TELESTAFF LILCENSE AGREEMENT
Hevisioll l:S'LA ]-!-20()(J
TELESTAFF LICENSE AGREEMENT
This Agreement ("AGREEMENT") made by and between Principal Decision Systems International ("PDSI"), that has its principal place of
business at 625 The City Drive South, Suite 190, Orange, CA 92668, and CLEARWATER FIRE DEPARTMENT ("CUSTOMER"), that has its
principal place of business at 610 FRANKLIN STREET. CLEARWATER. FL 33756, shall be subject to the following terms and conditions:
Witnesseth:
Whereas, POSI has developed a telecommunications/computer technology which consists of certain hardware and software known as
TELESTAFF; and
Whereas, PDSI imposes certain license requirements on customers desirous of purchasing a license for TELESTAFF; and
Whereas, CUSTOMER wishes to contract with POSI to: (1) install TELESTAFF, (2) implement a license to use TELESTAFF, (3) train
CUSTOMER on its configuration and use, and (4) as applicable, implement all licenses necessary to use TELESTAFF; and
Whereas, PDSI is willing to contract with CUSTOMER to: (1) install TELESTAFF, (2) 9rant CUSTOMER a license to use TELESTAFF, (3)
train CUSTOMER on its configuration and use, and (4) as applicable, grant all licenses necessary 10 use TELESTAFF;
Now, therefore, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, POSI and CUSTOMER do hereby agree as
follows:
1. OwnershiD of TELESTAFF. The parties recognize and acknowledge that ownership of TELESTAFF shall remain with POSI.
(a) License. Excepl as provided herein at paragraph 2(b), POSI hereby grants to CUSTOMER a license to use TELESTAFF in
object code form. CUSTOMER shall abide by the terms and conditions of this license as stated herein.
(b) Comconents of License. The TELESTAFF License shall consist of the right to use that certain hardware and software that
collectively constitute TELESTAFF.
2. CODvriaht and ProDrietarv Protection.
(a) TELESTAFF is owned by POSI, and is protected by United States and international copyright laws and international trade
provisions. CUSTOMER must treat TELESTAFF like any other copyrighted material. This License and CUSTOMER's right to
use TELESTAFF shall temlinate automatically if CUSTOMER violates any part of this AGREEMENT. In the event of termination
for any reason other than non-renewal of Service and Support as described herein at Section 11, CUSTOMER must immediately
return TELESTAFF and accompanying documentation to POSI.
(b) CUSTOMER shall not
(i) Modify TELESTAFF and/or merge it into another program for CUSTOMER use except by express, written permission
from POSI. Any portion of TELESTAFF merged into another program following the express, written permission from
POSI will be subject to the temls' of thisAGREEMENT;
(ii) Reverse engineer, disassemble, decompile, or make any attempl to discover the source code or methodology of
TELESTAFF,
3. Execution Date. The Execution Date is defined as the date this AGREEMENT is signed by an authorized agent of CUSTOMER.
4. Term. This AGREEMENT is effective and binding upon PDSI and CUSTOMER upon the Execution Date as defined in paragraph 3
herein and shall remain in effect for a term of one (1) year, unless terminated as provided herein. On each anniversary date
thereafter, this AGREEMENT shall automatically renew for a term of one (1) year, unless otherwise terminated as provided herein.
5. Product ODtions. The following constitutes a complele list of all TELESTAFF components available in connection with the use of
TELESTAFF. See Appendix A for the definition of TELESTAFF Hardware Components and App-endix B for the definition of
Implementation Services. CUSTOMER does hereby agree to purchase from POSI the selected items in consideration for the
corresponding fees indicated as applicable:
Initial ComDonent
~ TELESTAFF Software License for 200 Users
TELESTAFF Hardware Components
TELESTAFF Implementation Services
TELESTAFF Database Upgrade (4 users) Qty: 1
Sales Tax aI7.75% on TELESTAFF Software License
Fee
$ 23,040
$ 5,000
$ 10,608
$ 500
$ 0,00
6. Pricino. PDSI agrees to the fees reflected above in paragraph 5 until November 3D, 2000.
625 The City Drive South, Suite 190 . Orange, California 92868
(800) 850.7374l Fax [7141703-2970
Re\'isio!/ TSrA 2-1-~O(){)
7. Payments. CUSTOMER agrees that all pricing and amounts due hereunder are based on United States currency and that all
amounts remaining unpaid for more than forty-five (45) days following the date of the invoice shall be subject to an interest charge at
the monthly rate of 1.0%. CUSTOMER does hereby agree to the payment terms for each component.
Initial Comoonent
B TElESTAFF Software license and applicable Sales Tax
TElESTAFF Hardware Components
TElESTAFF Implementation Services 80% ($8487.)
TElESTAFF Implementation remaining 20%($2121.)
~
On Execution Date
Net 30 Days from Execution Date
Net 60 Days from Execution Date
Due 60 days after configuration training, as defined in
section 11 a
8. Travel Exoenses. CUSTOMER agrees to pay for all their travel expenses related to TElESTAFF implementation and training
services as defined in Appendix B and according to the city's travel guidelines.
9. Additional Comoonents. If additional hardware and/or software are required for additional usage, other enhancements, or add~on
options, CUSTOMER agrees to pay for any and all hardware and/or software required for supporting additional TElESTAFF usage,
enhancements and/or other add-on options.
10. Imolementation Services. Implementation Services include configuration of TElESTAFF as defined in Appendix B. CUSTOMER
acknowledges that additional training and/or reconfiguration requested by CUSTOMER will be at an additional cost.
11. Service and SUDDort. Service and Support of TElESTAFF is provided at no additional charge during the first twelve-(12) months
following the Execution Date. See Appendix C for the definition of TElESTAFF Service and Support. CUSTOMER does hereby
acknowledge that on each anniversary of the Execution Date, CUSTOMER may renew service and support under the following
events:
Initial
B
Event
1 st Anniversary of the Execution Date
Subsequent anniversaries during term
Payment
$4,60B
5% maximum increase starting in 2004
Should CUSTOMER elect not to renew Service and Support on the anniversary of any Execution Date, CUSTOMER acknowledges
that any subsequent re-enrollment for Service and Support will only be accepted by POSI after CUSTOMER cures the previous lapse
in Service and Support by paying PDSI the Service and Support fee for the lapsed periods. In addition, CUSTOMER acknowledges
that PDSI may assess CUSTOMER a Service and Support re-instatement fee that will not exceed ten percent (10%) of the Service
and Support fee for the lapsed periods. PDSI reserves the right to discontinue Service and Support of previous releases of TeleStaff
as defined in Appendix C.
(a.) Acceptance is defined as TeleStaff will perform in accordance with TeleStaff users manuals.
12, Limited Warranty, PDSI WARRANTS TELESTAFF TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER
NORMAL USE AND TO OPERATE IN ACCORDANCE WITH TELESTAFF USER MANUALS FOR TELESTAFF PRODUCTS
PURCHASED BY THE CUSTOMER. HOWEVER, PDSI DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN
TELESTAFF WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF TELESTAFF WILL BE
UNINTERRUPTED OR ERROR FREE. THE LIMITED WARRANTY SET FORTH HEREIN IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
13, Limitation of Liability, PDSi'S ENTIRE LIABILITY AND CUSTOMER'S EXLUSIVE REMEDIES SHALL BE THE TIMELY
REPLACEMENT OF TELESTAFF UPON NOTIFICATION OF REPORTED DEFICIENCIES. IN NO EVENT WILL PDSI BE LIABLE
TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY CLAIMS OR DAMAGES, INCLUDING ANY LOST WAGES, LOST PROFITS,
LOST SAVINGS, ARISING OUT OF THE USE OR INABILITY TO USE TELESTAFF EVEN IF PDSI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES,
14. Termination. This AGREEMENT shall terminate upon the following events:
(a) In the case of an event of default (if CUSTOMER or PDSI fails to satisfy any of its respective covenants, duties or obligations
under this AGREEMENT), the non.defaulting party shall have the option to terminate this AGREEMENT. In the event of default,
the non.defaulting party shall give written notice to the defaulting party of the alleged default and give such party at least thirty
(30) days in which to cure the alleged default. If the defaulting party does not satisfactorily cure its default, the non-defaulting
party has the right to terminate upon thirty (30) days additional written notice stating the defaulting party's failure to cure the
default;
(b) By mutual consent between both parties;
(c) After the initial term of the AGREEMENT, upon ninety (90) days written notice to the other party.
15. Confidentialitv. CUSTOMER and POSI agree that confidentiality survives expiration or sooner termination of this AGREEMENT.
625 The City Drive SOuth, Suite 190 . Orange, California 92868
(BOO) B50-73742 fax (714) 703-2970
Revision TSL-'i 2-i-lOO()
16. Miscellaneous Provisions.
(a) Amendments. This AGREEMENT shall not be modified or amended except by another agreement in writing executed by the
parties hereto.
(b) Entire Aareement. This AGREEMENT, including Appendices A, Band C attached hereto, supersedes all prior discussions,
understanding and agreement between the parties with respect to the matters contained herein, and constitutes the entire
agreement between the parties with respect to the matters contemplated herein.
(c) Governina Law. This AGREEMENT shall be construed and enforced in accordance with the laws of the State of Florida.
(d) Notices. All notices, requests, demands and/or other communications required or permitted to be given or made by this
AGREEMENT shall be in writing and shall be delivered by commercial overnight delivery services which provides for receipt, or
mailed by certified mail, return receipt requested, postage prepaid and addressed to the parties at the addresses referenced
above. Any party may change its address for purposes of this AGREEMENT by notice in writing to the other party.
(e) No Waiver. No failure on the part of any party hereto to exercise, and no delay in exercising any right, power or remedy or partial
exercise of any right, power or remedy by any party will preclude any other or future exercise of any other right, power or remedy
or partial right, power or remedy. No express waiver of assent by any party hereto to any default in any term or condition of this
AGREEMENT shall constitute a waiver of or an assent to any succeeding default in the same or any other term or condition
hereof.
(f) Assianabilitv. This AGREEMENT shall inure to the benefit of and be binding upon the parties hereto, their respective heirs,
successors, assigns and personal representatives.
(g) Year 2000 Comeliant. TELESTAFF is year 2000 compliant.
17. Escrow Account
(a) Proaram: CUSTOMER will participate as a beneficiary in an Escrow program put in place by PDSI and administered by a third
party Escrow firm. Only under the conditions defined in Section 17.b, CUSTOMERS that are valid participants in the Escrow
program will receive a copy for internal use only and not for resale of the TeleStaff software program (source and object code),
and related documentation on deposit with the Escrow program administrator.
(b) Escrow Proaram Release Conditions: As used in this Agreement, "Release Conditions" shall mean the existence of anyone or
more of the following circumstances, uncorrected for more than thirty (30) days: Entry of an order for relief under Title 11 of the
United States Code; The making by PDSI of a general assignment for the benefit of creditors; The appointment of a general
receiver or trustee in bankruptcy of PDSl's business or property; or Action by PDSI under any state insolvency or similar law for
the purpose of its bankruptcy, reorganization, or liquidation.
IN WITNESS WHEREOF, the parties have signed this AGREEMENT on the day and year first above written.
PDSI
ft rti0uyv......., e~l(~
Ct~vvtL b'tUuf1v-t
CITY OF CLEARWATER (CUSTOMER)
See Signature Page Following
By:
By:
Title:
Title:
Date:
October 18, 2000
Date:
625 The City Drive South, Su~e 190 . Orange, California 92868
(800) 850-7374 3 Fax (7141703-2970
Countersigned:
J5.,j4-
Brian J, Aun
Mayor-Commissioner
Approved as to form:
C\tI~Q~"
,~aneC.Haym
Assistant City Attorney
~,
CITY OF CLEARWATER, FLORIDA
By:
~~~
WI iam B. Horne, II
Interim City Manager
Attest:
~JZ~~~6.wu
.i1fl/ Cynth I E Goudeau- . }
D~ City Clerk '~.
Rr.!visiolllSL<,J 2-J-~O()O
Appendix A - TeleStaff Hardware Components
For the fee specified in paragraph 5 of this AGREEMENT, PDSI will procure and configure appropriate hardware
and related software components (a) not supplied by CUSTOMER and (b) necessary for operation of the TeleStaff
server and will deliver the configured hardware system to CUSTOMER. Hardware necessary for the operation of
T eleStaff includes:
.
PC system capable of operating the TeleStaff software for CUSTOMER (1)
Telephony hardware to support TeleStaffs telephone features
SOL Database Server software (2)
Remote communication software for remote diagnostics
.
.
.
PDSI recommends PC systems from Dell Computer Corporation. As Dell frequently changes and introduces new
models and configurations. PDSI does not recommend a specific Dell model number, However, hardware
components for the TeleStaff Database server must include, at minimum, the following:
. Intel Pentium II 500 MHz processor or better
. 128 MB or greater RAM
. 10GB or larger Hard Drive
. 32x CD-ROM drive
. 17" or larger SVGA Monitor
. Tape Backup
. 56K V,90 Modem
. Multimedia with speakers and microphone
. Keyboard and mouse
. Microsoft Windows NT Workstation 4.0
. Next day on site service by manufacturer
. Sybase SOLAnywhere 4 - User database
. Dialogic 4 - Line Telephony system (3)
. Laplink Remote Communications software
IMPORTANT NOTES:
(1) Whether CUSTOMER purchases hardware through PDSI or supplies its own hardware (subject to the above
requirements), PDSl's hardware services include installation of Sybase database server software, Dialogic
Telephony hardware and Laplink remote communications software on the PC hardware, If CUSTOMER
supplies some or all of its own hardware components, CUSTOMER agrees to ship all hardware (at
CUSTOMER's cost) to PDSI for installation and testing, Should hardware supplied by CUSTOMER not meet
the above minimum requirements and/or not allow correct operation of TeleStaff, PDSI reserves the right to
request replacement hardware from CUSTOMER or purchase at CUSTOMER's expense necessary hardware
components, CUSTOMER may connect additional PCs to the TeleStaff system by installing the TeleStaff client
software (included) provided they are connected to the TeleStaff system by a network using the TCPIIP
protocol. TeleStaff is compatible with connected PCs running the Windows 95, 98 or NT operating system,
(2) The database software specified above will allow eight (8) concurrent connections to the TeleStaff database by
PCs on a network, Although the TeleStaff client software may be installed on any number of PCs, the
database software will allow only eight concurrent connections, As a user logs off TeleStaff, a connection is
released and made available to other users, Access to TeleStaff by telephone DOES NOT consume a
database server connection; onlv access by PCs consume database connections, The database server
software may be upgraded to enable additional concurrent connections,
(3) The Dialogic Telephony system specified above supports any combination of up to four (4) simultaneous
inbound and outbound connections by telephone, PDSI recommends that CUSTOMER connect four dedicated
telephone lines to the Dialogic Telephony hardware (installed in the PC), Further, CUSTOMER should provide
one telephone number to staff members which when dialed automatically attaches to the next available
telephone line, Additional Dialogic Telephony components may be purchased to provide additional telephone
connections,
(4) Hardware and related software supplied by CUSTOMER under this agreement:
625 The City Drive South, Suite 190 . Oronge, COlifornio 92868
(800) 850.737A' [ox (7141703-2970
R.evisiol/ TSL/l ::-/-l(){)()
Appendix B - TeleStaff Implementation Services Partnership Allreement
For the fee specified in paragraph 5 of this AGREEMENT, PDSI will train CUSTOMER staffing administrators on
the operation of TeleStaff and then assist the CUSTOMER in configuring the TeleStaff system with CUSTOMER's
data, The following steps comprise the TeleStaff Implementation services:
Hand-Off:
During this internal phase, the appropriate PDSI account representative transfers
information on the CUSTOMER to the PDSI Implementation Manager (1M), The 1M is a
project manager who is responsible for coordinating all activities necessary to implement
TeleStaff for the CUSTOMER. During this phase, PDSI will send to CUSTOMER an
Implementation Welcome Packet containing an overview of the Implementation Process
and information on how to prepare for TeleStaff,
Pre-Configuration:
During the Pre-Configuration phase, the 1M and CUSTOMER hold a conference call to
review the Welcome Packet, to establish CUSTOMER contacts required by PDSI during
the Implementation process, and to set up the Administrator Class. Also during this phase,
PDSI provides CUSTOMER with all necessary installation documentation and ships the
TeleStaff hardware to CUSTOMER.
Training:
The TeieStaff Administrator training course is a train-the-trainer format intended for the
CUSTOMER's administrators of the TeleStaff system (defined as knowledgeable of
CUSTOMER's staffing rules, PC literate and empowered to make staffing decisions),
TeleStaff training is a hands-on and workbook guided course at a PDSI training facility that
uses demonstration data in order to cover all necessary TeleStaff features, It also includes
instruction on how to enter CUSTOMER data into TeleStaff, The TeleStaff training course
will take up to two 8- hour days to complete, and is limited to two (2) staff members, Prior
to the CUSTOMER's 'live' date, the trained CUSTOMER administrators will perform end-
user training (including training on the use of the telephone) to CUSTOMER staff
members,
Data:
During the Data phase, CUSTOMER gathers data as specified in the Data Packet and
enters this data into TeleStaff,
Configuration:
During the Configuration phase, a PDSI Configuration Analyst and the CUSTOMER
administrator(s) configure TeleStaff for CUSTOMER using CUSTOMER's business rules,
The configuration process occurs at PDSI and is allocated 24 hours of time, At its option,
CUSTOMER may extend the configuration process for an additional fee.
For information on additional advanced training courses offered by PDSI, please contact
your TeleStaff Implementation Manager or your Account Executive.
625 The City Drive South, Suite 190 . Orange, California 92868
(800) 850.7371ll 'f!ox (714) 703-2970
ADDendix C - TeleStaff Service and SUDDort
All Software Errors reported by CUSTOMER shall be resolved as set forth below, Initial response by PDSI will be
based upon CUSTOMER's full description of the problem, Resolution response will be based upon the priority
assigned by PDSI as defined below, If CUSTOMER determines that a Software Error exists, CUSTOMER shall
notify PDSI by telephone, Telephone notification will be made to PDSl's support line at (800) 850-7374,
The main support line will be answered either by an attendant or automated attendant at all hours, During Normal
Business Hours, each trouble report will be assigned a Help Desk Log Number. The Log Number shall be used for
all subsequent inquiries relating to the original problem, During Normal Business Hours, the attendant will ring the
TeleStaff Support Department and the call will be handled according to the priority assigned by PDSI. in the case
of priority-one problems, as noted below, CUSTOMER may be able to speak directly to a TeleStaff Support
Representative if one is available. Outside of Normal Business Hours, support will be made available through a
pager system, The phone number is 800-850-7374, Support is available 24 hours per day, 7 days per week to
CUSTOMER's with LIVE status, All other problems will be handled on a callback basis, If requested or so
stipulated in the response time criteria below, a PDSI representative will return the call in a manner consistent with
the priority and order in which the call was received, CUSTOMER shall make every effort to respond to PDSi in a
timely fashion when requests are made to follow-up calls or additional documentation on the reported problem,
CUSTOMER's subscribing to optional dial-in support shall provide PDSI with a dedicated and separate standard
telephone data modem line where the Server resides, CUSTOMER shall additionally provide a voice telephone
line located in each such area to allow simuitaneous voice and data access,
Priorities for resolutions are assigned as follows:
Priority One
Hours of Availability:
24 hours/day, 7 days/week
Description:
A critical software error that severely impacts the ability of
CUSTOMER to perform ALL automated staffing functions (TeleStaff
is down), This level of priority is only available to CUSTOMER's
that are using TeleStaff in a production environment (LIVE accounts
ONLY),
Initial Response:
During Normal Business Hours, 7:00 AM through 5:00 PM (Pacific
Standard Time), Monday through Friday, excluding holidays
immediate response if a Support Representative is available.
Otherwise, PDSI will respond with a call back within one hour.
Outside of Normal Business Hours (including holidays), PDSI will
respond with a call back within one hour.
Resolution Response:
PDSI will work aggressively to provide CUSTOMER with a
workaround solution or to completely resolve the problem,
Notification:
It is the responsibility of CUSTOMER to alert PDSI of a possible
Priority-One issue, PDSI will update CUSTOMER of progress
frequently during problem resolution and notify CUSTOMER once
the workaround has been provided or the problem has been
resolved,
625 The City Drive South, Suite 190 . Orange, California 92868
(800) 850.737@:.[ax(714) 703-2970
Priority Two
Hours of Availability:
Description:
Initial Response:
Resolution Response:
Notification:
Priority Three
Hours of Availability:
Descri ption:
Initial Response:
Resolution Response:
Notification:
ADDendix C - TeleStaff Service and SUDDort (Continuedl
Normal Business Hours: Monday through Friday, 7:00 AM to 5:00
PM, Pacific Standard Time.
A non-critical software error, which prevents the user from
performing a data entry or system administration function, These
do not include cosmetic, documentation, or reporting problems.
These also do not include questions or inquiries regarding the
operation of the software or its installation and training.
During Normal Business Hours, PDSI will respond with a call back
within three hours. Outside of Normal Business Hours (including
holidays), PDSI will respond with a call back within twenty-four
hours,
PDSI will provide a workaround for CUSTOMER when possible
within an average of twenty-four (24) hours. PDSI will provide a
problem resolution in the form of an Upgrade or modification to the
Software in an upcoming Update,
PDSI will notify CUSTOMER when a workaround has been
provided or the problem has been resolved.
Normal Business Hours: Monday through Friday, 7:00 AM to 5:00
PM, Pacific Time,
All other software or documentation errors not described above,
These include but are not limited to:
. Reporting errors or calculation problems
. Documentation inaccuracies
. Cosmetic issues
. Misspellings
. Product Enhancement requests
. Questions or inquiries relating to TeleStaff Software
functionality, system administration or installation
PDSI will respond to these items if specifically requested to do so at
the time of the request. If a reply is requested, PDSI will respond
within an average of twenty-four (24) hours during Normal Business
Hours,
PDSI will correct documentation errors in upcoming releases of the
documentation.
If requested, PDSI will notify the local CUSTOMER when a
workaround has been provided or the problem has been resolved,
625 The City Drive South, Suite 190 . Orange, Califomia 92868
(BOO) B50.737{;.-~ (714) 703-2970
TeleStaff Enhancements
The TeleStaff version number consists of three numbers that define the type of product release, The format of the
TeleStaff version number is:
Version X.YZ where
. Changes in X represent a significant change in product functionality (Major Release) There will be no
charge for version 2,0. Any other major reiease 3,0 and above may be subject to a fee as mutually agreed
upon,
. Changes in Y represent an enhancement to the product that increases functionality within the existing
Major Release and is typical of an evolving product (Enhancement Release)
. Changes in Z represents a minor change to the program to accommodate a software error or cosmetic
change (Update Release)
Under the TeleStaff Service and Support plan, CUSTOMERs will receive Update Releases and Enhancement
Releases as they become available at no additional charge, Major Releases will be available for an additional fee.
625 The City Drive South, Su~e 190 . Orange, California 92868
{800) 850.737l!; 'ljJx (7141 703.2970
FlexSAFE Escrow Agreement Introduction
DSI's FlexSAFE agreement provides an adaptable and cost-effective escrow solution to
accommodate various licensee requests.
In addition to our Technology Protection features, DSI's FlexSAFE customers benefit from these
unique features:
. The beneficiary may file directly with DSI for release under bankruptcy
. A flexible agreement between the depositor and DSI
. Semi-annual account histories listing all deposit activity
Because we recognize that various situations require different levels of service and protection, DSI
offers our customers a wide array of options. Our specialized agreements include SAFE, FlexSAFE,
Preferred and Comprehensive Preferred. Master agreements are also available to simplifY and
standardize your escrow arrangements,
Please consult your DSI representative to select an agreement and develop an escrow program that
meets your individual needs,
@ 1983, 1996 DS1
F96v2
FLEXSAFE ESCROW AGREEMENT
Account Number 1604002-00001
This Agreement is effective , 20 between Data Securities
International, Inc. ("DSI") and PDSI ("Depositor"), who collectively may be referred to in this
Agreement as "the parties" and who are more fully identified in the Exhibit A.
A. Depositor and Depositor's client have entered or will enter into a license agreement,
development agreement, and/or other agreement regarding certain proprietary technology of
Depositor (referred to in this Agreement as "the license agreement").
B. Depositor desires to avoid disclosure of its proprietary technology except under certain
limited circumstances.
C. Depositor desires to establish an escrow with DSI to provide for the retention,
administration and controlled access of the proprietary technology materials of Depositor.
D. The parties desire this Agreement to be supplementary to the license agreement pursuant
to II United States [Bankruptcy] Code, Section 365(n).
ARTICLE I -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the parties,
Depositor shall deliver to DSI the proprietary information and other materials ("deposit
materials") to be deposited under this Agreement.
1.2 Identification of Tangible Media. Prior to the delivery of the deposit materials to DSI,
Depositor shall conspicuously label for identification each document, magnetic tape, disk, or
other tangible media upon which the deposit materials are written or stored, Additionally,
Depositor shall complete Exhibit B to this Agreement by listing each such tangible media by the
item label description, the type of media and the quantity. The Exhibit B must be signed by
Depositor and delivered to DSI with the deposit materials. Unless and until Depositor makes the
initial deposit with DSI, DSI shall have no obligation with respect to this Agreement, except the
obligation to notifY Depositor regarding the status of the deposit account as required in Section
3.2 below.
1.3 Deposit Inspection. When DSI receives the deposit materials and the Exhibit B, DSI will
conduct a deposit inspection by visually matching the labeling of the tangible media containing
the deposit materials to the item descriptions and quantity listed on the Exhibit B.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if DSI determines that
the labeling of the tangible media matches the item descriptions and quantity on Exhibit B, DSI
will date and sign the Exhibit B and mail a copy thereof to Depositor. If DSI determines that
Page 1 F96v2
the labeling does not match the item descriptions or quantity on the Exhibit B, DSI will (a) note
the discrepancies in writing on the Exhibit B; (b) date and sign the Exhibit B with the exceptions
noted; and (c) provide a copy of the Exhibit B to Depositor. DSI's acceptance of the deposit
occurs upon the signing of the Exhibit B by DSL
1.5 Depositor's Representations. Depositor represents as follows:
a. Depositor lawfully possesses all of the deposit materials deposited with DSI;
b. With respect to all of the deposit materials, Depositor has the right and authority
to grant to DSI the rights as provided in this Agreement; and
c. The deposit materials are not subject to any lien or other encumbrance,
1.6 Deposit Updates. Updates to the deposit materials may be added to the existing deposit.
All deposit updates shall be listed on a new Exhibit B and the new Exhibit B shall be signed by
Depositor. ' Each Exhibit B will be held and maintained separately within the escrow account.
An independent record will be created which will document the activity for each Exhibit B. The
processing of all deposit updates shall be in accordance with Sections 1.2 through 1.5 above. All
references in this Agreement to the deposit materials shall include the initial deposit materials
and any updates.
1.7 Removal of Deposit Materials. The deposit materials may be removed and/or exchanged
only on written instructions signed by Depositor or as otherwise provided in this Agreement.
ARTICLE 2 -- FLEXSAFE ENROLLMENTS
2.1 FlexSAFE Enrollments. After DSI's acceptance of the deposit materials, Depositor may
enroll one or more beneficiaries to this technology escrow account. Depositor will execute and
submit to DSI a FlexSAFE Beneficiary Enrollment document, Exhibit T, listing each beneficiary
to be enrolled as a FlexSAFE Beneficiary under the Agreement. Upon DSI's acceptance of
Exhibit T, DSI will issue an enrollment letter and a copy of this Agreement to the FlexSAFE
Beneficiary.
2,2 Other Third Parties. DSI shall have no obligation to any other third party except a
FlexSAFE Beneficiary accepted by DSL DSI and Depositor shall have the right to modify or
cancel the Agreement without the consent of any third party.
ARTICLE 3 -- CONFIDENTIALITY AND RECORD KEEPING
3.1 Confidentiality. DSI shall maintain the deposit materials in a secure, environmentally
safe, locked facility which is accessible only to authorized representatives of DSI. DSI shall
have the obligation to reasonably protect the confidentiality of the deposit materials. Except
as provided in this Agreement, DSI shall not disclose the content of this Agreement to any
third party and shall not disclose, transfer, make available, or use the deposit materials, If DSI
Page 2 F96v2
receives a subpoena or other order of a court or other judicial tribunal pertammg to the
disclosure or release ofthe deposit materials, DSI will immediately notify Depositor. It shall be
the responsibility of Depositor to challenge any such order; provided, however, that DSI does not
waive its rights to present its position with respect to any such order. DSI will not be required to
disobey any court or other judicial tribunal order, (See Section 8.5 below for notices of
requested orders,)
3.2 Status Reports. DSI will issue to Depositor and FlexSAFE Beneficiary a report profiling
the account history at least semi-annually. DSI may provide copies of the account history upon
request. Depositor will notify DSI if the account history is not to be provided to FlexSAFE
Beneficiary.
3.3 Audit Rights, During the term of this Agreement, Depositor shall have the right to
inspect the written records of DSI pertaining to this Agreement. Any inspection shall be held
during normal business hours and following reasonable prior notice.
ARTICLE 4 -- GRANT OF RIGHTS TO DSI
4.1 Title to Media. Depositor hereby transfers to DSI the title to the media upon which the
proprietary information and materials are written or stored. However, this transfer does not
include the ownership of the proprietary information and materials contained on the media such
as any copyright, trade secret, patent or other intellectual property rights.
4,2 Right to Make Copies. DSI shall have the right to make copies of the deposit materials
as reasonably necessary to perform this Agreement. DSI shall copy all copyright, nondisclosure,
and other proprietary notices and titles contained on the deposit materials onto any copies made
by DS!. With all deposit materials submitted to DSI, Depositor shall provide any and all
instructions as may be necessary to duplicate the deposit materials including but not limited to
the hardware and/or software needed.
4.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the right to transfer the
deposit materials to FlexSAFE Beneficiary upon any release of the deposit materials for use by
FlexSAFE Beneficiary in accordance with Section 5.4. Except upon such a release or as
otherwise provided in this Agreement, DSI shall not transfer the deposit materials.
ARTICLE 5 -- RELEASE OF DEPOSIT
5.1 Release of Deposit Upon Depositor's Instruction, Upon receipt by DSI of written
instruction directly from Depositor, Depositor's trustee in bankruptcy, or a court of competent
jurisdiction, DSI will release a copy of the deposit materials to the FlexSAFE Beneficiary
identified in the instruction. However, DSI is entitled to receive any fees due DSI before making
the release. This Agreement will terminate upon the release of the deposit materials held by
DS!.
5.2 Filing for Release of Deposit bv FlexSAFE Beneficiary,
a.
Upon notice to DSI by FlexSAFE Beneficiary of the occurrence of a release
condition as defmed in Section 5.3, DSI shall provide Depositor with a copy of
F96v2
Page 3
FlexSAFE Beneficiary's notice by certified mail, return receipt requested, or by
commercial express mail. If Depositor provides DSI with contrary instructions
within sixty (60) days. DSI shall not deliver a copy of the deposit materials to
FlexSAFE Beneficiary.
"Contrary Instructions" shall mean the written representation by Depositor that a
Release Condition has not occurred or has been cured. Upon receipt of Contrary
Instructions, DSI shall send a copy of the Contrary Instructions to FlexSAFE
Beneficiary by certified mail, return receipt requested, or by commercial express
mail. Additionally, DSI shall notifY both Depositor and FlexSAFE Beneficiary
that there is a dispute to be resolved pursuant to Section 8.3. Subject to Section
6.3, DSI will continue to store the deposit materials without release pending (a)
instructions from Depositor; or (b) order of a court.
b, If no contrary instructions are given to DSI, Depositor agrees that DSI shall
deliver a copy of the deposit materials to the FlexSAFE Beneficiary who provides
DSI with all ofthe following:
1. Copy of a current, valid license agreement between Depositor and FlexSAFE
Beneficiary;
2. Written demand that a copy of the deposit materials be released and delivered
to FlexSAFE Beneficiary;
3. Written notice that the copy of the deposit materials being released to
FlexSAFE Beneficiary be used only as permitted under the license
agreement;
4. Specific delivery instructions along with any fees due DSI; and
5. Written notice that the release of the copy of the deposit materials is pursuant
to II United States Code Section 365(n).
5.3 Release Conditions. As used in this Agreement, "Release Conditions" shall mean the
existence of anyone or more of the following circumstances, uncorrected for more than thirty
(30) days:
a. Entry of an order for relief under Title 11 of the United States Code;
b. The making by Depositor of a general assignment for the benefit of creditors;
c. The appointment of a general receiver or trustee in bankruptcy of Depositor's
business or property; or
d. Action by Depositor under any state insolvency or similar law for the purpose of
its bankruptcy, reorganization, or liquidation.
5.4 Right to Use Following Release. Unless otherwise provided in the license agreement,
upon release of the deposit materials in accordance with this Article 5, FlexSAFE Beneficiary
shall have the right to use the deposit materials for the sole purpose of continuing the benefits
Page 4 F96v2
afforded to FlexSAFE Beneficiary by the license agreement. FlexSAFE Beneficiary shall be
obligated to maintain the confidentiality ofthe released deposit materials.
ARTICLE 6 -- TERM AND TERMINATION
6.1 Term of Agreement. The initial term of this Agreement is for a period of one year.
Thereafter, this Agreement shall automatically renew from year-to-year unless (a) Depositor
instructs DSI in writing that the Agreement is terminated; or (b) the Agreement is terminated by
DSI for nonpayment in accordance with Section 6.3, If the deposit materials are subject to
another escrow agreement with DSI, DSI reserves the right, after the initial one year term, to
adjust the anniversary date of this Agreement to match the then prevailing anniversary date of
such other escrow arrangements.
6.2 Term of FlexSAFE Enrollment. Upon receipt by DSI of Depositor's executed Exhibit T,
the FlexSAFE Beneficiary will be enrolled for an initial term of one (1) year, unless this
Agreement terminates earlier, causing the FlexSAFE Beneficiary enrollment to terminate.
Subsequent enrollment terms may be adjusted to the anniversary date of this Agreement and
shall automatically renew from year-to-year unless (a) Depositor instructs DSI in writing to
terminate the FlexSAFE Beneficiary enrollment; or (b) the enrollment is terminated by DSI for
nonpayment in accordance with Section 6.3.
6.3 Termination for Nonpavment. In the event of the nonpayment of fees owed to DSI, DSI
shall provide written notice of delinquency to all parties to this Agreement. Unless Depositor
has instructed DSI to terminate FlexSAFE Beneficiary pursuant to subsection 6.2(a), Depositor
or FlexSAFE Beneficiary shall have the right to make the payment to DSI to cure the default. If
the past due payment is not received in full by DSI within one month of the date of such notice,
then DSI shall have the right to terminate this Agreement at any time thereafter by sending
written notice of termination to all parties. DSI shall have no obligation to take any action under
this Agreement so long as any payment due to DSI remains unpaid.
6.4 Disposition of Deposit Materials Upon Termination, Upon termination of this
Agreement by instruction of Depositor, DSI shall destroy, return, or otherwise deliver the deposit
materials in accordance with such instructions. Upon termination for nonpayment, DSI may, at
its sole discretion, destroy the deposit materials or return them to Depositor. DSI shall have no
obligation to return or destroy the deposit materials ifthe deposit materials are subject to another
escrow agreement with DSI.
6.5 Survival of Terms Following Termination. Upon termination of this Agreement, the
following provisions of this Agreement shall survive:
a.
Depositor's Representations (Section 1.5);
b.
The obligations of confidentiality with respect to the deposit materials;
c.
The rights granted in the sections entitled Right to Transfer Upon Release
(Section 4.3) and Right to Use Following Release (Section 5.4), if a release of the
deposit materials has occurred prior to termination;
d,
The obligation to pay DSI any fees and expenses due; ,
Page 5
F96v2
e. The provisions of Article 8; and
f. Any provisions in this Agreement which specifically state they survIVe the
termination or expiration of this Agreement.
ARTICLE 7 -- DSI'S FEES
7.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses applicable to the
services provided. DSI shall notify the party responsible for payment of DSI's fees at least 90
days prior to any increase in fees, For any service not listed on DSI's standard fee schedule, DSI
will provide a quote prior to rendering the service, if requested.
7.2 Pavment Terms. DSI shall not be required to perform any service unless the payment for
such service and any outstanding balances owed to DSI are paid in full. All other fees are due
upon receipt of invoice. If invoiced fees are not paid, DSI may terminate this Agreement in
accordance with Section 6.3. Late fees on past due amounts shall accrue at the rate of one and
one-half percent per month (18% per annum) from the date of the invoice.
ARTICLE 8 -- LIABILITY AND DISPUTES
8.1 Right to Relv on Instructions. DSI may act in reliance upon any instruction, instrument,
or signature reasonably believed by DSI to be genuine. DSI may assume that any employee of
Depositor or FlexSAFE Beneficiary who gives any written notice, request, or instruction has the
authority to do so. DSI shall not be responsible for failure to act as a result of causes beyond the
reasonable control ofDS!.
8.2 Indemnification. DSI shall be responsible to perform its obligations under this
Agreement and to act in a reasonable and prudent manner with regard to this escrow
arrangement. Provided DSI has acted in the manner stated in the preceding sentence, Depositor
agrees to indemnify, defend and hold harmless DSI from any and all claims, actions, damages,
arbitration fees and expenses, costs, attorney's fees and other liabilities incurred by DSI relating
in any way to this escrow arrangement.
8.3 Dispute Resolution. Any dispute relating to or arising from this Agreement shall be
resolved by arbitration under the Commercial Rules of the American Arbitration Association.
Unless otherwise agreed by Depositor and FlexSAFE Beneficiary, arbitration will take place in
San Diego, California, U.S.A. Any court having jurisdiction over the matter may enter judgment
on the award of the arbitrator(s). Service of a petition to confirm the arbitration award may be
made by First Class mail or by commercial express mail, to the attorney for the party or, if
unrepresented, to the party at the last known business address,
8.4 Controlling Law. This Agreement is to be governed and construed in accordance with
the laws ofthe State of California, without regard to its conflict oflaw provisions.
8.5 Notice of Requested Order. If any party intends to obtain an order from the arbitrator or
any court of competent jurisdiction which may direct DSI to take, or refrain from taking any
action, that party shall:
Page 6 F96v2
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation, DSI be paid
in full for any past due fees and be paid for the reasonable value of the services
to be rendered pursuant to such order; and
c. Ensure that DSI not be required to deliver the original (as opposed to a copy) of
the deposit materials if DSI may need to retain the original in its possession to
fulfill any of its other duties.
ARTICLE 9 -- GENERAL PROVISIONS
9.1 Entire Agreement. This Agreement, which includes the Exhibits described herein,
embodies the entire understanding between the parties with respect to its subject matter and
supersedes all previous communications, representations or understandings, either oral or
written. No amendment or modification of this Agreement shall be valid or binding unless
signed by both parties hereto, except the Exhibit A need not be signed by either party.
9.2 Notices. All notices, invoices, payments, deposits and other documents and
communications shall be given to the parties at the addresses specified in the attached Exhibit A.
It shall be the responsibility of the parties to notify each other as provided in this Section in the
event of a change of address. The parties shall have the right to rely on the last known address of
the other parties, Unless otherwise provided in this Agreement, all documents and
communications may be delivered by First Class mail.
9.3 Severabilitv. In the event any provision of this Agreement is found to be invalid,
voidable or unenforceable, the parties agree that unless it materially affects the entire intent and
purpose of this Agreement, such invalidity, voidability or unenforceability shall affect neither the
validity of this Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the
intent and purpose of the original provision.
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9.4 Successors. This Agreement shall be binding upon and shall inure to the benefit of the
successors and assigns of the parties. However, DSI shall have no obligation in performing this
Agreement to recognize any successor or assign of Depositor unless DSI receives clear,
authoritative and conclusive written evidence of the change of parties.
PDSI
Depositor
Data Securities International, Inc.
By: PDSI
By:
Name: Greg Ekstrom
Name:
Title: President
Title:
Date: November 1,2000
Date:
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F96v2
EXHIBIT A
DESIGNATED CONTACT
Account Number 1604002-00001
Notices, deposit material returns and
communications to Depositor should
be addressed to:
Depositor
Company Name: PDSI
Address:_625 The City Drive South
Suite 190
Orange, CA 92868
Designated Contact: Greg Ekstrom
Telephone:714-703-2150
Facsimile:714-702-2970
City of Clearwater Fire Department
610 Franklin Street
Clearwater. FL 33756
Invoices should be addressed to:
PDSI
625 The City Drive South, Suite 190
Orange, CA 92868
Requests from Depositor to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, deposit materials and notices to
DSI should be addressed to:
Invoice inquiries and fee remittances
to DSI should be addressed to:
DSI
Contract Administration
Suite 200
9555 Chesapeake Drive
San Diego, CA 92123
DSI
Accounts Receivable
Suite 1450
425 California Street
San Francisco, CA 94104
Telephone: (858) 499-1600
Facsimile: (858) 694-1919
(415) 398-7900
(415) 398-7914
Date:
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F96v2
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name PDSI
Account Number 1604002-0000 I
PRODUCT DESCRIPTION:
Product Name TeleStaff Version 1.34
Operating System Windows NT
Hardware Platform PC
DEPOSIT COPYING INFORMATION:
Hardware required:
Software required:
DEPOSIT MATERIAL DESCRIPTION:
Qty
Media Type & Size
Label Description of Each Separate Item
(excluding documentation)
Disk 3.5" or
I
DATtape_mm
CD-ROM
Data cartridge tape _
TK 70 or _ tape
Magnetic tape _
Documentation
Other
I certify for Depositor that th described
deposit materials have ansmitted to DSI:
DSI has inspected and accepted the above
materials (any exceptions are noted above):
Signature
Print Name reg Ekstrom
Date November 1,2000
'SIgnature
Print Name
Date Accepted
Exhibit B#
Send materials to: DSI, 9555 Chesapeake Dr. #200, San Diego, CA 92123
Page 10
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EXHmIT T
FLEXSAFE BENEFICIARY ENROLLMENT
Account Number 1604002-00001
Pursuant to the FlexSAFE Escrow Agreement ("Agreement"), Depositor hereby enrolls the
following as a FlexSAFE Beneficiary:
Notices and communications to FlexSAFE
Beneficiary should be addressed to:
Invoices to FlexSAFE Beneficiary should be
addressed to:
Company Name: Clearwater Fire Department_
Address:
610 Franklin Street
Clearwater. FL 33756
Designated Contact: Chief Rowland Herald_
Telephone:727 -562-4334
Facsimile: ,727-421-7990
INITIAL ENROLLEMENT FEE INVOICES
TO: PDSI 625 The City Drive, Suite 190
Orange, CA 92868
Annual maintenance invoices should be sent to:
PDSI
625 The City Drive South, Suite 190
Orange, CA 92868
-~-
Data Securities International, Inc.
Dep or
By: By:
Name: e,e.S E:k bkd~ Name:
Title: pre (..I'cle" I-- Title:
Date: II /1 /z.oOr.J Date:
Page 11 F96v2