7779 - Contract Executed
EMPHASYS SOFTWARE MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT (“Agreement”) is entered into effective the day of
________, 2021 ("Effective Date") by and between Emphasys Computer Solutions, Inc. a Michigan
corporation, with its principal place of business located at: 1200 SW 145th Street, Suite 301
Pembroke, FL 33027("Emphasys"), and City of Denton, a Texas City, with its principal place of
business located at: 215 E. McKinney, Denton, TX 76201 ("Licensee").
PRELIMINARY STATEMENT
Emphasys has designed and developed a software program known as the SymPro Treasury
Management Software, which consists of computer software programs in machine-readable form
and related user documentation (“Software”).
Licensee has an existing Emphasys Software License Agreement (“License”), which grants Licensee
a personal, nontransferable; non-exclusive limited right and license to use the Software within the
terms of such License. This Emphasys Software Maintenance Agreement (“Maintenance
Agreement”) grants Licensee maintenance and support services for the Software and Term set forth
in Exhibit “A” attached hereto, as follows:
EMPHASYS AND LICENSEE MUTUALLY AGREE AS FOLLOWS:
Section 1. Software Maintenance
1.1. Emphasys shall provide to Licensee all modifications and enhancements to the Software in
the form of fixes and further releases that Emphasys makes generally available to all end-users. Such
modifications shall be released at least once each year. Emphasys reserves the option to require the
payment of an additional fee if substantial additional functions or improved performance are
provided.
1.2. Such modifications, when delivered, shall become part of the Software, shall be maintained
in accordance with this Agreement, and shall otherwise be subject to all of the terms of the License
Agreement.
Section 2. Error Correction
Emphasys shall correct, within a reasonable period of time, any material, documented, reproducible
error or malfunction in the System. Emphasys agrees to commence correction as soon as
reasonably possible after such error or malfunction is detected. If Emphasys, in its discretion,
requests written verification of an error or malfunction discovered by Licensee, Licensee shall
immediately provide such verification, by email, setting forth in detail the respects in which the
System fails to perform. An error or malfunction shall be “material” if it represents a
nonconformity to Emphasys’ specifications pertaining thereto, as set forth in the current published
user documentation for the Software. Emphasys shall determine if the reported error or
malfunction interferes with the Licensee’s utilization of the Software.
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August
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Section 3. Technical Support
3.1 Telephone and email technical support is provided during normal business hours (8:00AM
to 5:00PM – Pacific Time) Monday through Friday for questions dealing with the operations of the
Software.
3.2 Support issues may be reported via voicemail, fax or email, 24 hours a day.
3.3 The resolution of some issues may require that Licensee provide Emphasys with a copy of
Licensee’s portfolio. Licensee agrees to provide Emphasys with a copy of their portfolio for the
purpose of resolving Licensee’s issue and Emphasys agrees to maintain full confidentiality of any
required portfolio data and will use it only for the resolution of the Licensee’s issue.
3.4 Unlimited telephone support will be provided in the following areas:
a) Loading and configuring of SymPro Software
b) Operational Questions, including standard SymPro reports
c) Data Entry Questions for all investment & debt types supported in SymPro, including:
Investments:
Certificates of Deposits
Negotiable Certificates of Deposits
Checking Accounts
Commercial Paper
Medium Term Notes
Commercial Paper Discount
United States Treasury Issues, Coupon & Discount
Federal Agency Issues, Coupon & Discount
GNMA, Pass Through
Bankers Acceptances
Corporate Bonds
Rolling Repurchase Agreements
3.5 EXCLUSIONS. CONSULTING ON ISSUES CONCERNING INVESTMENT
ACCOUNTING, SPECIFIC FINANCIAL OR INVESTMENT MATTERS, MATTERS
REQUIRING PROFESSIONAL LICENSING, RESEARCH ON INVESTMENTS NOT
SUPPORTED WITHIN THE LICENSED SOFTWARE OR DATA ENTRY FOR
INVESTMENTS NOT SUPPORTED IN THE LICENSED SOFTWARE ARE NOT
INCLUDED IN SUPPORT SERVICES.
Section 4. Other Modifications
Licensee may request that Emphasys make additional modifications to the System to add functions
or improve performance. Emphasys shall, within thirty (30) days after receiving Licensee’s request
in writing, take one of the following actions, in its sole discretion:
A. Notify Licensee that Emphasys has determined that the modification would be of
sufficient general interest to that Emphasys intends to provide such modification as part
of its regular maintenance service at some future time. Such notice shall specify an
estimated date on which the modification may be available. Licensee will have the
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option to wait for the regular maintenance release or to request an estimate of the costs
for custom modification to be made available to the Licensee.
B. Notify Licensee that Emphasys has determined that the modification will be undertaken
only on an individual custom basis and provide Licensee with a written estimate of the
charges for performing such modification. If Licensee accepts Emphasys’ proposal by
written notice, Emphasys agrees to perform the modification for the estimated costs and
for any required travel on a prepaid basis. Licensee acknowledges that Emphasys may
impose additional charges, calculated at its then current rates, for work performed to
accommodate revisions to the request for modification if such revisions are requested by
Licensee after Licensee accepts the estimate.
Section 5. Delivery
In order to satisfy any delivery obligation hereunder, Emphasys may send Licensee in magnetic
form, or by electronic transmission, a single copy of any modification, error correction, fix, or
release to the Software provided pursuant to this Agreement, together with instructions for
Licensee’s installation and implementation thereof.
Section 6. Fees
6.1. Licensee shall pay Emphasys fees for the term and at the rate set forth in Exhibit “A”,
(“Fees”), attached hereto.
6.2 For subsequent terms, Fees may be reset by Emphasys, on an annual basis at the then current
rates and Emphasys will provide Licensee 60 day’s written notice of such increase, via email at
Treasury@cityofdenton.com.
6.3. Fees shall be due and payable in full on or before the beginning date of the term set forth in
Exhibit “A” attached hereto.
6.4. If applicable to the Licensee, Licensee agrees to pay when due (or, if necessary, reimburse
Emphasys for) any applicable sales, use, property, excise, and other similar taxes. City of Denton is
exempt from federal excise taxes, state taxes, and city sales tax and will furnish a tax exemption
certificate upon request.
Section 7. Ownership
The modifications to the Software, including all intellectual property rights associated therewith,
made or provided by Emphasys pursuant to this Agreement, whether alone or with any contribution
from Licensee or its personnel, shall be owned exclusively by Emphasys. Licensee shall maintain
and enforce agreements and policies with its personnel sufficient to give effect to the provisions of
this Section.
Section 8. Limited Warranty
For the term of this Agreement and the Software listed in Exhibit “A”, Emphasys warrants that
such Software will conform to Emphasys’ specifications pertaining thereto, as set forth in the
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current published user documentation for the Software, provided that said warranty shall apply only
to the most current version of the Licensed Products, as used on a supported operating
environment and to defects that can with reasonable effort be recreated by Emphasys using a
supported operating environment. As Emphasys’ sole responsibility and Licensee’s exclusive
remedy in the event of any material failure to meet such specifications, Emphasys shall make a
reasonable effort to remedy any resulting discrepancies. Any claim based on the foregoing warranty
must by submitted in writing in accordance with Emphasys’ reporting procedures, as set forth in
Section 2. EXCEPT AS EXPRESLY SET FORTH IN THIS AGREEMENT, EMPHASYS
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY
MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ITS SERVICES, THE
SYSTEM, THE DESIGN OR CONDITION OF THE EQUIPMENT OR ANY
PROGRAMMING, OR ANY OUTPUT BASED ON USE OF THE SYSTEM. EMPHASYS
SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 9. Term
9.1. Unless sooner terminated in accordance with this Section 9, this Maintenance Agreement
shall continue for the period and dates specified in Exhibit “A”;
9.2. Thereafter, this Maintenance Agreement may be renewed by the parties, by revision of
Exhibit “A”, for successive terms, unless and until either party elects to terminate this Agreement
upon expiration of the then current term. Neither party shall be obligated to renew this Agreement.
Emphasys acknowledges and agrees that the awarding or continuation of this Contract is dependent
upon the availability of funding. Licensee’s payment obligations are payable only and solely from
funds appropriated and available for this Contract. The absence of appropriated or other lawfully
available funds shall render the Contract null and void to the extent funds are not appropriated or
available and any deliverables delivered but unpaid shall be returned to Emphasys. Licensee will not
incur a debt or obligation to pay Emphasys any amounts Licensee does not have the current funds
available to pay.
9.3. In addition to its termination rights set forth in Section 9.2 hereof, Emphasys may terminate
this Agreement by giving written notice of termination to Licensee upon the occurrence of any of
the following events:
(a) Licensee defaults in the performance of any material requirement or obligation created by
this Agreement, or in any other agreement, entered into between Emphasys and Licensee
and such failure has not been remedied by the end of such 30-day period.
(b) Licensee fails to make any payment to Emphasys within sixty (60) days of its receipt of
invoice, whether under this Agreement, or the License Agreement;
(c) Licensee ceases doing business;
(d Licensee is the subject of any state or federal bankruptcy, insolvency, or similar
proceeding, becomes insolvent, or makes an assignment for the benefit of creditors.
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9.4 All communications from Licensee relating to the termination of this Agreement shall be
directed to Emphasys at the address indicated in Section 11.
9.5 If this Agreement is terminated, Emphasys acknowledges Licensee’s right to the perpetual
use of the Software pursuant to the Emphasys Software License Agreement between Licensee and
Emphasys.
9.6 Either party may terminate this agreement, with or without cause, by thirty (30) days' written
notice to the other party. In the event of such termination, the Licensee shall pay the Company for
all work previously authorized and performed prior to the termination date.
Section 10. Delays
The date on which Emphasys’ obligations are required to be fulfilled will be extended for a period
equal to the time lost by reason of any delay arising directly or indirectly from (1) acts of God,
unforeseeable circumstances, acts (including a delay or failure to act) of any governmental authority
(de jure or de facto), war (declared or undeclared), riot, revolution, priorities, earthquakes, fires,
floods, strikes, labor disputes, sabotage, or epidemics; (2) inability due to causes beyond Emphasys’
reasonable control to timely obtain instructions or information from Licensee, necessary and proper
labor, materials, components, facilities, or transportation; or (3) any other cause beyond Emphasys’
reasonable control. The foregoing extension will apply even though such cause(s) may occur after
Emphasys’ performance of its obligations has been delayed for other causes.
Section 11. Notices
Any notice to either party required or permitted hereunder shall be sufficiently given only when
provided in writing, and either personally delivered or sent via certified or registered mail to the
authorized persons indicated herein. Licensee shall promptly give Emphasys notice of any address
change. The persons and their addresses having the authority to give and receive notices under this
Agreement include the following:
Licensee Emphasys
City of Denton, TX Emphasys
Treasury Manager or Director of Finance
215 E. McKinney 3675 Mt. Diablo Blvd.
Denton, TX 76201 Lafayette, CA 94549
Section 13. Miscellaneous
13.1 A failure by either party to enforce any right under this Agreement shall not at any time
constitute a waiver of such right or any other right, and shall not modify the rights or obligations of
either party under this Agreement.
13.2 No assignment or transfer of any interest in this Agreement may be made by Licensee
without the prior written consent of Emphasys (which consent may be withheld in Emphasys’ sole
and absolute discretion). Emphasys may freely assign any interest and/or obligations under this
Agreement and will provide Licensee with thirty (30) days written notice of any such assignment.
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13.3 The invalidity or unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision, the remaining provisions being deemed to continue
in full force and effect.
13.4 Notwithstanding anything in this Agreement to the contrary, the laws of the State of Texas
shall govern the validity and construction of this Agreement and the interpretation of the parties'
rights and duties without reference to conflicts of laws. Each party hereto hereby submits to the
exclusive jurisdiction of any state or federal court located in Denton County, Texas.
13.5 This Agreement and the Emphasys Software License Agreement are the entire agreements
of the parties, and supersede all prior agreements and communications, whether oral or in writing,
between the parties with respect to the subject matter of this Agreement. No amendment or
modification of these Agreements shall be effective unless made in writing and signed by Emphasys
and Licensee.
BY EXECUTION HEREOF, the person signing for Licensee below certifies that he/she has read
this Agreement and that he/she is duly authorized to execute this Agreement on behalf of Licensee.
“EMPHASYS” “LICENSEE”
By: ____________________________ By: ____________________________
Name: Ken Reimer Name: __________________________
Its: CEO Its: ____________________________
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Buyer
Erica Garcia
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EXHIBIT “A”
Software, Fees, Payment Period and Term:
1. Software:
Fixed Income
General Ledger Module
Market Pricing
Multi User - 3 Concurrent User
2. Fees and Terms
Investment Software:
Annual Maintenance and Support Fee: $4,862.03
(10/01/2021– 9/31/2022)
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