
automatically be assigned to inspectors when using Auto Assign. Inspectors can
be manually assigned more inspections above their soft cap, if needed.
Administrators can change the global default soft cap, as well as set a different
soft cap for each inspector if desired.
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5.2.3.3. Administrator Contact Details
A link on the login page is provided for users who have forgotten their
password. The link generates a popup with administrator contact details for the
user. Administrators can configure the content of this popup.
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:
• Configuration Questionnaire- gathers critical information needed to setup
and initiate the service.
• 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.
• Architecture Diagram- defines server resources and network traffic for the
solution.
• Implementation Timetable- details project schedule and all project
milestones.
• Design Documentation- captures layout and data specifications to develop
the application.
• 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.
6.1.3. 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
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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
For managed solutions, all installation is handled by Selectron technical staff at our
remote hosting facility. Administrative and other staff training will be provided
remotely.
6.1.5. Interface Upgrades
After service initiation, Bozeman’s CentralSquare Naviline database application may
release new updates to their application or its interface. Upgrading Atlas Inspections
and Insight interfaces to be compatible with any Bozeman application database (or
other application database software) may require professional services outside the
scope of this service.
6.2. Bozeman, Montana
This section outlines the Customer’s service implementation and maintenance
requirements and responsibilities.
6.2.1. Return Questionnaires and Information
Selectron Technologies’ Project Manager provides Bozeman with a configuration
worksheet. The configuration worksheet must be returned prior to developing the
implementation timetable.
6.2.2. Provide Remote Network Access to Application Database(s)
In order to fully test the interactive solution, Selectron Technologies requires access to
Bozeman’s application database(s) prior to installation. Selectron Technologies’ Project
Manager provides a Remote Access Questionnaire to help Bozeman identify the
necessary requirements. The Customer will help facilitate communication between
Selectron and the database vendor.
6.2.3. 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. Bozeman is responsible for providing Selectron with
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appropriate application database and network access as defined in the System
Integration section.
6.2.4. Confirm Service Functionality
Bozeman, Montana 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.
6.2.5. 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.
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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 City of Bozeman, MT (“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 the included Statement
of Work; (b) the Documentation; and (c) any Updates.
DocuSign Envelope ID: 890739FC-7983-4DEA-9246-B236075359C0
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 the included Statement of Work
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
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(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
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 the included Statement
of Work 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 the included
Statement of Work. Unless a testing period of different
duration is set forth in Exhibit A or the included Statement
of Work, 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. Licensee may terminate
this agreement during the testing period for any reason,
with the obligation to pay only fees reasonably related to
the initial delivery, testing and launch of the software up
to the date of termination. 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, 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. The
physical location of all server space used to host Licensee
data of any kind is located within the United States.
3.6 Updates, Maintenance, and Technical
Support. During the Term, Selectron shall provide
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Licensee with Updates as they are made generally
available by Selectron to its other customers, as well as
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.
Licensee’s sole alternative to such fee increase or change
shall be to terminate this Agreement by providing notice
of termination to Selectron within twenty (20) days after
receipt of the notice of price increase or change, which
termination will become effective thirty (30) days after
such written notice of termination.
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
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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
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 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.
For clarity, information about the Licensed Software,
including information about its features, functionality, 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.
7. Representations and Warranties; Warranty
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. 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
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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.
7.3 Limited Services Warranty. 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, 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 all
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 8.5 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 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 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
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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, 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
PayEngine™, 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) promptly 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.
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9. Indemnification
9.1 Infringement Indemnity Obligations of
Selectron. Selectron shall defend any action brought
against Licensee to the extent it is based on a third party
claim that use by Licensee of 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. Selectron shall pay any liabilities,
costs, damages, and expenses (including reasonable
attorney’s fees, including City Attorney’s fees) finally
awarded against Licensee in such action that are
attributable to such claim. 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.
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; (e) any
third party software; or (f) Licensee’s breach or alleged
breach of this Agreement.
9.3 Security Related Indemnity Obligations
of Selectron. If an investigation performed by a qualified
third party forensic investigator confirms that a Security
Incident was caused solely by an act or omission of either
party, including any security vulnerability in system
components, procedures, or environments owned or
controlled by Selectron, then the party determined
responsible for the Security Incident shall defend,
indemnify, and hold harmless the other party for, from and
against all liabilities, costs, damages, fines, penalties, and
expenses (including reasonable attorney’s fees, including
City Attorney’s fees) incurred by Licensee as a result of a
Security Incident, including the reasonable costs of
investigation and reasonable costs of notification to
affected individuals and providing credit monitoring or
other fraud prevention services, but only to the extent such
notification, credit monitoring, or other fraud prevention
services are required by applicable laws, regulations, a court
order or consent decree, or the terms of a settlement and
release of claims arising from such Security Incident that parties
have consented to (collectively, “Losses”).
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 8.8 or 8.9, 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
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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, 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 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 three times the amounts actually received by
Selectron from Licensee hereunder in the twelve (12)
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”).
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 five (5)
business days 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. Within ten (10)
days after any termination or expiration of this Agreement,
Selectron shall, at its sole expense, return to Licensee (or
destroy, at Licensee’s sole election) all Licensee Data and all
PCI Data (and all copies, summaries, and extracts thereof) then
in the possession or under the control of Selectron and its
current or former employees. Selectron shall furnish to
Licensee an affidavit signed by an officer of Selectron
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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 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 Montana, U.S.A.,
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.
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, including City 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
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.
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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 Public Announcements. Licensee shall
cooperate with Selectron so that Selectron may issue a
press release concerning this Agreement; provided,
however, Selectron may not release any such press release
without the prior approval of Licensee (which shall not be
unreasonably withheld, delayed, or conditioned).
However, without seeking prior approval in each instance,
Selectron shall have the right to use Licensee’s name as a
customer reference, and to use Licensee’s trade name on
Selectron’s customer lists.
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.
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.
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12.16 Nondiscrimination and Equal Pay.
Selectron agrees that all hiring by Selectron of persons
performing this Agreement shall be on the basis of merit
and qualifications. Selectron will have a policy to provide
equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws,
regulations, and contracts. Selectron 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. Selectron shall be subject to and
comply with Title VI of the Civil Rights Act of 1964; Section
140, Title 2, United States Code, and all regulations
promulgated thereunder. Selectron represents it is and
for the term of this Agreement will be compliance with the
requirements of the Equal Pay Act of 1963 and Section 39-
3-104, MCA (the Montana Equal Pay Act). Selectron must
report to the Licensee any violations of the Montana Equal
Pay Act that Selectron has been found guilty of within 60
days of such finding for violations occurring during the
term of this Agreement. Selectron shall require these
nondiscrimination terms of its subcontractors providing
services under this Agreement.
12.17 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.
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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
shall provide Licensee with periodic reports (no less frequently than once every eight (8) hours) on the status of
the Error Correction.
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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.
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EXHIBIT C
Intentionally Left Blank
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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
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(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)
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
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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 laws of the State of
Montana.
DocuSign Envelope ID: 890739FC-7983-4DEA-9246-B236075359C0