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HomeMy WebLinkAbout*AGMT - Automated Environments SERVICES AGREEMENT FOR AUTOMATED ENVIRONMENTS' LICENSED SOFTWARE APPLICATIONS This Services Agreement is entered into, effective as of --- -a - � - ��- , by and between City of Seal Beach (hereinafter referred to as Buyer), whose address is 211 Eighth Street, Seal Beach, Califomia, 90740, USA and Automated Environments (hereinafter referred to as AE), whose address is 5316 Swindon Road, Rocklin, California, 95765, USA Whereas, Buyer has obtained a non - exclusive license to use AE Licensed Software Applications and related user documentation and has agreed to the terms and conditions of the End -User License Agreement as was presented to Buyer for acceptance upon installation of the AE Licensed Software Applications. Whereas, Buyer desires that AE provide certain consulting services on an as- needed basis, including services relating to the design, development, and time and material based maintenance related to AE Licensed Software Applications; Whereas, both the Buyer and AE desire to set forth in writing the terms and conditions of their dealings, including rights as to AE Programs; In consideration of the agreements herein contained, the parties hereto agree as follows: ARTICLE 1.0 DEFINITIONS. In addition to terms elsewhere defined in this Agreement, the following defined terms shall have the meaning set forth in this Article for the purposes of this Agreement. 1. AE Personnel: All persons engaged from time to time as officers, employees, agents or independent contractors of AE. 2. AE Programs: Software works created specifically for this Agreement. These works include modifications to AE Licensed Software Applications described in the End -User License Agreement and/or originally created software which includes software programs or components or any documentation or compilations or derivative works prepared by AE along with any and/or all associated Error Corrections. 3. Agreement: This Services Agreement and all Attachments and Exhibits, which are incorporated herein by this reference. 4. Buyer: City of Seal Beach 5. Buyer's Equipment: The Server Computer(s), Client Computers, including all memory, disks, terminals, printers, communications, operating systems, compilers, etc. on which the Software System will be installed, operated and maintained. 6. Buyer's Facilities: The space, environment, and other physical attributes of the Buyer's locations, provided and to be used with the installation, operation and maintenance of the AE Programs. 7. Error Correction: Either a software modification or addition that, when made or added to the AE Programs, establishes material conformity of the AE Programs to the functional specifications, or a procedure or routine that, when observed in the regular operation of the AE Programs, eliminates the practical adverse effect on Buyer of such nonconformity. 8. Server Computer(s): The computer(s) that store and process the Licensed Programs and data for the database server and/or web server. 9. Client Computer: One or more single computers that are connected to the Server Computers that allow a user to execute the Licensed Programs which process data that is retrieved and stored on the Server Computers. ARTICLE 2.0 SERVICES. 1. On the terms and conditions set forth herein, the Buyer hereby engages AE to perform the duties set forth in the attached Confidential & Proprietary Information -- 02/01/2001 Services Agreement Page - 1 S7296 \0002 \640710.3 • Exhibit A during the term hereof, on an as- needed basis, and AE hereby accepts such engagement. Unless otherwise mutually agreed, all services shall be performed at AE's facilities. AE agrees to use its best efforts, at a level consistent with persons having a similar level of education, experience, and expertise in the software industry, in the performance of the services called for hereunder. AE will provide Buyer these services only after receiving prior written approval from Buyer's authorized personnel. ARTICLE 3.0 OBLIGATIONS OF BUYER 1. Buyer shall grant to AE such access to Buyer's Facilities, all parts of the AE Programs situated thereon, and all Buyer's Facilities and Buyer's Equipment as may be reasonably necessary for AE to perform its obligations under this Agreement. Access to Buyer's Facilities shall be subject to Buyer's customary site access requirements. AE shall cause all of its employees and agents performing work on Buyer's Facilities to observe all rules and regulations therein effect. 2. Buyer shall be responsible for procuring, installing, and maintaining all Buyer's equipment, telephone lines, communications software, Internet connections, e-mail connections and other hardware (other than the hardware used by AE internally to perform its obligations under this Agreement) necessary for AE to access the AE Licensed Software Applications in order to obtain from AE the services called for by this Agreement. 3. Buyer shall make timely payments as defined in ARTICLE 6.0. ARTICLE 4.0 TERM OF AGREEMENT. 1. The term of this Agreement shall be for an initial period of one year from the date first above written. Thereafter, the Agreement Term shall automatically renew for successive periods of one year each unless and until terminated pursuant to ARTICLE 12.0 hereof. The Buyer anticipates that it will require AE's services as specified in Exhibit A. However, the actual services shall consist of specific tasks or results to be achieved and shall be performed at mutually agreeable times on an as- needed basis. AE will not provide any services without written notice from Buyer authorizing AE to provide services. 2. Buyer may terminate the performance of any services ordered under this Agreement for its own convenience at any time upon written notice to AE. In the event of such termination, Buyer will, as its sole and exclusive obligation, pay AE as provided in ARTICLE 6.0 of this Agreement for services rendered up to AE's receipt of termination notice. ARTICLE 5.0 INDEPENDENT CONTRACTOR. 1. AE agrees that it shall be acting as an independent contractor and shall not be considered or deemed to be an agent, joint venture, or partner of the Buyer. AE shall have no authority to contract for or bind the Buyer in any manner and shall not represent itself as an agent of the Buyer or as otherwise authorized to act for or on behalf of the Buyer. ARTICLE 6.0 FEES AND CHARGES. 1. Buyer shall pay AE its fees and charges based on the rate schedule set forth in Exhibit A hereto. The rates for AE Personnel will not be affected by the location where the services are performed. AE reserves the right to change its rate schedule from time to time, provided that no such change will be effective until at least sixty (60) days after AE has given Buyer written notice of such change. Any rate increase will not apply to purchase orders already placed by Buyer. 2. Buyer shall pre -pay AE or the mutually agreed designated vendor for actual and reasonable transportation and lodging expenses. Buyer shall reimburse AE for other expenses including meals related to travel and modem related telephone expenses incurred by AE in rendering services to Buyer under this Agreement. AE shall conform to standard expense and reimbursement policy, and shall provide backup documentation as called for by Buyer. AE shall not undertake travel expenses without receiving prior notice from Buyer's authorized personnel. 3. AE shall invoice Buyer on the first day and sixteenth day of each month for all fees and charges accrued, and all reimbursable expenses incurred, and Buyer shall pay the invoiced amount within thirty (30) days of invoice date. ARTICLE 7.0 NON - EMPLOYMENT OF AE EMPLOYEES. 1. For twelve (12) months after any employee's termination from AE (whether Voluntary or Involuntary), the Buyer, its majority owned subsidiaries, its corporate parent or shareholders having a majority interest in Buyer and such corporate parent's or Confidential & Proprietary Information -- 02/01/2001 Services Agreement Page - 2 S7296 \0002 \640710.3 shareholder's majority owned subsidiaries or companies agree not to employ a former AE employee without written consent of AE, which employment shall also include contracting either directly or through third party sources. Damages for such employment shall be set at Fifty Thousand Dollars ($50,000) per occurrence. ARTICLE 8.0 PROPRIETARY'RIGHTS. 1. To the extent that AE provides Buyer with any AE Programs, Buyer may reproduce, install, use, maintain and support the AE Programs on the Buyer's Equipment at the Buyer's Facilities in a manner consistent with the requirements of this Agreement, for purposes of serving the Buyer's internal business needs. Buyer may not use or copy the AE Programs, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized in this Agreement or as authorized in writing by AE. 2. The AE Programs are and shall remain the sole property of AE, regardless of whether Buyer, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its development, or paid AE for the use of the work product. Buyer shall from time to time take any further action and execute and deliver any further instrument, including documents of assignment or acknowledgment, that AE may reasonably request in order to establish and perfect its exclusive ownership rights in such works. Buyer shall not assert any right, title, or interest in such works, except for the non - exclusive royalty free perpetual license granted to Buyer at the time of its delivery or on -site development. ARTICLE 9.0 GRANT OF LICENSE. 1. Subject to compliance by Buyer with the terms hereof, AE hereby grants to Buyer, a perpetual, personal, non - exclusive, non - assignable (except as provided for in the End -User License Agreement) license (without the right of sub - license), to: a. Reproduce, install, use, maintain and support the AE Programs on Buyer's Equipment at Buyer's Facilities in support of the internal business activities of Buyer; and b. Use any associated documentation provided by AE only in conjunction with the AE Programs. ARTICLE 10.0 CONFIDENTIALITY. 1. Each party acknowledges that all material and information which has or will come into the possession or knowledge of each in connection with this Agreement or the performance hereof, consists of confidential and proprietary data, whose disclosure to or use by third parties will be damaging. Both parties, therefore, agree to hold such material and information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to employees requiring such information, and not to release or disclose it to any other party. 2. It is understood that in the course of automating the Buyer's business, that certain proprietary information will be disclosed to AE. AE will not disclose any confidential information regarding the Buyer's employees, clients, financial data or method of doing business. However, in the course of doing business, AE must incorporate programming methods of a similar nature on various applications for a variety of its clients. This non - disclosure of information will in no way apply to the similarity of programming and systems techniques that are and may be employed by AE to satisfy its other customers. ARTICLE 11.0 SCOPE OF AGREEMENT. 1. This Agreement is intended by the parties hereto to be the final expression of their agreement, and it constitutes the full and entire understanding between the parties with respect to the subject hereof, notwithstanding any representations, statements, or agreements to the contrary heretofore made. This Agreement may be amended only in a writing signed by the parties to this Agreement. 2. For purposes of enforcing this Agreement, all Articles of this Agreement, except ARTICLE 6.0, FEES AND CHARGES hereof, shall be construed as covenants independent of one another and as obligations distinct from all other contracts and agreements between the parties hereto. ARTICLE 12.0 TERMINATION. 1. This Agreement may be terminated by either party upon the expiration of the then - current term of this Agreement, Confidential & Proprietary Information — 02/01/2001 Services Agreement Page - 3 S7296 \0002 \640710.3 provided that at least thirty (30) days prior written notice is given to the other party. Notwithstanding the above, AE may terminate at any time due to nonpayment by Buyer and the Buyer shall be obligated to compensate AE at the rate established herein for services performed prior to the date of such termination. In the event of termination for convenience by Buyer under this Article, the Buyer shall be obligated to compensate AE at the rate established herein for services performed prior to the date of such termination. ARTICLE 13.0 GOVERNING LAW. 1. This Agreement is made under, and in all respects shall be interpreted, construed, and governed by and in accordance with, the laws of the State of California. The venue for any legal actions arising on behalf of AE shall be Placer County within the State of California. Except to the extent that the provisions of this Agreement are clearly inconsistent therewith, this Agreement shall be governed by any applicable provisions of the Uniform Commercial Code. ARTICLE 14.0 REMOTE MAINTENANCE, TAMPERING 1. Buyer is permitting AE to perform certain maintenance functions through remote communications access. AE covenants that under no circumstances will it or any of its employees attempt in any manner whatsoever to electronically repossess, disable, or otherwise tamper with any of the hardware or software which is the subject of this Agreement, or to improperly or unnecessarily access or "hack" the Customer's network or any of the data stored thereon, in connection with the use of such remote communications access. AE also covenants that it will maintain all reasonable security controls over remote communications access information in order to prevent access to the Buyer's system by third parties. ARTICLE 15.0 ATTORNEYS FEES 1. If legal action is required to enforce any rights hereunder, the substantially prevailing party shall be entitled to reimbursement of all reasonably incurred legal fees and court costs from the non - prevailing party. Buyer Initials AE Initials IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written. / BUYER AUTOMATE ENVIRONMENTS By: /li( By: Z Name: by a,t. n t- -, c_. Name: Steven Alves Title: YY1 C 1 IJj 14- a- c f " Title: President X:2—C.70 Date: 2- ,1 — 0 Date: / �-- L Confidential & Proprietary Information -- 02/01/2001 Services Agreement Page - 4 S7296 \0002 \640710.3 • • EXHIBIT A SCOPE OF SERVICES The following services are provided on an on -going basis during the course of the Agreement. Service Types Analysis & Design Data Conversion On -Line Help Systems Documentation Installation Integration Programming Project Management Setup Support Training AE's standard rates are One Hundred Seventy Five Dollars per hour ($175) and shall apply to all services provided by AE under this Agreement. No work will be started by AE without prior authorization by Buyer in the form of Buyer's written purchase order. Confidential & Proprietary Information — 02/01/2001 Services Agreement Page - 5 S7296 \0002\640710.3 EXHIBIT B BUYER SPECIFIC SERVICES 1. The following services will be provided to Buyer. This section provides an estimate of the number of hours and associated costs needed to complete the specified task and is not a fix -fee contract. Services Description Hours Cost Project Management 12 $2,100 Training Services 24 $4,200 Consulting Services Totals 36 $6,300 Travel expenses to provide these services will not exceed $1,700. 2. The following optional services can be provided to Buyer at Buyer's request. This section provides an estimate of the number of hours and associated costs needed to complete the specified task and is not a fix -fee contract. Optional Services Description Hours Cost Data Conversion from previous payroll or HR software to AllianceHRMS 40 $ 7,000 For purposes of this agreement the stated cost for Data Conversion is the average cost charged most clients. This cost is subject to increase or decrease based upon the complexity of the data conversion desired. Confidential & Proprietary Information -- 02/01/2001 Services Agreement Page - 6 S7296 \0002\640710 3 • � Y r END -USER LICENSE AGREEMENT FOR AUTOMATED ENVIRONMENTS' LICENSED SOFTWARE APPLICATIONS This End -User License Agreement is entered into, effective as of ---- - '- 1— 0 1 , by and between City of Seal Beach (hereinafter referred to as Buyer), whose address is 211 Eighth Street, Seal Beach, California, 90740, USA and Automated Environments (hereinafter referred to as AE), whose address is 5316 Swindon Road, Rocklin, California, 95765, USA IMPORTANT — READ CAREFULLY: This End -User License Agreement ( "Agreement ") is a legal contract between you (a single business entity) and Automated Environments for the vendor software product identified above, which includes computer software and, as applicable, associated media, printed materials, and "online" or electronic documentation (the "Software Application "). BY CLICKING THE [ENTER] OR [ACCEPTED] ICON BELOW, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE APPLICATION. LICENSE TERMS: Automated Environments grants you a non - exclusive license to use one (1) copy of the enclosed Automated Environments Software Application as identified in Exhibit A. A license may be obtained to use the Software Application on a single computer, without networking, or you may obtain a network version. If you acquire the single computer license, you may only use the Software Application at a single location. If you acquire the network version, you may only use it for the number of concurrent users for which you have paid the license fee and on a single file server for use on a single network. The Software Application is in "use" on a computer when it is loaded into temporary memory (i.e., RAM). OTHER LIMITATIONS: You may not rent, lease, outsource or timeshare the Software Application to nor may you transfer the Software Application and accompanying written materials. You may not reverse engineer, decompile or disassemble the Software Application. You may not transfer any of your rights under this Agreement. Automated Environments or it's authorized agents may provide you with support services related -to the Software Application ( "Support Services "). Use of Support Services is governed by Automated Environments' policies and programs described in the user documentation, in "online" documentation, and/or in other Automated Environments- provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part of the Software Application and subject to the terms and conditions of this Agreement. With respect to technical information you provide to Automated Environments as part of the registration of your license to the Software Application or in connection with the Support Services, Automated Environments may use such information for its business purposes, including for product support and development. Without prejudice to any other rights, Automated Environments may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the Software Application and all of its component parts. PROPRIETARY RIGHTS: All title and copyrights in and to the Software Application (including, without limitation, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software Application), the accompanying media and printed materials, and any copies of the Software Application are owned by Automated Environments or its suppliers and is protected by copyright laws and international treaty provisions. Therefore, you may not copy the Software Application or the documentation, except that you may either (a) make one (1) copy of the Software Application solely for backup or archival purposes, or (b) transfer the Software Application to a single hard disk and keep the original solely for backup or archival purposes. You may make one (1) copy of the written materials accompanying the Software Application solely for backup or archival purposes. 1 S7296 \0002 \640711.3 ... • • I The Software Application and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions 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. Manufacturer for such purpose is Automated Environments, 5316 Swindon Road, Rocklin, California, 95765, USA. Should you decide to transmit to Automated Environments' website by any means or by any media any materials other information (including, without limitation, ideas, concepts or techniques for new or improved services or products), whether as information, feedback, data, questions, comments, suggestions or the like, you agree such submissions are unrestricted and shall be deemed non - confidential and you automatically grant Automated Environments and its assigns a non - exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same. LIMITED WARRANTY: Automated Environments warrants, for a period of ninety (90) days from the date of receipt, that the Software Application will perform substantially in accordance with the accompanying documentation and that the physical media (CD) and documentation accompanying the Software Application are free of defects in materials and workmanship. If Automated Environments receives notification within the warranty period of defects in materials or workmanship, and such notification is determined by Automated Environments to be correct, Automated Environments will replace the defective media (CD) or documentation. Automated Environments and its suppliers' entire liability and your exclusive remedy shall be, at Automated Environments' option, either (a) return the price paid for the Software Application, or (b) repair or replacement of Software Application that does not meet Automated Environments' Limited Warranty and which is returned to Automated Environments with a copy of your receipt. This Limited Warranty is void if failure of Software Application has resulted from accident, abuse, or misapplication. Any replacement of Software Application will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. These remedies are not available outside of the United States of America. DISCLAIMER OF WARRANTY: THIS SOFTWARE APPLICATION AND THE ACCOMPANYING FILES ARE PROVIDED "AS IS ". AUTOMATED ENVIRONMENTS AND IT'S SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE APPLICATION OR SUCH FILES. AUTOMATED ENVIRONMENTS AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO TITLE OR INFRINGEMENT OF THIRD -PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. In particular, there is no warranty for optional virus scanning features – the Software Application does not scan for viruses. You can run external programs that claim to perform this function. Good data processing procedure dictates that any program be thoroughly tested with non - critical data before relying on it. The user must assume the entire risk of using the Software Application. ANY LIABILITY OF AUTOMATED ENVIRONMENTS FOR A DEFECTIVE COPY OF THE SOFTWARE APPLICATION WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE SOFTWARE APPLICATION WITH ANOTHER COPY OR REFUND OF THE INITIAL LICENSE FEE AUTOMATED ENVIRONMENTS RECEIVED FROM YOU FOR THE DEFECTIVE COPY OF THE PRODUCT. IN NO EVENT WILL AUTOMATED ENVIRONMENTS OR ITS' SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN AUTOMATED ENVIRONMENTS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to you. INDEMNIFICATION: Automated Environments represents that it has secured all necessary licenses, consents or approvals to use the components of the Software and to sell the Software under its name. Automated Environments covenants to defend, indemnify and hold Buyer harmless of any loss, claim or liability in any way related to a claim that Buyer is violating federal, state or local laws, or any contractual provisions, relating to trade names, licenses, franchises, patents or other means of protecting interests in products or inventions. Automated Environments shall bear all costs arising from the use of patented, copyrighted, trade secret or 2 S7296 \0002 \640711.3 • trademarked materials, equipment, devices or processes used on or incorporated in the Software. In case such materials, equipment, devices or processes are held to constitute an infringement and their use is enjoined, Automated Environments, at its expense shall: (a) secure for Buyer the right to continue using the Software by suspension of any injunction or by procuring a license or licenses for Buyer; or (b) modify the Software so that it becomes non - infringing; or (c) remove the Software and refund all sums paid therefore without prejudice to any other rights of Licensee. These covenants shall survive the termination of this Agreement and is not subject to the limitations of warranty or liability set forth herein. CONFIDENTIALITY: Buyer agrees that neither Buyer, its agents nor its employees shall use, make available, make known, divulge or communicate any information with respect to the Software Application which might enable copying all or any portion of the Software Application or the development of a similar computer program or system. Buyer agrees to take all appropriate action to protect the confidential and proprietary information included in the Software Application, including appropriate instructions to its employees. Title to and all proprietary rights in the Software Application, including all modifications, and documentation shall remain exclusively with Automated Environments. Y2K WARRANTY: Automated Environments hereby represents and warrants that the software is and will remain year 2000 compliant. For purposes of this warranty, year 2000 compliant means that the Software is designed to be used prior to, during, and after the calendar year 2000 a.d., and that the products: (1) will not provide invalid or incorrect results or abnormally end or fail to function as a result of any date data; (2) will correctly differentiate between years, in different centuries, that end in the same two digits, and will accurately process date /time data (including, but not limited to, calculating, comparing, sorting, and sequencing) from, into, and between the 20th, 21st and 22nd centuries, including leap year calculations; and (3) will provide that all date - related user and data interface functions, including input and output functions, and data fields include an indication of the century. The foregoing representations and warranties are subject to the limitation that any computer system (whether hardware, software, or firmware) which must be used by Buyer in combination with the products is capable of accurately providing exchanging year 2000 compliant data with the software. The remedies available to Buyer under this warranty shall include repair or replacement, at Automated Environments' sole expense, of any software whose non - compliance with this warranty is discovered and made known by Buyer to Automated Environments in writing within ninety (90) days after discovery of non - compliance. This warranty shall survive the expiration or termination of this contract and is not subject to the limitations of warranty or liability set forth herein. Nothing in this warranty shall be construed to limit any rights or remedies Buyer may otherwise have under this contract with respect to defects other than year 2000 non - compliance. GENERAL PROVISIONS: This Agreement shall be governed by the laws of the State of California. Any action hereunder shall be brought only in the County of Placer in the State of California. If any provision is found invalid or unenforceable, it will not affect the validity of the balance of this Agreement. If any remedy is determined to have failed of its essential purpose, all limitations and exclusion of damages set forth shall remain in full force and effect. This Agreement is the complete and exclusive agreement between parties and supersedes all other communications relating to the Software Application. This Agreement may only be modified in writing signed by Buyer and a specifically authorized representative of Automated Environments. All rights not specifically granted in this Agreement are reserved by Automated Environments, Inc. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written. BUYER / AUTOMAT D • VIRONMENTS By: By: Name: jib o Gi IGi F 114e, h ✓' C_ Name: Steven Alves Title: yvtd4 ✓Y1 C4 J (Gt KC Title: President Date: A/ `0 / Date: 3 S7296 \0002\640711.3 r y( • • Exhibit A Licensed Software AllianceHRMS Software 150 Active Employee License — Network Version — 4 Concurrent Users AllianceHR, Alliance Benefits, AllianceRecruit and Alliance Data Exchange Modules $12,995 PAYMENT TERMS Payment in full ($12,995) is due at time of agreement signing. 4 57296 \0002 \640711.3 ANNUAL MAINTENANCE AGREEMENT FOR AUTOMATED ENVIRONMENTS' LICENSED SOFTWARE APPLICATIONS. This Annual Maintenance Agreement is entered into, effective as ofd (— 0 ��- - by and between City of Seal Beach (hereinafter 'referred to as Buyer), whose address is 211 Eighth Street, Seal Beach, California, 90740 USA and Automated Environments (hereinafter referred to as AE), whose address is 5316 Swindon Road, Rocklin, California, 95765, USA Whereas, Buyer has obtained a non - exclusive license to use AE Licensed Software Applications and related user documentation and has agreed to the terms and conditions of the End -User License Agreement as was presented to Buyer for acceptance upon installation of the AE Licensed Software Applications. Whereas, AE desires to offer Buyer certain services with respect to the AE Licensed Software Applications on the terms and conditions set forth herein; In consideration of the agreements herein contained, the parties hereto agree as follows: ARTICLE 1.0 DEFINITIONS. In addition to terms elsewhere defined in this Agreement, the following defined terms shall have the meaning set forth in this Article for the purposes of this Agreement. 1. AE Licensed Software Applications: The AE Licensed Software Applications described in EXHIBIT A hereto, including any AE Software Programs offered to Buyer under this Agreement. 2. AE Software Programs: Any and all software works created specifically for this Agreement. These works include Enhancements, Error Corrections, Releases, Upgrades or any software, including any new software programs or components, or any compilations or derivative works prepared by AE. 3. Agreement: This Annual Maintenance Agreement and all Attachments and Exhibits, which are incorporated herein by this reference. 4. Agreement Term: An initial period of one year, commencing on the day of execution of this Agreement. Thereafter, the Agreement Term shall automatically renew for successive periods of one year each unless and until terminated pursuant to ARTICLE 8.0 hereof. 5. Buyer: City of Seal Beach 6. Buyer's Equipment: The Server Computers, Client Computers, including all memory, disks, terminals, printers, communications, operating systems, compilers, etc. on which the Software System will be installed, operated and maintained. 7. Buyer's Facilities: The space, environment, and other physical attributes of the Buyer's locations, provided and to be used with the installation, operation and maintenance of the Software System. 8. Enhancement: Any modification or addition that, when made or added to the AE Licensed Software Applications, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. Enhancements may be designated by AE as minor or major, depending on AE's assessment of their value and of the function added to the preexisting AE Licensed Software Applications. 9. Error: Any failure of the AE Licensed Software Applications to conform in all material respects to the documentation for the AE Licensed Software Applications published from time to time by AE. However, any nonconformity resulting from Buyer's misuse or improper use of the AE Licensed Software Applications or combining or merging the AE Licensed Software • Applications with any hardware or software not authorized by AE to be so combined or merged, shall not be considered an Error. Confidential & Proprietary Information -- 02/01/2001 Annual Maintenance Agreement Page - 1 S7296 \0002 \640712.3 r • • 10. Error Correction: Either a software modification or addition that, when made or added to the AE Licensed Software Applications, establishes material conformity of the AE Licensed Software Applications to the documentation, or a procedure or routine that, when observed in the regular operation of the AE Licensed Software Applications, eliminates the practical adverse effect on Buyer of such nonconformity. 11. Normal Working Hours: The hours between 8:30 A.M. and 5:00 P.M. Pacific Standard Time on the days Monday through Friday, excluding regularly scheduled holidays of AE or hours that AE personnel will not be available which Buyer will be notified of in advance in writing. 12. Releases: New version of the AE Licensed Software Applications, which new versions may include both Error Corrections and Enhancements. 13. Upgrades: New Releases of the AE Licensed Software Applications containing Error Corrections, minor Enhancements, and, in certain instances if AE so elects, major Enhancements. 14. Server Computer(s): The computer(s) that store and process the AE Licensed Software Applications and data for the database server and/or web server. 15. Client Computer: One or more single computers that are connected to the Server Computers that allow a user to execute the AE Licensed Software Applications which process data that is retrieved and stored on the Server Computer(s). ARTICLE 2.0 SCOPE OF SERVICES. 1. During the Agreement Term, AE shall render the following services in support of the AE Licensed Software Applications, during Normal Working Hours, subject to the compensation fixed for each type of service in AE's Additional Consulting Fee Schedule set forth in EXHIBIT A. a. AE shall maintain a telephone hot line, Fax line and E -mail address that allows Buyer to report system problems in use of the AE Licensed Software Applications. b. AE shall be responsible for using all reasonable diligence in correcting verifiable and reproducible Errors when reported to AE in accordance with AE's standard reporting procedures. AE shall initiate work in a diligent manner toward development of an Error Correction. Following completion of the Error Correction, AE shall provide the Error Correction through a "temporary fix" consisting of sufficient programming and operating instructions to implement the Error Correction, and AE shall include the Error Correction in all subsequent Releases of the AE Licensed Software Applications. AE shall not be responsible for correcting Errors in any version of the AE Licensed Software Applications other than the most recent Release of the AE Licensed Software Applications, provided that AE shall continue to support prior Releases superseded by recent Releases for a reasonable period sufficient to allow Buyer to implement the newest Release, not to exceed ninety (90) days from the date that the new release is supplied to the Buyer. c. AE may, from time to time, issue Upgrades to its customers. All Upgrades which are issued and become available to customers will be provided to Buyer. AE shall provide Buyer with one copy of each Upgrade, without additional charge while this Agreement is in effect. AE shall provide reasonable assistance to help Buyer install and operate each new Upgrade which assistance shall be subject to the additional consulting fees schedule set forth in Exhibit A hereto. d. Unless otherwise specified in Exhibit A, AE shall provide maintenance for multiple site licenses to a single Support Server Computer. AE's installation, support and maintenance of the AE Licensed Software Applications shall be performed on a single Server Computer designated by the Customer as the Customer's Support Computer. All services, warranties, maintenance and upgrades, with the exception of those covered under a AE Services Agreement - Document B, shall be performed on the designated Support Computer. The Buyer shall provide for the distribution and installation of the AE Licensed Software Applications and Upgrades to any remaining sites. Customers Support Computer(s): Confidential & Proprietary Information -- 02/01/2001 Annual Maintenance Agreement Page - 2 S7296 \0002 \640712.3 • Location(s): e. AE shall consider and evaluate the development of Enhancements for the specific use of Buyer and shall respond to Buyer's requests for additional services pertaining to the AE Licensed Software Applications (including, without limitation, data conversion and report- formatting assistance), provided that such assistance, if agreed to be provided, shall be subject to supplemental charges mutually agreed to by AE and Buyer and performed pursuant to a separately executed services agreement. ARTICLE 3.0 OBLIGATIONS OF BUYER 1. Buyer shall grant to AE such access to Buyer's Facilities, all parts of the AE Licensed Software Applications situated thereon, and all Buyer's Facilities and Buyer's Equipment as may be reasonably necessary for AE to perform its obligations under this Agreement. Access to Buyer's Facilities shall be subject to Buyer's customary site access requirements. AE shall cause all of its employees and agents performing work on Buyer's Facilities to observe all rules and regulations therein effect. 2. Buyer shall be responsible for procuring, installing, and maintaining all Buyer's equipment, telephone lines, communications software, Internet connections, e-mail connections and other hardware (other than the hardware used by AE internally to perform its obligations under this Agreement) necessary for AE to access the AE Licensed Software Applications in order to obtain from AE the services called for by this Agreement. 3. Buyer shall make timely payments as defined in ARTICLE 4.0. ARTICLE 4.0 FEES AND CHARGES. 1. Buyer shall pay AE its fees and charges based as set forth in EXHIBIT A hereto. AE reserves the right to change its fees and charges from time to time, limited to a maximum increase of fifteen percent (15 %) in any calendar year. 2. Buyer shall pre -pay AE or the mutually agreed upon designated vendor for actual and reasonable transportation and lodging expenses. Buyer shall reimburse AE for other expenses including meals related to travel and modem related telephone expenses incurred by AE in rendering services to Buyer under this Agreement. AE shall conform to standard expense and reimbursement policy, and shall provide backup documentation as called for by Buyer. 3. AE shall invoice Buyer on the First Day and Sixteenth Day of each month for all fees and charges accrued, and all reimbursable expenses incurred and Buyer shall pay the invoiced amount within thirty (30) days of invoice date. ARTICLE 5.0 PROPRIETARY RIGHTS. 1. To the extent that AE provides Buyer with any AE Software Programs, Buyer may reproduce, install, use, maintain and support the AE Software Programs on the Buyer's Equipment at the Buyer's Facilities in a manner consistent with the requirements of this Annual Maintenance Agreement, for purposes of serving the Buyer's internal business needs. Buyer may not use or copy the AE Software Programs or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized in this Agreement or as authorized in writing by AE. 2. The AE Licensed Software Applications and the AE Software Programs are and shall remain the sole property of AE, regardless of whether Buyer, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its development, or paid AE for the use of the work product. Buyer shall from time to time take any further action and execute and deliver any further instrument, including documents of assignment or acknowledgment, that AE may reasonably request in order to establish and perfect its exclusive ownership rights in such works. Buyer shall not assert any right, title, or interest in such works, except for the non - exclusive royalty free perpetual license granted to Buyer at the time of its delivery or on- site development. Confidential & Proprietary Information -- 02/01/2001 Annual Maintenance Agreement Page - 3 S7296 \0002 \640712.3 • a / • • • ARTICLE 6.0 DISCLAIMER OF WARRANTY 1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE AE LICENSED SOFTWARE APPLICATIONS AND AE SOFTWARE PROGRAMS OR THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ARTICLE 7.0 LIMITATION OF LIABILITY 1. In no event shall AE's cumulative liability for any claim arising in connection with this Agreement exceed the total fees and charges for services under this Agreement to AE by Buyer within the last twelve (12) months. 2. In no event shall AE be liable for any indirect, consequential, special, exemplary, or incidental damages of whatever kind and however caused, even if AE knew or should have known of the possibility of such damages. 3. No action, whether based on contract, strict liability, or tort, including any action based on negligence, arising out of the performance of services under this Agreement, may be brought by either party more than two (2) years after such cause of action accrued, except that an action for nonpayment may be brought within two years of the date of the last payment. ARTICLE 8.0 TERMINATION. 1. This Agreement may be terminated as follows: a. This Agreement shall immediately terminate upon the termination of the End -User License Agreement effective for the AE Licensed Software Applications; b. This Agreement may be terminated by either party upon the expiration of the then current term of this Agreement; or c. This Agreement may be terminated by either party if the other party has materially breached the provisions of this Agreement and has not cured such breach within thirty (30) days written notice of breach. 2. Following termination of this Agreement, AE shall immediately: a. Determine any prepayment refunds if any are due to the Buyer. The prepayment refund shall be a prorated amount based on the time period remaining from the date of termination until the last date of maintenance covered by the Customer's prepayment amount. b. Calculate all accrued fees and charges and all reimbursable expenses. AE will net the amounts calculated above and either issue an invoice or refund a payment to the Buyer based on the netted amount due. Buyer may continue to use any work supplied to Buyer by AE for the remaining term of the Software System Agreement. ARTICLE 9.0 NON- EMPLOYMENT OF AE EMPLOYEES 1. For twelve (12) months after any employee's termination from AE (whether Voluntary or Involuntary), the Buyer, its majority owned subsidiaries, its corporate parent or shareholders having a majority interest in Buyer and such corporate parent's or shareholder's majority owned subsidiaries or companies agree not to employ a former AE employee without written consent of AE, which employment shall also include contracting either directly or through third party sources. Damages for such employment shall be set at Fifty Thousand Dollars ($50,000) per occurrence. ARTICLE 10.0 GRANT OF LICENSE 1. After Grant of License for the AE Licensed Software Applications provided for under the End -User License Agreement and upon issuance to Buyer, AE shall have granted Buyer, and Buyer shall have received from AE, without further action by Buyer or AE a perpetual, personal, non - exclusive, and non - assignable license to reproduce, install, use, maintain and support the Confidential & Proprietary Information -- 02/01/2001 Annual Maintenance Agreement Page - 4 S7296 \0002 \640712.3 • 4 AE Licensed Software Applications on Buyer's Equipment at the Buyer's Facilities. ARTICLE 11.0 TERMINATION. 1. This Agreement may be terminated by either party upon the expiration of the then - current term of this Agreement, provided that at least thirty (30) days prior written notice is given to the other party. Notwithstanding the above, AE may terminate at any time due to nonpayment by Buyer and the Buyer shall be obligated to compensate AE at the rate established herein for services performed prior to the date of such termination. In the event of termination for convenience by Buyer under this Article, the Buyer shall be obligated to compensate AE at the rate established herein for services performed prior to the date of such termination. ARTICLE 12.0 CONFIDENTIALITY. 1. Each party acknowledges that all material and information which has or will come into the possession or knowledge of each in connection with this Agreement or the performance hereof, consists of confidential and proprietary data, whose disclosure to or use by third parties will be damaging. Both parties, therefore, agree to hold such material and information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to employees requiring such information, and not to release or disclose it to any other party. 2. It is understood that in the course of automating the Buyer's business, that certain proprietary information will be disclosed to AE. AE will not disclose any confidential information regarding the Buyer's employees, clients, financial data or method of doing business. However, in the course of doing business, AE must incorporate programming methods of a similar nature on various applications for a variety of its clients. This non - disclosure of information will in no way apply to the similarity of programming and systems techniques that are and may be employed by AE to satisfy its other customers. ARTICLE 13.0 REMOTE MAINTENANCE, TAMPERING 1. Buyer is permitting AE to perform certain maintenance functions through remote communications access. AE covenants that under no circumstances will it or any of its employees attempt in any manner whatsoever to electronically repossess, disable, or otherwise tamper with any of the hardware or software which is the subject of this Agreement, or to improperly or unnecessarily access or "hack" the Customer's network or any of the data stored thereon, in connection with the use of such remote communications access. AE also covenants that it will maintain all reasonable security controls over remote communications access information in order to prevent access to the Buyer's system by third parties. ARTICLE 14.0 MISCELLANEOUS 1. Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms. The parties further agree that this is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and that it supersedes and merges all prior proposals, understanding, and agreement, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument duly executed by the parties hereto. 2. In the event that any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by applicable law. 3. , Neither party may assign its rights or duties under this Agreement without the prior written consent of the other party, except to a successor of all or substantially all of its business and properties. 4. The waiver by either party of any term or condition of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or additional right that such party may hold under this Agreement. ARTICLE 15.0 GOVERNING LAW. 1. This Agreement is made under, and in all respects shall be interpreted, construed, and governed by and in accordance with, the laws of the State of California. The venue for any legal actions arising on behalf of AE shall be Placer County within the State of California. Except to the extent that the provisions of this Agreement are clearly inconsistent therewith, this Agreement shall be governed by any applicable provisions of the Uniform Commercial Code. Confidential & Proprietary Information -- 02/01/2001 Annual Maintenance Agreement Page - 5 S7296 \0002 \640712.3 L, • • • • ARTICLE 16.0 ATTORNEYS FEES If legal action is required to enforce any rights hereunder, the substantially prevailing party shall be entitled to reimbursement of all reasonably incurred legal fees and court costs from the non - prevailing party. Buyer Initials AE Initials IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as set forth below. BUYER AUTOMATED E VIRONME TS By: By: Name: I y (pr r .. ► tc: l' 2.. Name: Steven Alves Title: �VLtk I' � I(Y\ U M6 K& Title: President �� c Date: t/a Date: - /� /LC:0 Confidential & Proprietary Information -- 02/01/2001 Annual Maintenance Agreement Page - 6 S7296 \0002 \640712.3 EXHIBIT A ANNUAL MAINTENANCE FEES AE LICENSED SOFTWARE APPLICATIONS ANNUAL MAINTENANCE FEE AllianceHR, AllianceBenefits, AllianceRecruit and AllianceDataExchange $2,599 PAYMENT TERMS Payment in full ($2,599) is due at time of agreement signing. Optional Consulting Fees Schedule New Release Installation / Setup / Training $175.00/Hour Additional Consulting Services $175.00/Hour • Confidential & Proprietary Information -- 02/01/2001 Annual Maintenance Agreement Page - 7 S7296 \0002 \640712.3