The URL can be used to link to this page

Ordinance No. 9,651ORDINANCE NO. 9651 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT, A GENERAL SOFTWARE SERVICES AGREEMENT AND A SOFTWARE LICENSE AGREEMENT WITH CLASS SOFTWARE SOLUTIONS LTD.; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. 0 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager and City Clerk of the City of Baytown to execute and attest to a Software Support and Maintenance Agreement, a General Software Services Agreement and a Software License Agreement with Class Software Solutions Ltd. A copy of said agreements are attached hereto as Exhibits "A," "B," and "C," respectively, and are incorporated herein for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 91h day of October, 2003. ATTEST: GARY SMITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, So City Attorney FAKarenU'iles \City Council \Ordinances \CSSOrdinance.doc PETE C. ALFARO, Nfayor 0 fix Date/Time OV-06-2003OION) 16:21 software solutions Shaping the future of communities SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT This document (the "Agreement', consisting of: Clans Software Solutions Ltd. Suite 300, 6400 Roberts Street, Burnaby, SC Canada V5G 4C9 11.000.861.1196 f: 604.432.9709 dassocfascinfo.mm www.cwz:s nto com a) this cover page ("Cover Pagel, b) the attached table of supported Software ("Software Tablet; C) the attached description of levels of support and maintenance ("Levels Description'); d) the attached Terms and Conditions of CSS Support and Maintenance (Terms and Condition9j; 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 Descri lion in that order. Product or Service Deschption Cost - - ... - - -- - -- __ ..._..._. ....__..__.........._....._...— - ----- - - -_._ - - - — 1. _ Support and Maintenance _Basic - _--- ......_...._.._.._.. __...,_$4,93756 - - - ---, 2. Support and Maintenance - Premium RE: 1. or 2.: Preferred Renewal Data (Optionaq �mm old yyyy) j ACCREDITATION DISCOUNTAVAILABLE? ( Toeamaipr atedbycsspasllntralrafiondate) Yes/ (15 %) L��) No _............._._....._....-. ............. I.. ..... ...,...- ...- ..... ... .._.... -- ._..._..._...- ...... - _._._.....__........_._..._...,..... w...-_...._:.._. ... .......... _._....._- ......•__ Total Cost : 34,937.50 Paymgnt 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 Stan Date. Thereafter, the Support and Maintenance fee is payable in advance on every annual anniversary of the Support Stan Date or, if there is a Preferred Renewal Date, every anniversary of the Preferred Renewal Date (the appticable anniversary being the " Suppon 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. 2. Subject to the availability of an'Accreditatlon 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 it the Software with respect to which Support and Maintenance are provided hereunder ware 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 lees payable lot the year just ending upon that Support Renewal Date. 3. CSS recognizes the lax exempt status of the Customer and will not assess taxes against the Customer for as long as the Customer remains tax exempt and provides proof of such exemption upon demand,. 4. All prices are in the currency of the country in which the Software is installed. The oanies hereto each Full Legal Customer Name Address Facsimile Class Software Solutions Ltd, Authorfzed Signatory Date Authorized Signatory EXHIBIT A oa nounc ov inisAoreemeni. Designated Customer contact person/CSS System Administrator and site; If more than one, provide all 62W, � ZO63 Date Class Software Solutions Ltd. Support and .Wlnrenant;e 1 tOCT02 Form (Cover Page) Page 1 or 6 h Date /Time OCR -06-2 n0 NON) 16. 1 ® software solutions Shaping the futuro of communities SOFTWARE TABLE: Licensed CSS Software Modules Class Soft*= Solutions I.W. Suite soo, UW Roberts Street Burnaby, BC Canada V5c 4M t 1.13M.6611 196 f. 504.432.9708 dassodassinfo.cum www.gassinfo.com Module No. of Copies of Nodule Supported/ Maintained IOW soft" Llpanaing Cost Total Module Support/ Malntsnan00 Cost X0.1 ' f.0 t�n rN•, 1. 13maram Roalstration Pro cram Maintenance 4 1 750 51.750 u. FliwxReg lautarrmtkally kensed it i is kansed iii. Membership A Paw Management Nentberft PamMalntenatice $1,750 iv. FwWtV Booft lFacility Maintenance 4 $1,750 $1750 V. QuickRez (autwalkally rKensed if iv is licensed vi. Point of Sale & Site -based Inventory POS Maintenance 500 U. SoM Sdiadu�nq $1,750 5875 viil. 6w= Fadiffy Boo $500 ix. IVR — Fteqi0allon. QW*Re2 and Voice Info min. 4 lines)__ IV R Maintenance 51750 r. Randomization S5,000 xi. Afrinl xii, External lnlerfaoos — Banner $5,000 A5. External Interfaces — Financial (Awants Payable and General Ledger) 1 S1 750 $43750 xiv. Extamallnterfaoes — Dssid Publishing $1750 xv. MvWinqual Capatillity 1500 xvi. IVR - Aagistration & VoIca Server 55,000 xvii. IVR - QuickRez Book & Volga Server $5.000 xa. PayrnerilPr2awiServer Credit and, Dobh end Electronic Funds Transfer $5,000 dx. Credit Card and oebh Card Payment Processing a Internet Program Registration (autorraftally Ilcensed if both uii and xxfu are licensed xx). Internet QulckRez Bookings 55,000 xxii. Internet L 25 Concurrent Users peritiffled per license 55,000 xxill. Internal Pr ram Cluery 55 000 roue, Internet Facility Inventory Qua and Avaitability $5.000 rrxv. MAP S5 000 M-1 M-13MA t1CfilCOfff�df0llWf n90d'MafilllEaii: ;- 'Y.`$i : � :�'�'�,t�a;j�.' xrA. System Utilities as defined in IN Terms and Conditions .. a.... M1 ..,."2- --.'L- ...�E.fJ� +:Y'd}'s xxvii. Information Management 1 5500 $125 xxvw. membership Pass Valldadon 5500 Total cost 4,937.50 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 Suppord Maintenance Cost" columns of the Software Table are applicable only upon the date of entry into this Agmemen4 and are subject to change thereafter In accordance with this Agreement's terms. Class Software solutions Ltd. Support and Maintenance 11 OCT02 Form (Software Table) Page 2 of 5 h Date /Time KT-06- W(ffl 1b:fl P. U Ssoftwam soludons Shaping %he f"ture of communities 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 !Votes 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 Motes 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 ooen with reduced staff on the following Canadian statutory holidays: Good Friday; Victoria Day (3`d Monday in May); Canada Day (July 1 "); BC Day (1 r" Monday in August); Thanksgiving (2d Monday in Oct); Remembrance Day (November 11); Boxing Day (December 26). On the following holidays, the CSS Support Desk will be close : New Year's Day, Christmas Day, Labor Day (1 "Monday in September). CUSS Saffwsfe $0WCOnS Ltd. Support end maintenance t i oCT02 Form (Levels Descrlphan) Page 3 Or 6 Pix Date /Time OCT-06- M(MM 16:21 ® TERMS AND CONDITIONS OF CSS SUPPORT AND MAINTENANCE i DEFINMONS and/or Improvements to a previous Version. New Versions will be denoted by 1.1 Definitions - For the purposes of interprefing this Agreement, the following a change to the version number to the (eft of the decimal point such as from terms will have the following meanings: Version 1.0 to Version 2.0. 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 tine 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 One item xxvl to which h) applies. d) "Release" means any release, update, patch, set of revisions, or bug/permarm 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 crested or licensed by CSS and are identified in the Software Table as being subiw to Support and Maintenance in connection with this Agreement, and any versions or Releases thereof provided by CSS, in executable form. tj "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: • 0onoral network support - for example network access, printing, backup 8 restoration; • PC hardware trouble shooting; • PC setup, configuration and optimization; • Network operating system configuration and functionality; • Basic Microsoft Corporation 'W Widows" functionality (a.g. using File Manager or Explorer); • Modem Configuration 8 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 (20) days after Initial Installation. h) "System Utilities" includes the following Modules: Accounting Processes, Archive Class Database, Central Login, Class Oracle Database Creator, Compact Mass Database, Copy Class Database, Edit Class Database, Large Settlement Processor, License Class Modules. Log Accounting Information, ® Maintain Class Database, Reset Barcodes, System Maintenance, Upgrade Class Cash 3.0 Database, 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 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 Ilmft the scope, ezlent or intent of this Agreement or any provision hereof. Z, SUPPORT SERVICES 2,1 CSS colt/ provide to the Customer Support for a) the Release of the Software that is from time to tme the most recently - released, generally available Release, and b) for the twelve (12) months immediately following general availability of the Release described in a), for the Release which immedWey precedes that Release. Support services will not be provided for any nonu,nant Version or Release after twelve (12) months from the data 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'-17f notification from the Customer's authorized contact persortilr131-9h apparent error in the Software, CSS win use commercially reasonable off 6rts.to- promptly investigate the issue and determine whether of not there is in fact an Ro(• and to advise the Customer that either an error does not exist, or confirm mat one does exist and what, if arty, 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 furdwallty as sat 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 sale discretion. 3.2 CSS will provide to the Customer, either physical toms 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. L. ASSIGNMENT OF PRIORMES 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 Description Standard Priority Comotelion 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. 8 - Urgent Serious issues signlficangy Impeding Within 24 hours. use of system but do not prevent cone functions (such as processing registrations, memberships, rentals) from being fulfilled. C - Normal All other issues, except those classified Wllhin 36 hours. as D (Low). D - Low Issues that are rat time- sensitive or None may be undertaken as customer service initiatives outside the scope of this Agreement. "form( 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 CUSS Software Solutions Ltd. Suppon and mainienanoe 11 OCT02 Form (Terms and Conditions) Page 4 of 6 Rx hte /Time KT-h-HU(NK 16;21 . to Cull speak directly to the support representative dealing with the Issue in order to arrive at an acceptable solution. to cases where escalation is desired or necessary, Please contact the Supervisor, Support Services with any concerns you may have (phone 1- 600.663. 4991). 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 initWly 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 tack of training of Customer's personnel improper treatment or use of the Software; d) tug report customization service; e) any and all hardware support, maintenance or troubleshooting issues, except as described in section 1.1 1.1)11}, regardless of the source of such hardware. fs IIES AND PAYMENT 6.1 In consideration of the Suppon 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 lees applicable based upon the toss then in affect, Worsted 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 leas 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 Discounr, 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 has Symanteds Morton pcANYWHERE, Windows Terminal Server or similar means, and appropriate internet connections, for dial -In access by CSS personnel M 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(B) • 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 Customers 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 :oust be authorized to make policy decisions for the Customer relating to the Software; C) Electronic Communication - The CSS System Admintstrator(s) is (are) capable of communicating with CSS via the internet and electronic mail for support and rite transfer purposes; �I) 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 cenilfoatlon or course work reasonably satisfactory to CBS, or by equivalent experience including the ability to install, maintain, backup and restore, troubleshoot, and optimae 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 suppon whatsoever relating to the Ctstomers database(s); and Network Administrator – the Customer has one or more employees in the departmem or agerky using the Software with ezperfise 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 Cast riot met untit the next - follovtin"upport Renewal Date, will immediately -be payable by the Custonrerio- CSS, such amount to be Invoked by CSS to the Customer, The Customer will Immeddafely notify CSS upon any of these criteria no longer being Raj— -• 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 win pay to CSS, prior 10 re- instatement of Support and Maintenance services 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, L. ACCESS TO SYPaM AND OTHER A OBLIGA S 1.1 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, romper dlsplaylpro*fion facilities, and Clip than or whlteboard, plus markers- and other ancillary supplies; d) subject to the security requirements of the Customer, 24 hour access to the Cuslome !) 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) Symantec's Norlon peANYWHERE, Windows Terminal Services, Citrix s MataFrame Server or similar means, to aflow dial upfintemet access and install it to allow CSS to remotely diagnose and correct errors in the Software and provide other Services. 7.2 Without limiting the Customers obligations, Customer will: a) use its best efforts to upgrade to arty new Release or version of the Software as soon as possible after MiXgWAMUara i imraf1l;sjXM dorm updates wit n 1414 calms of their rRlef7fi.8: ensure that at 1111 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 nonce a single silo and Singh 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 CWss Software SOlutians Ltd. Support and Maintenance 11 OCT02 Form (forme and Conoleons) Psge 5 of 5 Rx Date /Time HT- 06- NWHON) lVfl • d) provide pankadars of the Customs system oonflguradon in sufficient detail to allow CSS to effectively provide Services hereunder. L REPRESENTATIONS AND WARRANTIES 8.1 Insurance — CSS represents and warrants that h does and will at all times during the term of this Agreement maintain general liability insurance as described in the Cenillcate 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 simaar 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- perormance artdfor failure of CSS to perform the senrites 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 wananbes. Non-performance shati Constitute a material breach of this Agreement to which Section 11.1 will apply. 9. EXCLUSION OF OTHER WARRANTIES AND LIMRATION OE 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 — I N NO EVENT WILL CSS AND /OR THE CUSTOMER BE LIABLE TO ONE ANOTHER 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 OR CONCURRENT 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 ('m 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 PARTIFS 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 8) CUSTOMER MAY NOT EKING OR INITIATE ANY ACTOR PROCEEDING AGAINST CSS ARISING OUT OF THIS AGREEMENT OR RELATING TO RELEASE OR SERVICES IN EXCESS OF STATE OF TEXAS STATUTE OF LIMITATIONS 9.4 SEPARATE ENFORCEABILITY - SECTIONS 91, 9.2 AND 9.3 ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE INDIVIDUALLY ENFORCEABLE. A TERM 10.1 Term -The term of this Agreement will commence on the Support Stan Date and, subject to termination as provided herein, wilt continue until the following Support Renewal Date, after which it wilt 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 therefore unless terminated by, the Customer at least ninety (90) days prior to the Support Renewal Date upcoming from �bme to time. 11. TERMINAMN 11A Temvnation - Thls Agreement Witt terminate: a) at the option of either party It 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 parry it the other party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or it a receiver or Uustee in bankruptcy is appointed for Me other party, or if any proceeding in ballouptey, receN+ership, or liquidation is instituted against the other party and Is not dismissed within 30 days following commencement thereof•, c) at CSS' optlon upon the expiration of sixty (80) days following receipt by the Customer of an invoice for fees payable under this Agreement and s "n invoice remaining unpaid, provided that CSS has prior to terminating under this provision given the Customer with at least ten (10) days' prior writlen notice of such non - payment, which minimum 10-day period may expire before, simultaneously with, or after the sixty day period and the Customer has not paid the undisputed amount prior to the expiration of the 60-day period; and provided that any unpaid amount is not disputed by the Customer, d) at either parb/s option if the other patty assigns or attempts to assign this Agreement other than as expressly permitted by this Agreement; or (e) 7ntmediately upon Customer providing to -CSS a certified copy —tg-.a resolution of the Baytown City Council slating that due to budget restraints affecting the City generally, this Agreement must be terminated 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 parry may. If such default is not cured by or on the F business day following written notice of such default being delivered to the defaulting party, suspend performance and observance of any or all its obligations under this Agreement, without liability, until The other party's default is remedled, but this Section will not permit the Customer to suspend its obligadan to make payments owing in respect of Support and other Software Services 2 GENERA L 12.1 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 more 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 duty executed by boll parties. 12.2 Force Majeura • Dates or times by which either party is required to perform under this Agreement will be postponed automatically to the extent that any party is prevented from meeting them by causes beyond its reasonable control other than budgetary causes. 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 taxed notice transmission is retained. Notice may also be deposited In the Canadian mails(or d the Customer Is resident aulside 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 fare of this Agreement: 12.4 Governing Law • This Agreement and performame 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 Ouabec when the laws of Ontario, Canada will apply. ua55 aomrare aewnona t.ra. Suppcn and Maintenance t 100T02 ForM (Terms and Conditions) Page 6 of 6 h Date /Time ET- h- Z003OIK 16;21 • 12.5 Non - Assignability- This Agreement is not assignable by the Customer, and any assignment, purported assignment or attempt to assign by the Customer wig 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. 12.6 Survival - Sectons 9 and 12 will survive termination and expiration of this Agreement. • CtaBs Software Solutions Ltd. Support and Maintenance 11OCT02 Form (Terms and ConditjonS) Page 7 of 6 0 L' h Date /Time 10/06/2003 13:05 6044329708 software solutions Shaping the fusure of tommunitles CLASS GENERAL SOFTWARE SERVICES AGREEMENT This document (the "Agreementl, consisting of: PAGE 02 class Software Solutions Ltd, Suite 300, 6400 Roberts Street, Burnaby, BC Canada V5G 4C9 t: 1.600.661.1196 f: eO4.432.9708 YA"'ctassinfo.com a) this cover page ( "Cover Page"), b) the attached table of Services ("Services Tebfel; C) the attached Terms and Conditions of CSS General Software Services Agreement ("Terms and CondlUons"); and d) the attached form of Certificate of Insurance ( "Certificate of Insurance ") constitutes the agreement between the undersigned customer ( "Customerl 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 Certiflcate of Insurance. The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by this Agreement. Full Legal Customer Name Address Facsimile Class Software Solutions Ltd. Authorized Signatory Date Authod2ed Signatory Designated Customer eontaet pwvvn=6 System Adminlstrator and 'site; If mare than one, provide q11.' . Date (The remainder of this page Is Intentionally BLANK) WMIT T` Cuss Sortware SolOone Ltd. General Scftwere Services AgreemeAt 14SEPO1 Form (Cove( Page) Page 1 of 4 0 Rx hte /Time 10/06/2003 13:05 OCT-06- M(M0N) 6044329708 softwam solutions Shaoing the rv1Uro Or <Omr'MuAkios SERVICES TABLE: 16.07 6044329708 P, 003 CLASS PAGE 03 Class Software Solutions Ltd, Sude 300.6400 Roberts Street Burnaby, BC Canada V5G 4C9 C 1.800.661.1196 L 604.432.9708 dassftassinlo.com Pre-Agreed Services Rata Da Number of Days Total Pre Prb aet'Pfarinin 'and Qocumeri": liigfio z 2,000 Includes the following seMces eneral A.i. Payment Procesbin Sol-Up A.ti. Progress Reporting A.ta. Pro ed Gult Chan - milestones and staff resources • A.N. Report Deflntdons • � itch lodiantitlonand�Trlilniti " eh= �a9edlOH -Site : •. .', .`�' "�.:� . B.I. Database and CSS Software Installation $1000 9.11. CSS Software training $1000 Irn leroentatloh acid Training (04 -Site PLUS AIRFARE . C.i. Database and CSS Sofhvam Installation $1000 1 $1,000 C.n. CSS Sottwara training $1000 11 S1,1,000 .profess at 86alneaaservlces On -Site PLUSAIRFM 1 = D.I. Business Process Re-Engineertr!g S1500 D.ii. Cash HwWling and Audit Seca Assessment 1500 D.E Fit Ana $1500 Div. Proleci Management $1500 D.v. System and Procedures Audit $1500 Technh liervices &tlE PLUSAIRPARE ` ' l E.t. Database Services $1750 EJi, Network Services $1750 EJR. Crystal Reports Services $1750 E.Iv- Thin Client Services 1750 E.v. Web Custom mlion SefvWS $1750 oafabase Admiii)stratbn SW Cos F.I. ORACLE database F.tl. MS SOL database Varitiva Sa►vice Rahi.: - (MUSAiRFAREjfippficab le RATES PER HOUti' , GJ. Report Cuslomization 8 Query Support $200 for first hour 31501hour after 19 Gai. Other support relating to CSS Software $25Winciderti Up to 1 hr $125/hour after is hr Gin. Hardware Support 15% of fist price of H1W purchased from CSS- - min $500 G.N. Non -CSS hsues i.e. relating to anythiN other than CSS Software and Hardware $2501incident up to 1 hr SUM= 11A hr NOTE THATRA TES SHOWN I NCLUDE ALL TRAVEL EXPENSES O7MMANAIRFARE Totals 14 $14,000 C1a69 Sottwarn Solutions Ltd, General Software Servioss Agreement 14SEPO1 Form (Services Table) Page 2 of 4 Px hte /Time 10/06/2003 13:05 6044329708 CLASS PAGE 04 d) "Pre- Agread Services" means Services which are exprassfy listed in the Services Table as being acquired hereunder by the Customer. e) "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 teen 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 12. f) " 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, inducng but not limited to services relating to the installation, implementation, customization, optimization, administration, training and troubleshooting of computers, computer software ktut ing the Software, computer networks, databases, Intemel- related equipment end applications. . g) "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. h) "Version" means a version of the Software providing a particular lunclionality, while a new Version of the Software will provide newladditional functionality and/or improvements to a previous Version. New Versions will be demoted 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 contaUred in this Agreemant 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 provlslon hereof. 2. SERVICES TO BEPROVIDBO 2.1 CSS will provide to the Customer: a) all Are - 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. 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 Services, the Customer will pay tot 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 effectwe for gas 6-month period following effective date of this Agreement, and thereafter relevant rvioe rates, if different from the rates contained In the Services Table, will be provided to Ute Customer prior to such Other Services being rendered. 3.5 Appllcable Currency •finless specifically stated otherwtse, all prices and amounts are in the currency of the country in which the Software is Installed. 3.6 Invoices (Delivery, Payabllity and Interest) - CSS will provide invoices to me 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 I % per month. 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 who training services acquired hereunder, including classroom space, hetworked PCs (minimum 1 PC for every two training participants), networked printing capability, computer display /projection facilities, and flip &art or whilaboard, 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 representa*e to perform any of the obligations placed upon CSS by this Agreement.; and e) Symamec's Notion peANYWHERE, Windows Terminal Services or CivVs MeleFrame Server, to allow that upintemet access and Install it to allow CSS to remotely diagnose and correct errors in the Software and provide other Services. 42 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- receipt of the same from CSS, which is obligated to provide noilly the customer of software upgrades or perform updates within 14 calendar days of their release. 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 to 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. L. REPRESENTATfONS 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 Class Software Solutions Ltd. General Software Services Agreement h4SEP01 Form (Terns and Conditions) Page 3 of 4 TERMS AND CONDITIONS OF CSS GENERAL SOFTWARE SERVICES AGREEMENT 1. 1.1 0EFINriIONS Definitions • For the purposes of interpreting this Agreement, the following terms 3.3 Travel Expenses — Costs and rates as described this Agreement include a!1 CSS will have the following meanings: vet o personnel travel expenses other than airlare. The Customer will pay etl airfare relating to per x travel of CSS personnel relating to Services provided at the Customers location, which a) "Day" means eight (8) hours of work, whether provided during a single calendar airfare will, unless urgency on the pan of the Customer requires otherwise, be at'coac h' day or otherwise. rates. CSS shall make reservations at feast 14 days in advance of the scheduled flight, b) 'Initial Installation " means the date upon which any of the Sofhvare has first unless CSS obtains the Customer's prior written approval. been installed on any server computer owned or controlled by the Customer. 3.4 Shipping and Handling - CSS recognizes the tax exempt status of the Customer c) "Otter Services" means Services other than Pre - Agreed Services acquired by the and will not assess taxes against the Customer for as long as the Customer remains tax exempt and provides proof of such exemption upon demand. Customer under this Agreement. d) "Pre- Agread Services" means Services which are exprassfy listed in the Services Table as being acquired hereunder by the Customer. e) "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 teen 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 12. f) " 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, inducng but not limited to services relating to the installation, implementation, customization, optimization, administration, training and troubleshooting of computers, computer software ktut ing the Software, computer networks, databases, Intemel- related equipment end applications. . g) "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. h) "Version" means a version of the Software providing a particular lunclionality, while a new Version of the Software will provide newladditional functionality and/or improvements to a previous Version. New Versions will be demoted 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 contaUred in this Agreemant 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 provlslon hereof. 2. SERVICES TO BEPROVIDBO 2.1 CSS will provide to the Customer: a) all Are - 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. 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 Services, the Customer will pay tot 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 effectwe for gas 6-month period following effective date of this Agreement, and thereafter relevant rvioe rates, if different from the rates contained In the Services Table, will be provided to Ute Customer prior to such Other Services being rendered. 3.5 Appllcable Currency •finless specifically stated otherwtse, all prices and amounts are in the currency of the country in which the Software is Installed. 3.6 Invoices (Delivery, Payabllity and Interest) - CSS will provide invoices to me 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 I % per month. 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 who training services acquired hereunder, including classroom space, hetworked PCs (minimum 1 PC for every two training participants), networked printing capability, computer display /projection facilities, and flip &art or whilaboard, 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 representa*e to perform any of the obligations placed upon CSS by this Agreement.; and e) Symamec's Notion peANYWHERE, Windows Terminal Services or CivVs MeleFrame Server, to allow that upintemet access and Install it to allow CSS to remotely diagnose and correct errors in the Software and provide other Services. 42 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- receipt of the same from CSS, which is obligated to provide noilly the customer of software upgrades or perform updates within 14 calendar days of their release. 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 to 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. L. REPRESENTATfONS 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 Class Software Solutions Ltd. General Software Services Agreement h4SEP01 Form (Terns and Conditions) Page 3 of 4 Px Oate/Time OCT-h -20 DON) I I 10/06/2003 13:05 6044329708 cost to Customer, re- perform or perform the services so that the services conform to the Q"anties. 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 contrad 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 ANWOR THE CUSTOMER BE LIABLE TO ONE ANOTHER 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 OR CONCURRENT 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 inl0ate any act or proceeding against CSS arising out of this agreement or relating to releases or services in excess of State of Texas statute of limitations. 6,4 SEPARATE ENFORCEABILITY - SECTIONS 6.1, 6.2 AND 6.3 ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE INDWIDUALLY ENFORCEABLE. 7 UM 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 wilt terminals: 8.1.1 al the option of either party if the other party materially delaults 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- defaufling parry; 8.12 at the option of either party if the other party becomes utsolvent 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-, 8.11 et CSS' option upon the expiration of sixty (60) days following receipt by the Customer of an invoice for fees payable under this Agreement and such invoice 0 CLASS PAGE 05 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 and the Customer has not paid trio undisputed amount prior to the expiration of the 60-day period: and provided that any unpaid amount is not disputed by the Customer; or 8.1.4 at either party's option rt the other party assigns or attempts to assign this Agreement other than as expressly permitted by this Agreement; or 8.1.5 immediately upon Customer providing to CSS a certified copy of a resolution of the Baytown City Council stating that dire to budget restraints affecting the City generally, this Agreement must be terminated.; 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. Suspension of Obligations - II either party should default In the performance or observance of any of Its obligations hereunder, then, in addition to all other fights and remedies available to the non-defauWig party, the non- defaulling party may, it such default is not cured by or on the 5" business day following written notice of default being delivered to the defauffing party, 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 agraemerds, 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 limes by which either party is required to perform under this Agreement will be postponed automatically to ft extent Vial any party is prevented from meeting them by causes (other than ability to pay) beyond its reasonable control other than budgetary causes. 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 hardoopy admovrtedgment of successful taxed notice transmission is retalned. 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 wit! be governed by the laws applicable In the lurfsclicdon 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 resellem, Survival - Sections 6 and 9 will survive termination and expiration of this Agreement. Class Software Solution Ltd. General Software Services Agreement 14SEPe1 Form (Terms and Conditions) Page 4 of 4 • • Px pate /Time 10/06/2003 13:05 6044329708 software solutions Shaping the future of communities CLASS SOFTWARE LICENSE AGREEMENT PAGE 06 Casa 9ortwzre Solutions Ltd. Suits 300, 6400 Roberts Street, Burnaby, 8C Canada V5G 4C9 t•. 1.800.661.1196 t: 604.432.9708 dass0dassinfo.mm IY M,cfawinlo.mm This document (the "Agreement°), consisting of: a) this cover page ("Cover Pagel, b) the attached table of licensed Software ( "Software Table'l; and C) the attached Terms and Conditions of CSS 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 descrlbed 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 ROR 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: F) CSS will invoice the Customer for the amounts ccntemplated 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. The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement. Full Legal Customer Name Authorized Signatory Date Address Facsimile Class Software Solutions Ltd. CLASS Software Soiulions Ltd. (cry Date Software, License Agreement 11 OCT02 Form (Cover Page) Page 1 of 5 Upon delivery of the Software 25% 30 days after Initial Installation of any Module 65% 90 days after Initial Installation of any Module 10% F) CSS will invoice the Customer for the amounts ccntemplated 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. The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement. Full Legal Customer Name Authorized Signatory Date Address Facsimile Class Software Solutions Ltd. CLASS Software Soiulions Ltd. (cry Date Software, License Agreement 11 OCT02 Form (Cover Page) Page 1 of 5 • Px hta /Time HT- OH00 NON) 16;0? 6094329 ?0$ 10/06/2003 13:05 6044329708 CLASS software solutions Shaping the future of communities SOFTWARE TABLE: Licensed CSS Software Modules F, Q01 PAGE 07 Class Software Solutions Ltd, Sub 300, 8400 Roberts Straot, Bumaby, BC Canada V5G 4C9 t 1,800,681,1196 f:504.432.9708 ctass www4jr.4nig, �rr1 Module Module Unit Price No. of Copies of Module Licensed Total Module Cost n 'fn' elan see .r"s�;>� •' ,r�� •.•� �. - i. Program Regisbation Pro rem Maintenance $1,750 4 $7.000 i. FlexRe autornab al licensed 'd i is licensed iii. membership tk Pass Management (Meftersho Pass Maintenance $1750 iv. FacN Boo �m (Facifty Maintenance 1750 4 $7000 - V. Ouo ez automatically licensed if iv is lioensed vi. Point of Sale 8 Sita•based Invents POS Maintenance $1500 W. Sp2rj Schedull $1.750 2 $3,500 rin. Browse FaciUly Boold2e $500 ix. IVR — Aeqifttlon, Ov$ckRez and Voice Info min. 4lines IVR Maintenance $1,750 S X. Randomization $5.000 xi. Affinity xd. External Interfaces — Banner $5,000 xiii. External Interfaces — Financial Accounts Payable and General Led tier) $1,750 1 $1,750 xiv. External Interfaces — Desks PublishinQ $1750 xv. Multilin ual Capability $500 xvl. IVR • R istralion 3 Voice Seller 35.000 xvu. IVR — QuiokRez BoWng 8 Voice Server $5.000 xviii. Payrnent Processln Server Credit and, Debit and Elecworllc Funds Transfer $5.000 )ix. Credit Card and Oebil Card Payment Precessin inlen:e 8 r o ��l4Snv;Ya•}`e�,,nrr'�# �'<q'iYS'rY>#'i.�µ �.� xx. Internet Program Ae istration (autornaticah licensed if bolh xxii and )od are licensed xxi. Internet QuickRez Bookings $5,000 xxil. Internet Login 25 Concurrent US9(12erminQd per licanse ) $5,000 xxi ri, Internal PrOMM Query $5.000 x&- Internet i5moty inventory Ouary and Availability $5,000 pcv. MAP $5,000 c3 , t• i�•Yf., i i. �;n'.: is • i;,�r!':;; `i."��•••' >.'! ....... .'tr '; •..v�' .� -lY :� :t % /' 1Pf:.� 1 _ '..�,..�. a.ModulesmCosts:lnclYded In 00615 OI cttierllC6nied MOdulea `r ..c..:...'•.'i`- 'ap7:.�, f. �r i:�r''^IV 'y;r�.:'y:¢�.C?ylAii1`• �i. � ��sr}'.irY: %LfJ X 1 Yjr4 �,.,�• .!1i. w. x�7 % r C . tzvf. S stem lEtjlities as defined in section 1.1 r of the Terms and Conditions • y[F' to �;a,:. �.: C^;J1.1,:•.v fti wl�,e a. y�••a2'3 _�.: .;,W F., S �.'vr,�f•`•.':V vA',�Sn�:e' '• aS .i� ".SGJ..�I:: i ^f ;L7 •`.�3�'• 1ti 1 - .:'ero�+1%,"� �' •N �{�y'ftlFr „L 19 Skb 't ', 7"'�'ry�f': ]l,�p•+s --( .iry:4; xxAi. Wormation Management $500 t $500 x,Mi . Mernbersh Pass Validation $500 I WWI MVO- ' 'I ly,IOU CLASS Software Solutions Ltd. Software License Agreement t IOCT02 Form (Software Table) Page 2 of 5 h Date /Time 10/06/2003 13:05 6044329708 CLASS TERMS AND CONDITIONS OF CSS SOFTWARE LICENSE AGREEMENT * INTERPRETATION I Definitions - For ft of interpreting this Agreement, the following terms will have the following meanings: a) 'Agreement' means this Class Software license Agreement . b) "Client Workstatlon" means a computer attached to a local- or wide -area network (including an Intranet) which accesses the Software or Enterprise Database. c) 'Concurrent Use" means use at the same moment in time to access a given server computer (of any Idnd) owned or controlled by the Customer. d) "Customer" means the legal erttity other than CSS entering this Agreement. e) 'CSS' means Class Software Solutions Ltd. I) 'Database Server" means the single server computer upon which the Enterprise Database is resident. g) 'Enterprise Database' means the MS SQL Server database files containing customer data (which is owned by Customer] and which is accessed by the Software. h) 'Initial installation' means Initial installation of any Module on any server computer owned or controlled by the Customer. k) M) A) o) P) 4) • PAGE 08 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 torte 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. L 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, Internet Cltent" means a remote device capable of using the Internet and b) 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 Intemel, 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 Customers clients, having a minimum configuration as set out in hardware specificatlons previously described to the Customer as applicable to the Software to be installed and used upon it. "Mainterfanee 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 xxvl to which r) applies. 'Operating Module' means any item of Software listed but not in parentheses in line items i throughix. "Payment Processing 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 tiles, 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. "Software Table' means the table of CSS Software Modules licensed hereunder, shown on the page of this Agreement immediately following the Cover Page. "System Utilities" indudes the following Modules: Accoxmling Processes, Archive Class Database. Central Login, Class Oracle Database Creator, Compact Class Database, Copy Class Database, Edit Class Database, Large Settlement Processor, License Gass Modules, Log Accounting Information, Maintain Class Database, Reset Barcodes, System Maintenance, Upgrade Class Cash 3.0 Database, Upgrade Class Database and View Components. "User" means a person who accesses and uses any of the Software to access, use or affect the Enterprise Database in any manner whatsoever. C) Maintenance Modules - For every Operating Module licensed pursuant to the Software Table for which the Software Table shows a corresponding Mailenance Module, the Customer 6 ay 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. System Features (Server Based Licensing) - Subject to d), the Customer may install one copy of each Module licensed pursuant to line items x through Wii 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 xvi (IVR - Registration & Voice Server) or line item xvii ('IVR - QuickRez Booking & Voice Server) 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 IVR Registration., QuickRez and Voice Info' Module licensed pursuant to line Rem ix; ii) line item xviii (Taymer>t Processing Server's may be in Concurrent Use by, at most, the number of lines of the Credit and Oebit Card Payment Processing Module, as applicable, licensed pursuant to line item xix. e). System Features (User Based Licensing) - Payment Processing Modu/as - For each Module licensed pursuant to line item xix the Customer may: s) install such Module upon as many Client Workstations as the Customer wishes, and if) permit Users to use such Modules to pay for products andler services available from the Customer through the use of other :Nodules provided that only the number of copies of these Payment Processing Modules shown as being licensed in line item xix may be in Concurrent Use, I) Internet Access Licenses f Login -Based) - For every Module Ileensed pursuant to line items xx and xxi the Customer may: 1) install one copy of each such Module per license of such Module on one Internet Server, and ii) subject to h), permit Users to access and use such Modules to access the Database Server via Internet Clients connecdng via a licensed Internet Server, provided that at any time, any or all such (Nodules may be in Concurrent Use by, at most, the number of licenses of the 'Intemel Login" Module licensed pursuant to line item xxil multiplied by twenty-five (25). g) Internet Enabling Licenses (Non4niernet Login - Based)- For each Module licensed pursuant to line items WI, xdv and xxv the Customer may: install one copy of such Module per license of such Module upon an Intemet Server, and CLASS Software Solutions Uo, Software License Agreement t IOCT02 Form JermS ano Conaitlons) Pace 3 or 5 h Date /Time HT-06-2003OMI 1H1 10/06/2003 13:05 6044329708 ii) permit Users to use such Module to access the Database Server via Internet Clients connecting via the Internet Server upon which such Module is installed, without limit as to the number Users or transactions which simultaneously use any such Module. h) 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 items xx and xxi 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 togged into that network in a manner that would enable the User to access and use the Modules listed in those Gna items will in fact reduce by one the number of Users able to simultaneously access time Modules, even H such User is not in tad accessing or using any such Module. The Customer hereby waives any claim, and releases CSS from any such claim and tram any Iowa or damages the Customer suffers In relation thereto, In connection with the Inability of the number of Users Indicated in line Item tali to simultaneously access the Modules licensed per tine ftems xx and md, whom 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. i) Other Licenses (Information Management) - For each Module licensed pursuant to line item xxvii, the Customer may: i) install one copy of such Module upon a single Client Workstation per license of such Module, and ii) permit Users using such licensed Client Workslabon(s) to use such Module(s), provided that only the number of copies of such Module licensed pursuant to line item xxvii may be in Concurrent Use, and further only one copy may be in Concurrent Use on any given licensed Client Workstation. jJ Other Licenses ( MambersNp Pass Valida6on)- If the Customer has licensed the 'Membership Pass Validation' Module pursuant to line item xxviii, the Customer may install one copy of such Module on each of as many pass scanning stations as the Customer has licensed copies of that Module as shown in line item x)Mii. 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 fhat 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 intellectua) 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 dams 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 B handling costs. CSS recognizes the tax exempt status of the Customer and Oil not assess taxes against the Customer for as long as the Customer remains tax exempt and provides proof of such exemption upon demand. 4. OWNESHIP QF OFTWARE 4.1 Warranty of Title - CSS warrants that it has all rights necessary to make the grant of license herein by having all fight, title and interest in and to the Software or as licensee of all such rights from the owner thereof. A.2 Fatention of Riohls by CSS and Custome(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 CLASS PAGE 09 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) except as required pursuant to the Texas Public Information Act or other state or federal law as determined by representatives of the Customer, 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 axecutable 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 a) 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 - Provided that Customer notifies CSS in writing promptly after any such claim, suit or proceeding is known to the Custo ramie 'and gives CSS information and such assistance .as is reason a in - the circumstances, CSS WILL INDEMNIFY, HOLD HARMLESS AND DF.EFbi THE CUSTOMER FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, CAUSES OF ACTION, SUITS, PROCEEDINGS, AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEYS' FEES, FOR ANY AND ALL COSTS, DAMAGES, PENALTIES, AND /OR FEES INOSFAR AS SAME ARISE OUT OF OR IN CONNECTION WITH THE ACTUAL OR ALLEGED INFRINGMENT OF ANY PROPRIETARY AND /OR INTELLECTUAL PROPERTY RIGHT. BY THE SOFTWARE PRODUCTS LICENSED HEREUNDER THIS INDEMNITY SHALL APPLY WHERE THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITY ARISE IN PART FROM (1) SOLE NEGLIGENCE OF CSS OR (11) CONCURRENT NEGLIGENCE OF CSS AND THE CUSTOMERANDIOR ANY OTHER PERSON OR ENTITY. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE LOSS, DAMAGE OR LIABILITY RESULTS FROM THE SOLE NEGLIGENCE OF THE CUSTOMER UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. THE INDEMNITY PROVIDED FOR HEREIN SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. CSS will have sole authority to defend or settle any such claim at CSS's expense. It the Software in any claim, suit or proceeding has been determined 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 011 have the option, at its own expense, to either (f) 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 the Customer experiences no diminution in the performance of the Software. 5. W I1MANTY 5.t 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 N 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 nonconformity within a reasonable time using reasonable efforts, CSS shall immediately refund to Customer the license fee ponaining to the Software and this Agreement Oil be automaticaliy terminated. All warranty service will be performed at service locations designated by CSS. 6, EXCLUSION OF WARRAtM AND LIMITATION OE QA5ILJ]y 6.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE WARRANTIES SET OUT IN SECTIONS 4.1 AND 0 ARE IN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND WHATSOEVER APPLICABLE, CUSS Software Solutions Lid, Software License Agreement t t OCT02 Form {rerms and Con0ition3) Page 4 of 5 h Bate/Time HT- h- 20MMON) 16.0] 10/05/2003 13:05 6044329708 EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT OR TORT) OR glkCUSTOM, 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 NO INDIRECT DAMAGES — WITHOUT LIMITING THE GENERALITY OF SECTIONS 6.1 AND 6.3, IN NO EVENT WILL CBS AND/OR THE CUSTOMER BE LIABLE TO ONE ANOTHER 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 OR CONCURRENT NEGLIGENCE OF CSS, IN CONNECTION WITH SOFTWARE PROVIDED HEREUNDER OR IN ANY OTHER RESPECT RELATING TO THIS AGREEMENT. 6.3 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: 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) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR PROCEEDING AGAINST CSS ARISING OUT OF THIS AGREEMENT OR RELATING TO RELEASES OR SERVICES IN EXCESS OF STATE OF TEXAS STATUTE OF LIMITATIONS. 6.4 SEPARATE ENFORCEABILITY -SECTIONS 6.1 THROUGH 6.3 ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE INDIVIDUALLY ENFORCEABLE. 7. TERMINATIOK 7.1 Tenninatlon - 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) v0mout limiting a), at the option of CSS if the Customer breaches section 3 of Ws Agreement; or c) immediately upon Customer providing to CSS.a certified copy of a resolution of the Baytown City Council stating that due to budget restraints allecUng the City generally, this Agreement must be terminated. 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, II such default is not cured by or on the 5v' business day following written notice of such default being delivered to the defaulting party. 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'ofher Software Services J), AUDII 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 par 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 CLASS PAGE 10 Customer's business. Further, CSS may, using automatic means which do not interfere with the use of the Software by the Customer or Users outer 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. ERA 9.1 Complete Agreement - This Agreement 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 -will be postponed automatically to the extent that any parry Is prevented from meeting them by causes beyond its reasonable control other than budgetary causes. 9.3 Notices - All notices and requests in connection with this Agreement will be given to the respective parties in writing and w411 be deemed given as of the first business day of the notified party fallowing the day the notice is taxed or sent via overnight courier, providing a hard copy acknowledgment of such successful taxed notice transmisslon or evidence of such couriering, as applicable, is retained. Notice may also be deposited in the Canadian or United States malls (depending upon the location g(.4)e party sending such mail), postage.pra -paid, certified or. mislamd ..• 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 if 9d 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, 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 CFA 52, 227 -19, as applicable. The Contractor/ Manufacturer is Class Software Solutions Ltd,, Suite 300, 6400 Roberts Street, Burnaby, British Columbia, Canada, V56 4C9. Nore everp=n provision. CLASS Software Somutlons Ltd. Software License Agreement 1 t OCT02 Form (Terms and Conditions) Page 5 of 5