R2022-265 2022-11-21RESOLUTION NO. R2022-265
A Resolution of the City Council of the City of Pearland, Texas, renewing a
contract for Project Management Software Services with Aurigo, in the
estimated amount of $185,573.00, for the period of December 6, 2022 through
December 5, 2023.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for Project Management Services, a copy of which is
attached hereto as Exhibit “A” and made a part hereof for all purposes, is hereby renewed.
Section 2. That the City Manager or his designee is hereby authorized to execute and
the City Secretary to attest a contract for Project Management Software Services.
PASSED, APPROVED and ADOPTED this the 21st day of November, A.D., 2022.
________________________________
J.KEVIN COLE
MAYOR
ATTEST:
________________________________
FRANCES AGUILAR, TRMC, MMC
CITY SECRETARY
APPROVED AS TO FORM:
________________________________
DARRIN M. COKER
CITY ATTORNEY
DocuSign Envelope ID: A893EBA7-5BB5-4EF8-A862-C193E04482D2
DocuSign Envelope ID: FOE3DC24-A716-4AEA-A7AF-611 EF745FE64
RESOLUTION NO. R2021-252
A Resolution of the City Council of the City of Pearland, Texas, authorizing a
contract for Project Management Services, associated with the Aurigo, in the
estimated amount of $349,000.00.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for Project Management Services, 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 Project Management Services.
PASSED, APPROVED and ADOPTED this the 6th day of December, A.D., 2021.
ATTEST:
DocuSigned by:
DA32BB464.
CRYSTAL ROAN, TRMC, CMC
CITY SECRETARY
APPROVED AS TO FORM:
DocuSigned by:
C13CACOCBB1r4BC...
DARRIN M. COKER
CITY ATTORNEY
p- DocuSigned by:
64881A61593r4r2..
J. KEVIN COLE
MAYOR
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Master Services Agreement
This Master Services Agreement (this “Agreement”) is made effective as of <<Date>> (the “Effective
Date”) between Aurigo Software Technologies Inc, having its registered office at 12515 Research Blvd.,
Building 7, Suite 300, Austin, TX 78759 (hereinafter referred to as “Aurigo”) and The City of Pearland
having its principal place of business at 3519 Liberty Drive, Pearland, TX 77581 (hereinafter referred to as
“Customer”) (Aurigo and Customer are collectively referred to as the “Parties” and individually referred
to as a “Party”).
Whereas, the Parties, based on their mutual discussions and negotiations, propose to enter into a contract
governing the delivery of Aurigo Masterworks;
Whereas, Customer, upon approval of the proposal, intends to enter simultaneously into a Software
Subscription Agreement directly with Aurigo for the use of the Aurigo Software which will govern the
rights and usage of the SaaS software;
Whereas, Aurigo agrees to perform certain services described on Attachment A, at the rates also specified
in Attachment A (herein referred to as “Services”) with the intent of delivering the Aurigo Software and
related services; and
Whereas, Customer shall actively participate in the Services by providing the resources and subject matter
expertise required for Aurigo to deliver the Services; and
Whereas, the Parties are entering into this Agreement for the purposes of these Services, separate from
the Sevrice Subscription Agreement; Now, Therefore,
In consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree to as
follows:
1. DEFINITIONS
“Authorized Representatives” are employees designated by each Party as their respective authorized
agents for communications.
“Confidential Information” means all terms and conditions in this Agreement, and any and all financial,
sales, marketing, pricing, customer, personnel, present or future product (including, without limitation,
the source code of the Services and all know-how and trade secrets, relating to, contained in, or
embodied in the Services, technical, research, development or other business data and information of
the parties (whether communicated orally, visually, in writing, or in any other recorded or tangible form)
which is not in the public domain and which: (a) either party has marked as confidential or proprietary,
(b) either party, orally or in writing, has advised the other party of its confidential nature, or (c) due to
its character or nature, a reasonable person in a like position and under like circumstances would treat
as confidential.
“Customer Content” means all text, files, images, graphics, illustrations, information, data, audio, video,
photographs, other content and material, and software programs including source code for such
programs, that Customer or its Users provide and load onto, or create using, any SaaS. Aurigo programs
and Services Environment, Aurigo Intellectual Property, and all derivative works thereof, do not fall
within the meaning of the term “Customer Content.” The term “Customer Content” does not apply to
any test data.
“Deliverables” means the materials, SaaS, and Services to be provided under this Agreement.
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"Intellectual Property" means any intellectual or industrial property rights protected or protectable
under applicable law and includes copyrights, moral rights, trade secrets, patent rights, rights in
inventions, trade-marks, trade names and service marks, as well as applications for, and registrations,
extensions, renewals and re-issuances of, the foregoing, in whatever form such rights may exist and
whether registered or unregistered.
“SaaS” means software-as-a-service and refers to the Aurigo-hosted software service or software
services to which you subscribe under Software Subscription Agreement.
“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for
example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.
“Term” begins on the Effective Date and means the period of time during which this Agreement is in
effect and as set forth on Attachmnt A.
“Users” are individuals or entities authorized by Customer to access and use a Deliverable.
2. ORDER of PRECEDENCE
This Master Services Agreement incorporates other Attachments and documents in the following order
of precedence. If terms in one document conflict with another the terms will be interpreted with the
following sequence of validity, beginning with item 1 and ending with item 5:
1. This Master Services Agreement
2. Aurigo Service Subscription Agreement
3. Attachment A
4. Aurigo’s response to the Request for Proposal RFP #0521-44
5. The Request for Proposal RFP #0521-44
3. SERVICES, FEES, PAYMENTS
3.1 Services. Aurigo shall perform the Services described on Attachment A, subject to the
terms and conditions of this Agreement.
3.2 Change Control. The Services and Deliverables to be provided pursuant to Attachment
A may be amended from time to time, as mutually agreed by the Parties. Any such
amendment will use the change control procedures set forth below.
a. When a Party desires a change to this Agreement, that Party will prepare a written
document (a “Change Order”) describing in reasonable detail its proposed changes,
to include, at a minimum, any changes in cost, schedule, and impact, if any, to the
project, and will submit the proposed Change Order to the other Party for approval.
b. A Change Order will only become effective, thereby amending this Agreement,
when signed by the Parties.
3.3 Customer Obligations. Customer shall ensure that all equipment used in connection
with the Services is in good working order and suitable for the purposes for which it is
used in relation to the Services and Deliverables. Customer is solely responsible for the
configuration, operation, performance and security of its equipment, networks and
other computing resources, including its devices and networks used to connect to the
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Services.
3.4 Use of Customer Content. Customer hereby grants Aurigo the right to use, process and
transmit, in accordance with this Agreement, Customer Content, solely in order to
perform the Services and deliver the Deliverables. Aurigo will not be responsible for the
interoperability of Customer Content with the Services and Deliverables, except to the
extent described on the applicable Statement of Work. Customer shall have sole
responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness
of all Customer Content.
3.5 Fees; Invoices. Customer agrees to pay Aurigo the fees set forth on Attachment A.
Aurigo will invoice Customer for all sums owed on completion of each milestone set
forth on Attachment A.
3.6 Taxes. The fees do not include any taxes, unless stated otherwise. Customer is
responsible for all taxes it is legally obligated to pay, including, but not limited to, paying
Aurigo any applicable value added, sales or use taxes. If any taxes are required by law to
be withheld on payments made by Customer to Aurigo, Customer may deduct such taxes
from the amount owed Aurigo and pay them to the appropriate taxing authority;
provided, however, that Customer shall promptly secure and deliver to Aurigo an official
receipt for any such taxes withheld or other documents necessary to enable Aurigo to
claim a Foreign Tax Credit. Customer will make certain that any taxes withheld are
minimized to the extent possible under applicable law. If the Customer is tax exempt, it
must provide a valid tax exemption certificate for Aurigo to exclude taxes from customer
invoices.
3.7 Refunds. All charges are non-refundable unless expressly stated otherwise, or otherwise
provided by law.
3.8 Payments. Payments to Aurigo are due 30 days from receiving an invoice. Customer will
make payment on invoices by check or EFT. Late payments on undisputed and invoiced
amounts accrue interest at the rate of 1% per month, or the highest rate permitted by
law, whichever is lower. Aurigo may suspend or cancel the Services if Customer does not
pay in full and on time.
4. TERM AND TERMINATION
4.1 This Agreement will become effective upon acceptance by the parties and will remain in
force for the Term unless terminated pursuant to this Section 3.
4.2 Termination of this Agreement for Cause. A party may terminate this Agreement by
written notice if the other party materially breaches this Agreement and fails to cure the
breach during the Cure Period. The “Cure Period” will commence on the date the non-
breaching party gives written notice of breach to the breaching party, specifying the
nature of the breach, and will continue for a period of: (i) ten days in cases where the
breach is the failure to pay any amounts due under this Agreement; or (ii) 30 days for all
other breaches; provided that, notwithstanding the foregoing, there will be no period
for curing or remedying a material breach by either party of its obligations pertaining to
Confidential Information under Section 6 in this document. If Customer fails to make
any payment required hereunder and fails to cure such breach within the Cure Period,
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Aurigo may declare all sums due and to become due hereunder immediately due and
payable. If Aurigo terminates this Agreement for Customer’s violation of the Agreement
terms, Customer will be obligated to pay any Subscription fees due for the then-current
Subscription Period.
4.3 Termination for Insolvency. This Agreement may be terminated by either party,
immediately upon written notice to the other party in the event (i) the other party files
a petition for bankruptcy or is adjudicated bankrupt; (ii) a petition in bankruptcy is filed
against the other party and such petition is not dismissed within sixty (60) calendar days;
(iii) the other party becomes insolvent or makes an assignment for the benefit of its
creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar
law; (iv) the other party discontinues its business; or (v) a receiver is appointed for the
other party or its business.
4.4 Effect of termination. Upon termination, (i) Aurigo will immediately cease providing any
Services to Customer, and (ii) Customer will pay Aurigo such amounts owed under
Attachment A for performance rendered prior to the termination date. Termination will
not result in a waiver of any remedy, legal or equitable, to which a Party may be entitled,
or any claim a Party may have against the other. All provisions that by their nature
should survive termination or expiration of this Agreement will so survive.
5. INTELLECTUAL PROPERTY
5.1 Aurigo and its licensors are, and shall remain, the sole and exclusive owner of all right,
title and interest in and to the Services and all derivative works thereof, including all
Intellectual Property rights therein. Customer shall have no right or license to use the
Services except solely during the Term in connection with receipt of the Services. No
other rights are granted hereunder to Customer except as expressly set forth in this
Agreement.
5.2 Aurigo and its licensors are, and shall remain, the sole and exclusive owner of all right,
title and interest in and to Deliverables that are (a) SaaS or (b) commercial software;
such Deliverables are licensed, not sold, by Aurigo to Customer.
5.3 Customer is, and shall be, the sole and exclusive owner of all right, title and interest in
and to the Deliverables specified in Attachment A that are Services and that are not
software.
5.4 Customer and its licensors are, and shall remain, the sole and exclusive owner of all right,
title and interest in and to the Customer Content, including all Intellectual Property
rights therein. Aurigo shall have no right or license to use any Customer Content except
solely during the Term of the Agreement to the extent necessary to provide the Services
to Customer.
6. REPRESENTATIONS AND WARRANTIES
6.1 Each Party represents and warrants to the other party as follows:
a) it is duly organized, validly existing and in good standing as a corporation or other
entity as represented herein under the laws and regulations of its jurisdiction of
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incorporation, organization or chartering;
b) it has the full right, power and authority to enter into this Agreement, to grant the
rights and licenses granted hereunder and to perform its obligations hereunder;
and
c) when executed and delivered by such party, this Agreement will constitute the
legal, valid and binding obligation of such party, enforceable against such party in
accordance with its terms.
6.2 Aurigo represents and warrants to Customer that:
a) The Services will be provided in a professional and workmanlike manner; and
b) the Services and Deliverables will be in conformity in all material respects with all
requirements or specifications stated in this Agreement.
6.3 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES AND
DELIVERABLES ARE PROVIDED ON AN “AS IS” BASIS. WITHOUT IN ANY WAY LIMITING
THE GENERALITY OF THE FOREGOING, THESE WARRANTIES ARE CUSTOMER’S EXCLUSIVE
REMEDY, AND AURIGO DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR
DELIVERABLES WILL MEET THE REQUIREMENTS OF ANY PERSON OR WILL OPERATE
ERROR-FREE OR CONTINUOUSLY, AND MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY
MADE IN THIS AGREEMENT.
7. CONFIDENTIALITY
7.1 Aurigo and Customer shall treat the terms and conditions of this Agreement, to the
extent permitted by law, as confidential and shall not disclose them to any third party
except in the furtherance of the parties’ business relationship with each other. For
government Customers, this Section is subject to the requirements of applicable trade
secret, public records, or similar laws.
7.2 Each party acknowledges the proprietary nature of the other party’s Confidential
Information and the business advantage and opportunity provided thereby. Customer
acknowledges and agrees that the Services and Deliverables, and all ideas, methods,
algorithms, formulae, processes, and concepts used in developing or incorporated into
the Services, all derivative works based upon any of the foregoing, and all copies of the
foregoing are trade secrets, Confidential Information and proprietary property of
Aurigo, having great commercial value to Aurigo. Accordingly, each party agrees that
the Confidential Information it receives from the other party will be disclosed only to
such of its employees and agents who have a need to know such particular information
in furtherance of their duties and are bound to an enforceable written agreement
prohibiting them from disclosing any such information to any other party or using such
information except for the purposes permitted by this Agreement. Except as expressly
permitted by this Agreement, neither party will use the other party’s Confidential
Information or disclose such information to any third party without the prior written
consent of the other party.
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7.3 Nothing in this Agreement will prevent the receiving party from disclosing the other
party’s Confidential Information to the extent the receiving party is legally compelled to
do so by any court or governmental investigative or judicial agency pursuant to
proceedings over which such agency has jurisdiction, on condition that prior to the
disclosure, the receiving party shall (i) assert the confidential nature of the Confidential
Information; (ii) immediately notify the disclosing party in writing of the order or request
to disclose; and (iii) cooperate fully with the disclosing party in protecting against any
such disclosure and/or obtaining a protective order narrowing the scope of the
compelled disclosure and protecting its confidentiality.
7.4 Each party acknowledges and agrees that due to the unique nature of Confidential
Information, there can be no adequate remedy at law for any unauthorized use or
copying of the Services or Deliverables by Customer or any breach of the obligations
under this Section 6 regarding Confidential Information by either party. Any such breach
would result in irreparable harm to the non-breaching party and, therefore, upon any
such alleged breach, the non-breaching party will be entitled to seek appropriate
equitable relief, in addition to whatever remedies it might have at law, in equity or under
this Agreement.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 Each Party (the “Indemnitor”) will defend, indemnify and hold harmless the other Party,
including its officials, affiliates, officers, directors, agents, employees, and
representatives (jointly and severally, the “Indemnitees”), from and against Proceedings
and Losses resulting from or arising out of: (a) the acts or omissions of the Indemnitor
or its agents, employees, contractors, or subcontractors, except to the extent such
Losses result from the gross negligence or willful misconduct of the Indemnitee or its
agents; (b) any breach of any representation or warranty of the Indemnitor contained in
this Agreement; or (c) any breach of any covenant or obligation to be performed by the
Indemnitor under this Agreement. In the event any claim is brought against a Party that
may give rise to an indemnifiable Loss, that Party will provide the other Party with
prompt notice of such claim and reasonably cooperate in connection with such claim;
provided, however, a Party’s obligation to defend the other Party against Proceedings
and Losses does not extend to Proceedings between the Parties. Neither Party, nor any
attorney engaged by a Party, shall defend the claim in the name of the other Party, nor
purport to act as legal representative of the other Party, without first receiving from its
appointed attorney-at-law authority to act as legal counsel for that Party. Neither Party
shall settle any claim on behalf of the other Party without the approval of such counsel.
Indemnitee will control the defense of any Proceeding, through its chosen counsel;
provided, however, in such instance, the Indemnitee will allow the Indemnitor to
participate in the settlement or defense of any Proceeding, at the Indemnitor’s own
expense.
8.2 Aurigo will defend Customer against any claims made by an unaffiliated third party that
any Services infringes that third party’s patent, copyright or trademark or makes
intentional unlawful use of its trade secrets or confidential information. Aurigo will also
pay the amount of any resulting adverse final judgment (or settlement to which Aurigo
consents). This Section provides Customer’s exclusive remedy for these claims.
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Customer must notify Aurigo promptly in writing of the claim and give Aurigo control
over its defense or settlement of the claim. Aurigo will work with Customer’s designated
representative to process and defend against the claim. Customer’s designated
representative must provide Aurigo with reasonable assistance in defending the claim.
Aurigo will reimburse Customer for reasonable out of pocket expenses that it incurs in
providing that assistance, but Aurigo will not be liable to Customer for any attorney fees
of counsel hired by Customer unless Aurigo has expressly agreed to pay such fees in
advance and in writing.
8.3 Aurigo’s obligations in Section 7.2 will not apply to the extent that the claim or award is
based on:
a) Customer’s use of the Services after Aurigo notifies it to discontinue its use due to a third
party claim;
b) Damages attributable to the use of a non-Aurigo product, data or business process;
c) Customer’s use of Aurigo’s trademark(s) without express written consent to do so;
d) Any trade secret or undisclosed information claim, where Customer acquires the trade
secret or undisclosed information (1) through improper means; (2) under circumstances
giving rise to a duty to maintain its secrecy or limit its use; or (3) from a person (other
than Aurigo) who owed to the party asserting the claim a duty to maintain the secrecy
or limit the use of the trade secret or undisclosed information.
8.4 If Aurigo receives information concerning an infringement claim related to the
Services, Aurigo may, at its expense and without obligation to do so: (1) procure for
Customer the right to continue to use the allegedly infringing Services, (2) modify the
Services, (3) replace the Services with a functional equivalent, to make it non-
infringing, in which case Customer will immediately stop using the allegedly infringing
Services after receiving notice from Aurigo; or (4) terminate the License as to the
infringing Services and refund any amounts paid in advance by Customer for unused
Services.
8.5 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR
ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER
ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8.6 IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID OR PAYABLE TO
AURIGO FOR ONE-YEAR FEES AS DEFINED IN ATTACHMENT A OF THIS AGREEMENT.
9. GENERAL TERMS
9.1 Parties’ Relationship; Non-exclusivity. The Parties acknowledge and agree that their
relationship is that of independent contracting entities. This Agreement does not create
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any form of legal association that would impose liability upon one Party for any act or
omission of the other, nor does it preclude either Party from conducting similar business
with other parties.
9.2 Notices. Notices, authorizations, and requests to Aurigo in connection with this
Agreement must be sent by regular or overnight mail, or express courier, to the
addresses listed below. Notices will be treated as delivered on the date shown on the
return receipt. Termination of the Agreement, a Subscription, or cancellation of a
Subscription initiated by a Customer should be sent via the Aurigo customer service
contact.
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Notices to Aurigo: Copies to Aurigo
Addresses provided at:
http://www.aurigo.com/contact/
Contract notices email address:
contracts@aurigo.com
Notices, authorizations, and requests to Customers may be emailed to account
administrators Customer identifies. Notices are effective on the date on the return
receipt or, for email, when sent.
Notices to Customer: Copies to Customer
<<Customer Address>> <<Customer secondary address>>
9.3 Assignment. Customer may not assign this Agreement.
9.4 Severability. If a court holds any provision of this Agreement to be illegal, invalid or
unenforceable, the rest of the document will remain in effect and this Agreement will
be amended to give effect to the eliminated provision to the maximum extent possible.
9.5 Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach.
Any waiver must be in writing and signed by an authorized representative of the waiving
party.
9.6 Applicable law. This Agreement is governed by the laws of the State of Texas without
regard to its conflict of laws principles.
9.7 Dispute Resolution. The Parties agree that any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled to the extent possible
by good faith negotiations. Any dispute which the parties cannot resolve by good faith
negotiations within 30 days or such longer period as the Parties may mutually agree,
shall be submitted to binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association by a single arbitrator appointed in
accordance with such Rules. The arbitration will take place in Austin, TX, USA, in the
English language and the arbitral decision may be enforced in any court.
Notwithstanding the foregoing, claims for injunctive or equitable relief or claims
regarding Intellectual Property rights may be brought in any competent court. Subject
to the preceding arbitration provision, the Parties consent to exclusive jurisdiction and
venue in the state and Federal courts located in Austin, TX.
9.8 Entire Agreement; Amendment. This Agreement and the schedules thereto constitute
the entire agreement between the parties and supersede all prior agreements,
understandings and other communications with respect to the subject matter hereof.
Except as specifically provided for in this Agreement, no modification or amendment of
this Agreement will be effective unless in writing and executed by a duly authorized
representative of each party.
9.9 Force majeure. Neither party will be liable for any failure in performance due to causes
beyond either party’s reasonable control (such as fire, explosion, power blackout,
earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military
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authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of
Internet traffic carriers, actions or omissions of regulatory or governmental bodies
(including the passage of laws or regulations or other acts of government that impact
the delivery of Services)). This Section does not apply to Customer’s payment obligations
under this Agreement to the extent that any services continue during the force majeure
period, for services rendered prior to the force majeure period, or once services resume
following the force majeure period.
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WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.
Mr.
Clay Pearson, City Manager DocuSigne^
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Name City
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Title AUR|
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1
AURIGO SERVICE SUBSCRIPTION
AGREEMENT
This Service Subscription Agreement (the “Agreement”) is an agreement between Aurigo Software
Technologies Inc. and The City of Pearland (the “Customer”). This Agreement consists of the terms and
conditions, the service level agreements (“SLAs”) corresponding to the applicable Services, and the
pricing and payment terms related to the applicable Services. The Services also may contain other
posted notices or codes of conduct, which are incorporated by reference into this Agreement.
Please read this Agreement carefully. THIS AGREEMENT MUST BE SIGNED BY BOTH PARTIES PRIOR TO
USING ANY OF THE SERVICE. CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING
ANY WRITTEN AND MUTUALLY AGREED MODIFICATIONS MADE TO IT FROM TIME TO TIME. IF
CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, IT MAY NOT
SUBSCRIBE TO OR USE THE SERVICES.
1. DEFINITIONS
“Add-on Service” means additional functionality or services that may be ordered by Users of the
Services for an additional subscription fee or charge.
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common
ownership. "Ownership" means, for purposes of this definition, control of more than a 50% interest in
an entity. If Customer is an agency of a state, provincial, or local government, "Affiliate" means:
1. any government agency, department, office, instrumentality, division, unit or other entity,
of Customer’s state, provincial or local government that is supervised by, or is part of,
Customer, or which supervises Customer or of which Customer is a part, or which is under
common supervision with Customer;
2. any county, borough, commonwealth, city, municipality, town, township, special purpose
district, or other similar type of governmental instrumentality established by the laws of
Customer’s state or province and located within Customer’s state’s or province’s jurisdiction
and geographic boundaries; and
3. any other entity in Customer’s state or province expressly authorized by the laws of
Customer’s state or province to purchase under state or provincial contracts; provided that a
state or province and its Affiliates shall not, for purposes of this definition, be considered to be
Affiliates of the federal government or its Affiliates. Notwithstanding the foregoing, provincial
Crown corporations are not Affiliates for the purposes of this definition. If Customer is an
agency of the U.S. government, "Affiliate" means any other agency of the U.S. government. If
Customer is an agency of the Canadian government, "Affiliate" means any other agency of the
Canadian government, except for a federal Crown corporation.
“Annual Construction Value” or “ACV” means the Customer's sum of all construction costs (both
direct and indirect) for the period of one fiscal year.
“Aurigo” means Aurigo Software Technologies Inc. or its Affiliates.
“CPGL” means Core Product Go Live. It is the date that the base functionality of the Aurigo
Commercially Off the Shelf platform and the licensed product(s) is/are made available to Customer.
This is different from Solution Go-live date when the entire solution will be hosted in a production
environment.
“Client Software” means any software provided to Customer by Aurigo related to the Services.
“Confidential Information” means all terms and conditions herein, and any and all financial, sales,
2
marketing, pricing, customer, personnel, present or future product (including, without limitation, the
source code of the Services or Client Software and all know-how and trade secrets, relating to,
contained in, or embodied in the Services or Client Software, technical, research, development or other
business data and information of the parties (whether communicated orally, visually, in writing, or in
any other recorded or tangible form) which is not in the public domain and which: (a) either party has
marked as confidential or proprietary, (b) either party, orally or in writing, has advised the other party
of its confidential nature, or (c) due to its character or nature, a reasonable person in a like position
and under like circumstances would treat as confidential.
“Content” means all data, including all text, sound, or image files and software that are provided to
Aurigo by, or on behalf of, Customer, its Users and associated account Users through their use of the
Services. The term “Content” does not apply to any test data.
“Customer” means the entity that has entered into this Agreement. If an individual enters into this
Agreement on behalf of a company or other legal entity, such individual represents that he or she has
the authority to bind such entity to this Agreement.
“Go-Live” means the date entire configured Service is hosted and available in Aurigo’s production
environment for user access.
"Intellectual Property" means any intellectual or industrial property rights protected or protectable
under the laws of United States of America and includes copyrights, moral rights, trade secrets, patent
rights, rights in inventions, trade-marks, trade names and service marks, as well as applications for,
and registrations, extensions, renewals and re-issuances of, the foregoing, in whatever form such
rights may exist and whether registered or unregistered.
"License" means the rights granted by Aurigo to Customer to copy, install, use, access, display, run
and/or otherwise interact with the Services and/or Client Software for, as applicable, for Customer’s
internal business purposes.
“Service” or “Services” means any of the Aurigo-hosted service or services to which you subscribe
under this agreement.
"SLAs" means service level agreements representing commitments Aurigo makes with regard to the
Services. The term “SLAs” does not apply to any Third Party Software or Third Party Services.
"Subscription" means enrollment for a Service or Services for a defined Term.
“Subscription Fee” means the annual fee Customer is required to pay for the Subscription to the
Services and Client Software. Customer is required to pay the Subscription Fee in advance. Payments
are due and must be paid in accordance with the Order. Price level changes are not retroactive. Prices
for each price level are fixed at the time the Subscription is first placed and apply throughout the
Contract Term. Subscription Fees are subject to change by Aurigo at the end of the initial Contract
Term and at the end of any contract renewal term.
“Subscription Period” means the one-year period corresponding to a given Subscription Fee.
"Term" or “Contract Term” means the duration of this Agreement, as set forth on Schedule 1.
“Third Party Software” means software provided by a third party to Customer (which may or may
not be used through the Services), that are subject to additional terms and conditions between the
third party and Customer associated with Customer’s use of such third party software. The term “Third
Party Software” does not include software embedded in the Services, or provided to Customer by
Aurigo as part of the Services, that are necessary for Customer’s use of the Services.
“Third Party Services” means services provided by a third party to Customer (which may or may not
be used through the Aurigo Services), that are subject to additional terms and conditions between the
third party and Customer associated with Customer’s use of such third party services. The term “Third
Party Services” does not include services provided to the Customer with, or as part of, the Aurigo
Services that are necessary for Customer’s use of the Aurigo Services.
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“Users” means individuals within Customer’s organization who have the right to use the Services, as
dictated by the number of User Licenses purchased by Customer.
“User Licenses” refers to the named user license subscriptions that Customer has purchased under
its Subscription for Services.
"Work Order" or "Order" means an order for Services.
"Work Product" means any item (tangible or intangible) which is created or produced as a result of
any customization or configuration services by Aurigo. For the sake of clarity, the term “Work Product”
does not include any items that are considered to be derivative works of intellectual property owned
by Aurigo, including but not limited to configuration of existing code.
2. LICENSE GRANT – WHAT CUSTOMER IS LICENSED TO USE
2.1 General. Aurigo grants Customer a non-exclusive, non-transferrable, non-assignable,
limited License to the Services ordered by Customer during the Term, subject to
Customer’s obligation to pay and any rights and limitations described in this
Agreement. Customer’s ability to use the Services may be affected by minimum system
requirements or other factors. Aurigo reserves all rights not expressly granted. No
implied licenses flow from this Agreement.
2.2 Ownership. Each party shall retain ownership of its Intellectual Property and
derivative works created therefrom. Ownership rights to Work Product provided to the
Customer under this Agreement will be defined in an applicable statement of work
associated with that Work Product.
2.3 Client Software. Customer may need to install Client Software wherever applicable
(mobile client software for iOS and Android are available subject to users being licensed
to access the Services) to access and use the Services, in which case Aurigo grants
Customer a non-exclusive, non-transferrable, non-assignable, limited License to the
Client Software during the Term, subject to Customer’s obligation to pay and any rights
and limitations described in this Agreement. Customer’s ability to use the Client
Software may be affected by minimum system requirements or other factors. Customer
may make copies of the Client Software solely to support the Services for its Users,
but only to the extent the copies are true and complete copies (including copyright and
trademark notices) and are made from an Aurigo approved media or a network source.
Customer agrees to use reasonable efforts to make all authorized Users (as discussed
in Section 2.4 below) aware that use of the Services is licensed from Aurigo and subject
to the terms of this Agreement. Additional rights and restrictions for the Client Software
may accompany the provision of such Client Software, and Customer agrees to abide
by all such additional rights and restrictions.
2.4 Authorized Users. Only those individuals who Customer designates as authorized
Users may use and access the Services. Only Users who have administrator privileges
may add additional authorized Users to the Services up to and including the total
number of User Licenses purchased during the Subscription Period. User Licenses
cannot be shared or used by more than one individual authorized User and cannot be
reassigned to a new User to replace a current authorized User who has terminated
employment or otherwise changed job status or function and no longer uses the
Services. However, a User who has administrator privileges may delete an authorized
User from the Services and add a new authorized User to the Services to replace the
former authorized User.
2.5 Limitations on use. Customer shall not (and shall not permit any third party to) copy,
reverse engineer, decompile or disassemble the Services or Client Software or make
works derived from any version of the Services or Client Software or attempt to
generate or access the source code for the Se rvices or Client Software, whether by
converting, translating, decompiling, disassembling or merging any part of the Services
or Client Software with any other software, except where applicable law requires it
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despite this limitation. Customer shall not (and shall not permit any third party to)
rent, lease, lend, resell, or host to or for third parties any Services or Client Software.
Customer shall not circumvent or disable any usage rules or other security features of
the Services or Client Software; or remove, alter or obscure any proprietary notices or
labels.
3. ORDERING, PRICING, PAYMENTS, RENEWALS AND TAXES
3.1 Ordering. Customer shall issue a purchase order to Aurigo for each Subscription and
for each change to a Subscription during an applicable Subscription Period.
If Customer desires to increase the total number of User Licenses during a Subscription
Period, Customer must purchase those additional User Licenses prior to exceeding its
then-current number of authorized User Licenses. If Customer desires to reduce the
total number of User Licenses, Customer may request a reduction in the number of
User Licenses at any time during the applicable Subscription Period. If Aurigo assesses
that Customer is eligible for such reduction, which Aurigo may determine in its sole
discretion, the reduction in the number of User Licenses will be effective at the
beginning of the next Subscription Period. Customer’s reduction of User Licenses may
trigger a price increase according to Aurigo’s then-current Subscription Fee, and
Customer may lose any locked-in pricing or volume discounts previously agreed with
Aurigo.
If Customer has purchased an ACV-based Subscription, and if during the Contract
Term, Customer uses a higher ACV than it originally purchased for the applicable
Subscription period, then (i) at the end of the applicable Subscription period, Aurigo
will have the right to invoice Customer in arrears at a price for the higher ACV tier
actually used by Customer; and (ii) Customer will automatically be enrolled in the
higher ACV tier actually used by Customer for the next applicable Subscription Period.
If the Customer budget allocation changes, Customer may request a downgrade to a
lower ACV tier. If Aurigo assesses that Customer is eligible for such downgrade, which
Aurigo may determine in its sole discretion, Customer’s downgrade to a lower ACV tier
will be effective at the beginning of the next Subscription Period. There will be no
refunds if Customer’s ACV usage is lower than the tier selected for the then-current
Subscription period. Customer’s downgrade to a lower ACV tier may trigger a price
increase according to Aurigo’s then-current Subscription Fee, and Customer may lose
any locked-in pricing or volume discounts previously agreed with Aurigo.
Any Services added to a Subscription will expire at the end of the Term. Customer may
place Orders for its Affiliates under this Agreement and grant its Affiliates
administrative rights to use the Services. Affiliates may not place Orders under this
Agreement. To the extent Customer grants any rights to Affiliates, such Affiliates shall
be bound by the terms and conditions of this Agreement. Customer agrees that it is
jointly and severally liable for any Services purchased for or other actions taken by any
of its Affiliates or any third party to which it provides rights under this Agreement.
3.2 Renewal. The Contract Term of this Agreement is defined in the Schedule 1.
3.3 New agreement. Prior to placing new Orders, renewing any Subscriptions, or further
use of the Services after the end of Contract Term, and upon notice, Aurigo may require
that Customer enter into an updated agreement to govern Orders, renewal
Subscriptions, usage or other terms from that date forward.
3.4 Taxes and other Incidental Charges. The prices and rate plans do not include any
taxes, phone and the Customer’s cost of their Internet access charges, mobile text
messaging, wireless service and other data transmissions, unless stated otherwise.
Customer is responsible for all such incidental charges and any taxes it is legally
obligated to pay, including, but not limited to, paying Aurigo any applicable value
added, sales or use taxes or like taxes that are permitted to be collected from Customer
by Aurigo under applicable law. If any taxes are required by law to be withheld on
5
payments made by Customer to Aurigo, Customer may deduct such taxes from the
amount owed Aurigo and pay them to the appropriate taxing authority; provided,
however, that Customer shall promptly secure and deliver to Aurigo an official receipt
for any such taxes withheld or other documents necessary to enable Aurigo to claim a
Foreign Tax Credit. Customer will make certain that any taxes withheld are minimized
to the extent possible under applicable law. If the Customer is tax exempt, it must
provide a valid tax exemption certificate for Aurigo to exclude taxes from customer
invoices.
3.5 Refunds. All charges are non-refundable unless expressly stated otherwise, or
otherwise provided by law.
3.6 Late Payments. Payments to Aurigo are due 30 days from receiving an invoice. Aurigo
may suspend or cancel the Services if Customer does not pay in full and on time.
4. TERM AND TERMINATION
4.1 This Agreement will become effective upon acceptance by the parties and will remain
in force for the Term unless terminated pursuant to this Section 4.
4.2 Suspension of Services by Aurigo. Aurigo may immediately suspend Customer’s
use of the Services or a portion thereof at any time if (a) Aurigo believes that
Customer’s use of the Services represents a direct or indirect threat to its network
function or integrity or anyone else’s use of the Service, or (b) Aurigo is otherwise
required by law to do so. Upon notification by Aurigo of any such suspension,
Customer’s right to use the Services will stop immediately. For the avoidance of doubt,
during any suspension, the other terms of this Agreement remain in full force and
effect.
Aurigo will endeavor to work with Customer to revoke a suspension, which may include
the Customer taking remedial actions, after which Customer’s right to use the Services
will resume. If Aurigo determines in its sole discretion that a suspension cannot be
revoked, then Aurigo may terminate this Agreement by written notice to Customer.
4.3 Termination by Customer. Customer may suspend Customer’s use of the Services
or a portion thereof at any time if Aurigo violates the terms of this Agreement.
However, Customer’s obligation to pay remains in effect until the date of termination.
4.4 Termination of this Agreement for Cause. A party may terminate this Agreement
by written notice if the other party materially breaches this Agreement and fails to cure
the breach during the Cure Period. The “Cure Period” will commence on the date the
non-breaching party gives written notice of breach to the breaching party, specifying
the nature of the breach, and will continue for a period of: (i) ten days in cases where
the breach is the failure to pay any amounts due under this Agreement; or (ii) 30 days
for all other breaches; provided that, notwithstanding the foregoing, there will be no
period for curing or remedying a material breach by either party of its obligations
pertaining to Confidential Information under Section 8. If Customer fails to make any
payment required hereunder and fails to cure such breach within the Cure Period,
Aurigo may declare all sums due and to become due hereunder immediately due and
payable. If Aurigo terminates this Agreement for Customer’s violation of the
Agreement terms, Customer will be obligated to pay any Subscription fees due for the
then-current Subscription Period.
4.5 Termination for Insolvency. This Agreement may be terminated by either party,
immediately upon written notice to the other party in the event (i) the other party files
a petition for bankruptcy or is adjudicated bankrupt; (ii) a petition in bankruptcy is
filed against the other party and such petition is not dismissed within sixty (60)
calendar days; (iii) the other party becomes insolvent or makes an assignment for the
benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy
or other similar law; (iv) the other party discontinues its business; or (v) a receiver is
6
appointed for the other party or its business.
4.6 Effect of termination. Upon termination or cancellation of the Services or this
Agreement by either party for any reason, (i) Customer will immediately cease all use
of the Services and Client Software, (ii) Customer shall certify in writing to Aurigo that,
within 30 calendar days after termination, Customer has erased from computer
memory, destroyed, or returned to Aurigo all Client Software, as we ll as any copies
thereof on any media or in any form, whether partial or complete, whether modified
or in original form, (iii) Aurigo may delete Customer’s Content permanently from its
servers. Notwithstanding the foregoing, Aurigo will keep Customer’s Content for a
period of 90 days before it is deleted from Aurigo’s servers. Aurigo will provide a copy
of all Customer data. Customer data will be provided in Microsoft SQL format and any
files contained outside of the SQL platform will also be provided. This includes all
attachments, pdf’s, images, documents, etc. that are part of the Customer
dataset. The customer will not be responsible for any cost incurred to transfer the
data. Termination of the Services or this Agreement or any license granted herein
shall not limit either party from pursuing any other remedies available to it at law or
in equity. Upon termination Aurigo will provide customer with a backup of the SQL
database that will be suitable for the City to restore to its own instance of Microsoft
SQL server.
4.7 No liability for deletion of Content. Customer acknowledges that, other than as
expressly described in these terms, Aurigo will have no obligation to continue to hold,
export or return Customer’s Content. Customer acknowledges that Aurigo will have no
liability whatsoever for deletion of Content pursuant to these terms.
5. DATA PRIVACY
5.1 Use of Customer Data. Content and other data that Customer may provide or cause
to be provided to Aurigo for use with the Services (“Customer Data”) will be used
only to provide Customer the Services, and in other limited circumstances, including
troubleshooting aimed at preventing, detecting and repairing problems affecting the
operation of the Services, the improvement of features including but not limited to
those features that involve the detection of, and protection against, emerging and
evolving threats to the user (such as malware or spam), and develop new Service
capabilities. Aurigo may also use Customer Data for the limited purposes of marketing,
advertising and customer communications. Customer hereby grants to Aurigo a
limited, nonexcusive licnese to use Customer Data for the limited purposes set forth
above in this Section 5.1.
Notwithstanding the forgoing, Aurigo will not otherwise disclose customer data to a
third party (including law enforcement, other government entity, or civil l itigant;
excluding Aurigo subcontractors and affiliates) except as Customer directs or unless
required by law. Should a third-party contact Aurigo with a demand for customer data,
Aurigo will attempt to redirect the third party to request it directly from Customer. As
part of that, Aurigo may provide Customer’s basic contact information to the third
party. If compelled to disclose customer data to a third party, Aurigo will use
commercially reasonable efforts to notify Customer in advance of a di sclosure unless
legally prohibited. Customer is responsible for responding to requests by third parties
defined in this clause regarding Customer’s use of the Service, such as a request to
take down content under the Digital Millennium Copyright Act.
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6. USE RIGHTS AND LIMITATIONS
6.1 SLAs. Aurigo will comply with the then-current SLA in place relating to the Services
6.2 Customer’s Use. In using the Service,
Customer agrees to:
• comply with all laws;
• comply with any codes of conduct or other notices provided by Aurigo;
• keep its password secret, and
• promptly notify Aurigo if it learns of a security breach or unauthorized access
related to the Service.
Customer agrees to not:
• use the Services in any way that harms Aurigo or its Affiliates, resellers,
distributors and/or vendors, or any customer of the same, or the Services or
other Users;
• engage in, facilitate, or further unlawful conduct;
• damage, disable, overburden or impair the Services (or the networks
connected to the Services) or interfere with anyone’s use and enjoyment of
the Services;
• resell or redistribute the Services, or any part of the Services, unless Customer
has a contract with Aurigo that permits it to do so;
• use any portion of the Services as a destination linked from any unsolicited
bulk messages or unsolicited commercial messages (“spam”);
• use any unauthorized automated process or service to access and/or use the
Services (such as a BOT, a spider, periodic caching of information stored by
Aurigo or “meta-searching”), however, periodic automated access to the
Services for report creation or scheduling is permitted;
• use any unauthorized means to modify or reroute, or attempt to modify or
reroute, the Services or work around any of the technical limitations in the
Services;
• modify, create derivative works from, reverse engineer, decompile or
disassemble or otherwise attempt to discover any trade secret contained in
the Services or in any technology, or system used by Aurigo in connection
with providing the Services, except and only to the extent that applicable law
expressly permits Customer to do so despite this limitation;
• create a "mirror" of any content of the Services to give the impression that
Customer is offering all of the functionality of the Services as its service
located on its own servers;
• build a product or service using similar ideas, features, functions or graphics
of the Services;
• copy any ideas, features, functions or graphics of the Services.
6.3 Use of Other Aurigo Services. Customer may need to use certain Aurigo websites
or services to access and use the Services. If so, the terms of use associated with those
websites or services, as applicable, apply to Customer’s use of them.
6.4 Third Party Services. Aurigo or its partners may make Third Party Services available
to Customer (a) through the Services or (b) that interface with the Aurigo Services.
These Third Party Services are the responsibility of the Third Party Service provider,
not Aurigo. The Third Party Service providers may require Customer to accept
additional terms and conditions and/or pay a fee in order to use their services. Those
additional terms and conditions are between Customer and the Third Party Service
provider. Customer must maintain an active Subscription in order to use the Aurigo
Services with Third-Party Services.
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Any Third Party Service provider’s use of information that Customer provides as part
of using their Third Party Service is subject to the privacy statements and practices of
that Third Party Service provider and/or their suppliers. Aurigo encourages Customer
to review the privacy statement of these Third Party Service providers. Aurigo is not
responsible for the privacy statements or privacy practices of these Third Party Service
providers or their suppliers.
6.5 Third Party Software. Some Third Party Software may be appropriate or necessary
for use with the Service. Customer is solely responsible for any Third Party Software
installed in or used with the Aurigo Services, and Customer’s right to use such Third
Party Software is governed by the terms of any applicable Third Party Software license
agreement. Aurigo is not a party to and is not bound by any terms governing
Customer’s use of the Third-Party Software, and Customer acknowledges that it will
direct and control the installation and use of such Third Party Software with the Aurigo
Services.
Customer must maintain an active Subscription in order to use the Aurigo Services
with Third Party Software. Aurigo will not run or make any copies of Third Party
Software licensed by the Customer except as may be necessary to support Customer’s
use of the Aurigo Services. Customer may not install or use the Third Party Software
in any way that would subject Aurigo’s intellectual property or technology to obligations
beyond those included in the Agreement. Aurigo does not, and will not have any
obligation to, provide technical or other support for any Third Party Software. Aurigo
does not make any representation or guaranty that any Third Party Software will
operate successfully with the Services or continue performing after an update,
upgrade, services patch, support fix or platform migration has been made to the
Service.
6.6 Third Party Software and Third Party Services Release of Claims. Aurigo will
not be liable for any claims arising out of Customer’s use of Third Party Software or
Third Party Services, including but not limited to, claims pertaining to privacy,
performance, availability, or data integrity.
6.7 Third Party Software and Third Party Services Indemnity for Use. Customer
will indemnify and hold harmless Aurigo for all claims resulting from, related to, or in
connection with Customer’s use of Third Party Software or Third Party Services
associated with the Aurigo Services.
6.8 Use of Third Party Software or Third Party Services Websites. If Customer
accesses any third party website to use Third Party Software or Third Party Services in
conjunction with the Aurigo Services, Customer must abide by the third party’s terms
of use, and also must abide by Aurigo’s terms of use for those third party websites, as
set forth in section 7.1.
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7. CUSTOMER CONTENT
7.1 Links to third-party Web sites. The Services may contain links to third party
websites belonging to Third Party Software and Third-Party Service providers. These
third-party websites are not under Aurigo’s control and Aurigo has no responsibility for
the content contained in such third-party websites. If Aurigo has included these links
in the Services, it provides them as a convenience to Customer only. The inclusion of
these links is not an endorsement by Aurigo of any third-party website, Third Party
Software, Third Party Services, or any other third-party service or product. Aurigo
reserves the right to disable links to any third-party website that Customer posts on
the Services. Customer’s use of any such third-party website will also be subject to
Aurigo’s Third Party Terms of Use, available here: http://www.aurigo.com/third-party-
terms-of-use/
7.2 Aurigo will not own any Content. Aurigo performs regular backups of Content for
the purpose of recovery in the event of a failure in Aurigo’s data centers. However,
notwithstanding the foregoing, Customer is solely responsible for the Content it
provides to Aurigo through the Services either through integrations or through manual
entry. Customer, not Aurigo, shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness, and intellectual property ownership or
right to use such Content. Aurigo shall not be responsible or liable for the deletion,
correction, destruction, damage, loss, or failure to store any Content that Customer
uses with the Service. Aurigo will provide an automated method to provide a backup
copy of the data to the customer to ensure data integrity at regular weekly intervals
or a methodology that provides an automated process for the Customer to collect a
backup of the data. The customer will be responsible for any cost incurred to transfer
the data.
8. CONFIDENTIALITY
8.1 Aurigo and Customer shall treat the terms and conditions of this Agreement, to the
extent permitted by law, as confidential and shall not disclose them to any third party
except in the furtherance of the parties’ business relationship with each other. For
government Customers, this Section is subject to the requirements of applicable trade
secret, public records, or similar laws.
8.2 Protective Measures. Each party acknowledges the proprietary nature of the other
party’s Confidential Information and the business advantage and opportunity provided
thereby. Customer acknowledges and agrees that the Services and Client Software, its
object code and source code, whether or not provided to Customer, and all ideas,
methods, algorithms, formulae, processes, and concepts used in developing or
incorporated into the Services or Client Software, all future updates and upgrades, and
all other improvements, revisions, corrections, bug -fixes, hot- fixes, patches,
modifications, enhancements, releases, signature sets, upgrades, and policy and
database updates and other updates in, of, or to the Services or Client Software, all
derivative works based upon any of the foregoing, and all copies of the foregoing are
trade secrets, Confidential Information and proprietary property of Aurigo, having
great commercial value to Aurigo. Accordingly, each party agrees that the Confidential
Information it receives from the other party will be disclosed only to such of its
employees and agents who have a need to know such particular information in
furtherance of their duties and are bound to an enforceable written agreement
prohibiting them from disclosing any such information to any other party or using such
information except for the purposes permitted by this Agreement. Except as expressly
permitted by this Agreement, neither party will use the other party’s Confidential
Information or disclose such information to any third party without the prior written
consent of the other party.
8.3 Exceptions Regarding Disclosure. Nothing in this Agreement will prevent the
receiving party from disclosing the other party’s Confidential Information to the extent
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the receiving party is legally compelled to do so by any court or governmental
investigative or judicial agency pursuant to proceedings over which such agency has
jurisdiction, on condition that prior to the disclosure, the receiving party shall (i) assert
the confidential nature of the Confidential Information; (ii) immediately notify the
disclosing party in writing of the order or request to disclose; and (iii) cooperate fully
with the disclosing party in protecting against any such disclosure and/or obtaining a
protective order narrowing the scope of the compelled disclosure and protecting its
confidentiality.
8.4 Injunctive Relief. Each party acknowledges and agrees that due to the unique nature
of Confidential Information, there can be no adequate remedy at law for any
unauthorized use or copying of the Services or Client Software by Customer or any
breach of the obligations under this Section 8 regarding Confidential Information by
either party. Any such breach would result in irreparable harm to the non-breaching
party and, therefore, upon any such alleged breach, the non -breaching party will be
entitled to seek appropriate equitable relief, in addition to whatever remedies it might
have at law, in equity or under this Agreement.
9. WARRANTIES
9.1 Limited warranty. Aurigo warrants that the Services and Client Software will conform
as per specification, and will be subject to the following limitations:
• this limited warranty applies only during the Term, including any renewals
("Warranty Period");
• any implied warranties, guarantees or conditions not able to be disclaimed as
a matter of law will last only during the Warranty Period;
• this limited warranty does not cover problems caused by accident, abuse or
use of the Services in a manner inconsistent with this Agreement, or resulting
from events beyond Aurigo’s reasonable control;
• this limited warranty does not apply to problems caused by the failure to meet
minimum system requirements;
• this limited warranty does not apply to downtime or other interruption in
access to the Services, or any other performance metrics that are addressed
in an applicable SLA;
• this limited warranty does not apply to problems caused by Customer’s use of
any Third-Party Services, Third-Party Software and any other third-party
provided goods or services; and
• This limited warranty expressly excludes any Third-Party Services, Third-Party
Software and any other third-party provided goods or services.
9.2 Remedies for breach of limited warranty. If Customer notifies Aurigo within the
Warranty Period that the Services or a portion thereof do not meet the limited
warranty, then Aurigo will either (1) return the amount paid for the applicable Services
or portions thereof during the Term, but only in an amount equal to the portion of the
payments for which Customer’s warranty claim applies, and only to the extent
Customer requests termination of the contract, or (2) update such Services to make it
conform to the limited warranty. These are Customer’s only remedies for breach of the
limited warranty, unless other remedies are required to be provided under applicable
law.
9.3 DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY,
AURIGO PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. AURIGO
DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS,
INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE
DISCLAIMERS WILL APPLY UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
9.4 DISCLAIMER OF LIABILITY. Aurigo will not be in breach of any of its obligations
under this Agreement (including in respect of any service levels, to the extent
11
applicable) or be liable to Customer, to the extent such act or omission (which would
constitute such a breach, or give rise to liability) is caused by or directly attributable
to an act or omission of any third party not affiliated with Aurigo , including for the
avoidance of doubt, Customer.
10. DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS
10.1 Agreement to protect. Aurigo will defend Customer against any claims made by an
unaffiliated third party that any Services or Client Software infringes that third party’s
patent, copyright or trademark or makes intentional unlawful use of its trade secrets
or confidential information. Aurigo will also pay the amount of any resulting adverse
final judgment (or settlement to which Aurigo consents). This Section provides
Customer’s exclusive remedy for these claims.
10.2 What Customer must do: Customer must notify Aurigo promptly in writing of the
claim and give Aurigo control over its defense or settlement of the claim. Aurigo will
work with Customer’s designated representative to process and defend against the
claim. Customer’s designated representative must provide Aurigo with reasonable
assistance in defending the claim. Aurigo will reimburse Customer for reasonable out
of pocket expenses that it incurs in providing that assistance, but Aurigo will not be
liable to Customer for any attorney fees of counsel hired by Customer unless Aurigo
has expressly agreed to pay such fees in advance and in writing.
10.3 Limitations on defense obligation. Aurigo’s obligations in this Section 10 will not
apply to the extent that the claim or award is based on:
• Customer’s use of the Services or Client Software after Aurigo notifies it to
discontinue its use due to a third party claim;
• Customer’s combination of the Services or any related Client Software with a
non-Aurigo product, data or business process, including Third Party Software
and Third Party Services;
• damages attributable to the value of the use of a non-Aurigo product, data or
business process;
• Customer’s use of Aurigo’s trademark(s) without express written consent to
do so;
• any trade secret or undisclosed information claim, where Customer acquires
the trade secret or undisclosed information (1) through improper means; (2)
under circumstances giving rise to a duty to maintain its secrecy or limit its
use; or (3) from a person (other than Aurigo) who owed to the party asserting
the claim a duty to maintain the secrecy or limit the use of the trade secret or
undisclosed information.
10.4 Specific rights and remedies in case of infringement.
• Aurigo’s rights in addressing possible infringement. If Aurigo receives
information concerning an infringement claim related to the Services or Client
Software, Aurigo may, at its expense and without obligation to do so: (1)
procure for Customer the right to continue to use the allegedly infringing
Services and/or Client Software, (2) modify the Services and/or Client
Software, or (3) replace the Services and/or Client Software with a functional
equivalent, to make it non-infringing, in which case Customer will immediately
stop using the allegedly infringing Services and/or Client Software after
receiving notice from Aurigo.
• Customer’s specific remedy in case of injunction. If, as a result of an
infringement claim, Customer’s use of the Services or Client Software is
enjoined by a court of competent jurisdiction, Aurigo will, at its option, either:
(1) procure the right to continue its use; (2) replace it with a functional
equivalent; (3) modify it to make it non-infringing; or (4) terminate the License
as to the infringing Services and/or related Client Software and refund any
12
amounts paid in advance by Customer for unused Services.
13
11. LIMITATION OF LIABILITY
11.1 Limitation on liability. Except as otherwise provided in this Section, to the extent
permitted by applicable law, the liability of Aurigo and of Aurigo’s contractors to
Customer arising under this Agreement is limited to direct damages up to the amount
Customer paid Aurigo for the Services and/or Client Software giving rise to that liability
during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is
less. These limitations apply regardless of whether the liability is based on breach of
contract, tort (including negligence), strict liability, breach of warranties, or any other
legal theory. However, these monetary limitations will not apply to:
• Aurigo’s obligations under the Section titled "Defense of infringement and
misappropriation claims";
• Customer’s use of Aurigo’s trademark(s) without express written consent to
do so;
• liability for damages awarded by a court of final adjudication for Aurigo’s or its
employees’ or agents’ gross negligence or willful misconduct;
• liabilities arising out of any breach by Aurigo of its obligations under the Section
entitled "Confidentiality"; or
• liability for personal injury or death caused by Aurigo’s negligence or that of
its employees or agents or for fraudulent misrepresentation.
11.2 EXCLUSION OF CERTAIN DAMAGES. To the extent permitted by applicable law,
whatever the legal basis for the claim, neither party, nor any of its affiliates or
suppliers, will be liable for any indirect damages (including, without limitation,
consequential, special or incidental damages, damages for lost profits or revenues,
business interruption, or loss of business information) arising in connection with this
agreement, even if advised of the possibility of such damages or if such possibility was
reasonably foreseeable. However, this exclusion does not apply to either party’s
liability to the other for violation of its confidentiality obligations or of the other party’s
intellectual property rights.
12. VERIFYING COMPLIANCE
During the Term of any Subscription and for three years thereafter, Customer must keep all
records relating to the Subscription(s) and Customer’s use of the Services and/or Client
Software under this Agreement. Aurigo may request that Customer conduct an internal audit
of all Services in use throughout Customer’s organization, comparing (i) the number of User
Licenses in use to the number of User Licenses purchased by Customer or (ii) the ACV tier
actually used by Customer to the ACV tier purchased by Customer, as the case may be. By
requesting an audit, Aurigo does not waive its rights to enforce this Agreement or to protect
Aurigo’s intellectual property by any other means permitted by law. If verification or self-audit
reveals any unlicensed use, Customer must promptly order sufficient User Licenses or purchase
a higher ACV tier, as the case may be, to cover its past and present use. If use in excess of
what Customer has purchased from Aurigo is found, Customer must also reimburse Aurigo for
the costs Aurigo has incurred in verification and acquire the necessary additional User Licenses
or ACV tier, as the case may be, at single retail subscription cost within 30 days.
14
13. MISCELLANEOUS
13.1 Notices. Notices, authorizations, and requests to Aurigo in connection with this
Agreement must be sent by regular or overnight mail, or express courier, to the
addresses listed below. Notices will be treated as delivered on the date shown on the
return receipt. Termination of the Agreement, a Subscription, or cancellation of a
Subscription initiated by a Customer should be sent via the Aurigo customer service
contact.
Notices, authorizations, and requests to Customers may be emailed to account administrators
Customer identifies. Notices are effective on the date on the return receipt or, for email, when
sent.
Notices should be sent to the Customer: Copies should be sent to:
City of Pearland | 3523 Liberty Drive | Pearland,
TX 77581
City of Pearland | 3523 Liberty Drive | Pearland, TX
77581
13.2 Assignment. Customer may not assign this Agreement.
13.3 Severability. If a court holds any provision of this Agreement to be illegal, invalid or
unenforceable, the rest of the document will remain in effect and this Agreement will
be amended to give effect to the eliminated provision to the maximum extent possible.
13.4 Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach.
Any waiver must be in writing and signed by an authorized representative of the
waiving party.
13.5 Applicable law. This Agreement is governed by the laws of the State of Texas without
regard to its conflict of laws principles, except that (1) if Customer is an entity of the
Notices should be sent to Aurigo: Copies should be sent to:
Addresses provided at:
http://www.aurigo.com/contact/
Aurigo Software Technologies Inc.
12515-7 Research Blvd.
Suite 300,
Austin, TX 78759
15
U.S. Government, this Agreement is governed by the laws of the United States, and
(2) if Customer is an entity of a state or local government in the United States, this
Agreement is governed by the laws of that state. The 1980 United Nations Convention
on Contracts for the International Sale of Goods and its related instruments will not
apply to this Agreement. The Services are protected by copyright and other intellectual
property rights laws and international treaties.
13.6 Dispute Resolution. The Parties agree that any controversy or claim arising out of
or relating to this Agreement, or the breach thereof, shall be settled to the extent
possible by good faith negotiations. Any dispute which the part ies cannot resolve by
good faith negotiations within 30 days or such longer period as the Parties may
mutually agree, shall be submitted to binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association by a single
arbitrator appointed in accordance with such Rules. The arbitration will take place in
Austin, TX, USA, in the English language and the arbitral decision may be enforced in
any court. Notwithstanding the foregoing, claims for injunctive or equitabl e relief or
claims regarding intellectual property rights may be brought in any competent court.
Subject to the preceding arbitration provision, the parties consent to exclusive
jurisdiction and venue in the state and Federal courts located in Austin, TX.
13.7 This Agreement is not exclusive. Customer is free to enter into agreements to
license, use or promote non-Aurigo software or services, subject to the terms of this
Agreement.
13.8 Survival. Provisions regarding fees, restrictions on use, transfer of licenses, export
restrictions, defense of infringement and misappropriation claims, limitations of
liability, confidentiality, compliance verification, indemnification, obligations on
termination and the provisions in this Section entitled "Miscellaneous" will survive
expiration or termination of this Agreement.
13.9 Force majeure. Neither party will be liable for any failure in performance due to
causes beyond either party’s reasonable control (such as fire, explosion, power
blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of
civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts
or omissions of Internet traffic carriers, actions or omissions of regulatory or
governmental bodies (including the passage of laws or regulations or other acts of
government that impact the delivery of Services)). This Section does not apply to
Customer’s payment obligations under this Agreement to the extent that any services
continue during the force majeure period, for services rendered prior to the force
majeure period, or once services resume following the force majeure period.
13.10 U.S. export jurisdiction. The Services are subject to U.S. export jurisdiction.
Customer must comply with all applicable laws including the U.S. Export Administration
Regulations, the International Traffic in Arms Regulations, as well as end-user, end-
use and destination restrictions issued by U.S. and other governments.
13.11 Entire Agreement; Amendment. This Agreement and the schedules thereto
constitute the entire agreement between the parties and supersede all prior
agreements, understandings and other communications with respect to the subject
matter hereof. Except as specifically provided for in this Agreement, no modification
or amendment of this Agreement will be effective unless in writing and executed by a
duly authorized representative of each party.
16
SCHEDULE 1 - Description of Service Subscription
Product Name Aurigo Masterworks Cloud – Pro
Product Version 13
Products Included 1. Masterworks Cloud – Platform Core – PLT-MWC-P
2. Capital Planning and Portfolio Management – PLT-CPPM-
P
3. Full Lifecycle Construction Management – PLT-FLCM-P
4. Bidding and Estimation – PLT-BEM-P
Contract Term 1 Year, with up to 4 optional 1-year extensions.
# Of Users Construction Contract Value of $ 100,000,000 or below
Customer Name City of Pearland
Support Plan Silver Support Plan (Standard)
Support Plan
Amendments
Aurigo Gold Concierge Plan comprises a set of 198 concierge
hours in years two through five that may be used by the
City toward any additional form configuration, report
modification, workflow modification or remote training
services required by the city. The Gold Concierge plan shall
be a subscription fee paid in years two through five along
with the software subscription fees and in accordance with
the MSA and SSA. This plan shall have an annual fee of
$30,888.
Note:
Only the products listed above are included with the annual subscription.
17
SCHEDULE 2 – Support Plan & Service Level Agreement
Aurigo provides this Service Level Agreement (SLA) subject to the terms and conditions below, which
will be fixed for the duration Contract Term of the Service. If a new SLA is proposed, it must be agreed
upon in writing between both Aurigo and Customer.
Aurigo will provide product support to the administrative users of the system. Administrative users can
contact Aurigo for support during the support times define in the purchased Support Plan.
Customer end-users must contract Customer’s helpdesk for general support. In case the Customer
helpdesk is not able to resolve the issue, Customer's designated and authorized personnel can contact
Aurigo support helpdesk to help resolve the issue as set forth below.
A. Application Uptime Service Level
1. The Service Level for Application Uptime is according to purchased Support Plan.
2. The Monthly Application Uptime Percentage is calculated for a given calendar month
using the following formula:
Monthly Uptime Percentage =
Total number of minutes
in a given calendar
month
minus Total number of minutes of
Unplanned Downtime in a given
calendar month
Total number of minutes
in a given calendar
month
3. To monitor the Service and to ensure availability, Customer agrees to provide a read-
only user account to access Customer’s instance of the Service.
B. Claims against Application Uptime Service Level
1. Customer may stake a claim if the Application availability does not meet uptime
service level guarantee. In order to make a claim against Application Uptime Service
Level, Customer account should be active and in good standing.
2. Customer must submit a formal claim to billing support at support@aurigo.com.
3. Customer must provide all reasonable application downtown details related to the
Claim.
4. Customer must provide sufficient evidence to support the Claim, by the end of the
month following the month in which the Incident which is the subject of the Claim
occurs (for example, Incident occurs on January 15th, Customer provides Notice on
January 20th, Customer must provide sufficient evidence to support the Claim by
February 28th).
5. Aurigo will use all information reasonably available to it to validate Claims and make
a good faith judgment on application uptime Service Level.
6. Aurigo will use commercially reasonable efforts to process Claims within 45-days.
18
C. Incident (application issue) definitions and support process
Aurigo commits to responding to support requests in a timely manner. If the issue is
because of a bug; a fix may take longer depending on the nature of the bug. The time
to fix will be bug specific and an estimate will be provided to the customer. In such
cases, Aurigo will provide a workaround or advisory instructions (such as when the fix
would be released in production), which will stop the SLA clock for that specific issue.
The service level time will be measured from the first communication to Aurigo via email
or the support line during standard business hours.
To calculate “Time to Repair” accurately, the clock will pause if Aurigo is waiting for
Customer approval, clarification or confirmation for corrective change. This applies to all
severity levels.
D. Exclusions
1. Unplanned Downtime does not include:
a. The period of time when the Service is not available as a result of Planned
Downtime or
b. The following performance or availability issues that may affect the Service:
i. Due to factors outside Aurigo’s reasonable control;
ii. That resulted from Customer’s or third party’s, or Customer’s use of
any third party, hardware, software or services (including Third Party
Software or Third Party Services, as defined in this Agreement);
Severity
Level Name Description Time to
Response Time to
Repair
1 Urgent Service outage has halted normal
functioning of business. Service is
completely inaccessible to users or Service
is unusable because of severe performance
degradation.
1 Hour 4 Hours
2 High Major functionality in the Service is not
working as designed and having a high
impact on portions of the Customer’s
business and impacting majority of users. If
a reasonable workaround is found for an
“urgent” issue, it can be downgraded to
“high” with Customer’s consent.
4
Business
Hours
2 Business
Days
3 Normal Partial, non-critical loss of use of the
Service with a medium-to-low impact on
business. However, business can continue
to function.
If a reasonable workaround is found for a
“high” issue, it can be downgraded to
“normal” with Customer’s consent.
1
Business
Day
7 Business
Days
4 Low Minor inconveniences. Clarifications are
also categorized as “low”.
If a reasonable workaround is found for a
“normal” issue, it can be downgraded to
“low” with Customer’s consent.
1
Business
Day
No specified
turnaround
time
19
iii. That resulted from actions or inactions of Customer or third parties;
iv. That resulted from actions or inactions by Customer or Customer’s
employees, agents, contractors, or vendors, or anyone gaining access
to Aurigo’s network by means of Customer’s passwords or equipment.
v. That were caused by Customer’s use of the Service after Aurigo advised
Customer (through an email to a Customer representative) to modify
its use of the Service, if Customer did not modify its use as advised;
2. SLAs are applicable to production systems only
3. Software defects - For issues that are not classified as Severity 1, that require a code
fix, Aurigo will provide a committed time to fix the defect within the time to repair
window. As long as Aurigo delivers the fix within committed time, Aurigo will be
deemed compliant with time to repair service level.
4. Change requests, which would require a separate statement of work, including scope,
list of deliverables and cost of deliverables.
5. Service requests for configuration change
E. Definitions:
1. “Claim” means a claim submitted by Customer to Aurigo that a Service Level under
this SLA has not been met and that a Service Credit may be due to Customer.
2. “Downtime” means a period of time when Service is not functional and is not
available to Customers for use.
3. “Incident” means an unplanned interruption or degradation in Service.
4. “Monthly Uptime Percentage” is calculated on a calendar month basis (according
to the formula set forth in Section A) using data collected about the Service’s
availability for a given calendar month by a third-party provider who makes frequent
log-in attempts to the Service on a 24-hour/seven day a week basis.
5. “Planned Downtime” means published maintenance windows or times when
Aurigo notifies Customer of periods of scheduled Downtime for network, hardware,
Service maintenance, or Service upgrades at least 5 days before the commencement
of such Downtime. If an emergency Downtime is required (such as a fix to a zero -
day vulnerability), Aurigo is authorized to give Customer notification that is less than
twenty-four (24) hours before the required downtime. Except all Emergency
Downtime, Customers approval is mandatory for Scheduled Downtime. For
Emergency Downtime, Customer will be notified. Every month, a three hour
maintenance (over weekend) is scheduled for security patching.
6. “Service Level” means the percentage of Service availability for a given month
that Aurigo agrees to provide Customer, which is measured by the Monthly Uptime
Percentage.
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Schedule 2.1 Silver Support Plan
Software Silver Support Plan is Aurigo standard support plan that provides your organization peace of
mind while using Aurigo Service. This silver support plan is included for free with the annual enterprise
subscription plans.
Support Hours 8 AM – 5 PM Central Time
(Monday through Friday, excluding US federal and
state holidays)
Support Channel Phone, Email, Web
Product Support – Included Platform – Updates and break-fix patches
Purchased Products – Updates and break-fix patches
Solution Support – Warranty 30 Days post production go-live
Solution Support - Post
Warranty
Provided on Time and Materials Basis
Concierge Desk Not included
Application Uptime 99.5% (excluding planned downtime)
Notes:
1. Hourly rate for Solution Support is $180.00
2. Through concierge desk customers get access to Rapid Prototyping Service using available bundled
hours. Customers are also provided dedicated support call -in number. Concierge desk is available
with the Platinum support plan only.
21
Schedule 2.2 Gold Support Plan
The Aurigo Software Gold Support Plan adds solutions support to our standard support plan and provides
your organization peace of mind while using Aurigo Service. The Gold Support Plan provides extensive
support on the base product functionality along with solution support. The Gold Support Plan ensures
that our customers are getting everything committed to in our Silver Support Plan plus so much more,
such as 45 days of post product go-live warranty support.
Support Hours 8 AM – 5:30 PM Central Time Zone
(Monday through Friday, excluding US federal and
state holidays)
Support Channel Phone, Email, Web
Product Support - Included Platform – Updates and Break-Fix Patches
Purchased Products – Updates and Break-Fix Patches
Solution Support – Warranty 45 Days Postproduction Go-Live
Solution Support - Post
Warranty
250 Hours (per year) of support for Break-Fix or
Solution Services
Concierge Desk Not included
Application Uptime 99.7% (excluding planned downtime)
Notes:
1. At the end of year, the remaining Support Hours do not roll forward to the next year.
2. Discounted rate for each additional hour of Solution Support is $170.00
3. Through concierge desk customers get access to Rapid Prototyping Service using available bundled
hours. Customers are also provided dedicated support call -in number. Concierge desk is available
with the Platinum support plan only.
22
Schedule 2.3 Platinum Support Plan
The Aurigo Software Platinum Support Plan is our premium plan that provides your organization peace
of mind while using Aurigo Service along with world-class technical support for all its configurations and
integrations. The Platinum Support Plan provides extensive support on the base product functionality
along with solution support. The plan ensures our customers are getting everything committed to in our
Gold Support Plan plus so much more, such as 60 days of post product go-live warranty support.
Support Hours 8 AM – 6 PM Central Time Zone
(Monday through Friday, excluding US federal and
state holidays)
Support Channel Phone, Email, Web
Product Support - Included Platform – Updates and Break-Fix Patches
Purchased Products – Updates and Break-Fix Patches
Solution Support – Included 60 Days Postproduction Go-Live
Solution Support - Post
Warranty
1000 Hours (per year) of support for Break-Fix or
Solution Services
Concierge Desk Included with:
- Dedicated Support Number
- Rapid prototyping service
Application Uptime 99.9% (excluding planned downtime)
Notes:
1. At the end of year, the remaining Support Hours do not roll forward to the next year.
2. Discounted rate for each additional hour of Solution Support is $160.00
3. Through concierge desk customers get access to Rapid Prototyping Service using available
bundled hours. Customers are also provided dedicated support call -in number. Concierge desk
is available with the Platinum support plan only.
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above
written.
Mr. Clay Pearson, City Manager
_________________________________
Signature
_______________________
Printed Name
_______________________
Printed Title
AURIGO SOFTWARE TECHNOLOGIES
___________________
Signature
Balaji Sreenivasan
Chief Executive Officer
Attachment A
This Attachment A is hereby incorporated into this Master Services Agreement (MSA) and
made a part hereof. If there is any conflict between this Attachment A and the terms of this
MSA, this Attachment A shall control.
Section 1 –Investment Details
1 Description of Service Subscription
Product Name Aurigo Masterworks Cloud – Pro
Product Version 13
Products Included Aurigo Masterworks Cloud Platform
Capital Planning and Portfolio Management
Full Lifecycle Construction Management
Bidding and Estimation
Contract Term 1 Year, with up to 4 optional 1-year extensions.
Subscription Amount Construction Contract Value of $ 100,000,000 or below
Customer Name City of Pearland
Support Plan Silver Support Plan (Standard)
Support Plan
Amendments
Aurigo Gold Concierge Plan comprises a set of 198 concierge
hours in years two through five that may be used by the City
toward any additional form configuration, report modification,
workflow modification or remote training services required by
the city. The Gold Concierge plan shall be a subscription fee paid
in years two through five along with the software subscription
fees and in accordance with the MSA and SSA. This plan shall
have an annual fee of $30,888.
Note:
• Only the products listed above are included with the annual subscription.
2 Payments Summary
Payment Item T0 + 12 T0 + 24 T0 + 36 T0 + 48 T0 + 60
Subscription $ 124,060 $ 124,060 $ 124,060 $ 124,060 $ 124,060
Professional Services1 $ 204,065
Additional Professional
Services2
$ 20,875 $15,6254
Optional IonWave
integration3
$ 15,000
Gold Concierge Plan $ 30,888 $ 30,888 $ 30,888 $ 30,888
Total $ 349,000 $ 185,573 $ 154,948 $ 154,948 $ 154,948
Project Services Payment Milestones
Services Milestones $ 255,565 Invoice Frequency
1 Project Initiation $ 38,000 On Contract Execution
2 Project Site Setup $ 19,000 On Approval
3 Project Kick-off Meeting $ 19,000 On Approval
4 Requirements Traceability Matrix (RTM) Setup $ 14,250 On Approval
5 Business Process Meeting (BPM) Session Plan $ 14,065 On Approval
6 Business Process Mapping Sessions Complete $ 14,250 On Approval
7 Specifications Complete $ 14,250 On Approval
8 Solution Configuration 50% Complete $ 14,250 On Approval
9 Solution Configuration 100% Complete $ 19,000 On Approval
10 UAT Complete $ 9,500 On Approval
11 Production Release Complete $ 9,500 On Approval
12 Training Manuals $ 9,500 On Approval
13 Training Sessions $ 9,500 On Approval
14
Data Migration Plan (up to 50 active projects
from the City’s existing system, Atser) $ 8,000
On Approval
15
Data Migration Templates (up to 50 active
projects from the City’s existing system, Atser) $ 13,000
On Approval
16
Data Migration Complete (up to 50 active
projects from the City’s existing system, Atser) $ 15,500
On Approval
17 Optional IonWave integration $ 15,000 On Approval
1. The pricing provided by Aurigo during its RFP response had the following assumptions:
a. The schedule did not include integration to Tyler New World, or Laserfiche. Aurigo will create a
mutually agreed schedule that includes Tyler New World and Laserfiche during the during the
project planning phase of the project, which will occur within the first 45 days after contract
signature.
b. The schedule and price submitted in the RFP did not include migrating data from existing
systems. Additional costs have been added to perform the data migration services as per
Section 1 – (Payments Summary) of this document
2. Additional Professional Services for data migration services as requested by the City were added.
Based on discussions with the City, Aurigo has added additional services that will cover costs to
migration up to 50 active projects from the City’s existing system, Atser. Please see Section 2 (Data
Migration Assumptions) for details on the assumptions around data migration.
3. IonWave integration has been moved to year 2.
4. Professional services for data migration have been split into two calendar years. The data migration
will be performed upfront but billed in two separate invoices.
3 Professional Services Rates
Additional services may be purchased for additional work not contemplated by the Statement of Work
contained in this Section 2 of this Attachment A. If such work is purchased it will be at the designated
rates below:
Role Hourly Rate
Project Manager $ 225
Business Analyst $ 200
Configuration Specialist $ 200
Data Migration Specialist $ 200
Integration Specialist $ 200
Trainer $ 235
Solution Architect $ 225
All rates are exclusive of travel and living expenses, which will be billed monthly based on actuals.
4 Silver Support Plan
Software Silver Support Plan is Aurigo standard support plan that provides your organization peace of
mind while using Aurigo Service. This silver support plan is included for free with the annual enterprise
subscription plans.
Support Hours 8 AM – 5 PM Central Time Zone
(Monday through Friday, excluding US federal and state
holidays)
Support Channel Phone, Email, Web
Product Support – Included Platform – Updates and break-fix patches
Purchased Products – Updates and break-fix patches
Solution Support – Warranty 30 Days post production go-live
Solution Support - Post Warranty Provided on Time and Materials Basis
Application Uptime 99.5% (excluding planned downtime)
Section 2 – Statement of Work for RFP 0521-44
Project Management System for Planning, Engineering, and Construction
1 Purpose
The purpose of this Exhibit 1 – Statement of Work document is to compile key deliverables into one (1)
document for ease of reference.
2 In-Scope Project Activities
The following activities are in-scope for delivery by Aurigo:
a) Delivery of Aurigo Masterworks that conforms to the requirements documented in the City’s
RFP #0521-44, and further elaborated in Aurigo’s response to said RFP
b) Delivery of the project using its proprietary Delivery Approach, Aurigo Connected Methods
(ACM). Details on the delivery approach will be provided to the City during project planning
and inception.
c) Providing project leadership, project management, business engagement administration, and
Aurigo team governance for business process mapping and requirements elaboration, design
and specifications, solution configuration, testing, and training
d) Producing design specifications that meet the functional and non-functional requirements.
e) Performing iterative configurations of the system using an Agile methodology to deliver the
functionality per approved specifications.
f) Configuration of up to 20 existing product reports as required by the City by adding new fields,
and or modifying existing calculations specific to the City’s needs.
g) Performing Unit testing, performance testing, penetration security testing to ensure the
configured functionality works in accordance with the approved specifications and non-
functional requirements.
h) Supporting User Acceptance Testing (“UAT”) to measure end-user acceptance of configured
functionality based on defined criteria and test cases.
i) Migration of project data from Atser, as documented in Section 2 – (Data Migration
Assumptions)
j) Developing training content and deliver training, as documented in Section 2 – (Training)
k) Supporting the deployment of the system into production (i.e., “Go-Live”).
l) Performing project Closeout and transition to Aurigo Customer Support.
m) Configuration of an additional 5 new City specified reports. Aurigo will also train users how to
create their own reports via My Reports.
n) Configuration of up to five (5) integration objects to Tyler New World (e.g., Payment
Application submission, Change Order Request, etc.). The objects will be identified during the
project planning and implementation phase of the project.
o) Setup of Docusign integration with the City’s ARCGIS system of record
p) Setup and configuration of open APIs for other integrations that may be implemented by the
City or Aurigo. These APIs can be used to enable the city to extract data for Microsoft Power BI
reports.
3 Out-of-Scope
The following activities are out-of-scope; however, the City may request Aurigo perform these activities
based on mutual agreement of the impacts to cost and schedule;
(a) Customized enhancements to the core Masterworks product.
(b) Changes to the Aurigo Connected Methodology (“ACM”), Aurigo’s project delivery model, unless
changes are mutually agreed upon between the City and Aurigo, and a Change Order is
processed and approved to reflect schedule or cost impacts.
4 Training
4.1 Train-the-Trainer Training (for end-users)
Aurigo will provide a one-time Virtual Instructor-Led Training (VILT) for up to fifteen (15) City identified
users (Trainers). The participants will be trained on how to use the solution's functionality, and they will
be given instructions on how to train other users. The Train-the-Trainer Training course duration will be
anywhere from thirty-two (32) to forty (40) hours in length, depending on the curriculum. Training will
be conducted over consecutive business days. In this training approach, Aurigo will train key users
identified by the City on various aspects of the solution's functionality. The City’s trained personnel will,
in turn, train the remaining City users. Aurigo will support the City’s trainers by providing a training
environment for their training sessions. Aurigo will also answer questions and resolve training issues the
City’s trainers may have in an offline mode. Using this approach, the City will build a talented pool of
users, which benefits new employees and provides continuous support for the City in the long run.
Training Material and system documentation (online help) for Train-the-Trainer Training (for end-users):
• Microsoft PowerPoint presentation slide deck aligned with the training course.
• Participant Guide which includes steps for hands-on exercise during training. Guide will be
provided in PDF/word format aligned with the Training course
• End-User documentation available as online help for reference (accessible from the system)
4.2 System Administration Training
Aurigo will provide a one-time Virtual Instructor-Led Training (VILT) session for up to fifteen (15)
administrative users/IT support staff. The course duration is approximately eight hours and is conducted
during a single business day. Administrative, IT, and support staff will receive training on user
management activities, such as effectively managing user accounts, roles and permissions, and other
security settings. System Administrators will also be trained on how to manage basic system settings,
configure basic forms and workflows, configure dashboards and reports, configure and maintain Library
data, etc.
Aurigo will provide electronic/soft copies of the following training material.
Training Material and system documentation (online help) for System Administrator Training:
• Microsoft PowerPoint presentation slide deck
• System Administrator documentation available as online help for reference (accessible from
within the system)
Note: Aurigo will provide soft copies/electronic copies of the training material and system
documentation (online help). The City may print and distribute training material to City’s users.
5 Data Migration Assumptions
Based on further discussions with the City, Aurigo will provide data migration services from the City’s
existing Atser system. Aurigo has made the following assumptions as part of the cost provided in this
document:
1. Migrate 50 active projects from the City’s existing system.
The existing data provided from the Atser system will only be in PDF format. This limits the amount of
data import that can be performed. Based on this, Aurigo is providing the following data migration
assumptions.
1. Aurigo will create up to 50 project records in the system. The project data imported will consist
of:
a. Project name
b. Project code
c. Project Description
d. Project Start Date
e. Project End Date
2. Aurigo will import one contract record per project. The contract record will consist of:
a. Contract name (if different from project name)
b. Contract code (if different from project code)
c. Contract Description (if different from project description)
3. The Contract Schedule of Values (SOV) will be imported using an excel file provided from
IonWave for each contract. The Contract SOV will have the final awarded prices from IonWave
4. A single Daily Report, and Item Posting (Completion Tracking) record for each imported project
will be created that will has the total quantities posted to date for each imported project
5. A single pay estimate will be created for each imported project that initializes the total
payments to date.
6. A default document folder structure will be created that allows the City to upload pdf versions
of all project records into the document management repository. The City will be responsible
for uploading all project documents into their respective folders in Masterworks.