ProMiles+Contract+-+signed.pdf

SOFTWARE MAINTENANCE AGREEMENT

THIS SOFTWARE MAINTENANCE AGREEMENT (the “Agreement”) is made by and between PROMILES SOFTWARE DEVELOPMENT CORPORATION a Texas corporation (“PSDC”), and State of North Dakota, acting through its North Dakota Highway Patrol (“Customer”).

1. DEFINITIONS.

1.1 “Correction” means the correction of a Malfunction at any and all priority levels to ensure that the Software performs in accordance with the requirements of this Agreement.

1.2 “Documentation” means any documentation related to the Software including but not limited to user manuals and technical documentation created by PSDC during the performance of the contract for creation and delivery of Software.

1.3 “Maintenance Services” means the specific Services consisting of Corrections, Revisions and Upgrades.

1.4 “Malfunction” means a malfunction of the Software that prevents the Software from performing in accordance with the requirements of such Software.

1.5 “Priority 1” means a severe Malfunction exists which makes the use of one or more of the Software’s critical functions inoperable or materially decreases the functionality in accordance with the requirements of such Software.

1.6 “Priority 2” means a non-severe Malfunction exists which makes the use of one or more of the Software’s functions less operable or decreases functionality as required by this Agreement, but is not a Priority 1 Malfunction.

1.7 “Revision” means a version of the Software with updates, modifications, patches, fixes, or changes that is a less substantial change to the Software than an Upgrade, as the version is made generally available to the Software’s customers, and as indicated by a change in the release number to the right of the decimal point.

1.8 “Software” means the software and any supporting software such as maintenance software.

1.9 “Upgrade” means a version of the Software with major new features or significant enhancements, as the version is made generally available to the Software’s customers, and as indicated by a change in the release number to the left of the decimal point.

2. MAINTENANCE SERVICES.

2.1 Services. PSDC shall provide the following maintenance services:

(a) Corrections. After Customer has informed PSDC of a Malfunction, and subject to Customer reasonably assisting PSDC in attempting to recreate and diagnose the

Malfunction, PSDC agrees to: (i) provide a progress report to Customer within twenty four (24) hours of receiving each request to do so from Customer, (ii) for Priority 1 level Malfunctions, promptly assign a PSDC employee to address the Malfunction, provide a response within one (1) hour during Business Hours, and ensure that the assigned employees work continuously during Business Hours until a Correction is provided and (iii) for Priority 2 level Malfunctions, within twenty four (24) hours respond and assign technical support resources, and provide a Correction within a reasonable amount of time and at the same time or sooner than PSDC provides the Correction to its other customers. During customer’s regular Business Hours, PSDC agrees to provide Customer with telephone access to qualified employees able to provide Corrections.

(b) Revisions and Upgrades. PSDC agrees to provide Maintenance Services for the current Upgrade as of the Effective Date. Revisions are included with the Maintenance Services fee and are not subject to an additional charge. Upgrades are subject to an additional fee based solely on the actual hours required to make said Upgrades work with Customer’s customized Software (at the same price PSDC generally charges its customers) over and above the fee for Maintenance Services. PSDC agrees to offer Revisions and Upgrades to Customer when and if available. Each Revision and Upgrade must be functionally compatible with the prior release or version of the Maintained Item and must comply with the requirements of this Agreement that apply to the Maintained Item. Customer may not be required to install any Revision or Upgrade except: (i) as a prerequisite to installing a subsequent Revision or Upgrade; or (ii) to avoid violation of intellectual property or proprietary rights of a third party, in which case the Revision or Upgrade will be provided at no charge. Revisions and Upgrades must include appropriate changes to the documentation that is generally provided to the Maintained Item's customers.

(c) Enhancement. For the length of the Agreement PSDC agrees to provide Customer access to enhancements made for other routing systems. Such enhancements will be added at Customer’s request, for no charge. PSDC will provide a list of such enhancements to Customer as they become available

(d) Documentation. PSDC agrees to update all documentation related to all corrections or revisions to software. Such updates shall be delivered to customer no more than ten

(10) business days following the installation of such correction or revision.

(e) Technical Support. PSDC agrees to provide Customer with telephone access to qualified employees able to provide technical support in all aspects of the operation of the Software.

(f) Included Support. PSDC includes one hundred forty (140) hours of developer and Project Team support time per year for the term of the Agreement. Such support can be used to configure Upgrades to Software or can be used to make Upgrades to Software unique to customer’s requirements. Such hours do not rollover to succeeding years.

(g) GlS Updates, Searches, and Reports. PSDC agrees to assist Customer with GIS work necessary to maintain the correct operation of the Software. These updates include (i) adding and correcting restrictions on the GIS database as necessary to ensure safe routing; (ii) assisting Customer with ensuring that routing is correctly performed on the GIS database; (iii) assisting Customer with ensuring the completeness and accuracy of the GIS database within the limitations described below; (iv) training Customer's staff with the use of the GIS database and routing thereon; (v) assisting or performing all of periodic migration of item (i) as the GIS database is updated. Customer agrees that PSDC will not be required to perform any data collection from the field and to provide any such data collection as is necessary for the correct operation of the Software. PSDC will perform all needed searches and reports as Customer identifies such.

3. PAYMENTS.

3.1 Fees. Except as otherwise specified in Exhibit A, PSDC shall invoice all fees annually, and payment is due 30 days from delivery of the invoice. All fees quoted include, and PSDC shall pay, all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes based on Customer’s net income.

3.2 Expenses. Customer shall reimburse PSDC for all reasonable out-of-pocket expenses which have been approved in advance by Customer and which are incurred by PSDC in the performance of services hereunder, including but not limited to travel and lodging expenses, long distance calls, and material and supply costs, within 45 days after Customer’s receipt of expense statements including appropriate receipts or other evidence of the expense.

3.3 Prepayment. Customer will not make any advance payments before performance or delivery by PSDC under this Contract.

3.4 Taxpayer ID. PSDC’s federal employer ID number is: 76-0570405.

4. TERM AND TERMINATION.

4.1 Term. The initial term of this Agreement shall be two (2) years commencing on the 1 day of July, 2022, and terminating on the 30 day of June, 2024. Thereafter, this Agreement shall be renewable upon Customer’s notice of intent to renew for two (2) options to renew this contract annually under the same terms and conditions for a period of 12 months each. The Customer reserves the right to extend the contract period for an additional period of time, not to exceed 12 Months, beyond the normal expiration date of the contract, upon mutual written agreement by both parties.

4.2 Termination by Mutual Agreement. This Contract may be terminated by mutual consent of both Parties executed in writing.

4.3 Termination in the Public Interest. Customer is entering this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies, and Courts. If this Contract ceases to further the public policy of the State of North Dakota, Customer, in its sole discretion, by written notice to PSDC, may terminate this Contract in whole or in part.

4.4 Termination for Lack of Funding Authority. Customer, by written notice to

PSDC, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained or continued at levels sufficient to allow for purchase of the services or goods in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services or good are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either Party already accrued prior to termination

4.5 Termination for Cause. Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for 60 days following written notice to the breaching party.

4.6 Effect of Termination. Upon the termination of this Agreement for any reason and upon request by Customer at any time, PSDC shall promptly return, in their original form, all Content and copies thereof and deliver the originals and all copies of the Work Product in whatever stage of completion to Customer. PSDC shall remove all copies of the Content from servers within its control and use reasonable efforts to remove any references to Customer or the Content from any site which caches, indexes or links to the Website.

5. DISCLAIMER OF WARRANTIES. Except as set forth herein, each party expressly disclaims all warranties or conditions of any kind, express or implied, including without limitation the implied warranties of title, merchantability and fitness for a particular purpose.

6. INDEMNITY.

6.1 PSDC Indemnity. PSDC shall defend and hold harmless Customer against any third-party claim, action, suit, or proceeding resulting from PSDC’s acts, omissions, or misrepresentations under this Agreement (including without limitation PSDC’s breach of the warranties contained in Section 7). Subject to Section 8.3, PSDC shall indemnify and hold harmless Customer for all losses, damages, liabilities, and all reasonable expenses and costs incurred by Customer as a result of a final judgment entered against Customer in any such claim, action, suit or proceeding.

6.3 Mechanics of Indemnity. PSDC’s obligations are conditioned upon Customer: (a) giving PSDC prompt written notice of any claim, action, suit, or proceeding for which Customer is seeking indemnity; (b) granting control of the defense and settlement to PSDC; and (c) reasonably cooperating with PSDC at PSDC’s expense.

7. CONFIDENTIAL INFORMATION. Customer’s “Confidential Information” are any passwords used in connection with the Website (or the Shadow Site), all Server Logs, all Work Product and documents related to the Work Product, any Content which Customer designates as confidential, and any other materials of Customer which Customer designates as confidential or which PSDC should reasonably believe to be confidential. Customer’s “Confidential Information” also includes the Website itself until such time as Customer decides to make the Website publicly available to users. PSDC’s “Confidential Information” is defined as the source code of any PSDC Tools. PSDC understands and agrees that Customer does not want any other Confidential Information of PSDC, and should the parties believe that additional confidential information of PSDC needs to be disclosed to Customer, the parties shall execute a separate non-disclosure agreement regarding such information. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, (d) independently developed by recipient without reference to the other party’s Confidential Information, or (e) as required by applicable law.

8. LIMITATIONS ON LIABILITY. Except for direct loss that cannot be limited under N.D.C.C. § 32-12.2-15, neither party shall be liable for any lost profits or special, incidental or consequential damages (however arising, including negligence) arising out of or in connection with this agreement.

9. GENERAL PROVISIONS.

9.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of North Dakota without giving effect to principles of conflict of laws.

Both parties agree to submit to jurisdiction in North Dakota and further agree that any cause of action arising under this Agreement may be brought in a state court in Burleigh County, North Dakota.

9.2 Further Assurances. PSDC shall cooperate with Customer, both during and after the term of this Agreement, in the procurement and maintenance of Customer’s rights to intellectual property created hereunder and to execute, when requested, any other documents deemed necessary or appropriate by Customer to carry out the purpose of this Agreement.

9.3 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision.

The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

9.4 Force Majeure. Neither Party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen

(15) days or another period agreed between the Parties, then STATE may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and

STATE shall be entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

9.5 Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.

9.6 Assignment and Subcontracting. This Agreement and PSDC’s rights, duties and obligations hereunder are personal to PSDC and PSDC may not assign its rights, delegate its duties or subcontract its rights without Customer’s prior written consent in Customer’s sole discretion.

The sale, transfer, or encumbrance of 25% or more of the ownership interest in, or voting stock of, PSDC or the merger of PSDC into or with any other third party or entity, shall be deemed an assignment for purposes of this Section 9.5. Customer may assign, transfer, delegate, or grant all or any part of its rights pursuant to this Agreement to any person or entity. Any assignment, delegation or subcontract in violation of this Section 9.5 shall be void and of no effect. The parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.

9.7 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by PSDC shall work exclusively for PSDC and shall not, for any purpose, be considered employees or agents of Customer. PSDC assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits, and taxes.

9.8 Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing. Notice provided under this Section does not meet the notice requirements for monetary claims against the Customer found at N.D.C.C. § 32 12.2 04.

9.9 Counterparts. This Agreement may be executed in one or more identical counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

9.10 Injunctive Relief. PSDC hereby waives any right to injunctive relief or rescission and agrees that its sole and exclusive remedy for any breach or alleged breach, termination or cancellation of this Agreement by Customer shall be an action for damages and termination of its services hereunder. PSDC agrees that PSDC’s services are unique and that Customer may suffer irreparable harm in the event of any breach by PSDC and that monetary damages in such event would be substantial and inadequate to compensate Customer. Consequently, Customer shall be entitled, in addition to such monetary relief as may be recoverable by law, to such injunctive or other relief as may be necessary to restrain any threatened, continuing, or further breach by PSDC, without showing or proving actual damage sustained by Customer and without posting a bond.

9.11 Insurance. PSDC shall, throughout the performance of its services pursuant to this Agreement, maintain at its sole cost and expense: Comprehensive general liability insurance and broad form contractual insurance (including automobile liability insurance and broad form contractual coverage) with minimum limits of $2,000,000 combined single limit per occurrence, protecting PSDC and Customer from claims for loss or damage to property or loss, damage or liability for injury or death to persons occurring from any cause whosoever that may arise from or in connection with the performance of PSDC’s services under this Agreement or from or out of any negligent act of omission of PSDC, its officers, directors, and employees; and worker’s compensation insurance as required by applicable law.

9.12 Technology Standards. PSDC shall comply with applicable Customer enterprise architecture technology standards. These standards can be found on Customer’s website at https://www.ndit.nd.gov/standards. If PSDC is unable to comply with any applicable standard, PSDC shall request a waiver from that requirement by submitting a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) form in coordination with Customer’s procurement officer for the Customer’s review and approval or disapproval.

9.13 Equipment, Materials and Workspace. PSDC’s assigned contract staff will be on site during a portion of the contract.

1. On-site will be Bismarck, North Dakota.

2. Customer agrees to provide an adequate working space, when required for up to no more than 2 contract staff.

3. Equipment and software for on-site PSDC personnel is to be provided by PSDC.

When Customer and PSDC agree that remote access to systems is required, Customer will provide the necessary supervised remote access security to enable PSDC access to the appropriate Customer systems.

9.13 Applicable Law and Venue. This Contract is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each Party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

9.14 Spoliation – Notice of Potential Claims. PSDC shall promptly notify Customer of all potential claims that arise or result from this Contract. PSDC shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to Customer the opportunity to review and inspect such evidence, including the scene of an accident.

9.15 Attorney Fees and Costs. In the event a lawsuit is instituted by Customer to obtain performance due of any kind under this contract, and Customer is the prevailing party, PSDC shall, except when prohibited by N.D.C.C. § 28-26-04, pay STATE’s reasonable attorney fees and costs in connection with the lawsuit.

9.16 Alternative Dispute Resolution – Jury Trial. By entering this Contract, Customer does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The Parties may enforce the rights and remedies in judicial proceedings.

Customer does not waive any right to a jury trial.

9.17 Confidentiality. PSDC shall not use or disclose any information it receives from Customer under this Contract that Customer has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by Customer. Customer shall not disclose any information it receives from PSDC that PSDC has previously identified as confidential and that Customer determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of STATE and PSDC to maintain confidentiality of information under this section continues beyond the Term of this Contract.

9.18 Compliance with Public Records Laws. Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request.

Public records may include: (a) records Customer receives from PSDC under this Contract,

(b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract.

PSDC agrees to contact Customer immediately upon receiving a request for information under the public records law and to comply with Customer’s instructions on how to respond to such request.

9.19 Independent Entity. PSDC is an independent entity under this Contract and is not a Customer employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act.

PSDC retains sole and absolute discretion in the manner and means of carrying out PSDC’s activities and responsibilities under this Contract, except to the extent specified in this Contract.

9.20 Nondiscrimination – Compliance with Laws. PSDC agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. (See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women.)

PSDC agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. PSDC shall have and keep current all licenses and permits required by law during the Term of this Contract all licenses and permits required by law.

PSDC’s failure to comply with this section may be deemed a material breach by PSDC entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

9.21 State Audit. Pursuant to N.D.C.C. § 54-10-19, all records, regardless of physical form, and the accounting practices and procedures of PSDC relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. PSDC shall maintain these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to PSDC prior to conducting examination.

9.22 Right to Inspect Place of Business. At reasonable times, Customer may inspect those areas of PSDC’s place of business that relate to the performance of this Contract. If Customer makes an inspection, PSDC must provide reasonable assistance.

9.23 Entire Agreement. This Agreement, including the Exhibits attached hereto, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both parties. Neither party is relying upon any warranties, representations, assurances, or inducements not expressly set forth herein.

9.23 Effectiveness of Contract. This Contract is not effective until fully executed by both Parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the Parties shall be the Effective Date.

IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement as of the date first written above.

PSDC: CUSTOMER:

By: By:

Title: Title:

Address: Address:

Fax: Fax:

Michelle Pilcher, Ex VP 1900 Texas Avenue Bridge City, TX 77611 409.697.2645

Chief of Staff North Dakota Highway Patrol

600 E Boulevard Avenue Bismarck ND 58505-0240 701-328-1717 https://na2.documents.adobe.com/verifier?tx=CBJCHBCAABAAp2SUdjtodnpGFlcudSCdYHMcal2V3Svv

Exhibit A

The parties agree to the following annual software maintenance fees. These fee amounts cover the next five years.

Contract Year Period Maintenance Fee 1 7/1/2022 - 6/30/2023 $83,138 2 7/1/2023 - 6/30/2024 $83,138 3 7/1/2024 - 6/30/2025 $83,138 4 7/1/2025 - 6/30/2026 $83,138 5 7/1/2026 - 6/30/2027 $83,138

ProMiles Contract 8.26.22 Final Audit Report 2022-09-01

Created: 2022-08-26

By: DeAnn Steckler (dsteckle@nd.gov)

Status: Signed

Transaction ID: CBJCHBCAABAAp2SUdjtodnpGFlcudSCdYHMcal2V3Svv

"ProMiles Contract 8.26.22" History Document created by DeAnn Steckler (dsteckle@nd.gov)

2022-08-26 - 7:59:59 PM GMT

Document emailed to Aaron Hummel (arhummel@nd.gov) for signature

2022-08-26 - 8:00:21 PM GMT

Document e-signed by Aaron Hummel (arhummel@nd.gov) Signature Date: 2022-09-01 - 8:17:55 PM GMT - Time Source: server

Agreement completed.

2022-09-01 - 8:17:55 PM GMT