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HomeMy WebLinkAboutItem 11h - Implementation of Utility Billing Software DATE: December 1, 2020 TO: Honorable Mayor and City Council FROM: Hue C. Quach, Administrative Services Director By: Henry Chen, Financial Services Manager/Treasurer SUBJECT: SOFTWARE SERVICE AGREEMENT WITH TRUEPOINT SOLUTIONS FOR IMPLEMENTATION OF THE TRUEBILL UTILITY BILLING SOFTWARE IN THE AMOUNT OF $144,950 Recommendation: Approve SUMMARY The Administrative Services and Public Works Services Departments currently utilize a utility billing software system that was implemented in 1994 and does not have advanced billing or customer service functionality that most current utility billing software programs are able to offer. The City’s current utility billing software is hosted on the City’s internal server network infrastructure, with the current software company providing minimal support and configuration as needed. To ensure the City is receiving the highest quality of service and most competitive pricing for this type of software, the Administrative Services Department solicited a formal Request for Proposals (“RFP”). TruePoint Solutions has proposed a cloud-based system with the best combination of features and usability, without the worry of aging technology, security, infrastructure maintenance, and additional hardware costs. Based on the evaluated proposals, it is recommended that the City Council approve, authorize, and direct the City Manager to execute a Software Service Agreement with TruePoint Solutions for implementation of the TrueBill utility billing software system in the amount of $144,950. BACKGROUND The City’s public water and sewer utility serves approximately 15,000 connections, a majority of which are based on a tiered rate structure, billed on a bi-monthly basis, generating approximately $15.5 million in revenue per year. The current utility billing and customer information system, DataNow, was implemented in 1994 and provides billing services for water, sewer, backflow devices, paramedic ambulance insurance, and a host Utility Billing Software Service Agreement December 1, 2020 Page 2 of 5 of other miscellaneous charges. Due to the aging technology of the City’s current software system, customers have repeatedly requested updated functionality, such as a customer-billing portal with real time account information, which the City’s current software cannot provide. The DataNow software is hosted internally on an antiquated Microsoft SQL Windows Server 2008. There are inherent issues with running this type of software on an older operating platform. When the program experiences technical issues, the City must solely rely on DataNow to troubleshoot and resolve the issue. Currently, there is only one database administrator who handles the DataNow system and this is the only individual who has full knowledge of the inner workings of the system and the database. It is risky for the City to rely on such a system without adequate backup maintenance and support. DISCUSSION The RFP requested a modern cloud solution for the new system so that there would be adequate redundancies with state-of-the-art security and support. Having the software on the cloud would allow regular updates to the software as well as robust technical support. The City would not be relying on a single individual for support. The RFP also called for a robust customer self-service portal so that customers would have a convenient way of viewing their bills, processing payment, and opening tickets for service. A Notice Inviting Proposals was published in the City’s adjudicated newspaper and proposal packages were distributed to vendors that provide utility billing software programs. Eleven proposals were received and evaluated based on their experience and qualifications, understanding of the utility billing software needs of the City, proposed implementation process, and cost. The Administrative Services (“ASD”) and Public Works Services (“PWSD”) Departments established an interdepartmental committee to review and rank all received proposals. Most of the proposals were informative and gave a good overview of their product. The exceptions were two of the lowest cost proposals. DataGain did not appear to have a product but offered instead to custom write a new program for the City. SEW did not propose a utility billing software package but instead was offering only a customer portal. The results of the evaluation with each company’s ranking and associated cost are listed below: Rank Company Implementation Cost Subsequent Annual Fees 1 Tyler Technologies $129,450 $53,447 2 TruePoint Solutions $144,950 $50,000 3 Harris City Suite $115,940 $16,000 4 Harris InHANCE $166,020 $16,000 5 Central Square $92,519 $7,921 Utility Billing Software Service Agreement December 1, 2020 Page 3 of 5 6 Harris North Star $499,500 $109,875 7 Daffron $143,500 $20,600 8 DataGain $95,950 $11,400 9 Cogsdale $721,650 $84,433 10 Vertex One $254,048 $357,372 11 SEW $47,000 $59,000 Based on the ranking, the City invited the top five firms to present a demonstration of their software and to answer questions from Staff. After reviewing the five demonstrations, the top two firms were determined to be Tyler Technologies and TruePoint Solutions (“TruePoint”). Site visits were arranged to local customers of each vendor, which were provided as references. For the firms ranked from three to five, their products were lacking in certain features that Staff felt were important to have in the new system. Harris City Suite did not have a backflow program and their customer portal was not available for review. Harris InHANCE did not have a customer portal and would need a 3rd party provider to integrate into their software. Central Square’s product was limited in its ability to be customized to meet City requirements along with also not having a backflow program. The PWSD visited the City of Chino Hills Utility Services Department to view Tyler Technologies’ Munis Utility Billing Software. The functionality of the software was elaborately involved and not user friendly for resolving billing issues or addressing credits. Reporting functions were minimal, and customization or reporting would cost extra. Feedback on the implementation process was that the City of Chino Hills had to additionally hire an outside consultant to complete the initial implementation on the City’s behalf due to the complexity during the configuration and data migration process. The feedback on the software maintenance was that technological issues were slow to be addressed and software support was lacking. Both the ASD and PWSD visited Palmdale Water District to view TruePoint’s TrueBill utility billing system. The functionality of the system was optimal, with centrally connected billing and reporting processes, streamlined workflow, and communication with other third-party software systems seamlessly. Feedback on the implementation process was positive and TruePoint came highly recommended. After an extensive evaluation period, it was determined that TruePoint had the best combination of features and functionality for what the City requires in a new utility billing program. TruePoint’s TrueBill utility billing software will replace the City’s current DataNow software, and will provide the following features: • Utility billing solution with efficient access to account information, service orders, and service-based assets • Customer Payment/Inquiry Portal Utility Billing Software Service Agreement December 1, 2020 Page 4 of 5 • Central Cash Management and Accounts Receivable • Full Meter Management • Conservation Management • Backflow Prevention with Field Inspection Portal • Financials Integration The new software system will provide a more streamlined process with the City’s workflow configured into the software for consistent management of all applications. Financial controls, bill processing, customer account administration, and water meter and backflow management, take place within the system, so all users can coordinate their responsibilities with each other. The cost for TruePoint’s TrueBill software system was originally $212,000, which was higher than what was budgeted. Having determined TruePoint as the best software program, the City negotiated with the firm to reduce the cost while ensuring that the software program will still meet the City’s utility billing software needs. TruePoint understood the City’s financial constraints and was able to provide a revised proposal for $144,950 that met the City’s budget for implementing the recommended TrueBill utility billing program. TruePoint Solutions is a proven software and technology services company based in Loomis, California. In business since 2004, they specialize in providing technical solutions to government agencies, water companies, and special districts. With offices in three states, they have done over 200 municipal implementations in the United States and Canada with annual revenues in excess of $7 million. TruePoint Solution’s background and competency were researched, and it was concluded that they could satisfactorily provide the services that were specified in the RFP. Some local California public sector entities currently utilizing TruePoint Solutions’ TrueBill utility billing system include Palmdale Water District, Sacramento Suburban Water District, and City of Redwood City. A copy of the License and Services Agreement with TruePoint Solutions is attached. ENVIRONMENTAL ANALYSIS The proposed action does not constitute a project under the California Environmental Quality Act (“CEQA”), under Section 15061(b)(3) of the CEQA Guidelines, as it can be seen with certainty that it will have no impact on the environment. Thus, this matter is exempt under CEQA. FISCAL IMPACT The Capital Improvement Program provides for $156,840 for the purchase and implementation of a utility billing software system. The total cost for the implementation Utility Billing Software Service Agreement December 1, 2020 Page 5 of 5 of TruePoint Solutions’ TrueBill utility billing software is $144,950. Successive year’s subscription and hosting fees will be $50,000 annually, which will be included in the City’s Water and Sewer Enterprise Funds’ Annual Operating Budget. RECOMMENDATION It is recommended that the City Council determine that this action does not constitute a project and is therefore, exempt under, the California Environmental Quality Act (“CEQA”); and authorize and direct the City Manager to execute a Software Service Agreement with TruePoint Solutions for implementation of the TrueBill utility billing software system in the amount of $144,950. Attachment: TruePoint Solutions License and Services Agreement TruePoint Solutions Subscription License and Services Agreement Page 1 of 6 AGREEMENT NUMBER: SUBSCRIPTION LICENSE AND SERVICES AGREEMENT THIS SUBSCRIPTION LICENSE AND SERVICES AGREEMENT (the “Agreement”) is between TruePoint Solutions, LLC. (“TruePoint”) and (“Licensee”) as of the Effective Date. The parties agree as follows: 1. Definitions. (a) “Affiliate” means any entity, directly or indirectly, controlling, controlled by, or under common control with, TruePoint. (b) “Authorized Users” means: (i) Licensee’s employees; and (ii) contractors authorized by Licensee to access the Subscription Software who, prior to obtaining access to the Subscription Software, have executed a non-disclosure agreement that protects TruePoint’s Confidential Information to the same extent as this Agreement. (c) “AWS” means: Amazon Web Services. AWS is the cloud hosting service TruePoint uses to manage the Hosted Environment. (d) “Confidential Information” means non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information of TruePoint includes, without limitation, the Documentation and the Subscription Software, including any software code and all algorithms, methods, techniques, and processes revealed or utilized therein. Confidential Information of Licensee includes Licensee Data. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation known to Recipient; or (iv) is independently developed by the Recipient without use of Confidential Information. (e) “Customizations” means any components deployed in the hosted environment for the Subscription Software other than the generally available Subscription Software or components that Licensee may deploy via the standard user interface or tools included in the generally available Subscription Software. Customizations may include, without limitation, code, databases or third-party extensions that are not included in the generally available Subscription Software. (f) “Discloser” means the party providing Confidential Information to the Recipient. (g) “Documentation” means the then-current TruePoint- provided documentation relating to the features, functions, and use of the Subscription Software. (h) “Documented Defect” means a material deviation between the then-current, general release version of the Subscription Software and its Documentation. (i) “Effective Date” means the date identified on the signature page of this Agreement as the Effective Date. (j) “Initial Subscription Term” means the initial subscription period set forth on the applicable contract. (k) “Intellectual Property Rights” means any and all rights in patents, copyrights, trademarks and service marks. (l) “Licensee Data” means information provided, entered or uploaded for use by or with the Subscription Software by the Licensee or its Authorized Users. (m) “License Restriction” means any limitation on the use of the Subscription Software identified in the contract. (n) “Contract” means the signed contract between the parties incorporating the terms of this Agreement which shall contain, without limitation, a list of the Subscription Software and associated quantity and License Restriction, a description of the Subscription Services, Subscription Fees, and payment terms. (o) “Personal Information” means information provided to TruePoint by or at the direction of Licensee, or to which access was provided to TruePoint in the course of TruePoint’s performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers). Personal Information shall include any non-public personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of non- public personal information. (p) “Recipient” means the party receiving Confidential Information of the Discloser. (q) “Renewal Term” means any renewal or extension of Licensee’s license to use the Subscription Software following the expiration of the Initial Subscription Term. (r) “Residual Knowledge” shall mean ideas, concepts, know- how or techniques related to the Discloser's technology and Confidential Information that are retained in the unaided memories of the Recipient who had rightful access to Confidential Information. (s) “Service Level Description” means the Service Level Description document applicable to the Subscription Services and attached as an exhibit to the contract. (t) “Subscription Fees” means the fees for the Subscription Services set forth on the applicable contract. (u) “Subscription Services” means the Subscription Software- related application hosting services and Support (as defined in Section 3(b)) that TruePoint provides Licensee under this Agreement. (v) “Subscription Software” means collectively or individually the computer software programs identified in the applicable Contract for which TruePoint is providing the Subscription Services. “Subscription Term” means the Initial Subscription Term or any Renewal Term, as applicable. (w) “Third Party Licensor” means a third party whose software TruePoint Solutions Subscription License and Services Agreement Page 2 of 6 products (“Third Party Products”) have been made available to TruePoint for distribution and licensing under the terms of its agreement with TruePoint (a “Third Party Agreement”). (x) “Updates” means generally available updates, enhancements or modifications to the then-current, general release version of the Subscription Software that are not separately priced or licensed as new products. (y) “UserID” means a unique user identification credential used in combination with a unique password to access the Subscription Services. 2. License Subject to the terms and conditions of this Agreement and the applicable Contract, TruePoint hereby grants to Licensee a non- exclusive, non-transferable, limited license (without the right to sublease or sublicense) to access and use the Subscription Software and the Subscription Services, during the Subscription Term, in an operating environment hosted by TruePoint, for Licensee’s own internal use. Any rights not expressly granted in this Agreement are expressly reserved. (a) Documentation. Licensee may make a reasonable number of copies of the Documentation for the Subscription Software for its internal use in accordance with the terms of this Agreement. (b) License Restriction. Licensee’s use of the Subscription Software and Subscription Services is subject to any License Restriction specified in the applicable Contract. (c) Additional Restrictions on Use of the Subscription Software and Subscription Services. In no event shall Licensee access the Subscription Software on any environment outside the hosted environment selected by TruePoint as part of the Subscription Services. In no event shall Licensee or its Authorized Users possess or control the Subscription Software or any related software code. Licensee is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of the Subscription Software. Except as expressly provided by this Agreement, Licensee is prohibited from using the Subscription Software to provide service bureau services to third parties. Licensee will not allow the Subscription Software to be used by or disclose all or any part of the Subscription Software to, any person except Authorized Users. Licensee acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Subscription Software and Licensee will neither export or re-export, directly or indirectly, the Subscription Software, nor any direct product thereof in violation of such laws, or use the Subscription Software for any purpose prohibited by such laws. (d) Intellectual Property Rights Notices. Licensee is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in the Subscription Software or that TruePoint otherwise provides with the Subscription Services. Licensee must reproduce the unaltered Intellectual Property Rights notice(s) in any full or partial copies that Licensee makes of the Documentation. (e) Ownership. Use of the Subscription Software and Subscription Services does not grant any ownership rights in or to the Subscription Software, the Subscription Services, or the Documentation. Licensee Data shall be the sole property of Licensee. TruePoint may collect anonymous data related to Licensee Data or use of the Subscription Software and Subscription Services (collectively “Anonymous Data”), and such Anonymous Data (which in no event will include Personal Information) shall be the sole property of TruePoint and not considered Licensee Data. 3. Subscription Services. (a) Hosted Environment. TruePoint will provide the application hosting environment, including the hardware, equipment, and systems software configuration via Amazon Web Services (AWS) or similar environment on which TruePoint supports use of the Subscription Software and Subscription Services. (b) Support. TruePoint shall (a) provide Licensee with access (via the internet, telephone or other means established by TruePoint) to TruePoint’s support helpline, (b) install, when and if generally available, Updates; (c) maintain database backups and (d) use reasonable efforts to correct or circumvent any material deviation between the then-current, general release version of the Subscription Software and its Documentation (the foregoing referred to collectively as “Support”). Support is included in the Subscription Fee. Exclusions The following Support Exclusions are not covered by this Support Policy: (a) Support required due to Customer’s or any End User’s or third party’s misuse of the Services; (b) Support during times outside of TruePoint’s regular business hours; (c) Support necessitated by external factors outside of TruePoint’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point; (d) Support of or caused by customizations (if outside of TRUEPOINT Software’s best practice recommendations), configuration changes, scripting, or data loss caused by or on behalf of Customer or any End User; (e) Support of or caused by Customer’s or any End User’s or third party’s equipment, software or other technology (other than third party equipment within TruePoint’s direct control); (f) Support to resolve or work-around conditions which cannot be reproduced in TruePoint’s support environment and (g) Support of any software add-ons supplied together with the Service (except where specified in the Agreement). Any support services falling within these Support Exclusions may be provided by TruePoint at its discretion and, if so provided, may be subject to additional pricing and support terms as specified by TruePoint. (c) User Accounts. Licensee is responsible for maintaining its own Authorized User UserIDs and passwords which can be managed by contacting TruePoint’s Product Support. Licensee is responsible for maintaining the confidentiality of Licensee’s UserIDs and passwords and shall cause its Authorized Users to maintain the confidentiality of their UserIDs and Passwords. Licensee is responsible for all uses of and activities undertaken with UserIDs registered on Licensee’s account. Licensee agrees to immediately notify TruePoint of any unauthorized use of Licensee’s UserIDs of which Licensee becomes aware. (d) Connectivity. TruePoint’s provider (AWS) will be responsible for maintaining connectivity from its network to the Internet which is capable of servicing the relevant Internet traffic to and from the hosted environment. Licensee is responsible for providing connectivity to the Internet for itself and its Authorized Users. Licensee shall also be responsible for ensuring that latency and available bandwidth from the user’s desktop to TruePoint’s hosted routers is adequate to meet Licensee’s desired level of performance. If Licensee requires a VPN or private network connection to the Subscription Services, Licensee is responsible for all costs associated with any specialized network connectivity required by Licensee. (e) Restrictions. TruePoint shall have no obligation to correct a problem caused by Licensee’s negligence, Licensee’s equipment TruePoint Solutions Subscription License and Services Agreement Page 3 of 6 malfunction or other causes beyond the control of TruePoint. (f) Customizations. Customizations are not permitted absent TruePoint’s prior written consent. If permitted, Customizations may only be created and deployed by TruePoint, and shall be documented in a separate agreement between TruePoint and Licensee. Support or other services for Customizations are not available under this Agreement or included as part of the Subscription Fees and may only be purchased pursuant to a separate agreement between TruePoint and Licensee. 4. Payment and Taxes. (a) Payment. Licensee shall pay TruePoint the Subscription Fees set forth on the Contract. Subscription Fees are payable in advance and TruePoint will invoice Licensee for Subscription Fees prior to the commencement of the portion of the Subscription Term to which such fees apply. After the Initial Subscription Term, the Subscription Fees shall be subject to annual adjustment. Except as otherwise set forth in this Agreement, Subscription Fees are non- refundable. Licensee will pay each TruePoint invoice in accordance with the payment terms set forth on the Contract. Late payments are subject to a late charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable law. Notwithstanding anything to the contrary in this Agreement, TruePoint reserves the right to suspend access to the Subscription Services in the event of any past due Subscription Fees. (b) Taxes. Licensee is responsible for paying all taxes relating to this Agreement (except for taxes based on TruePoint’s net income). Applicable tax amounts (if any) are not included in the Subscription Fees set forth on any Contract. TruePoint will invoice Licensee for applicable tax amounts and such invoices are payable in accordance with Section 4(a) and the Contract. 5. Limited Warranties, Disclaimer of Warranties, Remedies (a) Right to Grant License. TruePoint warrants that that it owns all right, title and interest in and to the Subscription Software or has obtained rights in such Subscription Software sufficient to grant the licenses granted to Licensee under this Agreement. Licensee’s exclusive remedy, and TruePoint’s exclusive obligation, for a breach of this warranty is set forth in Section 7 (Indemnity). (b) Limited Subscription Software Warranty by TruePoint and Remedy For Breach. TruePoint warrants that the Subscription Software will operate without a Documented Defect for a period of twelve (12) months from the Contract Date defined in the applicable Contract. TruePoint’s sole obligation with respect to a breach of the foregoing warranty shall be to repair or replace the Subscription Software giving rise to the breach of warranty. If TruePoint is unable to repair or replace such Subscription Software within a reasonable period of time, then, subject to the limitations set forth in Section 14 of this Agreement, Licensee may pursue its remedies at law to recover direct damages resulting from the breach of this warranty. The remedies in this Section 5(b) are exclusive and in lieu of all other remedies, and represent TruePoint’s sole obligations, for a breach of the foregoing warranty. Licensee must provide notice to TruePoint of any warranty claim within the warranty period. For clarity, Licensee’s entitlement to Support (as defined in Section 3(b)) in connection with any Documented Defect shall continue throughout the Subscription Term. (c) Malicious Code. TruePoint represents that it has used commercially reasonable best efforts utilizing generally accepted industry tools and practices to provide Subscription Software that does not contain any “time bombs,” “worms,” “viruses,” “Trojan horses,” “protect codes,” “data destruct keys,” or other programming devices that are intended to access, modify, delete, damage, deactivate or disable the Subscription Services (“Malicious Code”). As Licensee’s sole remedy for breach of this representation, TruePoint shall take action immediately to investigate, identify and remove such Malicious Code from the Subscription Software. (d) Limited Services Warranty and Remedy For Breach. TruePoint warrants to Licensee that, TruePoint will render the Subscription Services with commercially reasonable care and skill. TruePoint further warrants that the hosted environment will be available at all times throughout the Subscription Term, subject to the exceptions and allowances described in the Availability section of the applicable Service Level Description. The level of unavailability shall not exceed one half of one percent (0.5%) per month, excluding Scheduled Maintenance as described in the applicable Service Level Description (the “Down Time Warranty”). In the event of a breach of the foregoing warranty TruePoint shall apply service level credits based on the actual availability measure for the applicable period as follows: Service level credits for Subscription Fees paid on an annual basis shall be based on a monthly equivalent fee. For example, a 5% service level credit on an annual subscription fee shall be 5% of 1/12 of the annual fee. Service level credits shall be applied to Licensee’s next invoice or, if Licensee has paid the final invoice under this Agreement, service level credits shall be paid to Licensee within thirty (30) calendar days following the determination that the credit is due. The service level credit is the exclusive remedy and is in lieu of all other remedies for breach of the Down Time Warranty. (e) Disclaimer of Warranties. The limited warranties in this Section 5 are made to Licensee exclusively and are in lieu of all other warranties. TRUEPOINT MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE SUBSCRIPTION SOFTWARE AND SUBSCRIPTION SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR ANY CONTRACT, IN WHOLE OR IN PART. TRUEPOINT EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. TRUEPOINT EXPRESSLY DOES NOT WARRANT THAT THE SUBSCRIPTION SOFTWARE OR SUBSCRIPTION SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET LICENSEE’S REQUIREMENTS. (f) Abrogation of Limited Warranty. TruePoint will have no obligation under this Section 5 to the extent that any alleged breach of warranty is caused by any modification of the Subscription Software not performed by or on behalf of TruePoint. To the extent that an alleged breach of warranty concerns a Third Party Product that is subject to a more limited warranty under a Third Party Agreement than specified in Section 5 above, TruePoint’s obligations hereunder will be further limited accordingly. (g) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 5 AND 14 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER LICENSEE HAS ACCEPTED ANY SUBSCRIPTION SOFTWARE OR SUBSCRIPTION SERVICE UNDER THIS AGREEMENT. (h) HIGH RISK ACTIVITIES. THE SUSBSCRIPTION SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS TruePoint Solutions Subscription License and Services Agreement Page 4 of 6 ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATION SYSTEMS, MASS TRANSIT, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SUBSCRIPTION SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). ACCORDINGLY, TRUEPOINT DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. LICENSEE AGREES THAT TRUEPOINT SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SUBSCRIPTION SOFTWARE IN SUCH APPLICATIONS. 6. Confidential Information. (a) Confidentiality. The Confidential Information disclosed under this Agreement may be used, disclosed or reproduced only to the extent necessary to further and fulfill the purposes of this Agreement. Except as otherwise permitted under this Agreement, the Recipient will not knowingly disclose to any third party or make any use of the Discloser’s Confidential Information. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. The non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Recipient’s receipt of that item; provided, however, that Licensee’s obligations to maintain the Subscription Software and Documentation as confidential will survive in perpetuity. Each of Licensee and TruePoint shall be responsible for the breach of the confidentiality terms contained in this Section 6 by any of its directors, officers, employees, Authorized Users, agents, accountants and advisors. Notwithstanding the foregoing, this Section is not intended to prevent (a) a Recipient from using Residual Knowledge, subject to any Intellectual Property Rights of the Discloser, or (b) TruePoint from using Anonymous Data. If the Recipient should receive any legal request or process in any form seeking disclosure of Discloser’s Confidential Information, or if the Recipient should be advised by counsel of any obligation to disclose such Confidential Information, the Recipient shall (if allowed by law) provide the Discloser with prompt notice of such request or advice so that the Discloser may seek a protective order or pursue other appropriate assurance of the confidential treatment of the Confidential Information. Regardless of whether or not a protective order or other assurance is obtained, the Recipient shall furnish only that portion of the Discloser’s Confidential Information which is legally required to be furnished and to use reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished. (b) Security Policies and Safeguards. TruePoint shall establish and maintain administrative, technical, and physical safeguards designed to protect against the destruction, loss, unauthorized access or alteration of Licensee Data and Personal Information in the possession or under the control of TruePoint or to which TruePoint has access, which are: (i) no less rigorous than those maintained by TruePoint for its own information of a similar nature; (ii) no less rigorous than generally accepted industry standards; and (iii) required by applicable laws. The security procedures and safeguards implemented and maintained by TruePoint pursuant to this Section 6(b) shall include, without limitation: (i) User identification and access controls designed to limit access to Licensee’s Data to authorized users; (ii) the use of appropriate procedures and technical controls regulating data entering TruePoint’s network from any external source; (iii) the use of encryption techniques when Licensee’s Data is transmitted or transferred into or out of the hosted environment; (c) Security Incident Response. In the event that TruePoint becomes aware that the security of any Licensee Data or Personal Information has been compromised, or that such Licensee Data or Personal Information has been or is reasonably expected to be subject to a use or disclosure not authorized by this Agreement (an “Information Security Incident”), TruePoint shall: (i) promptly (and in any event within 24 hours of becoming aware of such Information Security Incident), notify Licensee, in writing, of the occurrence of such Information Security Incident; (ii) investigate such Information Security Incident and conduct a reasonable analysis of the cause(s) of such Information Security Incident; (iii) provide periodic updates of any ongoing investigation to Licensee; (iv) develop and implement an appropriate plan to remediate the cause of such Information Security Incident to the extent such cause is within TruePoint’s control; and (v) cooperate with Licensee’s reasonable investigation or Licensee’s efforts to comply with any notification or other regulatory requirements applicable to such Information Security Incident. 7. Indemnity by TruePoint. TruePoint will defend, indemnify and hold Licensee harmless from and against any loss, cost and expense to the extent arising from a third-party claim against Licensee that the Subscription Software infringes any Intellectual Property Rights of others. TruePoint’s obligations under this indemnification are expressly conditioned on the following: (i) Licensee must promptly notify TruePoint of any such claim; (ii) Licensee must, in writing, grant TruePoint sole control of the defense of any such claim and of all negotiations for its settlement or compromise so long as such settlement or compromise does not result in payment of money by Licensee or an admission of guilt by Licensee (if Licensee chooses to represent its own interests in any such action, Licensee may do so at its own expense, but such representation must not prejudice TruePoint’s right to control the defense of the claim and negotiate its settlement or compromise); (iii) Licensee must reasonably cooperate with TruePoint to facilitate the settlement or defense of the claim. TruePoint will not have any liability hereunder to the extent the claim arises from (a) any modification of the Subscription Software by, on behalf of, or at the request of Licensee; or (b) the use or combination of the Subscription Software with any computer, computer platform, operating system and/or data base management system other than provided by TruePoint. If any Subscription Software is, or in TruePoint’s opinion is likely to become, the subject of an Intellectual Property Rights infringement claim, then TruePoint, at its sole option and expense, will either: (A) obtain for Licensee the right to continue using the Subscription Software under the terms of this Agreement; (B) replace the Subscription Software with products that are substantially equivalent in function, or modify the Subscription Software so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Licensee the un- used portion of the Subscription Services fee, if any, paid to TruePoint for the Subscription Software giving rise to the infringement claim, and discontinue Licensee’s use of such Subscription Software. THE FOREGOING SETS FORTH TRUEPOINT’S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TruePoint Solutions Subscription License and Services Agreement Page 5 of 6 8. Term and Termination. (a) Term. With respect to the Subscription Software, the Initial Subscription Term shall be as set forth on the applicable Contract. After the Initial Subscription Term, the Subscription Term shall renew for successive one-year Renewal Terms, unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to expiration of the Initial Subscription Term or then current Renewal Term, as the case may be. Except as set forth in Section 8(b), the Subscription Term cannot be terminated prior to its expiration date. (b) Right of Termination. If either party breaches any material obligation in this Agreement or Contract (including, without limitation, any obligation to pay Subscription Fees), and fails to remedy such breach (if such breach can be remedied) within thirty (30) days of receipt of written notice of such breach, the other party may terminate this Agreement (including all Contracts hereunder). Notwithstanding the foregoing, to the extent such material breach cannot be remedied through efforts of the breaching party, the other party has the right to terminate this Agreement (including all Contracts hereunder) on less than thirty days’ written notice. (c) Effect of Termination. Upon termination of this Agreement by either party, Licensee’s license to access and use the Subscription Software and Subscription Services shall immediately terminate as of the effective date of such termination. Termination of this Agreement will not release either party from making payments which may be owing to the other party under the terms of this Agreement through the effective date of such termination. Termination of this Agreement will be without prejudice to the terminating party’s other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein. (d) Return of Licensee Data. Upon termination or expiration of this Agreement, TruePoint shall promptly make all Licensee Data available to Licensee as a native database export provided through TruePoint’s FTP server. In the event that Licensee requires the return of Licensee Data in an alternate format or requires any other termination assistance services, TruePoint and Licensee shall mutually agree upon the scope of such termination assistance services and the fees and expenses payable for such termination assistance services. (e) Survival of Obligations. All obligations relating to non- use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination or expiration of this Agreement. 9. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; or sent by overnight courier. Notices must be sent to a party at its address shown on the signature page of this Agreement, or to such other place as the party may subsequently designate for its receipt of notices in accordance with this Section. Licensee must promptly send copies of any notice of material breach and/or termination of the Agreement to TruePoint, Attention: TruePoint Solutions, 3262 Penryn Rd #100B, Loomis CA 95650, or to such other place as TruePoint may subsequently designate for its receipt of notices. 10. Force Majeure. Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including, without limitation, Acts of God, war, terrorist acts, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing. 11. Assignment. Licensee may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of TruePoint, whether by operation of law or otherwise, including in connection with a change in control, merger, acquisition, consolidation, asset sale or other reorganization, and any attempt at such assignment or transfer will be void. 12. No Waiver. A party’s failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach. 13. Choice of Law; Severability. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without application of any conflict of laws provisions thereof, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of California, without application of any conflict of laws provisions thereof. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect. 14. LIMITATIONS OF LIABILITY. (a) LIMITED LIABILITY OF TRUEPOINT. EXCEPT WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, THE TOTAL LIABILITY OF TRUEPOINT, ITS AFFILIATES AND THIRD PARTY LICENSORS IN CONNECTION WITH OR RELATED TO THE SUBSCRIPTION SOFTWARE, THE SUBSCRIPTION SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE TO TRUEPOINT HEREUNDER FOR THE TWELVE-MONTH PERIOD IN WHICH SUCH LIABILITY FIRST AROSE. (b) EXCLUSION OF DAMAGES. IN NO EVENT WILL TRUEPOINT, ITS AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER TRUEPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. 15. Compliance with Laws. Licensee will comply with all laws, rules and regulations applicable to the use of the Subscription Software and the Subscription Services including, without limitation, by not submitting any Licensee Data that is illegal, defamatory, or that infringes any third-party proprietary rights. 16. Miscellaneous. Licensee grants TruePoint permission to use its name and logo in marketing materials referencing Licensee as a customer. TruePoint and Licensee are independent TruePoint Solutions Subscription License and Services Agreement Page 6 of 6 contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. This Agreement shall be construed as if drafted by both parties and shall not be strictly construed against either party. 17. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document, which may be issued by Licensee in connection with this Agreement, does not modify, supplement or add terms to this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. This Agreement and any signed agreement or instrument entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of digital imaging, electronic mail or a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. This Agreement and all Contracts may be signed in counterparts. THE PARTIES have executed this Subscription License and Services Agreement through the signatures of their respective authorized representatives. Effective Date: TruePoint Solutions, LLC Licensee: Signature: Signature: Printed Name: Printed Name: Title: Title: Address: Address: Address: Address: Signature Date: Signature Date: