HomeMy WebLinkAboutJack Henry & Associates, Inc 2016-01-21rt; Profit
OFFICE ADDRESS OF JHA:
Jack Henry & Associates, Inc.
663 Highway 60 • P. O. Box 807
Monett, MO 65708
NAME AND ADDRESS OF CUSTOMER:
City of Ukiah
300 Seminary Ave
Ukiah, CA 95482
ADDENDUM TO
GOVERNMENT PURCHASE
AGREEMENT /ORDER NO. 1574-/5
DATE: November 5, 2015
Jack Henry & Associates, Inc., acting throw h its ProfitStars® Division ( "JHA ") and Customer agree to
amend the Purchase Agreement /Order No. 15/4 /% (the "Purchase Agreement /Order ") relating to Customer's
acquisition of licenses of JHA's ProfitStars Remit Plus Software products and related installation /training services
and hardware as may be specified in the Purchase Agreement /Order, to incorporate the terms of this Addendum
including the following Exhibits to this Addendum:
Exhibit
Title of Exhibit
A
Products and Services Schedule No. 1 (ProfitStars Remit Plus Software)
B
ProfitStars Customer Agreement Order Form Attachment
Standard Terms and Conditions
The parties acknowledge and agree that the Purchase Agreement /Order and this Addendum together
constitute the entire agreement between the parties with respect to the transaction described in the Purchase
Agreement /Order and Exhibit A of this Addendum.
In witness of this agreement, authorized representatives of the parties have executed this Addendum
where provided below, in duplicate copies.
JHA:
JACK HENRY & ASSOCIATES, INC.
ProfitStars Division
By: 727
Printed Name: S
Title: ?re Ch
Date: J at a
JS #69161
GaryHolt /amcw
ProfitStars Govt Purchase Agr /Order Addendum -US -rev 0712 1
Customer:
City of Ukiah
By:
Printed Name:
Title:
Date:
/6
EXHIBIT A
PRODUCTS AND SERVICES SCHEDULE No. 1
ProfitStars® RemitPlus® Software
1. Products and Services:
1.1 Software License: The following Software components are licensed by JHA to Customer for installation and internal use
in Customer's production environment on Customer's computer system:
ProfitStars® RemitPlus Software — Annual License Fee Option
Description
# of
Copies
Base Software
License Fee
Software
Installation
Fee
Annual
License Fee
JHA Software:
RemitPlus® Software
1
$6,500.00
$3,000.00
$3,000.00
Initial Item
Processing
Volume Tier
License:
Up to 100,000 Items
processed per Annual License
Fee term
ScanForm
1
$250.00
N/A
$50.00
Third Party Software:
Parascript CheckPlus® Software
(CAR /LAR) — Server Version
1
$3,250.00
N/A
$650.00
Volume Tier
License:
Up to 500,000 Counts
processed per Year
Parascript FormXtra® Software -
Server Version
1
$2,800.00
N/A
$560.00
Volume Tier
License:
Up to 1,000,000 Counts
processed per Year
Total Net Fees Due:
$12,800.00
$3,000.00
$4,260.00
1.2 Third Party Services: None.
1.3 Annual License Fee Ootion:
(a) The Annual License Fee option allows Customer to acquire a License for the Software products listed in this
Schedule on an annually renewable term basis. The Annual License Fee shown above includes Customer's licensed use of the
Software in accordance with the licensing terms described in this Schedule and JHA's provision of standard Maintenance for the
Software during the annual license term. All JHA Software and Third Party Software products shown in the table above are licensed
by JHA to Customer on an Annual License Fee term basis, unless a different license term period is specified above.
(b) After completion of the initial Annual License Fee term, JHA reserves the right to prorate the Annual License Fee
term so that it will commence on each July 1 thereafter. Approximately sixty (60) days in advance of the expiration of the current
Annual License Fee term, JHA will issue an invoice to Customer for the next following Annual License Fee term, which will be due and
payable by Customer no later than the first day of the next following Annual License Fee term. If Customer fails or declines to pay
this renewal Annual License Fee term invoice received in a timely manner from JHA, then Customer's license of the Software shall
automatically terminate without any notice or action by either party. In addition, either party may elect not to renew the Annual
License Term applicable to any of the Software by giving the following advance written notice of non - renewal to the other party:
(1) Notice of non - renewal by Customer to JHA: Thirty (30) days in advance of the expiration date of the current
Annual License Fee term.
(2) Notice of non - renewal by JHA to Customer: One hundred eighty (180) days in advance of the expiration date
of the current Annual License Fee term, provided however that JHA shall not exercise this right of non - renewal
prior to the occurrence of at least three (3) full Annual License Fee terms for the Software affected.
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1.4 RemitPlus Software License:
(a) Licensing and Pricing Metrics: JHA RemitPlus Software is licensed on the basis of an Item processing volume tier
licensing metric and priced on the basis of the base Software license fee ( "Base License Fee" or "BLF ") shown above and a recurring
renewable Annual License Fee shown above, for the cumulative volume of Items (defined below) which are processed during each
Annual License Fee term of this License.
(b) Item Processing Volume Tier: If during the course of any Annual License Fee term Customer's use of the
RemitPlus Software reaches the maximum limit of the Item processing volume tier license previously acquired by Customer,
Customer will be required to purchase an Item processing volume tier license upgrade for the Remit Plus Software in order to enable
the Remit Plus Software to process a higher volume tier of Items covering the remainder of the then - current Annual License Fee
period and each renewal Annual License Fee term thereafter. The Remit Plus Software License upgrade fee payable by Customer in
this instance will be priced at the then - current standard JHA Base Software license fee and Annual License Fee applicable to the
higher tier volume of Items to be processed, as selected by Customer, against which will be applied a full credit of the Base Software
License fee and the then - current Annual License Fee already paid by Customer, which amount will be prorated to cover the remaining
period of the then - current Annual License Fee term.
(c) The term "Item" used in this licensing metric is defined as a single payment transaction processed by use of the
RemitPlus Software, including one or more checks and one or more accompanying payment documents ( "coupons "), such as payment
stubs, deposit tickets and remittance coupons. The Item count is determined in accordance with the following principles:
(1) The primary determinant of the Item count in a single payment transaction is the number of checks being
processed. One check equals one Item count, regardless of the number of coupons processed with the check.
For example, processing one check with six coupons results in an Item count of one; processing six checks with
one coupon results in an Item count of six.
(2) If only coupons and no checks are being processed as part of the payment transaction, then the determinant of
the Item count in the payment transaction is the number of coupons being processed. For example, if no checks
and six coupons are processed in a single payment transaction, the Item count equals six.
(d) Customer's failure to pay a Base License Fee upgrade fee or an Item Processing volume tier License upgrade fee
when due will result in automatic termination of Customer's License of the Software.
(e) Proiects: If a license for additional RemitPlus Projects is being purchased under this Exhibit as shown in Section
1.1 above, the following terms apply: The RemitPlus Software license shown above includes the right for Customer to deploy up to
five (5) Projects using the RemitPlus Software. Deployment of additional Projects by Customer will require the purchase of a
separate license upgrade of the RemitPlus Software.
1.5 Parascriot Software License: If Customer has licensed the Parascript Software product(s) identified above as Third Party
Software, the following terms and conditions apply to that License:
(a) The Parascript Software (for which JHA is an authorized reseller) is owned by Parascript, LLC and sublicensed by
JHA to Customer for Customer's use solely in conjunction with the JHA RemitPlus Software. The Parascript Software is licensed on
the basis of the following licensing metrics:
(1) The hardware platform upon which the Parascript Software will be installed and used (e.g. on a desktop scanner
or on a server computer);
(2) The number of copies of the Parascript Software to be installed by Customer on the designated hardware
platform for use with the RemitPlus Software; and
(3)
The number of Counts processed by Customer using the Parascript Software during per each Year, calculated in
accordance with the formula set forth in clauses (b) and (c) below.
(b) The term "Count" used in this licensing metric is defined and tracked by Parascript LLC and means a single
instance in which the Parascript Software is used to read a character, field or document and results in a billable unit. A billable unit
may also be a preset quantity of "Counts" (e.g. a volume tier). Parascript LLC has assigned Count values for individual field types
which may be read on a document of a check or coupon being processed. Parascript LLC's schedule of Count values will be
communicated to Customer on JHA's customer website; by publication in the Documentation that applies to the Parascript Software;
or provided in a written document if requested by Customer. The term "Year" used in this licensing metric is defined as a 12 calendar
month, which period is set by Parascript LLC in its license key for the Parascript Software.
(c) Each copy of the Parascript Software is licensed for Customer's use solely with the RemitPlus Software.
Customer's installation and use of the Parascript Software with any other JHA or non -JHA Software product will require Customer's
purchase of a separate Parascript Software license for such use.
1.6 Server -Based Software Licenses: Unless otherwise specifically indicated in the table above or this Exhibit A, all JHA
Software and Third Party Software products listed in the table above are for installation and use of the JHA Software and Third Party
Software products on a server computer owned or controlled by Customer.
2. Software Deliverables: JHA will furnish to Customer one copy of the object code software programs of the JHA and
Third Party Software product(s) listed above which will be installed on Customer's IBM - compatible computer, and one set of the
standard software user documentation for the Software product(s). The installation location of the Software shall be at the address
for Customer first shown above, unless a different address is indicated in this Addendum.
3. Third Party Software Products: If Third Party Software products are specified above, the Third Party Software products
are owned and licensed by their respective owners, and Licensee's licensed right to use these software products will be governed by
the software end -user license agreement accompanying the third party software programs, which includes the third party owner's
standard product warranties, indemnities and liabilities applicable to its software product. JHA does not make or extend any separate
product warranties, guarantees, indemnities or liabilities with respect to these third party software products.
ProfitStars Customer Agr Order Form —Govt StdTC - -US rev 0712
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4. Professional Services:
4.1 Software Installation Services: JHA shall perform the installation of the Software at Customer's location first identified
above, commencing on a date mutually agreed by the parties. Customer shall be responsible for providing all hardware, other third
party software, and internet /network /infrastructure components necessary to install and operate the Software products in its
production environment, which shall be installed by Customer and operational as of the scheduled commencement date of the
Software installation project. If contemporaneously with this Exhibit Customer has acquired hardware from JHA under a separate
hardware purchase agreement upon which the Software will be installed, JHA will install this hardware as part of the Software
installation project and fees quoted above.
4.2 i .. . - .- - : The professional services fees quoted in this Exhibit do not include reimbursable travel
expenses of the JHA professional services personnel who travel to and from Customer's site to perform these services, which will be
invoiced to and paid by Customer.
5. Annual Software Maintenance Su000rt:
5.1 JHA Software Products: Upon payment of the Annual License Fee for the JHA Software, JHA will provide standard
Maintenance for the JHA Software to Customer in accordance with the terms of the Agreement. The JHA customer support center for
the Software products listed in Section 1 above will be available for the receipt and handling of Customer's Maintenance Services
requests including Software Error reports during the following hours of operation:
Product Group
Hours of Operation
Remit Plus Software
Standard:
8:00 a.m. through 5:00 p.m., Central US time
zone, Monday through Friday
After Hours:
5:00 p.m. through 8:00 a.m., Central US time
zone, Monday through Friday; 24 hours
Saturday and Sunday
All times listed are for Monday through Friday, excluding standard US banking holidays published by the US Federal Reserve System.
5.2 Third Party Software Products: In consideration of Customer's payment of the Annual License Fee for Third Party
Software, JHA will provide the following standard Maintenance for the Third Party Software:
(a) The JHA customer support organization will receive and process Error incident reports submitted by Customer with
regard to the operation of the Third Party Software, during the same hours of operation specified above for JHA
Software. JHA will perform a basic level of Error troubleshooting and resolution activities with respect to Errors
determined by JHA to be caused by the Third Party Software and escalate the Error incident to the owner of the Third
Party Software for handling and resolution if the Error requires access to the source code of the Third Party Software
or advanced technical expertise with the Third Party Software programs which is beyond JHA's technical competency
to resolve.
(b) JHA will provide to Customer periodic standard Update releases of the Third Party Software issued by the owner of the
Third Party Software to JHA, which have been tested and certified to interoperate with the RemitPlus Software.
6. Payment Terms: Customer shall pay the fees shown above to JHA, together with reimbursement of JHA's reasonable,
actual out -of- pocket travel expenses incurred by its Professional Services personnel traveling to and from Customer's location to
deliver the Professional Services specified in this Exhibit. These fees shall be due to JHA on the following schedule and paid by
Customer within thirty (30) days following the date of JHA's invoice:
Transaction
Payment Due by Customer
Base Software License Fees and Initial
Annual License Fees
100% on the Implementation Date
Professional Services Fees
100% on the Implementation Date
7. Supplemental Terms and Conditions: The following terms and conditions apply to the Software listed above:
7.1 Remit Plus Software Products:
(a) The Software programs will be delivered by JHA to Customer in object code format only.
(b) The initial License copy of the Software shall be installed and used by Customer solely in its production
environment. In addition to this primary production License copy of the Software acquired by Customer,
Customer may acquire from JHA additional License copies of the same Software product or product component for
Customer's internal use in conjunction with its production environment License copy which the Customer will use
(1) as additional production environment License copies, and /or (2) solely for non - production purposes, such as
development, test or disaster recovery.
(c) The Software requires the use of third party software, such as client and server operating systems, relational
database systems, communications /networking systems, and internet browsers in order to be fully functional. In
addition, the Software requires appropriate computer hardware with an adequate amount of memory as indicated
in JHA's published specifications for the Software. Customer is responsible for obtaining and maintaining such
hardware and third party software for use with the Software. Any purchase of the hardware and licensing of the
third party software through JHA shall be documented in a separate Products and Services Solution Schedule
document entered into between JHA and Customer.
< End of ProfitStars® RemitPlus® Software>
ProfitStars Customer Agr Order Form —Govt StdTC - -US rev 0712
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Profit -,tars
ProfitStars Customer Agreement Order Form Attachment
Standard Terms and Conditions
(Government Customers)
1. DEFINITIONS
1.1 "Customer" means the government customer identified in the
Customer Agreement.
1.2 "Customer Agreement" means the procurement agreement or
purchase order document issued by Customer to JHA for the acquisition of
Software Licenses, Services, Maintenance, Hardware and Professional
Services from JHA, including any written modification or addenda to the
Customer Agreement which references the Customer Agreement and is
executed by both parties.
1.3 "Documentation" means all installation, operating instruction
and end user manuals, in hard copy or electronic form, provided by JHA
with the Software programs to support the use and operation of the
Software programs.
1.4 "Enhancements" mean new Software program or Services
features or functions provided by JHA to Customer and other JHA
customers as part of Maintenance which are not licensed or sold by JHA
separately for an additional Software license or Services subscription fee
payable by its customers generally. Once installed by Customer,
Enhancements become an integrated part of the Software or Services, as
applicable.
1.5 "Error" means any material defect or malfunction of a Software
product or Services that causes the Software or Services not to operate in
accordance with the Documentation.
1.6 "Hardware" means any third party computers, scanners,
peripherals or other equipment offered by JHA to Customer and any third
party operating system, database, firmware and other software programs
that may be Installed on the Hardware and used to operate the Hardware.
1.7 "JHA" means Jack Henry & Associates, Inc. and /or its subsidiary
or affiliated companies who have executed the Customer Agreement and
provide the Solution, Maintenance and Professional Services to Customer
under the Customer Agreement
1.8 "Maintenance" means the standard Software or Services
maintenance support deliverables provided by JHA to Customer as further
specified in these Standard Terms and Conditions or the Customer
Agreement.
1.9 "Professional Services" means any installation, conversion,
customization, consulting, training or other services performed by JHA to
assist in Customer's implementation of the Solution.
1.10 "Services" means any solution -based service offering other
than Professional Services which is identified in the Customer Agreement
and is owned by JHA.
1.11 "Software" means the JHA software programs identified in the
Customer Agreement; Documentation accompanying the software
programs; and all Enhancements, Updates, Upgrades, customizations,
modifications of the software programs and Documentation.
1.12 "Solution" means any combination of Software, Third Party
Software, Services, Third Party Services and Hardware which are provided
by JHA to Customer under the Customer Agreement.
1.13 "Third Party Services" shall mean any service offering which is
identified as a Third Party Services offering in the Customer Agreement and
is owned by a party other than JHA.
1.14 "Third Party Software" means any software program and
accompanying documentation that is identified as a Third Party Software
product in the Customer Agreement and is owned and licensed by a party
other than JHA.
1.15 "Updates" means periodic program fixes, patches and releases
issued by JHA to correct Errors reported in the Software programs or
Services as part of standard Maintenance. Once installed by Customer,
Updates become an integrated part of the Software or Services, as
applicable.
1.16 "Upgrades" means new versions of the Software or Services
issued by JHA which include major new features and functionality for which
JHA requires the payment of a separate Software license or Services
subscription fee from its customers generally.
2. SCOPE OF AGREEMENT
2.1 These Standard Terms and Conditions pertain to Software
licenses, Services and Hardware acquired by Customer from JHA and
associated Maintenance and Professional Services that may be acquired by
ProfitStars Customer Agr Order Form —Govt StdTC - -US rev 0712
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Customer from JHA with respect to installation and implementation of the
Software, Services and Hardware. Each Software license, Services and
Hardware acquisition transaction will be identified in the Customer
Agreement with which these Standard Terms and Conditions are
incorporated. When attached to and referenced in the Customer
Agreement, these Standard Terms and Conditions shall be incorporated as
part of the Customer Agreement as if fully set forth therein.
2.2 With respect to Third Party Software licensed or Third Party
Services acquired by Customer from JHA, the third party owner's software
license agreement or services agreement accompanying the Third Party
Software or Third Party Services will govern Customer's use. For a
particular Software or Services offering, a supplemental exhibit or
addendum document may be included with the Customer Agreement or
these Standard Terms and Conditions that provides supplemental terms
and conditions applicable specifically to that Third Party Software or Third
Party Services offering.
3. FEES
3.1 Customer shall pay to JHA the fees and expenses identified in
the Customer Agreement for the Solution, Maintenance and Professional
Services delivered by JHA to Customer which conform to the Customer
Agreement.
3.2 Customer shall promptly reimburse JHA for all actual,
reasonable out -of- pocket expenses incurred by JHA's personnel traveling to
and from Customer's site to perform Professional Services. If the Customer
Agreement indicates a not -to- exceed amount for these reimbursable
expenses, JHA will limit its billing of its reimbursable expenses to the
agreed limit. JHA will incur these expenses in accordance with JHA's
corporate travel policies and procedures and will invoice these expenses to
Customer on a monthly basis as incurred. With its invoices, JHA will
provide documentation of all reimbursable travel expenses charged to
Customer.
3.3 The parties recognize that Customer is a government entity and
as a result JHA will not invoice Customer for sales or use taxes pertaining
to the transactions identified in the Customer Agreement on the basis of
Customer's status as a tax - exempt entity. If however Customer is not
exempt from the obligation to pay such taxes for the items or services
provided by JHA to Customer under the Customer Agreement, JHA will
invoice Customer and Customer shall be solely responsible to pay all such
taxes imposed by another government entity on the transactions completed
under the Customer Agreement, except for taxes based on JHA's revenue
or income.
4. GRANT OF LICENSES AND USAGE RIGHTS TO SOFTWARE
AND SERVICES
4.1 Software Licenses and Usaae Riahts. In consideration of
Customer's payment of the Software license fees identified in the Customer
Agreement, JHA grants to Customer a non - transferable (except as
authorized herein) and non - exclusive license or usage right to install the
Software internally and access and use the Software solely for its Internal
operations, in accordance with the scope, configuration and quantity of the
Software licenses identified in the Customer Agreement and pursuant to
these Standard Terms and Conditions. For Software designated as server -
based Software, Customer shall be entitled to install, access and use the
Software programs on a single server computer located at Customer's site
listed in the Customer Agreement. Customer may transfer the installation
of the Software programs to another server at Customer's site by giving
JHA prior written notice and the full Installation details of the new Customer
site of the installation. For Software designated as being workstation -based
Software, Customer may install the Software programs on the number of
Customer -owned client workstations and access the Software programs up
to the maximum limit of the authorized users shown in the Customer
Agreement for the workstation licenses purchased by Customer. If the
Software license has an annual license term, the annual Software license
fee includes standard Maintenance provided by JHA for the Software
products.
4.2 U.S. Government Right4. If Customer is a U.S. government
entity, the Software products and /or Services are provided with
RESTRICTED RIGHTS. Use, duplication or disclosure by the Government Is
subject to restrictions set forth in subparagraphs (a) through (d) of the
Commercial Computer Software — Restricted Rights at FAR 52.227 -19 when
applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DEARS 252.227 -7013, and in similar clauses
in the NASA FAR supplement, as applicable.
4.3 Software License and Usage Right Term Period:
(a) -. - . 1 . .'.. - n • . '.. . As shown in JHA's
quotation of Software licensing or usage rights options to Customer, JHA
may offer the Software products for Customer's use for the duration of any
of the following license or usage right term periods:
(1) Twenty five (25) year license term, which requires the
payment of a one -time license fee to JHA for Customer's use of the
Software over this period. Annual Software Maintenance fees are charged
separately from this one -time license fee.
(2) Twelve (12) month license term ( "Annual Term "), which
is renewable for successive twelve month periods and requires the payment
of an annual license fee to JHA for Customer's use of the Software over this
period. Annual Software Maintenance fees are included as part of the
Annual Term license fees paid by Customer.
(3) Monthly Usage right term ( "Monthly Usage Term "), which
is renewable on a calendar monthly basis and requires the payment of a
monthly usage fee to JHA for Customer's use of the Software over this
period. Software Maintenance fees are included as part of the Monthly
Usage Term fees paid by Customer.
The type and duration of Software licenses acquired by Customer will be
specified in the Customer Agreement. JHA reserves the right to not offer
any of the foregoing Software license term options for specific Software
products. If no Software license term is specified in the Customer
Agreement, then the license term period for the Software shall be deemed
to be for an Annual Term.
(b) License Term Commencement: For all Software licensed under
the Customer Agreement, the term of the Software license granted to
Customer shall be for the period specified in the Customer Agreement,
commencing on the following date as applicable (the "Commencement
Date "):
(1) If Customer has contracted with ]HA to instal the
Software at Customer's location, then the effective date of the license shall
be the date that the Software has been installed and tested by JHA and is
first made available to Customer for use in its production environment.
(2) If Customer has not contracted with JHA to install the
Software at Customer's location, then the effective date of this initial
license of the Software shall be the date of JHA's delivery of the Software
to Customer.
(3) If Customer has contracted with JHA to install and use
the Software as part of processing services or a hosted service to be
provided by JHA to Customer via a remote Customer connection to JHA's
data center or hosted service center used by JHA to provide the Software to
Customer, then the effective date of the license or usage right shall be the
date that the Software has been installed and tested by JHA and is first
made available to Customer for use in its production environment.
(c) Annual Term Licenses.
(1) For Annual Term Software licenses, after completion of the
initial Annual Term of the Software license, the Software license may be
renewed by Customer for additional Annual Terms as follows:
(A) JHA will provide Customer with a quotation or invoice of
the Annual Term license fees due for the next following Annual Term
license period for the Software then licensed by Customer. JHA shall
provide this written quotation or invoice to Customer no later than sixty
(60) days prior to the Annual Term license renewal anniversary date. The
Annual Term Software license fee will not be increased by JHA by more
than ten percent (SO %) over the preceding Annual Term Software license
fee for the same scope and configuration of the Software licenses, except
as provided in Section 4.5 below. If JHA does not notify Customer of an
increase in the Annual Term license fees, then the renewal Annual Term
license fees shall be the same as the Annual Term license fees paid by
Customer for the Annual Term period immediately preceding the renewal
Annual Term period.
(B) Customer may contract for the Annual Term license
renewal by (i) issuing a purchase order to JHA prior to the next renewal
Annual Term anniversary date for the Software license, which indicates an
Annual Term license renewal for the Software products, or (ii) paying the
invoice received from JHA for the renewal Annual Term license no later
than the renewal anniversary date.
(2) Withdrawal of Annual Term 1 irense4: After completion of the
first full initial Annual Term license period, JHA reserves the right to
withdraw the availability of the Annual Term licenses of any or all of the
Software products licensed by Customer, by giving Customer written notice
of non - renewal of the Annual Term licenses at least one hundred eighty
(180) days prior to the next renewal anniversary date.
(3) Prorated Initial Annual Renewal Term: After completion of the
first Annual Term, JHA reserves the right to prorate the Annual Term so
that it will expire on the next following July 1 and each Annual Term will
commence on July 1 thereafter. In this instance, JHA will issue a partial
year invoice to Customer covering this prorated Annual Term period, and
issue regular full Annual Term invoices to Customer thereafter.
(d) Monthly Usage Term: For Monthly Usage Term transactions,
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the Monthly Usage Term will automatically renew on a calendar monthly
basis, until such time that either Customer or JHA shall terminate the
Monthly Usage term by giving at least ninety (90) days prior written notice
of termination. Each monthly fee will be due and payable by Customer in
advance no later than the first day of each calendar month during the term
of the Monthly Usage Term.
4.4 Services Suhsrrintion Term: For Services acquired under the
Customer Agreement, the subscription term of the Services granted to
Customer shall be for the period specified in the Customer Agreement,
commencing on the date that the Services have been installed and tested
by JHA and are first made available to Customer for use in its production
environment (the "Commencement Date "). If no Services subscription
term is specified in the Customer Agreement and the Services are being
acquired by Customer for use with Software licensed under the Customer
Agreement, then the initial subscription term for the Services shall be for a
period of one (1) year and automatically renewed for additional terms of
one (1) year each unless terminated by either party giving the other party
at least ninety (90) days written notice of termination prior to the annual
renewal anniversary date.
4.5 Additional Software or Services fees will be due and payable by
Customer to JHA for using the Software or Services to process the data or
requirements of entities other than Customer; for an increase in the scope,
configuration or quantity of its existing Software licenses or Services; or for
licensing or acquiring additional Software products or Services. The
Software and Services are licensed and provided for use in Customer's
production environment. If Customer wishes to utilize the Software or
Services in its nonproduction environments, such as development, testing,
or disaster recovery, additional Software license or usage rights fees or
Services fees may be charged by JHA for such use.
4.6 Except as authorized by law or in these Standard Terms and
Conditions, the Software licenses or Services acquired by Customer may
not be assigned, sublicensed, or otherwise transferred or copied in any
manner by Customer to any other entity without the prior written consent
of JHA. The Software or Services may not be used by Customer in a
timesharing, rental, ASP /hosted or service bureau environment to provide
access to the Software or Services to a third party, without the prior
written consent of JHA. Customer shall be authorized to make a reasonable
number of copies of the Software for its archival or back -up purposes only.
Customer may print a reasonable number of hard copies of the online
Documentation for the sole reference and use by individual users of the
Software within Customer's organization. All authorized copies of the
Software programs or Documentation made by Customer shall include all of
the proprietary notices and legends included by JHA or its licensors on the
original Software programs and Documentation.
4.7 Customer shall not disassemble, reverse engineer, decompile or
perform any other action to determine the source code of the Solution
except to the extent such action is authorized by applicable law, nor shall
Customer create any derivative works from the Solution. Customer shall
not remove or alter proprietary notices or legends placed by JHA or its
licensors on any of the Solution or on other materials associated with the
Solution.
4.8 If Customer wishes to provide access to any features or
functions performed by the Software or Services to any third party provider
in order to establish interoperability between JHA's Software or Services
and the third party's products or services, Customer will first require the
third party provider to sign JHA's standard confidentiality agreement
provided by JHA for this purpose, authorizing the third party provider's use
of and access to the Software or Services.
4.9 Customer covenants and warrants to JHA that all third parties
granted access to or use of the Software or Services by Customer shall
abide by and be bound to comply with the provisions of the Customer
Agreement and these Standard Terms and Conditions as though they were
the Customer. Customer accepts full responsibility and liability to JHA for
any breach of the Customer Agreement or these Standard Terms and
Conditions committed by the third party who is granted access to the
Software by Customer. A breach of the Customer Agreement or these
Standard Terms and Conditions committed by a third party granted access
to the Software by Customer shall be deemed to be a breach committed by
Customer. JHA and its licensors shall be deemed to be intended third party
beneficiaries of any written agreement between Customer and a third party
to whom Customer has granted access to the Software or Services, to
enable JHA and its licensors at their election to enforce the terms of the
Customer Agreement or these Standard Terms and Conditions and protect
their rights to the Software and Services directly against the third party.
4.10 For any Third Party Software or Third Party Services identified
in the Customer Agreement, the licenses and rights granted to Customer
for use of the Third Party Software or Third Party Services will be specified
in and governed by one of the following:
(a) Supplemental terms and conditions appended to the Customer
Agreement or these Standard Terms and Conditions which apply solely to
the Third Party Software or Third Party Services involved; or
(b) a separate software license agreement or services agreement
provided by the owner of the Third Party Software or Third Party Services
which the owner requires to be signed or acknowledged by Customer prior
to being granted access to the Third Party Software or Third Party Services.
JHA makes no separate grant of licenses or rights or extends any product
or services warranties, indemnities and liabilities for Third Party Software or
Third Party Services to Customer. Any warranties or indemnities provided
by the owner of the Third Party Software or Third Party Services in its
standard software end -user license agreement or services agreement shall
exclusively apply to the product or services. To the extent authorized by
the owner of the Third Party Software or Third Party Services, JHA shall
pass through to Customer for Customer's benefit all end -user software
warranties and indemnities that the owner of the Third Party Software or
Third Party Services provides directly to ]HA.
4.11 Not more than once each calendar year during the term of the
Customer Agreement, JHA or its audit representatives may at JHA's
expense conduct an audit at Customer's site upon at least fifteen (15) days
prior written notice to verify that Customer's use of the Solution conforms
to the terms of the Customer Agreement and these Standard Terms and
Conditions. If an audit uncovers wrongful use or copying of the Solution by
Customer, Customer shall pay to JHA the then - current fees due for the
additional copying and usage of the Software or Services. Further, if the
additional fees associated with Customer's wrongful copying or usage of the
Solution exceeds 120% of the fees paid by Customer for its licensed
Solution installation, Customer shall reimburse JHA for its reasonable costs
of performing the audit.
5. HARDWARE ACQUISITION TERMS
5.1 All Hardware sold by JHA to Customer under the Customer
Agreement is manufactured by third parties. Upon mutual execution of the
Customer Agreement, JHA will place an order for the Hardware with the
third party manufacturer of the Hardware or its distributor or dealer for
delivery of the Hardware to Customer. The Hardware will conform to the
then - current published written technical specifications of the Hardware
provided by JHA to Customer immediately prior to execution of the
Customer Agreement. In the event that Customer requests a change in the
order specifications or Hardware configuration details after JHA's placement
of the order with the third party Hardware provider, Customer shall
reimburse JHA for any rework charges levied by the third party Hardware
provider. Customer acknowledges that a Hardware manufacturer may
reserve the right to include new and used parts in its Hardware, and that a
Hardware manufacturer or provider may provide Hardware that has been
previously installed, but for which a full warranty is provided by the
Hardware manufacturer or provider for the Hardware.
5.2 The Hardware will be delivered to Customer at the Customer
location specified in the Customer Agreement, unless a different location
has been agreed in writing between Customer and JHA. Unless otherwise
indicated in the Customer Agreement, Customer will be responsible for
performing the installation of the Hardware at Customer's location. If
Customer has contracted with JHA to perform the installation, Customer
will provide a suitable location, environment and equipment for the
installation and will assist in unpacking, moving and locating the Hardware,
as requested by the installer. Customer will pay JHA or the installer (as the
case may be) Its then current installation services fees and reimbursable
reasonable out -of- pocket travel expenses.
5.3 Customer will be solely responsible for providing all components
in its information technology environment necessary to Install and operate
the Hardware in accordance with its published technical specifications,
including but not limited to WAN /LAN network connectivity and
management, switches, Ethernet drops, patch cables, UPS and Surge
Protection, Rack Units, Rack mounting, Virus and Firewall protection.
Products and /or services associated with fulfillment of these responsibilities
may be purchased separately from JHA. Microsoft may require Customer to
acquire a Service Provider License Agreement for any Microsoft licensed
products to be used for Commercial Hosting.
5.4 Customer accepts sole responsibility for (a) its selection and
use of the Hardware and programming to be operated with the Hardware to
achieve Customer's intended results and the results obtained therefrom;
and (b) the selection and use of, and results obtained from, any other
equipment, programs, or services used by Customer with the Machines and
programming.
5.5 The prices shown in the Customer Agreement for Hardware are
F.O.B. shipping point and do not include any transportation, packing,
crating, rigging, storage, warehousing, unloading, or shipment insurance
charges, if any, which will be payable separately by Customer. Upon
delivery of the Hardware to Customer, JHA will invoice Customer for the
Hardware and related transportation and shipment insurance charges,
which will be due and payable within thirty (30) days following Customer's
receipt of the correct and valid invoice.
5.6 The title and ownership of all Hardware transfers to Customer
when delivered by the Hardware provider to the transportation carrier;
however, to the extent permitted by applicable law, JHA reserves a
purchase money security interest in all Hardware delivered to Customer
until the Hardware fees identified in Section 5.5 above are paid in full by
Customer If Customer fails to pay all Hardware fees in full when due, JHA
shall have the right to take possession of the Hardware and remove it from
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Customer's location, at which event the title to the Hardware will
automatically be transferred to JHA.
5.7 JHA will advise the Hardware manufacturer or provider of
Customer's requested shipping dates, but Customer will accept and abide
by any manufacturing or shipping date or sequence of Hardware units to be
delivered as established or amended by the Hardware manufacturer or
provider. If the scheduled delivery date is extended on request of, or by
the action of Customer, then Customer will pay any additional fee or charge
assessed by the Hardware manufacturer or provider for such delay as
incurred by JHA, together with any warehouse charges and other related
expense, if any, resulting from such delay. Customer accepts all risk of
loss or damage of the Hardware from and after delivery to the
transportation carrier. JHA or JHA's supplier will arrange for shipment
insurance coverage against risk of loss or damage to the Hardware while it
is in transit to Customer. Such coverage will be at Customer's expense.
5.8 Prices for the Hardware shall be as shown in the Customer
Agreement, but are subject to price increases implemented by the
Hardware manufacturer or provider prior to the scheduled shipment date of
the Hardware. If a price increase is imposed by the Hardware
manufacturer or provider prior to shipment of the Hardware, JHA will
promptly give Customer written notice of the price increase. Customer
may cancel its order for the affected Hardware units by written notice
immediately delivered to 7HA, otherwise the Hardware will remain on order
but at the new increased sales price.
5.9 If any of the Hardware units are custom manufactured or
configured in a nonstandard manner for Customer's order, Customer
acknowledges that JHA may be unable to accept return of those Hardware
units. Returns of any kind require prior approval by JHA and will not be
accepted more than fifteen (15) days after shipment to Customer.
Approved returns will only be accepted in the original, unopened, shipping
container. All approved returns will be subject to a 20% restocking fee
payable by Customer.
5.10 If a Hardware unit is determined to be defective upon delivery
to the Customer location, Customer must notify JHA within ten (10) days of
delivery and receive a defective machine return approval. Defective units
may be repaired or replaced under the Hardware manufacturer's warranty
or returned for credit at the discretion of JHA or the Hardware
manufacturer. A restocking fee will not apply to returns of defective
equipment approved by JHA.
5.11 The Hardware manufacturer or provider generally offers a
separate Hardware maintenance contract for servicing the Hardware
acquired by Customer, and in that case Customer shall have the option of
acquiring this Hardware maintenance directly from the manufacturer or
provider. JHA will have no liability or responsibility to Customer with
regard to the separate Hardware maintenance contract between Customer
and the manufacturer or provider, even if Customer acquires this Hardware
maintenance contract from the Hardware manufacturer or provider through
JHA under the Customer Agreement.
6. WARRANTIES
6.1 Software and Services. With respect to Software and Services
provided by JHA to Customer under the Customer Agreement, JHA
warrants to Customer that:
(a) For a period of ninety (90) days following 1HA's initial delivery
of the Software or Services to Customer (the "Warranty Period "), the
unmodified Software programs or Services will operate in accordance with
the Documentation in effect at the time of delivery. If Customer has
contracted for JHA to perform the Software or Services installation, the
Warranty Period will commence on the date that the Software or Services
have been installed and tested by JHA and first made available to Customer
for use in its production environment. Under this warranty, JHA will apply
commercially reasonable efforts to correct Errors in the Software or
Services reported by Customer during the Warranty Period at no extra
charge to Customer. If JHA does not correct the Errors reported by
Customer within thirty (30) days following the expiration of the Warranty
Period, Customer may terminate this Agreement and receive a full refund
of all fees paid by Customer to JHA for the affected Solution components
under this Agreement. Errors reported by Customer after expiration of the
Warranty Period will be addressed by JHA solely in accordance with the
provisions of Section 7 (Software and Services Maintenance) below. JHA
does not warrant that the Solution is Error -free or will operate in an
uninterrupted manner.
(b) The Software and Services shall be provided by JHA free and
clear of all liens and encumbrances. JHA further warrants that it has full
power and authority to license and provide the Solution to Customer
without the consent of any other person, or in the event such consent is
required JHA has obtained all required consents.
(c) JHA will utilize commercially available virus protection software
in order to ensure that the Software and Services will be free from known
viruses, bombs and other destructive elements which negatively affect
Customer's use and operation of the Software and Services.
(d) Maintenance of the Software and Services will be provided to
Customer in a timely and professional manner consistent with technology
industry standards for maintenance support of commercial software
products and services comparable to the Software licensed and Services
acquired by Customer under the Customer Agreement.
6.2 Professional Services. JHA warrants that the Professional
Services provided by JHA to Customer under the Customer Agreement will
be performed in a timely and professional manner consistent with
technology industry standards and in accordance with the requirements and
specifications identified in the Customer Agreement or a separate
statement of work or services order negotiated and executed between the
parties (as applicable).
6.3 Third Party Software and Services. JHA warrants that it has
full power and authority to license and provide the Third Party Software and
Third Party Services to Customer without the consent of any other party, or
in the event such consent is required JHA has obtained all required
consents.
6.4 Hardware. JHA warrants that (a) it has full power and authority
to resell and deliver the Hardware to Customer without the consent of any
other party, or in the event such consent is required JHA has obtained all
required consents; and (b) Hardware installed by JHA will be properly
installed in accordance with the Hardware manufacturer's installation
instructions. JHA does not make any other warranties, indemnities or
obligations for the Hardware and does not accept any liability for any
warranties, indemnities or obligations which may be separately provided by
the Hardware manufacturer or provider with respect to the Hardware
acquired by Customer from JHA under the Customer Agreement.
6.5 THE WARRANTIES STATED IN THIS SECTION 6 ARE EXPRESSLY
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. JHA MAKES NO WARRANTY THAT THE
SOFTWARE OR SERVICES WILL BE ERROR FREE OR WILL OPERATE IN AN
UNINTERRUPTED MANNER.
7. SOFTWARE AND SERVICES MAINTENANCE
7.1 During the term of the Customer Agreement, in consideration
of Customer's full payment of the fees for the Software, Maintenance
and /or the Services subscription fees applicable to the transactions entered
into between JHA and Customer under the Customer Agreement, JHA will
provide Customer with the following standard Maintenance for the Software
and Services:
(a) Updates and Enhancements of the Software or Services which
are provided by JHA to other then - current active Maintenance customers of
the Software or Services.
(b) Customer support help -desk, for the reporting, handling and
resolution of Software product errors discovered by Customer. Unless
different help desk hours are shown in the Customer Agreement, IHA's
standard customer support help desk hours are 8:00 am through 5:00
pm, Central US time zone, Monday through Friday, excluding standard
US holidays published by the Federal Reserve System.
(c) Correction of Errors which prevent normal operation and use of
the Software or Services, including the delivery of program error fix
releases or PTF's.
7.2 Customer, at its expense, will provide JHA with remote VPN
communication access (or comparable remote access technology) to its
server on which the Software or Services have been installed to enable JHA
to perform remote diagnosis and troubleshooting activities relating to the
reported Error. If remote dial up access is provided, Customer shall initiate
the call for the remote support session. JHA shall comply with all IT system
access and security policies and procedures communicated by Customer
regarding authorized access to its IT systems.
7.3 JHA's provision of standard Maintenance shall apply only to the
then - current release of the Software or Services and the immediately
preceding release of the Software or Services. Maintenance, if any, offered
by JHA for older releases of the Software or Services shall be provided
under a separate Professional Services purchase order negotiated and
executed between JHA and Customer and subject to separate charges.
7.4 Standard Maintenance specifically excludes, and JHA will not be
liable or responsible to perform Maintenance for, any problems caused or
contributed to by the following:
(a) A Software program or service which was not originally
provided by JHA, or
(b) An unauthorized alteration or revision to the Software or
Services, or
(c) Errors that were previously corrected by JHA and delivered to
Customer in an update release of the Software or Services which has not
been installed by Customer, or
(d) Any problems with data on tape, disk or diskettes which have
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been caused by defects by hardware manufacturers programming, or
(e) Failure of Customer to load hardware manufacturers
operational /system software new Releases and /or Program Temporary
Fixes (PTFs), or
(f) Errors or problems which are the result of improper operator
handling or use.
(g) As part of its provision of standard Maintenance, JHA will not
provide retrofitting, reintegration, and recoding of any customization(s)
which have been made to the Software or Services in order for the
customizations to work with any then - current release version of the
Software or Services. Any Professional Services to perform those activities
which are agreed between JHA and Customer shall be documented in the
Customer Agreement or a Statement of Work or services order executed
between JHA and Customer which includes the project details, scope of
services deliverables, and services fees applicable to the Professional
Services.
8. OWNERSHIP
8.1 All Software and Services and other intellectual property
provided by JHA to Customer shall be and remain the exclusive property of
JHA and its licensors, subject to the licenses and rights granted to the
Customer as defined in the Customer Agreement and these Standard Terms
and Conditions. All Software provided by JHA to Customer under this
Agreement is licensed and not sold.
8.2 All software programs, data, technology and any other
intellectual property owned by Customer and its licensors and provided or
made accessible to JHA under this Agreement shall be and remain the
exclusive property of Customer and its licensors.
9. TRADE SECRETS
9.1 Customer hereby acknowledges that the Software provided by
IHA under this Agreement incorporates trade secrets of JHA and its
licensors, and as such is protected by civil and criminal law, is very
valuable to JHA and its licensors, and that its use must be carefully and
continuously controlled. Customer shall use the highest standard of
diligence to protect the confidentiality of the Software, but in no event
exercising not less than reasonable care, and shall prohibit the
unauthorized access to, use or duplication of any of the Software in its
possession. Customer shall keep all machine - readable Software in a secure
place which is as secure as Customer provides for its most confidential
materials of like nature and importance. Customer shall notify JHA
immediately of any unauthorized disclosure, possession or use of any item
supplied by JHA under the Customer Agreement by any person or
organization not authorized by the Customer Agreement to have such
possession or use. Customer shall promptly furnish JHA full details of such
possession, use or knowledge, and shall cooperate fully with JHA in any
litigation against third parties deemed necessary by JHA to protect Its
proprietary rights. Customer's compliance with the above shall not be
construed in any way as a waiver of JHA's right to recover damages or
obtain other relief against Customer for its negligent or intentional harm to
the proprietary rights of JHA or its licensors or for Customer's breach of its
contractual obligations to protect the confidentiality of the Software or
Services.
9.2 If Customer attempts or allows others to attempt to use, copy,
duplicate, transcribe or convey the items supplied by JHA pursuant to the
Customer Agreement, in a manner contrary to the terms of the Customer
Agreement or these Standard Terms and Conditions in derogation of JHA's
proprietary rights, whether these rights are explicitly herein stated,
determined by law, or otherwise, JHA shall have, in addition to any other
remedies available to it at law or equity, the right to seek injunctive relief
enjoining such actions. Customer acknowledges that in such instances
irreparable harm will occur to JHA and its licensors and that other remedies
are inadequate.
10. CONFIDENTIAL INFORMATION
10.1 All Information communicated by one party to the other party
regardless of whether marked as confidential or not, including the terms
and conditions of this Agreement ( "Confidential Information "), whether
before the effective date or during the term of this Agreement, shall be
received in strict confidence and shall be used only for the purposes of this
Agreement. Confidential Information shall not be disclosed by the recipient
party, its agents or employees without prior written consent of the
disclosing party. Each party agrees to take all reasonable precautions to
prevent the disclosure to third parties of such information, except as may
be necessary by reason of legal, accounting or regulatory requirements
beyond the reasonable control of JHA or Customer, as the case may be.
The receiving party shall apply the same standard of care with respect to
the disclosing party's Confidential Information that it applies to its own
Confidential Information of like nature and importance, but in no event
applying less than a standard of reasonable care. If Third Party Software
or Third Party Services are specified in the Customer Agreement, then JHA
shall be authorized to disclose the terms and conditions of the Customer
Agreement to the owner of the Third Party Software or Third Party Services
to fulfill its contract reporting obligations to the third party owner.
10.2 The receiving party shall be under no obligation with respect to
Confidential Information which (a) was in the public domain prior to the
receipt of the information by the receiving party, or subsequently becomes
part of the public domain by publication or otherwise, except disclosure by
or the wrongful act of the receiving party, its owners, officers, directors,
employees, agents or representatives; (b) was in the lawful possession of
the receiving party prior to its receipt from the disclosing party and was not
acquired by the receiving party directly or indirectly from the disclosing
party or any of disclosing party's Customers, and the sources of such
information had not obtained the information wrongfully and had no
obligations of confidentiality or secrecy with respect thereto; (c) was
independently developed by the receiving party without access to the
Confidential Information; (d) is provided by the disdosing party to another
person or party without being subject to an obligation of confidentiality by
the other person or party with respect to the information; or (e) is
disclosed by the receiving party pursuant to a government or court order
requiring such disclosure, provided that the receiving party has first notified
the disclosing party of its receipt of the government or court order to
disclose the disclosing party's Confidential Information and has given the
disclosing party an opportunity to seek a protective order limiting such
disclosure without confidentiality obligations. The receiving party has the
burden of proving that the Confidential Information was subject to one or
more of the above listed exceptions.
10.3 All information and materials disdosed to Customer at JHA's
User Group conferences shall be treated as JHA's Confidential Information.
Nothing in this Section shall be interpreted to preclude or impede
Customer's participation in any User Group conference.
11. DATA PRIVACY AND SECURITY
11.1 In accordance with data privacy laws and regulations
applicable to this Agreement, which may include but not be limited to the
Gramm - Leach - Bliley Act ( "GLBA ") and the Health Insurance Portability and
Accountability Act ( "HIPAA "), JHA shall not disclose or permit access to or
use of the non - public personal information of Customer or its consumers
made available by Customer to JHA for any purposes other than those
specifically required to fulfill JHA's contractual obligations with Customer.
JHA shall not sell the information regarding Customer's consumers for any
reason. In connection with providing services to Customer, JHA shall take
all commercially reasonable steps to ensure the privacy and security of
Customer's and its consumers' information and protect against anticipated
threats and hazards to the security of such information. JHA shall take all
commercially reasonable steps to prevent unauthorized access to or use of
such information that could result in substantial harm or inconvenience to
Customer or its consumers. JHA has implemented policies and procedures
to ensure the proper disposal of consumer information in accordance with
applicable Federal and State requirements. In the event any court or
regulatory agency seeks to compel disclosure of the information, JHA shall,
if legally permissible, promptly notify Customer of the disclosure
requirement and will cooperate so that Customer may at its expense seek
to legally prevent this disclosure of the information.
11.2 JHA has separately published its data privacy and security
compliance commitment to its customers, which corresponds at a minimum
to the provisions of this Section 11 as of the effective date of this
Agreement. To the extent that additional commitments by JHA are
reflected in future published versions of this policy, these additional
commitments shall be incorporated as part of this Agreement without
further actions by the parties. In no event shall a future published data
privacy and security compliance statement issued by JHA lessen or
eliminate any of the commitments by JHA stated in this Section 11,
11.3 If a breach of security results in an unauthorized intrusion into
JHA's systems which directly and materially affects Customer or its
consumers, JHA will take appropriate measures to stop the intrusion; report
on the intrusion to Customer within a reasonable time after discovery of the
intrusion; subsequently report the corrective action taken by JHA in
response to the intrusion; and provide reasonable assistance to Customer
to support any mandatory disclosures about the intrusion by Customer to
its consumers required by law. If JHA has notified law enforcement
agencies about the intrusion, JHA may delay its notification of the intrusion
to Customer until authorized to do so by the law enforcement agencies.
12. DELIVERY OF SOFTWARE AND SERVICES
If Customer has not contracted with JHA to install the Software or Services
at Customer's location, delivery of the Software or Services to Customer
shall occur within thirty (30) days following (a) the execution of the
Customer Agreement, with respect to the Software or Services initially
licensed or acquired under the Customer Agreement, and (b) the execution
of any follow -on addendum to the Customer Agreement, with respect to
additional Software or Services licensed or acquired under the Customer
Agreement.
13. PROFESSIONAL SERVICES
13.1 Installation Services. If Customer has contracted for JHA to
install the Solution at Customer's location, JHA will install the Solution at
Customer's designated data processing center or JHA's data processing or
hosted service data center (as applicable) so that the Solution will properly
operate as specified in the Customer Agreement. Prior to commencement
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of the project, JHA and Customer may enter into a separate Statement of
Work document which describes the project details and the specifications
and requirements applicable to JHA's professional services delivery.
Customer shall be responsible for providing all hardware, other third party
software, and internet /network /infrastructure components necessary to
install and operate the Solution in its production environment, which shall
be installed by Customer and operational as of the scheduled
commencement date of the Solution installation project. Customer will
furnish data needed and requested by JHA, and will co- operate with and
assist JHA personnel in the installation and testing of the Solution.
13.2 Training Services. If Customer has contracted for JHA to
perform training of Customer's personnel in the use and operation of the
Solution, JHA will perform the training at the site indicated in the Customer
Agreement. The training session will be scheduled to occur on a mutually
agreeable date. If the training is to be conducted at Customer's location,
Customer will provide JHA with the necessary space, equipment and a
suitable training environment in which to perform the training session. For
the training fee quoted to Customer, up to twelve (12) of Customer's
personnel may attend a single training session conducted at Customer's
location.
14. INVOICING AND PAYMENT TERMS
14.1 Unless different payment terms are specified in the Customer
Agreement, JHA will invoice Customer for the Solution and Professional
Services upon delivery, and Customer shall pay JHA for all amounts due
under the Customer Agreement within thirty (30) days from the date of
JHA's correct and valid invoice.
14.2 To the extent such charges are permitted under applicable law,
if Customer becomes delinquent in the timely payment of a correct and
valid invoice received from JHA, Customer will become liable to pay JHA an
additional amount equal to the lower of (a) 1.5% interest per month (18%
annually) or (b) the highest interest rate chargeable by applicable law, to
be charged until the delinquent amount has been fully paid. )HA reserves
the right to halt the delivery of any Solution, Maintenance or Professional
Services if Customer becomes delinquent in the payment of any amounts
due JHA, except where such amounts are legitimately being disputed in
good faith by Customer.
15. LIMITATION OF LIABILITY
15.1 Neither party shall be liable to the other party or to any other
person, firm or company, for failure to fulfill its obligations hereunder due
to the occurrence of an event beyond its reasonable control, including but
not limited to acts of God, public disaster, fire, flood, riot, war, terrorism,
labor strikes /disputes involving its suppliers, judicial orders /decrees,
government laws /regulations, or interruptions of communications,
transportation or electricity.
15.2 Any liability of JHA for any loss, damage, or cost hereunder
shall be limited to actual direct damages incurred by Customer, but in no
event shall the aggregate of JHA's liability under the Customer Agreement
exceed the cumulative amount of fees paid by Customer to JHA under the
Customer Agreement during the preceding three (3) year period, nor shall
any amount of the liability include any indirect, consequential, punitive or
special damages incurred by Customer, to the extent that such limitation or
exclusion of damages is permitted by applicable law.
16. TERMINATION
16.1 If Customer or JHA elects not to renew the license or usage
right term of the Software or the subscription term of the Services as
provided in Section 4 above, then the Software or Services subject to such
non - renewal shall automatically terminate as of the expiration date of the
then - current license, usage right or subscription term, without further
action or notice required by either party.
16.2 Either party may terminate the Customer Agreement for cause
by written notice to the other party, upon the occurrence of a breach of this
Agreement which has not been cured by the other party following thirty
(30) days prior written notice of such breach. If the breach is due to
Customer's failure to pay a correct and valid invoice when due without
legitimate dispute, this cure period shall be reduced to ten (10) days
following receipt of notice of the delinquency from JHA.
16.3 Either party may terminate the Customer Agreement for cause
upon written notice to the other party, in the event that the other party
undergoes voluntary or involuntary bankruptcy.
16.4 Within ten (10) business days following the effective date of
termination of the Customer Agreement, Customer shall cease using the
Software and Services, uninstall the Software and Services from all
locations, and return the Software copies to JHA or destroy the Software
copies and certify this destruction to JHA in writing by an official or senior
manager of Customer.
17. GENERAL PROVISIONS
17.1 Any notice under the Customer Agreement shall be In writing
and shall be deemed delivered when actually received, or five days after it
is sent by United States Postal Service certified mail, return receipt
requested, or by overnight express mail, with proof of delivery retained,
when addressed to the other party at its address shown in the Customer
Agreement, which may be changed by written notice. A copy of any
written notice of breach or termination of the Customer Agreement given
by Customer to JHA shall be delivered to the attention of JHA's Legal
Department at the ]HA address identified in the Customer Agreement.
17.2 No action arising out of the Customer Agreement may be
brought by a party against the other party more than two (2) years after
the cause of action has accrued and the injured party has actual knowledge
of the accrual. Unless otherwise prohibited by applicable law, the
prevailing party in any litigation conducted in relation to the Customer
Agreement shall be entitled to recover its reasonable attorneys' fees from
the other party.
17.3 The Customer Agreement and these Standard Terms and
Conditions contain the entire agreement between the parties with respect
to the transactions contained herein. The Customer Agreement and these
Standard Terms and Conditions shall be modified or altered only by a
written instrument signed by authorized representatives of both parties.
17.4 The Customer Agreement shall be binding upon and inure to
the benefit of the parties and their respective assigns and successors.
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17.5 Except as provided below, the Customer Agreement shall not
be transferable or assignable by either party to a third party without the
prior written consent by the non - assigning party. JHA may assign the
Customer Agreement in its entirety to a successor entity which has
acquired controlling ownership interest in JHA and is contractually bound to
enjoy all of the rights and perform all of the liabilities and responsibilities of
JHA under the Customer Agreement.
17.6 The Customer Agreement and these Standard Terms and
Conditions shall be governed by and construed in accordance with the laws
of the home state of Customer, without reference to its conflict of laws
provisions, and applicable U.S. federal laws and regulations.
17.7 The provisions of Sections 5, 8, 10, 11, 14, 15, 16.4 and 17
shall survive the expiration or termination of the Customer Agreement.
17.8 If any of the provisions of the Customer Agreement or these
Standard Terms and Conditions shall be ruled by a court of law with
competent jurisdiction to be invalid under any applicable statute or rule of
law, the affected provisions shall be, to that extent, be deemed to be
omitted . Such omission shall not change the intent or binding nature of
any or all of the rest of the Customer Agreement or these Standard Terms
and Conditions.
<End of Standard Terms and Condition>