2021/03/03 VCS Human Capital Management Terms and Conditions1 Software Terms and Conditions (Rev 5/18) Visual Computer Solutions, Inc.
SOFTWARE TERMS & CONDITIONS
1. DEFINITIONS: (1) “Software” or “Program” refers to the
proprietary computer software system owned by VCS
known as POSS, COSS, FIRES, Active Schedules and PARS.
(2) “VCS” refers to Visual Computer Solutions, Inc. (3)
“Client” refers to the agency licensing or subscribing to
VCS’ software system. (4) “Services” refers to the cloud
scheduling software and training provided by VCS.
2. PROGRAM AND INTELLECTUAL PROPERTY. VCS shall
have the exclusive title to the software and any portion of
the software materials including all documentation,
enhancements, modifications and any new versions of the
Software and all copies of the Software or any portions of
the Software whether made by VCS or Client. VCS’ title
shall include, but not be limited to, any and all copyright,
trademark and other intellectual property rights, or other
rights in the Software.
3. SUBSCRIPTION
a. VCS hereby grants to the Client for the term set forth
herein, a limited non-exclusive, non-transferable right and
license to access the Program for its own internal
scheduling/time & attendance purposes in accordance to
the terms and conditions of this Agreement.
b. The Program and client data are housed on dedicated,
secure servers with QTS Technology’s Data Center NJ1.
The physical and electronic security requirements are: (i)
single point of entry; (ii) main access monitored with
additional access for emergency purposes only; (iii)
surveillance cameras in facility; (iv) access validation with
identity check; (v) access only to persons on VCS approved
access list; (vi) log-in validation; (vii) creation of accounts
only as verified by VCS or sub-contracted hosting provider;
(viii) access to servers via encrypted means; (ix) servers
running behind secure firewall and (x) Intrusion Detection
System (monitoring incoming/outgoing with real time
notification alerts).
c. Software onboarding consists of a kickoff meeting,
installation, data collection/configuration, onsite or online
“train-the-trainer” instruction, and a streamlined transfer
to support services. Client and their Project Team must
make themselves available for regular appointments and
be dedicated to learning the system and rolling it out to
end users. VCS claims no responsibility for Client’s timeline
for end-user roll out and training.
d. Support Services are included in the subscription fee
which includes: phone, e-mail and web support from 8:00
a.m. – 8:00 p.m. EST, M-F. A training video library,
knowledgebase articles and an e-ticket Support Portal are
available 24/7/365.
e. When Client registers to use the VCS Software System
and/or its Support Portal, each Client user is responsible
for maintaining the confidentiality of his/her member
identification and password information, and for
restricting access to their computer. Client agrees to
accept responsibility for all activities that occur under each
user, member identification, and password.
4. RESTRICTIONS
a. Client may not decompile, disassemble or reverse
engineer the Program, or shall not provide access to the
Compiled Program Application by any party, other than
the VCS. Client shall not transfer, resell or grant any rights
of any kind to any individual a copy of the product to any
party. Client cannot create any derivative works based
upon the Subscription Services or Documentation or
access the Subscription Services in order to build a
competitive solution or to assist someone else to build a
competitive solution.
b. Client agrees and acknowledges that only VCS is
authorized to support or maintain the Program.
5. BACKUPS. VCS shall keep offsite backups of Client’s
data. Client shall not make copies of the Software or any
portion of the Software or documentation, except as
follows: (1) archival purposes; (2) employee instructional
purposes.
6. REQUIREMENTS. Client acknowledges that the
requirements listed below are met to insure proper
resource allocation to run Active Schedules, POSS,
COSS, FIRES, and TIMES:
• Workstations: Intel Core i5 processor;
Windows 7 and above; 17-inch monitor
running at 768 X 1024 screen resolution.
• Internet Connection: Internet Explorer 10 and
above, Google Chrome
7. EFFECTIVE DATE. The effective date is the date the
Service is activated for the Client. Invoicing shall
commence on the effective date.
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2 Software Terms and Conditions (Rev 5/18) Visual Computer Solutions, Inc.
8. FEES
a. Client assumes responsibility for and agrees to pay VCS
all amounts due for Services. All invoices are due and
payable according to Invoice Due Date.
b. All reasonable and customary travel expenses, including
but not limited to; Airfare, Hotel, Car Rental and Meals will
be paid by the Client. Travel fees and expenses will be
invoiced upon completion of visit(s) and are due (30) days
from receipt of invoice.
c. Should Client decide to purchase Services through a
reseller or third-party vendor (such as Dell Marketing,
Software House International {SHI}, or Insight Public
Sector), Client acknowledges that all fees will be paid
according to the third-party vendor’s payment schedule
and directly to the third-party vendor.
d. If the number of users assigned to the Client’s account
exceeds the number of licenses purchased, then the
Client’s account may be suspended until Client: (a) reduces
the number or users or (b) upgrades its license count to at
least equal to the number of users.
e. If additional training is desired – over and above the
contracted training package - Client will be billed for such
training and all other related travel expenses according to
the current fee schedule.
f. If Client’s account is past due based on invoice date, in
addition to any of its other rights and remedies, VCS shall
impose a 1.5% finance charge on all past due invoices.
g. If Client’s account is 30 days or more overdue, in
addition to any of its other rights or remedies, VCS
reserves the right to suspend Client's access to the Service,
without liability to Client, until such amounts are paid in
full.
h. If Client initially purchases Subscription Services for a
term, and subsequently orders additional product, the
purchase price for the additional product shall be pro-
rated so that the added subscriptions renew on the same
day as the initial subscription.
i. Should client intend to cancel subscription, the client
must provide thirty (30) days written notice in advance of
subscription renewal date. If no notice is received, the
license will be extended for an additional 12-month term.
The invoice for the continuation of the subscription will be
sent automatically.
j. If for any reason Client cancels any or all training
appointments for which VCS has already secured travel
arrangements, Client agrees to pay VCS’ scheduled travel
fees, plus any applicable service charges, cancellation
penalty fees and increased fares expressly due to the
Client’s cancellation. If Client cancels training after VCS has
arrived on location, Client will be responsible for paying all
training fees and expenses.
9. ADDITIONAL CLIENT RESPONSIBILITIES
a. Client must provide and input data for use in the System.
VCS is not obligated to input, modify or add to Client’s
Data. Client is solely responsible for the content and
accuracy of the Client’s Data.
b. VCS regularly upgrades and updates the Subscription
Services. This means that the Subscription Services are
continually evolving. Some of these changes will occur
automatically, while others may require Client to schedule
and implement the changes. The changes may also mean
that Client needs to upgrade its equipment in order to
make efficient use of the Subscription Services. VCS will
provide Client with advance notification in this case.
c. Client acknowledges that VCS utilizes e-mail as its
primary form of communication for billing, software
enhancement/update information, and webinar/training
purposes. It is Client’s responsibility to notify VCS of
personnel and/or e-mail changes.
d. Client acknowledges that it alone is responsible for the
rollout and results obtained from its use of the Service,
including without limitation the completeness, accuracy
and content of such results.
10. SALES & USE TAX. Any sales tax payable as a result of
the software, hardware and/or professional services
purchase, shall be paid by Client. Client agrees to provide a
completed Tax Information Form to VCS in the event that
VCS is required to collect and remit sales tax as dictated by
law in Client’s state. Client hereby indemnifies and holds
harmless VCS from any sales tax liability, claims, penalties,
or losses incurred resulting from Client withholding or
inaccurately reporting information on the Tax Information
Form.
11. WARRANTY
a. The Software is licensed "AS IS." VCS represents and
warrants that the Services will perform in accordance with
the on-line and manual help documentation and the
service level standards set forth in Section 3.
b. VCS warrants that it has good title to the Product and
the right to license its use to Client free of any proprietary
rights of any other party or any other encumbrance
whatsoever.
12. INSURANCE AND INDEMNIFICATION
a. Throughout the life of this Agreement, VCS shall pay for
and maintain in full force and effect the following policies
of insurance:
(i) Commercial General Liability insurance with combined
single limits of not less than $1,000,000 per occurrence;
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3 Software Terms and Conditions (Rev 5/18) Visual Computer Solutions, Inc.
(ii) Commercial automobile liability insurance with
combined single limits of not less than $1,000,000 per
occurrence; (iii) Worker’s compensation insurance as
required under the New Jersey Labor laws; (iv)
Professional liability insurance of not less than $1,000,000
each claim.
b. Either party will indemnify and hold the other party
harmless against any claim or demand by a third party,
including without limitation reasonable attorney's fees,
alleging that the Service (in the case of VCS) or any
Subscriber Materials (in the case of Subscriber) infringes
any intellectual property right under the laws of the
United States of a third party. VCS' indemnification
obligation does not cover third party claims arising from:
(i) modifications to the Service by anyone other than VCS
or its authorized agents and contractors; (ii) use of the
Service by Subscriber in combination with other software
or equipment not provided by VCS where the Service, but
for such combination, would not be infringing; or (iii)
Subscriber's failure to use the Service in accordance with
these terms and conditions.
13. LIMITATION OF LIABILITY. VCS SHALL NOT BE LIABLE
FOR DAMAGES,INJURY, COSTS OR CLAIMS ARISING OUT
OF (I) DELAYS, MISTAKES, ACCIDENTS,
ERRORS,OMISSIONS,INTERRUPTIONS, OR DEFECTS IN
TRANSMISSION;(II) INADVERTENT DISCLOSURE,
CORRUPTION OR ERASURE OF DATA; (Ill)
SERVICES,FACILITIES OR EQUIPMENT NOT FURNISHED BY
VCS; (IV) ANY ACT OR OMISSION OF A THIRD-PARTY
VENDOR FURNISHING ANY PORTION OF THE SERVICES OR
THE EQUIPMENT OR FACILITIES USED TO PROVIDE THE
SERVICES; AND (V) ANY EVENT THAT PREVENTS VCS FROM
PERFORMING ITS OBLIGATIONS UNDER THESE TERMS AND
CONDITIONS, IF THAT EVENT IS BEYOND THE REASONABLE
CONTROL OF VCS.
14. TERM AND TERMINATION OF AGREEMENT
a. The term of this subscription Agreement shall be no less
than twelve (12) months and shall commence upon the
effective date. The Client, at its sole option, may renew
this Agreement for consecutive one-year terms upon
payment of the next subscription invoice.
b. Either party may terminate rights if the other breaches
any material term in this Agreement and the breach is not
cured within thirty (30) days of written notice.
c. Upon termination of Client’s Subscription Service, VCS
must promptly provide Client with all Client Data in
comma separated value (CSV) format. However, VCS may
retain Client Data in backup media for an additional period
of up to 12 months, or longer if required by law.
d. Within 30 days after the expiration or termination of
this Agreement for any reason, the receiving party must
destroy the original and all copies (including partial copies)
of all Confidential Information of the disclosing party.
e. All fees collected or accrued prior to the date of
termination shall be retained by VCS without any pro rata
refund to Client.
f. The termination of this Agreement shall not extinguish
any rights or obligation of the parties under this
Agreement or applicable law, including without limitation,
rights and obligations relating to the protection of
Confidential Information or Intellectual Property rights.
15. GENERAL PROVISIONS
a. Client warrants that the signature executed on this
quote or agreement is by a duly authorized employee,
agent or officer that is binding upon Client.
b. Any notice required or intended to be given to either
party under the terms of this Agreement shall be in
writing.
c. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by
arbitration in accordance with the Rules of the American
Arbitration Association and judgment upon the award
rendered by the Arbitrator(s) may be entered in any Court
having jurisdiction thereof.
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Company Address 4400 US Highway 9 #3500 Created Date 3/3/2021
Freehold, NJ 07728
us
Expiration Date
Quote Number
4/30/2021
2865
Prepared By
Cathy Leone
Phone (732) 730-9009
Email cleone@vcssoftware.com
Fax (732) 730-1661
Bill To Name
City of Menifee (CA)
Ship To Name
City of Menifee (CA)
Bill To 29844 Haun Road
Menifee, CA 92586
Product
Line Item Description
Product Code Sales
Price
Quantity
Subtotal
Total Price
Saas
Renewal
Services
SaaS-Renewal Services for term of July 2021 to June 2023 -
POSS
Saas
Renewal
Services
$108.00
100.00
$10,800.00
$10,800.00
Saas
Renewal
Services
Saas-Renewal Services for term of July 2021 to June 2022 -
AION
Saas
Renewal
Services
$108.00
120.00
$12,960.00
$12,960.00
Saas
Renewal
Services
SaaS-Renewal Services for term of July 2021 to June 2023 -
POSS - Track Court Assignments & Responsibilities
Saas
Renewal
Services
$28.80
75.00
$2,160.00
$2,160.00
Saas
Renewal
Services
Saas-Renewal Services for term of July 2021 to June 2023 -
POSS - - Timesheet Calculator
Saas
Renewal
Services
$28.80
100.00
$2,880.00
$2,880.00
Saas
Renewal
Services
SaaS-Renewal Services for term of July 2021 to June 2023 -
AION - Timesheet Calculator
Saas
Renewal
Services
$28.80
120.00
$3,456.00
$3,456.00
Subtotal $32,256.00
Discount 0.00%
Total Price $32,256.00
Tax $2,822.40
Grand Total $35,078.40
By signing this quote, you acknowledge acceptance of the VCS Terms and Conditions document.
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CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
VISUAL COMPUTER SOLUTIONS, INC
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CEO
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