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City of Tamarac Resolution R-2008-188
Temp. Reso.11530 December 1, 2008 Page 1 of 5 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R2008- /& A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA APPROVING THE PURCHASE OF PERFORMANCE MANAGEMENT AND EMPLOYEE DEVELOPMENT SOFTWARE, AS WELL AS ANCILLARY MAINTENANCE AND SUPPORT SERVICES FROM HALOGEN SOFTWARE, INC., AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AN AGREEMENT UTILIZING A GREATER JACKSONVILLE AVIATION AUTHORITY AGREEMENT FOR A TOTAL NOT TO EXCEED $33,032.30 WHICH INCLUDES THE INITIAL SOFTWARE ACQUISITION AND ANCILLARY MAINTENANCE AND SUPPORT; APPROVING FUNDING FROM THE APPROPRIATE ACCOUNT; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the policy of the City of Tamarac is to conduct annual employee performance appraisals as detailed in Section 9 of the City's Personnel Manual; and WHEREAS, as a result of Sterling employee initiatives, it has been recommended that the City change the current form and format for conducting employee performance appraisals; and WHEREAS, a Performance Management Taskforce has been created to make recommendations for the improvement of the Performance Management and Employee Development process; and 1 Temp. Reso.11530 December 1, 2008 Page 2 of 5 WHEREAS, the Taskforce has recommended that the City purchase software specifically designed to accommodate Performance Management and Employee Development; and WHEREAS, in response to this recommendation, a formal Request for Proposal #08-17R was formally advertised and issued with a due date of July 22, 2008; and WHEREAS, two proposals were received from OnTarget Performance Systems, Inc., and Peoplesmarts; and WHEREAS, an Evaluation Committee was appointed by the City Manager comprised of the Director of Human Resources, the Assistant Director of Parks & Recreation, the Systems and Network Manager, the Fire/Rescue Battalion Chief, the Utilities Operation Manager, the Assistant Director of Public Works, the Public Works Operation Manager, the City Manager's Office Management Analyst I, and the Code Compliance Manager, facilitated by the Purchasing & Contracts Manager; and WHEREAS, the Evaluation Committee reviewed all of the responses received for Request for Proposal #08-17R; and WHEREAS, as a result of the review, the Evaluation Committee determined that neither of the responses were acceptable due to a failure to comply with the scope of services outlined in Request for Proposal #08-17R and/or due to costs in excess of the City's budget; and WHEREAS, the Taskforce re -visited the marketplace to determine if any firms could meet the requirements of the original scope of services; and Temp. Reso.11530 December 1, 2008 Page 3of5 WHEREAS, the Taskforce determined that software provided by Halogen Software, Inc. could provide the necessary functionality within the constraints of the City budget; and WHEREAS, the Jacksonville Aviation Authority has competitively solicited and awarded a contract under Jacksonville Aviation Authority Request for Proposal #08-11-26101 to Halogen Software, Inc., a copy of said award of agreement is attached hereto as Exhibit "1 "; and WHEREAS, City Code Sec. 6-155 allows the Purchasing/Contracts Manager the authority to procure supplies, materials and equipment, which are the subject of contracts with the United States government, or other governmental agencies, and when the best interest of the City would be served; and WHEREAS, Halogen Software, Inc. is the sole economically feasible source for the purchase of this type of software as determined by a market review conducted by the Purchasing and Contracts Manager; and WHEREAS, Halogen Software, Inc. has provided a written quotation which specifically addresses the needs for the City of Tamarac, which includes a promotional discount over and above the pricing provided to the Jacksonville Aviation Authority, attached hereto as Exhibit "2"; and WHEREAS, it is the recommendation of the Director of Human Resources and Purchasing/Contracts Manager that the purchase of Performance Management and Employee Development software be awarded to Halogen Software, Inc. for an amount not to exceed $33,032.30 which includes the initial Temp. Reso.11530 December 1, 2008 Page 4 of 5 software acquisition and ancillary maintenance and support services in accordance with Jacksonville Aviation Authority RFP #08-11-26101, and that the appropriate City Officials be authorized to execute an Agreement with Halogen Software, Inc., a copy of said Agreement is attached hereto as Exhibit "3"; and WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interest of the citizens and residents of the City of Tamarac to purchase Performance Management and Employee Development software from Halogen Software, Inc., and execute an Agreement for such services. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THAT: Section 1: The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof and all exhibits attached hereto are incorporated herein and made a specific part of this resolution. Section 2: The appropriate City Officials are hereby authorized to purchase Performance Management and Employee Development software from Halogen Software, Inc., attached hereto as Exhibit "3" for utilizing pricing provided in the Jacksonville Aviation Authority RFP #08-11-26101. Section 3: Funding is available for the purchase of Performance Management and Employee Development software and ancillary maintenance and support costs from the appropriate account at a total cost not to exceed $33,030.32. 1 1 1 Temp. Reso.11530 December 1, 2008 Page 5 of 5 Section 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 5: If any clause, section, other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. Section 6: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this/deay of-42008. ATTEST: AdA MARION-S SON, C CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. SAMUEL S. GOREN CITY ATTORNEY WA 0� BETH FLANSBAUM- ALABISCO MAYOR RECORD OF COMMISSION VOTE: MAYOR FLANSBAUM-TALABISCO DIST 1: COMM BUSHNELL DIST 2: VM ATKINS-GRAD DIST 3: COMM. GLASSER DIST 4: COMM. DRESSLER WIN 1 1, f� ,4 07 - 0-25° Cal AC2008—D4 rr nn r C SUBMISSION FOR J A( K S V M V I L L C AWARDS COMMITTEE APPROVAL 'AVIATION AUTHORITY SUBJECT: Award of Contract Performance Management system - Halogen Software COST: $36,021. BUDGETED: Yes SOURCE OF FUNDS: Operating BACKGROUND: The Jacksonville Aviation Authority (JAA) Organizational Development (0/D) Department is requesting approval for the implementation of a new Performance Management System (PMS). The new PMS is web -based and will provide JAA's employees a better alignment of both corporate and individual performance measured goals. Hosting, service and ma±n tenance updates will be provided by Halogen. Research and analysis was completed on eight different vendors before narrowing to a choice of three. A comparative matrix was created using the information gathered from the final three vendors. The .pros and sons were then discussed and weighed by a few selected stakeholders, The lecision was further narrowed to two vendors and the O/D team was asked to have, each vendor provide a hands on test environment to evaluate bath systems for comparison. The evaluation team consisted of associates from four departmental levels, which included union and non --union members, to obtain a bread perspective. Halogen Software was the only company to provide the hands on test environment. Success Factors denied the request from JAA even though the option is advertised via Success Factors` website. The overall results of the feedback from the evaluation team on the Halogen system were favorable, expressing a much -needed program. The benefits of the PMS include better aligned goals, a standardize performance review process that reduces subjectivity and individual accountability. The results will help JAA's employees become more efficient and productive thus increasing shareholder value throughout the corporation. It was the consensus of the evaluation team that Halogen be selected as the vendor to provide the Performance Management System. Management recommends that JAA award a contract to Halogen to provide the 'performance Management System for a one year period with two one year renewal options based on vendor performance and adherence to the terms and conditions of the Authority and in configuration with the approved budgetary funds. AC2008-04- 01 �JACKSONVILLE �°AUTATION AUTHORITY SUBMISSION .FOR AWARDS COMMITTEE APPROVAL Attachments: Permission to Advertise Submission N/A Solicitation lnfoxmation Form(s) N/A Budget. Transfer (if applicable) ORIGINATED BY: Terrie L. Simmons i7 Customer Service OD Manager ��/�u9, Signature and Date SUBMITTED FOR APPROVAL: Ernestine Moody -Robinson 1 oDeputy Executive Director / COO Signature and Date i PROCUREMENT REVIEW: Monaca M. krazier, Procurement Manager Signature and Date SUBMITTED FOR APPROVAL: e7 IL,9-K-- Ernestine Moody -Robinson Deputy Executive Director / COO Signature and D to AWARDS COMMITTEE APPROVAL: r� eei'ng Date EXECUTIVE DIRECTOR APPROVAL: John Clark, Executive Director / CEO )CONDITIONS OF APPROVAL Recording Secretary � �Pla Signa ure and Date SOLICITATION PROCESS .INFORMS 710N SI. E T Description of Solicitation: Performance Management System RFQ Number: 08-17-26101 Issuing .Department: Organizational Development DBE Participation Coal Established by DBE Office: n. Yes [ K ] No [ ]N/A [ ] Advertisement Date: December 1.0, 200.7 and December 17, 2007 Posting Date: December 10, 2007 r Number of solicitations issued: 8 " Pre=Bid or Pre -Proposal Meeting Date: N/A n Mandatory Yes[ ] No[ ) Number of firms attended: Number of Proposals Received: (4) - Conforming (3) Non -Conforming (1) Evaluation Committee Members (s): r Kevin Lang, Terrie Simmons, David. Jones, Bob Molle, Richard Stroup, Kurt Ferguson, Paul Kemp Monica Frazier Procurement Representative Attach Comparison Matrix. r. Budgeted Funds: Yes[ X ) No[ ) Capital Operating Budget X Attach Budget Transfer if Required. Submitted to Awards Committee for April 1.1, 2008 meeting. Comments: Issue].: � � TJll,' `.. r- n� � c as 0 c m y , w (D n c j 66 0 iCD c� r�- ul W m N �- 4> S{S `' 0 cc N G M L N U. 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F- 7 P f�7 0 C+ 10 Y "7 mLO t� M va o� CO 0 a � C � � CW � V/ @ N S W C? Y � N O W L CV N C c4 N N to tfT 0)!� air 611 = (L. CJ 7- L1 G W _ pAh N C 7 z- �Cryy �3 ID N y O lU N O y +'" w «. U w m _ rot -a 0 i5 to O Y• �,,, � � �„ A � wy N '� N � 0. � C y C C m� r rCo N '� U) .�. '� a-N G ro .0 ai � i tr3 e- tR = � .. c7i V) c�iC, ink M 2 m c4i t i ©. {C N > 4- N IV O N cc N u- .0 ca wn L w U U)F- Q L_ d) n Chi o ui C W 15 Lp 79 4 •9 1 U U (D CC °1 c�a E � E @ L Ld 4 " m V W � W m IHAL0G EN 50FTWANE SUBSCRIPTION SOFTWARE LICENSE AND SERVICES AGREEMENT Contract No. 03.2008.167 THIS AGREEMENT (Wastei Agreement") Is entered Into between: Halogen Software Ina„ ("Halogen") having a principal piece of business at 495 March Road, Suite 500, Kanata, Ontario K2K 3G1 Canada and Jacksonville Aviation Authority (the "Customer"), having a principal place of business at 14201 Pecan Park Rd., Jack5onvlfie FL 32218 (Mailing: P.O. Box 18018, Jscksonvitle FL 32218) USA and Is effective as of the date this Agreement has been signed by both parties ("Effective Date"). WHEREAS Halogen is a company (hat, among other things, has developed and Is the owner of certain computer software programs; AND WHEREAS Customer wishes to license the Software described in Appendix. A and to procure other services as described heroin; NOW THEREFORE in consideration of the mutual promises, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which Is acknowledged by the parties, Customer and Halogen agree as follows: I. SOFTWARE AND SERVICES The Customer hereby licenses andlar purchases the following Items, at the slated quantities and prices from Halogen, subject to the General Terms and Conditions attached hereto as Schedule A. SOFTWARE SUBSCRIPTION Software Description License Term No. of Licenses Total Subscription Fats Halogen eAppraisa) with Mull1-rater Module -- with On -demand Hosting Services Three (3) year subscription 250 US$9,175.08 TOTAL SUBSCRIPTION FEES US$9,175.08 TRAINING SERVICES Training Service No, of Business DaysfHours (if applicable) Total Training Fees Head Start Implementation Service Package NIA US$6,495.00 TOTAL TRAINING SERVICES FEES US$6,495.00 PROFESSIONAL SERVICES Professional Services Fixed Rate Hourly Rate Total Professional Services Fees N/A TOTAL PROFESSIONAL SERVICES FEES N/A Jacksonville Aviation Authority- SLSA • Subscription On -demand - eAtMR - 07-2008-I67.doc Created on VIW2008 Doge I of 16 Confidential TOTALFEES Item Total Fee Software Subscription, US$9,175.08 Hosting Services INCLUDED IN SUBSCRIPTION FEE Training Services US$6,495.00 Professional Services N/A TOTAL (EXCLUSIVE OF TAXES) US$15,670.08 The above pricing will be applied, provided that this Agreement Is executed and returned by the Customer prior to 5.00 p.m. (ET) on March 31 2. PAYMENTTERM3 The Customer agrees to the following payment terms with rgspaot to Software and Services (as defined herein): (a) on Anoup.1 Feeii. Subscription Annual Fees are comprised of the License, M&S, and Hosting Fees (if purchased). The first Annual Fee for the initial licenses granted under this Agreement is due and payable within thirty (30) days of the Effective Date; subsequent years' Annual Fees are due and payable on the 1st and 2nd anniversary of the Effective Date. Additional Annual Fees applicable to any additional licenses purchased by the Customer during the subscription term are due within thirty (30) days of the date of Involve. (b) JEqiijtM §qLvc s, 'training Services fees specified in the Master Agreement including Appendix D are due and payable within thirty (30) days of the Effective Date. Fees for additional Training Services are payable in accordance with the schedule set out In the applicable Services Estimate, (c) Professional Sgrviceg EON end x ensas. Unless otherwise specified In this Master Agreement or In a Services Estimate, Halogen will Invoice Customer monthly for Professional Services performed and expenses Incurred during that month. Fees and expenses are due and payable by Customer within thirty (30) days of the date of Halogen's Involve. (d) Exneoses. Unless otherwisespecifiad herein or In a Services Estimate, Customer will reimburse Halogen for all reasonable travel and oul•of•pooket expenses incurred by Halogen's employees when traveling outside the metropolitan area of their usual place of employment to perform any Services for the. Customer. 3. PURCHASE ORDER The Customer hereby warrants either that: (1� It has generated a purchase order ("PO") to cover the total of the Fees and expenses specified in this Master Agreement,. and the PO number is: The PO document should be taxed to 775.640.9544 ar smelled to ar®halogensoftware.com to ensure proper reference on Invoices for the produols and services purchased from Halogen. OR (11) APO is not required to authorize payment in full to Halogen of the frees and expenses specified herein, A, SCHEDULESIAPf ENDICES, The following schedules and appendices are attached to and form part of this Agreement: Schedule A General Terms and Conditions Appendix A Description of the Software Appendix © M&S Services Appendix C Hosting Services Appendix D Training and Implementation Services Appendix E Professional Services )4cksonville Aviation Authority - SLSA • Subscription Orwdemand - eA*Mit • 03.2009-167.doc Created on 3/17/2008 Wage 2 oi' I6 Congdenlial 5, ENTIRE AGREEMENT This Agreement, Including its Schedules and Appendices, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior statements, representations, discussions, negotiations and agreements, both oral and written. No modification, amendment l or variation hareof shall he of wffect or binding upon the parties hereto unless agreed to in writing by their authorized officers, 6. COUNTERPARTS This Agreement may be executed in more than one counterpart, each of which is deemed an original and all of which together constitute one Instrument, Delivery of an executed countarpart of this Agreement by fax tran3misslon Is deemed to be properly binding upon the delivering party. 7. AUTHORITY TO HIND The undersigned individuals represent and warrant that they are expressly and duty authorized by their respective entities or agencies to execute this Agreement and to legally bind their respective entllies or agencies as set forth In this Agreement. IN WITNESS WHEREOF the parties hereto have executed this Agreement. HALOGEN SOFTWARE INC. Jacksonville Aviation Authority Signature: Signature: Name: Title: Name: Title: gate: Dale: .tseksonville Aviation Authority- SLSA -Subscription On -demand - eA+Mid - 03•?008-167.doc Created on 3/17/2008 Page 3 of I6 Conlidondai SCHEDULE A GENERAL TERMS AND CONDITIONS 1. DEFINITIONS. "Training Services" means those services provided by Halogen pursuant to Section 5 and Appendix D. (a) In these General Terms and Conditions, including the Appendices hereto, unless the context requires otherwise, the "Review" or "Assessment" means an evaluation document following words and phreses have the respective meanings set created for an employee or contractor of Customer using the out below: Software. "Affiliate" moans, with respect to either. party, any other entity controlling, controlled by or under common control of a party where "control" means the holding of more than fifty percent (50°%) of equity ownership, "Agreement" means the Master Agreement, these General Terms and Conditions, Its appendices, and any extension, renewai or amendment signed by the parties hereto and which references this Agreement. "Business Day" means Monday to Friday, excluding holidays recognized in the Province of Ontario, Canada, "Business Hour" means an hour between 8:30 a.m. and 6:00 p,m. Eastern Time (ET) (Greenwich Mean Time (GMT) - 05.00). "Documentation" means the standard, English -language printed and electronic versions of all documentation intended for use with the software, including but not limited to the Specifications, user manuals, system administrator manuals and other guides. but excluding training materials, "Effective [late" means the dale when both parties have signed the Master Agreement. "Error" means any material and reproducible failure of the Software to operate and/or perform in accordenoe with the Specifications. "Foes" means the fees payable for the License, M&S Services, Hosting Services, Professional Services, or Training Services specified in the Master Agreement. "Hosting Services" means, as applicable, the services provided by Halogen pursuant to Section 6 and Appendix C. "M&S Services" means those maintenance and support services -provided by Halogen pursuant to Section 3 and Appendix B. "Professional Services" means inose services provided by Halogen pursuant to Section 4, as more particularly described In a Services Eslimale. "Services" moans those services provided by Halogen as described In this Agreement andlor in a Services Estimate and Include M&S Services, Training Services, Professional Services and Hosting Services, as applicable. "Services Estimate" means a mutually agreed upon document which describes the Professional Services. "Specifications" means the technical specifications for the Software identified and set out in the Documentation. "Software" means the version of the Halogen software program identified in the Master Agreement and described In Appendix A In object code format, and any releases, derivatives, Improvements, translations, adaptations, alterations, revisions, extensions, changes, enhancements or modifications. (b) Appendices. The following appendices are attached to and form part of these General Terms and Conditions: Appendix A Description of the Software Appendix B. M&$ Services Appendix C Hosting Services Appendix 0 Training and Implementation Services Appendix E Professional Services 2. GRANT OF LICENSE (a) �e feral Grant. Except as otherwise specified herein, Customer is hereby granted a non -transferable, non-assfgnabe, non. exclusive, Internal liconse, without right to sublicense, to use the Software and Documentation solely for the purpose of conducting Reviews or Assessments for the license term specified in the Master Agreement ("License'). Notwithstanding the foregoing, Customer is hereby permitted to sublicense Its right to use the Software and Documentation to its Affiliates, provided that; (1) Customer notifies Halogen of the Affiliate that is the subject of the sublicense, a minimum of tan (10) Business Days prior; (II) the Customer remains solely responsible for the actions and/or Inactions of such Affiliates; and (if]) the combined total of all Licenses does not exceed the maximum number of Licenses specified in the Master Agreement. (b) Restriction . Customer wilt use the Software and Documentation only in its own internal business operations. Except as expressly authorized by this Agreement, Customer shall not, without Halogen's prior written consent: (1) use, copy, modify, adapt, Improve, maintain, license, sublicense, lease, sell, rent, export, permit concurrent use of or access to, or grant other rights in and to the Software; (ii) transfer this Agreement or any license to use the Software in whole or In part; (Ili) translate, reverse engineer, modify, adapt, create derivative works, decompile, merge, separate, disassemble or convert Into human readable form or into another computer language, all or any part of the Software; (iv) remove any copyright, patent, trademark, design right, trade secret, or any other proprietary rights legends from the Software; or (v) disclose the results of any benchmark test of the Software to any turd party, Customer Is responsible for all activities conducted under Its user logins and for Its users' compliance with this Agreement. Customer shall not. (I) send or store infringing or unlawful material; (11) send or store malicious code; (III) attempt to gain unauthorized access to. or disrupt the integrity or performance of, the Software or the date contained therein; or (Iv) permit access to the Software by a direct competitor of Halogen. (c) Cop)es. Customer may make a reasonable number of copies of the Software for back-up or archival purposes. Customer may also make copies of the Documentation for use at the Customer's premises as necessary to assist the Customer in using the Software. Customer shall reproduce all confidentiality and proprietary notices upon such copies of the Software and Documentation. (d) Reserved Rlgbta. Any rights not expressly granted herein shall be reserved for Halogen, Source code as well as other Information pertaining to the logic, design or structure of the Software Is specifically excluded from the License granted herein. Jacksonville Aviation Authority • SLSA • Subscription On -demand - eA+MR • 03.2008• ib7,doe Created on 3/17/2009 page 4 of 16 Confidential MAINTENANCE & SUPPORT SERVICES, Halogen agrees to provide the M&S Services as described In 1 Appendix 8, PROFESSIONAL. SERVICES Upon request, Halogen may provide additional Professional Services, Including, but not limited to, consulting, database or data migration services, If Customer procures such Professional Services, in addition to each patty's obligations specified in a Services Estimate, the provisions of Appendix E shall apply. TRAINING SERVICES Halogen will provide the Training Services specified in the Master Agreement and such further Training Services as may be specified from time to time in a Services Estimate to accordance with the provisions of Appendix E, Customer acknowledges and agrees that certain Training Services are required to be purchased as a condition of using the Software, HOSTING SERVICES If purchased by the Customer under the Master Agreement, Halogen will host the Software on Its server for the benefit of the Customer ("Hosted Service") for the term and up to the number of licenses specified in the Master Agreement and In accordance with the specifications set out In Appendix C. PAYMENTS (a) Eggs and Excenses. The Customer will pay to Halogen the License Fees, M&S Fees, Hosting Fees, Training Fees and other fees and expenses, as applicable, set out in the Master Agreement. Halogen reserves the right to increase any Fees upon renewal upon thirty (30) days notice. (b) No .Ucense Rights/Suspension, Customer acknowledges that Customer has no rights under this Agreement for any Software licenses not fully paid for, Halogen reserves the right to suspend the performance of any or all of its obligations hereunder upon thirty (30) days prior written notice if amounts are unpaid when due and remain unpaid at the and of such notice period. Notwithstanding the foregoing, if payment of the annual Hosting Fee Is not received from the Customer when due, further access by the Customer to the Customer's hosted site may be immediately suspended by Halogen. Software in Halogen's on -demand hosting environment is made avpliable to the Customer, (g) Qurranc , Unless otherwise indicated, all prices quoted in this Agreement are in United States of America Dollars ("USp'), and payments to Ilalogan pursuant to this Agreement are to be tirade in USp. 6. TERM AND TERMINATION (a) J9_rM, This Agreement shall be effective on the Effective gate and shall, unless earlier terminated as provided herein, continue for the license term Indicated In the Master Agreement, If Customer has licensed the. Software on other than a perpetual basis, the provisions of this Agreement will automatically renew at Halogen's then•ourrent rates for a one- year term for the number of licenses licensed by Customer, unless either party provides written notice of Its Intention not to renew this Agreement at least thirty (30) days prior to the end of the then -current license term, ' (b) Te minatMi, This Agreement will terminate on the earlier of: (1) termination of the license term; (II) on a day that is thirty (30) days after one party gives the other written notice of breach by the other of any material term or condition of this Agreement, unless before that day the breach is remedied to the satisfaction of the notifying party; (III) upon written notice of termination by one party, effective immediately, If the other party Is or becomes insolvent or bankrupt or ceases paying its debts as they mature, or makes or flies an assignment in bankruptcy or otherwise acknowledges its insolvency, or a trustee, receiver, liquidator or slmjiar official Is appointed for the other party or any substantial portion of Its property and assets, or bankruptcy, insolvency, arrangement or similar proceedings are Instituted by or against the other party; (iv) upon written notice of termination by either party, effective immediately, if the circumstances of Force Majeurs described in Section 19(d) are continuing and have continued for a period of at least sixty (60) consecutive days; or (v) upon written notice of termination by Halogen if Customer fails to pay any or all undisputed Fees or other amounts due hereunder within ten (10) days of receipt of such notice. (c) (c) Visputes. In the event that the Customer disputes the correctness of any part of invoiced fees or expenses, Custdmer shall advise Halogen within thirty (30) days from the date of receipt of the applicable invoice, failing which the invoice must be paid In full In accordance with the terms of this Agreement. Nothing In this clause allows the Customer to delay payment or (d) any part of the applicable invoice that Is not In dispute. (d) Tg O. Customer shall be responsible for the payment of all applicable duties, taxes or amounts due In lieu thereof, related in any way to this Agreement, exclusive only of taxes based on Halogen's not Income. Effecl pf TeEMinag2a. Upon any termination of this Agreement, and unless otherwise provided herein: (I) all payments shall become due immediately; (11) subject to paragraph (a), Customer shall Immediately cease using the Software arid, shall return to Halogen or destroy all copies of the Software and Documentation, and cerlify In writing that Customer has compiled with its termination obligations hereunder; and (ill) each party shall return to the other, or destroy all Confidential information of the other party In Its possession or urger its control, and provide certification of same upon request. Partial Tarminatlon. Should either party terminate any M&S, Training, Professional or Hosting Services, the provisions of this Agreement which are applicable to the services or obligations so terminated shall be deemed terminated and the provisions of Section 8(c) shall apply, as applicable, Termination of such Services Wit not result in the termination of any valid licenses to the Software, which shall otherwise remain in full force or effect as provided herein. (e) to pe man . All overdue payments past thirty (30) days will {e} Survival. Sections 2, 7, R(c), 9 to 11 and 13 to 19 shale survive Incur a late fee of one percent (1%) monthly (12% annually), or the termination or expiration of this Agreement. It Customer the highest amount permissible at law, whichever is less, has purchased and paid for licenses with a perpetual license term, then should this Agreement be terminated other than for (f) Shigment. The Software and Documentation may be delivered Cuslomites uncured breach of this Agreement, the Customer's to Customer by electronic means, including over the internal. licenses shall survive termination of this Agreement and all Physical shipments are FOB Shipping Point, Responsibility and provisions with respect to such licenses shall also survive. title In the Software (to the extent that any title Is transferred under this Agreement) shall pets to Customer once the Software are delivered to Halogen's commercial carrier, or, where Customer has purchased Hosting Services, once the Jacksonville Avio(ion Aulhoriry - SLSA - Subscription On-dcin�nd - eA+MR 03-2008-167.doc Crcatcd un 3/17/200s Page 3 or t 6 Confkienticl OWNERSHIP (a) mineral Proerielary Rights. The Software and Documentation are licensed, not sold. All right, title and interest in and to the Software, including all patents,, copyrights, trade marks, mask works, circuit layout rights, design rights, trade secrets and other proprietary and intellectual property rights in or related to the Software and Documentation, along with all enhancements, modifications, translations and derivative works of the Software or Documentation, belong to Halogen or its licensors, whether or not specifically recognized or perfected under tho laws of the country where the Software is located. (b) Halogen shall have a royally -free, fully paid -up, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor in Interest by way of merger, reorganization or sale of elf or substantially all easels or equity), sublicensable license to use, copy, modify, or distribute, Including by incorporating into the Software, any suggestions, recommendations or other feedback provided by Customer or Its users relating to the operation of the Software. (c) Nc,„ Addlt,anel fi hc�t_s. Any updates, upgrades and enhancements provided to:Cualomer as M&S Services are for replacement of copies of the licensed Software and are not provided as additional copies. Nothing in this Agreement shall be construed as increasing the number of copies licensed to Customer or the number of permitted users or licenses, or providing Customer with additional Halogen products or services. 10. CONFIDENTIALITY (a) 12.1h ll. The parties acknowledge that one party ("Receiving Party") may receive confidential and/or proprietary Information relating to the other party ('Disclosing Party") or its licensors or customers ("Confidential Information"). The parties will only use such Confidential Information in the performance of this Agreement and will not disclose any such Confidential Information to any other party unless authorized by the Disclosing Party in writing. Halogen Confidential Information shall be deemed to include, regardless of marking, the Software, the Documentation, any unannounced product(s) or service(s) of Halogen, and the terms, conditions and subject matter of this Agreement and any related contractual documents. As soon as practicable, Receiving Party shall notify Disclosing Party of shy breach of this Agreement. (h) Rea r' ns. Receiving Party shall not transmit, maintain, remanufsolure or duplicate elf or any part of, the Confidential Information except in accordance with the terms and conditions of [his Agreement. Receiving Party shall be directly liable for the acts or omissions of its employees or contractors with respect to such confidentiality obligations. Receiving Party agrees to protect the Confidential Information with al least the same degree of care it uses to protect Its own trade secrets and proprietary information but no less than reasonable care. (c) CXSiU1jons. The foregoing confidentiality obligations shall not apply to Confidential Information which: (1) at the lime of disclosure is within the public domain, other than through a breach of this Agreement; (it) after disclosure becomes readily and lawfully available to the industry or the public, other than through a breach of this Agreement; - (ill) Receiving Party can establish, by documented and competent evidence, was in Its possession prior to the dale of disclosure by Disclosing Party; (iv) Receiving Party can establish, by documented and competent evidence, was independently developed by the Receiving Party without use or reliance upon the Confidential information; or (v) is approved for disclosure, in advance, in writing by Disclosing Party, 1 J (d) In the event that the Receiving Party is requested pursuant to legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party with notice to such effect, and at the request of the Disclosing Party will co-operate with Ilia Disclosing Party In seeking relief against the disclosure of such Confidential Information, in the event that through legal process the Receiving Party Is obligated to disclose any ConfidenUal Information, the Receiving Party may do so without breaching the terms of this Agreement, provided that the Receiving Party furnishes only that portion of the Confidential information that it is legally required so to do. (a) Eauitabla Ramedie5, Receiving Party acknowledges that disclosure or use of the Confidential Information conirary to this Agreement will cause the Disclosing Party irreparable harm for which damages would not be an adequate remedy and further acknowledges that, in addition to any other remedies that may be available at law, the Receiving Party may apply for all available equitable relief Including Injunctive relief. PERSONAL INFORMATION Halogen acknowledges that, In the course of fulfilling its obligations under this Agreement, It may store on Ila servers and have access to information about an Identifiable Individual ("Personal Information"), Halogen will comply with all applicable laws governing the storage and accessibility of such Personal Information, Including but not limited to, any and all requirements to protect such information from loss or unauthorized access. Without limiting the generality of the foregoing, Halogen agrees that Personal Information shall be considered and treated as Confidential Information and subject to the provisions of Section 10, 12. WARRANTIES (a) SofMtare_ri , Halogen warrants that during the period beginning on the Effective Date and continuing for ninety (90) days thereafter (Varranty Period"): (I) the Software will conform substantially to the Specifications set out in the Documentation ("software Warranty"); and (11) if applicable, the media upon which the Software are provided are free from defects In materials and workmanship ("Media Warranty"). Customer's sole remedy and Halogen's sole obligation with respect to the breach at the: (1) Media Warranty. Is for Halogen to provide the Customer with replacement media it: (A) there are defects in materials or workmanship in the media upon which the Software is provided; and (B) the media is returned to Halogen within the Warranty Period; and (1i) Software Warranty: Is for Halogen, at Its sole option to: (A). make commercially reasonable efforts to remedy the Error; (B) provide the Customer with a workaround with respect to such Error; or (C) refund is Customer an amount equivalent to, but no greater than, the License Foe paid in respect thereof. This remedy Is available only it Halogen is notified of the Error within the Warranty Period and is available only once in respect of each Software product. This Software Warranty shall not apply to: (a) any Software product that is modified without Halogen's written consent; or (b) any Software which has been misused, altered, repaired or used with equipment or software not expressly approved by Halogen. Halogen shall have no responsibility for claims arising from (i) modifications of the Software made by Customer if such claim would not have arisen but for such modifications, or (11) combination or use of the Software with any other products, it such claim would not have arisen but for such combination or use. The Customer further acknowledges that the Software typically requires some configuration upon installation, that certain customary infrastructure must be In place at the Customer site in order for certain functionality to work, and that the provision of this infrastructure is not part of this Agreement. Jacksonville Aviation Authority - SLSA - Subscription On -damped - eA+MR - 03.2008- IG7,dw Created on 1/17/2009 Pays b of ld Confidential parly's rights, Halogen shall have the option to: (a) modify, at Its (b) ap4dj e, &Wnty. Halogen warrants that the Services to be expense, the Software to be non -infringing, (b) obtain for the Provided hereunder will be performed with reasonable skill and Customer a license to continue using the Software; or (c) In a professional manner. Halogen's 'sole responsibility and terminate this Agreement and either (1) under a perpetual Customer's- sole remedy with respect to deficient or non- license, refund Customer 100% of the license fees paid within conforming Services is to use commercially reasonable efforts the first two (2) years from the Effective Dale or 50% of the to re -perform such services in accordance with the terms and original license fees paid thereafter, or (11) under a subscription conditions of this Agreement. license, refund Customer all prepaid fees for the remainder of the subscription term after the date of termination. This (a) QlsclaiMg, THE WARRANTIES IN THIS SECTION 12 ARE Indemnity shall only apply in respbct of a final decision rendered THE ONLY WARRANTIES OF HALOGEN WITH RESPECT TO by a court of competent jurisdiction or in respect of a settlement THE SOFTWARE, DOCUMENTATION AND THE SERVICES, of an Infringement action with the prior written consent of AND ARE IN LIEU OF ALL OTHER WARRANTIES AND Halogen. CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A (d) FNTIRE LIAl31LITY, THE FOREGOING STATES THE ENTIRE PARTICULAR PURPOSE, HALOGEN DOES NOT MAKE ANY LIABILITY OF HALOGEN AND THE EXCLUSIVE REMEDY OF WARRANTIES THAT THE SOFTWARE AND THE CUSTOMER FOR ANY INFRINGEMENT OF INTELLECTUAL OPERATION THEREOF WiLL BE UNINTERRUPTED, PROPERTY RIGHTS OF ANY THIRD PARTY. ERROR -FREE OR COMPLETELY SECURE, 14. LIMITATION OF LIABILITY (d) Certain third party software is embedded in the Software pursuant to licenses provided by those third (a) LIMITATION. IN NO EVENT, UNDER NO CIRCUMSTANCES parties to Halogen, The Customer acknowledges that the rights AND UNDER NO LEGAL THEORY, TORT, CONTRACT OR Provided by Halogen under this Agreement are subject to the OTHERWISE, SHALL HALOGEN, ITS LICENSORS,'OR ITS terms of those third party Ifoanses. Customer further AFFILIATES, OR THEIR RESPECTIVE OFFICERS, acknowledges that such third parties are beneficiaries of this DIRECTORS, EMPLOYEES OR CONTRACTORS BE LIABLE Agreement, with the right to enforce the obligations and benefit TO CUSTOMER FOR: (1) ANY INDIRECT, INCIDENTAL, from the protections set forth In this Agreement. Halogen will ORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR pass through, to the greatest extent permitted by applicable EXEMPLARY DAMAGES INCLUDING WITHOUT LIMITATION law, the warranties from Halogen's licensors as they relate to ECONOMIC LOSS, LOST PROFITS, LOSS OF USE, the third party products provided to Customer as part of the REPROCUREMENT COSTS OR LOST OR DAMAGED DATA, Software, EVEN IF HALOGEN OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF (a) hlra_Authoriation. No Halogen aganL representative or dealer SUCH DAMAGES ARE FORESEEABLE, OR IF SUCH Is authorized to modify, extend or add to any warranty on behalf DAMAGES ARISE FROM ANY MISREPRESENTATION, of Halogen, BREACH OF ANY IMPLIED OR EXPRESS WARRANTY OR CONDITION, OR BREACH OF ANY OTHER TERM (INCLUDING A FUNDAMENTAL BREACH OR BREACH OF A I 13. INTELLECTUAL PROPERTY INDEMNIFICATION FUNDAMENTAL TERM); OR (II) A MAXIMUM AGGREGATE LIABILITY IN ANY CLAIM, ACTION, DEMAND OR (a) Qefengg of Infrinnerpal3l Halogen shall defend or settle any PROCEEDING WHICH EXCEEDS: (A) FOR THE SOFTWARE, action brought against the Customer to the extent that it is THE TOTAL AMOUNT OF LICENSE OR SUBSCRIPTION based on a claim that the Software provided by Halogen under FEES ACTUALLY PAID TO HALOGEN BY CUSTOMER this Agreement infringes any patent or copyright registered and DURING THE YEAR IN WHICH THE CLAIM AROSE; OR (B) issued in Canada or the United States of America as of the FOR ANY SERVICES PROVIDED, THE M&S, TRAINING, Effective Date and shall pay the resulting coats, damages and PROFESSIONAL OR HOSTING SERVICES FEES, AS THE legal fees finally awarded against Customer, If: (a) the CASE MAY BE, PAID BY CUSTOMER TO HALOGEN FOR Customer notifies Halogen in writing within ten (10) days of THE SERVICES GIVING RISE TO THE CLAIM DURING THE i-Pnelving notice of any such claim against the Customer; (b) YEAR IN WHICH CLAIM AROSE. Halogen or its licensors have sole control of the defence, compromise or settlement of such claim. Including any appeals; (b) Exogglir , The foregoing limitations on liability shalt not apply and (c) Customer fully cooperates with Halogen In the defence to: (1) claims caused by Halogen's gross negligence or wilful or settlement of such claim at no charge to Halogen. Halogen misconduct; or (1I) third party intellectual property claims for will not be liable for any costs at expenses incurred by the which Halogen Is required to indemnify Customer pursuant to Customer with respect to settlement of an infringement claim Section 13. without Halogen's prior written authorization. (b) E lusian , Halogen shall have no liability hereunder for any (c) Basis of Bargain. The parties acknowledge and agree that the limited warranty, exclusive remedies and limited liability set forth claim of infringement based on (a) use of a superseded release in this Agreement are fundamental elements the basis of the of the Software If the infringement would have been avoided b y d that Halogen bargain between Halogen and Customer, and the use of a current release of the Software that has been made would not be able to provide the Software or Services on an available to the Customer; (b) the use of a release of the economic basis without such limitations, Software that has been modified or altered by a party other than Halogen or other than as directed by Halogen if the (d) i�f Po nd. form, arising out of or action, regardlessbebrought infringement would have been avoided by the use of an relation se than two in relation to any services may be brought r unmodified at unaltered release of the Software; or (c) the whoreich oh years after the completion of the services to which the acligh combination, operation or use of the Software with software, referee. hardware or other materials not furnished or recommended by Halogen If such Infringement would have been avoided without such software, hardware or other materials. 15. DISPUTE RESOLUTION {c) Indemnity. In the event the Software, or a component part Ali matters in difference between the parties In relation to this Agreement shall be dealt with in accordance with this section. thereof is held by a court of competent jurisdiction, or is Notwithstanding the foregoing, no provision hereof Shall limit the right believed by Halogen, to infringe or potentially infringe a third of any party to obtain equitable relief, Including without limitation, Jacksanvilte Aviation Auhodly - SLSA • Sabscripticm On-dernaad • eA+MR - 03-200$.167,doc Crcared on 3/17/20111a page 7 of 16 Confidential injunctive relief, from a court of competent jurisdiction before, after or concurrent with mediation, arbitration or other proceeding. The parties shall attempt to resolve any dispute arising from or relating to this Agreement through consultation and negotiation in good faith and a spirit of mutual 000perallon for up to 0fiven (15) days commencing on the dale when one party gives written notice to the other party of any controversy or claim. However, it those attempts fall, the dispute shall be submitted to arbitration. The parties agree that any continuing disputes arising from or related to this Agreement shall be decided pursuant to the Rules of Concilfallon and Arbitration of the International Chamber of Commerce at such a location to be mutually agreed upon by the parties. If the parties cannot agree on a location for the arbitration within len (10) days, the parties agree that the arbitration will take place in New York. Now York. Unless provided otherwise In the Agreement, the arbitrators may not award non -monetary or equitable relief of any sort. They shall have no power to award damages Inconsistent with the Agreement or punitive damages or any other damages not measured by the prevailing patty's actual damages, and the parties expressly waive their right to obtain such damages In arbitration. In no event, even if any other portion of these provisions Is held to be Invalid or unenforceable. shall the arbitrators have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction. The arbitration shall be conducted In the English language. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrators may disclose the existence, content or results of the arbitration, except as necessary to comply with legs( or regulatory requirements, Before making any such disclosure, a party shag give written notice to the other party and shall afford such party a reasonable opportunity to protect its interests. The result of the arbitration will be binding on the parties, and judgment on the arbitrators' award may be entered in any court having jurisdiction. The parties agree that the arbitrator's award may only be appealed an a question of law or patent unreasonableness, 16, U.S, GOVERNMENT END USERS If the Software are acquired by or for the U.S. Government, then they are provided with Restricted Rights. Use, duplication or disclosure by the U.S. Government Is subject to restrictions as set forth it subparagraph (c)(1)(d) of The Rights in Technical Data and Computer Software Clause at DFARS 252.227.7013, or subparagraphs (c)(1) and (2) of the Commercial Computer Software • Restricted Rights at 48 CFR 52,227.19, or clause 18.52.227.86(d) of the NASA Supplement to the, FAR, as applicable, Contractor/Manufacturer is Halogen. 17, AUDIT Customer agrees to advise Halogen, upon request, of all locations where Software is used or stored and to provide Halogen reasonable access to such locations and the Software, Including any copies. Customer agrees to maintain complete and accurate records (in accordance with generally accepted accounting principles) relating to its activities under this Agreement. Halogen may, at its expense, appoint an independent third party to audit no more than once annually Customer's use of the Software. Any .such audit shall be conducted during regular business hours at Customer's offices and shall not unreasonably interfere with Customer's business activities. In addition to other remedies availableto Halogen, if such audit shows that Customer has underpaid the applicable fees, Customer shall pay such underpaid tees within thirty (30) days of Invoke. It underpaid feos•for any period are In excess of five percent (5%) of the value of the fear, paid for that period under this Agreement, then Customer shall also pay Halogen's reasonable costs of conducting the audit. Customer acknowledges that (he Software may contain functionality that may assist Halogen in determining Customer's compliance with this provision. fi �Ir1=Ji�tC�T;Ti➢C�l;l Customer consents to publication of its name and logo by Halogen in a factual listing of Halogen's customers within presentations, on trade show signs and on its websile. Halogen will seek Customer's prior written authorization for any other use of the Customer's name or logos. Provided that Customer is satisfied with the Software. Customer agrees to participate in a success story for the Software to be published on Halogen's Website and to act as a client reference for Halogen on an as and when needed basis. 19. GENERAL PROVISIONS •(a) Qomeliance_wW_ Aoeticabie Laws. Each party will comply with any and all applicable laws, Including, but not limited to, export laws. (b) 09verninc Lew. This Agreement is governed by and is to be construed and interpreted in accordance with the laws of the Slate of New York, without regard to conflict of laws. The parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement, (c) Independent _Principals, The parties are and will at all times remain Independent principals in all relationships and actions under or contemplated by this Agreement and neither party has the authority to bind the other or to incur any obligations on Its behalf. Neither party will represent Itself to be the agent, joint venturer, partner or employee of the other nor will either party make any statements or take any steps or acts that do or could imply or create any agency, joint venture, partnership, employment or other business relationship between them, other then as expressly hereby contemplated. (d) Force Maleure. Subject to Section 8(b), neither party shall be responsible for delays or failure of performance to the extent resulting from causes that are beyond the reasonable control of such party and which render the continued performance of this Agreement impossible, Impractical or illegal, including, but not limited to, fire, flood, explosion, tornado, epidemic, earthquake, snowstorm, ice storm or other act of God, embargo, explosion, malfunction, riots, civil disputes, acts of terrorism or war, failure of the internet or government controls or regulations ("Force Majeure"). The existence of such causes of such delay or failure shall extend the period for performance to the extent necessary to enable complete performance In the exercise of reasonable diligence after the causes of delay or failure have been removed. (a) A . Other than as permltled.under Section 2 of Schedule A to this Agreement, Customer may not assign all or part of this Agreement without Halogen's prior written consent. This Agreement shall'be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Notice. All notices, requests, demands and other communications required or permitted under this Agreement must be in writing and are deemed to have been duty given, it sent by fax (receipt confirmed), on the day It Is received, if delivered in person or by courier, when delivered, If mailed by registered or certified mail, postage paid and return receipt requested, on the fourth business day following the date of mailing, to the addresses of the parties given on the first page of the Master Agreement or to such other address as a party may from time to lime specify by notice In writing to the other party. Notices to Halogen shall be made to the attention of the Chief Financial Officer. (g) A2ygrabIlAy. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement shalt be hold by a court of competent jurisdiction to be contrary to law, the Jacksonville Aviation Authority- SLSA - Subscription On -demand - eA+Mid - 03-2008-1 b7.doc Cremcd on 3/17/2008 Page 8 of 1 G Confidential E l l remaining provisions of this Agreement shall remaln In full force and effect. (h) Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. (i) kURqM. The parties confirm that it Is their wish that this Agreement, as well as all other documents relating to this Agreement, including notices, be drawn up In English, and the English language shall be controlling in all respects. pJ Conflict. In the event of a conflict between this Master Agreement and a Servions Estimate, the Master Agreement shall prevail to the extent necessary to resolve the conflict. Jacksonville Aviation Authority - SLSA - Subscription On -demand - cA+MR - 01-2008467.doc Created on 3/11/2008 pabc 9 of 16 Confidential APPENDIX A DESCRIPTION OF THE SOFTWARE e6pRraisal Halogen eAppraisal is licensed in units of "Review Licenses". The number of Review Licenses limits the number of employees or contractors of the Customer that can be appraised each calendar year. A Review License allows an employee or contractor of the Customer to be appraised with Ilalogen eAppraisal by an unlimited number of Respondents an unlimited number of times during the calendar year. For purposes of clarity. a Review License used by the Customer to appraise an employee who subsequently leaves their employ cannot be re -used to appraise another employee within the same calendar year. "Respondents" means the employees or contractors of the Customer who are authorized by the Customer to access the Software for purposes of conducting a Review, i- ater Multi -rater is an optional add -on module to the eAppraisal Review License. The number of units of this add -on module must be equal to the number of units of Halogen eAppralsal purchased by the Customer. Features and Functionality of Halogen Software Products The foregoing description of the Software and Software modules is provided for Information purposes only. Customer acknowledges that the description of the Software may be subject to change, and that the actual features and functionality of the Software may vary from the descriptions herein. Jacksonville Aviation Aulhority. SLSA - Subscription On -demand - eA+MR - 03-2008-167.doc Created on 3/1712008 Page Ill of 16 Confidential APPENDIX B MAINTENANCE &.SUPPORT SERVICES i I. DEPINiTIONS defects or Errors in fire Software that have been brought to the attention of Halogen by the Customer. Halogen may provide such "Severity Lever" means the level of severity assigned to an Error telephone assistance through a designee of Its choice to up to three In the Halogen Software by Halogen and Customer using the designated contacts of the Customer who are trained and following criteria: knowledgeable in the use of the Software, Severity Description Level 1 An Error that has a critical Impact on the development, deployment, or operational use of the Software, resulting In the Inabllfty to continue to deploy or use the Software as required or Intended. A Severity 1 Error does not have a reasonable workaround, cannot reasonably be corrected by adding to or changing the Documentation. 2 An Error that causes a severe restriction on the development, deployment, or operational use of the Software, resulting In the restricted ability to continue to deploy or use the Software. A Severity 2 Error does not have a reasonable workaround, cannot reasonably be corrected by adding to or changing the Documentation 3 An Error that causes limitations that are not critical or severe to the development, deployment, or operational use of the Software. A Severity 3 Error has a reasonable workaround. 4 An Error that causes a slight inconvenience to the development, deployment, or operational use of the Software, A Severity 4 Error has a reasonable workaround. "Update" refers to a fix, patch or such other minor improvement, enhancement, modification or expansion of the Software which Is generally commercially distributed by Halogen as part of the M&S Services and for which Halogen does not generally Impose a separate charge, 2. SUPPORTED RELEASES M&S Services are only provided for the rnosl recent version of the Software and the version prior to the most recent version ("Supported Releaae"), Halogen has no obligation to provide any other maintenance or support to Customer. Halogen will provide Customer with ninety (90) days notice in the event of the discontinuance of a Software version or module. Halogen reservas the right to replace the discontinued Software with replacement Halogen Software. Halogen will support (fie discontinued Software module or version for the greater of the remainder of the Support Term for the discontinued version or a period of ninety (90) days from notification to Customer that the Software nodule or version Is being discontinued, 3, MAINTENANCE & SUPPORT SERVICES Halogen will provide to the Customer any Updates to the Software that Halogen makes avai►able to Its clients generally at no additional charge. Unless the Customer has purchased Hosting Services, Customer is solely responsible for the installation of all Updates provided by Halogen as part of the M&S Services. Halogen will make pornmercially reasonable efforts to solve reported problems in accordance with the Severity Level classifications and the response limes listed below, through system changes or suggested workarounds, 4 the halogen Services are unavailable to end users, Customer will use commercially reasonable efforts to cooperate with Halogen In resolving any problems. Halogen shall provide a tiered support process to the Customer, providing a controlled escalation environment, which delivers multiple levels of support as deemed appropriate for customers' individual issues. Response time varies depending on the severity of the issue reported. A Hslogen.Supporl Ticket is generated for the Customer. This' Support Ticket is either fulfilled by the Support Technician, or escalated to the Support Manager as required. If the call requires further escalation, the assistance of other Halogen technicians is enlisted by the Support Manager, When reporting a suspected Error, Customer will assign the appropriate Severity Level category, which, in Customer's reasonable judgment, accurately describes the Impact on Customer's operating environment. Halogen reserves the right to reclassify The Error if it determines, in Its reasonable judgment, that such reclassification Is appropriate. Where the parties disagree on the classification, Halogen will review the Error with Customer to attempt to agree on a mutually acceptable classification, Severity Level Response Times: Severity Level Response Time 1 Acknowledge within 4 (four) Business Hours; response within one (1) Business Oa . 2 Acknowledge within 4 (four) Business Hours, response within two (2) Business Days. 3 Acknowledge within 1 (one) Business Day; response within seven (7) Business Days 4 Acknowledge within 2 (two) Business Days; response at the discretion of Halogen Software 4. CUSTOMER RESPONSIBILITIES Customer will make commercially reasonable efforts to cooperate with Halogen in all problem resolutions. This includes but Is not limited to providing timely access to all required experts to resolve Issues within the Customer's environment. The M&S Services are only provided to Customer. Unless otherwise agreed by the parties, Customer is solely responsible for the maintenance, support and training of Its own Affiliates and employees. If not hosted, Customer writ protect its data from loss by implementing appropriate back-up procedures. Customer is solely responsible for data resioralion from back-ups, Halogen will also provide to the Customer telephone or email S. EXCLUSIONS assistance by a qualified representative of Halogen belwaen 8:30 Halogen shall have no obligation to provide M&S Services if an Error a.m. and 6:00 p.m. E'r (GMT-'05:00) to attempt to correct or bypass Is caused by: (a) relocation, movement, improper operation, neglect lacksooyillc Aviation Aulhoriry - SLSA - Subscription On -demand - eA+MR - 03-2008-I67.doc Created on 3/17/2008 Page i I or IL Confidential or misuse of the Software, (b) Customer's failure to maintain proper site or environmental conditions, (c) any fault of Customer's agents or employees, (d) any attempts at repairs, maintenance, or modifications to the Software performed by other [ban authorized service personnel of Halogen, (e) unauthorized acts of third parties, (f) failure or interruption of any electrical power, telephone or communication line or like cause, (g) service for the Software for which ail required maintenance releases have not been implemented by Customer, (h) problems caused by third party software included with or embedded in the Software (unless Customer is using a version of a Supported Release of the Software for which support for such third party software Is available to Halogen), (1) any other cause external to the Software except ordinary use, (J) configuration of or failure of third party hardware or software products, (k) improper sizing of hardware or software platforms for the volume of data and users, or (k) any other service not expressly set out in this Appendix or which is expressly excluded In this Appendix. The M&S Services do not include services or dellverables provided under a Services Estimate or other services outside the scope of this Appendix such as support for unsupported releases of the Software. Maintenance and support of such items may be obtained by Customer under a Professional Services engagement. 6. HARDWARE COMPONENT FAILURE Halogen Is not responsible for the Customer's hardware nor any components that enable the Customer to across Halogen's on - demand data center. 7, TERM AND TERMINATION OF MAINTENANCE AND SUPPORT SERVICES Upon payment of the applicable fees, Halogen will provide M&S Services to the Customer from the Effective Dale until the completion of the M&S Term specified In the Master Agreement. Halogen reserves the right to terminate M&S Services at any time upon thirty (30) days notice for abusive or unprofessional conduct by Customer which Halogen determines materially affects Its ability to deliver the M&S Services described herein. M&S Services are mandatory for the entire term of a subscription License and for the first year of a perpetual License. If hosted, M&S Services are mandatory for the duration of the hosting term Including renewat terms. If the Cuslomer has purchased a perpetual license, Customer may terminate Maintenance at the end of a Renewal Term by providing Halogen with at least thirty (30) days prior written notico, In the event of such termination, the license rights granted under Section 2 of the Agreement shall survive such termination, but Halogen shall have no further obligation to provide any M&S and/or .Hosting Services with respect to the Software. a. INTERRUPTED MAINTENANCE Customer acknowledges and agrees that if the Customer ceases to pay for M&S Services and later requests M&S Services, the Customer will pay to Halogen the Annual M&S Fees for the period In which no M&S Services were provided. Jacksonville Aviation Authority - SI.SA - Subscription On -demand - eA+MK - 03-2006-167.dtK Created on Yl7/2009 Pagt 12 of I b Confidential APPENDIX C ON -DEMAND HOSTING SERVICES 1. HOSTING OF SOFTWARE If applicable, Halogen will provide on -demand hosting services for the Software on Its server for the benefit of the Customer for the Hosting Term. Halogen shall provide the product to the Customer in a secure environment, including protecting the Infrastructure from the external environment via firewall systems and protecting data transmission over secure network connections using SSt_ technology, Roolladminislralor access will be controlled and limited to those that require access to support the piadorm, The Software will be operated in an electronically restricted facility on a raised poor with redundant HVAC, UPS and diesel generator power back-up, and 24x7x305 surveillance of all hosted infrastructure and environmental subsystems. All elements of the selected platform are clustered for redundancy. As a standard service, Halogen currently conducts daily incremental back-ups, weekly and monthly full back- ups; all back-ups are stored at an off -site location. Weekly back-ups are rotated every 4 weeks; monthly back-ups are stored for 1 year. Charges may apply should immediate restore of off -site back-ups be required, 2. CUSTOMER RESPONSIBILITIES Customer's responsibllities will include: (1) complying with all terms and conditions imposed by Halogen In association with Die Customer's enjoyment of the Hosted Service (as provided to Customer by Halogen from time to lime); (II) enabling its own reliable high speed internet connectivity to and from the hosted server (in respect of all locations that need access to the hosted Software); (lit) its own customer premises equipment ("CPE"), including but not limited to administrator and end user workstations; (iv) all other customer relations, fulfillment and obligations; (v) all design and development of the Reviews and Assessments; and (vl) all configuration, use and operation of the Software application to suit the Customer's environment (collectively, "Designated Customer Obligations"). Customer acknowledges and agrees that: (A) the Designated Customer Obligations may change from time to time In conjunction with changes, updates and upgrades to the Software; and (B) a failure of Customer to comply with this provision may, to the extent applicable, negate any support obligations on the part of Halogen. Customer shall be responsible for all users who access Halogen's servers and/or the Software. Customer will provide a primary contact who can be reached by Halogen in the event of scheduled maintenance or a service loss, and will provide Halogen with updates to the primary contact's contact Information in writing or by email. Customer shall not; (1) copy or attempt to copy the Software; (11) manipulate or alter any data or other information on Halogen's servers other than the Review Data of the Customer; or (ill) utilize any automated system to access or to last the Hosted Service or the Software, without the prior express written permission of Halogen. Halogen reserves the right to Immediately suspend Hosting Services for any Customer who breaches the provisions of this Section. 3. SECURITY OF HOSTED SERVICE Customer understands and agrees that Halogen will take commercially reasonable precautions to ensure the Hosted Service is secure. However, Customer acknowledges that the hosting activities will require lransmissio7 of confidential information over the internet„ and that the interned consists of multiple participating networks that are not subject to the control of Halogen, Customer therefore understands and agrees that Halogen cannot and does not guarantee the privacy, security or authenticity of any information transmitted over the Internet, due to the nature of the Internet. Halogen has made provisions to increase the security of all data transfers by ensuring all data transfers are done using a minimum 128-bil SSL encryption. As the Halogen hosting environment evolves with new technologies, Halogen will use reasonable commercial efforts to maintain an equivalent or better level of security and confidentiality of the Customer's data. As part of our ongoing commitment to security, Halogen regularly engages third party experts to perform independent security audits, These audits ensure all systems remain efficient in protecting valuable client information. Halogen will provide a third party security audit report upon Customer request at no charge, once per calendar year; additional requests for security. audit reports during a calendar year will be charged at the rate of USa500.00 per request, To ensure ongoing security of all customer data, all sensitive data will be removed prior to delivery to Customer. Halogen will notify Customer of any known breach of Its security related to areas, locations, or computer systems which contain any Confidential Information of the Customer and shall cooperate with Customer to assist in regaining possession of the Confidential Information and prevent Its further unauthorized use, and take any necessary remedial actions. 4, MAINTENANCE AND UPGRADE$ Halogen will notify Customer of scheduled maintenance at least twenty-four (24) hours in advance. Halogen assumes the responsibility to apply Software upgrades for Customers who have purchased the Hosted Service, 5. OWNERSHIP, CONFIDENTIALITY AND USE OF DATA Customer shall retain all right, title and interest In and to, and have the exclusive use of, the results of the Reviews (the "Review Data"), and Halogen shall have no right, title or interest therein. Customer may access the electronic records and reports containing the Review Data that are generated by the licensed Software. Use of the Review Data and other information by the Customer is at Customer's own risk. For back-up or testing purposes, Halogen may make copies of the Review Data and any electronic records and reports containing the Review pate and maintain such copies for Its records during the term. Halogen may, after the term, maintain back-up copies of confidential Information received from Customer in a secure site, provided such back-up copies are destroyed in accordance with Halogen's then applicable timellne and policies for destruction of all of Halogen's back-up data. The Review Data and any electronic records and reports containing the Review Data that ate stored on Halogen's servers are Confidential Information as defined In Section 10 of this Agreement and may, depending on their nature, include Personal information as defined in Section 11 of this Agreement. Halogen confirms that Its obligations set out In Sections 10 and 11 apply to such Review Data, records and reports. 8. TERMINATION OF HOSTED SERVICE Halogen may terminate the Hosted Service: (1) Immediately, if Customer fails to pay the applicable Hosting Fees as required by this Agreement; or (it) upon 180 days notice in the event Halogen generally ceases to provide Hosting Services for the products purchased by the Customer, Customer may terminate the Hosted Service at the and of an annual hosting period by providing Halogen with at least thirty (30) days prior written notice of its Intention to discontinue the Hosted Service. If Customer has purchased a License with a perpetual license terra and provided the Customer has paid to Halogen all outstanding M&S Fees or other fees owing, Customer is entitled to receive a copy of the Software in CD form for installation and execution on the Customer's internal server. Any such installation, execution and use of the Software shall be subject to the terms of this Agreement. Upon written request from the Customer received within ten (10) Business Days of the effective termination date of the Hosted Service, Halogen will provide Customer, upon written request, with a CD copy of the most recent full back-up of Customer's Review Data, Should further data manipulation be required by the Customer. Customer will request the[ Halogen provide a Services Estimate of the effort required at the time of such request; no data manipulation services will be undertaken by Halogen until Customer has approved and paid the associated costs in writing. Jacksonville Avialion Authority - SLSA - Subscription On-dcmand - eA+MR - 03-2008-157.doe Created on 3/17/2008 (rage 13 of 16 Confidential APPENDIX D TRAINING AND IMPLEMENTATION SERVICES Customer acknowledges and agrees that it is required to undergo the training specified in the Master Agreement and this Appendix D as a condition of using the Software. The cost of such training and Implementation is In addition to the License Fees or any other Halogen Services. The Customer has selected the Implementation Service Package, including [raining, as described below. 1, HEAD START IMPLEMENTATION SERVICE PACKAGE Halogen offers the Head Start Implementation Package for Halogen eAppraisal, and Multi -rater, which combines installation and training services as follows: (a) As part of this Service Package, a Halogen implementation consultant is assigned to work with the Customer for up to ten (10) weeks to ensure proper Implementation_ of the Halogen EPM producl(s) purchased, Deliverablas include: » Use of the formal Halogen EPM implementation methodology • Halogen EPM project tracking • Weekly status updates • Weekly process reviews • Custom Halogen EPM Implementation Handbook 1 eAppraisal process, up to 2 form templates using standard sAppraisal functionality and competencies • 1 Muhl -rater questionnaire (b) Halogen performs product installation by creating application site for the Customer In Halogen's on -demand hosting environment and providing access to the Customer. (c) Halogon provides Product Training -- three (3) days of Process Administration Training; maximum of five (5) attendees per class including trainees and observers, onshe at the Customer's premises. (d) Halogen provides: • One (1) copy of the eAppraisal Administrator Reference Manual » Administrator Reference Manual In PDF format • Generic online eAppraisal Administrator tutorial • Generic eAppraisal End User Guide in PDF formal • Generic online eAppraisal End User tutorial (a) Customer is responsible for supplying forms) and process steps, and for monitoring processes, utilizing Halogen's hot-line support as required for software support related issues. Customer Is responsible for creation and maintenance of all additional forms and processes. Customer understands that the forms as available within the Halogen eAppraisal application may not appear as exact duplicates of the Customer's original MS Word or Excel forms, and that minor variations in form appearance may be required in order to better leverage the capabilities of the Halogen eAppralsal software. (fp The Customer is also responsible for all usar center data, global settings within the options functionality, and extracting data for report generation with external tools. 2. TRAINING MATERIALS & COPYRIGHT Training materials are available only for the current standard release of the product(s) purchased by the Customer. Customer acknowledges that any training materials provided by Halogen to Customer in electronle or hard copy format In connection with these training services are the copyright of Halogen and are for Customer's internal use only. Unless otherwise directed by Halogen. These materials are not to be reproduced, copied or distributed by Customer in any form. Videotaping or other electronic and/or audiovisual recording of a training session conducted by a Halogen Software Trainer Is strictly prohibited. 3. OTHER TRAINING SERVICES Additional Training Services may be procured from Halogen as Professional Services. Customer and Halogen shell enter Into a Services Estimate for the provision of such other Training Services in accordance with the Agreement and Appendix E. Customer may also request additional consulting services from their Halogen implementation consultant if required. Halogen's current rates for such consulting services are as follows: US$1650/month, which would entitle the Customer to work with a Halogen implementation consultant (approximately 2 hours per week to a maximum of 8 hours total per month) doing various tasks to assist Customer In the launch of their eAppraisal project. 'This includes but is not limited to meetings, forms or process reviews or other tasks as discussed with customer during regular weekly meetings. Alternatively, Customer may contract for hourly assistanca. Halogen's current rates are US$250/hour (web -based or telephone consulting); or US$1650/day (onsite consulting) plus travel & living expenses. Halogen would be pleased to provide any or all of the above sorvices by separate quote pursuant to a Services Estimate. Service fees are due to Halogen within thirty (30) days of date of Invoice. 4. TRAINING EXPENSES Expenses are invoiced monthly as incurred. Customer is responsible for travel and living expenses of the Halogen trainer'for training conducted at the Customer's site. These expenses will be Invoiced by Halogen upon completion of the training, according to actual expenses Incurred for air and land transportation, hotel accommodation, meal par diems and incidentals (maximum US$80,001day). Customer is also responsible for reimbursement of any additional travel and living expenses Incurred- by Halogen due to flight cancellations or missed travel connections which are not. caused by the actions of Halogen or of Its employees or agents, If transportation and/or hotel accommodation are arranged by the Customer on behalf of Halogen, such arrangements will be subject to Halogen's written pro -approval. All travel and living expenses billed by Halogen are due upon receipt of invoice. 5. SCHEDULING Training must be booked and taken Wlhln the first twelve (12) months from the Effective Dale as defined herein. Scheduling for training should be done as early as possible to assist in travel arrangements. If Customer deems It necessary to postpone a scheduled training session, it must notify Halogen's Training Manager in writing. Customer is responsible for any fees Incurred by Halogen with respect to previously made travel arrangements for the scheduled training session. For date change requests made less than ten (10) Business Days prior to the scheduled session start date, a fee equivalent to the lesser of (1) US51,660.00, or (it) the Jacksonville Aviation Authority - SI.SA . Subscription On -demand - eA+MR - 03-2005-167.doc Created on 3/17/2009 Page 14 of 16 Confidential contract value of the training and implementation services set out herein, will be charged to the Customer. Jwksonville Aviolion Authority • SLSA -Subscription On-demnnd • M+MR, 03-2008-167.doc Created an 3/17/2008 Page H of 16 Confidcnlial SPECIFICATIONS FOR: ELECTRONIC PERFORMANCE MANAGEMENT PROGRAM JACKSONVILLE AVIATION AUTHORITY REQUEST FOR PROPOSAL NUMBER: 08.11.26101 Pragosal Qp2ninq Tuesday, February 26, 2008 Location: Jacksonville Aviation Authority Administratlon Building, 2nd Floor 14201 Pecan Park road South Jacksonville, FL 32218 RFP #: 08.11-26101 TABLE OFCONTENTS LEGALNOTICE ............................. ........................... .......... ..... ....... ...... Page GENERALINFORMATION— ............................................. --.......Page ARTICLE |— INSTRUCTIONS TOPROPOSERS .......—................. .. Page ARTICLE III — SCOPE OF 8ERV|CE$.... .... ............. ... .................... ... PmQa ARTICLE K/—PROPOSAL FORM ........................ .............. ~.............. pmQe npp#;ow-11-2m1m 2 | REQUEST FOR PROPOSAL Proposal Number: 08-11-26101 Electronic Performance Management Program for the JACKSONVILLE AVIATION AUTHORITY Proposals will be received by the Jacksonville Aviation Authority (JAA) until 2:00 PM (Local Time), on February 26, 2008, at which time they will be opened at the JAA Administration Building, 2'4 Floor, 14201 Pecan Park Road, Jacksonville, FL, for Electronic Performance Management Program. All Proposals must be submitted in accordance with Request For Proposal Number 08-11-26101, which may be obtained after 6,30 AM (EST) on February 1, 2008 from: Jacksonville Aviation Authority Procurement Department 14201 Pecan Park Road, 2"d Floor Jacksonville, FL, 32218 (904)741-2355 RFP #: 08-11-26101 3 GENERAL INFORMATION VEST FOR DISTRIBUTION SHEET AND PRE -PROPOSAL ATTENDAN HEE Copies of the Request for Proposal (RFP) distribution records or the Pre -Proposal Attendance Sheet may be requested by contacting the Jacksonville Aviation Authority (JAA) Procurement Department. WS_MISSION OF PROPOSALS Proposals submitted in advance of the time set for opening should be delivered to the JAA, Attn: Procurement Department, 2"d Floor, 14201 Pecan Park Road South, Jacksonville, FL 32218, Proposers are fully responsible for delivery of proposals. Reliance upon mail or public carrier is at Proposer's risk. Late proposals, as solely determined by the JAA's clock, will not be opened or considered, PROPOSAL _PPFNIN¢_PR:QCEDURE Depending on the type of project for which proposals are requested, the Items read at the opening will vary. Sealed proposals are not public records subject to mandatory disclosure under the Florida Public Records Low until such time as the JAA provides notice of a decision or intended decision to award the contract or within ten (10) working days after opening, which ever is earlier (119.07 (3) (m), Florida Statutes). All 'parts of proposals, including exhibits, are subject to the Public Records Law, and a Proposer may not exclude any portion of the Proposal unless specifically exempted from disclosure by Florida Law. Exemption of financial statements applies only to required submittal for pre -qualification of Bidders on public works projects. RE UESTS FOR PROPOSAL§ RESULTS OR AWARD OF CONTRACT Proposers desiring a copy of the unofficial tabulation sheet, which will contain only the items considered necessary by the JAA, must Include a stamped, self-addressed envelope with their proposal. Or, Proposers may request a copy be sent to them by facsimile, or may obtain a copy after the proposal opening In the Procurement Department. Proposers wishing to view proposals submitted, subject to the above Public Records requirements, must arrange an appointment by contacting the JAA at (904) 741-2070, If copies are requested, an appropriate charge will be assessed, an all copies will be made solely at the convenience of the JAA. All Proposers will be notified by mail of the award of the contract after action by the JAA Awards Committee, Anyone else wishing award information should submit a request In writing and include a stamped, self- addressed envelope, PROPOSAL RESULTS OR AWARD RESULTS WILL. NOT BE GIVEN BY TELEPHONE OR PURSUANT TO VERBAL REQUEST. (The remainder of this page has been intentionally left blank) RFP #. 08-11-26101 ARTICLE I — INSTRUCTIONS TO PROPOSERS 1,01 RECEIPT AND OPENING OF PROPOSALS The JAA will receive Proposals until February 26, 2008 at 2:00 PM (Local Time) for the purpose of selecting a company to provide electronic performance management program for the JAA. The Proposals will be publicly opened at the JAA Administration Building, 14201 Pecan Park Road South, 2nd Floor, Jacksonville, Florida at the above stated time and date. 1,02 DELIVERY OF PROPOSALS An original and five (5) copies of the Proposal and all required supplemental material listed on the Proposal Form must be submitted in a sealed package. The package should be labeled to read: "RFP 08-11-26101, Electronic Performance Management Program, February 26, 2008, 2:00 PM (Local Time)", and addressed or delivered to the JAA, Attn: Procurement Department, 14201 Pecan Park Road South, 2"d Floor, Jacksonville, FL 32218 (PO Box 18018, Jacksonville, Ft. 32229). Each Proposal package submitted must clearly show the Proposer's company name on the outside. Facsimile Proposals will not be accepted, Any Proposals received after the above stated date and time will IVQT be accepted and/or evaluated, Each Proposer is fully responsible for ensuring that its Proposal is timely received, and shall assume the risk of non -delivery or untimely delivery caused by its chose delivery method, whether by US Mail, public carrier or otherwise. This RFP does not commit JAA to pay costs or expenses of any kind Incurred by the various Proposers during proposal preparation, submittal or presentations, If any. 1.03 CQN_T_RACT DOCUMENTS The Contract Documents give the description of the services to be performed under this Contract. The required qualifications of Proposers, other technical information, and the term of the contract are also contained in these documents. The date, time and location of the receipt and opening of proposals are listed In Article 1.01. 1.04 EXAMINATION OF CONTRACT DOCUMENTS The Proposer is required to carefully examine the Scope of Services required and the Contract Documents. It will be assumed that the Proposer has investigated and Is fully informed of the conditions, the character and quality of services to be performed, and the type of services to be provided, and of the requirements of the Contract Documents. 1.05 OBLIGATION OF PROPOSERS The Proposer must fully learn of the JAA's requirements for the services to be provided. Failure to do so will not relieve a successful Proposer of its obligation to carry out the provisions of the RFP. The Proposer must be familiar and comply with all federal, state and local laws, ordinances, rules and regulations that In any manner affect the services. In addition, the Proposer will be held responsible for having examined the details of the proposed Scope of Services. The Proposer will use its personal knowledge and experience or professional knowledge as to the character of the proposed services, and any other conditions surrounding and affecting the proposed services. The submittal of a Proposal will be construed as evidence that all Proposer obligations have been satisfied and no subsequent allowance will be made in this regard. RFP #F 06-11-26101 5 1.06 ADDENDA_..--.CHANGPS WHILE PROPOSiNG No interpretation of the meaning of any part of the RFP, nor corrections of any apparent ambiguity, Inconsistency or error therein, will be made to any Proposer orally. All request for written interpretations or corrections MUST be in writing addressed to the JAA Procurement Department, 14201 Pecan Park Road 2 ' Floor, Jacksonville, FL 32218 (PO Box 18018, Jacksonville, FL 32229) or Fax: (904) 741-2350, All requests must be received at least five (5) business days before February 26, 2008, Proposal Opening date to be given any consideration. All such interpretations and supplemental Instructions will be In the form of written Addenda to the RFP documents, which, if issued, will be e-mailed, mailed or faxed to all known prospective Proposers. However, it Is the responsibility of each Proposer, before submitting its Proposal,, to contact the JAA Procurement Department at (904) 741-2355 to find out if any Addenda were Issued and to make such Addenda a part of its Proposal, In case any Proposer fails to acknowledge receipt of any such Addenda in the space provided on the Proposal Form, its Proposal will nevertheless be construed as though Addenda has been received and acknowledged, Only the interpretation or correction so given by the JAA Procurement Department in writing will be binding and prospective Proposers are advised that no other source is authorized to give information concerning, or to explain or Interpret the RFP Documents, 1.07 PREPARATION OF PROPOSAL The Proposal Farm should be submitted with all proposals. All blank spaces on the form must be typed -in or legibly printed In Ink, Only the Proposal Form and applicable additional Information should be submitted. All documentation submitted with the Proposal should be bound in a single volume. The emphasis should be on completeness and clarity of content and ease of locating responses to requested information. Any information thought to be relevant, but not applicable to the enumerated Scope of Services, should be provided as an Appendix to the Proposal. If publications are supplied by a Proposer, the Proposal should include reference to a document number and/or page number of that Appendix material. Proposals not providing this reference will be considered to have no additional material to be considered during the evaluation process. If the Proposal is made by an individual, he or she must sign his or her name therein and state his or her address and the name and address of every other person interested in the Proposal as principal. If the Proposal is made by a firm or partnership, the name and address of each member of the firm or partnership must be stated, If the Proposal is made by a corporation, the Proposal must be signed by an authorized officer or agent subscribing the name of the corporation with his or her own name and affix the Corporate Seal, Such officer or agent must also state the name of the State under which the corporation Is chartered, and the names and business address of the President, Secretary and Treasurer. If applicable, also provide evidence of registration with the Secretary of the State of the State of Florida for doing business in the State of Florida. 1.08 WIIHDRAWAL OF PROPOSAL Any Proposal may be withdrawn by written request of the Proposer until the date and time set above for the opening of the Proposals. Any Proposal not so withdrawn will, upon opening, constitute an irrevocable offer for ninety (90) days (or until one or more of the Proposals have been duly accepted by the JAA, whichever is earlier) to provide the JAA the services set forth In the attached specifications. JAA action on Proposals normally will take within sixty (60) days of opening; however, no guarantee or representation is made as to the time between the Proposal opening and the subsequent JAA action, RFP #: 08.11-26101 1.09 RESPONSIBLE PROPOSER CRITERIA In considering the responsibility of the Proposers, the JAA will examine the factors listed below and will assign the defined point value on a scaled basis. Proposers must address each factor specifically In their Proposal. A. Proposed price B. Experience Documented evidence of company experience in the installation of five (5) electronic performance management programs which meet or exceed the requirements of JAA. The company or owners of the company must have been primarily in the Project Management / Implementation services for a minimum of three (3) years ending December 30, 2007 and must have worked on similar projects In the past. + Name and describe the type of experience of the individuals who would work directly with JAA on a day-to-day basis during and after implementation, Separately name and describe the type of experience of the Individuals. C. Implementation Time D. Program Features E. Training and IT support. F. Provide five (5) professional references from clients, including contact name, address and phone number, G. Outstanding obligations or contracts that might adversely affect the Proposer's ability to perform on this JAA contract. H, Other matters which may influence the ability of the Proposer to perform the contract I. Proposers performance on previous JAA contracts, if applicable. In this regard, the JAA reserves the right to reject any and all Proposals and to waive any non- conformance In Proposals received, whenever such rejection or waiver is in the best interest of the JAA. 1.10 DISQUALIFICATIONS OF PROPOSERS Any of the following causes may be considered sufficient for the disqualification of a Proposer or rejections of the Proposal: A, Submission of more than one Proposal for the same work by an Individual, firm, partnership or corporation under the same or different names. If a company has more than one division, only one Proposal may be submitted for the same company. B. Evidence of collusion among Proposers, C. Incomplete work for which the Proposer Is committed by contract, which, in the judgment of the JAA, might hinder or prevent the prompt completion of work under this Contract if awarded to such Proposer. RFP #: 0e-11-2001 7 D. Being in arrears on any existing agreement with the JAA or having defaulted on a previous contract with the JAA. For purposes of this section, corporations, partnerships or companies, or firms or other business entities created for the purpose of shielding any individual, firm, partnership, corporation or other business entity from the application of this provision may be considered for disqualification. E. Items V and V above will be considered by the JAA after the opening of Proposals, and, if found to apply to any Proposer, the JAA will notify the Proposer that is Proposal will not be considered for an award of the Contract. The Proposer has five (5) business days to appeal in writing this decision to the JAA Executive Director/CEO, via the Procurement Department, and the decision of the Executive Director/CEO will be final, F. Failure to provide the notarized forms, if any, required in the Proposal documents, and any other requirements listed on the Proposal Form. Minor irregularities that do not materially affect the Proposal may be waived at the sale discretion of the JAA. G. Description of procedures and methods used in the administration of staff. 1.11 REJECTIONS OF IRREGULAR PROPOSAL_ Proposals will be considered irregular and may be rejected if they show omissions, alterations of form, additions not called for, conditions, limitations, unauthorized alternate Proposals or other Irregularities of any kind. The JAA reserves the right to waive any non-conformance or Irregularities of Proposals, or to reject any or all Proposals, in whole or in part, whenever such non-conformance or irregularities are minor and such action is deemed in the best interest of the JAA. 1.12 PUBLIC ENTITY CRIME A person or affiliate who has been placed on the convicted vendor list following a conviction for a Public entity crime may not submit a proposal or bid on a contract to provide any goods or services to a public entity for the construction or repair of a public building or public work; may not submit bids on leases of real property to a public entity; may not be awarded or perform work as a contract, supplier, subcontractor, or consultant under a contract with any public entity; and, may not transact business with any public entity more than the threshold amount provided in Section 287.017, for CATEGORY TWO ($25,000.00) for thirty-six (36) months from ,the date of being placed on the convicted vendor list. 1.13 PIKE -PROPOSAL MEETIN To help ensure that all Proposers are fully informed of the requirements for this Contract, a Pre - Proposal meeting is not required for this project, Proposers are encouraged to submit questions by facsimile within five (5) days of the Proposal Opening date, February 26, 2008 to the JAA Procurement Department at 904,741.2350, 1.14 DISADVANTAGED BUSINESS ENE PRISE_J DBE PARTICIPAIION It is the policy of the JAA to require the inclusion of firms owned and controlled by minorities and women in contract awards and projects whenever feasible. This policy Is consistent with the administrative mandate set out by the United States Department of Transportation in the Code of Federal Regulations in Title 49 at the Code of Federal Regulation (CFR) Part 26, While no participation goal was established for the project, OBE participation is encouraged. RFP #. 08-11-26101 1.15 NON-DISCRIMINATION PROVISIONS The Proposer will have all state, county and local licenses and permits as may be required by law to perform the described services, The Proposer agrees to comply with all applicable federal, state and local laws, including the Civil Rights Act of 1964 as amended. The Equal Employment Opportunity Clause in Section 202, paragraph 1 through 7 of Executive Order 11246, as amended, relative to Equal Employment and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs are incorporated herein by specific reference. The Affirmative Action Clause in Section 503 .of the Rehabilitation Act of 1973, as amended, relative to Equal Opportunity for the disabled is incorporated herein by specific reference. The Affirmative Action Clause in 38 USC Section 2-12 of the Vietnam Veterans' Readjustment Assistance Act of 1974, relative to Equal Employment Opportunity for the special disabled Veteran and Veterans of the Vietnam Era, is Incorporated herein by a specific reference, 1.16 PRQPOSAL_BOND Each Proposer must furnish with its Proposal a proposal bond or a cashier's check payable to the JAA for $1,000,00 (one thousand dollars) as a surety that the Proposal will not be withdrawn for ninety (90) calendar days from date of proposal opening. A proposal bond must be secured from and executed by a surety duty licensed to do business in the State of Florida. Failure to furnish the bond, including power of attorney, if required, may result in rejection of the Proposal. The proposal bond will be returned at the Contract has been approved and awarded. 1.17 EVALUATION OF PROPOSALS AND AWARD OF CONTRACT The JAA reserves the right to accept or reject any or all Proposals. There is no obligation on the part of the JAA to award the Contract to the lowest proposed price and the JAA reserves the right to award the Contract to the lowest responsible Proposer submitting a responsive proposal which is most advantageous and in the best interests of the JAA. The JAA will be the sole judge of the proposals and the resulting agreement that is in its best Interest and Its decision will be final. Evaluation factors to be considered are listed in Article 1.09, Proposers should be sure to address each of these factors. The JAA is under no obligation to contact a Proposer to obtain information required to evaluate the proposal. 1.18 PERFORMANCE BOND The successful Proposer must furnish a performance bond in the amount equal to the proposed cost of the project upon the execution of the Contract to guarantee the performance of all terms and conditions stated in the Contract for either the entire term of the Contract, or on any annual basis for each year of the Contract. The performance bond must be with a corporate surety authorized to do business in the State of Florida and acceptable to the JAA. The bond will be specifically conditioned to perform this Contract. 1.19 SOLICITATION SCHEDULE Proposal Opening February 26, 2008 at 2:00 PM (Local Time) 1.20 PUBLIC MEETING REQUIREMENTS The JAA is required to comply with Section 286.011 of the Florida Statutes. Therefore certain types of evaluation committee meetings and meetings of the JAA Awards Committee or the JAA Board are required to be held in public, with sufficient notice made of the date and time of the meeting. All notices of public meetings are posted at the JAA Administration Building, 14201 Pecan Park Road South, 1'sr Floor, Jacksonville, FL 32218, RFP #: 08.11-26101 9 1.21 PROTEST PROCEDURES Any Proposer adversely affected during this RFP solicitation process may file a Notice of Protest, including all particulars of facts and law on which the protest is based. This notice must be in writing and addressed to the ,IAA, Attn: Procurement Manager, 14201 Pecan Park Road, 2nd Floor, Jacksonville, FL 32218 (PO Box 18018, Jacksonville, FL 32229-0018). A Notice of Protest may be filed at any time prior to award of a Contract, or within five (5) business days of any action taken by the JAA Awards Committee or the JAA Board. Receipt of a protest will be acknowledged by certified letter. The administrative procedures that will be followed by the JAA will be provided to the Protester with this certified letter. 1.22 EXECUTION OF TLig AgREE ENT Within twenty (20) business days after Notice of Award, the successful Proposer will furnish the required certificates of insurance and any other requirements and enter into a formal Agreement with the JAA. Failure to execute the Agreement as provided in these documents within twenty (20) business days from the date of Notice of Award wi►I be just cause, unless such failure has been caused by the JAA, for the JAA to annul and void the award. Award may then be made to another Proposer, or the Contract may be re -advertised, as in the best interest of the JAA. No award will be binding upon the JAA until the Agreement has been executed by all appropriate parties. (The remainder of this page has been intentionally left blank) RFP #; 08-11-26101 to ARTICLE II M GENERAL CONDITIONS 2.01 DEFINITIONS AIRPORT — Jacksonville International Airport AUTHORITY — Jacksonville Aviation Authority CECIL FIELD — Cecil Field Airport CONTRACT — The Contract consists of the document labeled "Specifications for Electronic Performance Management Program, RFP Number 08-11-26101"; Contractor's Proposal; and any Addenda issued prior to and any Modifications issued after execution of the Contract. A Modification is a written amendment to the Contract signed by both parties. CONTRACTOR — Any individual, firm or corporation entering into a Contract to perform the Scope of Services. CONTRACTOR REPRESENTAT.'VE -- Individual(s) designated in writing by the Contractor as the Contractor's Representative, with authority to act for the Contractor in all matters, including changes to Contract terms, CONTRACTING OFFICER -- Designated JAA individual, who provides the JAA Inspector(s) with Contract information and monitors the administration of the Contract to ensure compliance with terms by both the JAA and the Contractor. The Contracting Officer is the only individual authorized to make Contract modifications. CRAIG -- Craig Airport DAYS — Calendar days unless otherwise specified. DBE — Disadvantage Business Enterprise. ELIGIBLE USER — Public agencies and other eligible users that will order products and/or services directly from the Contractor under the Contract. By ordering products and/or services under the Contract, the Eligible User agrees to its terms. Eligible Users are not, however, parties to the Contract. Eligible Users participating in the Contract do so according to the following terms: (1) non JAA Users assume and bear complete responsibility with regard to performance of any contractual obligation or term; (2) breach of a Contract term by any particular User shall not be deemed a breach of the Contract as a whole, which shall remain in force and effect, and shall not affect the validity of the Contract not the Contractor's obligations to non -breaching Users or the JAA; (3) the JAA shall not be liable for any breach by non-JAA Users; (4) each non-JAA User and the Contractor guarantee to save the JAA and its officers, agents, and employees harmless from liability that may be or is imposed by their failure to perform in accordance with their obligations under the Contract, FAA — Federal Aviation Administration. HERLONG — Herlong Airport INSPECTOR -- Designated representative(s) of the JAA, assigned to monitor the services, advise of problem areas and to give a report of conformance or of rejection. The Inspector will be designated at the award of Contract. JAA — Jacksonville Aviation Authority RFP #: 08-11-25101 JIA - Jacksonville International Airport PROPOSAL - The approved forms on which the Proposer Is to submit, or has submitted its charges for the services contemplated, PROPOSER - Any individual, firm or corporation submitting a Proposal for the services contemplated. SERVICES - Everything required to furnishing or performing under this contract document. $BE - Small Business Enterprise, TSA - Transportation Security Administration. 2.02 SCOPE OF SERVICES AND CHANGES IN SERVICES The work to be performed under this Contract is specified in Article III, Scope of Services, with descriptions of the tasks to be completed, the reports to be furnished and other Contract requirements. The JAA, without invalidating the Contract, may order extra work or make changes by altering, adding to, or deducting from the work, and the Contract will be adjusted accordingly, based on a mutually agreed upon negotiated price. Changes in the work and the Contract sum may only be changed by prior written agreement executed by the parties with proper authorization to do so. The Contract term will be for an initial period not to exceed three (3) years, with two (2), one (1) Year renewal options available at the sole option of the JAA. The Contract may be terminated at any time with thirty (30) days written notification, with or without cause, by this JAA. All JAA Contracts are subject to the availability of budgeted funds. 2,04 INDEMNIFICATION Any Contract resulting from the RI=P will include the following provisions: A. Contractor shall hold harmless, indemnify, and defend the JAA against any claim, action, loss, damage, injury, liability, cost and expense of whatsoever kind or nature (including, but not by way of limitation, attorney's and paralegal fees, court costs, expert witness fees and filing fees) arising out of any injury (whether mental or corporeal) to persons, including death, or damage to property arising out of: (i.) or incidental to the performance of the Agreement or work or services performed there under, whether due to or caused by negligence of the JAA or otherwise, excluding only the sole negligence of the JAA; (ii.) the breach of the terms of this Agreement by Contractor or its agent; and/or (ill.) the failure of Contractor to comply with all applicable laws.: e. LOSS OR DAMAGE: The Contractor shall be held responsible for, and be required to make good at its own expense, all damage to person or property caused by itself or its subcontractor(s), agents, or the employees of either of them, during the progress of the service and until its final completion. C. The Contractor shall defend, indemnify and hold harmless the JAA, its officers and employees against all liability, damage and expense, including reasonable attorney's fees, for damage to property of any kind whatsoever and to whomever belonging, including Contractor, or injury to or death of any person or persons, Including employees of Contractor, resulting directly or indirectly from the performance of work under this Contract or arising from the use of the premises, facilities or services of the JAA, Its officers or employees. RFP #; 08-11-26101 12 D. JAA shall give Contractor reasonable notice of any suit or claim for which indemnification will be sought under this Article, allow Lessee or its insurer to compromise and defend the same to the extent of its interests and reasonably cooperate with the defense of any such suit or claim. E. This section relating to Indemnification, shall survive the term of this Agreement, for actions which occurred during the term of this Agreement, whether such term expires naturally by the passage of time or is terminated earlier pursuant to the provisions of this Agreement. F. JAA may per Contractor, its agents, subcontractors, material , men, servants, employees or licensees (hereinafter collectively referred to as "Agents") to use JAA's tools, machinery, equipment or vehicles (hereinafter collectively referred to as "Equipment") from time to time and for such periods of time as JAA in its sole discretion shall determine. JAA makes no warranty, express or implied, with regard to the condition of the Equipment and makes no warranty that the Equipment Is tit for any particular purpose whatsoever, Contractor agrees: (i.) to ensure that Contract and its Agents shall inspect the Equipment before using the same; (ii.) that it and its Agents shall inspect the Equipment "AS IS"; (Ili.) that the persons using the Equipment are trained and knowledgeable in the use of the Equipment; and (iv.) that the JAA has no duty to train any .persons in the use of the Equipment. Contractor shall indemnify, defend and hold harmless JAA, its agents, servants, parent company, insurers, employees and licensees, as applicable, from any and all liability, claims, demands, suits and actions, Including, but not limited to, third party, actions by Agents, servants, employees or licensees of Contractor, by reason of any Injury or damage to any person or any property as a result of the use, misuse or abuse of the said Equipment by Contractor, and/or it Agents. 2.05 INSURANCE Any Contract resulting from this RFP will include the following provisions: A, The Contractor will not commence work under this Contract until It has provided certificates to the JAA for amounts of insurance as follows and without limiting its liability under this Contract: (1) Worker's Compensation insurance: Florida Statutory Requirements. (2) General Liability: $2,000,000.00 Comprehensive General Liability (including products and completed operations aggregate) (3) Automobile Liability, Privately Owned Vehicle: Minimum State of Florida Requirements Business Auto Liability for Commercial Vehicle $1,000,000.00 combined single limit. (4) Deductibles and Self -Insured Retentions: Any deductibles or self -insured retentions must be declared in writing by the JAA. (5) Acceptability of Insurers: Insurance is to be place with Insurers with a Best's Rating of no less than A;VII, and approved to do business in the State of Florida. B. The Comprehensive General Liability insurance specified above will, either by separate policy, provisions in the policies or by special endorsements attached thereto, insure JAA against the risks to which It Is exposed as the owner of the premises. Furthermore, the Contractor shall specify JAA as an additional insured for all coverage except Worker's Compensation. Such insurance shall be primary to any and all other reinsurance or self Insurance maintained by JAA. RFP #; 08-11-26101 13 The inclusion of JAA as an additional Insured is not intended to, and will not make the JAA a partner or joint venture with Contractor in Contractor's services at the JAA. Such policies will also insure Contractor against the risks to which it is exposed as the Contractor authorized under this Contract, and will be for fuu coverage without any deductibles and/or retentions subject to approval by the JAA and will contain provisions by the respective Insurers waiving the right of such insurers to subrogation, The waiver of subrogation shall be In favor of JAA, its board members, officers, employees, agents, successors and assigns. C, The proof of insurance supplied to JAA for its approval before execution of this Contract will have the words "endeavor to" stricken. D. All insurance will be maintained in force until completion of the work, and will include an endorsement requiring thirty (30) calendar days prior written notice to the JAA Risk Manager before any change or cancellation is made effective. E. The indemnification provisions In the Agreement are separate and is not limited by the type of insurance or insurance amounts stated above. F. Any Subcontractor of Contractor shall procure and maintain the insurance required of Contractor hereunder during the life of the subcontract. Subcontractor's insurance may be either by separate coverage or by endorsement under Insurance provided by Contractor. The Contractor shall submit Subcontractors' certificates of insurance to the JAA Risk Manager prior to allowing Subcontractors to perform work on JAA property. G. Contractor and its Subcontractors' certificates of Insurance shall be mailed to the JAA Risk Manager,14201 Pecan Park Road South, Jacksonville, FL 32218, 2.06 RESPONSIBILITIES OF THE NTRACTOR A. A mandatory post award conference will be scheduled after the Contract is awarded, when the Contractor will furnish the performance bond, certificates of insurance, copies of licenses, permits and other items required by the JAA. B. The Contractor will begin the services as described in the Contract upon issuance of a written Notice to Proceed by the JAA, C. The Contractor is responsible for the professional services, technical accuracy, and timely completion of the work to be done, and for compliance with all terms and conditions of the Contract. b. The Contractor will remain liable for all damages to, or incurred by, the JAA caused by the Contractor's negligent performance of any of the services furnished under this Contract. E. The Contractor represents that is an Independent Contractor and not an employee of the JAA, nor are any of Contractor's employees performing services in furtherance of this Contract to be considered employees of the JAA. The Contractor is responsible for any federal or state taxes applicable to this Contract and for complying with the requirements of all federal and state laws about income tax withholding, unemployment insurance and other Insurance applicable and necessary for Its employees. Employees of the Contractor will not be eligible for any Federal Social Security, State Worker's Compensation or unemployment insurance under this Contract except as employees of the Contractor. F. The Contractor will designate in writing a qualified person(s) to act as its representative. The Contractor's Representative(s) will have authority to act for the Contractor in all matters covered by this Contract. The Contractor's Representative(s) will be authorized to submit RFP #; 08-11-26101 14 written estimates and any changes to these estimates, make joint inspections with the JAA Inspector at time designated by the JAA and will be available to meet with the JAA during the working hours of the JAA and to answer questions for the JAA Inspector and the JAA Contracting Officer, C. The Contractor will comply with ail provision of the Contract, and will not commence any additional work without submitting a written estimate of charges to the designated JAA Inspector. All charges over this estimate must be pre -approved In writing by the JAA Inspector, or payment will only be made for only the original estimated amount. K The Contractor will have a competent Contractor's Representative on the job at all times when services are being performed with full authority from the Contractor and who is satisfactory to the JAA. All representatives must be thoroughly familiar with the Contract terms as well as the following: 1. Provide and adequate work force to service the program according to Contract requirements. J. All personnel employed by the Contractor will be competent, trustworthy and properly trained. The Contractor and its employees will be required to comply with all the applicable regulations of the JAA. The JAA will require the Contractor to remove from JAA property all employees deemed careless, incompetent, or otherwise objectionable and/or detrimental to JAA interests. The Contractor must have on site at all times at least one individual that understands and clearly speaks English. Any vehicles used by Contractor employees will have the company name clearly visible with a sign on the side or with an easily readable placard or sign in the front window and will only be parked in designated parking areas. All items brought into the JAA Administrative Building or JIA Terminal or moved into security zones must be cleared through the applicable security control checkpoints. K. In addition to all JIA security rules and regulations, which will be provided to the Contractor at the post award conference, the Contractor will inform their employees, and ensure their compliance with the following; (1) No guns, knives or other weapons are allowed on the JAA premises. (2) No drugs or other prohibited substances, including alcohol, are allowed on the JAA premises. (3) All building regulations concerning smoking. L. The Contractor- is responsible for the repair or replacement cost of any damage to JAA property. Failure to report the same within the specified time may be cause for termination of this Contract. The Contractor is responsible for reporting, In writing, within twenty-four (24) hours the occurrence of damage to property of the JAA or Its tenants. Failure to report the same within the specified time may be cause for termination of this Contract. M. Contractor's employees will not be assisted or accompanied by non -employees during the performance of the Scope of Services. N. The Contractor will furnish all equipment and supplies necessary to perform the services of the Contract,' Q. The Contractor is liable for any expense incurred as a consequence of any traffic infraction or parking violations attributable to employees of the Contractor. RFP #: 08-11-26101 I5 2.07 RESP9NSIB.I.LITES OF THE JAA A. At the post award conference, JAA will provide a list of personnel, with phone numbers, who are designated as JAA contacts. The list will be updated as necessary. B. JAA will promptly notify the Contractor, or his designated representative of any problems encountered during the Contract term and will arrange for a meeting to resolve issues. 2.08 COMEENSATION Compensation will be paid In accordance with the Contractor's proposed price submitted on the Proposal Form. An original and one copy of the invoice, which must reference the purchase order number and month of service, should be mailed to the JAA, Attn: Accounts Payable, PO Box 18018, Jacksonville, FL 32229, Invoices will be processed In accordance !with normal JAA procedures, which is thirty (30) days net after receipt of an approved invoice, 2.09 PERMITS AND L.ICEN E Work permits and licenses necessary to carry out the services will be secured and paid for by the Contractor and remain In effect throughout the duration of the Contract. 2.10 aAA S RIGHT TO TERMINATE CONTRACT This Contract may be terminated by the JAA in accordance with this clause whenever the JAA determines that such termination Is in the best Interest of the JAA. Such termination will be effected by a thirty (30) day prior written notice to the Contractor stating the date upon which such termination becomes effective. Unsatisfactory performance by the Contractor may result In immediate cancellation of this Contract. This Contract is always subject to availability of budgeted funds, 2.11 ASSIGNMENTS The Contractor will not assign or otherwise transfer its rights under the Contract without the prior written consent of the JAA, nor will the Contractor assign any monies due or to become due to him hereunder, without the prior written consent of the JAA. 2.12 SUSCONTRACTS If Subcontractors are to be used, the Contractor will, as soon as practicable sifter signing the Contract, notify the JAA in writing the names of Subcontractors proposed for the work. Subcontractors will not be employed unless and until they are approved by the JAA. The Contractor is as fully responsible to the JAA For the acts and omissions of its Subcontractors and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him. It is the responsibility of the Contractor to ensure that Subcontractors comply with all terms and conditions of this Contract, Nothing contained in the Contract documents creates any contractual relationship between the Subcontractors and the JAA. The JAA recommends that all Subcontractors enter Into a formal Contract with the prime Contractor that clearly lists all of the agreed upon conditions. 2.13 CHANGES IN PERSONNEL The Contractor will notify the JAA contact in writing, prior to affecting a personnel change concerning the professional personnel assigned to the Contract. The JAA will have the right to reject any personnel assigned to perform work under this Contract. RFP #: 06-11-26101 16 2A4 NO INDIVIDUAL LIABILITY No member, officer, agent, director or employee of the JAA or Contractor will be charged personally or held contractually liable by or to the other party under the terms or provisions of the Contract or because any breach thereof or because of its or their execution or attempted execution. 2.15 ARTICLE/SECTION HEADING The article and section headings contained in this RFP are included for convenience only and are not to be considered a part hereof or affect In any manner the construction or interpretation of the RFP. 2.16 ORDER OF PRECEDENCE In the event of any conflict between the provisions of the Contract, the provisions of the JAA's RFP Number 08-11-26101 and Proposer's Proposal, referred and incorporated In the Contract, said provisions will be given preference in the following order; 1) the Contract; 2) JAA's RFP Number 08-11-26101, and 3) Proposer's Proposal. 2.17 VENUE The venue of any legal action brought by or filed against the JAA relating to any matter arising under this Contract will be exclusively in the appropriate court, sitting in Duval County, Florida that has jurisdiction over such legal action. This Contract will be governed by and Interpreted under the laws of the State of Florida. Le]zi71-- TL I7 Failure by either Party to Insist upon strict performance of any of the provisions of this Contract will not release either Party of any of its obligations under the Contract. 2.19 ENTIRE AGREEMENT This Contract is the entire agreement of the Parties and the Parties are not bound by any stipulations, representations, agreements, or promises, oral or otherwise, not printed or inserted in this Contract. Contractor agrees that no representations have been made by the JAA to induce the Contractor to enter into the Contract other than as expressly stated in this Contract. This Contract can neither be changed orally, nor by any means other than by written amendments expressly referencing this Contract and signed by all Parties hereto. 2.20 PROPRIETARY INFORMATIO In accordance with Chapter 119 of the Florida Statutes (Public Records Law), and except as may be provided by other applicable State and Federal Law, all Proposers should be aware that the RFP's and the responses thereto are in the public domain. However, the Proposers are requested to identify specifically any information contained in their proposals, which they believe to be exempt from disclosure, citing specifically the applicable exempting law. The JAA will consider a Proposer's opinions regarding the applicability of Chapter 119, Florida Statutes, but shall not be obligated to concur in such opinions, and shall have no liability to a Proposer for making public any information contained In a Proposal, All Proposals received from Proposers in response to the RFP will become the property of the JAA and will not be returned to the Proposers. in the event of Contract award, all documentation produced as part of the Contract will become the exclusive property of the JAA. RFP #; 08.11-26101 17 ARTICLE III -- SCOPE OF SERVICES 3.01 GENERAL OVERVIEW The JAA owns and operates the Jacksonville Airport System which consists of the Jacksonville International Airport (JIA) serving the commercial passenger and air cargo aviation needs of Northeast Florida and Southeast Georgia; Craig Airport, serving c*orporate and general aviation; Heriong Airport, serving the recreational and sport flyer; and Cecil Field, ideally suited for major aircraft maintenance, repair and overhaul. As the owner and operator, the JAA desires a turn key solution comprised of electronic performance management software. The software at a minimum must Include the following modules: performance management, goal management, compensation and feedback and succession. This RFP defines the minimum requirements for the desired system. It Includes the work to be performed, furnishing and delivering the solution, planning, organizing, Installing, and managing the resources to successfully complete all phases of the project within the defined project schedule. The successful Proposer will also be responsible for all training and other matters that may be reasonably expected so that JAA personnel can manage the system after the delivery and acceptance of the system. 3.02 UNERAL PROGRAM FEATU — MININUM REQUIREMENTS 1. The solution will include the following: a. Electronic Signatures. b. Electronic Mail (E-Mail) capabilities with Lotus Notes. G. Customization of forms and templates to meet JAA business needs and requirements, d. Legal Word Search, Spell Check and Writing and Formatting assistance, e....Integration with AIDP (Automatic Deposit PayroltSystem): f. Automatic updates and changes. g. Ability to host the system. h. Back—up and recovery system defined, 1. Historical retrieval of performance evaluations and notes J. Customer Service and Information Technology support. 2. The successful Proposer shall: a. Commit to working with JAA users during and after implementation for the purpose of advising on creative solutions and modification to system that will optimize utilization. b. Utilize its expertise, knowledge and experience within the industry to assist the JAA In meeting or exceeding the technical and functional capacity of the selected system. 3.03 MI—NIMUM TRAINING RE UIREMENTS A, Training The Proposer shall develop specific schedules for end users, administration & maintenance training. These classes will be held at JAA's computer training lab and will be scheduled after the system is installed to allow for effective and efficient training of all end users on all features. Anticipated training schedules and requirements will be defined in the following sub -sections. R. Uspr Training RFP #: 08.11-26101 18. The Proposer shall provide end user training in compliance with the requirements of the project scope and in order to facilitate the use of new performance management system by JAA. employees. Training shall be divided Into two general categories; classroom training and administration training. C, Classroom_ training The Proposer will provide on -site training of at least 20 end users on performance management system. The anticipated training class size is of 10 students of approximately 2 hours in duration. Topics to be covered in phone training include, but are not limited to, the following: 1. Setup of employees 2. Establishing and entering goals and objectives 3. Completed the performance evaluation 4. Forwarding the performance evaluation on for signature 5. Completing and integrating the feedback module 6. Applying the succession module i. Recalling previous performance evaluations 8. Rating and scoring system 9. Accessing & Navigating through the system 10. Q&A D. Administration and Maintenance Training This training is oriented towards showing the Administrators how to monitor component performance, check interface status, control access, and make minor adjustments to configurations. Accordingly, this training provides for the day-to-day operation of the performance system to all Administrators to add/change users, subscribers, auto attendants and basic security policies. The Proposer shall provide up to 4 administrative/technical users with advanced training on the following items: 1. Day-to-day operation including moving, adding, and changing users. 2. System troubleshooting and repair. Includes an overview of the operation of the network and diagnosis of common problems including failure modes of each key network element. 3. Monitoring and network management of system. Training will be performed on -site and will require, at a minimum, thirty-two (32) hours of classroom instructions. Minimum training deliverables for all training sessions are that users have a general proficiency of system, E. Trainlno Materials and Documentation Documentation must be provided for all system components which includes, but not limited to, routine maintenance, basic troubleshooting, and day to day operational procedures. 3.03 PROJECT MANAGEMENT ELAN A, Project Plal]njno 1. The Proposer shall schedule an initiation meeting with the JAA Project Manager within three (3) business days after award. At this meeting the Project Manager will request delivery of a Project Management Plan (PMP) covering all aspects of the implementation effort to be undertaken. The plan shall include and is expected to be based largely on the contents of all project information gathered. The PMP is expected to be a living document and the Proposer shall make that document available to JAA either on-line or in hard copy. RFP #: 08-11-26101 19 2. The PMP document shall include contract Information to include, but not limited to: a, Organizational Information for Proposers identity of key personnel involved in the project. b. Information on staff involved in the project. c. Roles and responsibilities outline identifying: a. Project manager b, Lead project engineer B. Implementation plan The Proposer will perform Project Management that requires the development of an Implementation Plan, This document defines what, how, and when the system will be implemented, This document specifically includes all test plans. This document may be reviewed and/or modified as required at various times throughout the project, At the time of project sign -off, the Proposer will present the final and closed document to JAA, 1. Implementation Plan including, but not limited to: a. Implementation schedule b. Implementation team c. Description of Project Team including; a. Roles and responsibilities. b, Qualifications, and certifications as applicable d. Equipment list e. Equipment staging plan f. Pre -deployment test plans g. Acceptance test plan h. Change management plan identifying: a. Change management procedures b. Change management review team c. Problem reporting and escalation procedures As specified, this document will be created at the beginning of the project, will act as a living document for the duration of the project and will be delivered at the end of the project. At the time of project sign -off, the Proposer will present the final and closed document to JAA. 3.11 POST IMPLEME TATION STANDARD SERVIC S A. Post Implementation S rvic s The Proposer must include post implementation services. This service will commence on the date of system acceptance and expire one year after acceptance. The JAA shall have an option for two (2) one (1) year extensions. An overview of the post implementation service requirements are listed below: a. Structure and location — provide central, via local or toll free number, call tracking and call dispatch services. b. Service support 24 X 7 X 365. C. Maintenance diagnostic tools. d. Parts inventory. a, Response - no longer then 2 hours (phone) and 4 hours on site. f. System upgrade capability and procedures -- propose system software upgrades as part of ongoing system maintenance. RFP #: 08-11-26101 20 1. Upgrades will be performed In test environments prior to implementation in a production system. 2. Upgrades are to be performed after-hours or during periods of minimal utilization and will be scheduled. 1 Upgrades Include appropriate acceptance test procedures, go/no-go criteria, and back out plans. Alarm reporting. Trouble escalation procedure. Services shall include opening trouble tickets, and notifying JAA of trouble escalations on troubles with the system and associated hardware. Proposer shall be responsible for all parts, labor, testing and all services required to maintain the system, in addition to providing dial up support, tracking and coordinating all troubles to the system. D. Acceptance Plan The Proposer will perform acceptance testing to ensure availability, reliability, and security for the data components to this solution. A comprehensive set of tests will ensure complete satisfaction with the finished implementation. System acceptance will be based on performance monitored for 30 days at JAA's location, but will not begin until 30 days after all departments have successfully Implemented the systems and all training is completed. Prior to acceptance, the Proposer will present to JAA the results of these tests along with an Itemized hardware/software inventory, and diagrams that document each aspect of the project. Upon request, individual tests will be demonstrated to JAA staff members to assure accuracy of the results. RFP #: 08-11-26101 21 ARTICLE IV -- PROPOSAL FORM Proposer's Name: CHECKLIST OF REQUIRED DOCUMENTS TO BE SUBMITTED The following checklist is provided for convenience. The Proposer if responsible for carefully reviewing the submittal requirements in the RFP and submit all Information requested. PSI A. PROPOSED PRICE Year One Price: $ Year One Price Installation Services: Year Two Price: Year Three Price: T * Pricing should include; Support Maintenance Services, MonJloring/Alarming Services and Standard Services PART II A, Fully executed Conflict of Interest statement (Attachment 1) B. Warranty RFP #: 08-11-26101 22 Acknowledgment of the following Addenda Is hereby made: Addenda No. bate: Proposer Name: Authorized Agent's Signature: Printed Name: Proposer's Initial: Date: Title: Propose is a: [ ] Corporation [ ] Partnership ( ] Individual Federal Identification Number: Remittance Address: Telephone Number: Facsimile Number: RFP #: 06-11-26101 23 NO PROPOSAL FORM If your firm cannot submit a proposal at this time, please provide the information requested in the space provided below and return It to: Jacksonville Aviation Authority Attn: Procurement Department PO Box 18018 Jacksonville, FL 32229 Please be sure "NO PROPOSAL" and the proposal Number are clearly shown on the outside of the envelope. RETURN THIS FORM ONLY. We are unable to submit a proposal at this time due to the following reasons: 1. We unable to provide the nature of the service/products requested. 2. Requested specifications are too restrictive, (Please elaborate) 3. We are unable to comply with other terms of this invitation/request. 4. Request was not sufficiently clear. 5. Other: Please state the reasons in detail, Comments: Name of Firm; Signature: Printed Name: Title: Telephone Number: Address: City: Fax Number: State: zip Code: (The remainder of this page has been Intentionally left blank) i RFP #: 08.11-26101 24 EXHIBIT A CONFLICT OF INTEREST CERTIFICATE Proposer must execute either Section I or Section 11 hereunder relative to Florida Statute 112.313(12), Failure to execute either section may result In rejection of this proposal. SECTION I I hereby certify that no official or employee of the JAA requiring the goods or services described in these specifications has a material financial interest In this company. Signature Name of Official (type or print) SECTION II Company Name Business Address City, State, Zip Code I hereby certify that the following named JAA official(s) and/or employees(s) having material financial interest(s) (in excess of 5%) In this company have filed Conflict of Interest Statements with the JAA Executive Director's / CEO Office, 14201 Pecan Park Road, Jacksonville, FL 32218 prior to the time of proposal opening, Name Title or Position pate of Filing Signature Name of Official (type or print) RFP #: 08-11-26101 25 Company Name Business Address City, State, Zip Code PUBLIC OFFICIAL, DISCLOSURE The JAA requires that a public official who has a financial interest In a proposal or contract make a disclosure at the time that the proposal or contract is submitted or at the time that the public official acquires a financial interest In the proposal or contract. Please provide disclosure, If applicable, with proposal. Public Official: Position Held: Position/Relationship with Proposer: RFP M 0e-11-26101 26 EXHIBIT 2 Tracey Delay Cost Estimate - Valid To: 1 Account H A L a o a W December 13, 200$ s13-ssFlttc:7758aa.649saa 0- t: n r: T W A R L Number of License Seats 400 • reaY 1 i'RR M&5 IrtCluoud +8 .....................................................r.....,........ t.....,.,.,.,,.,...,.., 214 8 .,.t..,...,:7.,., mplemontatan & Trainin>} $5 200.00 I ralnin8 Travel & LIvmB TB13[7 ..D fear 1 Total � •�.••••••,..•••.•.•••••.. 1S13f41A.78 fear 2 M&5 irloluded $$ 557 07 i'a"t .............................. fear , M&8Included :...,. y8,5S7.07 total Cost over Term: i r. $30,528.01 omin{tor (Total COSt.oveY Term}• ...... . $9,943.36 'SO (Total Cost over Term) „.....:.................................... $6,63i.70 �FtIS Connect Total Cost over Term t $6,631,70 rota) Cost over Term . with Options: j $53,735.87 Cost Estimate disalaved In: US Dollars I I rill, Investment .............................. (M&San.......................................y....:........................... YRaY i Eoe d HRStinS InCludOd�. �. $12,248.32 Implamantation & 7rainin } ..» $5 200.00 ................... Trafnm0 1 ravel & Ltvmq T130 Year I Total ...................1 $17,AA8 32 .................................. Year 2 M&5 and 13oatln$ Included , $12 623:73 Year 3 M&Sand Hostln� Included $12,623.73 Total Cost over Term: $42 695.78 l dittirlpur (Total Cost over Term) ; $9 9a3,&8. S 7 Total Cast over tarrri , $6,63130 WF315 Connect ('total Cost aver Torm�,•, �6.631.70 Total Cost over Term -with Options: $68,802.54 Dollar Value of Discount in Yoar 1 534P,28 Dollar Value of Miscount in Year 1 $504,95 DISCOUNT: 4.0% DISCOUNT: 4,0% �, ,",:'•.lit � -;��:, ,...p0 i.r :..,. •,, i '' : .,,.-., ::.: a '.:.�-; ': �,.. 8'.4 ., ':.;, .. � F:: 9's 5 , Ims cost estimate Is Vaud until December 77, 2008 Pape I of This Cost Estimate contains Halogen Confidential Information. You are not authorized to redistribute the Cost Estimate without Halogen's prior written permission. H A L 0 6 E N' $ 0 F T W A R K Number of License Soots Cost Estimate Valid To: December 13, 2008 400 of Options Chosen Dollar Value of Discount in Year 1 $1,177.80 Dollar Value of Discount in Year 1 $1,177,60 DISCOUNT* 8.0% DISCOUNT" 8.0% P's , , A 1w) V;04 q;; 4'%f L o "q il," TI cost estimate Is valid until occombor 13, 2008 This Cost Estimato contains Halogen Confidential Inlotmautm, You are not authorized to redisl6bole the Cost Eslimale without Halogen's prior written permission, CCost Estimate - Valid To: ° N,. a E S 0 FDecember 13, 2008 Halogen Training: Halogen eAppraisal training focuses on creating performance appraisal processes, including configuring the workflow (process steps), creating forms, adding development plans and corporate goals, adding participants to the process and assigning forms,. and customizing notifications. Halogen eAppraisal training will teach acirninistralors how to create and implement performance management processes, and how to manage the process while it is in progress, including accessing employee information, rolling back process steps and running reports. Product Installation: On Promise: Halogen assists Customer in Product Installation through web-basod Technical IT installation and Technical Training session. This includes user import it Customer is ready. On Demand; Halogen creates application site in Halogen's on -demand hosted environment and provides access to the Customer. Number of days with a Halogen Trainer; 2 Number of weeks with an Implementation Consultant: 8 Administrator Reference Manual and Administrator Tutorial Included for each product purchased, Customer is responsible for: • supplying and approving up to 2 appraisal form(s) supplying and approving steps for I appraisal process monitoring processes using Halogen's hot -one support as required for software support related Issues creating and maintaining all additional forms and processes Customer recoives Process Administration Training Course, maximum 5 attendees per class including trainees and observers, on - site at Customer's Premises, Customer Is responsible for travel and living expenses. Deliverables: • Use Of the formal Halogen EPM implementation methodology • Halogen EPM project tracking • Weekly status call and process review Custom Halogen EPM Configuration Summary Report I Halogen eAppraisal process, up to 2 form templates using standard Halogen eAppraisal functionality and competencies Cost emhmata Is valid until n—hnr is gma Derv.. v M 1 This Cost Estimate Contains Ha"on C orthdantial Information. You are not authorized to redistribute the Cost Estimate without Halogens prior written permission. EXHIBIT 2 III H A L O G E N 5 0 F T W A R E SOFTWARE LICENSE AND SERVICES AGREEMENT Contract No. 11-2008-888 THIS AGREEMENT ("Master Agreement") is entered into between: Halogen Software Inc., ("Halogen") having a principal place of business at 495 March Road, Suite 500, Kanata, Ontario, CANADA K2K 3G1 and City of Tamarac (the "Customer"), having a principal place of business at 7525 NW 88" Avenue, Tamarac, FL USA 33321 and is effective as of the date this Agreement has been signed by both parties ("Effective Date"). WHEREAS Halogen is a company that, among other things, has developed and is the owner of certain computer software programs; AND WHEREAS Customer wishes to license the Software described in Appendix A and to procure other services as described herein; NOW THEREFORE in consideration of the mutual promises, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, Customer and Halogen agree as follows: 1. SOFTWARE AND SERVICES Customer hereby licenses and/or purchases the following Software and/or Services at the stated quantities and prices from Halogen, subject to the General Terms and Conditions attached hereto as Schedule A. SOFTWARE Software License Description License Term Price Per License No. of Licenses Total License Fees Halogen eAppraisal Perpetual US$36.80 400 US$14,720.00 TOTAL LICENSE FEES US$14,720.00 OTHER LICENSED PRODUCTS/SERVICES Description License Term No. of Licenses One-time License Fee Halogen® HRIS ConnectTm N/A N/A US$3,995.00 TOTAL OTHER LICENSED PRODUCTS/SERVICES US$3,995.00 MAINTENANCE AND SUPPORT SERVICES Software M&S Term Total M&S Fee Halogen eAppraisal Twelve (12) Months US$3,238.40 Halogen® HRIS ConnectTM Twelve (12) Months US$878.90 TOTAL MAINTENANCE AND SUPPORT FEES US$4,117.30 HOSTING SERVICES On -demand Hosting Services Hosting Term Total Hosting Services Fees NOT PURCHASED TOTAL HOSTING SERVICES FEES NOT PURCHASED City of Tamarac - PerpeluaI - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page I of IS Confidential TRAINING SERVICES Training Service No. of Business Days/Hours (if applicable) Total Training Fees Head Start Implementation Service Package N/A US$5,700.00 TOTAL TRAINING SERVICES FEES US$5,700.00 PROFESSIONAL SERVICES Professional Services Fixed Rate Hourly Rate Total Professional Services Fees NOT PURCHASED TOTAL PROFESSIONAL SERVICES FEES TOTAL FEES Item Total Fee Software US$14,720.00 Other licensed software products/services US$3,995.00 M&S Services including HRIS US$4,117.30 Hosting Services NOT PURCHASED Training Services US$5,700.00 Professional Services NOT PURCHASED TOTAL (EXCLUSIVE OF TAXES) US$28,532.30 The above pricing shall apply provided that this Agreement is executed and returned by Customer prior to 5:00 pm (ET) on December 13, 2008. Time -limited Discount A License Fee discount of eight percent (8%) shall apply to Halogen eAppraisal only, reducing the total Software License Fee payable to US$13,542.40, provided that this Agreement is executed and returned by Customer prior to 5:00 pm (ET) on December 13, 2008, after which time no such discount shall apply. 2. PAYMENT TERMS Customer agrees to the following payment terms with respect to Software and Services (as defined herein): (a) License Fees. License Fees are due and payable within fifteen (15) days of the Effective Date for the initial licenses granted under this Agreement. Additional License Fees applicable to any additional licenses purchased by Customer will be calculated in accordance with Halogen's then -current price list, and are due and payable within fifteen (15) days of Customer's receipt of Halogen's invoice. (b) M&S Services Fees. M&S Services Fees are invoiced annually in advance at the beginning of each initial M&S Services term or M&S Services renewal term, and are due and payable within fifteen (15) days of Customer's receipt of Halogen's invoice. Additional M&S Services Fees that result from the acquisition of additional Software Licenses are due when the additional Software Licenses are purchased by Customer and will be prorated to the end of the then -current M&S Services term. (c) Hosting Services Fees. If applicable, Hosting Services Fees are invoiced annually in advance of the initial and each renewal hosting term and are due and payable within fifteen (15) days of Customer's receipt of Halogen's invoice. Additional Hosting Services Fees that result from the acquisition of additional Software Licenses are due when the additional Software Licenses are purchased by Customer and will be prorated to the end of the applicable Hosting Services term. (d) Training Services. Training Services fees specified in this Master Agreement including Appendix D are due and payable within fifteen (15) days of Customer's receipt of Halogen's invoice. Fees for additional Training Services are payable in accordance with the schedule set out in the applicable Services Agreement. (e) Professional Services Fees and Expenses. Unless otherwise specified in the Master Agreement or in a Services Agreement, Halogen shall invoice Customer monthly for Professional Services performed and expenses incurred during that month. Fees and expenses are due and payable by Customer within fifteen (15) days of Customer's receipt of Halogen's invoice. City of'I'amarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 2 of 15 Confidential (f) Expenses. Unless otherwise specified herein or in a Services Agreement, Customer shall reimburse Halogen for all reasonable travel and out-of-pocket expenses incurred by Halogen's representatives when traveling outside the metropolitan area of their usual place of residence to perform any Services for Customer, in accordance with Halogen's then current Travel & Expense Guidelines, available on- line at http://www.halogensoftware.com/files/PDF/secure/travel_policy.php (password: halogen_ travel). For clarity, Halogen acknowledges and agrees that no travel or out-of-pocket expenses shall be incurred other than in accordance with the applicable Services Agreement. 3. PURCHASE ORDER AND INVOICING DETAILS Customer hereby warrants either that: (i) It has generated a purchase order ("PO") to cover the total of the Fees and expenses specified in the Master Agreement, and the PO number is: The PO document should be faxed to 775-640-9544 or emailed to ar@halogensoftware.com to ensure proper reference on invoices for the products and services purchased from Halogen. OR (ii) A PO is not required to authorize payment in full to Halogen of the Fees and expenses specified herein. Unless otherwise agreed by the parties in writing, Halogen shall send Customer's invoice to [INSERT NAME OF PERSON] via the following email address: 4. SCHEDULES/APPENDICES The following schedules and appendices are attached to and form part of this Agreement: Schedule A General Terms and Conditions Appendix A Description of the Software Appendix B Appendix C Appendix D Appendix E 5. ENTIRE AGREEMENT M&S Services On -demand Hosting Services Training and Implementation Services Professional Services This Agreement, including its Schedules and Appendices, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior statements, representations, discussions, negotiations and agreements, both oral and written. No modification, amendment or variation hereof shall be of effect or binding upon the parties hereto unless agreed to in writing by their authorized officers. For clarity, any pre- printed terms and conditions on Customer's purchase order or other similar document shall be of no force or effect. 6. COUNTERPARTS This Agreement may be executed in more than one counterpart, each of which is deemed an original and all of which together constitute one instrument. Delivery of an executed counterpart of this Agreement by fax or e-mail transmission is deemed to be properly binding upon the delivering party. 7. AUTHORITY TO BIND The undersigned individuals represent and warrant that they are expressly and duly authorized by their respective entities or agencies to execute this Agreement and to legally bind their respective entities or agencies as set forth in this Agreement. IN WITNESS WHEREOF the parties hereto have executed this Agreement. HALOGEN SOF NC. CITY OF TAMARAC Signature: Signature: �- Name: T1, 1111111114 Date: C q0 Name: deffrey L. Miller City Manager Title: Date: it z / 7t e F City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 3 of 15 Confidential CITY OF TAMARAC ATTEST: Ma on Swenson, City Clerk Date Beth Flansbaum- alabisco, yor . --.— P-1/1 b -11) %, Date Approved as to form and legal sufficiency: City Attorney 1 Z-I ,C Date SCHEDULE A GENERAL TERMS AND CONDITIONS DEFINITIONS. (a) In these General Terms and Conditions, including the Appendices hereto, unless the context requires otherwise, the following words and phrases have the respective meanings set out below: "Affiliate" means, with respect to either party, any other entity controlling, controlled by or under common control of a party where "control" means the holding of more than fifty percent (50%) of equity ownership. "Agreement" means the Master Agreement, these General Terms and Conditions, and any appendix, extension, renewal or amendment signed by the parties hereto. "Business Day' means Monday through Friday, excluding holidays recognized in the Province of Ontario, Canada. "Business Hour" means an hour between 8:30 a.m. and 6:00 p.m. Eastern Time (ET) (Greenwich Mean Time (GMT) - 05:00). "Documentation" means the standard, English -language printed and electronic versions of all documentation intended for use with the Software, including but not limited to the Specifications, user manuals, system administrator manuals and other guides, but excluding training materials. "Effective Date" means the date when both parties have signed the Master Agreement. "Error" means any material and reproducible failure of the Software to operate and/or perform in accordance with the Specifications. "Fees" means the fees payable for the License, M&S Services, Hosting Services, Professional Services, or Training Services specified in the Master Agreement. "Hosting Services" means, if applicable, the hosted, on - demand services provided by Halogen for Customers benefit pursuant to Section 6 and Appendix C. "M&S Services" means those maintenance and support services provided by Halogen pursuant to Section 3 and Appendix B. "Professional Services" means those services provided by Halogen pursuant to Section 4, as more particularly described in a Services Agreement. "Review" means an evaluation document created for an employee or contractor of Customer using the Software. "Services" means those services provided by Halogen as described in this Agreement and/or in a Services Agreement, inclusive of M&S Services, Training Services, Professional Services and Hosting Services, as applicable. "Specifications" means the technical specifications for the Software identified and set out in the Documentation. "Training Services" means those services provided by Halogen pursuant to Section 5 and Appendix D. "Update" means a fix, patch or such other minor improvement, enhancement, modification or expansion of the Software as well as revisions to and new versions of the Software, which are generally commercially distributed by Halogen as part of the M&S Services and for which Halogen does not typically impose a separate charge or license separately. (b) A e�ndi e_§, The following appendices are attached to and form part of these General Terms and Conditions: Appendix A Description of the Software Appendix B M&S Services Appendix C Hosting Services Appendix D Training and Implementation Services Appendix E Professional Services 2. GRANT OF LICENSE (a) General Grant. Except as otherwise specified herein, Customer is hereby granted a non -transferable, non -assignable, non- exclusive, internal license, without right to sublicense, to use the Software and Documentation solely for the purpose of conducting Reviews for the license term specified in the Master Agreement ("License"). Notwithstanding the foregoing, Customer is hereby permitted to sublicense its right to use the Software and Documentation to its Affiliates, provided that: (i) Customer provides Halogen with a minimum of ten (10) days prior written notice of such sublicense; (ii) Customer remains solely responsible for the actions and/or inactions of such Affiliates; and (iii) the combined total of all Licenses does not exceed the maximum number of Licenses specified in the Master Agreement. (b) Restrictions. Customer shall use the Software and Documentation solely for its internal business operations. Except as expressly authorized by this Agreement, Customer shall not, without Halogen's prior written consent: (i) use, copy, modify, adapt, improve, maintain, license, sublicense, lease, sell, rent, export, permit concurrent use of or access to, or grant other rights in and to the Software; (ii) transfer this Agreement or any license to use the Software in whole or in part; (iii) translate, reverse engineer, modify, adapt, create derivative works, decompile, merge, separate, disassemble or convert into human readable form or into another computer language, all or any part of the Software; (iv) remove any copyright, patent, trademark, design right, trade secret, or any other proprietary rights legends from the Software; or (v) disclose the results of any benchmark test of the Software to any third party. Customer is responsible for all activities conducted under its user logins and for its users' compliance with this Agreement. Customer shall not: (i) send or store infringing or unlawful material; (ii) send or store malicious code; (iii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Software or the data contained therein; or (iv) permit access to the Software by a direct competitor of Halogen. "Services Agreement" means a mutually agreed upon (c) Copies. Customer may make a reasonable number of copies of document which describes the Professional Services. the Software for back-up or archival purposes. Customer may also make copies of the Documentation for use at Customer's "Software" means the version of the Halogen software program premises as necessary to assist Customer in using the identified in the Master Agreement and described in Appendix A Software. Customer shall reproduce all confidentiality and in object code format, and any releases, derivatives, proprietary notices upon such copies of the Software and improvements, translations, adaptations, alterations, revisions, Documentation. extensions, changes, enhancements or modifications. (d) Reserved Rights. Any rights not expressly granted herein shall be reserved for Halogen. Source code as well as other City of Tamarac - Perpetual - onpremise - eA - 11-2008-8R8rev2-ds Created on l l/26/2008 Page,lof 15 Confidential information pertaining to the logic, design or structure of the Software is specifically excluded from the License. 3. MAINTENANCE & SUPPORT SERVICES Halogen shall provide the M&S Services as described in Appendix 6. 4. PROFESSIONAL SERVICES Upon request, Halogen may provide additional Professional Services, including, but not limited to, consulting, database or data migration services. If Customer procures such Professional Services, in addition to each party's obligations specified in the applicable Services Agreement, the provisions of Appendix E shall apply. 5. TRAINING SERVICES Halogen shall provide the Training Services specified in the Master Agreement and such further Training Services as may be specified from time to time in a Services Agreement in accordance with the provisions of Appendix E. Customer acknowledges and agrees that certain Training Services are required to be purchased in conjunction with the License. 6. HOSTING SERVICES If purchased by Customer under the Master Agreement, Halogen shall provide the Hosting Services for the term and up to the number of Licenses specified in the Master Agreement and in accordance with Appendix C. 7. PAYMENTS (a) Fee§ and Exipenses. Customer shall pay to Halogen the License Fees, M&S Fees, Hosting Fees, Training Fees and other fees and expenses, as applicable, set out in the Master Agreement. If Customer has a subscription license to the Software, following the initial subscription term, Halogen reserves the right to increase the Annual Subscription Fee upon renewal upon thirty (30) days notice. If Customer has a perpetual license to the Software, Halogen reserves the right to increase any M&S Fees or Hosting Fees upon renewal upon thirty (30) days notice. (b) No License Rights/Suspension. Customer acknowledges that Customer has no rights under this Agreement for any unpaid Licenses. Halogen reserves the right to suspend the performance of any or all of its obligations hereunder upon thirty (30) days prior written notice if amounts are unpaid when due and remain unpaid at the end of such notice period. Notwithstanding the foregoing, if Customer does not pay its annual Hosting Fee in a timely manner, Halogen may suspend Customer's hosted access upon five (5) days notice. Shipping Point. Responsibility and title in the Software (to the extent that any title is transferred under this Agreement) shall pass to Customer once the Software is delivered to Halogen's commercial carrier, or, where Customer has purchased Hosting Services, once the Software in Halogen's on -demand hosting environment is made available to Customer. The Software shall be deemed accepted upon delivery. (g) Currency. Unless otherwise indicated, all prices quoted in this Agreement are in United States of America Dollars ("USD"), and payments to Halogen pursuant to this Agreement are to be made in USD. 8. TERM AND TERMINATION (a) Term. This Agreement shall be effective on the Effective Date and shall, unless earlier terminated as provided herein, continue for the license term indicated in the Master Agreement. If Customer has a subscription License to the Software, following the initial subscription term, the provisions of this Agreement shall automatically renew at Halogen's then -current rates for subsequent terms, unless either party provides written notice of its intention not to renew this Agreement at least ten (10) days prior to the end of the then -current subscription term. (b) Termination. This Agreement shall terminate on the earlier of- (!) termination of the license term; (ii) on a day that is thirty (30) days after one party gives the other written notice of breach by the other of any material term or condition of this Agreement, unless before that day the breach is remedied to the satisfaction of the notifying party; (iii) upon written notice of termination by one party, effective immediately, if the other party is or becomes insolvent or bankrupt or ceases paying its debts as they mature, or makes or files an assignment in bankruptcy or otherwise acknowledges its insolvency, or a trustee, receiver, liquidator or similar official is appointed for the other party or any substantial portion of its property and assets, or bankruptcy, insolvency, arrangement or similar proceedings are instituted by or against the other party; (iv) upon written notice of termination by either party, effective immediately, if the circumstances of Force. Majeure described in Section 19(d) are continuing and have continued for a period of at least sixty (60) consecutive days; or (v) upon written notice of termination by Halogen if Customer fails to pay any or all undisputed Fees or other amounts due hereunder within ten (10) days of receipt of such notice. (c) (c) Disputes. If Customer disputes the correctness of any part of Halogen's invoiced fees or expenses, Customer shall advise Halogen within thirty (30) days from its receipt of the applicable invoice, failing which such invoice must be paid in full in (d) accordance with the terms of this Agreement. Nothing in this clause allows Customer to delay payment of any part of the applicable invoice that is not in dispute. (d) Taxes. Customer shall provide Halogen with a tax exempt certificate, failing which, Customer shall pay all applicable duties, taxes or amounts due in lieu thereof, related in any way to this Agreement, exclusive only of taxes based on Halogen's net income. (e) Late Payment. All overdue payments past thirty (30) days shall incur a late fee of one percent (1%) monthly (12% annually), or the highest amount permissible at law, whichever is less. (f) Shipment. Unless otherwise agreed by the parties in writing, Halogen shall deliver the Software and Documentation electronically. If a physical shipment is required, it shall be FOB Effect of Termination. Upon any termination of this Agreement, and unless otherwise provided herein: (i) all payments shall become due immediately; (Ii) subject to paragraph (e), Customer shall immediately cease using the Software and, shall return to Halogen or destroy all copies of the Software and Documentation, and certify in writing that Customer has complied with its termination obligations hereunder; and (iii) each party shall return to the other, or destroy all Confidential Information of the other party in its possession or under its control, and provide certification of same upon request. Services Termination. Should either party terminate any M&S, Training, Professional or Hosting Services, the provisions of this Agreement which are applicable to the services or obligations so terminated shall be deemed terminated and the provisions of Section 8(c) shall apply, as applicable. Termination of such Services shall not result in the termination of any valid licenses to the Software, which shall otherwise remain in full force or effect as provided herein. (e) Survival. Sections 2, 7, 8(c), 9 to 11 and 13 to 19 shall survive the termination or expiration of this Agreement. If Customer has purchased and paid for licenses with a perpetual term, then should this Agreement be terminated other than for Customer's uncured breach of this Agreement, Customer's licenses shall survive termination of this Agreement and all provisions with respect to such licenses shall also survive. City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 5 of 15 Confidential 9. OWNERSHIP (a) General Proprietary Rights. The Software and Documentation are licensed, not sold. All right, title and interest in and to the Software and Documentation, including all patents, copyrights, trade marks, mask works, circuit layout rights, design rights, trade secrets and other proprietary and intellectual property rights in or related to the Software and Documentation, along with all enhancements, modifications, translations and derivative works of the Software or Documentation, belong to Halogen or its licensors, whether or not specifically recognized or perfected under the laws of the country where the Software and/or Documentation is located. (b) Feedback. Halogen shall have a royalty -free, fully paid -up, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets or equity), sublicensable license to use, copy, modify, or distribute, including by incorporating into the Software, any suggestions, recommendations or other feedback provided by Customer or its users relating to the operation of the Software. (c) No Additional Rights. Nothing in this Agreement shall be construed as increasing the number of copies licensed to Customer or the number of permitted users or licenses, or providing Customer with additional Halogen products or services. 10. CONFIDENTIALITY (a) Definition. The parties acknowledge that one party ("Receiving Party") may receive confidential and/or proprietary information relating to the other party ("Disclosing Party") or its licensors or customers ("Confidential Information"). The parties shall only use such Confidential Information in the performance of this Agreement and shall not disclose any such Confidential Information to any other party unless authorized by the Disclosing Party in writing. Halogen Confidential Information shall be deemed to include, regardless of marking, the Software, the Documentation, any unannounced product(s) or service(s) of Halogen, and the terms, conditions and subject matter of this Agreement and any related contractual documents. As soon as practicable, Receiving Party shall notify Disclosing Party of any breach of this Agreement. (b) Restrictions. Receiving Party shall not transmit, maintain, remanufacture or duplicate all or any part of, the Confidential Information except in accordance with the terms and conditions of this Agreement. Receiving Party shall be directly liable for the acts or omissions of its employees or contractors with respect to such confidentiality obligations. Receiving Party agrees to protect the Confidential Information with at least the same degree of care it uses to protect its own trade secrets and proprietary information but no less than reasonable care. (c) Exclusions. The foregoing confidentiality obligations shall not apply to Confidential Information which: (i) at the time of disclosure is within the public domain, other than through a breach of this Agreement; (ii) after disclosure becomes readily and lawfully available to the industry or the public, other than through a breach of this Agreement; (iii) Receiving Party can establish, by documented and competent evidence, was in its possession prior to the date of disclosure by Disclosing Party; (iv) Receiving Party can establish, by documented and competent evidence, was independently developed by the Receiving Party without use or reliance upon the Confidential Information; or (v) is approved for disclosure, in advance, in writing by Disclosing Party. (d) Compelled Disclosure. In the event that the Receiving Party is requested pursuant to legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party with notice to such effect, and at the request of the Disclosing Party shall co- operate with the Disclosing Party in seeking relief against the disclosure of such Confidential Information. In the event that through legal process the Receiving Party is obligated to disclose any Confidential Information, the Receiving Party may do so without breaching the terms of this Agreement, provided that the Receiving Party furnishes only that portion of the Confidential Information that it is legally required so to do. (e) Equitable Remedies. Receiving Party acknowledges that disclosure or use of the Confidential Information contrary to this Agreement may cause the Disclosing Party irreparable harm for which damages would not be an adequate remedy and further acknowledges that, in addition to any other remedies that may be available at law, the Receiving Party may apply for all available equitable relief including injunctive relief. 11. PERSONAL INFORMATION Halogen acknowledges that, in the course of fulfilling its obligations under this Agreement, it may have or be given access to information about an identifiable individual ("Personal Information"). Halogen shall comply with all applicable laws governing the use, disclosure and access of such Personal Information, including but not limited to, any and all requirements to protect such information from loss or unauthorized access. Without limiting the generality of the foregoing, Halogen agrees that Personal Information shall be considered and treated as Confidential Information and shall therefore be subject to the provisions of Section 10. 12. WARRANTIES (a) -0ftwa a W@rranty. Halogen warrants that during the period beginning on the Effective Date and continuing for ninety (90) days thereafter ("Warranty Period"): (i) the Software shall conform substantially to the Specifications set out in the Documentation ("Software Warranty"); and (ii) if applicable, the media upon which the Software is provided shall be free from defects in materials and workmanship ("Media Warranty"). Customer's sole remedy and Halogen's sole obligation with respect to a breach of the foregoing warranties is as follows: (i) in respect of the Media Warranty, provided that the media is returned to Halogen within the Warranty Period, Halogen shall provide Customer with replacement media; and, (ii) in respect of the Software Warranty, provided that Halogen is notified in writing of the non-conformance during the Warranty Period, Halogen shall, at its sole option, use commercially reasonable efforts to correct significant defects in the Software or provide a workaround thereto, without charge to Customer, failing which, Halogen shall refund to Customer an amount equivalent to, but no greater than, the License Fee paid in respect thereof. The above warranties shall not apply to: (a) any Software product that is modified without Halogen's written consent; or (b) any Software which has been misused, altered, repaired or used with equipment or software not expressly approved by Halogen. Halogen shall have no responsibility for claims arising from (i) modifications of the Software made by Customer if such claim would not have arisen but for such modifications, or (ii) combination or use of the Software with any other products, if such claim would not have arisen but for such combination or use. Customer further acknowledges that the Software typically requires some configuration upon installation, that certain customary infrastructure must be in place at Customer's site in order for certain functionality to work, and that the provision of this infrastructure is not part of this Agreement. (b) Service Warranty. Halogen warrants that the Services to be provided hereunder shall be performed with reasonable skill and in a professional manner. Halogen's sole responsibility and Customer's sole remedy with respect to deficient or non- conforming Services is to use commercially reasonable efforts to re -perform such services in accordance with the terms and conditions of this Agreement. City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11 /26/2008 Page 6 of 15 Confidential (c) Di im r. THE WARRANTIES IN THIS SECTION 12 ARE THE ONLY WARRANTIES OF HALOGEN WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND THE SERVICES, AND ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HALOGEN DOES NOT MAKE ANY WARRANTIES THAT THE SOFTWARE AND THE OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR -FREE OR COMPLETELY SECURE. (d) No Authorization. No Halogen agent, representative or dealer is authorized to modify, extend or add to any warranty on behalf of Halogen. 13. INTELLECTUAL PROPERTY INDEMNIFICATION (a) Defence of Infringement. Halogen shall indemnify, hold Customer harmless against and defend or settle any action brought against Customer to the extent that it is based on a third party claim that the Software provided by Halogen under this Agreement infringes any patent or copyright registered and issued in Canada or the United States of America as of the Effective Date and shall pay the resulting costs, damages and legal fees finally awarded against Customer, provided that: (i) Customer notifies Halogen in writing within ten (10) days of receiving notice of any such claim against Customer; (ii) Halogen or its licensors have sole control of the defence, compromise or settlement of such claim, including any appeals; and (III) Customer reasonably cooperates with Halogen in the defence or settlement of such claim at no charge to Customer. Halogen shall not be liable for any costs or expenses incurred by Customer with respect to settlement of an infringement claim without Halogen's prior written authorization. (b) Exclusions. Halogen shall have no liability hereunder for any claim of infringement based on (i) use of a superseded release of the Software if the Infringement would have been avoided by the use of a current release of the Software that has been made available to Customer; (ii) the use of a release of the Software that has been modified or altered by a party other than Halogen or used not as directed by Halogen if the infringement would have been avoided by the use of an unmodified or unaltered release of the Software; or (ii!) the combination, operation or use of the Software with software, hardware or other materials not furnished or recommended by Halogen if such infringement would have been avoided without such software, hardware or other materials. (c) Indemni . In the event the Software, or a component part thereof is held by a court of competent jurisdiction, or is believed by Halogen, to infringe or potentially infringe a third party's rights, Halogen shall (a) modify, at its expense, the Software to be non -infringing, (b) obtain for Customer a license to continue using the Software; or, if the foregoing options are not reasonably practicable, (c) terminate this Agreement and either (i) under a perpetual license, refund Customer 100% of the license fees paid within the first two (2) years from the Effective Date or thereafter, 50% of the original license fees paid, or (ii) under a subscription license, refund Customer all prepaid fees for the remainder of the subscription term after the date of termination. This indemnity shall only apply in respect of a final decision rendered by a court of competent jurisdiction or in respect of a settlement of an infringement action with the prior written consent of Halogen. (d) ENTIRE LIABILITY. THE FOREGOING STATES THE ENTIRE LIABILITY OF HALOGEN AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 14, LIMITATION OF LIABILITY (a) LIMITATION. IN NO EVENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT OR OTHERWISE, SHALL HALOGEN, ITS LICENSORS, OR ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR CONTRACTORS BE LIABLE TO CUSTOMER FOR: (1) ANY INDIRECT, INCIDENTAL, ORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING WITHOUT LIMITATION ECONOMIC LOSS, LOST PROFITS, LOSS OF USE, REPROCUREMENT COSTS OR LOST OR DAMAGED DATA, EVEN IF HALOGEN OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE, OR IF SUCH DAMAGES ARISE FROM ANY MISREPRESENTATION, BREACH OF ANY IMPLIED OR EXPRESS WARRANTY OR CONDITION, OR BREACH OF ANY OTHER TERM (INCLUDING A FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM); OR (11) A MAXIMUM AGGREGATE LIABILITY IN ANY CLAIM, ACTION, DEMAND OR PROCEEDING WHICH EXCEEDS: (A) FOR THE SOFTWARE, THE TOTAL AMOUNT OF LICENSE OR SUBSCRIPTION FEES ACTUALLY PAID TO HALOGEN BY CUSTOMER DURING THE YEAR IN WHICH THE CLAIM AROSE; OR (B) FOR ANY SERVICES PROVIDED, THE M&S, TRAINING, PROFESSIONAL OR HOSTING SERVICES FEES, AS THE CASE MAY BE, PAID BY CUSTOMER TO HALOGEN FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE YEAR IN WHICH CLAIM AROSE. (b) Exceptions. The foregoing limitations on liability shall not apply to: (i) claims caused by Halogen's gross negligence or wilful misconduct to either Customer or a third party; or (ii) third party intellectual property claims for which Halogen is required to indemnify Customer pursuant to Section 13. (c) Basis of Bargain. The parties acknowledge and agree that the limited warranty, exclusive remedies and limited liability set forth in this Agreement are fundamental elements of the basis of the bargain between Halogen and Customer, and that Halogen would not be able to provide the Software or Services on an economic basis without such limitations. (d) Limitation Period, No action, regardless of form, arising out of or in relation to any services may be brought more than two (2) years after the completion of the services to which the action relates. 15. DISPUTE RESOLUTION All matters in difference between the parties in relation to this Agreement shall be dealt with in accordance with this section. Notwithstanding the foregoing, no provision hereof shall limit the right of any party to obtain equitable relief, including without limitation, injunctive relief, from a court of competent jurisdiction before, after or concurrent with mediation, arbitration or other proceeding. The parties shall attempt to resolve any dispute arising from or relating to this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation for up to fifteen (15) days commencing on the date when one party gives written notice to the other parry of any controversy or claim. However, if those attempts fail, the dispute shall be submitted to arbitration. The parties agree that any continuing disputes arising from or related to this Agreement shall be decided pursuant to the Rules of Conciliation and Arbitration of the International Chamber of Commerce at such a location to be mutually agreed upon by the parties. If the parties cannot agree on a location for the arbitration within ten (10) days, the parties agree that the arbitration will take place in New York, New York. Unless provided otherwise in the Agreement, the arbitrators may not award non -monetary or equitable relief of any sort. They shall have no power to award damages inconsistent with the Agreement or punitive damages or any other damages not measured by the prevailing party's actual damages, and the parties expressly waive their right to obtain such damages in arbitration. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrators have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction. The arbitration shall be conducted in the English language. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrators may disclose City orl'amaruc - Perpetual- onpremise - eA - 11-2008-888rev2-ds Created on l l/26/2008 Page 7 of 15 Confidential the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to the other party and shall afford such party a reasonable opportunity to protect its interests. The result of the arbitration will be binding on the parties, and judgment on the arbitrators' award may be entered in any court having jurisdiction. The parties agree that the arbitrator's award may only be appealed on a question of law or patent unreasonableness. 16. U.S. GOVERNMENT END USERS If Customer is a federal government entity or government contractor in the United States of America, the Software is subject to the following restricted rights: use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, or clause 18-52.227-86(d) of the NASA Supplement to the FAR, as applicable. Contractor/Manufacturer is Halogen. 17. AUDIT Customer is responsible for monitoring its License count. Customer agrees to: (i) advise Halogen, upon request, of all locations where Software is used or stored and to provide Halogen reasonable access to such locations and the Software, including any copies; and, (ii) maintain complete and accurate records (in accordance with generally accepted accounting principles) relating to its activities under this Agreement. Halogen may, at its expense, appoint an independent third party to audit no more than once annually Customer's use of the Software. Any such audit shall be conducted during regular business hours at Customer's offices and shall not unreasonably interfere with Customer's business activities. In addition to other remedies available to Halogen, if such audit shows that Customer has underpaid the applicable fees, Customer shall pay such underpaid fees within thirty (30) days of invoice. If underpaid fees for any period are in excess of five percent (5%) of the value of the fees paid for that period under this Agreement, then Customer shall also pay Halogen's reasonable costs of conducting the audit. If Customer has an on -premise license to the Software, Customer acknowledges that Halogen may require Customer to run a license utilization script file not more than once per twelve (12) month period and to provide Halogen with the results thereof in support of this Section 17, 18. PUBLICATION Customer consents to publication of its name and logo by Halogen in a factual listing of Halogen's customers within presentations, on trade show signs and on its website. Halogen shall seek Customer's prior written authorization for any other use of Customer's name or logos. Provided that Customer is satisfied with the Software, Customer agrees to consider: (i) participating in a success story for the Software to be published on Halogen's Website and (ii) acting as a client reference for Halogen on an as and when needed basis. 19. GENERAL PROVISIONS (a) Compliance with Applicable Laws. Each party shall comply with any and all applicable laws, including, but not limited to, export laws. (b) Governing Law. This Agreement is governed by and is to be construed and interpreted in accordance with the laws of the State of New York, without regard to conflict of laws. The parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement. (c) Independent Principals. The parties are and shall at all times remain independent principals in all relationships and actions under or contemplated by this Agreement and neither party has the authority to bind the other or to incur any obligations on its behalf. Neither party shall represent itself to be the agent, joint venturer, partner or employee of the other nor shall either party make any statements or take any steps or acts that do or could imply or create any agency, joint venture, partnership, employment or other business relationship between them, other than as expressly hereby contemplated. (d) Force Majeurg. Subject to Section 8(b), neither party shall be responsible for delays or failure of performance to the extent resulting from causes that are beyond the reasonable control of such party and which render the continued performance of this Agreement impossible, impractical or illegal, including, but not limited to, fire, flood, explosion, tornado, epidemic, earthquake, snowstorm, ice storm or other act of God, embargo; explosion, malfunction, riots, civil disputes, acts of terrorism or war, failure of the internet or government controls or regulations ("Force Majeure"). The existence of such causes of such delay or failure shall extend the period for performance to the extent necessary to enable complete performance in the exercise of reasonable diligence after the causes of delay or failure have been removed. (e) Assignment and Benefit. Other than as permitted under Section 2 of Schedule A to this Agreement, Customer may not assign all or part of this Agreement without Halogen's prior written consent. Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party to its successor in interest in connection with a sale of all or substantially all assets or equity not involving a direct competitor of the other party. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. (f) Notice. All notices, requests, demands and other communications required or permitted under this Agreement must be in writing and are deemed to have been duly given, if sent by fax (receipt confirmed), on the day it is received, if delivered in person or by courier, when delivered, if mailed by registered or certified mail, postage paid and return receipt requested, on the fourth business day following the date of mailing, to the addresses of the parties given on the first page of the Master Agreement or to such other address as a party may from time to time specify by notice in writing to the other party. Notices to Halogen shall be made to the attention of the Chief Financial Officer. (g) S verabili . The provisions of this Agreement shall be deemed severable. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. (h) Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. (i) Language. The parties confirm that it is their wish that this Agreement, as well as all other documents relating to this Agreement, including notices, be drawn up in English, and the English language shall be controlling in all respects. Q) Conflict. In the event of a conflict between this Master Agreement and a Services Agreement, the Master Agreement shall prevail to the extent necessary to resolve the conflict. City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 8 of 15 Confidential APPENDIX A DESCRIPTION OF THE SOFTWARE eAppraisal Halogen eAppraisal is licensed in units of "Review Licenses". The number of Review Licenses limits the number of employees or contractors of Customer that can be appraised each calendar year. A Review License allows an employee or contractor of Customer to be appraised with Halogen eAppraisal by an unlimited number of Respondents an unlimited number of times during the calendar year. Review Licenses are consumed whenever activity occurs, related to an individual who is the subject of an evaluation, during the period in which the individual is part of an open appraisal process. A single individual (for example, an employee or contractor) will only consume a single Review License during a calendar year period regardless of the number of appraisal processes that are opened against that single individual. Activity related to an individual listed in the Software's User Center who is not the subject of an evaluation or appraisal during a calendar year period will not consume a Review License. For purposes of clarity, a Review License used by Customer to appraise an employee who subsequently leaves their employ cannot be re -used to appraise another employee within the same calendar year. "Respondents" means the employees or contractors of Customer who are authorized by Customer to access the Software for purposes of conducting a Review. [.IIl;��i�[e1IST1 Halogen® HRIS Connect'"" is an optional utility that is available only to Halogen's on -demand customers. It eliminates the need for any manual effort when importing employee data into the User Center of Halogen's Employee Performance and Talent Management Suite. It runs as Windows Service, installed locally within Customer's network, and can retrieve updated employee information from two types of sources: a CSV file or a SQL database. The HRIS utility is configured only once, after which It runs unattended according to Customer's schedule. Halogen will assist Customer with related installation and configuration requirements and will discuss data layout requirements with Customer. Customer is responsible for ensuring source data is available to the HRIS utility in the appropriate format. As part of the configuration, Customer will also determine how often, and at what time, the transfer of Information will occur. Features and Functionality of Halogen Software Products The foregoing description of the Software and Software modules is provided for Information purposes only. Customer acknowledges that the description of the Software may be subject to change,, and that the actual features and functionality of the Software may vary from the descriptions herein. City of'1'amarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Creatcd on 11/26/2008 Page 9 of 15 Confidential APPENDIX B MAINTENANCE & SUPPORT SERVICES DEFINITIONS "Severity Level" means the level of severity assigned to an Error in the Halogen Software by Halogen and Customer using the following criteria: Severity Description Level 1 An Error that has a critical impact on the development, deployment, or operational use of the Software, resulting in the inability to continue to deploy or use the Software as required or intended. A Severity 1 Error does not have a reasonable workaround, cannot reasonably be corrected by adding to or changing the Documentation. 2 An Error that causes a severe restriction on the development, deployment, or operational use of the Software, resulting in the restricted ability to continue to deploy or use the Software. A Severity 2 Error does not have a reasonable workaround, cannot reasonably be corrected by adding to or changing the Documentation 3 An Error that causes limitations that are not critical or severe to the development, deployment, or operational use of the Software. A Severity 3 Error has a reasonable workaround. 4 An Error that causes a slight Inconvenience to the development, deployment, or operational use of the Software. A Severity 4 Error has a reasonable workaround. MAINTENANCE & SUPPORT SERVICES Standard second level support is included in Halogen's M&S Services offering. Halogen will provide to Customer any Updates to the Software that Halogen makes available to its clients generally at no additional charge. Unless Customer has purchased Hosting Services, Customer is solely responsible for the installation of all Updates provided by Halogen as part of the M&S Services. Halogen will also provide to Customer telephone or email assistance by a qualified representative of Halogen between 8:30 a.m. and 6:00 p.m. ET (GMT - 05:00) on Business Days to attempt to correct or bypass Errors in the Software that have been brought to the attention of Halogen by Customer. Halogen may provide such telephone assistance through a designee of its choice to up to three (3) designated contacts of Customer who are trained and knowledgeable in the use of the Software. Halogen will make commercially reasonable efforts to solve reported problems in accordance with the Severity Level classifications and the response times listed below, through system changes or suggested workarounds. If the Halogen Services are unavailable to end users, Customer will use commercially reasonable efforts to cooperate with Halogen in resolving any problems. Halogen shall provide a tiered support process to Customer, providing a controlled escalation environment which delivers multiple levels of support as deemed appropriate for customers' individual issues. Response time varies depending on the severity of the Error. Each Error is assigned a Halogen support ticket which is either fulfilled by the Support Technician, or escalated to the Support Manager as required. If the support ticket requires further escalation, the assistance of other Halogen technicians is enlisted by the Support Manager. When reporting a suspected Error, Customer will assign the appropriate Severity Level category, which, in Customer's reasonable judgment, accurately describes the impact on Customer's operating environment. Halogen reserves the right to reclassify the Error if it determines, in its reasonable judgment, that such reclassification is appropriate. Where the parties disagree on the classification, Halogen will review the Error with Customer to attempt to agree on a mutually acceptable classification. Severity Level Response Times: Severity Level Response Time 1 Acknowledge within 4 (four) Business Hours; response within one 1 Business Day. 2 Acknowledge within 4 (four) Business Hours; response within two 2 Business Days, 3 Acknowledge within 1 (one) Business Day; response within seven 7 Business Days 4 Acknowledge within 2 (two) Business Days; response at the discretion of Halogen Software SUPPORTED RELEASES M&S Services are only provided for the most recent version of the Software and the version prior to the most recent version (collectively, the "Supported Releases"). Halogen has no obligation to provide M&S Services to Customer in relation to versions of the Software other than the Supported Releases. Halogen will provide Customer with ninety (90) days notice in the event of the discontinuance of a Software version or module. Halogen reserves the right to replace the discontinued Software with replacement Halogen Software. Halogen will support the discontinued Software module or version for the greater of the remainder of the Support Term for the discontinued module or version or a period of ninety (90) days from notification to Customer that the Software module or version Is being discontinued. As used in this Section 3, "version" means an increment to the Software's number either to the left or the right of the decimal point. For example, after Halogen eAppraisal 9.0 is released, Halogen will support that version and the one prior version (i.e. 8.1). CUSTOMER RESPONSIBILITIES The M&S Services are only provided to Customer. Unless otherwise agreed by the parties, Customer is solely responsible for first level support of its Affiliates and employees. Customer will make commercially reasonable efforts to cooperate with Halogen in all problem resolutions. This includes but is not limited to providing timely access to all required experts to resolve issues within Customer's environment. If not hosted, Customer will protect its data from loss by implementing appropriate back-up procedures. Customer Is solely responsible for data restoration from back-ups. EXCLUSIONS Halogen shall have no obligation to provide M&S Services if an Error Is caused by: (a) relocation, movement, improper operation, neglect or misuse of the Software, (b) Customer's failure to maintain proper site or environmental conditions, (c) any fault of Customer's agents or employees, (d) any attempts at repairs, maintenance, or modifications to the Software performed by other than authorized service personnel of Halogen, (e) unauthorized acts of third parties, (f) failure or Interruption of any electrical power, telephone or communication line or like cause, (g) service for the Software for which all required maintenance releases have not been implemented by Customer, (h) problems caused by third party software included with or embedded in the Software (unless Customer is using a version of a Supported Release of the Software for which support for such third party software is available to Halogen or Halogen has agreed to the inclusion of such third party software), (I) any other cause external to the Software except ordinary use, 0) configuration of or failure of third party hardware or software products, (k) improper sizing of hardware or software platforms for the volume of data and users, or (1) any other service not expressly set out in this Appendix or which is expressly excluded in this Appendix. The M&S Services do not include services or deliverables provided under a Services Agreement or other services outside the scope of this Appendix such as support for unsupported releases of the Software. Maintenance and support of such items may be obtained by Customer under a Professional Services engagement. HARDWARE COMPONENT FAILURE Halogen is not responsible for Customer's hardware nor any components that enable Customer to access Halogen's on -demand data center. TERM AND TERMINATION OF MAINTENANCE AND SUPPORT SERVICES Upon payment of the applicable fees, Halogen will provide M&S Services to Customer from the Effective Date until the completion of the M&S Term specified in the Master Agreement. In the event of abusive or unprofessional conduct by Customer which Halogen determines materially affects its ability to deliver the M&S Services described herein, Halogen shall so advise Customer and representatives of each party's senior management shall attempt to City of'I'amarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 10 of 15 Confidential resolve such conduct issues, failing which, the Customer representative being complained of shall be replaced. M&S Services are mandatory for the entire term of a subscription License and for the first year of a perpetual license. If hosted, M&S Services are mandatory for the duration of the hosting term including renewal terms. If Customer has purchased a perpetual license, Customer may terminate M&S Services at the end of a renewal term by providing Halogen with at least thirty (30) days prior written notice. In the event of such termination, the License rights granted under Section 2 of the Agreement shall survive such termination, but Halogen shall have no further obligation to provide any M&S and/or Hosting Services with respect to the Software. INTERRUPTED MAINTENANCE Customer acknowledges and agrees that if Customer ceases to pay for M&S Services and later requests M&S Services, Customer will pay to Halogen the Annual M&S Fees for the period in which no M&S Services were provided. City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 11 of IS Confidential APPENDIX C ON -DEMAND HOSTING SERVICES HOSTING OF SOFTWARE If applicable, Halogen will provide on -demand hosting services for the Software on Its server for the benefit of Customer for the Hosting Term. Halogen shall provide the product to Customer in a secure environment, including protecting the infrastructure from the external environment via firewall systems and protecting data transmission over secure network connections using SSL technology. Root/administrator access will be controlled and limited to those that require access to support the platform. The Software will be operated in an electronically restricted facility on a raised floor with redundant HVAC, UPS and diesel generator power back-up, and 24x7x365 surveillance of all hosted infrastructure and environmental subsystems. All elements of the selected platform are clustered for redundancy. As a standard service, Halogen currently conducts daily incremental back-ups, weekly and monthly full back- ups; all back-ups are stored at an off -site location. Weekly back-ups are rotated every 4 weeks; monthly back-ups are stored for 1 year. Charges may apply should immediate restore of off -site back-ups be required. CUSTOMER RESPONSIBILITIES Customer's responsibilities will include: (i) complying with all terms and conditions imposed by Halogen in association with Customer's enjoyment of the Hosting Services (as provided to Customer by Halogen from time to time); (11) enabling its own reliable high speed internet connectivity to and from the hosted server (in respect of all locations that need access to the hosted Software); (iii) its own customer premises equipment ("CPE"), Including but not limited to administrator and end user workstations; (iv) all other customer relations, fulfillment and obligations; (v) all design and development of the Reviews; and (vi) all configuration, use and operation of the Software application to suit Customer's environment (collectively, "Designated Customer Obligations"). Customer acknowledges and agrees that: (A) the Designated Customer Obligations may change from time to time in conjunction with Updates to the Software; and (B) a failure of Customer to comply with this provision may, to the extent applicable, negate any support obligations on the part of Halogen. Customer shall be responsible for all users who access Halogen's servers and/or the Software. Customer will provide a primary contact who can be reached by Halogen in the event of scheduled maintenance or a service loss, and will provide Halogen with updates to the primary contact's contact information in writing or by email. Customer shall not: (i) copy or attempt to copy the Software; (il) manipulate or alter any data or other information on Halogen's servers other than Customer's Review Data; or (iii) utilize any automated system to access or to test the Hosting Services or the Software, without the prior express written permission of Halogen. Halogen reserves the right to immediately suspend Hosting Services for any Customer who breaches the provisions of this Section. SECURITY OF HOSTING SERVICES Customer understands and agrees that Halogen will take commercially reasonable precautions to ensure the Hosting Services are secure. However, Customer acknowledges that the hosting activities will require transmission of confidential information over the internet, and that the internet consists of multiple participating networks that are not subject to the control of Halogen. Customer therefore understands and agrees that Halogen cannot and does not guarantee the privacy, security or authenticity of any information transmitted over the Internet, due to the nature of the Internet, Halogen has made provisions to increase the security of all data transfers by ensuring all data transfers are done using a minimum 128-bit SSL encryption. As the Halogen hosting environment evolves with new technologies, Halogen will use reasonable commercial efforts to maintain an equivalent or better level of security and confidentiality of Customer's data. As part of our ongoing commitment to security, Halogen regularly engages third party experts to perform independent security audits. These audits ensure all systems remain efficient in protecting valuable client information. Halogen will provide a third party security audit report upon Customer request at no charge, once per calendar year; additional requests for security audit reports during a calendar year will be charged at the rate of US$500.00 per request. To ensure ongoing security of all customer data, all sensitive data will be removed prior to delivery to Customer. Halogen will notify Customer of any known breach of Its security related to areas, locations, or computer systems which contain any Confidential Information of Customer and shall cooperate with Customer to assist in regaining possession of the Confidential Information and prevent its further unauthorized use, and take any necessary remedial actions. MAINTENANCE AND UPGRADES Halogen technicians and automated monitoring systems continually assess the health of the Hosting Services. Halogen's Hosting Services are designed for full availability; however, Halogen reserves the ability to schedule downtime during the following maintenance windows: Sundays between 02:00am and 08:00am ET; and/or each evening between 10:00pm and 2:00am ET. Halogen will make commercially reasonable efforts to notify Customer of scheduled maintenance (other than maintenance scheduled during the above maintenance windows) at least twenty-four (24) hours in advance. Halogen assumes responsibility to apply Software upgrades for Customers who have purchased the Hosting Services. OWNERSHIP, CONFIDENTIALITY AND USE OF REVIEW DATA Customer shall retain all right, title and interest in and to, and have the exclusive use of, the results of the Review Data and Halogen shall have no right, title or interest therein. Customer may access the electronic records and reports containing the Review Data that are generated by the licensed Software. Use of the Review Data and other Information by Customer is at Customer's own risk. For back-up or testing purposes, Halogen may make copies of the Review Data and any electronic records and reports containing the Review Data and maintain such copies for Its records during the term. Halogen may, after the term, maintain back-up copies of confidential information received from Customer in a secure site, provided such back-up copies are destroyed in accordance with Halogen's then applicable timeline and policies for destruction of all of Halogen's back-up data. The Review Data and any electronic records and reports containing the Review Data that are stored on Halogen's servers are Confidential Information as defined in Section 10 of this Agreement and may, depending on their nature, include Personal Information as defined in Section 11 of this Agreement. Halogen confirms that its obligations set out in Sections 10 and 11 apply to such Review Data, records and reports. TERMINATION OF HOSTING SERVICES Halogen may terminate the Hosting Services: (1) immediately, if Customer fails to pay the applicable Hosting Fees as required by this Agreement; or (ii) upon 180 days notice in the event Halogen generally ceases to provide Hosting Services for the products licensed by Customer, in which event Halogen shall refund the balance of any prepaid but unused Hosting Services Fee. Customer may terminate the Hosting Services at the end of an annual hosting period by providing Halogen with at least thirty (30) days prior written notice of its intention to discontinue the Hosting Services. If Customer has purchased a perpetual License and provided Customer has paid to Halogen all outstanding M&S Fees or other fees owing, upon termination of the Hosting Services, Customer is entitled to receive a copy of the Software in C❑ form for installation and execution on Customer's internal server. Any such installation, execution and use of the Software shall be subject to the terms of this Agreement. Upon written request from Customer received within ten (10) Business Days of the effective termination date of the Hosting Services, Halogen will provide Customer, with a CD copy of the most recent full back-up of Customer's Review Data. Should further data manipulation be required by Customer, Customer will request that Halogen provide a Services Agreement of the effort required at the time of such request; no data manipulation services will be undertaken by Halogen until Customer has approved and paid the associated costs in writing. City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 12 of 15 Confidential APPENDIX D TRAINING, CONSULTING AND IMPLEMENTATION SERVICES Customer acknowledges and agrees that its use of the Software, and specifically its entitlement to receive M&S Services, requires training and implementation assistance from Halogen. The cost of such training and Implementation services is in addition to the License Fees and other Halogen Services described elsewhere in this Agreement. Customer has selected the following Implementation Service Package (inclusive of training): HEAD START IMPLEMENTATION SERVICE PACKAGE Halogen offers the Head Start Implementation Package for Halogen eAppraisal, which combines installation, consulting and training services as follows: (a) A Halogen Implementation Consultant will be assigned to work with Customer for up to eight (8) weeks to ensure proper implementation of the Halogen product(s) licensed. The Implementation Consultant will devote approximately two (2) hours per week (maximum of 16 hours in total) to the performance of various tasks to assist Customer in the launch of their EPM project. Deliverables include: • Use of the formal Halogen EPM implementation methodology including the Halogen Implementation Workbook • Halogen EPM project tracking • Weekly status updates and process reviews • One (1) soft copy of custom Halogen EPM Configuration Summary Report • Performance of the following configuration tasks by Halogen's professional services team: • configure and deploy 1 eAppraisal process, up to 2 form templates using standard EPM functionality and competencies (b) Halogen performs product installation by creating application site for Customer in Halogen's on-ciemand hosting environment and providing access to Customer OR (if on -premise) Halogen assists Customer in product installation through web -based Technical IT Installation and Technical Training session (Including user import if Customer Is ready). (C) Halogen provides standard product training — two (2) days of Process Administration Training; maximum of five (5) attendees per class including trainees and observers, onsite at Customer's premises. (d) Halogen provides applicable Administrator Reference Manual(s), End User Guide(s), and tutorials in electronic format for the Software product(s) licensed and implemented. 2. TRAINING MATERIALS & COPYRIGHT Training materials are available only for the current standard release of the product(s) licensed by Customer. Customer acknowledges that any reference materials provided by Halogen to Customer in electronic or hard copy format in connection with training and/or consulting services are the copyright of Halogen and are to be used by Customer for its internal use only. Unless otherwise directed by Halogen, these materials are not to be reproduced, copied or distributed by Customer in any form other than as required to train Customer's employees. Videotaping or other electronic and/or audiovisual recording of a training or consulting session conducted by a representative of Halogen is strictly prohibited. 3. OTHER TRAINING/CONSULTING SERVICES Additional Training Services may be procured from Halogen as Professional Services. Customer and Halogen shall enter into a Services Agreement for the provision of such other Training Services in accordance with the Agreement and Appendix E. Customer may also request additional consulting services from their Halogen implementation consultant if required. Halogen's current rates for such consulting services are as follows: US$1650/month, which would entitle Customer to work with a Halogen implementation consultant (approximately 2 hours per week to a maximum of 8 hours total per month) doing various tasks to assist Customer in the launch of their eAppraisal project. This includes but is not limited to meetings, forms or process reviews or other tasks as discussed with customer during regular weekly meetings. Alternatively, Customer may contract for hourly assistance. Halogen's current rates are US$250/hour (web -based or telephone consulting); or US$1650/day (onsite consulting) plus travel & living expenses. Halogen would be pleased to provide any or all of the above services by separate quote pursuant to a Services Agreement. Service fees are due to Halogen within fifteen (15) days of date of Invoice. 4. TRAINING/CONSULTING EXPENSES Halogen invoices expenses monthly, in arrears, as incurred. In connection with services performed at Customer's site, if any, Customer is responsible for actual travel and living expenses incurred by the Halogen trainer and/or consultant. These expenses will be invoiced by Halogen upon the completion of such on -site services, including without limitation, expenses relating to air and land transportation, hotel accommodation, and meal per diems and incidentals (maximum $80.00/da;y local currency). If transportation and/or hotel accommodation are arranged by Customer on behalf of Halogen, such arrangements will be subject to Halogen's written pre -approval. All travel and living expenses billed by Halogen in accordance with its Travel & Expense Guidelines are due upon receipt of invoice. If travel time In excess of four (4) consecutive hours outside of North America is required, Customer shall pay to Halogen a flat fee of $1,000/Halogen representative (local currency). Such travel time shall be calculated with reference to the scheduled departure time and the scheduled arrival time at final Customer destination, including without limitation, all ground transportation time. In connection with services performed at Customer's site, if any, Customer is generally responsible for the reimbursement of travel and living expenses Incurred by Halogen due to flight cancellations or missed travel connections which are not caused by the actions of Halogen or Its employees/agents. Teleconferencing long distance charges, If any, are Customer's responsibility and are not included in this Agreement. If Halogen's Bell conferencing bridge is utilized, the teleconferencing charge will be calculated per long distance connection at the then applicable hourly rate, to be billed by Halogen upon completion of the applicable service. 5. SCHEDULING & CANCELLATION The stated project timelines referenced above are based upon delivery of the services In an uninterrupted manner over consecutive weeks per product module. Customer acknowledges and agrees that requests by Customer to suspend the delivery of certain services may incur additional costs. Training and consulting services must be booked and taken within the first twelve (12) months from the Effective Date as defined herein. Scheduling for training/consulting should be done as early as possible to assist in travel arrangements. Specifically, if Customer cancels a scheduled training engagement without a minimum of ten (10) business days prior written notice to Halogen, Customer shall pay to Halogen a lost utilization fee equal to the lesser of (i) $1,650 (local currency); and, (ii) the training/consulting engagement contract value. In addition, Customer shall pay to Halogen all unrecoverable fees and expenses associated with such cancellation, including without limitation, non-refundable travel costs. Such fees and expenses shall be invoiced by Halogen in a timely manner following Customer's cancellation. 6. ASSUMPTIONS, CUSTOMER RESPONSIBILITIES AND ACKNOWLEDGMENTS • Customer will provide a single point of contact with authority to work with Halogen, • Customer is responsible for the provision of the employee data in the required import format and for validating the import of data in the Halogen EPM User Center. • Customer is responsible for identifying the subjects of the appraisal process(es) and for validating the Halogen EPM Participant Center. • Customer is responsible for providing the required text for the Email Notification Center. • Customer is responsible for defining and approving the process steps (workflow) required to support the appraisal process(es). • Standard Halogen eAppraisal competencies will be used in the form design. • Standard eAppraisal functionality will be used to deploy the appraisal process. • Customer is responsible for performing a final quality check. • Customer will provide all forms to be created to Halogen in MS Word or MS Excel format. • Customer is responsible for supplying form(s) and process steps, and for monitoring processes, utilizing Halogen's hot-line support City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 13 of 15 Confidential as required for software support related issues, Customer is responsible for creation and maintenance of all additional forms and processes. Customer understands that the forms available within the Halogen eAppraisal application may not appear as exact duplicates of the Customer's original MS Word or Excel forms, and that minor variations in form appearance may be required in order to better leverage the capabilities of the Halogen eAppraisal software. • Customer is responsible for all user center data, global settings within the options functionality, and extracting data for report generation with external tools. • If Halogen eCompensation is licensed, Customer Is responsible for supplying compensation business rules and workflow. • If Halogen eLMS is licensed, Customer is responsible for supplying all learning content in the required import format and for validating the import of data. • Customer will be required to complete, execute and return to Halogen a Configuration Sign -off Form prior to Customer's deployment of the Halogen EPM application, failing which, Halogen disclaims all liability for system configuration issues, if any, which may be experienced by Customer. • Customer acknowledges and agrees that: o delays by Customer in providing information and decisions to Halogen may negatively impact the dates, prices and scheduling commitments expressed in this Agreement. o the following deliverables are not included in this Agreement: • Data entry of corporate goals/departmental goals • Import of development plans Into the Administration Center • Deployment of a multi-lingual environment • Configuration of the CSS file • Significant changes to the Halogen UI property file • Custom comment helper City of Tamarrc - Perpetual - onprentise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 14 of 15 Confidential APPENDIX E PROFESSIONAL SERVICES SERVICES AGREEMENT Halogen and Customer may, from time to time, enter into a Services Agreement for the provision of Professional Services and/or Deliverables. 2. CHANGE REQUESTS Either party may, from time to time, wish to make changes to the Professional Services or Deliverables as set out in a Services Agreement ("Change Requests"). Halogen and Customer will negotiate in good faith any changes to costs, scope or delivery schedules arising from any requested Change Request. Halogen will provide Customer with a quote for the mutually acceptable changes in the scope or timing of the Services, and Customer shall indicate its acceptance of the quote in writing. No oral agreement between persons involved in the project will be binding on either Halogen or Customer. Unless and until a proposed Change Request has been approved by the parties in writing, each party shall continue to perform its obligations under the Services Agreement as if the change had never been proposed. 3. TIMING AND CONTROL ISSUES Halogen acknowledges that timely performance is necessary to enable Customer to meet its schedules and commitments, and Halogen shall use its best efforts to meet the delivery dates set forth in the applicable Services Agreement. Notwithstanding the foregoing, if Customer is not current in respect of license, M&S, hosting and/or other services fees due and payable to Halogen in accordance with the Agreement. Halogen may, in Its sole discretion, suspend performance of all or part of a Services Agreement. 4. FACILITIES AND HOURS OF WORK The Professional Services will be performed at the place and upon the dates and times stated in the Services Agreement. If the Professional Services are performed at Customer's premises, Halogen may have access to Customer's premises only during Customer's normal business hours or at such other times as may be agreed upon by the parties. If notified In advance, Halogen personnel will observe Customer's reasonable security policies and procedures and comply with Customer's reasonable instructions while on Customer's premises. 5. TERM AND TERMINATION OF A SERVICES AGREEMENT The term of each Services Agreement will begin when it is signed by both parties and will continue until the earlier of: (i) the expiry date specified in the Services Agreement; (ii) the date the Professional Services described therein are completed; or (III) the date it is terminated in accordance with this Agreement or otherwise by agreement of the parties. 6. OWNERSHIP Customer acknowledges and agrees that Halogen and/or licensors of Halogen shall retain all right, title and interest In and to the Software and Documentation, including any modifications, enhancements, customizations and derivative works made to the Software as part of the provision of Professional Services or as a result of a Change Request, and all copies thereof, Including, without limitation, any and all intellectual property rights therein, and that nothing herein transfers or conveys to Customer any ownership right, title or interest in or to the Software or to any copy thereof except as expressly granted herein. City of Tamarac - Perpetual - onpremise - eA - 11-2008-888rev2-ds Created on 11/26/2008 Page 15 of 15 Confidential