HomeMy WebLinkAboutAGENDA REPORT 2021 0317 CCSA REG ITEM 10HCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of March 17, 2021
ACTION Approved Staff Recommendation.
BY B.Garza.
H. Consider Agreement with Vermont Systems, Inc. for Registration Software
Upgrades, Subscribing to Additional Modules, and Purchasing Compatible
Peripheral Devices. Staff Recommendation: Approve agreement with Vermont
Systems, Inc. for recreation software upgrades, in an amount not-to-exceed
$20,000, and authorize the City Manager to sign the Agreement, subject to final
language approval of the City Manager. (Staff: Stephanie Anderson)
Item: 10.H.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Jeremy Laurentowski, Parks and Recreation Director
BY: Stephanie Anderson, Recreation Services Manager
DATE: 03/17/2021 Regular Meeting
SUBJECT: Consider Agreement with Vermont Systems, Inc. for Registration
Software Upgrades, Subscribing to Additional Modules, and
Purchasing Compatible Peripheral Devices
BACKGROUND
In 1997, the Recreation Division purchased Sierra Digital’s Recware recreation software
system to process activity registrations and facility rentals. A few years later, The Active
Network purchased Recware. In 2004, the Recreation Division upgraded Recware to
the Active Network’s Safari recreation software, which included the addition of on-line
activity registration. In 2012, The Active Network announced it would discontinue
support and development of Safari in 2013. Safari customers were offered an option to
migrate to ActiveNet, the Active Network’s hosted solution. However, ActiveNet
charged significant per-transaction fees, and was found to be cost prohibitive for the
Recreation Division. The Recreation Division therefore researched alternative
recreation software programs. Proposals from seven different vendors were
considered, and demonstrations for the seven different systems were presented to
Recreation, Information Systems, and Finance staff. The most cost-effective solution
that best met the needs of the City was the RecTrac program, produced by Vermont
Systems, Inc. (Vermont). In August 2013, the City entered into an Agreement with
Vermont to purchase the registration and facility rental modules of the RecTrac and
WebTrac recreation software. At the time, the current version of the software was 10.3.
Since then, Vermont has introduced a new version of the software, 3.1, which has many
upgraded features. Version 10.3 is quickly approaching end-of-life, and support and
development for this version will cease on June 30, 2021.
DISCUSSION
Since 2013, the RecTrac program has effectively met the needs of the Recreation
Division for processing program enrollments and facility reservations. As mentioned
earlier, RecTrac version 10.3 is now approaching end-of-life and upgrading to version
3.1 is now a necessity. Some of the enhancements of 3.1 include being browser based,
Item: 10.H.
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the ability to run on different platforms (PCs, Macs, ipads, tablets), a more intuitive user
interface, and increased integration across modules. This upgrade will make it possible
to process park rental permits out in the field, as well as allow management staff to
access the program if needed but out of the office.
In addition to the necessary upgrade to 3.1, staff recommends purchasing a
subscription to the Point-of-Sale module. This module will make it possible to accept
credit card payments for event entrance fees, such as at the 3rd of July Fireworks
Extravaganza, Easter Egg Hunt, and Moorpark Has Talent Show. It will also allow for
more efficient processing of payments for items such as camp t-shirts and camp snack
shack. The City’s current Priorities, Strategies, Goals, and Objectives include Objective
1.2.1, Offer mobile merchant payment services during Recreation events, as part of
Goal 2: Attract and assist with retention for sustainable businesses Citywide, including
Smart City and other strategies. The Recreation Division, in coordination with the
Finance Department and Information Systems, researched various systems and
methods that are available to meet this objective, including purchasing portable devices
from Wells Fargo (the bank with the City’s merchant accounts), purchasing devices that
work with cell phones (such as Square), and purchasing the point-of-sale module and a
compatible credit card processing device for RecTrac. The most effective means to
accomplish this objective, while simultaneously expanding opportunities to improve
customer service and increase efficiency, is to purchase a subscription to the Point-of-
Sale module for RecTrac. Additionally, staff recommends purchasing a subscription to
the League Scheduling module, which will streamline the coordination of sports
programs, and reduce staff time spent creating game schedules, updating and posting
standings, and registering and forming teams.
The costs of this project, including data migration, additional modules, peripheral
devices, and training, is approximately $20,000. Funds for this project were approved
as part of the mid-year budget process at the February 17, 2021, City Council meeting.
Payments to date to Vermont (from 2013 to this year) total approximately $48,000 (the
initial purchase, installation and training for the software, and subsequent annual
maintenance fees). The total cumulative costs to Vermont, including the purchase of
the additional modules, will be approximately $68,000. Per City Council Resolution No.
2019-3829, informal bidding or a request for proposals/qualifications (RFP/RFQ)
process is required for services or work when the dollar amount is more than subsection
(a), but less than subsection (b) of Public Contract Code Section 22032. Currently, this
dollar amount is between $60,000 and $200,000. Since there is no distinction in the
policy regarding new services or cumulative services, an informal bid or RFP/RFQ
process is required. However, Resolution No. 2019-3829 provides the City Manager
with the authority to waive informal bidding or an RFP/RFQ process, provided the type
or work or services performed can be competently and cost-effectively performed by the
firm or company. As mentioned previously, in 2013 an extensive RFP/RFQ process
was completed when the software was initially acquired. Additionally, the Recreation
Division desires to continue to use Vermont Systems, Inc. software, and based on past
experience with this vendor, the project to upgrade the software will be performed
competently and cost-effectively. Therefore, staff is recommending entering into an
Agreement with Vermont without informal bidding or an RFP/RFQ process.
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As mentioned above, payments to Vermont Systems, Inc. currently total approximately
$48,000. The cumulative costs associated with this project will exceed the City
Manager’s signature authority, and therefore City Council approval is required for the
agreement.
FISCAL IMPACT
There is no cost to purchase version 3.1. Costs to migrate the data, provide training on
the new version, purchases subscriptions the additional modules, and purchase
peripheral equipment will be approximately $20,000. Funding for this project is already
included in the Fiscal Year 2020/21 mid-year budget.
COUNCIL GOAL COMPLIANCE
This action is consistent with City Council Strategy 1, Goal 2, Objective 1: “Offer mobile
merchant payment services during Recreation events.”
STAFF RECOMMENDATION
Approve agreement with Vermont Systems, Inc. for recreation software upgrades, in an
amount not-to-exceed $20,000, and authorize the City Manager to sign the Agreement,
subject to final language approval of the City Manager.
Attachment: Draft Agreement with Vermont Systems, Inc.
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AGREEMENT BETWEEN THE CITY OF MOORPARK AND
VERMONT SYSTEMS, INC. FOR RECREATION SOFTWARE LICENSING,
MAINTENANCE, AND SUPPORT
THIS AGREEMENT, made and effective as of this _________ day of
________________________, 2021, between the City of Moorpark, a municipal
corporation (“City”) and VERMONT SYSTEMS, INC., a corporation (“Consultant”). In
consideration of the mutual covenants and conditions set forth herein, the parties agree
as follows:
WHEREAS, City has the need for recreation software services; and
WHEREAS, Consultant specializes in providing such services and has the proper
work experience, certifications, and background to carry out the duties involved; and
WHEREAS, Consultant has submitted to City a Proposal dated 2/24/2021, which
is attached hereto as Exhibit B.
NOW, THEREFORE, in consideration of the mutual covenants, benefits, and
premises herein stated, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall be from the date of execution to completion of
the work identified in the Scope of Services and in conformance with Exhibits B,and C
unless this Agreement is terminated or suspended pursuant to this Agreement.
2. SCOPE OF SERVICES
City does hereby retain Consultant, as an independent contractor, in a
contractual capacity to provide recreation software licensing, maintenance, and support
services, as set forth in Exhibits B and C. In the event there is a conflict between the
provisions of Exhibits B or C and this Agreement, the language contained in this
Agreement shall take precedence.
Consultant shall perform the tasks described and set forth in Exhibits B and C.
Consultant shall complete the tasks according to the schedule of performance, which
shall be agreed upon in writing between City and Consultant upon execution of this
agreement.
Compensation for the services to be performed by Consultant shall be in
accordance with Exhibit B. Compensation shall not exceed the rates described in
Exhibit B or total contract value of twenty thousand dollars ($20,000) without a written
amendment to the Agreement executed by both parties. Payment by City to Consultant
shall be in accordance with the provisions of this Agreement.
ATTACHMENT
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3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of their ability,
experience, standard of care, and talent, perform all tasks described herein. Consultant
shall employ, at a minimum, generally accepted standards and practices utilized by
persons engaged in providing similar services as are required of Consultant hereunder
in meeting its obligations under this Agreement.
4. MANAGEMENT
The individual directly responsible for Consultant’s overall performance of the
Agreement provisions herein above set forth and to serve as principal liaison between
City and Consultant shall be DAVID WIRTZ, and no other individual may be substituted
without the prior written approval of the City Manager.
The City’s contact person in charge of administration of this Agreement, and to
serve as principal liaison between Consultant and City, shall be the City Manager or the
City Manager’s designee.
5. PAYMENT
Taxpayer ID or Social Security numbers must be provided, on an IRS W-9 form,
before payments may be made to vendors.
The City agrees to pay Consultant, in accordance with the payment rates and
terms and the schedule of payment as set forth in Exhibits B and C. This amount shall
not exceed twenty thousand dollars ($20,000) for the total term of the Agreement unless
additional payment is approved as provided in this Agreement.
Consultant shall not be compensated for additional services rendered in
connection with its performance of this Agreement, unless such additional services and
compensation are authorized, in advance, in a written amendment to the agreement
executed by both parties. The City Manager, if authorized by City Council, may approve
additional work not to exceed ten percent (10%) of the amount of the Agreement.
Consultant shall submit invoices for actual services performed. Payment shall be
made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the
City disputes any of Consultant’s fees or expenses it shall give written notice to
Consultant within thirty (30) days of receipt of any disputed fees set forth on the invoice.
6. TERMINATION OR SUSPENSION WITHOUT CAUSE
The City may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
thirty (30) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
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The Consultant may terminate this Agreement only by providing City with written
notice no less than ninety (90) days in advance of such termination.
In the event this Agreement is terminated or suspended pursuant to this Section,
the City shall pay to Consultant the actual value of the work performed up to the time of
termination or suspension, provided that the work performed is of value to the City.
Upon termination or suspension of the Agreement pursuant to this Section, the
Consultant will submit an invoice to the City pursuant to this Agreement.
7. DEFAULT OF CONSULTANT
The Consultant’s failure to comply with the provisions of this Agreement shall
constitute a default. In the event that Consultant is in default for cause under the terms
of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can terminate or
suspend this Agreement immediately by written notice to the Consultant. If such failure
by the Consultant to make progress in the performance of work hereunder arises out of
causes beyond the Consultant’s control, and without fault or negligence of the
Consultant, it shall not be considered a default.
If the City Manager or the City Manager’s designee determines that the
Consultant is in default in the performance of any of the terms or conditions of this
Agreement, designee shall cause to be served upon the Consultant a written notice of
the default. The Consultant shall have thirty (30) days after service upon it of said notice
in which to cure the default by rendering a satisfactory performance. In the event that
the Consultant fails to cure its default within such period of time, the City shall have the
right, notwithstanding any other provision of this Agreement, to terminate this
Agreement without further notice and without prejudice to any other remedy to which it
may be entitled at law, in equity or under this Agreement.
8. LIQUIDATED DAMAGES
This section is intentionally deleted.
9. OWNERSHIP OF SOFTWARE AND DOCUMENTS
CITY shall maintain ownership of the previously purchased RecTrac and WebTrac
modules and all associated data files in accordance with Exhibit D. CITY shall have
rights to use additional modules in accordance with Exhibits B and C.
10. INDEMNIFICATION AND HOLD HARMLESS
Consultant shall indemnify, defend and hold harmless City, and any and all of its
officers, employees, and agents (“City Indemnitees”) from and against any and all
causes of action, claims, liabilities, obligations, judgments, or damages, including
reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of the
Consultant’s performance of its obligations under this Agreement or out of the
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operations conducted by Consultant, including the City’s active or passive negligence,
except for such loss or damage arising from the sole negligence or willful misconduct of
the City. In the event the City Indemnitees are made a party to any action, lawsuit, or
other adversarial proceeding arising from Consultant’s performance of this Agreement,
the Consultant shall provide a defense to the City Indemnitees or at the City’s option
reimburse the City Indemnitees their costs of defense, including reasonable legal
counsels’ fees incurred in defense of such claims.
Consultant agrees to obtain executed indemnity agreements with provisions
identical to those set forth in this Section from each and every subcontractor, or any
other person or entity involved by, for, with, or on behalf of Consultant in the
performance of this Agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible
according to the terms of this Section. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a
waiver of any rights hereunder. This obligation to indemnify and defend City as set forth
here is binding on the successors, assigns, or heirs of Consultant and shall survive the
termination of this Agreement or this Section.
City does not and shall not waive any rights that it may have against Consultant
by reason of this Section, because of the acceptance by City, or the deposit with City, of
any insurance policy or certificate required pursuant to this Agreement. The hold
harmless and indemnification provisions shall apply regardless of whether or not said
insurance policies are determined to be applicable to any losses, liabilities, damages,
costs, and expenses described in this Section.
11. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit A attached hereto and
incorporated herein by this reference as though set forth in full.
12. INDEPENDENT CONSULTANT
Consultant is and shall at all times remain as to the City a wholly independent
contractor. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control.
Neither City nor any of its officers, employees, or agents shall have control over the
conduct of Consultant or any of Consultant’s officers, employees, or agents, except as
set forth in this Agreement. Consultant shall not at any time or in any manner represent
that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the City. Consultant shall not incur or have the power to incur
any debt, obligation, or liability against City, or bind City in any manner.
No employee benefits shall be available to Consultant in connection with the
performance of this Agreement. Except for the fees paid to Consultant as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Consultant
for performing services hereunder for City. City shall not be liable for compensation or
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indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
13. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of local, state and federal laws and
regulations which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations, including but not limited to the
Americans with Disabilities Act and Occupational Safety and Health Administration laws
and regulations. The City, and its officers and employees, shall not be liable at law or in
equity occasioned by failure of the Consultant to comply with this Section.
14. ANTI DISCRIMINATION
Neither the Consultant, nor any subconsultant under the Consultant, shall
discriminate in employment of persons upon the work because of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression,
age, sexual orientation, or military and veteran status of such person; or any other basis
protected by applicable federal, state, or local law, except as provided in Section 12940
of the Government Code. The Consultant shall have responsibility for compliance with
this Section, if applicable [Labor Code Sec. 1735].
15. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure is used
against or in concert with any officer or employee of the City in connection with the
award, terms or implementation of this Agreement, including any method of coercion,
confidential financial arrangement, or financial inducement. No officer or employee of
the City will receive compensation, directly or indirectly from Consultant, or any officer,
employee or agent of Consultant, in connection with the award of this Agreement or any
work to be conducted as a result of this Agreement. Violation of this Section shall be a
material breach of this Agreement entitling the City to any and all remedies at law or in
equity.
16. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of the City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the
Services during his/her tenure or for one (1) year thereafter, shall have any interest,
direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work
to be performed in connection with the Services performed under this Agreement.
17. CONFLICT OF INTEREST
Contractor covenants that neither they nor any officer or principal of their firm have any
interests, nor shall they acquire any interest, directly or indirectly, which will conflict in
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any manner or degree with the performance of their services hereunder. Contractor
further covenants that in the performance of this Agreement, they shall employ no
person having such interest as an officer, employee, agent, or subcontractor.
18. NOTICE
Any notice to be given pursuant to this Agreement shall be in writing, and all such
notices and any other document to be delivered shall be delivered by personal service
or by deposit in the United States mail, certified or registered, return receipt requested,
with postage prepaid, and addressed to the party for whom intended as follows:
To: City Manager
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
To: Vermont Systems, Inc.
David Wirtz
12 Market Place
Essex Junction, Vermont 05452
Either party may, from time to time, by written notice to the other, designate a
different address or contact person, which shall be substituted for the one above
specified. Notices, payments and other documents shall be deemed delivered upon
receipt by personal service or as of the third (3rd) day after deposit in the United States
mail.
19. CHANGE IN NAME
Should a change be contemplated in the name or nature of the Consultant’s legal
entity, the Consultant shall first notify the City in order that proper steps may be taken to
have the change reflected in the Agreement documents.
20. ASSIGNMENT
Consultant shall not assign this Agreement or any of the rights, duties or
obligations hereunder. It is understood and acknowledged by the parties that Consultant
is uniquely qualified to perform the services provided for in this Agreement.
21. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force
and effect, all licenses required of it by law for the performance of the services in this
Agreement.
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22. VENUE AND GOVERNING LAW
This Agreement is made, entered into, and executed in Ventura County,
California, and any action filed in any court or for arbitration for the interpretation,
enforcement or other action of the terms, conditions, or covenants referred to herein
shall be filed in the applicable court in Ventura County, California. The City and
Consultant understand and agree that the laws of the State of California shall govern
the rights, obligations, duties, and liabilities of the parties to this Agreement and also
govern the interpretation of this Agreement.
23. COST RECOVERY
In the event any action, suit or proceeding is brought for the enforcement of, or
the declaration of any right or obligation pursuant to this Agreement or as a result of any
alleged breach of any provision of this Agreement, the prevailing party shall be entitled
to recover its costs and expenses from the losing party, and any judgment or decree
rendered in such a proceeding shall include an award thereof.
24. ENTIRE AGREEMENT
This Agreement and the Exhibits attached hereto contain the entire
understanding between the parties relating to the obligations of the parties described in
this Agreement. All prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into this Agreement and
shall be of no further force or effect. Each party is entering into this Agreement based
solely upon the representations set forth herein and upon each party’s own independent
investigation of any and all facts such party deems material.
25. CAPTIONS OR HEADINGS
The captions and headings of the various Articles, Paragraphs, and Exhibits of
this Agreement are for convenience and identification only and shall not be deemed to
limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof.
26. AMENDMENTS
Any amendment, modification, or variation from the terms of this Agreement shall
be in writing and shall be effective only upon approval by both parties to this Agreement.
27. PRECEDENCE
In the event of conflict, the requirements of the City’s Request for Proposal, if
any, and this Agreement shall take precedence over those contained in the Consultant’s
Proposal.
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28. INTERPRETATION OF AGREEMENT
Should interpretation of this Agreement, or any portion thereof, be necessary, it is
deemed that this Agreement was prepared by the parties jointly and equally, and shall
not be interpreted against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
29. WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision. No waiver
shall be binding unless executed in writing by the party making the waiver.
30. AUTHORITY TO EXECUTE
The person or persons executing this Agreement on behalf of the Consultant
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Consultant and has the authority to bind Consultant to the performance of
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK VERMONT SYSTEMS, INC.
__________________________________ __________________________________
Troy Brown, City Manager David Wirtz, Director of Sales
Attest:
__________________________________
Ky Spangler, City Clerk
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Exhibit A
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet requirements set forth here, Consultant agrees to amend, supplement or endorse
the existing coverage to do so. Consultant acknowledges that the insurance coverage
and policy limits set forth in this section constitute the minimum amount of coverage
required. Any insurance proceeds available to the City in excess of the limits and
coverage required in this Agreement and which is applicable to a given loss, will be
available to the City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office (ISO)
“Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense
costs must be paid in addition to limits. There shall be no cross liability exclusion for
claims or suits by one insured against another. Limits are subject to review but in no
event less than $1,000,000 per occurrence for all covered losses and no less than
$2,000,000 general aggregate.
Workers’ Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the underlying
coverages. Coverage shall be provided on a “pay on behalf” basis, with defense costs
payable in addition to policy limits. Policy shall contain a provision obligating insurer at
the time insured’s liability is determined, not requiring actual payment by the insured
first. There shall be no cross liability exclusion precluding coverage for claims or suits by
one insured against another. Coverage shall be applicable to the City for injury to
employees of Consultant, subconsultants or others involved in the Work. The scope of
coverage provided is subject to approval by the City following receipt of proof of
insurance as required herein. Limits are subject to review but in no event less than
$2,000,000 aggregate.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of A- or better
and a minimum financial size of VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and the City agree to the following with respect to insurance provided by
Consultant:
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1.Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds the City, its officials,
employees, and agents, using standard ISO endorsement CG 2010 and CG
2037 with edition acceptable to the City. Consultant also agrees to require all
contractors and subcontractors to do likewise.
2.No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right
to subrogation prior to a loss. Consultant agrees to waive subrogation rights
against the City regardless of the applicability of any insurance proceeds, and to
require all contractors and subcontractors to do likewise.
3.All insurance coverage and limits provided by Consultant and available or
applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to
the City or its operation limits the application of such insurance coverage.
4.None of the coverages required herein will be in compliance with these
requirements if they include limiting endorsement of any kind that has not been
first submitted to the City and approved in writing.
5.No liability policy shall contain any provision or definition that would serve to
eliminate so-called “third party action over” claims, including any exclusion for
bodily injury to an employee of the insured or of any contractor or subcontractor.
6.All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. Consultant shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability
or reduction of discovery period) that may affect the City’s protection without the
City’s prior written consent.
7.Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to Consultant’s general liability policy, shall be delivered to city at or
prior to the execution of this Agreement. In the event such proof of any insurance
is not delivered as required, or in the event such insurance is canceled or
reduced at any time and no replacement coverage is provided, the City has the
right, but not the duty, to obtain any insurance it deems necessary to protect its
interests under this or any other Agreement and to pay the premium. Any
premium so paid by the City shall be charged to and promptly paid by Consultant
or deducted from sums due Consultant, at the City’s option.
8.Certificate(s) are to reflect that the insurer will provide 30 days notice to the City
of any cancellation or reduction of coverage. Consultant agrees to require its
insurer to modify such certificates to delete any exculpatory wording stating that
failure of the insurer to mail written notice of cancellation or reduction of coverage
imposes no obligation, or that any party will “endeavor” (as opposed to being
required) to comply with the requirements of the certificate.
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9.It is acknowledged by the parties of this Agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply
first and on a primary, non-contributing basis in relation to any other insurance or
self-insurance available to the City.
10.Consultant agrees to ensure that subcontractors, and any other party involved
with the Work who is brought onto or involved in the Work by Consultant, provide
the same minimum insurance required of Consultant. Consultant agrees to
monitor and review all such coverage and assumes all responsibility for ensuring
that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subcontractors
and others engaged in the Work will be submitted to the City for review.
11.Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, Architect, Engineer, or other
entity or person in any way involved in the performance of Work contemplated by
this Agreement to self-insure its obligations to the City. If Consultant’s existing
coverage includes a deductible or self-insured retention, the deductible or self-
insured retention must be declared to the City. At that time, the City shall review
options with the Consultant, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
12.The City reserves the right at any time during the term of the Agreement to
change the amounts and types of insurance required by giving the Consultant 90
days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increased benefit to the City.
13.For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any
steps that can be deemed to be in furtherance of or towards performance of this
Agreement.
14.Consultant acknowledges and agrees that any actual or alleged failure on the
part of the City to inform Consultant of non-compliance with an insurance
requirement in no way imposes any additional obligations to the City nor does it
waive any rights hereunder in this or any other regard.
15.Consultant will renew the required coverage annually as long as the City, or its
employees or agents face an exposure from operations of any type pursuant to
this Agreement. This obligation applies whether or not the Agreement is canceled
or terminated for any reason. Termination of this obligation is not effective until
the City executes a written statement to that effect.
Page 11 of 79 178
16.Consultant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has
been ordered shall be submitted prior to expiration. A coverage binder or letter
from Consultant’s insurance agent to this effect is acceptable. A certificate of
insurance and/or additional insured endorsement as required in these
specifications applicable to the renewing or new coverage must be provided to
the City within five days of the expiration of coverage.
17.The provisions of any Workers’ Compensation or similar act will not limit the
obligations of Consultant under this Agreement. Consultant expressly agrees not
to use any statutory immunity defenses under such laws with respect to the City,
its employees, officials, and agents.
18.Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits, or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a
given issue, and is not intended by any party or insured to be limiting or all-
inclusive.
19.These insurance requirements are intended to be separate and distinct from any
other provision in this Agreement and are intended by the parties here to be
interpreted as such.
20.The requirements in this section supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts or
impairs the provisions of this section.
21.Consultant agrees to be responsible for ensuring that no contract used by any
party involved in any way with the Work reserves the right to charge the City or
Consultant for the cost of additional insurance coverage required by this
Agreement. Any such provisions are to be deleted with reference to the City. It is
not the intent of the City to reimburse any third party for the cost of complying
with these requirements. There shall be no recourse against the City for payment
of premiums or other amounts with respect thereto.
22.Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this Agreement. The
City assumes no obligation or liability by such notice, but has the right (but not
the duty) to monitor the handling of any such claim or claims if they are likely to
involve the City.
Page 12 of 79 179
Explanation of Quote:3.1 Migration Remote Services & Adding Modules - Updated to Include Quest Tablets
City of Moorpark, Recreation DivisionPrepared For:
Stephanie Anderson, Recreation Services Manager
Contact Email:
Contact Name:
sanderson@moorparkca.gov
Dave Wirtz (Director of Sales)
Toll Free:
Email:davew@VermontSystems.com
877-883-8757
Prepared By:
Contact Phone:805-517-6302
Direct Phone:802-276-5447
Updated 2/23/2021 - To Include Tablets
3.1 Migration Services
POS Module
League Scheduling Module
Moorpark, CA
Notes:
Services (recurring)Qty Unit Price Monthly Price
Software Subscription
POS/Inventory/Tickets †(2)1 $50.00 $50.00 $600.00
League Scheduling †(3)1 $50.00 $50.00 $600.00
Tax:$0.00
Total:$1,200.00
Hardware & Supplies Qty Unit Price Price
Tablet
Quest V3 10" Win 10, B/T, Battery, MSR, Power Adapter,
Charge Cradle, Hand Strap †(9)
3 $1,290.00 $3,870.00
Tablet Accessories
Quest V3 10" Premium Docking w/4USB,1COM,1LAN Ports 3 $175.00 $525.00
Quest V3 10" Tablet 1 Year No Fault Warranty †(6)3 $120.00 $360.00
Quest V3 10" Holster Neck Strap 3 $40.00 $120.00
Quest V3 10" External USB Port Cover 3 $40.00 $120.00
Shipping (FOB Origin):$120.00
Tax:$0.00
Total:$5,115.00
Training & Expenses Qty Unit Unit Price Price
Remote 3.1 Migration 24.0 Hour $125.00 $3,000.00
Remote 3.1 Migration - Dedicated Day 2.0 Day $800.00 $1,600.00
POS Set up & Training - REMOTE 8.0 Hour $125.00 $1,000.00
League Scheduling Set up & Training - REMOTE 6.0 Hour $125.00 $750.00
Tax:$0.00
Total:$6,350.00
TOTALS:
Services (recurring) (prorated year 1)$1,200.00
Hardware & Supplies $5,115.00
Training & Expenses $6,350.00
Total:$12,665.00
For planning purposes, the annual recurring cost will be: $1,200.00
1www.vermontsystems.com
sales@vermontsystems.com
Quote Number: QUO-07665-G6X3G3
02/24/2021
Software Pricing is valid for 120 Days
Hardware Pricing is Subject to Change
EXHIBIT B
Page 13 of 79 180
$) VERMONT SYSTEMS
† Footnotes:
2 POS/INVENTORY/TICKETS NOTES:
> Touchscreen-based inventory sales
> Complete POS inventory control
> Manage tickets, gift cards and service items
> UPC barcode integration
> Full range of certified POS hardware
This rate is based on a one year subscription commitment.
3 LEAGUE SCHEDULING NOTES:
> Manage league play, teams, and players
> Record scores and track standings
> Manage single and double elimination tournaments
> Roster draft options for team creation
This rate is based on a one year subscription commitment.
6 Covers physical damage.
9 Quest V3 Intel Atom X7-8700 1.6 GHz w/Burst 2.56GHz, 10" Black Screen, 4GB, Win 10 Pro, Bluetooth, Wireless, Battery, MSR, Power Adapter,
Charging Cradle, Hand Strap, USB A/Cable (No Camera, No NFC)
2www.vermontsystems.com
sales@vermontsystems.com
Quote Number: QUO-07665-G6X3G3
02/24/2021
Software Pricing is valid for 120 Days
Hardware Pricing is Subject to Change
Page 14 of 79 181
$) VERMONT SYSTEMS
SERVICES AGREEMENT
This Services Agreement is entered into on [___________] (“Effective Date”) by and between RECTRAC, LLC
d/b/a VERMONT SYSTEMS, a Delaware limited liability company having its principal address at 12 Market Place,
Essex Junction, VT 05452 (“VS,” “Licensor,” “we,” “our,” or “us”) and the customer identified in Section 1 below
(“Customer,” “Licensee,” “you” or “your”) (each a “Party,” and, collectively, the “Parties”). This Services
Agreement, including all attachments, schedules, exhibits or Addenda referenced herein, shall collectively
comprise the “Agreement” between you and us. Terms not defined below shall have the meanings as set forth in
Section 1 of the Terms of Service.
1. CUSTOMER INFORMATION
Customer Name (Legal Entity) Doing Business As (if applicable)
CITY OF MOORPARK
Office Address
799 MOORPARK AVENUE, MOORPARK CA 93021
Business Address (if business is located somewhere other than the office address)
4550 TIERRA REJADA ROAD, MOORPARK CA 93021
Customer’s General Contact (for all matters under the Agreement) General Contact
Phone General Contact Email
STEPHANIE ANDERSON (805) 517-6300 SANDERSON@MOORPARKCA.GOV
Customer’s Billing Contact (for billing matters under the
Agreement)Billing Contact Phone Billing Contact Email
STEPHANIE ANDERSON (805) 517-6300 SANDERSON@MOORPARKCA.GOV
VS Customer Lead VS Lead Phone VS Lead Email
2.TERM
Initial Term: 36 months. The Initial Term will commence on the first day of the month in which the software is
implemented and available for the Customer’s use and will end 36 consecutive months later.
Renewal Term: 12 months. Unless Customer provides written notice of cancellation at least 90 days prior to the
expiration of the applicable Term, the Agreement will automatically renew for another 12 month term.
EXHIBIT C
Page 15 of 79 182
3. SERVICES & FEES
You are contracting to receive the Services, and to pay the Fees, as more specifically described in the Order
Schedule. The Order Schedule is attached hereto and incorporated by reference herein.
4.PAYMENT SERVICES
You are choosing the following Payment Services option:
☐ VS Gateway Partner
Processing
Customer is choosing to use the VS platform and a payment Gateway option for
Payment Services. Customer is required to enter into a separate agreement with
approved Gateway partner.
☐VS PayTrac
Payment Processing
Customer is choosing to use the VS PayTrac Payment Processing platform for Payment
Services. Customer is required to enter into an additional, separate Sub-Merchant
Agreement made part of the Agreement.
5.HOSTING
Customer is choosing the following hosting option:
☒ Customer Hosted Customer hosts data locally, on its own servers. VS has no responsibility for
maintaining and/or securing Customer Data on Customer’s servers.
☐VS Hosted VS hosts Customer Data on VS-controlled and maintained servers. Any VS hosting will
be subject to all hosting policies as described in the VS Terms of Service.
6.TERMS OF SERVICE
Customer has read, understands and agrees to VS’s Terms of Service, which shall be incorporated and considered
part of this Agreement. VS’s Terms of Service may be accessed here.
7.PRIVACY & SECURITY
Customer has read, understands and agrees to VS’s Privacy Policy, which shall be incorporated and considered
part of this Agreement. VS’s Privacy Policy may be accessed here.
Page 16 of 79 183
8. SERVICE LEVEL COMMITMENT
Customer has read, understands and agrees to VS’s Service Level Agreements, each of which shall be considered
part of this Agreement. VS’s Service Level Agreement is attached hereto and incorporated by reference herein.
ACCEPTANCE
Customer acknowledges that it has read, understands and accepts the Agreement as written, inclusive of all
attachments, schedules or exhibits, as may be revised, and agrees to pay all Fees and all other charges permitted
by the Agreement. The individual signing the Agreement on behalf of Customer acknowledges that he/she has
the proper legal authority to act on the Customer’s behalf and to bind the Customer to this Agreement.
AGREED TO BY CUSTOMERS:
Customer:
_________________________________ _____________________
Printname: Date
Title:
ACCEPTED BY VERMONT SYSTEMS
RecTrac, LLC.
_________________________________ _____________________
Printname: Date
Title:
Page 17 of 79 184
TERMS OF SERVICE
1.DEFINITIONS. Capitalized terms used but not
otherwise defined in these Terms of Service will
have the meaning ascribed to such terms in the
Services Agreement or other applicable Addenda.
"Addendum" or "Addenda" means a document
added to the Agreement containing new or
supplemental terms.
"Agreement" means the Services Agreement and
any attachments, schedules or exhibits referenced
therein, which could include the Order Schedule,
Privacy Policy, Terms of Service, Service Level
Agreement, Statement of Work, Sub -Merchant
Agreement, or any later-signed Addenda.
"Billing Period" means the period of time covered
by a single recurring dues fee for Services. Unless
otherwise noted, a Billing Period will be billed in
advance and will cover a period of one (1) year.
"Cardholder Data" is a subset of Customer Data
and generally includes a Patron's name, billing
address, credit card number, expiration date and
CVV code.
"Confidential Information" means any and all
information disclosed by either party to the other
which is marked "confidential" or "proprietary" or
which the recipient knows or has reason to know is
regarded by the disclosing party as such, including
information disclosed orally. "Confidential
Information" does not include any information that
the receiving party can demonstrate by its written
records: (a) was known to it prior to its disclosure
hereunder by the disclosing party; (b) is or
becomes known through no wrongful act of the
receiving party; (c) has been rightfully received
from a third party authorized to make such a
disclosure; (d) is independently developed by the
receiving party; (e) has been approved for release
with the disclosing party's prior written
authorization; or (f) has been disclosed by court
order or as otherwise required by law, provided
that the party required to disclose the information
provides prompt advance notice to enable the
other party to seek a protective order or otherwise
prevent such disclosure.
"Customer" is a VS customer. The Customer is the
individual, business entity, non-profit, military
branch, or municipality contracting with us to
receive Services as more specifically identified in
the Services Agreement. Customer may also be
referred to in the Agreement as "you," "your" or
"Licensee."
"Customer Data" is the content, information or
data which you, your End Users and/or your
Patrons enter into the Software associated with
our Services. Customer Data may include Patron
Data, among other types of data.
"Effective Date" shall have the meaning as set
forth in the Services Agreement.
"End Users" are your authorized users of the
Software associated with our Services. Those
licenses associated with a Customer's concurrent
End Users will be listed in the Order Schedule.
"Fees" mean any and all fees associated with the
use of our Services, including (but not limited to)
Software Fees, Hosting Fees, Support Fees, any
fees associated with our Payment Services, and/or
any fees associated with Professional Services, as
well as any other fees or charges permitted by the
Agreement. Fees may be recurring, non-recurring,
or one-time, as more specifically described in the
Order Schedule.
"Hardware" means the computer equipment,
point-of-sale terminals, or other technical
hardware distributed by us or by a reseller on our
behalf. Hardware may contain firmware or
software.
Page 18 of 79 185
"Hosting Fees" mean the fees associated with the
hosting of Customer Data on our VS-controlled
servers and systems.
"Initial Term" is the initial term for Services, as
described in the Services Agreement.
"Intellectual Property Rights" means all patents,
rights to inventions, utility models, copyright and
related rights, trademarks, service marks, trade,
business and domain names, rights in trade dress
or get-up, rights in goodwill or to sue for passing
off, unfair competition rights, rights in designs,
rights in computer software, database rights, moral
rights, rights in confidential information (including
know-how and trade secrets) and any other
intellectual property rights, in each case whether
registered or unregistered and including all
applications for and renewals or extensions of such
rights, and all similar or equivalent rights or forms
of protection in any part of the world.
"Order Schedule" means the schedule in the
Agreement which itemizes and describes the
Services we are willing to provide to you and any
specific fees you are agreeing to pay us for such
Services.
"Patron(s)" mean(s) the individuals who purchase
your products and/or services and who otherwise
interact with the Software associated with our
Services. Patrons are your customers, clients or
members.
"Patron Data" means information about Patrons
entered into the Software by you, your End Users
or your Patrons. Patron Data may include (but is
not limited to) personally identifiable information
and/or Cardholder Data.
"Payment Services" means the payment and
billing-related services that we may provide to you
under the Agreement. Payment Services may be
described in the Order Schedule or in a separate
Addendum, and your receipt of Payment Services
requires that you enter into a separate Sub-
Merchant Agreement with us.
"Professional Services" are any professional
services provided outside of our initial
unconfigured install of the Software associated
with our Services. Professional services may
include consulting, custom development work,
implementation, supplemental or onsite training,
remote training, or projects which generally fall
outside the scope of the Agreement. Unless
otherwise agreed, Professional Services will be
documented under a separate Statement of Work
and signed by the Parties.
"Services" mean any and all of those products
and/or services offered by us to you under the
Agreement. Services may include products or
services related to software, hosting, hardware,
implementation, support, training and/or
payments. A specific itemization of Services can be
found in the Order Schedule.
"Services Agreement" means the contract
between you and us for Services. The Services
Agreement, together with any attachments,
schedules or exhibits referenced therein, is broadly
referred to as the "Agreement" between you and
us.
"Software" means our proprietary technology
software and any and all associated modules,
websites, third party integrations and/or mobile
applications (if applicable).
"Software Fees" mean those fees associated with
your access to and use of our Software or any
component thereof. We may charge Software Fees
monthly, quarterly or annually, as more specifically
described in the Order Schedule.
"Sub-Merchant Agreement" means our Sub-
Merchant Application and Agreement and Payment
Service Terms and Conditions, which govern the
terms and conditions under which we are willing to
provide our Payment Services.
"Support Fees" mean those fees associated with
our Support Desk, which enables customer support
through live channels like phone and chat. We may
charge Support Fees monthly, quarterly or
Page 19 of 79 186
annually, as more specifically described in the
Order Schedule.
"Renewal Term" means the period which
immediately follows the expiration of the Initial
Term, as described in the Services Agreement.
"Team" includes VS's employees, officers,
directors, owners, attorneys, affiliates or
representatives.
"Term" means the term for Services and includes
both the Initial Term and any Renewal Terms, as
applicable.
"VS" means RecTrac, LLC d/b/a Vermont Systems
and its subsidiaries, successors and assigns. VS's
business address is 12 Market Place, Essex
Junction, VT 05452. VS may also be referred to in
the Agreement as "Licensor," "we," "our," or "us."
2. ACCEPTANCE. You accept the terms of the
Agreement when you (a) click-sign your acceptance
to an online version of the Services Agreement; (b)
sign a hardcopy of the Services Agreement; and/or
(c) access the Services or otherwise accept the
benefits of Services. You expressly acknowledge
that the person accepting the Agreement on your
behalf has the proper legal authority to bind you as
the Customer.
3. GRANT OF RIGHTS.
3.1 Grant of Rights by VS. Upon the Effective Date,
and subject to your timely payment of Fees and
remaining in compliance with the Agreement, we
grant to you a limited term, worldwide, non -
exclusive, non-transferrable, non-assignable license
to access and use our Services, including the
Software, during the Term solely for the lawful
operation of your business. The licensed rights
described herein shall be limited to End Users
authorized by you to access and use the Software,
and your Patrons who have a legitimate right to
access and use your products and/or services. The
licensed rights conferred herein do not constitute a
sale and do not convey to you or any third party
any right of ownership in or to our Services,
including the Software, or any of our Intellectual
Property Rights. Upon termination of the
Agreement for any reason, any rights granted by us
to you will automatically and without notice
terminate. The method and means of providing the
Services shall be under our exclusive control,
management and supervision, although we will try
to give your specific requests due consideration.
Any rights not specifically granted under the
Agreement are expressly reserved.
3.2 Grant of Rights by Customer. Upon the
Effective Date, and subject to our remaining in
compliance with the Agreement, you grant to us a
limited term, worldwide, non-exclusive license to
access and use your Customer Data (including any
Patron Data, as applicable) to deliver, monitor and
maintain the Services in accordance with the
Agreement. Any rights not specifically granted
under the Agreement are expressly reserved.
3.3 Excess Use. We will provide you with the
number of authorized End User licenses as set
forth in the Order Schedule to access and use the
Software. You shall have access to functionalities in
the Software that can generate reports indicating
the number of authorized End Users accessing the
Software at any given time. In the event that the
number of concurrent End Users excee ds the
number of allocated licenses described in the
Order Schedule ("Excess Use"), we will notify you
by email about such Excess Use and, if you do not
reduce the Excess Use within 30 days of such
notice, you will be required to pay for any Excess
Use with additional licenses, which shall be
described in a new invoice and which will
automatically update the Order Schedule.
3.4 Prohibited Use. You shall not use our Services
in violation of the law, whether local, state or
federal (including but not limited to the CAN-SPAM
Act, the Telephone Consumer Protection Act, the
Do-Not-Call Implementation Act, the Americans
with Disabilities Act, or any consumer protection
statute); to intentionally bypass a security
mechanism in the System(s); to reverse-engineer
the System(s), or any component thereof,
regardless of the reason why; in a way that
Page 20 of 79 187
adversely impacts the availability, reliability or
stability of the System(s), or any component
thereof; to intentionally transmit material using
the System(s) which contains viruses, Trojan
horses, worms or some other harmful computer
program; to send unsolicited advertising,
marketing or promotional materials, whether by
email or text, without the recipient's legally-valid
consent; to commit fraud; to transmit material that
infringes on the intellectual property right of
others; to transmit material that is harassing,
discriminatory, defamatory, vulgar, pornographic,
or harmful to others; or in violation of this
Agreement. Violation of this Prohibited Use policy
may result in immediate suspension or
discontinuation of Services, or legal action which
could result in civil damages or criminal
punishment.
4. TERM; TERMINATION.
4.1 Term. You will be obligated to the Term as
described in the Services Agreement, including any
auto-renewal provisions.
4.2 Termination for Cause. Prior to expiration of
the Initial Term, either you or we may terminate
the Agreement for cause (a) upon 30 days written
notice to the other party of a material breach if
such breach remains uncured at the expiration of
such period; (b) if the other party becomes the
subject of a petition in bankruptcy or any other
proceeding relating to insolvency, receivership,
liquidation or assignment for the benefit of
creditors; or (c) if the other party dissolves or
ceases to do business in the ordinary course. If our
termination of the Agreement is for cause, then
you shall remain liable for any Fees covering the
remainder of the Initial Term, or a Renewal Term,
as applicable, after the effective date of such
termination. Termination for cause will not
preclude the non-breaching party from exercising
any other rights or remedies permitted by law.
4.3 Termination for Convenience (Without Cause).
We shall have a right to terminate the Agreement
for convenience (meaning without cause) at any
time during the Term with a 30-day written notice.
You shall not be permitted to terminate the
Agreement for convenience during the Initial Term;
provided, however, that once you are in a Renewal
Term, you may terminate the Agreement at any
time with a 90-day advance written notice.
4.4 Termination Notice. For termination to be
considered effective, you must send your
termination notice in writing to Vermont Systems,
Inc. at 12 Market Place, Essex Junction, VT 05452.
5. FEES; PAYMENT TERMS.
5.1 Payment of Fees. You agree to pay us all Fees
permitted by the Agreement. Fees for specific
Services are described in the Order Schedule and
may be set up to bill quarterly or annually, as we
and you may decide. All Fees are based on Services
provided, not on your actual usage. Except as
permitted by the Agreement, all Fees paid are non -
refundable.
5.2 Fee Commencement. Payment for the
software subscription and hosting is invoiced and
due in full when the initial out of the box, base
software URL is emailed to you. This typically
occurs less than 30 days after the project "kickoff"
date.
5.3 Due Date; Late Fees; Interest. Payment is due
within 30 days from the date you receive our
invoice (the "Due Date"). If you do not pay our
invoice by the Due Date, then we may charge you a
late fee of $100. All payments are due in U.S.
dollars. Unpaid balances owed to us will accrue
interest at the rate of 1.5% per month.
5.4 Error Reporting. Please report any errors that
you see on an invoice immediately. If you do not
dispute a charge within 30 days after receiving it,
you will be considered to have accepted the
charge.
5.5 COLT Increase. After the Initial Term, all Fees
shall be subject to a cost of living and technology
("COLT") enhancement increase not to exceed five
percent (5%) of then current Fees. VS reserves the
right to apply the COLT enhancement to any Fees
Page 21 of 79 188
at the start of each Renewal Term, in its sole and
absolute discretion.
5.6 Breach for Non-Payment of Fees. Payment not
made within 30 days of the Due Date will result in
an automatic breach of the Agreement and start
the clock on a 20-day period in which to cure. If
payment is still not received by the 51st day after
the scheduled Due Date, we reserve the right to
suspend Services until all outstanding Fees are
paid. Continued non-payment of Fees more than
60 days after the Due Date will result in a default
under the Agreement. In the event of default, all
payments otherwise due to us under the
Agreement will be accelerated and will be
considered due and payable by you immediately,
as of the date of default. We shall have no
obligation to release any of your Customer Data
until all outstanding Fees are paid in full.
5.6. Taxes. If you are a tax-exempt organization,
then this provision does not apply. We have no
obligation to pay your taxes under any
circumstances. Taxes may include value-added tax
(VAT), a goods and service tax (GST), a sales tax, or
use or withholding taxes assessed by a local, state,
federal, provincial or foreign government entity
(collectively, "Taxes"). Please make sure that you
have taken appropriate steps to pay your Taxes.
We are obligated to comply with all valid tax liens
or levies associated with your business. If we must
pay Taxes on your behalf, you agree to indemnify
us for any such payments within 30 days from your
receipt of a special tax-related invoice.
6. MODIFICATIONS.
6.1 Changing the Terms of Service. We reserve the
right to modify these Terms of Service by posting a
revised Terms of Service on our website and
sending you notice that they have changed to your
email address on record. Modifications will not
apply retroactively. You are responsible for
reviewing and becoming familiar with any
modifications. At times we may, but shall not be
required to, ask you to review and to explicitly
agree to or reject a revised version of the Terms of
Service. In such cases, modifications will become
effective at the time you sign your consent to the
modified Terms of Service. In cases where we do
not ask for your explicit consent to a modified
version of the Terms of Service, but otherwise
provide notice as set forth above, the modified
version of the Terms of Service will become
effective 14 days after we have posted the
modified Terms of Service and provided you with
notification. Your continued use of Services
following that period constitutes your acceptance
of the Terms of Service as modified. If you do not
agree with the changes to the modified Terms of
Service, you are required to notify us of such within
the same 14-day period and we will have the sole
right to decide whether to revert to the original
Terms of Service or insist on the changed Terms of
Service and permit you to terminate the
Agreement without cause and without penalty.
6.2 Changing the Order Schedule. You may add or
remove Services during the Term at any time
provided that we agree to such changes. We
reserve the right to change our fees and/or
introduce new charges at any time with at least 30
days prior notice to you, which notice may be
provided by email. Regardless of whether our
discussion with you about changes in Services
occurred verbally or in writing, we will document
any Service changes in an updated invoice which
we will send to you for review. If you disagree with
the Service change, as reflected in the invoice,
please notify us immediately. If you pay the
updated invoice, accept the benefits of any added
Services, or fail to object to the updated invoice
within 14 days after you receive it, we will consider
you to have accepted the changes, which will be
considered a valid modification of any Order
Schedule then in place (which will, in turn, update
the Agreement automatically).
6.3 Other Changes to the Agreement. Except as
otherwise described in this Section, no
modification of the Agreement will be binding
unless in writing and manually signed by an
authorized representative of the parties.
Page 22 of 79 189
7. CUSTOMER DATA.
7.1 Customer Data Generally. You represent and
warrant that you own or have appropriate rights to
all of your Customer Data. You shall have sole
responsibility for the accuracy, quality, integrity,
legality, reliability, appropriateness, and
intellectual property ownership or rights to use of
all Customer Data (including Patron Data, as
applicable). Except as specifically provided for in
the Agreement, we shall not be responsible or
liable for the deletion, correction, destruction,
damage, loss or failure to store any of your
Customer Data.
7.2 Hosting Obligations. Hosting of Customer Data
on VS-controlled servers and systems does not
come standard with all Agreements; Customers
must specifically contract for hosting services and
pay all associated Hosting Fees. IF VS CUSTMOMER
DOES NOT SELECT VS's HOSTING SERVICES, AND
INSTEAD CHOOSE TO HOST CUSTOMER DATA ON
ITS OWN SYSTEMS AND SERVICES, THEN WE
MAKE NO WARRANTIES AND DISCLAIM ALL
LIABILITY ASSOICIATED WITH SUCH CUSTOMER
DATA OR CUSTOMER’S OWN HOSTING
ACTIVITIES, INCLUDING (BUT NOT LIMITED TO)
INCIDENTS RESULTING IN data breach,
MISAPPROPRIATION OF CUSTOMER DATA,
VIOLATIONS OF PRIVACY RIGHTS, AND/OR ANY
OTHER SITUATION RESULTING IN DAMAGES OR
MONETARY LOSS ARISING OUT OF OR RELATING
TO THE HOSTING OR STORAGE OF CUSTOMER
DATA. If Customer chooses VS for hosting services,
and we actually store Customer Data on a VS-
controlled system or service, then, in addition to
those terms and conditions described in our
Privacy Policy, and provided Customer remains
current in its payment of Hosting Fees and
otherwise compliant with the Agreement, then we
make the following limited representations and
warranties with respect to our hosting services: we
will, at all times during the Term of the Agreement:
(a) maintain a comprehensive data security
program which includes reasonable and
appropriate technical, organizational and security
measures against the destruction, loss,
unauthorized access or alteration of Customer
Data (including Patron Data, as applicable) which
measures will be no less rigorous than the
accepted security standards for similarly situated
companies in the industry; and (b) provide our
hosting services in a good and workmanlike
manner; and (c) offer hosting services which, to the
best of our knowledge, comply with applicable
local, state or federal laws. The limited
representations and warranties described herein
shall be subject to any other limitations of liability
described by the Agreement.
7.3 Return of Customer Data. If we are providing
you with hosting services, then you shall have
access to your Customer Data (including Patron
Data, as applicable) for the duration of the Term,
subject to the terms and conditions of the
Agreement. Upon termination of the Agreement,
or where you properly cancel hosting services
during the Term, your access to any VS -hosted
Customer Data will end immediately on the same
day in which you cancel or terminate the
Agreement; provided, however, that you may
request continued access to your Customer Data
for a period not to exceed 30 days (unless we
specifically agree otherwise) and subject to
additional fees for the limited purpose of
transferring your Customer Data to your own
systems or servers. Upon termination of the
Agreement, or cancellation of your hosting services
with us, we may, but shall not be required to, store
or hold your Customer Data on our servers at our
cost and expense, or immediately destroy your
Customer Data unless prohibited by applicable law.
Notwithstanding the foregoing, we reserve the
right to maintain a copy of any other record, book,
file and other data, as specified in the Agreement
and in such detail as shall properly substantiate
claims for payment, for a minimum of one (1) year
beginning on the first day after the Agreement is
properly terminated, or for such longer period as
may be necessary for the resolution of any dispute,
negotiation, audit, or other inquiry involving the
Agreement.
Page 23 of 79 190
8. SPLASH PAGE. We disclaim all liability with
respect to the WebTrac splash page including (but
not limited to) compliance with Section 508 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. §
794d), and its implementing regulations set forth
at Title 36, Code of Federal Regulations, part 1194,
the Americans with Disabilities Act, or any other
applicable federal or state laws or regulations
relating to accessibility for persons with disabilities.
9. HARDWARE. We shall have no obligation to
provide you with the Hardware necessary to access
our Services or use our Software. Any Hardware
used must comply with our minimum system
requirements. If we choose to provide you with
Hardware, a description of such Hardware and
pricing will be described in your Order Schedule. In
the absence of specified pricing, we may provide
you with Hardware at our then-current market
rates. Full payment for Hardware and any related
third-party software is due following delivery. The
verification process must be completed so that all
payments can be made within 30 days of delivery.
Any VS-supplied Hardware will include warranties
from the manufacturer or distributor, as
applicable, for a specific period. We offer no
warranties on Hardware.
10. INSTALLATION; TRAINING. We will provide an
initial unconfigured install of the Software as part
of the Fees you pay for Services. Subsequent
installations or software configuration will be
subject to additional charges on a "time and
materials" basis at our standard rates. Based upon
on a mutually agreed implementation plan, we will
provide training and setup services at our standard
rates (plus expenses - if any incurred).
Implementation and Training may be performed
remotely or on-site. We also offer access to online
training materials, including: user reference
manuals, installation planning guides, report
listings, "FasTrac" how to videos, online help, and a
sample training database with tutorials. You may
request follow-up or additional trainings at our
then-current hourly rates, and subject to
scheduling availability. Unless we agree otherwise,
any additional training will occur online (remote).
You may request on-site training at our then-
current day rates, subject to scheduling availability.
For on-site training, you will be responsible for all
VS expenses associated with travel, lodging, meals
and other necessary expenses associated to the
project.
If scheduled training is cancelled with less than
three (3) weeks' notice, you will be responsible for
any travel expense losses, plus an additional
rescheduling/cancellation fee of 10% of the price
per scheduled block of time/minimum $125.00.
On-site and/or remote training booked over a
weekend or holiday may be subject to additional
charges
11. CUSTOMER SUPPORT.
11.1 Standard Support. All Customers receiving
our Services will receive "Standard Support"
services, which includes online support and access
to a VS support documentation library. Online
support includes access to an online knowledge
database, support videos accessible through the VS
website, e-learning content and the ability to
participate at no additional cost in periodic live
webinars offered from time to time by VS. The VS
support documentation library is accessible
through the VS website and includes access to user
reference manuals, installation planning guides,
report listings, online help and a sample training
database with tutorials. Customers can print any
number of copies needed to train staff and manage
their business operation. Customers can access
standard support channels online, 24 hours a day,
7 days a week. VS's standard support services are
included with Customer's payment of Software
Fees.
11.2 Premium Support (Support Desk). Customers
choosing our "Premium Support" service will
receive access to our award-winning "Support
Desk," which, in addition to Standard Support,
makes certain channels available to Customers like
phone and chat support with a live VS support
agent. Customers receiving Premium Support shall
be responsible for paying Support Fees as
Page 24 of 79 191
described in the Order Schedule. The Support Desk
is open for call-in phone support five (5) days a
week, Monday through Friday, 8 am ET to 8 pm ET;
real-time chat support is available five (5) days a
week, Monday through Friday, 8 am ET to 5 pm ET.
Premium Support includes online portal case
creation, email assistance and call-back services,
and Customer ability to choose remote -in live
support services via Zoom or Microsoft Teams.
11.3 Customer Support Not Provided. Regardless
of whether you are a Standard Support or Premium
Support Customer, we do not provide the following
customer support services as part of the
Agreement: (a) actual usage of standard hour
pager support, 8 pm ET to 8 am ET, Monday
through Friday, and Saturday, Sunday and holidays,
24 hours, 7 days a week; (b) travel and out-of -
pocket expenses for installation and on -site
training services; (c) telephone support related to
computer hardware, operating systems,
networking, reinstallation and configuration of
application software (including VIC), point-of -sale
hardware, and access control hardware; (d)
telephone support and/or training as a substitute
for on-site training or classroom training; (e) VS
application software WAN access configuration; (f)
customized discovery, custom programming,
development, and maintenance; (g) interfaces to
export or import data from or to other application
software databases; and (h) extended dedicated
support to implement or change certain functions,
such as switching from cash to accrual accounting
or customizing WebTrac splash page; (i) performing
periodic VS software updates if database is on -
premises; (j) purchase installation or configuration
of SSL certificates for on-premises configurations;
and (k) data entry or database management. VS
may provide some of these Services under a
separate engagement, the terms of which should
be agreed upon and documented in a signed
Statement of Work.
11.4. Remote Access Authorization. We will
provide you with on-going support or updates for
the proper functioning of our Services, including
the Software, which we can only provide or make
available through remote access to your
technology systems. By using our Services, or
accessing our Software, you expressly authorize us
to access your technology systems remotely for the
limited purpose of providing you with any support
or updates relevant to our Services. You shall be
solely liability for the cost, interoperability, proper
functioning, and security of any remote access
facilities or methods used by you, and we shall not
be deemed to be in violation of our obligations to
you, nor in breach of the Agreement, as the result
of our inability to remotely access your technology
systems. Our right of remote access as described
herein shall be deemed a continuing right until
such time as the Agreement terminates, for any
reason. We agree to use commercially reasonable
efforts to comply with any of your published
security-related protocols when remotely accessing
your technology systems.
12. PAYMENT SERVICES. To be eligible for Payment
Services, you must complete our Sub-Merchant
Application and submit it to VS Company
underwriting for approval. Once accepted, your
Sub-Merchant Application will convert to a Sub-
Merchant Agreement, inclusive of the Sub-
Merchant Application and Agreement (SMAA) and
our Payment Service Terms and Conditions, which
shall be considered part of the Agreement.
13. PROFESSIONAL SERVICES. We reserve the right
to provide you with an estimate of fees for
Professional Services based on the approximate
number of hours we think will be reasonably
required to complete an engagement, multiplied
by a fixed hourly rate. If we underestimate the fees
for Professional Services based on work actually
performed, you will be responsible any cost
overruns at the same hourly rate. We will invoice
you separately for cost overruns. To help you track
and plan for any cost overruns, we will track our
actual Professional Service hours and, upon written
request, provide you with a weekly time report.
Any specific details of an engagement for
Professional Services should be described in a
Statement of Work and signed by the parties. Any
Page 25 of 79 192
fees for Professional Services will be considered
part of the Fees owed under the Agreement.
14. CUSTOM DEVELOPMENT. While we welcome
any suggestions or comments you might have
about how we can improve our products and
services, we do not custom develop our Services
(including the Software) to suit the business needs
of any particular client. We will consider all
suggested improvements to the Services, and, as
we determine, will incorporate any approved items
to our development roadmap. If there is a feature
or functionality that you would like to see added to
our Services, and you would like the project
completed on a certain timeline, you can make a
custom development request and, based on our
staffing and other considerations, we will scope the
project and provide you with a written quote which
you can accept or reject. Custom development
work will be considered a separate engagement for
Professional Services and will be billed outside of
the Agreement. Custom development work shall
not be considered work-for-hire. We will own and
control any product outcome of the engagement
and we reserve the right to incorporate any new
feature or functionality into our larger product or
service offerings.
15. OWNERSHIP RIGHTS.
15.1 What Belongs to VS. We reserve all title and
interest to our Intellectual Property Rights. We
alone own our Intellectual Property Rights, in
addition to any suggestions, ideas, enhancement
requests, feedback, recommendations, or other
information provided by you or any other party
relating to our Services. In addition, we retain all
rights, title and interest in and to our Software and
any splash page designs that we may create and/or
maintain on your behalf and license to you. The
Vermont Systems™, VS™ and VS Payments ™ names
and logos are registered trademarks of Vermont
Systems and no right or license is granted to use
them without our express written permission.
15.2 What Belongs to Customer. With the
exception of Patron Data (which remains the
property of individual Patrons), you reserve all
rights, title and interest to your Customer Data.
You own all rights, title and interest to Customer
trademarks, service marks and other intellectual
property. We reserve the right to withhold, remove
and/or discard your Customer Data without notice
for any breach, including without limitation, your
non-payment of Fees.
16. CONFIDENTIALITY. A party (the "Receiving
Party") shall not disclose the disclosing party's (the
"Disclosing Party") Confidential Information to any
person or entity, except to the Receiving Party's
employees who have a need to know the
Confidential Information for the Receiving Party to
exercise its rights or perform its obligations under
the Agreement. Notwithstanding the foregoing,
each party may disclose Confidential Information
to the limited extent required (a) in order to
comply with the order of a court or other
governmental body, or as otherwise necessary to
comply with applicable law, provided that the
party making the disclosure pursuant to the order
shall first have given written notice to the other
party and made a reasonable effort to obtain a
protective order; or (b) to establish a party's rights
under this Agreement, including to make required
court filings. Each Party's obligations of non -
disclosure with regard to Confidential Information
are effective as of the Effective Date and will expire
one year after the termination of the Agreement;
provided, however, with respect to any
Confidential Information that constitutes a trade
secret (as determined under applicable law), such
obligations of non-disclosure will survive the
termination or expiration of the Agreement for as
long as such Confidential Information remains
subject to trade secret protection under applicable
law.
17. PROTECTION OF EDUCATIONAL
INFORMATION. We understand and acknowledge
that in the performance of our Services, we may
have access to private and confidential inf ormation
regarding students, parents, guardians, faculty,
donors, employees, staff, alumni (collectively,
"Educational Information") that may be covered by
the federal Family Educational Rights and Privacy
Page 26 of 79 193
Act ("FERPA"), or similar state laws. We will not
disclose, copy, or modify any Educational
Information without your prior written consent, or
unless otherwise required by law. We will notify
you if we become aware of a possible unauthorized
disclosure or use of Educational Information.
18. LIMITED WARRANTIES. We represent and
warrant that (a) we own the appropriate rights to
license and/or sublicense our Services (including
the Software); (b) the Services (including the
Software) will conform with any then-available
published specifications; (c) to the best of our
knowledge, our Software is free of any viruses,
Trojan horses, malware, spyware, ransomware or
other harmful code; and (d) that there have been
no violations of copyrights or patent rights in
connection with the Services (including the
Software) offered. We do not warrant that the
Services (including the Software) will be entirely
free from defect or error. EXCEPT AS SPECIFICALLY
STATED HEREIN, THE SERVICES (INCLUDING THE
SOFTWARE) ARE BEING PROVIDED ON AN "AS IS"
BASIS, WITHOUT WARRANTY OF ANY KIND. EACH
PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED. No
advice or information, whether written or oral,
obtained from us, or any member of our Team, will
create any warranty not expressly made. If you are
a California resident, you waive California Civil
Code § 1542, which says: "A general release does
not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of
executing the release, which if known by him must
have materially affected his settlement with the
debtor."
19. LIMITATIONS OF LIABILITY.
19.1 EXCLUSIVE REMEDY. YOUR EXCLUSIVE
REMEDY FOR ANY FAILURE OF OUR OBLIGATIONS
UNDER THE AGREEMENT SHALL BE YOUR RIGHT
TO TERMINATE THE AGREEMENT FOR CAUSE AND
WITHOUT PENALTY, AND ANY CREDITS WHICH
MAY BE DUE UNDER AN APPLICABLE SERVICE
LEVEL AGREEMENT (IF A SERVICE LEVEL
AGREEMENT IS OFFERED AS PART OF THE
AGREEMENT).
19.2 EXCLUDED DAMAGES. IN NO EVENT SHALL
WE BE LIABLE OR RESPONSIBLE TO YOU FOR ANY
TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR
CONSEQUENTIAL DAMAGES, INCLUDI NG BUT NOT
LIMITED TO, LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS, LOSS OF TECHNOLOGY,
RIGHTS OR SERVICES, LOSS OF DATA, OR
INTERRUPTION OR LOSS OF USE OF SERVICES OR
EQUIPMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER
ARISING UNDER A THEORY OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE.
19.3 DAMAGES CAP. IN NO EVENT SHALL OUR
LIABILITY TO YOU OR ANY THIRD PARTY IN ANY
CIRCUMSTANCES EXCEED THE AMOUNT OF FEES
YOU ACTUALLY PAID TO US FOR SERVICES IN THE
THREE (3) MONTH PERIOD DIRECTLY PRIOR TO
THE ACTION GIVING RISE TO ALLEGED LIABILITY.
19.4 TIME LIMITATION. YOU FURTHER AGREE
THAT ANY CLAIM WHICH YOU MAY HAVE
AGAINST US MUST BE FILED WITHIN ONE (1) YEAR
AFTER SUCH CLAIM AROSE, OTHERWISE THE
CLAIM SHALL BE PERMANENTLY BARRED.
19.5 MATERIALITY. THE LIMITATIONS IN THIS
SECTION ARE A MATERIAL BASIS OF THE
BARGAIN, AND THE TERMS OF THE AGREEMENT
WOULD BE DIFFERENT WITHOUT SUCH
LIMITATIONS. THE LIMITATIONS IN THIS SECTION
ARE INTENDED TO APPLY WITHOUT REGARD TO
WHETHER OTHER PROVISIONS OF THE
AGREEMENT HAVE BEEN BREACHED OR HAVE
PROVEN INEFFECTIVE. MULTIPLE CLAIMS WILL
NOT ENLARGE ANY DAM AGES CAP DESCRIBED
HEREIN.
20. INDEMNIFICATION. You shall indemnify and
defend us (including any member of our Team) and
hold us harmless against any claim, suit, demand or
proceeding ("Claim") that arises from your actions,
your use or misuse, of the Services (including, but
not limited to, the Software); your breach of the
Page 27 of 79 194
Agreement or these Terms of Service; or your
infringement on someone else's rights, including
but not limited to, third party intellectual property
rights. We reserve the right to handle our own
legal defense however we see fit, even if you are
indemnifying us, in which case you agree to
cooperate with us so we can execute our strategy.
Our indemnity rights shall include all costs
associated with the Claim or Claims, including
attorneys' fees, court costs, dispute resolution
costs, and/or fees associated with collection.
21. DISPUTE RESOLUTION. Many concerns can be
resolved by calling us at (877) 883-8757. If a
dispute cannot be resolved informally, this Dispute
Resolution provision explains how claims (whether
by you against us, or by us against you) will be
resolved.
21.1 Definition. "Claim" means any current or
future claim, dispute or controversy relating in any
way to our Agreement. Claim includes (a) initial
claims, counterclaims, cross-claims and third-party
claims; (b) claims based upon contract, tort, fraud,
statute, regulation, common law and equity; and
(c) claims by or against any third party using or
providing any product, service or benefit in
connection with our Agreement or the Software.
21.2 Claim Notice. Before beginning a lawsuit,
mediation or arbitration, you and we agree to send
a notice (a "Claim Notice") to each party against
whom a Claim is asserted. The Claim Notice will
give you and us a chance to resolve our dispute
informally or in mediation. The Claim Notice must
describe the Claim and state the specific relief
demanded. Notice to you may be sent to your
current mailing address or email address on file.
You must provide your name, address and phone
number in your Claim Notice. Your Claim Notice
must be sent to Vermont Systems, Inc., ATTN:
Legal, 12 Market Place, Essex Junction, VT 05452.
21.3 Mediation. Before beginning mediation, you
or we must first send a Claim Notice. Within 30
days after sending or receiving a Claim Notice, you
or we may submit the Claim for mediation.
Mediation fees will be split equally, and the
location for mediation shall be mutually decided
between you and us. All mediation -related
communications are confidential, inadmissible in
court and not subject to discovery. All applicable
statutes of limitations will be tolled until
termination of the mediation. Either you or we
may terminate the mediation at any time. The
submission or failure to submit a Claim to
mediation will not affect your or our rights to elect
arbitration.
21.4 Arbitration. You or we may elect to resolve
any Claim by individual binding arbitration. This
election may be made by the party asserting the
Claim or the party defending the Claim. Claims will
be decided by one neutral arbitrator who will be a
retired judicial officer or an attorney with at least
10 years of experience; however, if we both agree,
we may select another person with different
qualifications. If arbitration is chosen by any party,
neither you nor we will have the right to litigate
that claim in court or have a jury trial on that claim.
Further, you and we will not have the right to
participate in a representative capacity or as a
member of any class pertaining to that claim. The
arbitrator's decisions are enforceable as any court
order and are subject to very limited review by a
court. The arbitrator's decision will be final and
binding. Before beginning arbitration, you or we
must first send a Claim Notice. The party electing
arbitration must choose to arbitrate either before
JAMS or AAA. This arbitration provision is governed
by the FAA. You will be responsible for paying your
share of any arbitration fees (including filing,
administrative, hearing or other fees). We will be
responsible for our arbitration fees.
Page 28 of 79 195
22. NOTICES; GOVERNING LAW; JURISDICTION.
22.1 General. Who you are contracting with under
this Agreement, who you should direct notice to
under this Agreement, what law will apply in any
lawsuit arising out of this Agreement, and which
court can adjudicate any such lawsuit to this
Agreement are as follows:
Who you are
contracting
with:
RecTrac, LLC d/b/a Vermont
Systems
Notices to be
sent to:
12 Market Place
Essex Junction, VT 05452
legal@vermontsystems.com
Governing law
is:
Vermont
Courts having
exclusive
jurisdiction are:
State courts of Chittenden
County, Vermont, or the
U.S. District Court for
Vermont
22.2 Manner of Giving Notice. Except as otherwise
specified in this Agreement, all notices,
permissions and approvals hereunder shall be in
writing and shall be deemed to have been given
upon (a) personal delivery; (b) the second business
day after mailing; (c) the second business day after
sending by confirmed facsimile; or (d) the first
business day after sending by email (provided
email shall not be sufficient for notices of
termination or an indemnifiable claim). Notices to
you shall be addressed to the designated contact
person identified in the Services Agreement at the
email address or physical address listed.
22.3 Agreement to Governing Law and
Jurisdiction. Each party agrees to the applicable
governing law above without regard to choice or
conflicts of law rules, and to the exclusive
jurisdiction of the applicable courts above.
22.4 Waiver of Jury Trial. Each party hereby waives
any right to jury trial in connection with any action
or litigation in any way arising out of or related to
this Agreement.
23. GENERAL PROVISIONS.
23.1 Privacy Rights. You are required to comply
with our Privacy Policy, which may be revised from
time to time, and which are expressly incorporated
into the Agreement.
23.2 Minimum System Requirements /
Interoperability. It is your responsibility to ensure
your computer systems, internet connections, IT
infrastructure, peripherals, systems, servers,
mobile devices and/or workstations comply with
the minimum system requirements necessary to
receive our Services. We shall not be responsible
for any internet speed or connectivity issues at
your location, or other problems related to your
technology equipment, including third party
internet service or your IT infrastructure. You shall
be required to comply with our technical
specifications.
23.3 Reference. You agree that, within 30 days of
the Effective Date, we may issue a new business
press release about our business association and
post your logo and a brief description of your
business on our website.
23.4 Independent Contractor Relationship. Our
legal relationship to you is that of an independent
contractor. The Agreement does not form a
partnership, franchise, joint venture, employment,
agency and/or fiduciary relationship between you
and us.
23.5 Non-Discrimination Endorsement. We shall
not discriminate in our employment practices and
will render all Services under the Agreement
without regard to race, color, religion, sex, sexual
orientation, age, national origin, veteran's status,
political affiliation, or disabilities. Specifically, we
will abide by the requirements of Title VII of the
Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972, the Vietnam
Era Veteran's Readjustment Assistance Act of 1974;
Page 29 of 79 196
I
I
Title IX of the Education Amendments of 1972, and
the Fair Housing Act of 1968, as amended.
23.6 Export Controls. The Services and any
derivatives thereof may be subject to export laws
and regulations of the United States and other
jurisdictions. Each party represents that it is not
named on the United States' government denied -
party list. Additionally, you shall not permit End
Users to access or use the Subscription Services
while located in a United States embargoed
country (currently Cuba, Iran, North Korea, Sudan,
Syria or Crimea), or in violation of any United
States' export law or regulation.
23.7 Anti-Bribery. You agree that neither your
employees, agents or representatives have
received or been offered any illegal or improper
bribe, kickback, gift, or thing of value from us, or
any member of our Team, in connection with the
Agreement. If you learn of any violation of the
above restrictions, you agree to promptly notify us.
23.8 Legal Advice. All Professional Services and
other information provided to you in the normal
course of our business relationship should be
considered for informational purposes only and is
not to be taken as legal advice. You are advised to
speak with your own independent counsel about
all matters of a legal nature.
23.9 Waiver; Cumulative Remedies. No failure or
delay by either party in exercising any rights under
the Agreement shall constitute a waiver of that
right. Other than as expressly stated herein, the
remedies provided in the Agreement are in
addition to, and not exclusive, of any other
remedies of a party at law or in equity.
23.10 Assignment. Neither party may assign any of
its rights or obligations hereunder, whether by
operation of law or otherwise, without the prior
written consent of the other party (not to be
unreasonably withheld). Notwithstanding the
foregoing, we may assign this Agreement in its
entirety without your consent, to our affiliates or in
connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of
our assets not involving one of your direct
competitors. Subject to the foregoing, the
Agreement shall bind and inure to the benefit of
the parties, their respective successors and
permitted assigns.
23.11 Force Majeure. We shall not be in default
under any provision of the Agreement or be liable
for any delay, failure of performance or
interruption in Services (including the Software)
resulting, directly or indirectly, from causes beyond
our reasonable control, including but not limited to
any of the following: earthquake, lightning or other
acts of God; fire or explosion; electrical faults;
vandalism; cable cut; water; hurricanes; fire;
flooding; severe weather conditions; actions of
governmental or military authorities; national
emergency; insurrection, riots or war; terrorism or
civil disturbance; strikes, lock-outs, work stoppages
or other labor difficulties; supplier failure;
shortage; or telecommunication or other internet
provider failure.
23.12 Survivability. Even if you terminate the
Agreement with us, the following sections of the
Agreement will still apply: Terms of Service Section
7.2 (Hosting Obligations); Section 16
(Confidentiality); Section 17 (Protection of
Educational Information); Section 18 (Limited
Warranties); Section 19 (Limitations of Liability);
Section 20 (Indemnification); Section 21 (Dispute
Resolution); Section 22 (Notice; Governing Law;
Jurisdiction); Section 23.8 (Legal Advice); Section
23.11 (Force Majeure) and Section 23.16 (Entire
Agreement; Priority of Documents).
23.13 Severability. The invalidity or
unenforceability of any provision of the Agreement
will not affect the validity or enforceability of the
other provisions of the Agreement, which
provisions will remain in full force and effect. If any
provision of this Agreement shall be deemed
unenforceable by reason of its extent, duration,
scope or otherwise, then the parties contemplate
that the court making such determination will alter
such provisions so that it is enforced and will
Page 30 of 79 197
enforce it in its altered form for all purposes
contemplated by the Agreement.
23.14 Headings. The bolded headings contained in
the Agreement are for convenience of reference
only, shall not be deemed to be a part of the
Agreement and shall not be referred to in
connection with the construction or interpretation
of the Agreement.
23.15 Construction. For purposes of the
Agreement, wherever the context requires, the
singular shall include the plural, and vice versa; the
masculine gender shall include the feminine and
neuter gender, and vice versa; and "and" shall
include "or," and vice versa. Any rule of
construction to the effect that ambiguities are to
be resolved against the drafting party shall not be
applied in the construction or interpretation of the
Agreement.
23.16 Entire Agreement; Priority of Documents.
The Agreement (including these Terms of Service)
and any additional terms or Addenda, as
applicable, make up the entire Agreement and
supersede all prior agreements, representations,
and understandings. All additional terms and/or
Addenda will be considered incorporated into the
Agreement when you agree to them. If there is an
actual conflict or direct inconsistency between any
of the attachments, schedules or exhibits
referenced in the Services Agreement, then the
following shall be the prioritization of documents
that should be deemed to control and govern: first,
any later-signed Addenda or Statement of Work (as
applicable); then the Services Agreement; then the
Service Level Agreement (as applicable); then the
Terms of Service; then the Privacy Policy.
23.17 Electronic Signature. The Agreement may be
executed in any number of counterparts, each of
which when executed shall be deemed an original,
but such counterparts together shall constitute one
and the same instrument. Delivery of executed
counterparts by email, .PDF, or other electronic
delivery method shall be effective as delivery.
Electronic signatures, including any click-sign
process, will be deemed as original.
23.18 Consent to Do Business Electronically. By
signing the Services Agreement, you consent to do
business electronically, which means that you
agree that all VS agreements and policies, including
amendments thereto and documents referenced
therein, as well as any notices, instructions, or any
other communications regarding transactions and
your agreements with VS may be presented,
delivered, stored, retrieved, and transmitted
electronically. You must keep us informed of any
change in your electronic or mailing address or
other contact information. Your electronic
signature, including, without limitation clicking
"Agree and Continue" or "I Accept" or an action of
similar meaning or significance, shall be the legal
equivalent of your manual signature. You may
withdraw your consent to doing business
electronically at any time by contacting us and
withdrawing your consent. However, any
communications or transactions between us before
your withdrawal of such consent, will be valid and
binding.
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SERVICE LEVEL AGREEMENT (SUPPORT)
Terms not specifically described in this Service Level Agreement for Support ("Support SLA") shall have the
meanings as set forth in Section 1 of the Terms of Service or elsewhere in the Agreement .
1 ELIGIBILITY. This Support SLA shall apply only to Customers receiving VS's Support Desk, including
"live" support channels by phone or chat. To be eligible for the Support SLA, Customers must be
current in their payment of Fees to VS and must remain complaint with the terms and conditions of
the Agreement.
2 CASE PRIORITIES. To provide high quality support and to effectively assign resources to incoming
cases, the following four types of case priorities have been identified:
Priority 1 Critical
Critical business impact occurs on a production system preventing business
operations. End Users and Patrons are prevented from working within the
Software with no workarounds. Examples include: Software crashes or is goes
off-line; functionality critical to business operation not available; data breach
or loss of Customer Data.
Priority 2 Major
Significant business impact occurs on a production system severely impacting
business operation. End Users and Patrons are impacted by the issue but may
still be able to work in a limited capacity within the Software . Examples
include significant performance degradation; functionalities important to
business operation not available; loss of Software functionality has an
escalating impact on business operations.
Priority 3 Medium
Minor business impact occurs on a production system that causes a partial or
non-critical loss of functionality in the Software . A limited number of End
Users and/or Patrons are affected.
Priority 4 Low
Issues occurring on a non-production system in the Software . Examples
include: a question, comment or enhancement.
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3 RESPONSE TIMES. VS will respond and escalate support issues in accordance with the table below .
All days referenced below are calendar days, not business days.
Priority 1
(within)
Priority 2
(within)
Priority 3
(within)
Priority 4
(within)
Initial Response 1 hour 4 hours 5 days -
Correction Identified /Pursued 24 hours 7 days As agreed
between
parties
-
If Issue Remains Unresolved
Escalation Stage 1 – to Support
Managers
(Status Report Intervals)
12 hours
(Every 4
hours)
7 days
(Daily)
- -
Escalation Stage 2 – to Directors
(Status Report Intervals)
24 hours
(Every 4
hours)
7 days
(Daily)
Escalation Stage 3 – to President
(Status Report Intervals)
72 hours
(Every 4
hours)
10 days
(Daily)
- -
4 CUSTOMER REPORTING CHANNELS; PROCESS. Support Desk Customers experiencing support
issues must report customer support concerns through VS 's established support channels, including:
•Customer support line available at (877) 883-8757
•Chat support available through the support portal on the Site
•For after-hours support, VS pager number at 802-490-1911
All issues or questions reported to support are tracked with a support case that contains at a
minimum the Customer account name, contact person, software product and version, module
and/or menu selection, detailed description of the issue, and any other pertinent information. Case
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statuses are viewable on the VS support portal. Each case is stored in a queue and the first available
support representative will be assigned to the next case issue based on priority.
While reviewing the case issue, the assigned support person will contact the Customer, if additional
information is needed. The VS support person will either resolve the issue or advise Customer
regarding the status and the course of action being taken to resolve it. All correspondence and
actions associated with a case are tracked in the support database. If the issue needs to be
escalated to a development resource, Customer will be informed. While issues escalated to
development will be scheduled for resolution, they may not be resolved immediately depending on
the nature and complexity of the issue. Customer may view the development status at any time.
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PRIVACY POLICY
We take data privacy seriously. This privacy policy explains who we are, how we collect, share and use Personal
Information, and how you can exercise your privacy rights. We recommend that you read this privacy policy in
full to ensure you are fully informed . However, to make it easier for you to review the parts of this privacy policy
that apply to you, we have divided up the document into sections that are specifically applicable to Customers
(Section 2), Patrons (Section 3) and Visitors (Section 4). Sections 1 and 5 apply to everyone. To the extent we
provide you with notice of different or additional privacy policies, those policies will govern such interactions
with our products and services.
1. THE BASICS
A. About VS. RecTrac, LLC d/b/a Vermont Systems (“VS,” “we,” “us,” or “our”) is a technology company that
develops, maintains and sells a proprietary club -management software and payments solution, and other related
services, for business owners operating primarily in the parks and recreation space. VS’s corporate office is
located at 12 Market Place, Essex Junction, VT 05452.
B. Key Terms. In this privacy policy, these terms have the following meanings:
“Customer” is a VS customer. The Customer is the individual, business entity, non-profit, military branch, or
municipality contracting with us to receive Services as more specifically identified in the Services Agreement.
“End Users” are a Customer’s authorized and licensed users of the Software, as described in the Order Schedule.
“Patron(s)” mean(s) the individuals who purchase a Customer’s products and/or services and who otherwise
interact with the Software. Patrons are our Customer’s customers, clients, members or military service members.
“Personal Information” means any information that identifies or can be used to identity an individual directly or
indirectly. Examples of Personal Information include, but are not limited to, first and last name, date of birth,
email address, gender, occupation, demographic information, financial data and transaction history .
“Services” mean any and all of those products and/or services offered by us to you under the Agreement.
Services may include products or services related to software, hosting, hardware, support and/or payments.
“Software” means our proprietary technology software and any associated module(s), website(s), third-party
integration(s), and mobile application(s) (if applicable).
“Site” means our public-facing website, www.vermontsystems.com, or websites that link to
www.vermontsystems.com.
“Visitor” means, depending on the context, any person who visits the Site, our offices, or otherwise engages with
us at our events or in connection with our marketing or recruitment activities .
“You” and “your” means, depending on the context, either a Customer, P atron or a Visitor.
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C. Scope of this Privacy Policy. This privacy policy describes our practices and your rights in connection with the
Personal Information that we may collect, use or disclose as related to:
•our Services;
•our Software;
•the Site;
•our social media pages;
•any other products or services offered, or emails sent, that direct you to this privacy policy.
By accessing or using any of the VS products or services described above (collectively, “VS Services,” unless
referred to individually), you agree to the terms and conditions of this privacy policy.
2. PRIVACY FOR CUSTOMERS
This section applies to the Personal Information we collect and process from Customers (or potential Customers)
through the VS Services. If you are not a Customer, the Patron or Visitor section of this policy may be more
applicable to you and your data. In this section, “you” and “your” will refer to Customers (and potential
Customers), including their End Users.
A. Information We Collect. The Personal Information that we collect depends on the context of your interactions
with the VS Services, the settings associated with your Customer or End User account, the products, services and
features that you use, your location, and applicable law . However, the Personal Information we collect broadly
falls into the following categories:
(i)Information you provide to us. You may provide certain Personal Information to us when you set up your
Customer or End User account, access VS Services, consult with our customer service team, send us an email,
integrate any of the VS Services with a third -party service or your website, or communicate with us in any other
way. This information may include:
•Business contact information (such as name, job title, legal entity, trade name, organizat ional
information, phone number, email address, and country);
•Marketing information (such as your contact preferences);
•Site set-up (such as account logins, email addresses, usernames and passwords);
•Customer Data (which includes any information associated with your Customer site(s) and
Customer Data like photos, rosters and Patron Data).
•Troubleshooting and support data (which is data you provide or we otherwise collect in connection
with support inquiries we receive from you);
•Payment information (including banking information for remit purposes, account and routing
numbers, credit card numbers and associated identifiers, and billing address); and
•Tax information (including your EIN or tax identification number).
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(ii) Information we collect automatically. When you use the VS Services, we may automatically collect or receive
certain information about your device or usage (“Service Usage Data”). In some (but not all) countries, including
countries in the European Economic Area (“EEA”), this inf ormation is considered Personal Information under
applicable data protection laws. We use cookies and other tracking technologies to collect some of this
information. For further information, please review our Cookies Policy available here.
Service Usage Data may include:
•Device Information. We collect information about the device and applications you use to access the
Software, such as your IP address, your operating system, your browser ID, and other information
about your system and connection. If you are using a VS mobile application (to the extent that we
offer such a product), we may also collect information about the cellular network associated with
your mobile device, your mobile device’s operating system or platform, the type of mobile device
you use, your mobile device’s name and unique device ID, and information about the features of
our mobile application that you accessed.
•Log Data. Our web servers keep log files that record data each time a device accesses those servers
and the nature of each access, including originating IP addresses and your activity in the VS Services
(such as the date/time stamps associated with your usage, pages and files viewed, searches and
other actions you take), device event information (such as system activity and err or reports), and
hardware settings. We may also access metadata and other information associated with files that
you upload into the Software.
•Usage Data. We collect usage data about you whenever you interact with the VS Services, which
may include the dates and times you accessed the VS Services or your browsing activity on the Site .
We also collect information about the performance of the VS Services, including metrics related to
Software uptime, usage of our APIs, or the deliverability of emails . If you are using a VS mobile
application (to the extent that we offer such a product), we may collect information about how
often you use the mobile application and other performance data. This information allows us to
improve the operation of the VS Services an d facilitate research and analysis of the VS Services .
(iii) Information we collect from other sources. From time to time, we may obtain information about you from
third-party sources, such as credit reporting agencies, public databases, social media pla tforms, marketing
partners, and/or third-party data providers. Examples of the information we receive from other sources may
include credit histories, demographic information (such as age and gender), device information (such as IP
addresses), location data (such as city and state), and online behavioral data (such as information about your use
of social media websites, page view information and search results and links). We may use this information,
alone or in combination with other Personal Information we collect, to assess the credit risk associated with
opening a merchant or sub-merchant account for you, to enhance our ability to provide relevant marketing or
content to you, to better provide you with VS Services, and to develop and provide you with mor e relevant
products, features, and services.
B.Use of Personal Information. We may use the Personal Information we collect or receive through the VS
Services (alone or in combination with other data we source) for the purposes and on the legal bases iden tified
below:
•To create, administer and assign permissions to your Customer and/or End User account(s) and
provide you with related assistance.
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•To bill and collect money owed to us by you under the terms of our Agreement with you.
•To perform our obligations under the Agreement with you for the use of any or all of the VS
Services; or, where we have not entered into a contract with you, in accordance with our legitimate
interests to operate and administer the VS Services. For example, we may create and administer
your Customer and/or End User account(s), fulfill and record payment transactions, and provide you
with related assistance.
•To send you VS Services alerts in reliance on our legitimate interests in administering the VS
Services and providing certain features and functionalities. For example, we may inform you about
temporary or permanent changes to the VS Services, send you scheduled maintenance updates, or
send you account, security or compliance notifications, such as new features or func tionalities,
version updates, releases, abuse warnings, and changes to this privacy policy.
•To communicate with you about your site(s), Customer and/or End User account(s), and/or permit
customer support to provide you with related support services.
•To enforce compliance with our Terms of Service, the Agreement, other posted VS policies, and
applicable law, and to protect the rights and safety of our other Customers in reliance on our
legitimate interest to protect against misuse or abuse of the VS Services and, as needed, to pursue
available remedies.
•To meet legal requirements, including complying with court orders, valid discovery requests, valid
subpoenas, garnishments or tax liens, and other appropriate legal mechanisms.
•To provide information to representatives and advisors, including attorneys and accountants, to
help us comply with legal, accounting, and security requirements in reliance on our legitimate
interests.
•To prosecute and defend a court, arbitration or similar proceeding.
•To respond to lawful requests by public authorities, including to meet national security or law
enforcement requirements.
•To provide, support and improve the VS Services to perform our Agreement with you for the use of
VS Services; or, where we have not entered into a contract with you, in reliance on our legitimate
interests in administering and improving the VS Services and providing certain features and
functionalities. This may include sharing your information with third parties in order to provide and
support our VS Services or to make certain features or functionalities of the Software available to
you. When we share your Personal Information with third parties, we take steps to protect your
information in a manner that is consistent with our obligations under applicab le privacy laws. For
further information about how we share your information, please refer to Section 5 below.
•To run data analytics or reports in reliance on our legitimate business interests in improving and
enhancing our VS Services. For example, we may run a data analytics to better understand
Customer, End User and/or Patron use of our VS Services, or to better understand general trends
and statistics about the parks and recreation industry or a particular market segment .
•To facilitate social sharing functionality if you consent to such activities .
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•To allow you to participate in sweepstakes, contests or similar promotions if you consent to such
activities.
•To share information with other marketers (and their service providers) to permit them to send you
marketing communications consistent with your choices.
•To send you VS marketing materials that we believe may be of interest to you if you consent to such
activities.
C. Third-Party Integrations. We may use the Personal Information we collect or receive through the VS Services,
as a data processor or as otherwise stated in this privacy policy, to enable your use of the integrations and
plugins you choose to connect to your Customer and/or End User account(s).
D. Cookies and Tracking Technologies. We and our third-party partners may use various technologies to collect
and store Service Usage Data when you use the VS Services (as discussed above), and this may include using
cookies and similar tracking technologies, such as pixels and web beacons . For example, we use web beacons in
the emails you send, which enable us to track certain behavior, such as whether the email sent through the VS
Services was delivered and opened and whether links within the email were clicked . The use of web beacons
allow us to collect information such as the recipient’s IP address, browser, email client type and other similar
data as further described above details. We use this information to measure the performance of your email
campaigns, to provide analytics information , enhance the effectiveness of the VS Services, and for other
purposes described above.
E. Your Data Protection Rights. Depending on the country in which you reside, you may have the following data
protection rights:
•To access; correct; update; port; delete; restrict; or object to our processing of your Personal
Information.
•You can manage your Customer and/or End User account(s) directly from the VS support portal, or
you may contact us directly to seek help with managing such account(s) by emailing us at
support@vermontsystems.com. You can also manage information about your Patrons directly from
your Customer account(s) to be able to do things like access, correct, update, port or delete
information that you receive from your Patrons. Note, if any of your Patrons wish to exercise any of
these rights, they should contact you directly . You can also contact us at any time to update your
marketing preferences (see Section 5. General Information, C. Your Choices and Opt-Outs below).
We take reasonable steps to ensure that the data we collect is reliable for its intended use,
accurate, complete and up to date.
•The right to complain to a data protection authority about the collection and use of Personal
Information. For more information, please contact your local data protection authority. Contact
details for data protection authorities in the EEA and UK are available here.
•Similarly, if Personal Information is collected or processed on the basis of consent, you can
withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any
processing we conducted prior to your withdrawal, nor will it affect the processing of your Personal
Information conducted in reliance on lawful processing grounds other than consent.
If we receive a request from one of your Patrons, we will either direct the Patron to reach out to yo u, or, if
appropriate, we may (but shall not be required to) respond directly to their request.
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3. PRIVACY FOR PATRONS
This section applies to the information we process about our Customers’ Patrons, the Customer being the
controller of such data (as a “data controller”) and VS being the processor of such data (as a “data processor”).
The Software and our related Services are intended for use by paid Customers and their lawful Patrons . As a
result, for much of the Personal Information we collect and process about Patrons through the VS Services, we
act as a processor of such information on our Customers’ behalf . We are not responsible for the privacy or
security practices of our Customers (including their End Users), nor the third parties which Customers may use or
contract with for other services provided to them, which may differ from those set forth in this priva cy policy.
Please check with the Customer with whom you have a business relationship about the privacy policy or policies
it may have in place. For purposes of this section, "you" and "your" refer to Patrons.
A. Information We Collect. The Personal Information that we may collect or receive about you broadly falls into
the following categories:
(i) Information we receive about Patrons from our Customers. A Customer may provide Personal Information
about you to us through the VS Services . When you sign up for a Patron account using the Software, your
Personal Information, including your name, email address, address, telephone number and certain payment
information, becomes associated with our Customer’s account(s) and the particular location within th at
Customer account where you are a customer, client or member of the Customer . You can update your Personal
Information directly from your Patron account.
(ii) Information we collect automatically. When you interact with a marketing campaign that you re ceive from a
Customer or access your Patron account through the Software, we may collect information about your device
and your interaction with the marketing email, SMS or the Software . We use cookies and other tracking
technologies to collect some of this information. Our use of cookies and other tracking technologies is discussed
more below and in more detail in our Cookies Policy available here.
•Device Information. We collect information about the device and applications you use to access
emails sent through the VS Services, such as your IP address, your operating system, your browser
ID, and other information about your system and connection.
•Usage Data. It is important to us to ensure the security and reliability of the VS Services that we
provide. Therefore, we also collect usage data about your interactions with the VS Services, which
may include dates and times you access the Software and your browsing activity on the Site . This
information allows us to ensure compliance with our Terms of Service and API Terms of Use, to
monitor and prevent service abuse, and to ensure we attain certain usage standards and metrics in
relation to the VS Services. We also collect information regarding the performance of the VS
Services, including metrics related to Software uptime, periods of slowness, or the deliverability of
emails that our Customers may send through the Software. This information allows us to improve
the content and operation of the VS Services and facilitate research and perform analysis into the
use and performance of the VS Services.
(iii) Information we collect from other sources. From time to time, we may obtain information about you from
third-party sources, such as social media platforms and third -party data providers. For example, if you choose to
connect your social media account to your Patron account, certain information from your social media account
may be shared with us, including information that’s part of your or your friend’s profiles . We may also collect
Personal Information through the VS Services at the direction of our Customers.
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B.Use of Personal Information. We may use the Personal Information we collect or receive about you in reliance
on our (and where applicable, our Customers’) legitimate interests for the following purp oses:
•To enforce compliance with our Terms of Service and applicable law . This may include utilizing
usage data and developing tools and algorithms that help us prevent violations.
•To protect the rights and safety of Customers, third parties and VS .
•To meet legal requirements, including complying with court orders, valid discovery requests, valid
subpoenas, and other appropriate legal mechanisms.
•To provide information to representatives and advisors, including attorneys and accountants, to
help us comply with legal, accounting, and security requirements in reliance on our legitimate
interests.
•To prosecute and defend a court, arbitration or similar proceeding.
•To respond to lawful requests by public authorities, including to meet national security or law
enforcement requirements.
•To provide, support and improve the VS Services . For example, this may include sharing your
information with third parties in order to provide and support our VS Services or to make certain
features or functionalities of the Software available to you. When we share your Personal
Information with third parties, we take steps to protect your information in a manner that is
consistent with our obligations under applicable privacy laws . For further information about how
we share your information, refer to Section 5 below.
•To run data analytics or reports. Our data analytics or reporting projects use data from our
Customers’ accounts, including Personal Information belonging to Patrons, to provide and improve
the VS Services. We use information, like your transactions history or bookings records, for
example, so we can make more informed predictions, decisions, and products for our Customers . If
you prefer your data not be used in this manner, you can opt out of data analytics and reportin g
projects at any time by emailing us at privacy@vermontsystems.com with the subject heading titled
“Opt Out from Data Analytics and Reporting Projects .”
•To carry out other business purposes. To carry out other legitimate business purposes, as well as
other lawful purposes about which we will notify you.
C. Cookies and Tracking Technologies. We and our third-party partners may use various technologies to collect
and store Service Usage Data when you use the VS Services (as discussed above), and this may include using
cookies and similar tracking technologies, such as pixels and web beacons . For example, we use web beacons in
the emails sent by our Customers, which enable us to track certain behavior, such as whether the email sent
through the Software was delivered and opened and whether links within the email were clicked . The use of web
beacons allow us to collect information such as the recipient’s IP address, browser, email client type and other
similar data as further described above details . We use this information to measure the performance of your
email campaigns, to provide analytics information, enhance the effectiveness of the VS Services, and for other
purposes described above.
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D. Your Data Protection Rights. Depending on the country in which you reside, you may have the following data
protection rights:
•To access; correct; update; port; delete; restrict or object to our processing of your Personal
Information.
•You also have the right to complain to a data protection authority about our collection and use of
your Personal Information . For more information, please contact your local data protection
authority. Contact details for a data protection authority in the EEA are available here.
As described above, for much of the Personal Information we collect and process about Patrons through the VS
Services, we act as a processor on behalf of our Customers. In such cases, if you are a Patron and want to
exercise any data protection rights that may be available to you under applicable l aw or have questions or
concerns about how your Personal Information is handled by us as a processor on behalf of our individual
Customers, you should contact the relevant Customer that is using the VS Services, and refer to their separate
privacy policy.
If you no longer want to be contacted by one of our Customers through the VS Services, please contact the
Customer directly to update or delete your data. If you contact us directly, we may either forward your request
to the relevant Customer or provide yo u with the identity of the Customer to enable you to contact them
directly.
We respond to all requests we receive from individuals wishing to exercise their data protection rights in
accordance with applicable data protection laws . We may ask you to verify your identity in order to help us
respond efficiently to your request.
4. PRIVACY FOR VISITORS
This section applies to Personal Information that we collect and process when you visit the Site, and in the usual
course of our business, such as in connection with our recruitment, events, sales and marketing activities or
when you visit our offices. In this section, “you” and “your” will refer to Visitors .
A. Information we collect
(i) Information you provide to us on the Site or otherwise . Our Site offers various ways to contact us, such as
through form submission, email or phone, to inquire about our company, our products and our services . For
example, we may ask you to provide certain Personal Information when you express an interest in obtaining
information about us or the VS Services, take part in surveys, subscribe to marketing, apply for a role with VS, or
otherwise contact us. We may also collect Personal Information from you in person when you attend our events
or trade shows, if you visit one of our offices, or via a phone call with one of our sales representatives . You may
choose to provide additional information when you communicate with us or otherwise interact with us, and we
may keep copies of any such communications for our records .
The Personal Information we collect may include:
•Business contact information (such as your name, phone number, email address, address and
country);
•Professional information (such as your job title and company);
•Nature of your communication;
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•Marketing information (such as your contact preferences); and
•Any other information you choose to provide us when completing any ‘free text’ boxes in our
forms.
(ii) Information we collect automatically through the Site . When you visit our Site or interact with our emails,
we use cookies and similar technologies such as pixels or web beacons, alone or in conjunction with cookies, to
collect certain information automatically from your browser or device . In some countries, including countries in
the EEA, this information may be considered Personal Information under applicable data protection laws . Our
use of cookies and other tracking technologies is discussed more below, and in more detail in our Cookie Policy
available here.
The information we collect automatically includes:
•Device information such as your IP address, your browser, device information, unique device
identifiers, mobile network information, request information (speed, frequency, the site from which
you linked to us (“referring page”), the name of the website you choose to visit immediately after
ours (called “exit page”), information about other websites you have recently visited and the web
browser you used.
•Usage data such as information about how you interact with our emails, Site, and other websites
(such as the pages and files viewed, searches, operating system and system configuration
information and date/time stamps associated with your usage).
B. Use of Personal Information. We may use information we collect through our Site and in connection with our
events and marketing activities (alone or in combination with other data we collect) for a range of reasons in
reliance on our legitimate interests, including:
•To provide, operate, optimize and maintain the Site;
•To send you marketing information, product recommendations and non-transactional
communications (for example, marketing newsletters, telemarketing calls, SMS, or push
notifications) about us, in accordance with your marketing preferences, includi ng information about
our products, services, promotions or events as necessary for our legitimate interest in conducting
direct marketing or to the extent you have provided your prior consent.
•For recruitment purposes if you have applied for a role with VS .
•To respond to your online inquiries and requests, and to provide you with information and access to
resources or services that you have requested from us.
•To manage the Site, including its proper administration and security.
•To manage event registrations and attendance, including sending related communications to you.
•To register visitors to our offices for security reasons and to manage non -disclosure agreements
that visitors may be required to sign.
•To improve the navigation and content of the Site.
•To identify any server problems or other IT or network issues.
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• To compile aggregated statistics about site usage and to better understand the preferences of our
Visitors.
• To help us provide, improve and personalize our marketing activities.
• To carry out research and development to improve the VS Services.
• To conduct marketing research, advertise to you, provide personalized information about us on and
off our Site, and to provide other personalized content based on your activities and interests to the
extent necessary for our legitimate interests in supporting our marketing activities or advertising
our VS Services or instances where we seek your consent.
• To carry out other legitimate business purposes, as well as other lawful purposes, such as data
analysis, fraud monitoring and prevention, identifying usage trends and expanding our business
activities in reliance on our legitimate interests.
• To cooperate with public and government authorities, courts or regulators in accordance with our
legal obligations under applicable laws to the extent this requires the processing or disclosure of
Personal Information to protect our rights or is necessary for our legitimate interest in protecting
against misuse or abuse of our Site and/or VS Services, protecting personal pr operty or safety,
pursuing remedies available to us and limiting our damages, complying with judicial proceedings,
court orders or legal processes, or responding to lawful requests.
C. Public Information and Third-Party Websites
• Social media platforms and widgets. The Site includes social media features, such as the Facebook
Like button. These features may collect information about your IP address and which page you are
visiting on our Site, and they may set a cookie to make sure the feature f unctions properly. Social
media features and widgets are either hosted by a third party or hosted directly on our Site . We
also maintain presences on social media platforms, including Facebook, Twitter, and Instagram . Any
information, communications, or materials you submit to us via a social media platform is done at
your own risk without any expectation of privacy . We cannot control the actions of other users of
these platforms or the actions of the platforms themselves. Your interactions with those featu res
and platforms are governed by the privacy policies of the companies that provide them.
• Links to third-party websites. The Site includes links to other websites, whose privacy practices may
be different from ours. If you submit Personal Information to any of those sites, your information is
governed by their privacy policies . We encourage you to carefully read the privacy policy of any
website you visit.
• Contests and sweepstakes. We may, from time to time, offer surveys, contests, sweepstakes, or
other promotions on the Site or through social media (collectively, "Promotions"). Participation in
our Promotions is completely voluntary. Information requested for entry may include Personal
Information such as your name, address, date of birth, phone number, e mail address, username,
and similar details. We use the information you provide to administer our Promotions . We may
also, unless prohibited by the Promotion’s rules or law, use the information provided to
communicate with you, or other people you select, about the VS Services. We may share this
information with our affiliates and other organizations or service providers in line with this privacy
policy and the rules posted for our Promotions.
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D. Cookies and Tracking Technologies. We use cookies and similar tracking technologies to collect and use
Personal Information about you, including to serve interest-based advertising. For further information about the
types of cookies and tracking technologies we use, why, and how you can control them, please see our Cookies
Policy available here.
E. Other Data Protection Rights. Depending on the country in which you reside, you may have the following data
protection rights:
•To access; correct; update; port; delete; restrict or object to our processing of your Personal
Information. You can exercise these rights by emailing support@vermontsystems.com.
•You may also have the right to complain to a data protection authority about our collection and use
of your Personal Information. For more information, please contact your local data protection
authority. Contact details for data protection authorities in the EEA are available here.
•Similarly, if we have collected and processed your Personal Information with your consent, then you
can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of
any processing we conducted prior to your withdrawal, nor will it affect the processing of your
Personal Information conducted in reliance on lawful processing grounds other than consent . You
can also contact us at any time to update your marketing preferences (see Section 5. General
Information, C. Your Choices and Opt-Outs below).
We respond to all requests we receive from individuals wishing to exercise their data protection rights in
accordance with applicable data protection laws. We may ask you to verify your identity in order to help us
respond efficiently to your request.
5. GENERAL INFORMATION
A. How We Share Information. We may share and disclose your Personal Information to the following types o f
third parties for the purposes described in this privacy policy . For purposes of this section, “you” and “your” refer
to Customers, Patrons and Visitors unless otherwise indicated.
(i) Our service providers. Sometimes, we share your information with our third-party service providers working
on our behalf for the purposes described in this privacy policy . For example, companies we have hired to help us
provide and support our VS Services, including the processing of payments, or assist in protecting and s ecuring
our systems and services and other business -related functions. The following is a non-exclusive list of third-party
service providers that may process your Personal Information in their capacity as a sub -processor of ours. Please
review the relevant privacy policies (links are current as of the date of publication of this privacy policy) for
further information about how each third -party handles your Personal Information .
Third Party Name Privacy Policy Link
Worldpay, LLC https://online.worldpay.com/terms/privacy
Elavon, Inc. https://www.elavon.com/privacy-policy.html
CardConnect https://cardconnect.com/privacy-policy
PlugNPlay http://www.plugnpay.com/privacy-policy/
VeriFone https://www.verifone.com/privacy
Page 45 of 79 212
(ii) Any competent law enforcement body, regulatory body, government agency, court or other third party
where we believe disclosure is necessary (a) as a matter of applicable law or regulation; (b) to exercise, establish,
or defend our legal rights; or (c) to protect your vital interests or those of any other person.
(iii) A potential buyer (and its agents and advisors) in the case of a sale, merger, consolidation, liquidation,
reorganization, or acquisition. In that event, any acquirer will be subject to our obligations under this privacy
policy, including your rights to access and choice. We will notify you of the change by sending you an email or
posting a notice on our Site.
(iv) Any other person with your consent.
NOTE: We do not sell your Personal Information to any third party for promotional or marketing purposes .
B. Legal Basis for Processing Personal Information (EEA and UK Persons Only). If you are located in the EEA or
UK, our legal basis for collecting and using the Personal Information desc ribed above will depend on the Personal
Information concerned and the specific context in which we collect it.
However, we will normally collect and use Personal Information from you where the processing is in our
legitimate interests and not overridden by your data-protection interests or fundamental rights and freedoms.
Our legitimate interests are described in more detail in this privacy policy in the sections above titled “Use of
Personal Information,” but they typically include improving, maintaining, providing, and enhancing our
technology, products, and services; ensuring the security of the VS Services and our Site; and supporting our
marketing activities.
If you are a Customer, we may need the Personal Information to perform our Agreement with you . In some
limited cases, we may also have a legal obligation to collect Personal Information from you . If we ask you to
provide Personal Information to comply with a legal requirement or to perform a contract with you, we will make
this clear at the relevant time and advise you whether the provision of your Personal Information is mandatory or
not, as well as of the possible consequences if you do not provide your Personal Information.
Where required by law, we will collect Personal Information only where we have your consent to do so.
If you have questions or need further information concerning the legal basis on which we collect and use your
Personal Information, please contact us at support@vermontsystems.com.
C. Your Choices and Opt-Outs
(i)Customer Account(s); Customer Site. In order to keep your Personal Information accurate and complete, you
can log in to review and update your account information, including contact and billing information, via your
Customer and/or End User account(s), as applicable. If you are a Customer and would like to change the way we
communicate with you, including a change in your primary point of contact (whether for billing purposes or
otherwise), please send us the request at accountsreceivable@vermontsystems.com.
(ii)Email. If you do not wish to receive emails sent through the Software, you may opt out at any time by
following the opt-out or unsubscribe link contained at the bottom of the email itself. Please note that it may take
up to ten (10) days to process your request. Please note that if you opt-out from receiving promotional or
marketing emails, you may continue to receive emails with information re lated to your account or our Services . If
you do not wish to receive any service -related emails from us, you have the option of deactivating your account.
Page 46 of 79 213
(iii)SMS (Text Messages). In order to send text messages through the Software, Customers must enab le this
functionality in their site settings. Once enabled, an individual Patron can control his or her “text messaging
address” by entering a phone directly from the Patron’s account profile and saving the information . Patron’s
must verify opt-in consent by entering and confirming a confirmation code sent to the mobile device listed . To
revoke consent to receiving text messages, please notify the Customer or remove the mobile number from the
“text messaging address” field in the Patron’s account profile.
(iv) Cookies. You may also refrain from providing, or withdraw, your consent for cookies . Your browser’s help
function should contain instructions on how to set your computer to accept all cookies, to notify you when a
cookie is issued; or to not receive cookies at any time.
(v) Third Party Analytics Services. We use Google Analytics in conjunction with our Services . Google Analytics is
provided by Google, Inc. You can opt-out from Google Analytics service from using your information by installing
the Google Analytics Opt-out Browser tool: tools.google.com/dlpage/gaoptout. For more information on the
privacy practices of Google, please visit the Google Privacy & Terms web page here.
D. Our Security. We take appropriate and reasonable technical and organizational measures designed to protect
Personal Information from loss, misuse, unauthorized access, disclosure, alteration, and destruction, taking into
account the risks involved in the processing and the nature of the Personal Information. Unfortunately, even with
these safeguards, no data transmission or storage system can be guaranteed to be 100% secure . If you have any
questions about the security of your Personal Information, you may contact us at
support@vermontsystems.com.
Customer and/or End User account(s) require a username and password to login . Customer and End Users must
keep their username and password secure, and never disclose it to a third party . Permissions assigned by
Customers to authorized staff members (i.e., End Users) should be closely guarded, periodically updated, some
level of internal training provided about the security of login credentials . Because the information in a
Customer’s account is private, account passwords are hashed, which means we cannot see a Customer’s and/or
End User’s password. We cannot resend forgotten passwords either. We will only provide Customer and/or End
User with instructions on how to reset them.
E. International Transfers
(i) We operate in the United States. Our servers and offices are located in the United States, so your information
may be transferred to, stored, or processed in the United States. While the data protection, privacy, and other
laws of the United States might not be as comprehensive as those in your country, we take many steps to protect
your privacy.
(ii) Customers, Patrons and Visitors located in Australia. If you are a Customer, Patron or Visitor who accesses
VS Services in Australia, this section applies to you . Here are the specific points under the Privacy Act 1988
(“Australian Privacy Act”) you should be aware of:
•As stated in the Prohibited Use section of our Terms of Service, information considered to be
harassing, discriminatory, defamatory, vulgar, pornographic or harmful to others is not permitted
on the VS Services and Customers, End User and Patrons are prohibited from loadi ng any such
Personal Information to their account(s).
•Please note that if you do not provide us with your Personal Information or if you withdraw your
consent for us to collect, use and disclose your Personal Information, we may be unable to provide
the VS Services to you.
Page 47 of 79 214
•Where we collect Personal Information of our Visitors, the Personal Information we ask you to
provide will be information that is reasonably necessary for, or directly related to, one or more of
our functions or activities. Please see Section 4 of this privacy policy for examples of the types of
Personal Information we may ask Visitors to provide.
•Where we say we assume an obligation about Personal Information, we will also require our
integration partners and subcontractors to undertake a similar obligation.
•We will not use or disclose Personal Information for the purpose of our direct marketing to you
unless you have consented to receive direct marketing; yo u would reasonably expect us to use your
personal details for marketing; or we believe you may be interested in the material but it is
impractical for us to obtain your consent.
You may opt out of any marketing materials we send to you through an unsubscribe mechanism. If you have
requested not to receive further direct marketing messages, we may continue to provide you with messages that
are not regarded as "direct marketing" under the Australian Privacy Act, including changes to our terms, system
alerts, and other information related to your account as permitted under the Australian Privacy Act and the Spam
Act 2003 (Cth).
•Our servers are located in the United States . In addition, we or our sub-processors may use cloud
technology to store or process Personal Information, which may result in storage of data outside
Australia. It is not practicable for us to specify in advance which country will have jurisdiction over
this type of offshore activity . All of our subcontractors, however, are required to comply with the
Australian Privacy Act in relation to the transfer or storage of Personal Information overseas.
•You may access the Personal Information we hold about you . If you wish to access your Personal
Information, please contact us directly by emailing us at support@vermontsystems.com. We will
respond to all requests for access within a reasonable time.
If you think the information we hold about you is inaccurate, out of date, incomplete, irrelevant, or misleading,
we will take reasonable steps, consistent with our obligations under the Australian Privacy Act, to correct that
information upon your request. If you find that the information we have is not up to date or is inaccurate or
incomplete, please contact us in writing at support@vermontsystems.com so we can update our records. We will
respond to all requests for correction within a reasonable time. If you are unsatisfied with our response to a
privacy matter, you may consult either an independent advisor or contact the Office of the Australian
Information Commissioner for additional help . We will provide our full cooperation if you pursue this course of
action.
F. Retention of Data. We retain Personal Information where we have an ongoing legitimate business or legal
need to do so. Our retention periods will vary depending on the type of data involved, but, generally, we will
refer to these criteria in order to determine retention periods:
•Whether we have a legal or contractual need to retain the data.
•Whether the data is necessary to provide the VS Services.
•Whether our Customers have the ability to access and delete the data on their own.
•Whether our Customers would reasonably expect that we could retain the data until they remove it
or until their account is closed or has been terminated .
Page 48 of 79 215
G. California Privacy. The California Consumer Privacy Act (“CCPA”) provides consumers with specific rights
regarding their Personal Information. You have the right to request that businesses subject to the CCPA (which
may include our Customer with whom you have a relationship) disclose certain information to you about their
collection and use of your Personal Information over the past 12 months . In addition, you have the right to ask
such businesses to delete Personal Information collected from you, subject to certain exceptions . If the business
sells Personal Information, you have a right to opt-out of that sale. Finally, a business cannot discriminate against
you for exercising a CCPA right. When offering services to Customers, we act as a “service provider” under the
CCPA and our receipt and collection of any consumer Personal Information is completed on behalf of our
Customers in order for us to provide the VS Services . Please direct any requests for access or deletion of your
Personal Information under the CCPA to the Customer with whom you have a direct relationship . VS, for its part,
does not sell any of your Personal Information to any third party for promotional or marketing purposes .
Consistent with California law, if you choose to exercise your applicable CCPA rights, we will not charge you
different prices or provide you a different quality of services. If we ever offer a financial incentive or product
enhancement that is contingent upon you providing your Personal Information, we will not do so unless the
benefits to you are reasonably related to the value of the Personal In formation that you provide to us.
H. Use by Minors. The VS Services are not directed or targeted at children under the age of thirteen (13). We
request that minors do not provide Personal Information through the VS Services; instead, any such information
on a minor should be submitted to us by the minor’s authorized parent or legal guardian .
I. Do Not Track. Certain state laws require us to indicate whether we honor “Do Not Track” settings in your
browser. We adhere to the standards set out in this privacy policy and do not monitor or follow any Do Not Track
browser requests.
J. Changes to this Privacy Policy. We may change this privacy policy at any time and from time to time . The most
recent version of the privacy policy is reflected by the version date located at the top of this privacy policy . All
updates and amendments are effective immediately upon notice, which we may give by any means, including,
but not limited to, by posting a revised version of this privacy policy or other notice on t he Site. We encourage
you to review this privacy policy often to stay informed of changes that may affect you . Our electronically or
otherwise properly stored copies of this privacy policy are each deemed to be the true, complete, valid,
authentic, and enforceable copy of the version of this privacy policy that was in effect on each respective date
you visited the Site.
K. Questions & Concerns. If you have any questions or comments, or if you have a concern about the way in
which we have handled any privacy matter, please contact us at support@vermontsystems.com. You may also
contact us by postal mail at:
RecTrac, LLC d/b/a Vermont Systems
Attn: Privacy
12 Market Place
Essex Junction, VT 05452
Page 49 of 79 216
EXHIBIT D
Page 50 of 79 217
AGREEMENT BETWEEN THE CITY OF MOORPARK AND
VERMONT SYSTEMS, INC., FOR SOFTWARE LICENSING,
MAINTENANCE , AND SUPPORT
THIS AGREEMENT ("Agreement"), is made and effective as of this /p M day of _ _____:--i.x,.~-Z..L.------' 2013, between the City of Moorpark, a
municipal corporation ("Ci ") and Vermont Systems , Inc., a Corporation , ("Contractor").
In consideration of the mutual covenants and conditions set forth herein, the parties
agree as follows:
WHEREAS , City has the need for recreation software, including maintenance
and support services; and
WHEREAS , Contractor specializes in providing such services and has the proper
work experience, certifications , and background to carry out the duties involved; and
WHEREAS, Contractor has submitted to City a Software License , Maintenance,
and Support Agreement, which is attached hereto as Exhibit A, and a Proposal
Summary Pricing (VSI Quote Number 34935), which is attached hereto as Exhibit B.
NOW, THEREFORE, in consideration of the mutual covenants , benefits, and
premises herein stated , the parties hereto agree as follows :
1. TERM
The term of this Agreement shall be from the date of execution to completion of
the work identified in Ex hibits A and B for a five-year term, unless this Agreement is
terminated, suspended , or amended pursuant to Section 6 of this Agreement. The City's
ability to use the licensed software shall be perpetual, non-transferable, and non-
exclusive .
2 . SCOPE OF SERVICES
City does hereby retain Contractor, as an independent contractor, in a
contractual capacity to provide RecTrac, WebTrac, and PayTrac ("Software") licensing
and maintenance , and support services, as set forth in Exhibits A and B. In the event
there is a conflict between the provisions of Exhibits A and B and this Agreement, the
language contained in this Agreement shall take precedence . Where Exhibits A and B
differ, the language in Exhibit B shall take precedence .
Compensation for the services to be performed by Contractor shall be in
accordance with Exhibit B. Compensation shall not exceed the rates or total contract
value of twenty one thousand five hundred ten dollars ($21 ,510.00) for the purchase of
the software, installation , and training ; and two thou sand nine hundred eighty two
dollars ($2,982 .00) yearly for annual maintenanc e, without a written amendment
Page 51 of 79 218
executed by both parties . Payment by City to Contractor shall be in accordance with the
provisions of this Agreement.
3. PERFORMANCE
Contractor shall at all times faithfully, competently and to the best of their ability,
experience, standard of care, and talent, perform all tasks described herein. Contractor
shall employ, at a minimum, generally accepted standards and practices utilized by
persons engaged in provid ing similar services as are required of Contractor hereunder
in meeting its obligations under this Agreement.
4. MANAGEMENT
The individual directly responsible for Contractor's overall performance of the
Agreement provisions herein above set forth and to serve as principal liaison between
City and Contractor shall be David Wirtz, Sales Manager, and no other individual may
be substituted without the prior written approval of the City Manager.
The City's contact person in charge of administration of this Agreement, and to
serve as principal liaison between Contractor and City, shall be the City Manager or the
City Manager's designee.
5. PAYMENT
Contractor must submit to City a completed Internal Revenue Service (IRS) Form
1099, before payments may be made by City to Contractor.
The City agrees to pay Contractor in accordance with the payment rates and
terms and the schedule of payment as set forth in Exhibit B, paying the full purchase
price within thirty (30) days of installation.
Contractor shall not be compensated for any services rendered in connection
with its performance of this Agreement, which are in addition to those set forth herein,
unless such additional services are authorized in advance by a written Amendment to
this Agreement executed by both parties. Contractor shall be compensated for any
additional services in the amounts and in the manner as agreed to by City Manager and
Contractor at the time City's written authorization is given to Contractor for the
performance of said services .
Contractor shall submit invoices for annual maintenance and support services.
Payment shall be made within thirty (30) days of receipt of each invoice.
6. TERMINATION OR SUSPENSION WITHOUT CAUSE
The City may, within the first twelve (12) months of this Agreement following full
execution by both parties, for any reason, with or without cause, suspend or terminate
this Agreement, or any portion hereof, by serving upon the Contractor at least thirty (30)
Agreement between City of Moorpark and Vermont Systems Page 2
Page 52 of 79 219
days prior written notice. Upon receipt of said notice, the Contractor shall immediately
cease all work under this Agreement, unless the notice provides otherwise.
The Contractor may within the first twelve (12) months of this Agreement,
following full execution by both parties, terminate this Agreement by providing City with
written notice no less than six (6) months in advance of such termination.
In the event this Agreement is terminated or suspended by City or Contractor
pursuant to this Section, the City shall pay to Contractor the actual value of the work
performed up to the time of termination or suspension. Upon termination or suspension
of the Agreement pursuant to this Section, Contractor will submit an invoice to the City
pursuant to this Agreement payable within thirty (30) days of receipt of the invoice.
In the event that neither party gives notice prior to the end of the initial or any
subsequent twelve ( 12) month term, this Agreement will automatically renew for an
additional twelve (12) month term.
7. DEFAULT OF CONTRACTOR
The Contractor's failure to comply with the provisions of this Agreement shall
constitute a default. In the event that Contractor is in default for cause under the terms
of this Agreement, City shall have no obligation or duty to continue compensating
Contractor for any work performed after the date of default and can terminate or
suspend this Agreement immediately by written notice to the Contractor . If such failure
by the Contractor to make progress in the performance of work hereunder arises out of
causes beyond the Contractor's control, and without fault or negligence of the
Contractor, it shall not be considered a default.
If the City Manager or the City Manager's designee determines that the
Contractor is in default in the performance of any of the terms or conditions of this
Agreement, designee shall cause to be served upon the Contractor a written notice of
the default. The Contractor shall have thirty (30) days after service upon it of said notice
in which to cure the default by rendering a satisfactory performance. In the event that
the Contractor fails to cure its default within such period of time, the City shall have the
right, notwithstanding any other provision of this Agreement, to terminate this
Agreement without further notice and without prejudice to any other remedy to which it
may be entitled at law, in equity or under this Agreement.
8 . LIQUIDATED DAMAGES
This section is intentionally deleted .
9. OWNERSHIP OF DOCUMENTS
Upon full and complete payment of submitted invoices for the purchase and
installation of the Software, City shall own the Software. Upon termination of this
Agreement between City of Moorpark and Ve rmont Systems Pag e 3
Page 53 of 79 220
Agreement, City shall continue to own Software and data files with relation to this
Agreement, and Contractor shall make such content available to City in a manner
agreed upon by both parties.
10. INDEMNIFICATION AND HOLD HARMLESS
Contractor shall indemnify, defend and hold harmless City, and any and all of its
officers, employees, and agents ("City lndemnitees") from and against any and all
causes of action, claims, liabilities, obligations, judgments, or damages, including
reasonable legal counsels' fees and costs of litigation ("claims"), arising out of the
Contractor's performance of its obligations under this Agreement or out of the
operations conducted by Contractor, including the City's active or passive negligence,
except for such loss or damage arising from the sole negligence or willful misconduct of
the City. In the event the City lndemnitees are made a party to any action, lawsuit, or
other adversarial proceeding arising from Contractor's performance of this Agreement,
the Contractor shall provide a defense to the City lndemnitees or at the City's option
reimburse the City lndemnitees their costs of defense, including reasonable legal
counsels' fees incurred in defense of such claims.
Contractor agrees to obtain executed indemnity agreements with provisions identical to
those set forth in this Section from each and every subcontractor, or any other person or
entity involved by, for, with, or on behalf of Contractor in the performance of this
Agreement. In the event Contractor fails to obtain such indemnity obligations from
others as required here, Contractor agrees to be fully responsible according to the
terms of this Section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on
the successors, assigns, or heirs of Contractor and shall survive the termination of this
Agreement or this Section.
City does not and shall not waive any rights that it may have against Contractor by
reason of this Section, because of the acceptance by City, or the deposit with City, of
any insurance policy or certificate required pursuant to this Agreement. The hold
harmless and indemnification provisions shall apply regardless of whether or not said
insurance policies are determined to be applicable to any losses, liabilities, damages,
costs, and expenses described in this Section .
11. INSURANCE
Contractor shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit C attached hereto and
incorporated herein by this reference as though set forth in full.
Agreement between City of Moorpark and Vermont Systems Page 4
Page 54 of 79 221
12. INDEPENDENT CONTRACTOR
Contractor is and shall at all times remain as to the City a wholly independent
Contractor. The personnel performing the services under this Agreement on behalf of
Contractor shall at all times be under Contractor's exclusive direction and control.
Neither City nor any of its officers, employees, or agents shall have control over the
conduct of Contractor or any of Contractor's officers, employees, or agents, except as
set forth in this Agreement. Contractor shall not at any time or in any manner represent
that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the City. Contractor shall not incur or have the power to incur
any debt, obligation, or liability against City, or bind City in any manner.
No employee benefits shall be available to Contractor in connection with the
performance of this Agreement. Except for the fees paid to Contractor as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Contractor
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to Contractor for injury or sickness arising out of performing services
hereunder.
13. LEGAL RESPONSIBILITIES
The Contractor shall keep itself informed of local, state and federal laws and
regulations which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Contractor shall at all times
observe and comply with all such laws and regulations. The City, and its officers and
employees, shall not be liable at law or in equity occasioned by failure of the Contractor
to comply with this Section.
14. ANTI DISCRIMINATION
Neither the Contractor, nor any sub-Contractor under the Contractor, shall
discriminate in employment of persons upon the work because of race, religious creed,
color, national origin, ancestry, physical handicap, medical condition, marital status, or
gender of such person, except as provided in Section 12940 of the Government Code.
The Contractor shall have responsibility for compliance with this Section [Labor Code
Sec. 1735].
15. UNDUE INFLUENCE
Contractor declares and warrants that no undue influence or pressure is used
against or in concert with any officer or employee of the City in connection with the
award, terms or implementation of this Agreement, including any method of coercion,
confidential financial arrangement, or financial inducement. No officer or employee of
the City will receive compensation, directly or indirectly from Contractor, or any officer,
employee or agent of Contractor, in connection with the award of this Agreement or any
work to be conducted as a result of this Agreement. Violation of this Section shall be a
Agreement between City of Moorpark and Vermont Systems Page 5
Page 55 of 79 222
material breach of this Agreement entitling the City to any and all remedies at law or in
equity.
16. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of the City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the
Services during his/her tenure or for one (1) year thereafter, shall have any interest,
direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work
to be performed in connection with the Services performed under this Agreement.
17. CONFLICT OF INTEREST
Contractor covenants that neither they nor any officer or principal of their firm
have any interests, nor shall they acquire any interest, directly or indirectly, which will
conflict in any manner or degree with the performance of their services hereunder.
Contractor further covenants that in the performance of this Agreement, they shall
employ no person having such interest as an officer, employee, agent, or sub-
contractor.
18. NOTICE
Any notice to be given pursuant to this Agreement shall be in writing, and all such
notices and any other document to be delivered shall be delivered by personal service
or by deposit in the United States mail, certified or registered, return receipt requested,
with postage prepaid, and addressed to the party for whom intended as follows:
To: City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
To: Vermont Systems, Inc.
David Wirtz
12 Market Place
Essex Junction, Vermont 05452
Either party may, from time to time, by written notice to the other, designate a
different address or contact person, which shall be substituted for the one above
specified. Notices, payments and other documents shall be deemed delivered upon
receipt by personal service or as of the third (3rd) day after deposit in the United States
mail.
Agreement between City of Moorpark and Vermont Systems Page 6
Page 56 of 79 223
19. CHANGE IN NAME
Should a change be contemplated in the name or nature of the Contractor's legal
entity, the Contractor shall first notify the City in order that proper steps may be taken to
have the change reflected in the Agreement documents.
20. ASSIGNMENT
Contractor shall not assign this Agreement or any of the rights, duties or
obligations hereunder. It is understood and acknowledged by the parties that Contractor
is uniquely qualified to perform the services provided for in this Agreement.
21 . LICENSES
At all times during the term of this Agreement, Contractor shall have in full force
and effect, all licenses required of it by law for the performance of the services in this
Agreement.
22. VENUE AND GOVERNING LAW
This Agreement is made, entered into, and executed in Ventura County,
California, and any action filed in any court or for arbitration for the interpretation,
enforcement or other action of the terms, conditions, or covenants referred to herein
shall be filed in the applicable court in Ventura County, California. The City and
Contractor understand and agree that the laws of the State of California shall govern the
rights, obligations, duties, and liabilities of the parties to this Agreement and also govern
the interpretation of this Agreement.
23. COST RECOVERY
In the event any action , suit or proceeding is brought for the enforcement of, or
the declaration of any right or obligation pursuant to this Agreement or as a result of any
alleged breach of any provision of this Agreement, the prevailing party shall be entitled
to recover its costs and expenses from the losing party, and any judgment or decree
rendered in such a proceeding shall include an award thereof.
24. ARBITRATION
Cases involving a dispute between City and Contractor may be decided by an
arbitrator if both sides agree in writing , with costs proportional to the judgment of the
arbitrator.
25. FORCE MAJEURE
No party shall have any liability to the other hereunder by reason of any delay or
failure to perform any obligation or covenant if the delay or failure to perform is
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occasioned by force majeure, meaning any act of God , storm, fire, casualty,
unanticipated work stoppage, strike, lockout, labor dispute, civic disturbance, riot, war,
national emergency, act of Government, act of public enemy, or other cause of similar
or dissimilar nature beyond its control.
26. ENTIRE AGREEMENT
This Agreement and the Exhibits attached hereto contain the entire
understanding between the parties relating to the obligations of the parties described in
this Agreement. All prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into this Agreement and
shall be of no further force or effect. Each party is entering into this Agreement based
solely upon the representations set forth herein and upon each party's own independent
investigation of any and all facts such party deems material.
27. CAPTIONS OR HEADINGS
The captions and headings of the various Articles, Paragraphs, and Exhibits of
this Agreement are for convenience and identification only and shall not be deemed to
limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof.
28. AMENDMENTS
Any amendment, modification, or variation from the terms of this Agreement shall
be in writing and shall be effective only upon approval by both parties to this Agreement.
29 . PRECEDENCE
In the event of conflict, the requirements of the City's Request for Proposal, if
any, and this Agreement shall take precedence over those contained in the Contractor's
Proposal.
30. INTERPRETATION OF AGREEMENT
Should interpretation of this Agreement, or any portion thereof, be necessary, it is
deemed that this Agreement was prepared by the parties jointly and equally, and shall
not be interpreted against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
31. WAIVER
No waiver of any prov1s1on of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision . No waiver
shall be binding unless executed in writing by the party making the waiver.
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32. AUTHORITY TO EXECUTE
The person or persons executing this Agreement on behalf of the Contractor
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Contractor and has the authority to bind Contractor to the performance of
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK VERMONT SYSTEMS, INC.
Attest:
Maureen Benson, City Clerk
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Exhibit A
VERMONT SYSTEMS, INC.
SOFTWARE LICENSE, MAINTENANCE AND SUPPORT AGREEMENT
This SOFTWARE LICENSE, MAINTENANCE AND SUPPORT AGREEMENT ("Agreement"), is
made and entered into on _______ , by and between Vermont Systems, Inc., a Vermont
corporation (hereinafter "VSI" or "Licensor", and City of Moorpark, California (hereinafter
"Customer" or "Licensee"), collectively referred to herein as the "Parties" or singularly "Party ".
In cons ideration of the mutual covenants and obligations expressed herein, the Parties agree to the
following:
ARTICLE I -Software License
1.1 VSI shall provide the Licensee and the Licensee agrees to accept a perpetual, non-transferable,
and non-exclusive right to use the Licensed Software and Related Materials, as described in the
attached Exhibit B price quote. The Licensed Software includes Related Materials, such as User
Reference Manuals, Reports Manuals, Installation Planning Guides, Installation Instructions, On-
Line Help, and Sample Database with Tutorials.
1.2 VSI uses the Progress OpenEdge V 10 Development software to develop its' applications and
d eploys using the OpenEdge Deployment software that includes Client Networking, Web Client,
Load Balancer, and Personal, Workgroup, or Enterprise RDBMS (embedded database) w ith
RDBMS support for 4GL, SQL, ODBC, JDBC, and Enterprise Cluster Manager Integration, and
OpenEdge Application Server, Basic and Enterprise Editions with Replication. Therefore,
Progress software with RDBMS is required to operate the application software by platform type,
and they are included in the attached Exhibit B.
1 .3 The license granted herein authorizes the Customer to install the Licensed Software on the
designated computer platform for live processing and on testing/disaster recovery systems
without incurring additional license charges. Further, the Customer can make copies of t he
Licensed Software for safe keeping purpose s only. (If VSI is providing complete hosting
services, Item 1.3 does not apply)
1.4 At any time, the Customer can add software and users under the terms of this Sales Agreement by
paying the additional license and maintenance fees . The total number of authoriz ed user
workstations permitted to u se the Licensed Software is limited to the number listed in Exhibit B.
ARTICLE 2 -Annual Software Maintenance and Support Services
2.1 VSI shall provide the Licensee with Software Maintenance and Software Support services for the
Licensed Software in accordance with VSI standard Sales and Support Policies, a s describe d in
Exhibit A. The extent of s upport services being provided are specifically listed in Exhibit B .
2.2 The Annual Software Maintenance support shall include distribution of product update re le ases,
including software repairs and enhancements subsequent to the initial purchase. Biennial
software updates will be distributed in accordance with VSI standard Sales and Support Policies,
as described in Exhibit A, while periodic program only updat es are available at any time. If VSI
is providing complet e hosting services, VSI will provide software installation and upgrade
services and coordinate both with each Licensee .
2.3 The Software Mainte nance and Support fee will be billed annually, and it b e comes effe ctive on
the first day of your July 1st fiscal year for one y e ar. New customers will be charged on a
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prorated basis from the first day of the installation month through the end of the current fiscal
year.
2.4 The required Software Maintenance and Support Agreement will automatically renew annually,
unless the Licensee notifies VSI in writing that the Licensee is terminating VSI Maintenance
Support. VSI reserves the right to increase annual maintenance fees annually. Customers can
contact VSI in advance to obtain a firm quote for the next fiscal year.
ARTICLE 3 -Software Training and Installation Services
3.1 Training is offered at the Customer site, at VSI (12 Market Place, Essex Junction, Vermont), and
remotely based on a quoted daily rate, as described in the VSI standard Sales and Support
Policies, Exhibit A.
3.2 Any training services and estimated charges for each Licensee, including the number of training
days, and travel, lodging, meals, and other expenses, are itemized in Exhibit B. All training dates
must be mutually agreed upon by VSI and the Licensee. The Licensee can request a change of
training dates and number of training days. However, if a change is made after travel
arrangements have been completed, the Licensee will be responsible for any additional costs
incurred as a result of the changes.
3.3 If VSI is providing other Installation Services, such as hardware and network operating system
installation and setup services, they will be listed in Exhibit B, as well.
3.3 The Licensee is responsible for reimbursing VSI for all reasonable expenses, such as travel,
lodging, meals, and other expenses necessary to complete the training, as requested by the
Customer. While the estimated out-of-pocket expenses are listed in Exhibit B, only the actual
expenses will be billed to the Customer, unless the Customer requires a fixed price in advance.
3.4 VSI will honor training and other services quotes for up to 120 days, but reserves the right to
modify these rates thereafter.
ARTICLE 4 -VSI Hosting Services
4.1 If the Web Trac software is being licensed, it requires a web server, either in-house or hosted, to
link the Customer's transaction server with the internet. If the Customer selects the VSI hosting
option for a minimum of one year, the fee will be included in Exhibit B and it will be billed
annually in advance. New customers will be charged on a prorated basis fr om the first day of the
installation month through the end of the current fiscal year. Exhibit C web server hosting does
not apply to this Agreement.
4.2 If the Customer selects complete VSI hosting services, whereby the VSI application software and
Progress software are installed on VSI servers at the Tech Vault data center, the monthly fee for
this option will be included in Exhibit B. Since VSI will not be providing complete hosting
services for the Licensee, Exhibit D hosting services specifications do not apply to this
Agreement.
4.3 Hosting services rates are guaranteed for one year.
ARTICLE 5 -Charges and Payment
5.1 Customer On-Premise Hosted Software -if the Customer is installing the software on its own
servers, the Licensed Software charges will be billed to the Customer when shipped or following
the initial training session, based on circumstances, and will be due within 30 days.
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5.2 VSI Hosted Software: if VSI is providing complete Hosting Services, VSI will install the
software on the Customer's servers at the Tech Vault data center. The Licensed Software charges
will be billed to the Customer when the software applications become available for Customer use
or following the initial training session, and will be due within 30 days.
5.3 For Customer On-premise Hosted Software, the initial Software License fee includes ground
shipping of the DVD that contains the software and electronic copies of all documentation. If
special shipping is requested, the Customer shall pay all associated additional charges. Any third
party shipping costs for hardware and software are chargeable.
5.4 The Customer shall pay all applicable sales, consumer use, and other taxes required by law,
unless it is exempt from any or all of these taxes. If tax-exempt, the Licensee must provide a tax
exemption certificate.
5.5 VSI will invoice the Customer for training and installation services, along with travel and other
expenses, immediately following the completion of each occurrence of training or other services.
5.6 VSI Hosting Services fees will be due on the first day of each month.
ARTICLE 6-Security of Programs
6.1 The Customer shall be solely responsible for the supervision and control of the licensed Customer
hosted software to ensure that it is stored in a secure location for Customer use only and that no
unauthorized and unlicensed third party gains access to it. VSI is responsible for the security of
all VSI hosted software.
6.2 Under no circumstances shall the Customer be authorized to perform Reverse Engineering of the
software object code, in order to illegally generate source code.
ARTICLE 7-Warranties
7 .1 VSI warrants that it has the right to license the Licensed Software, and that there are no pending
liens, claims, or encumbrances against the software.
7 .2 VSI warrants that the software shall conform to its published specifications in the Related
Materials , including, but not limited to, the Capabilities Summary, On -Line Help, Reports
Manual, User Reference Manual, and Training Tutorials. VSI warrants that the software is
merchantable, in that it will properly install and operate according to the specifications herein.
7 .3 VSI warrants to the Customer that it is solvent, not in bankruptcy proceedings or receivership, nor
is it engaged in any proceedings, which would have an adverse effect on its ability to perform its
obligations under this Agreement.
7.4 VSI warrants that there has been no violation of copyrights or patent rights in connection with the
Licensed Software in this Agreement. VSI shall indemnify and save harmless the Licensee from
any suit or proceeding brought against the Licensee by reason of any such infringement or any
wrongful use. VSI will defend or settle any such claim, although the Licensee shall be entitled to
be independently represented by counsel of its own choice.
ARTICLE 8 -Limitation of Liability
8.1 Except for the warranties specified in Section 7, VSI grants no warranties, expressed or implied,
including, but not limited to any implied warranties of fitness for a particular purpose.
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Notwithstanding anything to the contrary in this Agreement, it is expressly agreed that neither
VSI nor the Customer shall be liable to the other Party for special, incidental, indirect, or
consequential damages, or for any loss or claim by either Party.
8.2 The Parties agree that the laws of the State of Vermont will govern this Agreement, and that
the venue for legal resolution shall be in Chittenden County, Vermont.
ARTICLE 9 -Risk of Loss
9.1 For Customer hosted installations, the risk ofloss or destruction, regardless of the cause, shall be
the responsibility of VSI until the Licensed Software and Related Materials have been delivered
to the Customer's premises. For VSI hosted installations, VSI will be responsible for the risk of
loss or destruction.
9.2 For Customer hosted installations, the Customer shall be responsible for verifying that the
Licensed Software and Related Materials have been received, installed on the designated
computer(s), and are operational, unless the Agreement specifies that VSI will install the
Licensed Software as part of the on-site training. For VSI hosted installations, VSI will be
responsible for installing the software on the Customer' servers.
ARTICLE 10 -Application Source Code
10.1 The Source Code for all VSI application software, along with a list of licensed customers, is held
in escrow by VSI's Escrow Agent, Kolvoord, Overton, & Wilson, Attorneys, at 6 Joshua Way,
Suite B, Essex Junction, Vermont 05452, Attn: Jason Ruwet 802-878-3346, ifr@essexvtlaw.com.
The source code held in escrow is updated after each software release. If VSI defaults in
providing software maintenance support due to company failure, or discontinuance of said service
by VSI or VSI's bankruptcy, then the source code will be made available to the Customer within
thirty days of written notice by the Escrow Agent for Customer support use only.
ARTICLE 11-Independent Contractor
11.1 In performing the work under this Agreement, VSI acts as an Independent Contractor and is
solely responsible for necessary and adequate workers ' compensation insurance, as well as
personal injury and property damage insurance.
ARTICLE 12 -Change Orders or Extensions
12.1 The Customer may require changes in the scope of services to be performed by VSI. Such
changes, including any increase or decrease in compensation amount, must be mutually agreed
upon in writing by the Licensee and VSI. VSI shall be compensated for all authorized changes in
services.
ARTICLE 13 -Authorization and Entire Agreement
13 .1 Each party represents and warrants that it has the power and ability to enter into this Agreement,
to grant the rights stated herein, and to perform the duties and obligations described herein.
13.2 This Agreement and the attached Exhibits constitute the entire Agreement between Vermont
Systems and the Licensee.
13 .3 If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced,
then all other conditions and provisions of this Agreement shall nevertheless remain in full force
and effect.
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Vermont Systems, Inc. Licensee
~_)~ ~rizedSi~ Authorized Signature
Kate W. Mitchell, Vice President
Printed Name and Title Printed Name and Title
~\~?J
Date \, " Date
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Customer Sales and Support Policies
1. SOFTWARE LICENSE:
The application software license is a one-time fee, which provides for the perpetual use of the
software. While a deposit will not be required, the full software license fee is due for all accounts
within 30 days of completion of the first training session. The Progress OpenEdge VlO Application
Server software and Personal, W orkgroup, or Enterprise Relational Database Management System
(RDBMS imbedded database) software licenses are also required to operate the VSI Windows
W ebClient/Client application software.
2. ANNUAL SOFTWARE MAINTENANCE AND SUPPORT:
The required annual maintenance support fee is prorated from the first day of the installation month to
the end of the first fiscal year, and thereafter, it is due annually on the first day of each new fiscal
year. This fee includes the following: Worldwide telephone (800 US & Canada) and web support for
VSI and Progress software five (5) days/week, Monday-Friday, 8am-8pm ET, and availability of
chargeable Extended Hours Pager Support Monday-Friday, 8pm-1 0pm ET, and Saturday, Sunday,
& Holidays 8am-5pm ET. Further, Pre-Arranged Non-Standard Hours Pager Support is also
available, as described in Section 4 below. The following are included:
Maintenance and repair of application software malfunctions with an acknowledgement response,
as described in the Call Process, Section 5 below.
One major application software upgrade every two years, along with multiple optional periodic
updates. Major upgrades usually require a database conversion, while other periodic updates are
program only. Enhancements are based primarily on user requests, but they also include an
extensive number ofVSI initiated improvements, all of which are added at the discretion ofVSI.
In its' quarterly newsletter, VSI notifies all Customers regarding the status and availability of all
software releases. The same data is available on the VSI web site at all times. Customers must
request all major software upgrades, which are distributed on a DVD with standard ground
shipping. Program only updates can be downloaded via VSI's web page
www.vermontsystems.com under Support or by requesting the update DVD at any time.
One biennial database conversion by VSI via FTP or W ebEx during standard VSI business hours.
VSI FTP/W ebEx database conversion services are only chargeable, if started and/or completed
during non-standard VSI business hours (before 8am and after 5pm ET, Monday through Friday
and on weekends and holidays). Please note that all non-production database conversions are
billable at standard VSI support rates.
Federal and State regulatory requirement changes.
User ID and Password login access to Customer Support and Downloads sections on VSI web
site.
Phone support to explain how to configure database, how system works, and how to prepare for
implementation of certain functions , such as those listed below under Extended Dedicated
Support.
Updates to financial and other interfaces due to VSI application software modifications and not
due to application software modifications by other vendors.
Any of the following costs associated with customer support are not included:
Actual usage of Extended Hours Pager/Telephone Support at rates listed in Section 4 below.
Pre-Arranged Non-Standard Extended Hours Pager/Telephone Support is chargeable with a
minimum of four hours, which can be nonconsecutive, as described in Section 4 below.
Any associated travel and out-of-pocket expenses for installation and training services.
Installation and configuration of product enhancements or releases, database repairs, and more
than one bi-annual database conversion are chargeable, unless VSI is providing hosted services ..
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Telephone support related to computer hardware, operating systems, networking, and
reinstallation and configuration of application software is chargeable. If the hardware and
software configurations are modified after VSI has completed on-site or telephone installation
services, additional requested support services are chargeable.
Telephone training, as a substitute for on-site training or classroom training at VSI, as well as for
untrained operators, is chargeable. Refer to Sections 6 and 7 below for hourly pricing.
VSI application software WAN Client access configuration.
Customized print programs and updates are chargeable at the rate listed under Section 6 below.
Interfaces to export or import data from or to other application software databases are chargeable.
Extended Dedicated Support to implement or change certain functions, such as 1) Switching from
Cash to Accrual Accounting; 2) Reinstall WebTrac software on server; 3) Customize Splash
Page; 4) Create Web Bypass Links; 5) WebTrac Style Sheets changes; and, 6) Database Support
to analyze and correct out-of-balance condition.
3. PROGRAMMING ENHANCEMENTS:
Although our policies provide for charging for special programming, we generally do not charge for
individual enhancement requests. All approved enhancements and repairs are automatically included
in all updates as part of the annual maintenance fee .
4. VSI EXTENDED HOURS PAGER/TELEPHONE SUPPORT SERVICES PRICING:
Standard Extended Hours Pager/Telephone Support
Monday -Friday 8pm -l 0pm ET, and Saturday, Sunday, & Holidays 8am-5pm ET. If extended
hours support is actually provided, it is chargeable at $100/hour with a minimum of $50 per call or
multi-call issue.
Pre-Arranged Non-Standard Extended Hours Pager/Telephone Support
Non-Standard Extended Hours support may be pre-arranged by calling VSI at least one full bus iness
day in advance. While the stand-by rate is $50/hour with a minimum of 4 hours, the actual extended
pager support is chargeable at $150/hour with a minimum of $75 per issue, which could involve
multiple phone calls. VSI reserves the right to modify these extended hours pager rates at any time.
5. SUPPORT CALL PROCESS:
To provide high quality support and to effectively assign resources to incoming calls, three types of
call priorities are identified as follows: Priority 1 is considered Urgent or High Priority, Priority 2 is
classified as Medium Priority, and Priority 3 is deemed to be Low Priority. The criteria used to
establish guidelines for these priorities are as follows:
Priority 1 -High
Consists of errors that cause unrecoverable loss or corruption of data or loss of essential software
functionality that prevents Customer processing, and the re is no workaround. Generally, the
system would be down.
Priority 2 -Medium
Consists of errors that cause loss of essential software functionality that prevents Customer
processing, but has a workaround, or loss of non-essential software functionality that does not
have a workaround. Generally, the sy s te m is not down, but the problem is causing st aff
inconvenience.
Prior ity 3 -Low
Consists of errors that may be ca u sing loss of non-essential software functionality, but have a
workaround. While the system is not down generally, the Customer's operational questions need
to be resolved.
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Response Times
VSI will respond to Priority 1-3 support calls in accordance with The Table of Service below, and
all time references are clock hours or calendar days, unless otherwise specified. The Customer
will use the VSI telephone number or support email address during standard VSI business hours,
as described in Section 2, or the VSI pager number during standard pager support hours, as
described in Section 4. The Customer can also call the pager number to request support during
pre-arranged non-standard pager support hours, as described in Section 4. The Customer and VSI
support person may also use cell phones for more efficient responses.
All issues or questions reported to support are tracked via a logged support call that contains at a
minimum the Customer name, contact person, software product and version, module and/or menu
selection, nature of issue, detailed description of the question or issue, and any other pertinent
information. The support person will provide the Customer with a call number to track each call
issue. Each call will be stored in a queue and the first available support representative will be
assigned to the next call issue.
While reviewing the call issue, the assigned support person will contact the Customer, if
additional information is needed. The VSI support person will either resolve the issue with the
Customer or advise the Customer regarding the status and the course of action being taken to
resolve it. All correspondence and actions associated with a call are tracked in the support
database. If the issue needs to be escalated to a development resource, the Customer will be
informed. While issues escalated to development will be scheduled for resolution, they may not
be resolved immediately depending on the nature and complexity of the issue. The Customer
may contact the support department at its convenience for a status update on development issues.
Escalation Process
In the event that VSI is unable to provide either a permanent or a mutually acceptable temporary
resolution within the applicable timeframes set forth in the Table of Service below, VSI will
initiate escalation procedures at VSI's sole expense, except if due to hardware malfunctions,
utility failures, air conditioning malfunctions, non VSI software problems, communications
malfunctions, environmental problems, user errors or any other cause outside VSI's reasonable
control, in which case VSI may charge the Customer at the hourly rates listed in Sections 4, 6, &
7. However, VSI will continue to assist the Customer to resolve the problem, even when VSI and
Customer may not agree on the cause of the problem.
Table of Service Requirements.
The table below lists the service level required by the three Priority levels described above:
Service Level Required Priority 1 Priority 2 Priority 3
(time measured from initial call to VSI)
Initial Response Due 1 hour 4 hours 5 days
Correction identified and a mutually 24 hours 7 days As mutually
agreeable correction plan will be developed agreed
within
Escalation Stage 1 (Support Managers) 12 hours 7 days NIA
Stage 1 Status R eport Intervals Every 4 hours daily NIA
during standard
business hours
Escalation Stage 2 (Vice President of 24 hours 7 days NIA
Support)
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Stage 2 Status Report Intervals Every 4 hours daily NIA
during standard
business hours
Escalation Stage 3 (President) 72 hours 10 days NIA
6. VSI SUPPORT SERVICES PRICING (Non-Military)
The on-site training rate is $720 per 8-hour day, plus out-of-pocket travel expenses. The VSI
classroom-training rate is $720 per 8-hour day for up to two trainees and $150 per day for each
additional trainee. Other services include 800 telephone training at $100/hour, programming,
hardware, and network configuration support services at $1040/day or $130/hour. Any hours in
excess of eight are chargeable. Travel time is charged at $360 daily plus travel expenses. VSI
reserves the right to modify these rates at any time.
7. VSI WEEKEND SUPPORT SERVICES PRICING (Non-Military):
The weekend training rate is $1,080/day, while the hourly rate is $150 with a two-hour minimum. If
the Customer asks the VSI Trainer to stay over a weekend, in order to save on travel costs, and no
training is provided, the rate is $250/day, plus all normal travel expenses. VSI reserves the right to
modify these rates at any time.
8. ON-SITE TRAINING SHORT NOTICE CANCELLATION PENALTY:
If scheduled on-site training is cancelled with less than 3 weeks' notice, the Customer will be
responsible for any travel expenses losses, as well as a $500 penalty to partially offset VSI Trainer
rescheduling costs.
9. TRAINING CANCELED DURING SCHEDULED ONSITE TRAINING WEEK:
If the Customer cancels training for any reason (weather, traine e sickness, etc) while the VSI Trainer
is onsite, Customer must still pay VSI daily rates for training and travel expenses.
10. TELEPHONE SUPPORT:
Telephone support worldwide, during VSI standard business hours, is included in the Annual
Software Maintenance and Support fee, provided that VSI has previously trained the individuals
being supported. Otherwise, chargeable telephone or on-site training must be completed.
11. APPLICATION SOFTWARE SOURCE CODE:
The Source Code for the VSI application softw are, along with a list of licensed customers, is held in
escrow by VSI's Escrow Agent, Kolvoord, Overton, & Wilson, Attorneys, at 6 Joshua Way, Suite B,
Essex Junction, Vermont 05452, Attn: Jason Ruwet, 802 -878-33 46, jfr@essexvtlaw.com. If VSI
defaults in providing software mainte nance support due to company failure, discontinuance of support
services, or VSI's bankruptcy, the Escrow Agent will make the source code available to the Customer
within thirty days of written notice by the Escrow Agent. The source code can only be used to
support each VSI licensed customer.
12. DOCUMENTATION:
All documentation is provided electronically on a DVD by application and it includes the User
Reference Manual, Installation Planning Guide, Reports Manual, Installation Instructi ons , On-Line
Help, and Sample Database with Tutorial. Customers can print any number of copies needed to train
their staffs and manage their operations. Hard copy manuals are available at $75 each and this
amount is subject to change.
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13. INSTALLATION PLANNING:
After receiving your order, VSI will assist you to develop a plan, which will assign Customer and
VSI responsibilities for the various elements required to successfully complete the installation and
training.
14. THIRD PARTY VENDOR GENERAL LEDGER/CASH RECEIPTS INTERFACE
PROCEDURES:
The VSI Trainer will configure RecTrac/GolITrac software for the appropriate vendor interface and
will show the Customer how to generate the batch export file that contains the summary or detailed
transactions for the day (or any date range). At this point, it is the Customer's responsibility to
contact the financial software vendor to arrange for assistance to import the daily batch file for
automatic posting to the cash receipts or general ledger system. The VSI trainer is not responsible for
importing the batch files into any third party application software or for contacting the vendor.
15. HARDWAREPAYMENT&WARRANTY:
Full payment for the hardware and systems software is due following delivery, after verification of
the order. The verification process must be completed, so that all payments can be made within 30
days of delivery. The VSI supplied hardware includes Warranties from the manufacturers or
distributors for specified periods. Please review the Warranty chart provided by VSI. After the
warranty period or add-on warranty period, hardware vendors also provide time and materials
maintenance support. Warranty and Maintenance Contract service provided on a Depot Basis can
require several days to complete. Therefore, plan your purchases to include spare critical units, in
order to provide your users with uninterrupted operations.
16. VSI POS HARDWARE SUPPORT:
To support our POS software applications , VSI offers a broad range of hardware computers and
peripherals that we have evaluated, qualified, and configured to function properly with our software.
This requires an extensive investment of resources including labor and the purchase of one or more of
each type hardware product. Further, these hardware products are essential to support our customers
and for testing each software upgrade. Most customers appreciate the availability of these qualified
products, since it saves them from experiencing the same expensive process.
Our priority is to offer only high quality products with extended warranties at competitive prices , but
not necessarily at the lowest prices. A qualified product that is competitively priced is much more
important than the lowest price. More often than not a lower priced, unqualified product will
eventually cost much more for all concerned. VSI hardware support policies are as follows:
Qualified POS Hardware Purchased from VSI -Full Support:
VSI will be responsible for ordering the properly configured hardware with the correct cables and
other features, delivery, installation and configuration assistance, toll free telephone support, and
warranty service arrangements, as needed.
Qualified POS Hardware Purchased from Another Source -Partial Support:
VSI is not responsible for resolving problems resulting from incorrectly ordered hardware, resulting
installation and configuration problems, and warranty service arrangements. However, VSI will
provide limited guidance and support, during the installation of the hardware. If issues are not
resolved within a few minutes, then VSI will continue to provide 800 phone assistance at the standard
VSI rate of $100 per hour.
Non-Qualified POS Hardware Purchase from another Source -Limited Support:
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VSI does not support non-VSI qualified POS hardware using our 800 support lines. However, if a
customer calls for assistance and the VSI support person determines that the request is for a non-
qualified product, he/she will discuss options as follows: 1) Select qualified hardware on the VSI
price list, or 2) Discuss qualifying a new product with VSI management. If a customer requests VSI
to consider qualifying a non-qualified product, we will evaluate the circumstances, and if justified,
will attempt to qualify. In order to proceed, the customer must send an evaluation unit to VSI and we
will attempt to qualify it at the rate of $100/hour. The customer must specify a qualifying spending
limit. If successful, VSI may or may not add the product to our price list. If added, VSI will continue
to support the product, as described under qualified hardware options. If not, any on-going qualifying
that might be required, as a result of hardware or software upgrade changes, will be chargeab le at
$100/hour.
POS Hardware Onsite Installation Support:
If you expect the VSI Trainer to install POS hardware during an onsite training trip, you must allocate
sufficient time in the schedule to complete the software training and the hardware installation and
configuration. The time allocated will vary based on the three situations described above, but the
most time-consuming will involve hardware that VSI has not qualified. The time allocated will al so
vary depending on the number units to be installed. If the VSI Trainer installs and configures the
hardware during a normal 8-hour workday, then this would be included in the previously approved
onsite training fee. If the VSI Trainer is required to work in excess of 8 hours on any given day, in
order to complete the hardware setup and software training during the scheduled onsite visit, then the
Customer will be billed for overtime fees .
Agreement between City of Moorpark and Vermont Systems Page 20
Page 70 of 79 237
Exhibit B
Ver mont ,r ~ Systems
Proposal Summary Pricing
VSI Quote Number: 34935
~ ..J P.~r'.r..=,n -lcn ,!.: Per ks Sn :N,mA
Please See Demi Breakdown
on Follow'ing Pages
Descrpcn:
Prepared For:
Contact Name:
Contact Emai:
An>roved By:
Vermont Systems ~ -Best & Final. Opt #l. (no LS)
City o!f llloorpan. Recr6tiorl lhision. llloarpin. CA
stl!phanie Ander..Gn. Recr"ei1tion S..,eriOO!lldent
sander..Gn~ca..us
David W-ni, Sales M.inager-(dal.~.com)
Phone tbnber:
Fax Pbnber::
C2uoteD*
(805)517-6300
0Sllllla013
Pun:hi151! Annual Estiffliill!d
Description
RecTrac -Work.group Multi-User Software
Appac:IID111~
~OpanEdp$allwant
VII-Add-
SuppodSBmcaa-TJlldnf & Trwnl ·ElplmN
WebTrac -Basic Edition
Appaca1111n~
~OpanEdpSott.a9
IISI-Add OIII
Suppod: Semc8B -nalnng & Trwnl ElplmN
Tobi Racl'l'E:
Tobi w.bTrac:
IPayTrac -Appl ication Software & Hardware
VSITOTALS
Apf'l'""1n~
Pn,pllaOpanEdg9Salbnnt
VII-Add GIii
SUppods.d:N-~&Trwnl EJipeaBN
Tobi~
Grand Tot.ils:
Price
SUOG.•
SU40.IIII
$75D.OI
$5.55GJCI
$1:S,7.CI..IO
$3,!175.111
$135.0G
St,25UD
$1,CIOCJII
$7.G2G..ICI
$75UIO
$751..00
$1UZSJO
12.0SS.1111
12,.aoaM
tc.55Cl ·III
$21,510..DD
~inttSvs Shippilljl
$1,AOII.ID $OJIO
$28LCIO $OJIO
$1-5D.OO $OJIO
$O..DO $O..DO
St ,,113G,IIII $CUIO
$135..00 $0..00
$1C.7JID so.oo
$0..00 $0..00
so.oo $0..00
St,.G02.ci0 SO.GO
$15UIO to.oo
$1aaG so.oo
SUl:5.ID $OJIO
$U.7..GI SO.DO
$1liUID $OJIO
to..oo to..oo
$2.912..00 $0.DD
Tcit.il
Price
$7,.GOCIJCI
fl,52U0
$,Ol.00
$5.55G.N
$15,.ffllJNI
SUta.111
$!Mi2..00
$1,250.111
$1.000.111 ~·
$000.DD
$000..00
flU1UO
$2..ta2IO
$2.15'G.IO
tc,55CI.IO
$U.492.DD .... -..... ,
NSTAU.IIENl"PURCHASE PLAN OPTIONS -NO NTERE5T CHARGES
(Tdil Sd!IBI! U;mrf! "9-R ,Ua!d RJr ftlil'illbed CiMa4llorlJ J?~Dl!I0.00
Two Yeu P~ Pbn Pun:hase Option (Sd!WiR U81a! Rd» Ofh...tall oo•NIIOilllfj 11,.480.00
,._. 1 ('1dudl!6 one tbl'111f! SO!blare ,t.Jcen&e + M Tran!g+Atl Tr.M!I E:qJen&e +,.Shi~+ llnnlill Mii11la1a11:e1
,._. 2 ('1dudl!6 one tbl'lllf! SOlblare UCe11&e + AnmS Mal'lteni1110e)
.,.. .,. (Alnlal ~ Olly)
Three Ye.ar P,;ayment P1ilrl Pun:mse Option (Sd!wii!EUl.ml!Pafaln <lrWllbtfNnOiftJ ~-00
Y..-1 ('1dudl!60lle lladllESalbaarail.Jcen&e +AI Tr.afllg +.HI "DiM!I Elpenlle+M Shl~+llnnlill ~)
Yaw 2 (1nlUII!&. one 11tnl 1111! san.ae 1.lcen6e + Annllill lilall'lll!ltance&!lvllll!6}
,._. ~ ('1dudl!6 one n.rJ 1111! SLlllaare Lillefltie + ~ ~
y..-~ {Alnlill ~ Orly)
12 Ma1'l!t PWe. E&6a Jin:flon. vr. 05452 877-883-6757 --~-Cl:SII
Agreement between City of Moorpark and Vermont Systems Page 21
'17,.ot:UO
til.4CUD
$2.:mN
Page 71 of 79 238
De!iaiplion:
RecTrac Wortcgroup Multi-User Software
Recreation Tracking Software
VSJ Quote Number: 34935
Ple,ase.fteviewrtote5on~P~
Softw.-e Pricing ls Valid FOi' 120 Days
F.wct...e Pricing Is Subject k> Chiilnge
Prepan!d Fo,:
Vermont Sysb!rns Software -Best & Final, Opt n. (no LS)
City of lloorpart. Recn!alion Dmsion. llo«park. CA
stephanie Ander500. Recn!alion SqN!ri~dent
sander.i«in~Cil.ll!i
Contact Name:
Contact Emili:
Phanetbnber.
Faxtbnber:
(80S)517-6300
05l08fl013 Approved By:
Qty Unit
1 Eacl:I
1 Eacb
1 Eacb
1 Eacb
3 Eacl:I
1 Eacb
1 Eacb
• Day(~
1 DilJM
• Eacb
1 Eacl:I
DilvidW-irtz. Sales M~ (~.com) QuateDak!:
Description
Application Software
~ ~alon (11-RT-MlJ-M)
fidiy·Re&ervallan5 {Y-RT-w-:F.R}
tncldl!lt Prut&iiill,g .nr ReplNttlg (V-RT-MI.MC)
~ 1a'Mll&lraibi (~red) (V-RT-U!J-SA.)
Almlora U&er.50\la-2 (1COnclm!nl) {Y-RT--M\MU)
Unit
Price
$2.450.IIO
$2.450.IIO
$0.00
$400..IIO
$JOOJIO
Talat Applca1lon SOlbnl8:
Progress OpenEdge Software
OpellEdge Vlclllgfllq) ~ &!rllE!r & ROBMS (T-PG-MU-OE} $1,2,tl)JIO
Tolal Pmgnn OpaaBlgt Sllltwin:
VSI-Addons
Rl!CmacGenfl'ii Ledger~ (V-RHN-OLJ
Support Services -Training & Trave1 Expenses
l~raring. ~ (X-S-TNG-Cl1)
TliM!l ~ (X-S-TNG-09}
Tl'iM!l e.qJl!llli5-per dilJ ~ (X~-EXP}
Mr'.ie1'tlrtra!El{e&llrrlilied) (X-x-Aft}
$750..IJO
Tolal VII-Add 11118:
$120..00
$350..00
$3JO..DO
$1,IJJO..DO
Talat support SIIVll:ea -~ & Tl'DIII EipilmN:
Ext.ended
Price
$2_,15(].IZJ
$2.6();11)
$O..DO
$400.00
$91112.00
SU00.111
$1.2411.111
tl,240..l0
$7511.00
$7aoo
$2.Bll().111
$350.00
$1,320.111
$1 JIIICI.IJJ
S5.,55al0
tu. 7,IIIJIO
Annual
NilinVSvs
$440.0D
$4411.0D
$0.IID
$400.00 1
$1211.00
$1,40Q.DII
$,280.0D 2
$28D..OD
$1511.00 ~
$1aOD
$O..DO
$O.IIO
$O..llO ..
$0.00
to.ao
$1,l:IG.IO Tolal sart.mra,. Hal'dlNnl ad 11..,.,.t laVICal
Grand Total -Rec Trac: $15,570.00 ...... .,..._.
12 Maitel Place, E&&eJ:Jlldon, VT. 05452 B77-88-3-S757 ---~-Ctlll P.ageat2
Agreement between City of Moorpark and Vermont Systems Page 22
Page 72 of 79 239
De scrip lion:
Prepared For:
WebTrac Ba.sic Edition
Real-Time brtemet Sottware
VSI Quote Number: 34935
Please Review Nob!5 on~ P~
Soliw.a-e Pricing Is V~d For 120 Days
H.1111 dware Pricing Is Subject lo Change
Oonlact.Name:
Cont.ct Emal:
Vennont Systems Software-Best & Final, Opt t2 (no LS)
City of lllooq,artt. Recnsllion Division, lloorparlt, CA
Sb!phanie Ander.ion, Recnsllion S..,erinl:endent
sanderson~caus
Phone Number: (UOS)517-6300
05illlllfl013 Approved By:
Qty Unit
E.acf:I
Each
1 Each
1 Each
f Eactl
1 E.acf:I
1 Eacl'I
E.acf:I
Eact'l
Fax Niniber:
David W-irtz. Sales llilllillllff (din.e■~s..com) QucteOale:
Description
Application Software
Welffiilc rTlmN!t SOltaiae Hi ffl!CTl'.ac Uliel1; {V-WT-SU-IS-5}
Wl!lffiilcAmwt, Rit.g&batlar.,; {V-WT-SLU.R}
Welrrracc f'ilClllty Raie1Ya1Jm& (V-wT -su.:FR)
25 WEbltacAqem5 (V-WT-SIJ-AU)
V8' Mldl-Modoo web DlliaJlilrt (V-WT-SU-OSC)
ProgreBB OpenEdqe Software
OperlEclge V10 ~ server & RDBMS (T-PG-SU-Vl'B)
Unit
Price
$1,850.00
~.00
J751).IIO
$6Z5JIO
~
$795.00
Tola! Pn>p'NII OfNJl!Edgl .Sallwin:
VSI-Addons
Well'Ir.ae Slindard i8Rlcl'Jlft IID!lface (V-wT-IN-sB)
W'elmacfnt:st)11:!:sneef. seM::e ll'Gil & ~ (V-W'f ~1)
stnlanl Spla&tl Page Optkn (V-WT-O=LSP)
$0.00
J751).DO
$500.00
Tola! VII-Add-:
Support Serv:ices -Training & Travel Expenses
D Each n'i1W!!1 elp!ll&el>-perllily(erilmalled) (X-X-EXP)
10 tt:u(li} PJIDnelWellex:5eql, & ~-{Min 15 Mln/$25) D(¼TIF-D1)
$330.00
$100.00
Tolal .Support .SIIYae-"framg & n'8V8I Eltpamae :
Grand Total -WebTrac:
&tended
Price
~1.,8511.IJI
$9511.00
~.51LOD
$625.00
$200.00-
$S.S75.IO
~
$1'5.00
$O.DO
~.51LOD
$5llll.OO
t1 .. 25CLDCI
$IO..llO
$1,DOO.IXJ
tUlll!CI.IO
S;r,.cl2G.IO
Annual
MainllSvs
$37ll.OD s
$190.00 e-
$151l.OO e
$125.00 7
$0..00
$a35..0II
$167.00 e
$1c:7.00
$0.00.
$0.00 16
$0.00 ·11
to.GO
$0.00 ..
$0.00 12
to.GO
tl.OOUO
$8,022.00 ___ ..__,...,
t2: II.net Place,, Efi&eJ: Jll'JCllon. VT. 05452: B77-683-61S1 --~.cmi Pageit:3
Agreement between City of Moorpark and Vermont Systems Page 23
Page 73 of 79 240
Vermont
,[~Systems
T"-..J P.F-r.ff:o ·lo , ,!t Perks Scif\0..-mA
PayTrac Application Software & Hardware
Credit and Debit Card, Eiledronic Check, & Gift Card Interface
VSI Quote Number: 34935
Please Review Noll!':s on l..ilsl: P.age,
Software Pricing Is V•d For-120 Days
Hilll dw.re-'Pricng Is Subject to Chatge
De!SICri,plion:
Prepared For:
Vermont Systems Soflwa:1!. -Best & Final. Opt n. (no LS)
City of lloorpan. RecrNtion Dmsion. lloarpan. CA
stephanie Ander50II. RecrNiion Superintendent
Sill'lder!ion~ca.us
Contact Name-: Phone tbnber::
Oordacl Emai:
AA>roved6y:
Qty Unit
1 Each
D Eactl
Fax Number:
David W-nz.. Sales MiiilDillgt!f' (din.ue,mnonlsystems..com) QuoteD.-:
Description
Application Software
UM
Price
VSt cn!IClt card Exlemal Reclrect lnlar.ace {11-PT-N-BU) $750.00
TolalAflpklrilorlsoit..wv:
Magstripe Readers
Magtek JPAO PCI Encrypted Anpad •J>IF,USB.DIEpliy (H-MSR-MT-10) $JOO.DO
Tolallllgatrllpii 'RINllln:
Tal&i Sllllwuw. ltant,M',w aid lllpplld la'vtca
Grand Total -PayTrac:
Extended
Price
$751LOO
$7aoo
$0.00
$0.00
$7aCJO
(805)517-6300
0!iilllll2013
Estimab!d
Shippng
$0.00
$0.00
$0.0II
to.oo
to.oo
Annual
MilinltSvs
$150..0D tt
$151UJO
$0.00 "M
$0.00
$1SLOD
$900.00
(laa1111:..,...~1·
12Mall2t Plalle. Eli&SJinc:tlon. VT. 05452 877--883-8757 ww.W!m'X1111&)'Eie.ccm
Agreement between City of Moorpark and Vermont Systems Page 24
Page 74 of 79 241
Descriplion:
Proposal Summary Pricing
VSI Quote Number: 34935
Please See Detail Breakdown
00 Following Pages
Pn:piii ed For.
Contact Name-:
Vermont Sysb!ms Sollware-Best & Final. Opt n (no LS)
Cly of lloofpan. RecrNlion lbision. lloarpan. CA
stephanie Ander.ion. Recreation S..,erinh!ndent
sander.ion~ca..us
Phone Nlnlber: (805)517-6300
05/IJllll2013
ConladEmai: Fax Nlnlber:
Approvl!d By: Dnid W-rir. Sales NilllJallll!f" (dav~..com} Qualle Daile.:
t The~ System llli cp,lell lbrtlXJie ~ dh 2-a!l coniarent U&l!ni. The p1Ci,g·1t1ritJe. idl.el 00111ber rS ll0enlied
CXJ00111B1t lllil!ff> 151tllnl rn ine Recnac quale page 11n1er liH! ~ SOftlr..-e fieClbt. T'ao CDIKDlalt ~ ;n lnellded
lltllil ibe-plldla&e D1'1he Int Rleelrac modiie. .Aldbl~ cananent u;en; are ?Iced as Altlllonal U&en; ower 2 (Cln:um!rC).
2 VSII 1151!15 4Gt. ~V1D ~60!hlare b deWeop aid clep1ay" !Ir; lletea;e 10 Rlllwil~-~:i1611115, lbe ~
liCIII/Re l rv::1Ud1!5 Clll!nt Nettiorltlg. WEtlOll!l1., SCl1. CllettAl:cell5, 008CI.IJBC DIIWl!ni1 & AppSerter lraemel Adapla. VS1 illl&D
etm!ICl&'llle reql.hcf ~ OpenEIJ!J! WOll:gDq> RDBMS (Relalanal ,D.a!alJa&e. Managemeia Sic1111r.a1!) IMtb lt&'.'aJl)lc:ailin;.
3 You earl .&eled illlJ DTthe anJelt neai1)' 1111:itncliw GL nlel1ialce5 iDI 4 AP nlel1ialce5 ii 1115 F11Ce-fa aJ&b:m l1lerfaoe. 15
nei!D!d. WI.,., FlllMCle a . ...,_ allerfl!Vlemg tl'le-~remenl&. lbe h1JIEITIB'ltatlon pmceclm!5 t:iraa r1'erlac5 are ar. Mklw5:
The WI hi11ner llfl &e!eci{dffcuif) ine .app,tipble vendor IIEl"t.loe In Recfra:fGQITnc and lillDW aEb.lrner hN bgeneraie 1he
llim1 eigut 111e M anall'lli theamnary 0nlelalled 1ran&acllt11& forthie day (Gr dl!J ~ ~). At Ns pol!C, It 1511H! aElmnl!r5
req>ClllillJUfiD oontad ibe-tllaldll :&Oliware Wldar:to arrange lbr ~ 1D ffl)Oft ine bimlffe t:irpclitrtg i) ine cad1
f"eCe1lbi or general ledger &JliEIII.
4 The muled l!Kpelllieliare ESTIMATED rm arae-. ~ meal5. iancl rerGI 1ll!IK'le (lbrn~ ~ car l"El1lill can be moce
rue-t:> tra am gar,ollne usage-),. Ad!d ~ iR lllled allere:adl .. FCI" dab!& -win ca&'llleli6 nMlr;, tlllerie ITllil)' be a ClmylB
lll l ng tt&edlilgE!!6i15 we tillllll!lmeli claltget~ ~tnim IIH! carrenial COIJ1lill'l)eli-LS!UI wem;.-ra ~ lti-cmnpll!te.
s Wl!lmac enable!. pa-asomen;ro ~ Recllacttinliadbli. rea-tble 11&1ng a IIRMEerllla thie lrtanet
TheWeNracmodLRCIDBli NOTlncin!lmilrlg:Ge1111ce5.wnctai111!·FJ1cecf~y.ttJwever.fneededVSlcl:Je5Dlll?rtliot)'pet;
DI' holilt:,g&erll:e5: web saver-0n1y orwm Server & Dalilla&e,. rryou need 'Web SaverOnlJ hDdng iilliClyaurlT ~or
ycx.-aff.pn!m6e Eb llDrill,g wmor doelitli.amtnm pal1y mbae iD 11e 11&1a1ee1 e11 Ii&~ 1h!n vsa 1a1 cfTa" 'Web server
~ l'.lofillng llltll a~-WIiien 15 lllled on a:IIUill bali15. l'}'IIU need ua web server&. DiEbil&i! ~ :Gel1llce5. vsa •
JlfDIIIE b)' lnlitall!lg )IIIU""&!Jlil,ae e11 115 Ell!M!ni at ti& TectlVaLft Clita. c:eni:!rdh rnonmy l:llll!lg.
6 Wl!lfTrac modl.B rec,a"e ra;pecllve RecTlac lcenliecl l!Dltle& lln OR!erto fSDCiS lffll-~
7 The 25"9@r& are reqllhd llrproce&&lng Web~ E:ach ~can~~ ll!lp!li&.to JIIDCM6 twll'm!d& «
~ tr.n&acili:n;,
a VSI Ulieli fte. ~~canon Oewqlmc!ri & Depla,IIBII EIClftw.ae to EW!lop and~ Oll"web applleid:m&: Mpmrwae
fl!lal-lne Web lr.niadlon procesiai; In RecTrac and Gdff"rac.
!I The W!bTrac tla&e prk:lng l'lldllliE!6 the aEt!:mzable stancliml Bmctue lnlerrace. rryau del5lre a aam IJrDcmle laf'Dld; beyond
ine &tnlinl. qilltlllli, a 11:e DI' tOOOJIO !Ml lie~ !brine a&1111 pmgarnmg .
10 VSI IJl1I ~ the WeNrac 5l)fl!Ellel!t ID maicn 11H! ~ d'JtVweb 5ie ar;. Clor;8')' a5 pogr;IIS!. An!ryou tiir.e 11llillZll!d
yourWebliacp.ige ~in;, fQ1.1 llfl be illilell lo• iill ~t>nn. \ISi 'Ill pRMCle thietityll!lliheet f1R191••n •,g 61!f\lJ0e6
iil1iCI 1rien )'00 d be and to Vl!fll'ythalttie n!6Ui& maictJ }IIMl""&pee&.. f)lllll -arl'edb" illddlbnal dldilgl!li-1tJlcMIJ inE! conipletlol'I
DI' liH! .-,llal 5!Jlr1ig lben eadl fl$rchilrlge R!qlll!d. Iii FflCecl al~75D.OO. Mira & Sl!iEl'llrlill ~ 11!1JIE!lii&-ae pJoed at $375..00
eadl.
11 The Stnlam spar;n .Page oplall gMS fQ1.1 ine ~ Df me rl11J standanl Spa&'II page opll:Jnr.. Ola" ro ~ are avalilble
on m-weblille 'D "11)' Dlt", belplng ,au 1D dedE Mtldl qMIOII kt bl!lil rm p.-cq;nz:.ixln.
TIie $5IJO lee lnellllel; OIi" iUJJPDri pen;omel il6:&l∈ In the~ i:,11,e ~ ml p.-ste.. ntl6 iwJlcalytals :2◄
hDU5.. Any1b'II! IM!t" 4 holft due to cilBlgel;.1111! Wlilrlnel-i151J.fcl;.-.. be ctJalgeO.t $1IDTI". If you WiaTt ~ ctia,g5 'D any
Dl'IIH! &lanmRI 1eqllaie& Mrecpe the-VSI DeW!iapnent leiml,. weWII provlE )llllla lJZlie u CU&tmn Prog,:ainmtig G
$131MM:u.
12 TtnecpaiBI Iii l:!dmiO!d.AdialUmelJtiled'III tie taed.
12 ~ Place. E55el'. Jinc:tion, VT. 05452 877-883-e757 WW'.~.can
Agreement between City of Moorpark and Vermont Systems Page 25
Page 75 of 79 242
De5Cripion:
~ Foe
Contact Name:
Contact. Emai:
AfiproveefBy:
Vermont Sy5b!ms Sottw..:e-Best & Final. Opt #Z (no LS)
City of lloolpadr. ReclNtion ~on. lloorpan;. CA
Stiephanie Ander..Gn. RecrNlion S""'".-ertdent
sandenan~lpR.,Ca.US
David W-nz. Sales Nanager-(davewttwennonlsystl!lns..c.:om)
Proposal summary Pricing
VSI Quote Number: 34935
Please See Delai Breakdown
on Following Pages
Phonetunber: (805)517-6300
0Sl08/2013
Faxtunber:
QuateO.-e:
13 Depefllll',g ool!E Ga6elAy yoo lil!led, 1hen! ~ IJe .~fees ctlilf9:!d byttle-~ 141:io $1SI permeimant ii1001111L Tbere
clltio CXJlil211e trin&acllts1 reer. up ii ms ICelDi per lr.nadlon.
14 I PAD Aln Enby De!llce. HID, Keypad. Pel 5eC1R YSR, Btact RL.aler. ~. 3tlES Plig nPay El~ SJM!C11C to '.\ISi,, Ell:
CDR1. USE! 2..D , 6lt Cold. use 2.0, 5\l'OC.
Erpect 3-4 weelli fa' dl!IM!ry
12uartetP1ace. EamJinilon. vr. 05452 877-883-8757 .... ~.can
Agreement between City of Moorpark and Vermont Systems Page 26
Page 76 of 79 243
Exhibit C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of Work, Contractor will maintain insurance
in conformance with the requirements set forth below. Contractor will use existing coverage to
comply with these requirements. If that existing coverage does not meet requirements set forth
here, Contractor agrees to amend, supplement or endorse the existing coverage to do so.
Contractor acknowledges that the insurance coverage and policy limits set forth in this section
constitute the minimum amount of coverage required . Any insurance proceeds available to the
City in excess of the limits and coverage required in this Agreement and which is applicable to a
given loss, will be available to the City.
Contractor shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office (ISO) "Commercial
General Liability" policy form CG 00 01 or the exact equivalent. Defense costs must be paid in
addition to limits. There shall be no cross liability exclusion for claims or suits by one insured
against another. Limits are subject to review but in no event less than $1,000,000 per
occurrence for all covered losses and no less than $2,000,000 general aggregate.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, error or omissions of the
Contractor and "Covered Professional Services" as designated in the policy must specifically
include work performed under this Agreement. The policy limit shall be no less than $2,000,000
per claim and in the aggregate. The policy must "pay on behalf of" the insured and must include
a provision establishing the insurer's duty to defend . The policy retroactive date shall be on or
before the effective date of this Agreement.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1
(Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than
$1,000,000 combined single limit. If Contractor owns no vehicles, this requirement may be
satisfied by a non-owned auto endorsement to the general liability policy described above. If
Contractor or Contractor's employees will use personal autos in any way on this project,
Contractor shall provide evidence of personal auto liability for each such person .
Workers' Compensation on a state-approved policy form providing statutory benefits as required
by law with employer's liability limits no less than $1 ,000 ,000 per accident or d isease.
Contractor is an employer in the State of Kansas and abides by employment laws of Kansas .
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of A-or better and a
minimum financial size of VII.
General conditions pertaining to provision of insurance coverage by Contractor. Contractor and
the City agree to the following with respect to insurance provided by Contractor:
1. Contractor agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds the City, its officials, employees, and
agents, using standard ISO endorsement CG 2010 with an edition prior to 1992.
Contractor also agrees to require all contractors and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Contractor, or Contractor's employees , or agents, from waiving the right to subrogation
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prior to a loss. Contractor agrees to waive subrogation rights against the City regardless
of the applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this Agreement are intended to apply to the full extent of the policies. Nothing contained
in this Agreement or any other agreement relating to the City or its operation limits the
application of such insurance coverage .
4. None of the coverages required herein will be in compliance with these requirements if
they include limiting endorsement of any kind that has not been first submitted to the City
and approved in writing.
5 . No liability policy shall contain any provision or definition that would serve to eliminate
so-called "third party action over" claims, including any exclusion for bodily injury to an
employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. Contractor shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of
discovery period) that may affect the City's protection without the City's prior written
consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured
endorsement to Contractor's general liability policy, shall be delivered to city at or prior to
the execution of this Agreement. In the event such proof of any insurance is not
delivered as required, or in the event such insurance is canceled or reduced at any time
and no replacement coverage is provided, the City has the right, but not the duty, to
obtain any insurance it deems necessary to protect its interests under this or any other
Agreement and to pay the premium. Any premium so paid by the City shall be charged
to and promptly paid by Contractor or deducted from sums due Contractor, at the City's
option.
8 . Contractor agrees to provide immediate notice the City upon notice of cancellation or
nonrenewal of coverage for each required coverage, except for nonpayment for which a
ten (10) day notice is required.
9. It is acknowledged by the parties of this Agreement that all insurance coverage required
to be provided by Contractor or any subcontractor, is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self-insurance
available to the City.
10. Contractor agrees to ensure that subcontractors, and any other party involved with the
Work who is brought onto or involved in the Work by Contractor, provide the same
minimum insurance required of Contractor. Contractor agrees to monitor and review all
such coverage and assumes all responsibility for ensuring that such coverage is
provided in conformity with the requirements of this section. Contractor agrees that upon
request, all agreements with subcontractors and others engaged in the Work will be
submitted to the City for review .
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11 . Contractor agrees not to self-insure or to use any self-insured retentions or deductibles
on any portion of the insurance required herein and further agrees that it will not allow
any contractor, subcontractor, Architect, Engineer, or other entity or person in any way
involved in the performance of Work contemplated by this Agreement to self-insure its
obligations to the City. If Contractor's existing coverage includes a deductible or self-
insured retention, the deductible or self-insured retention must be declared to the City. At
that time, the City shall review options with the Contractor, which may include reduction
or elimination of the deductible or self-insured retention, substitution of other coverage,
or other solutions.
12. The City reserves the right at any time during the term of the Agreement to change the
amounts and types of insurance required by giving the Contractor 90 days advance
written notice of such change. If such change results in substantial additional cost to the
Contractor, the City will negotiate additional compensation proportional to the increased
benefit to the City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be
deemed to be in furtherance of or towards performance of this Agreement.
14. Contractor acknowledges and agrees that any actual or alleged failure on the part of the
City to inform Contractor of non-compliance with an insurance requirement in no way
imposes any additional obligations to the City nor does it waive any rights hereunder in
this or any other regard.
15. Contractor will renew the required coverage annually as long as the City, or its
employees or agents face an exposure from operations of any type pursuant to this
Agreement.
16. Contractor shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing
at least the same coverage. Proof that such coverage has been ordered shall be
submitted prior to expiration. As coverage binder or letter from Contractor's insurance
agent to this effect is acceptable. A certificate of insurance and/or additional insured
endorsement as required in these specifications applicable to the renewing or new
coverage must be provided to the City within five days of the expiration of coverage.
17. The provisions of any Workers' Compensation or similar act will not limit the obligations
of Contractor under this Agreement. Contractor expressly agrees not to use any
statutory immunity defenses under such laws with respect to the City, its employees,
officials, and agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits, or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue, and is not
intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this Agreement and are intended by the parties here to be interpreted as
such.
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20. The requirements in this section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts or impairs the
provisions of this section.
21. Contractor agrees to be responsible for ensuring that no contract used by any party
involved in any way with the Work reserves the right to charge the City or Contractor for
the cost of additional insurance coverage required by this Agreement. Any such
provisions are to be deleted with reference to the City. It is not the intent of the City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against the City for payment of premiums or other amounts with respect
thereto.
22. Contractor agrees to provide immediate notice to City of any claim or loss against
Contractor arising out of the work performed under this Agreement. The City assumes
no obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve the City.
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