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HomeMy WebLinkAboutContract 43583 (2)ts- Previstar 2311 Mill Rd. Suite 100, Alexandria, VA 22314 SAS T; A GI{= Gill I A T COff'+hR PAGE CITV SECRETARY I z c< C011TRACT NO. • .vI Nis a I 1 The attached documents describe the relationship between Previstar, Inc, which has a place of business at 2311 Mill Rd, Suite 100, Alexandria, VA 22314 ("PREVISTAR") and the Customer identified below ("Customer' or "Client") (each of Previstar and Customer, a "Party'), and shall be effective as of the latest date set forth in the signature block below (the "Effective Date"). The documents attached to this cover page will consist of the Master Terms, which describe and set forth the general legal terms governing the relationship, and one (1) or more addenda describing and setting forth detail about that relationship ("Addenda"), depending upon the particular software and/or services to be provided to Customer (collectively, the "Agreement').This Agreement includes this Master Agreement Cover Page, the attached Master Terms and all Addenda that are attached to the Master Terms and that are executed by both Parties. CUSTOMER INFORMATION: Name/Customer: City of Fort Worth Address: 1000 Throckmorton Street Fort Worth. Texas 76102 P rincipal Contact Person: 1 V (Q. 1) u Title: 11 Htu19.lAMOVl0 AOPii,M 1 arra P hone: II .au1Z-.rOkI13 Fax: tfl.tfltLQPiT) Email Address: o o tor' () Pn nft ofhteis, c.t 1) £I tail Billing Contact: J1)AI"J Title: filliatarge VAN N R ia �Z.M OK OD 12.p f N F� IrD4L Phone: lC 11 •3TZ• ($ (/ l7 Fax: V1.3C12 . MC60 Email Address: 1 iAri •On I 1 t/W pU'', oaorti -I e,ds 1°° FOR INTERNAL PREVISTAR USE ONLY: Contract Number: Please indicate (by checking the appropriate boxes below) which Addenda, if any, are initially executed and attached to this Agreement. ■ ■ Software License Professional Services x Software Application Services ■ ■ Annual Support and Services Training & Education Services The Parties have caused their duly authorized representatives to execute this Agreement as of the dates set forth below. CUSTOMER: City of Fort Worth By (Signature): ‘. dede. Name (Printed): Charles W. Daniels Title: Assistant City Manager Date: %/ (9 / z[iP z 357455 v4/RE 1 APPROVED AS TO FORM AND LEGALITY: 1 Previstar. Inc. By (Signature): Name (Printed): c di Title: Date: iot2csi P4 Tli C-�-S Pas cao ee F O Attestedby c la*IPS r? o i.1 0 0 Mary J. s CitY ecrreta 4 ilzt I'2022 • O I l i Previstar, Inc. MASTER TERMS 1. DEFINITIONS. Certain capitalized terms, if not otherwise defined on the Cover Page to which these Master Terms are attached, shall have the meanings set forth below in this Section 1. 11 "Addendum" means any addendum to this Agreement executed by both Parties, if any, and may include, without limitation, Previstars standard form of Software License Addendum, Maintenance and Support Addendum, Professional Services Addendum and/or Software Application Services Addendum. 1.2 "Agreement' means, collectively, the Cover Page, these Master Terms, and any executed Addenda hereto. 1 3 "PREVISTAR" has the meaning set forth on the Cover Page. 1 4 "Confidential Information" means any non-public material or information relating to a Party which it discloses or makes available to the other Party under this Agreement, including, by way of example, research, strategies, inventions, processes, formulas technologies, designs drawings, finances, or other non-public information or trade secrets that such disclosing Party treats as proprietary or confidential. Without limiting the foregoing the software and any databases of Previstar (including any data models and data contained therein that are not specific to Customer) shall constitute Confidential Information of Previstar. 1.5 "Cover Page" means Previstar s standard form of cover page to which these Master Terms are attached. 1.6 "Customer" has the meaning set forth on the Cover Page. 1.7 "Documentation' shall mean Previstar's standard user manuals and/or related documentation generally made available to licensees of the Licensed Application. 1.8 "Effective Date" has the meaning set forth on the Cover Page. 1.9 "Execution Date" has the meaning set forth on the Cover Page 1.10 "Licensed Application" means any of Previstar's proprietary software application(s) regarding which a license is granted pursuant to Previstar's standard form of Software License Addendum 1.11 "Master Terms" means all the provisions, terms and conditions set forth in this document entitled ' Previstar Master Terms." 1.12 "Party" has the meaning set forth on the Cover Page. 1.13 "Term" means the period during which this Agreement remains in force and effect in accordance with Section 10.1. 2. GENERAL. These Master Terms contain the general terms and conditions governing the legal relationship between Previstar and Customer relating to the mutual covenants and obligations of the Parties set forth in the attached and executed Addenda if any Previstar's provision of licenses to its proprietary software and the provision of services related to such licenses or services are subject to the terms and conditions contained in this Agreement and any applicable Addenda. However, Customer acknowledges and understands that these Master Terms do not, absent execution of such an Addendum, impose any obligation upon Customer to purchase any such license or services nor impose any obligation upon Previstar to provide any such license or services. 3. ORDER OF PRECEDENCE. Customer agrees that each Addendum is subject to the terms and conditions set forth in this Agreement. In the event of a conflict between these Master Terms and any Addendum, these Master Terms shall govern unless the provisions of the relevant Addendum explicitly state the Parties' intention that the particular relevant portion of the Addendum should supersede these Master Terms. 4. FEES AND PAYMENTS. 4.1 Fees Payable. In consideration for Previstar's performance under this Agreement, Customer agrees to pay such amounts as may be required by each and all Addenda, as applicable. Except as otherwise provided in any applicable Addendum, all amounts due hereunder shall be due within thirty (30) days after the relevant invoice date 4.2 Disputed Charges. Customer must notify Previstar in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of invoice. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period. 4.3 Late Charges. Previstar reserves the right to charge, and Customer agrees to pay, a late charge equal to one and one-half percent (1%%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance. 4 4 Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Previstar's income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. Customer will make all payments required hereunder to Previstar free and clear of, and without reduction for any withholding taxes. Any such taxes imposed on any payments hereunder to Previstar will be Customer's sole responsibility, and Customer will, upon Previstar's request, provide Previstar with official receipts issued by the appropriate taxing authority, or such other evidence as Previstar may reasonably request, to establish that such taxes have been paid. 4.5 Auditing Rights and Required Records. Previstar will have the right, at its own expense and upon reasonable prior notice, to audit the use of the Licensed Application. Customer agrees to cooperate with Previstar s audit and provide reasonable assistance and access to information. Provided that if such audit reveals that Customer has underpaid Previstar with respect to any amounts due and payable during the period to which such audit relate, Customer shall promptly pay such amounts as are necessary to rectify such underpayment, together with interest in accordance with Section 4.3, and further provided that if the amount of such underpayment equals or exceeds five percent (5%) of the total amounts due and payable by Customer during the period to which such audit relates, Customer shall reimburse Previstar for the cost of such audit. Such auditing rights shall extend throughout the Term and for a period of two (2) years after the termination or expiration of this Agreement. 5. CONFIDENTIALITY. 5.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party's Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party. 5.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein (li) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that except as required in performance of a Party's obligations under this Agreement, neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and 357455 v4/RE Master Terms - Page 1 (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. 5.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction;(vii) any information that has been deemed public under applicable law, by court order or other regulation. Notwithstanding the foregoing each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or (y) to establish a Party's rights under this Agreement, including to make such court filings as it may be required to do. 6. OWNERSHIP Customer acknowledges that Previstar and its licensors own all right, title, and interest, including all patent, copyright, trade secret trademark, moral rights, mask work rights, and other intellectual property rights ("Intellectual Property Rights') in and to the Licensed Application (including all components thereof), and Previstar expressly reserves all rights not expressly granted to Customer in this Agreement. Customer shall not engage in any act or omission that would impair Previstar's and/or its licensors' Intellectual Property Rights in the Licensed Application and any other materials, information, processes or subject matter proprietary to Previstar. 7. WARRANTIES. 7.1 Representations and Warranties. (a) Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations. (b) Each Party acknowledges that this Agreement may be subject to certain additional representations and warranties that may be set forth in one (1) or more Addenda to this Agreement, as applicable to the subject matter of each such Addendum. 7 2 No Other Warranties. SUBJECT TO ANY APPLICABLE WARRANTIES SET FORTH IN ANY ADDENDA TO THIS AGREEMENT EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT THE LICENSED APPLICATION AND ANY OTHER MATERIALS SOFTWARE, DATA AND/OR SERVICES PROVIDED BY PREVISTAR ARE PROVIDED "AS IS" AND 'WITH ALL FAULTS,' AND PREVISTAR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY ADDITIONAL OR IMPLIED WARRANTIES OF NON - INFRINGEMENT, NON-INTERFERENCE, VALUE OR ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY SYSTEM INTEGRATION FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT NO WARRANTY IS MADE BY PREVISTAR ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE PREVISTAR DOES NOT WARRANT THAT THE LICENSED APPLICATION OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR -FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT PREVISTAR'S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY. 8. LIMITATION OF LIABILITY. 8.1 LIMITATIONS IN NO EVENT SHALL PREVISTAR BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, S PECIAL CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY S OURCE EVEN IF PREVISTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE THE CUMULATIVE LIABILITY OF PREVISTAR TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE GREATER OF (1) TEN THOUSAND DOLLARS (U.S $10,000.00) OR (II) THE TOTAL AMOUNT OF ALL FEES THEN -PAID TO PREVISTAR BY CUSTOMER UNDER THIS AGREEMENT THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER P ROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED O R HAVE PROVEN INEFFECTIVE 8.2 Essential Basis The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different. 9. INDEMNIFICATION. 9.1 Indemnification by Previstar. (a) Previstar shall defend, indemnify and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys' fees), damages, and liabilities arising out of any claim by a third party that any use of the Licensed Application expressly authorized under this Agreement infringes or misappropriates, as applicable, any U.S patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States, provided that Customer gives Previstar (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claims and (iii) such information and assistance as Previstar may reasonably request, at Previstar's expense, in connection with such defense and/or settlement. Notwithstanding the foregoing Previstar shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination operation, or use of the Licensed Application with products, services, information, materials technologies, methods or processes not furnished by Previstar (2) modifications to the Licensed Application, which modifications are not made by Previstar; (3) failure to use updates to the Licensed Application provided by Previstar; or (4) use of the Licensed Application except in accordance with any applicable user documentation or specifications (circumstances under the foregoing clauses (1), (2) (3) and (4), collectively, "Customer Indemnity Responsibilities"). (b) Upon the occurrence of a claim for which indemnity is or may be due under this Section 9.1, or in the event that Previstar believes that such a claim is likely Previstar may, at its option (i) appropriately modify the Licensed Application so that it becomes non -infringing, or substitute functionally equivalent software or services; (ii obtain a license to the applicable third -party intellectual property rights or (iii) terminate this Agreement on written notice to Customer and refund to Customer a portion of the license fees paid by Customer, pro -rated on a five (5)-year straight-line basis. The obligations set forth in this Section 9 shall 357455 v4/RE Master Terms - Paae 2 constitute Previstar's entire liability and Customer's sole remedy for any actual or alleged infringement or misappropriation. 10. TERM AND TERMINATION. 10.1 Agreement This Agreement shall become effective upon the Effective Date and shall have an initial term of one (1) year, unless earlier terminated in accordance with this Section 10; provided, however, that this Agreement shall remain in full force and effect until the expiration or termination of any and all Addenda executed prior to the end of such initial one (1)-year term 10.1.1 Termination for Convenience. Notwithstanding the foregoing, either party shall have the right to terminate this Agreement for its convenience, at any time, upon thirty (30) days written notice, without penalty. If terminated for convenience, the Customer shall not be entitled to a refund of fees paid under this Agreement; however, Previstar shall continue to provide the services contemplated under this Agreement up through the effective date of termination. 10.2 Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement and thereafter (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof. 10.3 Termination Upon Bankruptcy Insolvency Etc. Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party, which proceeding or petition has not been dismissed, vacated, or stayed within thirty (30) days. 10.4 Termination of Individual Addenda. In addition to each Party's rights under Sections 10.2 and 10.3, each Party may terminate any particular Addendum according to any provision therein permitting such termination, provided that this Agreement (including these Master Terms and any other Addenda) shall remain in full force and effect in accordance with their respect terms. 10.5 Accrued Obligations. Termination of this Agreement and/or any particular Addendum shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement and/or any applicable Addendum to survive termination. Notwithstanding the foregoing the Party terminating this Agreement or any Addenda as permitted by any provision in this Section 10 shall incur no additional liability merely by virtue of such termination. 10.6 Cumulative Remedies. Termination of this Agreement and/or any applicable Addendum, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby. 10.7 Effect of Termination. Upon any termination of this Agreement, each Party shall (i) immediately discontinue all use of the other Party's Confidential Information; (n) delete the other Party's Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; (iv) shall return to the other Party or at the other Party's option, destroy, all copies of such other Party's Confidential Information then in its possession and (iv) shall promptly pay all amounts due and remaining payable hereunder. 10.8 Survival of Obligations. The provisions of Sections 4, 5 6, 7 2, 8, 9, 10.5, 10.6 10.7, 10.8 and 11, as well as Customer's obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement. 11. MISCELLANEOUS. 11.1 Applicable Law THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE State of Texas WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS. CUSTOMER AGREES THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN THE State of Texas 11.2 Force Majeure. Previstar and Customer shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack war insurrection or riot or other causes beyond the reasonable control of Previstar or Customer. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances. 11.3 Notices. All notices required by or relating to this Agreement shall be in wnting and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed, if to Customer, as set forth on the Cover Page, or if to Previstar, as follows: Previstar, Inc. 2311 Mill Rd, Suite 100 Alexandria, VA 22314 Attention Contract's Department With a copy to: Cooley Godward LLP One Freedom Square, Reston Town Center 11951 Freedom Drive Reston, Virginia 20190 Attn. Previstar or addressed to such other address as that Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices shall be effective on the date indicated in such confirmation. In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender. 11.4 Assignment. Customer shall not assign its rights or delegate its obligations under this Agreement without Previstar s prior written consent, and, absent such consent, any purported assignment or delegation by Customer shall be null, void and of no effect This Agreement shall be binding upon and inure to the benefit of Previstar and Customer and their successors and permitted assigns. 11.5 Independent Contractors. Customer and Previstar acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement. 11.6 Amendment. No amendment to this Agreement or any Addendum shall be valid unless such amendment is made in wnting and is signed by the authorized representatives of both Parties. 11.7 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other 357455 v4/RE Master Terms - Paae 3 time. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right. 11 8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever 11.9 Causes of Action. No action arising from or related to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due. 11.10 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement. 11 11 U.S. Government End -Users. Each of the components that constitute the Licensed Application is a ' commercial item" as that term is defined at 48 C F R 2 101, consisting of "commercial computer software" and/or "commercial computer software documentation as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227 7202-4, all U.S. Government end users acquire the Licensed Application with only those rights set forth herein. 11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement 11.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement. 11.14 Customer Announcement. Client grants to Previstar a non-exclusive, revocable and royalty free license to use its corporate name in Previstar's website, customer lists, and marketing materials, subject to prior review and approval by Client for any mention other than in a client listing, such approval which shall not be unreasonably withheld. Client agrees, upon reasonable request, to provide verbal feedback of its assessment and experience with the CEMPlanner based on Client's direct use. Client will in no way participate in reference calls press releases, press interviews, case studies or webinars for or on behalf of Previstar. 11.15 Entire Agreement. This Agreement (together with any Addenda) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein. [End of Master Terms] 357455 v4/RE Master Terms - Paae 4 0 I. IDENTIFICATION OF SERVICES: • CEMPlanner Software Service 'ff2S C RO PTO SERVIC hS EXHIBIT A II. Term © Start/Effective Date ilk Ut&vii da 2011 End Date: 365 days after the effective date of this license agreement III. LICENSE: Authorized Entity. (the primary procuring agency: e.g. Anytown Emergency Management Agency) • f/t2l/or k a/vv' l N umber of Name Users., 1 (the pers N amed User: et v 05 IV. FEES AND PAYMENT TERMS: who will be provided with the initial user name and password into the system) 0,116 -Zr Named User email address: C ve-6, - etien— 2 ?fl2/ti'c'v1)2 Tcscov J Annual Software Service Subscription Fees - hosted by Previstar Discount Discount Other Services Billed as used: Training Software Maintenance Technical Support Professional Services - CEMPlanner Software Service 1. Planning Manager 2. Tactical Pre -Planning 3. Resource Inventory Government Discount — 10% Initial 12 months Previstar "Community Preparedness & Resiliency" Discount - 1 web based session included at no cost, additional sessions available at $500 if needed - included - Email support - unlimited - Telephone Support: - 2 hours in year 1 included at no cost - 12 hours p/y at no cost starting year 2 - Emergency Management Subject Matter Expert Consulting, plan development, data input, integration - on site support available* $6275 $1680 $5600 (1356.00) (12,200.00) $0.00 $45 per hour $125 per hour OPP • * Travel and expenses for onsite support will be billed on actual costs • This price is for a single license to the (that authorized entity). There is no additional price for participating stakeholder organizations or users to contribute to the development of the plan. However, separate license agreements are required for stakeholder organizations or regional entities that desire the use of CEMPlanner to create their own individual or regional plans. Facility Plans are restricted to Government owned facilities. • Payment Terms - 30 days • Early Renewal Option — Client can qualify for an early renewal discount of an additional 5% off the list price with an annual service fee renewal payment on or before the 90th day prior to the annual agreement End Date. Renewal Term equal to 12 months + remainder of first year Term. 357455 v4/RE Software Application Services Addendum - Exhibit A Previstar, Inc. SERVICE LEVELS 1:=DCHNBIT 1. DEFINITIONS Certain capitalized terms, not otherwise defined in this Exhibit B, will have the meanings set forth in the Agreement. The following capitalized terms will have the definitions set forth below: 1.1 "System Uptime" will mean the total amount of time during any calendar month, measured in minutes, during which Customer has the ability to access the features and functions of the Services through Previstar's Web Site. 1 2 "Scheduled Downtime" will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Services, as hosted by Previstar, due to planned system maintenance performed by Previstar, as set forth in the table below. Previstar will exercise reasonable efforts to perform scheduled system maintenance between the hours of 7:OOpm and 6:OOam Eastern Standard Time as described in the table below. Previstar reserves the right to change the aggregated times set forth in the table below, provided that Previstar provides reasonable prior notice prior to modifying such Scheduled Downtime. When Scheduled Downtime will occur on a regular basis: Each Weekend Each Weekend Once per calendar month Once per calendar quarter Purpose of Scheduled Maximum Duration of Downtime: Scheduled Downtime: system maintenance database maintenance application/OS maintenance system maintenance/upgrades 4 hours 6 hours 6 hours 3 hours per server 1.3 "Unscheduled Downtime" will mean the total amount of time during any calendar month, measured in minutes, during which the Customer is not able to access the features and functions of the Services through the Customer Web Site, other than Scheduled Downtime, as defined above. 1.4 "System Availability' will mean, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the total time during such month, and thereafter dividing the difference so obtained by the total time during such month. Represented algebraically, System Availability for any particular calendar month is determined as follows: System Availability = (Total Monthly Time - Unscheduled Downtime) Total Monthly Time NOTE' "Total Monthly Time" is deemed to include all minutes in the relevant calendar month, to the extent such minutes are included within the Term of this Agreement. 2. SYSTEM PERFORMANCE 2.1 System Availability: Previstar will undertake commercially reasonable measures to ensure that System Availability equals or exceeds [99%] during each calendar month (the "Service Standard'), provided that any Unscheduled Downtime occurring as a result of (i) Customer's breach of any provision of this Agreement; (ii) non-compliance by Customer with any provision of this Exhibit B; (iii) incompatibility of Customer's equipment or software with the Services; (iv) performance of Customer's systems or the Customer Web; or (v) force majeure, shall not be considered toward any reduction in System Availability measurements. 2.2 Access to Support; Response Times: Customer may report Unscheduled Downtime at any time ("24x7x365") by emailing Previstar at supportCc�orevistar.com or by telephoning Previstar at 865-482-1234. Previstar will exercise commercially reasonable efforts to respond to reports of Unscheduled Downtime within 30 minutes of each such report. 3. MEASUREMENT AND REPORTS 3.1 System Monitoring and Measurement: Previstar will provide for monitoring of System Availability on an ongoing basis. All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Term. 3.2 System Performance Reports: Previstar will provide reports to Customer on a quarterly basis upon request setting forth measurements of System Uptime, Scheduled Downtime and Unscheduled Downtime and a calculation of System Availability for the relevant preceding quarter. If Customer disagrees with any measurement or other information set forth in any such report, it must so inform Previstar in writing within ten (10) calendar days after receipt thereof, provided that the accuracy of any such report shall be deemed conclusive unless such notice is provided by Customer. Any such notice must indicate specific measurements in dispute and must include a detailed description of the nature of the dispute. Previstar and Customer agree to attempt to settle any such disputes regarding System Availability and/or related measurements in a timely manner by mutual good faith discussions. 399217 vl/RE Software Application Services Addendum - Exhibit B 4. CUSTOMER REQUIREMENTS 4.1 Minimum System: The service standards set forth in this Exhibit B assume that Customer and/or its End Users, as applicable, meet the following minimum system standards: Internet Explorer 7 or FireFox 3.0 4.2 Additional Customer Obligations: Customer is responsible for maintenance and management of its computer network(s), servers, software, the Customer Web Site, and any equipment or services related to maintenance and management of the foregoing Customer is responsible for correctly configuring its systems in accordance with any instructions provided by Previstar, as may be necessary for provision of access to the features and functions of the Services. Customer shall identify exactly two (2) Authorized Users of the Authorized Entity as Support Representatives who will correspond with Previstar's support personnel. Customer agrees to provide Previstar with the names, locations, telephone numbers and email addresses of the Support Representatives within two (2) weeks from the Effective Date. Customer may change Support Representatives by providing Previstar with notice either in writing or by email to Previstar's support personnel at support@Previstar.com 4.3 Reporting of Unscheduled Downtime: Customer must promptly notify Previstar in the event Unscheduled Downtime occurs. Unscheduled Downtime will be deemed to begin when Previstar receives accurate notification thereof from Customer, or when Previstar first becomes aware of such Unscheduled Downtime, whichever first occurs. 4.4 Non -Performance by Customer The obligations of Previstar set forth in this Exhibit B will be excused to the extent any failures to meet such obligations result in whole or in part from Customer's or its end users' failure(s) to meet the foregoing obligations. 5. REMEDIES 5.1 Credits Against Fees: In the event Unscheduled Downtime occurs, Customer will be entitled to credits against its subsequent payment obligations according to the following table: IF UNSCHEDULED DOWNTIME EXCEEDS 1% IN ANY CALENDAR MONTH, CUSTOMER'S NEXT -DUE LICENSE FEE OBLIGATION WILL BE REDUCED BY Z y/12=Z y = annual subscription price Except as set forth in the following Section 5.2 the Customer's rights under this Section 5.1 are Customer's sole and exclusive remedy with respect to any Unscheduled Downtime or any failure by Previstar to meet the Service Standard required by Section 2.1. 5.2 Termination for Performance Deficiencies: Previstar acknowledges that System Availability is important to Customer's business processes. Accordingly, Customer may exercise its rights to terminate this Agreement under Section 10.2 in the event that (i) Previstar fails to meet the Service Standard three (3) or more times during any twelve (12)-month period; (ii) System Availability for any single calendar month falls below 95%; or (iii) Previstar does not respond within 30 minutes to Customer reports of Unscheduled Downtime with respect to 98% or more of such reports during any twelve (12)-month period. Notwithstanding the foregoing, no material breach of this Agreement will be deemed to occur if Previstar fails to meet the Service Standard less than three (3) times in any twelve (12)-month period provided no such failure causes System Availability to fall below [95%] during the relevant calendar month. 6. DATA BACK-UP AND RECOVERY 6.1 Back -Up of Customer Content: If requested by Customer, Previstar will perform back-up and archiving of Customer Content according to the schedule set forth in the table below: Type of Back -Up Daily Incremental Files Description Daily Full Back -Up All Customer Content When does back-up occur? Nightly between midnight and 3:00 am Weekly on Saturday between midnight and 3:00 am 6.2 Back -Up Retention: If Previstar performs back-up services under Section 6.1, above, as may be requested by Customer, Previstar will retain back-up copies of the Customer Content at a secure location according to the retention periods set forth in the following table: Type of Back -Up Daily Incremental Files Full Back -Up Retention Period 21 Days 21 Days 6.3 Recovery of Archived Data: If Previstar performs back-up services under Section 6.1, above, as may be requested by Customer, Previstar will exercise commercially reasonable efforts to restore data files from archived copies as quickly as reasonably practicable, as necessary as a result of system failure or data corruption or losses. Customer acknowledges that the amount of time required to restore archived data files is dependant upon numerous factors, including, but not limited, severity or the relevant data corruption or loss. (end of Exhibit B) 399217 vl/RE Software Aoolication Services Addendum - Exhibit B SOFTWARE APPLICATION SERVICES ADDENDUM This SOFTWARE APPLICATION SERVICES ADDENDUM (the "Addendum") is an addendum to, and is hereby incorporated into, the Previstar Master Agreement between Previstar and Customer, including the Master Terms and other Addenda incorporated therein (collectively, the 'Agreement"). 1. DEFINITIONS. Certain capitalized terms, not otherwise defined above, have the meanings set forth or cross-referenced in this Section 1 or the meanings set forth in the Agreement. 1.1 'Access Protocols" shall have the meaning set forth in Section 2 1 1.2 'Addendum Term" will have the meaning set forth in Section 6.1. 1.3 "Authorized End User" means any individual employee, agent or contractor of an Authorized Entity accessing and using the Services on behalf of, and solely for the benefit of, the Authorized Entity in the operation of its business. 1.4 "Authorized Entity" means the organization that is planning for and/or leading the emergency incident management response by way of the use of the Services solely on behalf and for the benefit of Customer in the operation of Customer's business. The Authorized Entity may be a commercial, private, non -governmental or a governmental organization. If the Authorized Entity is a Governmental organization, the term shall only encompass the functional operating unit itself (i.e. Agency, Department, City, County or State) and by no means will include the entire Government, either Local, State or Federal. 1.5 "Named User' means a User associated with a single, unique log -in ID who has been provided access to the Previstar Services regardless of whether or not the User is using the Software at any given time. 1 6 "Custome►" means the entity identified in the signature block of this Addendum, below.. 1.7 "Services" means the service described in Exhibit B. 2. ACCESS AND USE. 2.1 Provision of Access. Subject to the terms and conditions contained in this Agreement Previstar agrees to provide access to the features and functions of the Services during the Addendum Term solely for use by Authorized End Users of an Authorized Entity up to the number of Named Users for which licenses have been purchased and solely in accordance with any Documentation provided and Access Protocols specified by Previstar. Previstar shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services (the 'Access Protocols"). Previstar shall also provide Customer the Documentation to be used by Customer in accessing and using the Services. Customer acknowledges and agrees that, as between Customer and Previstar, Customer shall be responsible for all acts and omissions of Authorized End Users and Named Users and any act or omission by an Authorized End User or a Named User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. 2.2 Usage Restrictions. Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component utilized to provide the Services is compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (ii) modify the Services or the Documentation or create any derivative product from any of the foregoing, except with the prior written consent of Previstar; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer's rights under Section 2.1. Customer will not use the Services and/or the Documentation except in compliance with Previstar's obligations to any third party with respect thereto incurred prior to the Effective Date, provided that Previstar has notified Customer of such obligations. Customer will ensure that its use of the Services and the Documentation complies with all applicable laws, statutes, regulations or rules. 2.3 Retained Rights; Ownership. Subject to the rights granted in this Agreement, Previstar retains all intellectual property rights e mbodied in or practiced by, the Services (or any component thereof or software or processes utilized to provide the same) and the Documentation, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Previstar retains the right to use the foregoing for any purpose in Previstar's sole discretion. 3. CUSTOMER OBLIGATIONS. 3.1 Authorized End User Access to Services. Subject to the terms and conditions herein, Customer may permit any Authorized End User of an Authorized Entity and any Named User up to the n umber for which licenses have been purchased to access and use the features and functions of the Services. Customer will e nsure that any such Authorized End User or Named User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Previstar's Confidential Information, the Services, and the Documentation as are provided by the terms hereof 3.2 Provision of Support to Authorized End Users and Named Users. Support for the Services is available by telephone from 9:00 am to 5:00 pm Eastern Standard Time non -holiday weekdays, at the number specified in Exhibit B of this Addendum and/or such other points of contact that Previstar specifies from time to time. Previstar reserves the right to keep a maintenance window between the hours of 7:OOpm and 6:OOam Eastern Standard Time. Previstar also reserves the right to make changes to the Services from time to time; such changes shall not preclude Customer's access to the Services. Previstar reserves the right, as required and without notice to Customer, to control, restrict, and/or disable Customer's operation over the Services to prevent any negative impact to other subscribers. Other than as required from Previstar under Section 3 2 of this Addendum, Customer shall provide all maintenance and technical support services as may be required by its Authorized End Users and Named Users, with respect to provision of access to, and use of, the Services, unless customer buys help desk support. In the event that any Customer Authorized End User and Named User contacts Previstar Previstar, in its discretion, may decline to provide such services and, at Customer s expense redirect and/or refer such Authorized End User and Named User to Customer at such point of contact as Customer may hereafter designate in writing to Previstar. 3.3 Assistance to Previstar. To the limited extent that may be reasonably necessary to enable Previstar to perform its obligations hereunder, Customer will provide assistance to Previstar, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel 4. FEES AND PAYMENTS. In consideration for the rights granted to Customer and the performance of Previstar's obligations under this Addendum, Customer shall pay to Previstar, without offset or deduction, certain fees in such amounts as may be determined by reference to Exhibit A to this Addendum. Unless otherwise provided in such Exhibit Al all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Previstar with respect thereto. Software Application Services Addendum 5. WARRANTIES AND LIMITATIONS. 5.1 Limited Previstar Warranties. Previstar warrants that the Services will conform in all material respects to the service standards set forth in Schedule B when accessed and used in strict accordance with the Documentation and the Access Protocols. Notwithstanding any other provision of this Agreement, Customer acknowledges and agrees that its sole and exclusive remedy, and Previstar's sole and exclusive obligation, with respect to any breach of the foregoing warranty shall be remedies specified in such Exhibit B. 5.2 Limitations of Warranty and Liability. Except as expressly set forth in Section 5.1 of this Addendum, Previstar makes no representations or warranties under this Addendum, and Customer acknowledges that this Addendum is subject to all disclaimers and limitations or liability set forth in the Master Terms. 6. ADDENDUM TERM AND TERMINATION. 6.1 Addendum Term. This Addendum shall become effective Month, day, year, the "Addendum Effective Date") and shall continue in full force and effect unless terminated in accordance with the terms established in Exhibit A or in accordance with this Section. The period during which this Addendum remains in effect shall be the "Addendum Term". Unless otherwise agreed by the parties in Exhibit A of this addendum, upon expiration of the Addendum Term this agreement shall automatically renew for the same term. Customer will have 30 days to cancel from the renewal date, at the expiration of which this Agreement will become binding 6.2 Termination for Breach. Either Party may, at its option, terminate this Addendum in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Addendum shall terminate in the event that such cure is not made within such thirty (30)-day period. Without limiting the foregoing, Previstar may immediately terminate this Addendum upon written notice in the event that Customer breaches Section 2.2 of this Addendum or becomes insolvent or enters bankruptcy prior to payment of all amounts due under Section 4 of this Addendum. 6.3 Effect of License Termination. Upon any termination of this Addendum, Customer shall (i) immediately discontinue all use of the Services and Documentation; and (ii) promptly pay to Previstar all amounts due and remaining payable under this Addendum. 6.4 Survival. The provisions of Sections 2.2, 2.3, 4, 6, 6.3, and 6.4 will survive the termination of this Addendum. The Parties agree to the above terms and have executed this Addendum as of the date(s) set forth below. CUSTOMER: Citv of Fort Worth By (Signature): Vaddd2o/Cr Name (Printed): C arles W. Daniels Title: Assistant City Manaaer Date: ///9/ZD,( / C -...C=\1A5P—abralis APPROVED AS TO FORM AND LEGALITY: f Assistant City AMtoracy r PREV By (Signature): Name (Printed): Title: Date: ORA ION LOWYt GOO � I21IZoiZ .65>•A f‘tk---2`))-4 00°° ° 001/4487, sti' '� tea voyy '44141:34tuons �,n )Dt-CV ��<< U i�� ��i►3�� _�� � tin�/(�'�(�``-I'I ► �i >7 fi lin riv701k U L l�r� Software Application Services Addendum