HomeMy WebLinkAboutAvolve (ProjectDox) Software License and Services Agreement -2012 10 29 a o \I
software
10/29/2012
City of Winter Springs, FL
126 East S.R. 434
Winter Springs, FL 32708
ATT: Kevin Smith
Dear Kevin,
First, let me personally congratulate and thank you for purchasing your ProjectDox®Electronic Plan
Solution from Avolve Software Corporation. One of the best parts of my job is to welcome you to our
growing list of partners nationwide. I have enclosed my business card for future reference,and invite you
to use it whenever you'd like.
I have also enclosed your Enterprise Version of ProjectDox on CD.The license key will be provided to
you via a separate email and text file.You do not need to try and install ProjectDox from this CD
however; our support personnel will load and configure the system based on the work schedule that has
been previously discussed and agreed upon.
Finally,being an environmentally-conscious,"green"company,all documentation related to the
application is included in electronic format in the HELP file on your CD.
If there is anything further I can do to help you become a success with our products and services, do not
hesitate to contact me.
Thanks again for your confidence and the opportunity to work with you and your organization.
mcerely wit warm regards,,
/ /Presi•en , 0
Avolve Software
4835 East Cactus Road, Suite 420
Scottsdale, AZ 85254
T 602.903-3111, F 602-923-3682
rloback0avolvesoftware.com
Avolve Software Corporation 1 4835 East Cactus Road Suite 420 Scottsdale,Arizona 85254
AVOLVE SOFTWARE CORP
SOFTWARE LICENSE AND SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement("Agreement")is made this_October 23,2012 between AVOLVE SOFTWARE
Corporation("Licensor"),a Delaware corporation,having its principal place of business at 4835 E. Cactus Road, Suite 420,
Scottsdale,Arizona 85254,United States of America,and the City of Winter Springs ,with its
principal place of business at 1126 East State Road 434 . ("Licensee")
WHEREAS Licensor has created a computer software program called ProjectDox("Software")hereafter more fully described;
WHEREAS the parties wish to provide the terms and conditions under which the Licensor will provide the Software for the use by
Licensee;
IN CONSIDERATION OF THIS GRANT OF LICENSE and the terms and covenants herein, the receipt and sufficiency of
which is acknowledged by all parties,the parties agree as follows:
1. Licensor Obligations.
a. Single Jurisdiction License Grant. So long as the Licensee complies with the terms of this Agreement,
the Licensor grants to the Licensee,subject to the terms, conditions,and limitations hereof,the non-transferable(except as set
forth in Section 18 below),non-exclusive right to use and permit its Users(as defined below)to use the Software for the term
set out herein solely for Licensee's internal business operations. "Users" means Licensee's employees, consultants,
contractors or agents authorized by Licensee to use the Software and for which Licensee has purchased use rights from
Licensor. The rights granted to Licensee under this Agreement are subject to the following restrictions: (i) except as
expressly stated herein to the contrary, Licensee shall not license, sell, rent, lease, copy, transfer, assign, distribute, display,
host, outsource,disclose or otherwise commercially exploit or make the Software available to any third party; or(ii)Licensee
shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software, or
access or use the Software in order to build a similar or competitive product or service.
b. Scope of Grant.
Licensee may:
• Make one copy of the Software for archival purposes, if the copy contains all of the original Software's
proprietary notices;
• Use the Application Programming Interfaces("APIs")of the Software to program those APIs(a"Custom
Application")but only as described in the documentation for the Software and only to the extent necessary
to permit the Licensee's Custom Application to function with the Software through the APIs as described
in the Documentation;
• Use the Software solely for publishing,displaying,marking up and making accessible internal documents
and documents posted by any of Licensee's customers or vendors.
Licensee may not:
• Permit Users to use the Software except under the terms listed above;
• Permit concurrent use of the Software, except where a Load Balanced License of the Software has been
purchased. A "Load Balanced License" is an optional license available for an additional fee which
authorizes the Licensee to run two copies of the Software simultaneously. The second copy may be used,at
Licensee's option,either in production mode to increase performance or in a non-production mode, as a
failover;
c. Training, Services and Deliverables. Licensor shall use commercially reasonable efforts to provide the
training, services and deliverables (the "Project") according to the phases in Attachment 1, attached hereto and incorporated
herein by this reference. The parties shall mutually agree to and execute a statement of Work ("SOW") following the
Services Discovery Session (as defined in Attachment 1). The parties agree that Licensor's ability to perform is subject to
Licensee's timely performance and support and,therefore,Licensee agrees to dedicate the necessary personnel and resources
to enable the Licensor to complete the Project within twelve (12) months. Therefore, any delay by Licensee in the
performance of its obligations or provision of reasonably requested support, shall automatically extend the schedule for
Licensor to complete its obligations under this Agreement. Further, if Licensee fails to timely meet more than two of
Licensees' obligations, as documented in the SOW, Licensor shall be entitled to require Licensee to make milestone
payments previously scheduled for payment upon completion of the milestone to be due prior to commencement of work on
AVS2012V1 Page 1
that milestone. Acceptance criteria for Licensor's delivery of the services including,where specified, any software provided
as a deliverable in connection with such services("Acceptance Criteria") shall be set forth in the SOW. Acceptance Criteria
shall provide for Licensee's written acknowledgement of acceptance ("Accept" or "Acceptance"). Upon completion of
services, or any portion thereof as specified in Attachment A, Licensor shall notify Licensee of completion and, at no
additional cost to Licensee,demonstrate the completion of such services in accordance with the Acceptance Criteria and fully
cooperate and assist Licensee in such verification. Licensee shall promptly cooperate with Licensor in reviewing the
completed services and, upon demonstration that the services have been completed in accordance with Acceptance Criteria,
shall Accept such services promptly and in good faith. If, upon Licensor's demonstration of the completion of the services,
Licensee reasonably determines that any of the services, including any software provided as a deliverable in connection with
such services, do not substantially conform to the Acceptance Criteria, Licensee shall notify Licensor in writing (email
accepted) specifying the substantial non-conformance in reasonable detail. Upon Licensor's reasonable confirmation that
such services do not substantially conform to the Acceptance Criteria, Licensor shall, at no additional cost, promptly
substantially conform the services, including any software provided as a deliverable in connection with such services, to the
as Acceptance Criteria. If Licensee fails within ten (10) days of Licensor's written notice of services completion (email
accepted) to provide Licensor with an opportunity to demonstrate the completion of the services within this ten (10) day
period,such services shall be deemed Accepted by Licensee as of the date of Licensor's completion of such services.
2. Ownership. Licensee acknowledges and agrees that Licensor owns all right, title, and interest in and to all
intellectual property rights (including all derivatives or improvements thereof) in the Software and any suggestions,
enhancements requests, feedback,recommendations or other information provided by Licensee or any of its Users related to
the Software. Licensee's rights in the Software, updates, and the related materials supplied by the Licensor pursuant to this
Agreement are strictly limited to the right to use the proprietary rights in accordance with the terms of this Agreement. No
right of ownership,expressed or implied, is granted under this Agreement.
3. License Fees. The license fees ("Fees") to paid by Licensee and set forth in Attachment 3, attached hereto and
incorporated herein by this reference, are paid in consideration of the licenses granted under this Agreement. The Fees
constitute a flat rate payment for an enterprise wide license. All Fees are due in full within thirty(30)calendar days from the
date of the Licensor's invoice, such Fees being irrevocable and non-refundable (except as set forth otherwise in this
Agreement). Licensee agrees to provide Licensor with complete and accurate billing and contact information. Overdue
payments shall bear interest commencing thirty (30) days after the due date until paid at the rate of prime plus two (2)
percentage points per annum,or the maximum charge permitted by law,whichever is less. Any amounts payable pursuant to
this Agreement are exclusive of all taxes of any kind. If taxes of any sort(other than Licensor's income taxes or withholding
taxes) are imposed by any taxing authority, they shall be paid by Licensee in addition to all amounts specified in this
Agreement. To the extent Licensee is exempt from sales or other taxes; Licensee agrees to provide Licensor, upon request,
with the appropriate exemption certificates. Under certain circumstances Avolve Software will engage a third party agent to
expedite the payment to Licensor in advance of the actual invoice due date. Upon notification Licensee will redirect invoice
payments to Factors Southwest instead of being made directly to Avolve Software.
4. Term. The term of this License Agreement shall commence as of the date of this Agreement and shall continue
unless and until terminated pursuant Section 5 below.
5. Termination. Licensor may terminate this License Agreement upon the material breach by Licensee of any term
hereof. Licensee may terminate this agreement, with or without cause, and without penalty to Licensee, upon 30 days prior
written notice to Licensor. Upon termination, Licensee agrees to (i)immediately discontinue its use of the Software, and
(ii)return to Licensor the original and all copies of all Software and Documentation in whatever form in Licensee's possession,
custody or control or, upon the written request of Licensor, destroy all such copies and certify to Licensor in writing that
Licensee has complied with all requirements.
6. Confidentiality. Each party shall hold confidential information of the other in confidence. All confidential
information(including but not limited to data)shall(i)remain the sole property of the disclosing party and(ii)be used by the
receiving party only as authorized herein. Information will not be considered to be confidential information if it (i) is
publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public
domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by
confidentiality obligations with respect thereto; (iv) is already in the recipient's possession free of any confidentiality
obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without use of the
disclosing party's confidential information; or (vi) is approved for release or disclosure by the disclosing party without
restriction. Notwithstanding the foregoing,each party may disclose confidential information to the limited extent required in
order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable
law,provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party.
AVS2012V1 Page 2
7. Limited Warranties. Licensor warrants Licensee for a period of thirty (30) days, calculated from the Final
Project Acceptance (as defined in Attachment 1) (referred to as the "Warranty Period") that the Software media is
delivered free from defects in material and workmanship. Licensor further warrants, for Licensee's benefit alone,that during
the Warranty Period the Software shall operate substantially in accordance with the functional specifications in the User's
Manual. If during the Warranty Period, the Software becomes unable to operate substantially in accordance with the
functional specifications in the User's Manual, Licensee may return the Software to Licensor for either replacement or, if so
elected by Licensor, refund of amounts paid by Licensee under this License Agreement for the part of the Software that is
nonconforming. Licensee agrees that the foregoing constitutes Licensee's sole and exclusive remedy for breach by Licensor
of any warranties made under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE
SERVICES AND SOFTWARE ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL OTHER
WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. THE LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY OF PERFORMANCE WITH
RESPECT TO THE SERVICES AND SOFTWARE,EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
8. Limitation of Liability. SUBJECT TO SUCH LIMITATIONS AS MAY EXIST UNDER ARIZONA LAW,
LICENSOR'S CUMULATIVE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES
RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS
AGREEMENT (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) SHALL
NOT EXCEED THE LICENSE FEE PAID TO LICENSOR FOR THE USE OF THE SOFTWARE. IN NO EVENT
SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR
EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. The allocations of liability in this section represent the agreed and bargained-for understanding of
the parties and the compensation for the services and software reflects such allocations. The limited remedies set forth in this
Agreement shall apply notwithstanding the failure of their essential purpose.
9. Trademark. No right, license, or interest to trademarks held by Licensor are granted hereunder, and Licensee
agrees that no such right, license,or interest shall be asserted by Licensee with respect to such trademarks.
10. Maintenance. Licensor shall provide maintenance ("Maintenance") on the Software as described in Attachment 2
for the maintenance term ("Maintenance Term") and the fees set forth in Attachment 3; provided, however, that at no time
shall Licensor be responsible for providing Maintenance for Custom Applications. Attachment 2 and 3 are each attached
hereto and incorporated herein by this reference.
11. Governing Law and Venue. This Agreement shall be governed in accordance with the laws of the State of Florida.
The Uniform Computer Information Transactions Act,the United Nations Convention on the International Sale of Goods and
choice of law rules of any jurisdiction will not apply to this Agreement. Any legal action or proceeding relating to this
Agreement shall be instituted in a state in Seminole County, Florida or federal court in Orlando, Florida, and each party
hereby submits to the personal jurisdiction of such courts and waives any defense related to venue or forum non convenient.
12. Indemnification. The Licensor will defend and hold Licensee harmless from and against any and all costs,
liabilities, and expenses(including,but not limited to,reasonable attorneys'fees)arising out of or in connection with a claim,
suit, action,or proceeding brought by any third party against Licensee to the extent that it is based on a claim that Licensee's
use as authorized under this Agreement of the Software(in the form delivered by Licensor to Licensee)infringes a copyright,
patent, or other intellectual property right enforceable in Canada or the United States; provided that Licensee (a) shall
promptly notify Licensor of any claim, demand, action or other proceeding for which Licensee intends to claim
indemnification; (b) gives Licensor the right to participate in, and to the extent Licensor so desires jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel selected by Licensor; and (c) reasonably
cooperates with Licensor and its legal representatives in the investigation of any claim, demand, action or other proceeding
covered by this Section 12. If the Software is held to infringe any intellectual property right, Licensor may, in its sole
discretion and at its own expense, either procure a license that will protect Licensee against such claim without cost to
Licensee or replace the Software with a non-infringing service with comparable functionality. Provided that Licensor
complies with this Section 12, Licensee shall have no additional remedy against Licensor by reason of a third party
infringement claim. Notwithstanding the foregoing, Licensor shall have no obligation or liability to the extent that the
alleged infringement arises from(1)the combination, operation, or use of the Software with products, services, information,
materials, technologies, business methods or processes not furnished by Licensor; (2) modifications to the Software, which
modifications are not made by Licensor; (3) failure to use updates to the Software provided by Licensor; or (4) use of the
Software except in accordance with any applicable user documentation or specifications.
AVS2012V1 Page 3
13. Costs of Litigation. If any action is brought by either party to this Agreement against the other party regarding the
subject matter hereof, regardless of the outcome of such action, each party shall bear is own attorney fees and expenses of
litigation.
14. Export Restrictions. Licensee agree to comply strictly with all export laws and restrictions or regulations of the
United States or foreign agency or authority, and not to export, or allow the export or re-export of the Software,
Documentation or any technical data in violation of any such restriction, law or regulation, without all necessary approvals.
15. Entire Agreement; Amendments. This Agreement constitutes the entire agreement and understanding between the
parties and supersedes any prior agreements, representation, or understandings, whether oral or written, relating to the
Software. No amendment to this Agreement shall be valid unless such amendment is made in writing and is signed by the
authorized representatives of the parties.
16. Severability. Should any court of competent jurisdiction declare any term of this Agreement void or unenforceable,
such declaration shall have no effect on the remaining terms hereof
17. Waiver. Neither party's failure to exercise or delay in exercising any right or remedy that it may have under this
Agreement shall operate as a waiver of that right or remedy or preclude any other or further exercise of any right or remedy
available under this Agreement.
18. Assignment. This Agreement, the Software and any other information or rights provided by Licensor, may not be
sold, leased, assigned, sublicensed or otherwise transferred in whole or in part. Licensee may not assign this Agreement or
the benefits there from in whole or in part without the prior written consent of Licensor, which consent shall not be
unreasonably withheld. Any assignment made in conflict with this provision shall be voidable at the option of the Licensor.
19. Publicity/Marketing. Licensor may identify Licensee on its customer lists and list Licensee as a customer in its
marketing and advertising materials, and reproduce Licensee's company name, logo,trademark,trade name, service mark, or
other commercial designations, solely in connection therewith. If requested by Licensor during the first two years of this
Agreement,Licensee agrees to timely execute the following activities:
• Press Release
• Case Study Testimonial
• ROI Benchmarking Study
• Client Referrals
20. Notices. Any notices being given by this Agreement shall be in writing and shall be effective if delivered
personally,sent by prepaid courier service,sent by prepaid mail, or sent by facsimile or electronic communication(confirmed
on the same or following day by prepaid mail). All correspondence shall be in English and addressed to the parties as
follows:
If to Licensor(Avolve Software): If to Licensee:
Attn: City Manager
Attn: Ronald Loback Title: City of Winter Springs
President/CEO
Avolve Software Address: 1126 E. State Road 434
4835 E. Cactus Road, Suite 420 Winter Springs, FL 32708
Scottsdale,Arizona 85254
Phone: 602-971-6061 Phone:407-327-5957
rloback @avolvesoftware.com Email ksmith @winterspringsfl.org
Any party may change its address for service by notice served as set out above.
21. Independent Contractor. The Licensor is an independent contractor and not an employee of the Licensee. Any
personnel performing services under this Agreement on behalf of the Licensor shall at all times be under the Licensor's
exclusive direction and control. The Licensor shall pay all wages, salaries, and other amounts due such personnel in
connection with their performance of services under this Agreement and as required by law. The Licensor shall be
responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance,and worker's compensation insurance.
22. Indemnification and Insurance.
a. Indemnification. The Licensor agrees to indemnify, defend (with counsel reasonably approved by
Licensee) and hold harmless the Licensee and its authorized officers, employees, agents and volunteers from any
AVS2012V1 Page 4
fr
and all claims, actions, losses, damages, and/or liability arising out of this Agreement designated to the extent
caused by the gross negligence or willful acts, errors or omissions of Licensor or its employees, officers or sub-
licensors.
b. Insurance. The Licensor agrees to provide insurance set forth in Attachment 4.
23. Equal Opportunity. The Licensor complies with the Equal Employment Opportunity Program of the State of
Arizona and rules and regulations adopted pursuant thereto: Executive Order 11246, as amended by Executive Order 11375,
11625, 12138, 12432, 12250,Title VII of the Civil Rights Act of 1964, and other applicable Federal, State, and County laws,
regulations and policies, including laws and regulations hereafter enacted. The Licensor shall not unlawfully discriminate
against any employee, applicant for employment, or service recipient on the basis of race, national origin or ancestry,
religion,sex,marital status,age,political affiliation or disability.
24. Recycling. The Licensor shall make a reasonable effort to use recycled paper for proposals/reports and for any printed
or photocopied material created as a result of a contract with the Licensee.
25. Conflict of Interest. The Licensor shall make all reasonable efforts to ensure that no conflict of interest exists
between its officer,employees, or subcontracted Licensors, and the Licensee. The Licensor shall make all reasonable efforts
to ensure that no Licensee officer or employee, whose position with the Licensee enables him/her to influence any award of
this Agreement or any competing offer, shall have any direct or indirect financial interest resulting from the award of this
Agreement or shall have any relationship to the Licensor or officer or employee of the Licensor. Officers, employees, and
agents of cities, counties, districts, and other local agencies are subject to applicable conflict of interest codes and state law.
In the event that the Licensee determines a conflict of interest situation exists, the Licensee may disallow any increase in
costs associated with the conflict of interest situation and such conflict may constitute grounds for termination of the
Agreement. This provision shall not be construed to prohibit employment of persons with whom the Licensor's officers,
employees, or agents have family, business, or other ties so long as the employment of such persons does not result in
increased costs over those associated with the employment of any other equally qualified applicant.
26. Disclosure of Criminal and Civil Proceedings. The Licensee reserves the right to request the information described
herein from the Licensor. The Licensee also reserves the right to obtain the requested information by way of a background
check performed by an investigative firm. The Licensor may be asked to disclose whether the firm, or any of its partners,
principals,members, associates or key employees(as that term is defined herein), within the last ten years, has been indicted
on or had charges brought against it or them (if still pending) or convicted of any crime or offense arising directly or
indirectly from the conduct of the firm's business, or whether the firm, or any of its partners, principals,members, associates
or key employees,has within the last ten years, been indicted on or had charges brought against it or them(if still pending)or
convicted of any crime or offense involving financial misconduct or fraud. If the response is affirmative, the Licensor shall
describe any such indictments or charges(and the status thereof),convictions and the surrounding circumstances in detail. In
addition, the Licensor may be asked to disclose whether the firm, or any of its partners, principals, members, associates or
key employees, within the last ten years, has been the subject of legal proceedings as defined herein arising directly from the
provision of services by the firm or those individuals. "Legal proceedings" means any civil actions filed in a court of
competent jurisdiction, or any matters filed by an administrative or regulatory body with jurisdiction over the firm or the
individuals. If the response is affirmative, the Licensor shall describe any such legal proceedings (and the status and
disposition thereof) and the surrounding circumstances in detail. For purposes of this provision "key employees" includes
any individuals providing direct service to the Licensee. "Key employees" do not include clerical personnel providing
service at the firm's offices or locations.
27. Drug-Free Workplace Policy. The Licensor certifies that it will comply with the requirements of the Drug-Free
Workplace Act of 1990 and will provide a drug-free workplace by taking the following actions:
a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or
use of a controlled substance is prohibited and specifying actions to be taken against employees for violations.
b. Establish a Drug-Free Awareness Program
i. The dangers of drug abuse in the workplace.
ii. The person's or organization's policy of maintaining a drug-free workplace.
iii. Any available counseling,rehabilitation and employee assistance programs.
iv. Penalties that may be imposed upon any employees for drug abuse violations.
c. Provide that every employee who works on the proposed or resulting Agreement:
i. Will receive a copy of the company's drug-free policy statement;and
ii. Will agree to abide by the terms of the company's drug-free policy statement as a condition of
employment.
AVS2012V1 Page 5
28. Improper Consideration. Licensor shall not offer (either directly or through an intermediary) any improper
consideration such as, but not limited to, cash, discounts, service, the provision of travel or entertainment, or any item of
values to any office, employee, or agent of the Licensee in an attempt to secure favorable treatment regarding the award of
this proposal. The Licensee,by written notice,may immediately terminate this Agreement if it determines that any improper
consideration as described was offered to any officer, employee, or agent of the Licensee with respect to the Agreement.
Licensor shall immediately report any attempt by a Licensee officer, employee or agent to solicit(either directly or through
an intermediary)improper consideration from Licensor. The report shall be made to the supervisor or manager charged with
supervision of the employee or to the Administrative Office.
29. Electronic Funds Transfer. The Licensor shall accept all payments from the Licensee via electronic funds transfer
(EFT)directly deposited into the Licensor's designated checking or other bank account. The Licensor shall promptly comply
with directions and accurately complete forms provided by the Licensee required to process EFT payments.
30. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all
signatories had signed the same document. All counterparts must be construed together to constitute one instrument.
31. U.S. Government End-Users. Each of the components that constitute the Software is a"commercial item"as that term
is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and/or "commercial computer software
documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1
through 227.7202-4,all U.S.Government end users acquire the Software with only those rights set forth herein.
32. Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from
any delay or failure to perform (other than payment of money or breach of confidentiality requirements) if such delay or
failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the
parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war,
earthquakes,fire and explosions.
33. Audit. At Licensor's written request, but not more frequently than once per calendar year, Licensee shall furnish
Licensor with a document signed by an authorized representative of Licensee verifying that the Software is being used
pursuant to the provisions of this Agreement. Licensor reserves the right to audit Licensee's use of the Software no more than
once per calendar year at Licensor's expense. Licensor shall schedule any audit at least thirty(30) days in advance, and any
such audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with
Licensee's business activities. If such audit reveals that Licensee have underpaid fees to Licensor, Licensee shall promptly
pay to Licensor such fees,plus applicable interest and any expenses associated with conducting the audit.
111T WITNESS WHE3,tEOF,the Parties hereto have entered into this Agree..- f the Effective Date.
CITY..QF WINTER Sl 2I AVO E SOF ARE
By l
J 'Auth�'`rzod sign• u sign in blue ink)
Name:_Kevin Smith Name: ist. ,., i!_♦
(Print or type name of person signing contract)
AVS2012V1 Page 6
ATTACHMENT 1
Licensor's Allocation of Services
Activity Phase
Services Discovery Session Assessment
• Kick-Off Meeting,Goals Setting
• Business Process Discovery
• Permit System Integration Requirements
• Reports Definition
Discovery Deliverables Assessment
• Complete SOW
• Configuration Specifications
• Workflow Specifications
• Project Schedule
Acceptance of SOW(signature required)
Core Software Installation Assessment
• Review Network and Hardware Configuration
• Pre-Installation Review&Security Policies
• ProjectDox Installation
• Acceptance of Core Software(signature required)
ProjectDox Permit System Integration Design
• Integration Design and Testing
• Acceptance of Integration(signature required)
Process Customization- Design
• Workflow and Forms Customization
• Reports Customization
• Framework Configuration(templates,roles,folder structure)
• Preliminary Validation(signature required)
Project Documentation Deploy
• Administrator and Users Guides
• Approved Process Flowcharts
• Training Materials
Initial Rollout Deploy
• Initial Deployment(soft launch)
• Validation and Testing(signature required)
Administrator Training Deploy
• Project&User Setup
• Workflow and Forms Overview
End User Training(Train the Trainer Optional) Deploy
• Process and Workflow
• Hands on training(up to 10 users per class)
Workflow Maintenance Training Deploy
• Basic Workflow and Form Modifications and Maintenance(up to 5 users per class)
Design Optimization Optimize
• Process Refinements
• Basis Workflow and Form Refinements
Turnover/Closeout Closeout
• Full Deployment
• Final Documentation
• Final Project Acceptance(signature requires)
AVS2012V1 Page 7
ATTACHMENT 2
MAINTENANCE AGREEMENT
1. Scope of Maintenance Agreement. This Attachment describes the Technical Support plans and terms and
conditions currently applicable to the Software offered by Licensor. The Technical Support described below does not
expand or change any warranty provisions set forth in the Agreement. Capitalized terms used in this Attachment and
not separately defined below shall have the meanings set forth in the Agreement.
2. Terms and Conditions Related to Standard Technical Support...Licensor will provide the following standard
Technical Support for the Software:
a. Designation of a User Login and Password. Licensee must register with Licensor unique passwords and
user names, which will be required when seeking Technical Support. Licensee acknowledges and agrees that
Licensee is prohibited from sharing passwords and/or user names with unauthorized users. Licensee will be
responsible for the confidentiality and use of passwords and user names. Licensor will act as though any electronic
communication it receives under Licensee passwords, user names, and/or account number will have been sent by
Licensee. Licensee agrees to immediately notify Licensor if Licensee becomes aware of any loss or theft or
unauthorized use of any passwords,user names,and/or account number.
b. Software Updates. Licensee will receive, at no additional charge, during the term of its Maintenance
Agreement all minor(e.g. from Release 1.0 to 1.1)and major updates(e.g. from Release 1.1 to 2.0)of the Software
as they are generally made available by Licensor. Where applicable,Licensee will also be entitled to driver updates.
Licensee will be notified by email when updates are available and may also visit Licensor's website at
www.avolvesoftware.com for current information concerning updates. All Software and driver updates are provided
under, subject to, and governed by the terms and conditions of this Agreement. Upon installation of updated
Software,Licensee must destroy all prior releases/versions of the Software.
c. E-mail, Fax and Telephone Support. Licensee may contact Licensor's helpdesk by phoning 602-714-
9774 x1112 and speaking with a support representative. Depending on availability, Licensee may be routed to
voice mail to report the problem. Licensee may send Licensor an email through Licensor's customer support web
interface, located in the technical support section of Licensor's website, www.avolvesoftware.com, or by sending a
fax to 602-923-3544. Any e-mail or fax requests identifying potential errors or problems in Licensee's use of the
Software should provide Licensor with sufficient information to reproduce the error. Licensor's helpdesk personnel
will assist Licensee in accessing and utilizing the Software, and work with Licensee in good faith to determine the
final disposition of all reported problems or errors, including identifying and providing workarounds for any
problem discovered. Assistance may include communicating via telephone, e-mail, our Support web site, or if
allowed by Licensee,remote desktop sharing.
d. Support Hours. Licensor's helpdesk currently accepts calls,e-mails, and faxes from 7 a.m.to 5 p.m.,U.S.
Arizona Time Monday through Friday(excluding standard U.S.holidays).
e. Error Corrections. Licensor will use commercially reasonable efforts to correct any reproducible and
material programming error discovered in the Software applying a level of effort reasonably commensurate with the
severity of the error. Licensor is not responsible for correcting errors that result from problems residing outside of
the Software. Typically, Licensor will address errors through updates to the Software, but on occasion and at its
sole discretion may provide Licensor with an interim correction (such as a work-around) pending formal
implementation of an update.
f. Licensee's Suggestions: Any errors or suggested changes, clarifications, additions or other improvements
to the Software which Licensee communicates to Licensor shall constitute Licensee's grant to Licensor, without
charge or other obligation,of the right to incorporate such suggestions, changes and modifications into the Software
under Licensor's standard intellectual property notices.
3. Non-qualifying Issues and Events
a. Non-Qualified Products. Licensor does not provide Technical Support for any hardware or software
product that is not part of the Software licensed to Licensee by Licensor (a "Nonqualified Product"). Licensee
remains responsible for the compatibility and functioning of Nonqualified Products with the Software. If Licensor
provides Technical Support for a problem caused by a Nonqualified Product or the failure of Licensee's computer
system or environment to comply with the technical specification requirements included in the documentation
AVS2012V1 Page 8
provided with the Software (or Licensor's Technical Support efforts are materially increased as a result of
Licensee's use of Nonqualified Products or failure to comply with the technical specification requirements),
Licensor reserves the right to charge Licensee time and materials for such extra services at Licensor's then current
published rates for customized,premium technical support services.
b. Other Exclusions. Licensor's Technical Support does not cover:
(1) Software that has been superseded by a new update/release for more than one(1)year;
(2) Altered,damaged,or modified Software;
(3) Any custom applications developed by Licensor for Licensee;or
(4) Software installed in an operating environment that is not supported by Licensor or used other
than as specified in the user manual.
4. General Terms and Conditions
a. Initial Term. For the term specified in Attachment 3.
b. Renewal Terms. Unless early terminated pursuant to Section 4(d) below, Technical Support shall
automatically renew at the end of the "Initial Term" and every anniversary thereafter at the rates listed in
Licensor's then-current price list.
c. Maintenance Fees. After the Initial Term, Licensee shall pay Licensor the applicable fee as listed in
Licensor's then-current price list for Maintenance for all Software for which Licensee purchased(the "Maintenance
Fees"). At the end of the term specified in Attachment 3, the Maintenance Fees will be either billed annually or a
new, multi-year agreement will be created at the then current rate. Maintenance Fees are paid in advance of the term
and are irrevocable and non-refundable. Maintenance Fees are due thirty (30) calendar days from the date of the
invoice. If Licensee fails to pay all Maintenance Fees by the due date, this Maintenance Agreement, and all
Technical Support provided for under it, may be immediately terminated, without notice, by Licensor.
Alternatively, Licensor, in its sole discretion, may elect to continue to provide Technical Support and assess interest
as provided for under Section 3 of the Agreement. To reinstate or renew the Maintenance Agreement (if
reinstatement is allowed by Licensor),Licensee must pay in advance and in full(i)all Maintenance Fees and(ii)the
upgrade fee as published in Licensor's then-current price list.
d. Termination. Licensee may terminate this Maintenance Agreement at the end of the Initial Term or the
end of any renewal term by giving written notice to Licensor at least thirty(30) calendar days before the end of the
existing term. Licensor may immediately suspend or cancel Technical Support under this Maintenance Agreement
by giving written notice to Licensee of Licensee's material breach of the Agreement. This Maintenance Agreement
will automatically and immediately terminate without written notice upon termination of the Agreement.
5. Limited Warranties and Liability Limitations
a. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT,NO MATTER WHAT THE CIRCUMSTANCES,AND IRRESPECTIVE OF WHETHER SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL,CONSEQUENTIAL, PUNITIVE,
SPECIAL OR EXEMPLARY DAMAGES,OR INDIRECT DAMAGES OF ANY TYPE OR KIND(INCLUDING
LOST PROFITS, LOST REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER
COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND) ARISING FROM BREACH OF WARRANTY OR
BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING
FROM OR IN CONNECTION WITH THIS AGREEMENT OR SUCH PARTY'S PERFORMANCE
HEREUNDER. LICENSOR'S MAXIMUM LIABILITY FOR DAMAGES FOR ANY CAUSE OF ACTION
RELATING TO THIS MAINTENANCE AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY
LICENSEE FOR THE MAINTENANCE AGREEMENT FOR THE APPLICABLE YEAR. LICENSOR'S
LIABILITY SHALL FURTHER BE LIMITED AS PROVIDED IN THE AGREEMENT. THESE LIMITATIONS
OF LIABILITY SHALL NOT BE APPLICABLE IN THE CASE OF DEATH OR BODILY INJURY.
b. Service Warranties. Licensor warrants that all professional services provided hereunder will be
performed in a workmanlike manner, in conformity with the professional standards for comparable services in the
industry. For any breach of this warranty for service, Licensee's exclusive remedy shall be the re-performance of
the deficient services, and if Licensor is unable to re-perform the deficient services as warranted, Licensee shall be
entitled to recover the portion of the Maintenance Fees paid to Licensor for such deficient services, and such refund
shall be Licensor's entire liability. THESE TERMS AND CONDITIONS FOR TECHNICAL SUPPORT AND
AVS2012V1 Page 9
MAINTENANCE SERVICES ARE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. THE
SOFTWARE AND ALL RELATED MATERIALS ARE EXCLUSIVELY SUBJECT TO THE WARRANTIES
SET FORTH IN THE AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE
FAILURE OF THEIR ESSENTIAL PURPOSE.
AVS2012V1 Page 10
ATTACHMENT 3
Project Budget
Pricing-TBD
Maintenance Term: Initial Maintenance Term will being at the Effective Date of the signing of this Agreement
and continue for twelve(12)months with fees for Maintenance as noted in the Pricing section of this Attachment
3.
Notes:
1. ProjectDox Standard System is based on a standard configuration. Licensing will be based on the IP address or
Hostnames for the servers and is not based on number of users or transactions. The license file is server specific
and if a server is changed or moved a new license file will need to be generated and applied to all servers in the
ProjectDox environment.
2. The current rate for professional services is $1,800 per day plus expenses. Please consult Avolve Software for
current rates for any additional implementation and training for ProjectDox. Licensee shall reimburse Avolve
Software for all implementation and training travel and expenses. Maximum of 10 persons per training class
(each with a computer).
3. Test Systems are available at an additional price. Maintenance for the test server is delivered at no charge if
maintenance on the production system is paid and current.
4. EFT Information:
Bank: Compass Bank
Routing: 122105 744
Account#: 2508914310
AVS2012V1 Page 11
ATTACHMENT 4
Insurance Coverage
1) Workers'Compensation
a)A program of Worker's Compensation Insurance or a State-approved Self Insurance Program in an amount
and form to meet all applicable requirements of the State of Arizona, including Employer's Liability with two
hundred and fifty thousand dollars ($250,000) limits, covering all persons, including volunteers providing
services on behalf of the Licensor and all risks to such persons under this Agreement.
b)If the Licensor has no employees, it may certify or warrant that it does not currently have any employees or
individuals who are defined as "employees" under the Labor Code and the requirements for Workers'
Compensation coverage may be waived by the Licensee's Director of Risk Management.
2) Commercial/General Liability Insurance. The Licensor shall carry General Liability Insurance covering all
operations performed by or on behalf of the Licensor providing coverage for bodily injury and property damage with a
combined single limit of not less than one million dollars ($1,000,000) per occurrence. The policy coverage shall
include:
a)Premises operations and mobile equipment.
b)Products and completed operations.
c)Broad form property damage(including completed operations).
d)Personal injury.
e)Contractual liability.
f)Two million dollars($2,000,000)general aggregate limit.
3) Automobile Liability Insurance. Primary insurance coverage shall be written on ISO Business Auto
Coverage form for all owned, hired and non-owned automobiles or symbol 1 (any auto). The policy shall have a
combined single limit of not less than one million dollars ($1,000,000) for bodily injury and property damage, per
occurrence. If the Licensor is transporting one or more non-employee passengers in performance of Agreement
services, the automobile liability policy shall have a combined single limit of two million dollars ($2,000,000) for
bodily injury and property damage per occurrence. If the Licensor owns no autos, a non-owned auto endorsement to
the General Liability policy described above is acceptable.
4) Umbrella Liability Insurance: An umbrella (over primary) or excess policy may be used to comply with
limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury, property
damage,and personal injury/advertising injury and shall include a"dropdown"provision providing primary coverage for
any liability not covered by the primary policy. The coverage shall also apply to automobile liability.
5) Professional Liability.
a) Professional Liability Insurance with limits of not less than one million dollars ($1,000,000)and two
million dollars($2,000,000)aggregate limits,or Errors and Omissions Liability Insurance with limits of not
less than one million dollars($1,000,000) and two million dollars ($2,000,000) aggregate limits, or Directors
and Officers Insurance coverage with limits of not less than one million dollars($1,000,000)shall be required
for Agreements with charter labor committees or other not-for-profit organizations advising or acting on behalf
of the Licensee.
b) If insurance is provided on a"claims made"policy,the "retroactive date" shall be shown and must be
before the date of the start of the Agreement work. The claims made insurance shall be maintained or "tail"
coverage provided for a minimum of five(5)years after Agreement completion.
c) The coverage described above is not required for Licensors providing services which are not relied
upon by Licensee departments for decision making. These would include trainers or instructors, expert
witnesses, statisticians, etc. Whether such coverage is required will be determined by the Licensee Risk
Manager.
6) Additional Insured. All policies, except for the Workers' Compensation, Errors and Omissions and
Professional Liability policies, shall contain endorsements naming the Licensee and its officers, and employees, as
additional insured's with respect to liabilities arising out of the performance of services hereunder. The additional
AVS2012V1 Page 12
insured endorsements shall not limit the scope of coverage for the Licensee to vicarious liability but shall allow
coverage for the Licensee to the full extent provided by the policy.
7) Waiver of Subrogation Rights. The Licensor shall require the carriers of required coverage's to waive all
rights of subrogation against the Licensee, its officers, employees, agents, volunteers, Licensors and sub-Licensors.
All general or auto liability insurance coverage provided shall not prohibit the Licensor and the Licensor's
employees or agents from waiving the right of subrogation prior to a loss or claim. The Licensor hereby waives all
rights of subrogation against the Licensee.
8) Policies Primary and Non-Contributory. All policies required herein are to be primary and non-
contributory with any insurance or self-insurance programs carried or administered by the Licensee.
9) Severability of Interests. The Licensor agrees to ensure that coverage provided to meet these
requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude
coverage for suits between the Licensor and the Licensee or between the Licensee and any other insured or
additional insured under the policy.
10) Proof of Coverage. The Licensor shall furnish Certificates of Insurance to Licensee, including
endorsements, as required, prior to the commencement of performance of services hereunder, which certificates
shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to
Licensee, and the Licensor shall maintain such insurance from the time the Licensor commences performance of
services hereunder until the completion of such services.
I1) Acceptability of Insurance Carrier. Unless otherwise approved by Licensee's Risk Management,
insurance shall be written by insurers authorized to do business in the State of the Licensee and with a minimum
"Best"Insurance Guide rating of"A-VII".
12) Deductibles and Self-Insured Retention. Any and all deductibles or self-insured retentions in excess of
ten thousand dollars($10,000)shall be declared to and approved by Licensee's Risk Management.
13) Failure to Procure Coverage. In the event that any policy of insurance required under this Agreement
does not comply with the requirements, is not procured, or is canceled and not replaced, the Licensee has the right
but not the obligation or duty to cancel the Agreement or obtain insurance if it deems necessary and any premiums
paid by the Licensee will be promptly reimbursed by the Licensor; alternatively, the Licensee's payments to the
Licensor under this Agreement will be reduced to pay for insurance purchased by the Licensee.
14) Insurance Review. Insurance requirements are subject to periodic review by the Licensee. The Licensee's
Director of Risk Management or designee is authorized, but not required,to reduce,waive or suspend any insurance
requirements whenever Licensee's Risk Management determines that any of the required insurance is not available,
is unreasonably priced, or is not needed to protect the interests of the Licensee. In addition, if the Licensee's Risk
Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage
limits become reasonably priced or available, the Licensee's Director of Risk Management or designee is
authorized, but not required, to change the above insurance requirements to require additional types of insurance
coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the
Licensee, inflation, or any other item reasonably related to the Licensee's risk.
15) Waiver. Any failure, actual or alleged, on the part of the Licensee to monitor or enforce compliance with
any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of
the Licensee.
AVS2012V1 Page 13
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a Vo I
software
Software Upgrade Signoff Agreement
As of the date below,Avolve Software and the City of Winter Springs, FL agree that the
following has been completed:
Upgrade of ProjectDox software from ProjectDox version 8.1 to ProjectDox version 8.2.3.3.
Reference Number:
03162014
By: ����- - By:
Avolve Software City of Winter Springs, FL
Nicole Thorne
Date: 03-16-2014 Date: ) 5 C I<<
Avolve Software Corporation 1 4835 East Cactus Road I Suite 420 I Scottsdale,Arizona 85254 I avolvesoftware.com