City Auditor - City Recorder - Council Ordinance - 181463 Practice Manager Group contract

This “Agreement” is made by and between the City of Portland, Oregon (“City” or “Customer”) and Practice Manager Group, LLC (“Licensor” or “Vendor”). Unless terminated sooner under the provisions of this Contract, the term of this Contract shall be from January 1, 2008 (“Effective Date”) to December 31, 2012, with the City’s option to extend for five (5) years for a contract total of ten (10) years.

This Agreement may refer to the City/Customer and the Licensor/Vendor singly as a “Party” or dually as the “Parties”.

In conjunction with its business operations, the City of Portland shall enter into a “Master Agreement” for the purposes of streamlining and creating a more efficient and effective contracting process with Practice Manager Group.

This Master Agreement will provide standardized provisions and some minimum requirements that shall govern all Work, Equipment, Parts, and Software “Product” acquired by the City, through an “Order” process referencing this Agreement.

1.1 General Definitions. These definitions apply to the entire Agreement, subsequent Orders and shall have the following meanings:

“Acceptance Criteria” means functionality and performance to be determined and mutually agreed to by Customer and Licensor/Vendor with respect to an Order, identified for the purpose of conducting an Acceptance Test. Terms and Conditions for Acceptance Criteria are set forth in Section 4.

“Acceptance Date” – The date on which Customer issues a Certificate of Acceptance to Licensor/Vendor.

“Acceptance Testing” - Evaluation and testing of the Licensed Program to determine if it operates in accordance with the specifications and all acceptance criteria set forth in the applicable Order; Exhibit A, Software License; Exhibit B, Development Services; Acceptance Testing may include one or more phases depending on integration of contingency products, scalability, performance tuning or any other measureable features or milestones as may be called out in the Acceptance Criteria.

“Affiliates” means, with respect to a named individual or entity, any individual, association, partnership, corporation or other entity controlling, controlled by, or under common control with the named individual or entity. The term “control” means the power to direct or cause the direction of the management and policies of an individual or entity, whether through the ownership of voting securities, by contract, agreement or otherwise.

“After-Hours Support” means work under this Agreement requested by Customer to be performed outside of Normal Support Hours.

“Amendment/Modification” means an action or document required to be prepared for the purpose of changing, adding to, or in any way altering the provisions of the Agreement. In order to be valid, an Amendment or Modification must be prepared and executed as set forth herein.

“Business Day” - Calendar days Monday through Friday, excluding legal holidays recognized as legal holidays for either party under State statute.

“Business Partners” - Suppliers or other third parties doing business with Customer.

“Certificate of Acceptance” - Written notification issued by Customer that the Licensed Program has, in Customer’s sole discretion, successfully completed Acceptance Testing.

“Change Order” means any change to an Order or Work Order that is signed by both parties.

“Confidential Information” means, subject to Oregon Public Records Laws and the Uniform Trade Secrets Act, any information that is disclosed in written, graphic, spoken, or machine-recognizable form, and is marked, designated or identified at the time of disclosure as being confidential or its equivalent; or if the information is in spoken form, it is identified as confidential at the time of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information does not include any information that: is or becomes publicly known through no wrongful act of the receiving Party; is already known to the receiving Part without restriction when it is disclosed; is or becomes rightfully, and without breach of this Agreement, in the receiving Party’s possession without any obligation restricting disclosure; is independently developed by the receiving Party without breach of this Agreement; or is explicitly approved for release by the written authorization of the disclosing Party.

“Contract Price” means the not to exceed price agreed upon by the Parties, for the Products or Services indicated in an Order, subject to the provisions herein.

“Contract Manager” refers to the individual appointed by the City to manage the resulting contract and to serve as the official point of contact for all administrative matters relating to the contract.

“Customer” means the City of Portland, Oregon, and its successors or assigns.

“Customer User” means any person employed by Customer, and any person or entity under contract or volunteering to provide services to Customer, who is authorized to use Customer’s resources in whole or in part, in the course of conducting Customer’s business.

“Custom Programming” Unique executable programming that is designed to improve the usefulness of the Licensed Program for Customer, and is paid for separately by Customer, whether created by Licensor/Vendor or a third-party.

“Customization” means (a) any modification to or adaptation of the Products, or (b) any new component or accessory or, in the case of Operating System Software, new code, designed to run in conjunction with the Products, that contains features unique to Customer's business use, whether prepared, created, or developed (1) by Licensor/Vendor at Customer’s request as a work for hire, (2) by Customer, or (3) by Customer in conjunction with Licensor/Vendor.

“Deliverable” - any product, good, or property (including intellectual property) developed by Licensor/Vendor in connection with Licensor/Vendor’s performance or delivery of Services.

“Delivery of Products” means Product has been inspected, loaded, shipped, transported, installed, delivered, configured and diagnostic tests have been performed to demonstrate, to Customer’s satisfaction, that such conforms and operates according to the applicable Documentation and Licensor/Vendor’s representations.

“Derivative Works” mean any contributions, enhancements, improvements, or additions, to the Licensed Program or Documentation that are not Custom Programming or Customization.

“Documentation” means user manuals and other written materials which describe the features or functions of the Product, including but not limited to published specifications, marketing materials, technical manuals, and operating instructions provided by Licensor/Vendor to Customer, or readily available to the public. Licensor/Vendor’s written materials in any form that describe the features of or functions of the Licensed Program, in sufficient detail to permit their use, including but not limited to reference guides, user or technical manuals, training materials, release notes, or installation notes.

“Effective Date” means that date indicated in the first paragraph of this Agreement, or if left blank, the date upon which the last Party executes this Agreement.

“Equipment” means any machinery, devise, tools, computer, computer components, of tangible form together with the necessary supplies for upkeep and maintenance, and other apparatus necessary for the proper execution, installation and acceptable completion of an Order/Change Order.

"Enhancement” means any modification or addition that, when made or added to the Licensed Program, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction.

"Error" means any failure of the Licensed Program to conform in all material respects to its functional specifications as published from time to time by Licensor/Vendor. However, any nonconformity resulting from (a) Customer's misuse, improper use, alteration, or damage of the Licensed Program; (b) Customer's combining, using or merging the Licensed Program with any hardware or software not supplied or identified up front as compatible by Licensor/Vendor; or (c) other software or settings in the system environment that affect the Licensed Program, shall not be considered an Error.

"Error Correction" Either a modification or an addition that, when made or added to the Licensed Program, establishes material conformity of the Licensed Program to the functional specifications, or a procedure or routine that, when observed in the regular operation of the Licensed Program, that Customer agrees and accepts, eliminates the practical adverse effect on Customer of such nonconformity. Customer acceptance shall not be unreasonably withheld.

“Existing Product” means Product acquired by Customer as of or prior to the date of this Agreement.

“Final Acceptance” means that Customer has determined to its reasonable satisfaction and provided a Certificate of Acceptance to Licensor/Vendor: (a) that, as to the System (or any Product requiring Acceptance Testing), the minimum functional standards required to operate in accordance with the Mandatory Requirements and all Documentation have been satisfied in full; (b) that, as to the System (or any Product requiring Acceptance Testing), all other Acceptance Criteria agreed to by Licensor/Vendor and Customer in reliance on Vendor’s experience and expertise as relate to such systems have been satisfied in full; and (c) that, when integrated as functional components of the System, all Products function and perform compatibly and without Error.

“Key” means the proprietary software key provided by Licensor/Vendor to the Customer that allows the Customer access to the Licensed Program up to the number of Users and will not disable use so long as Customer does not change the Technical Platform.

“Knowledge Transfer” means information and know how regarding technological or general business issues, including, without limitation, products, identified or foreseeable problems, personnel, resources, or costs, as may relate to an Order or any component thereof which Licensor/Vendor may be required under this Agreement or any subsequent Order to pass to the Customer.

"Licensed Program" The computer programs (software) described in the PMG Software License Agreement, Exhibit A, including any extracts from such programs, collective works including such programs (such as subsequent Releases) to the extent offered to Customer under the Master Agreement or Maintenance Agreement.

“Maintenance” means those ordinary services provided by Licensor/Vendor to Customer that are designed to keep Product operating in optimum condition.

“Licensor/Vendor” means Practice Manager Group, LLC, its successors, assigns and duly authorized agents and representatives.

“Maintenance Request” Means an Order from the Customer to the Licensor/Vendor requesting service, repair or maintenance, either in writing, through mail, email, facsimile, or via telephone through the Licensor/Vendor’s Hotline.

“Material Breach” means: (A) any breach that causes or may cause substantial harm to the non-breaching party; and/or (B) any breach where the injured party will be substantially deprived of the benefit it reasonably expected under the contract.

"Normal Support Hours" means the hours between 6:30 a.m. and 6:30 p.m. Mountain Time (US) on the days Monday through Friday (Daylight Saving Time observed), excluding regularly scheduled holidays of Licensor/Vendor.

“Order” means any written request or commitment for Product that Customer and Licensor/Vendor may execute from time to time under this Agreement, in a form substantially similar to Customer’s standard purchase order form, or purchase card transaction. The Order shall document the scope and statement of Product to be provided, price, payment schedule, milestones, deliverables, performance schedules, expectations and requirements for both Parties, and any modifications to the provisions subject to Section 1.2. Such Order shall not be deemed to prevail over any provision of this Agreement unless specifically stated in this Agreement, and then, only to the extent specifically identified herein.

“Product(s)” For the purposes of this Agreement "Products" shall be understood as "Ordinary Goods" as defined in the Portland City Code Section 5.33.010. Services shall be understood to mean both "Ordinary Services", as defined in the Portland City Code Section 5.33.010, which may include, but are not limited to, Warranty, Installation, Maintenance and Software upgrade support; and "Professional, Technical and Expert Services" as defined in the Portland City Code Section 5.68.010, which may include, but are not limited to, PTE work for interface/integration work and training. Products include, but are not limited to, the Licensed Program, any Custom Programming created by Licensor/Vendor, Documentation related to the Licensed Program or any Custom Programming created by Licensor/Vendor, Deliverables, and Derivative Works that may be delivered hereunder by Licensor/Vendor or otherwise developed for the Customer by Licensor/Vendor.

“Project” means the overall collection of activities required for delivery and support of the System including, without limitation, design, development, integration, testing and support.

“Proprietary Information” includes, but is not limited to, Trade Secrets per ORS 192.501(2), the Uniform Trade Secrets Act ORS 646.461, and Confidential Information per ORS 192.501 and 192.502.

“Repair” means to fix, patch, reprogram, or replace Product so as to eliminate Errors or failure, to Customer’s satisfaction; provided, however, that a work-around or patch which temporarily eliminates the symptoms of the particular problem reported, but impairs the efficiency of Customer’s operations, shall be deemed an “interim repair”, not a Repair. An interim repair cannot last longer than Seven (7) calendar days, unless otherwise mutually agreed in writing by both parties.

“Services” means services that are performed by Licensor/Vendor or that Licensor/Vendor has agreed to perform or provide to Customer or that Licensor/Vendor has performed or provided to Customer in accordance with the terms and conditions of this Agreement or any Order. Services shall be understood to mean both "Ordinary Services", as defined in the Portland City Code Section 5.33.010, which may include, but are not limited to, Warranty, Installation, Maintenance and Licensed Program upgrade support; and "Professional, Technical and Expert Services" as defined in the Portland City Code Section 5.68.010, which may include, but are not limited to, PTE work for interface/integration work and training.

“Software Maintenance” means Licensor/Vendor’s services to update and maintain Customer’s licensed version of the Licensed Program. This may apply to Custom Programming or Customization if Customer pays a separate fee for Custom Software Maintenance and Custom Software Support, as reflected in Schedule 3 or a supplement to Schedule 3. Maintenance Agreement is attached as Exhibit C.

“Source Code” means a series of instructions or statements in an English-like high-level computer language such as C, C++, Delphi, .NET Framework, SQL and CPLEX, or in a relatively low-level language such as the assembly language for a particular processor.

“Statement of Work” (SOW) means Exhibit D and/or the written detailed account of the Product to be delivered under an Order, subject to the terms and conditions herein.

“Software” means the Licensor/Vendor Licensed program offered for license by Licensor/Vendor in Exhibit A or as described in any Order attached and incorporated to this Agreement, including any Upgrades.

“Technical Platform” means the hardware operating system(s) and combined software environment into which the Products are intended by the parties to be installed.

“Third Party Software” means Software Product that Licensor/Vendor is authorized by actual Licensor to License to the Customer subject to the Original Licensor’s standard provisions. Vendor/Licensor is required to provide to customer, prior to placement and acceptance of an Order, copies of the both, the Third Party Software Licenses, and the Third Party Warranty/Maintenance Agreement as applicable to the Order.

“Trade Secrets” mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

“Upgrade” means any bug fix, addition to, or patch of the Software designed to modify it, or any new version, including new versions or releases that support hardware Upgrades, designed to replace it, which may alter its utility, efficiency, or quality of performance.

“Users” mean the aggregate number of persons entitled to use the Software at any one time as set forth in Exhibit A, Schedule 1. As used herein, a copy of Software is in “use” when it is has established a connection to a database based on a unique user identifier. Users can be either Named Users or Concurrent Users, depending on the licenses purchased via and described on Exhibit A, Schedule 1. (“Named User” licensing requires each user to have his own login ID and counts all available login IDs regardless of the number in use at any specific time; “Concurrent User” requires each user to have his own login ID and counts all login IDs in simultaneous use on the same system).

“Warranty” During the warranty period, Vendor/Licensor shall at a minimum, warrant that the Licensed Program under normal use and service will be free from material defects in material and workmanship.

1.2 General Provisions. These Provisions apply to the entire Agreement, Exhibits, Attachments, Schedules and Subsequent Orders; however, the Parties acknowledge that to maintain flexibility in the business relationship, the parties may need, from time to time, to negotiate changes to the terms of this Agreement regarding specific Orders dependent on the scope of Work or Product. Such agreed upon changes shall not be retroactive and will apply as of the effective date of the respective Order, and shall only affect that specific Order. All changes that would permanently change any of the provisions of this Agreement shall be memorialized in the form of an Amendment as required herein. Standardized terms and conditions such as those on a City Purchase order shall not amend this agreement or the respective Order unless specifically stated in the Order. If there is a conflict among the terms in the various documents, those of an Order shall prevail over those of this Agreement. A Product or Service becomes subject to this Agreement when Licensor/Vendor accepts the Order by: (1) sending an acknowledgment of such Order, or (2) shipping, providing or installing the Product or Work as specified in such Order.

1.2.1 Term. This Agreement shall remain in effect for a period of five years with the City’s option to extend for an additional five year period unless terminated by either Party in accordance to the provisions herein. In the event of default under this Agreement, the happening of which shall give the non-defaulting party the option (upon the expiration without cure of any applicable cure period) to: (A) terminate in whole or in part this Agreement or any related Order, (B) seek remedies pursuant to this Agreement or pursuant to any other related agreement, including any Order, (C) seek any other remedies in the Agreement, in law, or at equity, to the extent not otherwise limited by the terms of this Agreement, or (D) any combination thereof.

1.2.2 Termination for Cause by Licensor/Vendor. Licensor/Vendor may terminate this Agreement if Customer is in Material Breach, which Breach has not been cured in the period or manner agreed to by the Parties under this Agreement.

1.2.3 Termination for Cause by Customer. Customer may terminate this Agreement for the following reasons, which constitute cause for purposes of this Section:

1.2.5 Licensor/Vendor’s Default due to Bankruptcy. Customer may regard Licensor/Vendor as in default of this Agreement: (A) if Licensor becomes insolvent, makes a general assignment for the benefit of creditors; or (B) 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, and such proceeding has not been dismissed within a sixty (60) day period; or (C) has wound up or liquidated, voluntarily or otherwise.

1.2.6 Maintenance Default. Licensor/Vendor shall also be deemed in default if (A) Vendor fails to provide Warranty or Maintenance services or Upgrades provided Customer has acquired Maintenance, as specified in this Agreement, Exhibit C or subsequent Order, and Vendor has failed to cure such breach in accordance with this Agreement; or (B) Product supported under this Agreement continues to exhibit defects causing serious disruption of use and/or repeated periods of downtime, over a continuous period of six (6) months or more; in this event, Customer shall have the right to one or more of the following non-exclusive remedies: Customer may request that: (A) Vendor provide engineering support on site at Customer’s location within 30 days with Source Code for the Software, if applicable, with the intent of resolving the problem causing the breach. Customer has the option to assign one or more of its full time employees to assist Licensor/Vendor's engineer(s) in repairing the problem. Licensor/Vendor retains copyright and all ownership rights to the Source Code and any changes made during this on-site period if such repair involves Software. Customer agrees to maintain confidentiality of the Source Code and all residual know-how and knowledge that may be transferred to Customer’s employees as a result of this effort, however, notwithstanding the foregoing, Customer may terminate this Agreement in its entirety or solely as to the affected Order and exercise the remedies included in this Agreement, in Customer’s sole discretion. Regardless of any provision in this Agreement, in the event of any Material Breach by Licensor/Vendor, which Breach shall not have been cured as agreed to between the Parties, Customer shall have the ability to pursue Customer’s rights at law.

1.2.7 Post-Termination Obligations. Upon termination or expiration of this Agreement, all rights and licenses granted by Licensor/Vendor hereunder shall immediately cease. Each Party shall return to the other all papers, materials, and properties of the other Party then in its possession, including the Products, Documentation and specifically including ALL Confidential Information. Upon return of such materials, each Party shall provide the other with a signed written statement certifying that it has returned all property and complied with this Section 1.2.3.4. However, the Customer may retain one (1) copy of Product, Documentation and Confidential Information for the express purposes of public record archiving. Customer shall also be permitted to retain a copy of other public records to the extent required by record retention requirements adopted pursuant to the Oregon Public Records Law.

Licensor/Vendor represents and warrants that they own the Licensed Program and that it is not infringing.

1.3.2 Disclosure of Applicable Manufacturer’s Warranties. In all cases where applicable, Licensor/Vendor will provide Customer with a complete and accurate list of all Manufacturer’s Warranties pertaining to any Product acquired hereunder.

1.3.3 Verification of Assignment. To the extent applicable, Licensor/Vendor will assign to Customer any applicable Manufacturer’s Warranty applicable to any respective Product. At the time of this agreement, Licensor/Vendor does not believe that any portion of the Products falls within this paragraph.

1.3.4 Warranty Against Planned Obsolescence The Licensor/Vendor warrants that the Products offered and acquired by Customer under this Agreement are new and current, and that Vendor/Licensor has no current plans for announcing a replacement line which would be marketed as replacements for the Products contained herein and would result in reduced support for the product line.

1.3.5 Limited Warranty. Licensor/Vendor grants Customer the limited warranty that the Services will be performed in a workmanlike manner. In the event Customer notifies Licensor/Vendor with detailed specificity of a breach of such warranty within ten (10) days of the discovery of such deficient Services, Licensor/Vendor agrees to re-perform the deficient Services or, at Customer’s option, refund the fees paid by Customer for such deficient Services. Licensor/Vendor shall not be responsible or liable for any failures associated with determining whether the Services will achieve the business objectives of Customer.

1.3.6 DISCLAIMER. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, LICENSOR/VENDOR DOES NOT MAKE ANY OTHER EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER, ANY OF ITS AFFILIATES OR ANY OTHER PARTY WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED AND DISCLAIMED.

1.3.7 Industry Standards. The Product is compliant with all other generally accepted industry standards at time of any respective Order.

1.4.2 Performance to Specifications. The Software and all Upgrades supplied by Licensor/Vendor shall at all times during the Warranty Period operate in accordance with the Documentation.

1.4.3 All Necessary Materials. Other than as specified in any applicable Order, no other equipment, applications, or the like are required to be used in conjunction with the Software in order for the Software to operate in accordance with the Documentation.

1.4.4 Software Compatible. The Software is compatible with the products listed by Licensor/Vendor as compatible with the Products, and shall run in accordance with the Documentation, as amended from time to time by Licensor/Vendor.

1.4.5 No Material Defects or Viruses. The Software (A) is free of any defect in material of the media in which it is delivered; and (B) is free of any virus, Trojan horse or other program routine designed to erase, disable or otherwise harm Customer's hardware, data or other programs.

1.4.6 Documentation Explains Use. The Documentation shall explain the operation of the Software in terms understandable by Customer Users of reasonable technical competence.

1.4.7 Industry Standards. The Product is compliant with all other generally accepted industry standards at time of any respective Order.

1.4.8 Exclusions to Software Warranties. Warranties shall not apply in cases of (A) defects or damage resulting from: use of the Software in other than its normal, customary, documented and authorized manner; accident, liquids, neglect, or acts of force Majeure; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized by the Licensor/Vendor; customer’s failure to comply with all applicable industry and OSHA standards; and (B) breakage or damage unless caused directly by defects in material or workmanship

1.4.9 Warranty Claims. To assert a warranty claim, the Customer shall notify the Licensor/Vendor in writing of the claim prior to the expiration of the Warranty Period. Upon receipt of such notice, the Licensor/Vendor assesses the warranty claim. If the assessment confirms a valid claim, Licensor/Vendor shall at its option and at no additional cost to the Customer, repair the defective Equipment or replace it with the same or equivalent product, or refund the price of the defective Equipment or Software. Repaired or replaced parts will become the property of the Manufacturer.

1.5.1 Payment. Unless otherwise specified in any respective Order, payment for Product shall be issued by the City net thirty (30) days from receipt and acceptance of Product by City or upon receipt of invoice from Licensor/Vendor if know Product is scheduled to be immediately delivered such as cases with maintained service payments, or renewals.

1.5.2 Invoices. Licensor/Vendor shall submit invoices to Customer at the following addresses:

All invoices must include the information set forth below. Omission of any one of these items may render the invoice an invalid invoice and delay payment until such detail is made available.

1.5.3 Taxes. The Fees and all other amounts due to Licensor/Vendor as set forth in this Agreement are net amounts to be received by Licensor/Vendor, exclusive of all sales taxes, duties, and assessments, and are not subject to offset or reduction because of any costs, expenses, sales taxes, duties, withholdings, assessments, or liabilities incurred by Customer or imposed on Licensor/Vendor in the performance of this Agreement or otherwise due as a result of this Agreement.

1.5.4 Delivery. Licensor/Vendor shall deliver the Product F.O.B. to Customer’s location, at the time and place indicated on any Order. Shipments will be complete and partial shipments will be avoided unless Customer agrees to the partial shipment in advance of such a shipment. The risk of loss or damage in transit shall be upon Licensor/Vendor unless Product is received and accepted by Customer at the delivery site. Licensor/Vendor shall furnish on-site or other assistance, as may be required to install the Product, in accordance with an Order under the attached Services Agreement, Exhibit B, at no additional cost to Customer, if requested within the Order. Acceptance shall not relieve Licensor/Vendor from its responsibility under any representation or warranty. Payment for any Product shall not be deemed waiver of any representation or warranty.

1.5.5 Delivery Schedule. Licensor/Vendor shall use best efforts to deliver Licensed Product on time, in accordance with Customer’s Order scheduled delivery date. If Licensor/Vendor delivers Licensed Product more than five (5) days later than the scheduled delivery date as listed on an individual Order, Customer may cancel the Order without penalty.

1.5.6 Proprietary Rights. Except Customizations or Custom Programming created by Customer or Third Parties using tools other than those included in the Products, all trademarks, service marks, patents, copyrights, trade secrets, and other proprietary rights in or related to the Licensed Product are and will remain the exclusive property of Licensor/Vendor or its designees. To the fullest extent permitted by law, Licensor/Vendor shall indemnify, defend and hold harmless the Customer and the Customer’s officers, agents and employees from and against any and all loss, damages, obligations, liabilities and expenses (including reasonable attorneys’ fees) that arise directly or indirectly from any infringement or alleged infringement of any United States or Canadian copyright, trademark or patent, or misappropriation of the trade secrets of any third party, in connection with the Licensed Product provided by Licensor/Vendor to Customer under this Agreement. Customer shall not decompile, disassemble, or otherwise reverse engineer the product.

1.5.7 Compliance with All Applicable Laws. This Agreement and/or subsequent Order(s) shall be construed according to the laws of the State of Oregon. Any litigation between the Customer and Licensor/Vendor arising under this Agreement or out of work performed under this Agreement through any Order shall occur, if in the state courts, in the Multnomah County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon, and, Licensor/Vendor warrants it has complied and shall comply with all applicable law in connection with the execution, delivery, and performance of this Agreement and any Order subject to this Agreement; and shall not contravene the terms of any contracts with third parties, or any third-party rights in any patent, trademark, copyright, trade secret, or similar right; and, as of the date of this Agreement, there are no actual or threatened legal actions with respect to the matters in this Provision.

1.5.8 Assignment and Delegation. Neither Party shall assign, transfer, subcontract, or delegate all or any part of this Agreement or subsequent Order, or any interest therein, without the other Party's prior written consent, which shall not be unreasonably withheld, except that (A) either Party may assign to any corporate affiliate pursuant to any merger, consolidation or other reorganization, without the other Party’s consent but upon written notice to the other Party, (B) in the event that Customer’s business needs change or Customer enters into an agreement with a provider for outsourcing services, Licensor/Vendor agrees that Customer shall have the right to assign this Agreement to a successor of all, substantially all, or specified area(s) of Customer’s business, including an outsourcing provider, provided such outsourcing provider operates the Software licensed hereunder expressly and solely for Customer’s benefit, upon written notice to the other Party, and (C) Licensor/Vendor may, without the other Party’s consent but upon written notice to the other Party, assign its right to payment under this Agreement or grant a security interest in such payment to any third party without requiring that the third party be liable for the obligations of Licensor/Vendor under this Agreement. In the event that Licensor /Vendor shall subcontract any work, assign any rights, or delegate any obligations under this Agreement without Customer’s prior consent, Licensor/Vendor shall be fully responsible for the acts and omissions of its subcontractors at all levels, and their agents and employees.

1.5.9 Disclosure of Litigation or Financial Condition . Vendor warrants that there are no suits, actions or other proceedings – pending, or threatened – in any judicial or quasi-judicial forum that will or may adversely affect Vendor’s ability to fulfill its obligations under this Agreement. Vendor further warrants that it will immediately notify Customer if, during the term of the Agreement or any extension of the Agreement, Vendor becomes aware of any suits, actions or proceedings – pending or threatened – in any judicial or quasi-judicial forum that involve Vendor or any subcontractor and that will or may adversely affect Vendor’s ability to fulfill its obligations under the Agreement or extension of the Agreement. For purposes of the disclosure requirement, any litigation, actions or other judicial or quasi-judicial proceedings that, in the aggregate, involve claims against Vendor totaling at least ten percent (10%) of the total amount of the Agreement shall be presumed to adversely affect the ability of Vendor to fulfill its duties under the Agreement. Vendor shall require all subcontractors to provide a similar warranty based on an identical percentage of the subcontract amount. Vendor must maintain a financial condition commensurate with the requirements of the Agreement. Notice of Change in Financial Condition. If, during the Term of the Agreement, Vendor experiences a change in its financial condition which may affect its ability to perform under the Agreement, or change the ownership or control, Customer shall be immediately notified in writing. Failure to notify Customer of such a change in financial condition or change in ownership or control is sufficient grounds for terminating the Agreement

1.5.10 Survival. All obligations relating to confidentiality; indemnification; publicity; representations and warranties; proprietary rights; perpetual licenses, including licensing obligations therefore as stated in this Agreement or any applicable Order; limitation of liability; and obligations to make payments of amounts that become due under this Agreement or subsequent Orders prior to termination (except that payments for services not performed by the date of termination shall be prorated) shall survive the termination or expiration of this Agreement or any respective Order and shall, to the extent applicable, remain binding and in full force and effect for the purposes of the ongoing business relationship by and between Licensor/Vendor and Customer. Nothing in this Agreement shall alter, modify, or supersede the content and survival of such provisions, except as otherwise expressly agreed to in writing by the Parties and with the prior approval of Customer’s legal or contract review departments.

1.5.11 Not Coterminous. Orders placed under this Agreement are not required to be coterminous with the expiration of this Agreement, rather shall survive the expiration of such until completion. In these cases all provisions of this Agreement applicable to such Orders shall be considered active and in full force until the applicable Orders reach conclusion. In no case shall a new Order be placed by the Customer, or be accepted by the Licensor/Vendor after the expiration date of this Agreement or subsequent renewal.

1.5.12 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement or subsequent Order to enjoy any of its benefits because of (or if loss of any Software licensed or developed hereunder is caused by) natural disaster, actions or decrees of governmental bodies or communications line failure not the fault of the affected Party (hereinafter referred to as a “Force Majeure Event”), the Party who has been so affected immediately shall give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, this Agreement and/or such affected subsequent Order shall immediately be suspended. If the period of nonperformance exceeds fifteen (15) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice terminate this Agreement, subsequent Order or any license granted hereunder. Provided the duration of delay in delivery due to Force Majeure does not exceed thirty (30) days and/or neither Party has given notice to terminate this Agreement, a in which case Customer shall be permitted to terminate this Agreement, subsequent Order or any license hereunder upon written notice to Licensor/Vendor, in accordance with this Section, such delays in delivery shall automatically extend the delivery date for a period equal to the duration of such events; any Warranty Period affected by a Force Majeure event shall likewise be extended for a period equal to the duration of such event.

1.5.13 Modification. No Provision of this Agreement may be validly amended, supplemented, including Orders unless, (A) reviewed by Customer’s Contract Review or Legal Department and (B) executed in writing with reference to this Agreement; any amendment which is not in strict compliance with this Section shall be deemed null, void, and of no binding effect.

1.5.14 Venue. This Agreement and all subsequent Orders shall be construed according to the laws of the State of Oregon and the patent, trademark, and copyright laws of the United States. Any litigation between the Customer and Licensor/Vendor arising under this Agreement or out of work performed under this Agreement shall occur, if in the state courts, in the Multnomah County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon. No waiver or any breach hereunder shall be held to be a waiver of any other or subsequent breach of this Agreement.

1.5.15 Dispute Resolution. Licensor/Vendor shall cooperate with Customer to assure that all claims and controversies which arise during the performance of the Licensor/Vendor’s Services under an Order/Change Order subject to this Agreement and which might affect the quality of such Services will be resolved as expeditiously as possible in accordance with the following resolution procedure:

1.5.15.1 Any dispute between Customer and Licensor/Vendor arising prior to completion of Licensor/Vendor’s services or the earlier termination of the Agreement shall be resolved, if possible, by executive management, senior officers or officials or their designees representing each Party in an informal process appropriate to the dispute.

1.5.15.2 Should an equitable solution not result from the forgoing within a reasonable time, and the Parties reach an impasse, the Customer and Licensor/Vendor shall be free to pursue other remedies allowed under this Agreement.

1.5.15.3 Unless ordered by Customer to suspend all or any portion of Licensor/Vendor’s services under a specific Order, Licensor/Vendor shall proceed with the performance of such services without any interruption or delay during the pendency of any of the foregoing dispute resolution procedures and shall comply with any mutually agreed on change orders which Customer may issue regarding the acceleration of all or any portion of the services in accordance with the terms of the Order subject to this Agreement. During the pendency of any of the foregoing dispute resolution procedures, Customer shall continue to make all payments that are not in dispute, in accordance with the provisions of the Order.

1.5.16 Remedies. The remedies provided in this Agreement are cumulative, and may be exercised concurrently or separately. The exercise of any remedy shall not constitute an election of one remedy to the exclusion of any other. In addition to any other remedies provided for in this Agreement or at law or in equity, Customer shall have the right to obtain one or more of the following non-exclusive remedies in the event of any Material Breach: (A) suspension of payment obligations accruing during the period for which Licensor/Vendor is in Material Breach; (B) termination of this Agreement in its entirety or solely as to any affected Order, in Customer’s sole discretion (C) offset any damages against amounts owing to Licensor/Vendor; or (D) a refund of all aggregate fees for Orders paid by Customer to Licensor/Vendor for the period beginning from the date of this Agreement and ending on the date of the occurrence of the Material Breach

1.5.17 DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY . Customer acknowledges and agrees that in no event shall licensor/vendor or any of licensor/vendor’s officers, directors, employees, shareholders, agents or representatives be liable to customer, any of its affiliates or any other party for any special, indirect, incidental, exemplary or consequential damages or loss of goodwill in any way arising from or relating to this agreement or resulting from the performance or non-performance of any services even if licensor/vendor has been notified of the possibility or likelihood of such damages occurring. No action, whether based in contract, strict liability, or tort, including any action based on negligence, arising out of the performance of services under this Agreement, may be brought by either party more than two (2) years after such cause of action was discovered.

1.5.18 Severability. Any section of this Agreement which is held or declared, void, invalid, illegal or otherwise not fully enforceable shall not affect any other provision of this Agreement and the remainder of this Agreement shall continue to be binding and of full force and effect. This Agreement shall be binding upon and inure to the benefit of Customer and its successors and assigns.

1.5.19 Heading/Rule of Construction. This Agreement has been drafted by Customer as a convenience to the Parties only and shall not, by reason of such action, be construed against Customer.

1.5.20 Indemnification. Licensor/Vendor shall defend, save, and hold harmless the City of Portland, its officers, agents, and employees, from all claims, suits, or actions of whatsoever nature, including intentional acts, resulting from or arising out of the activities of Licensor/Vendor or its subcontractors, agents or employees under this agreement. PMG acknowledges that PMG will be liable to customer for any theft of any city property, intellectual property, identity theft, tortious or criminal acts committed by PMG’s employees, contractors, agents or representatives.

1.5.21 Written Notifications. All written notifications and written amendments shall be sent to the following:

1.5.22 Insurance. Licensor/Vendor shall be responsible for providing workers compensation insurance as required by law and shall maintain a minimum of, $1,000,000 with a $2,000,000 aggregate of Errors & Omission, $1,000,000 with a $2,000,000 aggregate Commercial General Liability, and $1,000,000 with a $2,000,000 of Business Auto Liability. Upon execution of this Agreement and prior to any Work being performed or Product being supplied hereunder, Licensor/Vendor shall provide proof of such insurance through a letter of self- insurance if self insured, and/or an insurance certificate, listing the Customer, its employees, management, and officials as additional insured. Additionally, should Licensor/Vendor subcontract any of the work herein, Licensor/Vendor will require such subcontractor(s), or affiliates if not covered under Licensor/Vendor’s insurance, to obtain and keep in force for the duration of the Work, insurance equal to the minimum values indicated herein. Prior to the performance of any work under this agreement, Licensor/Vendor and its subcontractors shall provide to the Customer’s CITY AUDITOR’S OFFICE a certificate showing the required insurance including compliance with the workers’ compensation law, ORS Chapter 656, as it may be amended, and if worker’s compensation insurance is required by ORS Chapter 656, Licensor/Vendor and its contractors shall maintain coverage for all subject workers as defined by ORS Chapter 656 for the entire period during which work is performed under this Agreement.

1.5.23 Insurance Certificates. All insurance certificate(s) shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the Customer’s, CITY AUDITOR’S OFFICE. If the insurance is canceled or terminated prior to the completion of this agreement, Licensor/Vendor and/or its contractors shall provide a Certificate of Insurance to show proof of a new policy with the same terms and limits. Licensor/Vendor and its contractors shall have continuous, uninterrupted coverage for the duration of this Agreement. The adequacy of the insurance shall be subject to the reasonable approval of the Customer/City Attorney. Failure to maintain insurance as required by this agreement shall be cause for immediate termination of this Agreement by the Customer. Licensor/Vendor's insurance will cover damages excluded from any limitation of liability to the extent of its policy limits indicted herein.

1.5.24 Sustainability. Pursuant to the City’s Sustainable City Principles, which direct City Bureaus to pursue long-term social equity, environmental quality, and economic vitality through innovative and traditional mechanisms, Licensor/Vendor is encouraged to incorporate these Principles into their scope of work with the City wherever possible. Therefore in accordance with the Principles and the City's Sustainable Procurement Strategy, it is the policy of the City of Portland to encourage the use of products or services that help to minimize the human health and environmental impacts of City operations. Licensor/Vendor is encouraged to incorporate environmentally preferable products or services into their work performance wherever possible. "Environmentally preferable" means products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. This comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product or service.

1.5.25 Packaging. Packaging should be minimized to the maximum extent possible without compromising product quality. The City encourages packaging that is reusable, recyclable in local recycling programs, is made from recycled materials, and/or is collected by the Licensor/Vendor for reuse/recycling.

1.5.26 Business License. The Licensor/Vendor shall obtain a City of Portland business license as required by PCC 7.02 prior to beginning work under this Agreement. The Licensor/Vendor shall provide a business license number in the space provided on page one of this Agreement. Additionally, the Licensor/Vendor shall pay all fees or taxes due under the Business License Law and the Multnomah County Business Income Tax (MCC Chapter 12) during the full term of this contract. Failure to be in compliance may result in payments due under this contract to be withheld to satisfy amount due under the Business License Law and the Multnomah County Business Income Tax Law.

1.5.27 EEO Certification. Prior to executing this Agreement, Licensor/Vendor shall obtain certification as an Equal Employment Opportunity Affirmative Action Employer as prescribed by City of Portland Code Chapter 3.100 by filing necessary documentation with the your Bureau of Purchases.

1.5.28 Non-Discrimination in Benefits. In April 2006, the Portland City Council unanimously passed the Equal Benefits Ordinance (City Ordinance 180077). The ordinance made revisions to Portland City Code 3.100 requiring certain City contractors to provide benefits to their employees with domestic partners equivalent to those provided to employees with spouses. This new requirement applies to construction contracts, Professional, Technical and Expert Services (PTE), and goods and services contracts exceeding the formal solicitation limits for those contracts awarded on or after January 1, 2007. Due to the Value of this Agreement, it falls into this requirement, Licensor/Vendor is required to visit http://www.portlandonline.com/omf/index.cfm?c=43774 and complete the Equal Benefits Compliance Declaration. Questions concerning this requirement may be directed to Loretta Young at (503) 823-6850.

1.5.29 Relationship of Parties. This Agreement shall not be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party.

1.5.30 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors, and assigns

1.5.31 Beneficiaries. There are no beneficiaries of this agreement except Licensor/Vendor and Customer, and no other parties are intended to be protected by or directly benefit from this Agreement.

1.6.2 Public Record. Licensor/Vendor acknowledges that City is subject to ORS Chapter 192.410, et. seq., otherwise known as the Oregon Public Records Act, ORS 192.610 et seq., known as the Oregon Public Meeting Law, Portland City Code and the Portland City Charter. The Customer acknowledges and agrees that the Products contain Proprietary Information of Licensor/Vendor. Subject to Oregon Public Records Laws, Uniform Trade Secrets Act, Portland City Code and Portland City Charter, Customer will hold in confidence and, without the consent of Licensor/Vendor, will not use, reproduce, distribute, transmit, transfer, or disclose, directly or indirectly, in any form, by any means, or for any purpose, the Proprietary Information of Licensor/Vendor unless required to do so by force of law. Customer may only disclose the Licensor/Vendor Proprietary Information to its employees with a need to know such information for the purposes set forth herein. Under no circumstances shall the Customer disclose or disseminate the Licensor/Vendor Proprietary Information to a competitor of Licensor/Vendor unless required by law. Without limiting the foregoing, Customer will exercise at least the same standard of care in protecting the confidentiality of the Licensor/Vendor Proprietary Information as it does with its own Proprietary Information. Licensor/Vendor acknowledges that City is subject to Oregon Public Records Laws and that City will follow the process outlined in the Master Agreement 1.6.2 “Public Records.”

1.6.3 Term. Customer’s obligations with regard to Trade Secrets of Licensor/Vendor remain in effect for as long as such information shall remain a trade secret under applicable law and its obligations with regard to Confidential Information of Licensor/Vendor shall remain in effect during the term of this Agreement and for three (3) years after the expiration or termination for any reason hereof. Within the limits and discretion allowed by those laws, the City will maintain the confidentiality of information.

1.6.4 Licensor/Vendor acknowledges that this Agreement and other written information received or created by the City, regardless of physical form, constitute public records under the Oregon Public Records Law. Any specific information that is claimed by Licensor/Vendor to be Proprietary Information, Trade Secret or Confidential Information must be clearly identified as such by Licensor/Vendor. However, Licensor/Vendor has been informed by City and is aware that information identified as “confidential” or “proprietary” does not receive automatic protection under the Act as the information must meet the statutory definitions for “trade secrets”, “confidential” information, or some other statutory requirement to remain conditionally or unconditionally exempt from disclosure. To the extent consistent with the Public Records Act and the Uniform Trade Secrets Act City will maintain the confidentiality of all such information marked Proprietary Information, Trade Secret or Confidential Information provided it meets the requirements of the Public Records Act and/or the Uniform Trade Secrets Act. Licensor/Vendor will not appropriate or use without permission any trademarks, service marks, confidential or other Proprietary Information belonging to Customer.

1.6.5 In the event that either party is requested or required, by public records request, subpoena, oral deposition, interrogatories, request for production of documents, administrative order or otherwise to view Licensor/Vendor’s Proprietary Information or Confidential Information, City will notify Licensor/Vendor of the date of the request and whether the City believes that any requested records should be released to the requester. Thereafter, unless Licensor/Vendor takes the position that such information nonetheless is confidential, a trade secret, proprietary or otherwise not subject to disclosure the City will release the identified requested information on the date specified. If the Licensor/Vendor and City are able to redact documents to satisfy the request, City and Licensor/Vendor shall work together to redact documents in a timely manner. Licensor/Vendor shall reimburse City Attorney’s office at the rate of $138 per hour billed to the nearest quarter hour for time spent. If the City refuses to disclose requested records to a person requesting the documents based on Licensor/Vendor’s identification of such documents because the documents are not subject to disclosure under Oregon law, and that person appeals the City’s decision to the District Attorney for Multnomah County, Licensor/Vendor will take such actions that it believes is necessary to sustain its position to the District Attorney. If the District Attorney orders production, and the Licensor/Vendor continues to believe the requested information is not subject to Disclosure under the Public Records Act and/ or Uniform Trade Secrets Act, the Licensor/Vendor agrees to take what ever action it considers legally necessary to protect its information, including, but not limited to, seeking a court order enjoining any disclosure by the City within a week of the District Attorney’s decision. Failure to take such action relieves the City from any claim by Licensor/Vendor that the City failed to protect the Licensor/Vendor’s confidential, Trade Secret or proprietary information as required by this Agreement. Licensor/Vendor shall save, indemnify, and hold harmless the City from any an all cost, including attorney fees as may be awarded a court, that are imposed upon the City as a result of the City’s nondisclosure of Licensor/Vendor’s information.

1.6.6 Equitable Remedies. Vendor acknowledges that unauthorized disclosure of Confidential Information or misuse of Customer Network will result in irreparable harm to Customer. In the event of a breach or threatened breach of this Agreement, Customer may obtain equitable relief prohibiting the breach, in addition to any other appropriate legal or equitable relief.

1.7.1 Provision of Audit Reports. Vendor shall provide Customer’s internal auditor or external auditor, and their designees, as well as Customer’s Auditor, with a copy of all reports, including any management letters issued as a result of the specified audits. The internal auditor or external auditor, and their designees, as well as Customer’s Auditor, shall be given the right, and the necessary access, to review the work papers of the audits if Customer deems it necessary. Audits will be performed in accordance with the Records Retention schedule below.

1.7.2 Overpayment. If an audit discloses that payments to Vendor were in excess of the amount to which Vendor was entitled, then Vendor shall repay the amount of the excess to Customer. Under no circumstances will the payment of previous invoices constitute an acceptance of the charges associated with those invoices. If any audit shows performance of Services is not efficient in accordance with Government Auditing Standards, or that the Services are not effective in accordance with Government Auditing Standards, Customer may pursue remedies as provided under Early Termination of Contract and Remedies. In addition, Vendor agrees to abide by the standards of the Office of the Comptroller set forth in May 2002 Office of Justice Programs (OJP) Financial Guide, including without limitation in accordance with Office of Management and Budget (OMB) Circulars A87, A-102, A-122, A-128, A-133. All financial records, supporting documents, statistical records and all other records pertinent to this Agreement shall be retained by Vendor for a minimum of five (5) years for purposes of State of Oregon or the OJP Financial Guide from the Office of the Comptroller and apprise itself of all rules and regulations set forth.

1.7.3 Records Retention. Vendor agrees to maintain and retain supporting fiscal documents adequate to ensure that claims for a period of three (3) years after the date of submission of the final billing or until the resolution of all audit questions, whichever is longer. Vendor agrees to repay any valid audit exceptions taken by Customer in any audit of the Agreement.

1.7.4 Availability of Books/Documents. Vendor agrees to make available at reasonable times, and for reasonable periods, books, records and supporting documents kept current by Vendor pertaining to the Agreement for purposes of inspecting, monitoring, auditing or evaluation by Customer’s personnel, or their designated representatives upon prior written notice from Customer.

1.7.5 Non-Appropriations. Vendor acknowledges that Customer’s ability to continue to buy maintenance and support under this agreement is contingent upon receiving sufficient funding in each City budget cycle. Customer is committed to requesting funding on an at least annual basis.

SOFTWARE LICENSE SPECIFIC PROVISIONS. In addition to the General Provisions provided in Section 1, these provisions shall apply to all Software, Upgrades, Enhancements, Customizations, Bug Fixes, in any independently licensed Software, or Software preloaded into Equipment. These Provisions shall not cover any Third Party Software supplied by the Licensor/Vendor. Should any ambiguities or conflicts arise between this section and Section 1 General Provisions, this section shall prevail over Section 1 in matters of Software, Upgrades, Enhancements, Customizations, and Bug Fixes.

2.1.1 Grant of License/Term. Licensor/Vendor hereby grants Customer a non-exclusive, perpetual license to use and operate the Software specified on any respective Order including that which may be preloaded on any equipment. Except as otherwise expressly provided in any applicable Order, Licensor/Vendor grants the right to use the Software without restriction, as may be applicable, to any number of Customer Users, geographic area, market, location, duration, CPU, site, MIPS, or other measurement or platform restrictions, including platform operating systems. If the Software is permanently installed on the hard disk or other storage device of a computer (other than a network server) and one person uses that computer more than eighty percent (80%) of the time it is in use, then that person may also use the Software, subject to the provisions of this Agreement, on a portable or home computer.

2.1.2 No Modification or Adaptation. Customer may not copy, modify, adapt, or create Derivative Works of the Software or incorporate the Software in computer programs not provided or authorized by Licensor/Vendor without Licensor/Vendor’s prior permission. In the event of any unauthorized modification, adaptation or creation of a Derivative Work of the Software, Licensor/Vendor reserves the right to terminate this Agreement or discontinue any warranty or support service in relation to such adapted or modified Software or Derivative Work thereof.

2.1.3 Copies. Customer may reproduce the Software and Documentation, and any computer based training modules (“CBTs”), if applicable, provided that each copy thereby produced shall be marked with Licensor/Vendor’s proprietary markings as delivered to Customer. Copies of Software may be used for testing, including testing within a Customer lab, or other lab as agreed to between the Parties, on a mirrored server for purposes of redundancy, back up, archive, and disaster recovery purposes and in such manner as may be necessary to facilitate the continuation of Customer’s business operations.

2.1.4 Escrow of Source Code. For Software or Upgrades ordered under any initial Order, or any subsequent Orders, subject to this Agreement, escrow fees shall be paid by Customer directly to the Customer’s selected Software Escrow Agent.

2.1.5 Escrow Warranty and Covenant. Licensor/Vendor represents and warrants to Customer that Licensor/Vendor will, at Customer’s request and expense, deposit with the person or entity (the "Escrow Agent") under the agreement set forth in Attachment 1, for safekeeping a complete copy of the source code, data model and layout. to the Licensed Program (the "Source Code") required for a reasonably skilled programmer or analyst to understand and maintain the Licensed Program in the versions licensed to Customer under this Agreement for each Software (excluding Third Party Software); and Licensor/Vendor covenants to Customer that Licensor/Vendor will, as long as Customer requests and pays all software escrow fees, continue to promptly deliver to the Escrow Agent all revisions, corrections, Updates, or other modifications to all versions of the Source Code (the “Changes”) so that the Source Code held in escrow constitutes a machine-readable program of the most current release of the Software, as well as any version as may be in use by Customer subject to license hereunder. In addition, Licensor shall promptly notify Customer in writing that the Changes have been made and the Escrow Agent has been provided with all such Changes. For convenience, the Documentation segment of the Source Code may be placed in machine-readable form or in a form suitable for photocopying.

2.1.6 Source Code Delivery to Customer. If requested by Customer, the Source Code shall be held in escrow and Customer shall, upon paying the reasonable duplication costs and other reasonable handling charges of the Escrow Agent, be entitled to receive promptly a copy of the Source Code from the Escrow Agent in the event (A) Licensor/Vendor fails or refuses to provide Customer with Maintenance services, or (B) Licensor/Vendor becomes insolvent, makes an 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 its business voluntarily or otherwise, and Customer has reason to believe that such event(s) could cause Licensor/Vendor to fail to meet its warranty, maintenance or service obligations in the foreseeable future. In such event, the Software license granted under this Agreement shall be unmodified, royalty-free, fully paid up, and deemed to specifically include the Source Code and all Documentation therefore.

2.1.7 Responsibility of Escrow Agent. Aside from avoiding negligence and malfeasance, the Escrow Agent's only responsibility will be to use its good faith efforts to cause a copy of all versions of the Source Code and Documentation, in the form delivered by Licensor/Vendor and pursuant to this Agreement, to be promptly delivered to Customer at the appropriate time. This Section shall survive the termination of this Agreement.

2.1.8 Ownership. Licensor/Vendor does not convey, nor does Customer obtain any right in programs, data or materials owned or provided by Licensor/Vendor in the ordinary performance of this Agreement. To the extent that ownership to any Deliverables may not vest in Licensor/Vendor, Customer will take all necessary steps to properly assign to Licensor/Vendor, now or upon its creation without further consideration, the ownership of all such Deliverables. Notwithstanding any provisions of this Agreement or any Work Order, Licensor/Vendor may utilize freely any and all ideas, concepts, methods, know-how or techniques related to programming and processing of data, discovered or developed by Licensor/Vendor during the performance of Services. Licensor/Vendor will not appropriate or use without permission any trademarks, service marks, or other Proprietary Information belonging to Customer.

2.1.9 Credit for Technology Migration. Customer shall have the right, but not the obligation, to retire any existing Software in connection with a technology migration. If Customer exercises this right, Licensor/Vendor shall credit Customer’s account with one hundred percent (100%) of fees paid in advance for any unit thus retired and replaced. The credit shall be applied toward the fee otherwise owing for acquisition of the new Product. Notwithstanding anything contained in this Section, in the event that Customer licenses Product for installation on a particular hardware platform, and such Product is available on multiple hardware platforms, if Customer elects to migrate to another hardware platform, Customer will notify Licensor/Vendor of Customer’s intent to migrate such Software and Licensor shall permit Customer to undertake such migration at no additional cost to Customer. Licensor shall promptly deliver to Customer a version of such Software appropriate to the platform to which Customer wishes to migrate and Customer will cease to use Software licensed on the initial platform and either (a) return such Software and Documentation therefore to Licensor/Vendor; or (b) certify destruction of such Software and Documentation, as may be mutually agreed to by Licensor/Vendor and Customer, except that Customer may retain one back up copy for archive purposes.

2.1.10 Substitution of Product at No Charge. In the event that Licensor/Vendor ceases to provide Maintenance for any Licensed Program, Licensor/Vendor shall substitute a functionally similar new product at no additional licensing cost to Customer as long as Customer is current on all Software Maintenance Agreement payments.

2.1.11 Software Indemnity. (A) Licensor/Vendor shall, at its own expense, hold harmless, indemnify, and defend Customer, its directors, officers, employees, agents and affiliates from, for and against all claims, demands, damages, liabilities and expenses (including reasonable attorney fees, whether or not at trial and/or on appeal), arising out of or in connection with Licensor/Vendor’s negligence, act, omission, or any actual or alleged violation or infringement by the Software of any proprietary right of any person whosoever, including any copyright, patent, trade name, trademark, or trade secret. Customer agrees to notify Licensor/Vendor of the claim and gives Licensor/Vendor sole control of the defense of the claim and negotiations for its settlement or compromise. No settlement that prevents Customer’s continuing use of the Products shall be made without Customer’s prior written consent. (B) If any third party claim causes Customer’s use of the Software to be endangered, restricted or disrupted, Licensor/Vendor shall (i) cause the Software to be replaced, at no additional charge, with a compatible functionally equivalent and non-infringing product; (ii) cause the Software to be modified to avoid the infringement; (iii) obtain a license for Customer to continue using the Software for the term of this Agreement and pay any additional fee required for such license; or (iv) if, after Licensor/Vendor uses all due diligence or standard of care none of the foregoing alternatives is possible, Licensor/Vendor will terminate the license and refund to Customer license fees actually paid by Customer and any direct damages documented by City for the affected Software and Documentation.

MAINTENANCE SPECIFIC PROVISIONS. In addition to the General Provisions provided in Section 1, these provisions shall apply to all Maintenance and Repairs to any independently licensed Software, preloaded Software, and the Licensed Program and, if separately purchased by Customer, Custom Programming by Licensor/Vendor. These Provisions shall not cover any Third Party Software supplied by the Licensor/Vendor or any other vendor or supplier not a party to this Agreement. Should any ambiguities or conflicts arise between this section and Section 1 General Provisions, this section shall prevail over Section 1 in matters of Maintenance and Repair.

3.1.1 Term. The duration of Vendor’s obligations in connection with Maintenance shall be twelve months, commencing on the date of expiration of the Warranty Period and thereafter for so long as any renewal terms shall be in effect. Vendor shall notify Customer in writing at least sixty (60) days prior to the expiration of the initial term and of any subsequent renewal terms. Upon receipt of written notice, Customer may, at its election, renew Maintenance for additional twelve (12) month terms. If Customer does not renew, Maintenance shall automatically terminate as of the expiration date of the then current term.

3.1.2 Fees Inclusive. The fee for Maintenance specified in subsequent Orders shall constitute the price in full for all Maintenance in connection with the Product, including documentation relating to any Software and Upgrades.

3.1.3 Services Included. Except as otherwise expressly provided to the contrary in any subsequent Order, Maintenance shall include the following services, in addition to any other services that may be specified:

3.1.3.1 Preventative. Maintenance shall include preventative services and tools for the Licensed Program such as, without limitation, (A) the development, release and assistance in installation of Upgrades which are designed to prevent operational errors, bugs, viruses, and the like and (B) the provision by Licensor/Vendor to Customer of monitoring, queue management, evaluation, or any other similar diagnostic applications or tools, and assistance in the installation and operation of same.

3.1.3.2 Repair. Within the time specified herein, Licensor/Vendor shall repair all errors that have been identified by Licensor/Vendor or otherwise by Customer in Maintenance Requests, either by (A) providing patches on diskette, CD ROM or by electronic mail; (B) providing additional or supplementary new operating software code, or workarounds to assist Customer in reducing the impact of such failure to customer’s operations; or (C) replacing the Licensed Program with a different operating code. In the event that the repair cannot be made, the remedies, as stated within this Agreement, at Customer’s sole discretion shall apply.

3.1.3.3 Telephone Helpline/Staffing. Licensor/Vendor shall maintain a no-cost, local or toll-free long-distance telephone hot-line for support of the Product in accordance with the terms of the attached Master Software Maintenance and Support Agreement. Vendor shall staff the hot-line during Normal Support Hours with competent technical consultants who shall be trained in and thoroughly familiar with the Product supported and with Customer’s applicable configuration. Licensor/Vendor’s technical staff shall be certified by applicable governmental or regulatory authorities, if such certification is required by law or regulations. Telephone support and all communication shall be delivered in English.

3.1.3.4 New Releases/Upgrades. "Releases." New versions of the Licensed Program, which may include both Error Corrections and Enhancements, Licensor/Vendor shall, at no additional charge to Customer, provide Customer with one (1) copy of any Upgrade, within thirty (30) days of the date such Upgrade is released to potential licensees and customers generally as long as Customer is current on its Maintenance payments.

3.1.3.5 Training. At Customer’s request, Licensor/Vendor shall provide Customer training in connection with upgrades or major repairs that change the functional operation of Software, or hardware whether repair or alteration is a permanent or interim modification. These training services will be at Customer’s expense and delivered in accordance with the terms of the attached Services Agreement, Exhibit or other governing Order.

3.1.4 Back Level Support. Licensor/Vendor shall maintain the ability to support up to two (2) back-level versions of the Product in operation. Vendor shall provide Customer with at least twelve (12) months prior written notice, before discontinuing Maintenance in support of Product currently in use by Customer. If due to Customer budgeting, financial or other environmental/technical or third party software issues, Licensor/Vendor agrees to work with Customer to provide back-levels of maintenance and support until the next budgeting cycle or 12 months, whichever occurs first.

3.1.5 Severity Level, Escalation, and Response Time. Notwithstanding Service specifications of a subsequent Order, Licensor/Vendor shall, at a minimum, respond to problem reports by, depending upon the nature of the Error identified, diagnosing the problem on-line; assisting over the telephone; sending patches, code fixes or workarounds; replacement of Software or Product, Provide Loaner Product, installation and testing of the Software and Equipment; or, if necessary, sending personnel to Customer’s site to deliver Maintenance Service in person. In the event of an Error, Customer shall have direct access, without prior escalation, to competent technical consultants who shall be trained in and thoroughly familiar with the Software licensed, or Product supported hereunder and any subsequent Order and with Customer’s applicable configuration. Should remote access be required, Licensor/Vendor will follow all City Policies regarding such including completing a Remote VPN Access Form, as may be revised. The VPN Access Form will be provided by Customer upon Licensor/Vendor Request and anytime that Customer requests assistance from Licensor/Vendor that Customer reasonably believes will require remote access by Licensor/Vendor.

Licensor/Vendor will respond to Customer inquiries and problem reports, and correct all Software errors and problems reported by Customer, in accordance with Table One below Licensor/Vendor will work with Customer to assign a priority to all problems submitted to Licensor/Vendor. The priority levels are set forth below. For all problems, investigation and work will continue as needed until a Workaround or Problem Fix is provided.

3.1.6 Failure to Provide Maintenance. Vendor’s failure to provide Maintenance in accordance with the Response Time and Restore Times set forth in Section 3.1.5 of this Agreement shall constitute a Material Breach. In such event, Customer shall, upon written notice to Vendor, have the right to demand the following non-exclusive remedies, in the following order: (A) immediate complete repair or, if necessary, replacement, installation and testing (at Vendor’s sole cost) of the System for which, due to Vendor’s breach of Maintenance obligations, there has been a period of failure; (B) if repair or, as the case may be, replacement, installation, or testing cannot be completed within the Restore Time for the identified Severity Level for the System, (1) any applicable remedies as set forth in Section 1.2.17 and (2) a refund of the then current annual Maintenance Fees which is calculated as 40 percent of the annual maintenance fee for the System, calculated as follows:

For the purposes of this Section, the term “Failure” means the partial or complete inability of the System to operate in accordance with the Acceptance Criteria, Mandatory Requirements and/or Documentation provided by Vendor to Customer and “Severity Level” means the level at which Customer’s business operations are adversely affected due to the Failure of the System, as determined by Customer in accordance with the standards in Section 3.3.7.

3.1.7 Access. Licensor/Vendor agrees that Vendor’s access to Customer facilities shall be subject to the security interests and controls necessary to protect public property, and Customer shall not be liable for any delays necessary in granting Licensor/Vendor access to any portion of the facilities or systems.

4.1.2 Right to Perform Acceptance Testing. If Customer requires and so specifies in an Order, Customer shall have the right to perform Acceptance Testing. Unless otherwise agreed to between the Parties, prior to Delivery of Products, Licensor/Vendor shall cooperate with Customer in the development of Acceptance Criteria and the Acceptance test that shall set forth the location, date, and other specifications of the test. A copy of the Acceptance Criteria and test shall be attached as an exhibit to the applicable Order or developed jointly by the Parties as part of the services contemplated by the Order.

4.1.3 Procedure and Timetable. Unless otherwise specified in any respective Order,

3.1.3.1 Customer shall commence the Acceptance Test based on the Scope of Work Service Deliverables schedule in Exhibit D as agreed upon by the Parties.

3.1.3.2 Licensor/Vendor shall provide, at no additional cost, reasonable and appropriate support, assistance, and consultation regarding the Product(s) in order to facilitate Acceptance Testing

3.1.3.4 Customer will make all reasonable efforts to complete the Acceptance Test within the time period specified in the Scope of Work Service Deliverables Schedule or an Order. If Acceptance Tests are successful, Customer shall immediately notify Licensor/Vendor of the Acceptance Date in writing per Licensor/Vendor’s Certificate of Completion in the relevant Service Deliverable.

4.1.4 Failure of Acceptance Test. If the Customer determines that it cannot issue Acceptance for the Product, Customer shall notify the Licensor/Vendor in writing per Licensor/Vendor’s Certificate of Completion, specifying in reasonable detail the respects in which the Product or portion of Product failed to pass the Acceptance Test. Licensor/Vendor shall, within ten (10) Business Days, correct or modify the Product in such a way that the Acceptance Test shall be successful. Upon notice of completion, Customer shall commence a second Acceptance Test. If Customer determines that it cannot issue a Certificate of Acceptance for the Product or any portion of the Product, based on the second Acceptance Test, Customer shall notify the Licensor/Vendor in writing, and may, at its election: (a.) terminate the applicable Order, with no further liability; (b.) request Licensor/Vendor to re-perform or the replace Product at no additional cost to the Customer or make corrections as necessary to prepare for retesting again, or (c.) may accept the Product completed notwithstanding the failed Acceptance test.

4.1.5 Termination of Order Based on Failure of Acceptance. In the event Customer elects to terminate an Order due to failure of the Acceptance Test, any fees paid to Licensor/Vendor for Product shall promptly be refunded to Customer in US Dollars within fifteen (15) Business Days. Such refund shall not be in the form of any credit obligated to the Licensor/Vendor. In the event Customer elects to accept the Product notwithstanding the failure, then (A) Customer may request that Licensor/Vendor issue a refund to Customer in an amount equal to a percentage of the full fee value of the Product that the Parties mutually determine represents the loss of functionality of the Product; and (B) Customer shall have the right to revoke Acceptance if the defect in the Product constitutes a Material Breach of this Agreement and Customer accepted it on the reasonable assumption that the defect would be corrected within a reasonable period of time, but it has not been so corrected, or if Customer accepted it without discovery of the defect, and the Acceptance was reasonably induced by Licensor/Vendor’s assurances or by the difficulty of discovery before Acceptance. Revocation is effective only if it occurs within a reasonable time after the Customer discovers or should have discovered the reasons for revocation.

4.1.6 No Waiver. Acceptance shall not relieve Licensor/Vendor from its responsibility under any warranty. Payment for any Product shall not be deemed Acceptance of the Product or waiver of any warranty under this Agreement or at law.

HOURLY SERVICES. In addition to applicable provisions of the previous sections, these provisions shall apply to all on call hourly services at the rates indicated in Exhibit B. Should any ambiguities or conflicts arise between this section and any previous or subsequent section, this section shall prevail over matters regarding on call hourly services.

5.1.1 Intergovernmental Agreement. As additional consideration for he this Agreement, the Licensor/Vendor hereby grants to the State of Oregon, the State of Washington and all governmental agencies within the states or Oregon and Washington, and option to purchases any Products covered under this Agreement at the same prices as are specified in the Agreement for purchase by the City. Licensor/Vendor warrants to the City of Portland, that the pricing provided to the City shall be the lowest pricing and that no pricing of a lesser nature shall be extended to any other governmental agency participating under this provision, without extending such lower pricing to the City. Governmental agencies specified above shall exercise this option by written notice to Licensor/Vendor, Inc.

5.1.2 Public Contracts. Licensor/Vendor shall observe all applicable state and local laws pertaining to public contracts. ORS Chapters 279A, 279B and 279C require every public contract to contain certain provisions. Pursuant to those chapters, the following provisions shall be a part of this contract, as applicable:

5.1.2.1 Pursuant to ORS 279B.220, on every public contract, the contractor shall make payment promptly, as due, to all persons supplying to the contractor labor or material for the performance of the work provided for in the contract; shall pay all contributions or amounts due the Industrial Accident Fund from the contractor or subcontractor incurred in the performance of the contract; not permit any lien or claim to be filed or prosecuted against the state or a county, school district, municipality, municipal corporation or subdivision thereof, on account of any labor or material furnished; and pay to the Department of Revenue all sums withheld from employees under ORS 316.167.

5.1.2.2 Pursuant to ORS 279B.230(1), in every public contract, the contractor shall promptly, as due, make payment to any person, co-partnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of the contractor, of all sums that the contractor agrees to pay for the services and all moneys and sums that the contractor collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services.

5.1.2.3 Pursuant to ORS 279B.230(2), in every public contract, all subject employers working under the contract are either employers that will comply with ORS 656.017 or employers that are exempt under ORS 656.126.

5.1.2.4 Pursuant to ORS 279B.235(1), in every public contract, the contractor shall pay employees for overtime work performed under the public contract in accordance with ORS 653.010 to 653.261 and the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.)

6.1.1 Reimbursement. Licensor/Vendor may be reimbursed, upon written Pre-Approval, for certain expenses specified below, incurred in connection with personnel assigned to provide services for the Customer on the Customer’s Site. All invoices shall be accompanied by original receipts or legible copies thereof and any additional backup that may be appropriate, and required by any subsequent Order. Reimbursement will be made based on the following guidelines:

6.1.2 Commercial Air Travel. Commercial air travel reservations are to be arranged based on the lowest coach fare available within a reasonable time frame surrounding the desired arrival or departure time. Customer shall reimburse Licensor/Vendor for one round trip to the subject work location, unless otherwise agreed to by Customer in writing. When possible, air travel arrangements should be reserved at least seven (7) to fourteen (14) days in advance. Direct billing for commercial air travel is NOT permitted; however, City may elect to arrange travel reservations on behalf of Licensor/Vendor personnel, or Licensor/Vendor may arrange travel through Customer’s authorized travel agency. Weekend travel is not reimbursable, unless otherwise agreed to by Customer’s Project Manager in writing. In the event weekend travel is reimbursed, such reimbursement shall be made based on an amount up to and in lieu of any authorized per diem amounts and, if applicable, any other daily expense reimbursement.

6.1.3 Rental Cars - Surface Transportation. Vehicle rental will be reimbursed based on a minimum ratio of one (1) compact auto per two (2) Licensor/Vendor personnel at the then-current GSA Rate. Reimbursement for vehicle rental will not be approved for Licensor/Vendor personnel falling below that ratio. Cost for additional insurance is not reimbursable, nor will reimbursement be permitted for fuel obtained at a vehicle rental agency. CUSTOMER DOES NOT ASSUME ANY LIABILITY OF ANY TYPE IN CONNECTION WITH RENTAL VEHICLES RESERVED OR OPERATED BY CONTRACTOR PERSONNEL. Direct billing for rental vehicles is NOT permitted.

6.1.4 Lodging. Licensor/Vendor shall arrange for their own lodging if required, and approved in writing by the Customer. Licensor/Vendor shall arrange for one bedroom units for personnel assigned to deliver services to the Customer. Customer will reimburse Licensor/Vendor for a total daily lodging expenses at the then-current GSA Rate.

6.1.5 Per Diem. City will provide a Per Diem for each full day (eight hours) worked for Licensor/Vendor personnel assigned to deliver services hereunder at the then-current GSA Rates. Per Diem includes the following expenses:

6.1.6 Personal Entertainment. Expenses incurred for personal entertainment while traveling on Customer business is NOT reimbursable. Personal entertainment includes items such as in-room movie charges, sightseeing, attendance at sporting events, reading materials, birthday gifts, haircuts, etc.

6.1.7 All Reimbursable Costs. Notwithstanding the foregoing, all travel costs to contractor shall be reimbursed in accordance with the maximum amounts allowed under the customer’s travel expense guidelines (Currently United States General Services Administration Guidelines)

ENTIRE AGREEMENT. This Agreement, including the Exhibits, Schedules and Attachments, if any, attached hereto (a) represent the entire understanding between the parties hereto with respect to the subject matter set forth herein, (b) supersede all negotiations, agreements, contracts, commitments and understandings, both spoken and written between Licensor/Vendor and Customer, (c) and do not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provisions of any purchase order or any other instrument of Customer. No modifications, additions, or amendments to this Agreement shall be effective unless made in writing as an addendum to this Agreement or per the Order process and signed by duly authorized representatives of the parties. In the event this Agreement is translated, the English version shall control.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.

PRACTICE MANAGER GROUP

By:

Chief Executive Officer

CITY OF PORTLAND (CITY):

By:

Mayor

By:

City Auditor

APPROVED AS TO FORM:

By:

Deputy City Attorney

For Customer:		For Licensor/Vendor:
Name: Susan Dorn	Emily Rice,	Name: Lewis Kinard
Title: Project Manager	Project Manager	Title: CEO
Address: City Attorney’s Office 1221 SW 4^th Ave RM 430	Bureau of Technology Services 1120 SW 5^th Avenue, Rm 450	Address:3025 S. Parker Rd., 12^th Floor
City, State: Portland OR 97204	Portland OR 97204	City, State: Aurora, CO 80014

Severity of Issue and Definition:	Time Commitment for Licensor/Vendor’s First Response:	Commitment to Escalate to Licensor/Vendor Managers If Issue Not Satisfactorily Resolved After:	Customer may provide Notice to Cure or Terminate pursuant to Section 3.2 after:
Severity 1 - a Software issue which substantially interferes with the Customer’s ability to use the Software and Customer’s ability to do business, with no documented workaround.	Three hours from Licensor/Vendor’s first receipt of Customer’s report of issue, within Regular Hours Support.	End of same business day from Licensor/Vendor’s first receipt of Customer’s report of issue, within Regular Hours Support.	Fifteen (15) business days from Licensor/Vendor’s first receipt of Customer’s report of issue, within Regular Hours of Support, only if issue is not satisfactorily resolved or reasonably determined to be attributable to Licensed Software.
Severity 2 – any non- Severity 1 issue, in which a Software issue interferes with Customer’s use of the Software but the Software remains up and running and the issue does not substantially interfere with Customer’s ability to do business.	One (1) business day from Licensor/Vendor’s first receipt of Customer’s report of issue within Regular Hours Support.	Two (2) business days from Licensor/Vendor’s first receipt of Customer’s report of issue within Regular Hours Support.,	Thirty (30) business days from Licensor/Vendor’s first receipt of Customer’s report of issue within Regular Hours of Support, only if the issue is not satisfactorily resolved or reasonably determined to be attributable to Licensed Software.
Severity 3 – any non- Severity 2 issue, in which a Software issue which causes only limited or insignificant impact.	Three (3) business days from Licensor/Vendor’s first receipt of Customer’s report of issue within Regular Hours Support.	Four (4) business days from Licensor/Vendor’s first receipt of Customer’s report of issue within Regular Hours Support.	No.


A. Severity Level 1 or 2	0 to 8 hours	17%
	9 to 16 hours	34%
	17 to 24 hours	51%
	25 to 32 hours	68%
	33 to 40 hours	85%
	41 to 48 hours	100%

B. Severity Level 3	0-1 days	20%
	2-3 days	50%
	4-5 days	75%
	6-7 days	85%
	8-9 days	95%
	9-10 days	100%