Res No. 75-18 _— - --- .. ...... --- ----___
RESOLUTION NO. 75-18
A RESOLUTION OF THE CITY OF DELRAY BEACH,
FLORIDA APPROVING AN AGREEMENT WITH SUPERION
FOR PROCUREMENT OF PUBLIC ADMINISTRATION
SOFTWARE IN THE SUPER-ION CLOUD REPLACING ON
PREMISE SOFTWARE THROUGH A CITY STANDARD;
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT AND TAKE ALL ACTIONS NECESSARY TO
EFFECTUATE THIS AGREEMENT; AND FOR OTHER
PURPOSES.
WHEREAS,the City of Delray Beach ("City") is authorized to enter into agreements to provide
services,programming and products in accordance with its Charter; and
WHEREAS,the City requires the products and services for the purpose of Public Administration
Software Solutions.
WHEREAS, the City desires to enter into an agreement with Superion-to obtain these products
and services.
WHEREAS,the City Commission deems approval of this Resolution to be in the best interest of
the health, safety, and welfare of the residents and citizens of the City of Delray Beach and the public at
large.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH,FLORIDA,AS FOLLOWS:
Section 1. The foregoing recitals are hereby affirmed and ratified.
i
jj Section 2. The City Commission of the City of Delray Beach has reviewed and hereby
approves this Agreement between the City and Superion,which is attached to this Resolution as Exhibit
A.
Section 3. The City Commission authorizes the City Manager to execute the Agreement and
any amendments and/or renewals thereto, and take any other actions necessary to effectuate this
Agreement.
Section 4. This Resolution shall become effective immediately upon adoption.
7 �N
PASSED AND ADOPTED in regular session on the t day of a ,2018.
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ATTEST: A Y O R
I term
Johnso City Clerk
del rt; formd sufficiency:
Max L , C ty Attorney
i
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ASP Order
By the signatures of their duly authorized representatives below, the Superion, LLC entity identified below("Superion") and
the customer identified below ("Customer"), intending to be legally bound, agree to all of the provisions of this Order (the
"Order"), and agree that this Order represents a separate contract between such Superion entity and Customer, with an
order execution date of the latest date shown on the signature page below("Order Execution Date")and order effective
date of July 1, 2018 ("Order Effective Date"). This Order incorporates and is governed by all of the terms of the Superion
Standard Terms and Conditions version 2016 January, attached hereto as Exhibit 3 ("SST") as if the Superion entity was
"Superion" and Customer was "Customer"thereunder.
Capitalized terms not defined in this Order have the meaning given them in the SST.
Superion, LLC City of Delray Beach
1000 Business Center Dr. 100 NW First Avenue
Lake Mary, FL 32746 Delray Beach, FL 33444
By. B V ) ,A,U By.
Print Name: Tom'—WrWBurgey Print Name: Mark R. Lauzi
Print Title: General Manager Print Title: City Manager
Date Signed: June 12, 2018 Date Signed: ,
SUPERION ORDER# 180028-1c d as
ul ici C
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SOLUTION AND RELATED INFORMA B ION ey*
Qt�KA� q
1. SOLUTION: Superion NaviLine Public Administration applications identified in Exhibit 1.
2. TRANSMISSION OF CUSTOMER SUPPLIED DATA: The Solution will be operated by the Customer via
workstations. Customer must provide remote access to its facility using a Superion approved remote access client
so that Superion can perform the support obligations and/or services under this Order; and will provide appropriate
security access and accounts for Superion staff and each session participant. In addition, and subject to a separate
written agreement between the parties, including agreement upon the additional fees payable in that respect to cover
dedicated communication costs, Superion may provide WAN/VPN connectivity to Customer for accessing the hosted
environment for custom application and interfaces.
3. DOCUMENTATION: Superion's standard user manuals for the Solution listed above.
4. INITIAL TERM: Sixty(60) months commencing on the Order Effective Date.
5. RENEWAL RIGHTS: Upon expiration of the Initial Term set forth above this Order shall automatically renew for
successive one(1)year Renewal Terms at the then-current rates. Either party may elect to not enter into a Renewal
Term by providing the other party with written notice at least one hundred and twenty (120) days prior to the end of
the Initial Term or then-current Renewal Term, as the case may be.
ATTEST:
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`
Ity Clerk
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6. SCOPE OF USE
a. DESIGNATED LOCATION(s): Customer's offices in Delray Beach, FL. Customer's Authorized Users may
access the Solution from anywhere in the United States, subject always to the Export Laws and the total
number of Authorized Users licensed hereunder.
7. FEES
a. ANNUAL ACCESS FEES: SEE EXHIBIT 1
(i) ADDITIONAL AUTHORIZED USERS FEES: Customer acknowledges that the Annual Access Fee set
forth above has been determined based on the number of Authorized Users licensed on the Order
Effective Date. If Customer desires at any time during the term of this Order to increase the number of
Authorized Users beyond the number of Authorized Users set forth above, Customer shall provide
Superion with advance written notice and Superion may increase the Access Fee payable under this
Order accordingly.
(ii) OTHER FEES: If Customer's use of the Solution increases in any way which would reasonably cause
Superion to incur additional hardware costs to maintain such increased usage, Superion shall invoice
Customer for such fees as are reasonable in respect of such additional hardware cost incurred.
b. START-UP FEES—SEE PROJECT COST SUMMARY- EXHIBIT 1
8. THE LIABILITY CAP: Shall be the total of the Professional Services and Annual Access Fees actually paid by
Customer to Superion under this Order during the twelve(12)month period immediately preceding the event giving
rise to the claim occurring.
9. PAYMENT TERMS:
a. Start Up Fees are due as follows: 100% on the Execution Date. Customer will be contacted by the Superion
Project Manager to begin the implementation process of this project upon receipt of startup fees.
b. The Annual Access Fee is due upon the Order Effective Date and annually thereafter on the anniversary date
thereof.The Annual Access Fee for any additional applications purchased will be placed on the same term as
the original contract.
C. Travel and Living Expenses:Travel and living expenses are in addition to the prices quoted above and will be
invoiced as incurred and shall be governed by the Superion Corporate Travel Expense Guidelines attached
hereto as Exhibit 2.
10. ADDRESSES
a. CUSTOMER ADDRESS FOR INVOICES: 100 NW First Avenue, Delray Beach, FL 33444
b. CUSTOMER ADDRESS FOR NOTICES: 100 NW First Avenue, Delray Beach, FI 33444
c. CUSTOMER ADDRESS FOR SOFTWARE SHIPMENT: 100 NW First Avenue, Delray Beach, FI 33444
d. SUPERION'S ADDRESS FOR NOTICES: Superion, LLC
Attn: Legal Counsel
1000 Business Center Drive
Lake Mary, FL 32746
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11. OTHER TERMS:
a. Customer shall procure the Specified Configuration set forth in Annex 1 in accordance with Section 2 of the
SST.
b. Superion shall provide the access to the Solution during the hours described in Annex 2 attached hereto, and
provide the Solution Support described in Annex 2.
C. Superion shall provide and install new releases of the Solution at no additional charge. However Customer
shall be responsible for the payment of consulting fees on a time and material basis in respect of any
professional services provided by Superion for the upgrade of any customizations to the Solution made by
Superion at Customer's request; provided the parties enter into a professional services schedule in respect of
any such upgrade which shall stipulate the applicable then-current professional fee rates in respect thereof.
d. As and when Customer is required to upgrade to a new release, Superion shall make such new release
available to Customer in a test environment for a period of at least sixty(60)days(the"Parallel Run Period").
Unless Customer reports to Superion any material errors in such new release, Customer shall accept
modifications, revisions and updates in the Solution and Documentation, including changes in programming
languages, rules of operation and screen or report format, as and when they are implemented by Superion. If
material errors are discovered during the Parallel Run Period, the Parallel Run Period shall automatically be
extended by the number of days between the date that any material errors where reported and the date that
Superion has remedied such errors. Customer acknowledges that modifications, revisions and updates in the
Solution permitted by this Order may result in changes in the form,timing or other features of on-line services,
reports and other Solution provided under this Order.
e. If Customer's use of the Solution increases in any way which would reasonably cause Superion to incur
additional hardware costs to maintain such increased usage, Superion shall invoice Customer for such fees as
are reasonable in respect of such additional hardware cost incurred.
f. Conversion: Conversion, if provided for herein, or if requested by the Customer after contract execution, will
be controlled by the Superion Systems Change Request(SCR)form which will be prepared for the Customer
by the Superion Conversion Team Manager. There will be a Two Hundred Fifty dollar($250.00)non-refundable
Access Fee for preparation of each SCR requested by the Customer. Superion will proceed on the SCR when
the signed SCR is returned with the Customer's authorization along with fifty percent (50%) payment, which
includes the non-refundable Access Fee. The final fifty percent(50%)payment is due upon completion. Data
must be given to Superion in an IBM compatible format on a specified magnetic media and must match data
field definition. Input data file clean up shall be the responsibility of the Customer. Additional conversion, if
necessary, will be invoiced at the prevailing rate per hour. It is agreed that no two systems and file structures
are exactly alike and there may be a need for some manual conversion efforts to take place along with the
electronic conversion. SCR form(s) for any conversion services included in this Order are attached for
Customer signature and return to Superion along with this Order.
g. If after the expiration of the term of this Order Customer converts to a different vendor's applications, Superion
will provide, upon payment of Superion's then-current standard deconversion fee, reasonable assistance and
documentation for such deconversion in order to assist Customer in removing its information and placing said
information in Superion's standard format for input to the other vendor's applications. In the event Customer
requests a non-standard deconversion, Superion shall be entitled to receive compensation for consultation,
software and documentation provided to assist in the deconversion on a time and materials basis at the
standard prevailing rate then charged by Superion for such services.
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12. OTHER TERMS APPLICABLE TO THIS ORDER: (If applicable)
• SUPPORT STANDARDS SUPPLEMENT
• SUPERION STANDARD TERMS (SST)—EXHIBIT 3
• SUPERION TRAVEL EXPENSE GUIDELINES (EXHIBIT 2)
• ANNEX 1 —SPECIFIED CONFIGURATION
• ANNEX 2—SOLUTION AVAILABILITY AND SUPPORT
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EXHIBIT 1 —ACCESS AND SERVICES FEES
A. ACCESS FEES—INITIAL TERM
Term Annual Access
Fees
.Icily 1.2018-June 30,2019 $ 80,070,26
July 1,2019-June 30,2020 $ 84,073.78
Rlly 1,2020-June 30,2021 $ 88,277.46
July 1,2031 -June 30,2022 $ 92,691.34
Elly 1,2022- June 30,2023 $ 97325,90
Access Fees for any Year subsequent to the Initial Term are subject to change and will be specified by Superion in an
annual invoice.
APPLICABLE TAXES ARE NOT INCLUDED IN THIS ORDER FORM, AND, IF APPLICABLE,WILL BE ADDED TO
THE AMOUNT IN THE PAYMENT INVOICE(S) BEING SENT SEPARATELY TO THE CUSTOMER.
B. OTHER FEES-COST SUMMARY(Start-Up Fees, Annual Access Fees)
Applications and/or Services Start-Up Fee Annual Access
Fee
Existing NaviLine Finance Products Cash Receipts,OnePoint Payment Engine $ 10,000.00 $ 6,288.03
(Currently Licensed)
Existing NaviLine Utilities Products Customer Information Systems,Land/Parcel Mgmt,Delinquency Included in 32,072.42
(Currently Licensed) Call Out Listing Interface-Generic,CIS Voice Response interface- Startup Fees
Generic,CIS IVR Credit Card Interface-Generic
Existing NaviLine Community Dev.Products Business Licenses,Building Permits,BP Voice Response Included in 41,709.82
(Currently Licensed) Interface,Code Enforcement,Planning&Engineering,Parking Startup Fees
Tickets,Click2Gov Core Module,Click2Gov OL Module
Horizon Cloud Services Hardware and software will be hosted and managed by Included in Included in Annual
Superion. Site to Site VPN,Setup,Implementation, HELP Card, Startup Fees Access Fee
Disaster Recovery Plan for Superion applications.
NaviLine Test Environment 2 refreshes per year;$600 per additional refresh. Included in Included in Annual
Startup Fees Access Fee
Total Proposed System: $ 10,000.00 $ 80,070.26
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EXHIBIT 2
SUPERION TRAVEL EXPENSE GUIDELINES
Superion will adhere to the following guidelines when incurring travel expenses:
All arrangements for travel are to be made through the Superion Corporate Travel Agent unless other arrangements
have been made with the Customer and are documented in writing.
AIR TRAVEL—Superion will use the least expensive class of service available with a minimum of seven(7)day, maximum
of thirty (30) day, advance purchase. Upon request, Superion shall provide the travel itinerary as the receipt for
reimbursement of the airfare and any fees. Fees not listed on the itinerary will require a receipt for reimbursement.
Trips fewer than 250 miles round are considered local. Unless a flight has been otherwise approved by the Customer,
Customer will reimburse the current IRS approved mileage rate for all local trips.
LODGING—Superion will use the most reasonable accommodations possible,dependent on the city. All food items,movies,
and phone/internet charges are not reimbursable.
RENTAL CAR — Economy cars will be required. Gas is reimbursable however, pre-paid gas purchases will not be
authorized and all rental cars are to be returned with a full tank of gas. Upon request, receipts for car rental and gas
purchases will be submitted to Customer. Superion shall decline all rental car insurance offered by the car rental agency
as staff members will be covered under the Superion auto insurance policy. Fines for traffic violations are not reimbursable
expenses.
OTHER TRANSPORTATION — Superion staff members are expected to use the most economical means for traveling to
and from the airport(Airport bus, hotel shuttle service).Airport taxi or mileage for the employee's personal vehicle (per IRS
mileage guidelines) are reimbursable if necessary. Upon request, receipt(s) for the taxi will be submitted to Customer.
Proof of mileage may be required and may be documented by a readily available electronic mapping service. The mileage
rate will be the then-current IRS mileage guideline rate(subject to change with any change in IRS guidelines).
OTHER BUSINESS EXPENSES—Parking at the airport is reimbursable. Tolls to and from the airport and while traveling
at the client site are reimbursable. Tipping on cab fare exceeding 15% is not reimbursable. Receipts shall be provided to
Customer upon request for all of the aforementioned items.
MEALS—Standard per Diem.
$38.00 per day
$8.00— Breakfast
$11.00—Lunch
$19.00—Dinner
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EXHIBIT 3
These Superion Standard Terms ("SST") may be incorporated into one or more orders referencing these SST (each,
an"Order"). Each Order,together with these SST, shall form a separate agreement(this"Agreement"), by and between
the Person identified on the Order ("Customer") and the Superion Company identified on the Order ("Superion"),
applicable to the proprietary solution identified on the Order(the"Solution"), as such Solution may be modified, revised
and updated from time to time. Only the Customer and Superion entities that execute the Order will be liable for the
obligations under that Order. Each Order will be effective upon the latest date shown on the signature page of the
Order("Order Execution Date").
1. Scope. Customer may use the Solution only in stated in this Agreement or in the Order. Except as
the ordinary course of Customer's internal business provided in Section 4.2(c), all fees and other amounts
operations for the benefit of Customer and only in paid by Customer under this Agreement are non-
accordance with the terms on the Order, the refundable.
Documentation, this Agreement, including the Scope of 3.2 Certain Remedies for Non-payment. If Customer
Use. Customer shall be liable for any breach of the terms fails to pay to Superion, within ten (10) days after Superion
of this Agreement by any persons given access to the makes written demand therefor,any past-due amount payable
Solution by Customer. under this Agreement (including any applicable late payment
2. Specified Configuration. Customer shall, at its fee) that is not a Disputed Amount, in addition to all other
expense, procure and maintain the computer hardware, rights and remedies which Superion may have, Superion may,
systems software and other items required for use of, or in its sole discretion and with further notice to Customer
access to, the Solution, including those described in the stating the suspension date, suspend performance of any or
Order and Documentation (the "Specified all of its obligations under this Agreement (other than Section
Configuration") and for updating the Specified 5). Superion shall have no liability for Customer's use of the
Configuration in accordance with Superion's published Solution until all such past-due amounts and any applicable
updates. If not yet completed, Customer shall complete reinstatement fees are paid in full.
its procurement and installation of the Specified 4 Warranties, Covenants and Limitations.
Configuration prior to the scheduled start of
implementation. Customer shall devote all equipment, 4.1 Compliance with Laws. Superion shall comply with
facilities, personnel and other resources reasonably all laws, enactments, orders and regulations applicable to it
necessary to begin using the Solution in production on a as the provider of services under this Agreement. Customer
timely basis as contemplated by this Agreement and shall comply with all laws, enactments,orders and regulations
satisfy any Customer requirements necessary for applicable to it as the recipient and user of services under this
Superion to complete the professional services described Agreement.
in Section 6. Superion is not responsible for any delays
or additional fees and costs associated with Customer's 4.2 No Infringement. Superion shall indemnify and
failure to timely perform its obligations under this defend Customer against, any third-party claim asserting that
Section 2. the Solution, as and when made available to Customer by
Superion and when properly used for the purpose and in the
3. Payments. manner specifically authorized by this Agreement, infringes
3.1 Fees. Customer shall pay to Superion the fees stated upon (i) any patent issued as of the date of this Agreement by
in the Order, in accordance with the payment terms stated a country that is a signatory to the Paris Convention, (ii) any
on the Order. Superion shall invoice all other fees,as and copyright of any country that is a member of the Berne
when incurred. All invoices shall be sent to Customer's Convention as of the date of this Agreement, or(iii) any trade
address for invoices stated on the Order. Except as secret or other proprietary right of any Person (collectively, "IP
otherwise specified on the Order, Customer's payments Rights"). Superion shall have no obligation under this
shall be due within thirty (30) days after the invoice date. Section 4.2 unless Customer promptly gives notice to
A late payment fee at the rate of 12% per year(or, if lower, Superion within ten (10) days after the date Customer first
the maximum rate permitted by applicable law) shall receives notice of the applicable infringement claim (provided
accrue on any amounts thirty (30) days past due and that later notice shall relieve Superion of its liability and
unpaid by Customer to Superion, except for Disputed obligations under this Section 4.2 only to the extent that
Amounts. Superion may not increase the fees and Superion is prejudiced by such later notice) and allows
charges payable under this Agreement, unless otherwise Superion to have sole control of the defense or settlement of
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the claim. Customer may monitor any such litigation or 4.5 Force Majeure. Neither party shall be liable for, nor
proceeding at its expense, using counsel of its choosing. The shall either party be considered in breach of this Agreement
remedies provided in this Section 4.2 are the sole remedies due to, any failure to perform its obligations under this
for a claim of infringement or misappropriation hereunder. If Agreement(other than its payment obligations,which shall be
any applicable infringement claim is initiated, or in Superion's suspended only for so long as the force majeure event
sole opinion is likely to be initiated, Superion may at its option renders Customer unable by any means to transmit payments
and expense: when due hereunder)as a result of a cause beyond its control,
a modifylace all or the aIle infringing art including any act of God or a public enemy or terrorist, act of
( ) or replace allegedly g g p of the any military, civil or regulatory authority, change in any law or
Solution so that it is no longer allegedly infringing, regulation, fire, flood, earthquake, storm or other like event,
provided that the functionality does not change in any theft or criminal misconduct by unrelated third parties,
material adverse respect; or disruption or outage of communications(including the Internet
(b) procure for Customer the right to continue using the or other networked environment), power or other utility,
allegedly infringing part of the Solution; or unavailability of supplies or any other cause, whether similar
(c) remove all or the allegedly infringing part of the Solution, or dissimilar to any of the foregoing, which could not have
and (i) if Customer has paid a one-time upfront initial been prevented by the non-performing party with reasonable
license fee for the applicable Solution, refund to care.
Customer the corresponding portion of the license fee 4.6 Disclaimer. EXCEPT AS STATED IN SECTIONS 4,
paid by Customerto Superion forthe applicable Solution, 6.5 AND 9.5, THE SOLUTION, DOCUMENTATION AND
less a reasonable rental charge equal to one-sixtieth SERVICES ARE PROVIDED "AS IS," AND ALL OTHER
(1/60) of the initial license fee for each month of use REPRESENTATIONS, WARRANTIES, TERMS OR
following the Order Execution Date, or(ii) if Customer is CONDITIONS, ORAL OR WRITTEN, EXPRESS OR
paying for the use of the Solution on a recurring basis, IMPLIED, ARISING FROM COURSE OF DEALING,
refund to Customer the corresponding portion of the COURSE OF PERFORMANCE, USAGE OF TRADE,
unused recurring fee(s) paid by Customer to Superion QUALITY OF INFORMATION, QUIET ENJOYMENT OR
with respect to the applicable Solution, and in each such OTHERWISE (INCLUDING IMPLIED WARRANTIES,
case this Agreement shall terminate with respect to the TERMS OR CONDITIONS OF MERCHANTABILITY,
Solution or part thereof removed. SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR
4.3 Harmful Code. Using a recent version of a reputable PURPOSE, TITLE, NON-INTERFERENCE, OR NOW
virus-checking product(to the extent commercially available), INFRINGEMENT) ARE, TO THE FULLEST EXTENT
Superion will check the Solution, as well as any systems used PERMITTED BY APPLICABLE LAW, EXCLUDED FROM
to deliver the Solution, for any viruses, worms or similar THIS AGREEMENT.
harmful code ("Harmful Code") and will use commercially 4.7 Limitations Cap. EACH PARTY'S TOTAL LIABILITY
reasonable efforts to eliminate any such Harmful Code that UNDER THIS AGREEMENT SHALL UNDER NO
Superion discovers. CIRCUMSTANCES EXCEED THE LIABILITY CAR
4.4 Exclusion for Unauthorized Actions. Superion is 4.8 Consequential Damage Exclusion. UNDER NO
not liable under any provision of this Agreement for any CIRCUMSTANCES SHALL EITHER PARTY (OR ANY OF
performance problem, claim of infringement or other matter to ITS AFFILIATES PROVIDING OR RECEIVING THE
the extent attributable to any unauthorized or improper use or SOLUTION, SERVICES OR OTHER SOFTWARE UNDER
modification of the Solution by or on behalf of Customer, any THIS AGREEMENT) BE LIABLE TO THE OTHER OR ANY
unauthorized combination of the Solution with other software OTHER PERSON FOR LOSSES OR DAMAGES WHICH
or services (other than as specified in the Specified FALL INTO ANY OF THE FOLLOWING CATEGORIES: (a)
Configuration), any use of any version of the Solution other LOST REVENUES, (b) LOST PROFITS, (c) LOSS OF
than the Supported Release, a failure to subscribe to support BUSINESS, (d) TRADING LOSSES, (e) INACCURATE
services if then offered for the Solution, any Third-Party DISTRIBUTIONS OR (f) ANY INCIDENTAL, INDIRECT,
Hardware or Third-Party Services, and Third-Party Software EXEMPLARY, CONSEQUENTIAL, SPECIAL OR PUNITIVE
or Open Source Software(except as set forth in Sections 4.10 DAMAGES OF ANY KIND, INCLUDING ANY OF THE
and 4.12), any wrongful act or omission by Customer, its FOREGOING LOSSES OR DAMAGES RESULTING FROM
Affiliates or its customers or any breach of this Agreement by CUSTOMER'S USE OF THE SOLUTION OR SERVICES
Customer. PROVIDED HEREUNDER, OR ARISING FROM ANY
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BREACH OF THIS AGREEMENT OR ANY TERMINATION Software hereunder. In the event of any defect in any Third-
OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS Party Software (in the form delivered by Superion and when
ASSERTED ON THE BASIS OF CONTRACT, TORT properly used for the purpose and in the manner specifically
(INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR authorized by this Agreement), Superion will use
OTHERWISE AND WHETHER OR NOT FORESEEABLE, commercially reasonable efforts to replace or correct the
EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OR Third-Party Software without charge. If Superion complies
WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR with this provision, it shall face no further liability with respect
DAMAGES. FOR PURPOSES OF CLARIFICATION, THE to any defect in any Third-Party Software.
FOLLOWING SHALL BE DEEMED "DIRECT DAMAGES" Unless as otherwise provided in a specific Supplement to the
AS BETWEEN CUSTOMER AND SUPERION FOR THE Order, or as provided in the licensor's terms and conditions,
PURPOSES OF THIS AGREEMENT (i) ANY AND ALL Superion shall provide Level 1 support of the Third-Party
DAMAGES, INCLUDING CONSEQUENTIAL AND SIMILAR Software. For purposes herein, Level 1 Support shall mean:
DAMAGES, AWARDED TO A THIRD PARTY FOR WHICH
INDEMNIFICATION IS PROVIDED BY A PARTY UNDER 1) Taking the first support call from Customer and
SECTION 4.2; (ii)CUSTOMER'S OUT-OF-POCKET COSTS qualifying the call priority, or if an existing case,
TO NOTIFY AFFECTED PERSONS AND/OR PAY FOR obtaining case information;
CREDIT MONITORING SERVICES FOR SUCH PERSONS
FOR AONE-YEAR PERIOD INCURRED AS A RESULT OF 2) Gathering information about the case, defining and
SUPERION'S BREACH OF SECTION 5. describing the problem, and determining if the Third
Party Software is the cause of the problem. Analyze
4.9 Exceptions. THE LIMITATIONS AND problem symptoms, attempt to find root cause if
EXCLUSIONS SET FORTH IN SECTIONS 4.7 AND 4.8 appropriate and document result of such attempts.
SHALL NOT APPLY TO: (a) BREACHES OF THE SCOPE Determining if the problem is a known Third-Party
OF USE; (b) FAILURE TO PAY FEES WHEN DUE; (c) Software problem by accessing third party online
DAMAGES CAUSED BY EITHER PARTY'S FRAUD OR support resources; and
WILLFUL MISCONDUCT; (d) A PARTY'S LIABILITY FOR 3) If it is determined to be a Third-Party Software
DEATH OR PERSONAL INJURY DUE TO THAT PARTY'S
NEGLIGENCE; OR (e) A PARTY'S LIABILITY FOR problem, contacting the Third-Party Software ;
DAMAGES TO THE EXTENT THAT SUCH LIMITATION OR technical support. For new cases, opening a case
EXCLUSION IS NOT PERMITTED BY APPLICABLE LAW. and selecting a priority. For existing cases, providing
THE LIMITATIONS SET FORTH IN SECTION 4.7 DO NOT the case number and information gathered to the
APPLY TO CLAIMS FOR WHICH INDEMNIFICATION IS Third-Party Software support engineer.
PROVIDED BY A PARTY UNDER SECTION 4.2. 4.11 Third-Party Hardware and Third-Party Services.
4.10 Third-Party Software. To facilitate Customer's Customer is hereby advised that the third party, and not
access and use of the Third-Party Software,the licensor(s) of Superion, assumes all responsibility for and liability in
such Third-Party Software have agreed to allow Superion to connection with the Third-Party Hardware and Third-Party
provide the Third-Party Software to Customer subject to the Services, and is solely responsible for delivering the Third-
following additional conditions: (i) the Third-Party Software Party Hardware and Third-Party Services to Customer.
shall be used only in conjunction with any permissible use of Superion is not authorized to make any representations or
the Solution specifically authorized in this Agreement, and warranties that are binding upon the third party or to engage
(ii) the Third-Party Software shall be used only in accordance in any other acts that are binding upon the third party,
with licensor's terms and conditions and documentation for excepting specifically that Superion is authorized to represent
the Third-Party Software which, unless otherwise included in the fees for the Third-Party Hardware or Third-Party Services
a specific Supplement to the Order, shall be provided to as the same is provided for in the Order and to accept
Customer with the receipt of such Third-Party Software. payment of such amounts from Customer on behalf of the
third party.
Superion shall use reasonable efforts to provide Customer the
benefit of all indemnities and warranties granted to Superion 4.12 Open Source Software Components. The Solution
by the licensor(s) of the Third-Party Software, to the extent may be provided with or included Open Source Software,
possible without additional cost to Superion, as and if including that Open Source Software identified in the
permitted by Superion's agreement with the licensor of the Documentation or on the support services website for the
Third-Party Software, and to the extent such warranties and Solution. The Open Source Software is licensed under the
indemnities pertain to Customer's use of the Third-Party
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terms of the open source license that accompanies or is made connection with any variation or rescission of the Agreement
available with such Open Source Software, including via a agreed between Superion and Customer), even if such
website designated by Superion. Nothing in this Agreement Affiliates, customers or other Persons are provided access to
limits Customer's rights under, or grants Customer rights that the Solution or data maintained in the Solution via the Internet
supersede, the terms and conditions of any applicable license or other networked environment. Except to the extent
for such Open Source Software. Open Source Software shall specified in an Order, Superion shall not be deemed
not be deemed to be part of the Solution under this Agreement Customer's official record keeper for regulatory or other
and Superion shall have no liability relating to such Open purposes and shall have no obligation to retain any records or
Source Software; provided, however, that Superion shall be data on Customer's behalf after termination or expiration of
responsible for fixing Errors caused by the Open Source this Agreement.
Software to the same extent as Superion's ongoing support s. Confidentiality, Security, Ownership and Use
obligations as set forth in Section 8.5 and 9.3 of this Restrictions.
Agreement.
4.13 Open Negotiation. Customer and Superion have 5.1 Confidentiality. The party receiving Confidential
freely and openly negotiated this Agreement, including the Information ("Receiving Party") of the other ("Disclosing
pricing, with the knowledge that the liability of the parties is to Party")shall not,and shall cause its Authorized Recipients not
be limited in accordance with the provisions of this to, use Confidential Information for any purpose except as
Agreement. necessary to implement, perform or enforce this Agreement.
Receiving Party will use the same reasonable efforts to: (a)
4.14 Title and Risk of Loss. In no event will Superion be protect the Confidential Information of Disclosing Party as it
deemed to have taken title or any similar right or interest in or uses to protect its own proprietary information and data. Prior
of any Third-Party Software or Third-Party Hardware in the to disclosing the Confidential Information to its Authorized
chain of distribution to Customer, and title, risk of loss, and/or Recipients, Receiving Party shall inform them of the
such similar right or interest in or to the Third-Party Software confidential nature of the Confidential Information and require
or Third-Party Hardware will be deemed to vest in Customer them to abide by the terms of this Agreement. Receiving Party
either at the point of delivery to carrier for shipment or as will promptly notify Disclosing Party if Receiving Party
otherwise provided for in the licensor's terms and conditions. discovers any improper use or disclosure of Confidential
4.15 Disclaimer. Except as may be provided in Section Information and will promptly commence all reasonable efforts
4.10 above, Customer agrees and understands that to investigate and correct the causes of such improper use or
SUPERION MAKES NO WARRANTIES WHATSOEVER, disclosure. If Receiving Party believes the Confidential
EXPRESSED OR IMPLIED, WITH REGARD TO THE Information must be disclosed under applicable law,
THIRD-PARTY PRODUCTS. ALL WARRANTIES (IF ANY) Receiving Party may do so provided that, to the extent
ARE PROVIDED TO CUSTOMER BY THE LICENSORS, permitted by law, the other party is given a reasonable
MANUFACTURERS OR PROVIDERS OF SUCH THIRD- opportunity to contest such disclosure or obtain a protective
PARTY PRODUCTS. SUPERION EXPLICITLY DISCLAIMS order.
ALL WARRANTIES OF MERCHANTABILITY AND FITNESS 5.2 Security.
FOR A PARTICULAR PURPOSE. EXCEPT FOR ITS (a) Superion will implement commercially reasonable
OBLIGATION TO REMIT PAYMENT RECEIVED FROM administrative, technical and physical safeguards
CUSTOMER TO THE THIRD PARTY PURSUANT TO THIS designed to: (i)ensure the security and confidentiality of
AGREEMENT, SUPERION WILL HAVE NO LIABILITY Customer Data; (ii) protect against any anticipated
WHATSOEVER IN CONNECTION WITH THE THIRD- threats or hazards to the security or integrity of Customer
PARTY PRODUCTS. Data; and (iii) protect against unauthorized access to or
4.16 Other Limitations. The warranties made by Superion use of Customer Data. Superion will review and test
in this Agreement, and the obligations of Superion under this such safeguards on no less than an annual basis.
Agreement, run only to Customer and not to its Affiliates, its (b) If Customer makes the Solution or data maintained by
customers or any other Persons. Under no circumstances the Solution accessible through the Internet or other
shall any Affiliate or customer of Customer or any other networked environment, Customer shall be solely
Person be considered a third-party beneficiary of this responsible for all aspects of Internet use, and shall
Agreement or otherwise entitled to any rights or remedies maintain, in connection with the operation or use of the
under this Agreement (including any right to be consulted in Solution, adequate technical and procedural access
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controls and system security requirements and devices, licensors, having great commercial value to Superion or its
necessary for data privacy, confidentiality, integrity, licensors. Title to all SG Solution Details and all related
authorization, authentication and non-repudiation and intellectual property and other ownership rights shall be and
virus detection and eradication. remain exclusively with Superion or its licensors, even with
(c) To the extent that Third-Party Users are permitted to respect to such items that were created by Superion
have access to the Solution, Customer shall maintain specifically for or on behalf of Customer. Superion and its
agreements with such Third Party Users that adequately Affiliates may freely use Feedback without attribution or the
need for Superion, its Affiliates or any third party to pay
protect the confidentiality and intellectual property rights
Customer or any third party any royalties or other fees of any
of Superion in the Solution and Documentation, and
kind. This Agreement is not an agreement of sale, and no
disclaim any liability or responsibility of Superion with
respect to such Third Party Users. intellectual property or other ownership rights to any SG
Solution Details are transferred to Customer by virtue of this
5.3 Personal Data. If Superion processes or otherwise Agreement. All copies of SG Solution Details in Customer's
has access to any personal data or personal information on possession shall be deemed to be on loan to Customer during
Customer's behalf when performing Superion's obligations the term of this Agreement.
under this Agreement, then: (i) Customer shall be the data 5.5 Use Restrictions. Except to the extent specifically
controller (where "data controller" means an entity which authorized by this Agreement, Customer shall not, shall not
alone orjointly with others determines purposes forwhich and attempt to, and shall not permit any other Person under its
the manner in which any personal data are, or are to be, reasonable control to: (a) use any SG Solution Detail for any
processed) and Superion shall be a data processor (where purpose, at any location or in any manner not specifically
data processor" means an entity which processes the data authorized by this Agreement; (b) make or retain any Copy of
only on behalf of the data controller and not for any purposes any SG Solution Detail; (c)create or recreate the source code
of its own); (ii) Customer shall ensure that it has obtained all for the Solution, or re-engineer, reverse engineer, decompile
necessary consents and it is entitled to transfer the relevant or disassemble the Solution except to the extent specifically
personal data or personal information to Superion so that a d modif ada translate or
Superion may lawfully use, process and transfer the personal permitted b y applicable law; ( ) y' pt'
create derivative works based upon the Solution or
data and personal information in accordance with this Customer's behalf, which may include Documentation, or combine or merge any part of the Solution
Agreement r
Superion processing and transferring the relevant personal or Documentation with or into any other software or
data or personal information outside the country where documentation except to the extent specifically permitted by
Customer and the Authorized Users are located in order for applicable law; (e) refer to, disclose or otherwise use any SG
Superion to provide the Solution and perform its other Solution Detail as part of any effort either (i) to develop a
obligations under this Agreement; and (iii) Superion shall program having any functional attributes, visual expressions
or other features similar to those of the Solution or (ii) to
process the personal data and personal information only in
compete with Superion; (f) remove, erase or tamper with any
accordance with any lawful and reasonable instructions given
by Customer from time to time as set out in and in accordance copyright or other proprietary notice printed or stamped on,
with the terms of this Agreement;and(iv)each party shall take affixed to, or encoded or recorded in any SG Solution Detail,
or fail to preserve all copyright and other proprietary notices
appropriate technical and organizational measures against
in any Copy of any SG Solution Detail made by Customer; (g)
unauthorized or unlawful processing of the personal data and
sell, market, license, sublicense, distribute or otherwise grant
personal information or its accidental loss, destruction or
damage so that, having regard to the state of technological to any Person, including any outsourcer, vendor, sub-
development and the cost of implementing any measures,the contractor, consultant or partner, any right to use any SG
Solution Detail or allow such other Person to use or have
measures taken ensure a level of security appropriate to the
access to any SG Solution Detail, whether on Customer's
harm that might result from such unauthorized or unlawful
behalf or otherwise; or (h) use the Solution to conduct any
processing or accidental loss, destruction or damage in
relation to the personal data and personal information and the type of application service provider, service bureau or time-
nature of the personal data and personal information being sharing operation or to provide remote processing, network
protected. If necessary, the parties will cooperate to processing,network telecommunications or similar services to
any Person, whether on a fee basis or otherwise.
document these measures taken.
5.4 SG Solution Details. The SG Solution Details are 5.6 Notice and Remedy of Breaches. Each party shall
trade secrets and proprietary property of Superion or its promptly give notice to the other of any actual or suspected
breach by it of any of the provisions of this Section 5,whether
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or not intentional, and the breaching party shall, at its breach of this warranty, together with adequate supporting
expense, take all steps reasonably requested by the other documentation and data. Upon receipt of any such notice,
party to prevent or remedy the breach. Superion's only obligation under this Section 6.5 is to remedy
5.7 Enforcement. Each party acknowledges that any the breach and reperform the particular Professional Services
breach of any of the provisions of this Section 5 may result in affected as soon as reasonably practical at no additional
irreparable injury to the other for which money damages charge.
would not adequately compensate. If there is a breach, then 6.6 Compliance with Customer Policies. While
the injured party shall be entitled, in addition to all other rights Superion personnel are performing services at Customer's
and remedies which it may have, to have a decree of specific site, Superion will ensure that such personnel comply with
performance or an injunction issued by any competent court, Customer's reasonable security procedures and site policies
requiring the breach to be cured or enjoining all Persons that are generally applicable to Customer's other suppliers
involved from continuing the breach. providing similar services and that have been provided to
6. Professional Services. Superion in writing and in advance.
6.1 Professional Services. An Order may identify 6.7 Contributed Material. In the process of Superion's
certain Professional Services. performing Professional Services, Customer may, from time
to time, provide Superion with designs, plans, or
6.2 Professional Services Fees. Customer shall pay to specifications, improvements, works or other material for
Superion the professional services fees stated on the Order. inclusion in, or making modifications to, the Solution, the
In each case where professional services fees are not Documentation or any other deliverables ("Contributed
specified on the Order, then the fees for such services shall Material"). Customer grants to Superion a nonexclusive,
be based upon Superion's then standard professional irrevocable, perpetual,transferable right,without the payment
services fee rates. of any royalties or other compensation of any kind and without
6.3 Expense Reimbursements. Customer shall the right of attribution, for Superion, Superion's Affiliates and
reimburse Superion for reasonable travel,living and other out- Superion's licensees to make, use, sell and create derivative
of-pocket expenses incurred by Superion personnel in works of the Contributed Material.
connection with all services, including, but not limited to, 7. Term and Termination.
Professional Services and maintenance and support rendered 71 Order Term. The Order may state an initial term for
by Superion. Reimbursable expenses shall be incurred by the use of the Solution ("Initial Term") and may state renewal
Superion personnel in accordance with Superion's then terms (each a "Renewal Term"). "Order Term" means the
current per diem travel expense guidelines, a copy of which Initial Term together with any Renewal Terms.
will be included in the Order. Superion shall invoice Customer
for reimbursement of these expenses on a monthly basis, as 7.2 Termination for cause. Either party may terminate
incurred. Cutomer will have discretion to determine the this Agreement by giving notice of termination to the other
reasonableness of the expenses. party if the other party breaches any of its material obligations
6.4 Cooperation and Access to Facilities, Data and (other than Customer's failure to pay Support Fees during a
Employees. To the extent reasonably necessary for Renewal Support Term) under this Agreement and does not
Superion to perform its obligations under this Agreement, cure the breach within thirty (30) days after receiving notice
Customer shall provide to Superion access to Customer's describing the breach in reasonable detail.
location site, equipment, data and employees, and shall 7.3 Termination for Convenience. Customer may
otherwise cooperate with Superion in its performance terminate this Contract without specifying any reason for
hereunder, all as reasonably necessary for Superion to termination by giving written notice of intent to terminate, in
perform its obligations under this Agreement. writing, mailed at least ninety (90) days before the intended
6.5 Professional Services Warranty. Superion termination date to the address given above. Such termination
warrants to Customer that Professional Services will be shall be without liability or penalty provided, however, that no
performed in a good and workmanlike manner by qualified such termination shall prejudice any obligations or liabilities of
personnel, subject to Section 6.4. Superion shall have no either party already accrued prior to the effective date of
liability under this Section 6.5 unless, within thirty (30) days termination and Customer, as a condition of such right of
after the actual date of the particular Professional Services, termination for convenience, must first remit to Superion
Superion receives notice from Customer describing the payment in full of: (a)all license fee amounts for the Licensed
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Applications, (b) all amounts for all third party products (a) Customer shall supply, or cause to be supplied, all
provided by Superion under or pursuant to this Agreement, (c) Customer Supplied Data. Customer shall transmit the
all fees for services rendered by or on behalf of Superion, (d) Customer Supplied Data to Superion by communications link
all reimbursable expenses incurred by Superion, and (e) all or in another manner described on the Order. As between
amounts which remain due for maintenance as of the effective Superion and Customer, Customer shall be responsible for
date of termination ensuring that the Customer Supplied Data is Accurate and
7.4 Appropriation of Funds. The Customer's obligation complete. Customer represents and warrant to Superion that
pursuant to this agreement is specifically contingent upon the Customer has the full legal right for Customer and Superion,
lawful appropriation of funds. Failure to lawfully appropriate its affiliates and agents to use the Customer Supplied Data for
funds shall result in automatic termination of this agreement. processing hereunder.
7.5 Effect of Termination. The provisions of Sections 3, (b)Within thirty(30)days after termination of Hosting Services
4, 5, 7.25 and 10 shall survive any termination of this or of an Order for an ASP Solution or SaaS Solution,
Agreement, whether under this Section 7 or otherwise. Customer shall give Superion an instruction notice regarding
Customer shall be liable for all payments due to Superion for the disposition of any tapes, data, files and other property
the period ending on the date of termination. Upon a belonging to Customer and then in Superion's possession. To
termination of this Agreement,whether under this Section 7 or the extent practicable and at Customers expense after receipt
otherwise, or upon the expiration or termination of an Order of such notice, Superion shall use commercially reasonable
Term, Customer shall: (i) discontinue all use of the affected efforts to comply with the notice, including converting the data
Solution and Documentation, (ii) promptly return to Superion on the Solution to machine-readable form. Superion may
all copies of the affected Solution and Documentation and any retain such property until Superion receives all payments due
other affected SG Solution Details then in Customer's to Superion under that Order. If Customer fails to give that
possession; and III give notice to Superion certifying that all notice within thirty (30) days after such termination, then
p (iii) g p t g Superion may dispose of such property in a commercially
copies of such items have been permanently deleted. reasonable manner.
s. Terms Applicable To SaaS, ASP and Hosting. (c) In order to improve Superion's product and service
The following provisions in this Section S apply solely to offerings for its customers,Superion may maintain a database
Hosting Services and to Orders for and ASP Solution or of information residing on the Solution. Superion and its
SaaS Solution. affiliates may use and distribute such data in an aggregated
8.1 Saas, ASP and Hosting. Superion shall provide the and de-identified format, including as a part of the
Hosting Services and/or access to the ASP Solution or SaaS development, distribution and licensing of any Superion
solution, as described and for the term specified on the Order. product or service offering.
8.2 Passwords and Solution Access. If Superion 8.4 Regulatory Access. To the extent permitted by law,
provides Customer or its Authorized Users with unique access each party will notify the other promptly of any formal request
codes to access the Solution(each,a"Password"), Customer by an authorized governmental agency or regulator to
shall hold any such Passwords in strict confidence and shall examine Customer Data or other records, if any, regarding
not assign, share, misuse or abuse the Passwords or attempt Customer that are maintained in Superion facilities under this
to render ineffective the password protection of the Solution. Agreement. Customer will reimburse Superion for the
If Customer suspects or learns that a Password is being used reasonable out-of-pocket costs Superion incurs, and for time
to gain unauthorized access to the Solution, Customer will spent, in making such Customer Data or other records, if any,
immediately notify Superion so that it can change, or assist available for examination and audit by the governmental
Customer in changing, the applicable Password. To the agency or regulatory authority that has jurisdiction over
extent the Solution is within Superion's network, Superion Customer's business.
may suspend access to the Solution without advance notice if s.s Support. Superion shall provide to Customer the
Superion reasonably believes the Solution is being used or ongoing support services as described in the Order.
accessed in an unauthorized, illegal or disruptive manner,
provided that Superion will promptly notify Customer of any 8.6 Data Backup and Disaster Recovery. If the
such event. Solution maintains a database then, unless otherwise stated
8.3 Customer Data. on the Order:
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(a) Superion shall provide an electronic backup of the from Customer locations worldwide. Customer may change a
Customer Data accordance with the backup cycle Designated Location by giving prompt notice thereof to
defined in the Order(and if no backup cycle is defined, Superion. Customer may copy and use the Solution installed
at reasonable intervals); and at the Designated Location for inactive back-up and disaster
(b) Superion shall maintain a disaster recovery plan which recovery purposes. Customer may copy the Documentation
includes a procedure for the restoration of Customer's to the extent reasonably necessary for use of the Solution
production environment at an alternate facility in the under this Agreement.
event of a disaster. Superion's disaster recovery plan 9.2 Initial Installation. Superion shall deliver to
shall be tested at least once each calendar year. Customer the initial Copies of the Solution stated on the Order
8.7 Interruption to Solution. From time to time, Superion by supplying such initial Copies(a)by physical shipment,such
shall be entitled (at its discretion, without incurring liability for as on a disc or other media, or(b) by electronic delivery, such
so doing) to interrupt the Solution to: (i) perform repairs and as by posting it on Superion's network for downloading.
other maintenance and install enhancements on Superion's Physical shipment is on F.O.B. terms, Superion's shipping
equipment, software and/or other systems that are required point and electronic delivery is deemed effective at the time
for the provision of the Solution,or(ii)make adjustments to its Superion provides Customer with access to download the
infrastructure(including, for example, in relation to resources Solution. The date of such delivery shall be referred to as the
shared by its other customers)and thereby cause a disruption "Delivery Date."
in the provision of the Solution. Except in the case of 9.3 Support. Beginning on the Order Execution Date and
emergency repairs, maintenance or adjustments, Superion continuing for twelve (12) months thereafter ("Initial Support
will (a) give Customer reasonable prior notice of the Term"), Superion shall provide the ongoing support services
interruption; (b) limit such interruptions to outside of described in that Order. Support for the Initial Support Term
Superion's normal business hours; and (c) use commercially are provided at no charge. Upon expiration of the Initial
reasonable efforts to minimize the impact of the interruption. Support Term, the ongoing support services shall
8.8 Harmful Code. Using a recent version of a reputable automatically renew for an additional Contract Year unless, at
virus-checking product(to the extent commercially available), least sixty (60) days prior to the expiration of the initial
Customer will check the Specified Configuration for Harmful Contract Year, Customer notifies Superion in writing of
Code and ensure no Harmful Code is introduced by its end Customer's intent not to renew for the second Contract Year.
users or from its systems into any systems used in the After the second Contract Year,the Support will automatically
Solution and will use commercially reasonable efforts to be extended for consecutive Contract Years on a year-to-year
eliminate any such Harmful Code that either Customer or basis unless either party notifies the other in writing of its
Superion discovers. intent not to extend the support at least sixty (60) days prior
to the expiration of the then-current Contract Year.
8.9 Volume Increases.Customer shall give notice to However, upon termination Superion will discontinue
Superion whenever Customer intends to materially increase providing all on-going support services, improvements and
the volume of data to be processed on the Solution. Any such warranties. Superion shall have no liability with respect to
increase that results in an increase beyond the Scope of Use Customer's use of the Products for which support services are
requires an additional executed Order and the payment of terminated.
additional fees.
9. Terms Applicable to Software Licenses. The Support Fees for the second Support Term shall be as
following provisions in this Section 9 apply solely to an provided in the Order Form.
Order that provides the right for Customer to install the On an annual basis, Superion may increase the Support Fees
Solution at the facility identified on the Order. payable.
9.1 Grant. Except as otherwise provided in an Order, 9.4 Support Termination. Upon the effective date of
Superion grants to Customer a non-transferable, non- termination of ongoing support services by either party or at
exclusive,term license to use the Solution in accordance with any time when Customer has failed to pay Support Fees
this Agreement and the Scope of Use. The Solution shall be ("Support Termination Date"): (i) Superion shall discontinue
installed in object code form only at Customer's location(s) providing all ongoing support services, including Superion's
listed on the Order ("Designated Location(s)"). Customer obligations under Section 9.3; (ii) any Superion warranties
may, subject to Section 10.4, use or access the Solution at or under this Agreement shall cease to apply for the period after
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the Support Termination Date; and (iii) Superion shall not be there has been a breach of this Agreement by Customer) and
liable for Customer's use of the Solution after the Support shall be performed in a manner not to disrupt Customer's
Termination Date except for Superior's indemnification business and operations and will respect the confidentiality of
obligations for any third-party claims covered by Section 4.2 Customer, its suppliers and customers. Customer will, in a
that arose prior to the Support Termination Date (but only to timely manner, reasonably cooperate with the auditors and
the extent such claim would not have been remedied by a provide the auditors all assistance as they may reasonably
Release made available by Superion after the Support request in connection with the audit. Customer may require
Termination Date). auditors acting on behalf of Superion to execute reasonable
9.5 Software Warranty. Superion warrants to Customer confidentiality agreements and comply with Customer's
that for a period of twelve(12) months from the Delivery Date, reasonable security requirements, but the requirement will not
the Solution (as delivered to Customer by Superion and when apply to Superior's internal auditors otherwise bound by the
properly used for the purpose and in the manner specifically confidentiality conditions of this Agreement.
authorized by this Agreement), will perform as described in 10. Other Provisions.
the Documentation in all material respects. Superion's sole 10.1 Notices. All notices, consents and other
obligation and liability under this warranty is to comply with the communications under or regarding this Agreement shall be
provisions of Section 9.3 of this Agreement. in writing and shall be deemed to have been received on the
9.6 Remote Access of Installed Software. Provided earlier of: (a) the date of actual receipt; (b) the third business
that Superion performs such services in accordance with the day after being mailed by first class, certified or air mail or(c)
confidentiality provisions of this Agreement, Customer shall the first business day after being sent by a reputable overnight
permit Superior, at Superion's option, to remotely access the delivery service. Any notice may be given by facsimile, or
Solution installed at the Designated Location for the purpose email if notice by one of the foregoing is provided promptly
of providing support services to Customer under Section 9.3 thereafter. Customer's address for notices is stated on the
and otherwise implementing the purposes of this Agreement. Order. Superion's address for notices is stated on the Order.
In remotely accessing such Solution, Superion will comply In the case of(i) any notice by Customer alleging a breach of
with Customer's reasonable security procedures and this Agreement by Superion or (ii) a termination of this
company policies that have been provided to Superion in Agreement. Either party may change its address for notices
writing. Customer shall promptly reimburse Superion for any by giving written notice of the new address to the other party.
out-of-pocket costs incurred in complying with such 10.2 Defined Terms. As used in this Agreement,the terms
procedures and policies. below(and their plural forms) have the following meanings:
9.7 Backup. Customer acknowledges that it is the best (a) "affiliate" whether capitalized or not, means, with
judge of the value and importance of the data held on respect to a specified Person, any Person which directly
Customer's systems and that Customer shall be solely or indirectly controls, is controlled by, or is under
responsible for maintaining secure and complete back-up common control with the specified Person as of the date
copies of all data that Customer processes using the Solution, of this Agreement, for as long as such relationship
which data will be backed-up on not less than a daily basis remains in effect.
and which will be readily available on machines controlled by
Customer to facilitate the prompt restoration of such data in (b) "Authorized Recipient" means: (i) with respect to
the event of any loss of or damage to it. Superion shall have Customer, Customer, any Authorized User and any
no liability for any loss or damage caused by Customer's employee of a Customer contractor, provided that the
failure to maintain such backed-up copies. contractor is not a competitor of Superior; and (ii) with
9.8 Audit. At Superior's expense and upon written respect to Superion, Superion, its foreign and domestic
request with reasonable notice, Customer will permit Affiliates and their respective contractors.
Superion, its personnel or its outside auditors to enter the (c) "Authorized User" means a Customer employee.
relevant Customer locations during normal business hours (d) "Confidential Information" means all business or
and audit the number of copies of the Solution and technical information disclosed by Disclosing Party to
Documentation in Customer's possession and information Receiving Party in connection with this Agreement.
pertaining to Customer's compliance with this Agreement.
Such audits shall not occur more than once in any twelve (12) Confidential Information includes without limitation: (i)
month period (unless Superior believes, in good faith, that Customer Data and the details of Customer's computer
operations; and(ii)the SG Solution Details. Confidential
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Information does not include information that: (aa) prior (k) "Export Laws" means any laws, administrative
to the receipt thereof under this Agreement, had been regulations and executive orders of the U.S., the United
developed independently by Receiving Party, or was Kingdom and any other jurisdiction where any SG
lawfully known to Receiving Party, or had been lawfully Solution Details will be located or from where any SG
received by Receiving Party from other sources, Solution Details will be accessed under this Agreement
provided such other source did not receive it due to a relating to the control of imports and exports of
breach of an agreement with Disclosing Party, and commodities and technical data, use or remote use of
Receiving Party knew of such breach or ought to have software and related property or services, embargo of
reasonably known of such breach;(bb)is publicly known goods or services or registration of this Agreement
at or after the time either party first learns of such including the Export Administration Regulations of the
information, or generic information or knowledge which U.S. Department of Commerce and the regulations and
either party would have learned in the course of its work executive orders administered by the Office of Foreign
in the trade, business or industry; or(cc) subsequent to Asset Control of the U.S. Department of the Treasury.
the receipt thereof under this Agreement;(1)is published (1) "Feedback" means any suggestions or
by Disclosing Party or is disclosed generally by recommendations for improvements or modifications to
Disclosing Party to others without restriction on its use the Solution made by or on behalf of Customer.
and disclosure; or (2) has been lawfully obtained by
Receiving Party from other sources which Receiving (m) "including" whether capitalized or not, means including
Party reasonably believes lawfully came to possess it. but not limited to.
(e) "copy" whether capitalized or not, means any paper, (n) "Liability Cap"means the greater of Fifty Thousand U.S.
disk, tape, film, memory device or other material or Dollars (US$50,000) or the amount identified on the
object on or in which any words, object code, source Order as the liability cap, provided however that, if no
code or other symbols are written, recorded or encoded, amount is identified on the Order then the liability cap
whether permanent or transitory. shall be Fifty Thousand U.S. Dollars(US$50,000).
(f) "Customer Data" means data stored in, or processed (o) "Open Source Software" means computer software
by, the Solution; provided that aggregated data that is made generally available at no charge by the copyright
not personally identifiable data and not identifiable to holder under a license which provides the right to modify
Customer shall not be deemed Customer Data nor and distribute the software to anyone for any purpose at
Customer's Confidential Information. no charge.
(g) "Customer Supplied Data" means any information or (p) "person" whether capitalized or not, means any
data introduced into the Solution by or on behalf of individual, sole proprietorship,joint venture, partnership,
Customer. corporation, company, firm, bank, association,
(h) "Disputed Amount" means a good faith dispute by cooperative, trust, estate, government, governmental
Customer of certain amounts invoiced under this agency, regulatory authority or other entity of any nature.
Agreement. An amount will only constitute a Disputed (q) "Professional Services" means installation,
Amount if(i)Customer has given notice of the dispute to implementation, training or consulting services including
Superion promptly after receiving the invoice and (ii)the custom modification programming, support services
notice explains Customer's position in reasonable detail. relating to custom modifications, on-site support
A disputed will not exist as to an invoice in its entirety services, assistance with data transfers, system restarts
merely because certain amounts on the invoice are and reinstallations provided by Superion under this
Disputed Amounts. Agreement.
(i) Documentation" means the standard user (r) "Release" means a modification or update to the
documentation Superion provides for the Solution, as Solution, which Superion, in its sole discretion,
such Documentation may be updated from time to time. incorporates into the Solution without requiring its then
(j) "Error" means a failure of a Supported Release to existing client base to pay a separate fee (other than
perform in all material respects in accordance with the support fees).
Documentation. (s) "Scope of Use" means the Designated Computer(s),
Designated Location(s), License Term, Platform,
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Business Purpose, Number of Trades, Number of Work an assignment of this Agreement (but not of any
Stations, Number of Developers, Number of Users, individual rights or obligations hereunder) to (i) a
Volume Limit, Number of Production Databases, purchaser of or successor to substantially all of
Number of Production Servers, and/or other restrictions Customer's business (unless such purchaser or
or parameters as are stated in Section 5.5 or on the successor is a software, data processing or computer
Order. Scope of Use shall not include the processing of services vendor that is a competitor of Superion, its
any Acquired Business. Customer shall use the Solution parent company or any of its Affiliates) or(ii)an Affiliate
in production to process Customer's business; provided of Customer, provided in the case of such an
that all increases in the Scope of Use require the assignment, Customer guarantees the obligations of the
execution of an amendment amending the Scope of Use. assignee and the use of the Solution is not broadened
(t) "SG Solution Details" means any of the following: the beyond the Scope of Use. Any assignment by Customer
Sin breach of this Section shall be void. Any express
Solution and Documentation, the object code and the
sassignment of this Agreement, any change in control of
source code for the Solution, the visual expressions,
sCustomer(or its Affiliate in the case of an assignment to
screen formats, report formats and other design features
that Affiliate under this Section 10.3(b) and any
of the Solution, all ideas, methods, algorithms,formulae
and concepts used in developing and/or incorporated assignment by merger or otherwise by operation of law,
shall constitute an assignment of this Agreement by
into the Solution or Documentation, all future
Customer for purposes of this Section 0 ("Customer
modifications, updates, Releases, improvements and
enhancements of the Solution or Documentation, all Assignment"). In the event of a Customer Assignment,
or any acquisition of additional business by Customer,
derivative works (as such term is used in the U.S.
copyright laws) based upon any of the foregoing and all whether by asset acquisition, merger or otherwise by
copies of the foregoing. operation of law (collectively with the Customer
Assignment, "Customer Additional Business
(u) "Supported Release"means, unless otherwise stated in Acquisition"), Customer shall give notice to Superion
the Order, the latest Release of the Solution that is notifying Superion if Customer desires to use the
generally available to Superion's client base. Solution to process any additional business related to
(v) "Third-Party Product" means Third-Party Software, such Customer Additional Business Acquisition
Third Party Hardware, Third-Party Data or Third-Party ("Acquired Business").
Services. 10.4 Export Laws. Customer acknowledges that the SG
(w) "Third-Party Hardware"means that hardware specified Solution Details and the services provided by Superion
as third party hardware on the Order. hereunder and this Agreement are subject to the Export Laws.
Customer shall not violate the Export Laws or otherwise
(x) "Third-Party Services" means those services specified export, re-export or use, directly or indirectly (including via
as third party services on the Order. remote access), any part of the Solution, Confidential
Information or services in a manner, or to or for any person or
(y) "Third-Party Software"means the software specified as entity, for which a license or other authorization is required
third-party software on the Order. under the Export Laws without first obtaining such license or
(z) "Third-Party User" means any of Customer's authorization.
customers, or their customers, to the extent such 10.5 Relationship. The relationship between the parties
persons are provided access to the Solution or Third- created by this Agreement is that of independent contractors
Party Data hereunder. and not partners,joint venturers or agents.
10.3 Parties in Interest. 10.6 Entire Understanding. This Agreement, which
(a) This Agreement shall bind, benefit and be enforceable includes and incorporates the Order, and any other
by and against Superion and Customer and, their schedules, exhibits and addenda hereto states the entire
respective permitted successors and assigns. understanding between the parties with respect to its subject
matter, and supersedes all prior proposals, marketing
(b) Customer shall not assign this Agreement or any of its materials, negotiations, representations (whether negligently
rights hereunder, nor delegate any of its obligations or innocently made), agreements and other written or oral
hereunder, without Superion's prior written consent, communications between the parties with respect to the
except such consent shall not be required in the case of subject matter of this Agreement. In the event of a conflict
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between the provisions of the SST and an Order incorporating by Superion or during the six (6) months after such
the SST, the terms of such Order shall prevail. Any written, employment or engagement ends,then Customer shall pay to
printed or other materials which Superion provides to Superion as liquidated damages (and not a penalty) an
Customer that are not included in the Documentation are amount equal to twelve (12) months of such Superion
provided on an "as is" basis, without warranty, and solely as Personnel's salary and other compensation (including bonus
an accommodation to Customer. In entering into this or commission payments) at the time of leaving his/her
Agreement each party acknowledges and agrees that it has employment or engagement with Superion. For purposes of
not relied on any express or implied representation, warranty, this provision, "hire" means to employ as an employee or to
collateral contract or other assurance (whether negligently or engage as an independent contractor, whether on a full-time,
innocently made), except those expressly set out in this part-time or temporary basis. This provision will remain in
Agreement. Each party waives all rights and remedies which, effect during the term of this Agreement and for a period of
but for this Section 10.6, might otherwise be available to it in one (1) year after expiration or termination of this Agreement.
respect of any such representation (whether negligently or lo.io Jurisdiction and Governing Law. This Agreement
innocently made), warranty, collateral contract or other and any dispute or claim arising, directly or indirectly, out of or
assurance. Nothing in this Agreement shall limit or exclude in connection with it or its subject matter or formation
any liability for fraud or fraudulent misrepresentation. (including non-contractual disputes or claims) is governed by,
10.7 Modification and Waiver. No modification of this and shall be construed and enforced in accordance with, the
Agreement, and no waiver of any breach of this Agreement, laws of the State of Florida excluding choice of law. Each
shall be effective unless in writing and signed by an authorized party irrevocably (i) agrees that a County or Circuit Court in
representative of the party against whom enforcement is the Eleventh Judicial Circuit, in and for Palm Beach County,
sought. This Agreement may not be modified or amended by Florida, or the United States District for the Middle District of
electronic means without written agreement of the parties with Florida, shall have exclusive jurisdiction to settle any dispute,
respect to formats and protocols. No waiver of any breach of controversy or claim arising, directly or indirectly, out of or in
this Agreement,and no course of dealing between the parties, connection with this Agreement, or the breach, termination or
shall be construed as a waiver of any subsequent breach of validity thereof(including non-contractual disputes or claims)
this Agreement. and that such court shall be the proper venue therefor; (ii)
io.s Severability, Heading and Counterparts. A waives the right to trial by jury,(iii) consents to service of
determination that any provision of this Agreement is invalid process by first class certified mail, return receipt requested,
or unenforceable shall not affect the other provisions of this postage prepaid, to the address at which the party is to
Agreement. Section headings are for convenience of receive notice, and (iv) in the event any lawsuit in the judicial
system,federal or state, is brought to enforce compliance with
reference only and shall not affect the interpretation of this
Athis contract or interpret same, or if any administrative
Agreement. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and Proceeding is brought for the same purposes,each party shall
all of which together shall constitute one and the same pay their own attorney's fees and costs, including appellate
fees and costs.
instrument.
io.9 Personnel. Customer acknowledges that: (a) io.ii Inspector General: Palm Beach County has
Superion expends substantial time and money, on an ongoing established the Office of the Inspector General, which is
basis, to recruit and train its programmers, trainers, data authorized and empowered to review past, present, and
processing, customer support and professional services team Proposed County programs, contracts, transactions, accounts
personnel ("Superion Personnel' b Su erion's business and records. The Inspector General (IG) has the power to
P ( p )' O P subpoena witnesses, administer oaths, require the production
is highly competitive, is marketed throughout the United of records, and monitor existing projects and programs. The
States, Europe and in many other locations worldwide, and Inspector General may, on a random basis, perform audits on
requires long sales lead times often exceeding one (1) year; all City contracts.
and (c) if Customer were to hire Superion Personnel, then
Superion may suffer lost sales opportunities and would incur 10.12 Public Records: IF SUPERION HAS QUESTIONS
substantial time and money in hiring and training REGARDING THE APPLICATION OF CHAPTER 119,
replacement(s) for those Superion Personnel. Accordingly, if FLORIDA STATUTES, TO SUPERION'S DUTY TO
Customer, directly or through one or more subsidiaries or PROVIDE PUBLIC RECORDS RELATING TO THIS
other controlled entities, hires any Superion Personnel at any AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
time when such Superion Personnel is employed or engaged
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RECORDS AT CITY OF DELRAY BEACH, CITY CLERK, (d) Upon completion of the Agreement, transfer, at no
100 N.W. 1ST AVE., DELRAY BEACH FLORIDA.THE CITY cost, to the Customer all public records in
CLERK'S OFFICE MAY BE CONTACTED BY PHONE AT possession of Superion or keep and maintain public
561-243-7050 OR VIA EMAIL AT records required by the Customer to perform the
PUBLICRECORDSREQUEST@MYDELRAYBEACH.COM. service. If Superion transfers all public records to the
Superion shall comply with public records laws, Customer upon completion of the Agreement,
specifically to: Superion shall destroy any duplicate public records
that are exempt or confidential and exempt from
(a) Keep and maintain public records required by the public records disclosure requirements. If Superion
Customer to perform the service. keeps and maintains public records upon completion
of the Agreement, Superion shall meet all applicable
(b) Upon request from the Customer's custodian of requirements for retaining public records.All records
public records, provide the Customer with a copy of stored electronically must be provided to the
the requested records or allow the records to be Customer, upon request from the Customer's
inspected or copied within a reasonable time at a cost custodian of public records, in a format that is
that does not exceed the cost provided in Florida compatible with the information technology systems
Statute or as otherwise provided by law. of the Customer.
(c) Ensure that public records that are exempt or (e) If Superion does not comply with this section, the
confidential and exempt from public records Customer shall enforce the contract provisions in
disclosure requirements are not disclosed except as accordance with the contract and may unilaterally
authorized by law for the duration of the Agreement cancel this contract in accordance with state law.
term and following completion of the Agreement if
Superion does not transfer the records to the
Customer.
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ANNEX 1 -SPECIFIED CONFIGURATION
Hardware. It is agreed by Customer and Superion that hardware, operating systems, and application software
required to implement and operate the systems described in this agreement shall be provided by Superion and
shall reside in a Superion data center with the following exceptions:
DMS Server. In the event that the customer has licensed the DMS forms printing system, Customer is
responsible for providing the hardware required for the DMS server. The DMS server shall be owned by the
customer and shall reside at Customer's location for ease of management by Customer.
Virtual Private Network(VPN) Concentrator. The VPN Concentrator includes a router, which will be
provided by Superion to Customer. The router shall reside at Customer's location but is, and shall remain, the
property of Superion.
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ANNEX 2-SOLUTION AVAILABILITY AND SUPPORT
1. Superion's Responsibilities
Superion undertakes all responsibilities as outlined under Parts 1 and 2 of this Annex 2.
2. Customer Responsibilities
Superion will not be liable for a failure to perform its responsibilities under this Annex 2 to the extent such failure is
directly caused by the Customer not complying with its obligations under this Agreement.
A. Customer will designate named contacts for contacting support. These named contacts will have
undertaken specific training under the supervision of Superion in order to log faults and interact with support
services.
B. Customer may be asked to perform problem determination activities as suggested by Superion. Problem
determination activities may include capturing error messages, documenting steps taken and collecting
configuration information. Customer may also be requested to perform resolution activities including
modifying processes. Customer agrees to cooperate with such requests, if reasonable.
C. Customer is responsible for the training and organization of its staff.
D. Superion is not required to provide any services relating to problems arising out of any alterations of or
additions to the Solution performed or authorized by parties other than Superion (including its contractors,
or third parties under Superion's control). The Solution does not include development work on software not
licensed from Superion or development work for enhancements or features that are outside the documented
functionality of the Solution except such work described in Exhibit 1. Customer may request consulting and
development work from Superion as a separate billable service.
E. Customer will appoint a vendor liaison manager who will be Customer's primary contact with Superion on
all commercial matters related to the Solution.
3. Disagreement procedure
In case the parties are in disagreement as to whether Superion has fulfilled its obligations under this ASP Order the
parties shall use all reasonable efforts to amicably settle such dispute within five (5) working days. If the
disagreement remains following such five working day period,the parties shall escalate the problem to the following
representatives for the respective company to resolve the dispute:
Superion: Director of Operations(first level); VP of Services(escalation—1St level); General Manager(escalation
—2nd level)
Customer:
The disagreement procedure proposed herein shall not limit either party's right to bring a claim as provided for in
the Agreement. Notwithstanding any dispute under this Annex 2,the parties have a duty to continue fulfilling all their
other obligations under this Agreement.
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PART 1 —SERVICE LEVEL COMMITMENT AND CLOUD PROCEDURES
CLOUD SOLUTIONS
Hosted Systems Standards Sheet
Service Level Commitments and Cloud Procedures
Service Level Commitments
The following Service Level commitments apply to the Customer's production systems. This does not include
testing or training systems.
A. Availabilitv
,. SERVICE LEVELS FOR THE APPLICATION SERVICES
Superion shall provide the Application Services in accordance with the following service level commitment
provisions.
1. Overall System Availability
1.1 Target. In each Service Period, the target for availability of the Application Services is 99.9% ("Availability
Target"). "Service Period" means 24 hours per day Monday through Sunday each calendar month that
Customer receives the Application Services, excluding Sundays between the hours of 12:01AM and 12 noon
Eastern Time for scheduled maintenance. During this time, Customers may experience intermittent
interruptions. Superion will make commercially reasonable efforts to minimize the frequency and duration of
these interruptions. Superion will notify the Customer if the entire maintenance window will be required.
1.2 Measurement. Service availability is measured as the total time that the Application Services are available
during each Service Period for access by Customer ("Service Availability"). Unless otherwise specified, the
measurement period for Service Availability is each Service Period and Service Availability shall be calculated
at the end of each Service Period. Service Availability measurement shall be applied to the production
environment, and the points of measurement for all Application Services monitoring shall be the servers and
the Internet connections at Superion's hosted environment.
Superion has technology monitoring, measuring, and recording Service Availability. The Client, at their
discretion, may also employ monitoring tools. Said additional reporting tool must be non-invasive and may not
reside in total or in part on Superions systems. Additionally, the use of said to must be mutually agreed upon
by Superion and the Client.The Client shall be wholly responsible for any and all costs associated including but
not limited to licenses, installation on Client's systems, support, maintenance, and renewal costs. In the event
service availability does not meet contracted service levels and a discrepancy exists between Superion's
monitoring tools and the Client's, the Service Availability indicated by Superion's system shall apply for the
purposes of this Appendix B Standards Sheet.
1.3 Calculation. Service Availability Targets are subject to change monthly due to the variance of the number of
days in a month. The total number of minutes which the service was NOT available in a given month shall
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exclude those items listed in Section G. Service Availability for a given month shall be calculated using the
following calculation:
The total number of minutes which the service was NOT available in a given month shall be subtracted
from the total number of minutes available in the given month. The resulting figure is divided by the total
number of minutes available in the given month.
1.4 Remedy. If the Service Period target measurement, as calculated in 1.3, is not met with the result that the
Customer's use of the Application Services is severely interrupted in a given month, then the Customer shall
be entitled to a credit calculated as follows:
Actual Service Availability in the Percentage Reduction in Monthly
relevant Fee payable by Customer in the
Service Period Immediately Subsequent Service
Period
Less than 99.9% but greater than or equal 5%
to 99.0%
Less than 99.0% but greater than or equal 10%
to 95%
Less than 95% 25%
If during the term of this Agreement, Superion fails to meet the service level commitment targets specified
above, the Customer's sole and exclusive remedy in relation to such failure shall be the applicable credits
specified. In no event shall Superion be obliged to provide any refund in relation to any credit, but rather the
credit shall be applied to the next following invoice due to the Customer. Superion will utilize monitoring software
to track and report actual service availability in the relevant service period. If the actual service availability during
the relevant service period does not achieve the Availability Target, Superion will apply a service credit per the
specifications above.
However, any credit entitlement that is not reported by Superion must be requested by the Customer within six
(6)months of its occurrence or it shall no longer be available and the Customer will be deemed to have waived
any rights in relation thereto and (for the avoidance of doubt) Superion's failure to meet the relevant service
level commitment. In no event will credits due in any given month exceed twenty-five percent (25%) of that
month's fees. Customer shall not be entitled to offset any monthly Application Services fee payments, nor
withhold fee payments, on account of a pending credit. Customer shall not be eligible for credits for any period
where Customer is more than thirty(30)days past due on their account.The amount of any unused credit shall
be paid in cash to Customer upon termination of the Agreement.
Superion will provide reporting, as provided in Section G, showing performance and monthly service levels.
B. Server Performance
Superion shall provide sufficient server capacity for the duration of this hosting Agreement to meet the
reasonable performance requirements for the number of concurrent system users provided for in this hosting
Agreement.
Superion shall provide hardware resources sized for the number of users and software modules licensed in the
hosting Agreement. If the Customer requests, at some later date,to add additional software modules, increase
user licenses, increase storage requirement, and/or request additional environments, the hardware and
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software requirements of such additions will be evaluated. If additional resources are required to support such
modifications, additional fees may apply.
If the addition of users, unusually heavy use, or other factors require additional resources for support of the
Customer (e.g., hardware, software, people, data communications link, etc.), Superion and the Customer will
confer on the matter until a mutually agreeable solution is identified.
Performance monitoring and tuning will be performed as necessary to maintain an average in-network
interactive response time. "In-network" is defined as any point between which the data packet enters the
Superion environment and subsequently departs the Superion environment. Any point of communications
outside of the Superion protected network environment shall be deemed as"out-of-network."
Superion is not responsible for Internet connectivity and/or performance outside the internal Superion host site
infrastructure.
C. Server Performance Stress Test
At the request of the Customer, Superion will coordinate a performance stress test with the Customer, at an
agreed upon time, during implementation and upon request after go-live. Superion will work with the Customer
to identify critical application screens to benchmark during the performance stress test and coordinate with the
Customer to create an accurate test scenario with the Customer's End Users. Upon completion of the
performance stress test, Superion and the Customer will mutually agree to the performance benchmarks for
the identified critical screens taking into consideration Internet latency, End User workstations limitations, and
the Customer's Local Area Network.
D. Scheduled and Emergency Maintenance for Application Services
Scheduled maintenance
System maintenance
Superion will provide all hosted systems and network maintenance as deemed appropriate and necessary
by Superion. All maintenance will be completed outside of the Customer's standard business hours of
operation, unless requested by Customer.
Superion application maintenance and upgrades
Software maintenance and upgrades will be performed outside of the Customer's standard business hours
of operation, traditionally 8AM to 5PM Monday through Friday, unless requested by Customer. Software
maintenance and upgrades will be scheduled in advance with the Customer's primary contact.
Hardware maintenance and upgrades
Hardware maintenance and upgrades will be performed outside of the Customer's standard business hours
of operation, unless requested by Customer. The primary Customer contact will be notified, via the on-file
e-mail address, prior to hardware upgrades being performed.
Emergency maintenance
Emergency situations will be handled on a case-by-case basis in such a manner as to cause the least
possible disruption to overall system operations and availability without negatively affecting system stability
and integrity. The primary Customer contact will be notified, when possible, via the on-file e-mail address,
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prior to emergency maintenance being performed. If no contact is made, emergency maintenance will
move forward as deemed necessary by Superion management.
E. Incident Response
Incidents are defined as interruptions to existing service and can range in priority from urgent to low depending
on the impact to the Customer. Incident priorities are defined as the following:
Priority Impact
Level Description
Urgent An Incident that (a) results in loss of Customer connectivity to all of the
1 Application Services or (b) results in loss, corruption or damage to
Customer's Data.
Critical An Incident that has an adverse material impact on the performance of the
2 Application Services or materially restricts Customer's day-to-day
o erations.
Non- An Incident that does not result in a failure of the Application Services but a
3 Critical fault exists in the Managed IT Services that restricts Customer's use of
the Managed IT Services.
4 Minor An Incident that does not affect or which has minimal adverse impact on the
use of the Application Services.
Superion will make commercially reasonable efforts to respond to Application Services incidents for live
production systems using the following guidelines:
Priority Level Performance Target Minimum
Performance
% Goal
Priority 1 (Urgent) Superion will respond within 1 hour of the issue being 95%
reported.
Priority 2(Critical) Superion will respond within 2 hours of the issue being 95%
reported.
Priority 3(Non- Superion will respond within 4 hours of the issue being 95%
Critical) reported.
Priority 4(Minor) Superion will respond within 24 hours of the issue being 95%
reported.
Measurement. Superion shall track and report on response and resolution time for application and hosting
support issues identified by the Customer.
F. Disaster Recovery.
Superion provides Disaster Recovery (DR) services for the systems hosted in a Superion data center for our
hosted clients. The costs for DR services are included in the monthly fees. Services cover the following
scenarios:
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(a) Loss of client client data center. In the event the client's data center is inaccessible or rendered non-
functional.Superion will provide the ability to connect to the appropriate Superion data center using software
provided by Superion. This will provide the appropriate software to allow the client to connect to their
systems from a remote site to previously identified critical. Functionality may be diminished due to lack of
access to hardware and/or software located in the client's facilities.
G. Reporting
Superion shall measure its performance against the performance metrics, as set forth herein, and shall provide
a report of such performance on a monthly basis. Such report(s)shall be delivered via an agreed upon method
and within ten (10) days following the end of the applicable monthly measurement period. Superion will
schedule a performance review with the Customer upon request.
H. Exceptions.
Notwithstanding anything herein, Superion shall not be responsible for failure to carry out any of its obligations
under this Exhibit A and Exhibit C (including liability to apply any credit for any failure to meet a service level
commitment target) if the failure is caused by:
(a) scheduled downtime in order to carry out maintenance or suspensions in the Application Services that
Customer has been notified of in advance that occurs outside of Normal Business Hours, provided that,
in event of any critical or urgent system issue, that does not reasonably permit advance notice to
Customer. Superion shall provide notice as and when commercially reasonable with respect to such
urgent issue,or as otherwise reasonably agreed between Customer and Superion.The system is reserved
for maintenance on Sundays from 8am to 12 noon Eastern Time;
(b) adverse impact due to the defectiveness of the Customer's environment, Customer's systems, or due to
Customer corrupt, incomplete, or inaccurate data supplied to the Application Services;
(c) adverse impact as a result of denial of reasonable access by Superion personnel to relevant portion of
Customer's systems or premises that prevents Superion from addressing and provided that no other
commercially reasonable method is available to attain such information;
(d) adverse impact due to material changes made to the usage of the Application Services by Customer
where Superion has not agreed to such changes in advance and in writing;
(e) adverse impact due to the modification or alteration, in any way, by Customer or its subcontractors, of
communications links necessary to the proper performance of the Application Services;
(f) adverse impact due to a Documented Defect;
(g) a force majeure event, or the negligence, intentional acts, or omissions of Customer or its agents.
Cloud Procedures
A. Incident Resolution
Performance targets vary due to issue complexity and priority. For critical requests, Superion provides a
continuous resolution effort until the issue is resolved.
B. Service Requests
Service requests are new requests that will take less than 8 hours to accomplish. The Superion Cloud Solutions
management team will perform the prioritization for these requests. There will be a targeted resolution goal of
up to five (5) days, with extra time being allowed if equipment or software needs to be ordered or multiple
products have to be analyzed. However, more complex requests may take longer to complete. Any new service
requests requiring more than 8 hours to accomplish may constitute a project and must be scheduled.
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C. Non-Production Environments
Superion will make commercially reasonable efforts to provide non-production environment during Customer
business hours. For avoidance of doubt, the aforementioned non-production environment are not included
under the SLA metrics period(s) hereunder.
Scheduled Maintenance
System maintenance
Superion will provide all necessary hosted systems and network maintenance for non-production
environments as deemed appropriate and necessary by Superion Cloud Solutions. All necessary
maintenance will be scheduled with the Customer and may be completed during business hours.
Superion application maintenance and upgrades
Software maintenance and upgrades for non-production environments may be performed during the
Customer's standard business hours. Software maintenance and upgrades will be scheduled in advance,
with the Customer's primary contact.
Hardware maintenance and upgrades
Hardware maintenance and upgrades for non-production environments may be performed during the
Customer's standard business hours. The primary Customer contact will be notified, via the on-file e-mail
address, prior to hardware upgrades being performed.
Emergency maintenance
Emergency situations will be handled on a case-by-case basis in such a manner as to cause the least
possible disruption to overall system operations and availability without negatively affecting system stability
and integrity. The primary Customer contact will be notified, when possible, via the on-file e-mail address,
prior to emergency maintenance being performed. If no contact is made, emergency maintenance will
move forward as deemed necessary by Superion Cloud Solutions management.
Incidents and service requests.
Non-production environment incidents will be considered priority 3 or priority 4 incidents as circumstances
dictate and handled as such. Service requests will be prioritized and scheduled similar to production service
requests.
Non-Production environment refreshes
Non-Production environment refreshes will be provided in accordance to the Customer's Superion
Application Services Provider agreement, which indicates the number of refreshes provided in a calendar
year. Upon written receipt of a Customer's refresh request, Superion will schedule and complete the refresh
within 4 weeks of the request.
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I. Responsibility Summary Matrix
Responsibility Summary Matrix
Description Superion Customer
Responsibility Responsibility
ASP Server Hardware management X
ASP Server Files stem management X
ASP Server OS upgrades and maintenance X
ASP Database product upgrades and maintenance X
ASP 31d Party product upgrades and maintenance X
Application Update Installation
Request to install application updates X
Installation of application updates X
ASP Backup Management X
Data and or File restoration
Request to restore data and or files X
Restoration of data and or files X
Network
ASP Network up to and including the router at Superion's X
location
ASP Router at Customer's location X
Customer's network up to the router at Customer's location X
Customer Workstations X
System Performance X X
Add/Change users
User add/change requests X
User add/change implementation-for System Access X
User add/change implementation for Software Applications X
Add/Change Printers
Printer add/change requests X
Printer add/change implementation on ASP network X
Printer add/change implementation for Software Applications X
Disaster Recovery X
Password Management X X
Application Management
Application Configuration X
Application Security Management X
Accuracy and Control of Data X
Security
Intrusion and Penetration Testing X
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PART 2—ERROR CORRECTION
1. Superion shall provide to Customer, during Superion's support hours as set forth in the Support Standards below
("Support Hours"), telephone assistance regarding Customer's proper and authorized use of a new edition of a
Solution (the"Release"), as applicable.
2. Superion shall provide to Customer, during the Support Hours, commercially reasonable efforts in solving errors
reported by Customer in accordance with this Order. Customer shall provide to Superion reasonably detailed
documentation and explanation, together with underlying data, to substantiate any error and to assist Superion in
its efforts to diagnose, reproduce and correct the error. These support services shall be provided by Superion at
Customer location(s) if and when Superion and Customer agree that on-site services are necessary to diagnose
or resolve the problem. If a reported error did not, in fact, exist or was not attributable to a defect in the Solution or
an act or omission of Superion, then Customer shall pay for Superion's investigation and related services at
Superion's standard professional services rates. Customer must provide Superion with such facilities, equipment
and support as are reasonably necessary for Superion to perform its obligations under this Order, including
remote access to the Specified Configuration.
3. Customer shall promptly install and/or use any Release provided by Superion to avoid or mitigate a performance
problem or infringement claim. All modifications, revisions and updates to the Solution shall be furnished by means
of new Releases of the Solution and shall be accompanied by updates to the Documentation whenever Superion
determines, in its sole discretion, that such updates are necessary.
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DocuSign Envelope ID:63295E2F-85F3-4593-9992-7B2A8347CDDB
Support Standards
I. Support Hours:Hours During Which Superion's Telephone Support Will be Available to Customer in Connection
with the Provision of Maintenance: Unless otherwise noted in the Order as to Support Type,support hours are Monday
through Friday, 8:00 A.M. to 5:00 P.M. Customer's Local Time within the continental United States, excluding holidays
("5x9").
11. Targeted Response Times.
"Notification"means a communication to Superion's help desk by means of:(i)Superion's web portal or(ii)the placement
of a telephone call.
With respect to Superion's support obligations, Superion will use diligent, commercially reasonable efforts to respond to
Notifications from Customer relating to the Solution identified in the Order in accordance with the following guidelines with
the time period to be measured beginning with the first applicable Superion "Telephone Support" hour occurring after
Superion's receipt of the Notification:
Priority Description Response Goal* Resolution Goal*
Urgent A support issue shall be considered Urgent when it Superion has a stated Although resolution
1 produces a Total System Failure; meaning goal to respond within times vary depending
Superion's Solution is not performing a process that 60 minutes of the on the exact issue and
has caused a complete work stoppage. issue being reported customer
and have a resolution environment,
plan within 24 hours. Superion has a stated
goal to resolve an
urgent issue within 24
Critical A support issue shall be considered Critical when Superion has a stated hours or provide a
2 a critical failure in operations occurs; meaning goal to respond within resolution plan with
Superion's Solution is not performing a critical two hours of the issue urgent issues within
process and prevents the continuation of basic being reported. 24 hours of the issue
operations. Critical problems do not have a being reported.
workaround. This classification does not apply to
intermittent problems. A resolution plan
details the steps
Non- A support issue shall be considered Non-Critical Superion has a stated necessary to
Critical when a non-critical failure in operations occurs; goal to respond within understand and
3 meaning Superion's Solution is not performing non- four hours of the issue possibly resolve the
critical processes, but the system is still usable for being reported. issue.
its intended purpose or there is a workaround.
Minor A support issue will be considered Minor when the Superion has a stated
4 issue causes minor disruptions in the way tasks are goal to respond within
performed, but does not affect workflow or 24 hours of the issue
operations. This may include cosmetic issues, being reported.
general questions, and how to use certain features
of the system.
Measured from the moment a Case number is created. As used herein a "Case number"is created when a) Superior's
support representative has been directly contacted by Customer either by phone or through Superion's online support portal,
and b) when Superion's support representative assigns a case number and conveys that case number to the
Customer. Customer must provide remote access to its facility using a Superion approved remote access client so that
Superion can perform the support obligations and/or services under this Order,and will provide appropriate security access
and accounts for Superion staff and each session participant.
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