HomeMy WebLinkAboutSumTotal Systems LLC; 2012-10-03;STATEMENT OF WORK NO.7
PROFESSIONAL SERVICES
This Statement of Work No. 7 ("Statement of Work") is effective July 1st, 2015, by and between City of Carlsbad ("you"
or "Customer") and Sum Total Systems LLC ("we," "us," or "Sum Total").
1. This Statement of Work is subject to all the terms and conditions of the Master Services Agreement between
City of Carlsbad and Sum Total dated October 3, 2012 ("Agreement").
2. We will provide you as needed the professional services under the terms and conditions of the Agreement, in
accordance with the specifications of Statement of Work set forth in Schedule A, attached hereto and
incorporated herein.
3. Personnel. Our personnel and authorized contractors shall perform the Professional Services. The Sum Total
Professional Services pre-sales point of contact is Lou Lauria. The Customer's point of contact is Michele
Tackett.
4. Billing Information. All invoices to you for professional services will be sent to the following address:
Address:
Attn.:
Email:
Phone#:
Facsimile#:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Michele Tackett
michele.tackett@carlsbadca.gov
760-602-7548
This Statement of Work may only be modified by written instrument, signed by both parties, and referring to the particular
provisions to be modified. In the event of a conflict between the terms of this Statement of Work and the Agreement, the
Statement of Work shall govern. Unless specifically changed or added herein, all other terms and conditions in the
Agreement will remain in full force and effect. This Statement of Work, the Agreement, amendments, and statements of
work thereto, contain our entire agreement regarding the subject matter thereof.
IN WITNESS WHEREOF, the parties have executed this Statement of Work as of the effective date written above.
::TYetr~ i
Authorized Signature
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Printed Name/Title S;..,'\..iJ lCJv~ {;JA~tf:;,r--
Dated: __ 9--#-Jl'-""'-d-:...__:_4..!..-.:.-/J--=-S;'_·_
SUMTOTAL SYSTEMS LLC /l
By: _ _.:;t=
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Authorized Signature
Brian Prusak
Senior Director finance
Printed Name/Title
Dated: __ Cf--'-,,1'--'/J'-y--"-"-j_J _s ___ _
Please sign and fax this entire document to: Attn: SumTotal Systems LLC, Revenue Contracts at (904) 212-
1791. Sum Total will return one fully executed copy to you.
Signature page to Statement of Work No.7 between City of Carlsbad and Sum Total
City of Carlsbad SOW 7 WFM Cons! 070115_LL
Schedule A-Specifications of Statement of Work
1.0 Overview and Scope
Sum Total is pleased to submit this specifications of Statement of Work (SOW) in response to your request for our as
needed professional services to provide general consulting services relating to your Sum Total Workforce Management
System. Any additional information or changes to the information provided herein may require revision of the estimated
level of services effort required to complete the activities and could be subject to a change order. If the Customer fails to
satisfy stated requisites or assumptions in this Statement of Work, a change in scope, time, and budget may result in a
change order
2.0 Project Scope
The Project scope for customer's task orders will be subject to Table One below. Any components outside of what is
listed below will result in a change order.
ID Component Definition
1.1 Consulting Services Sum Total will provide:
-Limited Engagement Management-The
Sum Total Engagement Manager serves as the primary
point of contact for the duration of this project, and will
assign and coordinate all Sum Total resource activities for
the project while maintaining schedules, and budgets.
-Implementation Consulting Services-Sum Total
will provide implementation consulting relating to the use,
configuration, testing, and optimization of the Sum Total
Workforce Management System.
-Custom Extensions as requested-Sum Total will
provide analysis, documentation, design, development,
unit testing, packaging and deployment of custom rule
extensions and custom reports yet to be defined, as
requested by City of Carlsbad. All development work will
be based on customer-approved Business Requirements
Document(s). (BROs)
0 Development work will be undertaken based on
available budget on this Statement of Work.
0 Estimates for custom extensions will be reviewed
against available budget at the time they are presented. If
additional funding is needed, a Change Order will be
provided.
0 SumTotal will provide estimated efforts for
custom extensions when requirements details are defined
and approved.
o City of Carlsbad is responsible for detailed
testing of all required use cases and system testing as
necessary
o Consulting Services hours for this Statement of
Work must be used during 2015 and 2016, and expire on
June 30, 2016.
3.0 Time Period and Process
During customer's fiscal year 2015/16, customer may require SumTotal to provide professional services, on an 'as-
needed' basis, related to customer's Sum Total Workforce Management System. Customer shalt submit a request
for professional services to Sum Total and Sum Total shall prepare a task order in accordance with the request. The
task order should specifically set forth the services to be provided and an estimate of the time and materials
necessary to complete the task order. Customer's acceptance of the task order shall be made part of the Agreement.
4.0 Estimated Fees
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City of Carlsbad SOW 7 WFM Cons! 070115_LL
All fee related tasks listed in the table below are based on preliminary discovery discussions with you. Additional
discovery effort may be required to refine and specify each of the project tasks in this Statement of Work. You will be
notified in advance of this situation and all reasonable efforts will be made to manage expectations to work towards a
mutually successful implementation.
Actual reasonable and out-of-pocket expenses and tax are not included herein and will be invoiced separately. If travel
is required for the performance of this Statement of Work, the expenses will be limited as deemed necessary to the
implementation of this project and reimbursed at actual incurred cost by you. Our travel standards and practices will be
applied to any travel required under the agreement.
To assist you in budgeting for this Statement of Work, we are able to provide the following budgetary guidance as listed
in Table Two immediately below:
Table Two • Budgetary Guidance
Estimated Time to Estimated Total
Project Task Complete in Hours Cost
1.1 Consulting Services 133 $ 29,925.00
Total 133 $ 29,925.00
*Table does not include Travel Expenses.
The figures presented within the Budgetary Guidance table above are estimates of the as needed services to be
performed by SumTotal, as defined in Section 1. Actual professional services unless defined specifically as fixed fee,
will be billed monthly on a time and materials basis at a rate of $225.00 per hour. All professional services to be performed
by us for each project task will be invoiced as set forth in the Agreement. This estimate is valid for 91 days from the
effective date of this document. Thereafter, our then-currently prevailing rates shall apply. Unless noted otherwise, all
prices provided herein are denominated in the currency of the United States of America ($ or USD).
5.0 Modifications to the Statement of Work
Any changes to Section 2, the project task scope of this Statement of Work shall result in a change order to this Statement
of Work or a new statement of work. All change orders and new statements of work will also be billed on a time and
materials basis.
6.0 Assumptions
You shall assign a project manager to this Statement of Work. This project manager will act as the central point of contact
for the Professional Services that we will render for this Statement of Work.
Resources will be assigned to the project in accordance with the requirements outlined above. Any anticipated changes
to the Project Organization must be communicated to the Project Manager within five (5) working days. The Steering
Committee will evaluate the impact of any core team replacement on the Project's schedule and cost.
Unless otherwise noted only a single currency configuration is implied if applicable.
Scheduling for any professional services to be performed will be based upon a first come first serve basis and will be
mutually agreed upon by the parties prior to the commencement of the Professional Services hereunder.
We will provide services during regular business hours (8:30a.m. to 5:00p.m.), not to exceed forty (40) hours in any one
week, Monday through Friday, except legal holidays ("Business Hours"). The Customer will support Sum Total's holiday
schedule.
We believe the requirements and specifications provided in this Statement of Work are sufficient to allow the work to
begin and be completed with a reasonable expectation that the total cost estimate will be realized; however, we cannot,
and do not, guarantee the estimate.
The performance of this Statement of Work involves activities to be performed by both parties. If we do not receive your
deliverables as scheduled, then our ability to complete this Statement of Work in a timely manner will be jeopardized.
We will notify you, should this occur, of the potential impact with regards to additional expenses and/or subsequent
schedule changes.
The branding services which we provide will be limited to replacing the logo and changing the banner colors. Any other
branding requirements will need to be defined further and is not included in this Statement of Work.
All figures provided herein are denominated in US dollars unless otherwise noted. All communications and discussions
related to the agreement will be conducted and completed in the English language.
3
City of Carlsbad SOW 7 WFM Cons! 070115_LL
Unless explicitly listed above, data migration, validation, cleansing, etc., including but not limited to migrating data from
any other system is out of scope of this Statement of Work. User Acceptance Testing (UAT) documentation (i.e. test
plans, test cases, scripts, and scenarios) and the development and the execution of all testing in relation to UAT is not
included in the scope of this Statement of Work.
The scope defined in this Statement of Work stands alone to be delivered without dependency on any future functionality
defined or to be added to the product road map.
By customer acceptance of this Statement of Work the customer understands and accepts that Exclusive Maintenance
Support for custom code developed under this Statement of Work is not included in the scope of Services as defined
herein. For purposes of clarity and the avoidance of doubt, it is hereby noted that the warranty period for deliverables
defined hereunder shall start upon delivery to the customer and extend 90 days following delivery of the components in
question. Deliverables will be developed to requirements as specified in the applicable Business Requirements Document
(BRD) and any defects in deliverables reported to Sum Total within the warranty period will be repaired without additional
fees. Standard Professional Services rate will apply following the warranty period.
4
City of Carlsbad SOW 7 WFM Consl 070115_LL
Amendment Number 3
This Amendment No. 3 ("Amendment") is effective as of June 13111, 2015 ('Amendment Number 3 Effective Date'), is made
and incorporated into the On Demand Services Agreement (hereafter· Agreement') dated April 6, 2010 between Sum Total
Systems LLC a Delaware limited liability company, and successor in interest to Cybershlft, Inc. with an address for the
purposes of this Amendment at 2850 Northwest 43rd Street, Ste 200, Gainesville, FL 32606-6966 ("Sum Total', 'we' or
'us') and City of Carlsbad ("you' or 'Customer" ) with an address for the purposes of this Agreement at 1635 Faraday
Avenue, Carlsbad, California. In the event of a conflict between this Amendment and the Agreement, this Amendment
shall govern.
This Amendment incorporates the following into the Agreement.
1. Payment Tenns
Seclion 3 of Amendment Number Two to the Agreement is hereby deleted in its entirety and replaced w1th the
following:
The fees set forth in Section 2 shall be invoiced monthly in advance in 12 equal monthly installments.
During the Additional Subscription Term set forth in this Amendment, after each month, Customer will
be billed $4. 13 for all Aclive Records in excess of 1,000 in such month. Unless explicitly noted
otherwise, all prices provided herein are denominated in the currency of the United States of America
($or USD).
SumTotal will invoice Customer and Customer shall pay the fees set forth herein at the following
address Sum Total will send Customer the additional license keys, if applicable, to the following address.
Address: 1635 Faraday Avenue,
Carlsbad, California
Attn. Michele Tackett
Tel No. C760l 602-7548
e-mail: micbcle.tackett@carlsbadca.gov
2. Unless specifically changed or added herein, all other terms and conditions in the Agreement will remain in full
force and effect and can only be modified in writing and signed by both parties.
This Amendment. and the Agreement, along with any prior amendments and statements of work, contains our
entire agreement. The Agreement may not be mod1fied except by written instrument signed by both parties and
referring to the particular provisions to be modified.
In witness whereof, and intending to be legally bound hereby, the duly authorized representatives of Customer
and Sum Total have executed this Amendment on the date shown below.
CITY25CA~A '
By: lfJ>./ V
Au orized ignature A-.1 K~rttJfE.P,r.so~ / v~i'""viT.:J ~er
~rinted NamerTitle
Dated: C, /1.$} I 5"
SUMTOTAL ~JSTEMS LLC
By: OfVv!\.
Authorized Signature
B-"<L<"'\ r~'<
Printed NamemtJe Dv e c.\-\) ( ~ l f'Qrt (J
Dated: 1 ~ ~ f-)..01[
Signature page to Amendment Number 3 between Sum Total and City of Carlsbad
C1ty of Carlsbad, Amdt3, (042715)SA
CONFIDENTIAL
Page I or I
Amendment Number 2
This Amendment No. 2 ("Amendment") is effective as of April 20th, 2015 ("Amendment Number 2 Effective Date"), is made
and incorporated into the On Demand Services Agreement (hereafter "Agreement") dated April6, 2010 between Sum Total
Systems LLC a Delaware limited liability company, and successor in interest to Cybershift, Inc. with an address for the
purposes of this Amendment at 2850 Northwest 43rd Street, Ste 200, Gainesville, FL 32606-6966 ("SumTotal", "we" or
"us") and City of Carlsbad ("you" or "Customer'' ) with an address for the purposes of this Agreement at 1635 Faraday
Avenue, Carlsbad, California. In the event of a conflict between this Amendment and the Agreement, this Amendment
shall govern.
This Amendment incorporates the following into the Agreement.
1. Existing and Additional Software Components and Users
Customer has previously purchased access to the Service under the Agreement for a committed number of
monthly Active Records ("Existing Monthly Active Records") as stated in Table One below and hereby renews
access to the Service for the Existing Monthly Active Records for a term beginning on April 1"1, 2015 to March
31"1, 2016 ("Additional Subscription Term").
a e T. bl 0 E . ' C fi ne-x1stmg on 1gurat10n
Software Existing Fees for Existing Month Ill
Modules Month Ill Active Active Records for
Records: Additional Subscri~tion
Term
WFMTime& 800 $39,638.59
Attendance
Customer hereby purchases access to the Service for additional monthly Active Records ("Additional Monthly
Active Records") as stated in Table Two below for the Additional Subscription Term.
a e wo-T. bl T 11ona on IY c /Ve Add't' I M thl A f R d ecor s
Additional Monthlll Total Committed Annual Fee ~er Total Annual Fees
Active Records Month Ill Active Additional Monthlll for Additional
Records for Additional Active Record Month Ill Active
Subscriotion Term Records
200 1,000 $3.25 $7,800.00
2. Fees for Additional Subscription Term
Fees for the Total Committed Monthly Active Records for the Additional Subscription Term shall be as stated in
Table Two below.
Table Two-Additional Subscription Term
SubscriQtion Service: Payment Period Dates: Subscription Service Fees:
First Payment Period April 1, 2015 through March 31, 2016 $47,438.59
Total April1, 2015 through March 31,2016 $47,438.59
0 0 *Note: At the conclus1on of the Add1t1onal Subscnpt1on Serv1ce Term, Subscnpt1on Serv1ces may be
renewed for an additional Subscription Services term via mutual written agreement between the Parties.
City of Carlsbad, Arndt 2, (042715)SA
CONFIDENTIAL
Page I of2
•
3. Payment Terms
Upon execution of this Amendment, Customer will be invoiced the fees for the Additional Subscription Term as
stated in Table Two above. During the Additional Subscription Term set forth in this Amendment, Customer will
be billed $4.13 for all Active Records in excess of 1,000 each month. Unless explicitly noted otherwise, all prices
provided herein are denominated in the currency of the United States of America ($ or USD).
SumTotal will invoice Customer and Customer shall pay the fees set forth herein at the following address.
Sum Total will send Customer the additional license keys, if applicable, to the following address.
Address: 1635 Faraday Avenue,
Carlsbad, California
Attn. Michele Tackett
Tel No. (760) 602-7548
e-mail: michele.tackett@carlsbadca.gov
4. Unless specifically changed or added herein, all other terms and conditions in the Agreement will remain in full
force and effect and can only be modified in writing and signed by both parties.
This Amendment, and the Agreement, along with any prior amendments and statements of work, contains our
entire agreement. The Agreement may not be modified except by written instrument signed by both parties and
referring to the particular provisions to be modified.
In witness whereof, and intending to be legally bound hereby, the duly authorized representatives of Customer
and Sum Total have executed this Amendment on the date shown below.
CITY OF CARLSBAD
By:
Authorized Signature
Printed Namerritle
Dated:
SUMTOTAL ~YSTEMS LLC
By:
Authorized Signature
Printed Namerritle
Dated:
Signature page to Amendment Number 2 between Sum Total and City of Carlsbad
City of Carlsbad, Arndt 2, (042715)SA
CONFIDENTIAL
Page 2 of2
MASTER SERVICES AGREEMENT ZJ ORIGJ · .. \L
This Master Services Agreement is made effective October 3, 2012 ("Effective Date'), by and between SumTotal Systems, Inc.,
a Delaware corporation ("we," "us" or "Sum Total Systems") and City of Carlsbad ("you")
1. Definitions. Capitalized terms shall be defined
as set forth below, or elsewhere in this Agreement.
(a) "Customer Materials" means any data or
materials not provided by us that are included in any
Services Deliverable, such as technical information and
functional specifications, user data, logos, photographs,
compilations of facts, artwork, animations, video or audio
files, or source materials for any of the foregoing.
(b) "Services Deliverables" means the items
to be delivered to you in connection with services we
perform pursuant to a Statement of Work, such as
consulting reports, on-site training classes, software
integration work or software modifications.
2. Performance of Services.
(a) Statements of Work. Each professional
services project we undertake shall be described in
statements of work (each a "Statement of Work") setting
forth the agreed upon specifications, project schedules,
delivery dates, Services Deliverables, pricing and payment
terms. Both parties shall execute each Statement of Work
and each is incorporated herein by this reference. The
terms of a Statement of Work will control over any
conflicting terms in the Agreement.
(b) Delivery and Cooperation. We will
provide the Services Deliverables according to the agreed
delivery schedule set forth in the applicable Statement of
Work. You acknowledge that your cooperation is essential
to the timely performance of our services. You will, to the
extent required in connection with the performance of our
services: (i) provide us with any necessary Customer
Materials; (ii) provide us with any necessary access to your
personnel, facilities or data; (iii) cause the appropriate
personnel to cooperate with us as required for us to
provide our services, including responding promptly to
questions or issues, and (iv) make any payments when
due. Your delay or failure to do so shall excuse any
resulting failure by us to meet the delivery schedules set
forth in the Statements of Work. If you fail to do any of the
foregoing, both parties will cooperate in good faith to
develop a revised written delivery schedule and written
Statement of Work or change order signed by both parties
with new pricing.
(c) Place of Performance. If our personnel,
agents or representatives are required to travel to a
location other than one of our facilities, you will pay or
reimburse us upon invoice for all reasonable travel
expenses including airfare, ground transportation, lodging
and meals for personnel required to travel. We will adhere
to our corporate travel policies and provide a copy, unless
other agreements are made prior to undertaking a project.
Services to be provided on-site at your facilities will be
scheduled in advance by agreement of each party. We will
use reasonable efforts to accommodate any requested
change in the scheduled dates for on-site services, subject
to the availability of appropriate personnel. You will also
reimburse us upon invoice for our out-of-pocket expenses
in connection with the performance of services as set forth
Master Services Agreement
[Rev. 11.12.08]
-1-
in the applicable Statement of Work. At your request, we
will provide receipts or other reasonably satisfactory
evidence of such expenses.
(d) Qualified Personnel. We will provide all
services in accordance with current industry standards and
practices using qualified personnel with the necessary
skills, qualifications and experience to provide the Services
Deliverables in accordance with the applicable Statement
of Work. All personnel providing services will be our full-
time employees acting within the scope of their
employment and under obligation to assign all rights in the
Services Deliverables to us, or will be independent
contractors under written obligation to assign all such
rights to us.
3. Changes to Services Dellverables.
(a) Changes to Project Scope. You may
request changes to the scope of the Statements of Work.
We will use commercially reasonable efforts to
accommodate requested scope changes, subject to this
Section. Any scope changes shall be subject to mutual
agreement and shall be set forth in a new Statement of
Work or a written change order setting forth the changes to
the Services Deliverables and any modifications to the
delivery dates, payment terms and agreed pricing.
(b) Changes to Non-functional Elements.
You acknowledge that certain non-functional or aesthetic
elements of the Services Deliverables such as screen
displays and user interface design can vary greatly without
impact on the functional or performance specifications.
We will incorporate any nonfunctional or aesthetic
elements specified in the Statements of Work into the
Services Deliverables. and will work together with you in
the design of such nonfunctional or aesthetic elements. If
you want to change the nonfunctional or aesthetic
elements of any Services Deliverable which meets the
functional and performance specifications and otherwise
complies with the Statements of Work, then you agree to
compensate us at a mutually agreed price set forth in a
change order or at our then current hourly rates for any
additional time required to make the nonfunctional or
aesthetic elements of the Services Deliverables
satisfactory.
4. Services Payment Terms.
(a) General. Unless set forth elsewhere in
this Agreement, all payments are due on net 30-day terms
from invoice date. Payment terms in this Agreement are
subject to credit approval in our reasonable discretion and
may be changed based on your financial position or
payment history. You agree to pay a finance charge of
1 5% per month on all past due amounts. All prices and
payments in this Agreement are exclusive of all taxes, and
you agree to pay all national, state and local sales, use,
value-added and other taxes, customs duties and similar
tariffs and fees based on services provided hereunder
other than taxes imposed on our net income.
CONFIDENTIAL
(b) Time and Materials Billing. Unless
otherwise stated in the Statement of Work, you will pay us
at the then-current hourly rate for our employee or
subcontractor who is performing the work. Rates are
subject to change. We will invoice you monthly at the end
of each month at the billing rates set forth in the
Statements of Work for work performed on each Statement
of Work during the previous month. Invoices will include a
summary of all time expended for each personnel
classification providing services during the month.
5. Ownership.
(a) Customer Materials. The Customer
Materials are owned by you or your suppliers and are
protected by United States copyright laws and international
treaty provisions.
(b) Services Deliverables The Services
Deliverables, documentation and training materials we
provide are owned by our suppliers or us and are protected
by United States copyright and trade secret laws and
international treaty provisions. Any rights not expressly
granted herein are reserved to us. We grant to you, at no
additional cost, a limited (during the period of time which
you have a license to the SumTotal software, worldwide,
revocable, royalty-free, fully paid-up license, to use the
Service Deliverables.
6. Warranties.
(a) By SumTotal Systems. For a period of
90 days following delivery of a Services Deliverable, we
warrant that the Services Deliverable, as provided by us,
will in all material respects conform to and perform in
accordance with the mutually-agreed specifications You
must report any breach of the foregoing to us in writing
pursuant to Section 11 (d) of this Agreement within the
warranty period. Your exclusive remedy for a breach of
this warranty is the correction of any material reproducible
nonconformity in the Services Deliverable so that it
conforms to this warranty If we determine that we are
unable to correct the Services Deliverable after using
commercially reasonable efforts to do so, then our sole
and exclusive obligation shall be to refund the fees actually
paid for such Services Deliverable provided that you
discontinue all use of the Services Deliverable and certify
that you have done such and have destroyed all copies in
your control.
(b) Warranty Disclaimer. EXCEPT FOR THE
WARRANTIES EXPRESSLY SET FORTH IN SECTION
6(a) OF THIS AGREEMENT, THE SERVICES
DELIVERABLES ARE PROVIDED "AS IS" AND WE
EXPRESSLY DISCLAIM ANY EXPRESS IMPLIED OR
STATUTORY WARRANTIES AND CONDITIONS
(INCLUDING THOSE BY OUR SUPPLIERS), INCLUDING
ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES
THAT THE SERVICES DELIVERABLES WILL BE FREE
OF INTERRUPTIONS OR ERRORS. Some jurisdictions do
not allow limitations on how long an implied warranty or
condition lasts, so the above limitation may not apply to
you. THIS LIMITED WARRANTY GIVES YOU SPECIFIC
Master Services Agreement
[Rev. 11.12.08]
-2-
LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS
WHICH VARY FROM JURISDICTION TO JURISDICTION.
7. Indemnification.
(a) Claims Related to Services. Provided
that you comply with the procedures set forth in Section
7(e) and subject to Section 7(b), we will, at our expense
and under our control (including selection of counsel),
defend and/or settle any claim, suit or proceeding brought
by a third party against you or your officers, directors,
employees, agents and affiliates alleging that the Services
Deliverable, as provided by us, infringes any copyright,
trademark, trade secret or U.S. patent issued as of the
date of this Agreement. In addition, we will pay any
judgment awarded against you or any settlement amount
agreed to by us and, subject to Section 7(e), any
authorized expenses incurred by you.
(b) Exclusions. We will have no obligation
under Section 7(a) with respect to any claim of
infringement arising out of or based upon (i) your
modification of the Services Deliverable or its combination
or use with programs not supplied by us or its use in a
manner not permitted by this Agreement, where such
infringement is the result of such modification, combination
or use; (ii) use of the Services Deliverables that is not
strictly in accordance with the terms of this Agreement; (iii)
your use of other than the most recent version of the
Services Deliverable provided by us, where such
infringement would have been avoided by your use of the
most recent version of the Services Deliverable; or (iv)
Customer Materials used with or incorporated in a Services
Deliverable.
(c) Injunction. If your use of a Services
Deliverable is or is likely to be enjoined, we may, without
limiting our indemnity obligations hereunder, procure the
right for you to continue to use the Services Deliverable or
modify the Services Deliverable in a functionally equivalent
manner so as to avoid such injunction. If the foregoing
options are not available on commercially reasonable
terms and conditions, we may require the return of any
such Services Deliverable and refund to you amounts paid
for such Services Deliverable less a credit for use based
on straight line depreciation applied on a quarterly basis
over five years from the date of delivery of the Services
Deliverables.
(d) Claims Related to Customer Materials.
Provided that we comply with the procedures set forth in
Section 7(e), you will, at your expense, defend and/or
settle any claim, suit or proceeding brought by a third party
against us or our officers, directors, employees, agents
and affiliates and arising out of or related to the Customer
Materials (either alone or as incorporated into a Services
Deliverable). In addition, you will pay any judgment
awarded against us or any settlement amount agreed to by
you and, subject to Section 7(e), any authorized expenses
incurred by us.
(e) Procedure. If one party (the
"Indemnitee") receives any notice of a claim or other
allegation with respect to which the other party (the
"Indemnitor") has an obligation of indemnity hereunder,
then the Indemnitee will in order to qualify for
CONFIDENTIAL
Indemnification under this Section, within 15 days of
receipt of such notice, give the Indemnitor written notice
pursuant to the notice provision set forth in Section 11 (d) of
this Agreement, of such claim or allegation setting forth in
reasonable detail the facts and circumstances surrounding
the claim. The Indemnitee will not make any payment or
incur any costs or expenses with respect to such claim,
except as requested by the Indemnitor or as necessary to
comply with this procedure. The Indemnitee will not make
any admission of liability or take any other action that limits
the ability of the Indemnitor to defend the claim. The
Indemnitor shall immediately assume the full control of the
defense or settlement of such claim or allegation, including
the selection and employment of counsel, and shall pay all
authorized costs and expenses of such defense. The
Indemnitee will fully cooperate, at the expense of the
Indemnitor, in the defense or settlement of the claim. The
Indemnitee shall have the right, at its own expense, to
employ separate counsel and participate in the defense or
settlement of the claim. The Indemnitor shall have no
liability for costs or expenses incurred by the Indemnitee,
except to the extent authorized by the Indemnitor or
pursuant to this procedure.
(f) Exclusive Remedies. The indemnity and
other remedies set forth in this Section shall be the
exclusive remedies of the parties with respect to any actual
or alleged infringement of any intellectual property rights.
8. Limitation of Liability.
(a) IN NO EVENT WILL WE OR OUR
SUPPLIERS BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES OR LOST PROFITS ARISING
FROM, CONNECTED WITH, OR RELATED TO THIS
AGREEMENT, WHETHER SUCH LIABILITY ARISES
FROM ANY CLAIM BASED UPON CONTRACT,
WARRANTY, TORT OR OTHERWISE. Some jurisdictions
do not allow limitation or exclusion of incidental or
consequential damages, so the above limitation or
exclusion may not apply to you.
(b) IN NO EVENT SHALL OUR
AGGREGATE CUMULATIVE LIABILITY FOR ANY
DAMAGES, DIRECT OR INDIRECT, IN CONNECTION
WITH ANY SERVICES DELIVERABLE EXCEED THE
AMOUNT PAID HEREUNDER WITH RESPECT TO SUCH
SERVICES DELIVERABLE WHETHER SUCH LIABILITY
ARISES FROM ANY CLAIM BASED UPON CONTRACT,
WARRANTY, TORT OR OTHERWISE. THE
LIMITATIONS OF THIS SECTION 8(b) DO NOT APPLY
TO OUR OBLIGATION OF INDEMNITY PURSUANT TO
SECTION 7. WE HEREBY DISCLAIM, TO THE EXTENT
PERMITIED BY APPLICABLE LAW, ALL WARRANTIES
BY OUR SUPPLIERS AND ALL LIABILITY BY
SUPPLIERS FOR ANY DAMAGES, WHETHER DIRECT,
INDIRECT, OR CONSEQUENTIAL, ARISING FROM,
CONNECTED WITH, OR RELATED TO THE USE OF THE
HOSTING SERVICES
9. Term and Termination.
(a) Term and SumTotal Systems
Termination. The term of this Agreement will be one year
from the effective date, unless terminated as provided
herein. Thereafter, this Agreement will automatically
Master Services Agreement
(Rev. 11.12.08]
-3-
renew for successive one ( 1) year terms, unless terminated
as provided herein. SumTotal Systems may terminate this
Agreement if you fail to comply with any of the terms and
conditions hereof (including payment terms) and you fail to
correct such non-compliance within 30 days following
notice by Sum Total Systems. Any obligation of either party
which accrued prior to termination, including without
limitation any payment due, and Sections 4 through 11
shall survive the termination of this Agreement.
(b) Termination of Projects -Generally. You
may terminate any Statement of Work for any reason upon
30 days prior written notice to us. Subject to applicable
law, we may terminate any active Statements of Work if: (i)
a receiver is appointed for you or your property; (ii) you
make an assignment for the benefit of your creditors; (iii)
any proceedings are commenced by, for or against you
under any bankruptcy, insolvency or debtor's relief law; or
(iv) you commence steps to liquidate or dissolve. Our
obligation to provide further services on a project shall
cease upon termination of the applicable Statement of
Work. Termination of this Agreement shall also terminate
all then current Statements of Work, unless the parties
otherwise agree. If any particular Statement of Work is
terminated for any reason other than an uncured breach by
us, then we shall deliver the work completed on the
Services Deliverables then in process and be paid for all
services performed through effective date of termination
based on the actual time expended for time and materials
projects. You will not be entitled to any refund of amounts
previously paid under a Statement of Work if you elected
such early termination.
(c) Effect of Bankruptcy. In the event that
you become the subject of any voluntary or involuntary
proceeding bankruptcy, liquidation, dissolution,
receivership or attachment or make a general assignment
for the benefit of creditors, amounts that have been paid to
us hereby deemed earned upon receipt and are our sole
property, irrespective of whether goods or services have
been delivered and may be applied, in whole or in part, in
satisfaction of any obligations owed by you to us under this
Agreement or any other agreement between you and us.
10. Confidential Information.
(a) Definition. "Confidential Information·
means information disclosed by one party (the "Disclosing
Party") to the other (the "Receiving Party") that is in written,
graphic, or other tangible form and is marked "Confidential"
or "Proprietary". Our Confidential Information includes any
and all trade secrets in the Software and documentation,
as well as this Agreement.
(b) Obligations. Each party will protect the
other party's Confidential Information with at least the
same care that it uses to protect its own information of
similar importance, but with at least reasonable care. Each
party will only use the other's Confidential Information for
the purposes of this Agreement, and will only disclose the
other's Confidential Information to those of its employees
or contractors who need to know it for the purposes of this
Agreement, and who have agreed in writing to protect such
Confidential Information with at least the care required in
this Agreement. Each party will return the other party's
CONFIDENTIAL
Confidential Information after the other party's request or
upon termination of this Agreement.
(c) Exclusions. The obligations described in
Section 10(b) do not apply to Confidential Information that
the Receiving Party can prove: (i) became publicly known
through no fault of the Receiving Party; (ii) it obtained from
a source that is not prohibited from disclosing it; (iii) it
developed without using the Disclosing Party's Confidential
Information; (iv) it possessed before the Effective Date as
shown by the Receiving Party's files and records; or (V)
any record or document that would be subject to disclosure
under the California Public Records Act (Government Code
§§ 6250-6270).
(d) Public Disclosure Request. If City
receives a request to disclose any Confidential Information
under any Public Information Act, Open Records Act or
similar law ("Request"). the City shall immediately notify
SumTotal Systems and prior to disclosure give SumTotal
Systems an opportunity to take any protective action it
deems appropriate. If SumTotal Systems has not
responded timely to the Request, as defined by the
applicable law for which the Request is made pursuant to,
the City may, in its sole discretion and without being in
breach of this Agreement, respond to the Request as the
City deems appropriate. In the event that SumTotal
Systems directs the City not to disclose the Confidential
Information materials sought pursuant to the Request,
SumTotal Systems will indemnify City against any losses,
including reasonable attorney fees and costs, sustained
arising from the non-disclosure of the Confidential
Information material requested in the Request, except if
the costs were incurred as a result of an omission by the
City. City, in its sole discretion may tender the Request to
SumTotal Systems for response, including, any and all
subsequent legal actions or challenges related to the non-
disclosure.
11. Miscellaneous.
(a) Entire Agreement. This Agreement,
including all Statements of Work, contains our entire
agreement with respect to the services provided
hereunder. This Agreement may not be modified except
by written instrument signed by both parties and referring
to the particular provisions to be modified. All terms,
conditions, or provisions which may appear as pre-printed
language or otherwise be inserted within any purchase
order shall be of no force and effect notwithstanding the
acceptance of such purchase order after the date of this
Agreement. If any provision of this Agreement is declared
invalid or unenforceable, then the court shall replace the
invalid or unenforceable provision with a valid and
enforceable provision that most accurately reflects the
parties' intentions and the remaining provisions of this
Agreement shall remain in full force and effect. Without
limiting the generality of the foregoing, you agree that
Section 8 will remain in effect even if Section 6 is found to
be unenforceable in whole or in part. Failure by either
party to enforce any provision of this Agreement will not be
deemed a waiver of future enforcement of that or any other
provision. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an
original for all purposes, and together shall constitute one
and the same agreement
Master Services Agreement
(Rev.11.12.08]
-4-
(b) Governing Law. This Agreement and the
rights and obligations of the parties hereunder shall be
construed in accordance with and shall be governed by the
internal laws of the State of California, excluding its conflict
of law rules, and applicable federal law. The United
Nations Convention on Contracts for the International Sale
of Goods and Uniform Computer Information Transaction
Act is expressly disclaimed. Any suit or other proceeding
to enforce or interpret this Agreement shall be brought in,
and each party hereby consents to the jurisdiction and
venue of, the courts in the State of California, United
States of America or of any federal court located in such
state.
(c) Attorney's Fees. The prevailing party in
disputes concerning this Agreement shall be entitled to the
costs of collections and enforcement, including but not
limited to reasonable attorney's fees, court costs and all
necessary expenses. Notwithstanding anything in this
Agreement to the contrary, in the even of your bankruptcy
or insolvency, we will be entitled to recover from you our
costs and expenses, including, without limitation,
reasonable attorney's fees and costs, that we incur
enforcing and/or otherwise protecting our rights and
remedies under this Agreement or amendments and
modifications thereto.
(d) Notices. All notices, requests, demands
or other communications which are required or may be
given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given {i) on
the date of delivery if delivered by hand or by confirmed
facsimile; {ii) upon the fifth day after such notice is
deposited in the United States mail, if mailed by registered
or certified mail, postage prepaid, return receipt requested,
or (iii) upon the date of the courier's verification of delivery
at the specified address if sent by a nationally recognized
overnight express courier. Notices shall be delivered to the
attention of the individual executing this Agreement at the
address in the preamble, unless changed by notice
pursuant to this Section.
(e) Force Majeure. Neither party shall be in
default if its failure to perform any obligation under this
Agreement (other than obligations to make payments when
due) is caused solely by supervening conditions beyond
that party's reasonable control, including acts of God, war,
terrorism, civil commotion, strikes, labor disputes, Internet
service interruptions or slowdowns, vandalism or "hacker"
attacks, or governmental demands or requirements.
(f) Publicity. You authorize us to publicly
disclose that you are a customer and to use your name
and logo to identify you as a customer. You agree that we
may issue a press release upon execution of this
Agreement announcing this Agreement and describing the
general nature of the solution we provide you We will
obtain your prior approval if we discuss information outside
the scope of the press release in our web site, case
studies, brochures; advertising and other marketing
materials. Except as set forth in this subsection, there
shall be no public announcement of this Agreement or the
relationship between the parties without mutual review and
approval by both parties, except as part of required
governmental filings, SEC filings (forms 1 0-K, 10-Q, etc)
CONFIDENTIAL
. .
quarterly earnings announcements and financial
presentations, or listings of other similar relationships.
(g) Non-solicitation. You will not, during this
Agreement and for a period of one-year following the
completion of any services provided by us hereunder,
directly or indirectly solicit any of our employees to leave
his or her employment with us.
(h) Injunctive Relief. You acknowledge that
the breach or threatened breach of this Agreement could
give rise to irreparable injury to us which would be
inadequately compensated in money damages.
Accordingly, we may seek a restraining order and/or an
injunction prohibiting such breach in addition to any other
legal remedies which may be available. You agree that we
will not be required to post a bond in seeking injunctive
relief under this Agreement.
(i) Export Controls. You agree not to
directly or indirectly export or re-export the Services
Deliverable except as authorized by the laws and
regulations of the United States and any other applicable
jurisdiction. You will not permit the Services Deliverable to
be accessed and used at any location or by any person
that would violate such laws and regulations. You will
defend, indemnify and hold us harmless from and against
any violation of such laws or regulations by you or any of
your agents, officers, directors, or employees.
(j) Assignment. This Agreement (and any
amendments or modifications thereto) and any rights or
licenses granted to you hereunder are non-transferable,
non-exclusive, non-assignable, limited and personal to
you . You shall not assign your interest in the Agreement
without our prior written consent, which consent shall not
be unreasonably withheld. We may transfer and/or assign
some or all of this Agreement without prior written notice to
you or your consent. This Agreement will inure to the
benefit of and be binding upon the party's successors and
permitted assigns. Unless otherwise specifically agreed to
by the non-assigning party, no assignment by either party
shall relieve the assignor from its obligations pursuant to
this Agreement.
The parties have executed this Agreement as of the date first written above.
CITY OF CARLSBAD
By: . .,....--,-=...,~~~=--
Authorized Signature
rdltn r/at--tes
Printed Name tfcli~ Ct~ /f{q~
Title !D~rjt:J-
Date
Approved as to Form:
Master Services Agreement
[Rev 11 12 08)
SUMTOTAL SYSTEMS, INC.
By:-~~=::....!!· ~~--L-....:....:...._==-=·-..::.:_· -
Authorized Signature •
Mike Kaminski
Printed Name Corporate Controller
Title
Date
-5-
Approved
SumTotal
Legal
CONFIDENTIAL