RFP 37-24-028 - Case Management Software - Appendix B.docx
DOCX document 82 KB Posted
- Attached to
- Case Management Software State and local contract opportunity
- Solicitation number
- 37-24-028
- Issued by
- Wayne County, Michigan
About this file
This document is a substantial Software as a Service (SaaS) contract between the County of Wayne, Michigan, and an unnamed contractor for a case management software solution. The County is seeking a cloud-based case management system that includes professional services for implementation and bringing the solution into stable production. The contract term is three years with an option for a two-year extension, which may be exercised at the County's discretion. The proposed solution will require installation, training, and ongoing maintenance, with specific performance testing and acceptance criteria outlined in the document.
The contract includes comprehensive terms for compensation, with a maximum compensation amount to be determined, and detailed provisions for software licensing, user access, documentation, and support services. The contractor is required to provide upgrades, enhancements, and maintenance at no additional cost, with specific performance guarantees including a 99.9999% uptime commitment. Insurance requirements are substantial, including commercial general liability, umbrella liability, automobile liability, workers' compensation, professional liability, and cyber liability coverage. The contract also includes robust provisions for data confidentiality, intellectual property protection, and compliance with various federal and state non-discrimination and ethical contracting standards.
View the file
Other files for this state and local contract opportunity
| File | Type | Posted |
|---|---|---|
| W-9 Form v10-18.pdf | ||
| Appendix C - DBE Form.pdf | ||
| Appendix D - Debarment Form.pdf | ||
| RFP 37-24-028 - Case Management Software - Appendix A.docx | DOCX document | |
| RFP 37-24-028 - Case Management Software.docx | DOCX document |
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Text version
SUBSTANTIAL FORM OF SOFTWARE AS A SERVICE CONTRACT
| THIS (“Contract”) is between the County of Wayne, a body corporate and Charter County, acting through its Department of _____________ (the “County”) and ___________________(entity name), a _________________(entity type) (the “Contractor”). | ||
| 1. | PURPOSE | |
| 1.01 | The County is seeking ____________________________. | |
| 1.02 | The Contractor is experienced and able to provide the necessary technical and professional services for the System. The Contractor desires to provide these services to the County. | |
| 2. | ENGAGEMENT OF CONTRACTOR | |
| 2.01 | The County engages the Contractor and the Contractor agrees to faithfully and diligently perform the services according to the terms and conditions contained in this Contract, the County’s Request for Proposals, No. ___________, (Appendix A) and the Contractor’s response to the Request For Proposals No. __________(Appendix B), and consistent with the standard of practice in the industry. If there is any conflict or inconsistency or contradiction among terms of the documents, the order of precedence is: this Contract, the County’s Request For Proposals, then the Contractor’s response to the Request For Proposals. | |
| 3. | DEFINITION OF TERMS |
Terms used throughout this Contract shall have the definitions set forth below.
| 3.01 | “Acceptance” shall mean a written notice from the County to the Contractor that the Services have passed Acceptance Testing. | |
| 3.02 | “Acceptance Date” shall mean the date upon which County accepts the Services as provided in the section titled Standard of Performance and Acceptance. | |
| 3.03 | “Acceptance Testing” shall mean the standards to be met by the Software prior to Acceptance by the County, as set forth in the section titled Standard of Performance and Acceptance. | |
| 3.04 | “Business Days and Hours” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m. Eastern Standard Time, except for holidays observed by the County of Wayne. | |
| 3.05 | “Execution Date” shall mean the date of the last signature of a party to this Contract. | |
| 3.06 | “Installation Date” shall mean the date by which the Services ordered must be installed. | |
| 3.07 | “License” shall mean the right to use the Services which is granted by this Contract and governed by its terms and conditions. | |
| 3.08 | “Order Document” shall mean any official County document and attachments thereto specifying the Services to be purchased from the Contractor under this Contract. | |
| 3.09 | “Related Services” shall mean those Services provided under this Contract that are appropriate to the scope of this Contract and includes such things as installation services, maintenance, training, etc. | |
| 3.10 | “Specifications” shall mean the technical and other specifications in Appendices A and B. | |
| 4. | SCOPE OF SERVICE | |
| 4.01 | The Contractor must perform the Services in a satisfactory manner, as determined within the discretion of the County. The Contractor warrants that the Contractor is authorized to do business under the laws of the State of Michigan and is qualified to perform the Services in this Contract. | |
| 4.02 | The Contractor must expediently perform the Services to achieve the objectives of this Contract. | |
| 4.03 | The Services include all conferences and consultation deemed necessary by the County to properly and fully perform the services. If there is any dispute between the parties regarding the extent and character of the services to be performed, the interpretation and determination of the County governs. | |
| 4.04 | All services are subject to review and approval of the County for completeness and fulfillment of the requirements of this Contract. Neither the County’s review, approval, nor payment for any of the services shall be construed to operate as a waiver of any rights under the Contract, and the Contractor shall be and remain liable for all damages to the County caused by the Contractor’s negligent performance or nonperformance of any of the Services furnished under this Contract. | |
| 4.05 | The Contractor shall comply with section 120-50 of the Wayne County Procurement Ordinance. As required by section 120-50, the Contractor shall not commence performance under this Contract or accept payment for services provided under this Contract until: | |
| A. | If this is a contract that requires approval of the Wayne County Commission, this Contract is approved by the Wayne County Board of Commissioners and executed by the Chief Executive Officer; or | |
| B. | If this is a contract that does not require approval of the Wayne County Commission, this Contract is executed by the Chief Executive Officer or a purchase order is issued. |
The Contractor shall not rely on representations of any person who purports to authorize performance or payment contrary to section 120-50. If the Contractor provides performance or accepts payment prior to approval and execution as required by section 120-50, it does so at its own risk, and, to the extent provided by law, the Contractor shall indemnify, defend, and hold harmless the County against any actual damages, costs, expenses and liability of any kind the County may sustain, incur or be required to pay arising out of the Contractor's provision of Services or acceptance of payment in violation of section 120-50. In the event the Contractor provides Services in violation of section 120-50, then, in addition to any other remedies awarded to the County, the County may retain the funds that would have been owed to the Contractor as compensation for those Services but for the provision of those Services in violation of section 120-50. In the event the Contractor violates section 120-50, it shall be liable for actual damages, costs, expenses and liability of any kind, which the County may sustain, incur or be required to pay arising out of the Contractor's violation of section 120-50, and may be debarred from further County contracts.
| 5. | LICENSE GRANT | |
| 5.01 | Contractor grants to County a non-exclusive, irrevocable, and transferable license to access the Services and related documentation for an unlimited period according to the terms of this Contract. The Contractor shall act as licensor for all software, including third party software. | |
| 5.02 | County will not reverse engineer, decompile or disassemble or otherwise attempt to discern the source code of the components of the Services. | |
| 5.03 | County may use databases, services, functions and remotely-accessed gateways. The County is licensed to use data made available solely in the regular course of its business. The County may download and temporarily store portions of data to a storage device. The County may also create printouts of data for its use and for distribution to third parties. The County may, via the Services functionality, direct Contractor to transmit individual documents in electronic format to individual internet users(s). County may also make copies of the data in the course of routine backups of hard drive(s) for the purpose of recovery of hard drive contents. The County may use data cached in the County’s disk drive solely in support of its use of the Services. | |
| 5.04 | County may make and maintain archival copies of each item of Software, and each copy will contain all legends and notices and will be subject to the same conditions and restrictions as the original. County may also make copies of the Software in the course of routine backups of hard drive(s) for the purpose of recovery of hard drive contents. The County shall be able to make copies of the software to reside on its Development, Test, Training and Disaster Recovery environments and to be used for the purposes of development, testing, training and disaster recovery. | |
| 6. | OWNERSHIP | |
| 6.01 | Contractor warrants and represents to County that Contractor is the owner of the Services or otherwise has the right to grant to County the licensed rights to the Services provided by Contractor through this Contract without violating any rights of any third party, and that there is currently no actual or threatened suit by any such third party based on an alleged violation of such right by Contractor. | |
| 6.02 | Contractor shall maintain all title, copyright, and other proprietary rights in the Services. County does not acquire any rights, express or implied, in the Services, other than those specified in this Contract. | |
| 6.03 | The Services are fit for the known purposes for which sold, and are free and clear of all liens and encumbrances. This Contract does not exclude, or in any way limit, other warranties provided for in this agreement or by law. | |
| 7. | AUTHORIZED USERS | |
| 7.01 | Only individuals authorized by the County may access and use the Services. The identification number(s) of the County may be restricted from accessing certain materials otherwise available in the Services. | |
| 7.02 | “Authorized User” means an individual to whom the County assigns a password. Only County employees, temporary employees, and contractors are eligible to be Authorized Users. County agrees that each password may only be used by the Authorized User to whom it is assigned and may not be shared with or used by any other person, including other Authorized Users. County will manage its roster of Authorized Users. The County is responsible for notifying Contractor in writing of persons to whom Contractor passwords are to be issued or from whom passwords are to be revoked. The County is solely responsible for maintaining security of County passwords. The County is also responsible for all access to and use of the Services by County’s personnel or passwords. County will implement policies and procedures to prevent unauthorized use of passwords and will immediately notify Contractor, in writing, if it suspects that a password is lost, stolen, compromised, or misused. | |
| 7.03 | County certifies that on the date this Contract is signed by County there are __ users in County’s organization. Throughout the Term, County will immediately notify Contractor in writing of any change in the number of users. | |
| 8. | TERM OF CONTRACT | |
| 8.01 | The term of this Contract begins on _______ and ends three (3) years after, with one option for a two (2) year extension, which may be exercised at the discretion of the County. The Contractor must expediently perform the services to achieve the objectives of this Contract. Any work done prior to the beginning of this Contract shall be at the Contractor’s own risk. | |
| 9. | COMPENSATION | |
| 9.01 | The County agrees to pay the Contractor at the rates in Appendix ____, attached. The compensation includes all remuneration to which the Contractor may be entitled. The County will not pay the Contractor for overtime, holiday or other premium charges or other benefits in addition to those stated in Appendix B. Maximum compensation shall not exceed $__________. | |
| 9.02 | The County will pay for the proper performance of the services, commensurate with the progress of the work as evidenced by the timely performance of the services, and after it receives an invoice for payment. The invoice must certify the total cost of the services rendered to the project to date and the cost of all services for that billing period; and must describe the services rendered. If the invoice also requests reimbursement or payment for reimbursable expenses, the appropriate receipts must be attached. The Contractor must sign the invoice and send it to the County for each calendar month. This section is limited by the provisions of Section 9.01 with regard to the amounts payable for performance. | |
| 9.03 | Incorrect or incomplete invoices will be returned by the County to the Contractor for correction and reissue. The Contract number must appear on all invoices, bills of lading, packages, and correspondence relating to this Contract. | |
| 9.04 | The Contractor must direct invoices to the attention of the individual specified in the Notice provisions, Article 45. | |
| 9.05 | The Contractor must submit as part of the invoices, monthly progress reports indicating the Contractor's activities during the month and being signed by an authorized officer of the Contractor. | |
| 9.06 | Contractor shall promptly refund to County the full amount of any erroneous payment or overpayment to which Contractor is not entitled pursuant to this Contract. | |
| 9.07 | The Contractor must, upon reasonable notice, be available to participate in any proceeding, whether legal, administrative or otherwise, or in any internal County preparatory meetings for the proceeding, in order to assist the County in any matter relating to the purpose or outcome of this Contract. The County will compensate the Contractor under a separately negotiated agreement for any services rendered pursuant to this section. | |
| 10. | REAUTHORIZATION CODE REQUIRED | |
| 10.01 | If a reauthorization code must be keyed in by Contractor for the Licensed Software to remain functional upon movement to another computer system, Contractor shall provide the reauthorization code to County within one Business Day after receipt of County’s notice of its machine upgrade or movement. | |
| 11. | STANDARD OF PERFORMANCE AND ACCEPTANCE | |
| 11.01 | During Performance Testing, as defined in Appendix B, County shall conduct tests as it deems appropriate concerning whether the Services appears to be capable of being effectively utilized in County’s operating environment. | |
| 11.02 | The Performance Testing shall commence within five Business Days after access to the Services. Subject to possible extensions as indicated below, the Performance Testing shall end after 15 calendar days. | |
| 11.03 | The Performance Testing shall be extended according to the following procedures: | |
| A. | If the County determines, at its sole discretion at any time prior to the end of the Performance Testing period, that the Licensed Software appears to be deficient or unsuitable for the County’s use for any reason, then the County may, at its discretion, promptly notify Contractor, specifying in the notice the respects in which the Licensed Software is deemed to be deficient or unsuitable. | |
| B. | If the County gives such notice to Contractor during the period beginning five Business days prior to the expiration of the Performance Testing period, then the expiration of the Performance Testing shall be postponed for five Business Days to permit Contractor to evaluate and correct the reported deficiency or unsuitability, unless otherwise specified in County’s notice. | |
| 11.04 | If the County agrees to extend the Performance Testing to permit Contractor to correct deficiencies, then the Performance Testing period shall be extended by the lesser of (a) the amount of time actually taken by Contractor to deliver a corrected version, or (b) any maximum amount of time deemed reasonable by the County. | |
| 11.05 | County may (a) Accept the Services subject to the terms and conditions of this contract or (b) Reject the Services by notice to Contractor at any time during the Performance Testing period. The date, if any, on which County accepts the Services is referred to as the “Acceptance Date.” | |
| 11.07 | The warranty shall begin on the Acceptance Date. | |
| 12. | UPGRADES AND ENHANCEMENTS | |
| 12.01 | Contractor shall be required: | |
| A. | To supply at no added cost updated versions of the Services to operate on upgraded versions of operating systems; | |
| B. | To supply updated versions of the Services which encompass improvements, extensions, or other changes which Contractor, at its discretion, deems to be logical improvements or extension of the original products supplied to the County; | |
| C. | To supply interface modules which are developed by the Contractor for interfacing the Software to other Software products; and | |
| D. | At no cost to the County, modify, improve, and/or upgrade the Services consistent with those modifications, improvements and/or upgrades provided to other purchasers. | |
| 13. | MAINTENANCE AND SUPPORT SERVICES | |
| 13.01 | Contractor will assure that Services perform in material conformity with its user documentation. Contractor shall undertake such correction service shall use its best efforts to make corrections in a manner that is mutually beneficial. Contractor shall disclose all known defects and their detours or workarounds to the County. | |
| 14. | DOCUMENTATION | |
| 14.01 | Contractor shall provide documentation at the earlier of installation of the Services or within thirty calendar days after execution of this Contract or as otherwise mutually agreed, in the form of the same number of manuals as licensed users of the Services or another mutually agreed number of manuals, adequate for use of Services ordered under the sections of this Contract. Manual upgrades will be provided on a no-charge basis through the Contractor’s local sales and service office. | |
| 14.02 | For all Services furnished to the County within the scope of this Contract, the Contractor agrees that if it withdraws its support, if any, from such Services, it will immediately furnish to the County, if requested, at no additional cost, sufficient documentation to permit the County to maintain, modify or enhance such purchased Services. | |
| 14.03 | Contractor grants to the County the right to copy or otherwise reproduce manual and documentation furnished pursuant to this section, for use within the scope of this Contract at no additional charge. | |
| 15. | INSTALLATION (SITE) SECURITY | |
| 15.01 | While on the County’s premises, Contractor, its agents, employees, or Subcontractors shall conform in all respects with physical, fire, or other security regulations communicated to Contractor. | |
| 16. | USE OF COUNTY’S PROPERTY AND FACILITIES | |
| 16.01 | Any property of the County furnished to the Contractor shall be used only for the performance of this Contract. | |
| 16.02 | The Contractor shall be responsible for any loss or damage to property of the County which results from willful misconduct or negligence on the part of the Contractor or which results from the failure on the part of the Contractor to maintain and administer that property according to sound management practices to ensure that the property will be returned to the County in like condition to that in which it was furnished to the Contractor. Upon the happening of loss, or destruction of, or damage to, any County property, the Contractor shall notify the County thereof and shall take all reasonable steps to protect the property from further damage. | |
| 16.03 | The Contractor shall surrender to the county all property belonging to the County upon completion, termination, or cancellation of this contract. All reference to the Contractor under this section shall include any of its employees, agents, or Subcontractors. | |
| 17. | TRAINING | |
| 17.01 | Contractor shall provide training, by at least one qualified Contractor personnel, in the use of the Services according to Appendices A and B. The starting dates of the training will be as agreed by the parties. | |
| 18. | DATA TO BE FURNISHED CONTRACTOR | |
| 18.01 | Upon the request of the Contractor, without charge, the County must furnish copies of all information, data, reports, records, etc., that the County thinks is necessary to do the services. The Contractor is entitled to visit County offices and key facilities as approved by the County, during regular business hours to obtain the necessary data. The Contractor will schedule conferences at convenient times with key administrative personnel of the County to gather the information. | |
| 19. | PERSONNEL | |
| 19.01 | To induce the County to enter into the Contract, the Contractor represents and warrants that the Contractor is authorized to do business under the laws of the State of Michigan and is duly qualified to perform the services as set forth in the Contract. The execution of this Contract is within the Contractor’s authorized powers, and is not in contravention of federal, state, or local law. | |
| 19.02 | The Contractor warrants that all employees of the Contractor assigned to the performance of the services are qualified and authorized to perform the services under the state and local laws and governing professional association rules where the employee is employed. | |
| 19.03 | Each employee must devote the time and professional ability as is necessary to most effectively and efficiently perform the services according to professional standards. | |
| 19.04 | Whenever an employee assigned to this Contract must be replaced for any reason, the Contractor must supply an acceptable replacement as soon as possible and agrees not to substitute a lower classified employee to perform the services without obtaining prior County approval in writing. | |
| 19.05 | Employees' daily working hours may be determined by the Contractor. When the employees are working in or about a County facility, Contractor agrees to adjust its employees' daily working hours to be the same as those worked by County employees working at the facility. | |
| 20. | COUNTY CONTRACT ADMINISTRATOR | |
| 20.01 | The County shall appoint a Contract Administrator for this Contract who will provide oversight of the Services. The County Contract Administrator will manage this Contract on behalf of the County and will be the principal point of contact for the Contractor concerning Contractor’s performance under this Contract. The County shall notify Contractor, in writing, when there is a new County Contract Administrator assigned to this Contract. | |
| 21. | CONTRACTOR’S ACCOUNT MANAGER | |
| 21.01 | The Contractor shall appoint an Account Manager for the County’s account who is assigned as the primary contact person with whom the county’s Contract Administrator shall work for the duration of this Contract unless replaced, with advance county approval, by another representative. The Contractor’s Account Manager will be the principal point of contact for the county concerning the Contractor’s performance and for receipt of notes. The Contractor’s Account Manager will also serve as the focal point or business matters, support coordination, and administrative activities. | |
| 22. | ADMINISTRATION | |
| 22.01 | The Contractor must inform the County as soon as the following types of conditions become known: | |
| A. | Probable delays or adverse conditions which do or may materially prevent the meeting of the objectives of the Contract. The Contractor must accompany this disclosure with a statement of any remedial action taken or contemplated by it; and | |
| B. | Favorable developments or events which enable meeting time schedules or goals sooner than anticipated. | |
| 22.02 | The Contractor must regularly inform the County of its activities in connection with its duties and must keep the County informed of the status of any program. The Contractor is not required to perform in a manner materially in conflict with requirements imposed by any applicable law including any statute, county charter, ordinance, resolution or executive order. | |
| 22.03 | The Contractor shall have no authority in the name of the County to borrow money, commence or defend litigation, spend money, or enter into contracts except as otherwise provided in this Contract. | |
| 23. | RECORDS – ACCESS | |
| 23.01 | The Contractor must maintain complete books, ledgers, journals, accounts, or records in which it keeps all entries reflecting its operation pursuant to this Contract. The Contractor must keep the records according to generally accepted accounting practices and for a minimum of 7 years after the Contract's termination and completion. The Contractor must also maintain copies of all records, correspondence and documents, including electronically stored information, prepared in anticipation of this Contract, and for this Contract, for a period of 7 years after the Contract’s termination and completion. | |
| 23.02 | The County and the Legislator Auditor General have the right to examine and audit all books, records, documents and other supporting data as they deem necessary of the Contractor, or any subcontractors, or agents rendering services under this Contract, whether direct or indirect, which will permit adequate evaluation of the services or the cost or pricing data submitted by the Contractor. The Contractor must include a similar covenant allowing for audit by the County and the Legislative Auditor General in any contract it has with a consultant or agent whose services will be charged directly or indirectly to the County. The County may delay payment to the Contractor pending the results of any such audit without penalty or interest. | |
| 23.03 | The Contractor agrees that representatives of the County are entitled to make periodic inspections to ascertain that the Contractor is properly performing the services. The inspections may be made at any time during normal business hours of the Contractor. If, in the course of the inspections, the representatives of the County should note any deficiencies in the performance of the services of the Contractor, or any other mutually agreed upon performance deficiencies, the alleged deficiencies must be reported promptly to the Contractor, in writing. The Contractor agrees to promptly remedy and correct any reported deficiencies within 10 days of notification by the County. | |
| 23.04 | If, as a result of any audit conducted by or for a County, State of Michigan or Federal, agency relating to the Contractor's performance under this Contract, a discrepancy should arise as to the amount of compensation due the Contractor, the County may retain the amount of compensation in question from any funds allocated to the Contractor but not yet disbursed under the Contract. Should a deficiency still exist, the County may offset such a deficiency against the compensation to be paid the Contractor in any successive or future Contracts between the parties. | |
| 24. | CONFIDENTIAL INFORMATION | |
| 24.01 | The County may disclose to the Contractor written material or oral or other information that the County treats as confidential (“Confidential Information”). Title to the confidential information and all related materials and documentation will remain the County. The Contractor must treat such confidential information as secret if it is so marked, identified as such, or when, by its very nature, it deals with matters that, if generally known, would be damaging to the best interests of the public, other contractors or potential contractors with the County, or individuals or organizations about whom the County keeps information. Confidential Information does not include information that rightly becomes public, or that the receiving party otherwise knows or receives without obligation of confidence. | |
| 24.02 | Confidential information includes, but is not limited to, social security numbers, birthdates, drivers license numbers, proprietary software and documentation (including drafts and associated materials delivered to County in the course of providing the services), materials, flow charts, codes, software, computer instructions, techniques, models, information, diagrams, know-how, trade secrets, data, business records, marketing information, police and investigative records, files containing personal information about individuals, clients, subcontractors, or employees of the County such as medical records, patient data and records, strategic business plans, information that impacts the County’s competitive advantage or strategy (actual or contemplated), claims records, court administrative records related to pending actions, any material to which an attorney-client, physician-patient, or similar privilege may apply, and any documents or records expressly excluded by law from public records disclosure requirements including confidential client-identifying information. | |
| 24.03 | Each party’s employees, contractors, subcontractors, agents, and assignees shall not disclose confidential information, unless in conformity with this contract and only to those employees, contractors, subcontractors, agents, and assignees with a reasonable need to know the information. Each party shall protect the confidential information from disclosure with reasonable diligence, including the execution of non-disclosure agreements, if necessary. | |
| 24.04 | For an indefinite period after Contractor’s or County’s Confidential Information (“disclosing party”) is disclosed to the other party (“receiving party”), the receiving party shall hold the disclosing party’s Confidential Information in trust and confidence and shall not use any Confidential Information other than for the benefit of the disclosing party. The Contractor will disclose County’s Confidential Information only to those persons whose services the Contractor uses in its performance of this Contract and who agree to be bound to County to the same extent as the Contractor. Upon request of County, at the time of completion of services, Contractor will return or destroy all copies of County’s Confidential Information then in the possession of Contractor. The Contractor may list the County of Wayne as a client in the Contractor’s marketing materials. | |
| 25. | RELATIONSHIP OF PARTIES | |
| 25.01 | The relationship of the Contractor to the County is and will continue to be that of an independent contractor. No liability or benefits, such as workers' compensation, pension rights, or insurance rights, arising out of, or related to a contract for hire or employer/employee relationship, accrues to either party or either party's agent, subcontractor or employee as a result of this Contract. No relationship, other than that of independent contractor will be implied between the parties, or either party's agent, employee, or subcontractor. The Contractor agrees to hold the County harmless from any claims, and any related costs or expenses. | |
| 25.02 | For all purposes, County employees will remain employees of the County and the Contractor’s employees will remain employees of the Contractor. The Contractor is being retained by the County as an independent contractor to provide services to the County, and is not being retained in any capacity as a joint enterprise or venturer with the County. The Contractor also covenants that none of its employees are or will be, during the period of this Contract, employees of the County. | |
| 26. | COMMITMENTS, WARRANTIES, AND REPRESENTATIONS | |
| 26.01 | Any written commitment by the Contractor within the scope of this Contract shall be binding upon the Contractor. Failure of the Contractor to fulfill such a commitment may constitute breach and shall render the Contractor liable for liquidated or other damages due the County under the terms of this Contract. | |
| 26.02 | For purposes of this Contract, a commitment by the Contractor, which must be in writing, includes: | |
| A. | Prices, discounts, and options committed to remain in force over a specified period of time; | |
| B. | Any warranty or representation made by the Contractor in a proposal as to Software performance or any other physical, design, or functional characteristics of a machine, Software package, system, training, Services, or other products within the scope of this Contract; | |
| C. | Any warranty or representation made by the Contractor concerning the characteristics or items above, contained in any literature, descriptions, drawings or specifications accompanying or referred to in a proposal; | |
| D. | Any modification of or affirmation of representation as to the above which is made by Contractor in writing during the course of negotiation whether or not incorporated into a formal amendment to the proposal in question; and | |
| E. | Any representation by the Contractor in a proposal, supporting documents or subsequent negotiations as to training to be provided, Services to be performed, prices and options committed to remain in force over a fixed period of time or any other similar matter regardless of the fact that the duration of such commitment may exceed the duration of this Contract. | |
| 26.03 | Specifications are listed and described in Appendices A and B attached and made a part hereof, as though completely set forth. Contractor warrants that products delivered shall perform according to these specifications, the Licensed Standard Software, Services, custom software or third party products or services. | |
| 27. | PHYSICAL MEDIA WARRANTY | |
| 27.01 | Contractor warrants to County that each licensed copy, if any, of the Software or any database provided by Contractor is and will be free from physical defects in the media that tangibly embodies the copy (the “Physical Media Warranty”). The Physical Media Warranty does not apply to defects discovered more than ninety calendar days after the date of Acceptance of the software copy by the County. | |
| 27.02 | County shall be entitled to replacement by Contractor, at Contractor’s expense, including shipping and handling costs, of any Software copy provided by Contractor that does not comply with this warranty. | |
| 28. | NO SURREPTITIOUS CODE WARRANTY | |
| 28.01 Contractor represents and warrants that it will use commercially reasonable virus protection designed to protect against computer virus, Trojan horse, worm, malware, ransomware, time bomb, or other similar code or component designed to disable, damage or disrupt the operation of, permit unauthorized access to, erase, destroy or modify, or render inoperable or inaccessible, any software, hardware, network or other technology. | ||
| 28.02 | Contractor warrants to County the Service shall not contain or will contain any Self-Help Code nor any Unauthorized Code as defined below. | |
| 28.03 | As used in this Contract, “Self-Help Code” means any back door, time bomb, drop dead device, or other Software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than a licensee of the Software. Self-Help Code does not include Software routines in a computer program, if any, designed to permit an owner of the computer program (or other person acting by authority of the owner) to obtain access to a licensee’s computer system(s) (e.g. remote access via modem) for purposes of maintenance or technical support. | |
| 28.04 | As used in this Contract, “Unauthorized Code” means any virus, Trojan horse, worm or other Software routines or components designed to permit unauthorized access to disable, erase, or otherwise harm Software, or data; or to perform any other such actions. | |
| 28.05 | Contractor will defend County against any claim, and indemnify County against any loss or expense arising out of any breach of the No Surreptitious Code Warranty. | |
| 29. | COMPLIANCE WITH STANDARDS | |
| 29.01 | Contractor represents that all Services and elements, including documentation and source code, shall meet and be maintained by Contractor to conform to applicable industry standards, specifications and any samples. Contractor warrants and guarantees that the Services shall operate 99.9999% of the time. The Contractor shall maintain records documenting the time that the Services are non-operational. If the Contractor cannot provide the Services at an uptime level of 99.999%, Contractor shall issue the County a credit that is equal to 1/30 of the monthly charges for each minute that the Services are not available for use. | |
| 30. | INSURANCE |
30.01 Contractor shall procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services by the Contractor, its agents, representatives, or employees.
| 30.02 | Contractor shall maintain at least the following minimum coverage: | |
| A. | Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Contract or the general aggregate limit shall be twice the required occurrence limit. | |
| B. | Umbrella or Excess Liability Policy in an amount not less than $5,000,000. Umbrella or Excess policy wording shall be at least as broad as the primary or underlying policy(ies) and shall apply both to the Contractor’s general liability and to its automobile liability insurance and shall be written on an occurrence basis. The County, officials, employees and others as may be specified in any "Special Conditions” shall be named as an additional insured under this policy. | |
| C. | Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000 per accident for bodily injury and property damage. | |
| D. | Workers’ Compensation insurance as required by the State of Michigan, with Statutory Limits, and Employer’s Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. | |
| E. | Professional Liability (Errors and Omissions) Insurance, if applicable, appropriate to the Contractor’s profession, with limits no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. | |
| F. | Privacy and Security Liability (Cyber Liability) Insurance, if applicable, appropriate to the Contractor’s profession, with limits no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. Contractor must have their policy: (1) endorsed to add “the County, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds; and (2) cover information security and privacy liability, privacy notification costs, regulatory defense and penalties, and website media content liability. | |
| 30.03 | Additional Insured Status. The County, its officers, officials, employees, volunteers, and others as may be specified in any "Special Conditions” shall be additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used). | |
| 30.04 | Primary Coverage. For any claims related to this Contract, the Contractor’s insurance coverage shall be primary insurance as respects the County, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the County, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. | |
| 30.05 | Notice of Cancellation. Contractor shall endeavor to provide 30 days’ written notice of cancelation to the County. | |
| 30.06 | Waiver of Subrogation. Contractor grants to the County a waiver of any right to subrogation which any insurer of the Contractor may acquire against the County by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the County has received a waiver of subrogation endorsement from the insurer. | |
| 30.07 | Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to the County. The County may require the Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. | |
| 30.08 | All insurance must be effected under valid and enforceable policies, issued by recognized, responsible insurers qualified to conduct business in Michigan which are well-rated by national rating organizations. All companies providing the coverage required shall be licensed or approved by the Insurance Bureau of the State of Michigan and shall have a policyholder’s service rating no lower than A-VII as listed in A.M. Best’s Key Rating guide, current edition or interim report. | |
| 30.09 | Claims-made Policies. If any of the required policies provide coverage on a claims-made basis: | |
| A. | The Retroactive Date must be shown and must be before the date of the Contract or the date the Contractor starts to perform the services. | |
| B. | Insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of the Contract. | |
| C. | If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract effective date, the Contractor must purchase “extended reporting” coverage. | |
| 30.10 | Verification of Coverage. Contractor shall furnish the County with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this Article. The County shall receive and approve all certificates and endorsements before the Contractor begins providing services. Failure to obtain the required documents prior to commencement of services shall not waive the Contractor's obligation to provide them. | |
| 30.11 | Subcontractors. Contractor shall require and verify that all subcontractors maintain insurance satisfying all the stated requirements, and Contractor shall ensure that the County is an additional insured on insurance required from subcontractors. | |
| 30.12 | Special Risks or Circumstances. The County reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. | |
| 30.13 | The Contractor must submit certificates evidencing the insurance to the Risk Management Division at the time the Contractor executes the Contract. | |
| 31. | INDEMNIFICATION | |
| 31.01 | Except for claims arising from the County's gross negligence, the Contractor agrees to indemnify, defend and save harmless the County against, and from any and all liabilities, obligations, damages, penalties, claims, costs, charges and expenses (including, without limitation, fees and expenses of attorneys, expert witnesses and other consultants) which may be imposed upon, incurred by or asserted against the County because of any of the following occurring during the term of this Contract: | |
| A. | Any negligent or tortious act, error, or omission held in a court of competent jurisdiction to be attributable, in whole or in part to the Contractor, or any of its personnel, employees, consultants, agents, or any entities associated, affiliated, (directly or indirectly) or subsidiary to the Contractor now existing, or to be created, their agents and employees for whose acts any of them might be liable. | |
| B. | Any failure by the Contractor, or any of its employees to perform its obligations either implied or expressed under this Contract. | |
| 31.02 | The Contractor agrees that it is its responsibility and not the responsibility of the County to safeguard the property and materials that the employees of the Contractor use in performing this Contract. The Contractor must hold the County harmless for costs and expenses resulting from any loss of the property and materials used by its employees pursuant to the performance of the Contractor under this Contract. | |
| 31.03 | Nothing in this article shall be deemed to relieve the Contractor of its duty to defend the County, as specified, pending a determination of the respective liabilities of the Contractor and the County, by legal proceeding or agreement. The County shall cooperate with the Contractor in the defense against the suit. In no event shall the Contractor make any admission of guilt or liability on behalf of the County without the County’s prior, written consent. | |
| 31.04 | For purposes of these provisions, the term "County" includes the County of Wayne and all other associated, affiliated, or subsidiary departments or divisions now existing or to be created, their agents and employees. | |
| 31.05 | This indemnity applies without regards to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. This indemnity survives delivery and acceptance of services. | |
| 31.06 | This indemnity must not be construed as a waiver of any governmental immunity the County, its agencies, or employees, has as provided by statute or modified by court decisions. | |
| 32. | INTELLECTUAL PROPERTY INDEMNIFICATION | |
| 32.01 | Contractor will, at its expense, save the County harmless, and defend or settle any claim against the County that Software, or work products supplied infringe any patent, copyright, utility model, industrial design, mask work, or trademark. Contractor will pay resulting costs, damages, and attorneys’ fees finally awarded provided that County: | |
| A. | Promptly notify Contractor in writing of the claim; and | |
| B. | Cooperates with and agrees to use its best efforts to encourage the Office of the Corporation Counsel for the County to grant Contractor sole control of the defense and all related settlement negotiations. | |
| 32.02 | Contractor will pay all costs of such defense and settlement and any costs and damages |
awarded by a court or incurred by County, except costs paid to the Office of Corporation Counsel as legal fees. If such claim has occurred, or in Contractor’s opinion is likely to occur, County agrees to permit Contractor at its option and expense, either to procure for County the right to continue using the Software or to replace or modify the same so that they become non-infringing and functionally equivalent. If use of the Software is enjoined by a court and the Contractor determines that none of these alternatives is reasonably available, Contractor, at its risk and expense, will take back the Software and pay the cost to secure comparable software, including installation costs. If the Software has been installed less than one year, transportation to the initial installation site paid by County shall be refunded by Contractor.
| 32.03 | Contractor has no liability for any claim of infringement arising from: | |||
| A. | Contractor’s compliance with any designs, specifications, or instructions of the County; | |||
| B. | Modification of the Software or by County or a third party without the prior knowledge and approval of Contractor; or | |||
| C. | Use of the Software in a way not specified by Contractor; unless the claim arose against contractor’s Software or Services independently of any of these specified actions. | |||
| 33. | LIQUIDATED DAMAGES | |||
| 33.01 | Any delay by the Contractor in meeting the Delivery Date and Acceptance Date set forth in this Contract will interfere with the proper implementation of the County’s programs to the loss and damage of the County. As it would be impracticable to fix the actual damage sustained in the event of any such failure(s) to perform, the County and the Contractor, therefore, agree that in the event of any such failure(s) to perform, the amount of damage which will be sustained will be the amount set forth in the following section and the parties agree that the Contractor shall pay such amounts as liquidated damages and not as a penalty. | |||
| 33.02 | If Contractor does not have the Services installed by the date agreed upon between the County and Contractor, then Contractor shall provide a revised installation date. Contractor shall pay to the County as fixed and agreed liquidated damages, in lieu of all other damages due to such delay, for each calendar day between the specified installation date and the date that Contractor actually installs the Services, an amount of $500 per day. If the revised installation date is more than fifteen calendar days from the original installation date, then by written notice to the Contractor the County may immediately terminate the right of Contractor to install the Services and the County may obtain substitute Services from another Contractor. In this event, the Contractor shall be liable for fixed and agreed liquidated damages, in lieu of all other damages due to such delay, in the amount specified above, until substitute Services are installed, or a maximum of thirty calendar days from the original installation date, whichever occurs first. | |||
| 33.03. | If Contractor’s maintenance personnel fail to arrive at the County’s installation site within sixty minutes after notification by the County that maintenance is required, or if the Contractor fails to respond to a request for assistance within 60 minutes, the Contractor shall pay to the County as fixed and agreed liquidated damages, in lieu of all other damages due to such non-responsiveness, for each hour between the agreed response time and the actual response time an amount of five hundred dollars per hour for each “late” hour or part (prorated) beginning with the time of notification by the county and ending with the time that Contractor’s maintenance personnel arrive at the County’s site. | |||
| 34. | LIMITATION OF LIABILITY | |||
| 34.01 | Neither the Contractor nor the County shall be liable for damages arising from causes beyond the reasonable control and without the fault or negligence of either the Contractor or the County. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of a governmental body other than County acting in either its sovereign or contractual capacity, war, explosions, fires, floods, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the delays must be beyond the reasonable control and without fault or negligence of the Contractor, the County or their respective Subcontractors and directly affect the Services in this Contract. | |||
| 34.02 Each party’s or any of its third party providers’ entire liability in any calendar year for damages arising out of or in connection with the Contract, including for negligence, will not exceed the amount payable in the prior 12 months for the service that is the subject of the claim for damages (or, if the claim is made within the first 12 months, 12 times the average of the monthly charges paid). | ||||
| 35. | FAILURE TO PERFORM |
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