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HomeMy WebLinkAboutStaff Report 8290 City of Palo Alto (ID # 8290) City Council Staff Report Report Type: Consent Calendar Meeting Date: 10/30/2017 City of Palo Alto Page 1 Summary Title: Approval of a Contract with EnvisionWare, Inc., for Maintenance of Library Equipment for $448,634. Title: Approval of a 5-year Contract With EnvisionWare, Inc. for Maintenance of the Automated Materials Handling Systems (AMHS) at Rinconada and Mitchell Park Libraries for a Not-to-Exceed Total of $448,634 From: City Manager Lead Department: Library Recommendation Staff recommends that the City Council: 1. Approve and authorize the City Manager to execute a contract with EnvisionWare, Inc., in the amount of $373,861.29 for a 5-year renewal of maintenance and support for the Automated Material Handling Systems (AMHS) at the Rinconada and Mitchell Park Libraries; and 2. Approve a 20% contingency of $74,772 in addition to the contract amount. Executive Summary The Library has operated two installations of AMHS systems at Rinconada and Mitchell Park Libraries. Under Contract C12144307, the funds for the two installations were covered by Measure N as part of the new building project. After the first year of operation, the Library’s Operating Budget funded the yearly maintenance of the systems. A new contract, C18169539, (Attachment A) for a 5-year maintenance renewal at a cost of $373,861.29 will provide guaranteed ongoing operation of these systems. Ongoing maintenance and support costs are necessary to ensure continued efficient operation of the hardware and software of these systems. These systems have greatly assisted with workload, accuracy, and timeliness of check- in transactions and freed up staff for higher levels of customer service duties. Background A feasibility study and implementation plan for Radio Frequency Identification Systems (RFID) and an Automated Materials Handling System (AMHS) was completed in 2006. The implementation of the AMHS specifically responds to City Council direction to employ technology solutions in the Library, and the City Auditor’s recommendation in the July 2007 Audit of Library Operations, to expedite an RFID and AMHS implementation. The Palo Alto City City of Palo Alto Page 2 Library Technology Plan, 2009-2013, included a detailed analysis, evaluation, and recommendation for RFID and AMHS for the Palo Alto City Library. The AMH systems were implemented at the Mitchell Park Library in 2014 and at the Rinconada Library in 2015. The AMH systems in place are provided by EnvisionWare who are the sole-source vendor for providing maintenance and support. Yearly maintenance for the 2 systems will average $76,000 per year. This request for approval of a 5-year maintenance plan for these systems will allow the library to budget accordingly with a locked in maintenance cost each year. Discussion In the past three years, the Library’s AMHS have achieved these goals:  Managing an increasing circulation workload without additional staffing;  Achieving capacity for high levels of customer service;  Freeing up staff from current repetitive and routine tasks;  Reducing the risk of potential repetitive motion injuries;  Reducing material losses; and  Improving circulation efficiency and shelf accuracy. The AMHS in place in the new and renovated libraries allow for greater efficiency in managing material returns in a busy library system that sees annual circulation of approximately 1.5 million physical items. These systems also offer customers ease of use with 24-hour operation and immediate check-in of their returned material. These robust systems comprised of complex hardware and software require regular maintenance to continue the high performance users have come to expect. In approving an extended maintenance contract with EnvisionWare, this sole-source provider for AMHS maintenance and support will guarantee that the systems experience maximum uptime and benefit from any new releases and enhancements. Timeline, Resource Impact, Policy Implications, Environmental Review Funds for this 5-year contract covering the ongoing equipment and software maintenance costs are estimated at $76,000 per year for the 2 systems and are budgeted annually in the Library Operating Budget. Implementation of AMHS is not considered a project subject to review under the California Environmental Quality Act. Environmental review for the Measure N bond projects was completed prior to the 2008 election. Attachments:  Attachment A - C18165539 EnvisionWare GSA FINAL 10.10.17.docx  Attachment B - Summary City of Palo Alto General Services Agreement 1 Rev. February 8, 2017 CITY OF PALO ALTO CONTRACT NO. C18169539 GENERAL SERVICES AGREEMENT THIS AGREEMENT made and entered into on the 17th day of July, 2017, by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and ENVISIONWARE, a Georgia Corporation, located at 2855 Premiere Parkway, Suite A, Duluth, GA, 30097 Telephone Number: 800-216-8370 (“CONTRACTOR”). In consideration of their mutual covenants, the parties hereto agree as follows: Definitions  “Customer Agreement” means the agreement in place between CITY and CONTRACTOR regarding the purchase of Software and/or Hardware (and possibly other services).  “Customer Forum” means the CONTRACTOR’s open forum where the CONTRACTOR’s customers from around the world share ideas and concerns related to Computer and Financial Management, Self-Service Circulation, RFID, and Automated Materials Handling topics. The Customer Forum is not moderated by our support group.  “EnvisionWare Customer Center” means CONTRACTOR’s online self-service portal into the CITY’s relationship with the CONTRACTOR where the CITY can open and manage support cases, view issues and submit and track enhancements, view the CITY’s maintenance status and annual billing information, see a history of items purchased and much more.  “Hardware” means equipment (including, but not limited to, computers, displays, printers, readers, sorters, and the like) that CITY have purchased directly from CONTRACTOR or one of the CONTRACTOR’s authorized reseller partners.  “Knowledge Base” means the repository of articles and FAQs accessible online at any time from CONTRACTOR’s Customer Center. Access is based upon the maintenance program level.  “LiveChat” means CONTRACTOR’s online chat service that enables CITY to communicate with one of the CONTRACTOR’s support technicians. Access is based upon the maintenance program level. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 2 Rev. February 8, 2017  “Preventative Maintenance” service (provided with Platinum and Platinum PLUS maintenance programs) means proactive replacement of parts, cleaning, system updates and performance testing and certification.  “Software” means the object code versions of any software programs and any updates to the software programs that the CONTRACTOR may provide to CITY that CITY has purchased directly from CONTRACTOR or one of CONTRACTOR’s authorized reseller partners.  “Standard Support Hours” means 8:30 a.m. to 7:00 p.m. Eastern U.S. Time, Monday through Friday, excluding U.S. federal holidays.  “Telephone Support” means support provided via the following telephone numbers: North America: 888-409-0888 or +1 678-382-6600.  “Hardware Revisions” means a system update to improve the reliability, compatibility and/or performance of a complex system. Hardware Revisions may include new components and assemblies, parts replacements, onsite machining, onsite labor, software and firmware updates, documentation changes and related services, and testing. 1. SERVICES. CONTRACTOR shall provide or furnish the services (the “Services”) described in the Scope of Services, attached at Exhibit A. Optional On-Call Provision (This provision only applies if checked and only applies to on-call agreements.) Services will be authorized by CITY, as needed, with a Task Order assigned and approved by CITY’s Project Manager. Each Task Order shall be in substantially the same form as Exhibit A-1. Each Task Order shall designate a CITY Project Manager and shall contain a specific scope of work, a specific schedule of performance and a specific compensation amount. The total price of all Task Orders issued under this Agreement shall not exceed the amount of Compensation set forth in Section 5 of this Agreement. CONTRACTOR shall only be compensated for work performed under an authorized Task Order and CITY may elect, but is not required, to authorize work up to the maximum compensation amount set forth in Section 5. 2. EXHIBITS. The following exhibits are attached to and made a part of this Agreement: “A” - Scope of Services “B” - Schedule of Performance “C” – Schedule of Fees DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 3 Rev. February 8, 2017 “D” - Insurance Requirements “E” – End User License Agreement CONTRACT IS NOT COMPLETE UNLESS ALL INDICATED EXHIBITS ARE ATTACHED. 3. TERM. The term of this Agreement is from August 1, 2017 to July 31, 2022 inclusive, subject to the provisions of Sections Q and V of the General Terms and Conditions. 4. SCHEDULE OF PERFORMANCE. CONTRACTOR shall complete the Services within the term of this Agreement in a reasonably prompt and timely manner based upon the circumstances and direction communicated to CONTRACTOR, and if applicable, in accordance with the schedule set forth in the Schedule of Performance, attached at Exhibit B. Time is of the essence in this Agreement. 5. COMPENSATION FOR ORIGINAL TERM. CITY shall pay and CONTRACTOR agrees to accept as not-to-exceed compensation for the full performance of the Services and reimbursable expenses, if any: The total maximum lump sum compensation of dollars ($ ); OR The sum of dollars ($ ) per hour, not to exceed a total maximum compensation amount of dollars ($ ); OR A sum calculated in accordance with the fee schedule set forth at Exhibit C, not to exceed a total maximum annual compensation amount of Seventy-Six Thousand and Eight Hundred and Eighteen Dollars and Ninety-Two cents ($76,818.92) and not to exceed the total compensation of five years of Three Hundred and Seventy-Three Thousand and Eight Hundred and Sixty-One Dollars and Twenty-Nine cents (373,861.29) CONTRACTOR agrees that it can perform the Services for an amount not to exceed the total maximum compensation set forth above. Any hours worked or services performed by CONTRACTOR for which payment would result in a total exceeding the maximum amount of compensation set forth above for performance of the Services shall be at no cost to CITY. CITY has set aside the sum of Zero dollars ($0.00) for Additional Services. CONTRACTOR shall provide Additional Services only by advanced, written authorization from the City Manager or designee. CONTRACTOR, at the DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 4 Rev. February 8, 2017 CITY’s request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONTRACTOR’s proposed maximum compensation, including reimbursable expense, for such services. Compensation shall be based on the hourly rates set forth above or in Exhibit C (whichever is applicable), or if such rates are not applicable, a negotiated lump sum. CITY shall not authorize and CONTRACTOR shall not perform any Additional Services for which payment would exceed the amount set forth above for Additional Services. Payment for Additional Services is subject to all requirements and restrictions in this Agreement. 6. COMPENSATION DURING ADDITIONAL TERMS. CONTRACTOR’S compensation rates for each additional term shall be as specified in the quotations that are listed and included as part of Exhibit C; OR CONTRACTOR’s compensation rates shall be adjusted effective on the commencement of each Additional Term. The lump sum compensation amount, hourly rates, or fees, whichever is applicable as set forth in section 5 above, shall be adjusted by a percentage equal to the change in the Consumer Price Index for Urban Wage Earners and Clerical Workers for the San Francisco-Oakland- San Jose area, published by the United States Department of Labor Statistics (CPI) which is published most immediately preceding the commencement of the applicable Additional Term, which shall be compared with the CPI published most immediately preceding the commencement date of the then expiring term. Notwithstanding the foregoing, in no event shall CONTRACTOR’s compensation rates be increased by an amount exceeding five percent of the rates effective during the immediately preceding term. Any adjustment to CONTRACTOR’s compensation rates shall be reflected in a written amendment to this Agreement. 7. CLAIMS PROCEDURE FOR “9204 PUBLIC WORKS PROJECTS”. For purposes of this Section 7, a “9204 Public Works Project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. Public Contract Code Section 9204 mandates certain claims procedures for Public Works Projects, which are set forth in “Appendix __ Claims for Public Contract Code Section 9204 Public Works Projects”. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 5 Rev. February 8, 2017 This project is a 9204 Public Works Project and is required to comply with the claims procedures set forth in Appendix __, attached hereto and incorporated herein. OR This project is not a 9204 Public Works Project. 8. INVOICING. Send all invoices to CITY, Attention: Project Manager. The Project Manager is: Martha Walters, Dept.: Public Library, Telephone: 650-329-2308. Invoices shall be submitted annually for prepaid services. Invoices shall provide a detailed statement of Services to be performed during the invoice period and are subject to verification by CITY. CITY shall pay the undisputed amount of invoices within 30 days of receipt. GENERAL TERMS AND CONDITIONS A. ACCEPTANCE. CONTRACTOR accepts and agrees to all terms and conditions of this Agreement. This Agreement includes and is limited to the terms and conditions set forth in sections 1 through 7 above, these general terms and conditions and the attached exhibits. B. QUALIFICATIONS. CONTRACTOR represents and warrants that it has the expertise and qualifications to complete the services described in Section 1 of this Agreement, entitled “SERVICES,” and that every individual charged with the performance of the services under this Agreement has sufficient skill and experience and is duly licensed or certified, to the extent such licensing or certification is required by law, to perform the Services. CITY expressly relies on CONTRACTOR’s representations regarding its skills, knowledge, and certifications. CONTRACTOR shall perform all work in accordance with generally accepted business practices and performance standards of the industry, including all federal, state, and local operation and safety regulations. C. INDEPENDENT CONTRACTOR. It is understood and agreed that in the performance of this Agreement, CONTRACTOR and any person employed by CONTRACTOR shall at all times be considered an independent CONTRACTOR and not an agent or employee of CITY. CONTRACTOR shall be responsible for employing or engaging all persons necessary to complete the work required under this Agreement. D. SUBCONTRACTORS. CONTRACTOR may use subcontractors to perform any Services under this Agreement. CONTRACTOR shall be solely responsible for directing the work of approved subcontractors and for any compensation due to subcontractors. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 6 Rev. February 8, 2017 E. TAXES AND CHARGES. CONTRACTOR shall be responsible for payment of all taxes, fees, contributions or charges applicable to the conduct of CONTRACTOR’s business. F. COMPLIANCE WITH LAWS. CONTRACTOR shall in the performance of the Services comply with all applicable federal, state and local laws, ordinances, regulations, and orders. G. PALO ALTO MINIMUM WAGE ORDINANCE. CONTRACTOR shall comply with all requirements of the Palo Alto Municipal Code Chapter 4.62 (Citywide Minimum Wage), as it may be amended from time to time. In particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of work in a calendar week within the geographic boundaries of the City, CONTRACTOR shall pay such employees no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked within the geographic boundaries of the City of Palo Alto. In addition, CONTRACTOR shall post notices regarding the Palo Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code section 4.62.060. H. DAMAGE TO PUBLIC OR PRIVATE PROPERTY. CONTRACTOR shall, at its sole expense, repair in kind, or as the City Manager or designee shall direct, any damage to public or private property that occurs in connection with CONTRACTOR’s performance of the Services. CITY may decline to approve and may withhold payment in whole or in part to such extent as may be necessary to protect CITY from loss because of defective work not remedied or other damage to the CITY occurring in connection with CONTRACTOR’s performance of the Services. CITY shall submit written documentation in support of such withholding upon CONTRACTOR’s request. When the grounds described above are removed, payment shall be made for amounts withheld because of them. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 7 Rev. February 8, 2017 I. WARRANTIES. CONTRACTOR expressly warrants that all services provided under this Agreement shall be performed in a professional and workmanlike manner in accordance with generally accepted business practices and performance standards of the industry and the requirements of this Agreement. CONTRACTOR expressly warrants that all materials, goods and equipment provided by CONTRACTOR under this Agreement shall be fit for the particular purpose intended, shall be free from defects, and shall conform to the requirements of this Agreement. CONTRACTOR agrees to promptly replace or correct any material or service not in compliance with these warranties, including incomplete, inaccurate, or defective material or service, at no further cost to CITY. The warranties set forth in this section shall be in effect for a period of one year from completion of the Services and shall survive the completion of the Services or termination of this Agreement. J. MONITORING OF SERVICES. CITY may monitor the Services performed under this Agreement to determine whether CONTRACTOR’s work is completed in a satisfactory manner and complies with the provisions of this Agreement. K. CITY’S PROPERTY. Any reports, information, data or other material (including copyright interests) developed, collected, assembled, prepared, or caused to be prepared under this Agreement will become the property of CITY without restriction or limitation upon their use and will not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. This section K. does not purport to take copyright or ownership of CONTRACTOR’s intellectual property rights in its software, product manuals, and configuration guides. L. AUDITS. CONTRACTOR agrees to permit CITY and its authorized representatives to audit, at any reasonable time during the term of this Agreement and for three (3) years from the date of final payment, CONTRACTOR’s records pertaining to matters covered by this Agreement. CONTRACTOR agrees to maintain accurate books and records in accordance with generally accepted accounting principles for at least three (3) following the terms of this Agreement. M. NO IMPLIED WAIVER. No payment, partial payment, acceptance, or partial acceptance by CITY shall operate as a waiver on the part of CITY of any of its rights under this Agreement. N. INSURANCE. CONTRACTOR, at its sole cost, shall purchase and maintain in full force during the term of this Agreement, the insurance coverage described at Exhibit D. Insurance must be provided by companies with a Best’s Key Rating of A-:VII or higher and which are otherwise acceptable to CITY’s Risk Manager. The Risk Manager must approve deductibles and self-insured retentions. In addition, DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 8 Rev. February 8, 2017 all policies, endorsements, certificates and/or binders are subject to approval by the Risk Manager as to form and content. CONTRACTOR shall obtain a policy endorsement naming the City of Palo Alto as an additional insured under any general liability or automobile policy. CONTRACTOR shall obtain an endorsement stating that the insurance is primary coverage and will not be canceled or materially reduced in coverage or limits until after providing 30 days prior written notice of the cancellation or modification to the Risk Manager. CONTRACTOR shall provide certificates of such policies or other evidence of coverage satisfactory to the Risk Manager, together with the required endorsements and evidence of payment of premiums, to CITY concurrently with the execution of this Agreement and shall throughout the term of this Agreement provide current certificates evidencing the required insurance coverages and endorsements to the Risk Manager. CONTRACTOR shall include all subcontractors as insured under its policies or shall obtain and provide to CITY separate certificates and endorsements for each subcontractor that meet all the requirements of this section. The procuring of such required policies of insurance shall not operate to limit CONTRACTOR’s liability or obligation to indemnify CITY under this Agreement. O. HOLD HARMLESS. To the fullest extent permitted by law and without limitation by the provisions of section N relating to insurance, CONTRACTOR shall indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents from and against any and all demands, claims, injuries, losses, or liabilities of any nature, including death or injury to any person, property damage or any other loss and including without limitation all damages, penalties, fines and judgments, associated investigation and administrative expenses and defense costs, including, but not limited to reasonable attorney’s fees, courts costs and costs of alternative dispute resolution), arising out of, or resulting in any way from or in connection with the performance of this Agreement. CONTRACTOR’s obligations under this Section apply regardless of whether or not a liability is caused or contributed to by any negligent (passive or active) act or omission of CITY, except that CONTRACTOR shall not be obligated to indemnify for liability arising from the sole negligence or willful misconduct of CITY. The acceptance of the Services by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section survive the completion of the Services or termination of this Agreement. P. NON-DISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONTRACTOR certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONTRACTOR acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 9 Rev. February 8, 2017 Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. Q. WORKERS' COMPENSATION. CONTRACTOR, by executing this Agreement, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions, as applicable, before commencing and during the performance of the Services. R. TERMINATION. The City Manager may terminate this Agreement without cause by giving ten (10) days’ prior written notice thereof to CONTRACTOR. If CONTRACTOR fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, the City Manager may terminate this Agreement immediately upon written notice of termination. Upon receipt of such notice of termination, CONTRACTOR shall immediately discontinue performance. CITY shall pay CONTRACTOR for services satisfactorily performed up to the effective date of termination. If the termination is for cause, CITY may deduct from such payment the amount of actual damage, if any, sustained by CITY due to CONTRACTOR’s failure to perform its material obligations under this Agreement. Upon termination, CONTRACTOR shall immediately deliver to the City Manager any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by CONTRACTOR or given to CONTRACTOR, in connection with this Agreement. Such materials shall become the property of CITY. S. ASSIGNMENTS/CHANGES. This Agreement binds the parties and their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written consent of CITY. No amendments, changes or variations of any kind are authorized without the written consent of CITY. T. CONFLICT OF INTEREST. In accepting this Agreement, CONTRACTOR covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Contract. CONTRACTOR further covenants that, in the performance of this Contract, it will not employ any person having such an interest. CONTRACTOR certifies that no CITY Officer, employee, or authorized representative has any financial interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest, direct or indirect, which could conflict with the faithful performance of this Contract. CONTRACTOR agrees to advise CITY if any conflict arises. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 10 Rev. February 8, 2017 U. GOVERNING LAW. This contract shall be governed and interpreted by the laws of the State of California. V. ENTIRE AGREEMENT. This Agreement, including all exhibits, represents the entire agreement between the parties with respect to the services that may be the subject of this Agreement. Any variance in the exhibits does not affect the validity of the Agreement and the Agreement itself controls over any conflicting provisions in the exhibits. This Agreement supersedes all prior agreements, representations, statements, negotiations and undertakings whether oral or written. W. NON-APPROPRIATION. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. X. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. CONTRACTOR shall comply with CITY’s Environmentally Preferred Purchasing policies which are available at CITY’s Purchasing Division, which are incorporated by reference and may be amended from time to time. CONTRACTOR shall comply with waste reduction, reuse, recycling and disposal requirements of CITY’s Zero Waste Program. Zero Waste best practices include first minimizing and reducing waste; second, reusing waste and third, recycling or composting waste. In particular, CONTRACTOR shall comply with the following zero waste requirements:  All printed materials provided by CONTRACTOR to CITY generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double- sided and printed on a minimum of 30% or greater post-consumer content paper, unless otherwise approved by CITY’s Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of 30% or greater post-consumer material and printed with vegetable based inks.  Goods purchased by Contractor on behalf of CITY shall be purchased in accordance with CITY’s Environmental Purchasing Policy including, but not limited to, Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing Division’s office.  Reusable/returnable pallets shall be taken back by CONTRCATOR, at no additional cost to CITY, for reuse or recycling. CONTRACTOR shall provide DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 11 Rev. February 8, 2017 documentation from the facility accepting the pallets to verify that pallets are not being disposed. Y. AUTHORITY. The individual(s) executing this Agreement on behalf of the parties represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. Z. PREVAILING WAGES This Project is not subject to prevailing wages. Contractor is not required to pay prevailing wages in the performance and implementation of the Project in accordance with SB 7, if the contract is not a public works contract, if contract does not include a public works construction project of more than $25,000, or the contract does not include a public works alteration, demolition, repair, or maintenance (collectively, ‘improvement’) project of more than $15,000. OR Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the contract for this Project from the Director of the Department of Industrial Relations (“DIR”). Copies of these rates may be obtained at the Purchasing Division’s office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of all sections, including, but not limited to, Sections 1775, 1776, 1777.5, 1782, 1810, and 1813, of the Labor Code pertaining to prevailing wages. AA. DIR REGISTRATION. In regard to any public work construction, alteration, demolition, repair or maintenance work, CITY will not accept a bid proposal from or enter into this Agreement with CONTRACTOR without proof that CONTRACTOR and its listed subcontractors are registered with the California Department of Industrial Relations (“DIR”) to perform public work, subject to limited exceptions. City requires CONTRACTOR and its listed subcontractors to comply with the requirements of SB 854. CITY provides notice to CONTRACTOR of the requirements of California Labor Code section 1771.1(a), which reads: DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 12 Rev. February 8, 2017 “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.” CITY gives notice to CONTRACTOR and its listed subcontractors that CONTRACTOR is required to post all job site notices prescribed by law or regulation and CONTRACTOR is subject to SB 854-compliance monitoring and enforcement by DIR. CITY requires CONTRACTOR and its listed subcontractors to comply with the requirements of Labor Code section 1776, including: Keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by, respectively, CONTRACTOR and its listed subcontractors, in connection with the Project. The payroll records shall be verified as true and correct and shall be certified and made available for inspection at all reasonable hours at the principal office of CONTRACTOR and its listed subcontractors, respectively. At the request of CITY, acting by its project manager, CONTRACTOR and its listed subcontractors shall make the certified payroll records available for inspection or furnished upon request to the project manager within ten (10) days of receipt of CITY’s request. [For state- and federally-funded projects] CITY requests CONTRACTOR and its listed subcontractors to submit the certified payroll records to the project manager at the end of each week during the Project. If the certified payroll records are not produced to the project manager within the 10-day period, then CONTRACTOR and its listed subcontractors shall be subject to a penalty of one hundred dollars ($100.00) per calendar day, or portion thereof, for each worker, and CITY shall withhold the sum total of penalties from the progress payment(s) then due and payable to CONTRACTOR. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 13 Rev. February 8, 2017 Inform the project manager of the location of CONTRACTOR’s and its listed subcontractors’ payroll records (street address, city and county) at the commencement of the Project, and also provide notice to the project manager within five (5) business days of any change of location of those payroll records. BB. CONTRACT TERMS. All unchecked boxes do not apply to this Agreement. In the case of any conflict between the terms of this Agreement and the exhibits hereto or CONTRACTOR’s proposal (if any), the Agreement shall control. In the case of any conflict between the exhibits hereto and CONTRACTOR’s proposal, the exhibits shall control. IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. CITY OF PALO ALTO ENVISIONWARE, INC. ______________________________ By________________________________________ City Manager Name Michael J. Monk Title CEO Telephone: 1-678-382-6590 Approved as to form: ___________________________ City Attorney or Designee DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 14 Rev. February 8, 2017 EXHIBIT A SCOPE OF SERVICES Maintenance Programs. CONTRACTOR will provide maintenance services as follows: Platinum Level: Services available via the CONTRACTOR Customer Center portal and via toll-free telephone in North America 24x7 365 days per year. These services include the Knowledge Base, Customer Forum access, Support Case management, Enhancement and Defect tracking, software downloads, and documentation. LiveChat is available via the Customer Center during Standard Support Hours. Requests for service after Standard Support Hours must be made via the toll- free telephone number using your Platinum support access PIN. EnvisionWare is to have calls answered within 2 hours during all times and onsite response dispatched within 4 hours of determining that a site visit is required. The maximum interval for onsite arrival is 24 hours after determination that a site visit is required. When a sorter (AMH) or a 24-Hour Library™ unit is purchased, a Preventative Maintenance site visit is performed within 60 days of each annual renewal. The lifetime coverage limit is specified on a per-item basis and in no case exceeds a guaranteed lifetime of ten (10) years. Sorters (AMH) and 24-Hour Libraries are guaranteed for a lifetime of ten (10) years provided there is continued Platinum maintenance coverage from the Effective date. Any lapse in coverage for a period of more than 30 days will void the ten (10) year guarantee. Software patches and new versions of licensed Software as well as Hardware Revisions are available without added charge. Platinum Level Service requires continued coverage of all items purchased from CONTRACTOR that remain in use by CITY except for consumables. Service Level Objectives  CONTRACTOR goal is to answer 90% of all incoming support calls with a live technician.  Support Response i) Platinum Support CONTRACTOR goal is to answer all of the CITY’s inquiries within 2 hours, and to attempt to remedy any major outage within 48 hours. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 15 Rev. February 8, 2017  Should CONTRACTOR fail to achieve the applicable performance objective for Platinum Level Maintenance measured as an average of all failures over a calendar quarter not meeting the applicable objective of all incidents and if CITY has notified CONTRACTOR Support or our Director of Support via email (with appropriate details of the case number and the failure) no later than thirty (30) calendar days from the end of the calendar quarter in which failure occurred, CONTRACTOR will credit the next invoice to the CITY in the amount of one month of maintenance as prorated for that item being serviced. The measurements will reset each calendar quarter  A failure to achieve a service objective shall not be a breach of this Agreement or give rise to a credit if and to the extent that failure to achieve a service objective was primarily caused by any one or more of the following: i) Prioritization of tasks or reduction of resources requested by the CITY in writing with the written understanding by the parties that we will be excused by any resulting service level impact; ii) Occurrence of a Force Majeure event (as defined herein); iii) Any breach, failure to perform an agreed-upon responsibility, user error or other act or omission of CITY or CITY’s customers, third party contractors or agents that materially prevents CONTRACTOR from achieving the applicable service level; or, iv) Problems originating from CITY’s facility, network, hardware, software, hosting or storage provider, server or other provider, that are outside the scope of our Services.  Remote Access. CITY agrees to provide CONTRACTOR with remote access via the Central Management system the CONTRACTOR installs part of CITY’s products. If the CITY does not agree, CONTRACTOR will increase CITY’s annual maintenance cost by 10%.  Limitations to the Services. i) We provide Services only for Hardware and Software as defined herein. ii) We support only the then-current release of the given Software and the most recent previous release. Notice of available Software updates is available by subscribing to Twitter (@EnvisionWare), by visiting the User Forum (subscribe via the Customer Center) or by viewing the Release Notes in the Customer Center. The CITY may download at CITY’s convenience and install on CITY’s systems according to CITY timetable for as long as CITY is covered under the applicable product warranty or Maintenance Program. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 16 Rev. February 8, 2017 iii) Unless otherwise agreed to between CITY and CONTRACTOR, CONTRACTOR shall have no obligation to provide Services with respect to any issue resulting from (i) use of the Software or Hardware other than according to the terms of this Agreement; (ii) modification of the Software or Hardware by CITY or any third party, except as CONTRACTOR expressly permits in writing; or (iii) any combination or integration of the Software or Hardware with hardware, software and/or technology not provided by CONTRACTOR. iv) Except for payment obligations by the CITY, neither party shall be held responsible for any delay or failure in performance of any obligation under this Agreement to the extent that delay or failure is caused by fire, flood, explosion, war, act of terrorism, strike, embargo, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control (each, a “Force Majeure” event). If any Force Majeure event occurs, the party delayed or unable to perform (“Delayed Party”) shall give immediate notice to the other party (“Affected Party”), and the Delayed Party, upon giving prompt notice to the Affected Party, shall be excused from performance under this Agreement for the duration of the Force Majeure event, provided, however, that the Delayed Party shall take all reasonable steps and cooperate with the Affected Party to avoid or remove the cause of non-performance and shall resume performance hereunder with dispatch when the cause is removed; and provided further that if the Delayed Party cannot within sixty (60) days remove the cause of non-performance, the Affected Party may terminate this Agreement.  Re-establishing Maintenance After a Lapse v) If CITY budget or other reason prevents CITY from acquiring maintenance or local ordinance prevents an annual agreement in advance of a fiscal period, the CITY system will not be disabled by expiration of the maintenance agreement, but, as of the date of expiration, CITY will not have further access to updates or upgrades. vi) If CITY later choose to resume maintenance, CITY will be charged as follows: (1) The full amount of the next twelve (12) months of maintenance; and, (2) Any time and costs for updating Hardware or Software or for on-site visits; and, (3) A catch-up fee as follows: DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 17 Rev. February 8, 2017 (a) for Software maintenance: 50% of the amount of maintenance that would have been paid if maintenance had been maintained (calculated on an annual basis) and/or (b) for Hardware maintenance: 100% of the amount of maintenance that would have been paid if maintenance had been maintained (calculated on an annual basis), subject to the availability of support for the Hardware CITY have at the time of re-establishing maintenance. vii) The amounts above cover our continuing development and evolution of our software, hardware, systems and support during CITY’s lapsed period. The fact that CITY did not avail yourself of telephone or other support Services during the period the product was covered by maintenance is no cause for adjustment. If CITY have replaced Hardware that is no longer supported by CONTRACTOR, in order to be eligible for re-establishment of maintenance on the Hardware, the CITY will need to purchase new Hardware from CONTRACTOR. As part of re-establishing maintenance CONTRACTOR will provide CITY with the updates to the Software. viii) Re-establishment of maintenance is permitted only once. Payment Terms. We will invoice CITY for the Services. Payment terms are set forth in the applicable Quotation. The CITY agrees to pay CONTRACTOR according to the payment terms in the Quotation. Full payment prior to expiration of CITY’s first year warranty or prior to the expiration of the current maintenance period. If CITY does not provide timely payment, we will discontinue providing our Services. In the event that CITY is ever dissatisfied, CONTRACTOR asks that the CITY contact CONTRACTOR and provide an opportunity to remedy any problems. CITY may escalate CITY’s service request at any time by sending an email to customersatisfaction@envisionware.com. If CITY does not pay in advance for maintenance, near the end of the warranty period or each successive maintenance renewal period, CITY will receive an invoice for the annual maintenance agreement. If CITY fails to pay CITY’s maintenance Services invoice on time, CITY will receive a 30-day grace period after which CITY’s extended support Services and access to downloads will be suspended until payment is received. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 18 Rev. February 8, 2017 EXHIBIT B SCHEDULE OF PERFORMANCE CONTRACTOR shall perform the Services for the following period of time: 08/01/2017 thru 07/31/2022. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 19 Rev. February 8, 2017 EXHIBIT C SCHEDULE OF FEES All Payments are based upon CITY’s acceptance of CONTRACTOR’s performance of the phase as evidenced by successful completion of the Deliverable for that Phase. CITY shall have no obligation to pay unless CONTRACTOR has successfully completed and CITY has approved the Project Phase for which payment is due. The maximum amount of compensation to be paid to CONTRACTOR, including both payment for services and reimbursable expenses, shall not exceed the amounts stated in Sections 5 and 6 of the Agreement. Any hours worked for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to CITY. Each of the services below for maintenance are for “Platinum Level” service as described in Exhibit A and Quotations are attached herein as part of Exhibit C EnvisionWare Annual System Maintenance – Year 1 Quotation US-41517 $76,585.61 EnvisionWare Annual System Maintenance – Year 2 Quotation US-41522 $66,818.92 EnvisionWare Annual System Maintenance – Year 3 Quotation US-41523 $76,818.92 EnvisionWare Annual System Maintenance – Year 4 Quotation US-41524 $76,818.92 EnvisionWare Annual System Maintenance – Year 5 Quotation US-41525 $76,818.92 Total $373,861.29 DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 20 Rev. February 8, 2017 EXHIBIT D INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BCONTRACTORINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: REQUIRED TYPE OF COVERAGE REQUIREMENT MINIMUM LIMITS EACH OCCURRENCE AGGREGATE YES YES WORKER’S COMPENSATION EMPLOYER’S LIABILITY STATUTORY STATUTORY YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED BODILY INJURY - EACH PERSON - EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 NO PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MCONTRACTORT INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL. II. CONTACTOR MCONTRACTORT SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS” DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 City of Palo Alto General Services Agreement 21 Rev. February 8, 2017 A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303 DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 2 City of Palo Alto General Services Agreement 22 Rev. February 8, 2017 EXHIBIT E End User License Agreement The following End User License Agreement shall supersede all other End User License Agreements for all software, hardware, and services provided by CONTRACTOR to CITY. End User License Agreements embedded in, or that are part of, software, hardware, and/or services do not apply. If CITY’s users if CONTRACTOR’s software, hardware, or services are required to agree to End User License Agreements different than the one below, only the version below will apply. Should any provision in this Exhibit E conflict with the Agreement or other Exhibits, the following order or precedence shall apply: (1) Agreement; (2) Exhibits B, C, and D; (3) this Exhibit E. ENVISIONWARE, INC. END USER LICENSE AGREEMENT AND LIMITED WARRANTY (“EULA”) IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. ENVISIONWARE, INC. (“ENVISIONWARE”) IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE ORGANIZATION, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERRED TO AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS EULA. UPON AND AS OF THE DATE ENVISIONWARE SENDS AN EMAIL TO YOU (THE “EFFECTIVE DATE”) ISSUING CREDENTIALS TO LOG INTO ENVISIONWARE’S WEBSITE FROM WHERE THE SOFTWARE MAY BE DOWNLOADED, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT ATTEMPT TO DOWNLOAD OR INSTALL THE SOFTWARE, OR, IF INSTALLED, MAKE NO FURTHER USE OF THE SOFTWARE, AND NOTIFY IN WRITING ENVISIONWARE OR THE RESELLER FROM WHOM IT WAS ACQUIRED WITHIN THIRTY (30) DAYS OF PURCHASE, AND THE PURCHASE PRICE WILL BE REFUNDED. 1. License: The software and documentation (collectively the “Software”) are owned by and are the property of EnvisionWare or its licensors and are protected by copyright and other intellectual property laws. Some licensors may be express or intended beneficiaries of this EULA. Subject to all of the terms and conditions of this Agreement, EnvisionWare grants you a limited, non-exclusive, worldwide, non-transferable, non-sublicensable license to use the Software for which you have been issued a Product Key by EnvisionWare or an authorized distributor or reseller, but only in accordance with (i) the documentation, (ii) the restrictions contained herein and any restrictions on the applicable invoice, and (iii) the number of authorized users. Portions of some Software modules are licensed from Artifex Software, Inc. Portions of some modules may contain MySQL connector (pursuant to the GNU GPL v2 license at http://www.gnu.org/licenses/gpl-2.0.html). Portions of some modules may contain the MS access driver, licensed from Microsoft Corporation. Portions of some modules may be licensed under the Microsoft Reciprocal License (MS-RL) http://opensource.org/licenses/ms-rl. Portions of some Software modules are licensed under the Apache License, Version 2.0; you may not use these files except in compliance with the Apache License. You may obtain a copy of the Apache License at http://www.apache.org/licenses/LICENSE-2.0. Unless required by applicable law or agreed to in writing, software distributed under the Apache License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the Apache License for the specific language governing permissions and limitations under the Apache License. Portions of some Software modules are licensed under the MIT Expat License. This EULA DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 3 City of Palo Alto General Services Agreement 23 Rev. February 8, 2017 also incorporates the terms of the Verifone Pass Through Terms of Use attached hereto. This EULA governs any releases, revisions, or enhancements to the Software that EnvisionWare may furnish to you. Your rights and obligations with respect to the use of this Software are as follows: A. You may: i. use the Software on the quantity and type of computers indicated on EnvisionWare invoice. You may make that number of copies of the Software licensed to you by EnvisionWare. ii. make one copy of the Software for archival purposes, or copy the Software onto the hard disk of your computer and retain the original for archival purposes; iii. use the Software on a network, provided that you have a licensed copy of the Software for each computer that can access the Software over that network; and, iv. make printed copies of electronic documentation for your internal use. B. You may not: i. transfer, assign, convey, sublicense, rent or lease the Software (or any portion thereof) to another person or entity or unlicensed division, subsidiary, or affiliate (or to anyone other than the entity named as licensee as appearing on the software splash screen), and any transfer in violation hereof shall be of no power or effect; ii. distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement; iii. reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover, modify or use the source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), or create derivative works from the Software (any such modifications shall automatically be owned by EnvisionWare upon creation); iv. utilize any equipment, device, software, or other means designed to circumvent or remove any form of product key or copy protection used by EnvisionWare in connection with the Software, or use the Software together with any authorization code, product key, serial number, or other copy protection device not supplied by EnvisionWare or through an authorized distributor or reseller; v. use the Software to develop or facilitate development of a product which is competitive with any EnvisionWare product offerings; vi. post or otherwise publish electronic documentation of the Software for access outside the licensed organization; vii. use a previous version or copy of the Software after you have installed a replacement set or an upgraded version and, upon upgrading the Software, all copies of the prior version must be uninstalled or rendered unusable; viii. use a later version of the Software than is provided in the email with the login credentials except as provided under the Software Product Warranty, unless you have purchased maintenance and update service or have otherwise separately acquired the right to use such later version; ix. remove any product identification, proprietary, copyright or other notices contained in the Software; x. provide any product key or login information to a third party; or xi. use the Software or product keys in any manner not expressly authorized by this EULA. 2. Thirty Day Money Back Guarantee: If you are the original licensee of the Software and are dissatisfied with it for any reason, and if at any time during the thirty (30) day period following the Effective Date you email EnvisionWare confirming your complete removal and deletion of the DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 4 City of Palo Alto General Services Agreement 24 Rev. February 8, 2017 complete product and provide a signed statement to EnvisionWare attesting to removal of all software components, then EnvisionWare will provide a full refund, subject to the provisions of the Hardware Return Policy below. 3. Hardware Return Policy: Custom printed RFID tags, manufactured, built-to-order or custom- configured Hardware as designated on a Quotation, such as but not limited to, kiosks or sorters, may not be returned or canceled for any reason. Custom items include any item listed in an EnvisionWare quotation, product description or order form as being a custom item, or any item which is modified by EnvisionWare after installation. Standard Hardware products may be accepted for return within ninety (90) days of the date of invoice subject to advance, written approval expressed in the form of an EnvisionWare Return Merchandise Authorization (“RMA”). EnvisionWare, at its sole discretion, may grant the right to return standard Hardware products during this return period. Any such returns are subject to a 20% restocking fee unless EnvisionWare determines that the cause of the return is a result of an error on the part of EnvisionWare, in which case EnvisionWare may waive all or part of the restocking fee. No Hardware product will be accepted for return for ANY reason without a Return Merchandise Authorization issued by EnvisionWare. The RMA number must be clearly displayed on any packaging shipped to EnvisionWare. Products returned without an RMA number on the package will be refused. Any return for any reason, whether for an authorized RMA or for warranty support must be shipped to EnvisionWare freight prepaid. Equipment serviced under warranty will be returned freight prepaid. 4. Limited Warranty: A. Software Product Warranty: EnvisionWare warrants that the Software as distributed operate in substantial conformity with the documentation (the “Software Product Warranty”) for a period of one (1) year from the delivery of the Software to you (the “Software Warranty Period”). This is the sole warranty EnvisionWare provides for all Software supplied by EnvisionWare, unless specifically stated otherwise in EnvisionWare’s quotation. EnvisionWare does not warrant that your use of the Software will be uninterrupted or error-free. EnvisionWare’s sole liability (and your sole remedy) in the event of a breach of this Product Warranty will be that EnvisionWare will, in EnvisionWare’s sole discretion, (A) use commercially reasonable efforts to provide you with an error correction or a work- around which corrects the reported non-conformity or (B) if EnvisionWare determines such remedies to be impracticable within a reasonable period of time, refund the money you paid for the Software being returned. EnvisionWare does not warrant that the Software will meet your requirements or that operation of the Software will be uninterrupted or that the Software will be error-free. EnvisionWare provides Software product support through the reseller from whom you purchased the Software or directly from EnvisionWare for a period of twelve (12) months from date of delivery of the Software. Hardware Product Warranty: EnvisionWare warrants that EnvisionWare-branded hardware as distributed will be free from material defects (the “Hardware Product Warranty”) for a period of one (1) year from the date of delivery of the EnvisionWare-brand hardware to you (the “Hardware Warranty Period”). Other Hardware components supplied to you by EnvisionWare that are not manufactured or branded by EnvisionWare are covered by the warranties provided by the product manufacturer. EnvisionWare shall have no obligation with respect to a warranty claim unless notified of such claim within the applicable Software or Hardware Warranty Period. The term “delivery” in this Section 4 means, with respect to Software, the date of invoice, and, with respect to Hardware, “delivery” means the date that the Har dware is delivered to your facility. B. Exclusions: The above warranties shall not apply: (i) if the Software or Hard ware is used with hardware or software not specified in the documentation; (ii) if any modifications are made to the Software or Hardware by you or any third party; (iii) to defects in the Software or Hardware that are due to accident, abuse or improper use by you or your contractors; or (iv) to any evaluation version or other Software or Hardware provided on a no-charge or evaluation basis. Any replacement Software or Hardware will be warranted for the remainder of the original applicable Software Warranty Period or Hardware Warranty Period. C. THE ABOVE SOFTWARE PRODUCT WARRANTY AND HARDWARE PRODUCT WARRANTY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 5 City of Palo Alto General Services Agreement 25 Rev. February 8, 2017 EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED. THE SOFTWARE PRODUCT WARRANTY AND THE HARDWARE PRODUCT WARRANTY GIVE YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY. D. EnvisionWare uses virus protection scanning software to scan the Software prior to installation and to the best of EnvisionWare’s knowledge as of the installation date, the Software, when installed, does not contain or otherwise introduce any computer virus or any harmful or destructive code which could damage or harm your computers; however, EnvisionWare cannot guarantee that benign or harmful viruses or other malware will not enter your computers or systems. 5. Personal Information: A. In the event that your (or your users’) use of the Software currently or in the future involves the transmitting, uploading, downloading, storage, management, manipulation or other use of personal information (as defined by the Gramm-Leach-Bliley Act, Payment Card Industry Security Standards Council or other applicable standards or rules relating to electronic transaction processing and personal information, such information referred to herein as “Personal Information”), you agree to the following provisions: i. You shall maintain as confidential any Personal Information. ii. You covenant that you have, as of the Installation Date become and currently are PCI and HIPAA (as applicable) compliant and shall maintain compliance and/or certification under the PCI (Payment Card Industry), PCI-DSS, HIPAA and other relevant and applicable standards relating to electronic transaction processing and personal healthcare information existing as of the Effective Date and as promulgated thereafter. iii. If you are de-certified, have your compliance proof expire or are threatened with de- certification, you shall notify EnvisionWare in writing within ten (10) days of such de- certification or threat thereof. B. EnvisionWare shall use commercially reasonable efforts to maintain all of your Personal Information confidential, but EnvisionWare is not liable for the confidentiality of any Personal Information in the event of unauthorized access, theft or use of such Personal Information, either by you, your users, or third parties. C. The obligations of the parties under this Section 5 shall survive any expiration or termination of this EULA. 6. Data: A. CUSTOMER DATA. In connection with the Software and any related hardware or services provided by EnvisionWare, EnvisionWare may collect and maintain data and information provided by you, your patrons and users (collectively, “Customer Data”). As between EnvisionWare and you, all Customer Data shall be and remain owned by you and be your property. EnvisionWare shall maintain the aspects of all Customer Data identify an individual as confidential. All third parties authorized by EnvisionWare which may have access to the Customer Data shall be under obligations of confidentiality to maintain the Customer Data as confidential. B. USE OF CUSTOMER DATA. EnvisionWare shall have the right to use Customer Data in connection with EnvisionWare’s business, provided that such data shall be anonymized or aggregated such that Personal Information has been de-identified so that one could not link anonymized information back to a specific individual (“Anonymized Data”). All such Anonymized Data shall be the sole property of EnvisionWare. EnvisionWare may use, disseminate, share, or DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 6 City of Palo Alto General Services Agreement 26 Rev. February 8, 2017 transfer the Anonymized Data or any portion thereof in any way EnvisionWare chooses. C. ENVISIONWARE DATA. EnvisionWare may also collect data and information in connection with the service that EnvisionWare provides generally (but not including Customer Data) through its services (“EnvisionWare Data”). You acknowledge and consent that the Software may communicate (e.g., via an outbound or inbound call using SSL) with EnvisionWare’s servers (which may be hosted by a third-party service provider) and support personnel, or vice versa, to communicate diagnostic, event logs, support, licensing, compliance, and other information (which is included in the definition of EnvisionWare Data). Some communication may be done automatically by the Software without your needing to be involved, other communication may be at your initiation (e.g., uploading logs) or initiated by EnvisionWare. All such EnvisionWare Data shall be the sole property of EnvisionWare. 7. Confidential Information: Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by EnvisionWare (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of EnvisionWare without any marking or further designation except as such disclosure is required by FOIA requirements. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. In order for any information to be considered Confidential Information under this EULA, the Disclosing Party must label such information in writing as “Confidential” prior to or contemporaneous with disclosure to the Receiving Party. The obligations under this Section 7 shall, with respect to Confidential Information, continue for a period of two (2) years after disclosure and, with respect to any information considered by and treated as a trade secret by the Disclosing Party, continue until the trade secret status has been lost. 8. Indemnification: A. Infringement. Subject to your compliance with the terms of this EULA, EnvisionWare shall indemnify and hold harmless you and your officers, directors, employees and agents from and against all third party claims, to the extent such claim alleges that the Software (in each case as provided by EnvisionWare) infringes any copyright, U.S. patent right, trade secret right, or other intellectual property right provided, however, that you must comply with the following terms: EnvisionWare must have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for EnvisionWare to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation by you. In the event that the Software is, or in EnvisionWare’s sole opinion is likely to be, enjoined or subject to a claim due to the type of infringement described in this Section 8, EnvisionWare, at its option and expense, may (a) replace the Software with functionally equivalent non-infringing Software or (b) obtain a license for your continued use of the Software, or, if the foregoing alternatives are not reasonably available to EnvisionWare (c) terminate this Agreement and refund a pro rata amount, as determined by EnvisionWare, of the purchase price of the Software and DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 7 City of Palo Alto General Services Agreement 27 Rev. February 8, 2017 Hardware. Notwithstanding the above, EnvisionWare shall have no liability for any infringement claim which: (i) pertains to any Software that has been altered or modified without EnvisionWare’s prior written approval; (ii) is based on use of the Software in conjunction with any item not provided by EnvisionWare, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by EnvisionWare; (iii) pertains to any unauthorized use of the Software; (iv) pertains to an unsupported release of the Software; or, (v) pertains to any Open Source Software or other third party code provided with the Software. THIS SECTION 8 SETS FORTH ENVISIONWARE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. B. EnvisionWare shall indemnify, defend and hold you harmless from any losses (including, but not limited to, damage awards, reasonable attorneys’ fees and costs, cost of notification, remediation, and penalties) you incur due to any third party claim or action directly resulting from any Data Breach of your (or your patrons’) Personal Information to the extent that such losses are due to the direct act or omission of EnvisionWare or its representatives, agents or contractors. C. This Section 8 shall survive any expiration or termination of this EULA. 9. Disclaimer of and Limitations on Damages: SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE LIMITATION OR EXCLUSION BELOW MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ENVISIONWARE OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR HARDWARE, EVEN IF ENVISIONWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL ENVISIONWARE’S OR ITS LICENSORS’ TOTAL LIABILITY (A) FOR ANY PRODUCTS COVERED UNDER THIS EULA, EXCEED THE PURCHASE PRICE FOR THE SOFTWARE AND HARDWARE OR (B) FOR ANY SERVICES, EXCEED THE FEES PAID BY YOU FOR THE SERVICES (EXCLUDING MAINTENANCE AND SUPPORT SERVICES) WHICH DIRECTLY CAUSED THE DAMAGES ALLEGED. The disclaimers and limitations set forth above in this Section 9 will apply regardless of whether or not you accept the Software or Hardware. The parties agree that the limitations specified in this Section 9 will survive any expiration or termination of this EULA and apply even if any limited remedy specified in this EULA is found to have failed of its essential purpose. 10. U.S. Government Restricted Rights: RESTRICTED RIGHTS LEGEND. All EnvisionWare products and documentation are commercial in nature. The Software and software documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 27.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable. EnvisionWare’s computer Software and software documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA. The manufacturer is EnvisionWare, Inc., 2855 Premiere Parkway, Suite A, Duluth, GA 30097-5201. 11. Export Compliance: You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party hired or under contract by you, to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 8 City of Palo Alto General Services Agreement 28 Rev. February 8, 2017 into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. 12. Third-Party Code: The Software may contain or be provided with components subject to the terms and conditions of "open source" or freeware software licenses ("Open Source Software"). Licenses for open source are identified in Section 1. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this EULA with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. 13. Professional Services: Upon request and agreement between the parties, EnvisionWare may provide consulting, training, installation, development, customization, report creation or other services (“Professional Services”). You may order Professional Services under a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before EnvisionWare shall commence work under such SOW. If the parties do not execute a separate SOW, the Services shall be provided as stated on the invoice. You will reimburse EnvisionWare for reasonable travel and lodging expenses as incurred. EnvisionWare shall be deemed the sole owner of any work product created pursuant to the Professional Services, whether created solely by EnvisionWare or jointly with you or your contractors. Subject to your full payment of any and all fees pursuant to the applicable SOW, EnvisionWare grants to you the limited, nontransferable right to use any deliverables (including any documentation, code, Software, training materials or other work product) (collectively referred to as the “Deliverables”) delivered as part of the Professional Services solely in connection with your permitted use of the Software, subject to all the same terms and conditions as apply to your Software license (including the restrictions set forth in Section 1B), and subject to any additional terms and conditions provided with the Deliverables. 14. General: EnvisionWare may terminate this EULA upon your breach of any term contained herein. Upon termination, you shall cease use of, uninstall or render inoperable, and delete destroy all copies of the Software. The disclaimers of warranties and damages and limitations on liability shall survive termination. The parties to this EULA are independent contractors with respect to one another. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. 15. Software Escrow: At your request, EnvisionWare is willing to set up and maintain the Software with EnvisionWare’s independent U.S. escrow agent and make ongoing escrow deposits for significant updates. You would be responsible for additional fees for this service. Please contact EnvisionWare to for more information and pricing. 16. Purchase in Australia: If you purchase Software, Hardware or services from EnvisionWare Pty Ltd or its partners, the laws of South Australia, Australia govern all warranty and service claims. EnvisionWare Pty Ltd is authorized to convey and effect all of the rights expressed in this EULA for its direct and indirect customers. 17. Contact Us: Should you have any questions concerning this EULA, or if you desire to contact EnvisionWare for any reason, please email info@envisionware.com or write to: EnvisionWare, Inc., 2855 Premiere Parkway, Suite A, Duluth, GA 30097-5201 USA, unless you purchase from an Asia Pacific country in which case, please write EnvisionWare Pty Ltd, 10 George Street, Stepney, SA DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 2 9 City of Palo Alto General Services Agreement 29 Rev. February 8, 2017 5069 Australia. Revised Mar 2017 © 2002-2017 EnvisionWare, Inc. All Rights Reserved. Solely for the purposes of the following Verifone Terms of Use, the following terms shall have their associated meanings. “Agreement” means the Verifone Terms of Use. “BPP” means Verifone’s Buyer Protection Program. “Covered Territory” means your location(s). “Customer Agreement” means the EULA. “Payment Gateway” means Verifone’s transaction gateway portal which provides transaction routing, online reporting and other tools made available by the portal. “Point Solution” and “Rental Devices” mean the Point Solution hardware and Software manufactured or provided by Verifone and offered by EnvisionWare under the EULA. “Reseller” means EnvisionWare. “Software” means the software accompanying the Point Solutions Rental Devices. “Verifone” means VeriFone, Inc. VERIFONE PASS THROUGH TERMS OF USE 1. The following are Verifone’s Pass Through Terms of Use for its Point Solution Rental Device hardware and Software. 2. Each Verifone payment device used with the Point Solution is subject to an initial service term of 36 months (the “Initial Service Term”). Subject to the terms of the Customer Agreement, with respect to a particular Verifone payment device, Verifone shall provide the Point Solution to customer for a service term commencing (A) for Rental Devices (or any other payment devices shipped directly by Verifone), on the date such devices are shipped by Verifone, or (B) for any other payment devices, on the date on which such device is activated on the Payment Gateway, and in any case ending on the earliest of (1) the date on which Reseller removes such device from the Payment Gateway, (2) upon Verifone’s ceasing to provide the Point Solution for a payment device, which Verifone shall have the right to do on thirty days’ notice to customer following the Initial Service Term for such device, and (3) termination of customer’s right to use the Point Solution by Reseller due to breach by customer of the Customer Agreement (the “Service Term”). In addition, in the event Verifone’s separate agreement with Reseller terminates or Verifone ceases to offer the Point Solution to its customers generally, Verifone reserves the right to terminate the Service Terms for any or all Verifone payment devices. Upon the termination of the Service Term for a particular Verifone payment device, customer shall cease using the Point Solution for such payment device. In the event that a customer desires to end the Service Term for a payment device, the customer must request that Reseller remove the applicable device from the Payment Gateway on its behalf; Verifone will not be responsible for removing a payment device from the Payment Gateway provided that, notwithstanding customer’s earlier request, the Service Term will end on the day Reseller actually removes the device from the Payment Gateway. 3. Subject to the terms of this Agreement and customer’s payment of the applicable fees, Verifone hereby grants to customer a limited, non-exclusive, non-transferable, non-sub-licensable right and license, in the Covered Territory during the Service Term for each payment device, to access and use the Point Solution subscribed to hereunder solely for customer’s internal business purposes. Notwithstanding the foregoing, Reseller will be responsible for managing and monitoring customer’s payment devices on customer’s behalf, including with respect to the installation of payment applications and key loading, and customer will not be able to directly manage or monitor its payment devices via the Payment Gateway portal. Verifone may modify the Point Solution from time to time in its reasonable discretion, provided that such modifications shall not materially diminish the functionality thereof. If Reseller fails to pay Verifone for services rendered in accordance with its agreement with Verifone, Verifone reserves the right to withhold customer’s access to the Point Solution until such fees are paid in full, and Verifone shall not have any liability to customer for any amounts paid to Reseller and not received by Verifone for such services. 4. Customer shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 3 0 City of Palo Alto General Services Agreement 30 Rev. February 8, 2017 or otherwise transfer the Point Solution, or any component thereof, including without limitation the Software, to any third party. Customer shall not reverse engineer, decompile, disassemble, translate, modify, alter or create any derivative works based upon the Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software, without the prior express written consent of Verifone. Customer shall not remove from the Rental Devices or the Software, or alter, any of trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Rental Devices or the Software, without the prior express written consent of Verifone. 5. Customer acknowledges that the Point Solution (including any related documentation) and any intellectual property rights relating to or residing therein (including any patents, copyrights, trade secrets, trademarks, trade names or mask work rights), including the proprietary electronics, software and technical information of Verifone therein, are proprietary products of Verifone and that ownership of such shall remain with and inure to Verifone. Except for the license rights set forth in this clause 5, customer shall have no right, title or interest therein. 6. Customer grants VeriFone a limited, non-exclusive and irrevocable license during and after the term of this Agreement to follow customer’s activity inside of the Point Solution components and to use, share, and disseminate data from customer’s activity (including its transactions) on an aggregate and anonymous basis only (such data, “Derived Data”), including for purposes of data analytics and optimizing or otherwise enhancing its products and services. VeriFone will comply with all applicable laws with respect to any use, sharing and dissemination of Derived Data. This clause 6 shall survive any expiration or termination of this Agreement. 7. VERIFONE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE POINT SOLUTION, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VERIFONE DOES NOT WARRANT THAT THE POINT SOLUTION, OR ANY COMPONENT THEREOF, WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF THE POINT SOLUTION, OR ANY COMPONENT THEREOF, WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE. CUSTOMER ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL ERRORS IN ANY SOFTWARE CAN BE REMEDIED. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM VERIFONE OR FROM ANY OTHER THIRD PARTY ABOUT THE POINT SOLUTION SHALL CREATE ANY WARRANTY. 8. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE CUSTOMER AGREEMENT: EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES) RELATING IN ANY MANNER TO THE POINT SOLUTION (WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE), EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, VERIFONE’S ENTIRE LIABILITY RELATING IN ANY MANNER TO THIS AGREEMENT OR THE POINT SOLUTION, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY RECEIVED BY VERIFONE FROM RESELLER FOR CUSTOMER FOR THE POINT SOLUTION UNDER THE CUSTOMER AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE POINT SOLUTION. THE LIMITATIONS ON VERIFONE’S LIABILITY SET FORTH IN CLAUSES “(B)” AND “(C)” OF DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 3 1 City of Palo Alto General Services Agreement 31 Rev. February 8, 2017 THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE’S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS CONTAINED IN CLAUSE 7 ABOVE AND THIS CLAUSE 8 ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE POINT SOLUTION TO CUSTOMER ABSENT SUCH LIMITATIONS 9. Customer shall comply with all applicable laws, rules, and regulations in connection with this Agreement, including, but not limited to, export control laws and anti-corruption and anti-bribery laws, rules, and regulations. Customer agrees that if Verifone reasonably believes that customer is in breach of this clause 9, that alone shall be sufficient grounds for further action by Verifone, including, without limitation, cancellation of any orders or denial of future business, without any liability or obligation to customer. In addition, customer hereby indemnifies Verifone and its affiliates, directors, officers and employees for all costs, expenses, damages, claims, charges, penalties, fines and other losses that arise in connection with any breach by customer or customer subsidiaries, owners, officers, directors, employees, partners, subcontractors, agents and representatives of the terms and conditions contained in this clause 9. 10. VERIFONE SHALL BE A THIRD-PARTY BENEFICIARY OF THIS AGREEMENT, WITH THE RIGHT TO ENFORCE THE TERMS HEREOF AGAINST CUSTOMER WITH RESPECT TO THE POINT SOLUTION. 11. In the case of any customer agreements that include Rental Devices: A. Verifone Property. The Rental Devices shall remain the property of Verifone. Customer shall have no right, title or interest therein except as a lessee under this Agreement. Customer shall keep all Rental Devices free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Rental Devices. Customer may not assign, hypothecate, sublet, sell, transfer, permit the sale of or part with possession of all or any of the Rental Devices or interest in the Customer Agreement, without Verifone’s prior written consent. If customer fails to pay any undisputed fees when due, and fails to cure such failure within ten (10) business days of written notice thereof, Verifone may, at any time thereafter enter, with or without legal process, any premises where any Rental Device may be, and repossess and remove such Rental Device. Customer hereby waives any claim of trespass or right of action for damages by reason of such entry and repossession. In addition, customer shall pay to Verifone any actual additional expenses incurred by Verifone in collection efforts. B. Upgrades. Customer may, commencing on the one year anniversary of the start of the Service Term for a Rental Device, upgrade to a different Rental Device (in which event customer may be subject to an increase in fees based on the new Rental Device subscription fee). For such upgrades, customer shall be required to commit to a new Initial Service Term for such Rental Device and shall be required to return the old Rental Device in accordance with clause (d) below. C. Loss and Damage. Subject to Verifone’s obligation to provide the Services, customer assumes and shall bear the entire risk of loss or damage to the Rental Devices from any use whatsoever from the date of delivery of the Rental Devices to the customer site, until such Rental Devices are returned to Verifone. No loss or damage shall relieve customer from the obligation to make payments hereunder or to comply with any other obligation under the Customer Agreement. In the event of a loss of a Rental Device (but not damage), customer shall immediately notify Reseller thereof. With respect to any lost Rental Device, customer shall be obligated to pay Reseller the Non- Return Fee applicable to such Rental Device. Subject to Verifone’s receipt of such Non-Return Fee from Reseller, Verifone shall ship customer a new or refurbished replacement Rental Device. At all times payments for the Point Solution for such Rental Device shall continue in effect. D. Return at End of Service Term. At the end of the Service Term for a Rental Device, customer shall return such Rental Device to Reseller or Verifone, as directed by Reseller. When returning a Rental Device to Verifone a Material Return Authorization number is required. If a Rental Device DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 3 2 City of Palo Alto General Services Agreement 32 Rev. February 8, 2017 is not returned to Verifone within thirty (30) days of the end of its Service Term, customer shall be obligated to pay Reseller the Non-Return Fee for such Rental Device. If, upon return of the Rental Device, Verifone determines that the Rental Device requires repair that is not covered by the BPP or Repair Services (e.g., “Out of Scope” or “Limitations”), customer shall be required to pay Reseller for such services at Verifone’s standard fees. DocuSign Envelope ID: 746C7913-81B8-467D-A7E2-32045DC70826 Certificate Of Completion Envelope Id: 746C791381B8467DA7E232045DC70826 Status: Completed Subject: Please DocuSign: C18165539 EnvisionWARE GSA FINAL 10.10.17.docx Source Envelope: Document Pages: 32 Signatures: 3 Envelope Originator: Certificate Pages: 5 Initials: 0 Kenneth Mullen AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 250 Hamilton Ave Palo Alto , CA 94301 Kenneth.Mullen@CityofPaloAlto.org IP Address: 12.220.157.20 Record Tracking Status: Original 10/10/2017 4:09:30 PM Holder: Kenneth Mullen Kenneth.Mullen@CityofPaloAlto.org Location: DocuSign Signer Events Signature Timestamp Michael J. Monk mmonk@envisionware.com Security Level: Email, Account Authentication (None) Using IP Address: 71.68.35.116 Sent: 10/10/2017 4:13:25 PM Viewed: 10/11/2017 8:56:17 AM Signed: 10/12/2017 10:18:36 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Tim Shimizu Tim.Shimizu@CityofPaloAlto.org Deputy City Attorney Security Level: Email, Account Authentication (None)Using IP Address: 12.220.157.20 Sent: 10/12/2017 10:18:37 AM Viewed: 10/12/2017 10:23:50 AM Signed: 10/12/2017 10:33:32 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign James Keene james.keene@cityofpaloalto.org City Manager City of Palo Alto Security Level: Email, Account Authentication (None) Using IP Address: 50.206.118.3 Signed using mobile Sent: 10/12/2017 10:33:33 AM Viewed: 10/12/2017 10:40:00 AM Signed: 10/12/2017 10:40:44 AM Electronic Record and Signature Disclosure: Accepted: 4/14/2015 5:40:07 PM ID: 44fe333a-6a81-4cb7-b7d4-925473ac82e3 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Carbon Copy Events Status Timestamp Laura Weaver lweaver@envisionware.com Security Level: Email, Account Authentication (None) Sent: 10/12/2017 10:40:44 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Martha Waters martha.waters@cityofpaloalto.org Security Level: Email, Account Authentication (None) Sent: 10/12/2017 10:40:45 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Chris Anastole chris.anastole@cityofpaloalto.org Contract Administrator City of Palo Alto Security Level: Email, Account Authentication (None) Sent: 10/12/2017 10:40:46 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Kenneth Mullen kenneth.mullen@cityofpaloalto.org Contracts Administrator City of Palo Alto Security Level: Email, Account Authentication (None) Sent: 10/12/2017 10:40:47 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 10/12/2017 10:40:47 AM Certified Delivered Security Checked 10/12/2017 10:40:47 AM Signing Complete Security Checked 10/12/2017 10:40:47 AM Completed Security Checked 10/12/2017 10:40:47 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure CONSUMER DISCLOSURE From time to time, City of Palo Alto (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. Electronic Record and Signature Disclosure created on: 10/1/2013 8:33:53 AM Parties agreed to: James Keene How to contact City of Palo Alto: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: david.ramberg@cityofpaloalto.org To advise City of Palo Alto of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at david.ramberg@cityofpaloalto.org and in the body of such request you must state: your previous e-mail address, your new e-mail address. 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