SOFTWARE MAINTENANCE AGREEMENT. July 1, 2014 BETWEEN THE STATE OF WYOMING, LEGISLATIVE SERVICE OFFICE AND AFFINITY GLOBAL SOLUTIONS

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1 SOFTWARE MAINTENANCE AGREEMENT July 1, 2014 BETWEEN THE STATE OF WYOMING, LEGISLATIVE SERVICE OFFICE AND AFFINITY GLOBAL SOLUTIONS 1. Parties. The parties to this Agreement are Affinity Global Solutions (Licensor or AGS), a corporation, whose address is 812 Burlington Drive, Suite 300, Bismarck, North Dakota 58504, and the State of Wyoming, Legislative Service Office (Licensee, Agency or LSO), whose address is 2001 Capitol Avenue, Cheyenne, Wyoming Purpose of Agreement. The Licensor agrees to continue to provide maintenance for the Internet Budget Analysis and Reporting System (IBARS) software as detailed on Attachment A and B, provide new development as described in Attachment C and to provide hosting services in accordance to Attachment D. Attachment A is referenced in and incorporated into the Computer Program End User License and Support Agreement, which became effective on March, 2000, between Affinity Global Solutions (Licensor), and the State of Wyoming (Licensee). 3. Umbrella Agreement. Software Maintenance and Hosting as described in this contract are provided to the LSO under the umbrella of the State of Wyoming, Budget Division s Computer Program End User License and Support Agreement and the IBARS Software Maintenance Agreement that includes the Contractor s Hosting Policy. This Software Implementation Agreement depends on these umbrella agreements being in force. 4. Term of Agreement. This Agreement is effective when all parties have executed it through June 30, Once this Agreement becomes effective it can be renewed annually by payment of the annual maintenance fee and a proper amendment. Affinity Global Solutions provides Licensee with Software Maintenance for the IBARS System in exchange for payment of the applicable Software Maintenance fees. Licensor has no right or expectation that this Agreement will be renewed. 5. Payment. The Agency agrees to pay the Contractor for services described herein and in Attachment A, Attachment B, Attachment C and Attachment D. Payment for the term of this contract shall not exceed $33, (Thirty three thousand and three hundred PAGE 1 OF 16

2 twenty dollars). Any increase for maintenance upon contract extension and/or renewal shall not exceed 5% (five percent) of the previous period s maintenance fee. In addition, in the event new modules are added to the IBARS System, Licensor shall provide maintenance for those new modules at a rate calculated at 18% (eighteen percent) of 60% (sixty percent) of the new module s cost. Payment shall be made within 45 days of receipt of invoice from Licensor. No payment shall be made for work performed before the date upon which the last required signature is affixed to this Contract. 6. Responsibilities of Contractor. The services to be provided by the Contractor are described in the LSO IBARS Software Maintenance Agreement, Attachment A, LSO IBARS Custom Development Maintenance, Attachment B, LSO IBARS New Development, Attachment C and Hosting Services Agreement, Attachment D which are attached and made part of this Contract. 7. Responsibilities of Agency. All responsibilities of the Agency are described in the LSO IBARS Software Maintenance Agreement, Attachment A, LSO IBARS Custom Development Maintenance, Attachment B, LSO IBARS New Development, Attachment C and Hosting Services Agreement, Attachment D which are attached and made part of this Contract. 8. General Provisions. A. Amendments. Any changes, modifications, revisions or amendments to this Agreement which are mutually agreed upon by the parties to this Agreement shall be incorporated by written instrument, executed and signed by all parties to this Agreement. B. Americans with Disabilities Act. The Licensor shall not discriminate against a qualified individual with a disability and shall comply with the Americans with Disabilities Act, P.L , 42 U.S.C , et seq., and/or any properly promulgated rules and regulations related thereto. C. Applicable Law/Venue. The construction, interpretation and enforcement of this Agreement shall be governed by the laws of the State of Wyoming. The Courts of the State of Wyoming shall have jurisdiction over this Agreement and the parties, and the venue shall be the First Judicial District, Laramie County, Wyoming. D. Assignment/Agreement Not Used as Collateral. Neither party shall assign or otherwise transfer any of the rights or delegate any of the duties set forth in this Agreement without the prior written consent of the other party. The Licensor shall not use this Agreement, or any portion thereof, for collateral for any financial obligation, without the prior written permission of the Agency. PAGE 2 OF 16

3 E. Audit/Access to Records. The Agency and any of its representatives shall have access to any books, documents, papers, and records of the Licensor, which are pertinent to this Agreement. F. Availability of Funds. Each payment obligation of the Agency is conditioned upon the availability of government funds, which are appropriated or allocated for the payment of this obligation. If funds are not allocated and available for the continuance of the services performed by the Licensor, the Agreement may be terminated by the Agency at the end of the period for which the funds are available. The Agency shall notify the Licensor at the earliest possible time of the services, which will or may be affected by a shortage of funds. No penalty shall accrue to the Agency in the event this provision is exercised, and the Agency shall not be obligated or liable for any future payments due or for any damages as a result of termination under this section. This provision shall not be construed to permit the Agency to terminate this Agreement in order to acquire similar services from another party. G. Award of Related Agreements. The Agency may undertake or award supplemental or successor Agreements for work related to this Agreement. The Licensor shall cooperate fully with other contractors and the Agency in all such cases. H. Compliance with Laws. The Licensor shall keep informed of and comply with all applicable federal, state and local laws and regulations in the performance of this Agreement. I. Confidentiality of Information. All documents, data compilations, reports, computer programs, photographs, and any other work provided to or produced by the Licensor in the performance of this Agreement shall be kept confidential by the Licensor unless written permission is granted by the Agency for its release. J. Disputes/Remedies. In seeking to resolve any dispute relating to this Contract, the Agency does not waive its sovereign immunity. Any dispute or claim arising out of or relating to this Agreement may be assigned to non-binding mediation upon mutual agreement of the parties, in accordance with the Wyoming Supreme Court's rules for alternative dispute resolution. The parties to the dispute shall bear their respective costs for the mediation. The rights and remedies of the parties provided for in these clauses are in addition to any other rights and remedies provided by law or under this Agreement. PAGE 3 OF 16

4 K. Entirety of Agreement. This Agreement, consisting of sixteen (16) pages (including 4 (four) Attachments (A, B, C and D)) consisting of nine (9) pages represents the entire Agreement between the parties and supersedes all prior negotiations, representations, and agreements, whether written or oral. The following order of precedence will control in the event of any conflict in terms and conditions: 1) This Software Maintenance Agreement 2) Amendments to this Software Maintenance Agreement (if any) L. Force Majeure. Neither party shall be liable for failure to perform under this Agreement if such failure to perform arises out of causes beyond the control and without the fault or negligence of the nonperforming party. Such causes may include, but are not limited to, acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. This provision shall become effective only if the party failing to perform immediately notifies the other party of the extent and nature of the problem, limits delay in performance to that required by the event, and takes all reasonable steps to minimize delays. This provision shall not be effective unless the failure to perform is beyond the control and without the fault or negligence of the nonperforming party. M. Indemnification. The Licensor shall release, indemnify, and hold harmless the state, the Agency, and their officers, agents, employees, successors and assignees from any cause of action, or claims or demands arising out of Licensor's performance under this Agreement. N. Independent Contractor. The Licensor shall function as an independent contractor for the purposes of this Agreement, and shall not be considered an employee of the Legislative Service Office for any purpose. The Licensor shall assume sole responsibility for any debts or liabilities that may be incurred by the Licensor in fulfilling the terms of this Agreement, and shall be solely responsible for the payment of all federal, state and local taxes which may accrue because of this Agreement. Nothing in this Agreement shall be interpreted as authorizing the Licensor or its agents and/or employees to act as an agent or representative for or on behalf of the State of Wyoming or the Agency, or to incur any obligation of any kind on the behalf of the State of Wyoming or the Agency. The Licensor agrees that no health/hospitalization benefits, workers' compensation and/or similar benefits available to State of Wyoming employees will inure to the benefit of the Licensor or the Licensor's agents and/or employees as a result of this Agreement. O. Kickbacks. The Licensor certifies and warrants that no gratuities, kickbacks or contingency fees were paid in connection with this Agreement, nor were any fees, commissions, gifts, or other considerations made contingent upon the award of this Agreement. If the Licensor breaches or violates this warranty, the Agency may, at its discretion, terminate this Agreement without liability to the Agency, or deduct from the Agreement price or PAGE 4 OF 16

5 consideration, or otherwise recover, the full amount of any commission, percentage, brokerage, or contingency fee. P. Nondiscrimination. The Licensor shall comply with Presidential Executive Order entitled, "Equal Employment Opportunity," as amended by Presidential Executive Order 11375, and as supplemented in the Department of Labor Regulations (41 CFR Part 60), the Civil Rights Act of 1964, the Wyoming Fair Employment Practices Act (Wyo. Stat et seq.), and the Americans With Disabilities Act (ADA), 42 U.S.C , et seq. The Licensor shall assure that no person is discriminated against based on the grounds of sex, race, religion, national origin or disability in connection with the performance of this Agreement. Q. Notices. All notices arising out of, or from, the provisions of this Agreement shall be in writing and given to the parties at the address provided under this Agreement, either by regular mail, facsimile, , or delivery in person. R. Notice and Approval of Proposed Sale or Transfer of the Licensor. The Licensor shall provide the Agency with the earliest possible advance notice of any proposed sale or transfer or any proposed merger or consolidation of the assets of the Licensor. Such notice shall be provided in accordance with the notice provision of this Agreement. S. Ownership of Documents/Work Product. All documents, reports, records, field notes, materials, and data of any kind resulting from performance of this Agreement are at all times the property of the Agency. All software related, developed or modified as a result of this Agreement are the property of Licensor, with Licensee having a perpetual non-exclusive right of use. T. Patent or Copyright Protection. The Licensor recognizes that certain proprietary matters or techniques may be subject to patent, trademark, copyright, license or other similar restrictions, and warrants that no work performed by the Licensor will violate any such restriction. The Licensor shall defend and indemnify the Agency for any violation or alleged violation of such patent, trademark, copyright, license or other restrictions. U. Publicity. Any publicity given to the program or services provided herein, including, but not limited to, notices, information, pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Licensor, shall identify the Agency as the sponsoring agency and shall not be released without prior written approval from the Agency. V. Sovereign Immunity. The State of Wyoming and the Agency do not waive sovereign immunity by entering into this Agreement, and specifically retain immunity and all defenses available to them as sovereigns pursuant to Wyo. Stat (a) and all other state law. PAGE 5 OF 16

6 W. Taxes. The Licensor shall pay all taxes and other such amounts required by federal, state and local law, including but not limited to federal and social security taxes, workers' compensation, unemployment insurance and sales taxes. X. Termination of Agreement. This Agreement may be terminated, without cause, by the Agency upon thirty (30) days written notice, or by declining to renew the annual subscription by not paying the annual fee. This Agreement may be terminated immediately for cause if the Licensor fails to perform in accordance with the terms of this Agreement. Y. Performance Breach. Should Licensor fail to provide services as described in Attachment A, Licensor agrees to reach resolution of those issues within thirty (30) days from receipt of written notice from the Agency itemizing issues leading to the performance breach. After this 30 day period, if the issues remain unresolved, the Agency may terminate this Agreement by further written notice. The date of receipt of the performance breach termination notice will be used to calculate a prorated maintenance refund for that year. Z. Third Party Beneficiary Rights. The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this Agreement shall not be construed so as to create such status. The rights, duties and obligations contained in this Agreement shall operate only between the parties to this Agreement, and shall inure solely to the benefit of the parties to this Agreement. The provisions of this Agreement are intended only to assist the parties in determining and performing their obligations under this Agreement. The parties to this Agreement intend and expressly agree that only parties signatory to this Agreement shall have any legal or equitable right to seek to enforce this Agreement, to seek any remedy arising out of a party's performance or failure to perform any term or condition of this Agreement, or to bring an action for the breach of this Agreement. AA. Titles Not Controlling. Titles of paragraphs are for reference only, and shall not be used to construe the language in this Agreement. BB. Waiver. The waiver of any breach of any term or condition in this Agreement shall not be deemed a waiver of any prior or subsequent breach The remainder of this page has been left INTENTIONALLY BLANK PAGE 6 OF 16

7 9. Signatures. In witness thereof, the parties to this Agreement, either personally or through their duly authorized representatives, have executed this Agreement on the days and dates set out below, and certify that they have read, understood, and agreed to the terms and conditions of this Agreement. The effective date of this Agreement is the date of the signature last affixed to this page. AGENCY Legislative Service Office Dan Pauli, LSO Director Date Licensor Affinity Global Solutions Brent Levinson Vice President Date PAGE 7 OF 16

8 IBARS SOFTWARE MAINTENANCE AGREEMENT ATTACHMENT A 1. Software Maintenance Affinity Global Solutions will periodically issue the following technical and functional improvements to Software: a) Fixes to Errors; b) Updates; and c) Enhancements This maintenance agreement covers the baseline Internet Budget Analysis and Reporting System (IBARS) enhancements made for the State of Wyoming by Affinity Global Solutions. Enhancements made by the State of Wyoming may be covered if the enhancement design and integration test results are pre-approved by Affinity Global Solutions. 2. Telephone Support Affinity Global Solutions provides telephone support concerning Software installation and usage. Minimum telephone support will be available weekdays during the hours of 8:00 a.m. to 5:00 p.m. (Central Time). Calls are returned within one hour. Provision will be made for extended support and emergencies during critical budgeting periods that may occur beyond the minimum telephone support hours at no additional cost. 3. Affinity Global Solutions Services a) Software Updates, Enhancements, and Fixes may be delivered to Licensee through Affinity Global Solutions FTP site, or by mail from Affinity Global Solutions on Licensee's written request. Affinity Global Solutions information is confidential and proprietary and shall only be used in connection with Licensee's use of the Software. b) To diminish exposure to software viruses, Affinity Global Solutions tests and scans all information entered by Affinity Global Solutions for software viruses prior to submitting it to the FTP site. Licensee shall also use a reliable virus detection system on any software or information posted to Affinity Global Solutions site, utilize back-up procedures, promptly notify Affinity Global Solutions of any virus detected within Licensee's systems associated with Affinity Global Solutions and generally exercise a reasonable degree of caution when utilizing information from Affinity Global Solutions site. Affinity Global Solutions does not warrant that its FTP site will operate without interruption or without errors. Affinity Global Solutions reserves the right to modify or suspend the FTP service in connection with its Support Services. Affinity Global Solutions will provide a minimum of 30-day notice prior to any modifications or suspension of the FTP site for actions within our control. Affinity Global Solutions PAGE 8 OF 16

9 4. Fees assumes no responsibility for anything posted by anyone other than Affinity Global Solutions, including, but not limited to, information about Affinity Global Solutions software, modification code, or portions thereof. a) Affinity Global Solutions agrees to provide support services provided maintenance fees are paid current and the contract has not been materially breached by the Licensee. b) Maintenance Fees are billed on an annual basis, payable in advance prior to the first day of the support period. The cost of any maintenance period not commencing on July 1 st, shall be appropriately pro-rated to match the State of Wyoming fiscal year. c) Unless Licensee has provided proof of tax-exempt status, Licensee is responsible for all taxes associated with Support Services, excluding taxes based on Affinity Global Solutions' income. d) Licensee's payment shall be due within forty-five (45) days of receipt of the Affinity Global Solutions invoice. e) Should Licensee elect not to renew Maintenance Services and subsequently requests Maintenance Services, Affinity Global Solutions shall reinstate Maintenance Services only after Licensee pays Affinity Global Solutions the annual then-current fee plus all cumulative fees that would have been payable had Licensee not suspended Maintenance Services. 5. Term and Termination a) Unless otherwise expressly set forth in the Agreement or Schedule, Support Services shall be provided for a period of one (1) year from the Schedule Effective Date, and shall be extended on a year by year basis. Each one (1) year term shall commence on the July 1 st of each year. The term of any maintenance period not commencing on July 1 st, shall be appropriately adjusted and pro-rated to match the State of Wyoming fiscal year. b) There is no automatic rollover of the maintenance agreement; a pro-active renewal is required, evidenced by payment of the annual invoice and a proper amendment. c) If Licensee fails to make payment pursuant to the section titled "Fees", or Licensee breaches the Support Services provisions and such breach has not been cured within forty-five (45) days of receipt of written notice of breach, Affinity Global Solutions may suspend or cancel Maintenance Services. PAGE 9 OF 16

10 6. Exclusions Affinity Global Solutions shall have no obligation to support: a) Substantially altered, damaged or modified Software (this means software that has been substantially modified and Affinity Global Solutions has not pre-approved modification specifications in writing); b) Errors caused by Licensee's negligence, hardware malfunction, operating system malfunction, web server malfunction, or other causes beyond Affinity Global Solutions' reasonable control; c) Software installed in a hardware or operating environment not supported by Affinity Global Solutions; and d) Third party software not licensed through Affinity Global Solutions. Software releases will be supported for up to five years. Extended support beyond the five year minimum may be provided at Affinity Global Solutions option. 7. General All Updates, Enhancements and Fixes provided to Licensee are subject to the terms and conditions of the Agreement. Affinity Global Solutions may modify Maintenance Services on an annual basis to reflect current market conditions upon reasonable notice. If Affinity Global Solutions modifies or suspends maintenance services during the relevant term to delete provisions of any of the core elements described in Section 1 of this agreement, and if Licensee is current with support services fees, Affinity Global Solutions shall be in performance breach of its obligations to provide software support services. 8. Definitions "Enhancement" means a technical or functional addition to IBARS not specifically developed for Licensee. Enhancements are delivered in a Software Release to Licensee at the discretion of Affinity Global Solutions only on, an if and when available basis. "Error" means a Software malfunction that degrades the use of the Software. "Fix" means the repair or replacement of source, object or executable code Software versions to remedy an Error. "Update" means all published revisions to the Documentation and one (1) copy of the new Software release not designated by Affinity Global Solutions as new products or functionality for which it charges separately. "Custom Development" means a technical or functional addition to IBARS specifically developed for Licensee at Licensee s request. Custom Development may result from separate PAGE 10 OF 16

11 services contract or may billed monthly using Affinity Global Solutions timesheets to track task time. Software design tasks are billed at rate of $115/hr and programming tasks are billed at rate of $90/hr. 9. Payment Schedule All maintenance fees are rounded to the nearest $10. No annual increase shall exceed 5% of the previous year s maintenance fee unless there has been custom development work. Custom development work will be billed in addition to the core software and at the percentage and rate indicated. Year Effective Dates Fee This Year Next Year and on July 1, 2014 June 30, 2015 July 1, 2015 June 30, 2016 and on IBARS umbrella maintenance paid by the Budget Division $8,940 (prior years contract fee of $8,510 plus a 5% increase) Plus $380, 18 percent of the sum of 60 percent of cost of further LSO Custom Development in the prior year as referenced on Attachment B Plus $0 future LSO New Development detailed on Attachment C Plus $24,000, hosting services agreement detailed on Attachment D The prior year s contract fee plus a 5% increase Plus, 18 percent of the sum of 60 percent of cost of further LSO Custom Development in the prior year as referenced on Attachment B Plus, future LSO New Development detailed on Attachment C Plus, $24,000 hosting services agreement detailed on Attachment D PAGE 11 OF 16

12 WYOMING LSO IBARS CUSTOM DEVELOPMENT MAINTENANCE ATTACHMENT B Prior Year (July 1, 2013 June 30, 2014): Custom development completed in the prior year is included in the software maintenance fee calculation starting July 1, 2014: Customization Amount Date Maintenance Date Billed Operational Increase SR07 Statewide $3,520 6/15/14 6/15/14 $380 T0/S0 Flag Total 1 $380 1 Customizations marked for inclusion in fiscal maintenance period starting July 1, 2014 are $ rounded to the nearest $10 for a total of $380. Next Year (July 1, 2014 June 30, 2015): Projected custom development completed this period to be included in the software maintenance fee calculation starting July 1, 2015: Customization Amount Date Maintenance Date Billed Operational Increase None $0 n/a n/a $0 Total 2 $0 2 Customizations marked for inclusion in fiscal maintenance period starting July 1, 2015 are $0 rounded to the nearest $10 for a total of $0. PAGE 12 OF 16

13 WYOMING LSO IBARS NEW DEVELOPMENT ATTACHMENT C Planned custom development during this contract term is as follows: Item Description Cost Due Date 1 Customizations $0 n/a 2 $0 n/a Total $0 n/a PAGE 13 OF 16

14 HOSTING SERVICE AGREEMENT ATTACHMENT D 1. Purpose To provide Hosting services and monitor and maintain the State of Wyoming, Legislative Service Office, IBARS (Internet Budget Analysis and Reporting System) Servers, for the Agency at its location in Bismarck, ND. a) Production Oracle database and related production ready application. b) Production Oracle database and related production ready application. c) Test instance of the production database. d) Training instance of the production database on an as needed basis. 2. Equipment Equipment needed to fulfill this contract will be purchased and maintained by the Contractor. a) Production Oracle database and related production ready application. b) Equipment changes will be made with the agreement of the Budget Division. c) A production and backup (test) system will be provided. d) One server upgrade will be done at least every two years. 3. Monitor & Maintenance A structured policy and practice is be documented and developed by AGS for the monitoring and maintenance of the system as follows: 4. Security a) Equipment list. b) Backup method and schedule. c) Network architecture. d) Remote access. e) Firewall policy. f) System & database recovery testing. g) Disaster recovery plan. The LSO will provide IP addresses for IBARS users. AGS will adjust the system firewall to only allow IBARS users authorized to access the system: a) For users within the State network (those addresses starting with ), address ranges of 255 addresses. For example through PAGE 14 OF 16

15 b) For users within higher education networks using non-nated DHCP assigned IPs, address ranges of 255 addresses. c) For users all other users and those with a dedicated static IP, the specific IP address. The LSO will provide IP addresses for Query/Admin users. AGS will adjust the system firewall to only allow Query/Admin users authorized to access the system: d) For users all other users and those with a dedicated static IP, the specific IP address. AGS will undertake a daily external port scan in order to verify the firewall is operating as expected. Irregular activity or alerts will be the responsibility of the Contractor to correct and notify the Legislative Service Office. These port scan reports will be provided to the Legislative Service Office on request. 5. Documentation Documentation is provided in MS Word via and updated at least 1 time per year as follows: 6. Support a) Backup procedures. b) Database recovery procedures. c) System recovery procedures. d) Firewall procedures. Affinity Global Solutions will provide telephone support concerning the application and database usage. Telephone support will be available weekdays during the hours of 8:00 a.m. to 5:00 p.m. (Central Time). Calls are returned within one hour. Provision will be made for extended support and emergencies during critical budgeting periods that may occur beyond the minimum telephone support hours at no additional charge. 7. Disaster Recovery Affinity Global Solutions will follow the disaster recovery procedures as outline in the revised 2009 Affinity Global Solutions Hosting Policies Section 8. The Cheyenne Wyoming Plan All Out Disaster will be tested at a minimum annually. Current oracle database and application will be downloaded from the Affinity Global Solutions FTP server to the State equipment on a weekly basis, at a minimum. Affinity Global Solutions will assist the State in upgrading the State equipment to the correct software required to operate the database and application. PAGE 15 OF 16

16 7. Pricing IBARS Hosting Pricing Hosting Services Application/System Monitoring Backups Hardware Production Application & Database Server Details Via weekday daily checklist and after hours heartbeat Daily backup to tape, plus copy to 2 nd internal storage & AGS SAN, AGS offsite server and to Wyoming FTP site Supermicro CSE826 w/asus Z9PE-D16 mainboard & dual 800W power supplies 2 Intel Eight Core 3.1GHz CPU, 128GB RAM Test & Backup Application & Database Server Supermicro SC745 w/asus X8PE-D18 mainboard & dual 800W power supplies 2 Intel Six Core 3.33GHz CPU, 32GB RAM APC SUA2200, system monitored with automatic shutdown for Uninterruptable Power Supply extended (>5min) power outages. The hosting service will be unavailable during a power outage. Software Licenses Operating System Linux CentOS 6.3 Oracle License Wyoming licensing Application Server Tomcat PrinceXML AGS supplied Networking Internet Access CenturyLink T1 1.5/1.5Mb, Midco Cable 5/10 Mb Firewall Iptables w/fwbuilder Monthly Hosting Cost Services $2,000 Annual Host Cost $24,000 PAGE 16 OF 16