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emphasys Software
EMPHASYS SOFTWARE LICENSE AGREEMENT
This Emphasys Software License Agreement ("Agreement") is entered into effective the 92
day of 3kl CL , 2019 ("Effective Date") by and between Emphasys Software a Michigan
corporation,with its principal place of business located at: 3675 Mt Diablo Blvd., Suite 280,Lafayette,
CA 94549 ("Emphasys"),and Jefferson County, a Washington public entity,with its principal place of
business located at: 1820 Jefferson St.,Port Townsend,WA 98368 ("Licensee").
RECITALS
A. Emphasys designs, develops and licenses a proprietary computer software solution known as the
SymPro Treasury Management Software.
B. Licensee desires to obtain a personal, nontransferable, non-exclusive limited right and license to
use such software and related documentation and services for Licensee's own internal business purposes
only and Emphasys is willing to grant such a license on the terms and subject to the conditions of this
Agreement.
THEREFORE, in consideration for the fees to be paid by Licensee to SHI Government Solutions
Inc. ("SHI") (whom Licensee has hired to perform all purchasing duties under this Agreement and who
will issue a purchase order to Emphasys to cover all payments due) hereunder and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree:
1. Certain Definitions. As used in this Agreement, the following terms shall have the following
definitions:
A. "Authorized Users" shall mean Licensee and its employees and no other persons or
entities; the number of which is stated in the attached Exhibit A and which may be changed by
amendment to the attached Exhibit A or authorized purchase order issued by Licensee and accepted by
Emphasys.
B. "Designated Equipment" shall mean a single Intel based computer or a network file
server on which Licensee uses the Software pursuant to this Agreement and which is more fully
described in the attached Exhibit A.
C. "Designated Site" shall mean the location at which the Designated Equipment and
Licensed Products are located during the term of this Agreement as identified on Exhibit A to this
Agreement or such other location as may be expressly approved in writing by Emphasys.
D. "Documentation" shall mean all user/operation manuals and other materials or
information describingthe Software, as hereinafter defined its performance characteristics,
technical
features and other relevant eva t mfoxmation reasonably required for use of the Software, including all
physical media upon which the materials or information are provided.
E. "Licensed Products" shall mean the Software and the Documentation.
H. "Software" shall mean that certain Emphasys proprietary computer software solution
known as SymPro Treasury Management Software, in machine readable, object code form, as listed on
Exhibit A, and any modules, bug fixes, modifications, enhancements and other SymPro or third party
software provided to and licensed hereunder by Emphasys to the Licensee during the Term.
2. Software License.
A. License Grant. Subject to the terms of this Agreement, Emphasys hereby grants to
Licensee, and Licensee accepts, a limited, personal, non-transferable and non-exclusive perpetual license
to use the Licensed Products solely for Licensee's own internal business purposes and solely on the
Designated Equipment located at the Designated Site by the number of Authorized Users stated in the
attached Exhibit A or such Authorized Users added during the Term. Licensee shall be permitted to
make one copy of the Software for backup and archival purposes only. Each copy must reproduce all
copyright and other proprietary notices.
B. Warranty of Ownership. Emphasys warrants to Licensee (and no other person or entity)
that it is the author and owner or proper Licensee of the Licensed Products and has the right to enter into
this Agreement.
C. Emphasys Retains Title. Licensee acknowledges that Emphasys and its licensors retain title
to the Licensed Products, all copyrights, trade secrets and other intellectual property rights licensed to
Licensee even if Licensee's suggestions are incorporated into subsequent versions of the Software. The
Licensed Products constitute a trade secret and are confidential to Emphasys.
D. No Ownership Rights. Other than the limited right of use of the Licensed Products
described in this Agreement, Licensee neither shall have nor shall it acquire any right, title or interest in
or to any of the Licensed Products or in any intellectual or proprietary rights represented thereby.
E. License Restrictions. Licensee agrees that it will not modify, decompile, disassemble,
translate or reverse engineer the Software, in whole or in part. Except as expressly stated, this
Agreement does not include any rights to use, disclose, sublicense, or otherwise transfer the Software,
Documentation, or other proprietary information of Emphasys. Licensed Products shall not be used to
process data except for Licensee's internal purposes.
F. Licensee shall immediately notify Emphasys in writing of any actual or suspected breach of
this Agreement,including,without limitation,its terms limiting use.
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3. Delivery of Licensed Products. Software may be delivered to licensee by CD or by remote
telecommunications from Emphasys' place of business unless the parties agree in writing to an
alternative method of delivery. Emphasys is not responsible for installing the Software unless Emphasys
is specifically contracted to perform installation and training services.
4. Warranty.
A. Emphasys warrants that: (i) Software will perform in accordance with Emphasys' standard
specifications stated in its Documentation for a period of 180 days from the date of first installation of
the Software (exclusive of bug fixes, modifications or enhancements provided during the warranty
period or under the Annual Maintenance and Support Plan); and, (ii) Services provided under the Plan
will be performed in a professional and workmanlike manner and bug fixes, modifications,
enhancements provided under the Plan will perform in accordance with Emphasys' standard
specifications. EXCEPT FOR THE WARRANTIES STATED ABOVE, EMPHASYS AND ITS
LICENSORS MAKE NO OTHER WARRANTIES, WRITTEN OR ORAL, WHETHER
EXPRESS OR IMPLIED. EMPHASYS AND ITS LICENSORS EXPRESSLY DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON-INFRINGEMENT. For warranty support, Licensee should contact:
Technical Support at telephone number 510 655 0900.
B. Licensed Products are of a complex nature resulting in operations that may be interrupted
or errors that may be encountered. Emphasys sole obligation and licensee's sole remedyunder this
Y
warranty is for Emphasys, at its provide such services,to,onbug
option, fixes or other modifications it
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deems appropriate, provide a functional equivalent or reperform services, if: (i) Emphasys receives
proper notice of any claimed Software defect during the warranty period or a claim of defective services
or Software under the Plan within 10 business days of the related occurrence. Proper notice includes
copies of the data, reports and written procedures documenting the claim. And, (ii) the Licensee is
otherwise in compliance with this Agreement and using the current version of the Software in
accordance with Emphasys' standard specifications; and, (iii) Emphasys is able to reproduce any claimed
defect. Should Emphasys determine in its sole judgment after reasonable effort that a covered defect
cannot be remedied, Emphasys may elect to terminate this Agreement as to the effected Software and
refund the amount paid by Licensee to SHI and subsequently paid by SHI to Emphasys, unused License
Fees as to the effected Software only upon return of the Software and certification the Software is no
longer in use by Licensee.
C. Further Limitations. The limited warranties provided in this Section 5, as limited by other
provisions of this Agreement, are non-transferable by Licensee except as set forth below and shall
immediately become void in the event of any unauthorized use, modification or repair of the licensed
Products or any part thereof or upon breach by Licensee of any provision of this Agreement. Except as
otherwise may be provided in any technical support and maintenance agreement between the parties,
Licensee shall pay, at Emphasys' then current rates, for services performed by Emphasys to correct
problems or defects not covered by warranty,including,without limitation, those traceable to Licensee's
errors.
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D. Licensee shall pay, at Emphasys' then current rates, for services performed by Emphasys to
address any problems or defects not covered by warranty or the Plan, including, without limitation,
those traceable to Licensee's errors. All such services will be provided to a specific proposal outlining
the scope of work, time and material rates and delivery schedules.
5. Indemnification.
A. Emphasys hereby agrees to indemnify Licensee against any damages finally awarded
against Licensee in connection with a claim that the licensed Products directly infringe a United States
copyright or patent or other intellectual property rights, provided that: (i) Licensee notifies Emphasys in
writing within 30 days of the claim; (ii) Emphasys has sole control of the defense and all related
settlement negotiations; and (iii) Licensee provides Emphasys with the required assistance, information
and authority. Emphasys shall have no liability for any claim of infringement arising from: (a) any
unauthorized use, alteration or modification of the Software including use of the Software in
conjunction with products not provided by Emphasys; or, (b) use of a superseded or altered release of
the Software if the infringement would have been avoided by the use of a current unaltered release of
the licensed Products.
B. If the Licensed Products are held or are believed by Emphasys to infringe, Emphasys
shall have the option, at its expense, to: (i) modify the Licensed Products to be non-infringing; or, (ii)
obtain for Licensee a license to continue using the Licensed Products. If it is not commercially
reasonable to perform either of the above options, then Emphasys may terminate the license for the
infringing licensed Products and refund any unused License Fees or Annual Maintenance and Support
Plan fees paid by Licensee to SHI and subsequently paid by SHI to Emphasys, for the affected Licensed
Products. Licensee shall discontinue use of the Software.
C. The provisions of this Section 6 state each party's entire obligation and liability with
respect to the infringement of any property right based on the use of the Licensed Products.
6. LIMITATION OF LIABILITY. To the extent a claim arises under warranty, the remedy stated
in Section 5 applies. To the extent a claim arises under indemnification, the remedy stated in Section 6
applies. AS TO ALL OTHER CLAIMS, LICENSEE ACKNOWLEDGES THAT POTENTIAL
DAMAGES IN ANY PROCEEDING WOULD BE DIFFICULT TO MEASURE WITH
CERTAINTY AND THE PARTIES EXPRESSLY AGREE THAT AS A FAIR ASSESSMENT OF
POTENTIAL DAMAGES, EMPHASYS AND ITS LICENSOR'S LIABILITY UNDER THIS
AGREEMENT, REGARDLESS OF FORM OF ACTION, PROCEEDING OR THEORY OF
RECOVERY, SHALL NOT EXCEED THE LICENSE FEES OR FEES ACTUALLY PAID BY
LICENSEE TO SHI AND SUBSEQUENTLY PAID BY SHI TO EMPHASYS WHICH ARE
DIRECTLY RELATED TO THE CLAIM. REGARDLESS OF THE FORM OF ACTION,
PROCEEDING, OR THEORY OF RECOVERY, NEITHER EMPHASYS NOR ITS LICENSORS
SHALL IN ANY MANNER BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS OR
OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ASSESSED AGAINST OR
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PAID BY LICENSEE TO ANY THIRD PARTY, ARISING OUT OF THE USE, INABILITY TO
USE, QUALITY OR PERFORMANCE OF THE LICENSED PRODUCTS PROVIDED, EVEN IF
EMPHASYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Term and Termination.
A. Term. This Agreement is for a perpetual license and shall continue until terminated by
either party ("Term") under the following conditions.
B. Termination.
(i) Emphasys' Right of Termination. Emphasys may terminate this Agreement after 30 days
prior written notice for Licensee's failure to pay any amounts due (including any additional
License Fees or service fees resulting from legal changes expanding Licensee's rights of use).
(ii) Licensee's Right of Termination. Licensee may terminate this Agreement without cause
upon 60 days prior written notice prior to the anniversary date of this Agreement.
(iii) Either Party's Right to Termination. Either party may terminate this Agreement, (a) upon
30 days'prior written notice for the other party's failure to cure any other material breach of this
Agreement; (b) immediately upon: (I) termination or suspension of Licensee's business,
(II) insolvency or filing of a voluntary or involuntary petition in bankruptcy, which petition is
not dismissed within 30 calendar days of filing, (III) appointment of a receiver, assignee or other
liquidating officer for all or substantially all of the Licensee's assets or (IV) an assignment for the
benefit of creditors.
C. Effect of Termination. Except for termination of the Plan, Licensee shall cease use of the
Licensed Products upon termination of this Agreement and shall provide a written certification to
Emphasys of removal of all copies of the Software from its system and destruction of all copies of
Software and Documentation except that required for archival purposes. Termination of the Plan shall
not result in termination of this Agreement unless otherwise specified. Termination of this Agreement
shall not relieve Licensee of its obligation to pay for any fees nor result in the refund of any fees paid.
8. General.
A. Injunctive Relief. Licensee's breach of any obligation under this Agreement regarding the use,
duplication, modification, transfer or confidentiality of the Licensed Products shall entitle Emphasys to
injunctive, specific performance or other equitable relief, all without need of bond or undertaking of any
nature, Licensee specifically acknowledging that Emphasys' remedies at law under such circumstances
would be inadequate.
B. Assignment. This Agreement shall not be assignable by either party and neither party may
delegate its duties hereunder without the prior written consent of the other party. Any attempt by a
party to assign any of its rights or delegate any of its duties hereunder without the prior written consent
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the other party shall be null and void and shall result in immediate termination of this Agreement under
its terms and conditions. Notwithstanding the foregoing, either party may assign its rights or delegate its
duties under this Agreement without written consent of the other party in the event that this Agreement
is assigned to a successor, parent, or subsidiary of such party, or in the event of an acquisition, merger,
or sale of the majority of the relevant assets or shares of either party.
C. Governing Law and Venue. This Agreement is governed by the laws of Washington. Venue
lies in the state and federal courts located in Jefferson County,WA and elsewhere in Washington.
D. Severability. If a provision is declared invalid, the remainder of the Agreement will continue in
full force and effect. The offending provision shall be interpreted to whatever extent possible to give effect
to its stated intent.
E. Waiver. Failure to require performance of any provision or waiver of a breach of a provision
does not waive a party's right to subsequently required full and proper performance of that provision.
F. Entire Agreement. This Agreement represents the entire agreement on this subject matter
excluding all prior agreements,representations, statements,negotiations,and understandings and provisions
in any Orders issued hereunder unless the parties consent in writing. This Agreement may be modified
only by a written agreement signed by a party's authorized representative.
G. Conflict. Should any Exhibit conflict with this Agreement,the Exhibit shall control.
H. Notices. All notices and demands hereunder shall be in writing and shall be served by personal
service or by mail at the address of the receiving party stated below (or at such different address as may
be designated by such partyby written notice to the other party) and shall be deemed complete upon
receipt.
I. Independent. Each party is acting as an independent contractor and not as an agent,partner, or
joint venturer with the other party for any purpose.
J. Compliance with all Applicable Laws. Export. At all times, licensee will adhere to all applicable
state, federal and local laws and regulations in the conduct of its business, installation and use of the
Software and maintain the proper insurances as are customary in the business. Licensee shall comply
with all applicable export and import control laws and regulations in its use of the Software and, in
particular, Licensee shall not export or re-export the Software without all required United States and
foreign government licenses.
K. Force Majeure. Except for the payment of any amounts due, performance will be suspended
for force majeure upon written notice and may be terminated if such event continues for more than 30
days.
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L. Survival. Sections 2(C), (D) and (G), 4 through 7, inclusive, 8(D), and 9 shall survive any
termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
JEFFERSON COUNTY WASHINGTON EMPHASIS SOFTWARE,A MICHIGAN
CORPORATION
Board of County Commissioners
Jefferson County,Washington
By: 1 2 // B •
Kate Dean,Cha' Dater nature
7 � 9
By: f`Fl L Name:
D. 'd Sullivan,Commissioner Date
Title:oar yr'
By: V12 /y Date: �� "�`t
g B 'therto •e mmissioner Date
SEAL:
ATTEST:
(fit
Carol Galloway Date
Deputy Clerk of the Board
Approved as to form only:7,171-..,o. �, , /6 ,
Philip C.Hunsucker ate i
Chief Civil Deputy Prosecuting Attorney
Exhibit A
to
EMPHASYS SOFTWARE LICENSE AGREEMENT
By and Between
Emphasys Software.And Jefferson County,WA,Licensee
Effective Date joatiLux ry t LaCi i
1. Designated Equipment:
Workstations: Current generation workstation; 64 bit operating system; Windows
operating systems (7, 8 or 10); minimum 2 GB RAM; 2 GB of storage. Networking:
Microsoft Windows Server (2012 or 2016). Hard drive storage: Minimum 4 GB for
software and portfolio data, depending on size and type of portfolio(s); 8 GB of RAM;
Licensee's Installation: Installation is on a network server. For equipment or operating
systems not named in this section, contact SymPro for compatibility information.
2. Designated Site:
1820 Jefferson Street
Port Townsend,WA 98368
3. Software and Services:
SymPro Fixed Income Investments
General Ledger Interface Module to GL- Investments
Earnings Allocation Module
Financial Services—Import of Market Prices from Custodian Bank file
Debt Manager
General Ledger Interface Module to GL-Debt
Consulting/Training/Implementation/Project Mgmt.:
6 days on-site
Discovery, training&implementation
Project Management
Conversion of existing open debt bond positions (up to 40 bond issues)
*Comprehensive conversion of existing debt data(up to 40 Issues)from legacy platform(s)to SymPro
Debt Manager. Service Includes:
• Adding all current outstanding debt including cash flows by CUSIP; including one generation of
historical refunded debt.
• Review of reporting requirements for structuring portfolio setup
• Analysis of Debt Manager data to match original Total Principal and Total Interest; option to include
analysis with Comprehensive Annual Financial Report from prior fiscal year to ensure continuity and
accuracy
• Storage of all available bond documents in PDF,Word, Excel formats
4. Authorized Users: Network installation with concurrent access and support for 3
Authorized Users.
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5. License and Service Fees:
a. License and Service Fees:
Total Software License Fee $68,000
Implementation Services $15,600
Bond debt data conversion $10,500
(Travel expenses not to exceed$3,500)
15`yr. support and maintenance $13,600
6. Payment Schedule:
License fees will be invoiced upon execution of this agreement.
Annual Maintenance and Support for year one will be invoiced upon the earlier of
product delivery date or 30 days from the execution of this agreement.
Professional service fees and training will be invoiced as services are performed.
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Exhibit B
to
EMPHASYS SOFTWARE LICENSE AND SERVICE AGREEMENT
By and Between
Emphasys Software and Jefferson County,WA,Licensee
Effective DateR.hiA(,i(y J ,-)C)j 1
Annual Support and Maintenance Plan
The following SymPro Support and Maintenance Plan applies as of the Effective Date. Emphasys reserves the
right to change this Plan at any time,with 60 days written notice. All changes will be posted at its website:
www.sympro.com and will become effective as of the next Renewal Term. However,any Support and
Maintenance Plan will include at least the following essential elements:
• Priority service from technical support and client service representatives
• Free SymPro version corrections and enhancements released in the license and service term
• Access to the SymPro Internet Site for Support(www.sympro.com)
• Unlimited telephone technical support in the following areas:
Loading and configuring of SymPro Software
Operational Questions,including standard SymPro reports
Data entry support for all debt and investment types supported within SymPro,including:
Investments
• Certificates of Deposits • Rolling Repurchase Agreements
• Negotiable Certificates of Deposits • GNMA,Pass Through
• Checking Accounts • Bankers Acceptances
• Commercial Paper • Corporate Bonds
• Commercial Paper Discount • Medium Term Notes
• United States Treasury Issues,Coupon&Discount
• Federal Agency Issues,Coupon&Discount
Debt
• Serial Bonds
• Term Bonds
• Discount Bonds
• Variable Rate Coupon
• Commercial Paper
• Commercial Paper Discount
• Medium Term Notes
Tele-consultation is provided during normal business hours (6:30AM TO 5:00PM - Pacific Time), Monday
through Friday for questions dealing with the operations of the Licensed Software on Designated Equipment.
Support issues may be reported via voicemail (510-655-0900 Selection 2), fax (510-655-4064), or email
(support@sympro.com), 24 hours a day. Answers to "Frequently Asked Questions" are available at
www.sympro.com, 24 hours a day. The resolution of some issues may require that Licensee provide Emphasys
with a copy of Licensee's data. Licensee agrees to provide Emphasys with a copy of their data for the purpose of
resolving Licensee's issue and Emphasys agrees to maintain full confidentiality of any required data and will use it
only for the resolution of the Licensee's issue.
Not Included: Consulting on issues concerning investment/debt accounting matters, specific financial or
investment matters, research on investments/debt not supported within the Licensed Software, or data entry for
investments/debt not supported in the Licensed Software system are not included.
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUES
TO: Board of County Commissioner /19
FROM: Mark McCauley,Central Se 'ces Director
Stacie Prada,Jefferson County Treasurer
DATE: January 22,2019
RE: Request for Board of County Commissioners approval to enter into a License
Agreement with Emphasys Software for the SymPro Treasury Management
Software Suite
STATEMENT OF ISSUE:
As part of Jefferson County's effort to modernize its information technology assets we are in the process of
migrating off our legacy financial management systems,GEMS(Auditor)and the AS 400(Treasurer).To do this we
will need to select a new financial software suite and software to help manage debt and investments.As an
implementation strategy,we are prioritizing the debt and investment solution,which will simplify the larger more
difficult and time-consuming task of replacing the financial management software.
ANALYSIS:
Central Services and the County Treasurer have been working to evaluate debt and investment management
software.We have completed our due diligence and have selected SymPro from Emphasys Software as our
preferred product. SymPro dramatically simplifies the management of debt and investments,which will help
improve the efficiency of the Treasurer's Office in managing those functions.A number of counties in Washington
State use SymPro,and reports are that those user counties are very happy with the product.Further, Sympro will
address both debt and investments where other programs only address one or the other.
We have a Master Contract Usage Agreement with the Washington State Department of Enterprise Services(DES)
which allows us to use contracts they have with third parties.DES has a contract with the National Association of
State Purchasing Officials ValuePoint Software Value Added Reseller,which includes SymPro. This allows us to
benefit from their purchasing power and buy the software by executing a licensing agreement without having to
issue a Request for Proposals.
FISCAL IMPACT:
Total year one cost is$111,200,which includes module licenses,professional services during implementation,
vendor travel costs and year one annual maintenance. Ongoing annual maintenance cost is$13,600.Information
Technology will cover first year costs using general fund dollars transferred from the Capital Improvement Fund.
Ongoing maintenance costs will be distributed using the cost allocation plan.
RECOMMENDATION:
Approve the request to enter into a license agreement with Emphasys Software for the SymPro Treasury
Management Software Suite.
REVIy: D,;.Y:
Xt." ,i4OP
Aer
/(,?4
Y.il' orley, V o 4.- Administrato`__i Date
CONTRACT REVIEW FORM t c1- c L
CONTRACT WITH: Emphasys Software through SHI
CONTRACT FOR: SymPro Treasury Management Software TERM: Perpetual unless terminated
N.4 COU TY{DEPARTMENT. central Servicesnd=the T'reasurer's Office
)Cor Mr
More •Information Contact
MarMcCauley0 $S 930_
Contact Phone , Stacie=Prada,360-$859154
I T RN TO: " RETURN BY:
'Mark McCauleyN1Cadle . r EAs soon as possible
(Person in Department) = <(Date)
AMOUNT: $111,200 PROCESS: _ Exempt from Bid Process
Consultant Selection Process
Revenue: N/A x Cooperative Purchase
Expenditure: $111,200 _ Competitive Sealed Bid
Matching Funds Required: N/A _ Small Works Roster
Sources(s) of Matching Funds N/A — Vendor List Bid
_ RFP or RFQ
Other
Step 1: REVIEW BY RII LiNN EN /
Review by: L�7 //� if1�s ( 9
Date Reviewed:
APPROVED FORM Returned for revision(See Comments)
Comments
Step 2: REVIEW BY PR ECU I G TTORNEY
Review by: C.
Date Reviewed: ///�
APPROVED AS TO FORM et►.frned for revision(See Comments)
Comments
Step 3: (If required) DEPARTMENT MAKES REVISIONS & RESUBMITS TO
RISK MANAGEMENT AND PROSECUTING ATTORNEY
Step 4: CONTRACTOR/CONSULTANT SIGNS APPROPRIATE NUMBER OF
ORIGINALS
Step 5: SUBMIT TO BOCC FOR APPROVAL
Submit originals and 6 copies of Contract,Review Form,and Agenda Bill to BOCC Office.
Place"Sign Here"markers on all places the BOCC needs to sign.
MUST be in BOCC Office by 4:40 p.m.TUESDAY for the following Monday's agenda.
(This form to stay with contract throughout the contract review process.)