SOFTWARE LICENSE AND SERVICE AGREEMENTAVOLVE SOFTWARE CORP
SOFTWARE LICENSE AND SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement ("Agreement)" is made this 21" day of December 2009, between AVOLVE SOFTWARE Corporation
("Licensor"), a Delaware corporation, having its principal place of business at 4835 E. Cactus Road, Suite 420, Scottsdale,
Arizona 85254, United States of America, and City of Clearwater, a political subdivision of the State of Florida, with its
principal place of business at100 S. Myrtle Avenue, 2"d floor, Clearwater, Florida 33758 ("Licensee").
WHEREAS Licensor has created a computer software program called ProjectDox ("Software") hereafter more fully described;
WHEREAS the parties wish to provide the terms and conditions under which the Licensor will provide the Software for the use by
Licensee;
IN CONSIDERATION OF THIS GRANT OF LICENSE and the terms and covenants herein, the receipt and sufficiency of
which is acknowledged by all parties, the parties agree as follows:
1. Licensor Obligations.
a. License Grant. So long as the Licensee complies with the terms of this Agreement, the Licensor grants to
the Licensee, subject to the terms, conditions, and limitations hereof, the non-transferable (except as set forth in Section 11
below), non-exclusive right to use and permit its Users to use the Software for the term set out herein solely for Licensee's
business operations. The rights granted to Licensee under this Agreement are subject to the following restrictions: (i) except
as expressly stated herein to the contrary, Licensee shall not license, sell, rent, lease, copy, transfer, assign, distribute, display,
host, outsource, disclose or otherwise commercially exploit or make the Software available to any third party; or (ii) Licensee
shall not modify, make derivative works of, dis-assemble, reverse compile, or reverse engineer any part of the Software, or
access or use the Software in order to build a similar or competitive product or service.
b. Scope of Grant.
Licensee may:
• Make one copy of the Software for archival purposes, if the copy contains all of the original Software's
proprietary notices;
• Use the Application Programming Interfaces ("APIs") of the Software to program those APis (a "Custom
Application") but only as described in the documentation for the Software and only to the extent necessary
to permit the Licensee's Custom Application to function with the Software through the APIs as described
in the Documentation;
• Use the Software solely for publishing, displaying, marking up and making accessible internal documents
and documents posted by any of Licensee's customers or vendors.
Licensee may not:
• Permit other individuals to use the Software except under the terms listed above;
• Permit concurrent use of the Software, except where a load balanced license of the Software has been
purchased as an option;
• Use any Custom Application on any computer server other than the computer server on which the Software
is installed without purchasing additional licenses for each additional computer server on which Licensee
wishes to use the Custom Application.
C. Training, Technical Support and Deliverables. Licensor shall provide the education, training and
technical support services and deliverables according to the allocation of time as itemized in Attachment 1, attached hereto
and incorporated herein by this reference.
d. Maintenance Services. Licensor shall provide the maintenance services described in Attachment 2,
attached hereto and incorporated herein by this reference.
AVS2009V2 Page 1
L .
2. Ownership. Licensee acknowledges and agrees that Licensor owns all right, title, and interest in and to all
intellectual property rights (including all derivatives or improvements thereof) in the Software and any suggestions,
enhancements requests, feedback, recommendations or other information provided by Licensee or any of its Users related to
the Software. Licensee's rights in the Software, updates, and the related materials supplied by the Licensor pursuant to this
Agreement are strictly limited to the right to use the proprietary rights in accordance with the terms of this Agreement. No
right of ownership, expressed or implied, is granted under this Agreement.
3. License Fees. The license fees paid by Licensee and set forth in Attachment 3, attached hereto and incorporated
herein by this reference, are paid in consideration of the licenses granted under this Agreement. The license fees constitute a
flat rate payment for an enterprise wide license. Customer shall pay in accordance with the Florida Prompt Payment Act,
F.S. Secs. 255.075-255.078. Licensee agrees to provide Licensor with complete and accurate billing and contact information.
Overdue payments shall bear interest in the amount provided for by the Florida Prompt Payment Act, F.S. Secs. 255.0705-
255.078. Any amounts payable pursuant to this Agreement are exclusive of all taxes of any kind. If taxes of any sort (other
than Licensor's income taxes or withholding taxes) are imposed by any taxing authority, they shall be paid by Licensee in
addition to all amounts specified in this Agreement. To the extent Licensee is exempt from sales or other taxes; Licensee
agrees to provide Licensor, upon request, with the appropriate exemption certificates.
4. Term. The term of this License Agreement shall commence as of the date of this Agreement and shall continue
unless and until terminated pursuant Section 5 below.
5. Termination. Licensee may terminate this License Agreement at any time by returning the Software and all copies
thereof and extracts thereof to Licensor. Licensor may terminate this License Agreement upon the material breach by
Licensee of any term hereof. Upon such termination by Licensor, Licensee agrees to return to Licensor the Software and all
copies and portions thereof. Upon termination of this Agreement for any reason, Licensee shall (i) immediately discontinue its
use of the Software, and (ii) return to Licensor the original and all copies of all Software and Documentation in whatever form in
Licensee's possession, custody or control or, upon the written request of Licensor, destroy all such copies and certify to Licensor
in writing that Licensee has complied with all requirements.
6. Confidentiality. Each party shall hold confidential information of the other in confidence. All confidential
information (including but not limited to data) shall (i) remain the sole property of the disclosing party and (ii) be used by the
receiving party only as authorized herein. Information will not be considered to be confidential information if (i) available to
the public other than by a breach of this agreement; (ii) rightfully received from a third party not in breach of any obligation
of confidentiality, (iii) independently developed by or for a party without access to confidential information of the other; (iv)
lawfully known to the receiving party at the time of disclosure, (v) produced in compliance with applicable law, securities
reporting requirement or a government or court order, provided the other party is given notice and an opportunity to
intervene; or (vi) it does not constitute a trade secret and more than three (3) years have elapsed from the date of disclosure.
7. Limited Warranties. Licensor warrants Licensee for a period of thirty (30) days following successful completion
of the Project Schedule set forth in Exhibit "B"(referred to as the "Warranty Period") that the Software media is delivered
free from defects in material and workmanship. Licensor further warrants, for Licensee's benefit alone, that during the
Warranty Period the Software shall operate substantially in accordance with the functional specifications in the User's
Manual. If during the Warranty Period, a defect in the Software appears, Licensee may return the Software to Licensor for
either replacement or, if so elected by Licensor, refund of amounts paid by Licensee under this License Agreement. Licensee
agrees that the foregoing constitutes Licensee's sole and exclusive remedy for breach by Licensor of any warranties made
under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE, AND THE
SOFTWARE CONTAINED THEREIN, ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL
OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE LICENSEE
ASSUMES THE ENTIRE RISK AS TO THE QUALITY OF PERFORMANCE WITH RESPECT TO THE SOFTWARE
AND THE SOFTWARE CONTAINED THEREIN, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
8. Limitation of Liability. SUBJECT TO SUCH LIMITATIONS AS MAY EXIST UNDER CALIFORNIA LAW,
LICENSOR'S CUMULATIVE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES
RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL NOT EXCEED THE LICENSE FEE PAID TO LICENSOR FOR THE USE OF THE SOFTWARE.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
AVS2009V2 Page 2
OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF LICENSOR HAS SEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES
9. Trademark. No right, license, or interest to trademarks held by Licensor are granted hereunder, and Licensee
agrees that no such right, license, or interest shall be asserted by Licensee with respect to such trademarks.
10. Support. For a period of two (2) years following the date of this Agreement, Licensor will furnish Licensee with
support by telephone, facsimile, electronic mail or mail, to assist Licensee in use of the Software. Support for subsequent
years is included in the annual maintenance fees. All correspondence relating to the Software and this Agreement should be
directed to: Avolve Software Corp., 4835 E. Cactus Road, Suite 420, Scottsdale, AZ 85022.
11. Governing Law and Venue. This Agreement shall be governed in accordance with the laws of the State of Florida.
Any legal action or proceeding relating to this Agreement shall. be instituted in a state or federal court in Pinellas County,
Florida, and each party hereby submits to the personal jurisdiction of such courts and waives any defense related to venue or
forum non convenient.
12. Indemnification. The Licensor will defend and hold Licensee harmless from and against any and all costs,
liabilities, and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or in connection with a claim,
suit, action, or proceeding brought by any third party against Licensee to the extent that it is based on a claim that Licensee's
use of the Software infringes a copyright, patent, or other intellectual property right enforceable in Canada or the United
States; provided that Licensee (a) shall promptly notify Licensor of any claim, demand, action or other proceeding for which
Licensee intends to claim indemnification; (b) gives Licensor the right to participate in, and to the extent Licensor so desires
jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel selected by Licensor;
and (c) reasonably cooperates with Licensor and its legal representatives in the investigation of any claim, demand, action or
other proceeding covered by this Section 12. If the Software is held to infringe any intellectual property right, Licensor may,
in its sole discretion and at its own expense, either procure a license that will protect Licensee against such claim without cost
to Licensee or replace the Software with a non-infringing service with comparable functionality. Provided that Licensor
complies with this Section 12, Licensee shall have no additional remedy against Licensor by reason of a third party
infringement claim.
13. Costs of Litigation. If any action is brought by either party to this Agreement against the other party regarding the
subject matter hereof, regardless of the outcome of such action, each party shall bear is own attorney fees and expenses of
litigation.
14. Export Restrictions. Licensee agree to comply strictly with all export laws and restrictions or regulations of the
United States or foreign agency or authority, and not to export, or allow the export or re-export of the Software,
Documentation or any technical data in violation of any such restriction, law or regulation, without all necessary approvals.
15. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and
supersedes any prior agreements, representation, or understandings, whether oral or written, relating to the Software.
M. Severability. Should any court of competent jurisdiction declare any term of this Agreement void or unenforceable,
such declaration shall have no effect on the remaining terms hereof.
17. Waiver. Neither party's failure to exercise or delay in exercising any right or remedy that it may have under this
Agreement shall operate as a waiver of that right or remedy or preclude any other or further exercise of any right or remedy
available under this Agreement.
18. Assignment. This License, the Licensed Software and any other information or rights provided by Licensor, may
not be sold, leased, assigned, sublicensed or otherwise transferred in whole or in part. Licensee may not assign this
Agreement or the benefits there from in whole or in part without the prior written consent of Licensor, which consent shall
not be unreasonably withheld. Any assignment made in conflict with this provision shall be voidable at the option of the
Licensor. Without the prior written consent of the Licensee, which will not be reasonably withheld, this Agreement is not
assignable.
AVS2009V2 Page 3
19. Publicity. Licensor may identify Licensee on its customer lists and list Licensee as a customer in its marketing and
advertising materials, and reproduce Licensee's company name, logo, trademark, trade name, service mark, or other
commercial designations, solely in connection therewith. Licensor will not otherwise use Licensee's name for any publicity or
marketing purposes without Licensee's prior written consent.
20. Notices. Any notices 'being given by this Agreement shall be in writing and shall be effective if delivered
personally, sent by prepaid courier service, sent by prepaid mail, or sent by facsimile or electronic communication (confirmed
on the same or following day by prepaid mail). All correspondence shall be in English and addressed to the parties as
follows:
If to Licensor (Avolve Software): If to Licensee:
Attn:
Attn: Ron Loback
President/CEO
Avolve Software
4835 E. Cactus Road, Suite 420
Scottsdale, Arizona 85254
Phone: 602-971-6061
rloback@avolvesoftware.com
Any party may change its address for service by notice served as set out above.
21. Independent Contractor. The Licensor is an independent contractor and not an employee of the Licensee. Any
personnel performing services under this Agreement on behalf of the Licensor shall at all times be under the Licensor's
exclusive direction and control. The Licensor shall pay all wages, salaries, and other amounts due such personnel in
connection with their performance of services under this Agreement and as required by law. The Licensor shall be
responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, and worker's compensation insurance.
22. Indemnification and Insurance.
a. Indemnification. The Licensor agrees to indemnify, defend (with counsel reasonably approved by
Licensee) and hold harmless the Licensee and its authorized officers, employees, agents and volunteers from any
and all claims, actions, losses, damages, and/or liability arising out of this Agreement designated to the extent
caused by the negligent, reckless, or willful acts, errors or omissions of Licensor or its employees, officers or sub-
licensors.
b. Insurance. The Licensor agrees to provide insurance set forth in Attachment 4.
23. Equal Opportunity. The Licensor complies with the Equal Employment Opportunity Program of the State of F and
rules and regulations adopted pursuant thereto: Executive Order 11246, as amended by Executive Order 11375, 11625,
12138, 12432, 12250, Title VII of the Civil Rights Act of 1964, and other applicable Federal, State, and County laws,
regulations and policies, including laws and regulations hereafter enacted. The Licensor shall not unlawfully discriminate
against any employee, applicant for employment, or service recipient on the basis of race, national origin or ancestry,
religion, sex, marital status, age, political affiliation or disability.
24. Recycling. The Licensor shall make a reasonable effort to comply with the Licensee's recycled product purchasing
standards policy which requires vendors to use recycled paper for proposals/reports and for any printed or photocopied
material created as a result of a contract with the Licensee. The policy also requires vendors to use both sides of paper sheets
for reports submitted to the Licensee whenever practical.
25. Conflict of Interest. The Licensor shall make all reasonable efforts to ensure that no conflict of interest exists
between its officer, employees, or subcontracted Licensors, and the Licensee. The Licensor shall make all reasonable efforts
to ensure that no Licensee officer or employee, whose position with the Licensee enables him/her to influence any award of
this Agreement or any competing offer, shall have any direct or indirect financial interest resulting from the award of this
Agreement or shall have any relationship to the Licensor or officer or employee of the Licensor. Officers, employees, and
agents of cities, counties, districts, and other local agencies are subject to applicable conflict of interest codes and state law.
In the event that the Licensee determines a conflict of interest situation exists, the Licensee may disallow any increase in
Title:
Address:
Phone:
Email
AVS2009V2 Page 4
costs associated with the conflict of interest situation and such conflict may constitute grounds for termination of the
Agreement. This provision shall not be construed to prohibit employment of persons with whom the Licensor's officers,
employees, or agents have family, business, or other ties so long as the employment of such persons does not result in
increased costs over those associated with the employment of any other equally qualified applicant.
26. Disclosure of Criminal and Civil Proceedings. The Licensee reserves the right to request the information described
herein from the Licensor. The Licensee also reserves the right to obtain the requested information by way of a background
check performed by an investigative firm. The Licensor may be asked to disclose whether the firm, or any of its partners,
principals, members, associates or key employees (as that term is defined herein), within the last ten years, has been indicted
on or had charges brought against it or them (if still pending) or convicted of any crime or offense arising directly or
indirectly from the conduct of the firm's business, or whether the firm, or any of its partners, principals, members, associates
or key employees, has within the last ten years, been indicted on or had charges brought against it or them (if still pending) or
convicted of any crime or offense involving financial misconduct or fraud. If the response is affirmative, the Licensor shall
describe any such indictments or charges (and the status thereof), convictions and the surrounding circumstances in detail.. In
addition, the Licensor may be asked to disclose whether the firm, or any of its partners, principals, members, associates or
key employees, within the last ten years, has been the subject of legal proceedings as defined herein arising directly from the
provision of services by the firm or those individuals. "Legal proceedings" means any civil actions filed in a court of
competent jurisdiction, or any matters filed by an administrative or regulatory body with jurisdiction over the firm or the
individuals. If the response is affirmative, the Licensor shall describe any such legal proceedings (and the status and
disposition thereof) and the surrounding circumstances in detail. For purposes of this provision "key employees" includes
any individuals providing direct service to the Licensee. "Key employees" do not include clerical personnel providing
service at the firm's offices or locations.
27. Drug-Free Workplace Policy. The Licensor certifies that it will comply with the requirements of the Drug-Free
Workplace Act of 1.990 and will provide a drug-free workplace by taking the following actions:
a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession
or use of a controlled substance is prohibited and specifying actions to be taken against employees for
violations.
b. Establish a Drug-Free Awareness Program
i. The dangers of drug abuse in the workplace.
ii. The person's or organization's policy of maintaining a drug-free workplace.
iii. Any available counseling, rehabilitation and employee assistance programs.
iv. Penalties that may be imposed upon any employees for drug abuse violations.
c. Provide that every employee who works on the proposed or resulting Agreement:
i. Will receive a copy of the company's drug-free policy statement; and
ii. Will agree to abide by the terms of the company's drug-free policy statement as a condition of
employment.
28. Improper Consideration. Licensor shall not offer (either directly or through an intermediary) any improper
consideration such as, but not limited to, cash, discounts, service, the provision of travel or entertainment, or any item of
values to any office, employee, or agent of the Licensee in an attempt to secure favorable treatment regarding the award of
this proposal. The Licensee, by written notice, may immediately terminate this Agreement if it determines that any improper
consideration as described was offered to any officer, employee, or agent of the Licensee with respect to the Agreement.
Licensor shall immediately report any attempt by a Licensee officer, employee or agent to solicit (either directly or through
an intermediary) improper consideration from Licensor. The report shall be made to the supervisor or manager charged with
supervision of the employee or to the Administrative Office.
29. Electronic Funds Transfer. The Licensor shall accept all payments from the Licensee via electronic funds transfer
(EFT) directly deposited into the Licensoes designated checking or other bank account. The Licensor shall promptly comply
with directions and accurately complete forms provided by the Licensee required to process EFT payments.
30. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all
signatories had signed the same document. All counterparts must be construed together to constitute one instrument.
AVS2009V2 Page 5
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of the Effective Date.
AVOLVESOI
By:
Nan
Title
Countersigned:
CITY OF CLEARWATER, FLORIDA
B
Kay-
rank V. Hibbard William B. Horne II
Mayor
Appr ved as to form:
Leslie K. Do a 1-Sides
Assistant City Attorney
City Manager
Attest:
Cyn a E. Goudeau
City erk ?vr
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AVS2009V2 Page 6
Attachment 1 (financing, non applicable
ATTACHMENT 2
MAINTENANCE AGREEMENT
1. Scope of Maintenance Agreement. This Attachment describes the Technical Support plans and terms and
conditions currently applicable to the Software offered by Licensor. The Technical Support described below does not
expand or change any warranty provisions set forth in the Agreement. Capitalized terms used in this Attachment and
not separately defined below shall have the meanings set forth in the Agreement.
2. Terms and Conditions Related to Standard Technical Support ... Licensor will provide the following standard
Technical Support for the Software:
a. Designation of a User Login and Password. Licensee must register with Licensor unique passwords and
user names, which will be required when seeking Technical Support. Licensee acknowledges and agrees that
Licensee is prohibited from sharing passwords and/or user names with unauthorized. users. Licensee will be
responsible for the confidentiality and use of passwords and user names. Licensor will act as though any electronic
communication it receives under Licensee passwords, user names, and/or account number will have been sent by
Licensee. Licensee agrees to immediately notify Licensor if Licensee becomes aware of any loss or theft or
unauthorized use of any passwords, user names, and/or account number.
b. Software Updates. Licensee will receive, at no additional charge, during the term of its Maintenance
Agreement all minor (e.g. from Release 1.0 to 1.1) and major updates (e.g. from Release 1.1 to 2.0) of the Software
as they are generally made available by Licensor. Where applicable, Licensee will also be entitled to driver updates.
Licensee will be notified by email when updates are available and may also visit Licensor's website at
www.avolvesoftware.com for current information concerning updates. Software and driver updates may be
downloaded at the technical support section of the website (www.proigctdox.coni and, at Licensor's discretion, may
also be provided in physical form. All Software and driver updates are provided under, subject to, and governed by
the terms and conditions of this Agreement. Upon installation of updated Software, Licensee must destroy all prior
releases/versions of the Software.
C. E-mail, Fax and Telephone Support. Licensee may contact Licensor's helpdesk by phoning 602-482-
8443 and speaking with a support representative. Depending on availability, Licensee may be routed to voice mail
to report the problem. Licensee may send Licensor an email through Licensor's customer support web interface,
located in the technical support section of Licensor's website, www.proiect_dox.com, or by sending a fax to 602-971-
6079. Any e-mail or fax requests identifying potential errors or problems in Licensee's use of the Software should
provide Licensor with sufficient information to reproduce the error. Licensor's belpdesk personnel will assist
Licensee in accessing and utilizing the Software, and work with Licensee in good faith to determine the final
disposition of all reported problems or errors, including identifying and providing workarounds for any problem
discovered. Assistance may include communicating via telephone, e-mail, our Support web site, or if allowed by
Licensee, remote desktop sharing.
d. Support Hours. Licensor's helpdesk currently accepts calls, e-mails, and faxes from 8 am. to 5 p.m., U.S.
Arizona Time Monday through Friday (excluding standard U.S. holidays).
C. Error Corrections. Licensor will use commercially reasonable efforts to correct any reproducible and
material programming error discovered in the Software applying a level of effort reasonably commensurate with the
severity of the error. Licensor is not responsible for correcting errors that result from problems residing outside of
the Software. Typically, Licensor will address errors through updates to the Software, but on occasion and at its
sole discretion may provide Licensor with an interim correction (such as a work-around) pending formal
implementation of an update.
f. Licensee's Suggestions: Any errors or suggested changes, clarifications, additions or other improvements
to the Software which Licensee communicates to Licensor shall constitute Licensee's grant to Licensor, without
AVS2009V2 Page 7
charge or other obligation, of the right to incorporate such suggestions, changes and modifications into the Software
under Licensor's standard intellectual property notices.
3. Non-qualifying Issues and Events
a. Non-Qualified Products. Licensor does not provide Technical Support for any hardware or software
product that is not part of the Software licensed to Licensee by Licensor (a "Nonqualified Product"). Licensee
remains responsible for the compatibility and functioning of Nonqualified Products with the Software. If Licensor
provides Technical Support for a problem caused by a Nonqualified Product or the failure of Licensee's computer
system or environment to comply with the technical specification requirements included in the documentation
provided with the Software (or Licensor's Technical Support efforts are materially increased as a result of
Licensee's use of Nonqualified Products or failure to comply with the technical specification requirements),
Licensor reserves the right to charge Licensee time and materials for such extra services at Licensor's then current
published rates for customized, premium technical support services.
b. Other Exclusions. Licensor's Technical Support does not cover:
(1) Software that has been superseded by a new update/release for more than ninety (90) days;
(2) Altered, damaged, or modified Software;
(3) Any custom applications developed by Licensor for Licensee; or
(4) Software installed in an operating environment that is not supported by Licensor or used other
than as specified in the user manual.
4. General Terms and Conditions
a. Initial Term. For two (2) years from the date the Agreement was signed (unless, pursuant to the terms and
conditions of the Agreement it is terminated earlier) Licensee will be entitled at no extra charge to standard
Technical Support (the "Initial Term") for the Software.
b. Renewal Terms. Licensor shall automatically renew the standard Technical Support at the end of the
"Initial Term" and every anniversary thereafter at the rates listed in Licensor's then-current price list.
C. Maintenance Fees. After the Initial Term, Licensee shall pay Licensor the applicable fee as listed in
Licensor's then-current price list for each Unit of Software for which Licensee purchased standard Technical
Support (the "Maintenance Fees"). At the end of the one year term Maintenance Fees will be either billed annually
or a new, multi-year agreement will be created at the then current rate. Maintenance Fees are paid in advance of the
term and are irrevocable and non-refundable. Customer shall pay in accordance with the Florida Prompt Payment
Act, Secs. 255.075-255.075. If Licensee fails to pay all Maintenance Fees by the due date, this Maintenance
Agreement, and all Technical Support provided for under it, may be immediately terminated, without notice, by
Licensor. Alternatively, Licensor, in its sole discretion, may elect to continue to provide Technical Support and
assess interest as provided for under Section 3 of the Agreement. To reinstate or renew the Maintenance Agreement
(if reinstatement is allowed by Licensor), Licensee must pay in advance and in full (i) all Maintenance Fees and (ii)
the upgrade fee as published in Licensor's then-current price list.
d. Termination. Licensee may terminate this Maintenance Agreement at the end of the Initial Term or the
end of any renewal term. by giving written notice to Licensor at least thirty (30) calendar days before the end of the
existing term. Licensor may immediately suspend or cancel Technical Support under this Maintenance Agreement
by giving written notice to Licensee of Licensee's material breach of the Agreement. This Maintenance Agreement
will automatically and immediately terminate without written notice upon termination of the Agreement.
5. Limited Warranties and Liability Limitations
a. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT, NO MATTER WHAT THE CIRCUMSTANCES, AND IRRESPECTIVE OF WHETHER SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING
AVS2009V2 Page 8
LOST PROFITS, LOST REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER
COMMERCIAL OR ECONOMIC LOSSES OF ANY FIND) ARISING FROM BREACH OF WARRANTY OR
BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING
FROM OR IN CONNECTION WITH THIS AGREEMENT OR SUCH PARTY'S PERFORMANCE
HEREUNDER. LICENSOR'S MAXIMUM LIABILITY FOR DAMAGES FOR ANY CAUSE OF ACTION
RELATING TO THIS MAINTENANCE AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY
LICENSEE FOR THE MAINTENANCE AGREEMENT FOR THE APPLICABLE YEAR. LICENSOR'S
LIABILITY SHALL FURTHER BE LIMITED AS PROVIDED IN THE AGREEMENT. THESE LIMITATIONS
OF LIABILITY SHALL NOT BE APPLICABLE IN THE CASE OF DEATH OR BODILY INJURY.
b. Service Warranties. Licensor warrants that all professional services provided hereunder will be
performed in a workmanlike manner, in conformity with the professional standards for comparable services in the
industry. For any breach of this warranty for service, Licensee's exclusive remedy shall be the re-performance of
the deficient services, and if Licensor is unable to re-perform the deficient services as warranted, Licensee shall be
entitled to recover the portion of the Maintenance Fees paid to Licensor for such deficient services, and such refund
shall be Licensor's entire liability. THESE TERMS AND CONDITIONS FOR TECHNICAL SUPPORT AND
MAINTENANCE SERVICES ARE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. THE
SOFTWARE AND ALL RELATED MATERIALS ARE EXCLUSIVELY SUBJECT TO THE WARRANTIES
SET FORTH IN THE AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE
FAILURE OF THEIR ESSENTIAL PURPOSE.
"S2009V2 Page 9
Attachment 3
Project Budget
All pricing is based on an up-front payment of entire amount due at invoice.
Product Name Product Description Product Qty Unit Price Total Price
Code
ProjectDox Standard Includes workflow & eforms modules as well as
Edition
installation and first year of support and maintenance 372-SE 1 $88,000.00 $88,000.00
ProjectDox Standard Module supports the creation of PDF files for all
PDF workflow/eForms during the plan review process. Also 372-SEPDF 1 $12,000.00 $12,000.00
Conversion/Digital supports the Adobe PDF signature component for those
Si nature Module files created, includes installation
ProjectDox Standard This module supports the ability to create excel based 372-SERPT 1 $12
000
00 $12
000
00
Reports Module reporting on all Knowledge Views that are created within ,
. ,
.
the workflow and eForms defined includes installation
ProjectDox to Accela Accela Automation( Connector:
Automation
Integration Includes software and services that establish two-way
data sharing between Accela Automation and ProjectDox
- supports automatic project creation, document 372-PA 1 $18,500.00 $18,500.00
management, and workflow status and notes updates to
Automation. Professional services provided for
installation and configuration.
FREE IF SOFTWARE PURCHASED BY 12131109
Customer shall pay in accordance with the Florida Prompt Payment Act, F.S. Secs. Grand Total: $130,500.00
I I
255.075-255.078.
PRICE IF SOFTWARE PURCHASED BY 12131109
$112,000.00
AVS2009V2 Page 10
Notes:
Marketing Agreement: As part of this agreement both parties agree and to execute the following activities during the first
two years of the Agreement. Licensor is responsible for travel costs associated with these marketing events.
• Press Release
• Case Study Testimonial
• ROI Benchmarking Study
• Client Referrals
Please consult Licensor for standard rates for Implementation and Training for any additional services. Licensee
shall reimburse Licensor for all actual and incurred implementation and training expenses (T&E) which will be
agreed to at the time the initial Services Discovery Session is completed.. Maximum of 10 persons per training
class (each with a computer).
2. The first step in the implementation process will result in a Statement of Work and schedule for remaining
implementation.
Maintenance (Technical Support as described in Attachment 2) includes all service packs, service releases, and
upgrades to modules purchased. Maintenance also includes unlimited help desk support available from 8 a.m. to S
p.m. Arizona Time, as well as web and email support.
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ATTACHMENT 4
Insurance Coverage
1) Workers' Compensation,
a) A program of Worker's Compensation Insurance or a State-approved Self Insurance Program in an amount
and form to meet all applicable requirements of the State of Arizona, including Employer's Liability with two
hundred and fifty thousand dollars ($250,000) limits, covering all persons, including volunteers providing
services on behalf of the Licensor and all risks to such persons under this Agreement.
b) If the Licensor has no employees, it may certify or warrant that it does not currently have any employees or
individuals who are defined as "employees" under the Labor Code and the requirements for Workers'
Compensation coverage may be waived by the Licensee's Director of Risk Management.
2) Commercial/General Liability Insurance. The Licensor shall carry General Liability Insurance covering all
operations performed by or on behalf of the Licensor providing coverage for bodily injury and property damage with a
combined single limit of not less than one million dollars ($1,000,000) per occurrence. The policy coverage shall
include:
a) Premises operations and mobile equipment,
b)Products and completed operations.
C) Broad form property damage (including completed operations).
d) Personal injury.
e) Contractual liability.
f) Two million dollars ($2,000,000) general aggregate limit.
3) Automobile Liability Insurance. Primary insurance coverage shall be written on ISO Business Auto
Coverage form for all owned, hired and non-owned automobiles or symbol 1 (any auto). The policy shall have a
combined single limit of not less than one million dollars ($1,000,000) for bodily injury and property damage, per
occurrence. If the Licensor is transporting one or more non-employee passengers in performance of Agreement
services, the automobile liability policy shall have a combined single limit of two million dollars ($2,000,000) for
bodily injury and property damage per occurrence. If the Licensor owns no autos, a non-owned auto endorsement to
the General Liability policy described above is acceptable.
4) Umbrella Liability Insurance-. An umbrella (over primary) or excess policy may be used to comply with
limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury, property
damage, and personal injury/advertising injury and shall include a "dropdown" provision providing primary coverage for
any liability not covered by the primary policy. The coverage shall also apply to automobile liability.
5) Professional Liability.
a) Professional Liability Insurance with limits of not less than one million dollars ($1,000,000) and two
million dollars ($2,000,000) aggregate limits, or Errors and Omissions Liability Insurance with limits of not
less than one million dollars ($1,000,000) and two million dollars ($2,000,000) aggregate limits, or Directors
and Officers Insurance coverage with limits of not less than one million dollars ($1,000,000) shall be required
for Agreements with charter labor committees or other not-for-profit organizations advising or acting on behalf
of the Licensee.
b) If insurance is provided on a "claims made" policy, the "retroactive date" shall be shown and must be
before the date of the start of the Agreement work. The claims made insurance shall be maintained or "tail"
coverage provided for a minimum of five (5) years after Agreement completion..
C) The coverage described above is not required for Licensors providing services which are not relied
upon by Licensee departments for decision making. These would include trainers or instructors, expert
AVS2009V2 Page 12
witnesses, statisticians, etc. Whether such coverage is required will be determined by the Licensee Risk
Manager.
6) Additional Insured. All policies, except for the Workers' Compensation, Errors and Omissions and
Professional Liability policies, shall contain endorsements naming the Licensee and its officers, employees, agents
and volunteers as additional insured's with respect to liabilities arising out of the performance of services hereunder.
The additional insured endorsements shall not limit the scope of coverage for the Licensee to vicarious liability but
shall allow coverage for the Licensee to the full extent provided by the policy.
7) Waiver of Subrogation Rights. The Licensor shall require the carriers of required coverage's to waive all
rights of subrogation against the Licensee, its officers, employees, agents, volunteers, Licensors and sub-Licensors.
All general or auto liability insurance coverage provided shall not prohibit the Licensor and the Licensor's
employees or agents from waiving the right of subrogation prior to a loss or claim. The Licensor hereby waives all
rights of subrogation against the Licensee.
8) Policies Primary and Non-Contributory. All policies required herein are to be primary and non-
contributory with any insurance or self-insurance programs carried or administered by the Licensee.
9) Severability of Interests. The Licensor agrees to ensure that coverage provided to meet these
requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude
coverage for suits between the Licensor and the Licensee or between the Licensee and any other insured or
additional insured under the policy.
10) Proof of Coverage. The Licensor shall furnish Certificates of Insurance to Licensee, including
endorsements, as required, prior to the commencement of performance of services hereunder, which certificates
shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to
Licensee, and the Licensor shall maintain such insurance from the time the Licensor commences performance of
services hereunder until the completion of such services. Within fifteen (15) days of the commencement of this
Agreement, the Licensor shall furnish a copy of the Declaration page for all applicable policies and will provide
complete certified copies of the policies and endorsements immediately upon request.
11) Acceptability of Insurance Carrier. Unless otherwise approved by Licensee's Risk Management,
insurance shall be written by insurers authorized to do business in the State of the Licensee and with a minimum
"Best" Insurance Guide rating of "A- VII".
1.2) Deductibles and Self-Insured Retention. Any and all deductibles or self-insured retentions in excess of
ten thousand dollars ($10,000) shall be declared to and approved by Licensee's Risk Management.
13) Failure to Procure Coverage. In the event that any policy of insurance required under this Agreement
does not comply with the requirements, is not procured, or is canceled and not replaced, the Licensee has the right
but not the obligation or duty to cancel the Agreement or obtain insurance if it deems necessary and any premiums
paid by the Licensee will be promptly reimbursed by the Licensor; alternatively, the .Licensee's payments to the
Licensor under this Agreement will be reduced to pay for insurance purchased by the Licensee.
14) Insurance Review. Insurance requirements are subject to periodic review by the Licensee. The Licensee's
Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance
requirements whenever Licensee's Risk Management determines that any of the required insurance is not available,
is unreasonably priced, or is not needed to protect the interests of the Licensee. In addition, if the Licensee's Risk
Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage
limits become reasonably priced or available, the Licensee's Director of Risk Management or designee is
authorized, but not required, to change the above insurance requirements to require additional types of insurance
coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the
Licensee, inflation, or any other item reasonably related to the Licensee's risk.
AVS2009V2 Page 13
15) Changes. Any change requiring additional types of insurance coverage or higher coverage limits must be
made by amendment to this Agreement. The Licensor agrees to execute any such amendment within thirty (30)
days of receipt.
16) Waiver. Any failure, actual or alleged, on the part of the Licensee to monitor or enforce compliance with
any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of
the Licensee.
AVS2009V2 Page 14