2010-40 BIDSYNC TERMS & CONDITIONS
E310
STRUCTURE OF AGREEMENT
1.1 Structure of Agreement. These terms and conditions (the "Terms & Conditions" or "Agreement ")
consist of the terms and conditions contained herein, the Exhibit A attached hereto, and in at least one Order as
entered into and executed by both parties hereunder. Any reference to this Agreement shall be a reference to these
Terms & Conditions, as well as any additional terms, conditions or descriptions contained in Exhibit A and any
executed Order, which will govern each party's rights and obligations relating to BidSync's provision of the
. Software Services hereunder. In the event of any conflict between this Agreement and a separately executed Order,
the terms of the Order shall control. .
1.2 Orders. BidSync shall furnish to Customer and Customer will accept and pay for the Software Services as
indicated on a written order that has been executed by an authorized officer of Customer and accepted in writing by
BidSync ( "Order(s) "). The. Order form shall incorporate by reference the terms and conditions set forth herein.
The Order shall reflect the Software Services purchased and procured by Customer, in the quantities and prices set
forth therein. Following the Effective Date of this Agreement, Customer may place orders for the Software Services
with BidSync, as indicated on the initial Order or subsequent Orders. The receipt or deposit by BidSync of
Customer's down payment will not constitute acceptance of the related Order. BidSync will return any down
payment in the event that it does not accept the Order, within three (3) business days of the date of Customer's
Order. BidSync's method of acceptance of Orders for the Software Services submitted under this Agreement will be .
the acceptance in writing of a properly executed Order listing the Software Services for which Customer has
committed to purchase.
II.
DEFINITIONS
2.1 "Additional Services" shall have the meaning provided in Section 3.9 herein.
2.2 "Affiliate(s)" of a party shall mean any corporation or other entity which controls, is controlled by, or is
under common control with such party, wherever located in the world. A corporation or other entity shall be
deemed to control another corporation or entity if it owns, directly or indirectly, more than fifty percent (50 %) of the
voting shares or other interest in such other . corporation or entity, or has the power to elect more than half the
directors of such other corporation or entity.
2.3 "Authorized Users" means individuals as specified in the relevant Order who are authorized to access the
Software Services described in the Order.
2.4 "Confidential Information" shall have the meaning provided in Section 9 herein.
2.5 "Customer Data" means all data, information, content or material that Customer enters into the Software
Services or has entered on its behalf.
2.6 "Disclosing Party" shall have the meaning provided in Section 9 herein.
2.7 "Disputing Party" shall have the meaning provided in Section 3.13 herein.
2.8 "Documentation" means sufficient written explanations of the intended functionality of the Software
Services and other written material generally intended to guide the user in the configuration and use of the Software
Services, including, but without limitation, user guides, training materials, worksheets, workbooks, implementation
and reference materials, and other documentation, whether in printed or electronic form.
2.9 "Effective Date" means the date so indicated on the applicable Order(s). -
2.10 "Export Laws" shall have the meaning provided in Section 10.14 herein.
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2.11 "Governmental Entity" means a municipal corporation, a state agency or a political subdivision of a state,
or a federal agency or a political subdivision of the federal government.
2.12 "Initial Term" means the initial monthly subscription period identified in the Section 4.1, during which
BidSync must provide, and Customer must pay for the Software Services.
2.13 "Intellectual Property" or "Intellectual Property Rights" means intellectual property rights, including
without limitation, all works of authorship, mask works, trademarks and service marks (together with any
registrations or applications thereof), patents (together with any extensions, reexaminations and reissues of such
patents, patents of addition, patent applications, divisions, continuations, continuations -in -part, and all subsequent
filings in aby country or jurisdiction claiming priority therefrom), copyrights, derivative works, trade secrets, trade
• dress, know -how, drawings, ideas, designs, concepts, techniques, methodologies, processes, inventions, research and
development, and discoveries; including, but without limitation, any and all modifications, updates, derivatives, or
variations thereof.
2.14 "Order(s)" shall have the meaning provided in Section 1.2 herein.
2.15 "Recipient" shall have the meaning provided in Section 9 herein. •
2.16 "Renewal Term" shall have the meaning provided in Section 4.1 herein.
2.17 "SLA" shall have the meaning provided in Section 3.3 herein.
2.18 "Software Services" means an information technology solution offering described in Section 3 and the
Exhibit A, whereby software application programs, databases and utilities are hosted and maintained by BidSync on
servers (the "Site ") that are made accessible to Customer via the Internet. Additional technical information
concerning the Site is provided on Exhibit A.
2.19 "Term" has the meaning defined in Section 4.1 herein.
2.20 "Work Product" shall have the meaning provided in Section 3.9 herein.
]1I.
SCOPE OF SOFTWARE SERVICES
3.1 Scope. of Software Services. BidSync shall provide Customer with web -based electronic services and
recordkeeping through an automated system that manages Customer's competitive and other procurement processes
performed by the Purchasing Office (the "Software Services "). The Software Services, and all associated services
provided therewith, shall be provided in accordance with the Scope of Software Services attached hereto and
incorporated herein for all purposes as Exhibit A, the Documentation, and the Order(s).
'3.2 Bid, Process. All of Customer's bid terms, conditions, and disclaimers submitted through the Software
Services shall be produced and controlled by Customer. Customer's requests for quotation submitted through the
Software Services may only include text descriptions, graphics, pictures and other content relevant to the purchase
of that item. Customer is solely responsible for the accuracy of the content and information it provides to BidSync
or other users on BidSync's website or in connection with the registration, request for quotes or proposals, bidding,
or sale process. BidSync acts as a passive conduit for the online distribution and publication of Customer's
information. Customer agrees that, to the best of its ability, Customer's information will not be false, inaccurate or
misleading. Customer will comply with all applicable domestic and international laws, statutes, ordinances and
regulations regarding its use of the Software Services. -
3.3 Delivery. BidSync agrees to provide the Software Services to Customer on a subscription fee basis,
together with bug fixes, updates or other minor enhancements or improvements thereto, and make the Software
Services available in accordance with the service descriptions and availability expressed in Exhibit A ( "SLA ").
Customer acknowledges that the Software Services may be temporarily unavailable for scheduled maintenance, for
unscheduled emergency maintenance, or because of other causes beyond BidSync's reasonable control (including
without limitation delays or other problems inherent in the use of the Internet and electronic communications
services), and agrees that BidSync will not be liable to Customer as a result of these temporary service interruptions,
except as otherwise expressly provided in the SLA.
3.4 Upgrades; Additional Modules. Upgrades to the Software Services (i.e. modifications, additions or
substitutions that result in a substantial change, improvement or addition to the Software Services), if available, may
. be offered by BidSync at an additional charge. Customer may procure additional modules of the Software Services
or Additional Services on a coterminous basis by signing an Order detailing such additional modules or Additional
Services ordered. The addition of modules to the Software Services may have the effect of increasing Customer's
fees paid hereunder for such services for the remainder of the Term.
3.5 Software Services Support. BidSync shall provide Customer telephone and web support for the Software
Services during the specified periods for such support and under the terms expressed in Exhibit A and on the
applicable Order.
3.6 Software Services License. BidSync hereby grants to Customer, subject to all the terms and conditions of
this Agreement, a non - exclusive, non- transferable (except as permitted in the Agreement), non -sub licensable
license to access the Software Services and the Site via the Internet for the duration of the Term, and to use the
Software Services, solely for Customer's internal business purposes and for the purposes contemplated in the
applicable Documentation and Exhibits, in return for Customer's payment to BidSync of the applicable license fees
as expressed in the Order.
3.7 License Restrictions. Customer shall not, directly or indirectly, (i), reverse engineer, decompile,
disassemble or otherwise attempt to discover the object code, source code or underlying ideas, methodologies, or
algorithms of the Software Services; (ii) modify, translate, or create derivative works based on or related to the
• Software Services; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer the rights to the Software
Services; (iv) use the Software Services for timesharing or service bureau purposes or otherwise for the benefit of a
third party; (v) remove any proprietary notices from the Software Services; (vi) publish or disclose to third parties
any evaluation of the Software Services without BidSync's prior written consent; or (vii) create any link to the
Software Services or frame or mirror the content contained on, or accessible from, the Software Services.
3.8 Proprietary Rights of BidSync. This is not a work made - for -hire agreement (as that term is defined in
Section 101 of Title 17 of the United States Code) with regard to either party. Except for express licenses granted in
-this Agreement, neither party is granting nor assigning to the other party any right, title, or interest, express or
implied, in or to the party's Intellectual Property. Each party reserves all rights in such property. Customer
acknowledges that the Software Services and all content contained therein, including, but not limited to, text,
software, Intellectual Property Rights, music, sound, photographs, video, graphics and third party. materials and
advertisements, excluding any Customer Data, (collectively "Content "), and all Documentation, is proprietary to
BidSync or such third parties, and BidSync or such third parties retain exclusive ownership of the same throughout
the world, including all related copyrights, trademarks, service marks, patents, trade secrets or other proprietary
rights thereto. Except as expressly stated herein, this Agreement does not transfer, grant, or assign any right, title or
interest in the Software Services, Content or Documentation to the Customer.
3.9 Custom Software Development. Notwithstanding Section 3.8 above, Customer may procure from
BidSync any custom software development services or other services ( "Additional Services ") for the fees defined
in the Exhibit A and the Order. BidSync shall retain and possess all right, title, interest, and ownership in and to
any and all ideas, concepts, know -how, residuals, data processing techniques, software, documentation, processes,
data, information, or Intellectual Property developed, used, or acquired by BidSync personnel (alone or jointly with
Customer) in connection with the Additional Services provided to Customer ( "Work Product "), and such Work
Product will be the exclusive property of BidSync, and Customer shall have no right, title, interest, or ownership in
or to such Work Product, except as expressly provided herein this Agreement, Exhibit A or the Order. No
customized software development shall be deemed a work made for hire agreement or arrangement unless expressly
agreed to by the parties in writing. BidSync shall license to Customer the Work Product of such Additional Services
under the same terms as the Software Services license expressed in Sections 3.6, 3.7, and 3.8 and with-the same
applicable warranties, indemnities, and restrictions as expressed in this Agreement for the Software Services, unless
expressly stated otherwise in the Order. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, BIDSYNC
WARRANTS THAT THE ADDITIONAL SERVICES WILL BE PERFORMED IN A WORKMANLIKE
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MANNER AND WITH PROFESSIONAL DILIGENCE AND SKILL, IN ACCORDANCE WITH THIS
AGREEMENT, THE APPLICABLE ORDER, AND THE EXHIBIT. IF THERE IS A MATERIAL BREACH OF
THE ABOVE WARRANTY, BIDSYNC'S ENTIRE LIABILTY AND CUSTOMER'S ENTIRE REMEDY
SHALL BE, AT BIDSYNC'S OPTION TO (I) MODIFY THE ADDITIONAL SERVICES TO CONFORM TO
THE ORDER; (1I) PROVIDE A REASONABLE WORKAROUND SOLUTION WHICH WILL REASONABLY
MEET CUSTOMER'S REQUIREMENTS OR (III) IF NEITHER OF THE FOREGOING IS COMMERCIALLY
REASONABLE, TERMINATE THE APPLICABLE ORDER OR THIS AGREEMENT WITH NO FURTHER '
LIABILITY TO BIDSYNC. EXCEPT FOR BIDSYNC'S INDEMNITIES OBLIGATIONS UNDER SECTION 7,
THESE REMEDIES ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR A CLAIM OF BREACH
OF WARRANTY UNDER THIS SECTION.
3.10 Passwords. BidSync shall issue to Customer, or shall authorize a Customer administrator to issue, a
password for each Authorized User to use Customer's account for whom Customer has paid the applicable fee.
Customer is responsible for maintaining the confidentiality of all user names and passwords and for ensuring that
each user name and password is used only by the Authorized User. Customer is solely responsible for any and all
usage of the Software Services or activities on the Site resulting from access to the Software Services or the Site
through the use of the user names and passwords. Customer agrees to promptly notify BidSync of any unauthorized
use of the Customer's account (including each password of each user accessing the Software Services by means of
Customer's account) or any other breach of security known to Customer. BidSync shall have no liability for any
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loss or damage caused by Customer's failure to comply with these requirements. BidSync will maintain Customer
passwords as confidential and not disclose them to third parties.
3.11 Security. BidSync will maintain the Software Services and Site at a reputable third party Internet service
provider and hosting facility, where the Software Services are subject to commercially reasonable security
precautions to prevent unauthorized access to the Software Services and Customer Data. Customer acknowledges
that, notwithstanding security precautions, use of or connection to the Internet provides the opportunity for
unauthorized third parties to circumvent such precautions and illegally gain access to the Software Services and
Customer Data. Accordingly, BidSync cannot and does not represent, warrant, or guarantee the privacy, security, or
authenticity of any information so transmitted over or stored in any system connected to the Internet. At all times
during the Term, BidSync shall collect, store, use, and maintain Customer Data in compliance with all applicable
state and federal laws and regulations relating to the privacy, information security, and consumer protection for such
data. In. no event shall BidSync implement less than a reasonable level of information security for the
confidentiality, integrity, and availability of the Customer Data. BidSync shall promptly report to Customer any
actual or suspected compromise of the Customer Data.
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3.12 Rights and Obligations Regarding Customer Data. Customer grants to BidSync a non - exclusive,
worldwide, terminable at -will, and royalty-free license, for the Term of this Agreement, to use Customer Data solely
to the extent necessary to enable BidSync to provide the Software Services to Customer under this Agreement. As
between BidSync and Customer, Customer shall own all Customer Data. Except as permitted in or reasonably
anticipated by this Agreement, BidSync will not edit, delete, or disclose the contents of Customer Data unless
authorized by the Customer or unless BidSync is required to do so by law or in the good faith belief that such action
is necessary to: (i) conform with applicable laws or comply with legal process served on BidSync; (ii) protect and
defend the rights or property of BidSync; or (iii) enforce this Agreement. BidSync may provide user statistical
information such as usage or traffic patterns in aggregate form to third parties, but such information will not include
personally identifying information. BidSync may access Customer Data to respond to service or technical problems
with the Software Services. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability,
.appropriateness, and copyright of all Customer Data and BidSync assumes no responsibility for the deletion,
. correction, destruction, loss, or infringement of Customer Data used by or stored in the Software Services. BidSync
reserves the right to establish a maximum amount of Customer Data that Customer may store, post, transmit on or
through the Software Services. BidSync may back up Customer Data every twenty four (24) hours. BidSync's sole
obligation in the event of data loss shall be to use commercially reasonable efforts to recover and restore Customer
Data using backup media. Notwithstanding the foregoing, Customer grants to BidSync a non- exclusive, worldwide,
irrevocable, perpetual, royalty-free license to use and exploit any vendor list or vendor contact information, whether
or not such information is provided in combination with Customer Data, that is provided by Customer or uploaded
to the Software Services on behalf of Customer, and such information shall not be deemed Confidential: Information.
3.13 Payments. Customer shall make payments in the amounts indicated on the applicable Order in
consideration for the Software Services purchased or procured from BidSync by Customer. BidSync shall provide
Customer with an electronic invoice indicating the amounts due to be paid by Customer to BidSync, and Customer
shall pay each invoice within thirty (30) days of receipt of such invoice, unless a bona fide dispute with respect to
payment of such invoice or portion thereof has arisen. If there is a bona fide dispute regarding any invoice rendered
or amount paid or to be paid, the party disputing such invoice ( "Disputing Party ") shall notify the other party in
writing thereof, and the parties shall use their best efforts to resolve such dispute expeditiously. In no event shall a
bona fide dispute waive, cancel, or suspend any party's obligations under this Agreement. If the Disputing Party
notifies the other in writing of a disputed invoice or payment, and there is a good faith basis for such dispute, the
time for paying the disputed portion of the invoice shall be extended by a period of time equal to the time between
the Disputing Party's receipt of such notice and the resolution of such dispute.
3.14 Taxes and Interest. Customer shall be responsible for any taxes applicable to the use of the Software
Services, BidSync's provision of Software Services, or as otherwise applicable to Customer in this Agreement.
Such amounts shall be payable by Customer within thirty (30) days of receipt of an itemized invoice from BidSync.
In no event shall Customer be responsible for any taxes based on the net income or gross receipts of BidSync. Any
other amounts which may become payable by Customer pursuant to this Agreement, shall be payable by Customer
within thirty (30) days' of receipt of an itemized invoice from BidSync. Undisputed portions of any invoice shall be
paid as stated above. Customer acknowledges and agrees that BidSync may impose, and Customer shall pay, a late
payment charge on the unpaid balance of undisputed overdue invoices equal to the lesser of (a) one and one -half
percent (1.5 %) per month (eighteen percent (18 %) per annum), or (b) the maximum rate allowed by law. Invoices
for charges shall be rendered in accordance with the payment schedule set forth in the applicable Order.
IV.
TERM AND TERMINATION
4.1 Term. This Agreement will commence on the Effective Date following approval by Customer, and shall
continue in full force and effect for the number of years defined on the Order (the "Initial Term "), unless sooner
terminated as provided herein. This Agreement shall automatically renew upon exp of the Initial Term for
successive one -year terms (each a "Renewal Term ") unless or until terminated by either party in writing at least
(30) days prior to the end of the then current Term. The "Term" of the Agreement shall be the Initial Term plus
any additional Renewal Term(s).
4.2 Customer Termination. Customer may terminate this Agreement upon BidSync's material breach of its
obligations hereunder by furnishing BidSync with no less than thirty (30) business days' prior written notice and
give BidSync a reasonable opportunity to cure such breach (if curable);. provided however that, termination of this
Agreement for any reason immediately terminates any license, right, or service provided by BidSync to Customer
under this Agreement. Notwithstanding the foregoing, if Customer is a Governmental Entity, Customer may
terminate this Agreement at any time if adequate funds to pay BidSync all fees owed hereunder are not appropriated
to the Governmental Entity during the Term, unless otherwise authorized by law.
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4.3 BidSync Termination. BidSync may, at its option, terminate this Agreement or any Order, or suspend or
terminate the Software Services immediately upon written notice to Customer if (i) any invoice is not paid when due
hereunder or Customer breaches any of its obligations under Sections 3.6, 3.7, or 3.8; (ii) bankruptcy, receivership,
insolvency, reorganization, or similar proceedings are commenced by or against Customer and are not dismissed
within thirty (30) days of commencement; (iii) Customer becomes insolvent, makes an assignment for the benefit of
creditors, or otherwise admits its inability to pay its debts and obligations as they come due; or (iv) Customer
neglects or fails to perform or observe any other term or obligation hereunder and fails to remedy within thirty (30)
days after BidSync's written notice of such failure to Customer.
4.4 Termination of Individual Vendor's Access for Non - Payment. In the event of non - payment of any
invoice by an individual vendor, BidSync may, at its sole discretion, disable the vendor's access to the Software
Services until such time as the vendor's account is brought current or terminate a vendor's access to the Software
Services in accordance with BidSync's separately executed agreement with vendor.
4.5 Effect of Termination of the Agreement. Upon termination of this Agreement, all licenses, rights, and
services provided by BidSync to Customer under the Agreement or the applicable Order shall terminate, and
Customer shall immediately discontinue use of the Software Services provided under this Agreement or the Order
that is being terminated, and BidSync may terminate provision of or access to the Software Services. BidSync shall
not be liable to Customer or any third party for suspension or termination of the Software Services in accordance
with this Agreement. Any and all provisions, promises and warranties contained herein which by their nature or
effect are required or intended to be observed, kept or performed after termination of this Agreement will survive the
termination of this Agreement or the applicable Order and remain binding upon and for the benefit of the parties
hereto. BidSync shall retain Customer Data . for a period of sixty (60) days after expiration or termination of this
Agreement. At no additional cost to Customer, BidSync shall provide a one time, mass export of Customer Data in
a format to be agreed upon by the Parties. AFTER SAID SIXTY (60) DAYS, ALL CUSTOMER DATA,
CONTENT, ACCOUNT INFORMATION, AND SETTINGS INCLUDING, BUT NOT LIMITED TO, CONTENT
AND DATA IN PUBLIC AND PRIVATE INFORMATION STORES OR OTHERWISE ON BIDSYNC'S
SERVERS OR THE SITE WILL BE IRREVOCABLY DELETED AND DESTROYED: •
V.
CUSTOMER OBLIGATIONS
5.1 General Obligations. Customer will use its best efforts to cause its personnel to be, at all times, educated
and trained in the proper use and operation of the Software Services and to ensure that the Software Services are
used in accordance with applicable manuals, instructions, specifications, and Documentation. Customer shall
cooperate with BidSync in BidSync's performance of its obligations under this Agreement, and shall provide access
to information and systems as reasonably necessary to assist BidSync in performing its obligations under this
Agreement.
5.2 Hardware and Network Services. Customer is responsible for obtaining and maintaining all computer
hardware, software, communications equipment, and communications network services needed to access the
Software Services, and for paying all third -party access or usage charges (e.g. Internet service provider and
telecommunications charges) incurred while using the Software Services.
5.3 Conduct. Customer agrees: (i) to abide by all local, state, national, and international laws and regulations
applicable to Customer's use of the Software Services including, without limitation, all laws regarding the
transmission of technical data exported from the United States through the Software Services; (ii) not to upload or
distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may
damage the operation of the Software Services or another's computer; (iii) not to use the Software Services for
illegal purposes; (iv) not to interfere or disrupt networks connected to the Software Services; (v) not to post, promote
• or transmit through the Software Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar,
obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (vi) not to transmit or
post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (vii)
not to interfere with another customer's use and enjoyment of the Software Services or another entity's use and
enjoyment of similar services; and (viii) to comply with all regulations, policies, and procedures of networks
connected to the Software Services. Customer acknowledges and agrees that BidSync neither endorses the contents
of any Customer communications nor assumes any responsibility for any threatening, libelous, obscene, harassing or
offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom
or any crime facilitated thereby. BidSync may remove any violating content posted on or uploaded to the Software
Services or transmitted through the Software Services, without notice to Customer. BidSync acknowledges and
agrees Customer has no control over its third party customers /vendors or the content and other information they may
submit through the Software Services and that such customers /vendors may not be Customer's agents. As a result,
Customer shall have no liability or responsibility with regard to any customer /vendor activity described in clauses
(ii) through (vii) that occurs without the knowledge or participation of Customer.
VI.
WARRANTIES
6.1 BidSync Warranties. BidSync represents, warrants, and covenants to Customer that (i) the Software_
Services, and all associated services provided to Customer by BidSync, BidSync's subcontractors, and agents under
this Agreement shall be tested and free of material defects in accordance with industry standards and produced and
performed in a skillful and workmanlike manner and shall comply with the Documentation; (ii) BidSync has
reviewed all Agreement documents, and has used its best efforts to make all investigations necessary to be
thoroughly informed regarding requirements for delivery of products, equipment and/or services as required by the
conditions of this Agreement; (iii) BidSync (a) is a duly qualified, capable, and otherwise bondable business entity,
(b) is not in receivership or contemplating same, (c) has not filed for bankruptcy, and (d) is not currently delinquent
with respect to payment of property taxes in Utah County or the State of Utah; and (iv) all applicable copyrights,
patents, trade secrets, licenses and other proprietary and Intellectual Property Rights that may exist on materials used
in this Software Services have been adhered to.
6.2 Security Warranties. BidSync shall not use and shall not allow anyone else under its control to use
Confidential Information collected by BidSync for any purpose or provide it to any third party unless: (i) the .
Software Services Authorized User is given clear prior notice of the possibility of such other use; (ii) the Software
Services Authorized User affirmatively consents to such use; or (iii) Customer agrees to such other use. BidSync
shall maintain the security of Confidential Information in its custody and the integrity of transactions received
through its interfaces and through the Software Services. Redundant levels of security will be deployed as necessary
throughout the Software Services. Except for Customer's perpetual license to vendor information granted to
BidSync under Section 3.12, BidSync shall not use any Confidential Information in its custody for its own purposes
or the purposes of its other clients unless Customer expressly agrees to the use of that specific information.
6.3 Customer Warranties. In addition to any other express warranties herein, Customer represents, warrants,
and covenants to BidSync that any and all Customer Data uploaded to the Site or used with the Software Services
shall not infringe or violate the Intellectual Property Rights of any third party. To the extent provided by law and
without waiving any sovereign immunity it may enjoy, Customer shall indemnify and hold BidSync and its officers,
agents, and employees harmless from all claims, losses, damages, causes of action and liability of every kind
including expenses of litigation, court costs, and attorneys fees related to Customer's use of Customer Data with the
Software Services.
6.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, THE SOFTWARE
SERVICES ARE PROVIDED "AS -IS" AND CUSTOMER ACCEPTS THE ENTIRE RISK AS TO THE
QUALITY, PERFORMANCE AND RESULTS OF USE OF THE SOFTWARE SERVICES. EXCEPT AS
OTHERWISE RESTRICTED BY LAW, BIDSYNC DISCLAIMS ALL OTHER REPRESENTATIONS,
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING
THE SOFTWARE SERVICES, INCLUDING, BUT NOT LIMITED TO, ITS FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, QUALITY, TITLE, OR ITS NON - INFRINGEMENT. NO ORAL OR
WRITTEN INFORMATION OR ADVICE GIVEN BY BIDSYNC OR ITS RESPECTIVE EMPLOYEES,
OFFICERS, DIRECTORS, DISTRIBUTORS OR AGENTS WILL INCREASE THE SCOPE OF THE EXPRESS
WARRANTIES STATED ABOVE, OR CREATE ANY NEW REPRESENTATIONS; WARRANTIES OR
CONDITIONS.
VII.
INDEMNIFICATION
7.1 Infringement. BidSync, at its own expense, will defend any action brought against Customer based on a
claim by any third party that the Software Services, as used within the scope of this Agreement or applicable Order,
infringe or misappropriate any Intellectual Property Right(s) of such third party enforceable in the United States, and
BidSync shall hold Customer harmless from any liability for any costs and damages ordered by a court as a result of
such action or resulting from a monetary settlement thereof, provided Customer notifies BidSync promptly in
writing of the action (and all prior claims relating to such action), BidSync has sole control of the defense and all
negotiations for settlement or compromise of the action, and Customer reasonably cooperates with BidSync in such
defense (including, without limitation, making available to BidSync all relevant documents and other information in
Customer's possession and by making Customer's personnel available to testify or to consult with BidSync or its
attorneys).
' 7.2 Exclusions. BidSync shall have no liability or obligation with respect to any infringement or
misappropriation claim based upon: (i) any use of the Software Services not in accordance to this Agreement, the
applicable Order, or the Documentation; (ii) any use of the Software Services in combination with other products;
equipment, software or data not supplied by BidSync, referenced in the Documentation, or otherwise authorized by
BidSync; or (iii) any modification of the Software Services made by any person other than BidSync where such
modification is not authorized by BidSync.
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7.3 Remedies. If the Software Services or any portion thereof become or, in BidSync's sole discretion, are
likely to become the subject of an infringement or misappropriation claim, BidSync may, at its sole option and
expense, either: (a) procure for Customer the right to continue to use the Software Services pursuant to this
Agreement and the applicable Order; (b) replace or modify the Software Services to make them non - infringing; or
(c) terminate this Agreement or the applicable Order and Customer's right to use the Software Services, and refund
to Customer any unused pre -paid fees for the terminated Software Services as of the date of termination.
SECTIONS 7.1, 7.2 AND 7.3 STATE BIDSYNC'S ENTIRE LIABILITY AND CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS
BASED ON ANY SERVICES OR PRODUCTS PROVIDED BY BIDSYNC.
7.4 By Customer. To the extent provided by law and without waiving any sovereign immunity it may enjoy,
Customer agrees to defend, indemnify, and hold BidSync, its Affiliates, officers, directors and employees harmless
from any claim, demand, damages, costs and expenses (including reasonable attorneys' fees), arising from any third
party claim against BidSync due to or arising out of: (i) any use of the Software Services by Customer other than in
accordance with this Agreement; (ii) any unauthorized modification of the Software Services by Customer,
including any claims for Intellectual Property infringement arising therefrom; or (iii) in the event that Customer •
requires BidSync to collect Social Security Numbers or other sensitive information, any liability to BidSync as a
result of its use of such information in furtherance of its provision of services to Customer.
VIII.
LIMITATION OF LIABILITY
8. LIMITATION OF LIABILITY. UNLESS FURTHER LIMITED ELSEWHERE IN THIS
AGREEMENT, BIDSYNC'S AND ITS DIRECT AND INDIRECT SUPPLIERS' AGGREGATE LIABILITY
FOR DAMAGES FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER
IN CONTRACT, NEGLIGENCE OR TORT, WILL NOT EXCEED THE GREATER OF (A) TEN THOUSAND
U.S. DOLLARS (US $10,000) OR (B) THE TOTAL FEES AND CHARGES PAID BY CUSTOMER TO
BIDSYNC FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH
PERIOD IMMEDIATELY PRIOR TO THE DATE CUSTOMER'S CAUSE OF ACTION ACCRUED. IN NO
EVENT SHALL BIDSYNC OR ITS DIRECT OR INDIRECT SUPPLIERS BE LIABLE FOR (A) ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF BIDSYNC HAS BEEN ADVISED OF THE
POSSIBILITY. THEREOF INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR INFORMATION OF
ANY KIND, LOST PROFITS, LOST BUSINESS REVENUE OR FAILURE TO REALIZE EXPECTED
SAVINGS AND REGARDLESS OF WHETHER ANY CLAIM FOR SUCH RECOVERY IS BASED UPON
THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY), OR (B) ANY
CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON. NOTWITHSTANDING THE FOREGOING, THIS •
SECTION 8 SHALL NOT LIMIT, NOR SHALL BE CONSTRUED OR APPLIED TO LIMIT: (I) THE
INDEMNIFICATION OBLIGATIONS OF EITHER PARTY SET FORTH IN SECTION 7, OR (II) THE
LIABILITY OF EITHER PARTY FOR DIRECT MONEY DAMAGES RESULTING FROM A BREACH OF
THE OBLIGATIONS OF NONDISCLOSURE AND CONFIDENTIALITY IMPOSED BY SECTION 9 HEREOF.
IX.
CONFIDENTIALITY
9. • Confidentiality. Both parties hereby agree that "Confidential Information" means any and all technical
and non - technical information, including trade secrets, know -how and proprietary information, firmware, designs,
schematics, techniques, source code, plans or any other information relating to any product or service as well as
work in process, future development, scientific, engineering, manufacturing, marketing or business plans, or
financial or personnel matters relating to either party or its present or future products, sales, suppliers, customers,
employees, investors or Affiliates disclosed or otherwise supplied in confidence by either party to the other party,
acquired in the course of carrying out the tasks hereunder or as a result of access to the premises of a party
(including in the context of a request for information or request for proposal, or related to discussions between the
parties in anticipation of potential Orders). Confidential Information also includes: (i) information disclosed in a
written or other tangible form which is clearly marked with a "confidential" or "proprietary" legend or other
comparable legend; (ii) information disclosed orally or visually which is identified as confidential at the time of
•
disclosure and confirmed in writing within a reasonable time; (iii) any other information which a reasonable person
would deem confidential under the context of disclosure or due to the nature of the information; (iv) in the case of
BidSync, any software used to deliver the Software Services and all modifications, enhancements, updates, and
derivatives thereof, as well as the Documentation, functional specifications, methods, concepts, designs, and all
other similar information regarding the Software Services or other services; and (v) in the case of Customer, the
Customer Data. Both parties (in such capacity, the "Recipient ") hereby agree to maintain as confidential all
material, non - public Confidential Information, which it learns about the other party (the "Disclosing Party ") as a
result of its respective performance under this Agreement and, except as may be required by applicable law or
regulation, to refrain from disclosing any Confidential Information to any third party and to disclose such
Confidential Information only to those agents, employees and representatives of the Recipient who need to know
that which is disclosed to them. Confidential Information shall not include: (A) information in the public domain or
which enters the public domain after the Effective Date without any breach by the Recipient of its obligations
hereunder; (B) information which is- disclosed to the Recipient after the Effective Date by a third party whose
• disclosure of information is unrelated to this transaction or who is unrelated to the Disclosing Party and who is not
violating any obligation to the Disclosing Party by disclosing such information; (C) information which is hereafter
developed by the Recipient independent of any Confidential Information or (D) documents or information that is
subject to disclosure pursuant to Florida's Public Records Law. Upon expiration or termination of this Agreement
for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the
other party's Confidential Information. All copies, notes or other derivative material relating to the Confidential
Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the
receiving party in any form for any reason. Notwithstanding the foregoing, vendor contact and demographic
information provided by Customer, whether or not in combination with Customer Data, shall not be deemed
Confidential Information and BidSync shall be granted a perpetual license thereto pursuant to Section 3.12.
X.
MISCELLANEOUS PROVISIONS
10.1 Compliance with the Law. Both parties shall at all times observe and comply with all Federal, State and
local laws, ordinances and regulations including all amendments and revisions Thereto, which in any manner affect
this Agreement or the Software Services, and shall indemnify, save and hold the other party harmless against
any claim related to or arising from the intentional violation of any such laws, ordinances and regulations.
10.2 Assignment and Subletting. BidSync agrees to retain control and to give full attention to the fulfillment
of this Agreement, and that this Agreement shall not be assigned or sublet without the prior written consent of
Customer. BidSync further agrees that the subletting of any pbrtion or feature of the services provided hereunder, or
materials required in the performance of this Agreement, shall not relieve BidSync from its full obligations to
Customer as provided by this Agreement. The terms, provisions, covenants, obligations and conditions of this
Agreement are binding upon and inure to the benefit of the successors in interest and the assigns of the parties to this
Agreement if the assignment or transfer is made in compliance with the provisions of this Agreement.
10.3 , Use of Contractors. Notwithstanding anything contained in this Agreement to the contrary, BidSync may
utilize the services of independent service providers /contractors who may provide the Software Services to
Customer on BidSync's behalf. Notwithstanding the foregoing, no subcontracting shall relieve BidSync of its
obligations and liability hereunder for the provision of Software Services described herein.
10.4 Independent Contractor. BidSync covenants and agrees that BidSync is an independent contractor and
not an officer, agent, servant or employee of Customer; that BidSync shall have exclusive control of and exclusive
right to control the details of the services performed hereunder and all persons performing same, and shall be
responsible for the acts and omissions of its officers, agents, employees, subcontractors and consultants; that the
doctrine of respondent superior shall not apply as between Customer and BidSync, its officers, agents, employees,
subcontractors and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise
between Customer and BidSync.
. 10.5 Force Majeure. In the event that a party is materially unable to perform any of its obligations hereunder
because of strike, natural disasters, Acts of God, riots, wars, governmental action, or other event of force majeure
beyond such party's control, then such party shall, upon notice to the other party thereof, be relieved from its
performance of such obligations to the extent, and for the duration, that such performance is prevented by such
•
events; provided that such party at all times use all reasonable efforts to resume such performance.
10.6 Modification and Waiver. No modification of this Agreement or an Order, and no waiver of any breach
of this Agreement or an Order will be effective unless in writing and signed by an authorized representative of the
party against whom enforcement is sought. No waiver of any breach of this Agreement or an Order and no course
of dealing between the parties will be construed as a waiver of any subsequent breach of this Agreement or Order.
10.7 Severability. The provisions of this Agreement and the applicable Order are severable. If any provision of '
such is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions
will in no way be affected or impaired thereby.
10.8 Interpretation. Each party acknowledges that this Agreement has been the subject of active and complete
negotiations, and that this Agreement should not be interpreted or construed in favor of or against any party by
reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement.
Section headings are provided for convenience only and are not to be used to construe or interpret this Agreement.
Whenever the words "include" or "including" are used in this Agreement, they will be deemed to be followed by the
words "without limitation:" -
10.9 Governing Law. This Agreement is governed by the laws of the United States of America and The State
of Florida . Venue for any dispute arising out of this Agreement will lie in the state or federal courts of Lake
County, Florida. -
10.10 BidSync Employees. Customer hereby agrees that, during the Term of this Agreement, Customer shall not
employ nor tender any offer of employment to any employee of BidSync without first obtaining BidSync's prior
written consent, which may be withheld for any reason. For the purposes of this Section only, the term "employee"
extends to all present and future employees of BidSync during the period of their employment and continues for a
period of six (6) months after any such employee leaves the employ of BidSync; provided however, that this Section
shall not apply in the event BidSync should cease conducting all business operations.
10.11 Notice. Any notice required or permitted to be given under this Agreement by one party to the other shall
be in writing. Notice under this Agreement shall be accomplished by transmitting the documents (1) via facsimile as
well as (2) by overnight delivery service or overnight U.S. mail with, and effective upon, written confirmation of the
latter. The address of BidSync for all purposes under this Agreement and for all notices hereunder shall be:
BidSync
ATTN: Chief Financial Officer
629 East Quality Drive, Suite 101
American Fork, UT 84003 ,
Facsimile: 801-765-9246
The address of Customer shall be specified on the Order. Each party may change the address for notice to it by
giving notice of the change in compliance with this Section. Customer shall provide BidSync with contact
information for each vendor that is provided access to the Software Services.
10.12 Non - Waiver of Default. No payment, act or omission by either party may constitute or be construed as a
waiver of any breach or default of the other party which then exists or may subsequently exist. The failure of either
party to exercise any right or privilege granted in this Agreement shall not be construed as a waiver of that right or
privilege. , All rights of either party under this Agreement are specifically reserved and anypayment, act or omission
shall not impair or prejudice any remedy or right of either party under it. Any right or remedy stated in this Agreement shall not preclude the exercise of any other right or remedy under this Agreement, the law or at equity,
nor shall any action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies.
10.13 Counterparts. Original signatures transmitted and received via facsimile or other electronic transmission
• of a scanned document, (e.g., PDF or similar format) are true and valid signatures for all purposes hereunder and
shall bind the parties to the same extent as that of an original signature. Any such facsimile or electronic mail
transmission shall constitute the final agreement of the parties and conclusive proof of such agreement. This
Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.
10.14 Export Controls. Customer understands and acknowledges that BidSync may be subject to laws and
regulations which prohibit export or diversion of certain software and technology to certain countries ( "Export
Laws "). Any and all obligations of BidSync to provide the Software Services, as well as any other technical
information or assistance shall be subject to the Export Laws as shall from time to time govern the license and
delivery of technology and software. Customer warrants that it will comply with the Export Laws in effect from
time•to time as they relate to all aspects of this Agreement and its implementation.
10.15 Entire Agreement. These Terms & Conditions, the Order, and Exhibit A set forth the entire agreement
and understanding of the parties with respect to the transactions contemplated hereby and supersedes all prior
agreements, arrangements, and understandings relating to the subject matter hereof.
•
EXHIBIT A
SCOPE OF SERVICES B . I Oa
1. Description of the Software Services.
• eProcure Core System ..
The eProcure Core System provides the ability to electronically create, manage and award all standard solicitation
and quotation types. It automatically notifies suppliers and facilitates the receipt and electronic tabulation of
responses. It then allows for the award to be made and suppliers notified.
In addition to the solicitation creation functionality, the eProcure Core System allows for common solicitation
management functionality including pre and post - bidding periods, temporary and secure work areas, user - defined
and configurable workflows, question and answer sections with addendum upload and download tools, online pre-
bid conference hosting and many others features which greatly enhance the efficiency and productivity of the bid
process. It also contains a robust suite of reporting tools. The system uses NIGP Commodity Code Classification
and' is updated regularly and can be customized to fit legacy needs.
For specific functionality, please refer to the product documentation.
eProcure Modules
All modules fit seamlessly into the core system and work natively with other modules allowing for enhanced
functionality and ease of use. Modules cannot be purchased without the core system.
Contract Management Module
This module allows for the mass import, display and search of existing and new contracts. There are associated
workflows that'allow the configuration of public and private access, unique numbering, automated expiration and
renewal reporting, contract mirroring for the quick creation of new contracts as well as a variety of general and
adhoc reporting. Contracts can be shared and used across agencies as allowed.
Cooperative Bidding Module
This module allows for the creation and management of Cooperative and Sponsored bids and contracts from
multiple users within or outside of a single entity. This includes configurable workflows for creation, display,
approval, notification and award.
eAgenda
This module is allows for the creation of a.robust, electronic agenda, complete with workflows to create and manage
items and then to manage the activity and disposition of the items. It enables the user to submit, approve and
quickly report formal eAgenda items for their next meeting:
Purchase Order to Requisition Module
This module- facilitates post -award activities from creating purchase orders to requisitioning goods or services
directly from a supplier. It contains configurable workflow tools that allow for fit to current processes while
automating them to typically make the process much faster with associated reporting and auditing included.
Reverse Auction Module
This module allows for the creation and management of reverse auction type bids and complies with all Federal
guidelines created by the GSA regarding reverse auctions.
RFP Evaluator
This module is an advanced, completely web -based RFP scoring tool which allows committee members to quickly
and easily log into a secure scoring system to streamline the scoring process. The tool automatically notifies
•
committee members of tasks, allows for a user - configurable workflow to control the process, and then electronically
tabulates the scores into configurable reports.
Vendor Management Module
This module expands upon the core system functionality by offering the ability to much more closely manage
vendor relationships. It includes the ability to use an existing identification system (ex: tax ID, FEIN) with our
unique identifier to securely lock in the identity of a supplier, running them through multiple checkpoints for
matching and de- duplication and allowing for the information to be continuously current and updated. This module
also enables the ability to communicate dynamically, directly with the suppliers via email, fax and or phone for
issues unrelated to the bid process such as conference invitation and surveys. This also allows for vendor diversity
and Environmentally Preferred Purchasing goals to be tracked and reported.
2. System Maintenance and Support Services. BidSync shall ensure that only properly trained BidSync
technicians or other qualified personnel perform the System Support Services, as defined below. The System
Support Services shall be sufficient to enable the Software Services to perform in accordance with this Scope of
Software Services and all representations, warranties and specifications provided to Customer by BidSync in
connection with this Agreement, and any amendments or addenda thereto that may be issued from time to time.
BidSync shall provide Customer with the Software Services support services set forth below (the "System Support
Services ") as part of the fees provided for under this Agreement:
• Telephone Support. BidSync technicians shall provide telephone support by means of a toll -free support
line, which Customer may use during business hours (6:00 a.m. - 6:00 p.m., Mountain Time, Monday
through Friday; excluding nationally recognized holidays). Telephone support shall include without
limitation (i) answering questions concerning use of the Software Services; and (ii) providing technical
support.
• Web Access. BidSync shall provide additional technical assistance in the form of access to BidSync's Web
site and online bulletins, all of which shall be maintained by BidSync and available to Customer at a
minimum 24 hours /day, 7days /week, and 365 days /year excluding scheduled downtime for maintenance.
• Problem Resolution Criteria and Timelines. Where Customer reports program errors or malfunctions in the
Software Services, or where the Software Services does not conform substantially to the Performance and
Availability levels specified below, BidSync shall correct the identified errors or modify the Software
Services to conform to the specifications according to the impact level criteria set forth below.
• Critical Impact. If a Software Services problem resulting from program errors or malfunctions has a
critical business impact, defined as a complete loss of use of the Software Services such that personnel
cannot reasonably continue to work, BidSync shall respond within fifteen (15) minutes, and shall provide a
temporary solution through a workaround within one (1) hour and continue such efforts until the problem is fixed, patched or a suitable workaround is provided or until the problem has been reduced to a lower impact
level
• Significant Business. Impact. If a Software Services problem resulting from program errors or malfunctions •
has a significant business impact, defined as a significant loss of use of the Software Services or
degradation of such use, BidSync shall respond within thirty (30) minutes, and shall provide a temporary
solution through a workaround within four (4) hours and shall continue such efforts until the problem is
fixed, patched or a suitable workaround is provided or until the problem has been reduced to a lower impact
level.
• Minimal Business Impact. If a Software Services problem resulting from program errors or malfunctions
has a minimal business impact, defined as Customer's ability to continue work with only minor
impediments or loss of use of the Software Services, BidSync shall respond within four (4) hours and shall
provide a permanent correction in its next release of a Software Services upgrade or enhancement.
•
. As part of the System Support Services, BidSync shall provide, at a mutually convenient time within thirty (30) days
of Customer's request for training, unlimited online training of Customer personnel (the "Training ") on Software
Services access, use and operation.
3. Software Service Availability. BidSync will use commercially reasonable efforts or provide the Software
Services and make them available 24 hours per day, 7 days per week, 99.8% of the time each month, excluding any
Scheduled Downtime, as defined below. Notwithstanding the foregoing, the availability of the Site and the Software
Services are provided by Bidsync on an "AS IS" basis to Customer.
• Scheduled Downtime. Scheduled and planned Software Services outages for the purpose of providing
the System Support Services. All outages are scheduled with a minimum of 72 hours advance notice
to Customer and shall occur only during non -peak hours unless otherwise agreed by the parties.
4. Implementation. •
,Basic implementation includes unlimited import of suppliers, online document import for up to twenty discrete
documents, configuration web and phone based training, and is designed to get the average agency up and running
within four weeks from start.
Advanced implementation includes integration and additional configuration as necessary and will be priced on a
case by case basis.
5. Customizations. The BidSync eProcure Core System is meant to be configurable in most cases. In some '
cases, customizations may be made to order as needed to adapt to the needs of our customers. The most common of
these is a two -way bridge to a financial or ERP system. Any customization will be created and priced on a case -by-
case basis as "Additional Services" defined below.
6. Training.
•
Basic training includes training for users and administrators conducted over the phone or via BidSync's database of
online demonstration videos. Basic training is included with the purchase of the eProcure Core System.
Advanced training includes on -site training or support and is priced on a case -by -case basis.
7. Security & Privacy. The Software Services utilizes the latest, cutting edge security. and privacy tools
including SSL 256 -bit encryption, server certificates with Global ID provided by the premier national provider, the
highest level of encryption dictated by Federal guidelines — the AES algorithm and SAAS 70 Type II certification. .
Our data is stored in mirrored, redundant, highly secured facilities. BidSync's privacy policy is always available
from our web site.
8. Upgrades and Enhancements. BidSync will provide upgrades and enhancements to the Software
Services, as defined herein. BidSync may, at its sole discretion, charge Customer a reasonable fee for upgrades and
enhancements.
For purposes of this Agreement, the terms "upgrades" and "enhancements" shall include without limitation any and
all releases that have the following functions and purposes: (i) implementing correction of Software Services (or
component application) errors or malfunctions; (ii) adding new Software Services features, functions and
performance capabilities, including modifications designed to meet federal, state and legally mandated
requirements; and (iii) changing the intellectual property contained in the programs.
9. Additional Services. BidSync shall perform any additional services set forth in the Order (the
"Additional Services") according to BidSync's then current hourly rates. Additional Services shall be described in
the Order and may include, without limitation, custom development services, consulting services, and other services.
Upon BidSync's receipt of a written request from Customer for any Additional Service, and acceptance of such
request by BidSync, BidSync shall provide a written quotation, at no cost to Customer, of the type of Additional
Service requested, the cost of the Additional Services, and the time required to complete the same. Upon receiving
Customer's written approval to proceed with the Additional Service, BidSync shall perform the Additional Service
at a time mutually agreed upon by BidSync and Customer.
10. Communication System Only Disclaimer. Although the Software Services are sometimes called an
online auction system, it does not perform the function of a traditional auctioneer. Customer acknowledges that
BidSync's website merely provides the communication system and means to allow Customer to perform the
solicitation and procurement services described in this Agreement. BidSync is not involved in the actual transaction
between vendors and buyers. As a result, BidSync does not verify or have any control over the quality, safety or
legality of the items sought or offered, the identity of each vendor, the truth or accuracy of bid information
submitted by vendors, quotations, or statements made, or the ability of vendor to sell or deliver products or services.
BidSync advises Customer to use caution, common sense, and practice safe trading when using the Software
Services. BidSync does not ensure that a vendor will actually complete a transaction. •
•
•
•
•
•
•
COLUMBUS/1536925 v.01
•
BIDSYNC ORDER NO.
(Effective Date: ) 81DSYNC
THIS Software Services Order ( "Order" or "Agreement ") is made and entered into on the effective data above
( "Effective Date") by and between BidSyne, a Utah corporation whose address is 629 East Quality Drive, Suite
101, American Fork, UT 84003, hereinafter referred to as "BidSyne ", and a Lake County, Florida POOL member:
City of Clermont , whose address is 685 W. Montrose Street, Clermont. FL 34711 , hereinafter referred to as
"Customer ", to be effective upon execution of this Agreement by Customer's duly authorized designee, both '
individually, as "party" and, collectively, as "parties" depending on the context in which the term is used. The
terms and conditions of the Agreement include this Order form, the Terms & Conditions attached hereto, and any
Exhibits attached thereto,. all of which are incorporated herein by reference. In the event of a conflict between this
Order, the Terms & Conditions, and any Exhibits, documents shall control in the following order of priority: 1) this
Order 2) the Terms & Conditions and 3) the Exhibits.
•
WHEREAS, Customer wishes to procure a secure, automated, online competitive solicitation system that allows
Customer's Purchasing Office (the "Purchasing Office "), the department responsible for purchasing goods and
services on behalf of Customer, to manage all competitive and other procurement processes performed by the
Purchasing Office; and
WHEREAS, BidSyne offers an online competitive solicitation system,- and associated services and wishes to
provide that system and associated services to Customer under the terms and conditions set forth herein; and
NOW, THEREFORE, for and in consideration of the covenants and agreements contained herein, the receipt and
sufficiency of which'are hereby acknowledged, and for the mutual benefits to be obtained hereby,. Customer agrees •
to pay for and BidSyne agrees to provide the following:
NOTE: THIS CONTRACT AND PRICING GOOD FOR POOL MEMBERS ONLY AND IS LIMITED TO
SIGNUP DURING THE YEAR 2010. PRICING TO BE ADJUSTED DOWN 20% to $4,000 WHEN 10
MEMBERS SIGN UP AND 30% to $3,500 WHEN ALL 13 MEMBERS SIGN UP. COUNTY PRICE IS $10,000
AND IS SUBJECT TO THE SAME DISCOUNTS AS POOL SIGNUPS OCCUR.
Order Information Description & Additional. Terms Annual Cost during Initial
Term •
eProcure Core Unlimited bids and quotes $5,000
System
Additional Modules: • Contract Module Included
• Coop Module Included
• One Additional Module to be written in by
Customer: Purchase Order Module Included
• Any additional Modules to be identified here
and are $1,000 each/year: OPTIONAL
$1,000 /module /year
Implementation Basic Included
•
Additional Services N/A N/A
Training Basic Included
•
Initial Term: 5 years with 5 automatically renewing 1 year terms thereafter.
Pricing after Initial Term: After the Initial Term, BidSync will increase the annual cost by 5 %.
Payment Terms: BidSync will invoice Customer electronically via the eProcure Core System. The Initial Tenn will
be billed annually. All invoices will be due net30 days from issuance.
IN WITNESS WHEREOF, Customer and BidSync have duly executed this Agreement effective as of the later of
the Effective Date or the date set forth below. /}
BidSyne Customer: i 1
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Date: Date: 1 -
COLUMBUS /1536923 v.01