City Auditor - City Recorder - Council Ordinance - 177187 Severn Trent Systems Software License-Maintenance Agreement exhibit A

This Software License and Maintenance Agreement (“Agreement”) is made this _____ day of _____________, 2003 between Computer Systems & Applications Inc., a Texas corporation, d/b/a Severn Trent Systems (“STS”) with its principal place of business located at Two Chasewood Park, 20405 St. Hwy 249 Suite 600, Houston, Texas 77070, and the City of Portland hereinafter referred to as “Customer”, in consideration of the mutual promises and subject to the terms and conditions set forth herein. This Agreement shall govern in all situations relating to the license of the Software and when STS furnishes Maintenance Services to Customer for the maintenance of the Software, and any Additional Services requested by Customer and agreed to, in advance, by STS. STS and Customer may be referred to herein as “party” in the singular and collectively as “parties.”

I.1. “Additional Services” means any requests for work to STS from Customer that are not covered by Maintenance Services, including, but not limited to all assistance in the integration, installation, modification and use of data processing products and systems and custom programming by STS personnel, done at Customer's request.

I.2. “Business Day” means one elapsed day excluding Saturday, Sunday and national holidays.

I.3. “Code” means computer programming code, including, but not limited to, object code (machine-readable), binary code, executable code, compilations and data, and related system documentation (including all comments and any procedural code such as Shell scripts).

I.4. “Confidential Information” means information of a special and unique character that is proprietary to and constitutes confidential or trade secret information or other Intellectual Property of STS, licensors or customers, except to the extent to which Customer can establish by legally sufficient evidence that such information:

I.4.3. is rightfully received by Customer from a third party without violation of any duty of confidentiality; or

I.4.5. Subject to the foregoing exceptions, Confidential Information includes, without limitation:

I.4.5.2. scientific or technical data, information, design, process, procedure, formula or improvement that is commercially valuable to STS and is not generally known in the industry;

I.4.5.3. information and materials concerning STS’ products, technology, services, finances, personnel, or business practices or policies;

I.4.5.6. information of a similar nature received by STS from third parties that STS is obligated to treat as confidential, and information in combination with publicly known information where the nature of the combination is not publicly known.

I.5. “Current System Platform” means, collectively, the configuration of integrated components comprising all hardware, firmware, software and configuration settings of the third party software products and third party products as installed at Customer for Customer’s internal business use and the Minimum System Requirements set forth on Schedule1.5.

I.6. “Customer’s Premises” means the Portland Facility, 1120 S.W. 5^th, Portland, OR 97204-1926.

I.7. “Derivative Work” means a work that is based upon one or more pre-existing works, such as a revision, Modification, enhancement, adaptation, translation (including compilation or recompilation by computer), abridgement, condensation, expansion, or any other form in which such pre-existing works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such pre-existing work, would constitute a copyright infringement.

I.8. “Direct Competitor” means any company that produces, implements or sells software applications that provide substantially similar functionality as the Software.

I.9. “Documentation” means the hard copy, machine-readable format, or online help embedded in the Software that has been previously provided to Customer.

I.10. “End Users” means the customer service representatives and billing and accounting personnel of Customer.

I.11. “Intellectual Property” shall mean any Inventions, computer software, Code, Documentation, trade secrets, know-how, works of authorship, artwork, logos, trademarks and service marks or other information or materials of a proprietary nature and any Derivative Works thereof.

I.12. “Intellectual Property Rights” means any rights in Intellectual Property including, without limitation, all:

I.12.1. patent rights, including patents, patent applications and certifications of invention;

I.12.2. rights relating to the protection of trade secrets, know-how, or other proprietary intangible property;

I.12.3. rights relating to the protection of works of authorship or expression, including copyrights and mask work rights, and including any separately transferable rights;

I.12.4. rights relating to the protection of trademarks, service marks, logos, and trade dress; and

I.12.5. similar rights arising by contract or under any laws or international conventions throughout the world, whether perfected, now existing or hereafter filed, issued, or acquired, including the right to apply for registrations, certificates, or renewals with respect thereto, and the rights to prosecute, enforce and obtain damages.

I.13. “Integrated Testing” means the testing of any independent module incorporated in the Software in so far as the existing STS system configuration matches Customer’s system configuration.

I.14. “Invention” means any idea, design, method, process, concept, technique, invention, discovery, innovation, or improvement, whether a patent candidate, conceived, reduced to practice, created or originated by STS, its employees, agents and subcontractors, either individually or jointly with others, during the term of this Agreement.

I.15. “Licensed Computer System” means the computer configuration and operational environment, specified in Schedule 1.5, on which the Software is licensed to run and which is owned and operated by Customer.

I.16. “Maintenance Services” means the correction of Software Errors and the operation of a Help Desk.

I.17. “Maintenance Term” means the time period during which Customer is purchasing Maintenance Services from STS pursuant to this Agreement.

I.18. “Minimum Systems Requirements” means the system, operating system, configuration and Third Party Software set forth on Schedule 1.5.

I.19. “Modifications” means any software developed by, or on behalf of, Customer, utilizing all or any part of the Software.

I.20. “Professional and Workmanlike Manner” means the use of the skills and diligence ordinarily possessed by professional members of the computer programming trade.

I.21. “Professional Service Rates” means the time and materials rates for STS personnel set forth on Schedule 1.21.

I.22. “Software” means the version of CIS OV 3.0.1 FD currently installed on City’s system platform with database Version 7.0.1.10J, design and related materials, including installation manual, user and technical documentation, and any documentation, Updates, patches or Modifications provided to Customer by STS for use in connection therewith.

I.23. “Software Error(s)” means a fault in the Software that is a deviation from applicable STS specifications or STS user documentation (normally the on-line user help guides) which significantly affects operation of the System,

I.24. “Source Code” means the human-readable computer programming language version of the Software (excluding Third Party Software) along with the existing information reasonably necessary for a professional skilled in the industry to acquire the necessary software and compile, modify and support the Object Code version of the Software in the event of an escrow release.

I.25. “System Testing” means the testing of any independent module with the residual portions of the Software.

I.26. “Third Party Software” means all software owned by a third party, as specified in Schedule 1.5.

I.27. “Unit Testing” means the testing of the independent module of any portion of the Software.

I.28. “Update” means program logic and documentation changes provided by STS to Customer to correct Software Errors.

II.1. Right To Use. The Software is not for sale. Customer acknowledges that it is licensed to use the Software only in accordance with the express terms and conditions of this Agreement. STS grants to Customer a non-transferable, nonexclusive license to use the Software and Documentation, including, where appropriate, licensed Third Party Software, in object code format, solely for the purpose of processing the data of Customer for its internal business purposes on Customer’s Premises, subject to all of the terms and conditions of this Agreement, specifically including Section 2.6.

II.2. License Term. This license under this Agreement shall be deemed to have become effective as of November 1, 2002 and shall remain effective until terminated as provided herein. Customer’s license to use the Software will survive any termination of any of STS’ obligations to maintain and/or support the Software. However, termination of this Agreement will automatically terminate any obligation of STS to provide Maintenance Services and Additional Services.

II.3. Software Title. Title to the Software and Documentation does not pass to Customer under any circumstances. Customer agrees that title to the Software, Documentation any Intellectual Property Rights, Derivative Works, developments, enhancements, Modifications, Intellectual Property relating to the Software, adaptations or revisions thereof shall remain with STS and its suppliers. Customer hereby assigns and agrees to assign and execute any documents necessary to convey to STS, its successors, assigns, or nominees, all of Customer’s right, title and interest in and to such items, if any.

II.4. Use Verification. STS reserves the right of entry onto Customer’s Premises after at least twenty-four (24) hours notice, or to access the Licensed Computer System via modem connection, to verify the number of users of the Software and/or the number of Systems upon which the Software is installed and running. Verification by STS will be in compliance with Customer’s information systems and other security guidelines provided to STS.

II.5. Delivery. Delivery of the Software has been made to Customer. Customer shall not make any copies of the Software, other than as allowed under Section 2.6.2. The Software has been installed by Customer and Customer acknowledges that STS is not required to make any Modifications, Updates, or Derivative Works of the Software, except pursuant to the Maintenance Services.

II.6. Restrictions. In addition to other restrictions in this Agreement, Customer’s use of the Software shall be subject to the following restrictions:

II.6.1. Third Party Use. Customer shall not permit any unauthorized third party to use the Software. Customer warrants that the Software, and all copies, will remain under its control and that it will take all reasonable steps and precautions to safeguard the Software against unauthorized use and shall not use the Software in the operation of a service bureau, for data processing or for outsourcing for third parties. Customer shall be entitled to utilize third party contractors, who are not a Direct Competitor, access to the Software for the purpose of facilitating Customer’s use of the Software according to the terms of this Agreement. Customer shall be entitled to permit a Direct Competitor access to the Software at the same level as the End Users in order to facilitate replacement of the Software with that of another entity. Customer shall require any such entity or individual to execute a confidentiality agreement that provides STS with third party beneficiary rights to enforce the terms. Such third party agreement shall contain confidentiality protections at least as stringent as those set forth herein.

II.6.2. Unauthorized Copies or Installations. Customer shall not copy, permit others to copy, install, or cause the Software to be installed on its behalf, outside of Customer’s Premises, or on a computer system other than the Licensed Computer System, without STS prior written approval. Customer may, however, use the Software temporarily on an alternative processor to the Licensed Computer System only for the purposes of disaster recovery, and not more than twice per year for testing disaster recovery procedures. Customer may also install, or cause the Software to be installed, on a designated fail-over Computer System, for use when the designated Licensed Computer System is not available for production use. Customer shall also have the right to install copies of the Software on Licensed Computer Systems for the purpose of testing, training and assistance in the Maintenance Services. Any other transfer of the Software from the Licensed Computer System requires prior written approval of STS and may be subject to additional license fees.

II.6.3. Unauthorized Modifications. Other than STS approved work-arounds or modifications implemented as of the execution of this Agreement that were made to more fully utilize the system, Customer shall not modify, enhance, create adaptations, derivative works or other works utilizing any part of the Software or Documentation, or cause same to be done on its behalf, without prior written approval by STS.

II.7. System Upgrades. Should Customer desire to upgrade or change the Licensed Computer System, notice must be given to STS. STS will then issue a License Agreement Addendum to cover the upgraded or changed Licensed Computer System, after STS receives payment of an upgrade license fee.

II.8. System Disposal. Should Customer dispose of its Licensed Computer System, Customer will ensure that all copies of the Software have been deleted from the system prior to disposal or sale.

II.9. Third Party Software. Customer agrees to comply with any additional Third Party Software terms and conditions, including, if necessary, the execution and return of a Third Party Software license. Customer shall be responsible for all costs and expenses associated with the license and maintenance and support of the Third Party Software (except as noted on Schedule 1.5).

II.10. Notice to Users. Customer warrants that within fifteen (15) days after execution of this Agreement, Customer will require execution by any technical user that acquires access beyond that provided to the End Users by or through Customer an agreement by which the user agrees to use the Software in accordance with the terms and conditions of the Customer’s license.

II.11. Competitive Promotion. Customer shall not license the right to any Direct Competitor to utilize its name as an endorsement of any software system, which is substantially similar to the Software, during the term that STS is providing Maintenance Services under this Agreement.

II.12. Comparative Analysis. Customer shall not utilize the Software to perform any comparative analysis or benchmarking of the capabilities or functionality of the Software without the prior written consent of STS, which STS may withhold in its reasonable discretion, this prohibition shall not include parallel testing or use of any of the Customer’s business requirements in specifying a new product’s performance requirements.

II.13.1. the Software has not been produced to meet any individual licensee specifications;

II.13.2. the Software cannot be tested in advance in every possible operating combination and environment;

II.13.3. it is not possible to design Software that is error-free in all circumstances.

II.13.4. Customer is expressly prohibited from attempting any error correction or Modification of the Software. Customer is the best judge of the value and importance of the data held on Customer’s computer system(s), and Customer shall be solely responsible for:

II.13.4.1. instituting and operating all necessary back-up procedures, for its own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason; and

II.13.4.2. at its option, taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.

II.14. Modifications and Substitutions. STS reserves the right to make improvements, substitutions, Modifications and enhancements to any part of the Software in the performance of the Maintenance Services and Additional Services; provided, however, that the functionality and performance of the Software will not, as a result, be materially affected to Customer’s detriment.

II.15. Escrow. STS has established certain source code deposit or “escrow” arrangements with an escrow agency covering the Source Code. While Customer is a paid subscriber to Maintenance Services, Customer will be entitled to receive the protection of such escrow arrangements in the event of a bankruptcy of STS. STS shall provide documentation to Customer verifying that the Source Code has been placed into “escrow.”

III.1. Scope Of Maintenance Services. The Maintenance Services on the Software will be for the Software as currently installed on the Current System Platform.

III.2. Maintenance Services Term. Subject to payment of the maintenance fees, the Maintenance Term of this Agreement will be for an initial one (1) year period, effective November 1, 2002. Customer has the option of extending the Maintenance Term for an additional two years on a quarterly basis. Such extended term shall automatically extend for an additional quarter at the expiration of the one year period unless Customer provides STS with ninety (90) days prior written notice of its intention to terminate the Maintenance Term. If Customer changes, modifies or interferes with the Software, either the Source Code (which is only available through an authorized withdrawal from Escrow) or the Object Code, STS will have no obligation to provide further Maintenance Services. If Customer ceases to maintain the minimum system requirements on Schedule 1.5, STS shall have no obligation to provide further Maintenance Services.

III.3. Software Error Correction. STS’ responsibility to correct problems is limited to Software Errors in the Software as furnished by STS. Customer shall submit to STS written (including via e-mail) and verbal problem reports with sufficient details to allow STS to replicate the problem upon discovery of a problem. Upon receipt of a verbal report, STS will request a written report as follow-up. For each problem report submitted by Customer during the period of this Agreement, STS will acknowledge receipt of the report and then determine whether the problem is a Software Error and if so, the nature and severity of the problem based upon Error Levels defined herein. STS will respond to Customer according to the Error Level, notifying Customer of its own findings and the step(s) required for corrective action. Correction of Software Errors may take the form of:

III.3.2. one or more temporary procedures or workarounds to bypass the error condition of the Software until it can be corrected.

III.4. Classification of Problems. STS shall classify any problems reported by Customer according to the following categories:

III.4.1. Emergency: Customer has detected a problem that has a major impact on the operation of the Software and is preventing Customer from performing an essential business function for a significant portion of Customer’s end user base/customers. STS will use its best efforts to respond within one (1) hour to confirm receipt of the report and will initiate work: (a) to identify the cause of the fault and (b) if the fault is a Software Error identify the proposed means to correct the Software Error. STS will use its best efforts to determine whether the problem is a Software Error and if it is determined to be a Software Error, will use its best efforts to either remedy the Software Error or provide a workaround to be employed until the error is remedied within a thirty-six (36) hour period following notification. Portland is required to implement all recommended patches and/or workarounds provided by STS. If the issue is determined to be a Software Error, STS will notify Portland within seventy-two (72) hours of the receipt of the initial notice of the issue whether a permanent fix will be provided and an estimated delivery date for the error correction. Error corrections will be provided by STS as soon as reasonably possible. In the event that STS is unable to suggest a reasonable workaround or to promptly repair the Software Error, Customer is entitled to employ whatever solutions it deems reasonably necessary to continue to operate the Software without violating this Agreement, other than Modifications or derivative works of the Software.

III.4.2. Medium: Customer has detected an intermittent fault of logic, algorithm, or data. The fault does not seriously impact the operation of the Software. STS will respond within three (3) business days to confirm receipt of the report, promptly thereafter STS will identify the cause of the fault and if the fault is a Software Error identify the proposed means to correct the Software Error. Within five (5) business days after the problem is identified STS will provide a projected correction date. STS may also provide a workaround to lessen the impact on the operation of the Software, which Customer will implement.

III.4.3. Low: Customer has detected an intermittent or minor fault of logic, algorithm, or data. The fault does not seriously impact the operation of the Software and can be worked around. STS will respond within five (5) business days to confirm receipt of the report, promptly thereafter STS will identify the cause of the fault and if the fault is a Software Error identify the proposed means to correct the Software Error. Within ten (10) business days after a Software Error is identified STS will provide a projected correction date. STS may provide a workaround to facilitate the operation of the Software in lieu of a correction, which Customer will implement.

III.5. Software Patches. During the term of this Agreement, Customer is entitled to receive only patch releases and corrections to the Software. STS shall subject such patches to Unit Testing, System Testing and Integrated Testing. Customer shall initiate and diligently pursue the testing of any patches provided by STS within 3 business days of delivery by STS. After successful completion of the testing of such patches, Customer shall implement the patches.

III.6. Documentation Updates. When patches are delivered to Customer, STS may provide revisions and/or updates to the Documentation in the form appropriate to the Software.

III.7. Help Desk and Telephone Assistance. STS will provide a Help Desk for telephone assistance from 8:00 a.m. – 5:00 p.m. Central time, five days per week, excluding national holidays. In addition, STS will further provide up to 60 hours per year of after- hours support that shall be included as part of the base maintenance fee on Emergency Problems under Section 3.4.1 through a cell phone contact, hereafter referred to as “cell phone hours.” Thereafter, any call initiated by Customer shall be charged as a minimum of one-half hour and any additional time over the allocated free hours will be charged at the Professional Service Rates. This service is designed to provide response to problems that Customer reasonably believes is caused by the Software and consultation regarding any patches supplied under the terms of this Agreement. Customer shall designate two persons as contacts for Maintenance Services. Such personnel shall have received training in the Software and be reasonably skilled in the use of the Software and Current System Platform. The contact information for Maintenance Services is as follows:

STS may change the above referenced contact information at any time upon three (3) days prior written notice to Customer.

III.8. Computer System(s) Compatibility, Modification. Any alteration of the Software by Customer prior to an escrow release without prior written approval of STS or use of the Software on any computer system(s) other than the Current System Platform may, at STS’ discretion, void any obligation by STS to provide Maintenance Services under this Agreement. STS undertakes no obligation whatsoever to modify the Software to perform successfully on any computer system other than the Current System Platform or to provide upgrades to implement new versions of Third Party software. Further STS’ obligations to continue to provide Maintenance Services or Additional Services under this Agreement shall terminate upon a Source Code escrow release.

III.9. Ownership. All Updates, corrections, enhancements, and Modifications to the Software, as well as any other software, documentation, and information provided by STS as part of the Maintenance Services, shall remain the property of STS and shall be deemed to be licensed to Customer under the same terms and conditions, including nondisclosure provisions, as the Software in ARTICLE II. In no event shall Customer allow access to the Source Code, design documentation or any software code developed under this Agreement to any Direct Competitor, except as permitted by Section .

III.10. Exclusion of Problems. When Customer notifies STS of a problem, and after investigation by STS, it is determined by STS that the problem is not a Software Error, STS will notify Customer of such determination. STS shall also notify Customer if it reasonably believes that the problem is Customer’s error in the use of the Software or a request for a change of functionality. Any further requests by Customer to provide additional investigative services on the problem shall be handled as Additional Services.

III.11. Customer’s Assistance. Customer will provide all necessary assistance, documentation and access to facilitate STS’ compliance with the timelines set forth above. STS shall not be responsible for any delays caused by the inability to contact Customer’s support contacts, the failure of Customer to provide reasonably required access to Customer’s system, the appropriate data to replicate the reported issue or the inability of Customer to replicate the error in an environment that allows STS to observe the malfunction.

III.12. Maintenance Service Exclusion. Excluded from Maintenance Services to be provided to Customer under this Agreement are those in the following list:

III.12.1. consultation for the resolution of those problems experienced by Customer in operating components of the Current System Platform not covered by the Maintenance Services;

III.12.6. consultation about Modifications or enhancements to the Software, except patches supplied by STS under the terms of this Agreement;

III.12.7. work to develop cost and design criteria for any Modifications or enhancements to the Software;

III.12.8. implementation of updates and upgrades to any third party software used in conjunction with the Software;

III.12.10. arising from third party configuration setting changes by Customer’s staff that are performed without notice to STS;

III.12.13. faults caused by or arising from faulty hardware or software not within the Software;

III.12.14. the refusal of Customer to use the Software in accordance with Documentation or previous advice implemented by Customer;

III.12.15. the Software having been corrupted other than due to Software Errors or by the action of STS staff;

III.12.16. slow operation as a consequence of the excessive loading of additional applications, configuration or communications software;

III.12.17. any other change to the Software (if the Source Code has been released from escrow) or Current System Platform not approved by STS, which impacts either their functionality, reliability or performance;

III.12.19. Maintenance Services on any code developed by Customer or developed for Customer as part of the Additional Services, unless specifically agreed in a written amendment to this Agreement.

IV.1. Terms of Additional Services. Additional Services may be performed at either Customer's or STS' premises. Additional Services will be provided on a time-and-materials basis at the STS Professional Services Rates shown in Schedule 1.21. STS and Customer shall negotiate in good faith the terms upon which STS will perform requested Additional Services subject to a schedule based upon STS’ available personnel and prior commitments.

IV.2. Additional Services Term. The term for Additional Services shall be the same as the Maintenance Term.

IV.3. Customer Assistance. Customer shall assist STS in the performance of the Additional Services by making available on a timely basis all equipment, documentation, data, access to systems, third party software, information and personnel reasonably required by STS. Further, Customer shall promptly test any and all deliveries of developments provided as a result of the Additional Services. If STS experiences difficulties after written notice to Customer regarding access, information or co-operation of Customer’s personnel, STS shall be entitled to terminate this work and invoice Customer for all services previously rendered, which amounts shall be due and payable within thirty (30) days of the date of the STS invoice. Customer shall maintain licenses, whether directly or through STS, and retain support and maintenance on all of the Third Party Software. All costs associated with such software and the support and maintenance thereof shall be Customer’s responsibility. Customer shall be responsible for procuring, installing and maintaining all equipment, telephone lines, communication interfaces, and other hardware and/or software necessary to operate the Software and to obtain from STS the Additional Services requested by Customer, including STS remotely accessing the Software on Customer’s system.

IV.4. Delivery Delays. STS will not be liable for any damages suffered by Customer by reason of any delay in the completion of any Additional Services provided under this Agreement. Estimated delivery dates will be provided by STS at the request of Customer. These dates represent STS’ reasonable efforts to estimate the time required for the completion of the tasks and are furnished to Customer for planning purposes only.

IV.5. Personnel. Customer agrees not to solicit for employment or contract directly with any of STS' employees or prospective employees first introduced to Customer by STS for a period of one (1) year after the completion of the Services performed by STS pursuant to this Agreement.

IV.6. Maintenance on Additional Service Deliverables. Any software code developed by STS as Additional Services is separate from the Software, as defined in this Agreement, and shall not be included within the Maintenance Services provided by STS to Customer unless the parties specifically agree in writing upon what code will be covered and the appropriate charges, if any, for such maintenance.

IV.7. Placement in Production. Customer agrees that if it places any developments provided by STS through the Additional Services into production for use in its business, such work is immediately deemed to be accepted and STS is no longer responsible for any claims related to such developments, except to the extent that STS has agreed to provide Maintenance Services for such developments under Section 4.6.

V.1. License Fee. The parties hereby acknowledge receipt of payment of all amounts due for the license to the Software granted under ARTICLE II.

V.2. Maintenance Service Fees. In consideration of the Maintenance Services rendered hereunder, Customer will pay the maintenance fee(s) on a prepaid quarterly basis for the Maintenance Term. The initial year of Maintenance Services shall be at a quarterly rate of sixty-five thousand ($65,000) dollars and shall be due upon execution of this Agreement. If Customer elects to extend the Maintenance Services into the second year of the Maintenance Term, the quarterly rate shall be one hundred twenty-seven thousand five hundred ($127,500) dollars. The quarterly rate for the third year shall be ninety-six thousand two hundred fifty dollars ($96,250) per quarter plus escalation from the end of year one at the rate of the Culpepper and Associates, Inc. Compensation Survey for Cost Zone 4 Seattle Index. If payment is not made in accordance with the payment terms for Maintenance Services and Additional Services under this Agreement, STS shall have the right to cease providing Maintenance Services until the payment is received by STS. If any payment is not received within thirty (30) days after the date due, and STS has previously provided Customer with notification in writing that payment has not been made at least fifteen (15) days prior to the end of the thirty (30) day period, STS shall have the right to terminate providing Maintenance Services. Customer shall be responsible for procuring, installing and maintaining all equipment, telephone lines, and communication interfaces, including STS remotely accessing the Software on Customer’s system for the purpose of performing the Maintenance Services. If STS agrees to maintain the Software which contains enhancements/Modifications made at the request of Customer and paid for by Customer as Additional Services and not made a part of the Software, an additional fee may be charged for such Maintenance Services.

V.3. Additional Services Fees. Customer shall pay STS monthly and within thirty (30) days of receipt of an invoice for all Additional Services on a time and materials basis at the Professional Service Rates. Except for agreed work, STS may change the Professional Service Rates no more than the Culpepper and Associates, Inc. Compensation Survey for Cost Zone 4 Seattle Index upon thirty (30) days' written notice to Customer once each year , in which event Customer may terminate the services of STS upon fifteen (15) days' notice to STS without breach of this Agreement. Upon termination of any Additional Services under this Agreement, Customer shall pay all fees and charges for services performed by STS up to the date of termination, and Customer shall pay STS all fees reasonably incurred by STS to wind-up activities related to terminating the Additional Services.

V.4. Merger, Acquisition, Consolidation. In the event of merger, acquisition or consolidation by or of Customer, the parties agree to negotiate in good faith an adjustment of the current license fee and Maintenance Service Fees to reflect any additional usage by Customer and/or Customer’s new entity, which amount shall be paid prior to the new incremental use of the Software.

V.5. Expenses. Customer shall reimburse STS for any Expenses incurred by STS in rendering Additional Services to Customer at Customer's site. Expenses include, but are not limited to: the reasonable costs of the following: travel to Customer’s site(s), when applicable; magnetic media; data connection charges; couriers; freight; hotel charges; telephone expenses; and any other expenses reasonably incurred by STS in connection with this Agreement. All payments shall be made in United States Dollars.

V.6. Escalation. In the event both parties wish to renew this Agreement for one or more additional terms after the third year of Maintenance Services, the parties agree that any increase of the fees charged hereunder shall not exceed the greater of any increase in the Culpepper and Associates, Inc. Compensation Survey for Cost Zone 4 Seattle Index for the corresponding year or ten (10%) percent per year.

V.7. Place of Payment. All payments under this Agreement will be made by Customer to STS at its offices in Harris County, Texas.

V.8. Taxes. There shall be added to any charges under this Agreement amounts equal to any sales and other taxes, federal, state and local, however designated, levied or based on the charges for services to be rendered under this Agreement, and Customer shall promptly pay to STS an amount equal to any such taxes actually paid, or required to be collected or paid by STS. With respect to federal, state or local sales tax, if applicable, if Customer provides direct pay permits or valid tax-exempt certificates contemporaneous with the execution of this Agreement, STS shall not invoice Customer for such taxes. If applicable, Customer hereby agrees to reimburse STS for any taxes and related costs, interest and penalties paid or payable by STS which may be assessed, levied or imposed with respect to this Agreement, except STS’ income taxes.

V.9. Late Charges. A late payment charge of one and one-half percent (1½%) per month (annual rate of 18%), or the maximum rate allowed by law, whichever is less, will be added to all amounts due under this Agreement if not paid within thirty (30) days of the date of the invoice. If it should become necessary to turn this account over for collection, Customer is responsible for all of STS’ collection costs, including reasonable attorneys’ fees. Prejudgment and post judgment interest shall apply to all disputed amounts.

V.10. Purchase Orders. If Customer issues a purchase order or any other such document (“Purchase Order”) pursuant to this Agreement, then the acceptance of such a Purchase Order by STS shall be deemed to be on the condition that such a Purchase Order is utilized for administrative purposes only and that the parties are subject solely to the terms and conditions set forth in this Agreement regardless of any provisions on the face or on the reverse side of such a Purchase Order, or any attachments to such a Purchase Order.

VI.1. Termination of Maintenance Services. The Maintenance Services will be terminated at the end of the Maintenance Term or by either party by giving written notice to the other in the following circumstances:

VI.1.1. by Customer, without cause, upon at least ninety (90) days prior written notice to STS;

VI.1.2. by STS, on the failure of Customer to timely pay the maintenance fees after the required notification;

VI.1.3. by either party on written notice to the other if the other commits a serious breach of any of its obligations hereunder and fails to rectify the same within thirty (30) days of receipt of notification requesting it so to do;

VI.1.4. by STS on failure by Customer to comply with the Agreement payment terms shown in ARTICLE V. Failure relating to payment for any part of the Maintenance Services or Additional Services may result in termination of all services and this Agreement;

VI.1.5. in the event the Agreement is terminated by STS prior to expiration, the charges shall be prorated and the unused portion of any advance payment shall be returned to Customer; or

VI.1.6. by STS upon fifteen (15) days written notice if Customer fails to maintain the Minimum System Requirements.

VI.2. Termination by Mutual Consent. The parties may terminate this Agreement and the license by mutual consent upon such terms as they may agree in writing.

VI.3. Notice of Breach; Cure Period. Either party may terminate this Agreement and the License at any time in the event of a material breach of the terms of this Agreement by the other party if such party fails to cure such breach for a period more than thirty (30) days after the non-breaching party has given written notice to the breaching party specifying such breach. A failure or delay in performance by either party under this Agreement shall not constitute a basis for termination of this Agreement under this if such performance is substantially completed prior to the expiration of the thirty (30) day cure period.

VI.4. Other Terminations by STS. This Agreement and the license shall terminate automatically without written notice, to the extent permitted by applicable law, in any of the following events:

VI.4.2. Assignment. Customer makes a general assignment for the benefit of creditors;

VI.4.3. Trustee Appointment. Customer applies for, acquiesces in or consents to the appointment of any receiver, trustee or other custodian for it or for all or any substantial part of its property; or such receiver, trustee or other custodian is appointed without its application or consent and such appointment continues non-discharged for a period of 60 days;

VI.4.4. Bankruptcy. Any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is commenced with respect to Customer and if such case or proceeding is not commenced by Customer, it is consented to or acquired in by Customer, or remains for 60 days non-dismissed; or

VI.4.5. Competitive Offerings. If Customer offers software products or services which compete with the Software.

VI.5. Other Terminations by Customer. The Maintenance Service and Additional Service provisions of this Agreement shall automatically terminate without written notice, to the extent permitted under applicable law, in any of the following events:

VI.5.2. Insolvency or Assignment. STS makes a general assignment for the benefit of creditors;

VI.5.3. Trustee Appointment. STS applies for, acquiesces in or consents to the appointment of any receiver, trustee or other custodian for it or for all or any substantial part of its property; or such receiver, trustee or other custodian is appointed without its application or consent and such appointment continues non-discharged for a period of 60 days; or

VI.5.4. Bankruptcy. Any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is commenced with respect to STS and if such case or proceeding is not commenced by STS, it is consented to or acquired in by STS, or remains for 60 days non-dismissed.

VI.6. Post-Termination Obligations. Except as may be expressly provided otherwise herein, within thirty (30) business days after the effective date of termination of this Agreement, each party shall pay the other party any amounts that as of that effective date were due and owed thereto pursuant to this Agreement. In addition to any other post-termination obligations of the parties in this Agreement, Customer shall promptly return or destroy, as requested by STS, all copies of the Software and Documentation in Customer’s possession or control (whether modified or unmodified) and all other materials pertaining to the Software (including all copies thereof).

VI.7. Surviving Articles. The provisions of ARTICLES IX and X and Sections 2.3, 6.6, 8.1, 8.2, 8.5 and 8.6 shall survive any termination of this Agreement.

VI.8. Without Prejudice. Any termination of this Agreement for cause will be without prejudice to any other rights or remedies of either party under this Agreement, or at law, and will not affect any accrued rights or liabilities, of either party, existent on the date of termination.

VII.1. Warranty of Title. STS warrants that it has title to the Software and/or the authority to grant the License under this Agreement.

VII.2. Defects in Software. STS represents that it has taken reasonable steps to ensure that the Software is free from any Virus at the time of initial delivery to Customer. “Virus” shall mean an extraneous and undocumented potentially damaging code or program, the effect of which may be the destruction of computer data or the permanent or temporary disabling of a computer system.

Maintenance Service and Additional Services Warranty. STS warrants that the Maintenance Services and Additional Services will be performed by qualified personnel in a Professional and Workmanlike Manner. For any material breach of this warranty, Customer must notify STS in writing, within thirty (30) days after delivery of the work, of its claim of any such material breach.

VIII.1. Limitation. STS shall be under no obligation in respect of any breach of the representations and warranties contained in Article VII, unless STS shall have received written notice thereof from Customer within two (2) business days following the discovery of any breach by Customer. Customer’s written notice must provide examples of the alleged breach along with supporting materials providing details sufficient to allow STS the opportunity to cure. If the Maintenance Services fail to provide reasonably acceptable workarounds or correct Software Errors or Additional Services in question are found to be non-conforming by STS, STS' sole obligation is to remedy such non-conformity in a manner consistent with STS' regular business practices.

VIII.2. THE EXPRESS WARRANTIES SET FORTH ABOVE UNDER ARTICLE VII ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN THE EXPRESS WARRANTIES CONTAINED HEREIN IN ARTICLE VII, STS PROVIDES THE SOFTWARE, MAINTENANCE SERVICES AND ADDITIONAL SERVICES "AS IS" WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL STS, ITS PARENT, AFFILIATES, OR ITS OFFICERS, DIRECTORS, OR ITS EMPLOYEES, CONTRACTORS, OR INSURERS, BE LIABLE FOR, PUNITIVE OR ANY EXEMPLARY DAMAGES OR ANY INTELLECTUAL PROPERTY RIGHT INFRINGEMENT ARISING UNDER THIS AGREEMENT OR ANY OTHER CONTRACTS ENTERED INTO WITH CUSTOMER RELATING TO THE SOFTWARE, THE MAINTENANCE SERVICES, ADDITIONAL SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, ANY DELIVERABLES OF THE MAINTENANCE SERVICES AND ADDITIONAL SERVICES OR ANY RELATED MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STS IS NOT RESPONSIBLE FOR ANY COSTS INCURRED AS A RESULT OF LOSS OF DATA, THE COST OF RECOVERING SUCH DATA, INTELLECTUAL PROPERTY INFRINGEMENT, THE COST OF ANY SUBSTITUTE SOFTWARE, CLAIMS BY THIRD PARTIES, OR FOR OTHER SIMILAR COSTS. SOME STATES MAY NOT ALLOW THE EXCLUSION, DISCLAIMER, OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION, DISCLAIMER, OR EXCLUSION MAY NOT APPLY TO CUSTOMER. THE CUMULATIVE LIABILITY OF STS TO CUSTOMER OR ANYONE CLAIMING THROUGH CUSTOMER FOR ALL CLAIMS IN ANY WAY RELATING TO OR ARISING OUT OF THE SOFTWARE, MAINTENANCE SERVICES, ADDITIONAL SERVICES AND/OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF TWO HUNDRED FIFTY THOUSAND ($250,000) DOLLARS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR PROVEN TO BE INEFFECTIVE, EVEN IF STS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THE TERMS AND PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR INTERNATIONAL SALES OF GOODS ARE HEREBY EXPRESSLY EXCLUDED. CUSTOMER SPECIFICALLY AGREES THAT ALL LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY UNDER THIS AGREEMENT SHALL APPLY ALSO TO STS’ PARENT, AFFILIATES, SUBSIDIARIES, RELATED ENTITIES, INSURERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES AND AGENTS.

VIII.3. Specific Disclaimer. Without limiting the generality of the disclaimer in this ARTICLE VIII, STS specifically disclaims any warranty:

VIII.3.1. that the functions performed by the software will meet customer’s requirements or will operate in the combinations that may be selected for use by customer;

VIII.3.2. that the operation of the software will be error-free in all circumstances;

VIII.3.4. that the operation of the software will not be interrupted for short periods of time by reason of defect therein or by reason of fault on the part of STS.

VIII.4. Customer Responsibility. Without limiting the generality of the disclaimers in this ARTICLE VIII, Customer will be exclusively responsible as between the parties for, and STS makes no warranty or representation with respect to:

VIII.4.1. determining whether the software will achieve the results desired by Customer;

VIII.4.2. selecting, procuring, installing, operating, and maintaining computer hardware to run the Software;

VIII.4.4. establishing adequate data backup provisions for backing up Customer’s data;

VIII.4.5. establishing adequate operational backup provisions (e.g., alternate manual operation plans) in the event of a defect or malfunction that impedes the anticipated operation of the Software;

VIII.4.6. converting all of customer’s data necessary to utilize the software;

VIII.4.8. selecting the Software as appropriate for Customer’s planned use; and

VIII.4.9. ensuring that the operating system and compiler software, and any other software with which the Software will be used, is either the property of customer or is legally licensed to Customer for use with the Software.

VIII.5. Third Party Claims. Customer shall take all reasonable actions to insure that STS, its STS representatives, directors, officers, employees, insurers, representatives and agents (collectively, the “STS Parties”), are not liable to any third parties for any and all losses, liabilities, costs, damages and expenses of any nature whatsoever (including court costs and attorney fees), arising from or in any manner directly or indirectly connected with use of or access to the Software and Third Party Software by or through Customer, except where STS Parties’ gross negligence or willful misconduct caused such third party damages.

VIII.6. Limitation of Actions. No action, regardless of form, arising out this Agreement may be brought by either party more than one (1) year after the cause of action has accrued, unless such dispute is in pendency of non-binding mediation under Section 10.6.2, which shall toll this limitation until sixty (60) days after the termination of such mediation.

IX.1. Confidentiality and Nondisclosure. To the extent permitted by Oregon law, at all times during and after the term of this Agreement, Customer shall protect and hold secret all such Confidential Information in strictest confidence and shall not copy, transfer or disclose or permit any other party to copy, transfer or disclose any such Confidential Information, directly or indirectly, for any reason whatsoever, without the prior written authorization of STS, except that Customer: (i.) may copy Confidential Information consisting of computer software for backup purposes or as an essential step in utilizing the software, and (ii.) may disclose Confidential Information to those of Customer’s employees, directors, officers, agents and subcontractors (other than Direct Competitors) who have a need to know the same to accomplish the purpose of this Agreement, and who have been advised of and are legally bound to observe the confidential status of such information, provided that Customer shall at all times be fully responsible to STS for compliance by such persons and entities with this Agreement. Customer shall not use or exploit Confidential Information for any purposes other than strictly for the purposes of enabling Customer to perform its obligations under and to accomplish the purposes of this Agreement.

IX.2. Standard of Care. Customer shall use at least the same degree (but no less than a reasonable degree) of care and protection, whether by instruction, agreement or otherwise, to prevent the unauthorized use, dissemination, copying or publication of any Confidential Information as Customer uses to protect its own information of a like nature.

IX.3. Ownership; Reverse Engineering. Customer agrees not to assert any claim of title or ownership to the Confidential Information or any portion thereof. If Confidential Information consists of computer software disclosed in object code form, Customer shall not, and shall not permit any other party, to reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.

IX.4. Disclosures Required by Law. If Customer becomes legally compelled (by depositions, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, Customer shall provide STS with prompt prior written notice of such requirement so that STS may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, or if STS waives in writing compliance with the terms hereof, Customer agrees to furnish only that portion of the information which Customer is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.

IX.5. Liability. STS makes no representations or warranties, express or implied, as to the quality, accuracy and completeness of the Confidential Information disclosed hereunder, and STS and its representatives shall have no liability whatsoever with respect to the use of or reliance upon the Confidential Information by Customer.

IX.6. Return of Confidential Information. To the extent permitted by Oregon law, Customer agrees to destroy or return all copies of all Confidential Information provided to or acquired by Customer in the course of any engagement under this Agreement promptly at STS’ request or, if not sooner requested, promptly upon termination or expiration of this Agreement for any reason (but in any event upon completion of the purpose for which it was were provided or acquired) without making copies thereof, unless further provision for its continued use has been approved in writing signed by an authorized representative of STS. At STS’ request, Customer will certify the destruction or unrecoverable deletion of the original and all copies of any Confidential Information, including the Software and related documentation.

IX.7. Remedies. The parties acknowledge and agree that a breach of this ARTICLE IX by Customer will cause continuing and irreparable injury to STS’ business as a direct result of any such violation, for which the remedies at law are inadequate, and that, in the event of any actual or threatened violation by Customer, and in addition to any other remedies available to it, STS shall be entitled to a temporary restraining order and to injunctive relief against Customer to prevent any violations thereof, and to any other appropriate equitable relief. Customer hereby waives any right to claim that STS has an adequate remedy at law for such breach of this ARTICLE IX.

IX.8. Audit Right. To the extent permitted by Oregon law, STS shall have the right to inspect Customer’s systems, books and records to confirm Customer’s compliance with the terms of this Agreement, upon thirty (30) days prior written notice. Any inspection hereunder shall be conducted so as not to materially interfere with Customer's business operations, during normal business hours at Customer’s business offices where such books and records are maintained, for a duration not to exceed ten (10) business days, and not more often than once every six months.

IX.9. Responsibility for Disclosure. Customer further agrees that any users of the Software are agents of Customer for purposes of such access and Customer shall be responsible for any loss, cost or expense, including reasonable attorney’s fees, incurred by STS as a result of misappropriation or unauthorized disclosure of STS’ Intellectual Property Rights.

IX.10. Confidentiality Obligations of STS. All confidential financial, statistical and personnel data relating to Customer’s business, which is clearly so designated, and which is submitted to STS by Customer, shall be kept confidential by STS, and STS will instruct its personnel to keep such information confidential by using the same care and discretion as is used with similar data which STS designates as confidential.

X.1. Assignment. This Agreement shall be binding upon the parties hereto their successors and assigns. STS shall have the right to assign this Agreement, in whole or in part, to any purchaser of all or substantially all of the Software without Customer’s consent, if the assignee is an affiliate or has a Dunn & Bradstreet Rating of at least 4A2. In any other situation, neither Customer or STS may assign or transfer any of its rights or obligations under this Agreement, in whole or in part, without prior written permission from the other Party, which shall not be unreasonably withheld, conditioned or delayed. Any attempt to do so shall be null and void.

X.2. General Rights and Authority. Any debts, obligations or liabilities accrued hereunder between the parties hereto shall survive termination of this Agreement.

X.3. Severability. Should any clause, sentence or paragraph of this Agreement be judicially declared invalid, unenforceable or void such decision shall not have the effect of invalidating or voiding the remainder of this Agreement and the parties hereto agree that the part or parts of this Agreement so held to be invalid, unenforceable or void shall be deemed to have been struck out and the remainder shall have the same force and effect as if said part or parts had never been included herein.

X.4. Entire Agreement. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be modified or terminated orally or by conduct. Parole evidence will not be admissible to prove the intent of the parties other than the intent that is specifically stated herein. Excluding the Settlement Agreement executed on even date herewith, this Agreement, together with all Schedules and other attachments hereto if any, supersedes all prior discussions, negotiations, correspondence and agreements between the parties hereto with respect to the subject matter hereof, and this Agreement represents the full and complete terms of agreement between the parties with respect to the subject matter hereof. Each party confirms that it has not relied upon any promise, inducement, or representation not recorded in this document, inducing it to enter into this Agreement. The only exception to this provision is when the elimination of a clause, sentence

or paragraph frustrates the substantive purpose of this Agreement, in which case either party may terminate this Agreement on written notice to the other party.

X.5. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without regard to its conflicts of law provisions, and without regard to the United Nations Convention on the International Sale of Goods. Any action brought to enforce this Agreement shall be brought in federal court in Portland, Oregon.

X.6. Disputes. The parties agree that in the event of a dispute as to any issues under this Agreement, the parties shall engage in the following process to attempt in good faith to resolve any disputes:

X.6.1. Upon receipt of written notice of the dispute, the parties shall schedule a meeting of a senior level designated representative of each party within five (5) business days to negotiate a resolution in good faith to the dispute. If such negotiations are not successful, the parties agree that the next step shall be implemented within fifteen (15) business days.

X.6.2. The parties shall engage in non-binding mediation before Judge Leavy or his designee on the issue. If Judge Leavy is not available or unwilling to serve or appoint a designee, the parties shall mutually agreed by the parties and in the event the parties are unable to agree upon a mediator, the parties shall request the federal court to appoint a judge to mediate the dispute.

X.6.3. If the mediation initiated under Subsection 10.6.2 is not successful, the parties shall each have the right to pursue their rights in court pursuant to Section 10.5.

X.7. Circumvention or Frustration of Purpose. The parties specifically agree not to attempt to circumvent, repudiate or otherwise attempt to treat this Agreement as void or unenforceable or expand the scope of the limitation of liability through any proceedings or actions.

X.8. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused by a force beyond its reasonable control, including, without limitation, war, embargoes, strikes, civil strife or disturbances, acts of terrorism, fires, floods, acts of God, governmental restrictions that prevent performance by either party, lockouts, delays by third parties and any other cause beyond the reasonable control of the parties. Inability or failure to pay will not be considered an event of force majeure. If an event of force majeure continues for at least ninety (90) days, either party will be entitled to terminate this Agreement upon giving written notice to the other party.

X.9. Notice. Any notice required or permitted under this Agreement shall be deemed to have been given when actually received by the other party, or when sent by certified mail, return receipt requested, to the parties at the addresses specified herein, or at such other addresses as may hereafter, from time to time, be designated by the parties. Notice may also be sent by facsimile, but must be confirmed in a subsequent writing.

X.10. Captions. The captions included in this Agreement are for convenience of reference only and do not constitute part of the substantive provisions of this Agreement, nor in any way affect the interpretation of this Agreement.

X.11. Waiver. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

X.12. Injunctive Relief. Customer acknowledges that money damages will not be sufficient remedy for any breach by Customer of its obligations set forth in ARTICLE IX, its obligations of confidentiality and its duty to protect STS’ proprietary information. In the event of such a breach, STS will be entitled to seek injunctive or other equitable relief, without the requirement of posting a bond.

X.13. Relationship of the Parties. This Agreement is in no way intended to make, nor does it make, either party a fiduciary, agent or partner of the other, and it does not grant either party any authority to bind the other to any obligation, whether expressly or by implication.

X.14. Publicity. All publicity regarding this Agreement shall be handled in accordance with the terms of the Settlement Agreement.

X.15. Export Control. Customer is advised that the United States Department of Commerce Export Regulations may apply to some or all of the Software products and that these regulations prohibit the re-exporting of applicable products to certain destinations. In any event, Software Product licenses are not transferable without prior written consent from STS.

X.16. No Third Party Benefit. This Agreement is only between STS and Customer, and only for the benefit of STS and Customer. No third party is intended, either explicitly or by implication, to be a beneficiary of this Agreement.

X.17. Inspection. Upon written request given twenty-four (24) hours in advance , STS, at its expense, may enter the premises of Customer during the normal working hours of Customer for the purpose of examining compliance by Customer with the terms and conditions of this Agreement. Customer shall use reasonable efforts to assist STS in any inspection activities.

X.18. Independent Contractor. The relationship between Customer and STS at all times during the term of this Agreement shall be that of an "Independent Contractor" and STS has the sole right to manage, control and direct the method, manner and means by which services are provided by STS’ personnel, Customer being interested in the results only. At no time will the STS’ personnel assigned to provide services to Customer under this Agreement be employees of Customer, but rather employees of STS. Accordingly, all compensation earned in connection with the subject matter of this Agreement, including provision for employment taxes such as, but not limited to, FICA, FUTA, and FIT, expenses and benefits associated with employment, will be the responsibility of STS. STS’ personnel providing services under this Agreement shall not be entitled to participate in or receive benefits under any Customer programs maintained for Customer’s employees, including, without limitation, workers compensation, life, medical and disability benefits, pension, profit sharing or other retirement plans or other fringe benefits. Nor shall STS’ personnel be entitled to any direct or indirect compensation or remuneration of any kind from Customer as a result of the performance of this Agreement, except for Customer’s obligation to pay the charges to STS provided for herein, and STS shall be responsible for all compensation of such STS employees.

X.19. Representation of Counsel. Each party has had the opportunity to be represented by counsel of its choice in negotiating this Agreement and this Agreement shall not be interpreted as having been drafted by either party.

X.20. Counterparts. This Agreement and/or facsimile copies of this Agreement may be signed in counterparts by one or more of the parties, all of which (this original Agreement and one or more facsimile copies of this Agreement, including facsimile copies of signatures), taken together, shall constitute signature of this Agreement.

Notes: Additional memory, faster CPUs or hardware graphics acceleration will all improve the client processing times.

This is for a single version of CIS Open-Vision and does not take into consideration additional applications or multiple installations of CIS Open Vision.

Free disk space should be managed and be available to enable key batch output, any business data files, report outputs and any increase in table spaces which are all dependent on Portland's business practices. Growth of the core CIS/OV database would be expected to be approx 30 % per year from the initial installation amount but can be more accurately assessed on-site as the database growth can be measured after each daily run or on other frequencies deemed necessary by the Bureau. Free space can be managed through appropriate data base and data administration by the bureau to minimize the amount used.

For faster performance of the on-line system, increased speed of CPUs, adding additional CPUs and additional memory is recommended.

The following are the levels of third party software against which CIS Open Vision 3.0.1 FD is currently certified to operate:

· PowerBuilder - Vendor : PowerBuilder Runtime (no maintenance agreement required)

CIS OV Release 3.0.1 FD executes with Interspace Release 4.10 (no maintenance agreement required)

Resource Type	Hourly Rate

Sr. Project Manager	$ 300.00
Project Manager	$ 250.00

Principal Consultant	$ 250.00
Senior Consultant	$ 200.00
Consultant	$ 175.00
Associate Consultant	$ 150.00

Senior Technician	$ 250.00
Technician	$ 200.00
Associate Technician	$ 175.00

Data Base Analyst	$ 250.00
System Configuration Analyst	$ 200.00

Principal Product Area Specialist (Architect)	$ 300.00
Senior Product Area Specialist (Architect)	$ 250.00
Product Area Specialist	$ 200.00
Associate Product Area Specialist	$ 175.00

Principal Data Conversion Analyst	$ 250.00
Senior Data Conversion Analyst	$ 200.00
Conversion Analyst	$ 175.00
Associate Data Conversion Analyst	$ 150.00

Conversion Programmer	$ 150.00