HomeMy WebLinkAbout3749RESOLUTION NO. 3 7 4 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AN AGREEMENT WITH CLASS
SOFTWARE SOLUTIONS LTD FOR THE PURPOSE OF
PURCHASING SOFTWARE, INSTALLATION AND TRAINING
FOR A COMPREHENSIVE CASH RECEIPTING AND PAYMENT
MANAGEMENT SYSTEM
WHEREAS, the City of Auburn is engaged in various municipal functions,
including the receipting of cash at multiple City locations; and
WHEREAS, in order to provide for such services, it is appropriate that the
City has a comprehensive cash receipting and payment management system
that enables standardized payment processing throughout the City; and
WHEREAS, in order to provide for those services, the City has negotiated
a contract with Class Software Solutions, Ltd. for such services, and the City has
determined that the Class Software Solutions, Ltd. is able and qualified to
provide the services necessary, at a cost that is acceptable to the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor and the City Clerk are authorized to execute
an agreement in substantial conformity with the Agreement attached hereto,
marked as Exhibit "A" and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Resolution 3749
July 16, 2004
Page 1 of 2
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
CjM, uJ, 200.
Dated and Signed this 2.V4 day of
ki
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
Daniel B. Heid,
City Attorney
PETER MAYOR
CITY OF AUBURN
. LEWIS
Resolution 3749
July 16, 2004
Page 2 of 2
Class
300-6400 Roberts Street I Burnaby BC I V5G 4C9
General Software Services Agreement
This document (the "Agreement'), consisting of:
a. this cover page ("Cover Page"),
b. the attached table of Services ("Services Table");
c. the attached Terms and Conditions of Class General Software Services Agreement ("Terms and
Conditions"); and
d. the attached form of Certificate of Insurance ("Certificate of Insurance")
constitutes the agreement between the undersigned customer ("Customer") and Class Software
Solutions Ltd. ("CSS") whereby, CSS and the Customer hereby agree that, CSS will provide to the
Customer the Services described in this Agreement, for prices and at rates as described in the Services
Table as modified pursuant to the Terms and Conditions. Any apparent contradiction among this Cover
Page, the Terms and Conditions, the Services Table and/or the Certificate of Insurance is to be resolved
by giving priority to the Terms of Conditions, followed by the Cover Page, followed by the Services Table,
and finally the Certificate of Insurance.
The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by
this Agreement. e
CITY OF AUBURN
Full Legal Customer Name
25 W MAIN ST
A93WJRN WA 98001
(253) 876-1900
Facsimile
Designated Customer contact
Authorized Signatory person/CSS System Administrator
and site, if more than one, provide all
2, 2004
Class Software Solutions Ltd. 2?
Vuthorized Sig tory Date
{The remainder of this page is intentionally BLANK)
www.classinfo.com I + 1 800 661 1196
Class
b)
C)
d)
e)
Services Table
Terms and Conditions of Class General Software Services Agreement
Pre-Agreed Services Rate per Hour Number of Hours Total Services
Cost
A. On-Site less than 3 days PLUS AIRFARE
AJ. Standard Intermediate or Junior Consultants $155
A.ii. Senior Consultant / Project Planner $220 16 $3,520
A.iii. Technical Specialist / CGS Consultant $250
B. On Site 3 days or More PLUS AIRFARE
B.i. Standard Intermediate or Junior Consultants $125
B.ii. Senior Consultant / Project Planner $190
B.iii. Technical Specialist / CGS Consultant see Pricing Estimate form for breakdown $220 136 $29,920
C. e-Consulting REQUIRES INTERNET ACCESS ON EACH PC
C.i. Standard Intermediate or Junior Consultants $100
C.ii. Senior Consultant / Project Planner / CGS Consultant $156.25 40 $6,250
CAL Technical Specialist $220
D. - Weekend Surcharge
D.i. Standard Intermediate or Junior Consultants $75
D.ii. Senior Consultant / Project Planner $75
DAL Technical Specialist $75
Totals $39,690
Less Partner Incentives ($13,891)
NOTE THAT RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER THAN Totals
AIRFARE $25,799
1. DEFINITIONS
1.1. Definitions - For the purposes of interpreting this Agreement, the
following terms will have the following meanings: g)
a) "Initial Installation " means the date upon which any of the Software
has first been installed on any server computer owned or controlled by
the Customer.
"Other Services" means Services other than Pre-Agreed Services
acquired by the Customer under this Agreement.
"Pre-Agreed Services" means Services which are expressly listed in
the Services Table as being acquired hereunder by the Customer.
"Release" means any release, update, patch, set of revisions, or
bug/permanent fix or temporary bypass solution released by CSS to its
customers generally during the term of this Agreement, which provides
enhancements and/or error corrections to the then-current Version or
Release, and where a new Version has been released and no new
Release has been released since the release of that Version, that
Version will also constitute a Release for the purpose of determining
whether Support or Maintenance is available with respect to that
Version. New Releases will be denoted by an increase to the version
number to the right of the decimal point such as from Release 1.1 to
Release 1.2.
"Services" means any and all types of services which CSS provides,
to the Customer and/or to other customers of CSS, in the course of
CSS' business, including but not limited to services relating to the
installation, implementation, customization, optimization,
administration, training and troubleshooting of computers, computer
software including the Software, computer networks, databases,
internet-related equipment and applications. .
Q "Software" means computer code and programs, in executable code
form only, including related data files, rules, parameters and
documentation, which have been created or licensed by CSS and
subsequently licensed by CSS to the Customer.
"Version" means a version of the Software providing a particular
functionality, while a new Version of the Software will provide
new/additional functionality and/or improvements to a previous
Version. New Versions will be denoted by a change to the version
number to the left of the decimal point such as from Version 1.0 to
Version 2.0.
1.2. Headings - The headings contained in this Agreement are inserted for
convenience and do not form a part of this Agreement and are not intended
to interpret, define or limit the scope, extent or intent of this Agreement or
any provision hereof.
2. SERVICES TO BE PROVIDED
2.1. CSS will provide to the Customer:
a) all Pre-Agreed Services which the Customer hereby agrees, pursuant
to the Services Table, to acquire; and
b) all Other Services which the Customer from time to time agrees to
acquire, provided that no Services other than Pre-Agreed Services will
be provided by CSS unless CSS has, prior to such Services being
rendered, received confirmation from the Customer that the Customer
wishes to acquire such Services and will pay for such Services under
the terms of this Agreement; and
c) Standard services days are eight (8) hour days, included as billable
time are fifteen (15) minute morning and afternoon breaks as well as
one (1) hour lunch break, the minimum billable on-site period is 8
hours.
3. FEES AND PAYMENT
3.1. Pre-Agreed Services - The Customer will pay CSS the fees described
in the Services Table for Pre-Agreed Services.
3.2. Other Services - Upon subsequent agreement from time to time
between the Customer and CSS that the Customer will acquire Other
Class Software Solutions Ltd. General Software Services Agreement 193AN04 (Terms and Conditions) Page 2 of 4
Class
Terms and Conditions of Class General Software Services Agreement
Services, the Customer will pay for such Other Services at the service rates
in effect at the time of provision of such Other Services, provided that the
service rates shown in the Services Table will be effective for the 12-month
period following effective date of this Agreement, and thereafter relevant
service rates, if different from the rates contained in the Services Table, will
be provided to the Customer prior to such Other Services being rendered.
3.3. Consulting and training Services include up to five (5) participants per
class. Additional participants, to a maximum of ten (10) per class can be
accommodated at an additional cost of $100 per hour per participant.
3.4. Travel Expenses - Costs and rates as described in this Agreement
include all CSS personnel travel expenses other than airfare. The Customer
will pay all airfare relating to travel of CSS personnel relating to Services
provided at the Customer's location, which airfare will unless urgency on the
part of the customer requires otherwise, be at "coach" rates .
3.5. Shipping and Handling - The Customer will pay all shipping & handling
charges, applicable sales, use, withholding and excise taxes, and any other
assessments in the nature of taxes, duties or charges however designated
on the Services rendered under this Agreement, exclusive of taxes based on
the net income of CSS.
3.6. Applicable Currency - Unless specifically stated otherwise, all prices
and amounts are in the currency of the country in which the Software is
installed.
3.7. Invoices (Delivery, Payability and Interest) - CSS will provide invoices
to the Customer for all amounts owing by Customer hereunder, such
invoices to be provided after provision of the Services to which they relate,
and subsequently due within 30 days after receipt by the Customer.
Overdue invoices shall bear interest at 1 % per month, 12.68% per annum.
4. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS
4.1. Customer will provide, at no cost to CSS:
a) sufficient space to allow CSS personnel on the Customer's site to
perform the on-site Services acquired hereunder;
b) office supplies and services such as photocopying, facsimile and
telephone access;
c) without limiting a), education and training facilities adequate to the
training services acquired hereunder, including classroom space,
networked PCs (minimum one (1) PC for every two (2) training
participants), networked printing capability, computer display/projection
facilities, and flip chart or whiteboard, plus markers and other ancillary
supplies;
d) subject to the security requirements of the Customer, 24 hour access
to the Customer's system via either an always-available telephone
circuit or an always available internet connection to enable CSS or its
designated representative to perform any of the obligations placed
upon CSS by this Agreement.; and
e) subject to the security requirements of the Customer, remote dial
up/internet access methods approved by CSS to allow CSS to
remotely diagnose and correct errors in the Software and provide other
Services.
4.2. Without limiting the Customer's obligations, Customer will:
a) use its best efforts to upgrade to any new Release or Version of the
Software that is designated for general distribution, as soon as
possible after becoming aware of its availability;
b) ensure that at all times at least one current staff person of the
Customer, who is the Customer contact person named on the Cover
Page and per c), has been fully trained on the Software;
c) designate by written notice a single site and single person as the point
of contact for telephone or other contact, which site and/or person the
Customer may change upon 14 days prior notice; and
d) provide particulars of the Customer's system configuration in sufficient
detail to allow CSS to effectively provide Services hereunder.
5. REPRESENTATIONS AND WARRANTIES
5.1. Insurance - CSS represents and warrants that it does and will at all
times during the term of this Agreement maintain general liability insurance
as described in the Certificate of Insurance.
5.2. Limited Warranty of Services - CSS warrants that all services provided
hereunder will be performed in full conformity with the Agreement, with the
skill and care which would be exercised by those who perform similar
services at the time the services are performed, and in accordance with
accepted industry practice. In the event of a breach of the express
warranties contained herein and/or in the event of non-performance and/or
failure of CSS to perform the services in accordance with the Agreement,
CSS will, at no cost to Customer, re-perform or perform the services so that
the services conform to the warranties.
6. EXCLUSION OF OTHER WARRANTIES AND LIMITATION OF
LIABILITY
6.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
WARRANTIES SET OUT IN SECTION 5.1 AND 5.2 ARE IN LIEU OF ALL
OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND
WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (in contract or
tort) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE
REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR
QUALITY, IN EFFECT REGARDING THE SERVICES.
6.2. NO INDIRECT DAMAGES - IN NO EVENT WILL CSS BE LIABLE TO
CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (in contract or tort) IN CONNECTION WITH THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS,
LOST SAVINGS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES, EXCEPTING LOSS OR DAMAGE FOR PERSONAL
INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING FROM THE
SOLE NEGLIGENCE OF CSS.
6.3. LIMITS ON LIABILITY - IF FOR ANY REASON, CSS BECOMES
LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY
OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION (in contract or tort),
EXCEPTING LIABILITY FOR PERSON INJURY OR DAMAGE TO
TANGIBLE PROPERTY, INCURRED IN CONNECTION WITH THIS
AGREEMENT, THEN:
a) THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES,
INJURY, AND LIABILITY INCURRED BY CUSTOMER AND ALL
OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT WILL
BE LIMITED TO AN AMOUNT EQUAL TO THE CHARGES PAID TO
CSS FOR THE SERVICES WHICH GAVE RISE TO THE CLAIM FOR
DAMAGES; AND
b) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
PROCEEDING AGAINST CSS ARISING OUT OF THIS AGREEMENT
OR RELATING TO SERVICES MORE THAN TWO YEARS AFTER
THE CAUSE OF ACTION HAS ARISEN.
6.4. SEPARATE ENFORCEABILITY - SECTIONS 6.1, 6.2 AND 6.3 ARE
TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE
INDIVIDUALLY ENFORCEABLE.
7. TERM
7.1. Term - The term of this Agreement will commence on the date of its
execution and, subject to termination as provided herein, will continue
indefinitely.
8. TERMINATION
8.1. Termination - This Agreement will terminate:
a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and
fails to remedy the default within 30 days after receiving written notice
thereof from the non-defaulting party;
Class Software Solutions Ltd. General Software Services Agreement 193AN04 (Terms and Conditions) Page 3 of 4
Class
Terms and Conditions of Class General Software Services Agreement
b) at the option of either party if the other party becomes insolvent or
bankrupt or makes an assignment for the benefit of creditors, or if a
receiver or trustee in bankruptcy is appointed for the other party, or if
any proceeding in bankruptcy, receivership, or liquidation is instituted
against the other party and is not dismissed within 30 days following
commencement thereof;
c) at CSS' option upon the expiry of sixty (60) days following issuance by
CSS of an invoice to the Customer for fees payable under this
Agreement and such invoice remaining unpaid, provided that CSS has
prior to terminating under this provision provided the Customer with at
least ten (10) days' prior written notice of such non-payment, which
minimum 10-day period may expire before, simultaneously with, or
after the sixty day period; or
d) at either party's option if the other party assigns or attempts to assign
this Agreement other than as expressly permitted by this Agreement;
provided that these rights of termination will be in addition to all other rights
and remedies available to the parties for any breach or default hereunder.
8.2. Suspension of Obligations - If either party should default in the
performance or observance of any of its obligations hereunder, then, in
addition to all other rights and remedies available to the non-defaulting
party, the non-defaulting party may suspend performance and observance
of any or all its obligations under this Agreement, without liability, until the
other party's default is remedied, but this Section will not permit the
Customer to suspend its obligation to make payments owing in respect of
Support and other Software Services.
9. GENERAL
9.1. Complete Agreement - This Agreement, as modified and affected by
CSS's standard Software license fees and the terms of any agreement
between CSS and the Customer relating to licensing of Software (as
opposed to the mere provision of Software, to which this Agreement relates
in respect of Releases and Versions), is the complete and exclusive
statement of the Agreement between the parties with respect to the subject
matter contained herein and supersedes and merges all prior
representations, proposals, understandings and all other agreements, oral
or written, express or implied, between the parties relating to the matters
contained herein. This Agreement may not be modified or altered except by
written instrument duly executed by both parties.
9.2. Force Majeure - Dates or times by which either party is required to
perform under this Agreement excepting the payment of any fees or charges
due hereunder will be postponed automatically to the extent that any party is
prevented from meeting them by causes beyond its reasonable control.
9.3. Notices - All notices and requests in connection with this Agreement
will be given or made upon the respective parties in writing and will be
deemed given as of the third day following the day the notice is faxed,
providing hardcopy acknowledgment of successful faxed notice transmission
is retained. Notice may also be deposited in the Canadian mails(or if the
Customer is resident outside Canada and is rendering the notice, in the
mails of that country), postage pre-paid, certified or registered, return receipt
requested, and addressed to the parties as indicated on the face of this
Agreement:
9.4. Governing Law - This Agreement and performance hereunder will be
governed by the laws applicable in the jurisdiction where the Software is
installed, excepting in the case of Louisiana when the laws of California will
apply, or in the case of Quebec when the laws of Ontario, Canada will apply.
9.5. Non-Assignability - This Agreement is not assignable by the Customer,
and any assignment, purported assignment or attempt to assign by the
Customer will be a material breach of this Agreement and will further be
void. CSS may assign its obligations under this Agreement to CSS's system
integrators or resellers.
9.6. Survival - Sections 6 and 9 will survive termination and expiration of
this Agreement.
Class Software Solutions Ltd. General Software Services Agreement 19JAN04 (Terms and Conditions) Page 4 of 4
Class
300-6400 Roberts Street I Burnaby BC I V5G 4C9
Software License Agreement
This document (the "Agreement"), consisting of:
a. this cover page ("Cover Page"),
b. the attached table of licensed Software ("Software Table"); and
c. the attached Terms and Conditions of Class Software License Agreement ('Terms and Conditions")
constitutes the entire agreement between the undersigned customer ("Customer") and Class Software Solutions Ltd.
("CSS") whereby, and CSS and the Customer hereby agree that, CSS grants to the Customer the rights and licenses
herein described regarding the installation and use of certain computer software for the prices described in the
Software Table, as modified from time to time according to this Agreement. Any apparent contradiction among this
Cover Page, the Software Table and/or the Terms and Conditions is to be resolved by giving priority to the Terms and
Conditions, followed by the Cover Page, and finally the Software Table.
Payment Terms for Software Licenses
A. All prices are in the currency of the country of installation.
B. Sales and any other applicable tax(es), duties or any other charges in the nature of taxes and duties are not
included unless specifically identified as line items.
C. Prices shown include freight F.O.B. the Customer's offices.
D. No services (i.e. site preparation such as cabling and provision of electricity) are included in costs described
herein.
E. The following installment payment schedule is applicable; figures are percentages of total fees and taxes and
other charges re: all Software licensed under this Agreement:
Upon delivery of the Software 25%
30 days after Initial Installation of an Module 65%
90 days after Initial Installation of an Module 10%
F. CSS will invoice the Customer for the amounts contemplated in paragraph E. All invoices are payable within 30
days of receipt thereof, and such receipt is deemed to occur as though such invoices were notices sent pursuant
to section 9.3 of the Terms and Conditions. Overdue invoices will bear interest at 1 % per month, 12.68% per
annum.
The parties hereto each acknowledge that th
CITY OF AUBURN
Full Legal Customer Name
25 W MAIN ST
Address
AUBURN WA 98001
(253) 876-1900
Facsimile
Class Software Solutions Ltd.
and agree to De Douna Dy tnls Hgreerneni.
August 2, 2004
Signatory
Date
D to
www.classinfo.com I + 1 800 661 1196
Class
Software Table: Licensed Class Software Modules
Module Module Unit
Price No. of Copies of
Module Licensed Total Module
Cost
Operating Modules Associated Maintenance Modules in parentheses)
i. Payment Manager $3,500 3 $10,500
ii. Kiosk $1,750
iii. Internet Client Login 25 Concurrent Users permitted per license $5000
iv. Telephone Client Login min. 4 lines IVR Maintenance) $1,750
System Features
Server Based Licensing
V. Receivables $5,000
Vi. Finances nc $1,750
Vii. A S nc (per connector $15,000 2 $30,000
Viii. Banks nc $5,000
ix. Multilingual times number of Payment Manager licenses $500
X. Telephone Payment Manager $10,000
A. Payment Server Per A S nc $5,000
A. Payment Server Open API (per connector $5,000
xiii. Enterprise Payment Server Credit and, Debit and Electronic Funds Transfer $10,000 1 $10,000
Internet Modules
xiv. Internet Payment Manager $10,000
System Modules-Costs included in costs of other licensed Modules
xv. System Utilities as defined in section 1.1.r of the Terms and Conditions
Other
xvi. Reports $500
Total License Costs $50,500
Less: Partner Incentives - please see Estimate form for details $26,750
*Software Table includes licenses to be purchased as at the date of this
agreement. Software modules already licensed by the customer are listed
in Schedule A of this agreement.
Total cost
$23,750
Class Software Solutions Ltd. Software License Agreement 25NOV03 (Software Table) Page 2 of 7
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c)
d)
e)
f)
g)
h)
k)
M)
n)
o)
P)
1. Interpretation
1.1. Definitions - For the purposes of interpreting this Agreement, the
following terms will have the following meanings:
a) "Agreement" means this Class Software License Agreement.
b) "Client Workstation" means a computer attached to a local- or
wide-area network (including an Intranet), which accesses the
Software or Enterprise Database.
"Concurrent Use" means use at the same moment in time to
access a given server computer (of any kind) owned or controlled
by the Customer.
"Customer" means the legal entity other than CSS entering this
Agreement.
"CSS" means Class Software Solutions Ltd.
"Database Server" means the single server computer upon which
the Enterprise Database is resident.
"Enterprise Database" means the MS SQL Server database files
containing customer data (which is owned by Customer) and which
is accessed by the Software.
"Initial Installation" means initial installation of any Module on any
server computer owned or controlled by the Customer.
"Internet Client" means a remote device capable of using the
Internet and either Internet Explorer 4.0 or higher or Netscape
Navigator 4.7 or higher to access selected Software on the Internet
Server or the Enterprise Database on the Database Server via the
Internet Server.
"Internet Server" means a single server computer used by the
Customer which enables access to the Software by individuals
using an Intranet or the Internet, having a minimum configuration
as set out in hardware specifications previously described to the
Customer as applicable to the Software to be installed and used
upon it.
"IVR Server" means a single server computer used by the
Customer for voice-recognition and telephone-based, rather than
computer-based, access to the Enterprise Database by the
Customer's clients, having a minimum configuration as set out in
hardware specifications previously described to the Customer as
applicable to the Software to be installed and used upon it.
"Maintenance Module" means any item of Software shown in the
Software Table in parentheses adjacent to a type of Operating
Software.
"Module" means a single type of Software referred to in any
particular line item, such that each such line item refers to one, and
only one, Module, with respect to which one or more licenses may
or may not be granted hereby, except in line item xv to which r)
applies.
"Operating Module" means any item of Software listed but not in
parentheses in line items i through iv.
"Payment Server" means a single server computer used by the
Customer to process electronic payments from its clients, having a
minimum configuration as set out in hardware specifications
previously described to the Customers as applicable to the
Software to be installed and used upon it.
"Software" means computer code and programs, in executable
code form only, including related data files, rules, parameters and
documentation, which have been created or licensed by CSS and
are identified in the Software Table as licensed (or sublicensed) to
the Customer by CSS in connection with this Agreement, and/or
which are in the future provided to the Customer by CSS under any
circumstances unless provided under a separate licensing
agreement.
q) "Software Table" means the table of CSS Software Modules
licensed hereunder, shown on the page of this Agreement
immediately following the Cover Page.
r) "System Utilities" includes the following Modules: Accounting
Processes, Central Login, Class Log File, Copy Class Database,
Edit Class Database, Maintain Class Database, MSDE Tool,
Oracle Setup Utility, Query Tool, System Maintenance, Upgrade
Class Database and View Components.
s) "User" means a person who accesses and uses any of the
Software to access, use or affect the Enterprise Database in any
manner whatsoever.
1.2. "Line Items" - Any reference herein to a "line item" or "line items" is
a reference to the appropriate line item(s) of the Software Table.
1.3. Headings - The headings contained in this Agreement are inserted
for convenience and do not form a part of this Agreement and are not
intended to interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
2. GRANT OF LICENSES AND LIMITATIONS THEREON
2.1. CSS hereby grants to the Customer a non-exclusive right and
license, subject to this Agreement, to install and/or use the Software as
follows:
a) Operating Modules - For every Operating Module licensed
pursuant to the Software Table the Customer may:
i) install the Operating Module upon as many Client
Workstations as the Customer wishes, and
ii) permit Users to use such Operating Modules to access the
Enterprise Database on the Database Server provided that
only the number of copies of any particular Operating Module
licensed pursuant to the appropriate line items may be in
Concurrent Use.
b) Maintenance Modules - For every Operating Module licensed
pursuant to the Software Table for which the Software Table shows
a corresponding Maintenance Module, the Customer may install
and use such corresponding Maintenance Module upon as many
Client Workstations as the Customer wishes, with no limits with
respect to the number of units of such Maintenance Modules which
may be in Concurrent Use.
c) System Features (Server Based Licensing) - Subject to d), the
Customer may install one copy of each Module licensed pursuant
to line items v through xiii on each of as many Client Workstations
as the Customer wishes, and may use and permit use of such
Modules by its clients, without limit as to the number Users or
transactions which simultaneously use any such Module.
d) Exceptions Regarding Unlimited System Feature (Server
Based Licensing) - Any Module licensed pursuant to:
i) line item x ("Telephone Payment Manager") may be installed
as to one copy, on one IVR Server, per license acquired, and
all such Modules together may be in Concurrent Use by, at
most, the number of lines of the "Telephone Client Logins"
Module licensed pursuant to line item iv;
Class Software Solutions Ltd. Software License Agreement 19JAN04 (Terms and Conditions)
Page 3 of 7
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e)
g)
h)
ii) line item xiii ("Payment Server") may be in Concurrent Use by,
at most, the number Concurrent Users of the Payment
Manager Module, licensed pursuant to line item i.
Internet Licenses - For every Module licensed pursuant to line
item xiv the Customer may:
i) install one copy of each such Module per license of such
Module on one Internet Server, and
ii) subject to f), permit Users to access and use such Modules to
access the Database Server via Internet Clients connecting
via a licensed Internet Server, provided that at any time, any
or all such Modules may be in Concurrent Use by, at most,
the number of licenses of the "Internet Client Login" Module
licensed pursuant to line item x multiplied by twenty-five (25).
The Customer hereby acknowledges that the mechanism utilized
by the Software to control the number of Users or Internet Clients
which can simultaneously access and use Modules licensed per
line item xiv is based upon the number of Users who have at any
time logged in to the Customer's computer network using their
passwords, such that any User so logged into that network in a
manner that would enable the User to access and use the Modules
listed in those line items will in fact reduce by one the number of
Users able to simultaneously access those Modules, even if such
User is not in fact accessing or using any such Module. The
Customer hereby waives any claim, and releases CSS from
any such claim and from any losses or damages the Customer
suffers in relation thereto, in connection with the inability of
the number of Users indicated in line item iii to simultaneously
access the Modules licensed per line item xiv , where such
inability is the result of Users not actually using the Modules
licensed per those line items absorbing available login access
in the manner described in this provision.
Other Licenses (Reports) - For each Module licensed pursuant to
line item xvi, the Customer may:
install one copy of such Module upon a single Client
Workstation per license of such Module, and
permit Users using such licensed Client Workstation(s) to use such
Module(s), provided that only the number of copies of such Module
licensed pursuant to line item xvi may be in Concurrent Use, and
further only one copy may be in Concurrent Use on any given
licensed Client Workstation.
2.2. Backup Copies - Customer will not make any copies of the
Software, except as necessary for the installation permitted hereby and
except for one copy of each Module licensed hereunder for backup
purposes, provided that all electronic copies made include screen
displays of CSS's proprietary or intellectual property notices as recorded
on the original copy provided by CSS, and the Customer affixes a label
to each disk, reel or other housing for the medium on which each
physical copy is recorded setting out the same proprietary and
intellectual property notices as appear on the unit of Software from
which the copy is made in the same manner as those notices appear on
that original copy.
2.3. Incidental Installation of System Feature Software - CSS will not
require any payment by the Customer for, and hereby releases the
Customer with respect to any damages or claims to or by CSS relating
to, unlicensed Modules listed in the Software Table under "System
Features" the Software for which is automatically installed on any
hardware of the Customer in the process of installation of any other
Module(s), provided that the Customer shall not use, and shall not
permit any other person to use, any such Modules.
3. CHARGES AND PAYMENTS
3.1. Software License Fees - The charges and payments applicable to
the installation and use of the Software by the Customer are set out on
the Cover Page.
3.2. Taxes and Other Charges - The Customer will pay all shipping &
handling costs and all applicable sales, use, withholding and excise
taxes, and any other assessments against the Customer in the nature of
taxes, duties or charges however designated on the Software or its
license or use, on or resulting from this Agreement, exclusive of taxes
based on the net income of CSS.
4. OWNERSHIP OF SOFTWARE
4.1. Warranty of Title - CSS warrants that it has all rights necessary to
make the grant of license herein by having all right, title and interest in
and to the Software or as licensee of all such rights from the owner
thereof.
4.2. Retention of Rights by CSS and Customer's Obligations - All
proprietary and intellectual property rights, title and interest including
copyright in and to the original and all copies of the Software and the
documentation or any changes or modifications made to the Software or
related documentation will be and remain that of CSS, or its licensor as
the case may be. Without limiting the foregoing, the Customer will not
any time whether before or after the termination of this Agreement:
a) reverse engineer, disassemble or decompile any Software or
prepare derivative works thereof;
b) copy, transfer, display, or use the Software except as expressly
authorized in this Agreement;
c) disclose, furnish, or make accessible to anyone any confidential
information received from CSS or make any use thereof other than
as expressly permitted under this Agreement, which confidential
information is deemed to include the source and executable code
of the Software and all related documentation;
d) contest or do or aid others in contesting or doing anything which
impairs the validity of any proprietary and intellectual property
rights, title or interest of CSS in and to any Software; or
e) obliterate, alter, or remove any proprietary or intellectual property
notices from the Software in its physical or electronic forms.
4.3. Intellectual Property Indemnity by CSS - CSS will defend or settle
any claim made or any suit or proceeding brought against the Customer
insofar as such claim, suit or proceeding is based on an allegation that
any of the Software supplied to the Customer pursuant to this
Agreement infringes the proprietary and intellectual property rights of
any third party in or to any invention, patent, copyright or any other
rights, provided that the Customer will notify CSS in writing promptly
after the claim, suit or proceeding is known to the Customer and will give
CSS information and such assistance as is reasonable in the
circumstances. CSS will have sole authority to defend or settle any such
claim at CSS's expense. CSS will indemnify and hold the Customer
harmless from and against any and all such claims and will pay all
damages and costs finally agreed to be paid in settlement of such claim,
suit or proceeding. This indemnity does not extend to any claim, suit or
proceeding based upon any infringement or alleged infringement of
copyright by the combination of the Software with other elements not
under CSS's sole control nor does it extend to any Software altered by
the Customer either by enhancement or by combination with product(s)
of the Customer's design or formula. The foregoing states the entire
Class Software Solutions Ltd. Software License Agreement 197AN04 (Terms and Conditions)
Page 4 of 7
i
?) class Terms and Conditions of Class Software License Agreement
liability of CSS for proprietary and intellectual proprietary rights
infringement related to the Software. If the Software in any claim, suit or
proceeding is held to infringe any proprietary or intellectual property
rights of any third party and the use thereof is enjoined or, in the case of
settlement as referred to above, prohibited, CSS will have the option, at
its own expense, to either (i) obtain for the Customer the right to
continue using the infringing item, or (ii) replace the infringing item or
modify it so that it becomes non-infringing, provided that no such
replacement or modification will diminish the performance of the
Software.
4.4. Intellectual Property Indemnity by the Customer - The Customer
will defend or settle any claim made or any suit or proceeding brought
against CSS insofar as such claim, suit or proceeding is based on an
allegation that any Software licensed to Customer pursuant to line item
xvi ("Reports") has been installed, used or otherwise treated in a manner
contrary to the terms of this Agreement or the intellectual property rights
of the provider of that Software, provided that CSS will notify the
Customer in writing promptly after the claim, suit or proceeding is known
to CSS and will give the Customer information and such assistance as is
reasonable in the circumstances. The Customer will have sole authority
to defend or settle any such claim at the Customer's expense. The
Customer will indemnify and hold CSS harmless from and against any
and all such claims and will pay all damages and costs finally agreed to
be paid in settlement of such claim, suit or proceeding.
5. WARRANTY
5.1. Limited Warranty of Software - CSS warrants that when utilized by
the Customer in a manner authorized hereunder, the Software will
conform to the functional specifications set out in the user
documentation accompanying the Software for ninety (90) days from
Initial Installation. CSS's sole obligation and liability hereunder with
respect to any failure to so perform will be to use reasonable efforts to
remedy any non-conformity, which is reported to CSS in writing by
Customer within that warranty period. In the event CSS is unable to
remedy such non-conformity within a reasonable time using reasonable
efforts, CSS may refund to Customer the license fee pertaining to the
Software and this Agreement will be automatically terminated. All
warranty service will be performed at service locations designated by
CSS.
6. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
6.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
WARRANTIES SET OUT IN SECTIONS 4.1 AND 5.1 ARE IN LIEU OF
ALL OTHER WARRANTIES, AND THERE ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OF ANY KIND WHATSOEVER APPLICABLE, EITHER
EXPRESS OR IMPLIED BY LAW (IN CONTRACT OR TORT) OR
CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE REGARDING
MERCHANTABILITY, FITNESS FOR PURPOSE, DURABILITY,
CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR
QUALITY. WITHOUT LIMITING THE ABOVE, CSS DOES NOT
WARRANT THAT ANY SOFTWARE PROVIDED HEREUNDER WILL
MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE
OPERATION OF SOFTWARE PROVIDED HEREUNDER WILL BE
FREE FROM INTERRUPTION OR ERRORS.
6.2. RESTRICTIONS ON WARRANTY - CSS HAS NO OBLIGATION
TO REPAIR OR REPLACE SOFTWARE DAMAGED BY ACCIDENT
OR OTHER EXTERNAL CAUSE, OR THROUGH THE FAULT OR
NEGLIGENCE OF ANY PARTY OTHER THAN CSS.
6.3. NO INDIRECT DAMAGES - WITHOUT LIMITING THE
GENERALITY OF SECTIONS 6.1 AND 6.4, IN NO EVENT WILL CSS
BE LIABLE TO THE CUSTOMER OR TO ANY OTHER PARTY FOR
INDIRECT DAMAGES OR LOSSES (IN CONTRACT OR TORT),
INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS,
LOST SAVINGS, OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL
DAMAGES, EXCEPTING LOSS OR DAMAGE FOR PERSONAL
INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING FROM
THE SOLE NEGLIGENCE OF CSS, IN CONNECTION WITH
SOFTWARE PROVIDED HEREUNDER OR IN ANY OTHER RESPECT
RELATING TO THIS AGREEMENT.
6.4. LIMITS ON LIABILITY - DESPITE ANY OTHER PROVISION OF
THIS AGREEMENT, IF, FOR ANY REASON, CSS BECOMES LIABLE
TO THE CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY
OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR
TORT), EXCEPTING LIABILITY FOR PERSONAL INJURY OR
DAMAGE TO TANGIBLE PROPERTY, INCURRED IN CONNECTION
WITH THIS AGREEMENT, THEN:
A) THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES AND
LIABILITY INCURRED BY CUSTOMER AND ALL OTHER
PARTIES IN CONNECTION WITH THE SOFTWARE IN
QUESTION WILL BE LIMITED TO AN AMOUNT EQUAL TO THE
AMOUNT PAID TO CSS FOR THE LICENSE OF THE MODULE
OR MODULES WHICH GAVE RISE TO THE CLAIM FOR
DAMAGES; AND
B) IN ANY CASE THE CUSTOMER MAY NOT BRING OR INITIATE
ANY ACTION OR PROCEEDING AGAINST CSS ARISING OUT
OF THIS AGREEMENT OR RELATING TO ANY SOFTWARE
PROVIDED HEREUNDER MORE THAN TWO YEARS AFTER
THE RELEVANT CAUSE OF ACTION HAS ARISEN.
6.5. SEPARATE ENFORCEABILITY - SECTIONS 6.1 THROUGH 6.4
ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL
EACH BE INDIVIDUALLY ENFORCEABLE.
7. TERMINATION
7.1. Termination - This Agreement will terminate:
a) at the option of either party if the other party materially defaults in
the performance or observance of any of its obligations hereunder
and fails to remedy the default within 30 days after receiving written
notice thereof; and
b) without limiting a), at the option of CSS if the Customer breaches
section 3 of this Agreement
provided that the right of termination will be in addition to all other rights
and remedies available to the parties for breach or default by the other.
7.2. Suspension of Obligations - If either party should default in the
performance or observance of any of its obligations hereunder, then, in
addition to all other rights and remedies available to the non-defaulting
party, the non-defaulting party may suspend performance and
observance of any or all its obligations under this Agreement, without
liability, until the other party's default is remedied, but this section will
not permit the Customer to suspend its obligation to make payments
owing in respect of the Software.
7.3. Return of Software - In the event of termination of this Agreement
for any reason whatsoever, Customer will immediately return to CSS all
physical copies of Software delivered by CSS to the Customer or
otherwise in the Customer's possession or control, except as expressly
permitted by CSS to destroy, destroy all physical copies of the Software
not returned to CSS, delete all electronic copies of the Software from its
systems, and certify in writing to CSS that such actions have all been
completed.
Class Software Solutions Ltd. Software License Agreement 19JAN04 (Terms and Conditions) Page 5 of 7
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#,) class Terms and Conditions of Class Software License Agreement
8. Audit and monitoring Rights
8.1. CSS may, upon a minimum of 24 hours written notice to the
Customer, attend upon the Customer's premises and verify that the
Software licensed pursuant to this Agreement is installed and being
used only as permitted hereby. Such inspections may occur a
maximum of twice per calendar year, and will be performed only during
the Customer's regular business hours and conducted in a manner so
as minimize to the extent reasonable any interference with the
Customer's business. Further, CSS may, using automatic means which
do not interfere with the use of the Software by the Customer or Users
other than as described in this provisions, monitor at any time usage of
the Software by the Customer and or its Users, through monitoring of
the number of copies of any particular Module(s) in Concurrent Use.
9. GENERAL
9.1. Complete Agreement - This Agreement, including Schedule A,
constitutes the complete and exclusive statement of the agreement
between CSS and the Customer relating to the licensing of the
Software, and supersedes all oral or written proposals, prior agreements
and other prior communications between the parties, concerning the
subject matter of this Agreement.
9.2. Force Majeure - Dates or times by which either party is required to
perform under this Agreement, excepting the payment of any fees or
charges due hereunder, will be postponed automatically to the extent
that any party is prevented from meeting them by causes (other than
inability to pay) beyond its reasonable control.
9.3. Notices - All notices and requests in connection with this
Agreement will be given to the respective parties in writing and will be
deemed given as of the first business day of the notified party following
the day the notice is faxed or sent via overnight courier, providing a hard
copy acknowledgment of such successful faxed notice transmission or
evidence of such couriering, as applicable, is retained. Notice may also
be deposited in the Canadian or United States mails (depending upon
the location of the party sending such mail), postage pre-paid, certified
or registered, return receipt requested, and addressed to the other party
at the address set out on the face hereof, and receipt of any such notice
will be deemed given as of the 31d business day of the notified party
following such deposit.
9.4. Governing Law - This Agreement and performance hereunder will
be governed by the laws of the jurisdiction where the Database Server is
situated excepting in the case of Louisiana when the laws of California
will apply, or in the case of Quebec when the laws of Ontario will apply.
9.5. Non-Assignability - This Agreement is not assignable by the
Customer. Any assignment, purported assignment or attempt to assign
by the Customer will be a material breach of this Agreement and will be
void.
9.6. Survival - Sections 4, 6, 7.3 and 9 of this Agreement will survive
termination and expiration of this Agreement.
9.7. U.S. Government Restricted Rights - The Software and
documentation are provided with restricted rights. Use, duplication, or
disclosure by the U.S. Government is subject to restrictions as set forth
in subparagraph (c) (1)(ii) of The Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013, or subparagraphs
(c) (1) and (2) of the Commercial Computer Software - Restricted Rights
at 48 CFR 52.227-19, as applicable. The Contractor/ Manufacturer is
Class Software Solutions Ltd., Suite 300, 6400 Roberts Street, Burnaby,
British Columbia, Canada, V5G 4C9.
Class Software Solutions Ltd. Software License Agreement 19JAN04 (Terms and Conditions) Page 6 of 7
cuss
Schedule A
Terms and Conditions of Class Software License Agreement
Module No. of Copies of
Module Licensed Total Module
Cost
Operating Modules Associated Maintenance Modules In parentheses)
xvii. Program Registration (Program Maintenance 13
xviii. FlexRe licensed only with Services and Error! Reference source not found.
xix. Memberships (Membership Maintenance
xx. Facility Booking (Facility Maintenance 7
xxi. QuickRez licensed only with Services and Error! Reference source not found.
xxii. Point of Sale POS Maintenance
xxiii. Sort Scheduling
xxiv. Calendar
xxv. Telephone Client Lo ins min. 4 lines IVR Maintenance
System Features
Server Based Lkens/ng
xxvi. Randomization
xxvii. Affinity
xxviii. Customers nc
xxix. Portals nc
xxx. Assets nc
xxxi. Finances nc 1
xxxii. Brochures nc 1
xxxiii. Multilingual times total of items 1 and iv licenses
xxxiv. Telephone Program Registration & Voice Server
xxxv. Payment Server Credit and. Debit and Electronic Funds Transfer
User-Based Lkensln
xxxvi. Integrated Workstation Debit Card
xxxvii. POS Touch Screen
xxxviii. Kiosk
Internet
xxxix. Internet Program Registration
A. Internet Facility Booking
A. Maps
xlii. Internet Sports Scheduling
xliii. Internet Facility Availability
xliv. Internet Client Login (25 Concurrent Users permitted per license
System Module"osts included in costs of other licensed Modules
xlV. System Utilities as defined in section r of the Terms and Conditions
Other
xlvi. Reports 1
xvvii. Membership Scanning Station
Class Software Solutions Ltd. Software License Agreement 19JAN04 (Terms and Conditions) Page 7 of 7
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300-6400 Roberts Street I Burnaby BC I V5G 4C9
Software Support and Maintenance Agreement
This document (the "Agreement"), consisting of:
a. the cover pages (collectively, "Cover Page"),
b. the attached table of supported Software ("Software Table");
c. the attached description of levels of annual support and maintenance ("Levels Description");
d. the attached Terms and Conditions of Class Support and Maintenance (`Terms and Conditions"); and
e. the attached certificate of insurance ("Certificate of Insurance")
constitutes the agreement between the undersigned customer ("Customer") and Class Software Solutions Ltd.
("CSS") whereby, and CSS and the Customer hereby agree that, the Customer will acquire, and CSS will provide, the
software support and maintenance products and services described in this Agreement for the prices shown in the
table below. Any apparent contradiction among this Cover Page, the Software Table, the Levels Description, and/or
the Terms and Conditions is to be resolved by giving priority to the Terms and Conditions, followed by the Cover
Page, Software Table and Levels Description in that order.
Product or Service Description
1. Supportand Maintenance -,Basic 2. Support and Maintenance - Premium _
RE: 1 or 2: Preferred Renewal Date (Optional) -
ACCREDITATION DISCOUNT AVAILABLE? (To be completed by CSS post
installation date) Yes
dd, yyyy) .
(15%) (-$1,886_)
Total Cost
Payment Terms for Support and Maintenance
1. The cost for the Support and Maintenance services is payable annually in advance and is due in its entirety on
the Support Start Date, unless the Customer has specified a Preferred Renewal Date in the appropriate space in
the table above in which case only the cost of Support and Maintenance prorated from the Support Start Date to
the Preferred Renewal Date is payable on the Support Start Date. Thereafter, the Support and Maintenance fee
is payable in advance on every annual anniversary of the Support Start Date or, if there is a Preferred Renewal
Date, every anniversary of the Preferred Renewal Date (the applicable anniversary being the "Support Renewal
Date"). CSS will provide invoices to the Customer for all such amounts, such invoices due on the later of (a) the
Support Start Date or applicable Support Renewal Date, as applicable, and (b) 30 days after receipt of the
invoice. Overdue invoices shall bear interest at 1 % per month, 12.68% per annum.
2. Subject to the availability of an "Accreditation Discount" as described in the Terms and Conditions, the annual
cost of Support and Maintenance hereunder is 25% of the license fee which would be applicable if the Software
with respect to which Support and Maintenance are provided hereunder were licensed anew by the Customer at
CSS's standard license rates as they exist on the effective date hereof or the Support Renewal Date, as
applicable, provided that, excluding increases due to Support and Maintenance of additional Software from one
contractual year to the next, any increase in costs hereunder from one contractual year to the next may not
exceed ten (10) percent of the Support and Maintenance fees payable for the year just ending upon that Support
Renewal Date.
3. The Customer will pay all shipping & handling charges, applicable sales, use, withholding and excise taxes, and
any other assessments in the nature of taxes, duties or charges however designated on the services rendered
under this Agreement, exclusive of taxes based on the net income of CSS.
4. All prices are in the currency of the country in which the Software is installed.
The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by this
Agreement.
Cost
www.classinfo.coin I + 1 800 661 1196
") Class
CITY OF AUBURN ?
Designated Customer contact
person/CSS System Administrator
Full Legal Customer Name Au g and site; if more than one, provide all
25 W MAIN ST August 2, 2004
Address Date
AUBURN wA 98001
(253) 876-1900
Facsimile
Class Software Solutions Ltd: 1...,
thorize ignatory Date
{The remainder of this page is intentionally BLANK}
Class Software Solutions Ltd. Support and Maintenance 193AN04 (Cover Page) Page 2 of 8
Class
Software Table: Licensed Class Software Modules
Module No. of Copies of
Module Supported/
Maintained Initial Software
Licensing Cost Total Module
Support/
Maintenance Cost
Operating Modules Associated Maintenance Modules in parentheses)
i. Payment Manager 3 $3,500 $2,625
ii. Kiosk $1,750
iii. Internet Client Login 25 Concurrent Users permitted per license $5000
iv. Telephone Client Login min. 4 lines IVR Maintenance $1,750
System Features
Server Based Licensing
V. Receivables $5,000
Vi. Finances nc $1,750
Vii. A S nc (per connector) 2 $15,000 $7,500
Viii. Banks nc $5,000
ix. Multilingual times number of Payment Manager licenses $500
X. Telephone Payment Manager $10,000
A Payment Server Per A S nc $5,000
A. Payment Server Open API (per connector $5,000
xiii. Enterprise Payment Server Credit and, Debit and Electronic Funds Transfer 1 $10,000 $2,500
Internet Modules
xiv. Internet Payment Manager $10,000
System Modules--Costs included in costs of other licensed Modules
xv. System Utilities as defined in the Terms and Conditions
Other
xvi. Reports $500
Total Maintenance Costs
$12,625
Less Partner Incentives
$3,750
Total Cost
$8,875
*Software Table includes licenses to be purchased as at the date of this agreement. Software
modules already licensed by the customer are listed in Schedule A of this agreement.
Total cost indicated is potentially subject to reduction per Accreditation Discount.
As per the Cover Page, the amounts shown in the "Initial Software Licensing Cost" and "Total Module Support/
Maintenance Cost" columns of the Software Table are applicable only upon the date of entry into this Agreement, and
are subject to change thereafter in accordance with this Agreement's terms.
Class Software Solutions Ltd. Support and Maintenance 25NOV03 (Software Table) Page 3 of 8
;) class
Description of Levels of Annual Support and Maintenance
1. Basic
Basic Annual Support and Maintenance includes the following:
• Unlimited toll free telephone support between 6:00 am and 5:30 pm Pacific Time ("PT") Mon - Fri
("Regular Support Hours") and
• Unlimited dial-in access support (see Notes a, b and c below for qualification) for "system down"
issues (only) between 5 AM - 6 AM and 5:30 PM - 11:00 PM (PT) weekdays and 5:00 a.m. -
11:00 p.m. (PT) Saturday and Sunday ("Extended Support Hours")
• Limited report customization & query support (i.e. calls of 15 minutes duration or less)
• Access to CSS's secure Web site
• Regular documentation and communications provided to the Customer
• New Releases and Versions as described in the Terms and Conditions
Notes:
a) Qualifying sites must have direct dial-in and Internet e-mail capability for Extended Support
Hours.
b) Support calls placed during Extended Support Hours must be placed through an authorized
contact person.
c) Under Basic Annual Support and Maintenance, Support during Extended Support Hours is
available only for "system down" problems that result in the Customer's inability to fulfill critical
business functions (i.e. those pertaining to core functionality such as processing registrations,
memberships, rentals) and that have no reasonable work-around. All other calls - including all
calls related to upgrades - placed by the Customer within Extended Support Hours will be billed
to the Customer under a separate agreement.
2. Premium
Premium Support provides for the same services as Basic Annual Support and Maintenance, and
additionally provides that, subject to Notes a) and b) above, all Support available during Basic
Support Hours is also available during Extended Support Hours.
3. Holiday Hours
The CSS Support Desk will be open with reduced staff on the following Canadian statutory holidays:
Good Friday; Victoria Day (3`d Monday in May); Canada Day (July 1S); BC Day (1St Monday in
August); Thanksgiving (2nd Monday in Oct); Remembrance Day (November 11); Boxing Day
(December 26). On the following holidays, the CSS Support Desk will be closed: New Year's Day,
Christmas Day, Labor Day (1St Monday in September).
Class Software Solutions Ltd. Support and Maintenance 197AN04 (Levels Description) Page 4 of 8
Class
Terms and Conditions of Class Support and Maintenance
1. DEFINITIONS
1.1. Definitions - For the purposes of interpreting this Agreement, the following
terms will have the following meanings:
a) "Initial Installation " means the date upon which any of the Software has
first been installed on any server computer owned or controlled by the
Customer.
b) "Maintenance" means the provision of error investigation and repair
services and of new Versions and Releases, as described in Section 3.1.
c) "Module" means a single type of Software referred to in any particular line
item of the Software Table, such that each such line item refers to one, and
only one, Module, regardless of the number of copies referred to in such
line item, except in line item xv to which h) applies.
d) "Release" means any release, update, patch, set of revisions, or
bug/permanent fix or temporary bypass solution released by CSS to its
customers generally during the term of this Agreement, which provides
enhancements and/or error corrections to the then-current Version or
Release, and where a new Version has been released and no new
Release has been released since the release of that Version, that Version
will also constitute a Release for the purpose of determining whether
Support or Maintenance is available with respect to that Version. New
Releases will be denoted by an increase to the version number to the right
of the decimal point such as from Release 1.1 to Release 1.2.
e) "Software" means computer code and programs, in executable code form
only, including related data files, rules, parameters and documentation,
which have been created or licensed by CSS and are identified in the
Software Table as being subject to Support and Maintenance in connection
with this Agreement, and any Versions or Releases thereof provided by
CSS, in executable form.
f) "Support" means the ongoing telephone and dial-in support and problem
resolution to assist the Customer in the use of the Software. It may include
but is not limited to response to inquiries regarding the operation,
installation, administration and general technical assistance requested by
the Customer. Support also includes, provided that such assistance can be
provided in fifteen (15) minutes or less:
i) Limited assistance with report customization and the development of
custom queries, and
ii) Assistance to isolate the source of problems and/or to troubleshoot
difficulties resulting from sources other than CSS products or
services, such as:
• General network support - for example network access, printing, backup &
restoration;
• PC hardware trouble shooting;
• PC setup, configuration and optimization;
• Network operating system configuration and functionality;
• Basic Microsoft Corporation 'Windows" functionality (e.g. using File
Manager or Explorer);
Modem configuration & setup;
• Data corruption due to lack of disk space; and
• Loss of supervisor or other password
but expressly excludes any services or assistance relating to database issues,
unless acquired under an addendum to this Agreement.
g) "Support Start Date" means the day ninety (90) days after Initial
Installation.
h) "System Utilities" includes the following Modules: Accounting Processes,
Central Login, Class Log File, Copy Class Database, Edit Class Database,
Maintain Class Database, MSDE Tool, Oracle Setup Utility, Query Tool,
System Maintenance, Upgrade Class Database and View Components.
i) "Version" means a version of the Software providing a particular
functionality, while a new Version of the Software will provide
new/additional functionality and/or improvements to a previous Version.
New Versions will be denoted by a change to the version number to the left
of the decimal point such as from Version 1.0 to Version 2.0.
1.2. Headings - The headings contained in this Agreement are inserted for
convenience and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
2. SUPPORT SERVICES
2.1. CSS will provide to the Customer Support for:
a) the Release of the Software that is from time to time the most recently-
released, generally available Release, and
b) for the twenty-four (24) months immediately following general availability of
the Release described in a), for the Release which immediately precedes
that Release. Support services will not be provided for any non-current
Version or Release after twenty-four (24) months from the date of
availability of the newer Version or Release.
3. MAINTENANCE SERVICES
3.1. With respect to any Release of the Software supported at the time, upon
receipt of notification from the Customer's authorized contact personnel of an
apparent error in the Software, CSS will use commercially reasonable efforts to
promptly investigate the issue and determine whether or not there is in fact an
error and to advise the Customer that either an error does not exist, or confirm
that one does exist and what, if any, work-around exists. Errors will be deemed
to be any design or programming error in the Software attributable to CSS which
prevents the Software from substantially complying with the functionality as set
out in the user documentation (on-line or hard-copy) delivered with the Software
and which materially affects the use, function or performance of the Software.
When errors are confirmed, CSS will use commercially reasonable efforts to
correct such errors and provide Customer with a correction or service pack for
the Software as soon as it is practical in CSS's sole discretion.
3.2. CSS will provide to the Customer, either physical form by mail or courier or
in electronic form via the Internet, new Releases and Versions (and appropriate
documentation) as such Releases or Versions (and documentation) become
available, without additional charge.
4. ASSIGNMENT OF PRIORITIES FOR SUPPORT ISSUES
4.1. New support incidents are assigned one of the following four priority levels,
each with its respective standard completion target:
Call Priority Description Standard Completion
Level Target
A - Down Fatal issues that result in the Within 12 hours.
Customer's inability to fulfill critical
business functions (i.e. those
pertaining to core functionality such
as processing registrations,
memberships, rentals) and that have
no reasonable work-around.
B - Urgent Serious issues significantly impacting Within 24 hours.
use of system but do not prevent
core functions (such as processing
registrations, memberships, rentals)
from being fulfilled.
C - Normal All other issues, except those Within 36 hours.
classified as D (Low).
D - Low Issues that are not time-sensitive or None
may be undertaken as customer
service initiatives outside the scope
of this Agreement.
Customer will request a ranking of the call priority when initially reporting the
incident. Should there be any disagreement over the priority assigned to a
particular incident, or any other aspect of its handling, by CSS support staff,
Customers are encouraged to first speak directly to the support representative
dealing with the issue in order to arrive at an acceptable solution. In cases where
escalation is desired or necessary, please contact the Supervisor, Support
Services with any concerns you may have (phone 1-500-663-4991).
Class Software Solutions Ltd. Support and Maintenance 193AN04 (Terms and Conditions) Page 5 of 8
Class
Terms and Conditions of Class Support and Maintenance
5. EXCLUDED SUPPLIES AND SERVICES
5.1. Without limitation, the following supplies and services are excluded from
Support and Maintenance:
a) Services which are required to remedy problems that stem from changes to
or defects in system configuration upon which the Software was initially
installed;
b) Services which are required to remedy problems which do not stem from
any defect in Software;
c) Services which are required to remedy problems caused by lack of training
of Customer's personnel improper treatment or use of the Software;
d) Full report customization service;
e) Any and all hardware support, maintenance or troubleshooting issues,
except as described in section 1.1 1.1.f)ii), regardless of the source of such
hardware.
6. FEES AND PAYMENT
6.1. In consideration of the Support and Maintenance provided hereunder,
Customer agrees to pay CSS the fees described on the Cover Page, as modified
pursuant to this Agreement. In the event the Customer requires Support and
Maintenance for additional Software, the Customer agrees to pay CSS the
additional Support and Maintenance fees applicable based upon the fees then in
effect, prorated from the date of agreement to acquire such services to the
Support Renewal Date. Payment, other than amounts, which may be adjusted
under these Terms and Conditions, will be in accordance with the payment terms
set out on the Cover Page.
6.2. Unless the Software Table indicates otherwise, the fees charged
hereunder are applicable to Support and Maintenance of Software used with
respect to only a single database of Customer data. If the Customer, after
entering this Agreement, places in service one or more additional databases to
be used in relation to the Software, then for each such additional database an
additional 25% of all Support and Maintenance fees charged hereunder,
exclusive of such extra database fees, will be payable. The Customer will notify
CSS as soon as reasonably possible of the installation or use of any such
additional database(s).
6.3. If the Customer has indicated to CSS that the Customer intends to qualify
for an "Accreditation Discount", then the total cost of Support and Maintenance
hereunder will be discounted by fifteen (15) per cent, and the Cover Page
modified accordingly by CSS, provided that on or before the Support Start Date,
a CSS representative has verified to CSS's reasonable satisfaction that all of the
following criteria are met:
a) Approved dial-in access - The Customer provides means approved by
CSS, and appropriate internet connections, for dial-in access by CSS
personnel at any time except for reasonable system downtime for system
maintenance and in particular without exception relating to the Customer's
security requirements;
b) CSS System Administrator(s) - The Customer has one or more employees
in the department or agency using the Software (each a "CSS System
Administrator's trained on all of the Software, who are available to work
with other users of the Software and able to handle most of the basic
questions from the Customer's users of the Software. The CSS System
Administrators must also be familiar with the version of the Microsoft
Corporation "Windows:" based operating system in use by the Customer,
be familiar with the setup and installation of the Software on workstations
used to access the Software, and know the administrative login and
password. All communications between the Customer and CSS are to
occur through a CSS System Administrator, who must be authorized to
make policy decisions for the Customer relating to the Software;
c) Electronic Communication - The CSS System Administrator(s) is (are)
capable of communicating with CSS via the internet and electronic mail for
support and file transfer purposes;
d) Database Administrator - The Customer has one or more employees in the
department or agency using the Software with expertise relating to the
database platform used by the Software, evidenced either by certification
or course work reasonably satisfactory to CSS, or by equivalent experience
including the ability to install, maintain, backup and restore, troubleshoot,
and optimize the database environment, and the Customer assumes full
responsibility for maintaining the Customer's database environment such
that CSS has no obligations to provide any support whatsoever relating to
the Customer's database(s); and
e) Network Administrator - the Customer has one or more employees in the
department or agency using the Software with expertise relating to the
network operating system by which client workstations are connected to or
use the Software, evidenced either by certification or course work
reasonably satisfactory to CSS, or by equivalent experience including the
ability to install, maintain, troubleshoot, and optimize the network, and the
Customer assumes full responsibility for maintaining the Customer's
network environment such that CSS has no obligations to provide any
support whatsoever relating to the network;
and if at any time during the term of this Agreement any of these criteria are not
met, the Accreditation Discount will no longer be valid and the amount
discounted from the total fees for Support and Maintenance as a result of such
Accreditation Discount, pro-rated from the date such criteria were first not met
until the next-following Support Renewal Date, will immediately be payable by
the Customer to CSS, such amount to be invoiced by CSS to the Customer. The
Customer will immediately notify CSS upon any of these criteria no longer
being met.
6.4. If at any time after the Customer has initially licensed any of the Software
from CSS, the Customer's right to receive Support and Maintenance, or
comparable services, from CSS under this Agreement or a comparable
agreement has lapsed for any reason whatsoever, voluntarily or otherwise, and
the Customer wishes to receive Support and Maintenance from CSS, the
Customer will pay to CSS, prior to re-instatement of Support and Maintenance
services:
a) all fees that would have been payable hereunder had this Agreement been
in force during the time during which Support and Maintenance rights had
so lapsed, and
b) an additional fee of forty (40) per cent of the license fees which would be
payable if the Software to be subject to such Support and Maintenance
were licensed anew at CSS's then-standard license fees on the date of re-
instatement of Support and Maintenance rights.
7. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS
7.1. Customer will provide, at no cost to CSS:
a) sufficient space to allow CSS personnel on the Customer's site to perform
the on-site Services acquired hereunder;
b) office supplies and services such as photocopying, facsimile and telephone
access;
c) without limiting a), education and training facilities adequate to the training
services acquired hereunder, including classroom space, networked PCs
(minimum 1 PC for every two training participants), networked printing
capability, computer display/projection facilities, and flip chart or
whiteboard, plus markers and other ancillary supplies;
d) subject to the security requirements of the Customer, 24 hour access to the
Customer's system via either an always-available telephone circuit or an
always available internet connection to enable CSS or its designated
representative to perform any of the obligations placed upon CSS by this
Agreement.; and
e) subject to the security requirements of the Customer remote dial
up/internet access methods approved by CSS to allow CSS to
remotely diagnose and correct errors in the Software and provide other
Services
7.2. Without limiting the Customer's obligations, Customer will:
a) use its best efforts to upgrade to any new Release or Version of the
Software as soon as possible after becoming aware of its availability;
b) ensure that at all times at least one current staff person of the Customer,
who is the Customer contact person named on the Cover Page and per c),
has been fully trained on the Software;
c) designate by written notice a single site and single person as the point of
contact for telephone or other contact, which site and/or person the
Customer may change upon 14 days prior notice; and
d) provide particulars of the Customer's system configuration in sufficient
detail to allow CSS to effectively provide Services hereunder.
Class Software Solutions Ltd. Support and Maintenance 19JAN04 (Terms and Conditions) Page 6 of 8
Class
Terms and Conditions of Class Support and Maintenance
8. REPRESENTATIONS AND WARRANTIES
8.1. Insurance - CSS represents and warrants that it does and will at all times
during the term of this Agreement maintain general liability insurance as
described in the Certificate of Insurance.
8.2. Limited Warranty of Services - CSS warrants that all services provided
hereunder will be performed in full conformity with the Agreement, with the skill
and care which would be exercised by those who perform similar services at the
time the services are performed, and in accordance with accepted industry
practice. In the event of a breach of the express warranties contained herein
and/or in the event of non-performance and/or failure of CSS to perform the
services in accordance with the Agreement, CSS will, at no cost to Customer, re-
perform or perform the services so that the services conform to the warranties.
9. EXCLUSION OF OTHER WARRANTIES AND LIMITATION OF
LIABILITY
9.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE WARRANTIES
SET OUT IN SECTION 8.1 AND 8.2 ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND
WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (in contract or tort)
OR CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE REGARDING
MERCHANTABILITY, FITNESS FOR PURPOSE, CORRESPONDENCE TO
SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY.
9.2. NO INDIRECT DAMAGES - IN NO EVENT WILL CSS BE LIABLE TO
CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (in contract or tort) IN CONNECTION WITH THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST
SAVINGS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES, EXCEPTING LOSS OR DAMAGE FOR PERSONAL INJURY OR
DAMAGE TO TANGIBLE PROPERTY RESULTING FROM THE SOLE
NEGLIGENCE OF CSS.
9.3. LIMITS ON LIABILITY - IF FOR ANY REASON, CSS BECOMES LIABLE
TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER
DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF ACTION (in contract or tort), EXCEPTING LIABILITY FOR PERSON
INJURY OR DAMAGE TO TANGIBLE PROPERTY, INCURRED IN
CONNECTION WITH THIS AGREEMENT, THEN:
a) THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES, INJURY,
AND LIABILITY INCURRED BY CUSTOMER AND ALL OTHER PARTIES
IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO AN
AMOUNT EQUAL TO THE CHARGES PAID TO CSS FOR THE
SERVICES WHICH GAVE RISE TO THE CLAIM FOR DAMAGES; AND
b) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
PROCEEDING AGAINST CSS ARISING OUT OF THIS AGREEMENT OR
RELATING TO RELEASES OR SERVICES MORE THAN TWO YEARS
AFTER THE CAUSE OF ACTION HAS ARISEN.
9.4. SEPARATE ENFORCEABILITY - SECTIONS 9.1, 9.2 AND 9.3 ARE TO
BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE
INDIVIDUALLY ENFORCEABLE.
10. TERM
10.1. Term - The term of this Agreement will commence on the Support Start
Date and, subject to termination as provided herein, will continue until the
following Support Renewal Date, after which it will be automatically renewed for
subsequent one year terms on the same terms and conditions as set out herein
(with the exception of the fees payable which may be revised by CSS in
accordance with this Agreement) upon CSS rendering an invoice therefor unless
terminated by the Customer at least ninety (90) days prior to the Support
Renewal Date upcoming from time to time.
11. TERMINATION
11.1. Termination - This Agreement will terminate:
a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and fails to
remedy the default within 30 days after receiving written notice thereof from
the non-defaulting party;
b) at the option of either party if the other party becomes insolvent or bankrupt
or makes an assignment for the benefit of creditors, or if a receiver or
trustee in bankruptcy is appointed for the other party, or if any proceeding
in bankruptcy, receivership, or liquidation is instituted against the other
party and is not dismissed within 30 days following commencement
thereof;
c) at CSS' option upon the expiry of sixty (60) days following issuance by
CSS of an invoice to the Customer for fees payable under this Agreement
and such invoice remaining unpaid, provided that CSS has prior to
terminating under this provision provided the Customer with at least ten
(10) days' prior written notice of such non-payment, which minimum 10-day
period may expire before, simultaneously with, or after the sixty day period;
or
d) at either party's option if the other party assigns or attempts to assign this
Agreement other than as expressly permitted by this Agreement;
provided that these rights of termination will be in addition to all other rights and
remedies available to the parties for any breach or default hereunder.
11.2. Suspension of Obligations - If either party should default in the
performance or observance of any of its obligations hereunder, then, in addition
to all other rights and remedies available to the non-defaulting party, the non-
defaulting party may suspend performance and observance of any or all its
obligations under this Agreement, without liability, until the other party's default is
remedied, but this Section will not permit the Customer to suspend its obligation
to make payments owing in respect of Support and other Software Services.
12. GENERAL
12.1. Complete Agreement - This Agreement, including Schedule A, as modified
and affected by CSS's standard Software license fees and the terms of any
agreement between CSS and the Customer relating to licensing of Software (as
opposed to the mere provision of Software, to which this Agreement relates in
respect of Releases and Versions), is the complete and exclusive statement of
the Agreement between the parties with respect to the subject matter contained
herein and supersedes and merges all prior representations, proposals,
understandings and all other agreements, oral or written, express or implied,
between the parties relating to the matters contained herein. This Agreement
may not be modified or altered except by written instrument duly executed by
both parties.
12.2. Force Majeure - Dates or times by which either party is required to perform
under this Agreement excepting the payment of any fees or charges due
hereunder will be postponed automatically to the extent that any party is
prevented from meeting them by causes beyond its reasonable control.
12.3. Notices - All notices and requests in connection with this Agreement will be
given or made upon the respective parties in writing and will be deemed given as
of the third day following the day the notice is faxed, providing hardcopy
acknowledgment of successful faxed notice transmission is retained. Notice may
also be deposited in the Canadian mails(or if the Customer is resident outside
Canada and is rendering the notice, in the mails of that country), postage pre-
paid, certified or registered, return receipt requested, and addressed to the
parties as indicated on the face of this Agreement:
12.4. Governing Law - This Agreement and performance hereunder will be
governed by the laws applicable in the jurisdiction where the Software is
situated, excepting in the case of Louisiana when the laws of California will
apply, or in the case of Quebec when the laws of Ontario, Canada will apply.
12.5. Non-Assignability - This Agreement is not assignable by the Customer, and
any assignment, purported assignment or attempt to assign by the Customer will
be a material breach of this Agreement and will further be void. CSS may assign
its Support or Maintenance obligations under this Agreement to CSS's system
integrators or resellers.
Survival - Sections 6.4, 9 and 12 will survive termination and expiration of this
Agreement.
Class Software Solutions Ltd. Support and Maintenance 193AN04 (Terms and Conditions) Page 7 of 8
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Schedule A
Terms and Conditions of Class Support and Maintenance
Module No. of Copies of
Module Supported/
Maintained Initial Software
Licensing Cost Total Module
Support /
Maintenance Cost
0 ratio Modules Associated Maintenance Modules In parentheses)
xvii. Program Registration (Program Maintenance 13 $1,750 $5,688
xviii. FlexRe (automatically licensed if i is licensed ±
xix. Memberships (Membership Maintenance $1,750
xx. Facility Booking (Facility Maintenance 7 $1,750 $3,063
xxi. QuickRez licensed only with Services and xx
xxii. Point of Sale POS Maintenance $1,750
xxiii. Sort Scheduling $1,750
xxiv. Calendar $500
xxv. Telephone Client Lo ins min. 4 lines OVR Maintenance $1,750
System Features
Server Based Licensing
xxvi. Randomization $5,000
xxvii. Affinity
xxviii. Customers nc $5,000
xxix. Portals nc $5,000
xxx. Assets nc $5,000
xxxi. Finances nc 1 $1,750 $437
xxxii. Brochures nc 1 $1,750 $437
xxxiii. Multilingual times total of items 1 and iv licenses $500
xxxiv. Telephone Program Registration & Voice Server $5,000
xxxv. Payment Processing Server Credit and, Debit and Electronic Funds Transfer $5,000
User-Based Licensing
xxxvi. Integrated Workstation Debit Card $250
xxxvii. POS Touch Screen $500
xxxviii. Kiosk $1,750
Internet
xxxix. Internet Program Registration $5,000
A Internet Facility Bookin $5,000
A. Maps $2,500
xlii. Internet Sports Scheduling $5,000
xliii. Internet Facili Availability $5,000
xliv. Internet Client Login 25 Concurrent Users permitted per license) $5,000
System Modules-Costs included in costs of other licensed Modules
xlv. System Utilities as defined in the Terms and Conditions
Other
xlvi. Reports 1 $500 $125
xvvii. Membership Scanning Station $500
Total Maintenance Costs $9,750
Less Accreditation Discount (-15%) $1,463
Total Cost $8,287
Class Software Solutions Ltd. Support and Maintenance 191AN04 (Terms and Conditions) Page 8 of 8
Class
300-6400 Roberts Street I Burnaby BC I V5G 4C9
Third Party Product Purchase Agreement
This document (the "Agreement"), consisting of:
a. the cover pages (referred to collectively as the "Cover Page" if and only if executed as the cover page to the
complete Agreement, and otherwise subject to the Terms and Conditions),
b. the attached Terms and Conditions of CSS Third Party Product Purchase Agreement ('Terms and Conditions"),
and
c. any additional purchase order documentation delivered to CSS by the Customer
constitutes the entire agreement between the undersigned customer ("Customer") and Class Software Solutions Ltd.
("CSS") whereby, and CSS and the Customer hereby agree that, CSS will provide to the Customer the Third Party
Products described in this Agreement, for prices as described in the Third Party Products Table below as modified
pursuant to the Terms and Conditions. Any apparent contradiction among this Cover Page, the Terms and Conditions
and any additional purchase order documentation delivered to CSS by the Customer is to be resolved by giving
priority to the Terms and Conditions, followed by the additional purchase order documentation, and then the Cover
Page.
Third Party Products Table: Third Party Products Description, Volumes and Prices
Product Units Unit Price Total Cost
Symbol LS4006i Scanners (Keyboard Wedge Version 1 $405 $405
Ma Tek Credit Card Reader - Tracks 1 & 2 (wedge) 3 $105 $315
Total Cost: $720
Shipping Details
If this page is being provided by the Customer as part of purchase order documentation as described in section 2.2 of
the Terms and Conditions, the desired date of receipt of the shipment of Third Party Products referred to herein is:
{The remainder of this page is intentionally BLANK}
www.classinfo.com I + 1 800 661 1196
*') cuss
The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement, or if
this page is delivered by the Customer as purchase order documentation pursuant to section 2.2 of the Terms and
Conditions, by the terms of this page as modified by the Agreement.
CITY OF AUBURN
Full Legal Customer Name
25 W MAIN ST
uthorized Signatory
August 2, 2004
Address for shipment delivery, if other than
as shown on left:
IM W WA 98001
(253) 876-1900
Facsimile
Class Software Solutions Ltd.
Date
Date
Class Software Solutions Ltd. Third Party Product Purchase Agreement 193AN04 (Cover Page) Page 2 of 4
Class
Terms and Conditions of Class Third Party Product Purchase Agreement
1. INTERPRETATION
1.1. Definitions - For the purposes of interpreting this Agreement, the following
terms will have the following meanings:
a) "Agreement" means this Class Software Solutions Ltd. Third Party Product
Purchase Agreement.
b) "CSS" means Class Software Solutions Ltd.
c) "Customer" means the legal entity other than CSS entering this Agreement.
d) "Related Documentation" means any end user specifications, manuals,
instructions, and other materials, and any copies of any of the foregoing, in
any medium, related to the Third Party Products and supplied by CSS to the
Customer with the Third Party Products.
e) 'Third Party Products' means those hardware, firmware and/or software
products, provided to CSS by third parties, listed on the Cover Page,
together with all user manuals and other documents accompanying the
delivery of the Third Party Products, provided that the Third Party Products
shall not include software developed by CSS.
f) 'Third Party Products Table" means the table on the Cover Page.
g) "Warranty Period" means, in relation to any particular Third Party Products,
the 90 days immediately following delivery of that Third Party Product to the
Customer.
1.2. Headings - The headings contained in this Agreement are inserted for
convenience and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
2. PURCHASE AND SALE; SECURITY: DELIVERY
2.1. Purchase Commitment and Price - CSS hereby agrees to sell to Customer,
and Customer hereby agrees to purchase from CSS, the Third Party Products
listed in the Third Party Products Table in the volumes and at the prices described
therein, subject to these Terms and Conditions.
2.2. Delivery - CSS will ship all or any part of the Third Party Products to the
Customer as soon as reasonably possible (or, if the below-described purchase
order documentation does not seek immediate shipping, at the time CSS
considers reasonable in order to meet the desired delivery date described) after
receipt by CSS, and acceptance of the terms thereof by CSS, of a purchase order
from the Customer specifying the particular Third Party Products sought, the
number of such Third Party Products sought, the price payable therefore, and the
desired date and location of delivery. Any such purchase order must, at a
minimum, include a page, in the form of the Cover Page, modified to indicate the
information described above relating to the particular shipment, executed by the
Customer. In any case, all shipments are F.O.B. Vancouver, British Columbia,
Canada.
2.3. Changes by Customer to Delivery Schedule - Following delivery by the
Customer of any purchase order documentation described in section 2.2, no
changes by the Customer to the shipment schedule described therein will be
permitted unless CSS is notified thereof in writing at least ninety (90) days in
advance of the delivery date sought in such purchase order documentation.
2.4. Acceptance of Purchase Orders - Purchase orders delivered by the
Customer to CSS pursuant to are not binding upon CSS until accepted by CSS in
writing. In any case, despite any indication to the contrary contained in any such
purchase order documentation, no terms or conditions on purchase order
documentation issued by the Customer, other than the information required
pursuant to section 2.2, will be binding upon CSS, nor will any such terms or
conditions modify or supplement this Agreement in any way, notwithstanding the
fact that CSS may accept or otherwise approve such purchase orders. CSS
reserves the right to refuse any such purchase order for any reason not contrary
to this Agreement, including without limitation pricing differences as described in
section 3.2.
2.5. Additional Third Parry Products - The Customer may purchase Third Party
Products in addition to those listed in the Third Party Products Table by issuing
additional purchase order documentation as described herein, provided that the
supply (or non-supply) of such additional Third Party Products will be subject to
this Agreement as though such additional Third Party Products had been included
in the Third Party Products Table on the date of execution of the Cover Page
subject to:
2.6. the price for such additional Third Party Products being subject to
agreement between the parties each in their own absolute discretion, and
a) CSS having a right to discontinue delivery of such additional Third Party
Products upon at least ninety (90) days written notice to the Customer
without any liability to the Customer whatsoever for such discontinuance.
2.7. Charge On/Security Interest in Third Party Products - CSS shall have a
charge against/ security interest in all Third Party Products, and all proceeds
arising therefrom, until Customer has paid CSS in full for all amounts owing from
Customer to CSS in connection with the particular shipment of which any Third
Party Products form a part. Customer shall execute or cause to be executed all
instruments and do or cause to be done all acts that CSS, acting reasonably,
requires to effect, perfect, register or record such chargestsecurity interests. In the
event of default in payment or other breach by Customer, CSS shall, in addition to
all other rights afforded by law, have all of the rights and remedies of a secured
creditor under the Personal Property Security Act of the jurisdiction in which the
Third Party Products is situate or Article Nine of the Uniform Commercial Code, as
applicable.
3. CHARGES AND PAYMENTS
3.1. Prices - The pricing applicable to Third Party Products is as set out on the
Cover Page, as modified under this Agreement.
3.2. Pricing Variability - The Customer acknowledges that:
a) the prices described in the Third Party Products Table are applicable for six
(6) months after the date of execution hereof, and
b) such prices are based upon the Customer taking delivery of the full number
of any particular Third Party Product listed in the Third Party Products Table
in a single shipment and the Customer hereby agrees that after the expiry of
such initial six-month period, or in case of the Customer seeking, in a
particular shipment, delivery of less than all of the Third Party Products of a
particular type listed on the Third Party Products Table, the actual prices
may be higher. Prior to shipment of any Third Party Products which would
be subject to pricing which differs from that described on in the Third Party
Products Table, CSS will notify the Customer of any such different pricing
and the Customer will accept such different pricing, as mutually agreed
between the Customer and Class, in writing.
3.3. Taxes and Other Charges - The Customer will pay all shipping & handling
costs and all applicable sales, use, withholding and excise taxes, and any other
assessments against the Customer in the nature of taxes, duties or charges
however designated on the Third Party Products, on or resulting from this
Agreement, exclusive of taxes based on the net income of CSS.
3.4. Currency - All prices shown or otherwise referred to in or in connection with
this Agreement are in the currency of the country in which the Customer is located
as described on the Cover Page.
3.5. Invoices - CSS will invoice the Customer for applicable amounts upon
shipment of any Third Party Products. All invoices are payable within 30 days of
receipt thereof, and such receipt is deemed to occur as though such invoices
were notices sent pursuant to section 9.3 of the Terms and Conditions unless
such invoices physically accompany the shipped Third Party Products in which
case receipt is deemed to occur upon the date of actual delivery of such shipment
to the Customer. Overdue invoices will bear interest at 1% per month, 12.68% per
annum.
4. PROPRIETARY RIGHTS
4.1. Third Party Proprietary Rights and Indemnity by Customer - The Customer
acknowledges that any Third Party Products supplied by CSS hereunder are
supplied by CSS as a reseller thereof, and that the Third Party Products are
subject to the intellectual property rights of the various third party developers
and/or manufacturers thereof, as applicable, including without limitation copyright,
trade secret, trademark and patent rights. The Customer will maintain in
confidence and not use or disclose any and all confidential business or technical
information connected with any Third Party Product except as specifically
permitted by a party which has legal control of those rights, and the Customer will
defend or settle any claim made or any suit or proceeding brought against CSS
insofar as such claim, suit or proceeding is based on an allegation that any Third
Party Product provided to the Customer hereunder has been installed, used or
otherwise treated by the Customer or any client or customer of the Customer in
violation of the proprietary rights of any third party, or on an allegation that the
Class Software Solutions Ltd. Third Party Product Purchase Agreement 193AN04 (Terms and Conditions) Page 3 of 4
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Terms and Conditions of Class Third Party Product Purchase Agreement
Customer or any client or customer of the Customer has disclosed or used any
confidential business or technical information connected with any Third Party
Product, provided that CSS will notify the Customer in writing promptly after the
claim, suit or proceeding is known to CSS and will give the Customer information
and such assistance as is reasonable in the circumstances. The Customer will
have sole authority to defend or settle any such claim at the Customer's expense.
The Customer will indemnify and hold CSS harmless from and against any and all
such claims and will pay all damages and costs finally agreed to be paid in
settlement of such claim, suit or proceeding.
4.2. Third Party Products which are Software - The Customer acknowledges that
the possession, installation and use of all Third Party Products which are software
shall be governed by the terms of the software license(s) of the persons other
than CSS who possess the rights to control such possession, installation and use.
5. SERVICES
5.1. Despite any other provision of this Agreement, CSS is not required to
provide any services whatsoever under this Agreement. The Third Party Products
are eligible for services to be provided by CSS under separate agreement with
CSS, should the Customer wish to acquire such services.
6. WARRANTY
6.1. Warranty - CSS warrants to the Customer that CSS has the right to deliver
the Third Party Products subject to any documentation accompanying such Third
Parry Products at the time of delivery and/or any licensing mechanisms, physical,
electronic or otherwise, included in any Third Party Products that are software.
6.2. Warranties Provided by Third Party Suppliers - Third Party Products are
warranted by the manufacturers thereof in accordance with the warranty
statements accompanying delivery of the Third Party Products, and the Customer
agrees that the Customer will rely solely on such Third Party Product warranties
and the Customer shall make no claim against CSS on account of any warranty,
express or implied, which may apply to any Third Party Product.
7. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
7.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE WARRANTY
SET OUT IN SECTION 6.1 AND THE MANUFACTURERS' WARRANTIES,
DOCUMENTATION FOR WHICH ACCOMPANIES THE THIRD PARTY
PRODUCTS AS DESCRIBED IN 6.2 ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND
WHATSOEVER APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW (IN
CONTRACT OR TORT) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO
THOSE REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE, DESIGN,
CONDITION, OR QUALITY. WITHOUT LIMITING THE ABOVE, CSS DOES
NOT WARRANT THAT ANY THIRD PARTY PRODUCT PROVIDED
HEREUNDER WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT
THE OPERATION THEREOF WILL BE FREE FROM INTERRUPTION OR
ERRORS.
7.2. NO INDIRECT DAMAGES - WITHOUT LIMITING THE GENERALITY OF
SECTIONS 7.1, 7.3 or 7.4, IN NO EVENT WILL CSS BE LIABLE TO THE
CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (IN CONTRACT OR TORT) (EVEN IF ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES) INCLUDING BUT NOT LIMITED TO
DAMAGES FOR LOST PROFITS, LOST SAVINGS, OR INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES, EXCEPTING LOSS OR DAMAGE
FOR PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY
RESULTING FROM THE SOLE NEGLIGENCE OF CSS, IN CONNECTION WITH
THIRD PARTY PRODUCTS PROVIDED HEREUNDER OR IN ANY OTHER
RESPECT RELATING TO THIS AGREEMENT.
7.3. LIMITS ON LIABILITY - DESPITE ANY OTHER PROVISION OF THIS
AGREEMENT, IF, FOR ANY REASON, CSS BECOMES LIABLE TO THE
CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER
DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF ACTION (IN CONTRACT OR TORT), EXCEPTING LIABILITY FOR
PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY, INCURRED IN
CONNECTION WITH THIS AGREEMENT, THEN CSS'S ENTIRE LIABILITY AND
THE CUSTOMER'S EXCLUSIVE REMEDY WILL BE, AT CSS'S OPTION, TO
REPAIR, PROVIDE AN EQUIVALENT REPLACEMENT FOR OR REFUND THE
PURCHASE PRICE OF ANY THIRD PARTY PRODUCT WHICH HAS CAUSED
THE DAMAGES RESULTING IN SUCH LIABILITY OF CSS WHICH THIRD
PARTY PRODUCT IS RETURNED, SHIPPING COSTS PREPAID, PROPERLY
PACKAGED WITH THE DULY AUTHORIZED CSS RETURN PERMIT, TO CSS'S
DESIGNATED OFFICE DURING THE THIRD PARTY WARRANTY PERIOD.
7.4. THIRD PARTY PRODUCTS MODIFICATION - ANY THIRD PARTY
WARRANTY OBLIGATIONS OR ANY CSS WARRANTY OBLIGATIONS
HEREUNDER WILL BE VOID IN THE EVENT CUSTOMER MODIFIES THE
THIRD PARTY PRODUCT IN QUESTION OR USES ANY ATTACHMENT,
FEATURE, OR DEVICE WHICH IS NOT SPECIFIED AS AN APPROVED
ATTACHMENT IN THE RELATED DOCUMENTATION FOR THE THIRD PARTY
PRODUCT WITHOUT FIRST OBTAINING CSS'S WRITTEN APPROVAL.
7.5. SEPARATE ENFORCEABILITY - SECTIONS 7.1 THROUGH 7.4 ARE TO
BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE
INDIVIDUALLY ENFORCEABLE.
8. TERMINATION
8.1. Termination - This Agreement will terminate:
a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and fails to
remedy the default within 30 days after receiving written notice thereof; and
b) without limiting a), at the option of CSS if the Customer breaches section 3
of this Agreement, including without limitation by failure to pay any invoice
within 30 days of receipt thereof provided that the right of termination will be
in addition to all other rights and remedies available to the parties for breach
or default by the other.
8.2. Suspension of Obligations - If either parry should default in the performance
or observance of any of its obligations hereunder, then, in addition to all other
rights and remedies available to the non-defaulting party, the non-defaulting party
may suspend performance and observance of any or all its obligations under this
Agreement, without liability, until the other parry's default is remedied, but this
section will not permit the Customer to suspend its obligation to make payments
owing in respect of Third Party Products already brought into stock by CSS on
account of the Customer having provided CSS with purchase order
documentation in relation thereto.
9. GENERAL
9.1. Complete Agreement - This Agreement including all additional purchase
order documentation provided by the Customer to CSS and accepted by CSS
according to this Agreement constitutes the complete and exclusive statement of
the agreement between CSS and the Customer relating to the subject matter
hereof, and supersedes all oral or written proposals, prior agreements and other
prior communications between the parties, concerning that subject matter.
9.2. Force Majeure - Dates or times by which either party is required to perform
under this Agreement, excepting the payment of any fees or charges due
hereunder, will be postponed automatically to the extent that any party is
prevented from meeting them by causes (other than inability to pay) beyond its
reasonable control.
9.3. Notices - All notices and requests in connection with this Agreement will be
given to the respective parties in writing and will be deemed given as of the first
business day of the notified party following the day the notice is faxed or sent via
overnight courier, providing a hard copy acknowledgment of such successful
faxed notice transmission or evidence of such couriering, as applicable, is
retained. Notice may also be deposited in the Canadian or United States mails
(depending upon the location of the party sending such mail), postage pre-paid,
certified or registered, return receipt requested, and addressed to the other party
at the address set out on the face hereof, and receipt of any such notice will be
deemed to be effective as of the 3b business day following such deposit.
9.4. Governing Law - This Agreement and performance hereunder will be
governed by the laws of the jurisdiction provided in the address of the Customer
on the Cover Page excepting in the case of Louisiana when the laws of California
will apply, or in the case of Quebec when the laws of Ontario will apply.
9.5. Non-Assignability - This Agreement is not assignable by the Customer. Any
assignment, purported assignment or attempt to assign by the Customer will be a
material breach of this Agreement and will be void.
9.6. Survival - Sections 4, 7 and 9 of this Agreement will survive termination and
expiration of this Agreement.
Class Software Solutions Ltd. Third Party Product Purchase Agreement 19JAN04 (Terms and Conditions) Page 4 of 4