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HomeMy WebLinkAboutContract 43583 CrrY SECRETARY CONTRACT KOO Previstar OFFICIAL RECORD 2311 Mil! Rd. suite 100, Alexandria VA 22314 CITY SECRETARY FT. WORTH, TX MASTER AGREEMENT OVER PAGE 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 l {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 Principal Contact Person: l'A 1 V-- Lf�� = c ►,ter Address: Title: � 1000 Throckmorton Street _ _ Phone: �Zr Fort Worth,Texas 75102 Fax: al o Email Address: 0.,h'i Billing Contact: 10AN1_ � Title:f �� 1 _ _ { c f � Phone: 070 _- Fax: � Email Address: No M&C n4QUIRIE1D ] 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. c� ❑ Software License ❑ Annual Support and Services ❑ Professional Services ❑ Training&Education Services x Software Application 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 _ _ _ _ Previstar,Inc. By(Signature): By(Signature): Name(Printed):Charles W.Daniels Name(Printed): Title:Assistant City Manager Title: Cno 00 10 p► p D� Date: eatz Da te: 2.1 � a o e ��a a a AUOSW by: 0Q APPROVED AS TO FORM AND LEG � � on �lo �� LEGALITY � o 00 357455 v4/RE y &=etm Yr h topoc � Assistant ttbfttey Previstar,Inc. MASTER TERMS 1. DEFINITIONS. Certain capitalized terns, if not otherwise may be required by each and all Addenda, as applicable. Except defined on the Cover Page to which these Master Terms are as otherwise provided in any applicable Addendum, all amounts attached,shall have the meanings set forth below in this Section 1. due hereunder shall be due within thirty(30)days after the relevant 1.1 "Addendum" means any addendum to this Agreement invoice date. executed by both Parties, if any, and may include, without 4.2 Disputed Charges. Customer must notify Previstar in writing limitation, Previstar's standard form of Software License of any dispute or disagreement with invoiced charges within thirty Addendum, Maintenance and Support Addendum, Professional (30)days after the date of invoice. Absent such notice, Customer Services Addendum and/or Software Application Services shall be deemed to have agreed to the charges as invoiced after Addendum. the expiration of such time period. 1.2 "Agreemenf' means, collectively, the Cover Page, these 4.3 Late Charges. Previstar reserves the right to charge, and Master Terms,and any executed Addenda hereto. Customer agrees to pay, a late charge equal to one and one-half 1.3"PREWSTAR"has the meaning set forth on the Cover Page. percent(1%%)per month on any amount that is not the subject of 1.4 "Confidential lnformadon"means any non-public material or a good faith dispute that is unpaid on the due date, and on any information relating to a Party which it discloses or makes available other outstanding balance. to the other Party under this Agreement, including, by way of 4.4 Taxes. All amounts payable under this Agreement shall example, research, strategies, inventions, processes, formulas, exclude all applicable sales,use and other taxes and all applicable technologies, designs, drawings, finances, or other non-public export and import fees, customs duties and similar charges. information or trade secrets that such disclosing Party treats as Customer will be responsible for payment of all such taxes (other proprietary or confidential. Without limiting the foregoing, the than taxes based on Previstar's income), fees,duties and charges, software and any databases of Previstar (including any data and any related penalties and interest, arising from the payment of models and data contained therein that are not specific to any fees hereunder, the grant of license rights hereunder, or the Customer)shall constitute Confidential Information of Previstar. delivery of services. Customer will make all payments required 1.5"Cover Page"means Previstar's standard form of cover page hereunder to Previstar free and clear of,and without reduction for, to which these Master Terms are attached. any withholding taxes. Any such taxes imposed on any payments hereunder to Previstar will be Customer's sole responsibility, and 1.6"Custvmer'has the meaning set forth on the Cover Page. Customer will, upon Previstar's request, provide Previstar with 1.7 "Documentation" shall mean Previstar's standard user official receipts issued by the appropriate taxing authority, or such manuals and/or related documentation generally made available to other evidence as Previstar may reasonably request, to establish licensees of the Licensed Application. that such taxes have been paid. 1.8 "Effective Dane" has the meaning set forth on the Cover 4.5 Auditing Rights and Required Records. Previstar will have Page. the right, at its own expense and upon reasonable prior notice, to 1.9 "Execution Date" has the meaning set forth on the Coves audit the use of the Licensed Application. Customer agrees to Page cooperate with Previstar's audit and provide reasonable assistance 1.10"Licensed Application"means any of Previstar's proprietary and access to information. Provided that if such audit reveals that software application(s) regarding which a license is granted Customer has underpaid Previstar with respect to any amounts pursuant to Previstar's standard form of Software License due and payable during the period to which such audit relate, Addendum. Customer shall promptly pay such amounts as are necessary to 1.11 "Master Terms" means all the provisions, terms and rectify such underpayment, together with interest in accordance conditions set forth in this document entitled "Previstar Master with Section 4.3, and further provided that if the amount of such Terms." underpayment equals or exceeds five percent (5%) of the total amounts due and payable by Customer during the period to which 1.12"Part'has the meaning set forth on the Cover Page. such audit relates, Customer shall reimburse Previstar for the cost 1.13 "Term" means the period during which this Agreement of such audit. Such auditing rights shall extend throughout the remains in force and effect in accordance with Section 10.1. Term and for a period of two (2) years after the termination or 2. GENERAL. These Master Terms contain the general terms expiration of this Agreement. and conditions governing the legal relationship between Previstar 5. CONFIDENTIALITY. and Customer relating to the mutual covenants and obligations of 5.1 Ownership of Confidential Information. The Parties the Parties set forth in the attached and executed Addenda, if any. acknowledge that during the performance of this Agreement, each Previstar's provision of licenses to its proprietary software and the Party will have access to certain of the other Party's Confidential provision of services related to such licenses or services are information or Confidential information of third parties that the subject to the terms and conditions contained in this Agreement disclosing Party is required to maintain as confidential. Both and any applicable Addenda. However, Customer acknowledges Parties agree that all items of Confidential Information are and understands that these Master Terms do not, absent proprietary to the disclosing Party or such third party, as execution of such an Addendum, impose any obligation upon applicable, and shall remain the sole property of the disclosing Customer to purchase any such license or services, nor impose Party or such third party. any obligation upon Previstar to provide any such license or 5.2 Mutual Confidentiality Obligations. Each Party agrees as services. follows:(i)to use the Confidential Information only for the purposes 3. ORDER OF PRECEDENCE. Customer agrees that each described herein; (ii) that such Party will not reproduce the Addendum is subject to the terms and conditions set forth in this Confidential information and will hold in confidence and protect the Agreement. In the event of a conflict between these Master Terms Confidential Information from dissemination to, and use by, any and any Addendum, these Master Terms shall govern unless the third party; (iii)that,except as required in performance of a Party's provisions of the relevant Addendum explicitly state the Parties' obligations under this Agreement, neither Party will create any intention that the particular relevant portion of the Addendum derivative work from Confidential information disclosed to such should supersede these Master Terms. Party by the other Party; {iv} to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if 4. FEES AND PAYMENTS. any,who have a need to have access and who have been advised 4.1 Fees Payable. In consideration for Previstar's performance of and have agreed in writing or are otherwise bound to treat such under this Agreement, Customer agrees to pay such amounts as 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 ACKNOWLEDGES THAT PREVISTAR'S OBLIGATIONS UNDER Party in its possession upon termination or expiration of this THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER Agreement. ONLY. 5.3 Confidentiality Exceptions. Notwithstanding the foregoing, g, LIMITATION OF LIABILITY. the provisions of Sections 5.1 and 5.2 shall not apply to g.1 LIMITATIONS. Confidential Information that{i}is publicly available or in the public NS. IN NO EVENT SHALL PREVISTAR BE domain at the time disclosed; (ii) is or becomes publicly available LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, or enters the public domain through no fault of the recipient; (iii)is SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, rightfully communicated to the recipient by persons not bound by REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, confidentiality obligations with respect thereto; (iv)is already in the WITHOUT LIMITATION, LAST PROFITS, COSTS OF DELAY, recipient's possession free of any confidentiality obligations with ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, respect thereto at the time of disclosure; (v) is independently COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION developed by the recipient; or (vi) is approved for release or OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY disclosure by the disclosing Party without restriction;(vii) any SOURCE, EVEN IF PREVISTAR HAS BEEN ADVISED OF THE information that has been deemed public under applicable law, by POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON court order or other regulation. DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT Notwithstanding the foregoing, each Party may disclose REGARD TO WHETHER OTHER PROVISIONS OF THIS Confidential Information to the limited extent required(x)in order to AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN comply with the order of a court or other governmental body, or as INEFFECTIVE. THE CUMULATIVE LIABILITY OF PREVISTAR otherwise necessary to comply with applicable law, provided that TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR the Party making the disclosure pursuant to the order shall first RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT have given written notice to the other Party and made a LIMITATION, ANY CAUSE OF ACTION SOUNDING IN reasonable effort to obtain a protective order; or(y)to establish a CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT Party's rights under this Agreement, including to make such court EXCEED THE GREATER OF (1) TEN THOUSAND DOLLARS {U.S. $10,000.00} OR (11) THE TOTAL AMOUNT OF ALL FEES filings as it may be required to do. THEN-PAID TO PREVISTAR BY CUSTOMER UNDER THIS fi. OWNERSHIP. Customer acknowledges that Previstar and its AGREEMENT. THIS LIMITATION OF LIABILITY IS INTENDED licensors own all right, title, and interest, including all patent, TO APPLY WITHOUT REGARD TO WHETHER O'fHER copyright, trade secret, trademark, moral rights, mask work rights, PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED and other intellectual property rights ("Intellectua) Property OR HAVE PROVEN INEFFECTIVE. Rights"} in and to the Licensed Application (including all 8.2 Essential Basis. The disclaimers, exclusions and limitations components thereof}, and Previstar expressly reserves all rights of liability set forth in this Agreement form an essential basis of the not expressly granted to Customer in this Agreement. Customer bargain between the Parties, and,absent any of such disclaimers, shall not engage in any act or omission that would impair exclusions or limitations of liability, the provisions of this Previstar's and/or its licensors' Intellectual Property Rights in the Agreement, including, without limitation, the economic terms, Licensed Application, and any other materials, information, would be substantially different. processes or subject matter proprietary to Previstar. 9. INDEMNIFICATION. 7. WARRANTIES. 9.1 Indemnification by Previstar. 7.1 Representations and Warranties. (a) Previstar shall defend, indemnify, and hold Customer harrnless (a) Each Party represents and warrants to the other that the against all costs and reasonable expenses (including reasonable execution and performance of this Agreement does not and shall attorneys'fees),damages,and liabilities arising out of any claim by not violate any other contract, obligation, or instrument to which it a third party that any use of the Licensed Application expressly is a party, or which is binding upon it, including terms relating to authorized under this Agreement infringes or misappropriates, as covenants not to compete and confidentiality obligations. applicable, any U.S. patent issued as of the Effective Date or any (b) Each Party acknowledges that this Agreement may be subject copyrights or trade secrets under applicable laws of any jurisdiction to certain additional representations and warranties that may be within the United States,provided that Customer gives Previstar(i) set forth in one (1) or more Addenda to this Agreement, as prompt written notice of such claim; (ii) authority to control and applicable to the subject matter of each such Addendum. direct the defense andlor settlement of such claim; and {iii} such 7.2 No Other Warranties. SUBJECT TO ANY APPLICABLE information and assistance as Previstar may reasonably request, WARRANTIES SET FORTH IN ANY ADDENDA TO THIS at Previstar's expense, in connection with such defense andlor AGREEMENT, EXCEPT AS OTHERWISE EXPRESSLY settlement. Notwithstanding the foregoing, Previstar shall have no WARRANTED IN THIS AGREEMENT, THE LICENSED obligation or liability to the extent that the alleged infringement APPLICATION AND ANY OTHER MATERIALS, SOFTWARE, arises from (1)the combination, operation, or use of the Licensed DATA ANDIOR SERVICES PROVIDED BY PREVISTAR ARE Application with products, services, information, materials, PROVIDED"AS IS"AND"WITH ALL FAULTS,"AND PREVISTAR technologies,methods or processes not furnished by Previstar; (2) EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY modifications to the Licensed Application, which modifications are KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR not made by Previstar; (3) failure to use updates to the Licensed Application provided by Previstar; or (4) use of the Licensed STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY Application except in accordance with any applicable user ADDITIONAL OR IMPLIED WARRANTIES OF NOW documentation or specifications (circumstances under the INFRINGEMENT, NON-INTERFERENCE, VALUE OR foregoing clauses (1), {2}, (3) and (4), collectively, "Customer ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION,FITNESS FORA Indemnity Responsibilities)3). PARTICULAR PURPOSE, OR THE ABSENCE OF ANY (b) Upon the occurrence of a claim for which indemnity is or may DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO be due under this Section 9.1, or in the event that Previstar WARRANTY 1S MADE BY PREVISTAR ON THE BASIS OF believes that such a claim is likely, Previstar may, at its option {i} TRADE USAGE, COURSE OF DEALING OR COURSE OF appropriately modify the Licensed Application so that it becomes PERFORMANCE. PREVISTAR DOES NOT WARRANT THAT non-infringing, or substitute functionally equivalent software or THE LICENSED APPLICATION OR ANY OTHER INFORMATION, services; (ii) obtain a license to the applicable third-party MATERIALS,TECHNOLOGY OR SERVICES PROVIDED UNDER intellectual property rights, or (iii) terminate this Agreement on THIS AGREEMENT WILL MEET CUSTOMER'S written notice to Customer and refund to Customer a portion of the REQUIREMENTS OR THAT THE OPERATION THEREOF WILL license fees paid by Customer, pro-rated on a five (5)-year BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL straight-line basis. The obligations set forth in this Section 9 shall ERRORS WILL BE CORRECTED. CUSTOMER 357455 v4/RE Master Terms-Paae 2 constitute Previstar's entire liability and Customer's sole remedy 11. MISCELLANEOUS. for any actual or alleged infringement or misappropriation. 11.1 Applicable Law. THIS AGREEMENT AND THE RIGHTS 10. TERM AND TERMINATION. AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE 10.1 Agreement. This Agreement shall become effective upon CONSTRUED IN ACCORDANCE WITH, AND SHALL BE the Effective Date and shall have an initial term of one 1) year, GOVERNED BY, THE LAWS OF THE State of Texas,WITHOUT unless earlier terminated in accordance with this Section 10; GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS CUSTOMER AGREES THAT ANY AND ALL CAUSES OF provided, however, that this Agreement shall remain in full force ACTION BETWEEN THE PARTIES ARISING FROM OR IN and effect until the expiration or termination of any and all Addenda RELATION TO THIS AGREEMENT SHALL BE BROUGHT executed prior to the end of such initial one(1)-year term. EXCLUSIVELY IN THE STATE AND FEDERAL COURTS 10.1.1 Termination for Convenience. Notwithstanding the LOCATED WITHIN THE State of Texas. foregoing, either party shall have the right to terminate this 11.2 Force Majeure. Previstar and Customer shall be excused Agreement for its convenience, at any time, upon thirty (30)days from performance of its obligations under this Agreement if such a written notice, without penalty. If terminated for convenience, the failure to perform results from compliance with any requirement of Customer shall not be entitled to a refund of fees paid under this applicable law, acts of god, fire, strike, embargo, terrorist attack, Agreement, however, Previstar shall continue to provide the war, insurrection or riot or other causes beyond the reasonable services contemplated under this Agreement up through the control of Previstar or Customer. Any delay resulting from any of effective date of termination. such causes shall extend performance accordingly or excuse 10.2 Termination for Breach. Either Party may terminate this performance, in whole or in part, as may be reasonable under the Agreement immediately upon written notice in the event that the circumstances. other Party materially breaches this Agreement and thereafter(i)in 11.3 Notices.All notices required by or relating to this Agreement the case of material breach resulting from non-payment of Shall be in writing and shall be sent by means of certified mail, amounts due hereunder,has failed to pay such amounts within ten postage prepaid, to the Parties to the Agreement and addressed, if (10)days after receiving written notice thereof; or(ii) has failed to to Customer, as set forth on the Cover Page, or if to Previstar, as cure any other material breach (or to commence diligent efforts to follows: cure such breach that are reasonably acceptable to the terminating Previstar,Inc. Party)within thirty(30)days after receiving written notice thereof. 2311 Mill Rd,Suite 100 14.3 Termination upon Bankruptcy, Insolvency, Etc. Either Alexandria,VA 22314 Party may terminate this Agreement immediately upon written Attention: Contract's Department notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable With a copy to* bankruptcy, reorganization, moratorium, or similar debtor relief Cooley Godward LLP laws, or in the event that a receives has been appointed for the One Freedom Square, Reston Town Center other Party or any of its assets or properties, or an involuntary 11951 Freedom Drive petition in bankruptcy has been filed against such other Party, Reston,Virginia 20190 which proceeding or petition has not been dismissed, vacated, or Attn. Previstar stayed within thirty(30)days. 10.4 Termination of Individual Addenda. In addition to each or addressed to such other address as that Party may have given Party's rights under Sections 10.2 and 10.3, each Party may by written notice in accordance with this provision. All notices terminate any particular Addendum according to any provision required by or relating to this Agreement may also be therein permitting such termination, provided that this Agreement communicated by facsimile, provided that the sender receives and (including these Master Terms and any other Addenda) shall retains confirmation of successful transmittal to the recipient. Such remain in full force and effect in accordance with their respect notices shall be effective on the date indicated in such terms confirmation. In the event that either Party delivers any notice 10.5 Accrued Obligations. Termination of this Agreement and/or hereunder by means of facsimile transmission in accordance with any particular Addendum shall not release the Parties from any the preceding sentence, such Party will promptly thereafter send a liability which, at the time of termination, has already accrued or duplicate of such notice in writing by means of certified mail, which thereafter may accrue with respect to any act or omission postage prepaid, to the receiving Party, addressed as set forth before termination,or from any obligation which is expressly stated above or to such other address as the receiving Party may have in this Agreement and/or any applicable Addendum to survive Previously substituted by written notice to the sender. termination. Notwithstanding the foregoing, the Party terminating 11.4 Assignment.Customer shall not assign its rights or delegate this Agreement or any Addenda as permitted by any provision in its obligations under this Agreement without Previstar's prior this Section 10 shall incur no additional liability merely by virtue of written consent, and, absent such consent, any purported such termination. assignment or delegation by Customer shall be null,void and of no 14.6 Cumulative Remedies. Termination of this Agreement effect. This Agreement shall be binding upon and inure to the and/or any applicable Addendum, regardless of cause or nature, benefit of Previstar and Customer and their successors and permitted assigns. shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage 11.5 Independent Contractors. Customer and Previstar occasioned thereby. acknowledge and agree that the relationship arising from this 10.7 Effect of Termination. Upon any termination of this Agreement does not constitute or create any joint venture, Agreement, each Party shall (i) immediately discontinue all use of partnership, employment relationship or franchise between them, the other Party's Confidential Information; (ii) delete the other and the Parties are acting as independent contractors in making Party's Confidential Information from its computer storage or any and performing this Agreement. other media, including, but not limited to, online and off-line 11.6 Amendment. No amendment to this Agreement or any libraries; (iii) shall return to the other Party or, at the other Party's Addendum shall be valid unless such amendment is made in option, destroy, all copies of such other Party's Confidential writing and is signed by the authorized representatives of both Information then in its possession; and (iv) shall promptly pay all Parties. amounts due and remaining payable hereunder. 11.7 Waiver. No waiver under this Agreement shall be valid or 10.8 Survival of Obligations.-rhe provisions of Sections 4, 5,S, binding unless set forth in writing and duly executed by the Party 7.2, 8, 9, 10.5, 10.6, 10.7, 10.8 and 11, as well as Customer's against whom enforcement of such waiver is sought. Any such obligations to pay any amounts due and outstanding hereunder, waiver shall constitute a waiver only with respect to the specific shall survive termination or expiration of this Agreement. 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 11.12 Counterparts. This Agreement may be executed in any right hereunder shall not be deemed a waives of that right. number of counterparts, each of which when so executed shall be 11.8 Severabillity. If any provision of this Agreement is invalid or deemed to be an original and all of which when taken together unenforceable for any reason in any jurisdiction, such provision shall constitute one Agreement. shall be construed to have been adjusted to the minimum extent 11.13 Headings. The headings in this Agreement are inserted necessary to cure such invalidity or unenforceability. The invalidity merely for the purpose of convenience and shall not affect the or unenforceability of one or more of the provisions contained in meaning or interpretation of this Agreement. this Agreement shall not have the effect of rendering any such 11.14 Customer Announcement. Client grants to Previstar a provision invalid or unenforceable in any other case, circumstance non-exclusive, revocable and royalty free license to use its or jurisdiction, or of rendering any other provisions of this corporate name in Previstar's website, customer lists, and Agreement invalid or unenforceable whatsoever. marketing materials,subject to prior review and approval by Client 11.9 Causes of Action. No action arising from or related to this for any mention other than in a client listing, such approval which Agreement may be brought by either Party more than one(1)year shall not be unreasonably withheld. Client agrees, upon after the cause of action has accrued, except that an action for reasonable request, to provide verbal feedback of its assessment non-payment may be brought within two (2) years after the date and experience with the CEMPlanner based on Client's direct use. such amount was due_ Client will in no way participate in reference calls, press releases, 11.10 No Third Party Beneficiaries. The Parties acknowledge press interviews, case studies or webinars for or on behalf of that the covenants set forth in this Agreement are intended solely Previstar. for the benefit of the Parties, their successors and permitted assigns. Nothing herein,whether express or implied, shall confer 11.15 Entire Agreement. This Agreement (together with any upon any person or entity, other than the Parties,their successors Addenda) sets forth the entire agreement and understanding and permitted assigns, any legal or equitable right whatsoever to between the Parties hereto with respect to the subject matter enforce any provision of this Agreement. hereof and, except as specifically provided herein,supersedes and 11.11 U.S.Government End-Users. Each of the components merges all prior oral and written agreements, discussions and that constitute the Licensed Application is a "commercial item"as understandings between the Parties with respect to the subject that term is defined at 48 C.F.R. 2.101, consisting of"commercial matter hereof, and neither of the Parties shall be bound by any computer software" and/or "commercial computer software conditions, inducements or representations other than as expressly documentation" as such terms are used in 48 C.F.R. 12.212. provided for herein. Consistent with 48 C.F.R. 1 2.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the [End of Master Terms] Licensed Application with only those rights set forth herein. 357455 v41RE Master Terms-Paae 4 DESCRIPTION OF SERVICES EXHIBIT A 1. IDENTIFICATION OF SERVICES: 0 CEMPlanner Software Service 11.Term • StarVEffective Date /v m 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) Number of Name Ilse 'i the pers who will be provided with the initial user na and passwor into t e system) Named User: Q e !�S �Z Tamed User email address: C..C4� IV.FEES AND PAYMENT TERMS: CEMPlanner Software Service 1. Planning Manager $6275 2. Tactical Pre-Planning $1680 3. Resource Inventory $5600 Government Discount-- 10% (1356.00) Initial 12 months Previstar "Community (12,200.00) Pre aredness&Resiliency"Discount $0.00 Other Services Billed as used. - I web based session included at no cost, additional sessions available at$500 if - needed -included - -Email support-unlimited -Telephone Support: $45 per hour -2 hours in year I included at no cost - 12 hours ply at no cost starting year 2 -Emergency Management Subject Matter Expert Consulting,plan development, data input,integration $125 per hour on site support available* ■ * 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 earl renewal discount of an additional 5% off the list price with an annual service fee renewal payment on or before the 90 day prior to the annual agreement End Date.Renewal Term equal to 12 months+remainder of first year Term. 357455 WRE Software Aoolication Services Addendum -Exhibit A Previstar,Inc. SERVICE LEVELS EXHIBIT B 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 7:00pm and 6:00am 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 Purpose of Scheduled Maximum Duration of will occur on a regular basis: Downtime: Scheduled Downtime: Each Weekend system maintenance 4 hours Each Weekend database maintenance 6 hours Once per calendar month application/OS maintenance 6 hours Once per calendar quarter system maintenance/upgrades 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: (Total Monthly Time-Unscheduled Downtime) System Availability = 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 (u24x7x365") by emailing Previstar at support0wevistaL.gom 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 Tenn. 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(1 D) 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 v Y/RE Software Aanlication 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. S. 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 Description When does back-up occur? Daily Incremental Files Daily Nightly between midnight and 3:09 am. Full Back-Up All Customer Content 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 Retention Period Daily Incremental Files 21 Days Full Back-Up 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 v IRE Software A[mlication 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. will ensure that its use of the Services and the Documentation Certain capitalised terms, not otherwise defined above, have the complies with all applicable laws,statutes, regulations or rules. meanings set forth or cross-referenced in this Section 1 or the meanings set forth in the Agreement. 2.3 Retained Rights; Ownership. Subject to the rights granted 1.1 "Access Protocols" shall have the meaning set forth in in this Agreement, Previstar retains all intellectual property rights embodied in, or practiced by, the Services (or any component Section 2.1. thereof or software or processes utilized to provide the same)and 1.2 "Addendum Term"will have the meaning set forth in Section the Documentation, and Customer acknowledges that it neither 6.1• owns nor acquires any additional rights in and to the foregoing not 1.3 "Authori"zed End [User" means any individual employee, expressly granted by this Agreement. Customer further agent or contractor of an Authorized Entity accessing and using acknowledges that Previstar retains the right to use the foregoing the Services on behalf of, and solely for the benefit of, the for any purpose in Previstar's sole discretion. Authorized Entity in the operation of its business. 1.4 "Authorized Entity' means the organization that is planning 3. CUSTOMER OBLIGATIONS. for and/or leading the emergency incident management response 3.1 Authorized End User Access to Services. Subject to the by way of the use of the Services solely on behalf and for the terms and conditions herein, Customer may permit any Authorized benefit of Customer in the operation of Customer's business. The End User of an Authorized Entity and any Named User up to the Authorized Entity may be a commercial,private, non-governmental number r which licenses have been purchased to access and or a governmental organization. If the Authorized Entity is a use the features and unctions of the Services. Customer will Governmental organization, the term shall only encompass the ensure that any such Authorized End User or Named User will be functional operating unit itself (i.e. Agency, Department, City, bound by a contractual,enforceable agreement,which agreement, County or State) and by no means will include the entire will, by its terms, provide substantially the same or greater Government,either Local,State or Federal. protections for Previstar's Confidential Information, the Services, 1.5"Named User" means a User associated with a single, unique and the Documentation as are provided by the terms hereof. log-in ID who has been provided access to the Previstar Services 3.2 Provision of Support to Authorized End Users and Named regardless of whether or not the User is using the Software at any Users. Support for the Services is available by telephone from given time. 9:00 am to 5:00 pm Eastern Standard Time non-holiday weekdays, 1.6 "Customer''means the entity identified in the signature block at the number specified in Exhibit B of this Addendum and/or such of this Addendum,below.. other points of contact that Previstar specifies from time to time. Previstar reserves the right to keep a maintenance window 1.7"Services"means the service described in Exhibit B. between the hours of 7:00pm and 6:00am Eastern Standard Time. 2. ACCESS AND USE. Previstar also reserves the right to make changes to the Services 2.1 Provision of Access. Subject to the terms and conditions from time to time; such changes shall not preclude Customer's contained in this Agreement, Previstar agrees to provide access to access to the Services. Previstar reserves the right, as required the features and functions of the Services during the Addendum and without notice to Customer, to control, restrict, and/or disable Term solely for use by Authorized End Users of an Authorized Customer's operation over the Services to prevent any negative Entity up to the number of Named Users for which licenses have impact to other subscribers. Other than as required from Previstar been purchased and solely in accordance with any Documentation under Section 3.2 of this Addendum, Customer shall provide all provided and Access Protocols specified by Previstar. Previstar maintenance and technical support services as may be required by shall provide to Customer the necessary passwords and network its Authorized End Users and Named Users, with respect to links or connections to allow Customer to access the Services(the provision of access to, and use of, the Services, unless customer "Access Protocols"). Previstar shall also provide Customer the buys help desk support. In the event that any Customer Documentation to be used by Customer in accessing and using the Authorized End User and Named User contacts Previstar, Services. Customer acknowledges and agrees that, as between Previstar, in its discretion, may decline to provide such services Customer and Previstar,Customer shall be responsible for all acts and, at Customer's expense, redirect and/or refer such Authorized and omissions of Authorized End Users and Named Users, and End User and Named User to Customer at such point of contact as any act or omission by an Authorized End User or a Named User Customer may hereafter designate in writing to Previstar. which,if undertaken by Customer,would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by 3.3 Assistance to Previstar. To the limited extent that may be Customer. reasonably necessary to enable Previstar to perform its obligations 2.2 Usage Restrictions. Customer will not(i)decompile, hereunder, Customer will provide assistance to Previstar, disassemble, reverse engineer or otherwise attempt to obtain or including, but not limited to, by means of access to, and use of, perceive the source code from which any software component Customer facilities and Customer equipment, as well as by means utilized to provide the Services is compiled or interpreted,and of assistance from Customer personnel. Customer acknowledges that nothing in this Agreement will be 4. FEES AND PAYMENTS. In consideration for the rights granted construed to grant Customer any right to obtain or use such source to Customer and the performance of Previstar's obligations under code; (ii)modify the Services or the Documentation, or create any this Addendum, Customer shall pay to Previstar, without offset or derivative product from any of the foregoing, except with the prior deduction, certain fees in such amounts as may be determined by written consent of Previstar; or(iii) assign, sublicense, sell, resell, reference to Exhibit A to this Addendum. Unless otherwise lease, rent or otherwise transfer or convey,or pledge as security or provided in such Exhibit A, all such fees shall be due and payable otherwise encumber, Customers rights under Section 2.1. within thirty (30) calendar days after an invoice is issued by Customer will not use the Services and/or the Documentation Previstar with respect thereto. 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 Software Aoolication Services Addendum 5.WARRANTIES AND LIMITATIONS. parties in Exhibit A of this addendum, upon expiration of the 5.1 Limited Previstar Warranties. Previstar warrants that the Addendum Term this agreement shall automatically renew for the Services will conform in all material respects to the service same term.Customer will have 30 days to cancel from the renewal standards set forth in Schedule B when accessed and used in date,at the expiration of which this Agreement will become binding strict accordance with the Documentation and the Access 6.2 Termination for Breach. Either Party may, at its option, Protocols. Notwithstanding any other provision of this Agreement, terminate this Addendum in the event of a material breach by the Customer acknowledges and agrees that its sole and exclusive other Party. Such termination may be effected only through a remedy, and Previstar's sole and exclusive obligation,with respect written notice to the breaching Party, specifically identifying the to any breach of the foregoing warranty shall be remedies breach or breaches on which such notice of termination is based. specified in such Exhibit B. The breaching Party will have a right to cure such breach or breaches within thirty(30)days of receipt of such notice, and this 5.2 Limitations of Warranty and Liability. Except as expressly Addendum shall terminate in the event that such cure is not made set forth in Section 5.1 of this Addendum, Previstar makes no within such thirty (30)-day period. Without limiting the foregoing, representations or warranties under this Addendum,and Customer Previstar may immediately terminate this Addendum upon written acknowledges that this Addendum is subject to all disclaimers and notice in the event that Customer breaches Section 2.2 of this limitations or liability set forth in the Master Terns. Addendum or becomes insolvent or enters bankruptcy prior to payment of all amounts due under Section 4 of this Addendum. 6. ADDENDUM TERM AND TERMINATION. 6.3 Effect of License Termination. Upon any termination of this 6.1 Addendum Term. This Addendum shall become effective Addendum, Customer shall (i) immediately discontinue all use of Month, day, year, the "Addendum Effective Date") and shall the Services and Documentation;and(ii)promptly pay to Previstar continue in full force and effect unless terminated in accordance all amounts due and remaining payable under this Addendum. with the terms established in Exhibit A or in accordance with this 6.4 Survival. The provisions of Sections 2.2, 2.3, 4, 5, 5.3, and Section. The period during which this Addendum remains in effect 5.4 will survive the termination of this Addendum. shall be the 'addendum Term". Unless otherwise agreed by the The Parties agree to the above terms and have executed this Addendum as of the date(s)set forth below. CUSTOMER: City of Fort Worth PREV D ION By(Signature): By(Signature): Name(Printed). C arles W.Daniels Name(Printed). Title: Assistant Citv Mana er Title: 1)PA)T . �Date. II Date. APPROVED AS TO FORM AND LEGALITY: ORS Assistant City �ornev AV a°°°Q°°a *1 FfA a bo 00 b 0 0 A:Z a OFFICIAL RECORD 0000° •f CITY SECRETARY XX ki*J9 City S& -"ate FT. WORTH,TX Software Aoolication Services Addendum