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HomeMy WebLinkAboutIntelex Technologies Inc; 2015-07-29;INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made as of the 2^"^ day of Jt«jy 2015 (the "Effective Date") between Intelex Technologies Inc., a Canadian corporation having offices at 905 King Street West, Suite 600, Toronto, Ontario, Canada, M6K 3G9 ("Intelex") and The City of Carlsbad, a municipality having registered offices at 799 Pine Ave., Carlsbad, CA 92008, United States of America ("Licensee") WHEREAS, Intelex has developed and licenses certain software and documentation related to environmental, health and safety, and quality management; WHEREAS Licensee wishes to acquire an internal use license to such software, without the right to modify or resell, along with support services related to such software; NOW THEREFORE, in consideration of the mutual covenants, promises and obligations contained herein and other good and valuable consideration, the receipt and suflficiency of which is hereby acknowledged, the Parties hereto agree as follows: 1. DEFINITIONS 1.1 "Affiliate" means with respect to any , corporation or limited liability company (each a "Person") that controls or is controlled by or under common control with the Party, provided that a Person shall be deemed to be an Affiliate only so long as such control exists. "Control" when used with respect to any Person, means ownership of at least fifty percent ofthe voting stock, shares or other equity interest in the Person and possession of the power to direct or cause the direction of the management of policies of the controlled Person. 1.2 "Aggregate Data" means the Licensee Data received by Intelex that has been subsequently compiled on an aggregate or anonymous basis. 1.3 "Authorized Use" means access and use of the Licensed Software in one Production Instance and only by the number of users and restrictions of each type specified for each Licensed User 1.4 "Confidential Information" means information that is confidential and otherwise proprietary that is disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"). Subject to the exceptions listed below, Confidential Information shall include will include Disclosing Party's proprietary software, technology, trade secrets, specifications, methodologies, demonstrations, training material, workflows, diagrams, test cases, test scripts, non-public website, and customer information, and other material that has been clearly identified in writing at disclosure as confidential or proprietary, or confirmed as confidential within thirty (30) days of disclosure, as well as any information, that due to the circumstances under which it was disclosed, a reasonable person would infer as confidential. Confidential Information does not include any information that: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party's lawful possession priorto the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (d) is independently developed by the Receiving Party by employees or agents without access to the Disclosing Party's Confidential Information; or (e) required to be disclosed pursuant to applicable federal, state or local regulation, statute or law. 1.5 "Documentation" means the user documentation and training material related to the Software made available by Intelex through its online portal, or other means as Intelex may determine, from time to time, 1.6 "Licensed Software" means the compiled run-time executable code, in machine readable form, of the specific Software listed in the Software Schedule to this Agreement and any applicable Orders made from time to time, along with any related Documentation. 1 of 19 FORM-FIN-005 VI - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 1.7 "Licensed User" means a user authorized to use the Licensed Software for an additional fee per user as specified in the Software Schedule and any applicable Order. 1.8 "Licensee Data" means all electronic data or information submitted by Licensee users and stored or processed in the Licensed Software. 1.9 "Modification" means any modification, enhancement, improvement or amendment, to Software, including without limitation the release of Software which fixes any faults or bugs, adds functionality to the Software or otherwise amends or upgrades Software or any new version ofthe Software which contains significant differences from the previous version which from time to time is offered by Intelex in the course of provision of its normal Software Support and Maintenance. 1.10 "Order" means any quote form or subsequent schedule, detailing additional Software and Licensed Users ordered by Licensee, License Fees payable and applicable additional Annual Support Fee, which has been accepted and signed by Licensee subsequent to the Effective Date, and which will be subject to the terms and conditions of this Agreement. 1.11 "Production Instance" means a single logical production instance comprised of one or more physical or virtual servers, which in aggregate support a single logical system. 1.12 "Proprietary Rights" means any and all rights, whether registered or unregistered, throughout the world in and with respect to patents, copyrights, database rights, moral or author rights, confidential information, know-how, show-how, trade secrets, design rights, and other similar rights or interests in intellectual or industrial property, including without limitation rights subsisting in inventions, methods, processes, formulas, computer programs, compilations, derivative works, improvements, drawings, specifications, mask works or integrated topographies, domain names, trade dress, logos, artistic works, audio-visual works, animated characters, trademarks and service marks. 1.13 "Software" means all Intelex software (including the computer programs, platforms, systems, applications, modules, interfaces, tools and Modifications and other related intellectual property. LICENSE GRANT AND OWNERSHIP 2.1 License: Subject to the terms and conditions of this Agreement, in consideration for and subject to payment of the License Fees and Support Fees, Intelex hereby grants to Licensee, as of (i) the Effective Date or (ii) in the case of Software licensed under an Order, the date of signing ofthe applicable Order, a non-exclusive, non-transferable and non-sub-licensable (except as expressly permitted in this sub-section 2.1), perpetual, worldwide license to use, copy and install the Licensed Software solely within the Authorized Use for the normal internal business purposes of Licensee, provided use complies with any restrictions set out in this Agreement. Licensee may grant sub-licenses under this Agreement to its Affiliates for use in accordance with the rights granted Licensee and the terms of this Agreement, as long as Licensee assumes full responsibility for such Affiliate's compliance with and any breach of this Agreement including, without limitation, any violation ofthe restrictions on use of Licensed Software and obligations of confidentiality where such Affiliate breach shall be deemed as Licensee breach, and provided that total use by Licensee and its Affiliates together shall not exceed the Licensed Users as authorized. All rights not expressly granted to Licensee herein are expressly reserved by Intelex. 2.2 Ownership: Copies of any Software or Documentation created or transferred pursuant to this Agreement are licensed, not sold, and Licensee receives no title to ownership of 2 of 19 FORM-FIN-005 VI - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 any copy of the Software or Documentation itself. Except the non-exclusive licenses expressly granted by Intelex to Licensee under this Agreement, all ownership, license. Proprietary Rights, and interests in, and to, the Software (including without limitation the Licensed Software) and Documentation, in whole or part, shall remain solely and exclusively with Intelex and/or Intelex's licensors. Licensee hereby transfers and assigns to Intelex any Proprietary Rights Licensee may have to its modification [and customization] to the Licensed Software and/or Documentation. 2.3 Restrictions on Use: Without limiting the generality of the foregoing, except as expressly provided in this Agreement, Licensee shall not itself, or permit others to: (i) modify, create derivative works from, distribute, publish, publicly display, rent, lend, or sub-license or transfer the Software (or any part thereof); or (ii) reverse engineer, decompile, disassemble, or attempt to derive any part of the Software source code, or circumvent any technological measure protecting the Software from unauthorized access, use or disclosure; or (iii) use the Software or any part in breach of any applicable laws or regulations; or (iv) remove, alter or obscure any proprietary notices or labels in the Licensed Software, including without limitation, brand, copyright, trademark and patent or patent pending notices. 2.4 Licensee Data: Licensee reserves all rights, title and interest in and to the Licensee Data, and subject to the limited rights granted by Licensee hereunder, Intelex acquires no right, title or interest from Licensee under this Agreement in or to Licensee Data, including any Proprietary Rights therein. Licensee hereby grants Intelex a limited license to copy, transmit, display and modify such Licensee Data, solely as necessary for Intelex to provide the services under this Agreement as well as to compile and use the Aggregate Data. SOFTWARE SUPPORT AND MAINTENANCE 3.1 Intelex will provide support and maintenance services for the Licensed Software ("Software Support and Maintenance") in accordance with the Software Support and Maintenance Terms set out in Schedule B and on payment in advance of the Support Fees as set out in the Software Schedule or any applicable Order. 3.2 Support Term: Software Support and Maintenance commences on the date (the "Support Start Date") and will be for the initial term (the "Initial Support Term") specified in the Software Schedule. Subsequently, Software Support and Maintenance will automatically renew for successive terms of one year (each term a "Renewal Term" and each Renewal Term and the Initial Support Term being a "Support Term") on the anniversary ofthe Effective Date, unless terminated by Licensee providing written notice at least thirty days prior to the then current Support Term. FEES AND INVOICING 4.1 License Fees: Fees for the Licensed Software and Licensed User ("License Fees") are as set out in the Software Schedule and applicable Orders. 4.2 Support Fees: (a) Annual fees for Software Support and Maintenance ("Support Fees") are set out in the Software Schedule and the applicable Orders. (b) Support Fees are subject to annual increases by an amount equal to the annual percentage increase in the US Consumer Price Index ("CPI") over that of the prior calendar year This annual increase shall not be greater than three percent (3%). 3 of 19 FORM-FIN-005 VI-May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 (c) If Licensee allows Software Support and Maintenance to lapse either by non- payment of Support Fees when due or by providing notice of termination, and subsequently requests reinstatement ofthe Software Support and Maintenance, Licensee will incur reinstatement charges of the then current Support Fees in effect at the time of reinstatement for the total lapsed period. 4.3 Invoicing: Unless otherwise agreed to in writing and signed by both parties: (a) License Fees will be invoiced on signing of this Agreement or applicable Order; (b) Support Fees are payable in advance and will be invoiced on signing of this Agreement or applicable Order. If Licensee licenses additional Software and or orders additional Licensed Users effective on any date other than the Effective Date or any anniversary of the Effective Date, the Support Fees for such additional Software and Licensed Users shall be pro-rated for the remainder of the then current Support Term. Support Fees for subsequent years will be invoiced sixty days in advance of the start of the next Renewal Term. 4.4 Pavment Term: Unless otherwise agreed to in writing and signed by both parties. Licensee will pay all fees owed within thirty (30) days of the date of issuance of the applicable invoice. 4.5 Taxes: Licensee agrees to pay any sales, value-added or other similar payable by Intelex and based on the Software and/or services provided by Intelex, except for taxes based on Intelex's income. WARRANTIES 5.1 Intelex warrants that for a period of ninety (90) days after the (i) Effective Date, or (ii) in the case of Software licensed under an Order, the date of signing of the applicable Order (the "Software Warranty Period"), the Software, as delivered, shall perform materially in accordance with the specifications contained in the then current Documentation that relates to the version of the Licensed Software made available by Intelex to Licensee. The Licensed Software will have first been made available to the Licensee when Intelex installs the Licensed Software on Intelex ASP Servers in readiness for configuration. In the event of any breach of the warranty in this sub-section 5.1 during the Software Warranty Period, Intelex shall, as its sole liability and Licensee's sole remedy, diligently remedy such deficiencies that cause the Software to not conform to this warranty. If Intelex determines that it is unable to remedy such deficiencies, Intelex will refund to Licensee fees actually paid by the License to Intelex for that portion of the defective Licensed Software, and Licensee shall cease to use that portion of the Licensed Software. 5.2 Except for the express warranties specified in this Section 5, Intelex does not make, and specifically disclaims any and all warranties of any kind, expressed or implied, including, without limitation, warranties of merchantability or fitness for a particular use and purpose, that the Licensed Software will meet Licensee's requirements, or that the Licensed Software will be error-free or uninterrupted. Without limiting the generality of the foregoing, Intelex provides no warranty regarding, and will have no responsibility for, any claim arising out of (i) the use of third party components in conjunction with the Licensed Software or any module or sub-component; (ii) modification of the Licensed Software or Documentation made by anyone otherthan Intelex; or (iii) unauthorized use or access or security breach of any Licensed Software or of the system or servers upon which hosting is provided. 4 of 19 FORM-FIN-005 V1-May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 INDEMNITY 6.1 Subject to the terms of this Section 6 and of Section 7, Intelex shall (i) defend Licensee from any claims, suits, actions or proceedings brought against Licensee which allege that an infringement of any third party patent or copyright and/or misappropriation of trade secret existing under the laws of Canada and/or the United States (individually and collectively referred to as a "Claim"); and (ii) indemnify Licensee for any finally awarded judgement by a court of competent jurisdiction, after all appeals are exhausted in respect such Claim, or for any Intelex agreed final settlement of such Claim; to the extent that such Claim arises solely as a result of Licensee's use of the Licensed Software in accordance with the Documentation and this Agreement, and provided (a) the alleged and/or actual infringement has not been caused by (i) the use of a superseded version ofthe Licensed Software ifthe infringement would have been avoided by the use of then current unaltered release of the Licensed Software, (ii) the modification of the Licensed Software by Licensee, an Affiliate or any person other than Intelex; (iii) modifications of the Licensed Software made on Licensee's direction and as per Licensee's requirements or (iv) the combination or use of the Licensed Software with software, hardware, firmware, data or technology not approved by Intelex; (b) Licensee promptly notifies Intelex in writing within ten (10) days of Licensee first becoming aware of each such Claim; (c) Licensee does not make any admission against Intelex's interest and Licensee does not agree to any settlement of such Claim without the prior written consent of Intelex; (d) Licensee, at the request of Intelex provides all reasonable assistance to Intelex in connection with the defense, litigation or settlement by Intelex of each such Claim; (e) Intelex has sole control over the selection and retainer of legal counsel, as well as over the litigation or the settlement of each Claim. 6.2 Option for Infringement Claims: If the Licensed Software becomes, or in Intelex's opinion, be likely to become, the subject of a Claim covered by the indemnity in Section 6.1, Intelex, shall at its sole option (a) obtain for Licensee a non-exclusive license to continue using the infringing portion ofthe Licensed Software; (b) replace or modify the infringing portion of the Licensed Software without reasonable degradation in functionality in order to make it non-infringing; or (c) refund the unamortized portion of the License Fees received by Intelex from Licensee under this Agreement for the infringing portion of the Licensed Software, based on a five (5) year straight line amortization commencing on the date of purchase of that portion of the Software to the Licensee under this Agreement. Intelex shall have no obligation to indemnify Licensee under this section 6 and shall have no liability for any damages, losses, liabilities, expenses, costs, fines or fees for any use by Licensee or its Affiliates of installed or superseded Licensed Software after Intelex release of a replacing or modified version as provided herein. 6.3 This Section 6 represents Intelex's total liability for any and all infringement claims related to the Licensed Software. LIMITATION OF LIABILITY 7.1 In no event shall Intelex be liable or obligated to Licensee, its Affiliates, any user of the Software (whether on Licensee, Intelex or a third party hosted system) or to any other persons for any indirect, incidental, special, consequential, aggravated, exemplary, or punitive damages; any lost sales, lost revenue, lost profits, lost data, or re-procurement amount, arising out of the use of or inability to use the Software, or from breach of this Agreement. The liabilities limited by this sub-section 7.1 apply (i) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (ii) even if Intelex is advised in advance of the possibility of the damages in question and even if such 5 of 19 FORM-FIN-005 V1 - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 damages were foreseeable; and (iii) even if Licensee's remedies fail of their essential purpose. If applicable law limits the application ofthe provisions of this sub-section 7.1, Intelex's liability will be limited to the maximum extent permissible by such law. 7.2 Intelex's total, cumulative and aggregate liability to Licensee arising under this Agreement shall not exceed the total License Fees received by Intelex from Licensee under this Agreement. The limitation in this sub-section 7.2 apply to all liability (i) whether for breach, failure of essential purpose of any remedy contained in this Agreement, termination or any other act, omission or event related in any way to the Agreement or to the use of the Software, and (ii) regardless of form of action, whether in contract, tort, equity, or otherwise Notwithstanding the foregoing, the limitation in this sub-section 7.2 does not apply to liability related to bodily harm or injury and damage to physical property to the extent prohibited by law of the jurisdiction. 7.3 Licensee agrees that Intelex would not have entered into this Agreement without this section 7 being included in this Agreement. 7.4 Coveraqe and Limits. Intelex will maintain the types of coverage and minimum limits indicated below, unless the Licensee's Risk Manager or City Manager approves a lower amount These minimum amounts of coverage will not constitute any limitations or cap on Intelex's indemnification obligations under this Agreement. Licensee, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Intelex pursuant to this Agreement are adequate to protect Licensee. If Intelex believes that any required insurance coverage is inadequate, Intelex will obtain such additional insurance coverage, as Intelex deems adequate, at Intelex's sole expense. The full limits available to the named insured shall also be available and applicable to the Licensee as an additional insured. (a) Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. (b) Professional Liabilitv. Errors and omissions liability appropriate to Intelex's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of three (3) years following the date of completion of the work. 7.5 Additional Provisions. Intelex will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: (a) The Licensee will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the Licensee. (b) Intelex will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. (c) This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to Licensee pursuant to the Notice provisions of this Agreement. 6 of 19 FORM-FIN-005 VI - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 7.6 Providing Certificates of Insurance and Endorsements. Prior to Licensee's execution of this Agreement, on Licensee's request, Intelex will furnish certificates of insurance and endorsements as provided above to Licensee. 7.7 Failure to Maintain Coveraqe. If Intelex fails to maintain any of these insurance coverages, then Licensee will have the option to declare Intelex in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Intelex is responsible for any payments made by Licensee to obtain or maintain insurance and Licensee may collect these payments from Intelex or deduct the amount paid from any sums due Intelex under this Agreement. 7.8 Submission of Insurance Policies. Licensee reserves the right to require, at any time, complete and certified copies of any or all required certificates of insurance and endorsements. 8. CONFIDENTIALITY 8.1 Each party agrees that it will not use the Confidential Information in any way, for its own account or the account of any third party, unless consented to by the Disclosing Party, except in accordance with the terms of this Agreement. Receiving Party will, not disclose to any third party (except as required by law or to the Receiving Party's attorneys, accountants and other advisors as reasonably necessary and subject to the confidentiality provisions of this Agreement), any of the Disclosing Party's Confidential Information, whether received prior to or following the Effective Date, and will take and the same or similar degree of care and precautions as it would take for its own, provided such care is at least reasonable, to protect the confidentiality of the Confidential Information 8.2 Feedback: Licensee agrees that Intelex will not treat as confidential any suggestion, idea, enhancement requests, recommendations or comments provided by Licensee (any "Feedback") and nothing in this Agreement or in the parties dealings arising out of or related to this Agreement or Licensed Software will restrict Intelex's right to use, profit from, disclose, publish or otherwise exploit any Feedback without any compensation to, or require the consent, of Licensee. 8.3 General Skills and Knowledge: Notwithstanding anything to the contrary in this Agreement, Licensee agrees that Intelex is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Licensed Software, including information publicly known or available or that could reasonably be required in similar work performed for another customer of Intelex. 9. TERM AND TERMINATION 9.1 This Agreement shall remain in full force and effect from the Effective Date unless terminated in accordance with this Section. 9.2 In the event of Intelex's failure to prosecute, deliver, or perform the services under this Agreement, Licensee may terminate this Agreement for nonperformance by notifying Intelex by certified mail ofthe termination, and providing Intelex 30 days to remedy such breach. If Licensee decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, Licensee may terminate this Agreement upon written notice to Intelex. Upon notification of termination, and request by Licensee, Intelex has ten (10) business days to deliver any documents owned by Licensee to Licensee address contained in this Agreement. 7 of 19 FORM-FIN-005 VI - May 2015 INTELEX Intelex Tectinologies Inc. Software License Agreement DRAFT v3.1 9.3 Either party upon tendering thirty (30) days written notice to the other party may terminate this AgreemenL In this event and upon request of Licensee, Intelex will assemble the Licensed Software and put it in order for proper filing and closing and deliver it to Licensee. Intelex will be paid for work performed to the termination date, including for the work performed in assembling and delivering the Licensed Software. 9.4 Termination for Cause: Intelex may terminate this Agreement in the event Licensee materially breaches any of the provisions of this Agreement and does not remedy such breach within thirty (30) days of receipt of notice of breach from Intelex. 9.5 Immediately upon any termination or cancellation of any license granted under this Agreement: (i) all rights and licenses granted to Licensee under this Agreement shall cease and terminate and licensee shall have no right thereafter to use and shall immediately cease the use of the Software (including the Documentation) or the applicable portion thereof; (ii) Licensee shall promptly destroy all copies ofthe Software (including the Documentation) in its possession and provide Intelex with a certificate of such destruction. 10. GENERAL PROVISIONS 10.1 Audit: Intelex may audit Licensee's use of the Licensed Software at any time. Licensee will co-operate with the audit, including by providing any access or information that relate to or may relate to the use of the Licensed Software. In the event that an audit reveals unauthorized use of Software, Licensee will reimburse Intelex for the reasonable cost of the audit, in addition to such other rights and remedies that Intelex may have. 10.2 Export Restrictions: Licensee shall comply with all export regulations pertaining to the Licensed Software in effect from time to time. Without limiting the generality of the foregoing. Licensee expressly warrants that it will not directly or indirectly export, re- export, or transship the Licensed Software, or any part thereof in violation of any export laws, rules or regulations ofthe United States. 10.3 Press Release: Licensee agrees that Intelex may use and disclose Licensee's name and the nature of this Agreement in Intelex public press releases and marketing materials. Intelex will provide the Licensee with a prior written request for use of Licensee's name and nature of this Agreement. The request shall not be unreasonably withheld, delayed or conditioned by Licensee. 10.4 US Government: If the Software is being licensed directly or indirectly on behalf of the United States government, the following shall apply. For civilian agencies and departments, the Software was developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) ofthe Commercial Computer Software-Restricted Rights clause of FFAR 52.227-19 and its successors, and it is unpublished and all rights are reserved under the copyright laws of the U.S. For units of the Department of Defense, the Software is "commercial computer software" and "commercial computer software documentation" under the Rights in Computer Software and Computer Software Documentation clause of DEAR 227.7202-3(a) and its successors, and all use, duplication or disclosure is subject to license and restrictions set out in this Agreement. Intelex shall remain the owner of all right, title and interest in and the to the Software, and all computer programs, components, modules, routines, subroutines, interfaces and elements of the Software and the Licensed Software in whole or part is subject to legal protection under intellectual property laws of Canada and foreign jurisdictions. 10.5 Entire Agreement: This Agreement, along with the Schedules, and any addendums and Orders constitutes the sole and entire understanding between the parties with respect to 8 of 19 FORM-FIN-005 V1 - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 the subject matter hereof and may not be altered or amended except in writing signed by both parties. This Agreement supersedes and replaces all prior communications or agreements written or oral, and all other standard ternis, pf Licensee set forth in any purchase order or communication and is intended as a' complete and exclusive statement of the terms of the Agreement between the parties. 10.6 Assignment: Licensee may not assign or transfer this Agffe^ifnent,'or rights, benefits, interests, or delegate its obligations, in whole.qr part, tq.^ri^ dtti^t''party (whether by agreement, merger, amalgamation, consolidation, operation of law or otherwise) without Intelex's prior written consent. Any attempted assignment, delegation, or transfer in violation of this Section shall be void and of no force or effect. Subject to the provisions of this Section, this Agreement shall inure to the benefit of and be binding upon the parties and the respective successors and assigns, if any, of the parties 10.7 Notice: Any notice, demand or other communication required or permitted to be given to either Party to this Agreement in this Agreement shall be delivered or sent to the addresses set out below: If to Intelex: Intelex Technologies Inc. 905 King Street West, Suite 600 Toronto, ON, Canada M6K 3G9 Attn: Chief Financial Officer Fax: (416) 599 6867 Email: Ghazala.parvez(gintelex.com If to Licensee City of Carlsbad Parks & Recreation Department 799 Pine Avenue, Suite 200 Carlsbad, CA 92008 Attn: Parks & Recreation Director Fax: (760) 434-5088 Email: ParksandRec(gcarlsbadca.gov The address and the person to whose attention notice may be given to a party may be changed by such party giving notice to the other party as provided in this section. All notices shall be in writing and shall be (i) personally delivered by hand or delivered by and prepaid courier, and signed for on delivery, any notice so sent to be deemed received upon actual delivery; (ii) sent by fax to the fax number specified above and confirmed by the fax transmission confirmation sheet, any notice so sent to be deemed received upon the date on the transmission confirmation sheet; or (iii) sent by email to the email address specified above and any notice so sent to be deemed received upon the date of the confirmed read receipt. 10.8 Governing Laws and Jurisdiction: This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to any conflict-of-law rules. The courts located in California shall have the exclusive jurisdiction to deal with all matters arising pursuant to this Agreement. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. 10.9 Counterparts: This Agreement may be executed in one or more counterparts and facsimile or scanned signatures shall be sufficient to indicate acceptance by the parties, each of which shall be original and all of which shall constitute one and the same instrument named below. 9 of 19 FORM-FIN-005 VI-May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 IN WITNESS WHEREOF the parties have caused this Agreement to be executed by their duly authorized resentatives as of the date first set out above. I hayi wnntiMd the ilgnaturo of pL. iittlr'^ck . INTELEX TECHNOLOGIES INC. after presantatioriofi idenlWcatkjnal \Cn this orf^dayof, By: Jonathan Blake MgGfung ^ Barrister and Solicitor Notary Public and Commissioner of Oaths In and for the Province of Ontano. My Commission is of unlimited duration, No legal advice given. RED SEAL r^OTARY INC. 25 ADELAIDE ST. EAST. TORONTO ON MSC3A1 (888)922-7325 wwvv. rod woginetary.com Naf^ie: vfe^n Fitzpatrick Title: VP Sales, Government & Healthcare Date: Jay ^^^S :fa/y ^^''^ (The individual executing this Agreement and the instruments referenced in it on behalf of Intelex Technologies Inc. represents and warrants that he/she has the legal power, right and actual authority to bind Intelex Technologies Inc. to the terms and conditions ol this Agreement.) CITY OF CARLSBAD, a municipal corporation of the State of California By: Name? Chris I Title: Parks & Recreation Director (The individual executing this Agreement and the instruments referenced in it on behalf of City represents and warrants that he/she has the legal power, right and actual authority to bind City to the terms and conditions ot this Agreement.) APPROVED AS TO FORM: CELIA A. BREWER, CityAttorney By: 'Assistant City Attorney 10 of 19 FORM-FIN-005 V1 - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 SCHEDULE A SOFTWARE SCHEDULE 1. Licensed Software The following Software is licensed under this Agreement Intelex Platform Applications: Parks Inspection Application Intelex Exchange Part of ongoing Maintenance & Support payment 2. Licensed Users The following types and numbers of users may be authorized by Licensee to use the Licensed Software in accordance with the Agreement and schedules thereto: Type of User* Number of Licensed Users of this type System Administrator 1 Full Access User 4 Concurrent User Limited Access User 1 Use restrictions for each type of Licensed User are provided on www.intelex-exchanqe.com Software Support and Maintenance 3.1 3.2 Fees: 4.1 Support Start Date: Three months from signing of this Agreement Initial Support Term: 9 months License Fees: The following are the License Fees payable under this Agreement Components Amount Intelex Platform Free Software License 2,657 Software Users 8,500 SubTotal Fees 11,157 Intelex One-Time Software License discount (666) Intelex One-Time User License discount (1,700) Total Fees 8,791 4.2 Support Fees: The Annual Support Fee for the Licensed Software and Licensed Users is $4,039 (Four Thousand and Thirty Nine Dollars in U.S. Funds). 11 of 19 FORM-FIN-005 VI - May 2015 I W^m I El ^ff/ Intelex Technologies Inc. 11^ I ^dil&#V Software License Agreement DRAFT v3.1 5. Invoicing and Payment: 5.1 The License Fees of $8,791 (Eight Thousand Seven Hundred and Ninety One Dollars in U.S. Funds) will be invoiced on the date of signing of this Agreement 5.2 The Support Fees for Software Support and Maintenance of $3,029.25 (Three Thousand and Twenty Nine Dollars and Twenty Five Cents in U.S. Funds) for the Initial Support Term will be invoiced on 90 days from date of signing of this Agreement. 12 of 19 FORM-FIN-005 V1-May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 SCHEDULE B SOFTWARE SUPPORT AND MAINTENANCE TERMS Intelex will provide Licensee with Support Services and Maintenance Services, on the following terms 1. Additional Definitions: 1.1 "Business Day" means any week day of the year (Monday through Friday) except for the following: New Year Day (January 1), Labor Day, American Thanksgiving, and Christmas Day (December 25) 1.2 "Defect" means any error, problem or malfunction of the Licensed Software such that the Licensed Software does not conform to the Documentation. 1.3 "Production Environment" means the environment on which the Licensed Software system is live and being used as part of Licensee's normal course of business. 1.4 "Response" means an acknowledgment ofthe Notification, as defined in Section 3.4 of this Schedule, and assignment of a support representative to investigate related Defect 1.5 "Severity 1 Defect" means Defect in the Licensed Software such that Licensed Software is entirely inoperable as follows: (i) no users are able to log on to the Licensed Software;; (ii) no records can be submitted system-wide 1.6 "Severity 2 Defect" means a Defect in the Licensed Software such that Licensee is able to use the Licensed Software but fundamental software functions are entirely inoperable. A fundamental software function is any one ofthe following: (i) Inability to run reports; (ii) Application (e.g. cannot submit records for a certain application; (iii) Email (All mails are not generating or going out (iv) Event Services; (v) Multiple users are prevented from accessing the Licensed Software. 1.7 "Severity 3 Defect" means a Defect in the Licensed Software that does not meet the criteria for Severity 1 or Severity 2 Defect: (i) individual reports are not running; (ii) application defects: cannot close individual records; cannot advance workflow on individual records; cannot modify certain fields; (iii) individual emails are not generated and/or sent; (iv) individual imports cannot be run; (v) individual event services 1.8 "Severity 4 Defect" means a support inquiry: (i) specific functionality questions; (ii) Intelex process questions; (iii) defects regarding Intelex-Exchange; (iv) patch requests 1.9 "Test Environment" means the environment on which the Licensed Software is being used to test or assess the Software or any Updates, Upgrades or patches. 1.10 "Update" means the release of the Software containing improvements and adjustments to the Licensed Software made at Intelex's sole discretion, however not including major structural changes and/or new important features. The change to an Update will be recognized by an increase in value ofthe secondary version number (e.g. version x.1 to be replaced by version x.2) 1.11 "Upgrade" means the release of a version of the Software containing major changes to the structure and functionality ofthe Licensed Software made at Intelex's sole discretion, where important new features may be added. The new release of the Upgrade will be recognized by an increase in value of the primary version number (e.g. version 3.x to be replaced by version 4.x) 2. Supported Versions of the Software: Intelex will provide Software Support and Maintenance for the most current Upgrade and the immediately previous Upgrade of the Licensed Software released 13 of 19 FORM-FIN-005 VI - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 by Intelex to its customers and for the environments as described in the Platform Support Policy found on Intelex Exchange, and as may be amended from time to time. Support Services: 3.1 3.2 3.3 3.4 3.5 Support Hours: Intelex shall provide Support Services every Business Day from the hours of 7:30 am EST to 8:00 pm EST. "Support Services" shall include: (a) Online support to System Administrator users relating to technical issues, errors or problems with the Licensed Software. (b) Access to online resources via Intelex Exchange, or its future successor: Items not covered by Support Services: Intelex is not obligated to provide Support Services for errors or problems caused by the following: (a) (b) (c) Third-party components not provided infrastructure and network; by Intelex, including Licensee's Use of the Software other than in a recommended environment described in the Platform Support Policy Continued use of a version of the Software for which Support Services is not provided in accordance with Section 1 above. Support Services do not include training or walkthroughs of the Licensed Software, change requests, end user requests or troubleshooting with end users. Notification: If Licensee suspects that a Defect exists in the Licensed Software, Licensee will notify Intelex (the "Notification") (i) through the online ticketing tool on Intelex Exchange; and (ii) for Severity 1 Defects (defined below) that Licensee detects after Support Hours, Licensee may also call (416) 847 8985. The Notification shall describe the nature of the suspected Defect and provide details of the circumstances of its occurrence sufficient, at Intelex's discretion, for Intelex to be able to reproduce the suspected Defect. Service Levels: Intelex offers the following service levels for its Support Services: Defect Response Time Severity 1 Problem 4 hours from time of Notification for Defect on Production Environment Severity 2 Problem 2 Business Days from time of Notification for Defect on Production Environment Severity 3 Problem 5 Business Days from time of Notification Maintenance Services: 4.1 "Maintenance Services" shall include: (a) Notification of and access to Intelex release patches and Documentation released by Intelex; and (b) Notification of and access to Updates and Upgrades ofthe Licensed Software. Hof 19 FORM-FIN-005 VI - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 4.2 Maintenance Services do not include new applications and modules released by Intelex that include significantly different features and functionality, which are packaged and licensed as separate applications and modules. 4.3 If Licensee agrees to obtain an Update or Upgrade, Intelex will provide such Update or Upgrade to Licensee with installation instructions. Licensee shall be solely responsible for installation ofthe Update or Upgrade on Licensee servers. If Licensee subscribes to hosting services under a separate addendum to this Agreement, Intelex will install the Update or Upgrade for Licensee. 5. Licensee Obligations: 5.1 Licensee agrees to provide Intelex with all information and materials requested by Intelex, including reasonable access to the Licensed Software to enable replicating, diagnosing and correcting a Defect reported by Licensee. Licensee acknowledges that Intelex's ability to provide satisfactory Support Services is dependent on Intelex having the information necessary to replicate the reported problem with the Licensed Software. 5.2 It is Licensee's sole responsibility to ensure that Updates, Upgrades and any patches provided by Intelex to fix any Defects are satisfactorily tested in the Test Environment priorto having such Update, Upgrade or patch installed in the Production Environment. 15 of 19 FORM-FIN-005 VI - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 SCHEDULE C HOSTING ADDENDUM THIS HOSTING ADDENDUM ("Addendum") to the Software License and Support Agreement between Intelex and Licensee governs the hosting services provided to Licensee by Intelex. 1. DEFINITIONS 1.1 "Default Capacity" means the maximum allowable aggregate size ofthe Hosted Data, which is 50 gigabytes. 1.2 "Downtime" means any period of time for which the Hosting Services is not available to the end users. 1.3 "Exempt Downtime" means Downtime that is (i) Scheduled Downtime; or (ii) is caused by failure of equipment not included in the Hosting Infrastructure, including but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of service attacks, failure of the Internet generally, any action or inaction of the Licensee or any third party. 1.4 "Hosted Data" means all information, content and data that Licensed Users upload to be processed and stored in the Hosted System. 1.5 "Hosted System" means the Licensed Software hosted by Intelex underthis Addendum. 1.6 "Hosting Infrastructure" means the computer hardware, software, communication systems, network and other infrastructure provided by Intelex necessary to host and permit Licensed Users to access and use the Hosted System. 1.7 "Hosting Partner" means Intelex's third-party hosting services provider. 1.8 "Hosting Services" means the services related to hosting the Hosted System as fully described in Section 3 of this Addendum. 1.9 "Hosting Term" means the term of this Addendum for which the Hosting Services will be provided. 1.10 "Scheduled Downtime" means scheduled or ad-hoc maintenance time necessary to implement any updates, upgrades or other modifications to the Hosted System or perform routine, emergency or ad hoc maintenance activity and for which Intelex has provided Licensee with reasonable advance notice. 1.11 "Service Levels" means the metrics upon which the quality of the Hosting Service is measured. 2. INTERPRETATION 2.1 This Addendum supplements the terms of the Software License and Support Agreement between Intelex and Licensee (the "Agreement"). In the event of a conflict between this Addendum and the Agreement, the provisions of this Addendum shall govern to the extent of such conflict only as it relates to Hosting Services. 2.2 Capitalized terms that are not otherwise defined in this Addendum shall have the meanings set forth in the Agreement. 16 of 19 FORM-FIN-005 V1-May 2015 INTELE) intelex Technologies Inc. Software License Agreement DRAFT v3.1 3. TERM 3.1 The Hosting Term shall be the same as Support Term of the Hosted System, unless the Hosting Services are terminated pursuant to Section 9 of this Addendum. 4. HOSTING SERVICES 4.1 Set-Up and Configuration: Intelex will be responsible for the set-up, configuration and hosting ofthe Hosting Infrastructure. Intelex will, in its sole discretion, determine the specific Hosting Infrastructure and the components thereof. Licensee acknowledges and agrees that it has no right to and specifically disclaims any possessory, leasehold or other real property interest in the physical equipment and software utilized to set-up and maintain the Hosted System. Unless otherwise agreed, the Hosting Infrastructure will include a multi-tenant architecture. 4.2 Managed Server Support: Intelex will manage and install all updates and upgrades for the Hosted System within the Hosting Infrastructure at no additional cost pursuant to the Maintenance and Support provisions ofthe Agreement. 5. LICENSEE CONTENT: 5.1 Licensee acknowledges that responsibility for all content provided by Licensee to Intelex for provision of the Hosting Services along with the Hosted Data ("Licensee Content") is the sole and exclusive responsibility of Licensee. Intelex will not be responsible in any way for any intellectual property infringement or violation or the violation of any other person's rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to the Licensee Content. 5.2 In no event may the aggregate size of the Hosted Data exceed the Default Capacity. Licensee may purchase additional capacity beyond the Default Capacity. Intelex reserves the right to monitor Licensee's usage of the Hosting Services and Hosted System. If the Hosted Data is found to exceed the Default Capacity or the additional capacity purchased by Licensee, Intelex will notify the Licensee of such over-usage, at which time Licensee will be required to either reduce the size of the Hosted Data or purchase additional capacity at the then current storage rates or as otherwise agreed to by the parties. 6. SERVICE LEVELS: 6.1 Intelex will use reasonable commercial efforts to meet the Service Levels in this Addendum commencing on the date that the Hosted System has been accepted by the Licensee as per the applicable Statement of Work 6.2 Intelex will use commercially reasonable efforts to ensure that the Hosting Services will be available at least 99.5% of the time, as calculated quarterly and excluding any Exempt Downtime. LICENSEE RESPONSIBILITIES: 17 of 19 FORM-FIN-005 VI-May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 7.1 Licensee is responsible for establishing and enforcing terms of use and privacy policies applicable that govern the use ofthe Hosting Services and Hosted System by users as permitted under this Addendum and applicable law. In relation to all personal data comprised within the Hosted Data, Licensee warrants that such personal data shall have been obtained and supplied to Intelex in compliance with applicable data protection legislation, including Licensee having obtained all necessary consents and approvals from users that are necessary to permit Intelex to perform the Hosting Services. Licensee further agrees not use the Hosted System to store, process or transmit (i) account number, credit or debit card number, with or without any required security code, or password that would permit access to an individual's financial account, or any other sensitive financial information; (ii) social security numbers, social insurance numbers, or any kind of state-issued identification information; or (iii) any individually identifiable information regarding an individual's medical history or medical treatment or diagnosis by a health care professional or any health related data. SECURITY CONTROLS: 8.1 Security: Intelex's Information Security Management System requires any Hosting Facility to (i) establish and maintain appropriate technical and organizational measures to protect against accidental damage to, or destruction, loss or alteration ofthe Hosted Data; (ii) establish and maintain appropriate technical and organizational measures designed to protect against unauthorized access to the Hosting Infrastructure and Hosted Data and (iii) establish and maintain network and internet security procedures, protocols, security gateways and firewalls with respect to the Hosted System. Intelex is not responsible for the security of Hosted Data while in transit over the Internet. As part of the Hosting Services, Intelex does not scan for the existence of Harmful Code within the Hosted Software generally, nor does it scan downloaded files prior to opening by User. For purposes of this Section 8.1, "Harmful Code" means computer software routines intentionally designed to permit unauthorized access to or use ofthe Hosted System, Hosting Infrastructure or Licensee's computer systems. 8.2 SSAE-16: On an annual basis during the Hosting Term, Intelex shall obtain a copy of an SSAE 16 Type II, or any successor standard that is generally recognized in Intelex's industry, report (the "Reports"), for all facilities from which it provides Hosting Services. ("Hosting Facility"). If a Report states that the Hosting Facility has failed to materially satisfy one or more control objectives, Intelex will, as Licensee's sole remedy, use commercially reasonable effort to cause the Hosting Facility to materially satisfy all control objectives. If, despite Intelex's efforts, the Hosting Facility cannot materially satisfy all relevant control objectives, Intelex will migrate to an alternate Hosting Facility which materially satisfies all control objectives. 8.3 Backups: Intelex will require that the Hosting Facility back up the Hosted Data on a daily basis onto an electronic storage medium and store all such backups in an environment that is separate from the location ofthe Hosting Infrastructure. Intelex will require that that backups are performed as follows: (a) daily backups will be completed nightly and will be maintained for seven days, and (b) weekly backups will be completed maintained for four (4) weeks. Any additional backup services requested by Licensee will be subject to Intelex's approval and a separate charge. 18 of 19 FORM-FIN-005 V1 - May 2015 INTELEX Intelex Technologies Inc. Software License Agreement DRAFT v3.1 TERMINATION: 9.1 This Addendum will terminate automatically upon the termination or expiration of the Software Support and Maintenance under the Agreement. 9.2 Intelex may suspend or terminate the Hosting Services, including Licensee's access to the Hosted System under the following circumstances: (a) Licensee fails to pay any amount that is overdue after Intelex provides Licensee with ten (10) days written notice and demand for payment; (b) Licensee fails to cure any breach of this Addendum within thirty (30) days of Intelex's written notice about the breach. Intelex will not have any liability to Licensee for any termination or suspension of this Addendum, including for a refund of any pre-paid fees. 9.3 Provided that Licensee has paid all outstanding invoices in full, upon written request by Licensee within ninety (90) days following the termination date, Intelex will deliver to Licensee, in a format agreeable to Intelex and at Licensee's sole cost and expense, a copy ofthe Hosted Data. Intelex will have no obligation to maintain any Hosted Data beyond such ninety (90) day period 19 of 19 FORM-FIN-005 V1 - May 2015 INTELEX July 28, 2015 Bonnie Elliot Sr. Management Analyst City of Carlsbad 799 Pine Ave., Suite 200 Carlsbad, California 92008 Dear Ms. Elliot I, Ghazala Parvez, have the power to delegate authority to Jason Fitzpatrick, VP Sales, Government & Healthcare to sign the Intelex software license agreement, professional services agreement and statement of work documents. Given that this is time-sensitive, I have delegated such authority to Mr. Fitzpatrick to sign these documents in the absence of the other signing authorities. I appreciate both your and Mr. Fitzpatrick's cooperation in this matter. Sincerely, Ghazala Parvez Chief Financial Officer Intelex Technologies, Inc. © Intelex Technologies Inc. 1992-2015 905 King Street West, Suite 600 Toronto, ON M6K 3G9 | T: 416-599-6009 - F: 416-599-6867 - E: intelex@intelex.com vww. I ntelex.com INTELEX Intelex Technologies, Inc. Statement of Work Contents 1. statement of Work 2 1.1 Project Context 2 1.2 Key Assumptions 2 1.3 Out of Scope 2 1.4 Intelex Activities 3 1.5 Client Responsibilities 5 1.6 Governance 6 1.7 Completion Criteria 6 1.8 Estimated Schedule 6 1.9 Fees 6 2. Project Procedures 8 2.1 Change Orders 8 2.2 Deliverable Acceptance Procedure 8 2.3 Escalation Procedure 9 2.4 Termination 9 3. Acceptance 10 City of Carlsbad Approver 10 intelex Approver 10 Appendix A: Requirements 11 Parks Inspections Form Design Information 11 Parks Inspections app 14 Parks Inspection Application Requirements Worksheet 15 CityofCarlsbad-PunchWishListRequirements 17 This Statement of Work ("SOW") defines the services and deliverables to be performed by Intelex Technologies Inc. ("Intelex") for City of Carlsbad ("City of Carlsbad" or "Client") and is governed by the Professional Services Agreement dated July , 2015 entered into by Intelex and City of Carlsbad (the "Agreement"). Changes to this SOW will be processed in accordance with the procedures described in section 3.1 Change Orders. The investigation and the implementation of changes may result in modifications to the Estimated Schedule, Estimated Charges, and other terms of this SOW and/or the Agreement. 1. statement of Work 1.1 Project Context Intelex will configure a custom application ("Park Inspections") on the Intelex platform using the Application Builder toolset. Design of Parks Inspection form to meet all the requirements outlined in Appendix A: Requirements. 1.2 Key Assumptions This SOW and Estimated Charges are based on discussions with City of Carlsbad and on the following key assumptions; the activities listed in sections 2.6 Intelex Activities and 2.7 Client Responsibilities. 1. The Production and non-production version ofthe System will be hosted by Intelex. 2. Training is limited to 10 participants per session. 3. Configuration ofthe Licensed Technology will not commence until the design document is mutually agreed. 4. "Business Day" means any day other than Saturday, Sunday or a statutory holiday in Ontario, Canada or the United States of America, for the duration of Intelex business hours. Intelex business hours are between the hours of 08:30 and 17:00 EST (13:30 and 22:00 GMT). 5. The estimates are based on the information available to Intelex at the time of this document's drafting. Any additional configuration, data migration, interfaces to third party systems, report building, or any other item not listed as in scope will require a revision ofthe services estimates. 1.3 Out of Scope The complete scope of this project is defined in this SOW. By default; items not explicitly described in this document are out of scope. The following is a non-comprehensive list of the items that were explicitly discussed with City of Carlsbad and are not in scope. 1. Data imports and integrations 1.4 Intelex Activities Under this SOW Intelex will undertake the following activities. 1.4.1 Project Initiation Project kick-off Project kickoff call with City of Carlsbad team with the purpose of bringing together the key resources and stakeholders who will be engaged in the project. An overview of the Licensed Technology being installed, the communication plan and the preliminary timeline will be the subjects addressed during the Project Kickoff call. Intelex Platform Installation Intelex will install a single production instance of the core Intelex V6 platform which includes the following: • Application server and Application environment • Database server and database environment • Database installation & configuration In addition to the production instance, Intelex will create and host a non-production instance. Prior to the System being put into production, a copy will be made to create the non-production environment. 1.4.2 Solution Preparation Application Configuration The following activities with be undertaken to configure the Licensed Technology (Park Inspections application): 1. Intelex will gather and analyze the requirements for the solution based on the configuration effort defined for the application during a remote requirements gathering call. A design document will be developed. Deliverable: Mutually agreed upon Design Document 2. Intelex will configure the application to meet the requirement in the documents referenced in section 2.1, including: a. Form design and development b. Setup of the application and populate drop downs c. Create the linear workflow d. Create configurable inventories: Contractor Invoice Report, Poor Performing Contractors Report, Under Par Inspections Report, Punch List Report, Wish List Report e. Create merge template for the Inspection Report Reports Intelex will provide phone and e-mail consultation during the Business Day on developing reports using Configurable Reports. Intelex will provide up to 8 hours of consulting support. 1.4.3 Training System Administration Training: Intelex will provide one (1) 90-minute session of training on each ofthe following: • System Administration I; System Administration II; Configurable Reports I; Configurable Reports II; • Dashboards & Scorecards I; • Dashboards & Scorecards II 1.4.4 Deployment System Platform Setup Intelex will provide City of Carlsbad with training and consulting sessions on the initial set-up of the System: User Security; Home Pages; Toolbars; and Email Notifications. Intelex will provide up to eight (8) hours of training and consulting. Deliverable: Configured Solution for User Acceptance Testing Best Practices Consulting Intelex will provide phone and e-mail consultation during the Business Day hours on best practices on application configuration and use. Intelex will provide up to 24 hours of consulting support. 1.4.5 Project Management Intelex wili plan and coordinate Intelex's activities and resources, provide periodic status reporting on Intelex's deliverables, coordinate issue management and resolution, and manage project changes. The activities include: • Resource Planning & Change Management - Maintaining project activities and managing the change order process Reporting & Monitoring - Performing scope verification, and periodic reporting on project status including status calls as needed 1.4.6 Deliverable Materials Intelex will provide the following deliverables for this project. • Deliverable 1 - Mutually agreed upon Design Document • Deliverable 2 - Configured Solution for User Acceptance Testing 1.5 Client Responsibilities The responsibilities listed in this section are to be provided at no charge to Intelex. Intelex's performance is predicated upon the following responsibilities being fulfilled by the Client and its third- party partners. 1.5.1 Client Project Manager The Client will identify and assign a project manager prior to the project kick-off meeting occurring during the Project Initiation phase. Client Project Manager plans and coordinates Client's activities and resources, coordinates issue management and resolution, and manages project changes 1.5.2 Client Implementation Responsibilities 1. Ensure they and any third-party partners: a. Actively participate in the Design Workshop, including providing the necessary skilled resources to work with Intelex personnel on technical specifications and designs. b. Provide Intelex with relevant available reference documentation such as current forms, workflow diagrams, reports, dashboards, and procedures c. Provide timely responses to requirements clarification and resolution of issues d. Provide appropriate facilities for the delivery of the project including an appropriate sized room, whiteboard, projector and internet access. e. Manage all Client employees' and contractors' activities 2. Provide timely review and feedback on the deliverables and documents developed by Intelex. 3. Provide twenty-four (24) hours' notice if unable to meet any scheduled training sessions. Cancellation thereafter will result in the time being billed to the Client at the rate that was determined for the training session, plus any travel expenses already incurred. 1.6 Govemance 1.6.1 Weekly Project Management Weekly project management meetings will be held with mandatory participation by the Client and Intelex Project Managers. 1.7 Completion Criteria Intelex will have fulfilled its obligations underthis SOW when any one ofthe following first occurs: 1. Intelex accomplishes the Intelex activities described in Intelex Activities section, including delivery to and acceptance by the City of Carlsbad of the Deliverables described in that section, or 2. City of Carlsbad or Intelex terminates the project in accordance with the provisions of the Agreement. 1.8 Estimated Schedule No schedule has been defined at the time of executing this SOW. The intent is to develop a schedule at the start of implementation and once developed will be made an exhibit to and part of this Agreement. An initial project schedule will be jointly developed by City of Carlsbad and Intelex after project initiation. The actual project start date will be determined based on the availability of the required Intelex and City of Carlsbad resources. 1.9 Fees The fee for Services hereunder shall not exceed $14,994 USD, excluding applicable taxes, and will be charged on a fixed fee basis. Services will be invoiced upon completion of each milestone, per the criteria below. All requested changes to the scope of this SOW and/or the estimated budget above will require execution of a Change Order as described in Section 3.1 Change Orders. Milestone Payments Milestone Contract Execution Requirements Gathering Software installation and configuration User Acceptance Testing Post User Acceptance Testing % 20% 20% 30% 20% 10% Amount Due Completion Criteria''- $2,998.80 SOW signed by both parties $2,998.80 Delivery of mutually agreed Design Document $4 498 20 ^^''^^''y °^ configured Solution for User Acceptance Testing $2,998.80 Acceptance ofthe Final Solution as per section 3.2.2 Solution materially conforms to the mutually accepted $1 499 40 ' '-^^^'9'^ Document for a period of 30 days following completion of User Acceptance Testing 1.9.1 Travel and Expenses Reasonable travel and incidental expenses in addition to the Professional Services fees identified above will be invoiced as they occur. Any travel will be pre-approved by the Client. No travel is anticipated for this project. 1.9.2 Payment Payment for Intelex services will be due within 30 days of invoicing, based on the above schedule of deliverables. 2. Project Procedures 2.1 Change Orders The following provides a detailed process to follow if a change to this SOW is required. A Change Order (CO) will be the vehicle for communicating change. The CO must describe the change and the effect the change will have on the project, including cost and schedule. Proposed changes will be submitted by the Project Manager of the requesting party to the Project Manager of the other party. Both Project Managers will review the proposed change. Intelex will specify if there will be any charges for the investigation of the proposed changes. If the Project Managers agree to move fonward with the proposed change, the Client and Intelex will sign the CO. A written CO must be signed by both parties to authorize implementation of the changes. 2.2 Deliverable Acceptance Procedure 2.2.1 Documents Each deliverable document will be approved in accordance with the following procedure: • One (1) electronic draft of the deliverable document will be submitted to the Client Project Manager. It is the Client Project Manager's responsibility to make and distribute additional copies to other reviewers. Client Project Manager will confirm receipt of deliverable. • If no response is received from the Client Project manager within five (5) business days, the deliverable will be deemed approved. If changes to the deliverable are required, a written description of requested changes must be submitted to the Intelex Project manager • Client will provide timely review and reasonable agreement of all deliverable documents. If deliverables do not conform to Client's reasonable expectations, Intelex will make adjustments to correct the non-conformances. Client's review will be limited to those adjustments. Continued reviews will be limited to the previous version's non-conformance. 2.2.2 Configured Software The following procedure shall apply for acceptance or signoff by the Client of the Final Solution (as defined below). After Intelex notifies the Client that the Licensed Technology has been configured and/or customized as per the design document and any subsequent Change Orders (the "Final Solution"), Client shall have 10 Business Days to review the Final Solution ("Acceptance Period"). If the Final Solution does not materially conform to mutually accepted design document, Intelex shall fix any such reported non-conformance within a reasonable time. Client shall then have a further 10 Business Days Acceptance Period to test the Final Solution to confirm that the reported non- conformance has been fixed. If the Client does not notify Intelex of any material Defects within any Acceptance Period, Client will be deemed to have accepted the Final Solution. Use ofthe Licensed System or any part thereof in a commercial or live environment shall be deemed acceptance. 2.3 Escalation Procedure Escalation to the Executive Sponsor may occur by the respective Project Managers for issue and/or change management. 2.4 Termination This SOW will terminate on October 31, 2015. If, in the reasonable opinion of both Parties, the project will not be completed by that date, the Parties will execute a Change Order to extend the termination date to a date determined by Intelex. Upon termination of this SOW, Client shall pay Intelex for any work performed prior to the effective date of termination that has not been previously invoiced. 3. Acceptance By signing below, both parties agree that Intelex is authorized to provide the services identified in this SOW. This Statement of Work can only be modified when both parties make a mutually agreed-to change via a Change Order. The approvals below confirm the acceptance of this SOW. Approvals are required prior to the start of work activities. The actual start date will depend on the availability of the required Intelex and Client's resources. Approval by both parties of this SOW constitutes a non-contingent order to purchase and take delivery of the Professional Services described herein. City of Carlsbad Approver Intelex Approver Jason Fitzpatrick APPROVED AS TO FORM: CELIA A. BREWeRrQiiv^=9^torney sistant City Attorney I havt wItnesMd ths algnatur® of after prQsentaUort of sattefactory identification at Tc>^?« .Ont, this ^-fV dayofJX .20 rS" Jonathan Blake McCiung Barrister and Solicitor Notary Public and Commissioner of Oaths In and for the Province of Ontario IVIy Commission is of unlimited duration No legal advice given. RtD SEAL NOTARY INC 25 ADELAIDE ST. EAST TORONTO ON MSC3A1 (888)922-7325 *^^:iS'^9aainQtaj:y,.eom-^... 10 Appendix A: Requirements Parks Inspections Form Design Information Inspection Form Inspection site: Cate go ry of Se rvi ce: Inspector; Contractor: Farmers Insurance Building Passive Parks & Facilities Landscapes Maintenance Noah Peraino West Coast Subsections Rating (%) Irrigation Maintenance 90 Turf Maintenance 90 Planters & Ground Cover Maintenance 85 Shrub Maintenance 100 Tree Maintenance 95 Hardscape Maintenance 100 Trash & Utter Pickup 100 Overall Rating 94 Deduction Percent 1 Adjusted Payment Formula Monthly Payment Deduction Amount Adjusted Monthly Payment $5,000 $50 $4,950 Notes Date found Subsection Planters & Ground Cover 2/10/2015 Maintenance Planters & Ground Cover 2/10/2015 Maintenance Turf 2/10/2015 Maintenance Planters & Ground Cover 2/10/2015 Maintenance Planters & Ground Cover 2/11/2015 Maintenance Shrub 2/12/2015 Maintenance Turf 2/13/2015 Maintenance Hardscape 2/13/2015 Maintenance Issue Date resolved Some Myoporum and Ivy need trimming in back perimeter planters 2/10/2015 Some ofthe small square parking lot planters need Jasmine trimmed Hot spots in back island turf Ivy growing through Rhaphs in parking lot planter closest to the main building 2/11/2015 Jasmine in back sidewalk planters of main building need trimming 2/13/2015 Jasmine against back side of main building need trimming Hot spots in turf around main building Leaf litter in parking lots 11 Report Examples Contractor Invoice Report Contractor Site Rating Deduction Contractor A Aviara Park 85% $450 ^ Calavera Park 92% $150 Farmers Building 98% $0 Contractor B Happy Trails 95%^ $0 End of the trails 50%, $1,000 Poor performing contractors Contractor Site Rating 85% to 94% Contractor A Bad Park 85% Really bad Park 87% Contractor B Unhappy Trails 88% End of the trails 94% 75% to S4% Contractor A Another Bad Park 84%; Favorite Park 77% Contractor B Unhappy Trails 78% End of the trails 84% Under Par Inspections Contractor Site Rating 85% to 94% Paul Harrison Bad Park 85% Really bad Park 87% Noah Perino Unhappy Trails 88% End of the trails 94% 75% to 84% Paul Harrison Another Bad Park 84% Favorite Park 77% Noah Perino Unhappy Trails 78% End ofthe trails 84% 12 Inspection Report Inspection site: Category of Service: Inspector: Contractor: Farmers Insurance Building Passive Parks & Facilities Landscapes Maintenance Noah Peraino West Coast Overall Rating Deduction Percent 94 1 Adjusted Payment Formula Monthly Payment Deduction Amount Adjusted Monthly Payment $5,000 $50 $4,950 Notes Date found 2/10/2015 2/10/2015 2/10/2015 2/10/2015 2/11/2015 2/12/2015 2/13/2015 2/13/2015 Subsection Planters & Ground Cover Maintenance Planters & Ground Cover Maintenance Turf Maintenance Planters & Ground Cover Maintenance Planters & Ground Cover Maintenance Shrub Maintenance Turf Maintenance Hardscape Maintenance Issue Some Myoporum and Ivy need trimming in back perimeter planters Some ofthe small square parking lot planters need Jasmine trimmed Hot spots in back island turf Ivy growing through Rhaphs in parking lot planter closest to the main building Jasmine in back sidewalk planters of main building need trimming Jasmine against back side of main building need trimming Hot spots in turf around main building Leaf litter in parking lots Date resolved 2/10/2015 2/11/2015 2/13/2015 13 Parks Inspections app 14 Parks Inspection Application Requirements Worksheet Svstem Requirements System Requirements: Parks Inspection Vendor Ref « Prlprtty . Criteria Source Score Vendor Comments iKev Svstem Reauirements 1 KS-OOl Critical Ability to operate on hand held tablet Ability to function at all parks (either disconnected, cellular or Paul 4 We also have an offline application but, as discussed witii Tye, tiiis won't be KS-002 Critical WiFi) Paul 4 required for now. KS-003 Some further discussion around the nature ofthe integration (uni-directional vs. KS-003 Critical ^Ability interchange data with a central database Paul 4 bi-directional data flow; what data, from/to which other database{s)? KS-OM Cntical Visible outdoors in bright sunlight Paul 4 KS-005 Ability to store data in order to eliminate duplicate data entry KS-005 Critical (i.e. site, contract, contact, inspector information) Paul 4 I3. InsDectContractWork 1 PI-3-001 Critical Ability to create electronic, editable inspection forms Paul 4 PI-3-002 Critical Ability to save form information to server Ability to send inspection form electronically to supervisor. Paul 4 PI-3-003 Critical superintendent, contractor Paul 4 PI-3-004 Optional Ability to view previous ratings via inspection form Paul 4 PI-3-005 Critical Ability to enter % for each subsection Paul 4 PI-3-006 Critical Ability to enter multiple notes Paul 4 PI-3-007 Critical Ability to associate notes with specific subsection Paul 4 Critical Ability to view notes grouped by subsection Paul 4 PI-3-008 Critical Ability to create contractor punch list from notes Ability to send contractor punch list to contractor while in the Kyle 4 PI-3-009 Important field Ability to specify which notes are for contractors and which are Kyle/Tye 4 PI-3-010 Important for internal staff Kyle 3 PI-3-011 Important Ability to create internal 'wish list'from notes Kyle 3 PI-3-012 Benefial Ability to send internal 'wish list'to Kyle Kyle 3 PI-3-013 Critical Ability to calculate: Paul PI-3-014.1 Critical Total % of service rendered Paul 4 PI-3-014.2 Cntical Difference between % required and % rendered Paul 4 PI-3-014.3 Critical Deduction % Paul 4 PI-3-014.4 Critical Deduction amount Paul 4 PI-3-014.5 Critical Adjusted payment amount Paul 4 PI-3-015 Critical Ability to email inspection forms Paul 4 PI-3-017 Important : Ability to view previous notes Paul 4 With the required Intelex license type PI-3-018 Optional Ability to notify inspector when contract near expiration Tye 4 PI-3-019 Optional Ability to view maintenance frequencies for each site Tye 4 PI-3-020 Critical Ability to setup subsections for each contract/site type Paul 4 PI-3-021 Critical Ability for inspectors to complete co-workers inspections Kyle 4 With the required Intelex license type PI-3-022 Important Ability to search for inspection forms by: Paul PI-3-022.1 Optional ; Contract Paul 4 PI-3-022.2 Optional Contractor Paul 4 PI-3-022.3 Beneficial Inspector Paul 4 PI-3-022.4 Important Date Paul 4 Pl-3-022.5 Im porta nt Site Paul 4 PI-3-022.6 Beneficiiil Any combination of above Ability to submit to supervisor for approval priorto sending to Paul 4 PI-3-023 Important vendor Paul 4 Is. Evaluate vendor PI -5-001 Important Ability to escalate issues to supervisor, superintendent Paul 4 Message Center PI -5-002 Important Ability to select a date range and review performance by: Paul PI -5-002.1 Important Contractor Paul 4 PI -5-002.2 Imporiant Contract Paul 4 PI -5-002.3 Important Site Paul 4 PI -5-002.4 . important : Any combination of above Paul 4 1 IVlaintenance & SuDDort MS - 001 Critical Requires no IT support - SAAS Tina 4 lAdministratlon & SetuD This would need to be done by a System Administrator if the field is not an open ADM-001 Critical Ability for inspectors and supervisors to add new sites Ability for inspectors and supervisors to remove sites - display Paul 4 text field. If not a System Administrator, this would need to be controlled by a check ADM-002 Critical only 'active' sites to create work orders Paul 3 box/field flag of some sort. 15 Priority and Response Rating Requirements Priority Critical Requirement must have to run the business Important Requirement supports the business or userand is utilized frequently Beneficial Requirement will help the business move forward and adds productivity and efficiencies Optional Requirement nice to have but not required to execute business Response Rating 0 Functionality not provided: Not included in the proposal 1 Partial functionality provided out of the box: The vendor provides the functionality in a limited way from its own code base. No additional product, customization or work-around can provide the full functionality. 2 Full functionality provided through Complex customization: The vendor can provide the functionality, but an additional product, customization or work-around is required. 3 Full functionality provided through Simple customization (Less than 2 hours): The vendor can provide the functionality, but an additional product, customization or work-around is required. 4 Full functionality provided out ofthe box: The vendor provides the functionality from its own code base. No additional product, customization or work-around is required. 16 CityofCarisbad-PunchWishListRequirements Punch list (External notes that are not resolved) Inspection site: Category of Service: Inspector: Contractor: Farmers Insurance Building Passive Parks & Facilities Landscapes Maintenance Noah Peraino West Coast Items to correct Date found Subsection Planters & Ground Cover 2/10/2015 Maintenance Turf 2/10/2015 Maintenance Shrub 2/12/2015 Maintenance Turf 2/13/2015 Maintenance Hardscape 2/13/2015 Maintenance Issue Some ofthe small square parking lot planters need Jasmine trimmed Hot spots in back island turf Jasmine against back side of main building need trimming Hot spots in turf around main building Leaf litter in parking lots 17 Wish list (Internal items that are not resolved): Inspection site: Farmers Insurance Building Date found 2/10/2015 2/10/2015 2/10/2015 2/10/2015 Subsection Planters & Ground Cover Maintenance Planters & Ground Cover Maintenance Turf Maintenance Planters & Ground Cover Maintenance Issue Some Myoporum and Ivy need tnmming in back perimeter planters Some ofthe small square parking lot planters need Jasmine trimmed Hot spots in back island turf Ivy growing through Rhaphs in parking lot planter closest to the main building Inspection site: Date found Calavera Park Subsection Planters & Ground Cover 2/11/2015 Maintenance Shrub 2/12/2015 Maintenance Turf 2/13/2015 Maintenance Hardscape 2/13/2015 Maintenance Issue Jasmine in back sidewalk planters of main building need trimming Jasmine against back side of main building need trimming Hot spots in turf around main building Leaf litter in parking lots 18