HomeMy WebLinkAbout02-22-2005 ITEM VIII-B-5X 5+
CITY OF ;00%
AGENDA BILL APPROVAL FORM
WASH[NGTON
Agenda Subject:
Date:
Resolution No. 3823
February 15, 2005
Department:
Attachments:
Budget Impact:
Legal
Resolution No. 3823
Administrative Recommendation:
City Council adopt Resolution No. 3823.
Background Summary:
Resolution No. 3823 authorizes an agreement with West Publishing Corporation for Pro Law Software.
The City Attorney's office identified the need to automate repetitive tasks, store case information
efficiently, and improve document management capabilities to maximize staff efficiency and customer
service both internally and externally. The City Attorney's office and Information Services explored
available resources and analyzed the needs of the department and identified the best available software
as Pro Law offered by West Publishing Corporation, d/b/a Thomson Elite. Funds for the software
purchase is included in the 2005 Budget.
A2.1.2
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building ❑ M&O
❑ Airport ❑ Finance
❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv.
❑ Finance ❑ Parks
❑ Human Services ❑ Planning & CD
❑ Fire ❑ Planning
❑ Park Board ❑Public Works
❑ Legal ❑ Police
❑ Planning Comm. ❑ Other
❑ Public Works ❑ Human Resources
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until
Tabled
Councilmember: Backus Staff: Heid
Meeting Date: February 22, 2005 Item Number: VIII.B.5
AUBURN * MORE THAN YOU IMAGINED
RESOLUTION NO. 3 8 2 3
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE AN AGREEMENT WITH WEST PUBLISHING
CORPORATION d/b/a THOMSON ELITE FOR PRO LAW
SOFTWARE
WHEREAS, the City Attorney's office identified the need to automate repetitive
tasks, store case information efficiently, and improve document management
capabilities to maximize staff efficiency and customer service both internally and
externally, and
WHEREAS, the City Attorney's office and Information Services explored
available resources and analyzed the needs of the department and identified the best
available software as Pro Law offered by West Publishing Corporation, d/b/a Thomson
Elite, and
WHEREAS, funds for the technology enhancements was approved as part of the
2005 budget,
WHEREAS, the City has negotiated a contract with Thomson Elite for Pro Law
Software services, and the City has determined that Thomason Elite is able and
qualified to provide services necessary, at a cost that is acceptable to the City, and it is
therefore appropriate for the City to execute the agreement with West Publishing
Corporation, d/b/a Thomson Elite.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
-----------------
Resolution No. 3823
February 3, 2005
Page 1 of 2
Section 1. That the Mayor and the City Clerk are authorized to execute an
agreement in substantial conformity with the Agreement attached hereto, marked as
Exhibit "A" and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 3. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Dated and Signed this day of 2005
CITY OF AUBURN
PETER B. LEWIS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
AS
Heid, City Attorn
-----------------
Resolution No. 3823
February 3, 2005
Page 2 of 2
Customer Agreement
This CUSTOMER AGREEMENT (the "Agreement") is entered Into between the City of Auburn with a place of business at 25 West Main Street
Auburn, WA 98001 ("Customer") and WEST PUBLISHING CORPORATION dib/a Thomson Elite ("Thomson Elite"), this _day of 200_, (the
"Effective Date'), as follows:
1. Software License
1.1. Grant. Thomson Elite grants Customer a non-exclusive,
non -transferable, limited license to use, and to allow its partners,
shareholders, members and employees to use, the Software listed in
Exhibit A hereto, in object code only (the "Software") for the number
of Seats identified in Exhibit A. A "Seat" is defined as an active log -in
to the Software. Access to the Software may be made from any
workstation connected to the network, including remote workstations,
and such Professional User license may have more than one copy to
allow flexible use from different workstations.
1.2. Copying. Customer may make copies of the Software for
backup purposes only. Each copy made by Customer must include
the copyrighNproprietary rights notice(s) embedded in and affixed to
the Software.
1.3. Other Restrictions. Customer may not loan, lease,
distribute or transfer the Software or copies to third parties, nor
reverse engineer, decompile, disassemble or otherwise attempt to
discern the source code of the components of the Software.
Customer may not use the Software, nor allow the Software to be
used, to provide data management or processing services for third
Parties, Customer is limited to the number of logins based on the
total number of Seats indicated in Exhibit A. Customer may not
reproduce all or any portion of the Software (except as expressly
Permitted in this Agreement), of modify, translate or otherwise create
derivative works of the Software. Customer agrees to notify its
employees and agents who may have access to the Software of the
restrictions contained in this Agreement and to ensure their
compliance with these restrictions.
1.4 Server Code. The server code portion of the Software
('Server Codel may be used. on the Specified Server(s). Customer
may use the Server Code on other servers in addition to the
Specified Servants) upon payment of the applicable additional license
fees to Thomson Elite; provided, however, that if the Specified
Server(s) islare temporarily incapable of operating, the Server Code
may be temporadly installed on another server or servers pending
repair of the Specified Server(s). 'Specified Server" shall mean the
application server, or related application servers, in support of the
production database utilized by the Software and any equivalent
replacement(s) for such server(s). The Specified Server(s) doesldo
not include any training, testing, backup or other non -production
servers.
2. Other Licenses. The Software may be used to access
and use various West Publishing Corporation products and services,
Including Westlaw ('West Services'). All access to and use of such
West services by means of the Software, including any charges for
such access and use, will be governed by the terms of the applicable
West Publishing Corporation user agreement
3. Title. Customer hereby acknowledges and agrees that all
right lige and Interest in and to the Software, the Software User
Manual and any other related materials are, and shall remain, vested
solely in Thomson Elite, and Customer shall not hold itself out as
having any ownership or other rights with respect thereto, except as
specifically granted hereunder. Except as expressly permitted
herein, Customer covenants and agrees that it shall make no use of
the Software, the Software .User Manual or any other related
materials without Thomson Elite's prior written consent.
4. Confidential Information.
4.1 Thomson Elite acknowledges in the course of providing
services at Customers sites) that Thomson Elite may have access
to Customers client list, information belonging to or pertaining to
Ver. 3 January 2005
Customer's clients, Customer's billing information and practices and
financial records that constitute Cuslomers confidential information
("Customer Confidential Information"). Thomson Elite will take
reasonable steps to ensure that the Customer Confidential
Information is not used or disclosed except as expressly permitted by
(his Agreement. Thomson Elite will not permit any third party access
to, in any manner, the Customer Confidential Information, except as
Provided in this Agreement Customer Confidential Information shall
not include information that consists of ideas, concepts, know-how or
techniques relating to the enhancement, customization, installation or
implementation of the Software.
4.2 Customer acknowledges and agrees that the Software
constitutes a valuable proprietary product of Thomson Elite and that
the Software, together with the terms of this Agreement, shall be
referred to as the 'Thomson Elite Confidential Information.'
Customer will take reasonable steps to ensure that the Thomson
Elite Confidential Information is not used or disclosed except as
expressly permitted by this Agreement. Customer vAl not permit any
third party access to, in any manner, the Thomson Elite Confidential
Information, except as provided in this Agreement
5. Fees and Expenses. Fees payable by Customer will consist of
fees for the Software license ('License Fees') and fees for
Implementation and consulting services ('Services Fees'). The
License Fees and Services Fees are set out in Exhibit A. Thomson
Elite will provide maintenance and support services for the Software
in accordance with the Maintenance Terms set out in Exhibit D
hereto ("Maintenance Services'), for the Annual Maintenance Fee.
Maintenance Services begin on Live Operation (as defined in Exhibit
B). The Annual Maintenance Fee for the first year isset forth in
Exhibit A. Maintenance Services shall automatically renew for
successive one year terms upon payment by Customer of the Annual
Maintenance Fee, unless terminated by either party by giving the
other party sixty (SO) days written notice prior to the end of the
existing. term. For subsequent terms the Annual Maintenance Fee
shall be payable annually in advance. Thomson Elite reserves the
right to increase the Annual Maintenance Fee for subsequent terms
and shall give Customer advance notice of such increases. The
implementation, consulting and training services to be provided are
set forth in Exhibit A. The License Fees set forth in Exhibit A were
based upon the number of professionals set forth In Exhibit A. If the
Customer's number of professionals increases above the limit set
forth in Exhibit A, Customer wig be required to pay additional License
Fees to use the Software. Thomson Elfte fees are exclusive of
sales, use, ad valorem, personal property and other taxes, which are
the sole responsibility of Customer. Ali reimbursable costs consisting
of but not limited to reasonable travel, acoDmmodation and related
Incidental expenses incurred in providing the implementation and
consulting services are the responsibility of Customer and shall be
payable upon receipt of invoice from Thomson Elite. Customer will
pay all invoices in full within 30 days from the date of invoke. ff full
Payment is not made, Customer may be charged up to the maximum
legal interest on any unpaid balance. Thomson Elite may withhold
and or delay delivery of'soflware or services If Customer falls to
cora I with this Section 5.
Page 1 of 9
6. WARRANTIES, REMEDIES AND LIMITATION OF LIABILITY.
6.1 Thomson Elite warrants that for the period ending ninety
(90) days after Live Operation (the 'Warranty Period') the Software
will substantially conform to the Software User Manual. Thomson
Elite does not warrant the results produced by Legalex rules. It is
Customer's responsibility to check the results of the Legalex court
rules date calculations against the actual court rules.
6.2 Thomson Elite will not be responsible to the extent that the
Software fails to perform as warranted due to one or more of the
following (collectively the `Excluded Items"): (1) the malfunction of
software not provided by Thomson Elite, (2) the malfunction of
hardware, (3) Customets failure to follow the instructions set forth in
the Software User Manual, (4) material changes in the operating
environment not authorized by Thomson Elite, (5) modifications to or
changes in the Software not made or suggested by Thomson Elite or
(6) Customer's failure to implement and maintain a proper and
adequate backup and recovery system for the Thomson Elite
database or user files. If Thomson Elite discovers that a failure is
caused by one or more Excluded Items, Thomson Elite reserves the
right to charge Customer for its work in investigating such failure. At
Customer's request and at a fee to be agreed upon, Thomson Elite
will thereafter assist Customer in resolving such failure. It is
Customer's responsibility to develop and implement a proper and
adequate backup and recovery system.
THE FOREGOING LIMITED WARRANTY, AND THE
WARRANTY SET FORTH IN SECTION 7.1, ARE EXCLUSIVE AND
IN LIEU OF ALL OTHER WARRANTIES. THOMSON ELITE MAKES
NO OTHER WARRANTY, EXPRESS OR IMPLIED. ANY IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE. EXPRESSLY EXCLUDED,
Thomson Elite does not warrant the level of performance of the
Software or that eadier versions superseded by new versions
(whether or not distributed to Customer) will continue to be capable
Of access to and use with West Publishing Corporation services.
Thomson Elite does not warrant that the Software will operate
without interruption or be error -free.
6.3 In no event shall Thomson Elite's, or its officers,'
employees; directors,' parents, affiliates' or subsidiaries,' liability to
Customer arising out of or related to this Agreement, or the licensing,
delivery, use or performance of the Software or services provided
under this Agreement or any breach of this Agreement, whether
based on an action or claim in contract ordort, including negligence,
strict liability or warranty, except liability for bodily injury: (I) from the
Effective Date through the end of the Warranty Period, exceed the
License Fees paid hereunder, (it) after the Warranty Period, exceed
the Annual Maintenance Fee for tite year in which the claim arises;
and (iti) under any amendment to this Agreement exceed the amount
payable by Customer pursuant to such amendment In no event will
Thorson Elite be liable for any lost profits or other damages,
including indirect, incidental, exemplary, special or consequential
damages arising out of this Agreement or the use of the Software
licensed hereunder, even if Thomson Elite has been advised of the
possibility of such damages.
6A Remedies. Customer shall have the following remedies:
6.4.1 Termination for Breach. In the event that Thomson
Elite materially breaches any of its obligations under this Agreement
prior to or during the Warranty Period, including breach of a warranty
or warranties provided herein, Customer may terminate this
Agreement as provided in this Section 6.4.1. No termination shall
occur unless Thomson Elite has been given written notice of the
breach and fails to cure the breach, or to submit, to Customer's
Ver. 3 January 2005
reasonable satisfaction, a plan for cure, within thirty days of receipt of
notice, Upon such termination, Thomson Elite shall provide a refund
as provided. in Section 6.4.2.
6.4.2 Refund Upon Termination. Upon termination by
Customer pursuant to this Section 6.4, Thomson Elite will refund to
Customer all License Fees received by Thomson Elite as of the date
of termination upon return of the Software.
6.5 Exclusive Remedies. The remedies in sections 6.4 and
7.1 are Customer's exclusive remedies and are in lieu of all other
legal or equitable remedies and all liabilities or obligations on the part
of Thomson Elite for damages (except for bodily injury) arising out of,
relating to, or in connection with this Agreement, including, but not
limited to, the licensing, delivery, installation, use or performance of
the Software or the integration of the Software with other software or
hardware.
7. Indemnification.
7.1 Infringement Claims. Thomson Elite represents and
warrants that it has sufficient right and interest to grant the rights
herein. At its sole expense, Thomson Elite shall defend, indemnify
and hold Customer harmless from copyright, trade secret and U.S.
patent infringement claims based upon the Software in the form
delivered by Thomson Elite, including paying any judgment, attorney
fees, costs and expenses associated with such claim.
7.2 Without limiting its obligations under Section 7.1, in the
event a claim of infringement or misappropriation is made against
Thomson Elite or Customer with respect to the Software, Thomson
Elite, for the purpose of settling such claim, may, at its option, in
respect of such allegedly infringing Software:
(i) substitute fully equivalent non-infinging software; or
(ii) modify the Software so that it no longer infringes but
remains functionally equivalent -
If, as a result of such claim, Customer or Thomson Elfte is
permanently enjoined from using the Software by a final, non -
appealable decree from a court of competent jurisdiction, Thorson
Elite will take one or both of the actions set forth in (i) and (ii) above
or will obtain for Customer at Thomson Elite's expense the right to
continue to use the Software. If none of these options can be
accomplished in a reasonable fime or are not commercially
reasonable, Thomson Elite will refund to Customer the License Fee
paid as amortized over a 66 month period from the Effective Dale
upon return of the Software.
7.3 Thomson Elite's obligation to indemnify Customer pursuant
to this Section 7 is contingent upon Thomson Elite being given
prompt notice and control of, and detailed information with regard to,
any such claim, suit or proceeding. Customer shall have the right to
participate at its own cost in the defense of any such claim or action
through legal counsel of its choosing. Customer shall not settle any
such claim or action without Thomson.Elite'aprior written consent
7.4 This section 7 contains the entire warranty by Thomson
Elite and the exclusive remedies of Customer with regard to any
claimed infringement arising out of or based upon the Software used
by Customer.
8. Term and Termination. This Agreement will continue in effect
until terminated as provided herein. Thomson Elite may terminate
this Agreement upon giving thirty (30) day written notice of
termination to Customer If Customer commits a material breach of
this Agreement and fails to cure such breach during the notice
period. Customer may terminate this Agreement for cause as
provided in Section 6 above. Upon termination of this Agreement for
any reason, the license granted to Customer and all other rights
granted to Customer under this Agreement shall immediately cease
and Customer shall immediately return to Thomson Elite, or certify
Page 2 of 9
the destruction of, all copies of the Software and related manuals and
documentation in Customers possession.
9. Limitation of Claims. Except for claims relating to the
Software Fees or improper use of the Software, no claim, regardless
of form, which in any way arises out of this Agreement, may be
brought more than one year after the basis for the claim becomes
known to the party desiring to assert it.
10. General Provisions:
10.1 Effect of Agreement. This Agreement (including the
exhibits hereto) embodies the entire understanding between the
parties with respect to the subject matter of this Agreement and
supersedes any and all prior understandings and agreements, oral or
written, relating to the subject matter. Any amendment must be in
writing and signed by both parties.
10.2 Force Majeure. Thomson Elite shall not be liable for any
delay or failure in performing hereunder if caused by factors beyond
its reasonable control, such as acts of God, acts of any government,
war or other hostility, civil disorder, the elements, fire, explosion,
powerfallure, equipment failure, industrial orlabor dispute, inability to
obtain necessary supplies and the like.
10.3 Notices. Except as otherwise provided herein, all notices
must be in writing to Thomson Elite, clo Thomson Elite, 5100 West
Goldeaf Circle, Suite 100, Los Angeles, CA 90056, Attention:
Contracts Administration, and to Customer at the address first set
forth above.
10A General Provisions. This Agreement will be governed
by and construed under the law of the state of California, U.S.A.
without regard to conflicts of law provisions. Neither this Agreement
nor any part or portion may be assigned, sublioensed or otherwise
transferred by Customer without Thomson Elite's prior written
consent. Any attempt to assignor transfer in violation of this Section
shall be null and void. Should any provision of this Agreement be
held to be void, invalid, unenforceable or illegal by a court, the
validity and enforceability of the other provisions will not be affected
thereby. Failure of any party to enforce any provision of this
Agreement will not constitute or be construed as a waiver of such
provision or of the right to enforce such provision. The headings and
captions contained in this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
10.5 Export The Software and its related documentation may
not be exported outside of the United States and Canada.
10.6 U.S. Government Restricted Rights. Use, duplication or
disclosure by the Government is subject to restrictions set forth in
subparagraphs (a) through (d) of the Commercial Computer -
Restricted Rights clause at FAR 52.227-19 when applicable, or in
subparagraph (c)(1)(1) of the Rights in Technical Data and Computer
Product clause in DFARS 252.227-7013, or in subdivision (c)(1) and
(c)(2) of the Commercial Computer Product — Restricted Rights
clause at 48 CFR 52.227-19, as applicable, and in sunder clauses in
the NASA FAR Supplement,
10.7 Survival. Sedans 4,'S, 6, 7, 8,. and 10 shall survive any
terninatlon of this Agreement.
CUSTOMER
Signature
Name (please print)
Title
Date
Ver. 3 January 2005
Thomson Elite
Signature
Name (please print)
Title
Date
Page of
EXHIBIT A - FEES
PROPOSAL- LICENSE FEES AND SERVICE FEES
CITY OF AUBURN
JANUARY 28 2005
SOFTWARE AND FEES SCHEDULE - Software License Fees and Service Fees
The License Fees set forth in this Exhibit are due and payable as follows:
50% upon Customer's signature of the Agreement
50% thirty (30) days following Live Operation
Service Fees shall be billed monthly as incurred.
PROLAW GOVERNMENT
Case Management Relationship Management Outlook/GroupWise/Notes
Contact Management Task Management Integration
Conflicts Time Entry !Manage/Docs/Worldox Integration
Document Assembly 32-bit SOL Marketing
Document Management ProLaw Portal Records Management
Docketing Drag and Drop Customization Report Writer
10 Seats — License Fees (Software & Installation)...................................................................... $7,430.00
Additional license at $743.00/seat plus $149.00/professional/annum Annual Maintenance Fee
TRAINING, CONVERSION AND CONSULTING SERVICES: SERVICE FEES,
Front Office Administrative Training (not to exceed 16 hours) .................................................... $ 2,400.00
or
Front Office Administrative Training/Scoping (not to exceeed 32 hours) .................................... $ 4,800.00
Includes 3 -days on-site and 8 hours producing the Scoping Summary document
Project Management (not to exceed 16 hours).............................................................................. 2,400.00
Front Office Consulting and Screen Design (not to exceed 16 hours) ........................................... 2,400.00
Front Office Training (not to exceed 16 hours).............................................................................. 21400.00
Back Office Administrative Training/IT Training (not to exceed 4 hours) ......................................... 600.00
Back Office Project ManagementGonsufting/Implementation (estimated 8 hours) .......................1,200.00
Back Office Training (estimated 4 hours).......................................................................................... 600.00
Conversion(estimated)'.......................................................................................................................by bid
CustomIntegration (eatlmated)'...........................................................................................................by bid
ESTIMATED PRICE (excludes expenses and any applicable tax) ...........
........ :................ :......... $19,430.00
Annual Maintenance Fee (12 months)............................................................................................1,490.00
Legalex Court Rules (per County Superior Court).............................................................................89.00
Legalex Court Rules (per Standing Orders)........................................................................................49.00
LegalexCourt Rules (per.USDC)..........................................................................................................99.00
LegalexCourt Rules (per USBC).......................................................................................................... 99.00
Ver. 3 January 2005 Page 4 of 9
I . The number of training and consulting days quoted is based upon similar sized organizations. Additional days may be required and charged to
Customer depending upon the final implementation of the system. Should Customer delay their implementation of the additional Software beyond
one (1) year of the Effective Date, Customer shall pay, at the end of such one (1) year period, the Implementation service fees at Thomson Elite's
then current service rate.
2. Costs quoted do not include travel and reimbursable expenses. Prolaw does not charge for travel time. Service dates that are cancelled by
Customer less than 10 business days prior to scheduling will be billed to the Customer at 50% of Thomson Elite's costs. In addition, any non-
refundable travel expenses will be charged to Customer.
* Conversion estimate based on
* Custom integration estimate based on
NOTE: ............................... Signed contract must be received by 3/31/05 in order to receive current pricing.
EXHIBIT B - SERVICES
1. Scope of Services Addendum.
1.1 This Services Addendum ("Addendum") is part of the
Customer Agreement between the parties ("Agreement") which is
incorporated as if fully set forth herein. This Addendum shall apply to
all services that are provided by Thomson Elite to Customer during
the term of the Agreement including implementation, customization,
training and any other services provided by Thomson Elite to
Customer.
2. Definitions.
2.1 Definitions. As used in this Addendum, the following
terms shall have the meanings set forth below. Capitalized terms not
otherwise defined shall have the meanings set forth in the
Agreement.
"Enhancements" shall mean modifications to the Software performed
by Thomson Elite, or its subcontractor, for Customer during the term
of this Services Addendum.
"Service Fees" shall mean the fees payable to Thomson Elite for
conversion, implementation, training or other services provided under
a Statement of Work pursuant to this Services Addendum.
3. Services.
3.1 Statements of Work. Any services to be provided by
Thomson Elite to Customer shall be set forth in a separate Statement
of Work executed by the parties that will describe the work to be
performed. Thomson Elite has no obligation to provide services
except as specifically set forth in a Statement of Work executed by
the parties or in the Maintenance Addendum.
3.2 Customer obligations. When Thomson Elite performs
any services at Customers facility, Customer shallbe responsible for
Providing a safe and appropriate work space and access to all
terminals, materials and related resources that may be reasonably
required by Thomson Elite for timely performance of its obligations
under this Services Addendum. Customer shall provide to Thomson
Elite in a timely manner any information, assistance, review,
feedback or approvals that are the responsibility of Customer.
3.3 Enhancements. Any Enhancements provided hereunder
shall be deemed incorporated into the Thomson Elite Software for
the purposes of the provisions of the Agreement regarding license,
restrictions on use, confidentiality and infringement indemnification:
4. Expenses.
4.1 All reimbursable costs consisfing of but not limited to
reasonable travel, accommodation and related incidental expenses
are the responsibility of Customer and shall be payable upon receipt
of Invoice from Thomson Elite. All reimbursable costs consisting of
but not hi to reasonable travel, accommodation and related
Incidental expenses are the responsibility, of Customer and shall be
payable upon receipt of invoice from Thomson Elite. Thomson Elite
will provide copies of receipts for expenses that exceed (US)$25.00
upon request of Customer.
5. General Provisions.
5.1 Warranties and Remedies. Thomson Elite warrants that it
will provide the services set forth in any Statement of Work
hereunder consistent with industry standards and in accordance with
such Statement of Work, including any specifications contained in
such Statement of Work, Customer's sole remedy for Thomson
Elite's material preach of its obligations under a Statement of Work
will be to have Thomson Elite reperform the defective services so
that they conform to the warranties provided herein. If Thomson Elite
is unable after a reasonable time to provide conforming services, and
the services relate to the initial implementation of the Software,
Customer may terminate the Agreement pursuant to Section 6.5
thereof f such defective services cause the Software to fail to
conform to the warranties provided in the Agreement.
5.2 Non -solicitation of Employees. Thomson Elite and
Customer each agrees that it will not induce any employee of the
other to terminate his or her employment relationship with the other
party. In addition, Thomson Elite and Customer each agrees that it
will not knowingly employ or offer employment to any employee of
the other who has performed any services related to this Agreement
within one year of the provision of such services,
5.3 Survival. Sections 2, 3.3 and 5 shall survive any
termination of this Addendum.
STATEMENT of WORK - Thomson Elite Implementation and
Conversion
This Statement of Work is part of the Services Addendum between
Thomson Elite and Customer ('Services Addendum'). This
Statement of Work includes the following Exhibits that are attached
hereto and incorporated herein: Exhibit C, Enhancements.
1. Definitions.
As used in this Statement of Work, the following terms shall have the
meanings set forth below. Capitalized terms not otherwise defined
shall have the meanings set forth in the Services Addendum or the
Agreement.
'Final Conversion' shall mean completion of the conversion of
Customer's data as provided in the Project Plan.
'Project Plan' shall mean the mitten plan, approved in writing by the
parties, that includes the project charter, scope statement and project
schedule. The Project Plan sets forth the scope, schedule and
responsibilities of Thomson Elite and Customer for implementation of
the Software, including Software installation and data conversion.
'Strategic Planning Meeting' shall mean the meeting(s) between
Thomson Elite and Customer to prepare the Project Plan.
2. Service Fees.
The Services Fees are due and payable as set forth in the Software
and Fees Schedule attached to the Agreement
3. Enhancements.
Any Enhancements for the Software to be prepared by Thomson
Elite are identified in Exhibit C hereto. If Exhibit C is blank, there are
no Enhancements to be performed by Thomson Elite.
4. Project Managers.
AI or before the Strategic Planning Meeting, each party shall inform
the other of the individual appointed to serve as Its project manager
("Project Manager). The Project Managers shall serve as the
primary contact in regard to coordinating and supervising the
installation of the Software and conversion of the Customer's existing
system, Each party shall be responsible for ensuring that its Project
Manager dedicates sufficient time to fulfill that party's respective
obligation under this Statement of Work. Customer acknowledges
that a change of Project Managers by Customer may result in delays
in the implementation and necessitate an amendment to the Project
Plan.
5. Project Plan and Change Requests.
5.1 Thomson Elite and Customer shall schedule the Strategic
Planning Meeting at a time or times and location to be mutually
agreed for purposes of developing the Project Plan. Thomson Elite
shall present a draft Project Plan for Customer review and comment
within fifteen (15) days after completion of the Strategic Planning
Meeting and the parties shall work to finalize and sign the Project
Plan within the following seven (7) days. The Project Plan may
thereafter only be modified by a Change Order (defined below) or
other written agreement signed by both parties.
5.2 Following execution of the Project Plan, Customer may
submit requested changes to the Project Plan in writing to Thomson
Elite. Thomson Elite shall respond to Customer's change request
within twenty (20) days of receipt Thomson Elite's response (the
'Change Order') shall identify any changes to the Service Fees or
expenses and any charges to the Project Plan (including any
resulting delay charges) that would result from implementing the
change. Customer may, in its discretion, accept the Change Order
by signing the Change Order and returning it to Thomson Elite.
Upon execution by Customer, the Change Order will amend the
Project Plan, and, 9 applicable, the Software and Fees Schedule. If
Customer rejects the Change Order, the Project Plan will remain
unaltered.
6. Training.
Thomson Elite shall make available to Customer as set forth in the
Software and Fees Schedule, training and support for Customer
personnel designated by Customer who are skilled in professional
billing and accounting and practice management systems
('Customers Personnel') to operate the Software. Thomson Elite
shall not be responsible for training replacements for Customers
Personnel who are re -assigned or whose employment with Customer
is terminated except pursuant to a separate statement of work.
T. Implementation and Conversion. -
7.1 Installation of the Software. Thomson Elite and
Customer shall cooperate to identify the hardware and related
communications equipment necessary for installation of the
Software. Installation of all hardware and supporting software is the
responsibility of Customer. Once the oordgumtion of the hardware,
Including the
operating system, conforms to the specifications agreed upon by
Thomson Elite and Customer, Thomson Elite shall install the
Software.
72 Pro -conversion Testing of the Software. After installation
of the Software, Thomson Elite shall test the Software running on the
hardware.
7.3 Conversion of Customer's Database. Customer shall
provide its data in an accurate and balanced form in a mutually
agreed format and shall provide accounting and technical assistance
to the extent reasonably possible.
7.4 Conversion. The general procedures for conversion shall
include:
(a) Provision by Thomson Elite of programs necessary to
convert Customer's data;
(b) Production of mutually agreed on hard copy reports to
confine successful conversion of Customer database; and,
(c) Manual review and balancing of pre -conversion hardcopy
reports with respect to all fields identified in the conversion
planning process, including new fields and computed results
that do not exist on Customer's current system.
The Project Managers shall work to determine the accuracy and
completeness of the conversion based on quantifiable criteria to be
mutually agreed to by Customer and Thomson Elite prior to Final
Conversion.
7.5 Final Conversion, Upon Customer's Project Manager
certifying that the Software functions substantially in accordance with
the Functional Standards, Thomson Elite and Customer shall
proceed with the Final Conversion of Customers then current
database in accordance with the Project Plan. The Final Conversion
shall include:
(a) Establishment of a cutoff date after which all data shall be
loaded onto the Specified Server,
(b) Balancing of pre -conversion and postconversion data
With respect to all fields identified in the conversion planning
process, including new fields and computed results that do not
currently exist on Customer's current system.
The Project Managers shall work to determine the accuracy and
completeness of the Final Conversion based on the conversion
criteria. -
7.6 Live Operation. Upon completion of the Final Conversion,
the reports specified in the Project Plan which are produced by the
Customers prior system shelf be verified and balanced with the
reports produced by the Software. Once the reports are verified and
balanced, Thomson Elite shall issue a report that the Final
Conversion has been successfully completed and that the Software
Is fully operational. Wilkin five (5) days after the date that this report
is Issued Customer shall begin 'Live Operation'; provided, however,
that Customer may not begin Live Operation if more than ten (10%)
of the total of License Fees and Services Fees remains unpaid.
EXHIBIT C — Enhancements
EXHIBIT D - MAINTENANCE TERMS
1. Definitions. As used in these Maintenance Terms, the following terms
shall have the meanings set forth below. Capitalized terms not otherwise
defined shall have the meanings set forth in the Agreement.
"Critical Problem" shall mean a Problem that causes an adverse and
material effect on Customer's ability to utilize the Software according to the
Documentation. Critical Problems are handled in accordance with Section
2.2.1 of this Maintenance Addendum.
'Non -Critical Problem' shall mean a Problem that does not meet the
definition of a Critical Problem, Non -Critical Problems are handled in
accordance with Section 2.2.2 of this Maintenance Addendum.
"Problem" shall mean any failure of the Software to perform in accordance
with the Documentation. Problems are classified as either Critical
Problems or Non -Critical Problems depending on the impact of such
Problem on Customers operations.
"Updates' shall mean any periodic software releases and any release
notes provided by Thomson Elite to coned Critical or Non-Crifical
Problems in the Software.
2. Maintenance Services.
Maintenance Services consist of the following
2.1 Updates. Thomson Elite will provide all Updates for the Software to
Customer. Customer shall be responsible for installing such Updates.
Maintenance Services do not include upgrades to the Software.
2.2 Telephone Support Thomson Elite shall provide telephone support
weekdays (except holidays) from 6:00am to 5:30pm, Pacific Time
("Business Hours"), for the reporting of Problems and for the handling of
Customer questions relating to the operation of the Software.
2.2.1 Critical Problems. Thomson Elite shall respond to a report to its
telephone support line of a Critical Problem within two (2) Business Hours -
Thomson Elite will determine whether the Critical Problem is due to a
defect in the Software or whether it is due to a failure not caused by
Thomson Elite. If the Critical Problem. Is due to a defect, Thomson Elite
shall use its best efforts to correct the defect, or provideCustomerwith a
way to temporarily work around the defect If able to do so, or notify
Customer on a regular basis as to the progress of the corrective efforts
unfit such thine as a correction can be made.
2.2.2 Non -Critical Problems. In response to a report of a Non -Critical
Problem, Thomson Elite will determine whether the Non -Critical Problem is
due to a defect in the Software or whether it is due to a failure not caused
by Thomson Elite. If the Non-CrNcal Problem is due to a defect Thomson
Elite shall use reasonable efforts on a time available basis to correct such
defect, but the correction may await the release of Updates.
3 Telecommunication Charges. Telecommunication charges
associated with diel -up modem support are chargeable to Customer and
will be invoiced monthly at Thomson Elite's direct cost. Payment is due
upon receipt of invoice.
4, Customer Obligations. Customer shall insure that Thomson Elite's
personnel are provided with such information under Customer control as is
reasonably necessary to enable Thomson Elite to comply with its
obligations hereunder.
5. Exclusions.
5.1 Thomson Elite's obligations hereunder shall extend only to: (a) the
latest Update of the Software provided to Customer by Thomson Elite, and
(b) Software that has not been modified or altered in any way by anyone
other than Thomson Elite or under Thomson Elite's direction.
5.2 Maintenance Services shall not include services for "Excluded Items' as
defined in Section 6.2 of the Agreement.
5.3 The Annual Maintenance Charge does not include on-site service calls
made at Customers request (or travel and living expenses associated with
such calls), shipping costs, telephone costs or the costs of any other services
not specifically set forth herein.
6. Remedies.
6.1 If Thomson Elite is unable, after repeated efforts, to remedy a Problem
by correction or replacement of software or a combination thereof, or it
Thomson Elite otherwise materially breaches these Maintenance Terms
and fails to correct such breach within thirty (30) days of written notice
thereof, Customer may terminate Maintenance Services and receive a pro
rata refund of the Annual Maintenance Fee for the then current term.
6.2 The foregoing remedy is exclusive and is in lieu of all liabilities or
obligations for damages arising out or or in connection with Maintenance
Services. Thomson Elite shall have no other liability to Customer whatsoever
arising under these Maintenance Terms.
6.3 Survival. This Section 6 shall survive any termination of Maintenance
Services or of the Agreement -