R2020-148 2020-08-24RESOLUTION NO. R2020-148
A Resolution of the City Council of the City of Pearland, Texas, authorizing the
purchase of Parks & Recreation Management Software, from Perfect Mind,
Inc., in the estimated amount of $56,383.06 for FY21, $66,997.11 for FY22,
and $68,464.96 for FY23.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for the purchase of Parks & Recreation Management
Software from Perfect Mind, Inc., a copy of which is attached hereto as Exhibit "A" and made a part
hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute and
the City Secretary to attest a contract for the purchase of Parks & Recreation Management
Software.
PASSED, APPROVED and ADOPTED this the 24th day of August, 2020.
r
TOM REID
MAYOR
., R Lq -.
ATTEST- Q� NO ';
CR ROAN, TRMC, CMC
CITY SECRETARY
APPROVED AS TO FORM: °..........
Q�—
DARRIN M. COKER
CITY ATTORNEY
Resolution No. 2020-148
SOFTWARE AS A SERVICE & PROFESSIONAL SERVICES AGREEMENT
BETWEEN
PERFECTMIND INC.
AND
CITY OF PEARLAND, TX
DATED: SEPTEMBER 16, 2020
TABLE OF CONTENTS
PART 1 DEFINITIONS AND INTERPRETATION...........................................................................................1
PART2 —LICENSE...................................................................................................................................................3
PART 3 —PROFESSIONAL SERVICES.................................................................................................................4
PART 4 —FEES AND PAYMENTS.........................................................................................................................6
PART 5 —USE OF THE PLATFORM.....................................................................................................................7
PART 6 —CONTENT, INTELLECTUAL PROPERTY AND PRIVACY.........................................................11
PART 7 —TERM AND TERMINATION..............................................................................................................13
PART 8 —CONFIDENTIALITY....................................................
........14
PART 9 WARRANTIES, DISCLAIMERS, INDEMNITIES AND LIABILITY............................................15
PART10 —GENERAL.............................................................................................................................................18
Exhibits:
Exhibit A — Platform Use Fees
Exhibit B — Statement of Work
Exhibit C — PerfectMind Rates for Professional Services
Exhibit D — Service Levels
Exhibit E — Platform Features and Functionalities
SOFTWARE AS A SERVICE & PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is dated SEPTEMBER 16, 2020
BY AND BETWEEN:
PerfectMind Inc.
("PerfectMind"), a British Columbia
corporation having an office at:
2°d Floor, 4333 Still Creek Drive
Burnaby, British Columbia
V5C 6S6
AND City of Pearland
("Customer"), a Texas corporation
having an office at:
4141 Bailey Road
Pearland, TX
77584
WHEREAS PerfectMind wishes to license to Customer, and Customer wishes to use and license
from PerfectMind, the Platform (as defined herein) on the terms and conditions set out in this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,
the parties agree as follows:
PART 1—DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, unless the context otherwise requires, capitalized
terms will have the meaning assigned to them herein, including the following:
(a) "Account" has the meaning set out in §5.6;
(b) "Account -holder" means an individual designated by Customer to whom an Account is
issued;
(c) "Applicable Laws" means all applicable laws and regulations, including all applicable local,
provincial, state, national and foreign laws, treaties and regulations as well as orders of courts or
laws, regulations, by-laws or ordinances of applicable governmental agencies;
(d) "Claims" means liabilities, actions, proceedings, claims, causes of action, demands, debts,
losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any
action or to satisfy a judgment and expenses of any kind and character whatsoever incurred in
connection therewith;
(e) "Confidential Information" has the meaning set out in §8.1;
(f) "Content" means all materials and content, including designs, editorials, text, graphics,
audiovisual materials, multimedia elements, photographs, videos, music, sound recordings,
reports, documents, software, information, formulae, patterns, data and any other work, and
"Customer Content" is Content entered, uploaded or inputted into the Platform by or on behalf
of Customer;
(g) "Customer Data" means information, materials, or data, including Customer Content,
entered, uploaded or inputted into the Platform by or on behalf of Customer;
(h) "Enhancement" means enhancements, developments, modifications, updates, additions and
improvements made to the Platform, other than New Features and Functions;
(i) "Force Majeure" means circumstances beyond a party's reasonable control, including
without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of
terror, strikes or other labour problems, or Internet service provider failures or delays, or hosting
service provider failures or delays;
0) "Intellectual Property Rights" means any and all (i) proprietary rights provided under
patent law, copyright law, trade -mark law, design patent or industrial design law, semi -conductor
chip or mask work law, or any other applicable statutory provision or otherwise arising at law or
in equity, including, without limitation, trade secret law, that may provide a right in works,
software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies,
techniques, inventions, or know-how, or the expression or use thereof, (ii) applications,
registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the
foregoing, and (iii) past, present, and future causes of action, rights of recovery, and claims for
damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of
the foregoing;
(k) "New Features and Functions" means any update, revision, new version, new module or
upgrade of the Platform made available by PerfectMind from time to time (i) that adds new
functions or features to the Platform and (ii) for which PerfectMind charges a fee to its customers
in order to obtain same;
(1) "PerfectMind Privacy Policy" means PerfectMind's privacy policy made available at
hqp://www.perfectmind.com/academy/privacy as amended from time to time;
(m) "PerfectMind Technology" means (i) any concepts, inventions, systems, processes,
techniques, methodologies, know-how, data, tools, templates, technology (including software in
executable code and source code), documentation or any other information, data or materials, and
any expressions of the foregoing, developed by, owned by, or licensed to, PerfectMind; and (ii)
the Work Product;
(n) "Permitted Purpose" means managing and operating Customer's facilities located in the
City of Pearland, Texas, including customer relationship management, facility bookings,
membership sales, point of sale transaction processing and scheduling;
(o) "Platform" means the software and supporting hardware platform known as "PerfectMind"
that is owned and operated by PerfectMind, and that will be made available to Customer as a
service under this Agreement via a designated website or websites as may be designated by
PerfectMind, from time to time, together with the related documentation, Content (other than
Customer Content and Customer Data) and end user materials delivered therewith;
(p) "Professional Services" has the meaning set out in §31;
(q) "Statement of Work" has the meaning set out in §3.1;
(r) "Term" has the meaning set out in §7.1; and
(s) "Work Product" means all improvements, enhancements and derivatives thereto
developed by PerfectMind for the purposes of providing the Professional Services under this
Agreement or otherwise and any and all other work products developed by PerfectMind for the
purposes of providing the Professional Services under this Agreement.
1.2 Interpretation. In this Agreement, unless expressly stated otherwise or the context
otherwise requires, (a) headings and captions are for convenience only and will not be deemed to
explain, limit or modify the provisions hereof, (b) the word "including", when following a general
statement or term, is not to be construed as limiting the general statement or term (whether or not
used in connection with phrases such as "without limitation" or "but not limited to") and the word
"or", when connecting two or more matters, will not imply an exclusive relationship between the
matters, (c) a reference to a "person" or "entity" means an individual, corporation, body corporate,
firm, limited liability company, partnership, syndicate, joint venture, society, association, trust or
unincorporated organization or governmental authority or trustee, executor, administrator or other
legal representative, including any successor to that person, (d) a word importing the masculine
gender includes the feminine and neuter, a word in the singular includes the plural, a word
importing a corporate entity includes an individual, and vice versa, (e) words, phrases and
acronyms not otherwise defined herein that have a meaning commonly understood and accepted
by persons familiar with the Internet and computing services professionals will be interpreted and
understood to have that meaning herein, and (f) in the event of any conflict or inconsistency
between the terms of this Agreement and the terms of the Exhibits hereto, the terms of the Exhibits
hereto will prevail to the extent necessary to resolve such conflict or inconsistency.
PART 2—LICENSE
2.1 License. PerfectMind grants to Customer a non-exclusive, non -transferable, right
and limited license, only during the Term, to access and use the Platform for the Permitted
Purposes only. All rights not expressly granted to Customer are reserved by PerfectMind and, if
applicable, its licensors.
2.2 Complete Software; Enhancements. Upon completion of the Professional
Services described in the Statement of Work attached to this Agreement as Exhibit B, the Platform
with the features and functionalities described in Exhibit E attached to this Agreement will be
configured and made available to Customer for access and use by Account -holders. Customer
agrees that its entry into this Agreement is not contingent on the delivery of any future functionality
or features by PerfectMind. PerfectMind may, from time to time and its sole discretion, update
the Platform (including the underlying server software or hardware) or otherwise offer
Enhancements, which Enhancements will form part of the Platform being licensed and provided
hereunder without further payment by Customer. PerfectMind will use commercially reasonable
efforts to (a) ensure that such Enhancements are compatible with and will not adversely affect or
reduce the functionality, performance, availability and accessibility of the Platform, and (b) to the
extent that such Enhancements do so adversely affect the Platform and Customer notifies
PerfectMind of same, restore or reinstate the Platform or parts of it causing the adverse effects to
its or their status prior to the Enhancement, as soon as may be reasonable and practicable in the
circumstances. Notwithstanding any Enhancements or other changes to the Platform, PerfectMind
will maintain the functionality of the Platform so it is always materially equal to or better than the
functionality of the Platform as of the date that Customer first commences using the Platform.
2.3 New Features and Functions. PerfectMind may, from time to time and in its sole
discretion, develop and offer New Features and Functions that will not form part of the Platform
licensed hereunder and may be provided and licensed separately to Customer for an additional fee.
For clarity, in no event will PerfectMind be obligated to provide any New Features and Functions
free of charge.
PART 3—PROFESSIONAL SERVICES
3.1 Professional Services. Customer may, from time to time, request PerfectMind to
provide customization and deployment services and other related professional services in relation
to Customer's use of the Platform (the "Professional Services") and PerfectMind may, in its
discretion, agree to provide the Professional Services. Upon agreement on the particulars of the
Professional Services, including the fees payable by Customer to PerfectMind for the Professional
Services, such particulars shall be included in a statement of work (a "Statement of Work"),
which shall be signed by PerfectMind and Customer, and which shall form a schedule to and be
incorporated into and form part of this Agreement. To the extent that there is any inconsistency
between any provision in any Statement of Work and the rest of this Agreement, the terms of such
Statement of Work will prevail. Each Statement of Work may contain, unless the parties agree
otherwise, a description of the work to be conducted, the functional requirements and technical
specifications applicable to the work, the work schedule and milestones, the deliverables and
delivery schedule, acceptance criteria, and such other information and additional terms and
conditions as the parties may mutually agree upon. As of the date of this Agreement, PerfectMind
and Customer have agreed upon the Professional Services described in the Statement of Work
attached to this Agreement as Exhibit B.
3.2 Change Orders. Customer may, from time to time, request changes to the scope
of the Professional Services described in a Statement of Work. In response to any such request
from Customer, PerfectMind shall determine the feasibility of providing such changes and shall
estimate the increase in the total fees payable for providing such changes to the Professional
Services. Following receipt of PerfectMind's response to Customer's request, the parties shall
negotiate an amended Statement of Work which sets out the changes to the Professional Services
and the additional fees payable in respect thereof.
3.3 Customer's Responsibilities. The work functions and tasks relating to the
Professional Services for which Customer or a third party shall be responsible shall be described
in the Statement of Work. Customer agrees to perform and cause the third party to perform such
work functions and tasks in a timely fashion. Customer agrees to provide or make available and
cause any third party identified in the Statement of Work as being responsible for any function or
task in any way related to the Professional Services to provide or make available all information
reasonably requested by PerfectMind to perform the Professional Services. PerfectMind will not
be liable for loss or damage arising from reliance on any such information.
3.4 Project Teams. Each party will be solely responsible for staffing its project team
for the performance of the Professional Services by PerfectMind and relating work functions and
tasks by Customer as described in a Statement of Work. Each member of a project team will
possess skills and knowledge appropriate to the work functions to be performed by that team
member. Either party may, by way of replacement or addition, make changes to the personnel
assigned to its project team, provided that each replacement team member shall possess skills and
knowledge at least equivalent to the project -related skills and knowledge of the team member
being replaced. Each party shall appoint a project manager in respect of its project team. The
project managers shall be available for weekly meetings to review the progress of the Professional
Services.
3.5 Use of Customer's Facilities. For Professional Services to be performed at the
Customer premises, Customer will provide all work space, facilities and support that are
reasonably requested by PerfectMind to perform such Professional Services, including without
limitation, secretarial support, telephone, and computer facilities.
3.6 No Liability for Others' Failure to Perform. Customer agrees and acknowledges
that PerfectMind's performance of the Professional Services will be conditional upon, and subject
to, Customer's performance of its obligations hereunder and the performance by any third party
identified in the Statement of Work of its functions and task to the extent that such functions and
task relate to the Professional Services, and that PerfectMind will not be liable or responsible, in
any manner or to any extent, for any failure of PerfectMind to perform all, or any part of, the
Professional Services to the extent that any such failure is caused by a failure of Customer to
perform its obligations or the third party to perform its functions and tasks.
3.7 Third Party Hardware/Software. Customer will be solely responsible for the
evaluation, selection, installation, implementation, compatibility, use and performance of and
results obtained from any hardware, systems software, utility software, security software,
telecommunication equipment or software, and applications software used in connection with the
Professional Services, unless (and only to the extent) otherwise expressly agreed in this
Agreement. Except as expressly provided in this Agreement, Customer and/or the third party
vendors of the software packages selected for use by Customer will be responsible for the
installation, acceptance and performance of the selected software packages.
3.8 Third Party Products. Where the Professional Services to be provided by
PerfectMind involve the acquisition by Customer of products of third parties, PerfectMind will not
be responsible for delays in the delivery of such products by third parties or for such product's
faulty quality, defective performance, or failure to perform in accordance with published
specifications or accepted standards. PerfectMind will transfer to Customer any transferable
warranties provided to PerfectMind by third parties. PerfectMind makes no independent
5
representations or warranties with respect to products provided by third parties. Any third party
warranties are the exclusive remedies of Customer with respect to such products.
3.9 Use of Subcontractors. Customer acknowledges that PerfectMind may engage
agents and subcontractors to perform any of the Professional Services described in a Statement of
Work. PerfectMind shall be responsible for the fulfilment of its obligations hereunder,
notwithstanding the performance of any of its obligations by its agents and subcontractors.
3.10 No Recruitment. Customer agrees that during the term of this Agreement, and for
a period of one (1) year thereafter, it will not, without the prior written consent of PerfectMind,
hire, retain or engage, or make an offer in respect of same to, any employee, independent contractor
or consultant of PerfectMind.
PART 4—FEES AND PAYMENTS
4.1 Platform Use Fees. Customer will pay all fees and charges in connection with the
use of the Platform in accordance with Exhibit A, which forms an integral part hereof and is
incorporated herein by reference.
4.2 Platform Use Billing. The fees payable by Customer for use of the Platform in
each twelve (12) month period is payable in advance at the beginning of such period. PerfectMind
will invoice Customer for such fees at the beginning of each 12 month period, and Customer will
pay each invoice within thirty (30) days after the date of the invoice; provided that the entire fee
for the first twelve-month period in the Term is payable and due upon the signing of this
Agreement. All amounts due by Customer hereunder will be paid, unless otherwise expressly set
out herein, without any deduction, adjustment or set-off whatsoever.
4.3 Taxes. Fees for use of the Platform do not include any taxes, and Customer agrees
to pay all applicable sales, use, value-added and other taxes or similar nature based on or due as a
result of any amounts paid to PerfectMind under this Agreement.
4.4 Late Payments. If PerfectMind does not receive payment in full of an invoice
within 30 days after the date of such invoice and Customer fails to make full payment within ten
(10) days after written notice of the non-payment is given by PerfectMind, Customer will be
deemed to be in default. Customer will pay any and all collection costs incurred by PerfectMind
in collection of outstanding debts. In addition to any other rights granted to PerfectMind herein
and available to PerfectMind at law or in equity, PerfectMind reserves the right to suspend the
Accounts and Customer's right to use and access to the Platform if Customer is in default with
respect to its payment obligations. PerfectMind reserves the right to impose a reconnection fee
upon reactivation if any such suspension takes place.
4.5 Professional Services Fees. If the Professional Services are to be provided on a
fixed price basis, the Statement of Work will set out the total contract price, a payment schedule,
including the fees payable in respect of each deliverable and/or milestone, as applicable. If the
Professional Services are to be provided by PerfectMind on a time and materials basis, the rate(s)
in Exhibit C attached hereto will apply. PerfectMind may, from time to time and upon sixty (60)
days' notice to Customer, amend the rate(s) for Professional Services. Per diem rates shall be
based on a 7.5 hour day. Once a Statement of Work is signed by the parties, the rates structure in
effect at the time of the signing of the Statement of Work shall apply for the duration of the project
described in the Statement of Work. PerfectMind's fees for Professional Services (whether fixed
or based on time and materials) do not include any travel, living or any other out-of-pocket
expenses incurred by PerfectMind or its subcontractors in providing Professional Services.
Customer will pay PerfectMind a flat rate of $550 per day per PerfectMind employee or
subcontractor who provides on-site Professional Services to Customer to cover accommodation,
meal, local transportation and other out-of-pocket expenses, except travel (airfare) expenses.
Customer will reimburse PerfectMind for all reasonable travel (airfare) expenses incurred by
PerfectMind's to send its employees and subcontractors to Customer's site. All such travel (airfare)
expenses for which PerfectMind seeks reimbursement will be supported by documentation in a
form reasonably acceptable to Customer.
4.6 Professional Fee Billing. PerfectMind will invoice Customer for the Professional
Services according to the payment terms specified in the Statement of Work, or if no payment term
is specified in the Statement of Work, on a monthly basis, and Customer will pay each invoice
within fifteen (15) days after receipt of invoice, unless the parties agree otherwise in writing.
Customer agrees to pay interest at the rate set out in the Statement of Work, or if none specified at
1.5% per month, on any unpaid amounts from the date due to the date upon which the balance is
discharged, such interest to accrue from day to day and be compounded on a monthly basis, unless
the parties agree otherwise in writing. The fees for the Professional Services to be performed
pursuant to the Statement of Work attached hereto as Exhibit B are set out and shall be due and
payable to PerfectMind in accordance with the "Fee payment schedule" section of Exhibit B, upon
Customer's receipt of PerfectMind's invoices.
4.7 Taxes and Duties Relating to Professional Fees. All amounts payable in respect
of the Professional Services rendered by PerfectMind to Customer under this Agreement will be
exclusive of all shipping charges, insurance charges, customs duties, sales taxes, value-added
taxes, and any other like charges or taxes. Customer will be responsible for paying all such charges
and taxes in connection with the provision of the Professional Services under this Agreement.
4.8 Currency. All prices in this Agreement are in United States (US) dollars.
PART 5—USE OF THE PLATFORM
5.1 PerfectMind Responsibilities. PerfectMind will provide the Platform in
accordance with the service levels set out in Exhibit D. PerfectMind will provide to Customer, at
no additional charge, the support for the Platform described in Exhibit D. PerfectMind will comply
with all Applicable Laws in the performance of this Agreement.
5.2 Training. PerfectMind will provide training to Customer's staff during the
implementation period as provided in Exhibit B. This training may be in the form of in-person/on-
site training or remote/online training. Customer's staff will also have access to all on-line training
materials made available by PerfectMind to its customers including live and pre-recorded
webinars. Customer may purchase additional training at PerfectMind's posted standard hourly rate
for professional services. For additional training purchased by Customer, Customer will reimburse
PerfectMind for all reasonable travel and other out-of-pocket expenses incurred by PerfectMind's
employees and subcontractors in providing on-site training. All such expenses for which
PerfectMind seeks reimbursement will be supported by documentation in a form reasonably
acceptable to Customer.
5.3 Customer Responsibilities. Customer will (a) be responsible for Account-
holders' compliance with all of the terms and conditions of this Agreement; (b) be solely
responsible for the accuracy, quality, integrity and legality of Customer Data, including Customer
Content, and of the means by which Customer Data is acquired and used, including compliance
with all personal information privacy laws and regulations and ensuring that no third party
Intellectual Property Rights are infringed; (c) use commercially reasonable efforts to prevent
unauthorized access to or use of the Platform, and notify PerfectMind promptly of any such
unauthorized access or use; and (d) use the Platform only for Permitted Purposes and in accordance
with the documentation therefor and all Applicable Laws.
5.4 Prohibited Conduct. Customer will not
(a) make the Platform available to anyone, or permit anyone to access the Platform,
other than Account -holders;
(b) license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent,
lease or time-share the rights granted to Customer under this Agreement, or copy or
otherwise commercially exploit the Platform or its components in any way except in
accordance with the rights granted hereunder;
(c) use the Platform in any manner or for any purpose (i) that violates this Agreement,
(ii) that contravenes, facilitates the violation of, or violates any Applicable Laws; (iii) that
extracts, gathers, collects, or stores personal information about individuals except in
compliance with all applicable personal information privacy laws or that involves data
mining, robots or similar data gathering or extraction methods on individual's personal
information without their express consent, or (iv) that interferes with or disrupts the
integrity or performance of the Platform, PerfectMind's systems or networks or third -
parry data of Content contained therein;
(d) attempt to gain unauthorized access to the Platform or its related systems or
networks;
(e) post, upload, reproduce, distribute or otherwise transmit on the Platform (i) pyramid
schemes, (ii) any material that contains a virus, cancelbot, Trojan horse, worm or other
harmful, disruptive or surreptitious component, (iii) defamatory, infringing, indecent or
unlawful software, materials or information, or (iv) inappropriate, profane, or obscene
software, materials or information without suitable or lawfully -required access controls;
(f) alter, modify, reverse engineer, decompile, or disassemble, translate, extract data
structures from or otherwise attempt to extract the source code from the Platform or any
part thereof;
(g) create derivative works based on the Platform or works containing a substantial part
of the Platform;
(h) copy, frame or mirror any part or content of the Platform;
(i) disable or circumvent any access control or related process or procedure established
with respect to the Platform;
6) remove any copyright or other proprietary or Intellectual Property Rights notices or
labels on or in the Platform or any part, copy or report generated therefrom or thereof,
(k) use the Platform to scan or probe another computer system, obstruct or bypass
computer identification procedures or engage in unauthorized computer or network
trespass without the express permission of the owners of such computer systems;
(1) access the Platform in order to (i) build a competitive product or service, or (ii) copy
any ideas, features, functions or graphics of the Platform;
(m) forge headers or otherwise manipulate any protocols or identifiers used in any
system or protocol in such a manner to disguise the origin of any Content transmitted
using the Platform;
(n) impersonate or falsely represent an association with any, person, including a
PerfectMind representative, without the prior express, written permission of such person;
or
(o) permit any of the foregoing to be done by any person, including Customer's
employees, contractors, agents, or representatives, including Account -holders.
5.5 Commercial Electronic Messages. All email messages that Customer sends using
the Platform will comply with all applicable anti -spam laws and regulations, including those
relating to commercial electronic messages. When using the Platform, Customer will represent
itself and/or its organization accurately and will not impersonate any other person, whether actual
or fictitious. Customer specifically agrees that (to the extent that the Platform permits it, and it is
within Customer's control to do so) for all messages that Customer sends using the Platform (i)
the "from" line of the message will accurately and in a non -deceptive manner identify Customer's
organization; (ii) the "subject" line of the message will not contain any deceptive or misleading
content regarding the overall subject matter of the message, and (iii) the message will include the
contact information of the Account -holder who sends the message or another individual within
Customer's organization who may be readily contacted by the recipient, and such contact
information will remain valid for at least 60 days after the message is sent. Customer will ensure
that every message sent using the Platform will contain an "unsubscribe" link that allows recipient
to remove himself/herself/itself from Customer contact list and specify an electronic address on
the World Wide Web that can be accessed by the recipient of the message for the purpose of
unsubscribing. Customer will promptly, and in any event no later than 10 days after the receipt of
the request, give effect to any unsubscription requests it receives. Customer may not charge a fee,
require the recipient to provide any personally identifying information beyond an email address,
or make the recipient take any step other than sending a reply email or visiting a single page on an
Internet website as a condition for giving effect to an unsubscribe request. Customer acknowledges
that Customer will be responsible for maintaining and giving effect to the list of unsubscribe
requests following termination of this Agreement.
5.6 Account Use. PerfectMind will issue Accounts, or permit Customer to issue
Accounts, to individuals selected by Customer as Account -holders. Only Account -holders may
access or use the Platform and each Account -holder's access to the Platform requires valid login
credentials, including at least user identification and secure passwords (each an "Account"). The
rights of an Account -holder may not be used by more than one individual, unless the Account of
the Account -holder is reassigned in its entirety to another Account -holder, in which case the prior
holder of the Account shall no longer have any right to access or use the Platform. Customer
acknowledges and agrees that Customer:
(a) is fully responsible for Accounts assigned by or at the request of Customer and the
acts and omissions of each Account -holder, including the creation of Account credentials
by any person, the maintenance, confidentiality and security of all passwords related to
Accounts, and any and all activities that occur under Accounts (including persons who
gain access to such Accounts, whether with or without permission);
(b) will notify PerfectMind as soon as practicable after obtaining or receiving any
knowledge of (i) any unauthorized use of an Account or any password related to an
Account, or (ii) any other breach of security with respect to an Account, provided that
such notification will not negate Customer's liability for any unauthorized use of an
Account or password until such time as PerfectMind can be reasonably expected to take
corrective measures; and
(c) will provide true, current, accurate and complete information as prompted by the
Account -creation process or as otherwise requested by PerfectMind from time to time and
to promptly update such information when any changes occur so as to keep such
information held by PerfectMind true, current, complete and. accurate.
5.7 Usage Limitations. The following provisions apply with respect to the Platform:
(a) General Practices and Limits. Customer acknowledges and agrees that
PerfectMind may establish from time to time general practices and limits concerning the
use of the Platform, including: the maximum size of any Customer Data, including
Customer Content, that may be stored on PerfectMind servers (the "Storage Limit"); the
maximum amount, speed and type of Customer Data, including Customer Content, that
may be sent from or received using the Platform (the "Usage Limit"). Such general
practices and limits may be posted on PerfectMind's website or otherwise made available
through the Platform. Customer agrees that Customer's usage may not exceed such
limits, and that it is Customer's responsibility to monitor Account usage of the Platform.
PerfectMind covenants that the Storage Limit and the Usage Limit set for Customer will
not be less than the following:
Minimum Storage Limit
10
• Storage: 80GB ($160 per month for every additional 80GB blocks of
storage)
Usage Limit
• Accountholders: Unlimited
• Email: 25,000 emails per month ($200 per month for additional 50,000
emails
(b) Internet -based Software. The Platform depends on the Internet, including
networks, cabling, equipment and facilities that are not in PerfectMind's control;
accordingly (i) any representation made by PerfectMind regarding access performance,
speeds, reliability, availability, use or consistency of the Platform, to the extent that they
are dependent on the underlying Internet services, are on a "commercially reasonable
efforts" basis, (ii) PerfectMind cannot guarantee any minimum level regarding actual user
performance, speed, reliability, availability, use or consistency based on factors
depending on the Internet, and (iii) content, data, messages, information or materials sent
over the Internet may not be completely private, and anonymity is not guaranteed.
PART 6—CONTENT, INTELLECTUAL PROPERTY AND PRIVACY
6.1 Reservation of Rights. All right, title and interest, including all Intellectual
Property Rights, in and to the Platform and PerfectMind Technology is and will at all times be
fully vested in PerfectMind or its licensors, as the case may be.
6.2 Third -Party Content—Content accessed or available through the Platform may
be owned by third -parties other than PerfectMind or Customer (collectively, "Third Party
Content") and may be protected by applicable Intellectual Property Rights. During use of the
Platform, Customer may enter into correspondence with, purchase goods, hardware or services
from, or participate in promotions of advertisers or sponsors showing their goods or services
through the Platform. Any such activities, and any terms, conditions, warranties or representations
associated with such activities are solely between the applicable third party and Customer.
PerfectMind and its licensors shall have no liability, obligation or responsibility to Customer for
any such correspondence, purchases or promotions. Customer acknowledges and agrees that
Customer shall be solely responsible for obtaining necessary licenses, consent and permits from
third -party providers with respect to any Third Party Content or ancillary software, hardware, or
services that Customer may use in connection with its use of the Platform.
6.3 Feedback. From time to time during the term of this Agreement, Customer and
Account -holders may provide PerfectMind with comments, suggestions, ideas and impressions of
the Platform ("Feedback"). Customer acknowledges and agrees that, by disclosing such Feedback
to PerfectMind, the provider thereof will be deemed to have granted to PerfectMind a royalty -free,
worldwide, transferable, sub -licensable, non-exclusive, irrevocable and perpetual license to use,
modify, adapt, improve or incorporate such Feedback into the Platform. Customer acknowledges
and agrees that the right to use the Platform is good and sufficient consideration for any
I
contributions, through the Feedback or otherwise, to the design, improvement, or functionality of
the Platform and the transfer to PerfectMind thereof.
6.4 Customer Data. PerfectMind does not claim ownership of, and assumes no
liability or responsibility with respect to, any Customer Data, including Customer Content. As
between PerfectMind and Customer, all right, title and interest (including Intellectual Property
Rights) in and to Customer Data will at all times be fully vested in Customer, except that, by
posting, uploading, inputting, providing, submitting, entering or otherwise transmitting Customer
Data to PerfectMind or any third party using the Platform, Customer agrees as follows:
(a) Customer will have thereby granted PerfectMind a royalty -free, non-exclusive,
worldwide, fully paid-up limited license to use, copy, distribute, transmit, display, edit,
delete, publish and translate such Customer Data to the extent reasonably required by
PerfectMind in connection with the functionality of the Platform and the performance of
this Agreement as well as to ensure adherence to or enforce the terms of this Agreement;
(b) Customer, and not PerfectMind, will have sole responsibility for the accuracy,
quality, integrity, legality, reliability, appropriateness and Intellectual Property Rights of
all Customer Data, and PerfectMind will not be responsible or liable for the deletion,
correction, destruction, damage, loss or failure to store any Customer Data; and
(c) Customer will have thereby confirmed, represented and warranted to PerfectMind
that Customer has all rights, titles and interests (including all Intellectual Property Rights
as well as the power and authority necessary), to grant the license to such Customer Data
set above in subsection 6.4(a).
6.5 Privacy. PerfectMind acknowledges and agree that Customer Data may contain
sensitive information, and, in connection therewith, (a) PerfectMind will comply with all
Applicable Laws relating to personal information privacy, including British Columbia Personal
Information Protection Act and will adhere to the PerfectMind Privacy Policy, which forms an
integral part hereof and is incorporated herein by reference; (b) PerfectMind will use industry -
standard management practices, technologies and security to protect the integrity, safety and
security of Customer Data in both physical and electronic form; (c) Customer acknowledges and
agrees that its use of the Platform will utilize, in whole or in part, the public Internet and third party
networks to transmit communications, which transmissions may be intercepted by other parties or
stored; cached, routed, transmitted or received in jurisdictions outside of the jurisdiction of
Customer, (d) PerfectMind will not use Customer Data for any purpose other than to provide the
functionality of the Platform to Customer and its users, to ensure adherence to or enforce the terms
of this Agreement, or (only in aggregate form) for site metrics; (e) PerfectMind reserves the right
to modify the PerfectMind Privacy Policy and its security policies in its reasonable discretion from
time to time, subject to any Applicable Laws.
6.6 Use of the Other Party's Name. Each party may use the other party's name in its
news releases, marketing and promotional materials and the like provided that such will comply
with any standards set by the other party from time to time. Each party will cease to use the other
party's name upon any expiration or termination of this Agreement.
12
PART 7—TERM AND TERMINATION
7.1 Term. This Agreement commences on the date first set out above and will continue
in effect for three (3) years thereafter, unless earlier terminated or renewed in accordance with the
provisions of this Agreement (the "Term"). At the expiration of the initial three year period, the
Term will be automatically renewed for successive one year periods unless a party provides written
notice to the other party of the first party's intention not to renew, at least thirty days before the
expiry of the then -current Term.
7.2 Renewal Terms. The fees payable by Customer during any such renewal term will
be the same as the fee for the last year during the prior term unless PerfectMind has given Customer
written notice of a pricing change at least 90 days' before the end of such prior term, in which case
the pricing change will be effective upon renewal and thereafter.
7.3 Termination. Either party may terminate this Agreement for cause, immediately
upon written notice to the other party, if:
(a) the other party is in default of any of its material obligations under this Agreement
and such default is not remedied within thirty (30) days of the date of receipt of written
notice thereof, provided that cure period with respect to default in payment obligations is
ten (10) days; or
(b) the other party ceases to conduct business in the normal course; the other party
becomes insolvent or bankrupt; the other party makes any assignment for the benefit of
creditors; proceedings are instituted by or against the other party seeking relief,
reorganisation or rearrangement under any laws relating to insolvency; a receiver,
liquidator or trustee is appointed in respect of any property or assets of the other party; or
an order is made for the liquidation, dissolution or winding up of the other party.
7.4 Payment on Termination. If this Agreement is terminated by Customer due to
PerfectMind's default, then PerfectMind will refund to Customer an amount equal to the fees
actually paid by Customer for the year during which the termination occurs prorated based on the
post -termination portion of the year. Otherwise, any termination of the Agreement will not relieve
Customer of its obligation to pay the fees payable to PerfectMind for the Term of the Agreement
for the use of the Platform nor does it entitle Customer to any refund. Upon the termination of this
Agreement, without prejudice to any other rights PerfectMind may have, Customer will (a) remit
all fees payable for the Professional Services and Work Products accepted by Customer prior to
the date of such termination or suspension; (b) remit all fees payable for work -in -progress, on a
time and materials basis, at the rate structure applicable to the Statement of Work Order; and (c)
remit all such other costs of PerfectMind, demonstrated to the reasonable satisfaction of Customer,
directly related to the permanent or temporary winding down of the Professional Services, work
and deliveries which are being terminated or suspended.
7.5 Return of Customer Data. Upon request by Customer made within 30 days after
the effective date of termination or expiration of this Agreement (except in the case of PerfectMind
terminating this Agreement for cause under §7.3), PerfectMind will make available to Customer
for download a file of the relevant Customer Data in a commercially -reasonable standard (such as
13
comma separated value (.csv) or extendible markup language (.xml)) format along with
attachments in their native format as stored by PerfectMind. After such 30 -day period, PerfectMind
will have no obligation to maintain or provide any such Customer Data and will thereafter, unless
legally prohibited, delete all such Customer Data in PerfectMind systems or otherwise in
PerfectMind's possession or under PerfectMind's control. Within 15 days of any termination for
cause of this Agreement by PerfectMind pursuant to Section 7.3, Customer may request return of
Customer Data, in which case Customer will pay to PerfectMind any fees outstanding prior to the
termination of this Agreement plus any fee that PerfectMind requests, based on the time required
to accommodate Customer's request regarding return of Customer Data, and upon receipt of such
payments, PerfectMind will make available Customer Data to Customer for download as set out
above. If Customer does not make a request within the 15 day time limit or fails to make payments
within five (5) days after receiving PerfectMind's fee request, Customer's right to access or use
Customer Data will immediately cease, and PerfectMind will have no obligation to maintain or
provide any Customer Data and will thereafter, unless legally prohibited, delete all such Customer
Data in PerfectMind systems or otherwise in PerfectMind's possession or under PerfectMind's
control.
7.6 Survival. Without limiting the applicability of other terms and conditions of this
Agreement, the terms of this Agreement that, by their nature, are intended to survive any purported
or actual termination or expiry of this Agreement will so survive, including Part 1, Part 3, Part 6,
Part 7, Part 8, Part 9 (except for §9.1) and Part 10.
PART 8—CONFIDENTIALITY
8.1 Confidential Information. Neither parry will, without the prior written approval
of the other party, disclose or use for any purpose other than exercise of its rights or performance
of its obligations under this Agreement any information, documents, know-how, trade secrets of
the other party, including the terms of this Agreement and such other information that is not in the
public domain including, in respect of the Customer Data and, in respect of the Platform
(collectively, "Confidential Information") that may come to its knowledge or possession by
reason of exchange of information under this Agreement or entering into this Agreement.
8.2 Obligation to Protect. Each party will protect the other's Confidential Information
using the same standard of care that it would use to protect its own, similar information, but in any
case no less than a reasonable standard of care for information of similar sensitivity.
8.3 Title. All right, title and interest (including all Intellectual Property Rights) in and
to each party's Confidential Information will be and remain vested in such party.
8.4 Permitted Disclosures. Each party will not disclose Confidential Information of
the other party to any person except to the first party's employees, agents and sub -contractors on
a strictly "need -to -know" basis, and provided that such persons have are subject to confidentiality
obligations equivalent to the obligations imposed hereunder. Notwithstanding such disclosures,
each party will be fully responsible for any breaches of confidentiality caused by such persons to
whom the Confidential Information is disclosed as if such breach were committed by such party.
14
8.5 Exceptions. Neither parry will have an obligation with respect to Confidential
Information where such parry can establish, through documentary evidence, that such information
(a) was previously known to it free of any obligation to keep it confidential, (b) is or becomes
publicly available other than by unauthorized disclosure, (c) is legally disclosed by third parties
without restrictions of confidentiality, or (d) has been independently developed by it without
reference to the other party's Confidential Information.
8.6 Governmental Disclosures. Notwithstanding anything else in this Agreement, if
a party is required to disclose any Confidential Information to a government body or court of law
or as otherwise required by law, it may do so provided that it gives the other party sufficient
advance notice as reasonable in the circumstances subject to applicable law to enable the owner of
such Confidential Information the opportunity to contest the disclosure or obtain a protective order
and assists the owner of such Confidential Information in contesting or protecting same.
PART 9—WARRANTIES, DISCLAIMERS, INDEMNITIES AND LIABILITY
9.1 PerfectMind Warranties. PerfectMind represents and warrants to Customer that
(a) the Platform will perform materially in accordance with the documentation therefor under
normal use and circumstances; (b) the Professional Services will be performed in a diligent and
workmanlike manner consistent with standards generally observed in the industry for similar
services, and the Work Product will materially conform to the Statement of Work upon acceptance,
and PerfectMind will use all commercially reasonable efforts to remedy any material non-
conformance of the Work Product to the Statement of Work in an expeditious manner; and (c) the
functionality of the Platform will not be materially decreased during the Term, subject to the other
provisions of this Agreement. For clarity, PerfectMind will not be responsible for and the
warranties provided by PerfectMind in this §9.1 do not apply to situations where improper or
inadequate installation or maintenance of software or hardware that Customer uses to access or
utilize, or otherwise in connection with, the Platform or Customer Data, or failure to properly
configure the Platform for use in connection with such hardware or software is the cause of a
failure or malfunction.
9.2 Mutual Warranty. Each party represents and warrants that it has the legal power
and authority to enter into this Agreement and to fully abide by the terms and conditions hereof.
9.3 NO OTHER WARRANTIES. THE PLATFORM AND THE WORK PRODUCT
ARE PROVIDED ON AN "AS -IS" AND "AS -AVAILABLE" BASIS AND PERFECTMIND
DOES NOT GUARANTEE THAT THE PLATFORM WILL FUNCTION ERROR -FREE OR
UNINTERRUPTED. CUSTOMER ACKNOWLEDGES THAT PERFECTMIND DOES NOT
CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES,
INCLUDING THE INTERNET, AND THAT THE SERVICE PROVIDED UNDER THIS
AGREEMENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PERFECTMIND IS
NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE
RESULTING FROM SUCH PROBLEMS. THERE ARE NO REPRESENTATIONS,
CONDITIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY PROVIDED IN
THIS AGREEMENT. THE CONDITIONS, REPRESENTATIONS AND WARRANTIES
15
EXPRESSLY SET OUT HEREIN ARE IN LIEU OF, AND PERFECTMIND EXPRESSLY
DISCLAIMS, ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING IMPLIED CONDITIONS, WARRANTIES OR
REPRESENTATIONS IN RESPECT OF QUALITY, CONDUCT, PERFORMANCE,
RELIABILITY, AVAILABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WHETHER ARISING BY USAGE OF TRADE, BY COURSE OF
DEALING, BY COURSE OF PERFORMANCE, AT LAW, IN EQUITY, BY STATUTE OR
OTHERWISE HOWSOEVER, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.
9.4 Indemnification by PerfectN ind. PerfectMind will indemnify and hold harmless
Customer, and its officers, employees and agents (collectively, in this §9.4, the "Indemnified
Persons"), from and against any and all Claims brought or made against, or incurred by, the
Indemnified Persons, or any one of them, arising out of a claim by a third party that the Platform
or the Work Product infringes the Intellectual Property Rights of a third party enforceable in
Canada or the United States.
9.5 Exception to PerfectMind Indemnity. Notwithstanding §9.4, PerfectMind will
not be required to defend or indemnify any Indemnified Person if, and to the extent that, the Claim
would not have arisen but for (a) any Indemnified Person's combination of the Platform or Work
products with software, services or products not supplied by PerfectMind, (b) any proven breach
by an Indemnified Person of any provision of this Agreement, or (c) any refusal by the Indemnified
Person to use a non -infringing version of the Platform or the Work Product offered by PerfectMind
under §9.6.
9.6 Additional Infringement Obligations. If PerfectMind receives any knowledge of
any Claim in respect of §9.4 or any circumstances in which a Claim in respect of such provision
is threatened or reasonably anticipated, it will, as soon as reasonably practicable, (a) procure, at its
expense, the right for Customer to use the Platform or the Work Product, as the case may be, or
such infringing part thereof; (b) replace, at its expense, the Platform or the Work Product, as the
case may be, or such infringing part thereof, with material of comparable functionality that does
not breach this Agreement; (c) if the removal of such infringing part of the Platform or the Work
Product, as the case may be, would not be a breach of this Agreement, remove such infringing part
of the Platform; or (d) terminate this Agreement and refund to Customer a pro rata portion of the
Platform use fees prepaid by Customer for the period during which the Agreement is terminated.
9.7 Conduct of Indemnities. Each party acknowledges that -the indemnifying party
will be given complete authority for the defence or settlement of Claims indemnified hereunder,
on the understanding that, in all events, the indemnified party will have the right (at its own
expense) to participate in such defence or compromise through counsel of its choosing. An
indemnifying party's obligations to provide an indemnity hereunder will be conditional upon (a)
the indemnified party notifying the indemnifying party as soon as reasonably practicable after
receiving notice of a Claim, (b) the indemnified party providing such information and assistance
as reasonably requested by the indemnifying party, and (c) the indemnified party not
compromising or settling the Claim without the indemnifying party's prior written consent, such
consent not to be unreasonably withheld, conditioned or delayed.
16
9.8 EXCLUSION AND LIMIT OF LIABILITY. NEITHER PARTY WILL BE
LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER AND HOWEVER
CAUSED, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS
OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF
BUSINESS, LOSS OF MANAGEMENT OR OPERATION TIME AND LOSS OF GOODWILL
OR ANTICIPATED SAVINGS, EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE
POSSIBILITY THEREOF OR COULD HAVE FORESEEN SUCH CLAIMS. THE ENTIRE
LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR DIRECT DAMAGES FROM
ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR THE
CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM,
FUNDAMENTAL BREACH OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT
WILL BE LIMITED TO THE FEES ACTUALLY PAID TO PERFECTMIND BY CUSTOMER
DURING THE THREE (3) MONTHS PRECEDING THE CIRCUMSTANCES IN WHICH
SUCH LIABILITY ARISES (EXCEPT THAT NOTHING IN THIS PROVISION WILL LIMIT
CUSTOMER'S OBLIGATION TO PAY THE FEES PROVIDED IN PART 4 TO
PERFECTMIND).
9.9 Exclusive Remedy. This Part 9 states PerfectMind's sole liability to Customer,
and Customer's exclusive remedy against PerfectMind for any type of Claim described in Part 9.
17
PART 10—GENERAL
10.1 Internal Escalation of Disputes. Any controversy, claim or dispute ("Dispute")
arising out of or related to this Agreement, including, without limitation, Disputes covering the
performance of the parties' obligations or the interpretation of the terms and conditions of this
Agreement or applicable fees or payments, shall be dealt with as follows: Each Dispute initially
shall be brought for resolution before a committee consisting of two (2) representatives of each of
the parties- the project manager and the Account Manager from PerfectMind and the project
manager and a person with a position equivalent to Account manager from Customer. If the
committee is unable to resolve a Dispute within ten (10) working days, then the Dispute shall be
escalated to a separate committee consisting of one (1) officer of each party – the Director of
Customer Service from PerfectMind and an officer of equivalent position from Customer. If this
second committee is unable to resolve the Dispute within ten (10) working days, then the Dispute
shall be escalated to another separate committee consisting of two (2) executive officers of each
party – the CEO and the COO of PerfectMind and two executive officers with equivalent positions
with Customer. Members of each committee shall act reasonably and good faith and attempt to
resolve the dispute amicably.
10.2 Marketing. PerfectMind may use Customer's name, with an accurate reference to
Customer's use of the Platform, in PerfectMind's marketing materials or on PerfectMind's
website, with a link to Customer's website.
10.3 Notice. Any notice required or permitted to be given hereunder will be in writing
and may be given by personal services, including by courier, or by facsimile if confirmed on the
same day, or in writing by registered airmail, with postage prepaid to the following:
18
If to PerfectMind:
PerfectMind Inc.
2nd Floor, 4333 Still Creek Drive
Burnaby, BC, V5C 6S6
Fax:
Attention: Farid Dordar-CEO or Ali Sanei-COO
If to Customer:
City of Pearland
4141 Bailey Road
Pearland, TX, 77584
Attention: Kyle Livesay
Any notice given by personal delivery (including courier) will be conclusively deemed to have
been given on the day of actual delivery thereof and, if given by facsimile, on the day of transmittal
thereof if given during the normal business hours of the recipient on a business day, and on the
business day during which such normal business hours next occur if not given during such hours.
10.4 Assignments. This Agreement may not be assigned by either party without the
prior written approval of the other parry, such approval not to be unreasonably withheld or delayed,
but may be assigned by PerfectMind to (i) a parent, subsidiary or affiliate; (ii) an acquirer of assets;
or (iii) a successor by merger, on written notice to Customer. Any purported assignment in
violation of this section shall be void.
10.5 Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas applicable therein, without reference to conflict of
laws principles, and any disputes, actions, claims or causes of action arising out of or in connection
with this Agreement or the Platform shall be subject to the jurisdiction of the courts of the State of
Texas to which the parties hereby irrevocably attorn.
10.6 Force Majeure. Neither party shall be liable for damages for any delay or failure
of delivery arising out of an event of Force Majeure.
10.7 Waivers. No right under this Agreement will be deemed to be waived except by
notice in writing signed by the party waiving its right, and any such waiver will not prejudice its
rights in respect of any subsequent breach of this Agreement by the other party. Any failure by a
party to enforce any clause of this Agreement or right contained in it, or any forbearance, delay or
indulgence granted by a party to the other party, will not be construed as a waiver of the first -
mentioned party's rights under this Agreement.
10.8 No Presumption. No presumption shall operate in favour of or against any party
hereto as a result of any responsibility that any party may have had for drafting this Agreement.
19
10.9 Enurement. This Agreement will enure to the benefit of and be binding upon the
parties and their successors, trustees, permitted assigns and receivers.
10.10 Injunctive Relief. Each party acknowledges and agrees that a breach by it of the
provisions of this Agreement relating to Confidential Information, Intellectual Property Rights, or
restrictive obligations may result in immediate and irreparable harm to the other party for which
compensation would be an inadequate remedy. Accordingly, each party acknowledges and agrees
that the other party may seek, as a matter of right and without the necessity of establishing the
inadequacy of monetary damages, injunctive or other equitable relief to prevent or remedy such
conduct from any court of appropriate jurisdiction.
10.11 Entire Agreement. This Agreement together with any applicable Statement of
Work constitutes the entire Agreement between the parties and supersedes all prior representations,
agreements, statements and understandings, whether verbal or in writing. In connection therewith,
no terms or conditions stated in any Customer purchase order or other order or documentation will
be incorporated into or form any part of this Agreement, and all such terms or conditions will be
null and void, notwithstanding any provision therein.
10.12 Amendments. This Agreement may not be amended except by written instrument
signed by an authorized representative of both parties.
10.13 Severability. If any term or provision of this Agreement will be found by a court
of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect
the other terms or provisions hereof or the whole of this Agreement, but such terms or provisions
will be deemed modified to the extent necessary in the court's opinion to render such terms or
provisions enforceable, and the rights and obligations of the parties will be construed and enforced
accordingly, preserving to the fullest permissible extent the intent and agreements of the parties
herein set forth.
10.14 Relationship of the Parties. The parties are independent contractors. This
Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment
relationship between the parties.
10.15 No Third -Party Beneficiaries. There are no third -party beneficiaries to this
Agreement.
10.16 Counterparts. This Agreement may be signed in as many counterparts as may be
necessary, each of which so signed will be deemed to be an original and each copy sent by
electronic facsimile transmissions will be deemed to be an original, and such counterparts together
20
will constitute one and the same instrument and notwithstanding the date or dates of execution will
be deemed to bear the date as first above written.
IN WITNESS WHEREOF the parties have executed this Agreement with effect as of the date
first above written.
PERFECTNIIND INC.
oz,��Per.6 //
(Signature of PerfectMind Authorized Signatory)
Name: . Nima Jazbi
(Please Print PerfectMind Signatory's Name)
Title: VP of Operations
(Please Print PerfectMind Signatory's Title)
21
CITY OF PE AND, TX
Per:
(Si ture of usto er A rized Signatory)
Name:
lriease r �usromer/otgnarory s "amt
Title: C/ �,�i�.r
(Please P t Customer Si atory's Title)
EXHIBIT A
Platform Use fees
PLATFORM
The fees for the Platform use will be as follows:
Year One (from November 1, 2020 to October 31, 2021): $18,069.72
Year Two (from November 1, 2021 to October 31, 2022): $18,069.72
Year Three (from November 1, 2022 to October 31, 2023): $18,069.72
EXHIBIT B
Statement of Work
Scope/Project Management and Planning
PerfectMind will be responsible for planning and managing the project, using best practices
generally recognized as good project management methodology, and designating a Project
Manager for the project, who will be responsible for:
• Adherence to the project scope and schedule
• Management of work activities including system design and installation, system
configuration, data conversion, testing and quality assurance, administrator and end-user
training, and go -live support
• Coordination of resources, work sessions, and training
• Communications
• Managing project issues and issue tracking
• Status reports
• Available for status calls to provide updates
• Working with the designated Customer project manager
• Deliverable acceptance and sign -off
The frequency and other details of status reports will be agreed upon during the discovery phase.
In addition to the Project Manager, PerfectMind will assign appropriate staff to complete the
deliverables described in this Statement of Work, including at minimum: system installation,
software configuration, data conversion, testing, administration and end-user training and go -live
support.
Timeline
Customer is planning to implement the solution with the following estimated timeline.
PerfectMind is expected to recommend an overall implementation plan and timeline based on
their experience with implementations of similar scope and complexity.
September 16, 2020
Contract Signature
TBD
Project kick off
TBD
Project Initiation
TBD
Software Configuration and Reports
TBD
User Acceptance Testing
TBD
Data Conversion
TBD
Training and Documentation
TBD
Go -live
Technical Requirements
PerfectMind will provide a SaaS solution. The only requirement for operating and using the
proposed solution will be broadband internet connection and access to the internet via a web
browser with all standard browsers being supported (recommended browsers will be
communicated to Customer during the implementation phase).
Customer Testing
PerfectMind will develop a test plan for Customer that covers system and functional, testing.
After all of the components of the system have been completed, -Customer will conduct system
and functional testing. Customer will report any defects to PerfectMind immediately for
correction. If any defects are found, PerfectMind will provide a plan to achieve acceptance or to
make corrections or replacements.
Training
PerfectMind will provide full training to system administrators and trainers (number of system
administrator and trainers to be determined at the discretion of Customer). PerfectMind will
develop a training plan for Customer to fully prepare the system administrators to support the
system. The training plan will include:
• In-depth understanding of the system functionalities, including:
■ Security Settings
■ Workflow Development
■ Report Development
■ Software Configuration
A review of best practices in the configuration and use of the system.
Training sessions on different modules of the system, including:
■ Contact/Account Management
■ Store/Point of Sale Training
■ Membership Management
■ Attendance Tracking
■ Billing Management
■ Activity/Program Registration
■ Facility Rental
■ Appointments and Private Lesson scheduling
■ Marketing
■ Staff Management
■ Accounting
■ Document Template creation and configuration
Troubleshooting
PerfectMind will provide technical assistance to Customer's IT staff on the operation of the
system. PerfectMind will investigate and troubleshoot any technical issues with the system that
Customer's IT staff report to PerfectMind.
Post -live Support
PerfectMind will provide full application support during the week of go -live. PerfectMind's
project team will be available to provide go -live and post go -live support. The resource(s) will
be accessible by phone and email to the system administrators.
Future Services
The ability to provide the services/products in this section may be required in the
future. Customer may request to add similar services or products in the future, including but not
limited to:
• New features or;
• Features that were identified as Custom
• Additional Reports
and such similar services and products will be provided by PerfectMind upon PerfectMind and
Customer negotiating and entering into Statements of Work providing for same.
Deliverables and Service Acceptance
Customer designee will formalize the acceptance of the service via written acceptance of the
following acceptance forms:
Acceptance Form A- Project Kickoff (Milestone 1)
Purpose
The purpose of the Project Kickoff Acceptance Form is to confirm that the project kickoff has
occurred and the following deliverables are completed.
Deliverables
• Contract signature and execution
• Planning of the project kickoff/discovery session
• Resourcing and scheduling for the discovery phase
• Preliminary review of the requirements by the project team prior to the first meeting
• Creation of live production environment, which includes at a minimum:
— Setup of Customer's production environment on the cloud
— System setups including backups and retentions
— Database security setup
— Setup of the monitoring tools and systems on Customer's database
— Basic configuration of the database with Parks and Rec Modules
The work was completed on and accepted by Customer.
Accepted by:
(City of Pearland, TX):
Title:
(PerfectMind):
Title:
s
Date:
Date:
Acceptance Form B - Project Initiation (Milestone 2)
Purpose
The purpose of the Project Initiation Acceptance Form is to confirm that the project initiation is
complete.
Deliverables
• Discovery phase, which will inform the detailed work breakdown structure and includes:
— Existing database system discovery
— Business process review and gap analysis
— Activity registration overview
— Facility configuration overview
— Membership management overview
Store and point of sale overview
— Marketing overview
— Accounting overview
The Discovery phase may involve multiple meetings and communications to clarify and
assist PerfectMind in understanding the above areas further.
• Project work breakdown structure includes:
— Tasks and durations
— Scheduling
— Resourcing and assignments
— Dependencies
• Initiation of tasks listed under "Scope/Project Management and Planning" above, which
includes:
— Communications requirement
— Project reporting requirements including the frequency and details of the status reports
— Issue list/tracker requirements
The work was completed on and accepted by Customer.
Accepted by:
(City of Pearland, TX):
Title:
(PerfectMind):
Title:
6
Date:
Date:
Acceptance Form C — Software Configuration and Reports (Milestone 3)
Purpose
The purpose of the Software Configuration and Reports Acceptance Form is to confirm that the
software and reports configuration is complete.
Deliverables
• Application configuration and setup
• Security and roles configuration
• Setup workflows and business rules
• Set-up client specific database
• Configuration of Email functionality
The work was completed on
Accepted by:
(City of Pearland, TX):
Title:
(PerfectMind):
Title:
and accepted by Customer.
Date:
Date:
Acceptance Form D — Data Conversion (Milestone 4)
Purpose
The purpose of the Data Conversion Acceptance Form is to confirm that the data conversion plan
is complete and Accepted by Customer.
Deliverables
Finalized Data Conversion Plan is completed and Accepted by Customer.
Acceptance Criteria:
PerfectMind has provided a detailed Data Conversion Plan that, at a minimum includes:
• Description of PerfectMind's data conversion methodology and tools
• Identification of data sources
• Method of supplying data
• Conversion schedule, including on-site and webinar reviews and planned iterations test
conversions
• Roles and responsibilities, resources required
• Testing process
• Issue reporting process
• Documentation to be used for field mapping from legacy data sources to the system's
database
• Documentation to be used for data transformations from legacy data code tables to system's
database code tables
• Options for treatment of exceptions
• Final data conversion timetable that includes the minimum number of data conversion
iterations
The work was completed on and accepted by Customer.
Accepted by:
(City of Pearland, TX): Date:
Title:
(PerfectMind): Date:
Title:
8
Acceptance Form E — Training (Milestone 5)
Purpose
The purpose of the Training Acceptance Form is to confirm that the training is complete.
Deliverables
The training plan is complete and specifies the training schedule and curriculum for the
recipients of system administrator training and end-user training.
Customer will confirm the following:
• System administrators have been trained on all aspects of system configuration, individual
and role -based security profiles, enterprise silo security settings and configurations,
document template creation, and report queries and changes.
• System administrators are able to complete new configuration items with minimal assistance
from PerfectMind.
• End users have been trained on all aspects of the system and can complete tasks within the
system.
• Training materials and online leaming center access have been delivered.
The work was completed on
Accepted by:
(City of Pearland, TX):
Title:
(PerfectMind):
Title:
9
and accepted by Customer.
Date:
Date:
Acceptance Form F — User Acceptance Testing (Milestone 6)
Purpose
The purpose of the User Acceptance Testing Form is to confirm that the system testing is
complete and the system is functional.
Deliverables
The test plan including test scripts, schedule, roles and responsibilities, and definitions of
passed/failed test is provided to Customer and Customer is coached through the testing phase.
Customer will conduct a complete test on the system to ensure the following is tested and passed:
• System functions
• Acceptance on available workflows and business rules
• Acceptance on available system reports
The work was completed on
Accepted by:
(City of Pearland, TX):
Title:
(PerfectMind):
Title:
10
and accepted by Customer.
Date:
Date:
Acceptance Form G - Go -Live (Milestone 7)
Purpose
The purpose of the Final Acceptance Form is to confirm that the system is operational.
Deliverables
The final data conversion has been completed and the system is pushed to the Production
environment.
The work was completed on
Accepted by:
(City of Pearland, TX):
Title:
(PerfectMind):
Title:
IE
and accepted by Customer.
Date:
Date:
Fee Payment Schedule
Schedule
Target Dates
Milestones & Deliverable
Subscription
Implementation
Pa went Date
November 1,
Upon signing of the agreement
Upon signing of
2020
• Contract Signature and Execution
the Agreement
. Payments due:
$18,069.72
$5,000.00
Project Kick off (Milestone 1)
• Planning of the project kick off/discovery
session
Upon completion
TBD
• Resourcing and Scheduling for the discovery
of Acceptance
phase
Form A
• Preliminary review of the requirements by
the project team prior to the first meeting
• Creation of the live production environment
$5,000.00
Project Initiation (Milestone 2)
• Discovery phase
Upon completion
TBD
• Project work breakdown structure
of Acceptance
• Initiation of tasks listed under "Scope/Project
Form B
Management and Planning"
Software Configuration and Reports
(Milestone 3)
• Application configuration and setup
Upon completion
TBD
• Security and roles configuration
of Acceptance
•Setup workflows and business rules
Form C
• Configuration and creations of the reports
$5,500.00
Data Conversion Acceptance Testing
Upon completion
NA
(Milestone 4)
of Acceptance
• Data Conversion
Form D
NA
The above fees do not include any travel, living or any other out-of-pocket expenses incurred by
PerfectMind in providing on-site Professional Services. Customer will pay PerfectMind a flat rate
of $550 per day per PerfectMind employee or subcontractor who provides on-site Professional
Services to Customer to cover accommodation, meal, local transportation and other out-of-pocket
expenses, except travel (airfare) expenses. Customer will reimburse PerfectMind for all
reasonable travel (airfare) expenses incurred by PerfectMind's to send its employees and
subcontractors to Customer's site. All such travel (airfare) expenses for which PerfectMind seeks
reimbursement will be supported by documentation in a form reasonably acceptable to the
Customer.
13
Training (Milestone 5)
• System administrators have been trained on
all aspects of system configuration,
individual and role -based security profiles,
enterprise silo security settings and
configurations, document template creation,
and report queries and changes.
Upon completion
'IBD
• System administrators are able to complete
of Acceptance
new configuration items with minimal
Form E
assistance from PerfectMind.
• End users have been trained on all aspects
of the system and can complete tasks within
the system.
• Training materials and online learning
center access have been delivered
$5,000.00
User Acceptance Testing (Milestone 6)
• System functions
Upon completion
TBD
. Work flows and business rules
of Acceptance
Form F
• Reports
Go -live (Milestone 7)
Upon completion
'IB D
The system is pushed to the Production
of Acceptance
environment.
Form G
Total
$18,069.72
$20,500.00
$38,569.72
The above fees do not include any travel, living or any other out-of-pocket expenses incurred by
PerfectMind in providing on-site Professional Services. Customer will pay PerfectMind a flat rate
of $550 per day per PerfectMind employee or subcontractor who provides on-site Professional
Services to Customer to cover accommodation, meal, local transportation and other out-of-pocket
expenses, except travel (airfare) expenses. Customer will reimburse PerfectMind for all
reasonable travel (airfare) expenses incurred by PerfectMind's to send its employees and
subcontractors to Customer's site. All such travel (airfare) expenses for which PerfectMind seeks
reimbursement will be supported by documentation in a form reasonably acceptable to the
Customer.
13
EXHIBIT C
PerfectMind Rate for Professional Services
Optional Services
Unit Price
Description
Importation of Data
$150/hr
Upon termination of this Agreement,
PerfectMind shall supply to Customer
a basic export of the complete data in
a format suitable for importation.
Anything beyond will be charged at
this rate.
Professional Services
$150/hr
Services outside the agreed to
Statement of Work that requires
additional resourcing to accommodate
Customer's requests (other than
development/programming).
Integration to third party
$250/hr
Processing Integration with the
software
Customer's preferred payment
processor.
Training
$150/hr
Any future additional training
requested outside the Statement of
Work.
Development
$250/hr
Services outside the agreed to
Statement of Work that requires
additional development
(programming).
The above fees do not include any travel, living or any other out-of-pocket expenses incurred by
PerfectMind in providing on-site Professional Services. Customer will pay PerfectMind a flat rate
of $550 per day per PerfectMind employee or subcontractor who provides on-site Professional
Services to Customer to cover accommodation, meal, local transportation and other out-of-pocket
expenses, except travel (airfare) expenses. Customer will reimburse PerfectMind for all
reasonable travel (airfare) expenses incurred by PerfectMind's to send its employees and
subcontractors to Customer's site. All such travel (airfare) expenses for which PerfectMind seeks
reimbursement will be supported by documentation in a form reasonably acceptable to the
Customer.
14
EXHIBIT D
Service Levels
1. Platform Uptime.
The Platform will achieve a system uptime performance level of 99.9% during the Operation Hours on an
annual basis inclusive of any downtime caused by the underlying telecommunication services provider. In
this Exhibit, "Operation Hours" means 6 am to midnight Pacific Time, seven days a week.
PerfectMind will only be responsible for its Platform uptime performance levels and will not be responsible
for any failure due to a failure of Customer's system(s) or a Force Majeure event as described in this
Agreement, and such failures shall not be counted against PerfectMind's required system uptime
performance levels.
PerfectMind may, upon not less than seven (7) days' prior written notice to Customer, which may be email
notification, cause the Platform to be unavailable for a period of time not to exceed 12 consecutive hours
("Planned Maintenance"). Planned Maintenance will be performed during the Maintenance Window, and
not more than once per week, unless any such Planned Maintenance is a result of urgent events outside of
PerfectMind's direct control in which case PerfectMind will provide as much notice as is practicable.
Planned Maintenance will apply against PerfectMind's required uptime performance level unless (i) it is
conducted during the Maintenance Window; or (ii) it is as result of remedial work necessary to address a
material defect with third party software such as Microsoft® operating system or SQL server. In this
Exhibit D, "Maintenance Window" means between 12:01 am and 6:00 am Pacific Time on any day.
2. Technical Support.
Following the reporting of a problem by Customer's technical support personnel either via phone call or
email PerfectMind's technical support, PerfectMind will respond to the problem in accordance with the
incident level and provide a fix to the problem all in accordance with the table set forth below:
24x7x365 Technical Support
Description
Response time
Resolution Time
Customer report an incident via phone,
A live agent will
85% of the incidents are
email, or chat
immediately discuss the
currently addressed on
issue with Customer
the first call
The initial call requires escalation to
The initial call will be
95% of the escalated
Level H
transferred to a Sr. live
calls to level II are
agent to further discuss
addressed within the
the incident with the
first call
customer
The escalated call to Level II requires
Level II agent create a
Resolution time will
escalation to the Development team
case for the development
follow the SLA table
team to further
below
investigate the incident
Service Level Agreement
1 nnident
Description
Resolution Time
Level
Critical
This incident level is attained when the following
Within the same business
conditions are met:
day
- Complete inability to use the Platform; or
- A reoccurring temporary inability to use the
Platform
High
This incident level is attained when the following
Within 24 hours
conditions are met:
- A significant degradation of the significant
features or functions available or the Platform
- Recent modifications to the Platform cause
some significant features or functions to
operate inconsistently
Low
This incident level is attained when the following
These issues will be
conditions are met:
reviewed and prioritized
- A minor degradation of some significant
according to the severity of
features or functions; or
the issue. An accurate
- A degradation of some secondary features or
estimate will be provided
function occurs
to the customer within a
week after the incident is
reported
EXHIBIT E
Platform Features and Functionalities
PerfectMind's Platform will include the following features and functionalities:
• Built -In Reporting Engine
A built-in reporting engine to help the customer to create reports.
• Integrated Workflow Engine
Generate workflows to streamline your team's processes and communications
• Business App Store
PerfectMind is adaptable through our community -driven App Store.
• Open API
Having access to an adaptable integration with external apps allows fluid
interconnectivity and collaboration across platforms
• Data Security, Auditing and Permissions
The ability to control app -level access, user auditing, user time limits, specific IP access,
as well as group- and role -based data permissions.
• Multi -Site Management & Reporting
To allow client to manage multiple sites from one account.
• 24/7 Customer Service
PerfectMind provides 24x7 operation support using live agents/chat/email.
Recreation Management Features:
• Facility booking and Scheduling
PerfectMind booking takes care of conflict and contract management, recurring bookings,
equipment and rental inventory, capacity management and more. Your staff and your
members can schedule events online or on-site. PerfectMind lets you manage facility
dependencies, availability, and multiple rates. Customers can book using desktop, tablet
or mobile devices on all popular web browsers.
• Membership Management
This allows you to manage families, multiple memberships, and related contacts.
• Document Management
You can create, save, print, upload and manage your documents for your organization in
the cloud. Sign waivers, contracts, and other documents electronically with a digital
signature and store them safely in the cloud.
• Staff Management
You can view all your staff schedules in- one master calendar. PerfectMind provides your
staff with the ability to make their own schedule and to adjust availability for vacations
and time off. Manage staff wages, commissions, hours, availability and much more.
Restrict access permissions for users and groups to improve security.
• Activity Registration
Online or on-site registration for all types of bookings including courses, private lessons,
drop-in and flexible registrations to accommodate your needs. Intelligent conflict
management gives you the flexibility to readily make changes to events.
17
• POS and Inventory Management
To sell products, service or event online or on-site using cutting-edge features within
inventory and sales management. Track purchase orders and inventory.
• Attendance Tracking and Check-in
Allow customers to scan or check themselves in at the front desk using a kiosk, or
manually check-in with a staff member. Improve retention with live class statistics, and
much more. Guest check -ins allow for quick processing to non-members or during busy
periods.
• Calendar
Flexible, multi -functional calendar with drag -and -drop functionality to make changes and
updates to events, activities and facility booking. You can also view multiple facilities,
locations and courses.
• Marketing
A built-in, fully -functional email solution replaces the need for any additional email
applications so you can streamline your marketing for programs, campaigns, and
personalized operation emails. Increase signups and enrollments using loyalty and referral
programs. You can also have access to simple and customizable landing pages and lead -
capture forms.
• Task Management
To schedule automated and recurring tasks with alerts to stay up-to-date, organized and
focused. Set reminders based on predefined or custom triggers
• Reports
PerfectMind's built-in reporting engine enables you to create, customize and run reports.
Create and schedule custom financial, attendance, utilization, and marketing reports all
from the same interface. View real-time analytics and historical data in tabular or graphical
format. All reports can be exported for use in a third -party application.
• Account management
To keep track of your clients and contacts including organizations and families
18