HomeMy WebLinkAboutSIGMA DATA SYSTEMS 3
.~. Sigma
A-2006-029
A Division of (PS Human Resource Services
INSURANCI: NOT REQUIRED
WORK M~Y PROmO
CLERK OF COUNCIL
DATE: ~- ~- o(P
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SIGMA SOFTWARE LICENSE AGREEMENT
@ Copyright 1999 - 2006 CPS Human Resource Services, Sigma Data Systems Division
1. RECITALS
A. PARTIES. Santa Ana, hereinafter referred to as Licensee, and CPS HUMAN RESOURCE SERVICES,
SIGMA DATA SYSTEMS DIVISION, hereinafter referred to as Licensor, do hereby enter into the following
agreement. Licensor is the vendor of a computer software system called SIGMA 5, hereinafter referred to as
SIGMA, and wishes to license it to Licensee on the terms and conditions provided in this agreement. Licensee
wishes to obtain a license to use SIGMA from Licensor on the terms and conditions provided in this agreement.
B. EFFECTIVE DATE. This agreement shall become effective after all parties have signed it. The effective
date shall be the date signed below by Licensor or Licensee, whichever is last.
C. SIGMA. SIGMA is an automated applicant management system. It is designed to support the routine
applicant tracking and processing operations of recruitment, screening, examination, selection, register
maintenance, certification of eligibles, statistical analysis, test development, affirmative action, and workload
reporting; the level of automation for each process listed is dependent upon the Edition licensed as detailed
below. SIGMA is licensed and configured as any combination of one or both of two main components. The
two main SIGMA components are the Applicant Management System (AMS) and Test Management System
(TMS). AMS is licensed in anyone of three possible Editions; the Standard Edition, Professional Edition or
Enterprise Edition. The components, Edition, and number of users which are actually licensed herein, are
those for which license fees are itemized in Section 4C below. In the event that Licensee has not licensed all
components and options at this time, Licensee may request amendment of this license in the future in order to
license additional components based on the pricing and terms and conditions being offered by Licensor at that
time.
2. SPECIFICATIONS
The features, functions, operating system and hardware requirements, and capacities of each SIGMA
component are explained in the appropriate manuals for AMS or TMS, which are included in the software as
help files. These manuals also contain complete instructions on the operation of the programs. These
manuals shall be considered incorporated into this agreement by reference.
TMS requires that the Licensee have a MICROSOFT@ Word 2000 SR-1 or Word XP license for each TMS
workstation. This license is not included with SIGMA. Use of Word XP is likely to result in a TMS 5 database
double the size of one using Word 2000.
The SIGMA software license does NOT include any of the required hardware, nor operating system software,
nor the hardware and software needed for daily data backup, nor that required for protection from power
interruption.
333 North Wilmot Road
Suite 205
Tucson, AZ 85711
520.721.1191
800.677.1275
fax 520.721.1459
www.gosigma.com
A Joint Powers Agency
3. AGREEMENTS
In consideration of the recitals and covenants contained in this agreement, the parties agree as follows:
A. COVERAGE. The terms and conditions specified in this license agreement shall apply to all licensed
SIGMA components and to any custom SIGMA related programs licensed herein or provided at a later
date through upgrade releases or amendments to this license. This agreement sets forth the entire
understanding between Licensor and Licensee and may be amended only in writing. NO VENDOR,
DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO
MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE
WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS OR PROMISES OF
THIS AGREEMENT.
B. GRANT AND LIMITATIONS. Licensor hereby grants to Licensee, and Licensee accepts from
Licensor, a nonexclusive, nontransferable and revocable license to use SIGMA on no more than the
number of workstations specified in Section 4C below. This number of users limitation refers to the total
number of different workstations upon which Licensee may, at any given moment, operate any or all of the
SIGMA programs and its options, except the Test Administration Program (TAP). A "workstation" means
either a stand-alone single-user computer or a node or terminal on a multi-user system or network of
computers. Licensee may NOT use SIGMA and all of its ancillary or optional programs in such a way that
more than the total number of users licensed are running any of the SIGMA programs simultaneously,
whether at the same place or at different locations. The TAP provided with the TMS component may be
used on no more than twenty-five (25) personal computers at anyone time. These twenty-five (25)
computers are in addition to the number of workstations specified in Section 4C below. This grant
authorizes the use by Licensee of only the configuration specifically paid for, as itemized in Section 4,
below. Licensee agrees to use the SIGMA software ONLY for its own internal business purposes and not
to use it in providing data processing related services to any other party or organization.
C. LICENSED CONFIGURATION. This agreement entitles Licensee to install and use one SIGMA
system so that no more than one AMS and/or one TMS database is used. The Licensee is entitled to use
SIGMA in the configuration specified in Section 4C below so that no more than the total number of users
licensed below are using any of the SIGMA programs simultaneously. The operation of any of the off-line
programs, or any other optional or custom programs, except TAP, that may have been provided to work
with SIGMA related files are also considered part of the SIGMA system, and their users are counted as
workstations against the total number of simultaneous users licensed.
D. TERM. The SIGMA software license agreement shall remain in force in perpetuity. Licensor may at
its sole option terminate this agreement at any time, without any refund of fees paid, if Licensee fails to
comply with any of the terms and conditions of this agreement. Licensee agrees upon termination to
return to Licensor all original SIGMA program distribution disks and manuais, and to erase all SIGMA
programs from all hard drives, backup CD-ROM disks, backup tapes, and any other storage media.
E. ASSIGNMENT AND SUBLICENSING. Licensee agrees that it will not assign or sub-license any of its
interest in this agreement, and that any attempt to do so shall be void and shall constitute a breach of this
agreement. If Licensor assigns its interest in this agreement, then Licensor shall notify Licensee.
F. PROPRIETARY NATURE AND CONFIDENTIALITY. Licensee acknowledges and agrees that the
SIGMA SOFTWARE INCLUDING ITS CODE, DOCUMENTATION, APPEARANCE, STRUCTURE, AND
ORGANIZATION, IS A PROPRIETARY PRODUCT OF CPS HUMAN RESOURCE SERVICES, AND IS
PROTECTED BY COPYRIGHT AND OTHER LAWS. TITLE TO THE PROGRAM, OR ANY COPY,
MODIFICATION OR MERGED PORTION OF THE PROGRAM, SHALL AT ALL TIMES REMAIN WITH
CPS HUMAN RESOURCE SERVICES. All documentation pertaining to SIGMA along with any future
enhancements and revisions to them, whether created or documented by Licensor or Licensee and
whether or not copyrighted or copyrightable, constitute trade secrets and proprietary information of
Licensor, and are valuable and unique assets of Licensor's business, and are revealed to Licensee in
confidence, and shall remain the sole and exclusive property of Licensor, and are licensed and loaned to
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Licensee for use only under the terms of this agreement. Licensee agrees not to remove, alter, obscure
or render in any manner unreadable all of Licensor's trademarks, trade names, logos, copyright
designations, serial numbers, or other appropriate designations, which may appear on any SIGMA
programs or other SIGMA material. Any tangible media upon which SIGMA programs or other SIGMA
materials are delivered to Licensee are loaned to Licensee and shall remain the property of the Licensor.
Licensee warrants that neither it nor any of Licensee's employees or agents, who will have direct or
indirect access to any of the SIGMA software or related documentation develop, sell, or represent
competitive software systems or otherwise have a conflict of interest with Licensor; Licensee agrees to
take all necessary actions to prohibit future access to any part of the SIGMA system to such persons.
Licensee agrees not to allow any of its employees who may have any conflict of interest with Licensor, or
have a financial interest in any competitor of Licensor, or are in any way involved In any competing
software development activities, to use or see the SIGMA programs and manuals except the Test
Administration Program, without the express written approval of Licensor. Licensee agrees not to allow
any person who is not an employee of Licensee to view, or have access to, any SIGMA software or
documentation except the Test Administration Program, without the express written permission of
Licensor. Licensor shall have the right to withhold this permission and/or to make it contingent upon the
signing of a CONFIDENTIAL NON-DISCLOSURE AGREEMENT. Licensee agrees to inform anyone
whom it allows to have access to SIGMA programs or documentation of these provisions.
G. COPIES. Licensee agrees not to attempt to list, disassemble, "reverse compile", or in any other way
attempt to recover or decipher the SIGMA system program source code or to allow any other party to do
so. Licensee agrees not to make any copies of any portion of SIGMA, except to make backup copies of
the SIGMA software for internal archival purposes to be used in case of damage to the original. Licensee
agrees to keep such copies locked in a secure place. Licensee agrees to affix the following notice to all
copies Licensee makes: "Copyright 1999-2006 CPS HUMAN RESOURCE SERVICES, SIGMA DATA
SYSTEMS DIVISION". Licensee may make photocopies of the SIGMA user's manuals only for its internal
use by its own employees who are SIGMA users or SIGMA administrators. Upon creation, such
photocopies shall become the property of Licensor, and shall immediately become part of the licensed
materials. Licensee agrees that it will take all reasonable steps to prohibit and prevent its employees and
others from making unauthorized copies of the SIGMA software and documentation. Licensee agrees to
inform all persons having access to SIGMA that it is a violation of federal copyright and other laws and of
this agreement to make unauthorized copies of SIGMA software and documentation in any form.
H. MODIFICATIONS. Licensee agrees that neither it nor any of its employees, agents or representatives
will modify or attempt to modify the SIGMA programs or manuals or data files' structures, without the
express written consent of Licensor.
I. INSTALLATION, TRAINING AND SUPPORT. Licensor agrees to deliver SIGMA within ninety (90)
days of the date of this agreement, and to provide implementation and data conversion services covered
herein within one-hundred eighty (180) days of this agreement. The actual date of training shall be
decided by mutual consent of the parties. If Licensee cancels or requests rescheduling of the training less
than thirty (30) days prior to a mutually agreed upon schedule, Licensee agrees to pay Licensor the total
amount specified for training in section 4D below as though the services had been actually performed,
plus pay for any actual expenses incurred by Licensor due to the cancellation, change, or reissue of plane
tickets and other travel reservations. Licensor shall provide technical assistance for system installation
and SIGMA training for up to fifteen (15) trainees per training session. The amount of time spent on site
for installation and training, if any, shall be as specified in Section 4D below. Licensee agrees to provide
the on-site training facilities and necessary computer equipment, including at least one computer for every
two trainees. If the installation is delayed due to defects in, or non-availability of, Licensee's hardware,
operating system software, or other reasons beyond the control of Licensor, then Licensee shall pay any
actual living and travel costs associated with the delay plus $1,000.00 per day for each day or part thereof
that Licensor's representative is delayed on site while performing the installation and/or training. In
addition, Licensor shall provide, at no charge, ongoing support for ninety (90) days following installation to
Licensee via telephone or written consultation as requested by Licensee. Licensor agrees to respond to a
call for technical support within one business day. If optional Extended Technical Support is included in
this agreement, it will commence immediately upon termination of the ninety (90) days of ongoing support.
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Licensor may offer Licensee the option to renew it annually thereafter, at the then advertised prices. The
Extended Technical Support includes unlimited teiephone support during Licensor's normal business
hours of 7:30 AM to 4:30 PM MST Monday through Friday, free upgrades to any licensed SIGMA
components released during the period, complementary subscription to the SIGMA NEWSLETTER,
discounts on new SIGMA software purchases, and discounts on specialized SIGMA training and
consulting.
J. ENHANCEMENTS. Licensor shall provide Licensee free updates of any enhancements or revisions
released during the warranty and support periods specified in Sections 3K and 4E below. Following the
warranty or support period, Licensor may make any enhancements or revisions of SiGMA available to
Licensee at additional cost. Sections 3A through 3H above shall apply to any future SIGMA revisions or
enhancements which Licensee accepts (whether purchased by Licensee or provided for free by Licensor).
Upon acceptance of any new SIGMA software, Licensee shall return, physically destroy or electronically
erase media containing old copies of SIGMA, if so instructed by Licensor.
K. LIMITED WARRANTY. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE
PROGRAM IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Licensor warrants that SIGMA
does not infringe upon the intellectual property rights of any other party. Licensor further warrants that
SIGMA will conform to all substantial operational features and specifications in the current user's manuals,
and will operate in accordance with the most recently issued user documentation. This WARRANTY shall
be void if SIGMA is not operated in accordance with the USER'S and ADMINISTRATOR'S manuals or
other suppiied documentation. Licensor also warrants that SIGMA software is able to accept and process
dates through the year 2500. Licensee must notify Licensor in writing, within ninety (90) days of
installation, of its claim of any defect, describing it in sufficient detail so that Licensor can replicate the
condition which Licensee considers to be a defect. If SIGMA is found defective by Licensor, Licensor's
sole obligation under this warranty is to promptly remedy such defect in a manner consistent with
Licensor's regular business practices.
L. LIMITATION OF REMEDIES AND LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES,
INCLUDING LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF LICENSEE'S USE OF OR INABILITY TO USE THE SOFTWARE, EVEN
IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Licensor does not
guarantee that the operation of the program will be uninterrupted, nor that it will meet Licensee's needs,
nor that it will be free of risk to the Licensee's data and operations, nor be trouble free or error free.
Because software is inherently complex and may not be completely free of error, Licensee is advised to
verify all results and to make daily backup copies. Licensee assumes all responsibility for system security
and restriction of access to SIGMA data files by unauthorized users. Licensor does not guarantee that
SIGMA's login security and encryption systems cannot be breached. Licensee agrees that Licensor shall
not be responsible for any loss of data or time due to Licensee's failure to provide backup capabilities or to
perform a successful daily backup. Licensee agrees that Licensor shall not be responsible for any loss of
data for any reason, including loss of power, failure of any of Licensee's hardware, and failure of any
networking systems. Licensee assumes full responsibility to determine if the consequences of using any
given SIGMA feature in any given way in any given situation is appropriate for Licensee's intended results
and is in compliance with its own methods, policies, procedures, and legal mandates. With regard to the
actions to be taken in connection with this agreement and with the use of SIGMA, each party agrees that it
will be responsible for its own acts and the results thereof to the extent authorized by law and shall not be
responsible for the acts of the other party and the results thereof.
Licensee agrees that Licensor's liability arising out of contract, negligence, strict liability in tort, or warranty
shall not exceed the total amount payable by Licensee as specitied in Section 4 below.
To the maximum extent provided by applicable law, the entire and exclusive liability and remedy for
breach of the limited warranty shall be limited to replacement of the defective software or documentation.
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M. BREACH OF AGREEMENT. In the event of an actual or threatened breach by either party of the
provisions of this agreement, either party shall be entitled to injunctive relief restraining the other party
from the breach or threatened breach. Nothing herein shall be construed as prohibiting either party from
pursuing any other remedies avaiiable for such breach or threatened breach, including the recovery of
damages. Paragraphs 3F, 3G, 3L, 3M, 3N and the entirety of Sections 4, 5, 6, 7 and 8 of this agreement
shall survive the expiration or termination of any agreement or relationship between the parties for any
reason, and shall be enforceable notwithstanding the existence of any ciaim or cause of action of
Licensee against the other party predicated on any contract or other basis whatsoever. In the event it is
necessary to employ an attorney to enforce this agreement, file suit, or collect monies due, the prevailing
party shall be entitled to reasonable attorney's fees and costs.
N. DISPUTES. If a dispute arises out of or relates to this agreement, or the breach thereof, and if the
dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute
by mediation administered by the American Arbitration Association under its Commercial Mediation Rules
before resorting to arbitration, litigation, or some other dispute resolution procedure. However, nothing
herein shall prevent either party from taking appropriate legal action to enforce this agreement or recover
damages in the event of an alleged breach.
O. CHOICE OF LAW. This agreement shall be governed by the laws of the State of ARIZONA.
4. CONSIDERATION.
A. LICENSE FEES. Licensee agrees to pay Licensor the total of the amounts specified in Section 4F
below. Unless otherwise agreed to by the parties, all amounts listed below are due and payable within
thirty (30) days of the completion of any training services, or if no training services are included herein
within thirty (30) days of delivery; Licensor agrees to invoice Licensee following training, or upon delivery if
training is not included herein. Failure of Licensee to give written notice detailing the reasons for any
claim that Licensor has failed to deliver in accordance with this agreement, shall be automatically deemed
as acknowledgment that delivery was made and that training was completed and that the invoice is
therefore payable. Licensee agrees to pay, upon demand of Licensor, one-and-one-half percent (1.5%)
per month interest on any payable amounts not received within thirty (30) days of receipt of invoice from
Licensor.
B. TAXES AND REGISTRATION FEES. Licensee shall, in addition to the other amounts payable under
this agreement, pay any state, county, city imposed license, registration, or franchise fees imposed upon
Licensor, sales and other taxes, federal, state or otherwise, however designated, which are levied or
imposed by reason of the transactions contemplated by this agreement. It is understood by both parties
that the above does not include federal, state, or local taxes on Licensor's income from this transaction.
Without limiting the foregoing, Licensee shall promptly pay an amount equal to any such items actually
paid, or required to be collected or paid by Licensor.
C. AMOUNTS PAYABLE BY LICENSEE FOR SIGMA SOFTWARE LICENSE.
ITEM
SIGMA 5 Applicant Management System, Professional Edition (AMS-PE)
(Includes One [1] Licensed User):
Four (4) Additional AMS-PE Users Licensed @ $2,500.00 each:
45% Sigma 4 customer discount (if on support)
PRICE
Total Software Cost:
$ 20,000.00
$10,000.00
($13,500.00)
$16,500.00
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.~. Sigma
A Division of CP5 Human Resource Services
D. AMOUNTS PAYABLE FOR PROFESSIONAL SERVICES.
Licensor shall assume all travel expenses for Licensor's employees while at Licensee's site.
ITEM
Two (2) days of on-site training pre-implementation @ $1,000.00 per day:
Five (5) days of on-site training at $1,000.00 per day
PRICE
$2,000.00
$5,000.00
E. AMOUNTS PAYABLE FOR EXTENDED TECHNICAL SUPPORT.
ITEM
AMS 5 PE Twelve (12) months extended technical support"':
PRICE
No Charge
F. TOTAL AMOUNTS PAYABLE FOR SECTIONS 4C, 40 AND 4E
ITEM
Total Software License Cost:
Extended Technical Support:
Professional Services:
PRICE
$16,500.00
No Charge
$7,000.00
..
$23,500.00
TOTAL ESTIMATED COST''':
(1) First year ETS provided at no charge per incentive pricing. Subsequent years of ETS is based on
above software configuration is $3900.00. ETS pricing is subject to change, not to exceed 5% per
year.
(2) Plus all applicable California State sales tax on Software License and Extended Technical Support
5. CONSTRUCTION OF LANGUAGE.
All words in this agreement refer to whatever number and gender the context requires. Headings are for
reference purposes and do not control interpretation.
6. SEVERABILITY
If any provision of this agreement Is deemed to be invalid or inoperative for any reason, that provision shall
be deemed modified to the extent necessary to make it valid and operative, or if it cannot be so modified,
then severed, and the remainder of this agreement shall continue in full force as if signed with the invalid
portion so modified or eliminated.
7. WAIVER
Neither party's waiver of a breach or default by the other, nor delay or failure to exercise any right upon
breach or default, shall impair rights for other breaches or defaults of the same or a different kind. The
description of any breach or default in any notice shall not preclude the later assertion of other additional
defaults or breaches.
333 North Wilmot Ro~d
Suite 205
Tucson, AZ 8571 1
Page 6 of 8
520.721.1191
800.677.1275
fax 520.721.1459
www.gosigma.com
A Joint Powers Agency
8. NOTICES
Notices sent by mail shall be considered given on the third business day after mailing or upon actual
receipt, whichever is earlier. All notices, requests, demands, and reports to be given under this
agreement are to be in writing, delivered by hand, telegram, or certified or registered mail to the following
address (which may be changed by written notice):
LICENSOR:
CPS HUMAN RESOURCE SERVICES
SIGMA DATA SYSTEMS DIVISION
333 N. Wilmot Road, Suite 205
Tucson, Arizona 85711
LICENSEE:
In Care Of:
Department:
Street Address:
City, State, Zip:
Santa Ana
Mr. Michael Ernandes
Personnel Services Dept.
20 Civic Center Plaza M24
Santa Ana, CA 92702
_m___mmmm_ Nothing further follows on this page _________mm_m_
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9. AUTHORIZED SIGNATURES
Licensor warrants that it is duly authorized to enter into this agreement, and that the person signing this
agreement on behalf of Licensor has proper authority to sign this agreement and to bind Licensor.
c5/f. M.q-IIl~
Title
SERVICES SIGMA 'A A SYSTEMS DIVISION
c2/,;<~Io?'
Date
Licensee warrants that it is duly authorized to enter into this agreement, and that the persons signing this
agreement on behalf of Licensee have proper authority to sign this agreement and to bind Licensee.
Personnel/Human Resources Director's Name Printed
Title
Signature of Personnei/Human Resources Director
Date
SUBSCRIBED AND SWORN TO before me this
day of
,20 .
My Commission expires:
Notary Public
Purchasing/Contracts Administrator Printed
Title
Date
Signature of Purchasing/Contracts Administrator
SUBSCRIBED AND SWORN TO before me this
day of
,20_.
My Commission expires:
Notary Public
Page 8 of 8
.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
CITY OF SANTA ANA
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/(~~i~ ~.'HEAi y ... ~'\
Clerk of the Council
d~~t202~.-
DAVID N. REAM
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
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'/-/' I , ' " I e'-.l' I I,. I, '. ~
Laura Sheedy I
Assistant City Attorney
RECOMMENDED FOR APPROVAL: