Loading...
HomeMy WebLinkAboutExhibit 5Point of Sale Receipting Application Professional Services Agreement between Wonderware, Inc. and Clark County, Washington THIS AGREEMENT is made this _ day of , 2004, (the "Effective Date"), by and between CLARK COUNTY, a political subdivision of the State of Washington ("the County"), and Wonderware, Inc. d/b/a CORE Business Technologies ("Vendor"), a corporation organized and existing under the laws of the State of Rhode Island, and authorized to do business in the State of Washington. This agreement sets forth the responsibilities and clarifies the relationship between the County and the Vendor regarding the installation and implementation of a Point of Sale Receipting Application ("POS"). A. RECITALS Whereas, Clark County issued a request for proposals, RFP #365, for the provision and installation of a Point of Sales (POS) Application; and Whereas, on March 19, 2004, Vendor submitted its response to the request for proposals in which it indicated that it was willing to provide services to Clark County; and Whereas, the County and the Vendor desire to enter into this Agreement to set forth their understanding relating to the installation and implementation of the software. NOW, THEREFORE, it is agreed as follows: 1. DEFINITIONS The following terms shall be defined as follows: "Acceptance": Unless otherwise agreed to by both Parties, a written notice from the County to Vendor that a Deliverables, Milestone, Phase and/or the Application was completed in accordance with the Final Project Specification and that the Services have been performed in accordance with applicable Specifications. "Acceptance Test(ing)": Testing of the Application to be conducted by the County as identified in the Statement of Work and Work Plan. "Agreement": This Professional Services Agreement between Vendor and County, as amended and supplemented from time to time. "Applicable Laws": All laws, ordinances, rules, regulations, orders, interpretations, requirements, standards, codes, resolutions, licenses, permits, judgments, decrees, injunctions, writs and orders of any court, arbitrator, or governmental (federal, national, state, municipal, local or other, having jurisdiction over a Party and the location where a 1 particular element of the Services is performed or where any part of the Application is situated) agency, body, instrumentality or authority that are applicable to any or all of the Parties, the Services or the terms of the Agreement, including all environmental and hazardous materials laws which are applicable to performing the Services. "Application": The final configuration and setup of the CORE's One -Step software, including Check Imaging, Trust Module, iPayment Transaction Engine, and the Research Module, along with any Vendor software, or modifications, so that software performs in the manner identified in the Specifications. All network, computing hardware, infrastructure and maintenance will be the sole responsibility of the County. "Deliverables": All deliverable work products whether specified in the Statement of Work, Work Plan, Schedule of Deliverables or elsewhere. "Documentation": All user guides, operating manuals, training materials, product descriptions and specifications, technical manuals, supporting materials, and other information used or produced in conjunction with the Services, whether distributed in print, magnetic, electronic, or video format, in effect as of the date (i) the Application is accepted by County, or (ii) the Service is provided to County. "Failure": The failure of the Application or Vendor's Services, in whole or in part, to fully conform to the Performance Standards of the Agreement; provided that the Failure shall not include the failure to conform to the Performance Standards of the Agreement caused solely by the County's or by any County vendor's action, lack of actions, computing hardware or network infrastructure which does not meet the specifications of the Hardware Assessment Document. "Hardware Assessment Document": A document to be prepared by the County and reviewed and approved by the Vendor during the software installation phase of the project that will describe any deficiencies in the county's network infrastructure which would prevent the Application from operating in conformance with Specifications. "Host Systems": The County's software applications (CATS, Tidemark, Oracle, Eagle Recorder). "Licenses": An agreement that sets forth the responsibilities and clarifies the relationship between the County and the Vendor regarding the use of Vendor's One -Step software, including Check Imaging, Trust Module, iPayment Transaction Engine, and the Research Module, for the Point of Sale Receipting Application ("POS"). The County is initially purchasing 30 licenses which may increase up to 55 in the future. `Milestone": Each of the services described in the Statement of Work, Work Plan and Schedule of Deliverables that are noted as being "Milestones". 2 "Performance Standards": The performance standards as referred to in the Software License Agreement for the Application and/or Deliverables set forth in the Statement of Work, and Project Specification Documents. "Phase": The group of Milestones noted as a Phase in the Statement of Work, Work Plan and Schedule of Deliverables. "Project Specification Document": The document to be produced during the project as described in the Statement of Work and that is approved by the County. It is recognized the Project Specification Document will be updated as the project progresses and the most recent version that is approved by the County shall be the document considered to be the Project Specification Document for the purposes of this Agreement. "Proposal": Vendor's Proposal in response to County's Request for Proposal for a Point of Sale Receipting Application, dated March 18, 2004. "Request for Proposal" or "RFP": Clark County RFP # 365 released February 17, 2004. "Retainage": The withholding of a portion of the progress payment due the Vendor, until paid as provided in Section 4.3 of this Agreement. "Schedule": The dates in the Initial Work Plan which will be refined within the Final Work Plan approved by the County for the completion of Milestones, Phases and Deliverables and other project events and activities. "Services": All installation, integration, education, acceptance testing, support, maintenance, development, warranty, and time and materials services, provided or to be provided by Vendor pursuant to the Agreement and the Statement of Work. "Software": All applications software which has been developed by Vendor specifically for Clark County under this agreement including compilers, database software, management tools, network protocols, operating system software, Applications software, and utilities. "Source Code" of the Software and Vendor Software means the Vendor Software written in programming languages, including all comments and procedural code, such as job control language statements, in a form intelligible to trained programmers and capable of being translated into object code for operation on computer equipment through assembly or compiling, and accompanied by documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the Vendor Software in sufficient detail to enable a trained programmer through study of such documentation to maintain and/or modify the Vendor Software without undue experimentation. "Specifications": Collectively, the functional, performance, operational, compatibility, and other specifications or characteristics of the Application described in the (1) most 3 recent version of the approved Project Specification Document including any approved updates or amendments thereto made during Application tailoring and testing, (2) Performance Standards, (3) County approved Interface Plan and Specifications document, and (4) Vendor's response to the RFP. If there is a conflict between these documents they shall take precedence in the order set forth in this definition. "System": refers to all application modules, interfaces, reports, imports/exports, database, and any other objects used to provide a complete turnkey solution to meet the deliverables and expectations of the contract. "Test(s)": Functional, reliability, unit, integration, pilot, Acceptance, and other tests as determined by the County to test the performance of each Deliverable and the Application including final testing of the integrated Application. "Vendor Software": Any Software which is developed or supplied by Vendor in connection with the performance of the Services, but excluding the Third Party Software. "Warranty Period": The 12 month warranty period for the Application, Vendor's services and Vendor developed software, beginning after either the County's Acceptance of the Application or the live production operation of the Application. "Work Plan": The documents to be produced during the project as described in the Statement of Work and that is approved by the County. It is recognized the Work Plan will be updated as the project progresses and the most recent version that is approved by the County shall be the document considered to be the Work Plan for the purposes of this Agreement. 2. ENTIRE AGREEMENT This Agreement, which specifically includes the Statement of Work and all other Attachments, Supplements and Exhibits referenced herein, constitutes the entire Agreement between the County and the Vendor for installation and implementation of a POS. This Agreement supersedes any other oral or written representation between the County and the Vendor relating to the installation and implementation of the POS. 3. ADDITIONAL DOCUMENTS AND ATTACHMENTS 3.1 The following documents are related to the development of this Agreement and may be referred to for interpreting the terms of this Agreement: RFP# 365 ® Terms and Conditions of RFP #365 Vendor's Response to RFP #365 dated March 18, 2004. ® Software License Agreement. 4 ® Escrow Agreement. 3.2 The following Attachments are incorporated into and made a part of this Agreement: Attachment A - Statement of Work Attachment B — Initial Work Plan and Schedule of Deliverables Attachment C — Hardware Assessment Document 4. SERVICES AND CONSIDERATION 4.1 Vendor agrees to perform all of the Services and provide the Deliverables set forth in the Statement of Work and the Final Project Specification Document in accordance with the schedule set forth in the Schedule of Deliverables or any amendment or update thereto. 4.2 The County agrees to pay the Vendor in the amounts indicated in the Initial Work Plan and Schedule of Deliverables or any amendment or update thereto, subject to the retainage provisions of this Agreement, not to exceed $338,280.00 ("Agreement Amount"). Such payment shall be full compensation for work performed and/or Services rendered and for all supervision, labor, supplies, materials, equipment or use thereof, and for all other expenses and incidentals necessary to complete the work. This Agreement is a fixed price contract. The County does not have the right to delete non -optional items from the schedule of deliverables and receive a concomitant refund or price reduction. Likewise, Vendor bears the risk that Milestones, Deliverables or the Application will take more work to complete than anticipated. Except as expressly provided in this Agreement, Vendor and County shall each bear all of its own expenses arising from performance of its obligations under this Agreement, including (without limitation) expenses relating to personnel, facilities, utilities, equipment, supplies, clerical and the like. Provided, that in addition to the foregoing amount, it is agreed that reasonable travel related expenses are the responsibility of the county in an amount not to exceed $19,000.00. Vendor shall provide the County with documentation evidencing travel expenses. 4.3 Payments shall be due within thirty (30) days after the receipt and approval of Vendor's invoice itemizing charges for completed and Accepted Milestones and Deliverables as specified in the Schedule of Deliverables, less twenty percent (20%) of the invoiced amount (the "Retainage"). It is the intent of the Parties that a retainage of 20% of the total amounts due the Vendor shall be withheld until paid as provided in section 4.3.1 of this Agreement. The Schedule of Deliverables will be updated to specify dates by which they are to be completed. However, these are not payment dates. All amounts held by the County as Retainage shall be deposited by the County in an insured interest bearing account at a financial institution approved by the County. 5 4.3.1 Within sixty (60) days following final Acceptance of the Application County shall pay to Vendor the sum of (i) all unpaid fees and charges owed to Vendor in accordance with the provisions of this Agreement, (ii) the remaining amount of the Retainage, and (iii) all interest earned on the Retainage, unless there are incomplete deliverables or material deficiencies. If, after the Application has been used for live operations for a period of sixty days, there remain incomplete deliverables or unresolved material deficiencies such that release of accumulated retainage is in dispute, then the following process will be followed to resolve such dispute. County and Vendor will in good faith jointly compile a detailed list of work tasks remaining to complete the project. For all undisputed deliverables, the amount of the "percentage of services retainage" shown in Attachment B — the Initial Work Plan shall be released to the Vendor. Vendor shall perform agreed work tasks, and the allocated services retainage shall be paid as tasks are completed and accepted by County. The "system retainage amount" shown in Attachment B — the Initial Work Plan shall not be released until all deliverables are complete and all material deficiencies are resolved. 4.4 If between the date of this Agreement and the date the Application is accepted by the County, Vendor should announce a reduction in the price for Services, then the prices for such Services shall be deemed to be decreased by an amount equal to the reduction in the price for any such Services. 4.5 Amounts due the County as damages may be deducted by the County from any money payable to Vendor pursuant to this Agreement. The County shall notify Vendor in writing of any claim for damages prior to the date the County deducts such sums of money payable to Vendor. The Vendor shall respond in writing indicating its position on the County's claim and what, if any, action it proposes to take to address the County's concerns. 4.6 Subject to the provisions of this Agreement relating to amendment, if County requests Vendor to provide any Services that are different from, or in addition to, the Services being provided under an approved Statement of Work ("Additional Services"), the parties (i) will cooperate with each other in good faith in negotiating and agreeing to the scope and nature of the request, the Additional Services so requested, the time period in which Vendor will provide such Additional Services and the basis upon which Vendor will be compensated and reimbursed therefor, and (ii) shall set forth agreed -upon Additional Services, any related obligations of the parties and County's payment or reimbursement obligations in a written authorization to proceed, which authorization to proceed will be signed by duly authorized representatives of County and Vendor, shall be attached to this Agreement and shall become a part hereof. 4.7 In the event that the County requests that Vendor provide additional work through this contract, either through the Change Order process, or through amendments or extensions of the contract to provide additional out of scope work, the following rate structure will be followed by Vendor in preparing cost estimates and firm fixed price quotes for presentation to the County. 6 For work to be performed beyond the scope of the contract Vendors rates of $165.00/hr. OR $1,200.001daywill apply. 5. CONTRACT TERM 5.1 This Agreement shall be effective for an initial term commencing on the Effective Date. 5.2 This Agreement shall expire at the end of the Warranty Period, unless otherwise amended. 5.3 Passage of the Agreement expiration date shall not extinguish or prejudice the County's right to enforce this Agreement with respect to any default or defect in performance that has not been cured or any warranty. Further, Vendor's obligations regarding indemnification, confidentiality and dispute resolution shall survive the expiration or termination of this Agreement. 6. TAXESBUSINESS LICENSE County shall pay all applicable sales/use taxes related to the project. Vendor shall be responsible for any license requirements, State and local Business and Occupational tax, taxes on Vendor's gross or net income and personal property taxes levied or assessed on personal property to which the County does not hold title. 7. CONTRACT ADMINISTRATION AND PROJECT MANAGEMENT 7.1 Decision -Making The County Project Manager will manage the County decision -making process. The Vendor Project Manager will track all project issues. The Project Team will resolve minor issues; however, issues with major implications on the project will require decision from the Project Steering Committee. Vendor's point of contact in matters of project management will be the County's Project Manager. In his or her project management role, the Project Manager will be responsible for; (a) coordinating the reporting, review and quality control process; (b) facilitating the effective participation of the County staff; (c) resolving questions raised by Vendor requiring clarification of the County's requirements, policies, and procedures; (d) monitoring the progress of all principal Project participants; (e) facilitating the timely resolution of issues raised by the Vendor and (f) reviewing and accepting or rejecting Milestones, Deliverables and the Application. Except with respect to the matters identified in the previous sentence, Project Manager shall have no authority to bind the County. The Project Manager shall have the right to correct, in writing, any clerical, 7 mathematical or minor errors or omissions in the specifications when such corrections are necessary for the proper fulfillment of their intention. Vendor's designated Project Manager shall have overall daily responsibility for this project as his/her principal assignment until the completion of the Statement of Work and shall be the focal contact person until the end of the warranty period. Vendor shall provide the business telephone number and business address for its Project Manager. Vendor shall not reassign its Project Manager without County approval of his/her replacement, which approval shall not be unreasonably withheld. If this individual leaves Vendor's employ, the County must approve his/her replacement. In either case, County approval shall not be unreasonably withheld. Vendor's designated Project Manager shall have overall daily responsibility for this project as his/her principal assignment until the completion of the Statement of Work and shall be the focal contact person until the end of the warranty period. 7.2 Deliverable Review Procedures 7.2.1 Review of Milestones and Deliverable Other Than the Application. The County Project Manager shall be the person to whom the Vendor shall request review and Acceptance of Milestones and Deliverables. In the interest of keeping the project on schedule and to resolve issues as quickly as possible, the Vendor shall provide the County with written notice of its completion of a Deliverable or Milestone. The County shall review a Deliverable or Milestone within ten business days of receiving it accompanied by the written notice. The County Project Manager shall give the Vendor written notice of Acceptance or rejection of any Milestone, Deliverable or the Application. The Vendor shall timely notify the County project Manager of any delays in review and the County shall promptly complete its review. Review of a Deliverable or Milestone shall not constitute waiver of any Failure discovered in subsequent Testing. The Vendor shall have ten business days from written notice of a Failure to correct any Failure. After any correction, the County shall have the right to review the Milestone or Deliverable for Acceptance. 7.2.2 Review of the Application. Vendor shall notify the County in writing of the fact that the fully integrated Application is ready for Acceptance Testing. The County shall conduct the Acceptance Testing identified in the Statement of Work and Work Plan in accordance with the Schedule; provided the County shall have a minimum of thirty days to conduct the Acceptance Testing. The County shall provide the vendor with written notice of any Failure. The Vendor shall have up to ten days to correct any Failure. The County shall have the right to conduct additional Acceptance testing of the Application following any corrections. 7.3 Change Orders 8 1. Issuance. The County will submit in writing a Change Order request to the Vendor Client Manager noting the general scope and timeline requirements for the services requested. The County will entertain unsolicited proposals from Vendor for Change Order consideration. County acceptance will be indicated through execution of Change Order. 2. Vendor Response. Vendor shall respond in writing within 5 days of receipt of a Change Order Request, or as mutually agreed, providing a recommendation for technical solution, and providing the County with the cost for the work proposed in the Change Order by way of the Vendor's Modification Request Form. Written response will include a breakdown of the number of staff hours and/or additional automation requirements by level of personnel needed to effect this change and describe any impact on the project schedules or Specifications. There shall be no charge for the preparation of the Modification Request Form. 3. Agreement. The Project/Client Managers shall negotiate in good faith and in a timely manner as to the price and the impact on the Schedule of any Change Orders. Subject to the terms of subsection 28.1 of this Agreement relating to Amendment, if the parties reach an agreement in writing, the terms hereof shall be modified accordingly. 7.4 KEY PERSONS The parties agree that the individuals designated in the Final Project Specification are essential to the services offered pursuant to this Agreement. The parties agree that: • They shall not transfer or reassign such individual or individuals without the express written agreement of the other Party; which agreement shall not be unreasonably withheld. Should a party no longer employ such individual or individuals during the term of this Agreement, the party shall present to the other party an individual with greater or equal qualifications as a replacement subject to approval, which shall not be unreasonably withheld. The Parties approval or disapproval shall not be construed to release a Party from its obligations under this Agreement. • The County shall have the right to have background checks conducted on all on - site Vendor staff. Vendor agrees to cause staff to which Vendor makes available (as permitted by this Agreement) Confidential Information, to agree in writing to observe and perform all provisions of this section applicable to such Staff, including without limitation agreeing to comply with the confidentiality and use limitations for Software licensed or purchased by the County. 8. RIGHT OF COUNTY TO REJECT VENDOR EMPLOYEES 9 The County shall have the right to reject any of the Vendor's employees whose qualifications or performance is unsatisfactory in the County's good faith and reasonable judgment. The Vendor shall replace rejected employees with qualified employees promptly so as not to cause unreasonable delays in the project schedule. 9. SUB -VENDORS The Vendor may not enter into subcontracts with third parties for its performance of any part of the Vendor's duties and obligations, without the written approval of the County; provided that in no event shall the existence of a sub -vendor operate to release or reduce the liability of the Vendor to the County for any breach in the performance of the Vendor's duties. 10. REPORTING 10.1 Problems. The Vendor and the County agree to promptly notify the other of any factor, occurrence, or event coming to its attention that may affect the ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the project. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major equipment failure. In the event County determines, in its reasonable discretion, that Vendor may miss the time frames for delivery of the Application or that Vendor employees or contractors do not have the skills necessary to properly perform the work, County may require Vendor, at Vendor's expense, to supplement its staff with additional employees or independent contractors acceptable to County in order to recover from such delays or re -perform any deficient work. Delays in delivery which are solely the result of the actions or lack of actions of the County or third party vendors selected by the county are the responsibility of the County. 10.2 Status Reports. Vendor will prepare a bi-weekly status report which shall provide a breakdown of the tasks performed, tasks completed, percentage of completion of tasks underway, issues identified and questions raised, and the agreed resolution of such issues and questions during the prior reporting timeframe. Vendor shall identify all changes to dates when Deliverables and Milestones will be submitted to the County for review. The presentation of this document to County shall serve as a checkpoint for both quantity and quality of the work and enable the County to schedule staff to participate in the project and review. 10.3 Discrepancy and Omissions. If anything necessary for the clear understanding of the Services has been omitted from the Agreement specifications or it appears that various instructions are in conflict, Vendor shall secure written instructions from County's project manager before proceeding with the performance of the Services affected by such omissions or discrepancies. 10 10.4 County Failure. In the event that Vendor believes that County is failing to comply with any of its obligations or is contributing to the inability of Vendor to meet Vendor's obligations, then Vendor shall promptly provide written notice to the County of this belief and specify the reason therefor to enable the County to verify and, if necessary, remedy the failure. The County shall respond in writing indicating its position on the Vendor's claim and what, if any, action it proposes to take to address the Vendor's concerns. 11. OWNERSHIP Vendor agrees that all intellectual property developed as a result of or in the course of Services rendered to County by Vendor or any employee or employees of Vendor during the term of this Agreement shall be the property of the County. Vendor herewith assigns all rights in such intellectual property to County and shall (and will ensure that Vendor's employees and sub -Vendors shall) supply all assistance reasonably requested in securing for County's benefit any patent, copyright, trademark, service mark, license, right or other evidence of ownership of any such intellectual property, and will provide full information regarding any such item and execute all appropriate documentation prepared by County in applying or otherwise registering, in County's name, or in the name of any cooperative organization of County, all rights to any such item. County does not grant any licenses to Vendor to use any intellectual property developed under this Agreement. It is agreed to by the Parties that Commercially offered software owned in whole or part by the Vendor or offered through reseller agreements and the services rendered in association with this Agreement and the Final Project Specification are not subject to this section and that intellectual property rights shall only be assigned for these services upon separate written amendment to this Agreement. County further agrees that any service request under this Agreement which is subject to this section will be provided in writing or electronically to the Vendor prior to the design or development phase associated with said service. The Vendor shall provide written or electronic confirmation of the notice to County. 12. INSURANCE The Vendor agrees to the following requirements relating to insurance coverage: 12.1 Liability Insurance: The Vendor shall obtain, and keep in force during the entire term of the Agreement, liability insurance against any and all claims for damages to person or property which may arise out of operations under the Agreement, whether such operations be by the Vendor, a sub -Vendor, or anyone directly or indirectly employed by either the Vendor or a sub -Vendor. 11 • The amount of coverage provided by such insurance should not be less than $1,000,000 combined single limit for bodily injury and property damage. In addition a General Aggregate Limit Endorsement, CG 25 03 or its equivalent, must be attached to the certificate. • All liability insurance required herein shall be under a comprehensive or commercial general liability (Occurrence Form Only) and business automobile policy or policies, and shall provide coverage as to: Premises and operations of the Vendor Products - completed operations Owners and Contractors protective Contractual liability Explosion (x), collapse (c), and underground hazards (u) coverage Broad form property damage Employer's liability/stop-gap Automobiles, including all owned, hired and leased vehicles, and employer's auto non -ownership liability • The County shall be named as an additional insured with respect to all such policies by endorsement CG 20 10 11 85 which must be attached to the certificate and copies of all policies shall be furnished to the County upon request. • An insurance company licensed to do business in the State of Washington shall issue all policies. • At least seven (7) days prior to commencing any operations under the Agreement, the County must receive an insurance certificate outlining the Vendor's insurance coverage. Said certificate must be provided on a standard "Acord" or comparable form, must include as additional insured Clark County, with respect to the Agreement, must provide that coverage shall not be canceled or modified without 30 days prior written notice to the County, and must state that all policies are written with an "occurrence" trigger. 12.2 Workers Compensation: The Vendor shall take out and maintain during the life of 12 this Agreement, workers' compensation insurance for all of its employees engaged in work under or pursuant to this Agreement who are required to be so covered by the laws of the State of Washington, and in case any work is sublet, the Vendor shall require the sub -Vendor to provide workers' compensation insurance for all its employees, unless or to the extent that such employees are covered by the protection provided by the Vendor. The limits and aggregates noted above must apply to the Stop Gap Coverage as well. This must be indicated on the certificate of insurance. 12.3 Employment Security: The Vendor shall comply with all employment security laws of the State of Washington, and shall timely make all required payments in connection therewith. 12.4 Errors and Omissions. The Vendor shall take out and maintain during the life of this Agreement professional liability (errors and omissions) insurance in an amount not less than One Million Dollars ($1,000,000). Vendor shall provide evidence of such insurance by submitting an insurance certificate provided on a standard "Acord" or comparable form. Copies of all such policies shall be furnished to the County upon request. 12.5 Failure on the part of the Vendor or any subcontractor to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of Agreement upon which County may immediately terminate this Agreement, or at its discretion, County may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by County shall be repaid by Vendor to County upon demand, or County may offset the cost of the premiums against any monies due to Vendor from County. Vendor shall be solely responsible for any deductible or self -insured losses under the policies required above, The County, at its option, may require the Vendor to secure payment of such deductibles or self -insured retention's by a Surety Bond or an irrevocable and unconditional letter of credit. Every policy required above shall be primary insurance, and any insurance carried by County, its officers, or its employees shall be excess and not contributory insurance to that provided by the Vendor. Vendor shall be solely responsible for any deductible losses under the policies required above. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 13. EMPLOYMENT OF LABOR Vendor warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established pursuant to this Agreement. 13 Vendor warrants that Employees shall have sufficient skill, knowledge, and training to perform Services and that the Services shall be performed in a professional and workmanlike manner. Employees must be United States citizens or lawfully admitted in the United States for permanent residence or lawfully admitted in the United States holding a visa authorizing the performance of Services on behalf of Vendor. Vendor warrants that all Employees utilized by Vendor in performing Services are under a written obligation to Vendor requiring the Employee to maintain the confidentiality of information of County. Vendor shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers' compensation benefits) which an employer is required to pay relating to the employment of employees. County shall not be liable to Vendor or to any employee for Vendor's failure to perform its compensation, benefit, or tax obligations. Vendor shall indemnify, defend and hold County harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14. INSPECTIONS AND CORRECTIONS Vendor's performance shall be subject to inspection and testing by the County at any time. However, the County is not responsible for managing the project and Vendor is not relieved of its responsibility for inspecting, testing, and correcting its work to comply with the Statement of Work. Vendor shall assist in any such inspection by the County's Project Manager or his/her designee to allow a determination of Vendor's compliance with the Statement of Work. Such inspections shall not unduly interfere with Vendor's performance. If the County's Project Manager or his/her designee determines that Vendor's performance is not in compliance with the Statement of Work of this Agreement, and such performance deficiency is caused by Vendor's acts or omissions, the County may require Vendor to correct the performance at no additional cost to the County. Payment for Services provided hereunder, inspection or testing thereof by County, shall not constitute Acceptance or relieve Vendor of its obligations under this Agreement. Nothing in this Section 14 shall preclude Vendor from disputing the Project Manager's or his/her designee's determination regarding Vendor's performance. 15. TERMINATION 15.1 DEFAULT 14 Either party has the right to terminate this Agreement if the other party is in default of any material obligation or representation thereunder which substantially harms the non -defaulting party, and which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of notice of such default (or such additional cure period as the non -defaulting party may authorize). Neither party will unreasonably terminate this Agreement. Vendor default shall include but not be limited to if (a) the completion of Deliverables or Milestones described in the Scope of Work are more than thirty days late (based on the delivery or performance date specified in the updated Work Plan and Schedule of Deliverables) and such delays are caused by Vendor, (b) the Milestones or Deliverables exhibit material defects impacting the integrity of the Application or its components, (c) the Failure of the Application to meet all the conditions of Testing, (d) Vendor fails to promptly correct performance deficiencies discovered in County inspections, (e) after installation the Software continues to exhibit defects causing serious disruption of use and/or repeated periods of downtime, notwithstanding Vendor's remedial or maintenance efforts, over a continuous period of one (1) months. In the event that the County causes delays or material defects, this may result in additional cost to be addressed via the Project Change Management Processes of the Statement of Work. The County shall not be in default for late payment until payments are thirty (30) days past due. 15.2 ACTS OF INSOLVENCY The County may terminate this Agreement by written notice if Vendor becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise and such action materially affects Vendor's ability to perform its obligations under this Agreement. 15.3 FORCE MAJEURE, SUSPENSION AND TERMINATION In the event that either party is unable to perform its obligations under this Agreement or to enjoy any of its benefits because of natural disaster or actions or decrees of governmental bodies (hereinafter referred too as a "Force Majeure Event" or "Event"), the party who has been so affected immediately shall give notice to the other party and shall do everything possible to resume performance. 15 Upon receipt of such notice, the affected party shall be excused from such performance as is affected by the Force Majeure Event for the period of such Event. If the period of the non-performance exceeds fifteen (15) days from the receipt of the notice of the Force Majeure Event, the party whose ability to perform has not been so affected may terminate this Agreement by giving written notice. If such Event shall affect the delivery date or warranty provisions of this Agreement, such date or warranty period shall automatically be extended for a period equal to the duration of such Event. 15.4 TERMINATION FOR PUBLIC CONVENIENCE The County shall have the right to terminate this Agreement in whole or in part for public convenience with 30 days written notice to Vendor. Under this section the County may terminate whenever: A. the County is prevented by federal, state or local law, administrative or regulatory order from completing this Agreement, or B. the County determines that such termination is in the best interests of the public. If the Agreement is terminated in accordance with this Subsection, payment will be made for actual work performed at the unit contract prices for work performed prior to the giving of the notice of termination and reasonable disengagement expenses. Vendor shall make available time sheets and other records to enable the County to make a determination of the amount of labor provided up to the date of termination. Concurrent with payment, Vendor shall provide to County all Deliverables and Documents prepared to date whether in final or draft form and shall document the status of the Application Configuration as of the date of the termination. 15.5 NOTICE OF TERMINATION Termination of this Agreement may only occur under the conditions specified herein, and must be by written notice to the other party specifying the date when the termination shall be effective. 15.6 REMEDIES In addition to the remedies provided for in this Agreement, each party shall have those remedies available to them at law or in equity as provided in Washington law. 15.7 RIGHT OR DUTIES WITH RESPECT TO INDEMNIFICATION 16 Termination or cancellation of this Agreement will not affect any rights or duties arising under it with respect to the Section providing for "Indemnification." 16. TIME IS OF THE ESSENCE All time limits stated in the Agreement are of the essence. Should, by fault of the Vendor, the project not be completed and accepted within thirty (30) days after Completion Date, it is mutually agreed by and between the Vendor and the County that a delay would affect the public and the operation of the County. 17. INDEMNIFICATION Vendor, its employees, sub -Vendor, or agents, shall indemnify, hold harmless and defend (including reasonable attorney's fees) the County, its officers, employees and agents (hereinafter "Indemnified Party") from and against all claims, and liability to, third parties (other than liability solely and entirely the fault of the Indemnified Party) for personal or property damage arising from or in connection with the acts, errors, or omissions of Vendor or its officers, employees, sub -Vendor, or agents in performing the work required by this Agreement. It is specifically agreed that the County maintains the responsibility for the auditing of transaction data. The action or lack of action taken by the County as a result of transaction processing is the sole responsibility of the County. The County shall indemnify, hold harmless and defend (including reasonable attorney's fees) the Vendor, its officers, employees and agents (hereinafter "Indemnified Party") from and against all claims, and liability to, third parties (other than liability solely and entirely the fault of the Indemnified Party) for personal or property damage arising from or in connection with the acts, errors, or omissions of the County related to the County's transaction processing. These indemnities have been mutually negotiated by the parties. Vendor, at its own expense, will defend and indemnify the County against claims that Vendor developed software pursuant to this Agreement (hereinafter "Vendor software") furnished under this Agreement infringe a patent or copyright, misappropriate trade secrets, or otherwise violate an intellectual property right protected by any law, provided the County (a) gives Vendor prompt written notice of such claims pursuant to Section, (b) permits Vendor to defend or settle the claims, and (c) provides all reasonable assistance to Vendor in defending or settling the claims. As to any vendor software which is or, in the opinion of Vendor, may become subject to a claim of infringement or misappropriation, Vendor may elect to (a) obtain the right of continued use of such Vendor software for the County or (b) replace or modify such Vendor software to avoid such claim. Such replacement or modification shall not relieve or modify Vendor's obligation to meet the requirements of this Agreement. 17 Vendor will not defend or indemnify the County if any claim of infringement or misappropriation (a) results solely from the County's design or alteration of any Vendor software or (b) results solely from use of any Vendor software in combination with any non -Vendor supplied Vendor software. Except as specifically provided in this agreement, there are no other warranties, express or implied, including, but not limited to any implied warranties of merchantability or fitness for a particular purpose. The Parties' obligation to indemnify, hold harmless and defend any Indemnified Party shall survive the expiration or termination of this Agreement by either party for any reason. The Indemnitor shall conduct the defense in any such third party action arising as described herein and the Indemnitee shall cooperate fully with such defense. In the event that a judgment, in whole or in part, is entered against any Indemnitee, Indemnitor shall promptly satisfy and pay such judgment. 18. CONFIDENTIALITY With respect to the Application, and to financial, statistical, business, technical, copyrighted confidential information relating to each other's business which is expressly labeled by either party as "confidential" or "proprietary," as well as all data files which is labeled "confidential" or "proprietary") relating to any and all County information, which is submitted by either Vendor (or its sub -Vendor) or the County in order to carry out this Agreement, each party will instruct its personnel to keep such information confidential to the extent permitted by Applicable Laws. The County further agrees to take reasonable steps to the extent permitted by Applicable Laws to ensure that any confidential programs or materials relative to operation of the Application, including but not limited to flow charts, logic diagrams, and source code, in any form, are not provided or otherwise made available to any parties other than employees of the County or Vendor's sub -Vendors without prior written consent from Vendor. Information may be provided to the County's auditors to the extent required by Applicable Laws for their audit function. Neither party shall use the name of the other, including its corporate affiliates, for advertising or other purposes (not including use for reference or experience citation) without securing the other's prior approval. The terms "confidential" or "proprietary" are not meant to include ideas, concepts, know-how of techniques which at the time of their disclosure are in the public domain unless the entry of that information into the public domain is the result of any breach of this Agreement. In the event that one party is, or reasonably expects to be, ordered to disclose the confidential information of the other party by a judicial, regulatory, or legislative authority, it shall immediately notify the other party in order that the other party shall 18 have the opportunity to appear and oppose said disclosure at the expense of the party opposing disclosure. The party ordered to disclose the confidential information shall not be liable for any damages to the other party from any disclosure occurring more than five (5) business days after notifying the other party of the potential disclosure. In the event that the County receives a public record request for information the Vendor has labeled as confidential or proprietary, the County shall notify Vendor of such request and withhold disclosure of such information for not less than five (5) business days to permit the Vendor to seek judicial protection of such information; provided that the Vendor shall be responsible for its attorney fees and costs in such action and shall save and hold harmless the County from any penalty assessments under Ch. 42.17 RCW for withholding or delaying public disclosure of such information. 19. PUBLICITY News releases, tours, demonstrations, and studies related to this Agreement or to any work performed pursuant to this Agreement shall not take place without the prior, specific approval of the County. 20. EQUAL EMPLOYMENT During the performance of this Agreement, Vendor agrees as follows: Vendor will not discriminate against any employee or applicant for employment because of creed, religion, race, color, sex, marital status, actual or perceived sexual orientation, ideology, ancestry, national origin, or the presence of any sensory, mental or physical disability, unless based upon a bona fide occupational qualification. 21. PROTECTION OF PERSONS AND PROPERTY 21.1 PROPERTY Vendor agrees to take reasonable steps to protect the County's property from injury or loss arising in connection with Vendor's performance of this Agreement. 21.2 OSHA/WISHA The Vendor certifies that it is in compliance with the conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA), the Washington Industrial Safety 19 and Health act of 1973 (WISHA), and the standards and regulations issued thereunder and certifies that all items furnished or purchased under this Agreement will conform to and comply with said standards and regulations. The Vendor further agrees to indemnify and hold harmless the County from all damages assessed against the County as a result of the Vendor's failure to comply with the Acts and the standards issued thereunder and for the failure of the items furnished under this Agreement to so comply. 21.3 PERSONS Vendor and the County shall each take reasonable precautions for the safety of employees and shall each comply with all applicable provisions of Applicable Laws to prevent accidents or injury to persons on, about or adjacent to any premises where work is being performed. 21.4 CLEANING UP Vendor shall ensure that project work sites are maintained in a clean and orderly fashion. Immediately after completion of the work, Vendor shall clean up and remove all refuse and unused materials resulting from the work. Upon Vendor's failure to do so within twenty-four (24) hours after having been notified in writing by the County, the work may be done by others at the direction of the County and the cost thereof charged to Vendor and deducted from any payments due. 21.5 NO SMOKING Vendor shall not allow Vendor's or sub -Vendor's employees to smoke inside any County facilities, except as may be explicitly permitted by the County. 21.6 SECURITY AND ACCESS RESTRICTIONS Access to County facilities will be restricted to personnel who have received a security clearance from the County. Access may also be restricted with respect to the time and day. Restricted access shall not result in additional charges to the, County for overtime or schedule delays. However, the County shall provide to Vendor and its agents access to its facilities, information and equipment as is reasonably necessary for Vendor to perform its obligations under this Agreement. Any County property furnished to Vendor shall be used only for the performance of this Agreement. 20 21.7 STORAGE OF MATERIALS It shall be Vendor's responsibility for storage of any materials and the County will not be responsible for loss of or damage to materials, tools, appliances, or work arising from acts of theft, vandalism, malicious mischief or other causes unless such loss or damage results from negligence of the County. 21.8 RISK OF LOSS The Vendor shall bear the risk of loss or damage to the purchased hardware during the period of transportation. The Vendor shall bear the risk of loss or damage of the Application until Acceptance by the County. 21.9 LOSS OR DAMAGE Vendor shall be responsible for any loss or damage to County property which results from Vendor's acts or omissions or from the failure on the part of Vendor to maintain and administer in accordance with sound management practices that property. Vendor will ensure that the property will be returned to the County in like condition to that in which it was furnished to Vendor, reasonable wear and tear excepted. Upon the loss of, destruction of, or damage to any of the County property, Vendor shall notify the County Project Manager thereof and shall take all reasonable steps to protect that property from further damage. 22. WARRANTIES 22.1 SOFTWARE DESIGN AND PERFORMANCE During the Warranty Period, Vendor warrants that the Application furnished hereunder, when operated on a network infrastructure conforming to that described in the Hardware Assessment Document, shall be free from programming errors and from defects in workmanship and materials and shall operate in conformity with the Specifications; that the Services shall be performed in a timely and professional manner by qualified professional personnel; and that the Services and Application shall conform to the standards generally observed in the industry for similar services and Applications. In the event the County makes use of any software programming or modifications in connection with the equipment supplied by Vendor which is not provided by or approved in writing by Vendor, the County acknowledges that Vendor has made no representation or warranties with respect to any product not supplied by Vendor concerning its performance on the equipment or service supplied by Vendor. Vendor shall incur no liability to the County arising out of the use of such software or devices or the furnishing of such services. The County acknowledges that no software is being furnished to the 21 County by Vendor except pursuant to this agreement or separate license agreements between the County and Vendor. If Vendor is not the original software manufacturer, Vendor shall obtain in writing the manufacturer's consent to pass through all software warranties for the County's benefit. Vendor agrees to immediately repair or replace the Application or any part thereof, without charge, including without limitation for parts, labor, shipping or handling, that is not operating in accordance with the Specifications or has defects during such Warranty Period. Vendor also warrants that the Application will satisfy all Acceptance conditions as specified in the Statement of Work. 22.2 NETWORK TRANSMISSIONS Vendor represents and warrants that the Application, when operated on a network infrastructure conforming to that described in the Hardware Assessment Document, as described in the approved Hardware Assessment Document will be capable of transmitting the County data onto and over the County network in compliance with the Performance Standards without modification or damage to the network or any of the County's equipment. 22.3 NO SURREPTITIOUS CODE WARRANTY Vendor warrants to the County that no copy of the licensed Vendor Software provided to Purchaser contains or will contain any unknown secret Self -Help Code nor any Unauthorized Code, not disclosed to the County, as defined below. The warranty is referred to in this Agreement as the "No Surreptitious Code Warranty." As used in this Agreement, "Self -Help Code" means any unknown secret back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than the licensee of the Vendor Software. Self -Help Code does not include software routines in a computer program, if any, designed to permit an Owner of the computer program (or other person acting by authority of the Owner) to obtain access to a licensee's computer system(s) (e.g. remote access via modem) for purposes of necessary maintenance or technical support. As used in this Agreement, "Unauthorized Code" means any virus, Trojan horse, worm or other software routines or Equipment components designed to permit unauthorized access: to disable, erase, or otherwise harm software, Equipment, or data; or to perform any other such actions. The term Unauthorized Code does not include Self -Help Code. 22 The Vendor will defend Purchaser against any Claim, and Indemnify the County against any loss or expense arising out of any breach of the No Surreptitious Code Warranty. 22.4 YEAR 2000 WARRANTY Vendor represents and warrants that any and all Vendor software products subject to this Agreement are designed to be used prior to, during, and after the calendar year 2000 AD, and that such Vendor software products will operate during each such time period without error related to date data, specifically including any error relating to, or the Vendor software product of date data that represent or reference different centuries or more than one century. The Vendor software products shall be able to accurately process date data (including, but not limited to, calculating, comparing, sequencing and scheduling) from, into, within, and between the twentieth and twenty-first centuries, including leap year calculations. Without limiting the generality of the foregoing, Vendor further represents and warrants that the Vendor software products will not abnormally end or provide invalid or incorrect results as a result of date data, including but not limited to, date data century recognition, calculations that accommodate same century and multi -century formulas and data values, and date data interface values that reflect the century. When used in this Section, the term "Date Data" shall mean any data or input which includes an indication of or reference to date. The foregoing is in addition to the other representations and warranties set forth herein. Vendor represents and warrants that Vendor -supplied products will meet the requirements herein while interfacing with other previously licensed Vendor products and other third party products that are year 2000 compliant. Vendor will not be liable for any failure to comply with this provision that is caused solely by failure of an interconnected product not licensed or provided by Vendor. 22.5 COMPATIBILITY The Vendor software is, and shall continue to be, data, program, and upward compatible with any software products available or to be available from Vendor so that data files created for the Application can be utilized with or without adaptation with other Vendor software products and the Application will operate with other Vendor software products. 22.6 CAPACITY Based on Vendor's studies of County's existing systems which are to be replaced by the Application, and the demonstrations, conversations, correspondence, and the Request for Proposal documents, Vendor has gained a good understanding of County's requirements pertaining to an integrated business management information Application. Based on this in-depth understanding and combining it with the Vendor's knowledge and experience with other municipal organizations, Vendor warrants that the proposed Application has been sized to meet County's current needs and accommodate growth in the near future. 23 22.7 NOTIFICATION OF DEFECTS Vendor agrees to notify the County of all significant defects in the Vendor software , whether discovered by other parties or by Vendor, within five business days of their discovery. A defect shall be considered significant if it has the potential to delay the County's ability to timely conduct financial transactions, or if it has the potential to corrupt the County's data. 22.8 CORRECTION OF DEFECTS Vendor agrees to fully remedy all Failures in the Vendor software , whether discovered by other parties or by Vendor, in a reasonably timely manner. A Failure shall be considered significant if it has the potential to delay the County's ability to conduct financial transactions or if it has the potential to corrupt the County's data. 22.9 RIGHTS OF THIRD PERSONS Vendor warrants that each and every element of the Vendor software does not violate or in any way infringe upon the rights of third parties, including (but not limited to) contractual, employment, trade secrets, proprietary information and nondisclosure rights, and any trademark, copyright or patent rights in the manufacture, production, sale, lease or use of the Vendor software . 22.11 PRICES AND CHARGES The Vendor warrants that the price or charges for Services acquired by the County during the term of this Agreement shall be equal to or less, than the prices or charges given to any other customer within the year 2004 with similar sizing of workstations and interfaces. 22.11 SERVICES Vendor warrants that, in performing the Services: A. It will strictly comply with the descriptions and representations as to the Services (including performance capabilities, accuracy, completeness, characteristics, specifications, configurations, standards, function and requirements) which appear in the Statement of Work and in the Final Project Specifications Document prepared under an earlier agreement with the Vendor B. Its products shall be uniform in appearance, clean and presentable in accordance with generally applicable standards in the industry. 24 C. Any preparation software or data analysis used in the Services shall be available to the County for a period of five (5) years following the completion of the Services. This warranty shall only apply to non- commercial preparation software or data analysis owned by or under the control of Vendor. D. The Services will not be in violation of any Applicable Laws, and Vendor will have obtained all permits required to comply with Applicable Laws. E. The Services will not violate or in any way infringe upon the rights of third parties, including property, contractual, employment, trade secrets', proprietary information and nondisclosure rights, or any trademarks, license, copyright or patent rights. F. Vendor is the lawful owner or licensee of all programs used in the performance of the services contemplated thereunder; such programs have been lawfully developed or acquired by Vendor and Vendor has the right to permit the County access to or use of such program(s). G. Errors or omissions committed by Vendor in the course of providing Services shall be remedied by Vendor at its own expense. 22.12 COMPLIANCE WITH APPLICABLE LAW Vendor warrants that the Application, and the manufacture and production therefore, are in compliance with all Applicable Laws. 22.14 NO CONFLICTING AGREEMENT Vendor warrants that entry into and performance of this Agreement is not limited in any way by any loan, security, financing, contractual or other agreement to which Vendor is a party. 23. ACCESS TO BOOKS AND RECORDS For a period of three years after the completion of this Agreement, the County or its agents shall have the right at reasonable times to audit in Clark County, Washington, the books and records of Vendor bearing upon or connected with the terms and conditions of this Agreement in order to determine compliance with the provisions of this Agreement. Vendor shall require its sub -Vendors to allow the County or its agents to audit their books and records as necessary in order to determine compliance with the provisions of 25 this Agreement. In the event that the audit reveals that there have been errors in payment, the parties agree to immediately correct such errors. A written request for audit documentation shall be provided to Vendor and Vendor, within thirty (30) days from receipt of the request, shall furnish the required documentation. Such documentation shall be confined to those matters directly related or pertinent to the performance of this Agreement 24. MISCELLANEOUS 24.1 AMENDMENTS Parties hereto reserve the right to make amendments or modifications to this Agreement by written amendment signed by both parties. Other than as expressly provided in this Agreement and the Terms and Conditions, and subject to existing County contracting policies, only the Board of County Commissioners or delegate by writing (with the delegation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Agreement on behalf of the County. Furthermore, any alteration, amendment, modification, or waiver of any clause or condition of this Agreement is not effective or binding until made in writing and signed by the Vendor and the County, unless otherwise provided herein. 24.2 DISPUTE RESOLUTION PROCEDURE Should any dispute arise between concerning the work under this Agreement or its amendments, the Project Managers for each organization will attempt to resolve the conflict. Disputes which are not resolved by the Project Managers shall be referred to the County Deputy Treasurer and the Vendor Client Manager. If disputes remain, they shall be referred to the County Administrator, County Treasurer and Vendor's Client Manager. If such parties cannot resolve the dispute, the parties may by mutual agreement submit the dispute to a private arbitrator selected by both parties. The costs and expenses of the arbitrator shall be divided equally between the parties. Arbitration shall be conducted in accordance with the rules of the American Arbitration Association. To assure that all disputes between the parties arising from the Agreement are resolved in a manner which is least disruptive to the conduct of the work to be performed under this Agreement, the parties agree, to the extent possible, to continue their performance of the Agreement during any arbitration proceedings, and to cooperate in expediting such proceedings. The use of arbitration shall not preclude the use of any other legal remedies, and the decision and findings of the arbitrator shall not be admissible in any subsequent court proceedings. 24.3 APPLICABLE LAW 26 The laws of the State of Washington and Ordinances of the County shall govern this Agreement. The venue of any action thereunder shall be in the Superior Court for Clark County, Washington. 24.4 GENERAL Vendor shall comply with all applicable Federal or State laws and County Ordinances and with applicable directions, rules and regulations of public officials and departments in enforcement of County Ordinances and with directions, rules, and regulations from the State of Washington or from the United States of America with respect to any portion of this Agreement. 24.5 LICENSES AND SIMILAR AUTHORIZATIONS Vendor, at no additional expense to the County, shall secure and maintain in full force and effect during the term of any Agreement resulting from this procurement process, all required licenses, and similar legal authorization, and comply with all legal requirements. 24.6 ASSIGNMENT Neither party shall assign or subcontract its obligations under this Agreement, in whole or in part, without the other party's written consent. Such consent shall not be unreasonably withheld. 24.7 BINDING EFFECT The provisions, covenants and conditions in this Agreement apply to bind the parties, their legal heirs, representatives, successors, and assigns. 24.8 COUNTY'S INSTRUCTIONS During the term of this Agreement, Vendor will be responsible for ensuring that its employees, servants, and agents, whenever on the County's premises, obey all applicable instructions and directions issued or published by the County. 24.9 CUMULATION OF REMEDIES All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. 27 24.10 GRATUITIES The County may, by written notice to Vendor, terminate Vendor's right to proceed under this Agreement upon one (1 ) calendar day's notice, if the County finds that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Vendor or any agent as representative of Vendor, to any official, officer or employee of the County, provided that the existence of the facts upon which the makes such finding shall be in issue and may be reviewed by a court of competent jurisdiction in the event of such termination, the County shall be entitled to pursue the same remedies against Vendor as it could pursue in the event of default by Vendor. Notwithstanding the preceding, Vendor is not prohibited from providing room and board for the County personnel to attend vendor sponsored training seminars or schools which are generally held at plant sites and are available to all Vendor's customers, and are a regular element of Vendor's training program. 24.11 HEADINGS Section headings are included in the Agreement for convenience only and do not change, modify, or limit any right or obligation of this Agreement. 24.12 INDEPENDENT STATUS OF PARTIES Both parties hereto, in the performance of this Agreement, will be acting in their individual capacities and not as agents, employees, partners, joint ventures or associates of one another. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. 24.13 COORDINATION WITH OTHER VENDORS Installation and operation of the proposed Application acquired by the County may require the Vendor to work in cooperation with various other hardware and software vendors under contract with the County. The Vendor agrees to coordinate and cooperate with all such vendors as may be necessary to assure a fully operational Application. 24.14 SURVIVAL OF WARRANTIES AND REPRESENTATION The representations and warranties of the Vendor made pursuant to this Agreement shall survive the delivery of the Application, the payment of the purchase price, and the termination of this Agreement. 28 24.15 WORKMANSHIP The Services provided pursuant to this Agreement, including the training and supervision required by the Statement of Work, shall be rendered in workmanlike manner and pursuant to their description in the Statement of Work. 24.16 WAVER The waiver of any breach or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further, prior or future breach or right thereunder. No right or obligation of this Agreement shall be deemed to be waived, modified or deleted except by an instrument, in writing, signed by both parties. 24.18 SEVERABILITY Any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other of its provisions. 24.19 RESPONSIVENESS TO APPLICATION DESIGN QUESTIONS Unless a response time is set forth in the Statement of Work, the County shall have a reasonable time to respond to Application design questions or other questions of the Vendor. The use of such reasonable response time on the part of the County shall not be deemed a default of this Agreement, nor shall it excuse the Vendor from the performance of its obligations under this Agreement. 24.21 NOTICES All notices and other material to be delivered hereunder shall be in writing or facsimile and shall be delivered or mailed to the following: If to County: County Treasurer's Office Attn: Michelle Denman, Project Manager P.O. Box 5000 Vancouver, WA 98668 29 If to Vendor: CORE Business Technologies Attn: George Forte, Software Engineering Manager 2224 Pawtucket Avenue East Providence, RI 02914 or such other respective names and addresses as either party may, from time to time, designate in writing. IN WITNESS WHEREOF, the County and VENDOR have caused this Agreement to be executed. Wonderw e, Inc. By: f[.[�-,. Title: �'�iar.rdel ) or Date: / V6 o y CLARK COUNTY _ Date: '-/r "127 Approved as to form only: Attest: Deputy''fosecuting Attorney iL'l�r,LtheBoard 30