HomeMy WebLinkAboutCC Resolution 11437 (eConnect Software; Class Software Solutions)RESOLUTION NO. 11437
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING CITY MANAGER TO EXECUTE AN AGREEMENT WITH
CLASS SOFTWARE SOLUTIONS LTD. FOR PURCHASE, SUPPORT AND
MAINTENANCE OF eCONNECT SOFTWARE IN THE AMOUNT OF $31,875
(TERM FOR TWO YEARS COMMENCING ON DECEMBER 31, 2003 AND ENDING ON DECEMBER 31, 2005)
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
WHEREAS, The Community Services Department purchased Class Software
and Services in 1999 that enabled the department to automate facility rentals
and program registration; and
WHEREAS, The purchase of eConnect component of Class Software will equip
the Department to accept on-line registration for classes, programs and events
along with facility rentals; and
WHEREAS, On-line service will increase volume of registrations and
reservations thereby increasing revenues; and
WHEREAS, This is a sole source item because it is an additional component of
the Department's existing software package and the only product that can
interface with the current system;
NOW, THEREFORE, BE IT RESOLVED That City Council authorizes the City
Manager to execute an agreement with Class software solutions LTD. for
Purchase, Support and Maintenance of eConnect Software.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of the Council of said City held on Monday, the 17th day of November
2003, by the following vote;to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: Prone
ABSENT: COUNCILMEMBERS: None
JEMNE M. LEONCINI, CITY CLERK
�1RIG9NA�. ��
AGREEMENT FOR PURCHASE, SUPPORT AND MAINTENANCE OF CLASS
SOFTWARE SOLUTIONS LTD. eCONNECT SOFTWARE IN THE AMOUNT OF
$31,875
This Agreement is made and entered into this 17th day of November, 2003, by and between
the CITY OF SAN RAFAEL (hereinafter "CITY'), and Class Software Solutions Ltd (hereinafter
"CONTRACTOR").
RECITALS
WHEREAS, The Community Services Department purchased Class Software and Services
in 1999 that enabled the department to automate facility rentals and program registration; and
WHEREAS, The purchase of eConnect component of Class Software will equip the
department to accept on-line registration for classes, programs and events along with facility
rentals; and
WHEREAS, On-line service will increase volume of registrations and reservations thereby
increasing revenues;
NOW, THEREFORE, the parties hereby agree as follows:
A. CITY. The City Manager shall be the representative of the CITY for all purposes
under this Agreement. Director of Community Services is hereby designated the PROJECT
MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the
progress and execution of this Agreement.
B. CONTRACTOR. CONTRACTOR shall assign a single PROJECT DIRECTOR
to have overall responsibility for the progress and execution of this Agreement for
CONTRACTOR. Beth Hodges is hereby designated as the PROJECT DIRECTOR for
CONTRACTOR. Should circumstances or conditions subsequent to the execution of this
Agreement require a substitute PROJECT DIRECTOR for any reason, the PROJECT DIRECTOR
designee shall be subject to the prior written approval of the PROJECT MANAGER
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CONTRACTOR shall perform the duties and/or provide services as described in Exhibit
A, General Software Services Agreement, Exhibit B, Software License Agreement and Exhibit C,
Software Support and Maintenance Agreement, Exhibit D, Class Pricing/Estimate Form attached
and incorporated herein.
3. IN TTTF S nF CTTY.
CITY shall pay the compensation as described in Exhibit D, Class Pricing/Estimate Form
attached and incorporated herein.
a% as
4. (-()N(PRNCATTD_N.
For the full performance of the services described herein by CONTRACTOR, CITY shall
pay CONTRACTOR as follows:
Class Software Modules
Add on Modules
Payment Processing Server (Credit, Debit, & EFT) Total License Cost $5,000
Maintenance Fee $1,250
eConnect
Internet Logins (25 concurrent users per license)
Total License Cost
$ 5,000
Maintenance Fee
$ 1,250
Internet Program Query & Registration
Total License Cost
$ 5,000
Maintenance Fee
$ 1,250
MAP
Total License Cost
$ 2,500
Maintenance Fee
$ 625
Total License Cost
$17,500
Annual Maintenance Cost
4,375
Consulting and Training
Pre -Project Planning and Documentation (1 day)
Extended Price
$ 1,000
Implementation and Training Days (6 days)
Extended Price
$ 6,000
Prof. Business Svcs. Fit Analysis (2 days)
Extended Price
$ 3,000
Total Services Cost $10,000
Summary
Total Software Cost in a total not to exceed $17,500
Total Maintenance Cost in a total not to exceed $ 4,375
Total Services Cost in a total not to exceed $10,000
Payment will be made monthly upon receipt by PROJECT MANAGER of itemized
invoices submitted by CONTRACTOR.
The term of this Agreement shall be for two years commencing on December 31, 2003 and
ending on December 31, 2005. Upon mutual agreement of the parties, and subject to the approval
of the City Manager the term of this Agreement shall be extended for an additional period of one
year.
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A. Discretionary. Either party may terminate this Agreement without cause upon
thirty (30) days written notice mailed or personally delivered to the other party.
B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days
written notice mailed or personally delivered to the other party, and the notified party's failure to
cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such
notice, within such fifteen (15) day time period.
C. Effect of Termination. Upon receipt of notice of termination, neither party shall
incur additional obligations under any provision of this Agreement without the prior written consent
of the other.
D. Return of Documents. Upon termination, any and all CITY documents or
materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and
materials prepared for or relating to the performance of its duties under this Agreement, shall be
delivered to CITY as soon as possible, but not later than thirty
(30) days after termination.
The written documents and materials prepared by the CONTRACTOR in connection with
the perfonnance of its duties under this Agreement, shall be the sole property of CITY. CITY may
use said property for any purpose, including projects not contemplated by this Agreement.
1► ► : ►\�1�7:\i1�71IM
Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for
inspection and audit, all documents and materials maintained by CONTRACTOR in connection
with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate
with CITY or its agent in any such audit or inspection.
' N 0 0 0 Wy M To►•il
The parties agree that they shall not assign or transfer any interest in this Agreement nor the
performance of any of their respective obligations hereunder, without the prior written consent of
the other party, and any attempt to so assign this Agreement or any rights, duties or obligations
arising hereunder shall be void and of no effect.
A. During the term of this Agreement, CONTRACTOR shall maintain, at no expense
to CITY, the following insurance policies:
1. A comprehensive general liability insurance policy in the minimum amount
of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or
property damage;
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3. If any licensed professional performs any of the services required to be
performed under this Agreement, a professional liability insurance policy in the minimum amount
of one million ($1,000,000) dollars to cover any claims arising out of the CONTRACTOR's
performance of services under this Agreement.
B. The insurance coverage required of the CONTRACTOR by section 11. A., shall
also meet the following requirements:
1. The insurance shall be primary with respect to any insurance or coverage
maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution;
2. Except for professional liability insurance, the insurance policies shall be
endorsed for contractual liability and personal injury;
3. Except for professional liability insurance, the insurance policies shall be
specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as
additionally named insureds under the policies.
4. CONTRACTOR shall provide to City's Risk Manager, (a) Certificates of
Insurance evidencing the insurance coverage required herein, and (b) specific endorsements naming
CITY, its officers, agents, employees, and volunteers, as additional named insureds under the
policies.
5. The insurance policies shall provide that the insurance carrier shall not
cancel, terininate or otherwise modify the terms and conditions of said insurance policies except
upon thirty (30) days written notice to City's Risk Manager.
6. If the insurance is written on a Claims Made Form, then, following
termination of this Agreement, said insurance coverage shall survive for a period of not less than
five years;
7. The insurance policies shall provide for a retroactive date of placement
coinciding with the effective date of this Agreement;
8. The insurance shall be approved as to form and sufficiency by PROJECT
MANAGER and the City Attorney.
C. If it employs any person, CONTRACTOR shall maintain worker's compensation
and employer's liability insurance, as required by the State Labor Code and other applicable laws
and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability
for injuries to CONTRACTOR's officers and employees.
D. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies
must be declared to and approved by the City's Risk Manager and the City Attorney. At CITY's
option, the deductibles or self-insured retentions with respect to CITY shall be reduced or
eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment
of losses and related investigations, claims administration, attorney's fees and defense expenses.
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1011W It &H►11 • ►
CONTRACTOR shall indemnify, release, defend and hold harmless CITY, its officers,
agents, employees, and volunteers, against any claim, demand, suit, judgment, loss, liability or
expense of any kind, including attorney's fees and administrative costs, arising out of or resulting in
any way, in whole or in part, from any acts or omissions, intentional or negligent, of
CONTRACTOR or CONTRACTOR'S officers, agents and employees in the performance of
their duties and obligations under this Agreement."
► •I ' lull► :11 61011
CONTRACTOR shall not discriminate, in any way, against any person on the basis of age,
sex, race, color, religion, ancestry, national origin or disability in connection with or related to the
perfornlance of its duties and obligations under this Agreement.
I • ul' • ► •\/IAA_\�l.`�
CONTRACTOR shall observe and comply with all applicable federal, state and local laws,
ordinances, codes and regulations, in the performance of its duties and obligations under this
Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with
these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify
and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities,
penalties, fines and all other consequences from any noncompliance or violation of any laws,
ordinances, codes or regulations.
CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in
any third party, any benefit or right owed by one party, under the terms and conditions of this
Agreement, to the other party.
15. NOTICES.
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and given by personal
delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the
parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or
if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as
follows:
TO CITY: Carlene McCart, Community Services Director
Project Manager
City of San Rafael
1400 Fifth Ave. (P.O. Box 151560)
San Rafael, CA 944915-1560
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TO CONTRACTOR: Beth Hodges, Account Manager
(Project Director)
Class Software Solutions Ltd.
Suite 300, 6400 Roberts Street
Burnaby, BC V5G 4C9
1011 016 ► • ► 0 1 W-11" •
For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers,
agents and employees shall act in the capacity of an Independent Contractor, and not as employees
of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of
CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not
that of an employee of CITY.
► It e u ►It a ►Y
A. The terns and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire Agreement of the parties with
respect to the subject matter of this Agreement.
B. This written Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between the CONTRACTOR and the CITY.
C. No other agreement, promise or statement, written or oral, relating to the subject
matter of this Agreement, shall be valid or binding, except by way of a written amendment to this
Agreement.
D. The terms and conditions of this Agreement shall not be altered or modified except
by a written amendment to this Agreement signed by the CONTRACTOR and the CITY.
E. If any conflicts arise between the terms and conditions of this Agreement, and the
terms and conditions of the attached exhibits or the documents expressly incorporated by reference,
the terns and conditions of this Agreement shall control.
18. SET -(AFF AGAWRT T)F,=.
CONTRACTOR agrees that CITY may deduct from any payment due to
CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under
any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments,
unpaid checks or other amounts.
The waiver by either party of any breach or violation of any term, covenant or condition of
this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any
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other tei7n, covenant, condition, ordinance, law or regulation, or of any subsequent breach or
violation of the same or other term, covenant, condition, ordinance, law or regulation. The
subsequent acceptance by either party of any fee, performance, or other consideration which may
become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding
breach or violation by the other party of any term, condition, covenant of this Agreement or any
applicable law, ordinance or regulation.
20. COSTS AND ATT0RNRY'R FF.F.4.
The prevailing party in any action brought to enforce the terms and conditions of this
Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs
(including claims administration) and attorney's fees expended in connection with such action.
CONTIZACTOR is exempt for the business license requirement of the San Rafael
Municipal Code because Contractor is providing product and services to CITY from outside the
United States. CONTRACTOR shall pay any and all state and federal taxes and any other
applicable taxes. CONTRACTOR's taxpayer identification number is 98-0160-721, and
CONTRACTOR certifies under penalty of perjury that said taxpayer identification number is
correct.
The laws of the State of California shall govern this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month
and year first above written.
CITY OF SAN RAFAEL CONTRACTOR
ROD GOULD, City Manager
ATTEST:
JYARNE M. LEON M, City Clerk
APPI�iDO'EORM:
f.
GARY T. R 66HIANTXZttorney
I
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By:
Name:
Title:
v� Class
Software License Agreement
Exhibit A
300-6400 Roberts Street I Burnaby BC I V5G 4C9
This document (the "Agreement"), consisting of:
a. this cover page ("Cover Page"),
b. the attached table of licensed Software ("Software Table"); and
c. the attached Terms and Conditions of CSS Software License Agreement ("Terms and Conditions")
constitutes the entire agreement between the undersigned customer ("Customer") and Class Software Solutions Ltd
("CSS") whereby, and CSS and the Customer hereby agree that, CSS grants to the Customer the rights and licenses
herein described regarding the installation and use of certain computer software for the prices described in the
Software Table, as modified from time to time according to this Agreement. Any apparent contradiction among this
Cover Page, the Software Table and/or the Terms and Conditions is to be resolved by giving priority to the Terms and
Conditions, followed by the Cover Page, and finally the Software Table.
Payment Terms for Software Licenses
A. All prices are in the currency of the country of installation.
B. Sales and any other applicable tax(es), duties or any other charges in the nature of taxes and duties are not
included unless specifically identified as line items.
C. Prices shown include freight F.O.B. the Customer's offices.
D. No services (i.e. site preparation such as cabling and provision of electricity) are included in costs described
herein.
E. The following installment payment schedule is applicable; figures are percentages of total fees and taxes and
other charges re: all Software licensed under this Agreement:
Upon delivery of the Software 25%
i
30 days after Initial Installation of any Module 65%
90 days after Initial Installation of any Module 10%
F. CSS will invoice the Customer for the amounts contemplated in paragraph E. All invoices are payable within 30
days of receipt thereof, and such receipt is deemed to occur as though such invoices were notices sent pursuant
to section 9.3 of the Terms and Conditions. Overdue invoices will bear interest at 1 % per month, 12.56% per
annum.
The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement.
Full Legal Customer Name Authorized Signatory Date
Address
Facsimile
Class Software Solutions Ltd.
Authorized Signatory Date
::v:w.dasslnfc.com i + 1 a100 6.61 119,
i
p� ClcISS
Software Table: Licensed Class Software Modules
(Module I
Module Unit
No. of Copies of Total Module
Price
Module Licensed Cost
(Operating Modules (Associated Maintenance Modules in parentheses)
Ii. Program Registration (Program Maintenance)
$1,750
�ii. FlexReq (automatically licensed if i is licensed)
•
iii. Membership & Pass Management (Membership Pass Maintenance)
$1,750
�iv. Facility Booking (Facility Maintenance)
$1,750
Iv. QuickRez (automatically licensed if iv is licensed)
�Vi. Point of Sale & Site-based Inventory_ (POS Maintenance)
$3,500
Vii. Sport Scheduling
$1,750
viii. Browse Facility Bookings
$500
�ix. IVR – Registration, QuickRez and Voice Info (min. 4 lines) (IVR Maintenance)
$1,750
(System Features
Server Based Licensing
Ix. Randomization
$5,000
1xi. Affinity
Ixii. External interfaces – Banner
$5,000
Ixiii. External Interfaces – Financial (Accounts Payable and General Ledger)
$1,750
�xiv. External Interfaces – Desktop Publishing
$1,750
�xv. Multilingual Capability
$500
xvi. IVR - Registration & Voice Server
$5,000
xvii. IVR – QuickRez Booking & Voice Server
$5,000
1xviii. Payment Processing Server (Credit and, Debit and Electronic Funds Transfer)
$5,000
1
I $5,000
User -Based Licensing
1xix. Credit Card and Debit Card Payment Processing
IeConnect
Ilntemet Access (Login -Based)
Ixx. Internet Program Registration (automatically licensed if both xxii and xxiii are licensed)
�xxi. Internet QuickRez Bookings 1
$5,000
�xxii. Internet Login (25 Concurrent Users permitted per license)I
$5,000
1 $5,000
Internet Enabling (Non -login based)
i i
Ixxiii. Internet Program Query 1
$5,000
1 $5,000
Ixxiv. Internet Facility Inventory Query and Availability 1
$5,000
Ixxv. MAP
$2,500
1 $2,500
ISystem Modules—Costs Included in costs of other licensed Modules
Ixxvi. System Utilities as defined in section 1.10 of the Terms and Conditions
(Other
Ixxvii. Information Management
$500
�xxviii. Membership Pass Validation
$500
Total Cost
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$17,500
Class Software Solutions Ltd. Software License Agreement 11OctO2 (Software table) Page: 2 of h
1. Interpretation
1.1 Definitions - For the purposes of interpreting this Agreement, the
following terms will have the following meanings:
a) "Agreement" means this Class Software License Agreement.
b) "Client Workstation" means a computer attached to a local- or wide -
area network (including an Intranet), which accesses the Software or
Enterprise Database.
c) "Concurrent Use" means use at the same moment in time to access a
given server computer (of any kind) owned or controlled by the
Customer.
"Customer" means the legal entity other than CSS entering this
Agreement.
"CSS" means Class Software Solutions Ltd.
"Database Server" means the single server computer upon which the
Enterprise Database is resident.
g) "Enterprise Database" means the MS SQL Server database files
containing customer data (which is owned by Customer) and which is
accessed by the Software.
h) "Initial Installation" means initial installation of any Module on any
server computer owned or controlled by the Customer.
i) "Internet Client" means a remote device capable of using the Internet
and either Internet Explorer 4.0 or higher or Netscape Navigator 4.7 or
higher to access selected Software on the Internet Server or the
Enterprise Database on the Database Server via the Internet Server.
j) "Internet Server" means a single server computer used by the
Customer which enables access to the Software by individuals using
an Intranet or the Internet, having a minimum configuration as set out
in hardware specifications previously described to the Customer as
applicable to the Software to be installed and used upon it.
k) "IVR Server" means a single server computer used by the Customer
for voice -recognition and telephone -based, rather than computer-
based, access to the Enterprise Database by the Customer's clients,
having a minimum configuration as set out in hardware specifications
previously described to the Customer as applicable to the Software to
be installed and used upon it.
1) "Maintenance Module" means any item of Software shown in the
Software Table in parentheses adjacent to a type of Operating
Software.
m) "Module" means a single type of Software referred to in any particular
line item, such that each such line item refers to one, and only one,
Module, with respect to which one or more licenses may or may not be
granted hereby, except in line item xxvi to which r) applies.
n) "Operating Module" means any item of Software listed but not in
parentheses in line items i through ix.
o) "Payment Processing Server" means a single server computer used
by the Customer to process electronic payments from its clients,
having a minimum configuration as set out in hardware specifications
previously described to the Customers as applicable to the Software to
be installed and used upon it.
p) "Software" means computer code and programs, in executable code
form only, including related data files, rules, parameters and
documentation, which have been created or licensed by CSS and are
identified in the Software Table as licensed (or sublicensed) to the
Customer by CSS in connection with this Agreement, and/or which are
in the future provided to the Customer by CSS under any
circumstances unless provided under a separate licensing agreement.
q) "Software Table" means the table of CSS Software Modules licensed
hereunder, shown on the page of this Agreement immediately
following the Cover Page.
r) "System Utilities" includes the following Modules: Accounting
Processes, Archive Class Database, Central Login, Class Oracle
Database Creator, Compact Class Database, Copy Class Database,
Edit Class Database, Large Settlement Processor, License Class
Modules, Log Accounting Information, Maintain Class Database, Reset
Barcodes, System Maintenance, Upgrade Class Cash 3.0 Database,
Upgrade Class Database and View Components.
s) "User" means a person who accesses and uses any of the Software to
access, use or affect the Enterprise Database in any manner
whatsoever.
1.2 "Line Items" — Any reference herein to a "line item" or "line items" is a
reference to the appropriate line item(s) of the Software Table.
1.3 Headings - The headings contained in this Agreement are inserted for
convenience and do not form a part of this Agreement and are not
intended to interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
2. GRANT OF LICENSES AND LIMITATIONS THEREON
2.1 CSS hereby grants to the Customer a non-exclusive right and license,
subject to this Agreement, to install and/or use the Software as follows:
a) Operating Modules - For every Operating Module licensed pursuant
to the Software Table the Customer may:
I) install the Operating Module upon as many Client Workstations as the
Customer wishes, and
ii) permit Users to use such Operating Modules to access the Enterprise
Database on the Database Server provided that only the number of
copies of any particular Operating Module licensed pursuant to the
appropriate line items may be in Concurrent Use.
b) Maintenance Modules - For every Operating Module licensed
pursuant to the Software Table for which the Software Table shows a
corresponding Maintenance Module, the Customer may install and use
such corresponding Maintenance Module upon as many Client
Workstations as the Customer wishes, with no limits with respect to the
number of units of such Maintenance Modules which may be in
Concurrent Use.
c) System Features (Server Based Licensing) — Subject to d), the
Customer may install one copy of each Module licensed pursuant to
line items x through xviii on each of as many Client Workstations as
the Customer wishes , and may use and permit use of such Modules
by its clients, without limit as to the number Users or transactions
which simultaneously use any such Module.
d) Exceptions Regarding Unlimited System Feature (Server Based
Licensing) — Any Module licensed pursuant to:
I) line item xvi ("IVR — Registration & Voice Server") or line item xvii ("IVR
— QuickRez Booking & Voice Server") may be installed as to one copy.
on one IVR Server, per license acquired, and all such Modules
together may be in Concurrent Use by, at most, the number of lines of
the "IVR Registration, QuickRez and Voice Info" Module licensed
pursuant to line item ix;
ii) line item xviii ("Payment Processing Server") may be in Concurrent
Use by, at most, the number of lines of the Credit and Debit Card
Payment Processing Module, as applicable, licensed pursuant to line
item xix.
e) System Features (User Based Licensing) — Payment Processing
Modules — For each Module licensed pursuant to line item xix the
Customer may:
i) install such Module upon as many Client Workstations as the
Customer wishes, and
ii) permit Users to use such Modules to pay for products and/or sery ces
available from the Customer through the use of other Modules
provided that only the number of copies of these Payment Processing
Modules shown as being licensed in line item xix may be in Concurrent
Use.
f) Internet Access Licenses (Login -Based) - For every Module
licensed pursuant to line items xx and xxi the Customer may:
Class Software Solutions Ltd. Software License Agreement 11Oct0Z (Terms and conditions) Paq
i
0, CIdSS
i) install one copy of each such Module per license of such Module on
one Internet Server, and
ii) subject to h), permit Users to access and use such Modules to access
the Database Server via Internet Clients connecting via a licensed
Internet Server, provided that at any time, any or all such Modules may
be in Concurrent Use by, at most, the number of licenses of the
"Internet Login" Module licensed pursuant to line item xxii multiplied by
twenty-five (25).
g) Internet Enabling Licenses (Non -Internet Login -Based) — For each
Module licensed pursuant to line items xxiii, xxiv and xxv the Customer
may:
i) install one copy of such Module per license of such Module upon an
Internet Server, and
ii) permit Users to use such Module to access the Database Server via
Internet Clients connecting via the Internet Server upon which such
Module is installed, without limit as to the number Users or
transactions which simultaneously use any such Module.
h) The Customer hereby acknowledges that the mechanism utilized by
the Software to control the number of Users or Internet Clients which
can smultaneously access and use Modules licensed per line items xx
and xxi is based upon the number of Users who have at any time
logged in to the Customer's computer network using their passwords,
such that any User so logged into that network in a manner that would
enable the User to access and use the Modules listed in those line
items will in fact reduce by one the number of Users able to
simultaneously access those Modules, even if such User is not in fact
accessing or using any such Module. The Customer hereby waives
any claim, and releases CSS from any such claim and from any
losses or damages the Customer suffers in relation thereto, in
connection with the inability of the number of Users indicated in
line item xxii to simultaneously access the Modules licensed per
line items xx and xxi, where such inability is the result of Users
not actually using the Modules licensed per those line items
absorbing available login access in the manner described in this
provision.
i) Other Licenses (Information Management) — For each Module
licensed pursuant to line item xxvii, the Customer may:
i) install one copy of such Module upon a single Client Workstation per
license of such Module, and
ii) permit Users using such licensed Client Workstation(s) to use such
Module(s), provided that only the number of copies of such Module
licensed pursuant to line item xxvii may be in Concurrent Use, and
further only one copy may be in Concurrent Use on any given licensed
Client Workstation.
j) Other Licenses (Membership Pass Validation) — If the Customer has
licensed the "Membership Pass Validation" Module pursuant to line
item xxviii, the Customer may install one copy of such Module on each
of as many pass scanning stations as the Customer has licensed
copies of that Module as shown in line item xxviii.
2.2 Backup Copies - Customer will not make any copies of the Software,
except as necessary for the installation permitted hereby and except
for one copy of each Module licensed hereunder for backup purposes,
provided that all electronic copies made include screen displays of
CSS's proprietary or intellectual property notices as recorded on the
original copy provided by CSS, and the Customer affixes a label to
each disk, reel or other housing for the medium on which each
physical copy is recorded setting out the same proprietary and
intellectual property notices as appear on the unit of Software from
which the copy is made in the same manner as those notices appear
on that original copy.
2.3 Incidental Installation of System Feature Software— CSS will not
require any payment by the Customer for, and hereby releases the
Customer with respect to any damages or claims to or by CSS relating
to, unlicensed Modules listed in the Software Table under "System
Features" the Software for which is automatically installed on any
hardware of the Customer in the process of installation of any other
Module(s), provided that the Customer shall not use, and shall not
permit any other person to use, any such Modules.
3. CHARGES AND PAYMENTS
3.1 Software License Fees - The charges and payments applicable to the
installation and use of the Software by the Customer are set out on the
Cover Page.
3.2 Taxes and Other Charges — The Customer will pay all shipping &
handling costs and all applicable sales, use, withholding and excise
taxes, and any other assessments against the Customer in the nature
of taxes, duties or charges however designated on the Software or its
license or use, on or resulting from this Agreement, exclusive of taxes
based on the net income of CSS.
4. OWNERSHIP OF SOFTWARE
4.1 Warranty of Title - CSS warrants that it has all rights necessary to
make the grant of license herein by having all right, title and interest in
and to the Software or as licensee of all such rights from the owner
thereof.
4.2 Retention of Rights by CSS and Customer's Obligations - All
proprietary and intellectual property rights, title and interest including
copyright in and to the original and all copies of the Software and the
documentation or any changes or modifications made to the Software
or related documentation will be and remain that of CSS, or its licensor
as the case may be. Without limiting the foregoing, the Customer will
not any time whether before or after the termination of this Agreement:
a) reverse engineer, disassemble or decompile any Software or prepare
derivative works thereof;
b) copy, transfer, display, or use the Software except as expressly
authorized in this Agreement;
c) disclose, furnish, or make accessible to anyone any confidential
information received from CSS or make any use thereof other than as
expressly permitted under this Agreement, which confidential
information is deemed to include the source and executable code of
the Software and all related documentation;
d) contest or do or aid others in contesting or doing anything which
impairs the validity of any proprietary and intellectual property rights,
title or interest of CSS in and to any Software; or
e) obliterate, alter, or remove any proprietary or intellectual property
notices from the Software in its physical or electronic forms.
4.3 Intellectual Property Indemnity by CSS - CSS will defend or settle any
claim made or any suit or proceeding brought against the Customer
insofar as such claim, suit or proceeding is based on an allegation that
any of the Software supplied to the Customer pursuant to this
Agreement infringes the proprietary and intellectual property rights of
any third party in or to any invention, patent, copyright or any other
rights, provided that the Customer will notify CSS in writing promptly
after the claim, suit or proceeding is known to the Customer and will
give CSS information and such assistance as is reasonable in the
circumstances. CSS will have sole authority to defend or settle any
such claim at CSS's expense. CSS will indemnify and hold the
Customer harmless from and against any and all such claims and will
pay all damages and costs finally agreed to be paid in settlement of
such claim, suit or proceeding. This indemnity does not extend to any
claim, suit or proceeding based upon any infringement or alleged
infringement of copyright by the combination of the Software with other
elements not under CSS's sole control nor does it extend to any
Software altered by the Customer either by enhancement or by
combination with product(s) of the Customer's design or formula. The
foregoing states the entire liability of CSS for proprietary and
intellectual proprietary rights infringement related to the Software. If the
Class Software Solutions Ltd. Software License Agreement 11Oct02 (Terms and conditions) Page 4 of
s� Class
Software in any claim, suit or proceeding is held to infringe any
proprietary or intellectual property rights of any third party and the use
thereof is enjoined or, in the case of settlement as referred to above,
prohibited, CSS will have the option, at its own expense, to either (i)
obtain for the Customer the right to continue using the infringing item,
or (ii) replace the infringing item or modify it so that it becomes non -
infringing, provided that no such replacement or modification will
diminish the performance of the Software.
4.4 Intellectual Property Indemnity by the Customer — The Customer will
defend or settle any claim made or any suit or proceeding brought
against CSS insofar as such claim, suit or proceeding is based on an
allegation that any Software licensed to Customer pursuant to line item
xxvii ("Information Management") has been installed, used or otherwise
treated in a manner contrary to the terms of this Agreement or the
intellectual property rights of the provider of that Software, provided
that CSS will notify the Customer in writing promptly after the claim,
suit or proceeding is known to CSS and will give the Customer
information and such assistance as is reasonable in the
circumstances. The Customer will have sole authority to defend or
settle any such claim at the Customer's expense. The Customer will
indemnify and hold CSS harmless from and against any and all such
claims and will pay all damages and costs finally agreed to be paid in
settlement of such claim, suit or proceeding.
5. WARRANTY
Limited Warranty of Software - CSS warrants that when utilized by the
Customer in a manner authorized hereunder, the Software will conform to
the functional specifications set out in the user documentation
accompanying the Software for ninety (90) days from Initial Installation.
CSS's sole obligation and liability hereunder with respect to any failure to so
perform will be to use reasonable efforts to remedy any non -conformity,
which is reported to CSS in writing by Customer within that warranty period.
In the event CSS is unable to remedy such non -conformity within a
reasonable time using reasonable efforts, CSS may refund to Customer the
license fee pertaining to the Software and this Agreement will be
automatically terminated. All warranty service will be performed at service
locations designated by CSS.
6. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
6.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
WARRANTIES SET OUT IN SECTIONS 4.1 AND 0 ARE IN LIEU OF
ALL OTHER WARRANTIES, AND THERE ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OF ANY KIND WHATSOEVER APPLICABLE,
EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT OR TORT)
OR CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE
REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE, DESIGN,
CONDITION, OR QUALITY. WITHOUT LIMITING THE ABOVE, CSS
DOES NOT WARRANT THAT ANY SOFTWARE PROVIDED
HEREUNDER WILL MEET THE REQUIREMENTS OF CUSTOMER
OR THAT THE OPERATION OF SOFTWARE PROVIDED
HEREUNDER WILL BE FREE FROM INTERRUPTION OR ERRORS.
6.2 RESTRICTIONS ON WARRANTY - CSS HAS NO OBLIGATION TO
REPAIR OR REPLACE SOFTWARE DAMAGED BY ACCIDENT OR
OTHER EXTERNAL CAUSE, OR THROUGH THE FAULT OR
NEGLIGENCE OF ANY PARTY OTHER THAN CSS.
6.3 NO INDIRECT DAMAGES — WITHOUT LIMITING THE GENERALITY
OF SECTIONS 6.1 AND 6.4, IN NO EVENT WILL CSS BE LIABLE TO
THE CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT
DAMAGES OR LOSSES (IN CONTRACT OR TORT), INCLUDING
BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST
SAVINGS, OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL
DAMAGES, EXCEPTING LOSS OR DAMAGE FOR PERSONAL
INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING
FROM THE SOLE NEGLIGENCE OF CSS, IN CONNECTION WITH
SOFTWARE PROVIDED HEREUNDER OR IN ANY OTHER
RESPECT RELATING TO THIS AGREEMENT.
6.4 LIMITS ON LIABILITY — DESPITE ANY OTHER PROVISION OF THIS
AGREEMENT, IF, FOR ANY REASON, CSS BECOMES LIABLE TO
THE CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY
OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR
TORT), EXCEPTING LIABILITY FOR PERSONAL INJURY OR
DAMAGE TO TANGIBLE PROPERTY, INCURRED IN CONNECTION
WITH THIS AGREEMENT, THEN:
A) THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES AND
LIABILITY INCURRED BY CUSTOMER AND ALL OTHER PARTIES
IN CONNECTION WITH THE SOFTWARE IN QUESTION WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID TO CSS
FOR THE LICENSE OF THE MODULE OR MODULES WHICH GAVE
RISE TO THE CLAIM FOR DAMAGES; AND
B) IN ANY CASE THE CUSTOMER MAY NOT BRING OR INITIATE ANY
ACTION OR PROCEEDING AGAINST CSS ARISING OUT OF THIS
AGREEMENT OR RELATING TO ANY SOFTWARE PROVIDED
HEREUNDER MORE THAN TWO YEARS AFTER THE RELEVANT
CAUSE OF ACTION HAS ARISEN.
6.5 SEPARATE ENFORCEABILITY - SECTIONS 6.1 THROUGH 6.4 ARE
TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH
BE INDIVIDUALLY ENFORCEABLE.
7. TERMINATION
7.1 Termination -This Agreement will terminate:
a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and
fails to remedy the default within 30 days after receiving written notice
thereof; and
b) without limiting a), at the option of CSS if the Customer breaches
section 3 of this Agreement
provided that the right of termination will be in addition to all other rights and
remedies available to the parties for breach or default by the other.
7.2 Suspension of Obligations - If either party should default in the
performance or observance of any of its obligations hereunder, then, in
addition to all other rights and remedies available to the non -defaulting
party, the non -defaulting party may suspend performance and
observance of any or all its obligations under this Agreement, without
liability, until the other party's default is remedied, but this section will
not permit the Customer to suspend its obligation to make payments
owing in respect of the Software.
7.3 Return of Software - In the event of termination of this Agreement for
any reason whatsoever, Customer will immediately return to CSS all
physical copies of Software delivered by CSS to the Customer or
otherwise in the Customer's possession or control, except as expressly
permitted by CSS to destroy, destroy all physical copies of the
Software not returned to CSS, delete all electronic copies of the
Software from its systems, and certify in writing to CSS that such
actions have all been completed.
8. Audit and monitoring Riqhts
8.1 CSS may, upon a minimum of 24 hours written notice to the Customer,
attend upon the Customer's premises and verify that the Software
licensed pursuant to this Agreement is installed and being used only
as permitted hereby. Such inspections may occur a maximum of twice
per calendar year, and will be performed only during the Customer's
regular business hours and conducted in a manner so as minimize to
the extent reasonable any interference with the Customer's business
Further, CSS may, using automatic means which do not interfere with
the use of the Software by the Customer or Users other than as
described in this provisions, monitor at any time usage of the Software
Class Software Solutions Ltd. Software License Agreement 110UO2 (Terms and conditions) Page S of 0
Class
by the Customer and or its Users, through monitoring of the number of
copies of any particular Module(s) in Concurrent Use.
9. GENERAL
Complete Agreement - This Agreement constitutes the complete and
exclusive statement of the agreement between CSS and the Customer
relating to the licensing of the Software, and supersedes all oral or
written proposals, prior agreements and other prior communications
between the parties, concerning the subject matter of this Agreement.
Force Majeure - Dates or times by which either party is required to
perform under this Agreement, excepting the payment of any fees or
charges due hereunder, will be postponed automatically to the extent
that any party is prevented from meeting them by causes (other than
inability to pay) beyond its reasonable control.
Notices - All notices and requests in connection with this Agreement
will be given to the respective parties in writing and will be deemed
given as of the first business day of the notified party following the day
the notice is faxed or sent via overnight courier, providing a hard copy
acknowledgment of such successful faxed notice transmission or
evidence of such couriering, as applicable, is retained. Notice may also
be deposited in the Canadian or United States mails (depending upon
the location of the party sending such mail), postage pre -paid, certified
or registered, return receipt requested, and addressed to the other
9.1
9.2
9.3
party at the address set out on the face hereof, and receipt of any such
notice will be deemed given as of the 31d business day of the notified
party following such deposit.
9.4 Governing Law - This Agreement and performance hereunder will be
governed by the laws of the jurisdiction where the Database Server is
situated excepting in the case of Louisiana when the laws of California
will apply, or in the case of Quebec when the laws of Ontario will apply
9.5 Non -Assignability - This Agreement is not assignable by the Customer
Any assignment, purported assignment or attempt to assign by the
Customer will be a material breach of this Agreement and will be void.
9.6 Survival - Sections 4, 6, 7.3 and 9 of this Agreement will survive
termination and expiration of this Agreement.
9.7 U.S. Government Restricted Rights - The Software and documentation
are provided with restricted rights. Use, duplication, or disclosure by
the U.S. Government is subject to restrictions as set forth in
subparagraph (c) (1)(ii) of The Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013, or subparagraphs (c) (1)
and (2) of the Commercial Computer Software - Restricted Rights at 48
CFR 52.227-19, as applicable. The Contractor/ Manufacturer is Class
Software Solutions Ltd., Suite 300, 6400 Roberts Street, Burnaby
British Columbia, Canada, V5G 4C9.
Class Software Solutions Ltd. Software License Agreement 11Oct02 (Terms and conditions) Pace 6 of G
�� Class
Exhibit B
300-6400 Roberts Street I Burnaby BC I V5G 4C9
Software Support and Maintenance Agreement
This document (the "Agreement"), consisting of:
a. the cover pages ("Cover Page"),
b. the attached table of supported Software ("Software Table");
c. the attached description of levels of support and maintenance ("Levels Description");
d. the attached Terms and Conditions of CSS Support and Maintenance ("Terms and Conditions"); and
e. the attached certificate of insurance ("Certificate of Insurance")
constitutes the agreement between the undersigned customer ("Customer") and Class Software Solutions Ltd.
("CSS") whereby, and CSS and the Customer hereby agree that, the Customer will acquire, and CSS will provide, the
software support and maintenance products and services described in this Agreement for the prices shown in the
table below. Any apparent contradiction among this Cover Page, the Software Table, the Levels Description, and/or
the Terms and Conditions is to be resolved by giving priority to the Terms and Conditions, followed by the Cover
Page, Software Table and Levels Description in that order.
Product or Service Description Cost
1. Support and Maintenance — Basic $4,375
2. Support and Maintenance — Premium
RE: 1 or 2: Preferred Renewal Date (Optional) - (mm, did, yyyy)
ACCREDITATION DISCOUNTAVAILABLE? (To be completed by CSS post (15%) ( )
installation date) Yes I No
Total Cost
Payment Terms for Support and Maintenance
1. The cost for the Support and Maintenance services is payable annually in advance and is due in its entirety on
the Support Start Date, unless the Customer has specified a Preferred Renewal Date in the appropriate space in
the table above in which case only the cost of Support and Maintenance prorated from the Support Start Date to
the Preferred Renewal Date is payable on the Support Start Date. Thereafter, the Support and Maintenance fee
is payable in advance on every annual anniversary of the Support Start Date or, if there is a Preferred Renewal
Date, every anniversary of the Preferred Renewal Date (the applicable anniversary being the "Support Renewal
Date"). CSS will provide invoices to the Customer for all such amounts, such invoices due on the later of (a) the
Support Start Date or applicable Support Renewal Date, as applicable, and (b) 30 days after receipt of the
invoice. Overdue invoices shall bear interest at 1 % per month, 12.56% per annum.
2. Subject to the availability of an "Accreditation Discount" as described in the Terms and Conditions, the annual
cost of Support and Maintenance hereunder is 25% of the license fee which would be applicable if the Software
with respect to which Support and Maintenance are provided hereunder were licensed anew by the Customer at
CSS's standard license rates as they exist on the effective date hereof or the Support Renewal Date, as
applicable, provided that, excluding increases due to Support and Maintenance of additional Software from one
contractual year to the next, any increase in costs hereunder from one contractual year to the next may not
exceed ten (10) percent of the Support and Maintenance fees payable for the year just ending upon that Support
Renewal Date.
3. The Customer will pay all shipping & handling charges, applicable sales, use, withholding and excise taxes, and
any other assessments in the nature of taxes, duties or charges however designated on the services rendered
under this Agreement, exclusive of taxes based on the net income of CSS.
4. All prices are in the currency of the country in which the Software is installed.
The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by this
Agreement.
v.,ww.,lss,infoxom ; i ' 8an 66: ' _ ....
Class
Full Legal Customer Name
Address
Facsimile
Class Software Solutions Ltd.
Designated Customer contact
Authorized Signatory person/CSS System Administrator
g ry and site; if more than one, provide all
Date
Authorized Signatory Date
Class Software Solutions Ltd. Support and Maintenance 11Oct02 (Cover page) Page 2 of 7
o,,) Class
Software Table: Licensed Class Software Modules
Module
(Operating Modules (Associated Maintenance Modules In parentheses)
I. Program Registration (Program Maintenance)
ii. FlexReg (automatically licensed if i is licensed)
iii. Membership & Pass Manaqement (Membership Pass Maintenance)
IV. Facility Bookinq (Facility Maintenance)
Iv. QuickRez (automatically licensed if iv is licensed)
Ivi. Point of Sale & Site-based Inventory (POS Maintenance)
Vii. Sport Scheduling
Viii. Browse Facility Bookinqs
l ix. IVR – Registration, QuickRez and Voice Info (min. 4 lines) (IVR Maintenance)
(System Features
IServer Based Licensing
Ix. Randomization Ij
Ixi. Affinity
Ixii. External Interfaces – Banner
�xiii. External Interfaces – Financial (Accounts Payable and General Ledger)
�xiv. External Interfaces – Desktop Publishinq
�xv. Multilingual Capability
Ixvi. IVR - Registration & Voice Server
1xvii. IVR – QuickRez Bookinq & Voice Server
1 xviii. Payment Processinq Server (Credit and, Debit and Electronic Funds Transfer)
User -Based Licensing
�xix. Credit Card and Debit Card Payment Processing
IeConnect
Internet Access (Looln•Based)
xx. Internet Program Registration (automatically licensed if both xxii and xxiii are
licensed)
xxi. Internet QuickRez Bookinqs
Ixxii. Internet Login (25 Concurrent Users permitted per license)
Internet Enabling (Non•login based)
�xxiii. Internet Program Query
Ixxiv. Internet Facility Inventory Query and Availability
xxv. MAP
ISystem Modules—Costs Included in costs of other licensed Modules
Ixxvi. System Utilities as defined in the Terms and Conditions
Other i
Ixxvii. Information Management
Jxxviii. Membership Pass Validation
No. of Copies of Initial Software Total Module
Module Supportedl Licensing Cost Support/
Maintained Maintenance Cos
C
C
$1,750
$1,750
$1,750
$3,500
$1,750
$500
$1,750
$5,000
$5,000
$1,750
$1,750
$500
$5,000
$5,000
$5,000
u
$5,000
1 $5,000
1I $5:000
$5,000
1 1 $2,500
C
$500
$500
11
1 $1,250
$1,250
$1,250
$625
Total Cost $4,375
Total cost indicated is potentially subject to reduction per Accreditation Discount.
As per the Cover Page, the amounts shown in the "Initial Software Licensing Cost" and "Total Module Support/
Maintenance Cost" columns of the Software Table are applicable only upon the date of entry into this Agreement, and
are subject to change thereafter in accordance with this Agreement's terms.
Class Software Solutions Ltd. Support and Maintenance 110ct02 (Software tab e; Page 3 of
e� Class
Description of Levels of Annual Support and Maintenance
1. Basic
Basic Annual Support and Maintenance includes the following:
• Unlimited toll free telephone support between 6:00 am and 5:30 pm Pacific Time ("PT") Mon -- Fri
("Regular Support Hours") and
• Unlimited dial -in access support (see Notes a, b and c below for qualification) for "system down"
issues (only) between 5 AM - 6 AM and 5:30 PM — 11:00 PM (PT) weekdays and 5:00 a.m. —
11:00 p.m. (PT) Saturday and Sunday ("Extended Support Hours")
• Limited report customization & query support (i.e. calls of 15 minutes duration or less)
• Access to CSS's secure Web site
• Regular documentation and communications provided to the Customer
• New Releases and Versions as described in the Terms and Conditions
Notes:
a) Qualifying sites must have direct dial -in and Internet e-mail capability for Extended Support
Hours.
b) Support calls placed during Extended Support Hours must be placed through an authorized
contact person.
c) Under Basic Annual Support and Maintenance, Support during Extended Support Hours is
available only for "system down" problems that result in the Customer's inability to fulfill critical
business functions (i.e. those pertaining to core functionality such as processing registrations,
memberships, rentals) and that have no reasonable work -around. All other calls — including all
calls related to upgrades — placed by the Customer within Extended Support Hours will be billed
to the Customer under a separate agreement.
2. Premium
Premium Support provides for the same services as Basic Annual Support and Maintenance, and
additionally provides that, subject to Notes a) and b) above, all Support available during Basic
Support Hours is also available during Extended Support Hours.
3. Holiday Hours
The CSS Support Desk will be open with reduced staff on the following Canadian statutory holidays:
Good Friday; Victoria Day (3rd Monday in May); Canada Day (July 1"); BC Day (1" Monday in
August); Thanksgiving (2"d Monday in Oct); Remembrance Day (November 11); Boxing Day
(December 26). On the following holidays, the CSS Support Desk will be closed: New Year's Day,
Christmas Day, Labor Day (1" Monday in September).
C ass Software Solutions Ltd. Support and Maintenance 110ct02 (Levels description) Page 4 of 7
i
e� Class
Terms and Conditions of Class Support and Maintenance
1. DEFINITIONS New Versions will be denoted by a change to the version number to the left
1.1 Definitions - For the purposes of interpreting this Agreement, the following of the decimal point such as from Version 1.0 to Version 2.0
terms will have the following meanings: 1.2 Headings -The headings contained in this Agreement are inserted for
a) "Initial Installation " means the date upon which any of the Software has convenience and do not form a part of this Agreement and are not intended
first been installed on any server computer owned or controlled by the to interpret, define or limit the scope, extent or intent of this Agreement or
Customer. any provision hereof.
b) "Maintenance" means the provision of error investigation and repair
services and of new Versions and Releases, as described in Section 3.1.
c) "Module" means a single type of Software referred to in any particular line
item of the Software Table, such that each such line item refers to one, and
only one, Module, regardless of the number of copies referred to in such
line item, except in line item xxvi to which h) applies.
d) "Release" means any release, update, patch, set of revisions, or
bug/permanent fix or temporary bypass solution released by CSS to its
customers generally during the term of this Agreement, which provides
enhancements andlor error corrections to the then -current Version or
Release, and where a new Version has been released and no new
Release has been released since the release of that Version, that Version
will also constitute a Release for the purpose of determining whether
Support or Maintenance is available with respect to that Version. New
Releases will be denoted by an increase to the version number to the right
of the decimal point such as from Release 1.1 to Release 1.2.
e) "Software" means computer code and programs, in executable code form
only, including related data files, rules, parameters and documentation,
which have been created or licensed by CSS and are identified in the
Software Table as being subject to Support and Maintenance in connection
with this Agreement, and any Versions or Releases thereof provided by
CSS, in executable form.
f) "Support" means the ongoing telephone and dial -in support and problem
resolution to assist the Customer in the use of the Software. It may include
but is not limited to response to inquiries regarding the operation,
installation, administration and general technical assistance requested by
the Customer. Support also includes, provided that such assistance can be
provided in fifteen (15) minutes or less:
i) Limited assistance with report customization and the development of
custom queries, and
ii) Assistance to isolate the source of problems and/or to troubleshoot
difficulties resulting from sources other than CSS products or services,
such as:
• General network support - for example network access, printing,
backup & restoration;
• PC hardware trouble shooting;
• PC setup, configuration and optimization;
• Network operating system configuration and functionality;
• Basic Microsoft Corporation "Windows" functionality (e.g. using File
Manager or Explorer);
• Modem configuration & setup;
• Data corruption due to lack of disk space; and
• Loss of supervisor or other password
but expressly excludes any services or assistance relating to database
issues, unless acquired under an addendum to this Agreement.
"Support Start Date" means the day ninety (90) days after Initial
Installation.
"System Utilities" includes the following Modules: Accounting Processes,
Archive Class Database, Central Login, Class Oracle Database Creator,
Compact Class Database, Copy Class Database, Edit Class Database,
Large Settlement Processor, License Class Modules, Log Accounting
Information, Maintain Class Database, Reset Barcodes, System
Maintenance, Upgrade Class Cash 3.0 Database, Upgrade Class
Database and View Components.
"Version" means a verson of the Software providing a particular
functionality, while a new Version of the Software will provide
newladditional functional-ty and/or improvements to a previous Version.
2. SUPPORTSERVICES
2.1 CSS will provide to the Customer Support for:
a) the Release of the Software that is from time to time the most recently -
released, generally available Release, and
b) for the twelve (12) months immediately following general availability of the
Release described in a), for the Release which immediately precedes that
Release. Support services will not be provided for any non-current Version
or Release after twelve (12) months from the date of availability of the
newer Version or Release.
3. MAINTENANCE SERVICES
3.1 With respect to any Release of the Software supported at the time, upon
receipt of notification from the Customer's authorized contact personnel of
an apparent error in the Software, CSS will use commercially reasonable
efforts to promptly investigate the issue and determine whether or not there
is in fact an error and to advise the Customer that either an error does not
exist, or confirm that one does exist and what, if any, work -around exists
Errors will be deemed to be any design or programming error in the
Software attributable to CSS which prevents the Software from
substantially complying with the functionality as set out in the user
documentation (on-line or hard -copy) delivered with the Software and
which materially affects the use, function or performance of the Software
When errors are confirmed, CSS will use commercially reasonable efforts
to correct such errors and provide Customer with a correction or service
pack for the Software as soon as it is practical in CSS's sole discretion.
3.2 CSS will provide to the Customer, either physical form by mail or courier or
in electronic form via the Internet, new Releases and Versions (and
appropriate documentation) as such Releases or Versions (and
documentation) become available, without additional charge.
4. ASSIGNMENT OF PRIORITIES FOR SUPPORT ISSUES
4.1 New support incidents are assigned one of the following four priority levels,
each with its respective standard completion target:
Call Priority
Description
Standard Completion
Level
Target
A — Down
Fatal issues that result in the
Within 1 � hours.
Customer's inability to fulfill critical
business functions (i.e. those
pertaining to core functionality such
as processing registrations,
memberships, rentals) and that have
no reasonable work -around.
B — Urgent
Serious issues significantly impacting
Within 24 hours.
use of system but do not prevent
core functions (such as processing
registrations, memberships, rentals)
from being fulfilled.
C — Normal
All other issues, except those
Within 36 hours.
classified as D (Low).
D — Low
Issues that are not time -sensitive or
None
may be undertaken as customer
service initiatives outside the scope
of this Agreement.
Customer will request a ranking of the call priority when initially reporting the
incident. Should there be any disagreement over the priority assigned to a
particular incident, or any other aspect of its handling, by CSS support staff,
Customers are encouraged to first speak directly to the support representative
dealing with the issue in order to arrive at an acceptable solution. In cases where
escalation is desired or necessary, please contact the Supervisor, Support
Services with any concerns you may have (phone 1-800-663-4991).
Class Soft:aa e Soiut'.ons Ltd. Support and Maintenance 11Oct02 (Terms and conditions) Page
%. Class
5. EXCLUDED SUPPLIES AND SERVICES
5.1 Without limitation, the follow,ng supplies and services are excluded from
Support and Maintenance:
a) Services which are required to remedy problems that stem from changes to
or defects in system configuration upon which the Software was initially
installed;
b) Services which are required to remedy problems which do not stem from
any defect in Software;
c) Services which are required to remedy problems caused by lack of training
of Customer's personnel improper treatment or use of the Software;
d) Full report customization service;
e) Any and all hardware support, maintenance or troubleshooting issues,
except as described in section 1.1 1.0ii), regardless of the source of such
hardware.
6. FEES AND PAYMENT
6.1
6.2
6.3
In consideration of the Support and Maintenance provided hereunder,
Customer agrees to pay CSS the fees described on the Cover Page, as
modified pursuant to this Agreement. In the event the Customer requires
Support and Maintenance for additional Software, the Customer agrees to
pay CSS the additional Support and Maintenance fees applicable based
upon the fees then in effect, prorated from the date of agreement to
acquire such services to the Support Renewal Date. Payment, other than
amounts, which may be adjusted under these Terms and Conditions, will
be in accordance with the payment terms set out on the Cover Page.
Unless the Software Table indicates otherwise, the fees charged
hereunder are applicable to Support and Maintenance of Software used
with respect to only a single database of Customer data. If the Customer,
after entering this Agreement, places in service one or more additional
databases to be used in relation to the Software, then for each such
additional database an additional 25% of all Support and Maintenance fees
charged hereunder, exclusive of such extra database fees, will be payable.
The Customer will notify CSS as soon as reasonably possible of the
installation or use of any such additional database(s).
If the Customer has indicated to CSS that the Customer intends to qualify
for an "Accreditation Discount", then the total cost of Support and
Maintenance hereunder will be discounted by fifteen (15) per cent, and the
Cover Page modified accordingly by CSS, provided that on or before the
Support Start Date, a CSS representative has verified to CSS's reasonable
satisfaction that all of the following criteria are met:
Approved dial -in access — The Customer has Symantec's Norton
pcANYWHERE, Windows Terminal Server or similar means, and
appropriate intemet connections, for dial -in access by CSS personnel at
any time except for reasonable system downtime for system maintenance
and in particular without exception relating to the Customer's security
requirements;
CSS System Administrator(s) - The Customer has one or more employees
in the department or agency using the Software (each a "CSS System
Administrator") trained on all of the Software, who are available to work
with other users of the Software and able to handle most of the basic
questions from the Customer's users of the Software. The CSS System
Administrators must also be familiar with the version of the Microsoft
Corporation "Windows:" based operating system in use by the Customer,
be familiar with the setup and installation of the Software on workstations
used to access the Software, and know the administrative login and
password. All communications between the Customer and CSS are to
occur through a CSS System Administrator, who must be authorized to
make policy decisions for the Customer relating to the Software;
Electronic Communication — The CSS System Administrator(s) is (are)
capable of communicating with CSS via the intemet and electronic mail for
support and file transfer purposes;
Database Administrator - The Customer has one or more employees in the
department or agency using the Software with expertise relating to the
database platform used by the Software, evidenced either by certification
or course work reasonably satisfactory to CSS, or by equivalent experience
including the ability to install, maintain, backup and restore, troubleshoot,
and optimize the database environment, and the Customer assumes full
responsibility for maintaining the Customer's database environment such
that CSS has no obligations to provide any support whatsoever relating to
the Customer's database(s); and
Network Administrator— the Customer has one or more employees in the
department or agency using the Software with expertise relating to the
network operating system by which client workstations are connected to or
use the Software, evidenced either by certification or course work
reasonably satisfactory to CSS, or by equivalent experience including the
ability to install, maintain, troubleshoot, and optimize the network, and the
Customer assumes full responsibility for maintaining the Customer's
network environment such that CSS has no obligations to provide any
support whatsoever relating to the network;
and if at any time during the term of this Agreement any of these criteria are not
met, the Accreditation Discount will no longer be valid and the amount
discounted from the total fees for Support and Maintenance as a result of such
Accreditation Discount, pro -rated from the date such criteria were first not met
until the next -following Support Renewal Date, will immediately be payable by
the Customer to CSS, such amount to be invoiced by CSS to the Customer. The
Customer will immediately notify CSS upon any of these criteria no longer
being met.
6.4 If at any time after the Customer has initially licensed any of the Software
from CSS, the Customer's right to receive Support and Maintenance, or
comparable services, from CSS under this Agreement or a comparable
agreement has lapsed for any reason whatsoever, voluntarily or other se
and the Customer wishes to receive Support and Maintenance from CSS.
the Customer will pay to CSS, prior to re -instatement of Support and
Maintenance services:
all fees that would have been payable hereunder had this Agreement beep
in force during the time during which Support and Maintenance rights had
so lapsed, and
an additional fee of forty (40) per cent of the license fees which would be
payable if the Software to be subject to such Support and Maintenance
were licensed anew at CSS's then -standard license fees on the date of re-
instatement of Support and Maintenance rights.
ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS
7.1 Customer will provide, at no cost to CSS:
a) sufficient space to allow CSS personnel on the Customer's site to perform
the on-site Services acquired hereunder;
b) office supplies and services such as photocopying, facsimile and telephone
access;
c) without limiting a), education and training facilities adequate to the train ng
services acquired hereunder, including classroom space, networked PCs
(minimum 1 PC for every two training participants), networked printing
capability, computer display/projection facilities, and flip chart or
whiteboard, plus markers and other ancillary supplies;
d) subject to the security requirements of the Customer, 24 hour access to the
Customer's system via either an always -available telephone circuit or an
always available internet connection to enable CSS or its designated
representative to perform any of the obligations placed upon CSS by this
Agreement.; and
e) Symantec's Norton pcANYWHERE, Windows Terminal Services, Citrix's
MetaFrame Server or similar means, to allow dial up/intemet access and
install it to allow CSS to remotely diagnose and correct errors in the
Software and provide other Services.
7.2 Without limiting the Customer's obligations, Customer will:
a) use its best efforts to upgrade to any new Release or Version of the
Software as soon as possible after becoming aware of its availability;
b) ensure that at all times at least one current staff person of the Customer,
who is the Customer contact person named on the Cover Page and per c)
has been fully trained on the Software;
c) designate by written notice a single site and single person as the point of
contact for telephone or other contact, which site and/or person the
Customer may change upon 14 days prior notice; and
d) provide particulars of the Customer's system configuration in sufficient
detail to allow CSS to effectively provide Services hereunder.
Class Software Solutions Ltd. Support and Maintenance 11Oct02 (Terms and conditions)
Page 6 of .
%, Class
8. REPRESENTATIONS AND WARRANTIES
8.1 Insurance — CSS represents and warrants that it does and will at all times
during the tens of this Agreement maintain general liability insurance as
described in the Certificate of Insurance.
8.2 Limited Warranty of Services - CSS warrants that all services provided
hereunder will be performed in full conformity with the Agreement, with the
skill and care which would be exercised by those who perform similar
services at the time the services are performed, and in accordance with
accepted industry practice. In the event of a breach of the express
warranties contained herein and/or in the event of non-performance and/or
failure of CSS to perform the services in accordance with the Agreement,
CSS will, at no cost to Customer, re -perform or perform the services so
that the services conform to the warranties.
EXCLUSION OF OTHER WARRANTIES AND LIMITATION OF
LIABILITY
9.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES -THE WARRANTIES
SET OUT IN SECTION 8.1 AND 8.2 ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND
WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (in contract or
tort) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE
REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR
QUALITY.
9.2 NO INDIRECT DAMAGES —IN NO EVENT WILL CSS BE LIABLE TO
CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES
OR LOSSES (in contract or tort) IN CONNECTION WITH THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST PROFITS, LOST SAVINGS, OR INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES, EXCEPTING LOSS OR DAMAGE
FOR PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY
RESULTING FROM THE SOLE NEGLIGENCE OF CSS.
9.3 LIMITS ON LIABILITY - IF FOR ANY REASON, CSS BECOMES LIABLE
TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER
DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF
THE FORM OF ACTION (in contract or tort), EXCEPTING LIABILITY FOR
PERSON INJURY OR DAMAGE TO TANGIBLE PROPERTY, INCURRED
IN CONNECTION WITH THIS AGREEMENT, THEN:
A) THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES, INJURY,
AND LIABILITY INCURRED BY CUSTOMER AND ALL OTHER PARTIES
IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO AN
AMOUNT EQUAL TO THE CHARGES PAID TO CSS FOR THE
SERVICES WHICH GAVE RISE TO THE CLAIM FOR DAMAGES; AND
B) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
PROCEEDING AGAINST CSS ARISING OUT OF THIS AGREEMENT OR
RELATING TO RELEASES OR SERVICES MORE THAN TWO YEARS
AFTER THE CAUSE OF ACTION HAS ARISEN.
9.4 SEPARATE ENFORCEABILITY - SECTIONS 9.1, 9.2 AND 9.3 ARE TO
BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE
INDIVIDUALLY ENFORCEABLE.
10. TERM
10.1 Term - The term of this Agreement will commence on the Support Start
Date and, subject to termination as provided herein, will continue until the
following Support Renewal Date, after which it will be automatically
renewed for subsequent one year terms on the same terms and conditions
as set out herein (with the exception of the fees payable which may be
revised by CSS in accordance with this Agreement) upon CSS rendering
an invoice therefor unless terminated by the Customer at least ninety (90)
days prior to the Support Renewal Date upcoming from time to time.
11. TERMINATION
11.1 Termination - This Agreement will terminate:
a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and fails to
remedy the default within 30 days after receiving written not ce thereof from
the non -defaulting party;
at the option of either party if the other party becomes insolvent or bankrupt
or makes an assignment for the benefit of creditors, or if a receiver or
trustee in bankruptcy is appointed for the other party, or if any proceeding
in bankruptcy, receivership, or liquidation is instituted against the other
party and is not dismissed within 30 days following commencement
thereof;
at CSS' option upon the expiry of sixty (60) days following issuance by
CSS of an invoice to the Customer for fees payable under th s Agreement
and such invoice remaining unpaid, provided that CSS has prior to
terminating under this provision provided the Customer with at least ten
(10) days' prior written notice of such non-payment, which minimum 10 -day
period may expire before, simultaneously with, or after the sixty day period
d) at either party's option if the other party assigns or attempts to assign this
Agreement other than as expressly permitted by this Agreement;
provided that these rights of termination will be in addition to all other rights and
remedies available to the parties for any breach or default hereunder.
11.2 Suspension of Obligations - If either party should default in the
performance or observance of any of its obligations hereunder, then, in
addition to all other rights and remedies available to the non -defaulting
party, the non -defaulting party may suspend performance and observance
of any or all its obligations under this Agreement, without liability, until the
other party's default is remedied, but this Section will not permit the
Customer to suspend its obligation to make payments owing in respect of
Support and other Software Services.
12. GENERAL
12.1 Complete Agreement — This Agreement, as modified and affected by
CSS's standard Software license fees and the terms of any agreement
between CSS and the Customer relating to licensing of Software (as
opposed to the mere provision of Software, to which this Agreement relates
in respect of Releases and Versions), is the complete and exclusive
statement of the Agreement between the parties with respect to the subject
matter contained herein and supersedes and merges all prior
representations, proposals, understandings and all other agreements, oral
or written, express or implied, between the parties relating to the matters
contained herein. This Agreement may not be modified or altered except
by written instrument duly executed by both parties.
12.2 Force Majeure - Dates or times by which either party is required to perform
under this Agreement excepting the payment of any fees or charges due
hereunder will be postponed automatically to the extent that any party is
prevented from meeting them by causes beyond its reasonable control.
12.3 Notices - All notices and requests in connection with this Agreement will be
given or made upon the respective parties in writing and will be deemed
given as of the third day following the day the notice is faxed, proved ng
hardcopy acknowledgment of successful faxed notice transmiss on s
retained. Notice may also be deposited in the Canadian mails(or if the
Customer is resident outside Canada and is rendering the notice. in the
mails of that country), postage pre -paid, certified or registered, return
receipt requested, and addressed to the parties as indicated on the face of
this Agreement:
12.4 Governing Law - This Agreement and performance hereunder will be
governed by the laws applicable in the jurisdiction where the Software is
situated, excepting in the case of Louisiana when the laws of Californ;a wil
apply, or in the case of Quebec when the laws of Ontario, Canada wall
apply.
12.5 Non -Assignability - This Agreement is not assignable by the Customer and
any assignment, purported assignment or attempt to assign by the
Customer will be a material breach of this Agreement and will further be
void. CSS may assign its Support or Maintenance obligations under this
Agreement to CSS's system integrators or resellers.
12.6 Survival - Sections 6.4, 9 and 12 will survive termination and expiration of
this Agreement.
Class Software Solutions Ltd. Support and Maintenance 110ct02 (Terms and conditions) Page 7 of
l
Class Exhibit C
300-6400 Roberts Street I Burnaby BC I V5G 4C9
General Software Services Agreement
This document (the "Agreement"), consisting of:
a. this cover page ("Cover Page"),
b. the attached table of Services ("Services Table");
c. the attached Terms and Conditions of CSS General Software Services Agreement ("Terms and
Conditions"); and
d. the attached form of Certificate of Insurance ("Certificate of Insurance")
constitutes the agreement between the undersigned customer ("Customer") and Class Software
Solutions Ltd. ("CSS") whereby, CSS and the Customer hereby agree that, CSS will provide to the
Customer the Services described in this Agreement, for prices and at rates as described in the Services
Table as modified pursuant to the Terms and Conditions. Any apparent contradiction among this Cover
Page, the Terms and Conditions, the Services Table and/or the Certificate of Insurance is to be resolved
by giving priority to the Terms of Conditions, followed by the Cover Page, followed by the Services Table,
and finally the Certificate of Insurance.
The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by
this Agreement.
Designated Customer contact
Authorized Signatory person/CSS System Administrator
Full Legal Customer Name and site; if more than one, provide all
Address Date
Facsimile
Class Software Solutions Ltd.
Authorized Signatory Date
(The remainder of this page is intentionally BLANK)
+ 1 800 661 1:90
Class
Services Table
Pre -Agreed Services
A. Pre -Project Planning and Documentation
Includes the following services generally.
AJ. Payment Processing Set -Up
A.ii. Progress Reporting
IA.iii. Project Gantt Chart– milestones and staff resources
IA.iv. Report Definitions
IB. Implementation and Training (Web-Based(OffSite)
IB.i. Database and CSS Software Installation
IB.ii. CSS Software training
C. Implementation and Training (On -Site)
C.i. Database and CSS Software Installation
CA. CSS Software training
D. Professional Business Services (Onsite)
D.i. Business Process Re -Engineering
ID.ii. Cash Handling and Audit Security Assessment
ID.iii. Fit Analysis
ID.iv. Project Management
D.v. System and Procedures Audit
IE. Technical Services (Onsite)
JEJ. Database Services
JEJi. Network Services
IE.iii. Crystal Reports Services
IE.iv. Thin Client Services
(PLUS AIRFARE)
(PLUS AIRFARE)
(PLUS AIRFARE)
Rate per Day Number of Days
$1000 1
$1000
$1000
$1000 6
$1000
$1500 j
$1500
$1500 2
$1500
$1500
$1750
$1750
$1750
$1750
IE.v. Web Customization Services $1750
F. Database Administration Services
IF.i.
ORACLE database
Vii.
MS SQL database
hr
IG.
Various Service Rates (PLUS AIRFARE, if applicable)
I RATES PER
from CSS -min
$500
HOUR
$250/incident up
G.i.
Report Customization & Query Support
$200 for first hour
1$150/hour
hr
NOTE THAT RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER THAN
Totals
after 15t
GA.
Other support relating to CSS Software
$250/incident up
AIRFARE
Class Software Solutions Ltd. General Software Services Agreement 14Sep01 (Services table)
Total
$1000
$6000
$3000
$10,000
Page 2 of 4
to 1 hr
$125/hour after 15t
hr
G.ii'. Hardware Support
15% of list price of
HIW purchased
from CSS -min
$500
G.iv. Non -CSS issues i.e. relating to anything other than CSS Software and Hardware
$250/incident up
to 1 hr
$125/hour after 15,
hr
NOTE THAT RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER THAN
Totals
AIRFARE
Class Software Solutions Ltd. General Software Services Agreement 14Sep01 (Services table)
Total
$1000
$6000
$3000
$10,000
Page 2 of 4
Class
Terms and Conditions of Class' General Software Services Agreement
1.
g)
h)
1.2
2.
2.1
a)
b)
3.
3.1
[cW'a
3.3
DEFINITIONS
Definitions - For the purposes of interpreting this Agreement, the following
terms will have the following meanings:
"Day" means eight (8) hours of work, whether provided during a single
calendar day or otherwise.
"Initial Installation " means the date upon which any of the Software has
first been installed on any server computer owned or controlled by the
Customer.
"Other Services" means Services other than Pre -Agreed Services
acquired by the Customer under this Agreement.
"Pre -Agreed Services" means Services which are expressly listed in the
Services Table as being acquired hereunder by the Customer.
"Release" means any release, update, patch, set of revisions, or
bug/permanent fix or temporary bypass solution released by CSS to its
customers generally during the term of this Agreement, which provides
enhancements and/or error corrections to the then -current Version or
Release, and where a new Version has been released and no new
Release has been released since the release of that Version, that Version
will also constitute a Release for the purpose of determining whether
Support or Maintenance is available with respect to that Version. New
Releases will be denoted by an increase to the version number to the right
of the decimal point such as from Release 1.1 to Release 1.2.
"Services" means any and all types of services which CSS provides, to
the Customer and/or to other customers of CSS, in the course of CSS'
business, including but not limited to services relating to the installation,
implementation, customization, optimization, administration, training and
troubleshooting of computers, computer software including the Software,
computer networks, databases, intemet-related equipment and
applications. .
"Software" means computer code and programs, in executable code form
only, including related data files, rules, parameters and documentation,
which have been created or licensed by CSS and subsequently licensed by
CSS to the Customer.
"Version" means a version of the Software providing a particular
functionality, while a new Version of the Software will provide
new/additional functionality and/or improvements to a previous Version.
New Versions will be denoted by a change to the version number to the left
of the decimal point such as from Version 1.0 to Version 2.0.
Headings - The headings contained in this Agreement are inserted for
convenience and do not form a part of this Agreement and are not intended
to interpret, define or limit the scope, extent or intent of this Agreement or
any provision hereof.
SERVICES TO BE PROVIDED
CSS will provide to the Customer.
all Pre -Agreed Services which the Customer hereby agrees, pursuant to
the Services Table, to acquire; and
all Other Services which the Customer from time to time agrees to acquire,
provided that no Services other than Pre -Agreed Services will be provided
by CSS unless CSS has, prior to such Services being rendered, received
confirmation from the Customer that the Customer wishes to acquire such
Services and will pay for such Services under the terms of this Agreement.
FEES AND PAYMENT
Pre -Agreed Services -The Customer will pay CSS the fees described in
the Services Table for Pre -Agreed Services.
Other Services - Upon subsequent agreement from time to time between
the Customer and CSS that the Customer will acquire Other Services, the
Customer will pay for such Other Services at the service rates in effect at
the time of provision of such Other Services, provided that the service rates
shown in the Services Table will be effective for the 6 -month period
following effective date of this Agreement, and thereafter relevant service
rates, if different from the rates contained in the Services Table, will be
provided to the Customer prior to such Other Services being rendered.
Travel Expenses — Costs and rates as described in this Agreement include
all CSS personnel travel expenses other than airfare. The Customer will
pay all airfare relating to travel of CSS personnel relating to Services
provided at the Customer's location, which airfare will unless urgency on
the part of the customer requires otherwise, be at "coach" rates .
3.4 Shipping and Handling -The Customer will pay all shipping & handling
charges, applicable sales, use, withholding and excise taxes, and any
other assessments in the nature of taxes, duties or charges however
designated on the Services rendered under this Agreement, exclusive of
taxes based on the net income of CSS.
3.5 Applicable Currency - Unless specifically stated otherwise, all prices and
amounts are in the currency of the country in which the Software is
installed.
3.6 Invoices (Delivery, Payability and Interest) - CSS will provide invoices to
the Customer for all amounts owing by Customer hereunder, such invo ces
to be provided after provision of the Services to which they relate, and
subsequently due within 30 days after receipt by the Customer. Overdue
invoices shall bear interest at 1 % per month, 12.56% per annum.
4. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS
4.1 Customer will provide, at no cost to CSS:
a) sufficient space to allow CSS personnel on the Customer's site to perform
the on-site Services acquired hereunder;
b) office supplies and services such as photocopying, facsimile and telephone
access;
c) without limiting a), education and training facilities adequate to the train ng
services acquired hereunder, including classroom space, networked PCs
(minimum 1 PC for every two training participants), networked printing
capability, computer display/projection facilities, and flip chart or
whiteboard, plus markers and other ancillary supplies;
d) subject to the security requirements of the Customer, 24 hour access to the
Customer's system via either an always -available telephone circuit or an
always available internet connection to enable CSS or its designated
representative to perform any of the obligations placed upon CSS by this
Agreement.; and
e) Symantec's Norton pcANYWHERE, Windows Terminal Services or Citrx s
MetaFrame Server, to allow dial up/internet access and install it to allow
CSS to remotely diagnose and correct errors in the Software and prov de
other Services.
4.2 Without limiting the Customer's obligations, Customer will:
a) use its best efforts to upgrade to any new Release or Version of the
Software as soon as possible after becoming aware of its availability;
b) ensure that at all times at least one current staff person of the Customer,
who is the Customer contact person named on the Cover Page and per c),
has been fully trained on the Software;
c) designate by written notice a single site and single person as the point of
contact for telephone or other contact, which site and/or person the
Customer may change upon 14 days prior notice; and
d) provide particulars of the Customer's system configuration in sufficient
detail to allow CSS to effectively provide Services hereunder.
5. REPRESENTATIONS AND WARRANTIES
5.1 Insurance — CSS represents and warrants that it does and will at all times
during the term of this Agreement maintain general liability insurance as
described in the Certificate of Insurance.
Limited Warranty of Services - CSS warrants that all services provided
hereunder will be performed in full conformity with the Agreement, with the skill
and care which would be exercised by those who perform similar services at the
time the services are performed, and in accordance with accepted industry
practice. In the event of a breach of the express warranties contained herein
and/or in the event of non-performance and/or failure of CSS to perform the
services in accordance with the Agreement, CSS will, at no cost to Customer, re-
perform or perform the services so that the services conform to the warranties.
Class Software Solutions Ltd. General Software Services Agreement 14Sep01 (Terms and conditions) Page 3 of 4
i
o� CIaSS
6. EXCLUSION OF OTHER WARRANTIES AND LIMITATION OF
LIABILITY
6.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE WARRANTIES
SET OUT IN SECTION 5.1 AND 0 ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND
WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (in contract or
tort) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE
REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR
QUALITY, IN EFFECT REGARDING THE SERVICES.
6.2 NO INDIRECT DAMAGES — IN NO EVENT WILL CSS BE LIABLE TO
CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES
OR LOSSES (in contract or tort) IN CONNECTION WITH THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST PROFITS, LOST SAVINGS, OR INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES, EXCEPTING LOSS OR DAMAGE
FOR PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY
RESULTING FROM THE SOLE NEGLIGENCE OF CSS.
6.3 LIMITS ON LIABILITY - IF FOR ANY REASON, CSS BECOMES LIABLE
TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER
DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF
THE FORM OF ACTION (in contract or tort), EXCEPTING LIABILITY FOR
PERSON INJURY OR DAMAGE TO TANGIBLE PROPERTY, INCURRED
IN CONNECTION WITH THIS AGREEMENT, THEN:
A) THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES, INJURY,
AND LIABILITY INCURRED BY CUSTOMER AND ALL OTHER PARTIES
IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO AN
AMOUNT EQUAL TO THE CHARGES PAID TO CSS FOR THE
SERVICES WHICH GAVE RISE TO THE CLAIM FOR DAMAGES; AND
B) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
PROCEEDING AGAINST CSS ARISING OUT OF THIS AGREEMENT OR
RELATING TO SERVICES MORE THAN TWO YEARS AFTER THE
CAUSE OF ACTION HAS ARISEN.
6.4 SEPARATE ENFORCEABILITY - SECTIONS 6.1, 6.2 AND 6.3 ARE TO
BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE
INDIVIDUALLY ENFORCEABLE.
7. TERM
7.1 Term - The term of this Agreement will commence on the date of its
execution and, subject to termination as provided herein, will continue
indefinitely.
8. TERMINATION
8.1 Termination - This Agreement will terminate:
a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and fails to
remedy the default within 30 days after receiving written notice thereof from
the non -defaulting party;
b) at the option of either party if the other party becomes insolvent or bankrupt
or makes an assignment for the benefit of creditors, or if a receiver or
trustee in bankruptcy is appointed for the other party, or if any proceeding
in bankruptcy, receivership, or liquidation is instituted against the other
party and is not dismissed within 30 days following commencement
thereof;
c) at CSS' option upon the expiry of sixty (60) days following issuance by
CSS of an invoice to the Customer for fees payable under this Agreement
and such invoice remaining unpaid, provided that CSS has prior to
terminating under this provision provided the Customer with at least ten
(10) days' prior written notice of such non-payment, which minimum 10 -day
period may expire before, simultaneously with, or after the sixty day period,
d) at either party's option if the other party assigns or attempts to assign this
Agreement other than as expressly permitted by this Agreement;
provided that these rights of termination will be in addition to all other rights and
remedies available to the parties for any breach or default hereunder.
8.2 Suspension of Obligations - If either party should default in the
performance or observance of any of its obligations hereunder, then, in
addition to all other rights and remedies available to the non -defaulting
party, the non -defaulting party may suspend performance and observance
of any or all its obligations under this Agreement, without liability, unt I the
other party's default is remedied, but this Section will not permit the
Customer to suspend its obligation to make payments owing in respect of
Support and other Software Services.
9. GENERAL
9.1 Complete Agreement — This Agreement, as modified and affected by
CSS's standard Software license fees and the terms of any agreement
between CSS and the Customer relating to licensing of Software (as
opposed to the mere provision of Software, to which this Agreement relates
in respect of Releases and Versions), is the complete and exclusive
statement of the Agreement between the parties with respect to the subject
matter contained herein and supersedes and merges all prior
representations, proposals, understandings and all other agreements, oral
or written, express or implied, between the parties relating to the matters
contained herein. This Agreement may not be modified or altered except
by written instrument duly executed by both parties.
9.2 Force Majeure - Dates or times by which either party is required to perform
under this Agreement excepting the payment of any fees or charges due
hereunder will be postponed automatically to the extent that any party is
prevented from meeting them by causes beyond its reasonable control.
9.3 Notices - All notices and requests in connection with this Agreement will be
given or made upon the respective parties in writing and will be deemed
given as of the third day following the day the notice is faxed, providing
hardcopy acknowledgment of successful faxed notice transmission is
retained. Notice may also be deposited in the Canadian mails(or if the
Customer is resident outside Canada and is rendering the notice, in the
mails of that country), postage pre -paid, certified or registered, return
receipt requested, and addressed to the parties as indicated on the face of
th s Agreement:
9.4 Governing Law - This Agreement and performance hereunder will be
governed by the laws applicable in the jurisdiction where the Software is
installed, excepting in the case of Louisiana when the laws of California w II
apply, or in the case of Quebec when the laws of Ontario, Canada will
apply.
9.5 Non -Assignability - This Agreement is not assignable by the Customer, and
any assignment, purported assignment or attempt to assign by the
Customer will be a material breach of this Agreement and will further be
void. CSS may assign its obligations under this Agreement to CSS's
system integrators or resellers.
Survival - Sections 6 and 9 will survive termination and expiration of this
Agreement
Class Software Solutions Ltd. General Software Services Agreement 145ep01 (Terms and conditions) Page 4 Of 1
Exhibit D
Class Pricing/Estimate Form
David Donery Phone: (415) 485-3079
City of San Rafael Fax: (415) 485-3186
1400 Fifth Avenue Email: dave.donery@ci.san-rafael.ca.us
P.O. Box 151560 Incident: 104155
San Rafael, CA 949151560 Purchase Order: Required
CLASS SOFTWARE MODULES
Payment Processing Server (Credit, Debit, & EFT)
i..:-3. - pCONNEyT
Internet Logins (25 concurrent users per license)
Internet Program Query & Registration
MAP
4 - REPORTINQ VE LVi n§
Total License Cost
Annual -Maintenance Cost .
CONSULTING AND TRAINING
_..-' . '----......__...................... ....-'-- - .... .. ...
1 $5,000
1 $5,000
1 $5,000
1 $2,500
Pre -Project Planning and Documentation (off-site) 1
Implementation and Training Days 6
Prof. Business Svcs. Fit Analysis 2
Tgtga;,e yices Cost
$5,000
$1,250
Quoted by:
Beth Hodges
$5,000
Date:
November 18, 2003
class
Quote Expiration:
1/2/2004
$2,500
Quote Number:
18491
Class Pricing/Estimate Form
David Donery Phone: (415) 485-3079
City of San Rafael Fax: (415) 485-3186
1400 Fifth Avenue Email: dave.donery@ci.san-rafael.ca.us
P.O. Box 151560 Incident: 104155
San Rafael, CA 949151560 Purchase Order: Required
CLASS SOFTWARE MODULES
Payment Processing Server (Credit, Debit, & EFT)
i..:-3. - pCONNEyT
Internet Logins (25 concurrent users per license)
Internet Program Query & Registration
MAP
4 - REPORTINQ VE LVi n§
Total License Cost
Annual -Maintenance Cost .
CONSULTING AND TRAINING
_..-' . '----......__...................... ....-'-- - .... .. ...
1 $5,000
1 $5,000
1 $5,000
1 $2,500
Pre -Project Planning and Documentation (off-site) 1
Implementation and Training Days 6
Prof. Business Svcs. Fit Analysis 2
Tgtga;,e yices Cost
$5,000
$1,250
$1,000 $1,000
$1,000 $6,000
$1,500 $3000
__.._- ............... . _.........--...--...._-$10,000 ,
QTotals
Total Software Cost $17,500
Total Maintenance Cost $4,375
Total Services Cost $10,000
Total 3`d Party Hardware/Software Cost $0
Grand Total $31,875
Please Note
1. Sales taxes, where applicable, are not included and prices are in the currency of the country of installation (subject to change without
notice).
2. Hardware, operating system, 3rd party software and site preparation are not included unless otherwise noted.
3. Annual software maintenance is 25% of prevailing list (min. $1500/yr).
4. Maintenance Accreditation and Internet Discounts, as well as Extended Support options are available and outlined in the Software Services
Agreement
5. Pre -Project planning and Documentation fees are $1,000 per day for off-site services.
6. On-site Implementation and Training Services are $1,000 per day exclusive of airfare, five (5) participants per class. Additional participants
$100 each to a maximum of ten (10).
7. On-site Professional Services are $1,500 per day exclusive of airfare.
8. On-site Technical Services are $1,750 per day exclusive of airfare.
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$5,000
$1,250
$5,000
$1,250
$2,500
$625
.CCF h
$17,500
$1,000 $1,000
$1,000 $6,000
$1,500 $3000
__.._- ............... . _.........--...--...._-$10,000 ,
QTotals
Total Software Cost $17,500
Total Maintenance Cost $4,375
Total Services Cost $10,000
Total 3`d Party Hardware/Software Cost $0
Grand Total $31,875
Please Note
1. Sales taxes, where applicable, are not included and prices are in the currency of the country of installation (subject to change without
notice).
2. Hardware, operating system, 3rd party software and site preparation are not included unless otherwise noted.
3. Annual software maintenance is 25% of prevailing list (min. $1500/yr).
4. Maintenance Accreditation and Internet Discounts, as well as Extended Support options are available and outlined in the Software Services
Agreement
5. Pre -Project planning and Documentation fees are $1,000 per day for off-site services.
6. On-site Implementation and Training Services are $1,000 per day exclusive of airfare, five (5) participants per class. Additional participants
$100 each to a maximum of ten (10).
7. On-site Professional Services are $1,500 per day exclusive of airfare.
8. On-site Technical Services are $1,750 per day exclusive of airfare.
Page 1
9. Customer requires a modem (USR 28,800 V.34bis or better), comm software and dedicated phone line for support.
10. A dedicated database server, as well as a Windows server is highly recommended for each of the IVR and Internet (plus MS IIS) modules.
11. Class ships on CD ROM.
12. A full set of manuals is provided on the CD provided with each system.
13. Internet Services require database access components, priced separately by database.
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