R2011-037 -2011-03-28ATTEST:
APPROVED AS TO FORM:
L) .i. n
DARRIN M. COKER
CITY ATTORNEY
RESOLUTION NO. R2011 -37
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING A CONTRACT FOR THE PURCHASE OF
PROJECT MANAGEMENT SOFTWARE.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for Project Management Software, a copy of
which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby
authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a contract for the purchase of Project Management
Software.
PASSED, APPROVED and ADOPTED this the 28 day of March, A.D., 2011.
I
TOM REID
MAYOR
NOW THEREFORE, the parties agree to as follows:
1. Definitions
Licensed Software means version 6.0
of Construct -IT, version 4.0 of Track
IT, version 2.0 of Map -IT, version 6.0
of Plan -IT, and version 6.0 of Design
IT.
Authorized User means an employee,
agent, independent contractor or
consultant of Customer or any other
person or entity that is under contract
with the Customer on a specific
Project that is active within the
Database.
Database means the database utilized
by the Licensed Software. The
Database can be implemented using a
third -party database engine.
Documentation means electronic,
paper or other forms of technical
specifications relating to the use of the
Licensed Software.
Executing or Execution means the
invocation (running) of the Licensed
Software on a computer system.
Exhibit "A"
Resolution No. R2011 37
SOFTWARE LICENSE AGREEMENT
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This software license agreement "Agreement for the Licensed Software is
effective as of a 'i of {1nck td 2011 (the "Effective Date and is a legal
agreement by and between the City of Pearland (the "Customer and ATSER
Systems, Inc., (the "Developer with principal offices located at 1150 Richcrest Dr.,
Houston, Texas 77060.
WHEREAS, the Developer provides software applications and various services such
as maintenance, help desk, customization, technical support, training, and hosting
services for those software agreements.
WHEREAS, the Customer desires to secure a license to use one of the software
applications provided by the Developer.
Server means a device capable of
Executing the Licensed Software,
including linkages to any third party
applications required by Licensed
Software.
Site means a specific, physical location
of premises where the Licensed
Software may be stored and executed.
Support Services means
Customization, Maintenance,
Technical Support, Help Desk, and
Training services.
Support Services Agreement means
an agreement between the Customer
and the Developer wherein Developer
provides Support Services to the
Customer.
Help Desk means receiving calls or
electronic medium and logging,
identifying, analyzing, addressing
request and /or routing request to
appropriate function and generally
provided at various levels of service.
(See Support Service Agreement)
Technical Support means address
technical questions and /or data input
error resulting external to the
software code and generally provided
at various levels of service. (See
Support Service Agreement)
Maintenance refers to Developers
Licensed software, database, required
third party software, and hardware.
Maintenance related to developer
software means Error correction
services and service release patches.
(See Support Services Agreement)
Customization means revision or
adaptation of the Technology to
improve the existing functionality of
the Technology at the Customer's
request. "Customization" does not
include Other ATSER Products. (See
Support Services Agreement)
Training means Developer plan for
providing user training includes a
three (3) levels approach: PDA User
Training, System User Training, and
Advanced System Admin Training.
(See Support Services Agreement)
Hosting Agreement means an
agreement that secures a Server for
Execution of the Licensed Software
and to which Developer has access in
order to perform Support Services.
(See Hosting Agreement)
2. License
2.1 Grant of License. Subject to the
terms and conditions hereof,
Developer hereby grants to Customer
a nonexclusive, nontransferable
license to use one binary executable
copy (i.e. object code) of the Licensed
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Software on one Server(s) and the
accompanying Documentation for the
Term of this Agreement. Customer
acknowledges that there is no transfer
of title or ownership of the Licensed
Software to the Customer, and the
Developer reserves all other rights
associated with the Licensed Software.
The Developer has also asserted, and
the Customer appreciates, that the
state of the Licensed Software, such as
it is, may require Customization
and /or the Developer's assistance, in
order to exploit the full capabilities of
the Licensed Software. Customer
appreciates that Developer's Support
Services are required and that in
order to secure the Support Services,
the Developer would require the
Customer to acquire a separate
Support Services Agreement and the
Customer agrees to secure such a
Support Services Agreement.
Customer appreciates that there is no
obligation for the Developer to
support the Licensed Software when a
Support Services Agreement is not in
effect. Furthermore, Customer
appreciates that in order to make use
of the Licensed Software, the
Customer must provide a suitable
machine upon which the Licensed
Software may be Executed and to
which the Developer is permitted
access to in order to perform Support
Services, and to that end the Customer
agrees to acquire a hosting
arrangement with the Developer. The
Customer appreciates that failure by
the Customer to provide a Server or
secure Support Services will impair or
preclude the Customer's use of the
Licensed Software.
2.2 Restrictions on Use.
(a) In addition to the other
restrictions set forth in this
Agreement, the Customer's use of the
Licensed Software is only for the
Customer's internal business use and
the Customer has no right to use,
grant access to, sell or otherwise
transfer or dispose of the Licensed
Software.
(b) The Customer may not
alter or modify the Licensed Software
without the express prior written
authorization of the Developer. The
Licensed Software may not be copied,
duplicated or otherwise reproduced,
in whole or in part; except that such
the Licensed Software may be copied
for back -up purposes but in no event
shall the Customer make more than
three (3) backup copies. The
Customer may make copies of the
Documentation solely for internal
use. The Customer shall reproduce
and include the copyright notice
indicating the Developer's rights to
the Licensed Software on any
authorized copy or portion of the
Licensed Software or Documentation.
(c) The Customer shall not
attempt or allow others to attempt, by
decompiliation, reverse engineering,
disassembly, or any other method, to
create or derive the source programs
or any part thereof from the object
program or from other information
made available under this Agreement.
(d) Unless expressly
authorized by Developer in writing,
Customer shall not: (i) transfer,
sublicense or otherwise assign its
rights in the Licensed Software to any
third party nor allow any third party
to access or use the Licensed Software
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or (ii) distribute, disclose,
manufacture, sell, market, rent, lease
or transfer to any third party the
Licensed Software or use the Licensed
Software in any service bureau
arrangement. Customer may allow use
and access to the licensed software to
any of its Customer Owned
Company's.
(e) Customer acknowledges
and agrees that the rights to the
Licensed Software and the
Documentation and any copies,
modifications, alterations or
derivative works thereof, and title to
any existing or future patents,
copyrights, trade secrets, trademarks,
service marks and other proprietary
rights embodied therein shall remain
exclusively with the Developer. The
Customer will not alter or remove any
copyright or proprietary rights notice
or identification which indicates
Developer's rights to any part of the
Licensed Software or the
Documentation, it being expressly
understood and agreed that the
existence of such copyright notice
shall not be construed as an admission
or presumption that publication of the
Licensed Software has occurred.
3. Term.
3.1. Commencement Date. This
Agreement is effective from the
Effective Date and shall remain in
force until terminated under one or
more of the provisions of this Section.
3.2. Termination for Breach. Either
party, upon the other party's failure to
comply with a material provision of
this Agreement, may terminate this
Agreement. No termination shall
occur hereunder unless the breaching
party has been given thirty (30) days
written notice of the breach and an
opportunity to cure, and has failed to
cure the breach within such thirty
(30) day period.
3.3 Termination by Customer.
Customer may terminate this
Agreement for any reason upon 30
days' written notice to Developer.
3.4 Lack of Support Services
Agreement. The Developer may
terminate this Agreement if the
Customer does not acquire and
maintain a Support Services
Agreement.
3.5 Lack of ATSER's Hosting
Agreement. The Developer will
transfer the licensed software at the
request of the Customer should the
Customer not acquire and maintain an
ATSER Systems, Inc. Hosting
Agreement. The Customer is
responsible for the cost of migrating
the binary executable copy (i.e. object
code) licensed software and data to
their designated third party site along
with the cost of the third party
licenses.
3.6 Obligations Upon Termination.
Upon the termination of this
Agreement for any reason, the
Customer's right to use the Licensed
Software and the Documentation or
any part thereof shall immediately
terminate. Upon such termination,
the Customer will as soon as
practicable return or provide
documented proof of destruction to
Developer the Licensed Software and
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the Documentation and any other
documents, manuals, data,
information or materials furnished by
the Developer, as well as any copies
thereof and shall destroy any
embodiments of these materials
stored in or on a reusable electronic
or similar medium, including but not
limited to memory, disk packs, tape,
and other peripheral devices, and
document in writing such destruction.
The Customer will provide to the
Developer a written certification, in
form and substance reasonably
acceptable to the Developer, attesting
to the destruction and /or return of all
the materials referenced in this
paragraph 3.6. Termination of the
License by the Customer or the
Developer shall in no event entitle
Customer to a refund of any License
Fees or to any rights reserved by the
Developer.
4. Payment.
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4.1 License Fee. For the license
granted in Section 2, Customer agrees
to acquire, maintain and pay for a
separate Support Services Agreement
with the Developer. (See Attachment
A)
4.2 Taxes. All taxes and
duties attributable to this Agreement,
including sales, use and any other tax
assessed by local, state or federal
authorities, shall be borne by the
Customer. If any such taxes are to be
paid by the Developer, the Customer
shall, upon demand, reimburse the
Developer for any such taxes and
duties. The Customer shall have no
responsibility for the Developer's
income taxes.
5. Confidentiality.
5.1. Developer's Confidential
Information. The Developer
represents that the Licensed Software
and Documentation (collectively for
die purposes of this paragraph, the
"Confidential Information constitute
a valuable proprietary product and
trade secret of the Developer
embodying substantial creative efforts
and confidential information,
copyrighted, patented ideas, and
expressions. The Customer agrees to
take reasonable steps to protect the
confidentiality of the Confidential
Information and other information
designated by Developer as
confidential (including the terms of
this Agreement). Such steps include
but are not limited to agreeing not to
sell, transfer, publish, disclose, display
or distribute the Confidential
Information or permit any competitor
or potential competitor of Developer
access to, in any manner, the
Confidential Information or copies
thereof, or any part thereof, in any
form whatsoever. The Customer
agrees that the Customer's employees,
agents, independent contractors and
guests shall be prohibited from taking
any action otherwise prohibited to the
Customer under this Agreement by
requiring these third parties to
acknowledge the general license
agreement terms upon activation of
new user accounts. The Customer
agrees to notify the Developer
promptly and in writing upon the
Customer becoming aware of the
circumstances surrounding any
possession, use or knowledge of
source code, Confidential Information
or any part thereof which is
prohibited hereunder.
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5.2 Customer's Data. Developer is
committed to protecting Customer
privacy and will not view Customer
confidential business data
(hereinafter Business Data except as
necessary to provide Support
Services. The Developer will use
Business Data for the purpose of
service capacity planning;
anticipating, diagnosing, supporting
or resolving any problems that might
limit or disrupt the Support Services;
and improving the quality any
services. Any Business Data collected
while online is also used to facilitate
debugging during development, or to
debug customer escalations that are
being reproduced in real time. The
Developer agrees not to disclose or
distribute the Business Data to any
competitor or potential competitor of
the Customer.
6. Warranties and Remedies.
6.1. Limited Warranties.
(a) In lieu of an initial
warranty, and subject to the
provisions of paragraph 6.2 below,
and so long as the Licensed Software
has not been modified by a person or
entity other than the Developer or as
directed by the Developer, the
Developer will not charge for Support
Services related to the Licensed
Software for the first one (1) year
after the final Customer acceptance
date.
The only representations or
warranties regarding the Licensed
Software are set forth in this
paragraph 6.1(a). The Developer
does not warrant or represent that
the Licensed Software will meet the
Customer's requirements that the
Licensed Software will be error free
and except as set forth in this
paragraph 6.1, the Licensed
Software is being provided to
Customer "AS -IS." If errors are
discovered after initial
implementation and warranty
period and while a Support Services
Agreement is in place, then the
Developer will correct the error at
no additional cost to the Customer.
(b) Any statement made or
written by a representative of
Developer which is in addition to or
inconsistent with this Agreement or
the Documentation is of no force and
effect.
(c) Any failure of the
Licensed Software to perform as
described in the Documentation
should be promptly reported to the
Developer in writing.
6.2 Problems Not Caused by the
Developer. The limited warranty
set forth in paragraph 6.1. shall not
apply if a claimed problem is caused
by: (a) the malfunction of computer
hardware or other software not
provided by the Developer, (b)
Customer's negligence or fault, (c)
Customer's material failure to follow
the instructions set forth in the
Documentation, (d) Changes in the
Operating Software or other hardware
or software that is not authorized by
the Developer, or (e) modifications to
or changes in the Licensed Software
not made or suggested in writing by
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6.3 Exclusive Warranties. The
limited warranties in paragraph 6.1,
as limited by paragraph 6.2 above, are
exclusive and in lieu of all other
warranties. Developer makes no other
warranty, express or implied. Any
implied warranties, including, but not
limited to, implied warranties of
merchantability and fitness for a
particular purpose are expressly
excluded.
6.4 Breach of Confidentiality or
Restrictions on Use. The parties
agree that if either party shall violate
or breach, or threaten to violate or
breach, any of their agreements in
paragraph 5 (or if the Customer shall
violate or breach, or threaten to
violate or breach, the provisions of
paragraph 2.2), that monetary
damages alone shall not be adequate
and that either party shall be entitled
to a temporary or permanent
injunction or any other appropriate
decree of specific performance or
equitable relief (without being
required to post any bond or other
security) from a court of competent
jurisdiction in order to prevent,
prohibit or restrain any such breach
or violation, or threatened breach or
violation. Resort by either party (or
Developer in the event of a breach or
threatened breach of paragraph 2.2 by
Customer) to such injunctive or other
equitable relief shall not be deemed to
waive or limit in any respect any other
rights or remedies which such party
may have with respect to such breach
or violation.
6.5 Breach of Other Terms and
Conditions. Should the Customer
perceive that the Developer has
breached or threatens to breach any
of the terms or conditions of this
Agreement, before the Customer can
take any legal action, the Customer
shall notify the Developer in writing of
the breach or threat of breach in
sufficient detail so that the Developer
may take appropriate action to cure
the breach or threatened breach, and
the Customer shall afford the
Developer at least thirty (30) days to
effect a cure for the alleged breach or
threat of breach.
6.6 Remedies.
(a) Subject to the
provisions of paragraphs 6.1 and 6.2
above and so long as the Licensed
Software has not been modified by a
person or entity other than the
Developer, the Developer will use
reasonable efforts to correct errors in
accordance with this Agreement.
(b) Subject to paragraph 9,
the remedy in this section 6.6 is
exclusive and is in lieu of all liabilities
or obligations under this agreement,
including, without limitation, all
liabilities or obligations arising out of
or in connection with the delivery, use
or performance of the licensed
software or in connection with any
services provided under this
agreement or any breach of this
agreement. Subject to paragraph 8,
the liability of the Developer (or its
officers, owners or employees) to the
Customer arising out of or related to
this Agreement, (whether based on an
action or claim in contract, negligence,
strict liability, tort or warranty), shall
not exceed the License Fee paid
hereunder according to Paragraph 4.
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7. Exclusion of Consequential or
Incidental Damages.
8. Indemnification.
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7.1 In no event whatsoever shall
the Developer or the Customer or
their respective, officers, directors,
shareholders, agents or employees be
liable for consequential, incidental,
indirect, or special damages, including
but not limited to lost profits, lost
revenue, lost data, other commercial
or economic loss of any kind even if
the Developer or the Customer has
been advised of the possibility of such
damages.
8.1 Indemnification of Customer.
The Developer shall defend, indemnify
and hold the Customer harmless from
all claims, demands, liabilities,
obligations, cost and against any
expenses (including reasonable
attorney's fees) from U.S. copyright,
patent, trademark, and trade secret
infringement claims arising out of, or
based upon, the Licensed Software in
the form delivered by the Developer,
provided that the Developer is given
prompt notice of detailed information
with regard to any such claim, suit or
proceeding.
Developer may, at its option, in
respect of such infringing Licensed
Software, either:
(a) Substitute fully equivalent
non infringing software upon return
of the Licensed Software; or,
(b) Modify such Licensed
Software so that it no longer infringes
but remains functionally equivalent;
or,
(c) Obtain for Customer at
Developer's expense the right to
continue to use Licensed Software.
9. Entire Agreement.
This Agreement contains the entire
agreement between the Developer
and the Customer for the license
granted in Paragraph 2 and
supersedes and cancels any and all
prior or contemporaneous oral or
written understandings, negotiations
and agreements between the
Developer and the Customer with
respect hereto. No amendment or
modification to this Agreement or to
either party's rights or obligations
hereunder may be made in any
manner (including, without limitation,
by reference to usage of trade or
other regular practice or method of
dealing either within the computer
industry or between the parties
hereto) other than in a writing signed
by both parties hereto.
10. General Provisions.
10.1 Waivers and Limitation of
Actions. No action or claim,
including, without limitation, any
claim for indemnification, regardless
of form, arising out of the transactions
contemplated herein may be brought
by either party more than two (2)
years after the cause of action has
accrued.
10.2 Force Majeure. If either
party shall be delayed in its
performance of any obligation
hereunder or be prevented entirely
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from performing any such obligation
due to causes or events beyond its
control, including without limitation
any act of God, fire, strike or other
labor problem, legal action, present or
future law, government order, rule or
regulation, such delay or non-
performance shall be excused and the
time for performance shall be
extended to include the period of such
delay or non performance, provided
that the Customer shall have the right
to terminate without cause as
provided in Section 3.3 above.
10.3 Notices. All notices shall
be made in writing and shall be
deemed given or made on the date
delivered if delivered in person, on
the date initially received if delivered
by telecopy transmission (with
machine generated transmittal
confirmation) followed by certified
mail or reputable overnight courier,
on the date delivered by an overnight
courier service or on the third (3rd)
business day after it is mailed if
mailed by certified mail (return
receipt requested, with postage and
other fees prepaid) to the parties at
the addresses indicated below (or at
such other addresses as shall be given
in writing by either of the parties to
the other, if given in accordance with
the terms of this paragraph 10.3).
Customer: City of Pearland, 3519 Liberty
Drive, Pearland, TX 77581 Attn: Teresa
Battenfield
Developer: ATSER Systems, Inc.,
1150 Richcrest Drive Houston, TX
77060 Attn: Nainesh Vora Fax:
281.999.9962
10.4 Invalid Provision. In the
event that any provision hereof is
found invalid or unenforceable
pursuant to judicial decree, the
remainder of this Agreement shall
remain valid and enforceable
according to its terms.
10.5 Governing Law and Venue.
This Agreement shall be construed
and enforced in accordance with the
substantive laws of the State of Texas.
All disputes under this agreement
shall be adjudicated in a court of
competent jurisdiction in Brazoria
County, Texas.
10.6 Assignment. This Agreement
shall be binding upon the respective
parties hereto and their successors
and permitted assignees. The rights
granted to the Customer by this
Agreement or any duty or obligation
of performance hereunder shall not be
assigned, sublicensed, or otherwise
transferred by the Customer, either
voluntarily or by operation of law;
provided that customer may assign its
rights hereunder to a company owned
company. Any attempt by the
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Customer to assign, sublicense, or
transfer any of the rights, duties, or
obligations hereunder except as
expressly provided by this Agreement
is null and void.
10.7 Independent Contractor. The
Developer, in rendering performance
hereunder, is acting solely as an
independent contractor and not as an
agent of the Customer.
10.8 Paragraph Headings. The
paragraph and subparagraph headings
used herein are for reference and
convenience only and shall not enter into
the interpretation hereof.
10.9 Further Assurances. After the date
hereof, each party hereto will take all such
further actions, and sign all such further
documents, as may be required to confirm
and effectuate the terms of this
Agreement.
10.10 Survival. Sections 2.2, 3.4, 4.2,
5, 6, 7 and 8 shall survive any termination
of this Agreement.
The parties have executed this Agreement this o)S of 1‘2011.
City of Pearland, Texas
Bill Eisen
City Manager
DEVELOPE
Printed Name
D. Fred Martinez
Signature Title
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Hosting Service Agreement
This support services agreement "Agreement effective as of the gg
day of Mc3,rcrn 2011 (the "Effective Date is a legal agreement by and
between City of Pearland "Customer and ATSER Systems, Inc., "Developer with
principal offices located at 1150 Richcrest Dr., Houston, Texas 77060.
WHEREAS, the Developer provides software applications and various services such as
maintenance, help desk, customization, technical support, training and hosting support
services.
WHEREAS, the Customer desires to secure various services to make use of one or
more software applications provided by the Developer.
NOW THEREFORE, the parties agree to as follows:
Scope of Agreement
The purpose of this agreement is that ATSER Systems, Inc. (Developer) will
provide hosting services, a configured shared server with the licensed software
modules listed in Section 2., third party licenses, and database for the City of
Pearland (Customer) 50 concurrent users.
2. Licensed Software Modules
The licensed software modules included in this hosting services agreement are
the following:
2.1 Construct -1T v6.0
2.2 Track -IT v4.0
2.3 Map -IT v2.0
2.4 Plan -IT v6.0
2.5 Design -IT v6.0
3. Scope of Services
3.1 Provide up to 1GB bandwidth with no limitations per month
3.2 Provide Data storage for the licensed software and database. The data
storage will include 4 -75 GB hard drives in a Raid 5 configuration
3.3 Provide IT Support to maintain ATSER configured Manage -IT Server
which include the following:
a. Performing O/S upgrades and third party software patches and
service releases as required
b. Providing server account administration
c. Providing data backups as described in item 4.
d. Providing usage statistics on a monthly basis as needed
3.4 Provide database tape backups on a daily basis and restoration of data
from tape if required. The tapes will be stored at an offsite location.
3.5 For third party licenses if the upper limit is reached and Customer would
like to increase the amount of concurrent users the Customer will be responsible
for purchasing the additional third party licensing.
3.6 The Developer will transfer the licensed software at the request of the
Customer should the Customer terminate hosting with the Developer. The
Customer is responsible for the cost of migrating the binary executable copy (Le.
object code) licensed software and data to their designated third party site along
with the cost of the third party licenses.
4. Payment
4.1 Payment of the Hosting Service Fee. The Customer shall pay the
Hosting Service Fee to the Developer before the Effective Date or any renewal
period begins. The Developer reserves the right to charge, and the Customer
agrees to pay, an interest on late payment at the rate of one percent (1 per
month, or the highest rate allowed by law, which ever is lower
4.2 Annual Hosting Service Fee. The Hosting Service Fees are identified in
Attachment A.
5. Term
This Agreement is effective upon the Effective Date of [Date] and will expire in one
(1) year after the Effective Date of License Agreement. However, the City of
Pearland has the option with ATSER to renew five (5) additional one (1) year terms.
6. Service Levels
6.1 ATSER guarantees 99.99% uptime
6.2 ATSER guarantees 4 hours to respond and remedy a fault condition
6.3 ATSER will provide the services as described in the Scope of
Services section
7. Ownership of Intellectual Property and Configured Server
7.1 Rights to the Licensed Software and the Documentation and any copies,
modifications, alterations or derivative works thereof, and title to any existing or
future patents, copyrights, trade secrets, trademarks, service marks and other
proprietary rights embodied therein shall remain exclusively with Developer.
7.2 The ATSER configured City of Pearland Manage -IT server and third party
licensing will be owned by ATSER.
AGREED UPON AND ACCEPTED THIS DATE BY THE PARTIES HERETO.
The parties have executed this agreement this ae day of ((\arch 2011.
City of Pearland, Texas
D. Fred Martinez
Printed Name
This support services agreement "Agreement effective as of the
day of C( ArcN 2011_ (the "Effective Date is a legal agreement by and between
City of Pearland "Customer and ATSER Systems, Inc., "Developer with principal
offices located at 1150 Richcrest Dr., Houston, Texas 77060.
WHEREAS, the Developer provides software applications and various services such
as maintenance, help desk, customization, technical support, training and hosting
support services.
WHEREAS, the Customer desires to secure various services to make use of one or
more software applications provided by the Developer.
NOW THEREFORE, the parties agree to as follows:
1. Definitions
Authorized User means an employee,
agent, independent contractor or
consultant of the Customer or any
other person or entity that is under
contract with the Customer on a
specific Project that is active within
the Database.
A Critical Item is an item or problem
that renders the Licensed Software
inoperative or causes the Licensed
Software to fail catastrophically.
Database means the database utilized
by the Licensed Software. The
Database can be implemented using a
third -party database.
Documentation means electronic,
paper or other forms of technical
specifications relating to the use of the
Licensed Software.
Executing or Execution means the
invocation (running) of the Licensed
Software on a computer system.
Licensed Software means version 6.0
of Construct -IT, version 4.0 of Track
IT, version 2.0 of Map -IT, version 6.0
SUPPORT SERVICES AGREEMENT
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of Plan -IT, and version 6.0 of Design
IT.
Server means a computer system
capable of Executing the Licensed
Software and is also capable of
Executing or communicating with any
third party software applications
required by the Licensed Software.
Site means a specific, physical location
of premises where the Licensed
Software may be stored and Executed.
Hosting Services means any services
performed by the Developer to
provide a Server for the Customer.
Self Hosting Services means any
services performed by the Customer
to include providing a Server and
third party licenses required for the
self hosting of the Licensed Software.
Customization means specific
customization at the request of the
Customer and implies an expansion of
the code base. This includes but is not
limited to new features, reports, or
updates to current workflow. The
scope and cost of the product changes
will be agreed upon and signed off by
the Customer and Developer in the
form of a change order "Change
Order The Change Order will be
invoiced as agreed upon by the parties
in the relevant Change Order.
Approach for Product Changes:
a. Identify Scope of Professional
Services. The parties shall
identify and agree upon scope
of the work to be performed
for the specific customization.
b. Document Scope of
Professional Services. The
scope of work will be
documented and agreed upon
by both parties.
c. Scope Management. When both
parties agree to a change in
scope of the professional
services, a written description
of the Change Order will be
prepared for signature by both
parties. Any changes made to
the scope of the professional
services may result in
modifications to the schedule,
cost, and /or other terms.
d. Both parties may assign one or
more personnel to accomplish
tasks identified in the Change
Order. Developer will
determine the personnel
responsible completing the
tasks for which it is
responsible.
e. Monitor and control progress.
All tasks will be logged and
tracked in a development log.
The development log will be
reviewed at regularly
scheduled status meetings held
Page 2 of 10
ATSER
•011010• 00 LLOL•f1010 1 AAA ION
at the convenience of both
parties.
f. Communicate development
progress. The development log
and progress on each task will
be reviewed with the Customer
on a periodic basis.
g. Schedule. Work will be
performed per a mutually
agreed upon schedule. The
schedule will take into
consideration the availability of
both parties.
h. Cost Estimates. Time and
materials estimates provided
are estimates only and subject
to change, provided that
Customer shall not incur any
cost or expense in excess of the
estimate without Customers
prior written consent. In the
event while performing said
work outlined in approved
change order an improved
understanding of the project
scope and complexity results
and the Developer may require
more time to provide the
required Deliverables, then
Developer may request
Customer to provide a new
Change Order to cover the
additional cost and subject to
City's approval.
i. The change to the source code
of the Licensed Software
associated with the particular
Customization will not be
undertaken until a signed
Change Order is received by
the Developer.
j•
The Customer has ten (10)
Days upon delivered modified
software to accept the results
of the programming effort.
k. The Customer appreciates that
Maintenance and
Customization of the Licensed
Software may create a
derivative work of the Licensed
Software. The Customer
adheres to the terms of the
License Agreement for the
licensed software, specifically
section 3.2(e), wherein the
ownership of any derivative
work of the Licensed Software
shall rest with the Developer.
Support Services means
Maintenance, Technical Support,
Hosting, Training and Help Desk
services.
Help Desk means receiving calls or
electronic medium and logging,
identifying, analyzing, addressing
request and /or routing request to
appropriate function and generally
provided at various levels of service.
Determine if the item is a Critical Item,
Non Critical Item, or Customization In
response to a properly and accurately
reported Critical Item or Non- Critical
Item, Developer shall promptly
initiate the following procedures:
a. Assign one or more Developer
to address the Critical Item or
Non- Critical Item.
b. Notify senior Developer
management that such Critical
Item or Non- Critical Item has
been reported and that steps
Page 3 of 10
ATSER
are being taken to address the
Critical or Non Critical Item.
c. Provide Customer with
periodic reports regarding the
status of the efforts to remedy
the Critical Item or Non Critical
Item.
d. Exercise reasonable efforts on
an urgent first priority basis for
Critical Items to provide
Customer with a workaround
or the repair or replacement of
object or executable code
versions of the Licensed
Software to remedy the Critical
Item (a "Fix
Maintenance refers to Developers
Licensed software, database, required
third party software, and hardware.
Maintenance related to developer
software means Error correction
services and service release patches.
a. General Maintenance.
Developer shall provide
maintenance for the
Licensed Software
Maintenance does not cover
or entitle Customer to other
ATSER products. Developer
shall also provide, as part of
Maintenance, Critical Item
resolution.
b. Types of Maintenance.
i. Licensed Software
Maintenance for the
core application to
include error correction
services and service
patches; providing
operating system
101
enhancements and
service releases
(patches) issued to
address system
concerns prior to full
version releases
ii. Database Database
maintenance is an
activity which is
designed to keep a
database running
smoothly. Database
maintenance is used to
keep the database clean
and well organized so
that it will not lose
functionality.
iii. Third Party Software
Service patches for third
party software
applications required
for the current
configuration. The third
party applications
include Windows,
Oracle, Crystal,
Pendragon, Brava, Bing
Maps and JBoss.
iv. Hardware
Maintenance of the test
and production server
hardware and routers
that are used to run the
application. This
service is provided
under Hosting Services.
c. A Customer self hosted
solution the Customer is
responsible for Third Party
Software and Hardware
Maintenance. The
Page 4 of 10
ATSER
••IUI■• •11 ■••L -tl•1 I•I••1.1,1••
Developer is still required
to perform maintenance to
the Licensed Software and
Database
d. A Developer hosted
solution the Developer is
responsible for Licensed
Software, Database, Third
Party Software and
Hardware Maintenance.
e. The Customer appreciates
that Maintenance will
require a mirroring of the
hardware and software
configuration that enables
execution of the Licensed
Software (hereinafter the
"Mirror Configuration at
the Developer's facility.
The Customer also
appreciates that the
Developer charges the
Customer for the costs
associated with the Mirror
Configuration. The
Customer also appreciates
that the Mirror
Configuration will not have
the same data contained
within the database as the
production configuration
used by the Customer. The
Customer also appreciates
that the Developer may use
the Mirror Configuration to
test modifications to the
Licensed Software.
f. Critical Items. Developer
shall provide a technical
support telephone line and
email communications
during its normal business
hours, for the reporting, by
g.
the Customer, of Critical
Items.
Response Time. Developer
shall exercise reasonable
efforts to acknowledge a
Critical Item within four
hours of the time it has
been properly reported to
Developer.
Technical Support means address
technical questions and /or data input
error resulting external to the
software code and generally provided
at various levels of service.
a. Non Critical Items. Developer
shall provide a technical
support telephone line and
email communications during
its normal business hours, for
the reporting by Customer of
Non Critical Items. A Non
Critical Item is any item other
than a Critical Item.
b. Response Time. With
respect to Non Critical Items,
Developer will use reasonable
efforts to acknowledge such
claimed Non- Critical Item no
later than the next business
day after the time it has been
properly reported to
Developer.
c. Support. In response to a
properly reported and factually
accurate Non Critical Item,
Developer will use reasonable
efforts to formulate a
correction for the Non Critical
Item as soon as reasonably
possible.
Page 5 of 10
ATSER
..11.111. 11I11L•T1111 1. 101
Training means Developer plan for
providing user training includes a
three (3) levels approach: PDA
(Personal Digital Assistant) User
Training, System User Training, and
Advanced System Admin Training.
Developer also offers individual
training to key staff so that they can
train their personnel as required.
a. PDA User Training. This class
provides the Field Inspection
personnel familiarization
training on the PDA devices
and hands -on training for
submitting Daily Work Reports
and Inspection Reports. This
training includes a training
manual for the students to
reference after the class.
b. System User Training. This
class provides the Project
Management Team with hands
on training to navigate the
system, manage project and
contract information, generate
reports, and to be able to
perform database searches.
This training is available to
Customer staff and Consultants
and Contractors assigned by
Customer to perform project
management responsibilities.
c. Advance System User Training.
This class trains designated
users to be Site Administrators.
This class trains designated
System Site Administrators on
how to create new projects and
contracts in the system. These
Site Administrators will have
the system rights to define the
individual users' access rights
on a program, project, folder,
or even at the file level. The
Site Administrator will also
define the users access rights
based on user's organization
and role on the project. The
Advanced training also
includes instruction on
creating customized reports
and understanding the Oracle
database structure.
d. Training scope will be agreed
upon and signed off by
Customer and Developer and
invoiced according to a
payment schedule.
e. Out of Pocket Training
Expenses will be reimbursed
by Customer to Developer at
actual cost plus 10 The
Training expenses would
include items such as
reimbursable supplies, etc.
2. Provision of License
The Customer has procured and
maintains an object code license for
the Licensed Software.
3. Provision of a Server
3.1 The Developer shall procure a
machine to act as the Server capable
of Executing the Licensed Software.
As of the Effective Date, the Developer
shall host the Licensed Software
referenced in Section 1. However,
should the Customer choose to host
the application with an entity other
than the Developer, then the Customer
agrees to pay an additional cost, via a
Change Order, to host the Licensed
Software with the Developer.
Page 6 of 10
ATSER
••IL•I•• ■•11t•ll•l I AA I•11
3.2 Permission to Access. The
Developer hereby grants access
to the Server for the Customer
as necessary for the latter to
gain sufficient access with
sufficient authorization to
exercise their rights or perform
their obligations associated
with the Licensed Software.
3.3 Required Third Party Licenses.
The Developer is required to
include on the Server the
following third party software
applications (and associated
licenses):
a. Oracle, version 11G
(Unlimited Users)
b. Crystal Reports, version
11.0 (5 Concurrent Users)
c. Pendragon Sync Server 5.1
fifteen (15 Concurrent
Users)
d. Brava 5.5 (5 Concurrent
Users)
e. JBoss 4.0.2
f. Windows 2008 Enterprise
g. Bing Maps (250 Concurrent
Users)
If the Customer wishes to
utilize different or upgraded
third party software, the
Customer appreciates that
some Customization of the
Licensed Software may be
necessary for the proper
functioning of the Licensed
Software with the different or
upgraded third party software.
The Customer shall be
responsible for procuring any
licenses for the different or
upgraded third party software.
4. Services to be Performed
4.1 Services Provided by the
Developer. The Developer shall
provide Support Services (up to 50
concurrent users) to the Customer for
the term of this Agreement in
consideration for the Service Fee.
Upon separate agreement (such as a
change order or work order) with the
Customer and for separate
consideration, the Developer may
provide Customization services to the
Customer.
Developer shall provide Hosting
Services to the Customer for the term
of this Agreement in consideration for
the Hosting Fee. The services include
a shared server, data center hosting,
required third party licenses, data
storage, data backups, IT Support.
(See Hosting Agreement)
4.2 Services Provided by the
Customer. If the Customer is
hosting the application on their
Server, the Customer would provide
sufficient access with sufficient
authorization to exercise the
Developer's rights or perform the
Developer's obligations associated
with the Licensed Software.
5. Term
5.1 This Agreement is effective
upon the Effective Date of [Date] and
is renewable for five one year terms at
City's and ATSER's concurrence.
5.2 This Agreement along with the
License agreement will terminate
immediately if the Customer does not
Page 7 of 10
6. Payment.
ATSER
••IL•I•• ON •••l -II11l 1 t••
perform the requirements under
Paragraphs 3 or 6.
5.3 This Agreement may be
terminated by the Customer if the
Developer does not perform the
services required under Paragraph 4,
however, the Developer shall be given
notice of the non performance and be
awarded a thirty (30) day period in
which to perform or dispute the
characterization of the alleged non-
performance.
6.1 Payment of the Support Service
Fee. The Customer shall pay the
Support Service Fee to the Developer
before the Effective Date or any
renewal period begins. The
Developer reserves the right to
charge, and the Customer agrees to
pay, an interest on late payment at the
rate of one percent (1 per month,
or the highest rate allowed by law,
which ever is lower.
6.2 Annual Support Service Fee.
The Support Service Fees (50
concurrent users) are identified in
Attachment A.
7. Exclusion of Consequential or
Incidental Damages.
7.1 In no event whatsoever shall
the Developer or the Customer or
their respective, officers, directors,
shareholders, agents or employees be
liable for consequential, incidental,
indirect, or special damages, including
but not limited to lost profits, lost
revenue, lost data, other commercial
or economic loss of any kind even if
the Developer or the Customer has
been advised of the possibility of such
damages.
8. General Provisions.
8.1 Waivers and Limitation of
Actions. No action or claim,
including, without limitation, any
claim for indemnification, regardless
of form, arising out of the transactions
contemplated herein may be brought
by either party more than two (2)
years after the cause of action has
accrued.
8.2 Force Majeure. If either
party shall be delayed in its
performance of any obligation
hereunder or be prevented entirely
from performing any such obligation
due to causes or events beyond its
control, including without limitation
any act of God, fire, strike or other
labor problem, legal action, present or
future law, government order, rule or
regulation, such delay or non-
performance shall be excused and the
time for performance shall be
extended to include the period of such
delay or non performance.
8.3 Notices. All notices shall
be made in writing and shall be
deemed given or made on the date
delivered if delivered in person, on
the date initially received if delivered
by telecopy transmission (with
machine generated transmittal
confirmation) followed by certified
mail or reputable overnight courier,
on the date delivered by an overnight
courier service or on the third (3rd)
business day after it is mailed if
mailed by certified mail (return
receipt requested, with postage and
other fees prepaid) to the parties at
Page 8 of 10
ATSER
••IL•1•• s■ ■t•l•fISt 1 I••
the addresses indicated below (or at
such other addresses as shall be given
in writing by either of the parties to
the other, if given in accordance with
the terms of this paragraph 8.3).
Customer: City of Pearland, 3519
Liberty Drive, Pearland, TX 77581 Attn:
Teresa Battenfield
Developer: ATSER System, Inc.
1150 Richcrest Drive Houston, TX
77060 Attn: Nainesh Vora, Vice
President. Fax: 281.999.9962
8.4 Invalid Provision. In the
event that any provision hereof is
found invalid or unenforceable
pursuant to judicial decree, the
remainder of this Agreement shall
remain valid and enforceable
according to its terms.
8.5 Governing Law and Venue.
This Agreement shall be construed
and enforced in accordance with the
substantive laws of the State of Texas.
All disputes under this agreement
shall be adjudicated in a court of
competent jurisdiction in Brazoria
County, Texas.
8.6 Assignment. This Agreement
shall be binding upon the respective
parties hereto and their successors
and permitted assignees. The rights
granted to the Customer by this
Agreement or any duty or obligation
of performance hereunder shall not be
assigned, sublicensed, or otherwise
transferred by the Customer, either
voluntarily or by operation of law;
provided that the Customer may
assign its rights hereunder to a
company owned wholly by the
Customer. Any attempt by the
Customer to assign, sublicense, or
transfer any of the rights, duties, or
obligations hereunder except as
expressly provided by this Agreement
is null and void.
8.7 Independent Contractor.
The Developer, in rendering
performance hereunder, is acting
solely as an independent contractor
and not as an agent of the Customer.
8.8 Paragraph Headings. The
paragraph and subparagraph
headings used herein are for
reference and convenience only and
shall not enter into the interpretation
hereof.
8.9 Further Assurances.
After the date hereof, each
Page 9 of 10
ATSER
•OIl•1•• O• •••L -tI•I I•IO.00l1O■
party hereto will take all such further
actions, and sign all such further
documents, as may be required to
confirm and effectuate the terms of
this Agreement.
8.10 Survival. The limitations
set forth under Paragraph 7 shall
survive any termination of this
Agreement. Under no circumstances
shall a requirement to negotiate a
source code escrow agreement
survive the termination of this
Agreement. Similarly, any source code
escrow agreement that may have been
negotiated or signed by the parties
shall be terminated by the termination
of this Agreement or the license
agreement for the Licensed Software.
The parties have executed this Agreement this 070day ofAa k 2011.
City of Pearland, Texas
Bill Eisen
City Manager
DEV PER
Signa
D. Fred Martinez
Printed Name
Title
Page 10 of 10
ATSER
Y 1 L O I M 0 ON I A L i l r 1 I I O r
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Licenses (Manage-IT 3.0) Unlimited Users
3. Additional Services
March 28, 2016-
March 28, 2014-
March 28, 2013-
March 28, 2012-
March 28, 2015-
March 27, 2017
DESCRIPTION
March 27. 2015
March 27. 2016
Annual Total
Customization
March 27. 2014
March 27. 2013
d
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AT S E R 1150 Richcrest Drive
Houston,TX 77060
281.999.9961
Fax.281.999.9962
Building on Real-Time Information
March 23, 2011
Teresa Battenfield, P.E.
Assistant Director, Projects Department
City of Pearland
3519 Liberty Drive
Pearland, TX 77581
RE: Software License Agreement, Support Services Agreement and Hosting Service Agreement
Dear Ms. Battenfield,
Attached please find two (2) original signed software license agreement, support services
agreement and hosting service agreement. Thanks.
Sincerely,
ATSER LP
Engineering and Environmental
Chuck Shih
ATSER,L.P.
Firm TBPE F-39
1150 Richcrest Drive
Houston, TX 77060
Phone: 281-999-9961