7056 - Amendment 2 Executed
Docusign Transmittal Coversheet
File Name
Purchasing Contact
Contract Expiration
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
FILE 7056
7056
Cori Power
6/20/2024
1
THE STATE OF TEXAS §
§
COUNTY OF DENTON §
SECOND AMENDMENT TO CONTRACT
BY AND BETWEEN THE CITY OF DENTON, TEXAS
AND CLEVEST SOLUTIONS, INC. 7056
THIS SECOND AMENDMENT TO CONTRACT 7056 (this “Amendment”) by
and between the City of Denton, Texas (“City”) and Clevest Solutions, Inc. (“Contractor”)
to that certain contract executed on June 11, 2019, in the original not-to-exceed amount of
$288,840.03 (the “Original Agreement”); amended on September 12, 2017 in the
additional amount of $90,000 aggregating a not-to-exceed amount of $208,000 (the “First
Amendment”); (collectively, the Original Agreement and the First Amendment are the
“Agreement”) for services related to the mobile workforce management software solutions;
WHEREAS, the City deems it necessary to further expand the goods/services
provided by Contractor to the City; and
NOW THEREFORE, the City and Contractor (hereafter collectively referred to as the
“Parties”), in consideration of their mutual promises and covenants, as well as for other
good and valuable considerations, do hereby AGREE to the following Amendment, which
amends the following terms and conditions of the said Agreement, to wit:
1. The terms and conditions contained in the Software License Agreement,
together with the terms and conditions in the Support and Maintenance
Agreement, and the General Terms and Conditions are attached as Exhibit “A”
and incorporated here in for all purposes, and amend, the terms of the Contract
No. 7056 between the parties dated 6/11/19 (“Contract”). In the event of an
inconsistency or conflict in any of the provisions of the Contract and the
Software License Agreement, Support and Maintenance Agreement, and the
General Terms and Conditions the inconsistency or conflict shall be resolved
by giving precedence first to the terms of Contract, then to the documents in the
order in which they are listed: Software License Agreement, Support and
Maintenance Agreement, and the General Terms and Conditions, unless
provided otherwise by specific reference to the term of the Contract that is not
given precedence.
The Parties hereto agree, that except as specifically provided for by this Amendment, that
all of the terms, covenants, conditions, agreements, rights, responsibilities, and obligations
of the Parties, set forth in the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the City and the Contractor, have each executed this
Amendment, by and through their respective duly authorized representatives and officers
on this date_______________________________________.
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
12/28/2020
2
“CONTRACTOR”
Clevest Solutions, Inc.
By: _____________________________
AUTHORIZED SIGNATURE, TITLE
“CITY”
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: _____________________________
PURCHASING AGENT
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: __________________________________
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
obligations and business terms.
_______________ ________________
SIGNATURE PRINTED NAME
__________________________________
TITLE
__________________________________
DEPARTMENT
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
Technology Services
Drew Allen
Interim Chief Technology Officer
3
Exhibit “A”
SOFTWARE LICENSE AGREEMENT
1. DEFINITIONS
“Agreement” means the terms and conditions contained in this
Software License Agreement, together with the terms and
conditions in the Support and Maintenance Agreement,
Professional Services Agreement, the General Terms and
Conditions and the cover page to which this Software License
Agreement is attached or incorporated by reference.
“Customizations” means any customizations to the “Clevest”
software developed by Clevest on behalf of Client pursuant to
the Professional Services Agreement forming part of this
Agreement or otherwise.
“Documentation” means those technical publications and
writings in whatever form relating to the use of the Licensed
Software including, but not limited to, references, user manuals,
installation guides, systems administrator guides and technical
guides, provided or to be provided by Clevest to Client in
connection with the Licensed Software.
“Intellectual Property Rights” means inventions, patents,
copyrights, trade-marks, service marks, industrial designs,
design patents, integrated circuit topography rights, applications
for registration of any of the foregoing, and know-how, trade
secrets, confidential information, trade or business names and
any other intellectual property rights.
“License Fees” means the license fees to be paid by Client to
Clevest for use of the Licensed Software, as specified on the
cover page of this Agreement and subject to modification from
time to time in accordance with the terms of this Agreement.
“Licensed Software” means the software described on the cover
page of this Agreement and any Customizations and Upgrades,
as well as the associated Documentation.
“Maintenance and Support Fees” means the fees to be paid by
Client to Clevest for the Maintenance and Support Services.
“Maintenance and Support Services” means the maintenance
and support services purchased by Client under this Agreement.
“Object Code” means computer code that is readable and usable
by machines but not generally readable by humans without
reverse assembly, reverse compiling or reverse engineering.
“Source Code” means computer code and related system
documentation that is in human-readable form, including, but not
limited to, all comments and any procedural code such as job
control language.
“Upgrade” means a new release of, or update or enhancement
to the Licensed Software, which the Client is entitled to receive
pursuant to the terms and conditions of the Support and
Maintenance Agreement or for which the Client has paid for
outside of the terms and conditions of the Support and
Maintenance Agreement.
“Warranty Period” has the meaning provided in Section 4.1.
2. GRANT OF LICENSE
2.1 License. Subject to the terms and conditions of this Agreement,
and subject to full and timely payment of all License Fees owed
hereunder, Clevest hereby grants to Client and Client hereby
accepts, a limited, non-exclusive, non-transferable, license (the
“License”) to:
(a) use the functionality of the Licensed Software as
licensed and described on the cover page of this
Agreement only for the Line of Business specified on
the cover page of this Agreement; and
(b) make copies of the Licensed Software and
Documentation solely for non-production, archival or
backup purposes, but only if Client ensures that all
copies it makes of the Licensed Software and
Documentation under this Section include all
proprietary or intellectual property notices recorded on
the original items provided by Clevest.
2.2 Scope of use. Client will use the Licensed Software only as
permitted in this Agreement. Any additional or other use by
Client will require an additional license from Clevest and
payment of additional License Fees and, as applicable,
Maintenance and Support Fees.
2.3 Object Code only. Client acknowledges and agrees that this
Agreement does not grant Client any rights with respect to the
Source Code to the Licensed Software. Client covenants and
agrees not to translate, create derivative works of, reverse
engineer, decompile or disassemble the Licensed Software in
whole or in part. Client shall not (i) alter, modify, enhance, adapt,
re-arrange, reverse engineer, decompile, disassemble, make
works derived from the Licensed Software or attempt to generate
or access the Source Code for the Licensed Software, whether
by converting, translating, decompiling, disassembling or
otherwise, or (ii) enter or manipulate data or information within
the database underlying the Licensed Software other than via
the Licensed Software. Client shall not attempt to aggregate
users or circumvent Clevest’s licensing restrictions via technical
means, including, but without limitation, the use of any interface
between the Licensed Software and another program that
performs functionality substantially similar to the Licensed
Software.
2.4 Modification. Client may not modify the Licensed Software
without the prior written authorization of Clevest.
2.5 No sale or license by Client. Client may not sell, loan, lease,
rent, license, sublicense, grant a security interest in, distribute,
or otherwise transfer rights to or possession of the Licensed
Software in whole or in part to any person or entity, or use the
Licensed Software in any service bureau or time sharing
arrangement, facility management or third party training
arrangement or any other arrangement where Client processes
the data of a third party.
2.6 Term of license. Subject to the termination provisions in Section
7 of the License Schedule, the License granted hereunder shall
take effect as of the Effective Date and shall continue for the
initial term specified on the Exhibit “A” of this Agreement. If such
initial term is not a perpetual term, then the License shall
automatically renew for successive terms equal to the length of
the initial term, unless a party gives written notice to the other
party at least thirty (30) days before the expiration of the then-
current term advising that it wishes to terminate the License at
the end of the then-current term. In addition to any other terms
of this Agreement which may modify the License Fees payable
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
4
hereunder, Clevest may modify the License Fees for renewal
terms by providing Client with notice of any License Fee
modifications at least sixty (60) days before the expiration of the
then-current term.
2.7 Additional Software. Additional licenses of the Licensed
Software which are larger in scope, number or otherwise than as
set forth on the cover page of this Agreement shall be agreed
upon between the parties in writing, and any such additional
Licenses shall incorporate the terms and conditions of this
Agreement. Fees for additional licenses will be at the then-
current price list published from time to time by Clevest.
2.8 Ownership, protection and security. Clevest and Client
acknowledge and agree that as between Clevest and Client,
Clevest owns and will retain title and ownership of all Intellectual
Property Rights and other interests in and to the Licensed
Software and Documentation (and all copies of the Licensed
Software and Documentation) including, but not limited to, any
improvements thereto whether designed, created and/or
developed by Clevest, Client or its agents or contractors, subject
to the license rights specifically granted to Client in this License
Agreement. Client hereby assigns to Clevest any and all right,
title and interest it might have in and to any such improvements
and all Intellectual Property Rights therein.
2.9 Hardware & Third Party Software. This Agreement does not
include the provision of hardware or third party software licenses
to Client.
3. DELIVERY AND INSTALLATION
3.1 Delivery of the Licensed Software: Clevest will deliver the
Licensed Software to Client at such location as the parties will
mutually agree upon in writing.
3.2 Installation. Client shall be responsible for installing the
Licensed Software. Installation services may be purchased from
Clevest in accordance with the Professional Services Agreement
forming part of this Agreement.
4. WARRANTIES AND REMEDIES
4.1 Limited warranty for Licensed Software. Subject to Section 4.2
of this Software License Agreement, Clevest warrants that for a
period of 12 months (the “Warranty Period”) following the
Effective Date, the Licensed Software will substantially conform
to the functional specifications contained in the Documentation.
Clevest does not warrant that the Licensed Software will operate
uninterrupted or that it will be free from minor defects or errors
that do not materially affect its performance, or that the
applications and functionality contained in the Licensed Software
are designed to meet all of Client’s business requirements.
Client’s exclusive remedy and Clevest’s exclusive liability for any
breach of the warranty made in this Section 4.1 will be that
Clevest will use commercially reasonable efforts to repair or
replace the affected portion of the Licensed Software and/or the
Documentation, at Clevest’s sole cost and expense.
4.2 Restrictions. The warranty set forth at Section 4.1 of this
Software License Agreement shall not apply if: (i) the Licensed
Software is not used in accordance with the Documentation, (ii)
the performance failure of the Licensed Software is attributable
in substantial part to Client materially deviating from the
operating instructions specified by Clevest for Client’s use of the
Licensed Software; (iii) Client (other than Clevest or an
authorized agent of Clevest) has modified the Licensed
Software, (iv) the performance failure of the Licensed Software
is attributable in any way to the combination of the Licensed
Software with another product or products provided by Client
that have not been approved by Clevest or in hardware or an
operating environment that is not controlled by Clevest, or (v)
Client does not provide notice in writing to Clevest within the
Warranty Period specifying the breach of warranty in reasonable
detail.
4.3 Other warranties excluded. THE FOREGOING WARRANTIES
IN SECTIONS 4.1 AND 4.2 ARE IN LIEU OF ALL OTHER
REPRESENTATIONS, WARRANTIES OR CONDITIONS.
EXCEPT AS PROVIDED IN SECTIONS 4.1 AND 4.2, CLEVEST
MAKES NO OTHER REPRESENTATION, WARRANTY OR
CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY
EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, MERCHANTABLE
QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND THOSE ARISING BY STATUTE OR
OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR
USAGE OF TRADE WITH RESPECT TO THE LICENSED
SOFTWARE. CLEVEST DOES NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND TO
CLIENT WITH RESPECT TO ANY HARDWARE OR THIRD
PARTY SOFTWARE.
5. PAYMENT
5.1 License Fees. Client will pay to Clevest the License Fees
specified in Exhibit “A” of this Agreement, as modified from time
to time in accordance with the terms of this Agreement. Client
shall pay to Clevest the License Fee, without set-off or deduction
whatsoever, within thirty (30) days of the later of the contract
date or receipt of invoice. Client’s obligation to pay the License
Fee is unconditional and absolute.
6. INTELLECTUAL PROPERTY INFRINGEMENT
6.1 Intellectual property indemnity. Notwithstanding Section 4.3
of this Software License Agreement, Clevest will defend,
indemnify and hold harmless Client and its employees,
officers and directors against all actions, proceedings,
demands, claims, liabilities, losses, damages, judgments,
costs and expenses (including, but without limitation,
reasonable legal fees), but excluding incidental or
consequential damages suffered or incurred by Client
directly (as opposed to incidental or consequential
damages suffered or incurred by third parties who are, in
turn, seeking the same from Client, which will be covered by
the indemnity set forth in this Section), arising from any
claim asserted against Client that the Licensed Software, or
any portion thereof, infringes any United States or Canadian
copyrights, patents, trade secrets, or trade marks of any
third party, except to the extent the claim is based on:
(a) the use of a prior or modified Licensed Software
release if the infringement claim could have been
avoided by the use of a current, unmodified Licensed
Software release;
(b) a use of the Licensed Software in a manner not
contemplated by the Documentation;
(c) Client’s negligence;
(d) or
(e) the use of the Licensed Software, or any component
thereof, in combination with another product or
products provided by Client that have not been
approved by Clevest;
and provided Client gives Clevest timely notice in writing of the
institution of such claim, suit or proceeding and permits Clevest
to defend, compromise or settle the claim and provides, at
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
5
Clevest’s request and expense, all available information,
assistance and authority to so defend, compromise or settle the
claim. Clevest will have sole control of the defense of any such
claim, suit or proceeding including, but not limited to, appeals
and of all negotiations for settlement, including, but not limited
to, the right to effect the settlement or compromise thereof.
6.2 Remedies for infringement. Clevest further agrees that if Client
is prevented from using the Licensed Software due to an actual
or claimed infringement under Section 6.1 of this Software
License Agreement, or if Clevest believes the Licensed Software
so infringes, Clevest may:
(a) procure for Client, at Clevest’s expense, the right to
continue to use the Licensed Software;
(b) replace or modify the Licensed Software, at Clevest’s
expense, so as to become non-infringing, provided
that such replaced or modified version of the Licensed
Software will operate in a substantially similar manner
as the version licensed to Client immediately prior to
such replacement or modification; or
(c) terminate this License Agreement as it relates to the
infringing Licensed Software and return the portion of
the License Fees for the infringing Licensed Software
representing the remaining useful life of the Licensed
Software, calculated on a pro rata basis based on a
useful life for the Licensed Software of five years.
6.3 THIS SECTION 6 WILL CONSTITUTE CLEVEST’S ENTIRE
OBLIGATION TO CLIENT AND CLIENT’S SOLE REMEDY
WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF THE
PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS OF
THIRD PARTIES RESPECTING THE LICENSED SOFTWARE.
7. TERMINATION
7.1 Termination by Clevest. Notwithstanding anything to the
contrary in this Agreement, Clevest, by written notice to Client,
may terminate this License or suspend Clevest’s further
performance without terminating this Agreement upon the
occurrence of any of the following: (i) Client terminates or
suspends doing business; (ii) Client becomes subject to any
bankruptcy or insolvency proceeding under federal or provincial
law (unless removed or dismissed within sixty (60) days from the
filing thereof), or becomes insolvent, becomes subject to direct
control of a trustee, receiver or similar authority, or makes an
assignment for the benefit of creditors; (iii) Client fails to pay to
Clevest any amount when due hereunder and fails to remedy
such failure within fifteen (15) days after receiving written notice
thereof from Clevest, or (iv) Client commits a material breach or
failure of any of its other obligations under this Agreement and,
except for any breach of Client’s confidentiality obligations or a
breach of Clevest’s Intellectual Property Rights, has not cured
such breach (or, if the breach or failure is such that its cure would
take a longer period, has not commenced and diligently
proceeded to cure such breach or failure) within fifteen (15) days
after receiving written notice from Clevest specifying such
breach or failure.
7.2 Termination by Client. Notwithstanding anything to the contrary
in this Agreement, Client, by written notice to Clevest, may
terminate this License or suspend Client’s further performance
without terminating this Agreement upon the occurrence of any
of the following: (i) Clevest terminates or suspends doing
business; (ii) Clevest becomes subject to any bankruptcy or
insolvency proceeding under federal or provincial law (unless
removed or dismissed within sixty (60) days from the filing
thereof), or becomes insolvent, becomes subject to direct control
of a trustee, receiver or similar authority, or makes an
assignment for the benefit of creditors; or (iii) Clevest commits a
material breach or failure of any of its obligations under this
Agreement and, except for any breach of Clevest’s
confidentiality obligations, has not cured such breach (or, if the
breach or failure is such that its cure would take a longer period,
has not commenced and diligently proceeded to cure such
breach or failure) within fifteen (15) days after receiving written
notice from Client specifying such breach or failure.
7.3 Survival. Sections 5.1, 6.1, 7.4, 8.1 and 9.1 and such other
provisions as may reasonably be expected to remain in force will
survive the expiry or termination of this License or the Agreement
and will remain in full force and effect following such expiry or
termination. The expiry or termination of this License or the
Agreement will not affect the rights of any party to make a claim
for damages arising from a breach of any provision of this
Agreement which occurred prior to such expiry or termination.
7.4 Obligations on termination. Upon any expiration or termination
of this License or the Agreement, (i) Client will immediately
cease any and all use of the Licensed Software and
Documentation; (ii) Client will immediately return to Clevest or
destroy all copies of the Licensed Software and Documentation
in Client’s possession and delete any copies of the Licensed
Software stored on any of Client’s computers; and (iii) each party
will return to the other party any and all Confidential Information
of the other party provided in connection with this Agreement in
its possession or control and, upon request from the other party,
each will deliver a certificate of an officer of the party certifying
the completeness of same.
8. AUDIT
8.1 Audit. For on premise deployments, during the term of this
License and for twelve months after termination or expiry, Client
will permit Clevest and its representatives and agents to conduct
periodic audits of Client’s relevant books, records and computer
systems in order to verify Client’s compliance with the terms and
conditions of this Agreement. Such audits will be conducted at
Client’s place of business and/or where the Licensed Software
is or was located during Client’s normal business hours with
reasonable advance notice. Clevest will pay for the cost of the
audit unless Clevest reasonably determines from the audit that
Client has materially breached this Agreement, in which case
Client will reimburse Clevest for the cost of the audit. Client will
immediately pay to Clevest all additional amounts owed to
Clevest as determined by the audit, together with interest
thereon as provided for in this License Agreement. The
remedies provided to the Clevest under this Section 8 are not
exclusive and any such remedy will be in addition to and not limit
any other remedy which Clevest is entitled to seek at law, in
equity, by statute or under this Agreement.
9. GENERAL
9.1 Clevest’s General Terms and Conditions Schedule attached
hereto are part of this Software License Agreement and are
incorporated by this reference. Such General Terms and
Conditions shall survive any termination or expiry of this
Agreement.
End of Software License Agreement
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
SUPPORT AND MAINTENANCE AGREEMENT
1. DEFINITIONS
“Agreement” means the terms and conditions contained in this
Support and Maintenance Agreement, together with the terms
and conditions in the Software License Agreement,
Professional Services Agreement the General Terms and
Conditions and the cover page to which this Support and
Maintenance Agreement is attached or incorporated by
reference.
“Customizations” means any customizations to the “Clevest”
software developed by Clevest on behalf of Client pursuant to
the Professional Services Agreement forming part of this
Agreement or otherwise and shall include, without limitation,
custom reports, integrations and custom functionality or
features.
“Defect” shall mean a reproducible instance of an adverse and
incorrect functioning of the Licensed Software that impacts
Client’s ability to use a functionality described in the
Documentation, assuming proper usage of the system and
system environment.
“Documentation” means those technical publications relating
to the use of the Licensed Software including on-line help,
references, user manuals, installation guides, systems
administrator guides and technical guides, provided or to be
provided by Clevest to Client in connection with the Licensed
Software.
“Intellectual Property Rights” means inventions, patents,
copyrights, trade-marks, service marks, industrial designs,
integrated circuit topography rights, applications for
registration of any of the foregoing, and know-how, trade
secrets, confidential information, trade or business names and
any other intellectual property rights.
“Licensed Software” means the software described on the
cover page of this Agreement and any Customizations and
Upgrades, as well as the associated Documentation.
“Support and Maintenance Fees” means the support and
maintenance fees to be paid by Client to Clevest as specified
on Exhibit “A” of this Agreement and subject to modification
in accordance with the terms of this Agreement.
“Object Code” means computer code that is readable and
usable by machines but not generally readable by humans
without reverse assembly, reverse compiling or reverse
engineering.
“Sandbox” shall mean the testing environment that is used to
stage an Upgrade deployment, to be accessed by appropriate
Client users for the purpose of verifying Upgrade readiness
prior to their activation on the Production environment.
“Production” shall mean the production environment that
hosts the Licensed Software, accessed by the Client’s
operational users.
“Source Code” means computer code and related system
documentation that is in human-readable form, including all
comments and any procedural code such as job control
language.
“Upgrade” means a new release of, or update or
enhancement to the Licensed Software, which the Client is
entitled to receive pursuant to the terms and conditions of the
Support and Maintenance Agreement or for which the Client
has paid for outside of the terms and conditions of the Support
and Maintenance Agreement.
“Version” shall mean the Licensed Software product release
identification scheme generally in the form of X.Y.Z, where
X.Y represents a major release or base level version, Z
represents a minor release level.
2. INTRODUCTION
2.1 This Support and Maintenance Agreement sets forth the
terms and conditions under which Clevest will provide
maintenance and support (collectively, “Maintenance”) to
Client for the Licensed Software. All terms not otherwise
defined herein have the meanings given to them elsewhere in
this Agreement.
3. TERM AND RENEWALS
3.1 Subject to the termination provisions in Section 9 of this
Support and Maintenance Agreement, this Support and
Maintenance Agreement shall take effect as of the Effective
Date and shall continue for the initial term specified on Exhibit
“A” of this Agreement. Maintenance shall automatically renew
for successive terms of one year, unless a party gives written
notice to the other party at least thirty (30) days before the
expiration of the then-current term advising that it wishes to
terminate Maintenance at the end of the then-current term. In
addition to any other terms of this Agreement which may
modify the Support and Maintenance Fees payable
hereunder, Clevest may modify the Support and Maintenance
Fees for renewal terms by providing Client with notice of any
fee modifications at least sixty (60) days before the expiration
of the then-current term.
4. CHANGES TO SUPPORT AND MAINTENANCE TERMS
4.1 Clevest reserves the right, from time to time, to change its
standard Maintenance terms and conditions, provided that
any change to such terms and conditions will not materially
reduce the level of support set forth in this Support and
Maintenance Agreement.
5. SUPPORT AND MAINTENANCE FEES
5.1 The annual Support and Maintenance Fees are set forth on
the cover page of this Agreement, and may be modified from
time to time in accordance with the terms of this Agreement
5.2 Support and Maintenance services for the initial year of
Maintenance begin at the earlier of the start of ”User
Acceptance Testing” (UAT) as stated in the Statement of
Work, operational use of the software, or software installation
into test or production environment; and will be invoiced
concurrent with the Licensed Software. Support and
Maintenance Fees for each subsequent year of Maintenance
are due and payable when the previous year’s coverage has
ended and within thirty (30) days from Client’s receipt of a
Clevest invoice. If payment is not received in accordance with
the payment terms of this Agreement, Clevest shall have the
right to discontinue Maintenance without any liability to Client,
until such time as Client pays the applicable Maintenance fees
in full. Clevest shall have no obligation to provide Client with
Maintenance if Client has not renewed Maintenance or paid
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
7
the applicable Support and Maintenance Fees pursuant to the
agreed payment terms.
5.3. Any Customizations requested by Client may be performed at
extra cost to the Client, as described in a Statement of Work
to be mutually agreed between the parties pursuant to the
Professional Services Agreement forming part of this
Agreement. If indicated in the Statement of Work, the Support
and Maintenance Fees payable hereunder may be increased
by Clevest upon shipment of the Customization to account for
any increased Maintenance obligations of Clevest for the
Licensed Software after the deployment of any Customization.
6. DESCRIPTION OF SUPPORT AND MAINTENANCE
The following describes Clevest’s responsibilities during the term of this
Support and Maintenance Agreement. Throughout, “hours” and “days”
are counted within regular operating hours for the Clevest support
centre, excluding local holidays.
6.1 Support
(a) Clevest will provide email and telephone technical
support in response to requests from the Client’s
designated support contacts. Client may designate
up to three (3) representatives as such designated
support contacts by providing written notice to
Clevest.
(b) Telephone support hours will be during business
working days from Monday- Friday, 9:00 am – 5:00
pm Pacific Standard Time (PST) or Pacific Daylight
Time (PDT) if in effect. Email support requests will
be received anytime with responses provided
during regular support hours.
(c) Clevest technical support staff will only address
issues logged in Clevest’s support system of
record. Client will receive a unique issue number.
Issues can be reported to Clevest via telephone 1-
888-683-2942 or by email to
helpdesk@clevest.com.
(d) For Severity Level 1 issues, Clevest will respond
within one hour, on a 7/24 basis; involve other
Clevest personnel as necessary to resolve; and
escalate issues from Tier 1 to Tier 2, Customer
Care Manager, VP Client Services, COO, and CEO,
if and as required.
6.2 Support may include:
(a) Application related questions from designated
support contact points.
(b) Outage notification for application-driven outages.
(c) Maintenance of a list of System Improvement
Requests (SIRS) and Defects. SIRS are customer
suggested enhancements but do not constitute a
specific request for additional services.
(d) Target response time for acknowledgement of
receipt of support request is within 1 hour during
support hours. Target maximum response time is
next business day.
6.3 Defect Resolutions
Clevest will use commercially reasonable efforts to provide
resolution to Defects submitted by Client, pursuant to the
target resolution times detailed below.
In all cases, target resolution times are predicated on the
assumption that the reported Defects are reproducible within
Clevest’s systems environment, and that they do not involve
Defects due to third-party software and/or hardware. Defects
that are not reproducible either in Client’s or Clevest’s
environment will be monitored for further information, but it is
understood that target resolution times do not apply. Target
resolution times also do not apply for Defects that are
reproducible only in Client’s environment, but not in Clevest’s.
Depending upon the Defect, Clevest may propose to add
instrumentation to the Licensed Software to assist in
determining the nature of the Defect’s root cause to facilitate
Defect resolution. Client agrees that such instrumentation is
required as part of the problem analysis, and any delays in
approving their deployment will delay the resolution of those
Defects.
Defect resolutions that require software and/or database
changes will be provided in the form of an Upgrade, to be
delivered to the Client. Target resolution times begin when
Clevest has clarified and confirmed the Defect with Client, and
end upon the delivery of the Upgrade to the Client. Installation
of the Upgrade into the Client’s Sandbox and Production
systems is not within the scope of target resolution times and
the scope of this Support and Maintenance Agreement. The
Client shall be responsible for installation of the Upgrade into
their environments unless such work is covered under a
separate Statement of Work pursuant to the Professional
Services Agreement forming part of this Agreement.
Severity Level Clevest Target Response and Resolution
Times
Status Updates
Severity Level 1. The Defect is having a critical impact on
Client’s ability to conduct business in that the Licensed
Software is entirely inoperable, or database corruption has
occurred, and no procedural workaround exists.
Response time – 1 hour 24x7
Resolution plan– 1 day
Target resolution – 3 days
Status updates will be provided on
an ongoing basis, as required.
Severity Level 2. The Defect is having a severe impact on
Client’s ability to conduct business, however, major
business operations can continue. Procedural work-
arounds do not exist.
Response time – 1 hour during business hours
Resolution plan – 2 days
Target resolution – 10 days
Status updates will be provided
daily.
Severity Level 3. The Defect is having a moderate impact
on Client’s business that involves partial, non-critical
functionality loss. Procedural work-arounds exist.
Target resolution - future maintenance
release
None.
6.4 Version Life
All Versions of the Licensed Software that are deployed either
at the Sandbox or in Production are supported for the duration
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
8
of the Support and Maintenance Agreement, however Defect
resolution may require Client to deploy an Upgrade to a new
version of the Licensed Software.
6.5 Upgrades
Client shall be entitled to receive all Upgrades to the Licensed
Software that are released by Clevest while the Client is
paying for Maintenance.
Clevest will schedule a semi-annual software Upgrade,
incorporating resolutions to Defects and functional
enhancements. At Clevest’s sole discretion, the software
Upgrades may be skipped or deferred to allow sufficient time
to incorporate desired Defect resolutions and functionality.
If an Upgrade contains functional enhancements to modules
for which Client has not purchased a valid License or contains
new modules which Client has not purchased, Client shall not
have access to such functionality unless such modules are
purchased by Client at Clevest’s then-current prices.
Unless otherwise agreed between the parties pursuant to an
order for professional services pursuant to the Professional
Services Agreement forming part of this Agreement, Client
shall be responsible for deploying any such upgrades to the
Client’s Sandbox and Production environments, including
product and database migration. Client acknowledges and
agrees that, in the event that the Licensed Software includes
Customizations, additional professional services may be
required to test the new version of the Licensed Software so
that it functions with such Customizations, and that such
professional services are not included as part of the
Maintenance to be provided by Clevest under this Support
and Maintenance Agreement, unless this Agreement has
been specifically extended to include such Customizations.
6.6 Hosting
Clevest shall maintain a hosted environment with necessary
criteria as outlined below:
(a) Maintenance Schedule
Scheduled maintenance tasks are coordinated with
the Client to minimize disruption of major business
operations. Any planned upgrade or other service
patching process to a production environment
requires Client review and signoff as part of a policy
driven change control process. Clevest reserves
the right to perform emergency patching processes,
with Client notification as necessary, to ensure the
integrity and security of an operational
environment.
(b) Power and HVAC Service
Clevest partners with SOCII Type II certified
datacenters to meet a redundant level of both
power availability and HVAC N+1 redundancy
requirements. Onsite 24x7x365 staff along with
onsite power generators, with at least 72 hours’ fuel
supply onsite, are paired with N+1 redundant UPS
services.
(c) Network Services
Clevest partners with SOC-II Type II certified
datacenters that maintain redundant internet links
and 24x7x365 onsite
security and networking staff to monitor and
mitigate any Internet connectivity issues timely.
Internet connectivity as a result of mid-Internet
sources of faults, or Client side faults, are outside
the scope of this service commitment.
6.7 Deployment of Upgrades
For on-premise deployments, Clevest will provide Upgrades
in a format or package with sufficient instructions such that
suitably qualified Client or third party personnel can execute
and deploy the Upgrade without the direct involvement of
Clevest.
After-business hours and weekend support for deployment
either to the Sandbox or Production environments are not
included as part of the scope of this Agreement. The Client
can submit a request for additional services to Clevest which
may be negotiated as part of a Statement of Work under the
Professional Services Agreement.
6.8 Third-Party Dependencies
(a) Maintenance does not cover resolution of Defects
which result from:
Third party software or hardware
Any unauthorized modification to the
Licensed Software database schema
The combination of the Licensed Software
with another product or products provided by
Client that have not been approved by
Clevest or in hardware or an operating
environment that is not controlled by Clevest
Any non-Clevest direct modification of the
data in the database by means outside of the
Licensed Software, or
Use of the Licensed Software by Client which
is not in accordance with the Documentation.
(b) Third-party software includes (but is not limited to):
Oracle database
Microsoft Internet Explorer
Microsoft IIS,
Microsoft Office
Microsoft Windows Operating Systems
Microsoft SilverLight
Microsoft .NET Framework
(c) Clevest will only support the Licensed Software on
platforms for which all components are supported
by their respective vendors, under standard
conditions, as of the date the support request is
made by Client to Clevest.
(d) The list of platforms on which each version of the
Licensed Software is qualified is decided solely by
Clevest.
(e) Clevest will only provide support on platforms
designated in the Documentation.
While it is understood that Clevest does not have
responsibility for the set-up and maintenance of third-party
software and hardware, Clevest can make recommendations
on their parameter settings and configurations, which the
Client may review and adopt. Should any recommendation
conflict with the Client’s adopted settings/configurations, and
such situations result in a detrimental product impact to either
functionality, performance, or usability, Clevest shall bear no
responsibility to support reported Defects that arise from such
settings/configurations.
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
9
The Client will advise Clevest of any proposed changes to
settings and configurations for third-party software and
hardware in advance.
While Clevest will make reasonable commercial efforts to
provide resolutions to Defects with the same third-party
software versions as the production system, it is understood
that some resolutions may require upgrades to third-party
software. In these cases, Clevest will notify the Client of this
requirement, and the Client will make arrangements for such
upgrades at its own cost.
New versions of the Licensed Software may require upgrades
to third-party software and hardware. Clevest will advise the
Client of these requirements. Should the Client choose to
deploy the new versions, the Client will make arrangements
for such third-party upgrades at its own cost.
6.9 External Support Dependencies
The Client will provide Clevest with VPN accounts and
SecureIDs (or other mutually negotiated security and remote
access tools) to enable two concurrent users to remotely
access both the Sandbox and Production environments. It is
understood that unavailability of remote access will result in
degraded support levels from Clevest. Should problems arise
with accessing the systems remotely during business hours,
the Client will provide access to support personnel to resolve
them. After-business hours support arrangements will be
provided by the Client only when agreed to with Clevest on a
case-by-case basis.
Clevest will have contacts and access to third-party support,
as arranged by the Client, for support. The Client will bear the
cost of any contact by Clevest with such personnel, including
help desk and after-business hours support as required.
6.10 Client Responsibilities
The Client shall provide on Clevest’s request periodic
database export files from Production and Sandbox for
Clevest’s use within two (2) business days of a request from
Clevest.
The Client shall designate at least one, but not more than
three, support contacts for the purposes of communicating
support issues with Clevest.
The Client shall endeavor to ensure that the issues escalated
to Clevest are issues primarily attributed to the operation of
the Licensed Software. Clevest reserves the right to decline
to continue to provide support for any issue that it deems to
not be primarily derived from the operation of the Licensed
Software.
7. ADDITIONAL SERVICES
Additional services may be requested by the Client from time
to time. The Client must provide prior written request for
additional services and such services shall be provided
pursuant to the Professional Services Agreement forming part
of this Agreement.
Additional Services include but are not limited to:
After-hours support Clevest may provide after-hours support for the Licensed Software via
telephone, email, or on-site personnel. After-hours support for Severity 1 issues
is provided as part of basic maintenance.
Software Enhancements The parties may agree to enhancements to the software that will be developed by
Clevest on a time and materials basis.
Software Installations and
Database Migrations on
Production environment
Clevest may provide the work to install software upgrades including Defect
fixes, and perform database migrations, directly on the target environments.
Application Monitoring General application health monitoring includes checking presence and
application response times are within acceptable limits.
Infrastructure Monitoring Infrastructure monitoring includes checking the status, performance, CPU
utilization, disk and memory capacity, and availability of the Licensed Software
application infrastructure. In particular, infrastructure components include
database server(s), web/application server(s), server hardware, system software,
application software, and network infrastructure.
Infrastructure
Maintenance
Infrastructure maintenance includes building, setup, installing, testing,
supporting, repairing, upgrading, patching, tuning, backup and recovery, or
replacing the Licensed Software application infrastructure servers and associated
hardware, application software, and system software.
Outage Management In the case of planned or unplanned outages of the Licensed Software system,
Clevest may be requested to manage certain aspects of the outage including user
notification, infrastructure and application restart, and infrastructure and
application monitoring.
Training Clevest may be requested to provide end user, administrator, or other training.
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
10
Consulting Clevest may be requested to consult or advise on the Licensed Software,
application enhancements, the Licensed Software infrastructure, additional
modules, related business processes, or other topics.
Data Entry Clevest may be requested to provide data entry services.
8. OTHER TERMS
8.1 Order of Precedence. In the event of any inconsistency
between the terms of the Software License Agreement
forming part of this Agreement and the terms of this Support and Maintenance Agreement, the terms of this Support and
Maintenance Agreement shall control only with respect to
determining Clevest’s obligations with respect to providing
Maintenance. In all other cases, such Software License
Agreement will prevail.
9. TERMINATION
9.1 Termination by Clevest. Notwithstanding anything to the
contrary in this Support and Maintenance Agreement,
Clevest, by written notice to Client, may terminate this
Support and Maintenance Agreement or suspend Clevest’s
further performance of Maintenance without terminating this
Support and Maintenance Agreement upon the occurrence of
any of the following: (i) Client terminates or suspends doing
business; (ii) Client becomes subject to any bankruptcy or
insolvency proceeding under federal or provincial law (unless removed or dismissed within sixty (60) days from the filing
thereof), or becomes insolvent, becomes subject to direct
control of a trustee, receiver or similar authority, or makes an
assignment for the benefit of creditors; (iii) Client fails to pay
to Clevest any amount when due hereunder and fails to
remedy such failure within fifteen (15) days after receiving
written notice thereof from Clevest, or (iv) Client commits a
material breach or failure of any of its other obligations under
this Support and Maintenance Agreement and, except for any
breach of Client’s confidentiality obligations or a breach of
Clevest’s Intellectual Property Rights, has not cured such
breach (or, if the breach or failure is such that its cure would
take a longer period, has not commenced and diligently
proceeded to cure such breach or failure) within fifteen (15)
days after receiving written notice from Clevest specifying
such breach or failure.
9.2 Termination by Client. Notwithstanding anything to the
contrary in this Support and Maintenance Agreement, Client,
by written notice to Clevest, may terminate this Support and
Maintenance Agreement or suspend Client’s further
performance of Maintenance without terminating this Support
and Maintenance Agreement upon the occurrence of any of
the following: (i) Clevest terminates or suspends doing
business; (ii) Clevest becomes subject to any bankruptcy or
insolvency proceeding under federal or provincial law (unless
removed or dismissed within sixty (60) days from the filing
thereof), or becomes insolvent, becomes subject to direct
control of a trustee, receiver or similar authority, or makes an
assignment for the benefit of creditors; or (iii) Clevest commits
a material breach or failure of any of its obligations under this
Support and Maintenance Agreement and, except for any
breach of Clevest’s confidentiality obligations, has not cured
such breach (or, if the breach or failure is such that its cure
would take a longer period, has not commenced and diligently
proceeded to cure such breach or failure) within fifteen (15)
days after receiving written notice from Client specifying such
breach or failure.
9.3 Survival. Sections 9.4, 10.1 and 11.1 and such other
provisions as may reasonably be expected to remain in force
will survive the expiry or termination of this Support and
Maintenance Agreement and will remain in full force and effect following such expiry or termination. The expiry or termination
of this Support and Maintenance Agreement will not affect the
rights of any party to make a claim for damages arising from
a breach of any provision of this Support and Maintenance
Agreement which occurred prior to such expiry or termination.
9.4 Obligations on termination. Upon any expiration or termination
of this Support and Maintenance Agreement, (i) Client will
immediately pay to Clevest any amounts then due to Clevest
pursuant to the terms of this Support and Maintenance
Agreement, which includes any hosting fees due to the
completion of the hosting term, and (ii) each party will return
to the other party any and all Confidential Information of the
other party provided in connection with this Support and
Maintenance Agreement in its possession or control and,
upon request from the other party, each will deliver a certificate of an officer of the party certifying the completeness
of same.
10. AUDIT
10.1 Audit. For on premise deployments, during the term of this
Support and Maintenance Agreement and for twelve months
after termination or expiry, Client will permit Clevest and its
representatives and agents to conduct periodic audits of
Client’s relevant books, records and computer systems in
order to verify Client’s compliance with the terms and
conditions of this Support and Maintenance Agreement. Such
audits will be conducted at Client’s place of business and/or
where the Licensed Software is or was located during Client’s
normal business hours with reasonable advance notice.
Clevest will pay for the cost of the audit unless Clevest
reasonably determines from the audit that Client has
materially breached this Support and Maintenance
Agreement, in which case Client will pay the cost of the audit.
Client will immediately reimburse Clevest for all additional
amounts owed to Clevest as determined by the audit, together
with interest thereon as provided for in this Support and
Maintenance Agreement. The remedies provided to the
Clevest under this Section are not exclusive and any such
remedy will be in addition to and not limit any other remedy
which Clevest is entitled to seek at law, in equity, by statute or
under this Support and Maintenance Agreement.
11. GENERAL
11.1 Clevest’s General Terms and Conditions attached hereto are
part of this Support and Maintenance Agreement and are
incorporated by this reference. Such General Terms and
Conditions shall survive any termination or expiry of this
Support and Maintenance Agreement.
End of Support and Maintenance Agreement
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
“Agreement” means the terms and conditions contained in these General Terms and Conditions, together with
the terms and conditions in the Software License Agreement, Support and Maintenance Agreement and the
Professional Services Agreement and the cover page to which these General Terms and Conditions are attached
or incorporated by reference.
2. CONFIDENTIAL INFORMATION
2.1 Confidentiality. To the extent authorized by the laws of the State of Texas, each party will keep strictly confidential
and will not disclose or use for any purpose other than for performing its obligations under this Agreement any
Confidential Information (as hereafter defined) of the other party. Except as expressly provided in this Agreement,
neither party will obtain any interest in the other party’s Confidential Information by reason of this Agreement or
by reason of the disclosure of such Confidential Information pursuant to this Agreement. Each party will take the
steps reasonably necessary to protect the confidentiality of the other party’s Confidential Information. Each party
will provide the other party’s Confidential Information at least the same level of protection that it provides for its
own Confidential Information (except that such level of protection will not be less than a reasonable level). Each
party may disclose the other party’s Confidential Information only to its directors, officers, agents, employees and
professional advisors who have a need to know such Confidential Information for the performance of this
Agreement, provided that such directors, officers, agents, employees and professional advisors are bound by
obligations of nondisclosure and non-use substantially the same in scope as those contained in this Section 2.
In the event an agent or professional advisor is a competitor of the party disclosing its Confidential Information,
the party receiving the Confidential Information shall not disclose such information to the competitor without
obtaining the disclosing party’s prior written consent to do so. Nothing in this Section 2 will restrict a party’s use
or disclosure of its own Confidential Information.
2.2 Definition of “Confidential Information”. “Confidential Information” will mean any information, technical data or
know-how including, but not limited to, that which comprises or relates to the other party’s confidential and
proprietary trade secrets, hardware, software (source code and object code), screens, specifications, designs,
plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual
property, market research, marketing techniques and plans, business plans and strategies, customer names and
other information related to customers, price lists, pricing policies and financial information or other business
and/or technical information and materials, in oral, demonstrative, written, electronic, graphic or machine-readable
form and any analyses, compilations, studies or documents. Confidential Information also includes the terms of
this Agreement.
2.3 Exceptions. The foregoing restrictions of confidentiality and non-use will not apply to information that:
(a) is or becomes publicly available without breach of this Agreement;
(b) is disclosed to a party by a third party, provided such information was not obtained by said third party,
directly or indirectly, from the other party on a confidential basis;
(c) is already known to a party; or
(d) is independently developed or discovered by a party without access to Confidential Information of the
other party.
2.4 Permitted Disclosures. Notwithstanding any provisions of this Article, either party may disclose the Confidential
Information of the other party to applicable regulatory authorities or if required by judicial or administrative process
or timely disclosure requirements imposed by law or by stock exchange policies, provided that such party first
provides to the other party prompt notice of such required disclosure, maintains confidentiality to the greatest
extent permissible and takes such steps as may be reasonable in the circumstances to allow the other party to
seek a protective order with respect to the confidentiality of the information required to be disclosed.
2.5 Injunction. The parties acknowledge and agree that the breach by either party of any of the provisions of this
Section 2 would cause serious and irreparable harm to the other party that could not adequately be compensated
for in damages and, in the event of a breach by either party of any of such provisions, the breaching party hereby
consents to an injunction being issued against it restraining it from any further breach of such provision, but such
action will not be construed so as to be in derogation of any other remedy that the other party may have in the
event of such a breach. The Parties expressly agree that no provision of the Agreement is in any way intended
to constitute a waiver by Client of any immunities from suit or from liability that the Client may have by operation
of law.
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
2.6 Survival of Confidentiality Obligations. The obligations of confidentiality provided for in this Section 2 will extend
for five years after the date of termination or expiry of this Agreement, except with respect to trade secrets, for
which such obligations will continue in perpetuity.
3. PAYMENT AND TAXES
3.1 Invoicing and Payment. All invoices by Clevest to Client will be payable by Client to Clevest within thirty (30) days
after receipt. If any amount payable hereunder is not paid when due, Client will pay to Clevest interest on such
amount from the date payment was due until the date that payment is received in full at the rate 2% per month
(24% per annum), which interest shall be paid monthly.
3.2 Intentionally Omitted.
3.3 Currency. In this Agreement, all references to money or payments will mean the lawful currency set forth on the
cover page of this Agreement and, unless otherwise expressly agreed to in writing, all payments made under this
Agreement will be made in that currency.
4. LIMITATION OF LIABILITY AND INSURANCE
4.1 Limitation of Liability. EXCEPT FOR THE INDEMNITY UNDER SECTION 6.1 OF THE LICENSE AGREEMENT
FORMING PART OF THIS AGREEMENT OR ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY
OBLIGATIONS OR A BREACH OF A PARTY’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS
UNDER THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY
ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES NOT TO
EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES AND ANY OTHER AMOUNTS PAID BY CLIENT TO
CLEVEST UNDER THIS AGREEMENT FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE
CLAIM FOR DAMAGES IN THE TWELVE MONTHS IMMEDIATELY PRECEDING SUCH CLAIM.
4.2 Damages Exclusions. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INCIDENTAL, PUNITIVE, EXEMPLARY, AGGRAVATED, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS REVENUE, LOST PROFITS, ECONOMIC
LOSS, PECUNIARY LOSS, FAILURE TO REALIZE EXPECTED SAVINGS OR LOSS OF BUSINESS
OPPORTUNITY), LOSS OF DATA OR PROCUREMENT COSTS, EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 Application of Limitations and Exclusions. Except as otherwise explicitly specified, the limitations in the foregoing
Sections 4.1 and 4.2 will apply to all causes of action and regardless of the form of action including, but not limited
to, breach of contract, strict liability, tort including, but not limited to, negligence and any other legal or equitable
theory.
4.4 Insurance. Clevest shall provide, maintain and pay for general liability insurance coverage as required in Exhibit
C of the Contract dated 6/11/19. Clevest shall supply Client with a certified copy of the policy of insurance or a
certificate of insurance in which reasonable detail of the required coverage are specified. Clevest shall be
responsible for any deductible amounts under the policy except where such amounts may be excluded from
Clevest’s responsibility.
5. MISCELLANEOUS
5.1 Authorization. Each party represents and warrants to the other that it has full authorization to enter into and fully
perform the terms of this Agreement, that the terms of this Agreement are valid and binding against it, and that
entering into and performing this Agreement will not constitute a violation of any law, regulation, contract, or
understanding applicable to such party.
5.2 Advertising. Neither party will use the other party's name or trademarks, refer to or identify the other party in any
advertising or publicity releases or promotional or marketing correspondence to others, without such other party's
written approval.
5.3 Non-Solicitation. During the term of this Agreement and for a period of six months after termination or expiry of
this Agreement, neither party will, without the prior written approval of the other party, directly or indirectly solicit
the employment, services or assistance of any person employed or engaged by the other party. For clarity, the
term of this Agreement shall expire and terminate when each and every one of the License Agreement, Support
and Maintenance Agreement and Professional Services Agreement attached hereto have each either expired or
terminated.
5.4 Compliance with Policies. Each party agrees to comply at all times with the other party’s reasonable rules and
regulations regarding safety, security and conduct, of which such party has received prior notice.
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
5.5 Counterparts. This Agreement may be executed in one or more counterparts (including, but not limited to, by fax
or other means of electronic communication producing a printed copy), each of which will be deemed an original,
but all of which together will constitute the same instrument.
5.6 Further Assurances. Each of the parties will promptly execute and deliver to the other at the cost of the other such
further documents and assurances and take such further actions as the other may from time to time request in
order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights,
interests and remedies intended to be created in favour of the other under this Agreement.
5.7 Remedies not Exclusive. Except for those remedies expressly described as sole, the remedies provided to the
parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be
deemed or construed to affect any right which any of the parties is entitled to seek at law, in equity or by statute
5.8 Freedom of Action. This Agreement will not be construed in any way to limit Clevest’s right to grant any right or
license to use, distribute or sublicense any of Clevest’s products or related services and any associated
documentation. Except as expressly provided in this Agreement, this Agreement does not convey to Client any
rights or interests with respect to any current or future product or service.
5.9 Time. Time is of the essence in this Agreement.
5.10 Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each
party to this Agreement.
5.11 Relationship. The parties to this Agreement are acting as independent contractors to each other, and nothing in
this Agreement will accord any status to a party of being the employee, partner, joint venturer, franchisee or agent
of the other, with respect to this Agreement. Nothing in this Agreement will make or be construed to make Clevest
and Client partners or agents of each other or to create any other relationship by which the acts of any party may
bind the others or result in any liability to the other.
5.12 Assignment. Neither this Agreement nor any of the rights or obligations under this Agreement may be assigned
by either party without the prior written consent of the other party, except that a party may, without consent, but
upon notice to the other party, assign this Agreement (in its entirety) to a subsidiary or affiliate or to an entity
which acquires all or substantially all of the assets and business of the assigning party by merger, sale of assets
or otherwise and such assignee agrees in writing with the other party to be bound by the terms and conditions of
this Agreement. Any assignee of Client under this Agreement may assume this Agreement only in respect of the
specific business of Client for which Client held this Agreement immediately prior to the assignment, and any
additional or other use by such assignee will be subject to Clevest’s prior written consent and payment of
additional License Fees (as defined in the License Agreement forming part of this Agreement) and Support and
Maintenance Fees (as defined in the Support and Maintenance Agreement forming part of this Agreement). Any
assignment by Client occurring by operation of law such as on a bankruptcy or amalgamation will be deemed an
event of default under this Agreement, entitling Clevest to exercise all of the rights and remedies it would otherwise
be entitled to exercise for an assignment made without consent.
5.13 Export Controls. Client will comply with all export laws, restrictions and regulations having application to it, whether
of Canada, the United States or any foreign agency or authority, and has not and will not export, re-export or
otherwise transmit, download or use, directly or indirectly, any software, information, data, or other materials
received under this Agreement in violation of any such applicable restrictions, laws or regulations.
5.14 Force majeure. Neither party will be liable for any delay or failure to perform any provision of this Agreement if
such delay or failure to perform is caused by any factor beyond the reasonable control of the party, provided that
in no event shall lack of financing or credit be considered to be beyond the reasonable control of a party, or the
failure of the other party to comply with its obligations and responsibilities under this Agreement. This Section
will not apply to any failure to make any payment when due.
5.15 Wording. Wherever the singular or masculine form is used in this Agreement, it will be construed as the plural or
feminine or neuter form, as the case may be, and vice versa, as the context or the parties require.
5.16 Headings. The headings in this Agreement are solely for convenience of reference and will not be used for
purposes of interpreting or construing the provisions hereof.
5.17 Notices. All notices required or permitted under this Agreement will be given in writing and sent by facsimile
transmission, or sent by a commercial courier service, or hand-delivered to the address set forth for each party
on the cover page of this Agreement.
All notices will be deemed to have been received (i) when delivered, if sent by commercial courier service or
hand-delivered, and (ii) upon completion of successful transmission (as evidenced by the confirmation of
transmission), if sent by fax. Any party may change its address for notices from time to time by written notice in
accordance with this Section.
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
5.18 Applicable Law. This Agreement is made under and shall be governed by the laws of the State of Texas, including,
when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1,
excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All
issues arising from this Agreement shall be resolved in the courts of Denton County, Texas and the parties agree
to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or
interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent
authority as contemplated herein.
5.19 No Waiver. No failure to exercise and no delay in exercising, on the part of either party, any right, power or
privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right,
power or privilege under this Agreement preclude further exercise of the same right or the exercise of any other
right under this Agreement, by statute, at law or in equity.
5.20 Severability. If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of
the remaining provisions will not be impaired thereby and, in such an event, such provisions will be interpreted
so as to best accomplish the intent of the parties within the limits of applicable law; provided, however, that in the
event such invalidity, illegality or unenforceability materially and adversely alters the rights of a party under this
Agreement, the parties will promptly negotiate in good faith an acceptable replacement provision.
5.21 Enurement. Subject to the restrictions on transfer contained in this Agreement, this Agreement will enure to the
benefit of and be binding on the parties and their respective heirs, executors, administrators, successors and
assigns.
5.22 Language of Agreement. At the request of the parties hereto, this Agreement has been drafted in the English
language only.
6. SURVIVAL
DocuSign Envelope ID: F17ED748-4013-4459-93FC-6BF904F695E7
Certificate Of Completion
Envelope Id: F17ED7484013445993FC6BF904F695E7 Status: Completed
Subject: **Purchasing Approval - 2nd Amendment to 7056 - Clevest Mobile Workforce Management Software**
Source Envelope:
Document Pages: 15 Signatures: 4 Envelope Originator:
Certificate Pages: 6 Initials: 1 Cori Power
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
901B Texas Street
Denton, TX 76209
cori.power@cityofdenton.com
IP Address: 198.49.140.104
Record Tracking
Status: Original
12/23/2020 2:14:54 PM
Holder: Cori Power
cori.power@cityofdenton.com
Location: DocuSign
Signer Events Signature Timestamp
Cori Power
cori.power@cityofdenton.com
Buyer
City of Denton
Security Level: Email, Account Authentication
(None)
Completed
Using IP Address: 198.49.140.104
Sent: 12/23/2020 3:51:58 PM
Viewed: 12/23/2020 3:52:06 PM
Signed: 12/23/2020 3:52:55 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Lori Hewell
lori.hewell@cityofdenton.com
Purchasing Manager
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.104
Sent: 12/23/2020 3:52:56 PM
Viewed: 12/28/2020 8:54:01 AM
Signed: 12/28/2020 8:54:13 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Marcella Lunn
Marcella.Lunn@cityofdenton.com
Deputy City Attorney
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 107.77.199.127
Sent: 12/28/2020 8:54:14 AM
Viewed: 12/28/2020 9:19:50 AM
Signed: 12/28/2020 9:28:31 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Ryan Gatto
ryan.gatto@ifs.com
Corporate Secretary
Security Level: Email, Account Authentication
(None)Signature Adoption: Uploaded Signature Image
Using IP Address: 151.197.211.52
Sent: 12/28/2020 9:28:32 AM
Viewed: 12/28/2020 10:26:22 AM
Signed: 12/28/2020 10:26:41 AM
Electronic Record and Signature Disclosure:
Accepted: 12/28/2020 10:26:22 AM
ID: 862ba551-332f-42a4-a93f-0fb3018348a1
Signer Events Signature Timestamp
Drew Allen
drew.allen@cityofdenton.com
Interim Chief Technology Officer
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 47.185.67.62
Sent: 12/28/2020 10:26:42 AM
Viewed: 12/28/2020 10:34:35 AM
Signed: 12/28/2020 10:35:06 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Cori Power
cori.power@cityofdenton.com
Buyer
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.104
Sent: 12/28/2020 10:35:09 AM
Viewed: 12/28/2020 10:38:25 AM
Signed: 12/28/2020 10:38:36 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Contract Administrator
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 12/28/2020 10:38:37 AM
Viewed: 12/29/2020 8:17:05 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Robert Dreskai
Robert.Dreskai@clevest.com
Security Level: Email, Account Authentication
(None)
Sent: 12/28/2020 10:38:38 AM
Viewed: 12/28/2020 12:20:14 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Omar Rodriguez
Omar.Rodriguez@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Sent: 12/28/2020 10:38:38 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 12/23/2020 3:51:58 PM
Certified Delivered Security Checked 12/28/2020 10:38:25 AM
Signing Complete Security Checked 12/28/2020 10:38:36 AM
Completed Security Checked 12/28/2020 10:38:38 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, City of Denton (we, us or Company) may be required by law to provide to
you certain written notices or disclosures. Described below are the terms and conditions for
providing to you such notices and disclosures electronically through your DocuSign, Inc.
(DocuSign) Express user account. Please read the information below carefully and thoroughly,
and if you can access this information electronically to your satisfaction and agree to these terms
and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of
this document.
Getting paper copies
At any time, you may request from us a paper copy of any record provided or made available
electronically to you by us. For such copies, as long as you are an authorized user of the
DocuSign system you will have the ability to download and print any documents we send to you
through your DocuSign user account for a limited period of time (usually 30 days) after such
documents are first sent to you. After such time, if you wish for us to send you paper copies of
any such documents from our office to you, you will be charged a $0.00 per-page fee. You may
request delivery of such paper copies from us by following the procedure described below.
Withdrawing your consent
If you decide to receive notices and disclosures from us electronically, you may at any time
change your mind and tell us that thereafter you want to receive required notices and disclosures
only in paper format. How you must inform us of your decision to receive future notices and
disclosure in paper format and withdraw your consent to receive notices and disclosures
electronically is described below.
Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the
speed at which we can complete certain steps in transactions with you and delivering services to
you because we will need first to send the required notices or disclosures to you in paper format,
and then wait until we receive back from you your acknowledgment of your receipt of such
paper notices or disclosures. To indicate to us that you are changing your mind, you must
withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your
DocuSign account. This will indicate to us that you have withdrawn your consent to receive
required notices and disclosures electronically from us and you will no longer be able to use your
DocuSign Express user account to receive required notices and consents electronically from us
or to sign electronically documents from us.
All notices and disclosures will be sent to you electronically
Unless you tell us otherwise in accordance with the procedures described herein, we will provide
electronically to you through your DocuSign user account all required notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided or
made available to you during the course of our relationship with you. To reduce the chance of
you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required
notices and disclosures to you by the same method and to the same address that you have given
us. Thus, you can receive all the disclosures and notices electronically or in paper format through
the paper mail delivery system. If you do not agree with this process, please let us know as
described below. Please also see the paragraph immediately above that describes the
consequences of your electing not to receive delivery of the notices and disclosures
electronically from us.
Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM
Parties agreed to: Ryan Gatto
How to contact City of Denton:
You may contact us to let us know of your changes as to how we may contact you electronically,
to request paper copies of certain information from us, and to withdraw your prior consent to
receive notices and disclosures electronically as follows:
To contact us by email send messages to: purchasing@cityofdenton.com
To advise City of Denton of your new e-mail address
To let us know of a change in your e-mail address where we should send notices and disclosures
electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com
and in the body of such request you must state: your previous e-mail address, your new e-mail
address. We do not require any other information from you to change your email address..
In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected
in your DocuSign account by following the process for changing e-mail in DocuSign.
To request paper copies from City of Denton
To request delivery from us of paper copies of the notices and disclosures previously provided
by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in
the body of such request you must state your e-mail address, full name, US Postal address, and
telephone number. We will bill you for any fees at that time, if any.
To withdraw your consent with City of Denton
To inform us that you no longer want to receive future notices and disclosures in electronic
format you may:
i. decline to sign a document from within your DocuSign account, and on the subsequent
page, select the check-box indicating you wish to withdraw your consent, or you may;
ii. send us an e-mail to purchasing@cityofdenton.com and in the body of such request you
must state your e-mail, full name, IS Postal Address, telephone number, and account
number. We do not need any other information from you to withdraw consent.. The
consequences of your withdrawing consent for online documents will be that transactions
may take a longer time to process..
Required hardware and software
Operating Systems: Windows2000? or WindowsXP?
Browsers (for SENDERS): Internet Explorer 6.0? or above
Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0,
NetScape 7.2 (or above)
Email: Access to a valid email account
Screen Resolution: 800 x 600 minimum
Enabled Security Settings:
•Allow per session cookies
•Users accessing the internet behind a Proxy
Server must enable HTTP 1.1 settings via
proxy connection
** These minimum requirements are subject to change. If these requirements change, we will
provide you with an email message at the email address we have on file for you at that time
providing you with the revised hardware and software requirements, at which time you will
have the right to withdraw your consent.
Acknowledging your access and consent to receive materials electronically
To confirm to us that you can access this information electronically, which will be similar to
other electronic notices and disclosures that we will provide to you, please verify that you
were able to read this electronic disclosure and that you also were able to print on paper or
electronically save this page for your future reference and access or that you were able to
e-mail this disclosure and consent to an address where you will be able to print on paper or
save it for your future reference and access. Further, if you consent to receiving notices and
disclosures exclusively in electronic format on the terms and conditions described above,
please let us know by clicking the 'I agree' button below.
By checking the 'I Agree' box, I confirm that:
• I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF
ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and
• I can print on paper the disclosure or save or send the disclosure to a place where I can
print it, for future reference and access; and
• Until or unless I notify City of Denton as described above, I consent to receive from
exclusively through electronic means all notices, disclosures, authorizations,
acknowledgements, and other documents that are required to be provided or made
available to me by City of Denton during the course of my relationship with you.