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2.8. ERMUSR 03-15-2016
Elk River Municipal Utilities UTILITIES COMMISSION MEETING TO: FROM: Elk River Municipal Utilities Commission Theresa Slominski—Finance and Office John Dietz, Chair Manager Allan Nadeau, Vice-Chair Daryl Thompson, Trustee MEETING DATE: AGENDA ITEM NUMBER: March 15, 2016 2.8 SUBJECT: New NISC Software and Service Agreement BACKGROUND: As mentioned in my staff update from February 9, 2016, with the software server move from a hosted server at the NISC location to a local server here, we were provided a new software and service agreement. DISCUSSION: Peter Beck and Campbell Knutson have reviewed the agreement and recommended some changes that were reviewed with NISC legal counsel and incorporated into the document. Attached is the Agreement for informational purposes. ACTION REQUESTED: No action needed. ATTACHEMNTS: • Signed NISC Software and Service Agreement E POWERED BY NATURE Reliable Public POWERED To S ERV E Power Provider 147 Confidential NISC Software and Service Agreement (Associate Member) Initial Tenn:1 Year(s) This CONFIDENTIAL Software and Service Agreement("Agreement")is made with an Effective Date of January 14,2016,by and between: National Information Solutions Cooperative,("NISC") Elk River Municipal Utilities("Associate One Innovation Circle Member") Lake Saint Louis,MO 63367 13069 Orono Parkway Elk River,MN 55330-0430 Notice Address:Same as above with copy to: LegalNotices@nisc.coop Notice Address:Same as Above • In consideration of the mutual promises herein contained the parties agree as follows: 1.Provision of Services;Grant of License and Access 1.1.Provision of Services: NISC shall provide Associate Member with installation,conversion,implementation, training,support,and other services more fully described herein,as well as the applicable Ordering Documents. 1.2.Grant of License:With respect to NISC Software other than Hosted Software,NISC hereby grants to Associate Member a License to use the NISC Software and the Third Party Vendor Software provided by NISC to Associate Member pursuant to the applicable Ordering Documents.Any Third Party Vendor Software embedded,included or otherwise provided by NISC for use with the NISC Software is owned by such Third Party Vendor,proprietary,and may only be used in conjunction with such NISC Software provided pursuant to the applicable Ordering Documents.The use of Third Party Vendor Software may also be governed by the terms of the third-party license agreement.If,for any reason more licenses of Third Party Vendor Software are required for system operation,Associate Member is responsible for any additional costs associated with obtaining such additional licenses. Associate Member may make copies of the Software for backup or archive purposes. Associate Member agrees to maintain appropriate records of the location of any such copies of the Software or portions thereof.Associate Member agrees to reproduce and include any notice of the owner's Intellectual Property Rights on any copy of all or part of the Software including any changes to the software made by Associate Member. 1.3.Grant of Access:With respect to Hosted Software provided by NISC to Associate Member pursuant to the applicable Ordering Documents,NISC grants to Associate Member,and Associate Member accepts,a nontransferable, nonexclusive right to Access the Hosted Software via the Internet and use the Hosted Software only as authorized in,and consistent with,this Agreement.Additional terms and conditions governing Hosted Software is contained in Section 7 of this Agreement. 1.4.License and Access Restrictions:The License and Access are granted on condition of Associate Member's full compliance with all terms and conditions of this Agreement.Other than as set forth in Sections 1.2 and 1.3,no other right,title or interest of any kind is granted.Without limiting the generality of the foregoing,Associate Member shall not:( 1.4.1.)market,redistribute,resell,or sublicense any Software; (1.4.2.)directly or indirectly export the Software,nor any direct product thereof without first fully complying with all relevant export laws and regulations of the United States and other applicable export and import laws;(1.4.3.)use the Software for rental,timesharing,subscription service,hosting,or outsourcing,or to provide a service to another party which party provides the same or similar services as Associate Member; or(1.4.4.)reverse assemble,reverse compile,or otherwise translate any Software.Unless otherwise specifically granted, Third Party Vendor Software shall only be used in conjunction with NISC Software. Page 1 C 2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities v2•aisc(2).dacx 148 1.5.Title To Software:Associate Member acknowledges that NISC and Third Party Vendors retain all right,title and interest in and to the original,and any copies(by whomever produced),of the Software whether or not incorporated in or integrated with any other software or product,and ownership of all Intellectual Property Rights pertaining thereto,shall be and remain the sole property of NISC or the third party vendor,as the case may be. 1.6.Software Installation;Updates:Associate Member shall provide NISC with machine readable data and matching file description for all data files to be included in the conversion.All NISC Software is delivered in electronic form only and is not available through tangible medium.NISC shall make Maintenance Modifications and Enhancements available to Associate Member as the same are generally made available to other similarly situated users of NISC Software. 2.Charges:In consideration of the License and Access granted,the provision of services and hardware(if any),Associate Member agrees to pay the License and Access fees,Monthly Fees,Costs,and charges for hardware(such fees,expenses and charges to be collectively referred to as"Charges"),as set forth in the applicable Ordering Documents between NISC and Associate Member,made a part of this Agreement by reference. The current Hourly Rate and Monthly Fee Rate are set forth in the applicable Ordering Documents. Monthly Fees shall commence upon the applicable Go-Live Date. 3.Payment and Invoicing:NISC shall submit invoices to Associate Member periodically or as services are performed. Associate Member shall make payment to NISC within thirty(30)days after receipt of the invoice submitted by NISC. All Charges shall be due and payable by Associate Member within thirty(30)calendar days after receipt of NISC's invoice. Thereafter,any outstanding balance shall bear interest at the rate of one and one-half percent(1.5%)per month or the maximum rate allowed by law,whichever rate is less.If Associate Member is more than thirty(30)days past due in the payment of Charges incurred pursuant to this Agreement,NISC may,at its sole option,suspend Associate Member's service.Upon the first occurrence of Associate Member being past due,NISC shall give fifteen(15)days'Notice of intent to discontinue service.If Associate Member is more than 60 days past due,NISC may,in its sole discretion,elect to terminate this Agreement.In the event of a dispute regarding an amount due,Associate Member shall pay the undisputed amount to NISC pursuant to the terms of this Agreement and Associate Member shall further notify NISC of the amount(s)in dispute and the basis for the dispute. 4.Term:The term of this Agreement shall commence on the Effective Date and expire ONE(1)year(s)from the Go-Live Date of the last NISC Software to be implemented pursuant to this Agreement("Tenn"). Upon expiration of the initial term, this Agreement shall automatically renew from year-to-year and shall terminate upon one hundred eighty(180)days'Notice by either Party. 5.Early Termination:This Agreement may be terminated prior to expiration of the term described in Section 4 as follows: 5.1.Termination by Associate Member: Associate Member may terminate this Agreement at any time for convenience upon One Hundred Eighty(180)days'Notice to NISC("For Convenience"). In the event that NISC fails,after thirty(30)days'Notice thereof from Associate Member,to perform or observe any of the material covenants,agreements,or other obligations on its part to be performed or observed under this Agreement,then Associate Member may,in its sole discretion,terminate this Agreement("For Cause"). 5.2.Termination by NISC: In the event that Associate Member fails,after forty-five(45)days'Notice thereof from NISC,to perform or observe any of the material covenants,agreements,or other obligations on its part to be performed or observed under this Agreement,including but not limited to failure to make payment of any undisputed amount due,then NISC may,in its sole discretion,immediately suspend access to Software and Support Services and terminate this Agreement("For Cause"). 5.3.Termination by Any Party:Any Party may immediately terminate this Agreement if the other Party: 5.3.1.Experiences a Change in Control,or a Change in Control is imminent(The right to terminate under this subsection may be exercised upon thirty(30)day written Notice given at any time within one year after the occurrence of the Change in Control);or Page 2 0 2014.2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities-v2-nisc(2).docx 149 5.3.2.Becomes a party to insolvency,receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts,makes an assignment for the benefit of its creditors,or dissolves or ceases to do business. Should this Agreement be terminated pursuant to Section 5.3.1,Associate Member shall pay all Charges up to the effective date of termination.Associate Member agrees to cooperate with NISC in protecting NISC IP that may be jeopardized as a result of the Change in Control. 5.4.Obligations Upon Early Termination:If any Party terminates For Cause,Associate Member shall pay only the amount due up to and including the termination date and shall not be liable for any Early Termination Charges.If Associate Member terminates for Convenience,Associate Member shall pay the amount due up to and including the termination date and shall be liable for all Early Termination Charges.In the event of termination pursuant to Section 5.3, Associate Member shall pay the amount due up to and including the termination date and shall not be liable for any Early Termination Charges.In all events of early termination,NISC shall have no further obligation to provide any access to Software or Support Services after the termination date. 6.Termination 6.L Transition Services:-In the event Associate Member terminates this Agreement For Convenience or For Cause,NISC shall,if requested by Notice from Associate Member within thirty(30)days of the Notice of termination, provide transition services to Associate Member and reasonably cooperate with any successor service provider through the date of termination and for a reasonable time thereafter in order to give Associate Member an opportunity to avoid interruption in service. For transition services,Associate Member shall compensate NISC at its Hourly Rate,plus Costs.In the event Associate Member requires less than one-hundred eighty(180)days to transition to a new service provider,and NISC cannot reasonably accommodate such schedule without working overtime,Associate Member shall compensate NISC at one-and-one-half times(1.5x)its Hourly Rate,plus Costs.Payment and Invoicing shall be as set forth in Section 3. 6.2.Cessation of Use:Unless otherwise provided in a Transition Services Agreement,upon termination of this Agreement,Associate Member shall discontinue use of all Software(including any changes made by Associate Member) and Services and destroy or return to NISC all copies of the Software and NISC Confidential Information.Upon request by NISC,Associate Member will certify compliance with this section. 7.Hosted Software:The following provisions shall apply only with respect to Hosted Software. 7.1.Hosted Software: NISC shall provide Associate Member Access to the Hosted Software described in the applicable Ordering Documents. If the Hosted Software consists of more than one software application,this Agreement shall be deemed a separate and independent agreement with respect to each software application.Associate Member acknowledges that its access and use of the Hosted Software will be web-based only.The Hosted Software will not be provided to Associate Member in CD format(or any other form of media)and will not be installed on any servers or other computer equipment owned or otherwise controlled by Associate Member.Instead,the Hosted Software will be hosted by NISC and accessed and used by Associate Member through the use of the Internet and Associate Member's computers. NISC reserves all rights in and to the Hosted Software not specifically granted herein. 7.2.Obligations of NISC: NISC shall be responsible to: (7.2.1.)provide or contract to provide a professional environment to house the host system and associated hardware;(7.2.2.)administer and manage all equipment at NISC host facilities,including installation of the Hosted Software and the database software and any updates thereto;manage the database;and perform tuning,daily backup,and system backups,as deemed necessary in the reasonable-discretion of NISC; (7.2.3.)grant access to the Hosted Software;(7.2.4.)procure storage for data provided by Associate Member through the Hosted Software;(7.2.5.)provide technical support for the Hosted Software at the then-current rates published by NISC; (7.2.6.)use reasonable efforts to make the Hosted Software available twenty-four(24)hours per day,seven(7)days per week,excluding scheduled downtime for systems maintenance,such as diagnostics,upgrades,and operations reconfigurations,and unscheduled downtime caused by hardware failures,downtime in Associate Member's network or the Internet,and other forces beyond the immediate control of NISC;and,(7.2.7.)provide the Hosted Software in accordance with applicable laws and government regulations. To the extent practicable,scheduled downtime will take place on Page 3 ®2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-elk River Municipal Utilities-v2-nisc(2).docx 150 Saturdays and Sundays between the hours of 8 p.m.and 6 a.m.Central. If possible,NISC will provide Associate Member with reasonable advance notice of any such scheduled downtime. 7.3.Obligations of Associate Member: Associate Member shall: (7.3.1.)maintain a local area network and a dedicated connection of adequate capacity to facilitate access to and use of the Hosted Software;(7.3.2.)ensure adequate and continued Internet access and functionality of its internal network.;(7.3.3.) strictly comply with the terms and conditions of this Agreement and any exhibits hereto(if any),applicable laws and government regulations,and any terms imposed by third party application providers(as may be provided from time to time);(7.3.4.)undertake full responsibility for the accuracy,quality,integrity,and legality of Associate Member's data and the means by which it acquires data; (7.3.5.)in the event any of Associate Member's customers have access to the Hosted Software,require each of Associate Member's customers to accept the terms and conditions of end use of the Hosted Software services;and (7.3.6.)follow industry standards in order to prevent unauthorized access to or use of the Hosted Software. Associate Member shall not,and shall not permit any third party to: (7.3.7.)copy,modify,translate,disassemble,decompile,reverse engineer,or create derivative works from the Hosted Software(7.3.8.)publish or otherwise make available to any third party any testing information or results;(7.3.9.)use the Hosted Software server to store or transmit unlawful material or material in violation of third party privacy rights;(7.3.10.)use the Hosted Software server to store or transmit malicious code including without limitation viruses,trojan horses,worms,time bombs,or other computer programming routines that are intended to damage,disrupt,detrimentally interfere with,surreptitiously intercept or expropriate any system,data,or personal information contained on the Hosted Software or the Hosted Software server:(7.3.11.)otherwise interfere with or disrupt the integrity or performance of the Hosted Software or third party data contained therein;(7.3.12.)attempt to gain unauthorized access to the Hosted Software or the Hosted Software server(s);or(7.3.13.)export the Hosted Software in violation of any federal export law or regulation. 7.4.Authorized Integrated Third Party Applications: The Hosted Software may integrate with and/or include third party applications,products,and services. NISC does not warrant or support third party products or services,except as otherwise specified. 7.5.Optional Third Party Applications: Any exchange of data between Associate Member and any third party provider is solely between Associate Member and the third party provider. If Associate Member and/or any of its subscribing customers request,install,or enable third party applications for use with the Hosted Software,Associate Member acknowledges that NISC may allow such third party providers to access Associate Member's data as required for the interoperation of such third party applications. NISC shall not be liable for any disclosure,modification,corruption or deletion of Associate Member's data resulting from access by any third party application providers. However,the Hosted Software shall permit Associate Member to restrict access by preventing its subscribing customers from installing and enabling third party applications available for use with the Hosted Software. 8.Equipment:NISC's obligations under this Agreement are dependent upon and contingent upon the Associate Member( 8.1.)complying with the minimum equipment specifications identified in the applicable Ordering Documents or the Additional Terms&Conditions to NISC Software and Service Agreement-iVIJE Virtualized Environment;and(8.2. )not operating upon the equipment any software other than the Software. Should Associate Member fail to comply with either requirement set forth in this section,NISC shall be relieved of all performance obligations under this Agreement; Associate Member will,however,remain fully liable for its performance hereunder including,but not limited to,paying all Charges and complying with all confidentiality provisions. If NISC intends to avail itself of the provisions of this section,it shall first give Associate Member twenty(20)days' Notice of its intent to do so,along with what action is necessary in order to be in compliance with this section.If Associate Member fails to comply with this section within such period,NISC shall be entitled to the relief set forth herein. If deployment will be in a Virtualized Environment,Associate Member acknowledges it has read,understands,and agrees to Additional Terms&Conditions to NISC Software and Service Agreement-iVUE Virtualized Environment. 9.Warranty:NISC warrants,that when delivered,the Software shall be in the same state of development,including freedom from errors,as is the Software used by NISC in providing the Software to any of NISC's other Associate Members, and that the software when delivered will adequately perform the applications listed in the applicable Ordering Documents. Page 4 ®2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities-v2-nisc(2).docx 151 • In the event that the Software supplied pursuant to this Agreement does not meet the aforesaid warranty,NISC's sole obligation shall be to take all reasonable efforts to correct the Software so that it will adequately perform the applications listed in the applicable Ordering Documents.NISC shall not be responsible for any third-party software warranties nor shall it be responsible for the support of such software that has not been either pre-approved or purchased from NISC.NISC makes no warranty with respect to any computer equipment purchased by Associate Member pursuant to this Agreement but will assign any manufacturer or supplier warranties for such equipment to Associate Member. NISC does warrant that any computer equipment it recommends or specifies for use by Associate Member in carrying out this Agreement is adequate to perform the functions for which it has been recommended. THE AFORESAID WARRANTY AND NISC'S OBLIGATIONS AND LIABILITIES THEREUNDER ARE IN LIEU OF,AND MEMBER HEREBY WAIVES,ALL OTHER GUARANTEES AND WARRANTIES OR OBLIGATIONS AND LIABILITIES THEREUNDER OF ANY KIND,EXPRESSED OR IMPLIED,ARISING BY LAW OR OTHERWISE,INCLUDING WITHOUT LIMITATION,ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT THOSE SPECIFICALLY STATED IN THIS AGREEMENT. 10.Other Vendor's Proprietary Information:Certain proprietary information of various vendors of computer hardware and software has been and will be used by NISC in developing and integrating functions in the Software. Associate Member agrees it will not alter said proprietary information to render it usable with hardware or software from any other manufacturer(s). Any software included in the proprietary information shall not be sold or used apart from the Software. 11.Oracle Software:NISC Software contains embedded software provided by Oracle USA Inc.and its affiliated companies("Oracle")("Oracle Software"). The Oracle Software is subject to a restricted license and can only be used in conjunction with NISC Software. Associate Member acknowledges that the Oracle Software may include source code that Oracle may provide as part of its standard shipment of such programs,which source code shall be governed by the terms of this Agreement.Third party technology that may be appropriate or necessary for use with some Oracle programs is specified in the Documentation or as otherwise notified by NISC and that such third party technology is licensed to Associate Member only for use with the NISC Software under the terms of the third party license agreement specified in the Documentation or as otherwise notified by NLSC and not under the terms of this Agreement. Anything in this Agreement to the contrary notwithstanding,Oracle or its licensor(s)retain all ownership and Intellectual Property Rights to the Oracle Software and,with respect thereto,Oracle is a third-party beneficiary to this Agreement.Associate Member may not remove or modify any Oracle Software markings or any notice of Oracle's or its licensors' proprietary rights;reverse engineer(unless required by the law of interoperability),disassemble,or decompile Oracle Software(the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs).Associate Member shall not publish any results of benchmark tests run on Oracle Software. Associate Member will permit NISC and/or Oracle to audit Associate Member's use of the Software.Associate Member authorizes NISC to report the audit results to Oracle.Each Party shall bear its own costs associated with conducting and cooperating in the audit.Oracle shall not be required to perform any obligations or incur any liability not specifically set forth in this Agreement.In no event shall Oracle be liable for any damages,whether direct,indirect,incidental,special, punitive,or consequential,any loss of profits,revenue,data or data use,arising front use of the Software. 12.Confidential Information Nondisclosure,Protection and Use: Recipient agrees not to disclose to anyone Confidential Information it receives under the protection of this Agreement,except those Affiliates and Representatives of Recipient who(12.1.)have a need to know and to whom disclosure is necessary consistent with the purpose of this Agreement;and(12.2.)who have joined in this Agreement or are otherwise bound by the terms of this Agreement.Recipient shall be solely responsible for ensuring compliance with the preceding conditions contained in this Section.Recipient shall take precautions consistent with industry standards to protect Confidential Information,including,at a minimum,using the same degree of care to prevent the unauthorized access,use,dissemination,or publication of Confidential Information as Recipient uses to protect its own confidential information of a like nature.Recipient shall not use Confidential Information for any purpose other than the purpose of this Agreement,and specifically not for Recipient's own use beyond the purpose of this Agreement,or for the benefit of any third party.Recipient shall not alter,modify,disassemble,reverse engineer,or Page 5 ®2014-2015 NISC.All Rights Reserved CONFIDENTIAL. 25203 SSA-NISC-Elk River Municipal Udlities-v2-nisc(2).docx 152 decompile any Confidential Information.Recipient further agrees to immediately provide Notice to Discloser of any loss or unauthorized disclosure or use of any Confidential Information of Discloser. 13.NISC IP Confidentiality&Protection:Associate Member acknowledges that the NISC Software and any original and copies thereof,in whole or in part,and all NISC Intellectual Property Rights("NISC IP")as well as other NISC Confidential Information belong exclusively to NISC and are of great value to NISC and its Associate Members and that unauthorized use,disclosure or reproduction would cause NISC and its Associate Members irreparable harm. Associate Member shall hold private and confidential any and all NISC IP and other Confidential Information unless this or other agreement(s) between the Parties authorize disclosure. Machine readable portions of the Software are intended for use only by Associate Member.Associate Member shall not release machine readable nor human readable portions of Software to any other person,firm or entity under any circumstances.'Associate Member agrees that all materials supplied by NISC under this Agreement shall be kept in a secure place and Associate Member shall take appropriate action satisfactory to NISC by instruction,agreement or otherwise,with any person permitted access to the Software,to assure continuous confidentiality. Associate Member shall refrain from making copies of all or any portion of the Software on any media,whether in machine readable or human readable form, except as provided in this Agreement. Associate Member shall not permit its employees or third parties to make any copies or reverse assemble,reverse compile,or otherwise attempt to translate the Software. If Associate Member elects to leave the NISC network or if NISC elects to not renew the Agreement,thereby requiring certain items of file documentation, Associate Member will be provided only with the documentation necessary to effect such a move within thirty(30)days from the date that the Notice is given. Associate Member may share this documentation with third parties on the condition that a non-disclosure form is executed between NISC and those third parties to insure the protection of intellectual property and in order to facilitate a smooth transition. Associate Member assumes responsibility for any violations of this Agreement by any of Associate Member's employees or representatives. Associate Member acknowledges that NISC will not have an adequate remedy at law in the event of any breach of the obligations imposed upon Associate Member by this section and NISC shall be entitled to injunctive and/or other equitable relief to prevent or remedy any breach. 14.Compelled Disclosure: If Recipient is compelled or obligated to disclose Discloser's Confidential Information pursuant to any statute,regulation,or court order,the same shall not be a breach of this Agreement. Recipient shalt,as soon as reasonably possible,give Discloser Notice of the same and shall cooperate with Discloser in Discloser's efforts to seek a protective order or other legal remedy.Discloser shall reimburse Recipient all Recipient's reasonable and necessary out-of-pocket costs associated with compliance with this Section. 15.Publicly Funded Entity:Anything in this Agreement to the contrary notwithstanding,the parties acknowledge that Associate Member is subject to certain public records laws and compliance with such laws shall not be a breach of this Agreement.In the event Associate Member is requested to provide any information the confidentiality of which is protected under this Agreement,Associate Member shall forthwith provide NISC with Notice of the request,but in any case no less than half the number of days in which Associate Member has to respond to such request. 16.Return of Confidential Information: All Confidential Information(including all copies thereof)shall be returned to the original Discloser after the Recipient's need for it has expired,or upon request of Discloser,and,in all cases,upon completion or termination of this Agreement.Upon request,the.Recipient shall certify to Discloser that all Confidential Information has been returned or permanently destroyed,which certification shall include the steps taken to comply with this section. 17.Indemnification:Associate Member agrees to indemnify,defend,and hold NISC harmless from and against any and all claims,including reasonable attorneys'fees,costs,and expenses incidental thereto,which may be suffered by,accrued against,charged to,or recoverable from NISC,arising out Associate Member's breach of this Agreement or violation of any applicable law,rule,or regulation. Page 6 ®2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-EIk River Municipal Utilities-v2•nisc(2).docx 153 18.Proprietary Rights Indemnification:NISC agrees to indemnify,defend,and hold Associate Member harmless from and against any and all claims,including reasonable attorneys'fees,costs,and expenses incidental thereto,which may be suffered by,accrued against,charged to,or recoverable from any Associate Member,arising out of a claim that NISC Software infringes or misappropriates any Intellectual Property Rights("IP Claims"). In the event that NISC is enjoined from delivering either preliminary or permanently,or continuing to license to Associate Member,NISC Software and such injunction is not dissolved within thirty(30)days,or in the event that Associate Member is adjudged,in any final order of a court of competent jurisdiction from which no appeal is taken,to have infringed upon or misappropriated any Intellectual Property Rights in the use of NISC Software,then NISC shall,at its expense:(a)obtain for Associate Member the right to continue using NISC Software;(b)replace or modify NISC Software so that it does not infringe upon or misappropriate such Intellectual Property Rights and is free to be delivered to and used by Associate Member or,(c)in the event that NISC is unable or determines,in its reasonable judgment,that it is commercially unreasonable to do either of the aforementioned, NISC shall recover NISC Software from Associate Member,in which event in addition to the foregoing indemnification:(1) •the License of such product shall be void as between NISC and Associate Member as of the date MSC retakes possession; and,(ii)NISC shall reimburse to Associate Member all amounts paid for Software or Services not provided,and reduce the Associate Member's then-current monthly fee by the amount attributable to such Software or Service.This paragraph sets out NISC's entire liability for any IP Claim and Associate Member's sole remedy. 19.Indemnification Procedures:Promptly after receipt by Associate Member of a threat of any action,or a notice of the commencement,or filing of any action against Associate Member,Associate Member shall give Notice thereof to NISC, provided that failure to give or delay in giving such notice to NISC shall not relieve NISC of any liability it may have to Associate Member except to the extent that MSC demonstrates that the defense of such action is prejudiced thereby. Associate Member shall not independently defend or respond to any such claim;provided,however,that(19.1.)Associate Member may defend or respond to any such claim,at NISC's expense,if Associate Member's counsel determines,in its sole discretion,that such defense or response is necessary to preclude a default judgment from being entered against Associate Member;and,(19.2.)Associate Member shall have the right,at its own expense,to monitor NISC's defense of any such claim. NISC shall have sole control of the defense and of all negotiations for settlement of such action. At NISC's request, Associate Member shall cooperate with NISC in defending or settling any such action;provided,however,that NISC shall reimburse Associate Member for all reasonable out-of-pocket costs incurred by Associate Member(including,when authorized by NISC,reasonable attorneys' fees and expenses)in providing such cooperation.This section 19 shall survive termination. 20.Liability Limitations; Anything in this Agreement to the contrary notwithstanding,in no event shall either Party be liable to the other under any theory of tort,contract,strict liability,or other legal or equitable theory for indirect, consequential,special,incidental,or punitive damages,incurred by any party(including any third party),however caused, arising under or in connection with.this Agreement,even if such Party had been advised of the possibility of such damages. FOR CLARITY,MEMBER AGREES THAT NISC SHALL NOT BE LIABLE FOR ANYLOSS OF USA REVENUES, PROFIT,INDIRECT,CONSEQUENTIAL,PUNITIVE OR ANY OTHER TYPE OF CLAIM,NO MATTER THE LEGAL THEORY,AS A RESULT OF MEMBER'S USE OF THE SOFTWARE PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL NISC'S AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID TO NISC UNDER THIS AGREEMENT IN THE TWELVE(12)MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM. 21.Remote Support:Associate Member agrees to provide connectivity to Associate Member's computer system utilizing the NISC software,to allow remote access by NISC for support of the system and software. 22. Taxes, Property Insurance,Freight and Travel Expenses:Associate Member shall bear all risk and property insurance and taxes,however designated,including,but not limited to,sales,use and personal property taxes imposed as a Page 7 ®2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities-v2-nisc(2).docx 154 result of the existence or operation of this Agreement,except state and federal income taxes incurred by NISC. Associate Member shall also be responsible for all postage,freight,express delivery and air shipments from MSC to Associate Member. Associate Member shall also be responsible for paying all travel related expenses of NISC employees on Associate Member requested trips for training,installation and support. Guidelines for such charges will be provided upon Associate Member request. 23. Business Cessation:In the event that NISC and all of its successors and assigns,whether direct or indirect,cease to exist and cease to provide the NISC Software or Support Services,Associate Member shall be entitled to the object code for the NISC Software in order to permit Associate Member to operate the NISC Software. 24.Dispute Resolution:All disputes,claims,and controversies between the parties arising out of or related to this Agreement,including,without limitation,any claim of misrepresentation,breach,or non-performance,shall be resolved in the following manner: the aggrieved Party shall provide Notice to the other Party,setting forth the nature of the dispute with reasonable detail;within thirty(30)days of receipt of Notice of the dispute,the Parties' authorized representatives shall meet in person or via telephone to reach an agreement as to the nature of the dispute and the appropriate corrective action; the Parties shall have sixty(60)days,or more if mutually agreed in writing,from receipt of Noticeof the dispute to resolve the dispute. Neither Party may commence legal suit,action,or proceeding arising out of this Agreement unless the Parties have first complied with informal dispute resolution procedures of this Section,or these procedures are waived by all Parties. Failure of a Party to fulfill•its obligations in this Section,including failure to timely respond to Notice,shall be deemed a waiver for purposes of this Section. • 25.Miscellaneous;Governing Law: This Agreement is the complete agreement between the patties,and replaces any prior oral or written communications between them as to the matters described herein EXCEPT that any Non-Disclosure, Confidentiality or other similar agreements shall remain in full force and effect and the benefits and burdens provided herein shall be in addition to the benefits and burdens of such agreements.This Agreement may not be changed,modified, amended,or supplemented except by a written instrument signed by both parties. This Agreement may not be assigned by either Party.In the event Associate Member grants a security interest with respect to any software or services described in this Agreement,the secured party has no right to use or transfer such software or services.The Uniform Computer Information Transactions Act shall not in any way govern or apply to this Agreement.If any provision of this Agreement is found by a proper authority to be unenforceable,that provision shall be severed and the remainder of this Agreement will continue in full force and effect. The parties agree this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota,excluding its conflicts of laws principles,and that any action with respect to this Agreement shall have for its venue a court of competent jurisdiction located within the State of Minnesota. 26.DefinitIons:The following terms have the meaning ascribed to them: 26.1.Access:A nontransferable,nonexclusive right,for internal purposes only,to(26.1.1.)run,use,or execute the • Hosted Software,or(26.1.2.)be the intended recipient of content generated by the Hosted Software whether online,via email,or in printed or other form,No other right,title or interest of any kind is granted. 26.2.Change in Control:The occurrence of any one of the following:(262.1.)all or a substantial portion of the business(assets or stock)of Party is sold,leased,or otherwise transferred;(26.2.2.)Other than the current direct or indirect owners,any person,group,or organization becomes the beneficial owner,directly or indirectly,of securities or capital of the Party representing 50%or more of the combined voting power with respect to election of directors of Associate Member. 26.3.Code:Computer object code contained in the Software.Code shall include Maintenance Modifications, Enhancements and Custom Programming licensed by Associate Member. 26.4.Confidential Information:(26.4.1.)All information,in any form,furnished or made available directly or indirectly by one Party to the other which is identified or marked confidential,restricted,or with a similar designation; (26.4.2.)This Agreement and all related documents such as proposals,estimates,and Ordering Documents,as well as all information regarding the negotiation of this Agreement;(26.4.3.)Intellectual Property Rights(excluding Marks)of each Party;(26.4.4.)All information concerning the operations,affairs and businesses of a Party or its affiliates;(26.4.5.)The Page 8 0 2014-20x5 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities-v2-nuc(2).docx 155 financial affairs of a Party or its affiliates;(26.4.6.)Additionally,in the case of NISC,the Software and Documentation;( 26.4.7.)Additionally,in the case of Associate Member,the relations of Associate Member or its affiliates with their respective customers,employees and service providers,customer or employee Personally Identifiable Information,and other customer information in the custody of Associate Member. 26.5.Control:Having(265.1.)direct or indirect ownership of fifty percent(50%)or more of the controlled entity's shares or other ownership interests,or(26.5.2.)the right to exercise the executive decision-making for such entity,no matter the source of such right. 26.6.Costs:The actual,reasonable and necessary out-of-pocket(or per diem)expenditures associated with providing the Services. 26.7.Custom Programming:Programming performed in order to meet the unique needs of Associate Member, including,but not limited to programming to meet non-standard business requirements;file fixes,data cleanup on any legacy applications,additional bill calculations,delinquent notices,cutoff notices,or any other deliverables not otherwise commercially available to other NISC members. 26.8.Documentation: Regardless of the medium in which stored or displayed,the user manuals,help screens, Ordering Documents,Community web pages and other written materials that relate to the Software,along with any and all amendments,modifications and supplements to such written materials. 26.9.Enhancements:Modifications,additions,or substitutions,other than Maintenance Modifications and Custom Programming.made to the Code that accomplishes incidental,structural,or functional improvements. Enhancements also include all minor revisions and releases of the NISC Software subsequent to the effective date of this Agreement. 26.10.Go-Live Date:The first date on which the Software may be used in production by at least one user to perform a business function. 26.11.Hosted Software:The NISC Software designated as"Hosted Software"in the applicable Ordering - Documents. 26.12.Hourly Rate:The rate set by the NISC Board of Directors which is in effect at the time services are rendered.Such rate shall not increase in any twelve month period by more than ten percent(10%). 26.13.Intellectual Property Rights:On a worldwide basis,any and all:(26.13.L)Rights associated with works of authorship,including copyrights;(26.13.2.)Marks;(26.13.3.)Trade secrets and proprietary methodologies;(26.13.4.) Patents,designs,algorithms and other industrial property rights;(26.13.5.)Other intellectual and industrial property rights of every kind and nature,however designated,whether arising by operation of law,contract,license or otherwise;and (26.13.6.)Registrations,initial applications,renewals,extensions,continuations,divisions or reissues thereof now or hereafter in force(including any rights in any of the foregoing). 26.14.License:The non-exclusive,royalty-free,non-transferrable right to use the Software solely for Associate Member's internal purposes. 26.15.Maintenance Modifications:Modifications,updates,or revisions made by NISC to the Code that correct errors,support new releases of operating systems,or support new models of input/output devices with which the Code is designed to operate. 26.16.Marks:All trademarks,service marks,trade names,trade dress,symbols,logos,designs,and other source identifiers. 26.17.Minimum Equipment&Maintenance List:A list of equipment and maintenance requirements provided by NISC and updated from time to time,after Associate Member provides NISC with information as to Associate Member's intended use of the equipment,which describes the minimum equipment necessary,as well as maintenance requirements pertaining to such equipment,in order to operate the Software within acceptable parameters. 26.18.Monthly Fees:With respect to NISC Hosted Services,the fee to access such service and Support Services related thereto.With respect to all other NISC Software,the fees for Support Services as well as NISC Software Maintenance Modifications,Enhancements,and updated Documentation. 26.19.Monthly Fee Rate:The rate(s)set by the NISC Board of Directors which is in effect at the time services are rendered.Such rate shall not increase in any twelve month period by more than ten percent(10%). Page 9 0 2014-2015 NISC.All Righta Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities-v2-nisc(2).dccx 156 26.20.Notice: Communicating information to the intended recipient at the Notice Address(s),in writing,which is then effective(26.20.1.)on the date sent by fax or email(with confirmation of transmission)if sent during normal business hours of the recipient,and on the next business day if sent after normal business hours of the recipient,(26.20.2.)on the third clay after the date mailed,by certified or registered mail,return receipt requested,postage prepaid,or(26.20.3.)when received by the recipient if sent by a nationally recognized overnight courier(receipt requested). 26.21.Party-Related Definitions:(26.21.1.)Affiliate:Any corporation,LLC,or any other entity which is Controlled by a Party,Controls a Party,or is under common Control with a Party.(26.21.2.)Discloser:A Party disclosing Confidential Information.(26.21.3.)Party or Parties:Any one or more of the parties to this Agreement.(26.21.4.) Recipient:A Party receiving Confidential Information.or other information as the context indicates.(26.21.5.) Representative:A Party or any of its Affiliate's:directors,officers,employees,agents,and professional advisors including without limitation attorneys and accountants. 26.22.Personally Identifiable Information:Information,the combination of which would allow the ability to uniquely identify,contact,or locate a single individual.Such information may include an individual's full name,birthdate, birthplace,Social Security Number or other national identification number,driver's license number,or credit card number. 26.23.Ordering Documents:The documents setting forth the Software,Services and Equipment to be provided by NISC to Associate Member,including the Purchase Orders,Statements of Work and Letters of Authorization. 26.24.NISC Software:The type of NISC software product(s)described in the applicable Ordering Documents or otherwise being used or accessed by Member,together with any applicable Documentation,Maintenance Releases and Custom Programming, 26.25.Third Party Vendor Software:The Third Party Vendor software product(s)described in the applicable Ordering Documents or embedded in NISC Software,including patches and minor upgrades for which additional fees are not due,but excluding upgrades for which additional fees may be due. 26.26.Software:NISC Software and Third Party Vendor Software. 26.27.Support Services:Advice,instruction,and/or the performance of tasks by NISC for the benefit of Associate Member in order to allow Associate Member to operate NISC Software. 26.28.Early Termination Charges:The lesser of(i)Twelve(12)months;or(ii)the number of unbilled months remaining under the then current term of this Agreement multiplied by the lesser of:Monthly Fees payable under this Agreement for the one month in which such Monthly Fees were the greatest during the term of this Agreement;or the then most recent six months'average of the monthly invoice amount due for Monthly Fees prior to termination. 27.E-Execution&Storage:This instrument may be executed in two or more counterparts,each of which shall be deemed an original,but ail of which together shall constitute one and the same instrument.This instrument may be executed and/or stored in electronic format only;an electronic,scanned,or facsimile signature shall be valid for all purposes;and the destruction in the ordinary course of business of any document containing a"wet"signature shall not invalidate this instrument. IN WITNESS WHEREOF,the Parties have set their hands. National Information Solutions Cooperative,Inc. Elk River Municipal Utilities /J ag�Irsfyneae,n..nemnnea cD. LN:en.IMVb Denn".N.tinn.1 fife niatian Solulbnl Coop rice Inc oY.NQ P.esIdeel fd.debnp aMMndhomrllihcooaP o=US Gate:]OId0i.1]16:71:,,-06tl0' Signature: By David Bennett,Vice President-Marketing qq //�� Name: �(`�ry t r A-dLG ut. 5 Page 10 ©2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-MSC-Elk River Municipal Utilities-v2-nisc(2).dacx 157 Tide: 664.cragA tx`"4 je' Date: 2l etZ4/t U Page 11 C 2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities-v2-nisc(2).docx 158 Additional Terms&Conditions to NISC Software and Service Agreement • iVUE Virtualized Environment Associate Member acknowledges it has read,understands,and agrees to the following Additional Terms& Conditions to NISC Software and Service Agreement-iVUE Virtualized Environment.NISC reserves the right to amend these Additional Terms and Conditions upon reasonable notice to Associate Member. NISC's standard deployment for a production iVUE environment is a physical machine. If a Virtualized Environment is preferred,Associate Member is responsible to work with NISC in order to configure the environment based on NISC's guidelines. • 1.Virtualization Technology must be either VMWare ESX/ESXi version 4.0 or above,or HyperV(2012).Deployment of the iVUE environment in any other Virtualization technology is not recommended and at Associate Member's risk and responsibility. 2.NISC will provide resource requirements to implement iVUE in a Virtualized Environment.Installation and configuration services related to Associate Member's Virtualized Environment outside the scope of the applicable Ordering Documents are billable at NISC's Hourly Rate. 3.Associate Member's Responsibilities:Associate Member undertakes the following: . 3.1.Work with NISC to configure the VM to meet NISC Virtualized Environment guidelines as well as NISC recommended resources,capacity,and performance. 3.2.Ensure that Associate Member's Virtual Environment is licensed correctly to meet licensing requirements.' 3.3.Post-implementation support and maintenance for all ongoing VM Management,technical support,and troubleshooting related to Associate Member's Virtual Infrastructure.2 • 3.4.Have diagnostic capabilities to troubleshoot performance related issues. 3.5.Support for VM related tools.For example,if the VM needs to be moved to different hardware because of equipment issues,support issues,or disaster recovery related issues. 3.6.Proper backup and restore routines.This includes,at a minimum that two backups must be in place. 3.6.1.File Backup:A file level backup to backup and restore individual files as part of a nightly backup. A retention policy must be established that meets NISC's recommended retention policy. 'SuSE and Microsoft Windows Server operating systems can be purchased from NISC.Oracle and Microsoft SQL Server database licenses can be purchased from NISC. a If NISC provides technical support related to Associate Member's Virtual Infrastructure,Associate Member shall pay NISC its Hourly Rate for such services. Page 12 ®2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Blk River Municipal Utilities-v2-nisc(2).docs • 159 Nightly: It is the responsibility of Associate Member to provide the backup software(agent),installation instructions,and technical contact to NISC. In this scenario,NISC will provide a backup of the databases to a separate portion of the hard disks of the NUE Server. It is Associate Member's responsibility to backup that data each night and log any and all events that pertain to Associate Member's backup solution. In the event of a restore, it is Associate Member's responsibility to restore the data back to the portion of the hard disk of the iVUE Server. After this is done,NISC will restore the data from the hard disk area into the live database. 3.6.2.System Backup:A system backup to backup and restore the VM as part of a monthly backup. A retention policy must be established that meets NISC's recommended retention policy.3 3.7.In the event of a file restore,restore the data to the VM's disk for NISC's use. 4.NISC's responsibilities:NISC undertakes the following: 4.1.Once the VM is configured and licensed properly,NISC will provide an operating system install image. 4.2.Once the operating system is installed,NISC will proceed with configuring the iVUE environment. 4.3.NISC will support iVUE in Associate Member's Virtualized Environment regarding all known support issues! 5.iVUE Database Server NISC's iVUE software utilizes SuSE operating system and an application specific version of Oracle. This version of Oracle is licensed by sockets and/or available processors. Oracle has established the following requirements regarding a Virtualized Environment implementation: 5.1.Oracle considers all processors available to the VM as licensable,whether they are allocated to the VM or not. For example,if the VM is running ona dual processor server,two Oracle processor licenses must be purchased to comply with Oracle licensing. 5.2.If the VM running Oracle is on a storage area network(SAN)and is readily available to multiple VM hosts,all of those hosts are counted towards Oracle processor based licensing. For example,if a VM is presented and readily available to be moved to another VM host for immediate failover,the number of processors in that VM host must also be licensed. 5.3.If Associate Member implements any type of additional technology to automatically scale resources or move VMs based on load,all of the hosts in Associate Member's Virtualized Environment are counted towards Oracle processor based licensing. 5.4.If Associate Member utilizes SAN replication,and the replicated VM is accessible to multiple VM Host(s),all of those hosts are counted towards Oracle processor based licensing. 5.5.NISC's iVUE software is typically deployed using Oracle Standard Edition One(SE1)database license. This license can only be used in VM host servers with a maximum capacity of 2 processors/sockets. If more than 2 sockets are 3 In the event of a system restore failure,the time needed to rebuild the VM is billable at NISC's Hourly Rate. If NISC needs to deploy Associate Member's database on physical hardware for troubleshooting purposes,Associate Member shall pay NISC its Hourly Rate for the time required to do so. Page 13 ©2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-BIk River Municipal Utilities-v2-nisc(2).docx 160 available per VM host server,either Oracle Standard Edition(SE)must be licensed,provided the environment does not -_ exceed a maximum of 4 sockets,or Oracle Enterprise Edition(EE)can be licensed which has no maximum socket limits. 5.6.Oracle reserves the right to conduct license audits to guarantee license compliancy. It is Associate Member's responsibility to ensure that the initial and ongoing report of processors/sockets is accurate to ensure compliant licensing. 5.7.It is Associate Member's Responsibility to manage Oracle licensing requirements,including accurately reporting the number of available processors/sockets and any future increases to the number of processors/sockets. 6.Web Proxy Server •6.1,The Web Proxy Server utilizes SuSE operating system. 6.2.The Web Proxy Server needs to be segregated from Associate Member's local area network(LAN)and connected to a DMZ 6.3.It is Associate Member's responsibility to configure a VLAN and/or dedicated/separate network card for DMZ connectivity. 7.Document Vault:NISC's Document Vault software utilizes SuSE operating system and Postgres database. Postgres is an open source database with no licensing requirements. 8.CallCapture:NISC's CallCapture software utilizes SuSE operating system and Postgres database.CallCapture requires an SIP phone system in order to be virtualized. 9.ArcGIS Server:ArcGIS software utilizes Microsoft Windows Server operating system and Microsoft SQL Server. ArcOIS Server Standard Workgroup license supports a maximum of two cores. If deployed in a Virtualized Environment, no more than two cores can be allocated to the application. 10.Other items Over the course of a hardware lifecycle,it may be necessary to replace the operating system of the VM guest to meet the requirements for future iVUE enhancements. Under a physical machine implementation,this happens when the hardware is replaced upon warranty expiration. When this scenario arises in a Virtualized Environment,it is treated as an IVUE replacement and the time required to replace the operating system is billable at NISC's Hourly Rate for such services. Associate Member accepts these terms and conditions,and acknowledges the possible adverse effects,results and charges that may occur in connection with a Virtualized Environment. • Page 14 0 2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA NISC-6Ik River Municipal Utilities-v2-niac(2).docx • 161 11.Additional ormation -• Please complete theInffollowing information regarding your Virtual Environment: See attached VM Host information,if existing host is available Brand and model CPU Memory VMWare Version SAN Specifications Brand and Model Connectivity(iSCSI,Fiber,etc)• Host bus adapter for SAN connectivity Number of Drives&Type(SATA,SAS,etc) Speed of Drives(10K, 15K,etc) Drive configuration(RAD? 10,etc) Total amount of Disk available for iVUE •Oracle Licensing Total Number of sockets/processors in the VM Hosts that are accessible to the IVUE VM datastore If the SAN is replicated to another SAN and is accessible by VM Hosts,enter the Total Number of sockets/processors in the VM Hosts that can access it Total number of Oracle processor based licenses that need to be purchased SuSE Licensing SuSE is licensed by physical host. Backup File level backup that will be used System backup that will be used Page 15 ©2014-2015 NISC.All Rights Reserved CONFIDENTIAL 25203 SSA-NISC-Elk River Municipal Utilities-v2-nise(2).docx 162 -N - N 1;: ..... M Y V1 I V_ QN 8 -1 Nz ac', N WN N m l0 aC F m t',� LL N V y CO ^ Osit .0 z is h cq 00 � �' c r U = LL] W 11 N N N0. V ellM M a - t a+ 3 W C . O ..j 4.' yO '^ sr TA -437+ Ng� o �Q O G 2 E 0 0 w+ N % G 1 a. '2 -9 :E oII- c o E �3 l° ENI 4:1 wC tp - .2 al o 'v Ey' 8 m z 3 > c a .4 w E C a x UJ r C W 2 2 N t O X a C - O N E c O_ 0 c p •E faa A is > c 0. z a a .m 3 2 Ill v > > o 0