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FirstAmendmenttoContractɋOrdinanceNo.201706502/21/17JR
ORDINANCE o, 015 -273
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A
CONTRACT FOR THE IMPLEMENTATION OF A MOBILE WORKFORCE MANAGEMENT
SOFTWARE SOLUTION FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP
5821- AWARDED TO CLEVEST SOLUTIONS, INC. IN THE NOT -TO- EXCEED AMOUNT OF
$366,000).
WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for a
Mobile Workforce Management Software Solution for Denton Municipal Electric in accordance with
the procedures of State law and City ordinances; and
WHEREAS, the City Manager or a designated employee has received and reviewed and
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the other evaluation factors included in the request for proposals;
and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The items in the following numbered request for proposal for materials,
equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the
Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City
considering the relative importance of price and the other evaluation factors included in the request
for proposals.
RFP
NUMBER t,. "0NT1ZAC N O AMOUNT
5821 Clevest Solutions, Inc. $366,000
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
proposals, the City accepts the offer of the persons submitting the proposals for such items and
agrees to purchase the materials, equipment, supplies or services in accordance with the terms,
specifications, standards, quantities and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. Should the City and person submitting approved and accepted items and of the
submitted proposals wish to enter into a formal written agreement as a result of the acceptance,
approval, and awarding of the proposals, the City Manager or his designated representative is hereby
authorized to execute the written contract; provided that the written contract is in accordance with
the terms, conditions, specifications, standards, quantities and specified sums contained in the
Proposal and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of Denton
under File 5821 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council
hereby authorizes the expenditure of funds therefor in the amount and in accordance with the
approved proposals.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
PAS 5�; � h� A'Pl.tVl (his the _.��— day �1 � , .f
2015. .
CHRIS WATTS, MAYOR ............ ______
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:`",,
A1111I�` ( �l �,'DI AS 'O LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
����
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
CLEVEST SOLUTIONS INC.
MASTER AGREEMENT
for Software License, Support and Maintenance
Agreement No.: 150018 Effective Date: September 1 �, 2015
Client: City of Denton Client Rebecca Hunter
901 B Texas Street Contact: Phone: (940) 349 -7100
Denton, TX 76209 Fax:
Clevest Victor Holysh, Chief Financial Officer
Clevest: Clevest Solutions Inc. Contact: Phone: 604 214 9700
13911 Wireless Way, Ste 100 email: contractadministrator0clevest.com
Richmond, BC, V6V 3139, Canada PaV- Fna ,?m Q7Qq
Ordered Products and Services and Fees: In accordance with the terms of this Agreement, the Client hereby orders the following products and
services. All prices listed below are quoted in U.S. currency and are subject to change only in accordance with the terms of this Agreement.
Description of Licensed Software, as amended from time to time in accordance with this Agreement
Fees
License Type
❑x Perpetual
Product Code Description Quantity
N/A N/A N/A
❑ Term (n) Years (must be coupled with maintenance for equivalent period)
Permitted Line and
The license extends to all employees of City of Denton subject to purchased limits.
Scope of Business
Maximum # of users:
15 Workspace (office) and 25 WorkBook (mobile) Users.
Product Code
Description
Quantity
MWM- 100 -002
Clevest MWFM Server License - Oracle based
1
WSP- 100 -001
Clevest Workspace (office) License
15
WSP- 100 -003
Clevest GIS Overlay License ( WorkSpace)
1
MWB- 001 -007
WorkBook for Windows Standard
25
MWB- 001 -021
WorkBookGIS Integration
1
MWM- 200 -016
Clevest MWFM Mobile Service Orders Solution License - NorthStar
1
MWM- 200 -017
Clevest MWFM Mobile Service Orders Solution License - CityWorks
1
MWM- 200 -034
Clevest MWFM OMS Solution License - Schneider
1
MWM- 200 -080
Clevest MWFM Locates Solution License
1
(Exhibit H)
$130,000
Software version
MWFM 5.0 or higher
Support and Maintenance and Escrow, as amended from time to time in accordance with this Agreement
Support and Maintenance for Licensed Software (Exhibit H)
$26,000
Escrow
Not Included
Initial Term (if applicable)
❑x One (1) Year applicable)
❑ Two (2) Years
El Three (3) Years
❑ Other Years
Initial Professional Services, as amended from time to time in accordance with this Agreement
Professional Services provided under separate Statement of Work agreement. Exhibit H
$125,000
RFP 5821 Page 1
Estimated
Initial Hardware, as amended from time to time in accordance with this Agreement
Fees
Product Code Description Quantity
N/A N/A N/A
RFP 5821 Page 1
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
Billing Schedule:
Perpetual License: $130,000
• Upon contract execution: 25%
• Agreed Statement of Work: 15%
• Solution loaded in test environment: 40%
• Completion of User Acceptance Test: 20%
Professional Services: $125,000
Support and Maintenance (year 1): $26,000
• Upon contract execution:
15%
• Agreed Statement of Work:
25%
• Solution loaded in test environment:
30%
• Completion of User Acceptance Test:
30%
Travel Expenses: $15,000 (estimated)
• Monthly as incurred. Estimate based on 10 person trips for the initial scope of work. Reimbursement will be based on 100% of actual
expenses. Copies of expenses shall be provided with each invoice. Payment terms will apply.
Not to be exceeded without prior authorization by Client.
License: Client agrees to abide by the terms and conditions set forth in the Software License Agreement forming part of this Contract.
Support and Maintenance: Client agrees to abide by the terms and conditions set forth in the Support and Maintenance Agreement forming part of this
Contract.
Professional Services: Client agrees to abide by the terms and conditions set forth in the Professional Services Agreement forming part of this
Contract.
General Terms and Conditions: Client agrees to abide by the terms and conditions set forth in the General Terms and Conditions forming part of this
Contract.
Clevest shall provide products and /or services in accordance with the City's document RFP 5821- Workforce Management Solution Software and Clevest's
response to that RFP, a copy of both which are on file at the office of Purchasing Department and incorporated herein for all purposes. The Contract
consists of this written agreement and the following items which are attached hereto and incorporated herein by reference:
(a) Software License Agreement (Exhibit "A ");
(b) Support and Maintenance Agreement (Exhibit "B ");
(c) Professional Services Agreement (Exhibit "C ");
(d) General Terms and Conditions (Exhibit "D ");
(e) Statements of Work drafted in accordance with the Professional Services Agreement;
(f) Request for Proposal ( "RFP ") and Clevest's response to the RFP (Exhibit "E" on File at the Office of the Purchasing Department);
(g) Insurance Requirements (Exhibit "F ");
(h) Form CIQ — Conflict of Interest Questionnaire (Exhibit "G ");
(i) Contractor's Proposal. (Exhibit "H ");
These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency
or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written
agreement, including any mutually agreed amendments made in accordance with the Contract, then to the contract documents in the order in which they
are listed above. These documents shall be referred to collectively as "Contract Documents."
CONTRACT TERM: The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this
contract for an additional two (2) one -year periods.
The contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of
award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may
be further extended as needed, not to exceed a total of six (6) months.
TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30)
calendar days' prior written notice. Upon receipt of a notice of termination, Clevest shall promptly cease all further work pursuant to the Contract, with such
RFP 5821 Page 2
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
exceptions, if any, specified in the notice of termination. The City shall pay Clevest, to the extent of funds Appropriated or otherwise legally available for
such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof.
Total Contract Amount
The contract total for services shall not exceed $366,000. Pricing shall be per Exhibit H, attached.
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
DocuSigned1 by:
" �,�
JG1+4s L W dA"
BY: C5BFAFC1821946D...
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
DocuSigned by:
John Knight
BY:
CLEVEST SOLUTIONS, INC.
L DSigne d by:
t� ll
BY:
AUTHORIZED SIGNATURE
8/31/2015
Date:
Victor Holysh
Name:
Title: CFO
604 - 214 -9700 x268
Phone Number:
victor.holysh @clevest.com
Email Address:
CITY OF DENTON, TEXAS
DocuSigned by:
Qe- ovc�,e. �14J Ae.1)
BY: as
GEORGE C. CAMPBELL, CITY MANAGER
9/16/2015
Date:
RFP 5821 Page 3
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
2.1
EXHIBIT A
SOFTWARE LICENSE AGREEMENT
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.
GRANT OF LICENSE
License. Subject to the terms and conditions of this
RFP 5821
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 cover page 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
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.
Page 4
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
2.7 Additional Software. Additional licenses of the Licensed
Software which are larger in scope, number or otherwise than
asset 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.
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 or
another party (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.
PAYMENT
5.1 License Fees. Client will pay to Clevest the License Fees
specified on the cover page of this Agreement, as modified
in writing and agreed by both parties.
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) use of the Licensed Software in a manner not
contemplated by the Documentation;
(c) Client's negligence;
(d) Clevest's compliance with or use of designs,
requirements, specifications, instructions or alterations
supplied, developed or requested by Client; 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 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.
RFP 5821 Page 5
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
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, then at Clevest's sole discretion, 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.
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, 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.
AUDIT
8.1 Audit. 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.
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
RFP 5821 Page 6
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
SUPPORT AND MAINTENANCE AGREEMENT
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 the cover page 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 the
cover page of this Agreement.
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 by mutual
agreement with Client in writing, 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
5.2 Support and Maintenance Fees for the initial year of
Maintenance are due upon contract execution and 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 the applicable Support and Maintenance
Fees pursuant to the agreed payment terms.
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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) 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
Status Updates
Times
Severity Level 1. The Defect is having a critical impact on
Response time — 1 hour 24x7
Status updates will be provided on an
Client's ability to conduct business in that the Licensed
Resolution plan -1 day
ongoing basis, as required.
Software is entirely inoperable, or database corruption has
Target resolution — 3 days
occurred, and no procedural workaround exists.
Severity Level 2. The Defect is having a severe impact on
Response time — 1 hour during business hours
Status updates will be provided daily.
Client's ability to conduct business, however, major business
Resolution plan — 2 days
operations can continue. Procedural work - arounds do not
Target resolution —10 days
exist.
Severity Level 3. The Defect is having a moderate impact
Target resolution - next maintenance release
None.
on Client's business that involves partial, non - critical
functionality loss. Procedural work - arounds exist.
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 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.
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6.7
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.
Deployment of Upgrades
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.
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
RFP 5821
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.
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.
6.8 External Support Dependencies
The Client will provide Clevest with VPN accounts and
SecurelDs (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.
6.9 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.
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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.
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
Clevest may provide the work to install software upgrades including Defect fixes, and perform database
Migrations on Production
migrations, directly on the target environments.
Environment
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.
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.
8.2 Source Code Escrow. For the protection of Client's rights
under this Agreement, Clevest shall establish, if specified on
the cover page of this Agreement or otherwise upon request
by Client, a source code escrow for the benefit of Client with
an escrow agent selected by Clevest pursuant to which
Clevest shall deposit the human readable source code for
the Licensed Software. The terms of the source code escrow
shall be substantially as set forth in a form of escrow
agreement to be provided by Clevest, and shall be mutually
acceptable to the parties. Client shall pay the amount set
forth on the cover page of this Agreement for the escrow
agent's fee and all other costs and expenses associated
with the source code escrow. Clevest may modify such fees
from time to time by providing at least sixty (60) days written
notice to Client.
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.
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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 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. 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
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EXHIBI
PROFESSIONAL SERVICES AGREEMENT
DEFINITIONS
"Agreement" means the terms and conditions contained in this
Professional Services Agreement, together with the terms and
conditions in the Software License Agreement, Support and
Maintenance Agreement, the General Terms and Conditions and
the cover page to which this Professional Services Agreement is
attached or incorporated by reference.
SCOPE OF SERVICES
2.1 Assignments. Clevest agrees to provide the professional services
( "Assignments ") described on separately executed assignment
orders (each, a "Statement of Work "), as may from time to time be
issued hereunder. Each Statement of Work will be effective,
incorporated into and form a part of this Professional Services
Agreement, when mutually accepted and duly executed by both
parties.
2.2 Statement of Work. Each Statement of Work will define a specific
Assignment authorized by Client, the delivery schedule or term,
the applicable pricing, and other appropriate terms.
2.3 Precedence. Each Statement of Work will be governed by the
terms of this Professional Services Agreement. In the event of
any conflict between this Professional Services Agreement and a
Statement of Work, the provisions of the Statement of Work will
prevail.
2.4 Effect of Professional Services Agreement and Statements of
Work. By entering into this Professional Services Agreement,
Client is not committing or obligating itself to use the services of
Clevest. No work or charges are or will be authorized hereunder
unless and until authorized in writing by a Statement of Work
executed by both parties.
PERFORMANCE OF ASSIGNMENTS
3.1 Project Managers. For each Statement of Work, each party will
designate a project manager whose duties will be to act as the
liaison for communications between the parties. Each party may
change its project manager at any time by written notice to the
other party.
3.2 Schedule. Clevest will begin to perform each Assignment on or
before the date specified in the applicable Statement of Work.
Clevest will use reasonable commercial efforts to complete each
Assignment by the dates provided in such Statement of Work.
However, Client acknowledges that the dates specified in a
Statement of Work are the best reasonable estimates of Clevest
for the time required to complete the Assignment based on the
information available to Clevest at the time of entering into a
Statement of Work. The dates upon which Clevest is required to
start or complete an Assignment will be automatically postponed
to the extent that Clevest is delayed by the act or failure to act of
Client, or by causes beyond Clevest's reasonable control, or by
design, programming, scheduling or technical problems not known
to Clevest on the date of any Statement of Work. The sole effect of
any delay by Clevest to perform the Assignment will be a
corresponding delay in the time for payment by Client.
3.3 Changes in Scope of Work. Requests by Client for changes to or
modifications in the scope of the services specified in a Statement
of Work will be subject to the following procedure: (a) Client will
advise Clevest in writing of the desired change or modification, in
such detail and with such additional information as Clevest may
reasonably request; (b) Clevest will notify Client within a
reasonable period of time of Clevest's estimate of the impact of
the desired changes or modifications on the total cost of the
Assignment, the time frame for completion and any further aspects
A
that, in the opinion of Clevest, are likely to be affected by the
desired changes; and (c) any changes or modifications will
be implemented only with the prior written approval of each
party's project manager.
3.4 Client Facilities and Assistance. To the extent required by
Clevest, Client will at its own cost make available to Clevest
certain of its facilities, computer resources, software
programs, personnel, and business information as will be
required to perform any Assignment hereunder. Without
limiting the generality of the foregoing, Client will perform
such additional responsibilities, if any, as may be described
in a Statement of Work. If Client fails to fulfill its
responsibilities in a proper and timely manner and such
failure is a direct cause of a delay in the performance of the
Assignment or results in additional cost to Clevest, then
Clevest will provide to Client a written specification of such
delay and Clevest's estimate of the resulting cost (if any).
Client will pay to Clevest the cost at Clevest's then current
standard time and material rates and charges and any time
limits for performance will be extended by a period equal to
the length of the delay.
3.5 Subcontracting. Clevest will have the right to use third
parties in performance of its obligations and services
hereunder and, for the purposes of this Professional Services
Agreement, all references to Clevest or its employees will be
deemed to include such third parties.
4. PRICE AND PAYMENT
4.1 Prices of Assignments. The services provided by Clevest will
be at the pricing set forth in the applicable Statement of
Work. In the event a Statement of Work does not reference
any fixed pricing, such services will be performed at Clevest's
then - current standard time and material rates and charges.
To the extent that any Statement of Work contains estimates
of pricing or Clevest otherwise provides a pricing estimate to
Client, Client acknowledges that such estimated prices are
the best reasonable estimates of Clevest based on the
information available to Clevest at the time of providing such
estimate and are subject to change at any time. Client
acknowledges that such estimated prices may change at
any time, including without limitation if Clevest is delayed by
the act or failure to act of Client, or by causes beyond
Clevest's reasonable control, or by design, programming,
scheduling or technical problems not known to Clevest on the
date of providing such estimate.
4.2 Expenses. Clevest will be reimbursed by Client for all
reasonable travel, food, lodging and other out -of- pocket
expenses incurred in performance of a given Assignment.
Clevest will submit to Client invoices and supporting
documentation acceptable to Client, acting reasonably, for
such expenses. If employees of Clevest are required to
provide services at locations other than at the premises of
Clevest, reasonable expenses will include all reasonable
travel, accommodation and food expenses of such
employees.
4.3 Invoicing. Clevest will submit invoices for charges and
expenses hereunder on a monthly or milestone basis and
Client will make payment of each invoice in accordance with
the terms of this Agreement.
4.4 Other Services. The provision of any services required by
Client outside of the scope of the services specified in a
Statement of Work will be billed by Clevest to Client at
Clevest's then current standard time and material rates and
charges.
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PROPERTY RIGHTS.
5.1 Products of Assignments and Clevest Property. Clevest will have
exclusive, unlimited ownership rights to all works performed under
each Statement of Work and all materials, programs,
documentation, designs, information and deliverables prepared
hereunder or developed as a result of Assignments, whether
prepared or developed by Clevest, Client, or through the
collaboration of both parties. Client hereby assigns to Clevest any
and all right, title and interest it might have in and to any such
materials, programs, documentation, designs, information and
deliverables, including without limitation all intellectual property
rights therein. Without limiting the foregoing, all systems,
programs and specifications, and other materials and hardware
owned by Clevest or in the possession of Clevest and used by
Clevest in conjunction with the performance of the Assignments
hereunder, will continue to belong exclusively to Clevest, whether
or not specifically adapted by Clevest for use by Client. Clevest
may use in any way which it deems necessary or appropriate any
ideas, concepts, know -how or techniques acquired, developed or
used by Clevest during the course of this Professional Services
Agreement and any Assignment.
5.2 Client Property. Subject to Section 5.1, nothing herein will be
construed to restrict, impair or deprive Client of any of its rights or
proprietary interest in technology or products that existed prior to
and independent of the performance of Assignments or provision
of materials by Clevest under this Professional Services
Agreement or any Statement of Work.
WARRANTIES
6.1 Limited Warranty. Clevest warrants that all Assignments
performed under this Professional Services Agreement will be
performed in a workmanlike and professional manner in
accordance with industry standards. In the event of a breach of
this warranty, the sole remedy of Client and sole obligation of
Clevest will be to reperform the nonconforming services of an
Assignment in accordance with such standards. Clevest will have
no obligation to Client for any claim under this Section 6.1 not
made within thirty (30) days after the performance of the services
giving rise to the claim.
6.2 Exclusion of Other Warranties. THE LIMITED WARRANTY SET
OUT IN SECTION 6.1 IS IN LIEU OF ALL OTHER WARRANTIES
OR CONDITIONS. EXCEPT FOR THE LIMITED WARRANTY
SET OUT IN SECTION 6.1, CLEVEST DISCLAIMS AND CLIENT
WAIVES ALL OTHER REPRESENTATIONS, WARRANTIES OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION THE IMPLIED OR STATUTORY WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, MERCHANTABLE
QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR TITLE OR NON - INFRINGEMENT AND THOSE
ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A
COURSE OF DEALING OR USAGE OF TRADE. THE STATED
LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES FOR
DAMAGES ARISING OUT OR IN CONNECTION WITH THE
ASSIGNMENTS AND THIS MASTER SERVICES AGREEMENT.
TERM, TERMINATION AND SUSPENSION OF SERVICES
7.1 Term of Professional Services Agreement. This Professional
Services Agreement will commence on the Effective Date and will
continue in full force, until terminated by either party as provided
herein.
7.2 Term of Statement of Work. Each Statement of Work will remain
in effect until (i) it has expired on its own terms, (ii) the
Assignment authorized thereunder is completed, or (iii) it is
terminated by either party as provided herein.
7.3 Termination. Without limiting the remedies otherwise
available under this Professional Services Agreement or at
law or equity, this Professional Services Agreement or any
Statement of Work hereunder may be terminated prior to
expiry or completion in accordance with the following:
(a) by either party without cause if at any time there are
no committed or active Statements of Work between the
parties;
(b) y either party if the other party commits a material
breach or failure of any of its obligations under this
Professional Services Agreement and, except for any
breach of a party's confidentiality obligations or a
breach by Client 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 the non - breaching party specifying
such breach or failure; or
(c) y either party if the other party 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.
Notice of termination of any one or more Statement(s) of
Work will not be considered notice of termination of this
Professional Services Agreement unless specifically stated
in the notice.
7.4 Effect of Termination. Upon termination or expiry of this
Professional Services Agreement or any Statement of Work:
(a) Client will pay all sums owing to Clevest under this
Professional Services Agreement in accordance with its
terms; and
(b) each party will return to the other party any and all
applicable Confidential Information of the other party
received in connection with this Professional Services
Agreement in its possession or control and, upon
request from a party, the other party will deliver a
certificate of an officer of the party certifying the
completeness of same.
7.5 Survival. Sections 7.4 and 8.1 and such other provisions as
may reasonably be expected to remain in force will survive
the expiry or termination of this Professional Services
Agreement and will remain in full force and effect following
such expiry or termination. The expiry or termination of this
Professional Services Agreement will not affect the rights of
any party to make a claim for damages arising from a breach
of any provision of this Professional Services Agreement
which occurred prior to such expiry or termination.
7.6 Suspension of Services. If Client fails to pay Clevest as
required by this Professional Services Agreement, without
due cause, Clevest will be entitled to immediately suspend
all activity relating to this Professional Services Agreement
upon delivery of written notice to that effect to Client, and
may pursue any other remedies which it may have under this
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Professional Services Agreement or otherwise at law. If any
dispute arises between Client and Clevest with respect to
Clevest's performance of Assignments or otherwise under this
Professional Services Agreement, Clevest and Client will promptly
attempt to resolve such dispute. If such a dispute arises, Client
will not be entitled to withhold timely payment under this
Professional Services Agreement pending resolution of such a
dispute. If such payments are made on a timely basis or, if the
parties then agree in writing that the payments may be made to
an escrow account, are deposited into an escrow account, Clevest
will not reduce or suspend services pending resolution of such a
dispute.
8. GENERAL
8.1 Clevest's General Terms and Conditions attached hereto are
part of this Professional Services Agreement and are
incorporated by this reference. Such General Terms and
Conditions shall survive any termination or expiry of this
Professional Services Agreement.
End of Professional Services Agreement
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EXHIBI
GENERAL TERMS AND CONDITIONS
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.
CONFIDENTIAL INFORMATION
2.1 Confidentiality. 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;
TD
(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.
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
completion of services, or receipt of invoice, whichever is
later. If payment is not timely made; interest shall accrue on
the unpaid balance at the lesser of the rate specified in Texas
Government Code Section 2251.025 or the maximum lawful
rate; except, if payment is not timely made for a reason for
which the City may withhold payment hereunder, interest
shall not accrue until ten (10) calendar days after the grounds
for withholding payment have been resolved_
3.2 Taxes. The amounts provided for in this Agreement are
exclusive of all sales, use, goods and services, value added
and other similar taxes, tariffs or duties, all of which will be
paid by Client unless client is tax - exempt, excluding tax
payable on income or capital of Clevest,. Concurrently with
payments to Clevest hereunder, Client will remit to Clevest
all taxes due in respect of the amounts payable by Client
hereunder. If any taxes are required to be withheld, then
Client will pay Clevest an amount such that the net amount
received by Clevest after withholding of such taxes will
equal the amount that would have been otherwise payable
under this Agreement.
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.
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4. LIMITATION OF LIABILITY AND INSURANCE
4.1 Limitation of Liability. NOTWITHSTANDING ANY TERM IN THIS
CONTRACT, CLEVEST'S LIABILITY TO CITY OF DENTON OR
ITS INSURERS FOR ANY LOSS OR DAMAGE REGARDING THIS
CONTRACT SHALL BE LIMITED AS FOLLOWS: 1) FOR THOSE
CLAIMS COVERED BY CLEVEST'S INSURANCE WHERE CITY
OF DENTON HAS BEEN NAMED AS AN ADDITIONAL INSURED
UPON THE APPLICABLE INSURANCE POLICY, CLEVEST'S
LIABILITY SHALL BE LIMITED TO THE AMOUNT OF THE
APPLICABLE INSURANCE POLICY; 11) FOR ALL OTHER CLAIMS
EXCEPT THOSE ARISING AS A RESULT OF CLEVEST'S
VIOLATION OF APPLICABLE LAW OR PATENT INFRINGEMENT,
CLEVEST'S LIABILITY SHALL IN NO EVENT EXCEED
$1,000,000, WHETHER AS A RESULT OF BREACH OF
CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
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 liability
insurance coverage as required in Exhibit F of this agreement.
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.
4.5 INDEMNITY:
A. Definitions: i. "Indemnified Claims" shall include any and all
claims, demands, suits, causes of action, judgments and liability of
every character, type or description, including all reasonable costs
and expenses of litigation, mediation or other alternate dispute
resolution mechanism, including attorney and other professional
fees for: (1) damage to or loss of the property of any person
(including, but not limited to the City, Clevest, their respective
agents, officers, employees and subcontractors; the officers,
agents, and employees of such subcontractors; and third parties);
and /or (2) death, bodily injury, illness, disease, worker's
compensation, loss of services, or loss of income or wages to any
person (including but not limited to the agents, officers and
employees of the City, Clevest, Clevest's subcontractors, and third
parties), ii. "Fault" shall include the sale of defective or non-
conforming deliverables, negligence, willful misconduct or a breach
of any legally imposed strict liability standard.
B. CLEVEST SHALL DEFEND (AT THE OPTION OF THE CITY),
INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS,
ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS
HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS
DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR
RESULTING FROM THE FAULT OF CLEVEST, OR CLEVEST'S
AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE
PERFORMANCE OF CLEVEST'S OBLIGATIONS UNDER
THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED
TO LIMIT THE RIGHTS OF THE CITY OR CLEVEST
(INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK
CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY
BE LIABLE FOR AN INDEMNIFIED CLAIM.
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.
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.
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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.
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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 maieure. 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.
5.18 Entire Agreement. This Agreement constitutes the entire
agreement between the parties concerning the subject matter
hereof, and supersedes all written or oral prior agreements or
understandings with respect thereto. There is no representation,
warranty, collateral term or condition or collateral agreement
affecting this Agreement, other than as expressed in writing in this
Agreement. Any purchase order or other instrument of Client
accompanying any documents delivered in connection with this
Agreement or a Client payment is for Client's internal use only
and its terms will not alter or amend the terms of this Agreement.
5.19 Applicable Law. This Contract 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 Contract
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.
5.20 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.
5.21 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.
5.22 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.
5.23 Language of Agreement. At the request of the parties hereto,
this Agreement has been drafted in the English language only.
A la demande des parties aux presentes, cette Convention a
ete redige en langue anglais seulement.
CIT1 D /e1
6.1 Survival. These General Terms and Conditions shall survive
any termination or expiry of this Agreement.
End of General Terms and Conditions
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EXHIBIT F
INSURANCE REQUIREMENTS AND
WORKERS' COMPENSATION REQUIREMENTS
Upon contract execution, all insurance requirements shall
become contractual obligations, which the successful contractor
shall have a duty to maintain throughout the course of this
contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities
of the Contractor, the Contractor shall provide and
maintain until the contracted work has been completed
and accepted by the City of Denton, Owner, the minimum
insurance coverage as indicated hereinafter.
Contractor shall File with the Purchasing Department
satisfactory certificates of insurance including any
applicable addendum or endorsements, containing the
contract number and titre of the project. Contractor may,
upon written request to the Purchasing Department, ask
for clarification of any insurance requirements at any time;
however, Contractor shall not commence any work or
deliver any material until he or she receives notification
that the contract has been accepted, approved, and
signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction
of these requirements shall comply with the following
general specifications, and shall be maintained in
compliance with these general specifications throughout
the duration of the Contract, or longer, if so noted.
Each policy shall be issued by a company
authorized to do business in the State of Texas with
an A.M. Best Company rating of at least A or better..
Any deductibles or self- insured retentions shall be
declared in the proposal. If requested by the City,
the insurer shall reduce or eliminate such
deductibles or self- insured retentions with respect to
the City, its officials, agents, employees and
volunteers; or, the contractor shall procure a bond
guaranteeing payment of losses and related
investigations, claim administration and defense
expenses.
Liability policies shall be endorsed to provide the
following:
Name as Additional Insured the City of Denton,
its Officials, Agents, Employees and volunteers.
That such insurance is primary to any other
insurance available to the Additional Insured with
respect to claims covered under the policy and
that this insurance applies separately to each
insured against whom claim is made or suit is
brought. The inclusion of more than one insured
shall not operate to increase the insurer's limit of
liability.
Cancellation: City requires 30 day written notice
should any of the policies described on the
certificate be cancelled or materially changed before
the expiration date.
Should any of the required insurance be provided
under a claims made form, Contractor shall maintain
such coverage continuously throughout the term of
this contract and, without lapse, for a period of three
years beyond the contract expiration, such that
occurrences arising during the contract term which
give rise to claims made after expiration of the
contract shall be covered.
Should any of the required insurance be provided
under a form of coverage that includes a general
annual aggregate limit providing for claims
investigation or legal defense costs to be included in
the general annual aggregate limit, the Contractor
shall either double the occurrence limits or obtain
Owners and Contractors Protective Liability
Insurance.
Should any required insurance lapse during the
contract term, requests for payments originating
after such lapse shall not be processed until the City
receives satisfactory evidence of reinstated
coverage as required by this contract, effective as of
the lapse date. If insurance is not reinstated, City
may, at its sole option, terminate this agreement
effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction
of this Contract shall additionally comply with the
following marked specifications, and shall be maintained
in compliance with these additional specifications
throughout the duration of the Contract, or longer, if so
noted.
[X] A. General Liability Insurance:
General Liability insurance with combined single
limits of not less than $1,000,000.00 shall be
provided and maintained by the Contractor. The
policy shall be written on an occurrence basis either
in a single policy or in a combination of underlying
and umbrella or excess policies.
If the Commercial General Liability form (ISO Form
CG 0001 current edition) is used:
• Coverage A shall include premises,
operations, products, and completed
operations, independent contractors,
contractual liability covering this contract and
broad form property damage coverage.
• Coverage B shall include personal injury.
• Coverage C, medical payments, is not
required.
If the Comprehensive General Liability form (ISO
Form GL 0002 Current Edition and ISO Form GL
0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for
premises, operations, products and completed
operations, independent contractors and
property damage resulting from explosion,
collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by
endorsement) covering this contract, personal
injury liability and broad form property damage
liability.
[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile
Liability insurance with Combined Single Limits
(CSL) of not less than $500,000 either in a single
policy or in a combination of basic and umbrella or
excess policies. The policy will include bodily injury
and property damage liability arising out of the
operation, maintenance and use of all automobiles
and mobile equipment used in conjunction with this
contract.
Satisfaction of the above requirement shall be in the
form of a policy endorsement for:
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• any auto, or named as an "Additional Insured" but the insurer
shall agree to waive all rights of subrogation against
• all owned hired and non -owned autos. the City, its officials, agents, employees and
volunteers for any work performed for the City by the
Named Insured. For building or construction
[Xj Workers' Compensation Insurance projects, the Contractor shall comply with the
provisions of Attachment 1 in accordance with
Contractor shall purchase and maintain Workers' §406.096 of the Texas Labor Code and rule 28TAC
Compensation insurance which, in addition to 110.110 of the Texas Workers' Compensation
meeting the minimum statutory requirements for Commission (TWCC).
issuance of such insurance, has Employer's Liability
limits of at least $100,000 for each accident,
$100,000 per each employee, and a $500,000 policy
limit for occupational disease. The City need not be
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ATTACHMENT 1
[X] Workers' Compensation Coverage for Building or
Construction Projects for Governmental Entities
A. Definitions:
Certificate of coverage ("certificate") -A copy of a
certificate of insurance, a certificate of authority to
self- insure issued by the commission, or a
coverage agreement (TWCC -81, TWCC -82,
TWCC -83, or TWCC -84), showing statutory
workers' compensation insurance coverage for the
person's or entity's employees providing services
on a project, for the duration of the project.
Duration of the project - includes the time from the
beginning of the work on the project until the
contractor's /person's work on the project has been
completed and accepted by the governmental
entity.
Persons providing services on the project
( "subcontractor" in §406.096) - includes all persons
or entities performing all or part of the services the
contractor has undertaken to perform on the
project, regardless of whether that person
contracted directly with the contractor and
regardless of whether that person has employees.
This includes, without limitation, independent
contractors, subcontractors, leasing companies,
motor carriers, owner - operators, employees of any
such entity, or employees of any entity which
furnishes persons to provide services on the
project. "Services" include, without limitation,
providing, hauling, or delivering equipment or
materials, or providing labor, transportation, or
other service related to a project. "Services" does
not include activities unrelated to the project, such
as food /beverage vendors, office supply deliveries,
and delivery of portable toilets.
B. The contractor shall provide coverage, based on
proper reporting of classification codes and payroll
amounts and filing of any overage agreements,
which meets the statutory requirements of Texas
Labor Code, Section 401.011(44) for all employees
of the Contractor providing services on the project,
for the duration of the project.
C. The Contractor must provide a certificate of
coverage to the governmental entity prior to being
awarded the contract.
D. If the coverage period shown on the contractor's
current certificate of coverage ends during the
duration of the project, the contractor must, prior to
the end of the coverage period, file a new
certificate of coverage with the governmental entity
showing that coverage has been extended.
E. The contractor shall obtain from each person
providing services on a project, and provide to the
governmental entity:
1. a certificate of coverage, prior to that person
beginning work on the project, so the
governmental entity will have on file
certificates of coverage showing coverage for
all persons providing services on the project;
and
2. no later than seven days after receipt by the
contractor, a new certificate of coverage
showing extension of coverage, if the
coverage period shown on the current
certificate of coverage ends during the
duration of the project.
F. The contractor shall retain all required certificates
of coverage for the duration of the project and for
one year thereafter.
G. The contractor shall notify the governmental entity
in writing by certified mail or personal delivery,
within 10 days after the contractor knew or should
have known, of any change that materially affects
the provision of coverage of any person providing
services on the project.
H. The contractor shall post on each project site a
notice, in the text, form and manner prescribed by
the Texas Workers' Compensation Commission,
informing all persons providing services on the
project that they are required to be covered, and
stating how a person may verify coverage and
report lack of coverage.
I. The contractor shall contractually require each
person with whom it contracts to provide services
on a project, to:
1. provide coverage, based on proper reporting
of classification codes and payroll amounts
and filing of any coverage agreements, which
meets the statutory requirements of Texas
Labor Code, Section 401.011(44) for all of its
employees providing services on the project,
for the duration of the project;
2. provide to the contractor, prior to that person
beginning work on the project, a certificate of
coverage showing that coverage is being
provided for all employees of the person
providing services on the project, for the
duration of the project;
3. provide the contractor, prior to the end of the
coverage period, a new certificate of coverage
showing extension of coverage, if the
coverage period shown on the current
certificate of coverage ends during the
duration of the project;
4. obtain from each other person with whom it
contracts, and provide to the contractor:
a. a certificate of coverage, prior to the
other person beginning work on the
project; and
b. a new certificate of coverage showing
extension of coverage, prior to the end of
the coverage period, if the coverage
period shown on the current certificate of
coverage ends during the duration of the
project;
5. retain all required certificates of coverage on
file for the duration of the project and for one
year thereafter;
6. notify the governmental entity in writing by
certified mail or personal delivery, within 10
days after the person knew or should have
known, of any change that materially affects
the provision of coverage of any person
providing services on the project; and
7. Contractually require each person with whom
it contracts, to perform as required by
paragraphs (1) - (7), with the certificates of
coverage to be provided to the person for
whom they are providing services.
J. By signing this contract or providing or causing to
be provided a certificate of coverage, the contractor
is representing to the governmental entity that all
employees of the contractor who will provide
services on the project will be covered by workers'
compensation coverage for the duration of the
RFP 5821 Page 15
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
project, that the coverage will be based on proper
reporting of classification codes and payroll
amounts, and that all coverage agreements will be
filed with the appropriate insurance carrier or, in the
case of a self- insured, with the commission's
Division of Self- Insurance Regulation. Providing
false or misleading information may subject the
contractor to administrative penalties, criminal
penalties, civil penalties, or other civil actions.
K. The contractor's failure to comply with any of these
provisions is a breach of contract by the contractor
which entitles the governmental entity to declare
the contract void if the contractor does not remedy
the breach within ten days after receipt of notice of
breach from the governmental entity.
RFP 5821 Page 16
DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8
DCHI BIT H
mQ 3? 99 a aL-k i dr4&rWt a A. v tmQ a2db rs { gid6■
/ 46mQ ni66.P w7
wt LIN notT . / / Amh A
Section A - Impelmentation Services
Section B - Annual Costs
ITEM
UOM
5iU "r#.t6m
6gAm
Proposed
6gAru
Optional Remote Support (10 days to 3 months post implementation) Hourly Rate:
$187.50
Fbrpetual Licensing Costs
Number of
ITEM
UOM
5sf1 "r#j'd'6m ai4ijj gedf {s'rOgE
LJ {1
CALEN
$130,000.00
$0.00
$0.00
oll
/ oeCoz {s'r's
to
R Days to
Work. The Oty estimates approximately 15 office and 25 field users of the software.
Complete
LS
Annual Maintenance &Support Costs
$26,000.00
$26,000.00
Project
1
LS
Kckoff
$10,000.00
10
2
LS
Integration (OMS, GISand CIE)
$40,000.00
60
4
LS
Integration (C)tyworks)
$30,000.00
30
5
LS
DMESaffTraining
$10,000.00
10
6
LS
DMEOn -site Testing
$20,000.00
20
7
LS
Roll Out
$15,000.00
15
Section B - Annual Costs
ITEM
UOM
5iU "r#.t6m
6gAm
6gAm
6gAru
Optional Remote Support (10 days to 3 months post implementation) Hourly Rate:
$187.50
Fbrpetual Licensing Costs
8
LS
Fticing shall indude annual site licensing for all users, asdescribed in Exhibit 3 - Scope of
$130,000.00
$0.00
$0.00
Work. The Oty estimates approximately 15 office and 25 field users of the software.
9
LS
Annual Maintenance &Support Costs
$26,000.00
$26,000.00
$26,000.00
Section C - Additional Services and Information:
ITEM
UOM
I DESCRIPTION
OPT1
I HR
Optional Remote Support (10 days to 3 months post implementation) Hourly Rate:
$187.50
Envelope Number: 372C048DAA2A4C3CAA6972EEABB1CFF8
Subject: Please DocuSign: 5821 Contract Documents for Mobile Workforce Management System
Source Envelope:
Document Pages: 24 Signatures: 4
Certificate Pages: 6 Initials: 0
AutoNav: Enabled
Envelopeld Stamping: Enabled
Status: Original
8/31/2015 1:48:52 PM PT
Rebecca Hunter
rebecca.hunter @cityofdenton.com
Senior Buyer
City of Denton
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Victor Holysh
victor.holysh @clevest.com
CFO
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Accepted: 8/31/2015 2:03:42 PM PT
ID: c6746b2b- 008b- 4f4c- a3b8- 60e487389dba
John Knight
john.knight @cityofdenton.com
Deputy City Attorney
City of Denton
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Julia Klinck
julia.klinck@cityofdenton.com
Contracts Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Holder: Rebecca Hunter
rebecca.hunter @cityofdenton.com
Completed
Using IP Address: 129.120.6.150
ED—Sig"Id by:
kt�or Hdys�.
DB36206A75A247A...
Using IP Address: 192.139.123.34
CD 5 "gnetl by:
ohn Knight
C821996C2A2B439...
Using IP Address: 129.120.6.150
Completed
Using IP Address: 129.120.6.150
Status: Completed
Envelope Originator:
Rebecca Hunter
rebecca.hunter @cityofdenton.com
IP Address: 129.120.6.150
Location: DocuSign
Sent: 8/31/2015 1:55:16 PM PT
Viewed: 8/31/2015 1:55:28 PM PT
Signed: 8/31/2015 1:56:05 PM PT
Sent: 8/31/2015 1:56:07 PM PT
Viewed: 8/31/2015 2:03:42 PM PT
Signed: 8/31/2015 2:06:16 PM PT
Sent: 8/31/2015 2:06:20 PM PT
Viewed: 8/31/2015 2:06:57 PM PT
Signed: 8/31/2015 2:08:11 PM PT
Sent: 8/31/2015 2:08:13 PM PT
Viewed: 8/31/2015 2:25:29 PM PT
Signed: 9/16/2015 10:00:49 AM PT
V -
OVINVWK110
George Campbell
george.campbell@cityofdenton.com
City Manager
City of Denton
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Jennifer Walters
jennifer .walters @cityofdenton.com
City Secretary
City of Denton
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
ED—Sig"Id by:
zoycae Crt✓+.�Oe1►
4884E925FOE6480...
Using IP Address: 129.120.6.150
E D siqnetl by:
C5B82W46
Using IP Address: 129.120.6.150
Charleta Gilbreath �� PI E D
charleta .gilbreath @cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Julia Klinck
julia.klinck@cityofdenton.com
Contracts Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
COPIED
Robin Fox O PI E D
Robin.fox @cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Jennifer Bridges �� PI E D
jennifer.bridges@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 9/16/2015 10:00:52 AM PT
Viewed: 9/16/2015 10:44:46 AM PT
Signed: 9/16/2015 10:46:10 AM PT
Sent: 9/16/2015 10:46:13 AM PT
Viewed: 9/17/2015 7:10:23 AM PT
Signed: 9/17/2015 7:10:50 AM PT
Sent: 8/31/2015 2:06:18 PM PT
Viewed: 9/1/2015 6:58:45 AM PT
Sent: 8/31/2015 2:06:18 PM PT
Sent: 8/31/2015 2:08:13 PM PT
Viewed: 9/1/2015 9:26:59 AM PT
Sent: 9/17/2015 7:10:53 AM PT
Electronic Record and Signature Disclosure:
Not Offered
ID:
Jerry Fielder Sent: 9/17/2015 7:10:55 AM PT
jerry.fielder @cityofdenton.com Viewed: 9/17/2015 7:15:00 AM PT
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Jane Richardson E Sent: 9/17/2015 7:10:57 AM PT
jane .richardson @cityofdenton.com Viewed: 9/22/2015 9:14:43 AM PT
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Robert Dreskai� E Sent: 9/17/2015 7:10:58 AM PT
robert.dreskai @clevest.com Viewed: 9/17/2015 8:18:19 AM PT
Security Level: Email, Account Authentication
(Optional)
Electronic Record and Signature Disclosure:
Not Offered
ID:
Envelope Sent
Hashed /Encrypted 9/17/2015 7:10:58 AM PT
Certified Delivered
Security Checked 9/17/2015 7:10:58 AM PT
Signing Complete
Security Checked 9/17/2015 7:10:58 AM PT
Completed
Security Checked 9/17/2015 7:10:58 AM PT
Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM
Parties agreed to: Victor Holysh
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