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OFFICIAL RECORD
CITY SECRETARY
FT.WORM TX
ORDERFORM
This Order Form is hereby incorporated into the Master Solution Agreement dated March_, 2017, (as amended from
time to time, the "Agreement") between Advanced Public Safety, Inc. ("APS") and Fort Worth Police Department
("Customer"). This Order Form is dated and effective as of the last date entered in the signature blocks below (the
"Effective Date"). APS will provide Customer with the solution set forth below pursuant to the Agreement, which is
incorporated herein by reference. In case of any conflict between the Agreement and this Order Form, the terms and
conditions of this Order Form shall control.
APS Sales Person: Scott Mellett Customer Contact Name: Melony Ebel
Customer Billing Information Customer Shipping Information
Name: Melony Ebel Name: Melony Ebel
Title: Title: I f i q O r
Address: 505 W Felix Street Address: 505 W Felix Street
Fort Worth, TX 76115 Fort Worth, TX 76115
United States United States
Phone: Phone: 317 . 3 I & I
Email: EmaiIA eton Abel orfWcirf +e cts v
Fax: Fax:
Invoicing and Payment Terms:
1. Do not pay from this Order Form. APS will invoice Customer upon execution of this Order Form for the fees set
forth below plus applicable taxes.
2. Customer shall pay APS Net 30 days from the date of invoice.
3. If applicable, maintenance service fees after the initial term will be invoiced Annually.
4. APS has a NO REFUND policy.
This Order Form, together with the Agreement, constitutes the entire agreement and supersedes all prior agreements
(verbal or written) between the parties with respect to the subject matter hereof. Customer's acceptance of the software
licensed hereunder is as delivered, with no expectation that APS would customize or modify the software for the
Customer's specific business requirements unless agreed to in writing and signed by both parties.
2016-76117
Product Qty Term Start Date Term End Date Term Maintenance
MobiControl Device Management 19 Feb 1, 2017 June 30, 2018 USD 506.68
Software Client and Server License (1-200)
PocketCitation 21 July 1, 2017 June 30, 2018 USD 4957.94
SmartConnect 21 July 1, 2017 June 30, 2018 USD 492.82
SmartExport—Standard 1 July 1, 2017 June 30, 2018 USD 1,181.25
SmartNumber Per Form 1 July 1, 2017 June 30, 2018 USD1,181.25
SmartPrint 1 July 1, 2017 June 30, 2018 USD 1,968.75
Virtual Partner Engine 1 July 1, 2017 June 30, 2018 JUSID 787.50
Total = USD 11,076.19
MAINTENANCE RENEWAL OPTIONS:
1. Renewal Option 1: (7/1/2018 to 6/30/19) _ $11,365.75
2. Renewal Option 2: (7/1/2019 to 6/30/20) _ $11,820.38
3. Renewal Option 3: (7/1/2020 to 6/30/21) _ $12,293.19
If a party executes this Order Form via electronic signature, then such electronic signature shall be deemed to be such
party's original signature for all purposes. The exchange of copies of this Order Form and of the signature pages by
facsimile or other electronic transmission shall constitute effective execution and delivery of this Order Form as to the
parties and may be used in lieu of the original Order Form for all purposes.
2016-76117
ORDER FORM SIGNATURE PAGE
Fort Vyorth Police Department Advanced Public Safety, Inc.
By: By:
Authorized Signature Authorized Signature
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Title: Title:
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Date: Date:
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2016-76117
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Fort Worth Police Department
March 3, 2017
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Product Qty Term Start Date Term End Date Term Maint
QuickCrash with ReportBeam & SmartRoads 300 Nov 30, 2016 Nov 29, 2017 USD 14,175.00
ReportBeam Add-On Exporter 1 Nov 30, 2016 Nov 29, 2017 USD 566.06
ReportBeam Engine 1 Nov 30, 2016 Nov 29, 2017 USD 1,417.50
ReportBeam Self-Hosted Server Software 1 Nov 30, 2016 Nov 29, 2017 USD 4,725.00
Virtual Partner Engine 1 Nov 30, 2016 Nov 29, 2017 USD 945.00
VS Professional Services (Custom) 1 Nov 30, 2016 Nov 29, 2017 USD 0.00
Maintenance Renewal Total USD 23,718.56
Product License Qty Maintenance Maintenance Price Maintenance
Metric Start Date End Date
ReportBeam E-Commerce Manual 1 Effective Oct 30, 2017 USD 0.00 USD 0.00
Crash Report Date
Software Total = USD 0.00
Prorated Maintenance Total = USD 0.00
Software License and Maintenance Total = USD 0.00
Services Unit Qty Price
APS Customizations with Maintenance (Fixed Fee) Fixed 1 USD 19,350.00
Annual Maintenance 1 USD 3,870.00
Services Total = USD 23,220.00
Total _ USD 46,938.56
RENEWAL OPTIONS: ReportBeam and eCommerce Maintenance
1. Renewal Option 1: (11/30/2017 to 11/29/2018) _ $28,692.10
2. Renewal Option 2: (11/30/2018 to 11/29/2019) _ $29,839.78
3. Renewal Option 3: (11/30/2019 to 11/29/2020) _ $31,033.37
If a party executes this Order Form via electronic signature, then such electronic signature shall be deemed to be such
party's original signature for all purposes. The exchange of copies of this Order Form and of the signature pages by
facsimile or other electronic transmission shall constitute effective execution and delivery of this Order Form as to the
parties and may be used in lieu of the original Order Form for all purposes.
2016-76117
ORDER FORM SIGNATURE PAGE
Fort Wo h Police Department Advanced Public Safety, Inc.
By: By:
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Printed Name Printed Name
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Title: Title:
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Date: Date:
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2016-76117
MASTER SOLUTION AGREEMENT
This Master Solution Agreement is entered into by and between the City of Fort Worth, located at 200 Texas Street, Fort Worth,
Texas 76102 ("Customer") and Advanced Public Safety, Inc., located at 4325 Alexander Drive, Suite 100 Alpharetta, GA 30022
("Licensor,"and,together with Customer,the"Parties"). This Master Solution Agreement consists of the following elements(together
with all amendments thereto, Statements of Work and Order Forms issued hereunder from time to time, collectively, this
"Agreement")
1. Exhibit A - Perpetual License Agreement General Terms and Conditions: Exhibit A shall govern Customer's license of
perpetual software,as indicated on the Order Form.
2. Exhibit B-Subscription Services Agreement General Terms and Conditions: Exhibit B shall govern Customer's license of
subscrption-based software(SaaS),as indicated on the Order Form.
3. Exhibit C- Miscellaneous Terms and Conditions: Exhibit C shall govern Customer's use of all Software and Equipment
and any professional services provided under this Agreement and is applicable to Exhibit A, Exhibit B, Schedule 1, and
Schedule 2.
4. Schedule 1-Professional Services Agreement: Schedule 1 sets forth the terms and conditions under which Licensor will
provide Professional Services in connection with the solution(s) provided pursuant to this Agreement. The Parties will
negotiate a separate Statement of Work under this Agreement to add any professional services needed in the future
based on the terms and conditions of this Schedule 1.
5. Schedule 2: Schedule 2 sets forth the additional terms and conditions under which Licensor will provide each license
type in connection with the user description set forth on each Order Form. Schedule 2 shall apply to the perpetual
licensed software only,which is covered under Exhibit A.
1
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the last date entered in the signature blocks below
(the "Effective Date").
City of Fort W rthAdvanced Public Safety,Inc.
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By: By:
-AwoherirLe ignature Authorized Signature
C h i e-F Joel F, A/G 1 b, 601JAC'in
Printed Name
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Title Title
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By:
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Mary Kayser
City Secretary SAS
APPROVED AS TO FORM AND LEGALITY:
By: )k 42c�,(�y`
Jessica Sangs ang
Assistant City Attorney II UaQ�p�YirC� c S-', Ile`
Form 1295 Certification No. N
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CONTRACT COMPLIANCE MANAGER
By signing,I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all performance and reporting requirements.
OFFICIAL RECORD
(1� #�r �• CITY SECI�ETI�RY
Name: l c l + a e l M t�n of a D t1-+�
Title: Teel,n d 10 9,) Se-ry ices M 0L h CL ier FT.WORTH,TX
Exhibit A-Perpetual License Agreement(Aptean v2)-NA -2-
Exhibit A
PERPETUAL LICENSE
GENERAL TERMS AND CONDITIONS
1. Definitions. Capitalized terms shall be defined as set forth below (h) "Maintenance Releases"means Software updates or version
or elsewhere in this Agreement. releases, including bug fixes, maintenance, support,
modifications, additions and enhancements developed after
(a) "Affiliate"means any entity directly or indirectly controlling, the Effective Date that Licensor generally makes available to
controlled by or under common control by another entity. its customers as part of Maintenance Services.
For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct or (1) "Maintenance Services" means the maintenance and
cause the direction of the management and policies of support services to be provided to Customer by Licensor,as
another entity, whether through the ownership of voting further described on the customer portal.
securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to (j) "Maintenance Term" means the term during which
the foregoing. Maintenance Services will be provided as set forth in the
Order Form.
(b) "Customer Materials"means any data or materials,provided
by Customer,that are used in connection with the Software (k) "Order Form" means Licensor's order form signed by the
or Service Deliverables, such as technical information and Parties whereby Licensor agrees to supply certain Software
functional specifications, user data, logos, photographs, licenses, Equipment and/or Maintenance Services pursuant
compilations of facts, artwork, animations, video or audio to the terms and conditions of this Agreement.
files,or source materials for any of the foregoing.
(1) "Professional Services"is as defined in Section 4(c).
(c) "Initial License Configuration" means Customer's License
Configuration as of the Effective Date and set forth in the (m) "Professional Services Terms"is as defined in Section 4(c).
Order Form.
(n) "Service Deliverables" means the items to be delivered to
(d) `Intellectual Property Rights"means copyrights,trademarks, Customer in connection with services Licensor performs
service marks, patents, trade secrets, and other related pursuant to a Statement of Work,which does not include the
proprietary or statutory rights that have been or Software.
subsequently exist pursuant to all applicable statutes, laws,
regulations, treaties or common law in any country or (o) "Software"means those components of proprietary Licensor
jurisdiction in the world, now or hereafter existing, and software and Third Party Software, if any,as set forth in an
whether or not perfected,filed or recorded. Order Form, together with Maintenance Releases that are
provided in connection with such software and updated
(e) "License Configuration" means the particular components, versions of such software otherwise purchased separately by
optional modules and languages of the Software licensed Customer.
hereunder,the license type and any of the following: (i)the
number of Users licensed to access or use each such (p) "Statement of Work" is as defined in the Professional
component or module of the Software pursuant to this Services Terms.
Agreement; (ii)the number of transactions permitted under
this Agreement;(iii)the number of servers permitted to run (q) "Third Party Software" means certain software supplied by
the Software;or(iv)the number of databases available to the third parties that Licensor provides access to as part of the
Customer. Software.
(f) "Licensor Products and Services"means Software,(including (r) "User"means any individual accessing or using the Software.
Initial License Configuration), Professional Services, Service
Deliverables, Maintenance Services, training services and 2. Delivery of Software.
other services provided by Licensor under this Agreement.
Unless otherwise set forth in an Order Form, Licensor will
(g) "Licensor Related Parties" means, collectively, Licensor, its electronically via the Internet deliver to Customer the Software
Affiliates, and their respective members, shareholders, that Customer licenses under this Agreement. The Software will
partners, owners, officers, directors, employees, licensors, be deemed accepted by Customer immediately upon such
agents and representatives. electronic delivery of the Software to Customer.Notwithstanding
the foregoing,in the event the Software,including any Third Party
Software, is physically shipped, the Parties hereby agree that
Exhibit A-Perpetual License Agreement(Aptean v2)-NA -3-
delivery of such Software shall be F.O.B.delivery point.Customer's except as expressly provided in this Agreement;(ii)disable or
acceptance of the Software is as delivered, with no expectation circumvent any licensing control feature in the Software or
that Licensor would customize or modify the Software for the Service Deliverables; (iii) reverse-engineer, disassemble, or
Customer's specific business requirements unless agreed to in decompile the Software or Service Deliverables or otherwise
writing by the Parties under a Statement of Work. attempt to access or determine its underlying source code,
underlying ideas, underlying user interface techniques or
3. Software Licenses. algorithms, or permit any such actions; (iv) sell, distribute,
lend, sublicense, rent or lease all or any portion of the
(a) License Grant. Licensor hereby grants to Customer, subject Software or Service Deliverables; (v) use the Software or
to the terms and conditions of this Agreement, a personal, Service Deliverables on a service bureau or time-share basis
limited, non-exclusive, non-transferable, non-assignable or as an application service provider; (vi) host, virtualize or
license,without right of sublicense,to(i)install the Software otherwise provide access to or enable use of the Software or
and Service Deliverables in machine-readable object code Service Deliverables by any individual(s)not permitted to use
format on a certain number of servers owned or leased by the Software pursuant to this Agreement; (vii) disclose the
Customer and maintained for access solely by the Customer, results of any benchmarking of the Software or Service
and(ii)permit the Software to be accessed or used solely for Deliverables (whether or not obtained with Licensor's
Customer's internal business purposes by no more than the assistance)to third parties; (viii) use the Software or Service
number of Users permitted in an Order Form and any Deliverables to develop or enhance any product that
subsequent License Configuration as purchased in the competes, directly or indirectly, in Licensor's determination,
applicable Order Form (the "License"). Customer may make with the Software or Service Deliverables; (ix) remove the
one copy of the Software solely for archival and back up copyright, trademark, or any other proprietary rights or
purposes,provided executable copies of the Software may be notices included within the Software or Service Deliverables
used for development and testing purposes only.The License or on and in the documentation and training materials;(x)use
is perpetual unless otherwise indicated or unless otherwise the Software in any way that would infringe any Intellectual
terminated pursuant to Section 10. For the avoidance of Property Right of third parties; or (xi) use the Software or
doubt, unless otherwise set forth on the applicable Order Service Deliverables in a manner that would violate any law
Form,the License is granted solely to the Customer and not applicable to Customer or Licensor.
to any of its Affiliates.
4. Maintenance and Other Services.
(b) Authorization. Customer warrants that it is authorized to
bind,and by virtue of its execution hereof,binds Users to the (a) Customer Maintenance. During the Maintenance Term,
terms and conditions of this Agreement as if the Users were Licensor will provide Customer with Maintenance Services for
the Customer. Users hereby assume all of Customer's the Software. After the Maintenance Term, Maintenance
obligations under this Agreement. Customer shall guarantee Services shall automatically renew annually for a one-year
that all Users will assume and abide by all of Customer's term, unless either Party provides the other Party with at
obligations under this Agreement. To the extent applicable, least sixty (60) days advance written notice prior to the
Customer is responsible for acquiring all third party software expiration of the then-current Maintenance Term that such
(excluding the Third Party Software)and hardware products Party desires not to renew.Licensor shall invoice Customer on
required for the operation of the Software. an annual basis for each annual renewal period even if the
Customer has locked-in Maintenance Services for a period
(c) Management of License. Use of the Software is limited for longer than one year. Fees for all renewal periods for
production purposes to the operating system and database Maintenance Services will be due within fifteen (15) days
specified on an Order Form. Customer's access to the prior to the beginning of the new Maintenance
Software is limited to the number and type(s) of Users for Term. Licensor reserves the right to increase the fee for
which each such product is licensed as specified in the Order Maintenance Services on an annual basis at then-current
Form and shall be used in accordance with the applicable prevailing rates upon at least ninety (90) days advance
terms for each license type attached hereto and set forth in written notice of such increase to Customer,except such an
Schedule 1. increase shall not be more than five percent (5%) from the
previous year's Maintenance Services.Licensor's obligation to
(d) Additional Software. Customer may elect to license provide Maintenance Services for Third Party Software is
additional Software components, optional modules or limited to using commercially reasonable efforts to obtain
languages,additional transactions,or add Users as agreed to Maintenance Releases from its third party suppliers.
by Licensor in a written amendment or an Order Form signed
by both Parties. In the event Customer cancels Maintenance Services at any
time prior to the end of the Maintenance Term set forth in
(e) Restrictions on Use. Customer may not:(i)use,copy,modify, the Order Form, Customer agrees to immediately pay the
translate, merge or create derivative works of the Software, outstanding maintenance fees that Licensor would have
Service Deliverables, documentation or training materials received for the entire Maintenance Term, less any
Exhibit B-Subscription Services Agreement—NA -4-
maintenance fees previously paid by Customer for the and Service Deliverables provided by Licensor to Customer
aforementioned period. The Parties agree that this is a fair are not performed on a"work for hire"basis.
and reasonable estimation of Licensor's damages in the event
Customer breaches Customer's obligation to maintain (b) Customer Materials.Subject to Section 6(a),all right,title and
Maintenance Services through the end of the agreed upon interest (including all Intellectual Property rights) in and to
Maintenance Term. In the event the State of Texas modifies the Customer Materials are owned by Customer or
or changes its crash report form,Customer's electronic form Customer's suppliers.
will be modified or changed accordingly to duplicate the most
current form and meet Texas'legal requirements pursuant to 7. Warranty.
an agreed-upon Statement of Work.The modifications shall
be provided as soon as practicable from the time of Licensor's jaj Representations and Warranties. Each Party represents and
receipt of notice from Customer that the law has been warrants that it has the legal power and authority to enter
changed. into this Agreement.Customer represents and warrants that
Customer has neither falsely identified itself nor provided any
(b) Provision of Maintenance. Customer agrees that false information to Licensor and that Customer's billing
Maintenance Services shall be provided only by Licensor, its information is correct.
Affiliates or third parties authorized in writing by Licensor
("Third Party Servicers"). (b) Limited Warranty on Initial License Configuration. For a
period of ninety (90) days following the Effective Date
(c) Professional Services. Licensor will provide Customer certain ("Software Warranty Period"), Licensor warrants that the
professional services("Professional Services")in accordance Initial License Configuration (excluding as it relates to Third
with this Agreement, including the Professional Services Party Software),as provided by Licensor during the Software
Terms attached hereto as Schedule 1("Professional Services Warranty Period,will in all material respects conform to and
Terms")and the applicable Statement of Work. perform in accordance with Licensor's published
documentation that comes with the Initial License
5. Payment Terms. Configuration. Customer must report any breach of the
foregoing warranty to Licensor in writing pursuant to Section
Unless otherwise set forth in an Order Form, all payments 1(f) of Exhibit C within the Software Warranty Period.
(including fees for Initial License Configuration and fees for Customer's exclusive remedy for a breach of this warranty is
Maintenance Services) are due within thirty (30) days of the the correction of any material reproducible nonconformity in
invoice date. All such payments are non-refundable. The License the Software licensed under the initial License Configuration
is subject to timely payment of all fees due under this Agreement. so that it conforms to this warranty. Use of the Software in a
Payment terms in this Agreement are subject to credit approval in manner set forth in Section 8(b) will immediately void the
Licensor's reasonable discretion and may be changed based on limited warranty offered under this Section 7(b).
Customer's financial position or payment history.Customer agrees Notwithstanding anything in this Agreement to the contrary,
to pay a finance charge equal to the lesser of one and a half Licensor does not warrant the Third Party Software, but
percent(1.5%)per month or the maximum rate permitted by law Licensor will use commercially reasonable efforts to pass on
on all past due amounts. Customer shall reimburse Licensor for to Customer the benefits of any warranties Licensor has
any of Licensor's reasonable costs of collecting past due amounts. received from the Third Party Software vendors. Customer
All prices and payments in this Agreement are exclusive of all taxes, acknowledges and agrees that any warranties applying to the
and Customer agrees to pay all national,state and local sales,use, Third Party Software,if any,are made solely by the third party
value-added, withholding and other taxes, customs duties and owner of such Third Party Software and are limited to those
similar tariffs and fees based on the Software,and other services offered by the applicable end user agreement that
provided hereunder, other than taxes imposed on Licensor's net accompanies the Third Party Software or is otherwise
income. At Licensor's request, Customer shall furnish Licensor published by the third party supplier,which governs the use
proof of payment of such taxes.Fees are not subject to set-off or of or access by Customer to the applicable Third Party
reduction by Customer without Licensor's prior written consent. Software.
6. Ownership and Copyright. ll Warranty Disclaimer. THE LIMITED WARRANTY EXPRESSLY
SET FORTH IN SECTION 7(B) CONSTITUTES THE SOLE AND
(a) Software and Service Deliverables. All right,title and interest EXCLUSIVE WARRANTY GIVEN BY LICENSOR WITH RESPECT
(including all Intellectual Property Rights) in and to the TO THE LICENSOR PRODUCTS AND SERVICES. EXCEPT FOR
Software, Service Deliverables, documentation and training THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION
materials Licensor provides are owned by Licensor or its 7(B),LICENSOR PRODUCTS AND SERVICES ARE PROVIDED"AS
suppliers, as applicable, and are protected by intellectual IS" AND LICENSOR EXPRESSLY DISCLAIMS ANY OTHER
property laws,including copyright,patent,trademark,and/or WARRANTIES,EXPRESS,IMPLIED OR STATUTORY(INCLUDING
trade secret laws. Any rights not expressly granted herein are THOSE BY LICENSOR'S SUPPLIERS), INCLUDING ANY
reserved to Licensor and its licensors. Professional Services WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
Exhibit B-Subscription Services Agreement—NA -5-
PARTICULAR PURPOSE, TITLE, OR QUIET ENJOYMENT, AS for Customer to continue to use the Software or Service
WELL AS ANY WARRANTIES THAT THE LICENSOR PRODUCTS Deliverables or modifythe Software or Service Deliverables in
AND SERVICES WILL BE FREE OF INTERRUPTIONS OR ERRORS. a manner that has materially equivalent functionality so as to
LICENSOR SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS avoid such injunction. If the foregoing options are not
TO LICENSOR'S OR CUSTOMER'S TRANSMISSION FACILITIES available on commercially reasonable terms and conditions,
OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS Licensor may require the return of any such Software or
TO OR ALTERATION, THEFT OR DESTRUCTION OF Service Deliverables and refund to Customer amounts paid
CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR for such Software or Service Deliverables less a credit for use
INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS based on straight line depreciation applied on a quarterly
OR DEVICES,OR ANY OTHER METHOD. basis over five(5)years from the date of initial delivery of the
Software or a Service Deliverable.
(d) Customer acknowledges and agrees that the warranty set
forth in Section 7(b)shall not apply to any Software or Service (d) Intentionally Deleted.
Deliverables delivered to Customer prior to the date of this
Agreement, if applicable, by Licensor, its Affiliates or any of (e) Procedure. If a Party(the"Indemnitee")receives any notice
its respective predecessors. of a Claim or other allegation with respect to which the other
Party (the "Indemnitor") has an obligation of indemnity
8. Indemnification. hereunder, then the Indemnitee will, in order to qualify for
Indemnification under this Section 8,within twenty(20)days
(a) Claims Related to Software or Service Deliverables. Provided of receipt of such notice,give the Indemnitor written notice,
that Customer complies with the procedures set forth in pursuant to Section 2(f)of Exhibit C of such Claim or allegation
Section 8(e) and subject to Section 8(b), Licensor will, at its setting forth in reasonable detail the facts and circumstances
expense and under its control(including selection of counsel), surrounding the claim. The Indemnitee will not make any
defend and/or settle any claim,suit or proceeding brought by payment or incur any costs or expenses with respect to such
a third party(each,a"Claim")against Customer,its Affiliates, Claim,except as requested by the Indemnitor or as necessary
or their respective officers, directors,employees and agents to comply with this procedure. The Indemnitee will not make
alleging that the Software or any Service Deliverable, as any admission of liability or take any other action that limits
provided by Licensor, infringes any copyright, trademark, the ability of the Indemnitor to defend the Claim. The
trade secret or U.S.,E.U.or Canadian patent issued as of the Indemnitor shall immediately assume the full control of the
Effective Date. In addition, Licensor will pay any final defense or settlement of such Claim or allegation, including
judgment awarded against Customer for such Claim or any the selection and employment of counsel, and shall pay all
settlement amount agreed to by Licensor and, subject to authorized and documented costs and expenses of such
Section 8(e), any authorized and documented expenses defense. The Indemnitee will fully cooperate,at the expense
incurred by Customer in connection with the Claim. of the Indemnitor,in the defense or settlement of the Claim.
The Indemnitee shall have the right, at its own expense, to
(b) Exclusions. Licensor will have no obligation under Section employ separate counsel and participate in the defense or
8(a)with respect to any Claim arising out of or based upon:(i) settlement of the Claim. The Indemnitor shall have no liability
Customer's modification of the Software or Service for costs or expenses incurred by the Indemnitee,except to
Deliverables or its combination or use with programs not the extent authorized by the Indemnitor or pursuant to this
supplied by Licensor or its use in a manner not permitted by procedure.
this Agreement; (ii) use of the Software or Service
Deliverables that is not in accordance with the terms of this (f) Exclusive Remedies.THE INDEMNITY AND OTHER REMEDIES
Agreement;(iii)Customer's use,reproduction or distribution SET FORTH IN THIS SECTION 8 SHALL BE THE EXCLUSIVE
of other than the most recent or a modified version of the REMEDIES OFTHE PARTIES WITH RESPECTTO ANY CLAIM FOR
Software or Service Deliverables provided by Licensor or WHICH A PARTY HAS AN OBLIGATION OR INDEMNITY
available to Customer where such infringement would have PURSUANT TO THIS SECTION 8, INCLUDING ANY WARRANTY
been avoided by Customer's use or implementation of the OBLIGATIONS.
most recent version of the Software or Service Deliverables;
(iv) Customer Materials used with or incorporated in the (g) Licensor shall carry the requisite insurance as set forth in
Software or a Service Deliverable; (v) continued use of any Exhibit C of this Agreement.
infringing Software or Service Deliverable after being
provided notice to cease use of such Software or Service g, Limitation of Liability.
Deliverable.
(a) IN NO EVENT SHALL LICENSOR BE LIABLE FOR INDIRECT,
(c) Enjoinment. If Customer's use of the Software or Service INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR
Deliverables is or, in Licensor's determination, is likely to be PUNITIVE DAMAGES, INCLUDING DAMAGES FOR, OR COSTS
enjoined, Licensor may, at its option and expense without INCURRED AS A RESULT OF, LOSS OF TIME, LOSS OR
limiting its indemnity obligations hereunder,procure the right INACCURACY OF DATA,LOSS OF PROFITS OR REVENUE,LOSS
Exhibit B-Subscription Services Agreement—NA -6-
OF GOOD WILL OR BUSINESS INTERRUPTION, HOWEVER wind-up its business(each,a "Bankruptcy Event"). Licensor
ARISING, EVEN IF LICENSOR HAS BEEN ADVISED OF THE may at its sole discretion terminate or temporarily suspend
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE Customer's rights to any Software,service or deliverable prior
FOREGOING, LICENSOR SHALL BE RESPONSIBLE FOR COSTS to exercising its right to terminate this Agreement pursuant
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES to this Section 10(a). Customer may terminate this
UPON A BREACH OF THIS AGREEMENT BY LICENSOR. Agreement for its convenience at any time and for any reason
by providing Licensor with 30 days' written notice of
(b) EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT AS termination.
OUTLINED IN THIS AGREEMENT, IN NO EVENT SHALL
LICENSOR'S AGGREGATE, CUMULATIVE LIABILITY ARISING (b) Effect upon Termination. Upon termination of this
OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN Agreement("Termination"),all licenses granted herein shall
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF automatically cease and Customer shall discontinue all use of
LIABILITY, EXCEED FIVE (5) TIMES THE AGGREGATE the Software and Service Deliverables and destroy any copies
PAYMENTS MADE BY CUSTOMER IN THE TWELVE (12) thereof in Customer's possession or control. Customer shall
MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT deliver to Licensor within thirty (30) days from the date of
GIVING RISE TO SUCH CLAIM. IN THE CASE OF INTELLECTUAL Termination a certificate executed by an authorized officer of
PROPERTY INFRINGEMENT AS OUTLINED IN THIS the Customer stating that Customer has destroyed all such
AGREEMENT, IN NO EVENT SHALL LICENSOR'S AGGREGATE, copies of the Software and Service Deliverables. Any
CUMULATIVE LIABILITY EXCEED TEN (10) TIMES THE obligation of either Party which accrued prior to termination,
AGGREGATE PAYMENTS MADE BY CUSTOMER IN THE including without limitation,any payment due and owing,and
TWELVE(12)MONTH PERIOD IMMEDIATELY PRECEDING THE Sections 1(Definitions),5(Payment Terms),6(Ownership and
FIRST EVENT GIVING RISE TO SUCH CLAIM. Copyright), 7(c) (Warranty Disclaimer), 8 (Indemnification)
and 9(Limitation of Liability)of this Exhibit A and Sections 2
10. Term and Termination. (Miscellaneous) and 3 (Confidentiality) of Exhibit C shall
survive the Termination. Termination of this Agreement shall
(a) Term and Termination. If either Party fails to materially also automatically terminate all then-active Statements of
comply with any of the terms and conditions of this Work.
Agreement and such Party fails to correct such non-
compliance within thirty (30) days following written notice (c) Effect of Bankruptcy. Upon a Bankruptcy Event,amounts that
thereof ("Cure Period") by the other Party (the "Non- have been paid to Licensor shall be deemed earned upon
Breaching Party"), then such Non-Breaching Party may receipt and shall be Licensor's sole property, irrespective of
terminate this Agreement with written notice to the other whether goods or services(including Software,Maintenance
Party. Failure to make timely payments is a material breach Services,Service Deliverables and Professional Services)have
of this Agreement. Subject to applicable law,either Party also been delivered and may be applied, in whole or in part, in
may terminate this Agreement with written notice to the satisfaction of any obligations owed by Customer to Licensor
other Party (the "Affected Party") if: (i) a receiver is under this Agreement or any other agreement between
appointed for the Affected Party or Affected Party's property; Customer and Licensor. Additionally, Customer agrees that,
(ii) Affected Party makes an assignment for the benefit of upon a Bankruptcy Event: i) Licensor shall be a preferred
Affected Party's creditors; (iii) any proceedings are creditor or critical vendor, as applicable; and ii) Customer
commenced by,for or against the Affected Party under any shall take all necessary steps and complete all documents
bankruptcy, insolvency or debtor's relief law; or (iv) the required to effect and maintain such status.
Affected Party commences steps to liquidate, dissolve or
Exhibit 8-Subscription Services Agreement—NA -7-
Exhibit B
SUBSCRIPTION SERVICES AGREEMENT(SaaS)
GENERAL TERMS AND CONDITIONS
1. Definitions. (k) "Order Form" means Licensor's standard order form, as
included herein and attached hereto, that (i) specifies the
(a) "Affiliate" means any entity directly or indirectly controlling, Service applications or modules provided to Customer;(ii)the
controlled by or under common control by another entity. For number of Users,transactions or bandwidth where applicable,
purposes of this definition, "control" means the possession, (iii)references this Agreement;and(iv)is signed by authorized
directly or indirectly, of the power to direct or cause the representatives of both Parties and deemed incorporated into
direction of the management and policies of another entity, the Agreement.
whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and (1) "Overage" means the number of Users, transactions, or
"controlled"have meanings correlative to the foregoing. bandwidth above the committed number of Users or selected
transaction tier,as applicable,as set forth in the Order Form.
(b) "Customer Data" means any data, information or material
provided to Licensor or uploaded to the Service by or on (m) "Professional Services" mean certain professional services
behalf of Customer in the course of Customer using the (excluding the Services) outside of the Implementation
Service. Services, if applicable, and which may be further described
through a statement of work pursuant to Exhibit A.
(c) "Customer Equipment" means Customer's computer
hardware,software and network infrastructure used to access (n) "Professional Services Fee" means the fee paid by Customer
the Service. to Licensor for the additional Professional Services outside of
the Implementation Services and as provided in Exhibit A and
(d) "Customer Error Incident" means any Service unavailability the applicable statement of work.
related to Customer's applications, Customer Data,
Customer's Equipment,or the acts or omissions of any User of (o) "Service"means the hosted,on-demand or web-based service
the Service. offered by Licensor as described in the Order Form.
(e) "Implementation Services" means the initial services (p) "Service Deliverables" means the items to be delivered to
provided to Customer as may be described in the Order Form Customer in connection with Professional Services Licensor
attached to this Agreement or in a Statement of Work. performs pursuant to Exhibit A, such as consulting reports,
training,and integration work.
(f) "Initial Subscription Term"means the period of time set forth
in the Order Form attached to this Agreement. (q) "Software"means those components of proprietary Licensor
software and Third Party Software, if any, as set forth in an
(g) "Intellectual Property Rights"means copyrights,trademarks, Order Form, together with Maintenance Releases that are
service marks, patents, trade secrets, and other related provided in connection with such software and made available
proprietary or statutory rights that have been or subsequently through the Service under this Agreement.
exist pursuant to all applicable statutes, laws, regulations,
treaties or common law in any country or jurisdiction in the (r) "Subscription Service Fee"means the committed fee paid by
world, now or hereafter existing, and whether or not Customer for access to the Service during the Initial
perfected,filed or recorded. Subscription Term.
(h) "Login" means the username and password assigned by (s) "Subscription Term" means, collectively, the Initial
Customer for each User. Subscription Term and all subsequent renewal terms of this
this Agreement.
(i) "Maintenance Releases" means Software updates or latest
versions, including bug fixes, maintenance, support, (t) "Technology" means all of Licensor's proprietary technology
modifications, additions and enhancements developed after (including software modules, hardware, products, Services,
the Effective Date that Licensor generally makes available to processes,algorithms,user interfaces,know-how,techniques,
its customers of the Service. designs and other tangible or intangible technical material or
information) made available to Customer by Licensor in
(j) "Malicious Code"means any computer viruses,worms or any providing the Service.
other software that is intended to damage or alter a computer
system or data.
Exhibit B-Subscription Services Agreement—NA 8
(u) "Third Party Software" means certain software supplied by (e) Licensor will provide data storage as set forth in the Order
third parties that Licensor provides access to as part of the Form.
Service as may be set forth in an Order Form.
(f) Except as stated herein,Licensor will maintain the Service at a
(v) "User(s)"means any individual with an active account. reputable third party Internet service provider and hosting
facility,where it is subjectto commercially reasonable security
2. Service. precautions to prevent unauthorized access to the Service.
Customer Data and the maintenance of Customer Data and
(a) Licensor will provide Customer with use of the Service,which such procedures shall comply with industry standards for the
may include a browser interface and encrypted login (when type of information maintained. However, Customer
required), transmission, access to and storage of Customer acknowledges that, notwithstanding such security
Data. Licensor may at its sole discretion enhance the Service precautions,use of or connection to the Internet provides the
from time to time,at no cost or expense to Customer.Licensor opportunity for unauthorized third parties to circumvent such
may grant Customer access to the Service via a dedicated precautions and illegally gain access to the Service, and
website,VPN access or otherwise. Licensor will configure the Licensor will not be responsible for such acts.
Service and any Service Deliverables used in conjunction with
the Service, as applicable. Licensor will begin such 3. Restrictions.
configuration following a statement of work or Order Form
executed by the parties hereto. Except as stated herein, (i) Except as stated herein, Customer shall use the Service solely for
Customer may not customize the Service without Licensor's Customer's internal business purposes, in compliance with
prior written consent or other than as part of integration applicable law, and shall not: (i) sublicense, lease, or otherwise
services provided by Licensor and (ii) Licensor shall make the Service or Software available to any unauthorized third
provide installation of any Maintenance Releases at its sole party;(ii)send or store infringing,unlawful,defamatory or libelous
discretion, as part of the Service at no extra charge to material; (iii) send or store any Malicious Code; (iv) access the
Customer. Service by any means other than the Login or otherwise attempt to
gain unauthorized access to, or disrupt the integrity or
(b) Except as stated herein,Customer shall access the Service only performance of, the Service or the data contained therein; (v)
for Customer's internal business operations. Customer shall modify,copy or create derivative works based on the Service;(vi)
not have the right to transfer or assign rights to access or use reverse engineer the Service or Software;(vii)access the Service or
the Service. Customer shall not use the Service for any Software for the purpose of building, selling, marketing or
purpose other than as specified in this Agreement. All rights otherwise, a competitive product or service or copying the
not expressly granted to Customer herein are expressly Software or Service's features or user interface;or(viii)remove the
reserved by Licensor. copyright, trademark, or any other proprietary rights or notices
included within the Service or Software and on and in any
(c) Licensor hereby grants Customer a personal, limited, non- documentation or training materials.
exclusive, non-transferable, non-assignable license, without
right of sublicense,to access and use the Service, subject to 4. Customer Responsibilities.
the terms and conditions of this Agreement. Customer may
only (i) access the Software as stated in this Agreement and (a) Customer agrees to abide by all applicable local, state,
(ii)permit such access by Users. national and foreign laws, treaties and regulations in
connection with Customer's use of the Service, including
(d) Each User may be required to have a Login with unique user those related to data privacy, international communications
identification. Licensor reserves the right to require Customer and the transmission of technical or personal data.Customer
to alter any password if Licensor believes it is no longer secure. shall:(1) notify Licensor immediately of any unauthorized use
Customer shall not permit more than one person to use each of any Login or any other known or suspected breach of
Login to access the Service or otherwise share Login accounts, security; (ii) report to Licensor immediately and use
user identifications or passwords. Customer shall not reasonable efforts to stop immediately any copying or
deactivate a named individual's access to the Service and distribution of content that is known or suspected by
assign such access to another named individual without Customer to be infringing or unlawful; and (iii) not
Licensor's prior written consent. Customer is liable for all impersonate another Licensor customer or provide false
access to the Service and activities conducted by individuals identity information to gain access to or use the Service.
accessing the Service using the Logins, including such
individual's compliance with the terms herein. Customer (b) Customer shall be responsible for any costs in connection with
agrees to notify Licensor immediately if Customer suspects establishment and maintenance of Internet connectivity to
any unauthorized use of Customer's account or access to any the Service, including (without limitation) telephone,
password. communications, internet service provider costs, computer
hardware, modem,fees charged by third parties, insurance,
Exhibit B-Subscription Services Agreement—NA -9-
internet access software, or any other costs incurred by (ii) the Customer Data does not violate the privacy rights,
Customer in accessing the Service. publicity rights,copyright rights,or other rights of any person
or entity. Licensor has the right (but not the obligation)to
S. Service Availability review any Customer Data and delete any Customer Data that
in the sole judgment of Licensor violates this Agreement, is
(a) Licensor does not control the flow of data to or from prohibited content, is illegal, violates the rights, harms, or
Customer's internet hosts and other portions of the internet. threatens the safety of any User or any other person, or
Such flow depends in large part on the performance of creates liability for Licensor, its suppliers, or any user on five
internet services provided or controlled by third parties. At (5) days' written notice to Customer specifying the alleged
times, actions or inactions caused by internet service default or violation. Licensor reserves the right (but has no
providers can produce situations in which Customer's obligation)to investigate and take action in its sole discretion
connections to the internet (or portions thereof) may be against Customer if Customer violates this provision or any
impaired or disrupted ("Internet Disruptions"). Customer other provision of this Agreement, including without
hereby agrees that Licensor shall not be liable for any Service limitation, removing Customer Data from the Service,
delays arising from any Internet Disruptions. Licensor shall terminating the Agreement, reporting Customer to law
make reasonable efforts to provide production environment enforcement authorities, and taking legal action against
service availability of 98% measured on a quarterly basis Customer.
("Service Availability") not including (i) Customer Error
Incidents, (ii) Force Majeure and (iii) Internet Disruptions. In (b) Licensor reserves the right to access and disclose Customer
order to enable Licensor to troubleshoot problems as Data as necessary to comply with applicable laws and
necessary, Licensor uses an administrator account on each government requests,to operate or maintain the Services,to
Customer environment and may utilize manual testing to protect itself or its customers (including virus scanning),and
confirm such failure. An interruption in the Service shall not to evaluate and improve the performance and
be considered a breach of Licensor's obligations hereunder if: implementation of the Services. Licensor reserves the right to
(i)Licensor promptly takes all reasonable steps to restore the perform statistical analyses of user behavior and
Service; or (ii) the interruption in Service results from a characteristics and to provide aggregated or statistical
Customer Error Incident, a Force Majeure or due to an analyses of data derived from the Services to third parties,
Internet Disruption. provided that the information is presented in a manner which
does not disclose the identity of the Customer. Except as(i)
(b) if Customer engages in activity that is not a legitimate use of specifically stated in this provision; (ii) set forth in any
the Service, such as security penetration tests, stress tests, additional terms,if applicable,set forth in a schedule attached
spamming activity, or other activity for which the Service is hereto or (iii) upon instruction from Customer, Licensor will
not intended,such use will be considered a material breach of not disclose to third parties any Customer identifiable data in
this Agreement and Licensor will provide Customer notice of the course of providing the Services under this Agreement.
the material breach and give Customer 3 days to cure. If the Licensor will not sell or otherwise transfer Customer
material breach is not cured within 3 days,Licensor may shut identifiable data to third parties without Customer's prior
down Customer's Service until such activity ceases,with such approval.
Service interruption not being counted against the above
Service Availability. (c) Licensor will maintain the Customer Data on server(s) at
Licensor's designated site and provide backups to Customer's
6. Customer Data. Data as follows: (i)an incremental backup will be conducted
once a day; and (ii) a full weekly backup will be conducted
(a) Licensor does not own any Customer Data. Customer, not every week.The full weekly backups are kept on file for three
Licensor, shall have sole responsibility for the accuracy, (3)months.Licensor will use commercially reasonable efforts
quality, integrity, legality, reliability, appropriateness, and to perform restorations to the Service in the event of a service
intellectual property ownership or right to use all Customer failure.
Data, and Licensor shall not be responsible or liable for: (i)
damages resulting from Licensor's reliance on such Customer 7. Intellectual Property Ownership.
Data and/or(ii)the deletion,correction,destruction,damage,
or loss of any data that result from Customer's actions. All right,title and interest,including all Intellectual Property Rights,
Licensor is not responsible for restoring lost data or damage in and to the Software, Service Technology, documentation and
to Customer's data that results from Customer's actions. training materials Licensor provides are owned by Licensor or its
Customer hereby grants to Licensor a non-exclusive,fully-paid suppliers,as applicable,and are protected by intellectual property
and royalty-free license to reproduce, distribute, perform, laws, including copyright, patent, trademark, and/or trade secret
display and otherwise use the Customer Data solely to provide laws.Customer hereby assigns to Licensor any suggestions,ideas,
the Service to Customer. Customer represents and warrants enhancement requests, feedback, recommendations or other
that:(1)Customer owns or otherwise has the right to grant the information provided by Customer relating to the Software,Service
license set forth in this Section 6(a)forthe Customer Data,and or Technology. Licensor may use such submissions as it deems
Exhibit B-Subscription Services Agreement—NA -10-
appropriate in its sole discretion. Licensor hereby grants Customer amendment setting forth the Additional License Types.
a limited, non-sub-licensable license to reproduce and display the Customer may only reduce the number of Users or other
Customer Data(excluding any Software code)solely for Customer's license types set forth in the Order Form attached to this
personal use in connection with using the Service.This Agreement Agreement, plus any Additional License Types purchased via
is not a sale and does not convey to Customer any rights of an amendment to this Agreement,as applicable,at the end of
ownership in or related to the Software,Service,Technology or the each Subscription Term via an executed amendment between
Intellectual Property Rights owned by Licensor and its suppliers. the Parties. Licensor's fees are exclusive of all taxes,levies,or
Licensor's name, logo, and product names associated with the duties imposed by taxing authorities, and Customer shall be
Service are trademarks of Licensor or its suppliers,and no right or responsible for payment of all such taxes, levies, or duties,
license is granted to use them. Customer will not accrue any excluding only United States (federal or state) taxes based
residual rights to the Software, Technology or Service, including solely on Licensor's income.At Licensor's request, Customer
any rights to the Intellectual Property Rights in connection shall furnish Licensor proof of payment of such taxes.Fees are
therewith. Customer will not remove, deface or obscure any of not subject to set-off or reduction by Customer without
Licensor's or its supplier's copyright or trademark notices and/or Licensor's prior written consent.
legends or other proprietary notices on, incorporated therein, or
associated with the Service.Any rights not expressly granted herein (d) In addition to any other rights granted to Licensor herein,
are reserved to Licensor and its licensors,as applicable. Licensor reserves the right to suspend or terminate this
Agreement and Customer's access to the Service if Customer's
8. Charges and Fees. account becomes delinquent (falls into arrears). Customer
agrees to pay a finance charge equal to the lesser of one and
(a) Customer agrees to provide Licensor with complete and a half percent (1.5%) per month or the maximum rate
accurate billing and contact information. This information permitted by law on all past due amounts. Customer shall
includes Customer's legal company name, street address, e- reimburse Licensor for any of Licensor's reasonable costs of
mail address, and name and telephone number of an collecting past due amounts. Customer will continue to be
authorized billing contact. charged for committed Users or other license types during any
period of suspension. If Customer or Licensor initiates
(b) Licensor will invoice Customer upon execution of this termination of this Agreement,Customer will be obligated to
Agreement for the Subscription Service Fee as provided in the pay the balance due on Customer's account computed in
Order Form. Payments are due within thirty(30)days of the accordance with the terms set forth herein.
invoice date unless explicitly stated otherwise on the
applicable Order Form.Payment terms of this Agreement are (e) Licensor reserves the right to impose a service reinstatement
subject to credit approval in Licensor's reasonable discretion fee in the event Customer is suspended and thereafter
and may be changed based on Customer's financial position request access to the Service.
or payment history. Other fees associated with Customer's
actual usage will be charged in arrears. Fees for other services (f) Licensor shall have the right,but not the obligation,to verify
will be charged on an as-quoted basis. Except as set forth the number of Users or other license types under this
herein, all payment obligations are non-cancelable and all Agreement at the end of each month.
amounts paid are nonrefundable. Customer is responsible for
paying all license types that give access to Users which are 9. Term and Termination.
ordered for the entire Subscription Term,whether or not such
User access is actively used. Customer shall pay for all (a) The initial term of this Agreement will commence upon
amounts due and owing for the Service,including committed Effective Date. Upon the expiration of the Initial Subscription
Subscription Service Fee for each Subscription Term,Overage Term,this Agreement will automatically renew for successive
fees, or any other fee or charge associated with Customer's renewal terms equal in duration to the Initial Subscription
use of the Service. Term, unless Customer or Licensor provides the other Party
with at least thirty (30) days prior written notice from the
(c) At any time,Customer may add Users components(modules, renewal date of its desire not to renew.The renewal fee shall
cells and sites)and databases("Additional License Types")via be based upon the fees set forth in the relevant Order Form.
an executed amendment between the Parties in accordance
with Section 2(n)of Exhibit C. Additional License Types will be (b) If either Party fails to materially comply with any of the terms
subject to the following: (i) added committed Additional and conditions hereof and such Party fails to correct such non-
License Types will be coterminous with the preexisting compliance within thirty (30) days following written notice
Subscription Term(either Initial Subscription Term or renewal thereof from the other party,then such non-breaching Party
term);and(ii)Additional License Types added in the middle of may terminate this Agreement upon written notice thereof to
a billing month will be charged in full for that billing month. the other Party. Failure to make timely payments is a material
Any such Additional License Types will be charged an breach of this Agreement. In the event of such termination by
additional fee. Customer will pay for any increase in Customer under this Section 9, Licensor shall refund, on a
Additional License Types at the time of execution of the prorated basis,any fees for the Service which Customer has
Exhibit B-Subscription Services Agreement—NA _11-
pre-paid but have not used. In the event of such termination Customer Data in its systems or otherwise in its possession or
by Licensor under this Section 9, Licensor shall refund, on a under its control.
prorated basis, any fees for the Service which Customer has
pre-paid but have not used. . 10. Representations and Warranties.
(c) Subject to applicable law, either Party may terminate this (a) Representations and Warranties. Each Party represents
Agreement immediately with notice to the other Party (the and warrants that it has the legal power and authority to
"Other Party")if:(i)a receiver is appointed for the Other Party enter into this Agreement. Customer represents and
or the Other Party's property; (ii)the Other Party makes an warrants that Customer has neither falsely identified
assignment for the benefit of the Other Party's creditors;(iii) itself nor provided any false information to Licensor and
any proceedings are commenced by,for or against the Other that Customer's billing information is correct.
Party under any bankruptcy,insolvency or debtor's relief law;
or(iv)the Other Party commences steps to liquidate,dissolve (b) Warranty Disclaimer. THE WARRANTY EXPRESSLY SET
or wind-up its business(each,a"Bankruptcy Event"). FORTH IN SECTION 10(A) CONSTITUTES THE SOLE AND
EXCLUSIVE WARRANTY GIVEN BY LICENSOR WITH
(d) Upon a Bankruptcy Event, amounts that have been paid to RESPECT TO THE LICENSOR PRODUCTS AND SERVICES.
Licensor shall be deemed earned upon receipt and shall be EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN
Licensor's sole property, irrespective of whether goods or SECTION 10(A),LICENSOR PRODUCTS AND SERVICES ARE
Services have been delivered and may be applied,in whole or PROVIDED"AS IS"AND LICENSOR EXPRESSLY DISCLAIMS
in part,in satisfaction of any obligations owed by Customer to ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR
Licensor under this Agreement or any other agreement STATUTORY (INCLUDING THOSE BY LICENSOR'S
between Customer and Licensor. Additionally, Customer SUPPLIERS), INCLUDING ANY WARRANTIES OF
agrees that, upon a Bankruptcy Event: (i) Licensor shall be a MERCHANTABILITY, FITNESS FOR A PARTICULAR
preferred creditor or critical vendor, as applicable; and (ii) PURPOSE, TITLE, OR QUIET ENJOYMENT. LICENSOR
Customer shall take all necessary steps and complete all SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO
documents required to effect and maintain such status. LICENSOR'S OR CUSTOMER'S TRANSMISSION FACILITIES
OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED
ACCESS TO OR ALTERATION,THEFT OR DESTRUCTION OF
(e) Upon termination of this Agreement ("Termination"), all CUSTOMER'S DATA FILES, PROGRAMS,PROCEDURES OR
licenses granted herein shall automatically cease and INFORMATION THROUGH ACCIDENT, FRAUDULENT
Customer shall discontinue all use of the Service and destroy MEANS OR DEVICES,OR ANY OTHER METHOD. LICENSOR
any copies of associated Technology within Customers MAKES NO REPRESENTATION OR WARRANTY THAT (1)
possession and control,if applicable. Any obligation of either THE SERVICE WILL BE SECURE,TIMELY,UNINTERRUPTED
Party which accrued prior to termination, including without OR ERROR-FREE OR (11)THE SERVICE OR THE SERVER(S)
limitation, any payment due and owing, and Sections 1 THAT MAKE THE SERVICE AVAILABLE ARE FREE OF
(Definitions), 7(Intellectual Property Ownership),8 (Charges VIRUSES OR OTHER HARMFUL COMPONENTS. LICENSOR
and Fees), 9 (Term and Termination), 11 (Limitation of CANNOT AND DOES NOT WARRANT THE PRIVACY,
Liability) and 12 (Indemnification) of this Exhibit B and SECURITY OR AUTHENTICITY OF ANY INFORMATION SO
Sections 2(Miscellaneous)and 3(Confidentiality)of Exhibit C., TRANSMITTED OVER OR STORED IN ANY SYSTEM
shall survive the Termination. Any obligation of Customer's CONNECTED TO THE INTERNET; HOWEVER, LICENSOR
which accrued prior to termination, including without WILL USE COMMERCIALLY REASONABLE EFFORTS TO
limitation any payment due and fees owed but not yet paid, PROTECT THE PRIVACY,SECURITY,OR AUTHENTICITY OF
shall survive the termination of this Agreement. THE INFORMATION TRANSMITTED OVER OR STORED
RELATED TO THIS AGREEMENT.
(f) Upon Termination, Customer may request Customer Data
within ninety(90)days of termination and Licensor will make 11. Limitation of Liability.
available to Customer an electronic copy of the Customer
Data, in unformatted or "native" format for no charge. (a) IN NO EVENT SHALL LICENSOR BE LIABLE FOR INDIRECT,
Licensor will make available a formatted version of Customer INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR
Data for an additional fee to be agreed upon in a Statement of PUNITIVE DAMAGES, INCLUDING DAMAGES FOR, OR COSTS
Work. Licensor will not provide Customer Data unless all INCURRED AS A RESULT OF, LOSS OF TIME, LOSS OR
amounts due and owing for the Service,including committed INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE,LOSS
Subscription Service Fee for each Subscription Term, OF GOOD WILL OR BUSINESS INTERRUPTION, HOWEVER
Professional Services Fee, Overage fees, or any other fee or ARISING, EVEN IF LICENSOR HAS BEEN ADVISED OF THE
charge associated with Customer's use of the Service have POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE
been paid by Customer. After such 90-day period, Licensor FOREGOING,LICENSOR SHALL BE RESPONSIBLE FOR COSTS OF
shall have no obligation to maintain or provide any Customer PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES UPON A
Data and may thereafter,unless legally prohibited,delete all BREACH OF THIS AGREEMENT BY LICENSOR.
Exhibit B-Subscription Services Agreement—NA -12-
circumstances surrounding the claim. The Indemnitee will not
(b) EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT AS make any payment or incur any costs or expenses with respect
OUTLINED IN THIS AGREEMENT, IN NO EVENT SHALL to such claim, except as requested by the Indemnitor or as
LICENSOR'S AGGREGATE, CUMULATIVE LIABILITY ARISING necessary to comply with this procedure. The Indemnitee will
OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN not make any admission of liability or take any other action
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF that limits the ability of the Indemnitor to defend the claim.
LIABILITY,EXCEED FIVE(5)TIMES THE AGGREGATE PAYMENTS The Indemnitor shall immediately assume the full control of
MADE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD the defense or settlement of such claim or allegation,
IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO including the selection and employment of counsel,and shall
SUCH CLAIM. IN THE CASE OF INTELLECTUAL PROPERTY pay all authorized and documented costs and expenses of
INFRINGEMENT AS OUTLINED IN THIS AGREEMENT, IN NO such defense. The Indemnitee will fully cooperate, at the
EVENT SHALL LICENSOR'S AGGREGATE, CUMULATIVE expense of the Indemnitor,in the defense or settlement of the
LIABILITY EXCEED TEN(10)TIMES THE AGGREGATE PAYMENTS claim. The Indemnitee shall have the right,at its own expense,
MADE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD to employ separate counsel and participate in the defense or
IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO settlement of the claim. The Indemnitor shall have no liability
SUCH CLAIM. for costs or expenses incurred by the Indemnitee, except to
the extent authorized by the Indemnitor or pursuant to this
12. Indemnification. procedure.
(a) Indemnification by Licensor.Provided that Customer complies (d) Exclusions. Licensor will have no obligation under Section
with the procedures set forth in Section 12(c)and subject to 12(a)with respect to any Claim arising out of or based upon:
Section 12(d). Licensor will, at its expense and under its (i)use of the Service that is not in accordance with the terms
control(including selection of counsel),defend and/or settle of this Agreement;(ii)Customer Data or Customer Equipment
any claim,suit or proceeding brought by a third party against used with the Service;(iii)continued use of the Service after
Customer,its Affiliates,or their respective officers,directors, being provided notice to cease use of the Service.
employees and agents alleging that the Service, as provided
by Licensor, infringes any copyright,trademark,trade secret (e) Enioinment. If Customer's use of the Service is, in Licensor's
or U.S.,E.U.or Canadian patent issued as of the Effective Date determination, likely to be enjoined, Licensor may, at its
(each, a "Claim"). In addition, Licensor will pay any final option and expense without limiting its indemnity obligations
judgment awarded against Customer for such Claim or any hereunder,procure the right for Customer to continue to use
settlement amount agreed to by Licensor and, subject to the Service or modify the Service in a manner that has
Section 12(d), any authorized and documented expenses materially equivalent functionality so as to avoid such
incurred by Customer. enjoinment. If the foregoing options are not available on
commercially reasonable terms and conditions, Licensor may
(b) Intentionally Deleted. require the termination of use of the Service.
(c) Procedure. If a Party(the"Indemnitee") receives any notice (f) Exclusive Remedies. The indemnity and other remedies set
of a claim or other allegation with respect to which the other forth in this Section 12 shall be the exclusive remedies of the
Party (the "Indemnitor") has an obligation of indemnity parties with respect to any claim for which a party has an
hereunder, then the Indemnitee will, in order to qualify for obligation of indemnity pursuant to this Section 12.
Indemnification under this Section 12(c). within twenty (20)
days of receipt of such notice, give the Indemnitor written (g) Licensor shall carry the requisite insurance as set forth in
notice, pursuant to Section 2(f) of Exhibit C of such claim or Exhibit C of this Agreement.
allegation setting forth in reasonable detail the facts and
Exhibit B-Subscription Services Agreement—NA -13-
Exhibit C
MISCELLANEOUS TERMS AND CONDITIONS
1. Equipment. after Customer receives such Equipment. After such thirty
(30) day period, Customer must refer all requests for
(a) "Equipment"shall mean those items of third-party hardware, warranty repairs or processing directly to the manufacturer.
equipment, or accessories specified on an applicable Order Licensor will extend to Customer the manufacturer's
Form to be purchased by Customer and sold by Licensor. The warranty, if any, for all Equipment delivered by Licensor to
purchase price for the Equipment shall be as set forth on the Customer under this Agreement. Customer acknowledges
applicable Order Form. and agrees that Licensor shall not be responsible for
separately warranting or supporting third-party
(b) Equipment delivery times may be established based on the manufactured Equipment other than as provided in this
following: (a) when Customer's order is received and Section 2(g). THIS SECTION 2(g) STATES CUSTOMER'S SOLE
accepted in writing by Licensor;(b)after a Statement of Work REMEDY,AND THE SOLE LIABILITY OF LICENSOR ARISING OUT
is signed by Customer and Licensor,after which Licensor will OF ANY DEFECT IN THE EQUIPMENT SUPPLIED HEREUNDER.
produce the full business and functional requirements and
specifications for the project and determine delivery dates;or 2. Miscellaneous.
(c)as otherwise provided in an Order Form.Licensor will use
commercially reasonable efforts to meet the delivery dates (a) Audit.During the term of this Agreement and for a period of
agreed upon, unless Customer is in default under this one(1)year following Termination,upon Licensor's request,
Agreement or Licensor's performance is otherwise excused. but not more than twice each year and upon reasonable
Licensor shall not be liable for late or delayed shipment.Late notice, Customer will permit Licensor to perform a physical
or delayed shipment shall not be a basis for Customer's audit of Customer's records and computer systems that are
cancellation of any order. relevant to Customer's use of the Software in order to
confirm Customer's compliance with this Agreement.
(c) Equipment shall be deemed accepted after the five (5) day Licensor will conduct any physical audit during Customer's
testing period referenced in Section 1(e), unless Customer normal business hours and without undue inconvenience to
notifies Licensor in writing prior to the expiration of such Customer or its employees, and Customer agrees to
testing period that such Equipment is not functioning cooperate with Licensor to enable Licensor to do so.
properly. Customer will immediately pay Licensor the amount of any
additional fees that are found to be payable under this
(d) Until Licensor has received full payment of the purchase price Agreement as a result of any audit. In addition, if an audit
for the Equipment,a purchase money security interest in the reveals that Customer has underpaid any fees by more than
Equipment shall be retained, unless prohibited by law. five percent (5%) of the amount properly payable, then
Customer agrees to execute any document to perfect such Customer will reimburse Licensor for Licensor's entire cost of
security interest as reasonably requested by Licensor. conducting the audit.
(e) Customer shall test all Equipment within five(5)business days (b) Licensor agrees that the Customer shall, until the expiration
of receipt of such Equipment to ensure each unit is of three(3)years after final payment under this Agreement,
functioning properly. All packaging, user manuals, and have access to and the right to examine at reasonable times
accessories must be retained for at least thirty (30) days in any directly pertinent books,documents,papers and records
their original condition should a warranty exchange, as of the Licensor involving transactions relating to this
provided below,be necessary. Agreement at no additional cost to the Customer. Licensor
agrees that the Customer shall have access during normal
(f) Customer shall test all Equipment within five(5)business days working hours to all necessary Licensor facilities and shall be
of receipt of such Equipment to ensure each unit is provided adequate and appropriate work space in order to
functioning properly. All packaging, user manuals, and conduct audits in compliance with the provisions of this
accessories must be retained for at least thirty(30) days in section. The Customer shall give Licensor not less than ten
their original condition should a warranty exchange, as (10)days'written notice of any intended audits. This Section
provided below,be necessary. 2(a)of Exhibit C shall survive the expiration or termination of
this Agreement.
(g) If Equipment is incorrect, nonconforming, or damaged,
Customer must notify Licensor in writing within ten (10) (c) Information Collection and Use. Notwithstanding anything to
business days after Customer's receipt of such Equipment. the contrary in this Agreement, Licensor may collect
Licensor will handle warranty returns pursuant to its RMA information about Customer's use of Licensor Products or
warranty return procedures then in effect for defects in such Services. Customer hereby grants to Licensor a perpetual,
Equipment identified by Customer within thirty (30) days non-cancelable, worldwide, royalty-free, non-exclusive right
Exhibit C-Miscellaneous Terms and Conditions—NA -14- PROPRIETARY&CONFIDENTIAL
to utilize any data that arises from the use of the Licensor Advanced Public Safety,Inc.
Products and Services by Customer whether disclosed on or c/o Aptean,Inc.
prior to the Effective Date for any legitimate purpose, 4325 Alexander Drive,Suite 100
including the right to sublicense such data to third parties, Alpharetta,GA 30022
subject to all legal restrictions regarding the use and Attn: General Counsel
disclosure of such information.
(h) Force Majeure. Excluding Customer's payment obligations
(d) Headings,Advice of Counsel,and Drafting. Headings used in hereunder,neither Party shall be liable for failure to perform
this Agreement are provided for convenience only and will or for delay in performance hereunder due to causes beyond
not in any way affect the meaning or interpretation of each its reasonable control (each a "Force Majeure"), including
Section.Wherever the term"including"is used,it shall mean acts of God, fires, floods, earthquakes, accidents, Internet
"including, but not limited to." All references to "Sections" service interruptions or slowdowns, vandalism or "hacker"
and "Schedules" refer to the corresponding Sections and attacks, strikes (other than those involving either Party's
Schedules of this Agreement. The Parties acknowledge that employees), acts of war, acts of terrorism, riot, embargoes,
they have been advised by counsel of their own choosing, acts of civil or military authorities, or intervention by
played equal parts in negotiating this Agreement and that its governmental authority; provided that such Party gives
terms will be interpreted without any bias against one Party prompt written notice thereof to the other Party. Any failure
as drafter. occasioned by the foregoing shall be remedied as soon as
reasonably possible.
(e) Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Texas.The Parties (i) Customer Lists and Press. Customer will be eligible to
acknowledge and agree that this Agreement is not a contract participate in Licensor's customer reference program which
for the sale of goods.Therefore,this Agreement shall not be may include participation in customer case studies, press
governed by any codification of Article 2 or 2A of the Uniform releases, collateral, and opportunities with media and
Commercial Code, or any codification of the Uniform industry analysts. Licensor is permitted to use Customer's
Computer Information Technology Act, or any references to name in lists with other customers; however, Licensor shall
the United National Convention on Contracts for the not use any Customer's logos. Either Party may make public
International Sale of Goods. announcement(s) or issue press releases relating to this
Agreement or the relationship established by this Agreement
(f) Intentionally deleted. with the prior written consent of the other Party,except no
such consent will be required as part of required
governmental filings, SEC filings, earnings announcements
(g) Notices. All notices under this Agreement shall be in writing and financial presentations, or listings of other similar
and shall be deemed to have been given upon: (i) personal relationships.
delivery; (ii)the third business day after mailing via certified
mail, return receipt requested; (iii)the second business day (j) Injunctive Relief.Customer acknowledges that the breach or
after sending by confirmed facsimile;or(iv)except for notices threatened breach of this Agreement, including Customer's
of termination or an indemnifiable Claim ("Legal Notices"), breach of the license grant or confidentiality, could give rise
the first business day after sending by email with confirmed to irreparable injury to Licensor which would be inadequately
delivery. Notices to Licensor shall be addressed to the compensated in monetary damages. Accordingly, Licensor
attention of its General Counsel and a copy to its Chief may seek a restraining order and/or an injunction prohibiting
Financial Officer at the address set forth at the end of this such breach in addition to any other legal remedies which
provision. All notices to Customer shall be addressed to may be available. Customer agrees that Licensor will not be
required to post a bond in seeking injunctive relief under this
The City of Fort Worth Agreement.
Attention:Assistant City Manager over Police
200 Texas Street (k) Export Controls. Customer agrees to comply with all
Fort Worth,Texas 76102 applicable laws, including the U.S. Foreign Corrupt Practices
Act of 1977, export and re-export control laws and
with a copy to the City Attorney at the same address. Billing- regulations such as the Export Administration Regulations
related notices to Customer shall also be addressed to the maintained by the U.S. Department of Commerce,trade and
relevant billing contact designated by Customer. Notices to economic sanctions maintained by the Treasury
Licensor shall be delivered to the following address: Department's Office of Foreign Assets Control, and the
International Traffic in Arms Regulations maintained by the
Department of State. Specifically, Customer covenants that
Customer shall not, directly or indirectly, sell, export, re-
export,transfer,divert,or otherwise dispose of any products,
software, or technology(including products derived from or
Exhibit A-Perpetual License Agreement—NA -15-
based on such technology)received from Licensor under this acceptance of such purchase order or payment of such
Agreement to any destination,entity,or person prohibited by invoice after the date of this Agreement. If any provision of
the laws or regulations of any jurisdiction, including without this Agreement is declared invalid or unenforceable,then the
limitation the United States, without obtaining prior court shall replace the invalid or unenforceable provision with
authorization from the relevant government authorities as a valid and enforceable provision that most accurately
required by those laws and regulations. reflects the Parties' intentions and the remaining provisions
of this Agreement shall remain in full force and effect. Failure
(1) Assignment. Neither party may assign or transfer(including by either Party to enforce any provision of this Agreement will
by operation of law or a Change of Control)this Agreement or not be deemed a waiver of future enforcement of that or any
its interest herein without the other party's prior written other provision.
consent, which shall not be unreasonable withheld.
Notwithstanding the foregoing, Licensor may assign or This Agreement may be executed in one or more
transfer (including by operation of law or a Change of counterparts,each of which shall be deemed an original for
Control),in whole or in part,this Agreement to an Affiliate of all purposes,and together shall constitute one and the same
Licensor or to any third-party, in each case, by providing agreement. If a Party executes this Agreement via electronic
thirty(30)days'prior notice to Customer. For purposes of this signature,then such electronic signature shall be deemed to
Agreement, "Change of Control" means (i) a sale of all or be such Party's original signature for all purposes. The
substantially all of an entity's assets, (ii) a merger, or (iii) a exchange of copies of this Agreement and of the signature
reorganization, consolidation, a sale of an entity's equity or pages by facsimile or other electronic transmission shall
other transaction in which more than 50% of such entity's constitute effective execution and delivery of this Agreement
voting securities, capital stock or other ownership interests as to the Parties and may be used in lieu of the original
are transferred. This Agreement will inure to the benefit of Agreement for all purposes.
and be binding upon the assigning Party's successors and
permitted assigns. Unless otherwise specifically agreed to by 3. Confidentiality.
the non-assigning Party, no assignment by either Party shall
relieve the assignor from its obligations pursuant to this (a) "Confidential Information" means: (i) a Party's proprietary
Agreement. Any assignment in violation hereof shall be null technology or computer software in all versions and forms of
and void. expression and the Service,whether or not the same has been
patented or the copyright thereto registered,is the subject of
(m) Relationship of the Parties.This Agreement does not create a a pending patent or registration application, or forms the
partnership, franchise, joint venture, agency, fiduciary or basis for a patentable invention(collectively the"Proprietary
employment relationship between the Parties. Technology"); (ii) manuals, notes, documentation, technical
information, drawings, diagrams, specifications, formulas or
(n) Non-Solicitation of Employees. During the term of this know-how related to any of the Proprietary Technology;(iii)
Agreement and for a period of one (1) year following information regarding current or proposed products,
termination or expiration thereof,neither Party shall,directly Services, customers, contracts, this Agreement, business
or indirectly,solicit for hiring, hire or accept any services or methods, financial data or marketing data, financial results
work from any employees of the other Party without first and projections,company and market strategy, product and
obtaining prior written consent. Notwithstanding the competitive sales analysis and plans, product or marketing
foregoing,this provision shall not restrict the right of either plans, pricing plans or structures, personnel and recruiting
Party to solicit or recruit generally in the media,and shall not matters, and future releases; and (iv) offers or proposals
prohibit either Party from hiring an employee of the other which are provided by a Discloser (as defined below),
who answers any advertisement or who otherwise voluntarily including,the fees charged by Discloser and such Confidential
applies for hire without having been initially solicited or Information in tangible or other form.
recruited by the hiring Party.
(b) A Party receiving Confidential Information ("Recipient") of
(o) Entire Agreement, Modifications, Severability, Waivers, the other Party ("Discloser") shall: (i) not disclose the
Reservation of Rights. This Agreement, together with all Confidential Information to any third party at any time and
exhibits, schedules, Order Forms, Statements of Work, Recipient shall limit disclosure of Confidential Information
addenda and other amendments hereto entered into from within its own organization to its employees or its legal,
time to time,collectively,contains the entire agreement with financial and accounting advisors having a need to know and
respect to the subject matter hereof. All such ancillary who have agreed to be bound by the terms of this Agreement;
documents are incorporated into this Agreement by and (ii) protect the confidentiality of the Confidential
reference. This Agreement may not be modified except by Information with at least the same degree of care as Recipient
written instrument signed by both Parties. All terms, uses to protect its own Confidential Information of a like
conditions, or provisions which may appear as pre-printed nature, but no less than a reasonable degree of care.
language or otherwise be inserted within any purchase order Recipient shall be entitled to disclose Confidential
or invoice shall be of no force and effect notwithstanding the Information solely to the extent necessary to comply with a
Exhibit A-Perpetual License Agreement—NA -16-
court order or as otherwise required by law or by a regulatory b. Combined limit of not less than $1,000,000 per
agency or government body, provided that Recipient shall occurrence; $2,000,000 aggregate and Umbrella
first give notice to Discloser so as to allow Discloser a Coverage in the amount of $4,000,000. Umbrella
reasonable opportunity to obtain a protective order for policy shall contain a follow-form provision and shall
protecting the confidentiality of such information (unless include coverage for personal and advertising injury.
such notice would violate applicable law). If such protective
order is not obtained, Recipient agrees to disclose only that c. Defense costs shall be outside the limits of liability.
portion of the Confidential Information which it is legally
required to disclose. Recipient shall immediately notify 2. Automobile Liability Insurance covering any vehicle used
Discloser of any actual or suspected unauthorized disclosure in providing services under this Agreement, including
of Confidential Information. Recipient shall not modify, owned, non-owned, or hired vehicles, with a combined
reverse-engineer, decompile, create other works from, or limit of not less than$1,000,000 per occurrence.
dissemble any software programs contained in the
Confidential Information without Discloser's prior written 3. Professional Liability(Errors &Omissions) in the amount
consent. of$1,000,000 per claim and$1,000,000 aggregate limit.
(c) The obligations described in Section 3(b)impose no obligation 4. Statutory Workers'Compensation and Employers'Liability
upon Recipient with respect to any Confidential Information Insurance requirements per the amount required by
that(a) is or becomes a matter of public knowledge through statute.
no fault of Recipient; (b) is rightfully received by Recipient
from a third party without a duty of confidentiality to a third 5. Technology Liability(Errors&Omissions)
party by, or with the authorization of, Discloser; (c) is
disclosed without a duty of confidentiality; or (d) is a. Combined limit of not less than $2,000,000 per
independently developed by Recipient. The burden of occurrence;$4million aggregate or
proving any of the above exemptions is on Recipient.
b. Combined limit of not less than $1,000,000 per
(d) Upon the written request of Discloser, Recipient shall occurrence; $2,000,000 aggregate and Umbrella
immediately destroy or return to Discloser, as requested by Coverage in the amount of $4,000,000. Umbrella
Discloser, all Confidential Information of Discloser in its policy shall contain a follow-form provision and shall
possession, together with all records in any manner include coverage for personal and advertising injury.
pertaining to any of Discloser's Confidential Information. The umbrella policy shall cover amounts for any
Recipient shall also, upon the written request of Discloser, claims not covered by the primary Technology
furnish Discloser with a certificate of an authorized officer of Liability policy. Defense costs shall be outside the
Recipient stating that all of the foregoing have been limits of liability.
destroyed or returned to Discloser.
c. Coverage shall include, but not be limited to, the
(e) The terms set forth in this Section 3 replace any prior non- following:
disclosure or similar confidentiality agreement executed
between the Parties. I. Failure to prevent unauthorized access
(f) Regardless of anything contained in this Section or in the ii. Unauthorized disclosure of information
Agreement to the contrary,Licensor acknowledges Customer
is a governmental entity and subject to the Texas Public iii. Implantation of malicious code or
Information Act. Any disclosure by Customer in compliance computer virus
with the Texas Public Information Act or any other state law
shall not be deemed a breach of this Agreement. iv. Fraud, Dishonest or Intentional Acts with
final adjudication language
4. Insurance.
v. Intellectual Property Infringement
(a) The Licensor shall carry the following insurance coverage coverage, specifically including coverage
with a company that is licensed to do business in Texas or for intellectual property infringement
otherwise approved by the Customer: claims and for indemnification and legal
defense of any claims of intellectual
1. Commercial General Liability property infringement, including
infringement of patent, copyright, trade
a. Combined limit of not less than $2,000,000 per mark or trade secret, brought against the
occurrence;$4million aggregate;or Customer for use of Deliverables,
Exhibit A-Perpetual License Agreement—NA -17-
Software or Services provided by Licensor to the Risk Manager, City of Fort Worth, 200 Texas St.,
under this Agreement. Fort Worth,Texas 76102,with copies to the City Attorney
at the same address.
Technology coverage may be provided through an
endorsement to the Commercial General Liability(CGL) 4. The insurers for all policies must be licensed and/or
policy,a separate policy specific to Technology E&0,or approved to do business in the State of Texas. All insurers
an umbrella policy that picks up coverage after primary must have a minimum rating of A-VII in the current A.M.
coverage is exhausted.Either is acceptable if coverage Best Key Rating Guide, or have reasonably equivalent
meets all other requirements.Technology coverage shall financial strength and solvency to the satisfaction of Risk
be written to indicate that legal costs and fees are Management. If the rating is below that required,written
considered outside of the policy limits and shall not approval of Risk Management is required.
erode limits of liability. Any deductible will be the sole
responsibility of the Licensor and may not exceed 5. Any failure on the part of the Customer to request
$50,000 without the written approval of the required insurance documentation shall not constitute a
Customer. Coverage shall be claims-made, with a waiver of the insurance requirement.
retroactive or prior acts date that is on or before the
effective date of this Agreement. Coverage shall be 6. Certificates of Insurance evidencing that the Licensor has
maintained for the duration of the contractual obtained all required insurance shall be delivered to and
agreement and fortwo(2)years following completion of approved by the Customer's Risk Management Division
services provided. An annual certificate of insurance,or prior to execution of this Agreement.
a full copy of the policy if requested,shall be submitted
to the Customer to evidence coverage. 7. Fiscal Funding Out. In the event no funds or insufficient
funds are appropriated by the Customer in any fiscal
6. Any other insurance as reasonably requested by period for any payments due hereunder, the Customer
Customer. will notify Licensor of such occurrence and this Agreement
shall terminate on the last day of the fiscal period for
(b) General Insurance Requirements: which appropriations were received without penalty or
expense to the Customer of any kind whatsoever,except
1. All applicable policies shall include Customer as an as to the portions of the payments herein agreed upon for
additional insured thereon, as its interests may which funds have been appropriated.
appear. The term Customer shall include its employees,
officers,officials,agents,and volunteers in respect to the 8. Governmental Powers. It is understood and agreed that
contracted services. by execution of this Agreement,Customer does not waive
or surrender any of its governmental powers.
2. The workers'compensation policy shall include a Waiver
of Subrogation(Right of Recovery) in favor of the City of 9. City Network Access. If Licensor, and/or any of its
Fort Worth. employees, officers, agents, servants or subcontractors
(for purposes of this section "Consultant Personnel"),
3. A minimum of thirty(30) days' notice of cancellation or requires access to the Customer's computer network in
reduction in limits of coverage shall be provided to the order to provide the services herein, Licensor shall
Customer. Ten(10)days'notice shall be acceptable in the execute and comply with Customer's standard Network
event of non-payment of premium. Notice shall be sent Access Agreement.
Exhibit A-Perpetual License Agreement—NA 18
Schedule 1
PROFESSIONAL SERVICES TERMS
This Schedule 1 sets forth the additional terms and conditions under which Licensor will provide Professional Services in connection with the
solution(s)provided pursuant to this Agreement.
Al. Performance of Services.
f. Licensor agrees to advise Customer in writing at the
(a) Statements of Work. Each Professional Services project earliest possible time when postponing or canceling
Licensor undertakes shall be described in a statement of work scheduled activity. In such instances, no liability shall
(a "Statement of Work"or"SOW")setting forth the agreed arise, Customer will pay all fees and expenses
upon scope of the Professional Services, Service Deliverables, associated with Services and Service Deliverables
estimated hours/work effort, billing rates and other pricing provided,and Licensor and Customer shall collaborate
information, project schedule (if applicable) and estimated with reasonable commercial diligence to resume or
delivery dates. Both Parties shall execute each Statement of reschedule the cancelled activity.
Work, all of which shall be deemed incorporated into this
Agreement. If there is a conflict between the terms set forth (c) Customer Obligation
in this Agreement and a Statement of Work, the terms set
forth in the applicable Statement of Work will control. a. The Customer shall deploy appropriately skilled and
qualified personnel in the performance of its obligations
(b) Tasks and Service Deliverables. under all SOWs,and shall provide information,decisions
and approvals in a timely manner to facilitate the agreed
a. Licensor shall perform the Services and provide the delivery schedule.
Service Deliverables described in the applicable
Statement of Work and any Change Order Forms (as b. The Customer shall make available to Licensor access to
defined below)issued pursuant to the applicable SOW. all environments as required under a SOW, or as
Licensor and the Customer agree to work together in otherwise agreed between the parties.
good faith to mitigate any delay in completion or
delivery or in the provision of the Services. c. Licensor and the Customer will work together in good
faith to mitigate any delay in completion or delivery or in
b. Licensor shall perform the Services with reasonable skill the provision of the Services resulting,in the reasonable
and care. opinion of Licensor,from Customers failure to perform
its obligations as described in the applicable SOW.
C. Licensor shall use reasonable endeavors to meet dates
specified in a SOW for the delivery of Services and (d) Place of Performance,Expenses and Travel Time.
Service Deliverables. Licensor shall use commercially
reasonable efforts to schedule resources upon request If Licensor's personnel, agents or representatives are
from the Customer's representative or their designee. required to travel to a location other than one of Licensor's
facilities, Customer will pay or reimburse Licensor in
d. It is understood and agreed that Licensor'sServices accordance with the payment terms set forth in the
may include the provision of advice
ce and Statement of Work(or Licensor's standard terms if none are
recommendations, but adoption of any
recommendations are the responsibility of the specified in the Statement of Work) for all reasonable and
Customer. Licensor shall be responsible for project actual travel expenses including airfare, ground
management of Licensor's resources and commitments transportation, lodging and meals for personnel required to
however Customer shall be responsible for overall travel. Licensor will adhere to its corporate travel policies and
management of the project. provide a copy, if requested by Customer, unless otherwise
agreed in writing prior to undertaking a project. Services to
e. Time and schedule estimates are based on Licensor's be provided on-site at Customer's facilities will be scheduled
experience with other similar change or services in advance by written agreement of both parties.Both parties
requests in the past, and the information available at will use reasonable efforts to accommodate any requested
the time of preparing the estimate. Licensor shall use change in the scheduled dates for on-site services,subject to
reasonable endeavors to adhere to any estimate the availability of appropriate personnel. At Customer's
provided,however actual effort may vary and Licensor request, Licensor will provide receipts or other reasonably
shall keep Customer notified of effort incurred and
satisfactory evidence of such expenses.
planned and progress throughout.
Exhibit C-Miscellaneous Terms and Conditions—NA -19-
If Licensor charges Travel Time the rate and conditions shall to provide a brief description of the impact and rationale
be agreed by Licensor and Customer in advance and set out for 'urgent' and 'critical' severity levels. The severity
in the applicable Statement of Work.Travel time is defined as level may change during the life of an issue.For instance,
follows: (i) consultant's roundtrip travel time from severity may be reduced with a viable workaround or the
consultants location to the Customer site; and (ii)
inability to recreate the problem.Severity may also be
consultant's travel time between Customer's sites and/or any upgraded based on increased frequency of the issue or
project deadlines.An acceptance shall occur if there are
other Customer designated locations. no open items with a severity level of 'critical' or
A2. Payment Terms. urgent.'
Unless otherwise stated in the Statement of Work, Licensor will Severity Definition
invoice Customer for the fees on a time and materials basis at the
billing rates set forth in the Statements of Work for work 1—Critical: The entire system or functional component
performed. Invoices will include a summary of all time expended is inoperable and cannot be used until the error is
by Licensor for the work performed. Customer shall pay Licensor resolved.
the fees within thirty(30)days from the date of invoice. 2—Urgent: A serious error in a business critical function
where no viable workaround is available.
A3. Acceptance. 3 — Standard: An error that does not stop the user
progressing or a viable workaround is possible.
In this Agreement and any SOW, "Customization Services" means 4—Low: Errors that cause no loss of functionality, or
any services which involve modifications by Licensor to the source which may be considered cosmetic or annoying in
code of any Software in order to customize certain aspects of such nature.
Software for the Customer pursuant to the terms of a SOW. 5—Enhancement: Feature is operating to the agreed
specification/requirement however its method of
(a) Where Service Deliverables are provided as a result of operation may be altered in order to deliver more
Customization Services then unless otherwise specified in the business benefits.
SOW,the following shall apply:
v. Customer will cooperate with Licensor to isolate,identify
I. Following receipt of each Service Deliverable,Customer and resolve any problems in the Service Deliverables.
will have thirty(30)days to perform acceptance testing
of that particular Service Deliverable. vi. Customer understands and agrees that Licensor makes
no representations or warranties that the Service
ii. If the particular Service Deliverable does not embody the Deliverables provided as a result of Customized Services
mutually agreed characteristics set forth in the will be compatible with all future releases of the
applicable SOW, Customer may reject such Service software. Customer may be required to purchase
Deliverable by giving Licensor written notice rejecting additional professional services hours at an agreed to
the particular Service Deliverable, and the reasons price to resolve any compatibility issues.
therefore, within the thirty (30) day testing period. If
Customer does not give Licensor written notice rejecting (b) Customer understands and agrees that Licensor makes no
the particular Service Deliverable within the thirty (30) representations or warranties that the customizations
day testing period, such Service Deliverable shall provided under an SOW will be compatible with any or all
conclusively be deemed accepted. future releases of the applicable software. Customer may be
required to purchase additional professional services hours at
iii. If Customer gives Licensor written notice rejecting the an agreed to price to resolve any compatibility issues.Further,
particular Service Deliverable within the thirty(30) day Customer will not receive maintenance on customizations
testing period,then within thirty(30)days after receipt unless customization support is specifically included in an
of Customer's notice Licensor will make any reasonable agreement between the parties.
corrections or changes and resubmit the Service
Deliverable to Customer for further acceptance testing. A4. Change Procedure
iv. Upon Customer's receipt of the revised Service Project costs and durations set forth in a Statement of Work are
Deliverable, the procedure outlined in subparagraphs based on the scope, requirements and assumptions as defined in
all), a(ii) and a(iii) above will be repeated until the such Statement of Work.Variance in the scope, requirements or
Service Deliverable is accepted. The table below defines assumptions will have an impact on the project's time and cost.
the severity levels which shall be allocated to any issues Licensor utilizes a formal change control procedure to respond to
raised relating to the Service Deliverable.The severity of and manage the changes that may occur throughout the duration
the issue will be reviewed and finally determined by of a project. The purpose of this procedure is not to inhibit or
Licensor and in some cases the Customer may be asked prevent change, but rather to facilitate change in an orderly
Schedule 1—Professional Services Agreement-NA -20-
manner. Licensor's change control procedure is summarized
below:
(a) Either Customer or Licensor may initiate a change order.
(b) Customer will work with Licensor to document all requested
changes in Licensor's standard change request form("Change
Order Form").This documentation will include a description
of the change, reason for the change, areas affected,
estimated hours, costs and completion date. Licensor will
then submit each Change Order Form to Customer for review
and approval before any work is started on the change.
Licensor will, likewise, review and approve the changes
before any work is started.
(c) In the event that the Parties disagree about the proposed
changes,each Party shall,within forty-eight(48) hours from
the report of the issue,identify a Senior Management Officer
who has decision making authority for each of the respective
Parties. The Senior Management Officers will discuss and
arrive at a mutually acceptable decision. The results of the
meeting will be documented and filed with the project library
and any milestone dates and costs will be adjusted
accordingly.
Schedule 1—Professional Services Agreement-NA -21-
SCHEDULE 2
This Schedule 2 sets forth the additional terms and conditions under which Licensor will provide each license type in connection with the user
description set forth in each Order Form.
• Concurrent Users. "Concurrent Users" means the maximum number of users which may access the Software or Third Party Software at
any one time. Each simultaneous "log on"from a separate PC or terminal device shall be deemed a Concurrent User. Concurrent User
licenses shall be specified as such on the Order Form or in any subsequent Addendum to this Agreement.
Concurrent User licenses are assigned temporarily to a user for the duration of their active session. Once that individual ends the active
session,the license may be used by another individual and the previous user is no longer licensed to access the Software.Notwithstanding
the above and for clarity,the number of Concurrent Users accessing both the production copy and any test copies of the Software may not
exceed the total number of Concurrent Users licensed.
Use of software or hardware that reduces the number of devices directly accessing or utilizing the Software on a particular server
(sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of user licenses required for the
Software. A user license is required for each distinct input to the multiplexing or pooling software or the hardware"front end."
• Enterprise License. An"Enterprise License"entitles Customer to use the Software for which a license has been granted solely for
Customer's internal business operations and,unless otherwise agreed,without limitation as to the number of Named Users.
Named Users. "Named User"means any individual for whom there is a user login account permitting such individual to access and use a
component of the Software.
A User License entitles only a certain number of named individuals to use the Software for which the license is granted. If a Named User
License is granted for any Software,Customer must maintain a list of the individuals employed by Customer who are authorized to use the
Software and must provide Licensor with a copy of that list upon request.
Each individual permitted to access or use a component of the Software must be assigned a user login account with unique user
identification and will be considered a Named User of that component for purposes of the License Configuration.Customer may not permit
more than one person to access or use a single login account or unique user identification and password to access or use the Software or
otherwise share login accounts,user identifications or passwords.
Customer may remove,reallocate and replace the individuals on its list at its discretion and at any time upon notice to and consent from
Licensor, but may not have more Named Users than the maximum number specified on the Order Form. Customer may not permit any
person who is not named in its list to have access to or use the Software unless Customer has obtained an additional license from Licensor
and paid Licensor any applicable Fees for that additional license and associated Maintenance Services. For clarity,a Named User requiring
a paid-for license includes any interaction with the Software either through a user interface or programmatically.if Customer deactivates
Users, Customer may maintain records in the database for such individuals but Customer may not maintain login accounts for such
individuals or otherwise permit them or any other third party to access or use the Software under those accounts.
Customer shall upgrade to a larger number of licensed Named Users if the number of individual persons or operating systems who will
access or use the Software exceeds the number of Users permitted by Customer's then current License Configuration.
• Per Database.A"Per Database"license entitles only a certain number of named individuals to use the Software for the purposes of read
only access to a certain number of databases.
• Per Server or Application.A"Per Server or Application"license entitles Customer to use the Software for which the license is granted on
a per physical or virtual licensed server for use by Customer.Each deployment of Software with a separately configured server requires a
separate license,but Customer may deploy validly licensed Software without limitation as to number of servers deployed and licensed.
Notwithstanding the foregoing and for clarity,production server licenses,test and demonstration server licenses and disaster recovery
server licenses shall be charged separately.
• Transactional.A"Transactional"license entitles Customer to complete the number of transactions allotted on the applicable Order Form
for the term specified therein. In the event Customer exceeds the allotted transaction volume at any time during the term,Licensor will
invoice Customer at an agreed rate for each additional transaction over the allotted amount.
Schedule 1—Professional Services Agreement-NA -22-