R-2015-179 2015-10-12RESOLUTION NO. R2015-179
A Resolution of the City Council of the City of Pearland, Texas,
authorizing the procurement of project management software from
Atser Systems, Inc., in the amount of $80,000.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City Council hereby authorizes the procurement of
project management software from Atser Systems, Inc., in the amount of $80,000.
Section 2. The City Manager or his designee is hereby authorized to execute a
contract for the procurement of project management software from Atser Systems, Inc.
PASSED, APPROVED and ADOPTED this the 12th day of October, A.D., 2015.
ATTEST:
APPROVED AS TO FORM:
411- —
D' RIN M. COKER
CITY ATTORNEY
TOM REID
MAYOR
Resolution No. R2O15-179
Exhibit " A"
RECEIVED
6 2015
ATSER P0.Ie0t
•111.111110 Y■ REAL -TINE 1 IY•
SOLUTIONS a ICE SUBSCRIPTION AGREEMENT
This subscription agreement for ATSER's Project and Program Management solutions ("Agreement") is
entered into as of the Effective Date by and between ATSER Systems. Inc., a Texas corporation
("Developer") with its principal office at 1150 Richcrest Dr., Houston, Texas 77060 and City of
Pearland("Customer").
WHEREAS, the Developer has developed certain web based software applications and platforms offered
together in a suite, that provides for the secure delivery of project and program management solutions
from processors hosted remotely by Developer to subscribers under a Solution as a Service
arrangement (the "Services");
WHEREAS, the Customer desires to use the Developer's Services in its operations and the Developer has
agreed to provide and the Customer has agreed to take and pay for the Developer's Services on a user
subscription basis (the "Subscriptions"), subject to the terms and conditions of this Agreement;
NOW THEREFORE, In consideration of the mutual promises and agreements contained herein, the
parties hereto also agree as follows:
1. Definitions. The following terms
shall have the meaning ascribed below. All
other capitalized terms used herein without
being defined herein shall have the meaning
ascribed to such as applicable.
"Authorized Named User" or "User" means a
unique person, whether an employee,
independent contractor, agent or consultant
of the Customer who is registered by the
Customer (by completing the online Create a
New User screen) to enable such person to
access the Services and Documentation.
Customer is responsible for registering and
reporting Authorized Named Users. At a
minimum, the following information must be
included in the screen to register such person
to become a User and access the Services:
User ID, First Name, Last Name, and the e-mail
address unique to the person registering.
Confidential Information means all technical
and non-technical information in both
tangible and intangible form, including, but
not limited to, product design information,
software code, technical information,
customer information, cost and pricing
information, financial information, the terms
of this Agreement and the results derived
from or methodology employed by Customer
in conducting any benchmark testing of the
Page 1 of 13
Software; provided that the term "Confidential
Information" shall not include information
which the recipient can show by reasonable
proof (i) to have been known by the recipient
prior to the time of disclosure by the
disclosing party, (ii) to have become part of
the public domain through no fault or breach
of this Agreement by the recipient, (iii) to
have been disclosed to the recipient in good
faith by a third party who is not under any
obligation of confidence or secrecy to the
disclosing party at the time such third party
discloses the information to the recipient or
(iv) to have been compelled to be produced by
a court of competent jurisdiction, provided
that the recipient shall first give notice of any
such request or order of the court to give the
disclosing party an opportunity to contest or
limit said request or order of the court.
Customer Data means the data inputted by
the Customer or Authorized Named Users on
the Customer's behalf for the purpose of using
the Services or facilitating the Customer's use
of the Services.
Customization means revision or adaptation
of the Developer Software by Developer to
improve the existing functionality of the
Software at the Customer's request, including
SaaS v.5.2 (Rev. 091015)
but not limited to, new features, reports, or
updates to current workflow. The scope and
cost of such changes shall be agreed upon and
signed off by the Customer and Developer in a
Quote and Customer will be invoiced and shall
pay the Customization fees agreed upon by
the parties therein.
Documentation means the documents made
available by the Developer either online or
through other methods to the Customer, from
time to time which set out a description of the
Services and the user instructions for the
Services.
Effective Date means the date the last party
signs this Agreement.
Help Desk means Developer's provision of
services to receive technical inquiries via
phone calls or other electronic medium and
the logging, identification, analysis and
routing of such requests to determine if the
item is critical, non-critical or requiring
Customization.
Hosting means the hosting of Customers Data
on a Server owned or controlled by Developer.
IT Infrastructure means the combined set of
developer's software applications, third party
licenses, operating system software,
hardware, network, and hosting facilities
needed to provide access and associated
services for the customer's selected user
group provided under this Agreement.
Maintenance means Developers provision of
error correction services and service release
patches of third party software and Developer
Software, maintenance of the Server and
database to keep the Services running
smoothly, providing service patches for third
party software as needed to maintain current
configurations.
Monthly User Count means the total number
of existing and new Users in a given month
regardless of their use throughout the month.
Users removed during a given month will be
ATSER
included in the month and the change will be
recognized in the subsequent month.
Peak Usage for the User Block means the
intended monthly peak use of the Services as
represented by the Customer in the Quote or
Price Proposal and relied upon by the
Developer to prepare the information
technology infrastructure which is used to
base the Subscription Fees under this
Agreement. Election by Customer to increase
the peak use may require Customer to
purchase an additional User Block of
subscriptions.
Project means the business project of
Customer specified in the Quote.
Quote or Price Proposal means (i)
Developer's standard quote or price proposal,
attached as a Schedule to this Agreement,
containing the payment terms for the services
to be provided by Developer under this
Agreement, as such Quote or Price Proposal
may be amended, supplemented or modified
from time to time in accordance with this
Agreement or (ii) any other non -Developer
purchase order delivered by Customer to
Developer and approved by the Developer
and made part of this Agreement.
Server means a device capable of executing
the Software, including linkages to any third
party applications required by Licensed
Software.
Services means the subscription services
provided by the Developer to the Customer
under this Agreement via web based services
as more particularly described in the
Documentation.
Developer Software shall mean the software
applications developed and provided by the
Developer, and includes any new releases
or upgrades, as part of the Services. Features
and components of Developer Software are
further described in the Documentation or in
the attached schedule.
Page 2 of 13 SaaS v.5.2 (Rev. 091015)
Subscription Fees means the subscription
fees set out in the attached Schedule payable
by the Customer to the Developer to enable
Authorized Named Users to use the Services.
Subscription Term means the Services
commencing on the Effective Date and
continuing thereafter until terminated under
one or more of the provisions of this
Agreement. The Subscription Term shall
include the Initial Term and any Renewal
Terms.
Support Services means the support
provided by Developer in relation to the
Services and includes Technical Support and
Help Desk.
Technical Support means Developer's
provision of services to address technical
questions and/or data input errors. Developer
shall provide a technical support line and
email communications during normal
business hours for the reporting by the
Customer of critical and non-critical items.
Training means Developer's plan for
providing user training that includes a three
(3) level approach: Mobile Device Training,
System User Training, and Advanced System
Admin Training. Customer may subscribe to
Additional Training Services beyond those
described in Schedule 1, by executing a Quote
that sets forth the fees and other conditions.
Payment for Additional Training shall be paid
by Customer upon receipt of invoice from
Developer in accordance with Section 5 of this
Agreement.
User Block or User Subscriptions means the
number of Authorized Named User
Subscriptions purchased by the Customer as a
block of Users, pursuant to the fees set forth in
the Fee Attachment, Fee Schedule/Quote,
which entitle an Authorized Named Users to
access and use the Services and the
Documentation in accordance with this
Agreement.
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2. User Subscriptions.
2.1 User Subscriptions purchased by
Customer and the Services to be provided by
Developer are set forth in the attached
Schedule 1. Subject to the Customer
purchasing the User Subscriptions, the
Developer hereby grants to the Customer a
non-exclusive, non -transferable right to
permit the Authorized Named Users to use the
Services and the Documentation during the
Subscription Term solely for the Customer's
internal business operations. User
Subscriptions are sold in blocks of Users as
further described in attached Schedule.
2.2 In relation to the Authorized Named
Users, the Customer undertakes that:
(a) the maximum number of
Authorized Named Users that it
authorizes to access and use the
Services and the Documentation shall
not exceed the number of User
Subscriptions it has purchased from
time to time;
(b) during any month, if the
Monthly User Count exceeds the User
Block, Customer shall be required to
purchase an additional User Block in
accordance with Subscription Fees set
forth in the attached Schedule.
(b) it will not allow any User
Subscription to be used by more than
one individual Authorized Named
User unless it has been reassigned in
its entirety to another individual
Authorized Named User, in which case
the prior Authorized Named User shall
no longer have any right to access or
use the Services and/or
Documentation;
2.3 Additional User Subscriptions
(a) The Customer may, from time
to time during any Subscription Term,
purchase additional User
Subscriptions in excess of the number
Page 3 of 13 SaaS v.5.2 (Rev. 091015)
set out in Schedule 1 and the
Developer shall grant access to the
Services and the Documentation to
such additional Authorized Named
Users .
(b) If the Customer wishes to
purchase additional User
Subscriptions, the Customer shall
notify the Developer in writing. The
Developer shall evaluate such request
for additional User Subscriptions to
determine whether such increase will
impact the Peak Use for Named User
Group and respond to the Customer
with approval or disapproval of the
request (such approval not to be
unreasonably withheld). If approved,
the number of User Subscriptions in
Schedule 1 shall be revised through a
new Quote or Addendum, signed by
both parties and made a part of this
agreement, to reflect the additional
number of User Subscriptions
purchased by Customer.
(c) If the Developer approves the
Customer's request to purchase
additional User Subscriptions, the
Customer shall, within 30 days of the
date of the Developer's invoice, pay to
the Developer the relevant fees for
such additional User Subscriptions in
accordance with the payment
provisions set forth in Section 5 of this
Agreement, and, if such additional
User Subscriptions are purchased by
the Customer part way through the
Initial Term or any Renewal Term (as
applicable), such fees shall be pro-
rated for the remainder of the Initial
Term or then current Renewal Term
(as applicable).
2.4 Scope of Subscription Services
The Subscription Services provided by
Developer under this Agreement include the
following:
ATSER
"Mlles e• eser nMr I ION
(a) Access to Developer Software
though web based applications.
(b) Software Upgrades to third party
software and to Developer
Software
(c) IT Infrastructure for intended User
Block based on Peak Usage.
(d) Hosting Services for remote
storage of Customer Data
(e) Technical Support
(f) Help Desk
(g) Maintenance
(h) User Subscriptions
(i) Bandwidth with no limitations
per month.
(j) Data backups - database backups
on a daily basis and restoration of
data if required.
(k) Third party licenses as identified
in the approved Quote.
Data Disaster Recovery Plan
that includes:
• Onsite backup of
Customer's latest data that
serves as the primary
disaster recovery data.
• Backup of Customer's
latest data to an offsite
data center, that serves
as a secondary backup
• Storage of backup data in
an off-site facility
equipped with hardware
and communications
interfaces capable of
providing backup
operating support.
(1)
2.5 Data Transfer.
Developer will transfer Customer's data upon
Customer's written requests. Should the
Customer terminate this Agreement,
Customer is solely responsible for the cost
associated in migrating a copy of Customer's
data to Customer's designated site or third
party site along with the cost associated for
any third party licenses.
Page 4 of 13 SaaS v.5.2 (Rev. 091015)
2.6 Service Level
The Developer shall, during the Subscription
Term, provide the Services at the levels
described below, and make available the
Documentation to the Customer on and
subject to the terms of this agreement.
(1) Guaranteed 99.99% availability of
the Services.
(2) Guaranteed 4 hours to respond
and remedy a fault condition.
3.0 Customer Responsibilities
3.1 Technical Changes
Project technical specifications, changes,
updates and revisions remain entirely the
responsibility of the customer throughout the
use of Developer's Software. Customer
assumes all responsibility and liability
regarding the incorporation, use and status of
the required project technical specifications
and contract documents incorporated within
Developer's Software. Customer is solely
responsible for verifying that the appropriate
technical specification content, methods and
requirements are included within the
software throughout the project life. The
Developer may be asked to incorporate the
technical specifications on behalf of the
Customer; however, the liabilities to
insure the proper specifications are
included and for verifying that the proper
technical specifications are utilized
remains the Customer's responsibility.
The Customer agrees to hold the Developer
harmless for changes made to the technical
specifications (whether requested by
Customer or made by Customer) that are
incorporated within Developer's Software.
3.2 Restrictions on Use.
(a) In addition to the other
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•0I1O1.O OO •101•011116 1 IOO
restrictions set forth in this Agreement, the
Customer's use of the Services 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
Services or use the Software for any other
business activity.
(b) Unless expressly authorized
by Developer in writing, Customer shall not:
(i) transfer, sublicense or otherwise assign
its rights in the Services to any third -party
nor allow any third party to access or use the
Services or (ii) distribute, disclose,
manufacture, sell, market, rent, lease or
transfer to any third party the Services or use
the Services in any service bureau
arrangement. Customer may allow use and
access to the Services to any of its
subsidiaries or affiliated companies but
solely in connection with work or services
performed by such subsidiaries or affiliated
companies in respect of the Project.
(c) Customer acknowledges and
agrees that the rights to the 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 shall not alter or
remove any copyright or proprietary rights
notice or identification which indicates
Developer's rights to any part of the 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 Software has occurred.
(e) Except to the extent expressly
permitted under this agreement, Customer
shall not attempt to copy, modify, duplicate,
create derivative works from, frame, mirror,
republish, download, display, transmit, or
distribute all or any portion of the Software
and/or Documentation (as applicable) in any
form or media or by any means; or
Page 5 of 13 SaaS v.5.2 (Rev. 091015)
(f) Attempt to reverse compile,
disassemble, reverse engineer or otherwise
reduce to human -perceivable form all or any
part of the Software; or
(g) Access all or any part of the
Services and Documentation in order to build
a product or service which competes with the
Services and/or the Documentation.
(m) The Customer shall use all
reasonable endeavours to prevent any
unauthorized access to, or use of, the Services
and/or the Documentation and, in the event of
any such unauthorized access or use,
promptly notify the Developer.
4. Term and Termination.
4.1. Terms. The initial term of this
Agreement shall commence upon the Effective
Date and shall continue for one year
thereafter (the Initial Term). Upon
completion of the Initial Term, the Customer
shall have the option to renew this Agreement
for four additional years in one (1) year
increments ((the Renewal Term (s)) by
submitting payment for the next Renewal
Term in accordance with the renewal
payment provision set forth in Payment
section 5.1 below.
4.2. Termination for Breach. If either
party breaches any material term or condition
of this Agreement, the other party shall notify
such breaching party in writing of such breach
and specify sufficient details regarding such
breach. The breaching party shall have thirty
(30) days from its receipt of such written
notice to remedy the breach specified therein.
If the breaching party fails to remedy such
breach within such thirty (30) day period, the
non -breaching party may immediately
terminate this Agreement.
4.3 Termination by Customer. Customer
may terminate this Agreement without cause
or reason upon thirty (30) days' advance
written notice to Developer. Customer shall
not be entitled to a refund or credit in respect
ATSER
•011,1.4 OM 111•111.,11" I IOM
of any fees, costs or expenses upon a
termination pursuant to this Section 4.3.
4.4 Obligations upon Termination. Upon
the termination of this Agreement for any
reason, the Customer's right to use the
Software and the Documentation or any part
thereof shall immediately terminate and
Customer shall immediately cease using the
Services. Upon such termination, the
Customer will as soon as practicable return
and make no further use of any
equipment, property, Documentation and
other items (and all copies of them)
belonging to the Developer or provide
written certification, in form and substance
reasonably acceptable to the Developer,
attesting to destruction of 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.
Termination of this Agreement or of any
Subscription Units granted hereunder to
Customer or by Developer shall in no event
entitle Customer to a refund or credit of any
amount paid or payable by Customer.
Upon termination of this Agreement, the
Developer may destroy or otherwise dispose
of any of the Customer Data in its possession
unless the Developer receives, no later than
thirty days after the effective date of such
termination, a written request for the delivery
to the Customer of the then most recent back-
up of the Customer Data. The Developer shall
use reasonable commercial endeavors to
deliver the back-up to the Customer within 30
days of its receipt of such a written request,
provided that the Customer has, at that time,
paid all fees and charges outstanding at and
resulting from termination (whether or not
due at the date of termination). The Customer
shall pay all reasonable expenses incurred by
the Developer in returning or disposing of
Page 6 of 13 SaaS v.5.2 (Rev. 091015)
Customer Data;
The accrued rights of the parties as at
termination, or the continuation after
termination of any provision expressly stated
to survive or implicitly surviving termination,
shall not be affected or prejudiced
5. Payment.
5.1 Fees. Upon execution of this
Agreement by both parties, Developer shall
deliver an invoice to Customer specifying the
fees, payable pursuant to the Agreement or
Quote. Customer shall pay the fees specified
in such invoice. Customer shall pay fees for
renewal year options forty-five days prior to
the then current term expiring. All fees
payable by Customer with respect to any
Customization or additional training beyond
that described in Schedule 1 (Additional
Training) may be separately invoiced.
Customer's payment obligation with respect
to Subscription Fees owing hereunder shall be
independent of the provision of
Customization and or Additional Training,
whether or not such services are separately
invoiced. Any late payment of any amount
owing hereunder shall accrue interest at a
rate equal to the lesser of (i) 15% per annum,
or (ii) the maximum rate permitted by law.
5.2 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.
6. Confidentiality.
6.1 Developer's Confidential Information.
Customer acknowledges that the Software and
Documentation contain valuable proprietary
information and trade secrets of the
Developer and embody substantial creative
Page 7 of 13
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efforts. The Customer agrees to take all
reasonable steps necessary to protect the
confidentiality of all Confidential Information
disclosed by Developer and shall not use such
Confidential Information other than in
connection with its authorized use of the
Services. Such reasonable steps include but
are not limited to agreeing not to sell, transfer,
publish, disclose, display or distribute any
Confidential Information to any third party or
permit any competitor or potential
competitor of Developer to access, in any
manner, any of the Confidential Information
or copies thereof, or any part thereof, in any
form whatsoever. Customer shall be
responsible for any breach of this Section 6 by
any of its employees, agents, independent
contractors, guests or Authorized Named
Users. The Customer agrees to notify the
Developer promptly and in writing upon the
Customer becoming aware of any breach of
this Section 6.
6.2 Customer's Confidential Information.
Developer agrees to take all reasonable steps
necessary to protect the confidentiality of all
Confidential Information disclosed by
Customer, including Customer's data, and
shall not use such Confidential Information
other than in connection with its performance
of Developer's obligations or exercise of its
rights under this Agreement.
7. Warranties and Remedies.
7.1. Limited Warranties. If at any time
during the term of this Agreement, the
Services fail to perform substantially as
described in the Documentation, Customer
shall promptly notify Developer of such
nonconformance and to the extent that such
nonconformance exists and is not caused by
any of the circumstances set forth in Section
7.2 below. Developer shall (A) use all
commercially reasonable efforts to correct
such nonconformance within thirty (30) days
of notification or (B) provide Customer within
thirty (30) days of notification with a plan
acceptable to Customer for correcting such
SaaS v.5.2 (Rev. 091015)
nonconformance. If such nonconformance is
not corrected or if an acceptable plan for
correcting such nonconformance is not
established, Developer shall refund to
Customer the amount paid for the User
Subscription units during the time period
Services were not available. Customer
acknowledges that this Section 7.1(b) sets
forth Customer's sole and exclusive remedy,
and Developer's sole and exclusive liability,
for any breach of warranty or other failure of
the Services to function properly.
7.2 Problems Not Caused by the
Developer. The limited warranty set forth
in paragraph 7.1. 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 Software not made by or authorized in
writing by the Developer.
7.3 Exclusive Warranties & DISCLAIMER.
The limited warranty in Section 7.1, as limited
by Section 7.2 above, is exclusive and in lieu of
all other warranties. Developer makes no
other warranty, express or implied. ALL
IMPLIED WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE ARE EXPRESSLY
EXCLUDED. EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION 7, ALL OTHER
REPRESENTATIONS, WARRANTIES, AND
GUARANTEES WITH RESPECT TO THE
LICENSED MATERIAL AND
DOCUMENTATION, WHETHER EXPRESS OR
IMPLIED, ARISING BY LAW, CUSTOM,
PRIOR ORAL OR WRITTEN STATEMENTS
BY DEVELOPER OR ITS AUTHORIZED
REPRESENTATIVES OR OTHERWISE ARE
HEREBY OVERRIDDEN AND DISCLAIMED.
7.4 Breach of Confidentiality or
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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 6 (or if the Customer
shall violate or breach, or threaten to violate
or breach, the provisions of paragraph 3), 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 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.
8. EXCLUSION OF CONSEQUENTIAL OR
INCIDENTAL DAMAGES.
8.1 UNDER NO CIRCUMSTANCES WILL
DEVELOPER OR ITS AUTHORIZED
REPRESENTATIVES BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL,
PUNITIVE, EXEMPLARY OR INCIDENTAL
DAMAGES, WHETHER FORESEEABLE OR
UNFORESEEABLE, BASED ON CLAIMS BY
CUSTOMER OR ANY THIRD PARTY
(INCLUDING, BUT NOT LIMITED TO,
CLAIMS FOR LOSS OF DATA, GOODWILL,
PROFITS, USE OF MONEY OR USE OF THE
PRODUCTS, INTERRUPTION IN USE OR
AVAILABILITY OF DATA, STOPPAGE OF
OTHER WORK OR IMPARIMENT OF OTHER
ASSETS), ARISING OUT OR RELATED TO
THIS AGREEMENT, INCLUDING CLAIMS OF
NEGLIGENCE, STRICT LIABILITY IN TORT
OR OTHERWISE, EXCEPT ONLY IN THE
CASE OF PERSONAL INJURY WHERE AND
TO THE EXTENT THAT APPLICABLE LAW
REQUIRES SUCH LIABILITY.
8.2 IN NO EVENT WILL THE AGGREGATE
CUMMULATIVE LIABILITY INCURRED BY
DEVELOPER IN ANY ACTION OR
Page 8 of 13 SaaS v.5.2 (Rev. 091015)
PROCEEDING BY CUSTOMER OR ITS
AUTHORIZED REPRESENTATIVES EXCEED
THE TOTAL AMOUNTS ACTUALLY PAID BY
CUSTOMER TO DEVELOPER UNDER THIS
AGREEMENT.
9. Indemnification. The Developer shall
defend, indemnify and hold the Customer
harmless from all claims, demands, liabilities,
obligations, cost and expenses (including
reasonable attorney's fees) arising out of, or
based upon, any claim that the any of the
Services provided by Developer violates,
misappropriates or infringes any US
copyright, patent, trademark, trade secret or
other intellectual property right of any third
party; provided that the Developer is given
prompt written notice of and detailed
information with regard to any such claim,
suit or proceeding by the Customer. Developer
may, at its option, in respect of such matters
modify the Services to be non -infringing
(while substantially preserving its utility or
functionality), or
(a) Substitute a functionally equivalent
non -infringing software ;or,
(b) Modify such 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 the
Services; or.
(d) If these alternatives are not
commercially reasonable, Developer may end
this Agreement and refund any unused,
prepaid fees to the Customer.
10. Entire Agreement.
This Agreement contains the entire agreement
between the Developer and the Customer for
the Services granted hereunder and
supersedes 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
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•0110100 •0 0001.1100 I 100
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. EACH PARTY ACKNOWLEDGES AND
AGREES THAT, AS A CONVENIENCE TO
CUSTOMER AND ONLY FOR CUSTOMER'S
INTERNAL ACCOUNTING PROCEDURES,
CUSTOMER MAY DELIVER TO DEVELOPER
A CUSTOMER INVOICE OR CUSTOMER
PURCHASE ORDER OR OTHER SIMILAR
DOCUMENT FOR ANY TRANSACTION
CONTEMPLATED HEREUNDER AND THAT
NO ACTION BY DEVELOPER, INCLUDING
DEVELOPER'S DELIVERY OF ANY LICENSED
SOFTWARE OR ACCEPTANCE OF PAYMENT,
SHALL BE DEEMED TO BE ACCEPTANCE OF
ANY OF THE TERMS OR CONDITIONS
CONTAINED IN SUCH CUSTOMER INVOICE
OR CUSTOMER PURCHASE ORDER OR
OTHER SIMILAR INSTRUMENT AND SUCH
TERMS AND CONDITIONS SHALL BE VOID
AND OF NO FORCE OR EFFECT.
11. General Provisions.
11.1 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.
11.2 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.
Page 9 of 13 SaaS v.5.2 (Rev. 091015)
11.3 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
11.3).
Customer: City of Pearland
COMPANY
ADDRESS 3519 Liberty Drive
CITY/ZIP Pearland, TX 77581
PHONE (281) 652-1734
CONTACT Ms. Susan Johnson
Developer: ATSER Systems, Inc.,
1150 Richcrest Drive
Houston, TX 77060
Attn: Chuck Shih, Ph.D., V.P.
Fax: (281) 999.9962
11.4 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.
11.5 Governing Law and Venue. This
Agreement shall be construed and enforced in
accordance with the substantive laws of the
State of Texas without giving effect to any
choice of law rules. DEVELOPER AND
CUSTOMER HEREBY IRREVOCABLY AGREE
ON BEHALF OF THEMSELVES THAT THE
SOLE AND EXCLUSIVE JURISDICTION AND
ATSER
VENUE FOR ANY LITIGATION ARISING
FROM OR RELATING TO THIS AGREEMENT
OR THE SUBJECT MATTTER HEREOF
SHALL BE IN AN APPROPRIATE FEDERAL
OR STATE COURT IN THE STATE OF TEXAS
LOCATED IN HARRIS COUNTY.
11.6 Assignment. This Agreement shall
be binding exclusive 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 any company in which Customer owns
more than fifty percent (50%) of the voting
securities of such company with written
consent of the Developer. 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.
11.7 Independent Contractor. The
Developer, in rendering performance
hereunder, is acting solely as an independent
contractor and not as an agent of the
Customer.
11.8 Paragraph Headings. The paragraph
and subparagraph headings used herein are
for reference and convenience only and shall
not enter into the interpretation hereof.
11.9 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.
11.10 Survival. Sections, 6, 7.3, 8, 10 and
11 shall survive any termination of this
Agreement.
Page 10 of 13 SaaS v.5.2 (Rev. 091015)
ATSER
[SIGNATURE PAGE FOLLOWS]
Page 11 of 13 SaaS v.5.2 (Rev. 091015)
ATSER
00110100 ON 0001-t1•0 1 10
IN WITNESS WHEREOF, Developer and Customer have executed this Agreement on DAY, the
xxth day of MONTH, 2015, by their duly authorized representatives identified below.
CUSTOMER: NAME
Sign s" re
Cl ay"Pts soy
Printed Name
Title
klataciez
ID . I A • 15
Date
C.E.O.
Signature Title
D. Fred Martinez, Ph.D.. P.E.
10/12/2015
Printed Name Date
Page 12 of 13 SaaS v.5.2 (Rev. 091015)
ATSER
SCHEDULE 1
FEES
Page 13 of 13 SaaS v.5.2 (Rev. 091015)
ATBER
SUILSINS ON ■ l A t• i 1 N l INIONMATION
Customer
Project Name
Description
Contact
Address
Phone
Email
Item
1.0
2.0
3.0
Ci of Pearland
Manage -IT
Susan Johnson
3519 Liberty Drive
Pearland, TX 77581
281.652.1734
SJohnson@pearlandtx.gov
Licenses
Manage -IT subscription Named User (NTE), 60 month
period)
Support Services
Annual Software Maintenance, Help Desk, Technical
Support, per Service Agreement
Annual Hosting,per Hosting Agreement
Additional Services
4.0 Customization, hour
Quote #
Quote Date :
Quote Expires:
Transaction
Type License:
SLA
Tax Status:
Payment terms:
Term NTP Date:
Term End Date:
Units
Unlimited
Annual
201510-11
9/9/2015
Annual
10/30/2015
Direct
SaaS
100
Normal Business Hours
Non Exempt
Due upon execution of contract
10/12/2015
10 11 2020
Standard Price
$55,000
$25,000
Included
ATSER Systems, Inc.
Erika Mills
Buisness Development
1150 Richcrest Drive
Houston, Texas 77060
Ph. (281) 925-8216
Fax (281) 999-9962
emillsCcilatser.com
Included
Special Notes:
1. Subscription Term: 60 Months
2. Limited Term Subscription for unlimited users
3. IT Infrastructure assumes a 10 concurrent user simultaneous printing capability.
4. Support during normal business hours, Central Standard Time. (1.2/5)
5. Request for Help Desk, Maintenance, and Technical Support should be communicated through 2 Customer points of contact.
6. Hourly Rates are for 2015 only and w ill be adjusted annually to Consumers Price Index as published by the US Federal Government.
7. Ninety (90) days from contract execution date Customer accepts softw are "AS IS".
Payment Terms:
1. Initial Payment (first year) is due upon execution of the contracts.
2. Support Service Fees are due/moble 45 days before the iversary date of the NTP date identified w ithin this quote.
3. Does not include taxes an
a'. by client -•,f-d.
111SUIMIMMEI
Date
***Please Sign and fax back to 281-999-9962
Total 1st Year
Quoted Price
$55,000
$25,000
Included
Included
$80,000
Subsequent Yrs
$25,000
5 Year Total
$180,000
Title
CEO
Monday, September 21, 2015