HomeMy WebLinkAboutRes.3121.11-06-2017 BILL NO. 17-165 RESOLUTION NO. 3/2/
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE AN AGREEMENT WITH HERAFLUX
TECHNOLOGIES, FOR SQL SERVER SERVICES FOR
AVOLVE PROJECTDOX, IN THE CITY OF CAPE
GIRARDEAU, MISSOURI
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS:
ARTICLE 1 . The City Manager, for and on behalf of the City
of Cape Girardeau, Missouri, is hereby authorized to execute an
Agreement with Heraflux Technologies, for SQL Server Services
for Avolve ProjectDox, in the City of Cape Girardeau, Missouri.
The Agreement shall be in substantially the form attached hereto
as Exhibit "A", which document is hereby approved by the City
Council, and incorporated herein by reference, with such changes
therein as shall be approved by the officers of the City
executing the same.
PASSED AND ADOPTED THIS 1 DAY OF n0610017 .
Harry E. Rediger, Mayor
ATTEST:
It 5 Ct.\
Bruce Taylo - Deputy City Clerk ` ''KTRE &NyON c`°AIL
HER
Aft U X MASTER SERVICES AGREEMENT
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This Master Services Agreement("Agreement") is made as of this 16th day of October. 2017 (the "Effective Date"),by
and between 180overE, LLC doing business as Heraflux Technologies ("Heraflux"), a Nebraska Limited Liability company,
and City of Cape Girardeau ("Client"). Hereinafter, Heraflux and Client may be referred to individually as a Party or
collectively as the Parties.
Whereas, Heraflux is in the business of providing certain computer hardware and software consulting services as more
fully described below, and
Whereas, Client desires to engage Heraflux, and Heraflux desires to be engaged by Client, to render such services upon
the terms and subject to the conditions as set forth in this Agreement;
NOW,THEREFORE, in consideration of the promises set forth below, and for other good and valuable consideration,the
receipt and sufficiency of which is hereby acknowledged,the Parties agree as follows:
1.Services: Heraflux agrees to perform the computer hardware and software consulting services for Client as Client may
authorize from time to time, as specified in one or more Statements of Work executed by the Parties pursuant to this
Agreement("Services") in the manner specified in this Agreement. Heraflux shall not be obliged to provide Services until
a Statement of Work has been executed by both Parties in accordance with this Agreement, and where applicable,
Heraflux has received any down payment amount agreed to in such Statement of Work. Each Statement of Work is hereby
incorporated into this Agreement by this reference. An initial Statement of Work will be executed by the Parties
concurrently with the execution of this Agreement. Any Statements of Work shall be initially generated by Heraflux,and
shall become effective when signed by both Parties.
2.Statements of Work: Each Statement of Work shall include the following:
a. Services, functions, equipment, software, facilities, personnel and other materials, documentation and
resources to be provided by each Party;
b. Requirements and specifications for any work product to be developed by Heraflux and delivered to Client
("Deliverables");
c. Estimated delivery date for the Deliverables; and
d. Fees payable to Heraflux for the Services and Deliverables, along with a fee payment schedule. Any amounts
designated as estimates of fees and costs are simply reasonable estimates and not a fixed amount. If Client
establishes a maximum funding amount in a Statement of Work, such maximum shall not be exceeded absent
written consent of Client. A Statement of Work shall be activated under this Agreement when signed by both
Parties to this Agreement.
To the extent there is a conflict between the terms and conditions of a Statement of Work and the terms and conditions
of this Agreement,the terms and conditions of the Statement of Work that specifically state they take precedence over
the terms of this Agreement shall govern and control unless otherwise specified in the Statement of Work.
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3. Change Procedures: Unless otherwise stated in an applicable Statement of Work, changes to the Parties' respective
obligations under a Statement of Work shall be made as set forth in this Section 3. Client may request changes to a
Statement of Work by providing Heraflux with a written request for changes (a "Change Request") that specifies the
desired change with at least the same degree of specificity as contained in the original Statement of Work. Following
Heraflux's receipt of a Change Request, Heraflux shall submit to Client a written response which will outline the tasks to
be performed by each Party,schedule and cost changes,and any other items applicable to the Change Request(a"Change
Response"). If, within five (5) business days after Heraflux's delivery of such Change Response to Client, Client provides
Heraflux with written notice of acceptance of the Change response, the Change response will amend and become a part
of the applicable Statement of Work. In the event of a conflict among the terms and conditions of the Change Response
and the applicable Statement of Work, the terms and conditions of the accepted Change response shall govern and
control. If Client fails to provide with written notice of acceptance of the Change Response within said five (5) business
day period, the Change Response will be deemed rejected by Client and the original Statement of Work shall remain in
full force and effect.
4.Cooperation: The Parties acknowledge that successful informed cooperation between the Parties is necessary for each
Party to fulfill the terms of this Agreement. Client agrees to designate a Project Manager for each Statement of Work.
The name of the Client's Project Manager shall be set forth in the applicable Statement of Work. In the event that Heraflux
believes the Project Manager lacks relevant knowledge, skills or experience such that Heraflux is negatively impacted in
its ability to deliver Services pursuant to this Agreement, Heraflux shall notify Client, and upon receipt of such notice or as
soon as reasonable practical thereafter, Heraflux and Client shall mutually determine the best course of action to take to
resolve such negative impact, which may include replacing such Project Manager. In the event that (i) the applicable
Statement of Work requires Client to provide to Heraflux certain information, data or materials necessary for Heraflux to
provide the Services and/or Deliverables, (ii) Heraflux's performance is dependent upon its timely receipt from Client of
such information, data or materials, (iii) Client, no cause of Heraflux, is unable or fails to provide to Heraflux such
information,data,or materials in a timely manner within the due dates set forth in the applicable Statement of Work,and
(iv) such inability and/or failure by Client causes Heraflux's subsequent inability and/or failure to perform its obligations
under the applicable Statement of Work, Heraflux shall be entitled to delay such performance obligations for a number of
days equal to the number of days during which Client is unable and/or fails to provide to Heraflux such information,data,
or materials.
5. Consultant Personnel: Client acknowledges and agrees that Heraflux shall have the right, in its sole discretion, to
remove or reassign Heraflux employees, agents, consultants or subcontractors who are assigned to provide the Services
hereunder. Heraflux agrees to notify Client before removal or reassignment if such notice is reasonably possible. In the
event Client believes that any of Heraflux's employees, agents, consultants or subcontractors are failing to perform the
Services in a satisfactory manner,Client shall notify Heraflux as to the reasons for such failure. Upon receipt of such notice
or as soon as reasonably practical thereafter, Heraflux and Client shall mutually determine the best course of action to
take to resolve such failure,which action may include replacing such personnel.
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6. Payment: In consideration for the Services, Client shall timely pay to Heraflux the fees described in the applicable
Statement(s) of Work, along with any reimbursable expenses incurred,unless otherwise required as described herein. All
fees payable hereunder are exclusive of sales, use, value-added, excise and other similar taxes, which shall be paid by
Heraflux, including Heraflux's franchise tax and taxes based on Heraflux's net income. Client shall pay Heraflux's expenses
for performing the Services under this Agreement, including but not limited to travel and lodging expense, long distance
calls, and costs of materials and supplies, as specified in the Statement of Work. Upon Client's written request, Heraflux
shall furnish sufficient documentation to verify reimbursable expenses. Unless otherwise stated in the applicable
Statement of Work, Heraflux shall furnish Client a once-monthly invoice,describing the Services rendered,stating the fees
due and itemizing reimbursable expense incurred by Heraflux. If a Statement of Work calls for a Services Down Payment,
Client will be invoiced immediately for such Services Down Payment. All invoiced amounts become due and payable to
Heraflux upon Client's receipt of such invoice. Amounts that are not paid within thirty(30) days of receipt of an invoice,
will incur a late fee of one and one-half percent(1.5%)per month,or the maximum interest rate allowed by law,whichever
is less. For invoices received by the twentieth (20th) day of the month, payment will be mailed by the (10th) of the next
month. Client shall pay any amounts incurred by Heraflux in the collection of past-due amounts owed, including, but not
limited to, reasonable attorney's fees and costs. In the event that any Services Down Payment, or any other amount due
to Heraflux remains unpaid thirty(30)days after such payment is due, Heraflux, in its sole discretion and without penalty,
may delay,withhold or suspend Services under this Agreement and any Statement of Work until all past-due amounts and
any late fees and costs associated with collection of such past-due payments have been paid in full to Heraflux.
7.Ownership and Grant of licenses:
a. Previously Developed Materials. All previously developed materials of Heraflux (and its employees, agents,
consultants or subcontractors) ("Previously Developed Materials")shall continue to be owned solely by Heraflux
following completion of the Services and provision of any Deliverables under this Agreement. Previously
Developed Materials shall include but not be limited to prior acquired knowledge, skill and expertise, Heraflux
proprietary information and prior developed intellectual property of Heraflux including previously developed
processes, Heraflux process documentation, system discovery scripts and code, reference materials, other
documents, designs, inventions, products, pricing costs,future plans, business information, process information,
technical information, customer lists, computer programs, computer systems, data, computer documentation,
ideas, techniques or tangible materials, all of which Heraflux shall own and have an unrestricted right to use for
other purposes. To the extent that such Heraflux Previously Developed Materials are included in the Deliverables,
Client shall have a perpetual, non-exclusive, non-transferable and non-sublicensable license to use the Previously
Developed Materials as part of the Deliverables.
b.Heraflux Information. As part of Heraflux's provision of the Services hereunder,Heraflux may utilize proprietary
works of authorship that have not been created specifically for Client, including without limitation, software,
methodologies,tools,specifications, drawings,sketches, models,samples, records and documentation, as well as
copyrights, trademarks, services marks, ideas, concepts, know-how, techniques, knowledge or data which have
been originated developed or purchased by Heraflux or by third parties under contract with Heraflux (all of the
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forgoing, collectively "Heraflux Information"). Heraflux Information and Heraflux's administrative
communications, records, files and working papers relating to the Services are and shall remain the sole and
exclusive property of Heraflux. To the extent that Heraflux Information is incorporated into the Deliverables,
Heraflux grants to Client a perpetual,worldwide, non-exclusive, non-transferable and non-sublicenseable license
to use such Heraflux Information solely in connection with Client's use of the Deliverables.
c. Deliverables. Except as otherwise provided herein or in any Statement of Work, all specified Deliverables
developed by Heraflux for Client pursuant to a Statement of Work shall be the sole property and Confidential
Information of Client. Within the meaning of the U.S. Copyright Act of 1976, all copyrightable aspects of the
Deliverables (excluding Heraflux Previously Developed Materials and Heraflux Information) shall be considered
"works made for hire" and Client shall be deemed the"author"of all such works and Heraflux expressly disclaims
any interest in any of them.
d. Client Content.Any and all data, information, reports, analysis, artwork, logos,graphics, video,text and other
materials, including without limitation, financial data supplied by Client to Heraflux in connection with this
Agreement, if any, shall remain the sole and exclusive property of Client ("Client Content").
e. Non-Exclusivity. Client acknowledges that Heraflux provides business consulting services to other clients, and
agrees, subject to Heraflux's confidentiality obligations hereunder, that nothing in this Agreement shall be
deemed or construed to prevent Heraflux from carrying on such business during the Term of this Agreement.
f.Trademarks. Heraflux shall have the right to use Client's name and trademark in its advertising, customer lists
and marketing materials, subject to Client's approval.
8.Confidential Information:
a. Definitions. A Party disclosing Confidential Information shall herein be referred to as the Disclosing Party, and
a Party receiving Confidential Information hereunder shall be referred to as the Receiving Party. Confidential
Information shall mean, without limitation, (a) any idea, proposal, plan, information, procedure, technique,
formula, technology or method of operation, any written or oral information of a_proprietary nature, and any
intellectual property owned or licensed by a Disclosing party or relating to a Disclosing Party's or any of it
principals'or affiliates' business, projects, operations,finances, activities or affairs,whether of a technical nature
or not (including trade secrets, know-how, processes, and other technical or business information), and any
proposed change thereto; and (b) any other information disclosed by a Disclosing Party and designed by a
Disclosing Party as confidential. By way of illustration, but not limitation, Confidential Information includes
information regarding all of the computer software and technologies, systems, structures, architectures,
processes, formulae, compositions, improvements, know-how, inventions, discoveries, concepts, ideas, designs,
methods and information and databases developed, acquired, owned, produced or practiced at any time by a
Disclosing Party or any affiliate thereof; customer lists, telemarketing lists, vendor lists, employee personnel
information and policies and procedures; a Disclosing Party's products and services; business or financial
information directly or indirectly related to a Disclosing Party's companies and investment; other processes and
procedures employed by a Disclosing party; and the terms and conditions of this Agreement. Confidential
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Information shall not include information (i) in the public domain (other than as a result of a breach of this
Agreement); (ii) in a Receiving Party's possession prior to its receipt from Disclosing Party pursuant to this
Agreement; (iii) independently developed by a Receiving Party or known through a party other than Disclosing
Party, which party has no duty of confidentiality to Disclosing Party, as demonstrated by written record or (iv)
disclosed pursuant to applicable law or regulation or operation of law provided that the Receiving Party may
disclose only such information as is legally required, and provided further that the Receiving Party shall, to the
extent permitted by law, provide reasonable notice to the Disclosing Party of such requirement and a reasonable
opportunity to object to such disclosure or otherwise request confidential treatment of such information upon
the court, agency or governmental department requiring such disclosure.
b. Obligations. Except as otherwise required by law, Receiving Party agrees to hold all Confidential Information in
strict confidence and shall not, without the express prior written permission of Disclosing party, (i) disclose any
Confidential Information to third parties or (ii) use the Confidential Information for any purpose other than to
perform its obligations under this Agreement and/or as expressly set forth in the applicable Statement of Work.
c.Title. Except as otherwise provided herein,title or the right to possess Confidential Information as between the
parties shall remain in Disclosing Party. Receiving Party shall not gain any interest or rights in or to the Confidential
Information by virtue of its being disclosed to Receiving Party.
d. Return of Confidential Information. Unless the Receiving Party has a license to use the Confidential Information
pursuant to this Agreement, upon any termination of this Agreement, or at any time upon Disclosing Party's
request, Receiving Party shall promptly, at Disclosing Party's option, either return or destroy all (or, if Disclosing
Party so requests, any part) of the Confidential Information previously disclosed, and all copies thereof, and
Receiving Party shall certify in writing as to its compliance with the foregoing. Each Party may retain a copy of the
other Party's Confidential Information solely for archival purposes. Receiving Party shall continue to maintain the
Confidential Information in accordance with this Agreement.
e. Injunctive Relief. The confidentiality obligations set forth in this Agreement shall survive the termination of this
Agreement and remain in full force and effect until such Confidential Information, through no act or omission of
the Receiving Party, ceases to be Confidential Information as defined thereunder. The Parties agree that, in the
event of any breach of any provision of this Section, the non-breaching Party may not have adequate remedy in
money or damages. The Parties therefore agree that, in such event,the non-breaching Party shall be entitled to
seek injunctive relief against such breaching Party in any court of competent jurisdiction,without the necessity of
posting a bond even if otherwise normally required. Such injunctive relief will in no way, limit the non-breaching
Party's right to obtain other remedies available under applicable law.
9.Warranties and Limitations of Liability:
a. Warranties of Heraflux. Heraflux represents and warrants that (i) the Services will be performed in a
professional and workmanlike manner in accordance with the standards generally prevailing in the industry; (ii)
the Services will be performed in accordance with the obligations set out in the attached Statement of Work from
Heraflux to the Client (iii) it has all the necessary rights and authority to execute and deliver this Agreement and
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perform its obligations hereunder; and (iv) neither this Agreement nor Heraflux's performance of its obligations
hereunder will place Heraflux in breach of any other contract or obligation and will not violate the rights of any
third party.
b.Warranties of Client. Client represents and warrants that (i) it has all necessary rights and authority to execute
and deliver this Agreement and perform its obligations hereunder; (ii) neither this Agreement nor Client's
performance of its obligations hereunder will place Client in breach of any other contract or obligation and will
not violate the right of any third party; (iii)Client shall use reasonable efforts to ensure that information provided
to Heraflux for purposes of Heraflux performance of the Statement of Work does not omit necessary information
for such performance and is accurate to the best of Client's knowledge. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION, EACH PARTY EXPRESSLY DISCLAIMS AND THE OTHER PARTY EXPRESSLY WAIVES ANY AND ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS EXPRESSLY SET FOR IN THIS SECTION.
HERAFLUX'S ENTIRE LIABILITY AND CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF HERAFLUX'S
WARRANTY IS HERAFLUX'S RE-PERFORMANCE OF THE SERVICES.
10. Indemnification: Client and Heraflux hereby agree to indemnify, defend and hold harmless each other and each
other's employees, principals and agents from an against any and all actual or threatened claims,actions, losses,lawsuits,
judgments,damages, liabilities,costs and expenses,including without limitation reasonable attorney's fees and expenses,
arising out of or in connection with:(a)the accuracy,validity,ownership,or truthfulness of the Client Content, in the case
of the Client, or Heraflux's Information, in the case of Heraflux, and any representations made by the other Party in any
documents(including without limitation,any prospectus or business plan);(b)the other Party's failure to comply with any
applicable law or regulation; (c)third party claims of infringement of any patents, trade secrets, copyrights, trademarks,
service marks, trade names or similar proprietary rights alleged to have occurred with respect to Client Content, in the
case of the Client, or Deliverables, in the case of Heraflux; (d)the death or bodily injury of any person,to the extent that
such death or bodily injury was caused by the other Party's gross negligence or willful misconduct; (e)the damage, loss or
destruction of real or tangible personal property,to the extent that such damage, loss or destruction was caused by the
other Party's gross negligence or willful misconduct;and (f)any damages incurred directly or by virtue of a claim made by
a third party, in either case, arising out of a breach of a Party's representations, warranties, covenants or duties arising
out of,or in connection with,this Agreement. For purposes of this Section, each Party shall be responsible for the actions
of their respective directors, employees, agents, consultants, subcontractors and client whose actions or activities are,
either directly or indirectly under or subject to the reasonable control of Heraflux or Client, as the case may be. For the
avoidance of doubt, if Heraflux is required to indemnify Client,then the term consultant as used in this Section shall not
include Heraflux, nor will any of Heraflux's actions, or the actions of the employees or agents thereof, be deemed to be
the actions of Client. Any obligation of the Client hereunder shall be subject to the liability limits for political subdivisions
set out in Section 537.610 of the Revised Statutes of Missouri and shall be payable solely from the proceeds of the Client's
liability insurance covering that occurrence.
11. Term and Termination: The term of this Agreement ("Term") shall commence upon the Effective Date and shall
continue in full effect for a period of three (3)years, unless earlier terminated by the parties pursuant to this Agreement.
This Agreement shall be terminable at will by either Party upon thirty (30) days' notice to the other Party, provided
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however,that the terms and conditions of this Agreement shall continue to govern any outstanding Statements of Work
despite such termination. The specific term and termination rights for Statements of Work shall be set forth in each
Statement of Work. The Agreement and any or all outstanding Statements of Work may be terminated upon thirty(30)
days' notice and opportunity to cure for"Cause" upon an event of default. "Cause"is defined as(i)the failure of Client to
pay any amounts when due for Services that are undisputed (provided any disputes are reasonable and in good faith)or
the failure to pay any amounts when due that Client owes to Heraflux under any other agreements, contracts, or other
arrangement or otherwise, between the Parties; (ii) any material failure by either Party to comply with or to perform any
material nonpayment provision or condition of this Agreement and the continuance of such failure for a period of thirty
(30) days after notice thereof to such Party; or (iii) either Party becomes insolvent, is unable to pay its debts when such
debts become due, or is the subject of a petition in bankruptcy, whether voluntary or involuntary, or of any other
proceeding under bankruptcy,insolvency or similar laws;or makes an assignment for the benefit of creditors;or is named
in, or its property is subject to a suit for appointment of a receiver; or is dissolved or liquidated. In the event that this
Agreement or any Statement(s)of Work are terminated by either Party pursuant to this Section, Client shall have no right
to use or exploit in any manner the Deliverables or the Heraflux Information related to such Statement(s) of Work unless
Client has paid the full fees related thereto. In the event of any termination of this Agreement, Heraflux and Client shall
promptly comply with all terms in this Agreement related to return or destruction of Confidential Information.
12. Non-Solicitation of Employees: The Parties shall not, during the term of this Agreement and for a period of twelve
months thereafter, directly or indirectly solicit,employ,offer to employ,or engage as a consultant, any employee, agent,
consultant or subcontractor of the other Party with whom the soliciting Party had personal contact and did business
pursuant to this Agreement, except to the extent that such personal contact and business is unrelated to, and not
competitive with the business, products or services of the non-soliciting Party and cannot adversely affect such Party's
volume of business. The Parties agree that,in the event of any breach this Section,the non-breaching Party will not have
an adequate remedy in money or damages. The Parties therefore agree that, in such event,the non-breaching Party shall
be entitled to obtain injunctive relief against such breaching Party in any court of competent jurisdiction, without the
necessity of posting a bond even if otherwise normally required. Such injunctive relief will in no way limit the non-
breaching Party's right to obtain other remedies and damages available under applicable law.
13. Insurance: For any work that Heraflux performs any work for Client under this Agreement, Heraflux will maintain
insurance or policies from insurance companies licensed and approved by state in which Heraflux is providing services,
including Commercial General Liability coverage with limits of$2 million per occurrence and $4 million aggregate; Errors
and Omissions coverage with limits of $1 million per occurrence and $1 million aggregate, meeting or exceeding the
minimum insurance limits set out in Section 537.610 of the Revised Statutes of Missouri; Worker's Compensation and
Employer's Liability coverage meeting statutory limits; and Excess Umbrella Liability coverage with a$1 million limit.
14. General Terms:
a. Independent Contractor: Heraflux (including any and all Heraflux employees agents, consultants or
subcontractors),in performance of this Agreement,is acting as an independent contractor and not as an employee
or agent of Client. Heraflux shall have exclusive control over the manner and means of performing its obligations
under this Agreement. Each Party shall be solely responsible for the supervision,daily direction and control of its
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employees, and payment of their salaries (including withholding of appropriate payroll taxes), workers'
compensation, disability, health insurance, and other benefits. Nothing in this Agreement shall be construed as
making either Party the agent of the other Party, as granting to the other Party the right to enter into any contract
on behalf of the other Party, or as establishing a partnership, franchise or joint venture between the parties.
Under no circumstances shall the employees of one Party be deemed to be employees of the other Party for any
purpose.
b. Security Rules. Each Party agrees to comply with the other Party's reasonable security rules and measures
when on the other Party's premises.
c. Force Majeure. Neither Party shall be deemed in default or otherwise liable for any delay in or failure of its
performance under this Agreement or any Statement of Work(other than payment obligations) by reason of any
Act of God, fire, natural disaster, accident, riot, acts of government,strike or labor dispute, shortage of materials
of supplies, failure of transportation or communication or of suppliers of gods or services, unusually severe
weather(including lightning strikes),failures or fluctuations in electrical power or telecommunications equipment,
accidents,or any other cause beyond the reasonable control of such Party. Performance times shall be considered
extended for a period of time equivalent to the time lost because of such delay.
d. Limitations on Liability. EXCEPT FOR THE INSURANCE REQUIRED UNDER PARAGRAPH 13 HEREIN, REGARDLESS
OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER IN CONTRACT, TORT, STRICT LIABILITY OR CAUSE OF ACTIONS OF ANY NATURE
FOR ANY INDIRECT,SPECIAL, INCIDENTAL, PUNITIVE,CONSEQUENTIAL OR RELIANCE,LOSS,DAMAGE OR EXPENSE,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF USE OR REVENUES, WHETHER OR NOT EITHER
PARTY WAS ADVISED, SHOULD HAVE KNOWN OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR
EXPENSE ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF SUCH PARTY RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT INCLUDING WITHOUT LIMITATION THE SERVICES, DELIVERABLES AND
PRODUCT OR ANY PART THEREOF,IN THE CASE OF HERAFLUX,OR THE CLIENT CONTENT,CLIENTS PRODUCTS AND
SERVICES, OR ANY PART THEREOF, IN THE CASE OF CLIENT. Heraflux's total liability for all claims made under this
Agreement-shall not under any circumstances exceed the sum total of the fees paid by Client to Heraflux under
this Agreement for the Services within the twelve (12) months immediately preceding a demand for payment of
damages from Client to Heraflux. The obligations of the Parties under this Agreement run only to each other and
not to any other persons or entities. Notwithstanding any other terms and conditions of this Agreement,neither
Party makes any representation or warranty as to any third party information or products provided to each other,
all of which are provided, sold or licenses "as is," and the Parties agree to look solely to the warranties and
remedies, if any, provided by the third party The limitations in this Section do not apply to the indemnification
obligations of the Parties for third-party claims as set forth in this Agreement. No action arising out of breach of
this Agreement or transactions related to this Agreement may be brought by either Party more than one(1)year
after the cause of action accrued, regardless of the form of the action. Both Parties understand and agree that
the limitations and exclusions set forth herein represent the Parties' agreement as to the allocation of risk
between the Parties in connection with their respective obligations under this Agreement. The fees payable to
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and charged by Heraflux hereunder reflect, and are set in reliance upon,the allocation of risk and exclusions and
limitations of liability set forth in this Agreement.
f.Governing Law;Entire Agreement;Modification. This Agreement and each Statement of Work shall be governed
by and construed in accordance with the laws of the State of Missouri, without regard to its conflict of laws
provisions. The exclusive jurisdiction and venue for all legal actions arising out of or related to this Agreement
shall be in court of competent subject matter jurisdiction located in Cape Girardeau County, Missouri, and the
Parties hereby consent to the jurisdiction of such courts. This Agreement,together with any Statements of Work
executed pursuant hereto, constitutes the entire Agreement between the Parties with respect to the subject
matter hereof, and supersedes all previous or contemporaneous agreements, proposals, understandings and
representations, written or oral, with respect to the subject matter hereof. Neither this Agreement nor any
Statement of Work may be modified or amended except in writing signed by duly authorized representatives of
each Party. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT.
g. Notices. All notices required or permitted to be given hereunder shall be sufficient if in writing and delivered
personally or via certified mail, return receipt requested and postage prepaid, or via facsimile, email or other
electronic delivery, addressed as follows: If to Heraflux, Heraflux Technologies, ATTN: Molly Klee, Managing
Member, PO Box 745, Scarborough, ME 04070, mklee@heraflux.com; if to Client, City of Cape Girardeau, ATTN:
Anna Kangas, Building and Code Enforcement Manager, 401 Independence Street, Cape Girardeau, MO 63703,
akangas@cityofcape.org. Such notices shall be effective upon the tenth business day following mailing, if by mail;
upon receipt, if by courier; or upon confirmation of successful transmission if by facsimile, email or other
electronic delivery.
h.Severability. It is the desire and intent of Heraflux and Client that the terms and conditions of this Agreement
shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction
in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated to
be overly broad, include or unenforceable as written, it is the desire and intent of Heraflux and Client that the
court will revise-such-provision as it deems necessary to make it consistent with the law and public policy of the
jurisdiction and governing law and enforce the provision as so revised. In particular,if any one or more provisions
contained in this Agreement shall for any reason be adjudicated to be excessively broad as to duration,geographic
scope, activity or subject matter, it is the desire and intent of Heraflux and Client that the court shall modify such
provisions to reduce their breadth to whatever extend and in whatever manner it deems necessary to render
them reasonable and enforceable to the maximum extent compatible with applicable law. In the event that any
one or more of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect,the
validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected.
i.Survival. In the event of any termination of this Agreement,the parties agree that Sections 6,7, 8,9, 10, 11, 12
and 14 a, b, e, f, h, I and m, shall each survive such termination. In addition, certain items in the Statement of
Work shall also survive the termination of the Agreement as specified therein. In addition,the Parties agree that
certain terms and conditions may, by their nature,survive any termination of this Agreement.
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v7revised 2017.07.28 [Confidential)
H E R ArL U X MASTER SERVICES AGREEMENT
TECHNOLOGIES '
j.Waiver. No failure or delay by either Party in exercising any right,power or privilege under this Agreement shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise
of any right, power or privilege hereunder.
k.Assignment. The Parties shall not assign their rights,duties or obligations under this Agreement, in whole or in
part, without the prior written consent of the other Party; provided, however, that either Party may assign their
rights and/or obligations hereunder to any of its affiliated entities or successors-in-interest. This Agreement will
be binding upon the Parties' respective successors and assigns.
I. Conflict. The terms and conditions of this Agreement, including all Statements of Work executed pursuant
hereto, shall prevail notwithstanding any different or additional terms and conditions of any purchase order or
other form for purchase of payment submitted by Client to Heraflux,all of which are hereby rejected. In the event
that Heraflux is providing services as a subcontractor and there is any conflict of terms as between this Agreement
and provisions of any agreement between Client and its customer, this Agreement shall control as between
Heraflux and Client and Client shall assume all responsibility for its relationship and any differing terms with its
customer.
m. Headings. The section and other headings contained in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.
n.Counterparts. This Agreement may be executed on separate counterparts,any one of which need not contain
signatures of more than one Party, but all of which when taken together shall constitute one and the same
agreement. A signature on a copy of this Agreement received by either Party by facsimile or PDF is binding upon
the other Party as an original. The Parties shall treat a photocopy of such facsimile or PDF as a duplicate original.
IN WITNESS WHEREOF, the Parties to this Agreement have caused it to be duly executed by their respective duly
authorized representatives.
Client: City of Cape Girardeau 180overE, LLC
a Nebraska Limited Liability Company d/b/a Heraflux
Technologies
Signature:0@kettle° Signature:%%Y ,
Name: Name: /i/�
dly kite_
Title: Project Manager Title: Ca- Mom Mei«b /
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v7revised 2017.07.28 [Confidential]
H E R ArL U X MASTER SERVICES AGREEMENT
TE CHNOL _ = IES `
Telephone: Telephone:
C)f 9731 (9321— gCO-4211-867Z exp 102-
Date: Date:
Il .2. 1O'l
‘1111X
Client: City of Cape Girardeau
Signature:
Name:
Title: Development Services Director
Telephone:
Date:
Client: City o pe irardeau
Signature:
Nam .
Sir A. n,t.r
Title:City Manager
Telephone: ,I
Date: I f l H I 1-
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v7revised 2017.07.23 [Confident/Li/1
HER ^ L U v STATEMENT OF WORK:
SQL Server
Services for Avolve ProjectDox
TECHi-. OL QGIES
Client Name: City of Cape Girardeau
Statement of Work(SOW)number: 1328
Project Name: SQL Server Services for Avolve ProjectDox
Engagement Duration: 128 non-consecutive hours
Effective Date: October 16, 2017
Begin Date: October 25, 2017
End Date(estimated): September 30, 2018
This Statement of Work("SOW") is in accordance with and is hereby made a schedule to,incorporated in and made a part
of that certain Master Services Agreement between 180overE LLC, doing business as Heraflux Technologies ("Heraflux")
and City of Cape Girardeau("Client")with an Effective Date of October 16,2017(the"Agreement"),and shall incorporate
any Exhibits expressly attached hereto. All terms used and not otherwise defined herein shall have the meaning given
such terms in the Agreement.
In consideration of the mutual agreements and covenants set forth below and in the Agreement, the Parties agree that
Heraflux shall perform for Client the Services described in this SOW(the"Project")and Client agrees to pay for the Project
at the rates and times described in this SOW.
This SOW is intended to supplement the Agreement and is subject in all respects to the terms of the Agreement. In the
event of any direct conflict between the terms of this SOW and the Agreement,the terms of this SOW will govern. In the
event of any conflict between(i)the terms and conditions of this SOW and/or the Agreement and (ii)any master services
agreement,statements of work,or any other similar agreement between Client and any other customer or client of Client,
excluding Heraflux (collectively, "Client Customer Agreement"), theParties expressly agree that the terms of this SOW
and the Agreement shall govern. As specified in the Master Services Agreement, Client and Heraflux shall indemnify,
defend,and hold harmless each other against any and all actual or threatened claims,actions,losses,lawsuits,judgments,
damages, liabilities,costs and expenses,including without limitation reasonable attorney's fees and expenses,arising out
of or in connection with any differences between (i) this SOW and/or the Agreement and (ii) the Client Customer
Agreements.
1. Description of the Project •
a. Project Name. SQL Server Services for Avolve ProjectDox
b. General Description of Client's business and Client's challenges it seeks to resolve by this SOW. Client is the city
government for Cape Girardeau in Cape Girardeau county and Scott county in the U.S.state of Missouri. Client is
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oft
STATEMENT OF WORK:
HE R rt LUX SQL Server Services for Avolve ProjectDox
T E C H F: 0 L C C I E S '
implementing Avolve Software's ProjectDox application and associated SQL Server database, but does not have a
full-time DBA on staff. There is a need for SQL Server services assistance with the initial database implementation
for the ProjectDox application, and also monthly services to support the database.
c.General Description of Heraflux Project to address Client's challenges for this SOW. Heraflux engaged to do the
SQL Server installation including the applying patches, setup of SSRS, and configuring the database for routine
backups and maintenance operations. Also, to provide monthly SQL Server services to ensure database
availability, security, and efficiency such as running maintenance plans, performance tuning, applying database
updates, and other best practice operational DBA services as further described herein.
d. General Description of specific exclusions from the scope of work to be provided. Heraflux will only provide
the Services and Deliverables described in this SOW; application development, functional regression testing,
security audits, and 24x7 technical support are not included.
e. General Terms. Client shall provide Heraflux with the ability to Client access systems on an as-needed basis,
permit the capture of performance metrics, and permit Heraflux to run benchmark and performance tools on
Client's systems. Client will perform the implementation activities, with Heraflux providing leadership,
architectural guidance and mentoring. Client will provide an optionforremote access, including VPN or other
alternative, if remote access for Heraflux is requested by Client. Client will provide the software, hardware, and
all associated licenses required. Heraflux will not store any confidential Client data on any non-Client provided
equipment. Client's IT personnel will work with Heraflux to enable Heraflux to provide the Services in this SOW.
Heraflux proposed hours are for regular business hours, and any evening or weekend must be pre-approved with
advance notice,by Heraflux. Heraflux may utilize multiple Consultants for services delivery. In addition, Heraflux's
knowledge transfer and mentoring are specific to the project requirements, and are not a substitute for formal
classroom education on VMware, Microsoft SQL Server, or other technologies. Time frames in this proposal, as
well as Client's expectations from the engagement are contingent upon Client personnel already have said formal
classroom training and/or equivalent experience.
2.Services
a.Specific Description of the Services. Heraflux will provide the following to Client under this SOW:
SQL Server Installation Services(Estimated at 8 hours)
• Install and configure SQL Server on the host hardware and configure SQL Server VMs
• Ensure all SQL Server updates and service packs are current
• Ensure SSRS has been installed and configured for Avolve specifications
• Ensure port configuration is correct to allow access to SQL Server database and SSRS from other
servers in environment
• Setup account permissions for SQL Services login account
• Establish any required scheduled backups and routine maintenance tasks of the database
• Draft and deliver SQL Server build guide for Client's runbooks and future reference
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H E R R;L U XSTATEMENT OF WORK:
SQL Server Services for Avolve ProjectDox
T E C H F: O L 3 G i E S "
SQL Server Maintenance One-Year(Estimated at 10 hours per month)
• One year of monthly SQL Server database operational services
• Apply SQL Server updates and service packs as required
• Change account permissions or add additional accounts as required
• Verify backups and provide recovery if needed
• Verify and investigate any errors that exist in error logs
• Validating regularly scheduled maintenance tasks against SQL Server databases
• Tuning and optimization of SQL Server
• Maintain secure audit access to the server
b. Scope of Work. The scope of work shall be as described in the Description of Services. The specific system's
operating configurations,system logs, and performance metrics to be reviewed in depth are:
• Storage configuration and performance metrics
• Interconnect and Network topology
• SQL Server and virtual host hardware configurations and performance metrics
• Operating system-level performance counters
• SQL Server performance and configuration details
c. Client Responsibilities. Client will provide the following under this SOW:
• Client will contact Heraflux to schedule services within 30 days of execution of this SOW.
• Client will permit Heraflux to commence provision of Services within 30 days of the Commencement Date
for such Services.
• Client will provide on-going necessary information, data or materials necessary for Heraflux to complete
Services on or before the Completion Date.
• Client understands there is no Service Level Agreement associated with this SOW.
• Client will provide all of the software and hardware required for this engagement.
• Client will provide an option for remote access including VPN or other alternative, if necessary.
• Client will only provide access to systems and databases on an as-needed basis, and it is Client's
responsibility to limit such access to the necessary systems without exposing data deemed PII.
3.Work Product
a. Heraflux shall deliver the tangible Client Work Product described in the Deliverables below.
b. No response from the Client within two business days of Deliverables being delivered by Heraflux to Client shall
be deemed satisfactory acceptance by Client of same.
4. Deliverables
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H E R R VL U XSTATEMENT OF WORK:
SQL Server Services for Avolve ProjectDox
TECHEO•L OGIES
a. Heraflux Deliverables include the following:
Heraflux Deliverable Detailed Description of Heraflux Due Date
Deliverable
• SQL Server build guide • Notes related to • Approximately one week
and monthly system implementation process, following implementation
health reports including screen shots and and testing
other date showing • Approximately one week
configurations and settings following monthly health
• Monthly SQL Server system reviews
performance health
updates
5. Duration of Work/Schedule
Heraflux shall commence the Services under this SOW on October 25, 2017 (the "Commencement Date."). This
Commencement Date is dependent upon Client meeting Client Responsibilities.
Such Services shall be completed no later than September 30. 2018 (the "Completion Date.") This Completion Date is
dependent upon Client meeting Client Responsibilities, and may be extended at the discretion of Heraflux to retain the
same time frame between Commencement Date and Completion Date if the Commencement Date is delayed through no
fault of Heraflux.
This SOW is effective on October 16,2017,and shall remain effective until September 30.2018 unless terminated by either
Party in accordance with this SOW or this Agreement. Notwithstanding the foregoing, if Client fails to meet Client
Responsibilities such that the Heraflux is not permitted to commence Services within 60 days of the Commencement Date,
or conclude Services on or before the Completion Date, Heraflux may in its own discretion, require a new SOW with
updated scope, pricing,terms and/or conditions,which Client shall approve.
Heraflux observes the following holidays: All Federal observed holidays, Christmas Eve, New Year's Eve
6. Location of Work Facilities
Substantially all of the Services under this SOW shall be performed by Heraflux remotely, or such other location or
locations as Heraflux shall reasonably request.
7.Schedule of Rates and Payment
In exchange for performance of the Services described in this SOW,the Parties agree to the following compensation:
( )A Flat Fee for All Services in the amount of$
(X)An Hourly Rate' in the amount of$185.00 for fees, not including expenses, if applicable
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H rC R A CL U J�v STATEMENT OF WORK:
r% SQL Server Services for Avolve ProjectDox
TECHNOLOGIES '
(X ) A Services Down Payment, applicable to either a Flat Fee or an Hourly Fee arrangement, of$2,405, will be invoiced
upon acceptance and signature of this SOW, and is due upon receipt. The Services Down Payment is non-refundable. If
Services are payable via a Flat Fee, the Services Down Payment will be applied to the final Flat Fee payment. If Services
are payable at an Hourly Rate,the Services Down Payment will be applied to hours invoiced,and after it has been depleted,
standard billing will apply.
( ) Travel Expenses,estimated in the amount of$_
Consulting Rates:
Consultant Type Hours(Estimate) Rate per Hour Total(Estimate)
Principal Consultant 128 $185 $23,680
*For Hourly Rate agreements, hours will be billed in 15-minute increments.
The total fee under this SOW, not including travel expenses and other expenses as described in the Agreement, shall not
exceed$23,680 without prior Client written approval and shall be paid pursuant to the payment terms of the Agreement.
8. Billing Information
Heraflux Technologies will not be obliged to provide services unless the SOW Billing Information is provided to Heraflux by
Client. Client is obliged to make payment for services rendered by Heraflux, whether or not SOW Billing Information has
been provided to Heraflux.
Bill to Name of Organization: City of Cape Girardeau
Bill to Address:
Street Address:401 Independence/PO BOX 617
City:Cape Girardeau
State/Province: MO
Country: USA
Postal Code: 63703
Accounts Payable Contact:
Name: Karen James Email: kjames@cityofcape.org
Phone:573-339-6327
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revised 2017.07.28 [Confidential)
H E RAfLUXSTATEMENT OF WORK:
SQL Server Services for Avolve ProjectDox
T E C H R = L CIG I E S '
Payment(please select one):
Vendor ACH Direct Deposit o Mailed Check 0
Purchase Order Required? No o Yes ❑x
If yes, please complete the following information:
PO Number:
Primary PO Contact Personnel:
Name: Karen James Email: kjames@cityofcape.org
Phone:573-339-6327
9.Change Management Procedures
a. In the event new requirements,other than delay of the Commencement Date or the Completion Date through
no fault of Heraflux,emerge during the term of this SOW such that it is necessary to change this SOW,the Parties
will amend this SOW in accordance with the Agreement.
b. Whenever there is a conflict between the terms and conditions set forth in an Amendment to this SOW and
those set forth in the original SOW or previous Amendment to same,the terms and conditions of the most recent
Amendment shall prevail.
10.Termination
In addition to the termination provisions of the Agreement,this SOW may otherwise be earlier terminable,in whole or in
part, by either Party upon thirty(30)day's prior written notice to the other Party,which writing shall state with specificity
the Services being terminated and the effective date of such termination. In the event this SOW is termination under the
provisions of this Section, (i) Heraflux shall terminate performance of the Services in accordance with such notice on the
specified effective date of termination; (ii) Client shall comply with all Client obligations in the Agreement regarding
termination as pertains to the Services of this SOW; (iii)the payment due to Heraflux for Services shall be for all Services
rendered by Heraflux up to and including the effective date of termination.
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H E R LrL U XSTATEMENT OF WORK:
SQL Server Services for Avolve ProjectDox
TE CH R C LUG IE ;
11. Project Managers
Heraflux Project Manager Client Project Manager
Name: David Klee Marc Ciarniello
Telephone: 402-500-0867 ext 101 573-339-6753
Email: dklee@heraflux.com mciarniello@cityofcapegirardeau.org
ACCEPTANCE AND AUTHORIZATION
IN WITNESS WHEREOF, the Parties to this SOW have caused it to be duly executed by their respective duly authorized
representatives.
CLIENT: City of Cape Girardeau 180overE LLC d/b/a HERAFLUX TECHNOLOGIES
a Nebraska Limited Liability Company
Signature: Signature:
(tea neaAr
Name: aj Name: A'fpl(y
WaAli
Title: Project Manager Title:Co_p ,,i ,., {Z� ,, �y,., bee
Date: I I I/yjl Date: 1j 2- 20 17
Client: City of Cape Girarde u
Signature:
Name:
Title
Development Services Director
Telephone:
Ls' 3) . 3q-63;1
Date: /j- 7- /7
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revised 2017.07.28 [Confidential]
H E R A;L U X STATEMENT OF WORK:
SQL Server Services for Avolve ProjectDox
TECH. CSL _ _ IES
Client: City of Cap; irardeau
Signature: /
j
Name: Mr()
�ec-Il-t-
Title
City Manager
Telephone:
Date: -7 -(
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