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Tidemark Computer Systems Inc RECEIVED thlk 0C1 - 5 2000 ■ - '" PLANNING, BUILDING, Tideniark & CODE ENFORCEMENT SOLUTIONS TIDEMARK SOLUTIONS ADVANTAGE EXPRESS LICENSE AND SERVICES AGREEMENT This License and Services Agreement ("Agreement") is effective as of October 3, 2000 and is entered into by and between Tidemark Computer Systems, Inc., a Washington corporation, ("Tidemark") and the City of Rancho Palos Verdes, California ("Customer"), collectively referred to as the"Parties". RECITALS WHEREAS, Tidemark has developed and is the owner of certain proprietary software; WHEREAS, Customer wishes to license and provide for its use of the software; and WHEREAS, Tidemark and Customer desire to set forth the complete terms and conditions of their agreement; AGREEMENT Now THEREFORE, in consideration of the mutual promises, covenants, and agreements herein,the Parties agree to the following: 1. Definitions. 1.1 "Tidemark Products" means the collection of Data Structures, Documentation, and/or Software that is the subject of this Agreement, including any modifications, upgrades, or enhancements thereto provided under this Agreement or amendments hereto. 1.2 "Data Structures" means the server-based database table structures, including any entity relation diagrams. 1.3 "Documentation" means the user manuals and reference materials relating to the Tidemark Products, including this Agreement. 1.4 "Software" means the Tidemark client-based computer programs as set forth in Exhibit A, together with any modifications, upgrades, or enhancements thereto. Advantage Express License and Services Agreement Page 1 of 26 Revised:7/6/2000 s t 1 ;J 1 i li 1.5 "Services" means installation, system implementation and configuration, training, and follow-on support provided as described in the attached exhibits. 2. Intellectual Property Rights. The Tidemark Products are protected under the copyright, trademark, patent, and trade secret laws of the United States and/or the various individual states, and by international treaty provisions. Tidemark retains full ownership in the Tidemark Products. 2.1 Customer may make copies of the Software for the purpose of backup and for no other purpose. Such copies shall be owned by Tidemark. Customer may copy Tidemark's Documentation, but only for internal use by Customer's employees as necessary and within the normal scope of the employees' duties. 2.2 Customer shall not decompile, disassemble, cross-compile, reverse- engineer, otherwise translate the Tidemark Products, or make any other form of derivative work from the Tidemark Products. 2.3 Customer shall not disclose or distribute the Tidemark Products or any portions thereof, including any modifications or enhancements, to any third party. However, if Customer contracts with a third-party provider of archiving or disaster recovery services, Customer may disclose or distribute copies of the Tidemark Products if there is a written agreement between Customer and said third-party provider that requires the third party to respect all rights of Tidemark and be bound by all of Customer's obligations concerning intellectual property and confidentiality. Customer shall not obscure, alter, or remove any Tidemark copyright, trade secret, confidentiality, or proprietary rights notices. 2.4 Customer is liable to Tidemark for any losses incurred as the result of unauthorized reproduction or distribution of the Tidemark Products or any part thereof, which occurs while the Tidemark Products are in Customer's possession or control. Notwithstanding the foregoing, Customer shall not be liable for an unauthorized reproduction or distribution of the Tidemark Products which is the result of theft, computer hacking, or other similar events or activities beyond the reasonable control of Customer. 2.5 Notwithstanding the foregoing provisions of this Article 2, all data compiled, and reports, documents or other material developed by Customer using the Tidemark Products shall be and remain the sole property of Customer without restriction or limitation upon its use or dissemination by Customer. Such material shall not be the subject of a copyright application by Tidemark. Customer's unrestricted right to Advantage Express License and Services Agreement Page 2 of 26 Revised:7/6/2000 1 1 t 1 '1 reuse, convert, or otherwise alter said data, reports, documents or other materials shall survive the expiration or termination of this Agreement. 3. License Grant. Tidemark hereby grants to Customer a nonexclusive license to use the Tidemark Products only as authorized in this Agreement. All rights not expressly granted to Customer are retained by Tidemark. 3.1 License Use. This Agreement is for the number of licenses as described in Exhibit A. The Software is deemed to be in use when it is loaded into memory in a computer, regardless of whether a user is actively working with the Software. 3.2 Concurrent User Licenses. For concurrent user licenses, the applicable Software may be installed on the hard disk of one or more computer servers owned, leased, or otherwise controlled exclusively by Customer, but may not be used simultaneously by more than the number of concurrent users for which the Customer is licensed. 3.3 Seat License(s). For each seat license, the applicable Software may be installed on the hard disk of one computer processing unit owned, leased, or otherwise controlled exclusively by Customer, but may not be used simultaneously by more than the number of seats for which the Customer is licensed. 3.4 Server License(s). For server licenses, the applicable Software may be installed on a single database platform on one and only one database server owned, leased, or otherwise controlled exclusively by Customer. Customer may install multiple versions of the Software on the single database platform simultaneously for training and development/testing, but only for the Customer's own internal use. 3.5 Geographic Restrictions. The Tidemark Products may only be used in relation to properties located within the geographical boundaries of the Customer's political jurisdiction or in the discharge of Customer's official duties. 3.6 Transfer of License. Customer may not assign, sublicense, pledge, lend, rent, lease, or share its rights under this Agreement with any third party without Tidemark's prior written permission, which may be granted or denied in Tidemark's sole reasonable discretion. 4. Services. Tidemark agrees to provide Customer with the Services described or referenced in Exhibit A, subject to the terms and conditions of this Agreement. Tidemark shall commence and complete the Services within the time frame set forth in Exhibit A, provided that Tidemark shall not be responsible for any delay in performance caused by Customer. Tidemark may, at its sole discretion, Advantage Express License and Services Agreement Page 3 of 26 Revised:7/6/2000 designate a third-party provider of implementation and maintenance services, provided that Tidemark provides written notice of the assignment to Customer at least ten (10) business days prior to the effective date of the assignment and provided further that Tidemark remains responsible for the performance of the implementation and maintenance services by its assignee. 5. Customer's Responsibilities. Customer acknowledges that although Tidemark will install the Software on Customer's system, Tidemark is not responsible for Customer's entire system. Customer therefore agrees to cooperate with Tidemark and to use its best efforts to ensure Tidemark's performance of this Agreement. Without limiting the foregoing, Customer agrees to the following: 5.1 Timely Access to Information and Resources. Customer shall provide Tidemark with timely access to Customer's facilities, personnel, data systems, and other resources, as required for Tidemark to perform its obligations under this Agreement. 5.2 Necessary Hardware and Software. Customer shall furnish, install, and maintain all necessary and appropriate hardware, software, networks, relational database management systems ("RDBMS"), remote access means, and all other equipment necessary to install and operate the Software as described in Exhibit B. 5.3 Training Facility. In the event that the Services require training at Customer's location, Customer shall be responsible for providing a facility and the equipment necessary to complete the training. Customer shall be responsible for training its employees to be proficient with basic computer skills in the Microsoft Windows 9X or NT environment. 5.4 Data Conversion. Customer is responsible for the accuracy and integrity of its data. Customer shall convert and format any data from its existing computer systems pursuant to Tidemark's specifications. 5.5 Links and Interfaces. The Software's specifications permit customer to link or interface with certain GIS, remote inspection systems, and IVR software. Customer shall be responsible for the selection, installation, and/or maintenance of any and all such GIS, remote inspection systems, and IVR software. 5.6 Timely Completion of Implementation Tasks. Customer understands and agrees that it must complete certain tasks in order for Tidemark to proceed in a timely manner with its Services. Tidemark's obligation to proceed under this Agreement is subject to customer's completion of such designated tasks. Customer agrees not to unreasonably delay or withhold completion of such designated tasks, so as to jeopardize Tidemark's timely performance. Advantage Express License and Services Agreement Page 4 of 26 Revised:7/6/2000 5.7 Delays. Customer's delays in providing the above items, approvals, information, or access may adversely affect the schedule defined in Exhibit A. Because such delays are beyond Tidemark's control, Tidemark cannot guarantee that Customer's implementation will be immediately placed back in Tidemark's overall work schedule, and the estimated schedule may therefore be delayed by more time than the actual number of days delayed by Customer. 5.8 RDBMS Support. Customer shall procure and continually maintain an industry-standard maintenance agreement with the Customer's RDBMS vendor or one of its authorized representatives (including software updates to the extent necessary to operate the Software). 5.9 RDBMS Database Administrator(s). Customer shall continuously employ or retain qualified personnel as the database administrator(s) for the RDBMS. 5.10 Updating Hardware and Software. Customer acknowledges that future releases of the Software may require different or additional equipment and software in order to function properly. Customer shall be responsible to furnish, install, and maintain such different or additional equipment and software. 6. Term and Termination. 6.1 Terms of License and Services. The license provided under this Agreement is effective as of the date first written above and shall continue until terminated. The term of Services provided by Tidemark is defined by Exhibits A ("Licenses and Services") and C ("Software Maintenance Service"). 6.2 Termination of License and Services. Customer may terminate this Agreement at any time by returning all copies of the Tidemark Products to Tidemark. This Agreement may be terminated by either of the parties upon the occurrence of any material breach of this Agreement (including, without limitation, nonpayment of fees and costs) or any other agreement between the parties that is not remedied within thirty (30) days of written notice of breach. Notwithstanding the preceding, Tidemark may terminate this Agreement immediately in the event that Customer materially breaches either the intellectual property or confidentiality sections of this Agreement. Although said termination is effective upon the occurrence of the breach, as a courtesy Tidemark will notify Customer of the termination. Upon termination of this Agreement, all rights granted to Customer will terminate and revert to Tidemark. Promptly upon termination of this Agreement for any reason or upon discontinuance or Advantage Express License and Services Agreement Page 5 of 26 Revised:7/6/2000 V abandonment of Customer's possession or use of the Tidemark Products, Customer must return all copies of the Tidemark Products to Tidemark. The provisions of Sections 2, 7, and 10 shall survive termination or expiration of this Agreement. 7. Payments and Charges. Customer agrees to pay Tidemark on the following terms: 7.1 License Fees. Customer shall pay Tidemark, or a designated representative, license fees as provided in Exhibit A. Customer acknowledges that Tidemark will not proceed with delivery or commence implementation services until payment of the applicable license fee has been received. If Customer desires to expand its use of the Tidemark Products, Customer will be billed a fee based on Tidemark's then-current license fee schedule. 7.2 Adjustments. If Customer causes an unreasonable delay in the implementation of this Agreement, Tidemark reserves the right to charge customer for the extra time required to implement the Tidemark Products at its then-prevailing hourly consulting rates. Any such additional charges will be limited to actual and documented costs incurred by Tidemark as a result of the delay(s). 7.3 Travel Expenses. Customer will be charged for all reasonable travel- related expenses incurred by Tidemark while performing any Services under this Agreement. The total of these expenses shall not exceed $5,500.00. 7.4 Taxes. Customer shall be responsible for payment of all federal, state (or provincial), and local taxes and duties (except those based on Tidemark's income) imposed upon the transactions contemplated by this Agreement. All such taxes shall be in addition to the fees and costs for the Services. If Customer is exempt from certain taxes, Customer shall provide Tidemark, upon request, with a certificate of exemption or comparable document issued by the applicable taxing authority. 7.5 Method of Payment. Payment shall be by check or warrant delivered to Tidemark at the address herein for notices, or by wire transfer to Tidemark's bank account. All payments shall be made in United States dollars. 7.6 Overdue. Any payment not paid to Tidemark within thirty (30) days of the billing date shall incur a late payment fee equal to five percent(5%) of the amount past due, and shall accrue interest in an amount equal to one- and-a-half percent (1.5%) per month, compounded monthly, on the outstanding balance from the billing date. If full payment is not received Advantage Express License and Services Agreement Page 6 of 26 Revised:7/6/2000 I 1 ri 1 g , dl 1 by Tidemark within forty-five(45)days of the billing date, Tidemark may, at its discretion, suspend work, including implementation or maintenance support services, until payments for all past-due billings have been paid in full by Customer. Customer acknowledges that such suspension of work for late payment may cause a delay in the schedule for more than the number of days that the payment is late. Upon receipt of all late payments following such a suspension of work, Tidemark shall resume work on the project as quickly as possible, subject to Tidemark's then-existing commitments to other customers. 8. Limited Warranty and Limitation of Liability. 8.1 Software Limited Warranty. Tidemark warrants that it has full power and authority to grant this license. Tidemark warrants to Customer that, for a period of six (6) months from the effective date of this Agreement, the Tidemark Products will perform substantially in accordance with the functional specifications in the Documentation when operated within the equipment configuration and in the operating environment specified by Tidemark. 8.2 Errors or Material Defects. Customer acknowledges that because of the complexity of computer technology, Tidemark cannot warrant that the Tidemark Products will be error-free or free of material defects in all circumstances. In the event of a defect or error covered by this warranty, Tidemark will employ its best efforts to cure the problem in accordance with the terms of the Software Maintenance Service, attached hereto as Exhibit C, once the Customer has provided Tidemark with sufficient information to reproduce the error or defect. Customer's exclusive remedy for error or material defect shall be Tidemark's cure for the error or material defect, or a refund of the amount paid as the license fee for the defective or non-conforming Software. 8.3 Third Party Hardware and Software. Tidemark provides no warranty whatsoever for any third-party hardware or software, either resold by Tidemark as part of this Agreement or used in combination with the Software. Any warranties for third-party hardware or software resold by Tidemark are limited to those provided by the original product manufacturers. 8.4 Services Warranty. Tidemark shall perform the Services in a good and workmanlike manner consistent with the standard of care exercised by professional consultants in similar circumstances and with applicable industry standards. 8.5 Warranty Against Infringement. Tidemark warrants that to the best of its knowledge as of the effective date of this Agreement, the Tidemark Advantage Express License and Services Agreement Page 7 of 26 Revised:7/6/2000 1" N Products do not infringe on any existing intellectual property rights of any third party. Tidemark shall indemnify, hold harmless, and defend Customer, its elected and appointed officers, employees, agents, servants, attorneys, and contractors from and against any claim, liability, loss, damage, penalties, or obligations resulting from any third party's claim that Customer's use of the Tidemark Products infringes on an existing intellectual property right owned by that third party. If a third party claims that the Tidemark Products do infringe, Tidemark may, at its option, either secure for Customer the right to continue its use of the Tidemark Products, or modify or replace the Tidemark Products so that they do not infringe. Tidemark has no obligation for any claim based on a modified version of the Tidemark Products or their combination, operation, or use with any product,data, or apparatus not provided by Tidemark. 8.6 Activities Voiding Warranty. This warranty is null and void if any unauthorized changes, alterations, or repairs are made by Customer, Customer's agents, or third parties to the Tidemark Products, using applications or tools not licensed to Customer by Tidemark, or if any changes, alterations, or repairs are made by personnel not trained to Tidemark's specifications. In addition, this warranty shall not apply if the Tidemark Products are subjected to misuse or are operated in a manner or environment not in accordance with the Documentation. 8.7 Data Archiving. Customer is solely responsible for archiving and backing-up its data. 8.8 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN OTHER PROMOTIONAL DOCUMENTATION PROVIDED TO CUSTOMER BY TIDEMARK, THE TIDEMARK PRODUCTS ARE SOLD "AS IS" AND TIDEMARK DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE CHARACTER, FUNCTION, OR CAPABILITIES OF THE TIDEMARK PRODUCTS, THE DOCUMENTATION, OR THEIR APPROPRIATENESS FOR ANY USER'S PURPOSES. 8.9 Limitation on Liability. To the extent not covered by its insurance, Tidemark's cumulative liability to Customer or any other party for any losses or any incidental, special, or exemplary or consequential damages resulting from any claims, demands, or actions arising from or relating to this Agreement, including, without limitation, any costs or damages associated with loss of use or failure of the Tidemark Products or any other resources, loss of business or profits, loss of data, delay in delivery Advantage Express License and Services Agreement Page 8 of 26 Revised:7/6/2000 ) v of permits, third party claims, or costs of substitute programs, shall not exceed the fees paid to Tidemark for licenses or services under this Agreement, even if Tidemark or its agents have been advised of the possibility of such damages. 9. Software Maintenance Service. Maintenance of the Tidemark Products is available from Tidemark pursuant to the terms and conditions of Tidemark's Software Maintenance Service document attached hereto as Exhibit C. Tidemark's Software Maintenance Service commences upon execution of this Agreement, continues for the term described in Exhibit A, and is separate from any warranty or implementation service pursuant to other terms of this Agreement. Customer must comply with all terms and conditions of this Agreement, the Software Maintenance Service, and Tidemark's reasonable requests and instructions in order to qualify for service under the Software Maintenance Service. Customer further acknowledges that future releases of the Software are only included if specifically covered by the Software Maintenance Service document in Exhibit C. 10. Non-Solicitation and Nondisclosure. 10.1 Non-Solicitation. Customer agrees that during the term of this Agreement and for a period of two (2) years from the effective date of termination or expiration, it will not directly or indirectly hire or offer to hire, entice away, or in any other manner persuade or attempt to persuade any employee or consultant of Tidemark's to discontinue or materially alter his or her relationship with Tidemark. 10.2 Nondisclosure. 10.2.1 Customer agrees that it will not disclose, and it will not permit its employees or agents to disclose: 1) any of the Tidemark Products or Tidemark's information which are confidential, proprietary, copyrighted, or considered a trade secret (including plans, pricing, and methods); or 2) any protocols or procedures associated with any Services provided pursuant to this Agreement or disclosed to Customer prior to execution of this Agreement. 10.2.2 If Customer receives a request to disclose any of the above items or information, Customer shall notify Tidemark, provide Tidemark a copy of the request, and cooperate and work in good faith with Tidemark to protect any information that Tidemark considers secret or confidential. 10.2.3 Customer's obligation of nondisclosure extends from the effective date of this Agreement until two (2) years after the effective date of termination or expiration of this Agreement. Customer shall Advantage Express License and Services Agreement Page 9 of 26 Revised:7/6/2000 ti; e. i promptly return, and cause its employees and agents to return, any secret or confidential information upon demand by Tidemark. 10.2.4 Nothing in this section 10.2 shall be construed to require Customer to protect proprietary or confidential information which has ceased to be proprietary or confidential and is available in the public domain or from other sources independent of any wrongdoing on the part of Customer. 11. General Terms and Conditions. 11.1 Insurance. Tidemark shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, with an insurance company admitted to do business in California, rated "A" or better in the most recent Best's Key Insurance Rating Guide, and approved by Customer, (1) a policy or policies of broad-form commercial general liability insurance with minimum limits of $1,000,000 combined single limit coverage against any injury, death, loss or damage as a result of wrongful or negligent acts by Tidemark, its officers, employees, agents, and independent contractors in performance of services under this Agreement; (2)workers' compensation insurance with a minimum limit of $1,000,000 or the amount required by law, whichever is greater. Customer, its officers, employees, attorneys, and designated volunteers shall be named as additional insureds on the policy(ies) as to commercial general liability bodily injury and property damage coverages with respect to liabilities arising out of Tidemark's work under this Agreement. Each insurance policy required by this Section 11.1 shall be endorsed with the following language: (1) the insurer waives the right of subrogation against Customer and its officers, employees, agents and representatives; (2) the policies are primary and non-contributing with any insurance that may be carried by Customer; and (3) the policies may not be canceled or materially changed except after thirty (30) days prior written notice by insurer to Customer. 11.2 Mutual Indemnification. The Parties agree to the following indemnification provisions: 11.2.1 Customer agrees to indemnify, defend, and hold Tidemark and its officers, agents, and employees harmless against any claims, suits, or damages arising out of physical property damage or bodily injury caused by the negligence or misconduct of Customer or its employees or agents while the terms and conditions of this Agreement remain enforceable. Tidemark agrees to indemnify, defend, and hold Customer, its elected and appointed officials, officers, agents and employees harmless against any claims, suits, Advantage Express License and Services Agreement Page 10 of 26 Revised:7/6/2000 I 4 I . i t 1 or damages arising out of physical property damage or bodily injury caused by the negligence or willful misconduct of Tidemark or its employees or agents while the terms and conditions of this agreement remain enforceable. 11.2.2 In the event of concurrent negligence, the parties shall each indemnify, defend, and hold one another harmless on a pro-rata basis according to the relative fault of each party, as determined by a finder of fact of competent jurisdiction, against any claims, suits, or damages arising out of physical property damage or bodily injury. 11.2.3 To the extent not covered by its insurance, Tidemark's cumulative liability under this provision shall not exceed the total of all amounts paid to Tidemark for licenses and services pursuant to this Agreement. 11.2.4 The provisions of this section 11.2, the mutual indemnity clause, shall survive the termination or expiration of this Agreement. 11.3 Notices. All notices required or authorized by this Agreement shall be in writing and shall be hand-delivered, sent via a nationally-recognized overnight courier, or mailed first-class and postage-prepaid with return receipt requested to the addresses shown below: TIDEMARK: CUSTOMER: Tidemark Solutions 506 Second Avenue, Suite 600 Seattle, Washington 98104 Attention: Contracts Administrator For the purposes of this Agreement, notices shall be deemed communicated as follows: (i) Notices delivered via a nationally recognized overnight courier shall be deemed communicated two (2) days after deposit of such notices with the overnight courier, and (ii) notices delivered via first class mail shall be deemed communicated as of three(3) days after deposit thereof in the United States mail, addressed as shown on the addressees' registry or certificate of receipt. 11.4 Independent Contractor. Tidemark is, and shall at all times remain as to Customer, a wholly independent contractor. Tidemark shall have no power to incur any debt, obligation, or liability on behalf of Customer. Tidemark may act as an agent of Customer only to the extent necessary to perform its duties and obligations pursuant to this Agreement. Neither Customer nor any of its agents shall have control over the conduct of Tidemark or any of Tidemark's employees, except as set forth in this Advantage Express License and Services Agreement Page 11 of 26 Revised:7/6/2000 s r Agreement. Tidemark shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of Customer. Tidemark agrees to pay all required taxes on amounts paid to Tidemark under this Agreement, and to indemnify and hold Customer harmless from any and all taxes, assessments, penalties, and interest asserted against Customer by reason of the independent contractor relationship created by this Agreement. Tidemark shall fully comply with the workers' compensation law regarding Tidemark and Tidemark's employees. Tidemark further agrees to indemnify and hold Customer harmless from any failure of Tidemark to comply with applicable workers' compensation laws. Customer shall have the right to offset against the amount of any fees due to Tidemark under this Agreement any amount due to Customer from Tidemark as a result of Tidemark's failure to promptly pay to Customer any reimbursement or indemnification arising under this Section 11.4. 11.5 Assignment. Customer shall not assign its rights and obligations under this Agreement without Tidemark's prior written permission, which may be granted or denied in Tidemark's sole discretion. Tidemark may assign its obligation to perform services,hereunder to a Tidemark-trained and qualified third-party vendor, and/or may subcontract with third parties to provide all or a portion of the services required hereunder provided that Tidemark shall remain responsible for the performance of the services by its assignee, and provided further that Tidemark shall provide written notice of the assignment to Customer at least ten (10) business days prior to the effective date of the assignment.. Nothing herein shall prohibit Tidemark from assigning its rights and obligations for purposes of financing, or in the event of corporate transactions involving the sale of all or substantially all of Tidemark's stock or assets. 11.6 Venue and Governing Law. The licensing portions of this Agreement shall be governed by the laws of the State of Washington, with the venue of any action under this Agreement in King County, Washington. The services portions of this Agreement shall be governed by the laws of the State of California, with the venue of any action under this Agreement in Los Angeles County, California. 11.7 Mediation. The Parties agree to mediate any dispute or claim arising between them out of this Agreement before resorting to arbitration or court action. A request to a court for interim protection shall not affect either party's obligation hereunder to mediate. Subject to the provisions of Subsection 11.8 below, each party shall initially bear its own expenses and an equal share of all costs and fees of the mediation. If, for any dispute or claim to which this Subsection applies, either party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall Advantage Express License and Services Agreement Page 12 of 26 Revised:7/6/2000 not be entitled to recover attorneys' fees, even if they would otherwise be available to that party in any such action. Any mediator selected shall be competent in the legal and technical aspects of the subject matter of this Agreement. The content and result of the mediation shall be held in confidence by all participants, each of whom will be bound by an appropriate confidentiality agreement. 11.8 Attorneys' Fees. In the event of any action to resolve a dispute arising from or related to this Agreement, the substantially-prevailing party in such action, as determined by the presiding official thereof, shall be entitled to all its expenses, reasonable attorneys' fees, and costs; the substantially-prevailing party in any appellate action, as determined by the presiding official(s)thereof, shall be entitled to all its expenses,reasonable attorneys' fees, and costs. 11.9 Third Party Beneficiaries. This Agreement is intended for the exclusive benefit of the parties hereto. Nothing herein shall be construed to create any benefits,rights, or responsibilities in any third parties. 11.10 Entire Agreement. This Agreement, together with the attached exhibits, represents the entire understanding between Tidemark and Customer with respect to the subject matter described herein, and, unless specifically stated otherwise, supersedes all prior agreements, representations, or promises, whether written or oral. Notwithstanding the preceding, any nondisclosure agreement(s) between the Parties shall remain in full force and effect. 11.11 Exhibits. All exhibits referenced herein and attached hereto are incorporated into this Agreement by this reference. 11.12 Amendment. This agreement may not be extended, modified, or amended unless such extension, modification, or amendment is set forth in a written instrument executed by all parties to this Agreement. 11.13 Severability. If any particular provision of this Agreement is determined to be invalid or unenforceable, that determination shall not affect the other provisions of this Agreement, and the remaining provisions of this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 11.14 Counterparts and Facsimile Copies. This Agreement may be executed in counterparts. Each counterpart shall be enforceable against the parties actually executing such counterparts, and all the counterparts taken together shall constitute one instrument. Facsimile copies hereof may be executed as counterpart originals. Advantage Express License and Services Agreement Page 13 of 26 Revised:7/6/2000 11.15 No Waiver. The failure of either party to object to a breach of this Agreement shall not prevent that party from thereafter objecting to that breach or any other breach of this Agreement. 11.16 Force Majeure. If either party shall be delayed in its performance of any obligation assumed hereunder, or prevented entirely from performing any such obligation due to causes or effects beyond its control, including without limitation, any fire, strike, labor problem, legal action, present or future law, government order or regulation, earthquake, flood, storm, or other Act of God, the party who has been so affected shall give timely notice to the other party and shall act in good faith to resume performance as soon as practicable. Such delay or nonperformance shall be deemed excused and the time for performance of the obligation under this Agreement shall be extended for a reasonable period of time in order to allow for such performance. 11.17 Authority. By executing this Agreement, Tidemark and Customer represent and warrant that they have obtained all necessary approvals to enter into this Agreement and that their signatories are duly authorized to execute this Agreement and bind their respective organizations to its terms. // // // // // // // // // // // // // // // // // Advantage Express License and Services Agreement Page 14 of 26 Revised:7/6/2000 IN WITNESS HEREOF,the Parties have executed this Agreement as of the date and year first written above. TIDEMARK SOLUTION • By: _ . i - By: roi atle.144VIA (Signature) (Signature) BRUCE DAHL BARBARA ANDERSON (Print Name) (Print Name) Its President and CEO Its Chief Financial Officer (Title) (Title) CUSTOMER: ATTEST: ,i0p By. ti.....e, 40 , 4 (Signature CITY 0 ERK LEE BYRD (Print Name) Its MAYOR (Title) END OF DOCUMENT Advantage Express License and Services Agreement Page 15 of 26 Revised:7/6/2000 • i. thik Tulemark SOLUTIONS TIDEMARK SOLUTIONS ADVANTAGE EXPRESS LICENSE AND SERVICES AGREEMENT EXHIBIT A LICENSES AND SERVICES :.27r.y.f1-'''',!77p.i�;•:y:sv.`:..,(::. }:... �::&..,. 1 r^vd/am r:..:v.,ypj:(k +o.•'• ::3:•s.t.ti.•..:.�.v}r l?.YS,:.•k{,`.:.t.:}...}r:.:}.7Z7:\. .}: Y'.',•.�:a`:x+fv.\:::,-}}.:sK:}:fi.t}y:d:.r;: ;: ?�. '{.ph. :•4 f55s:6,E+,3$.r,#ba•av'4c tt,>.....s.:l.•.'j,,.,..'...�t2i%'` :.i.S �..!).....:i9:.?�YLr'. ''+i::n'";'.;'..?x:sv...s..ti.:.py'Gr'',`..'..9°F?u;.c•;.:$.S xC� $ ''s..}•d Advantage Licenses: Advantage Express 10 $50,000 $50,000 Express concurrent user licenses including (base system) system utilities, one Business Pack Add-on, and one year maintenance. Consultant Business and Travel Billed N/A' Expenses(actual cost) separately Subtotal Tidemark Advantage Express $50,000 Base System Advantage Building $12,750 Included Express • Building Permit • Electrical Permit Business Packs • Mechanical Permit • Plumbing Permit • Compliance/Violations Includes implementation services and one year Software Maintenance Service. Business&Travel Expenses billed separately. Planning $12,750 $12,750 • Development Permit • Planning Case • Site Plan Review • Subdivision • Pre-application Includes implementation services and one year Software Maintenance Service. Business&Travel Expenses billed separately. Total $62,750 Tidemark Advantage Express Base System and Add-on Business Packs Advantage Tidemark Designer—one (1) seat, one $10,000 $10,000 Express year maintenance, and training for Options Systems Administrator Advantage Express License and Services Agreement Page 16 of 26 Revised:7/6/2000 d 1� Tidemark Cashier Per seat $6,300 $6,300 (max 10) Professional On-site Training for Crystal Reports(3 Per day $2,000 $6,000 Service Fees days) Travel Time Per $45 N/A Hour Business and Travel Expenses Actual N/Al Professional Services F-'>:Xr.}".S`h::�•S:x$::+ti4C-....{.:{^;..}X4'.::4'..:h}. .•w':KLS X -v r.,h..h)P::h'}}}:"w}:. 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F.r .l�r�.{...:F.v :F.w..nr.... ..E .:fi:..:-�. ,yF{ �( ......:. ......u...r... ..:...............n............ r n. ... .r.......... r?./.r...v nn..:.....!.w...r.r.:........:....f....v....rf.:..-:fv..-�.f.F...r......-....r.....r.♦r/.vw......v..:.-G•.e+�...vrn'�Nm%,...r..n.:.n?.rrf.•..r...n.n.rfi.......... .....}..i<......J...er................:...rE..-.....?./.�n.........n-...-..........r....r..n...-.-...f...............s.-Er..f..�..�.'./-i.e...f.-..$.........f..:...-.f...--...:.........r....n...�FL'-}?.r..-.:.:.-.---... -.. r Due on Contract Signing 50% of Total Contract At completion of Initial Workshop 25% of Total Contract At completion of Go Live Workshop 25% of Total Contract END OF DOCUMENT Advantage Express License and Services Agreement Page 17 of 26 Revised:7/6/2000 • thik Tidemark SOLUTIONS TIDEMARK SOLUTIONS ADVANTAGE EXPRESS LICENSE AND SERVICES AGREEMENT EXHIBIT B HARDWARE AND SOFTWARE REQUIREMENTS The current hardware and software requirements for Advantage Express are shown below for the database server and client PCs. Environments are classified into four categories: 1. Certified Environments. These environments are maintained in-house by Tidemark, and quality assurance testing is performed. If a problem occurs, Tidemark reproduces the problem and offers a timely resolution. 2. Supported Environments. Tidemark believes these environments will work, based on past experiences. Tidemark may or may not have an installation in-house, and will attempt to reproduce problems in the closest Certified Environment available. If Tidemark cannot reproduce the problem, we will collaborate with applicable third-party vendors as necessary to resolve the problem. 3. Minimally-Supported Environments. Various third-party vendors may claim compatibility with a Minimally-Supported Environment but Tidemark may not have the third-party vendor's product in-house. If the problem cannot be reproduced in a Certified Environment, Customer must work directly with the vendor. Tidemark will assist the vendor if Customer establishes contact with the vendor on Tidemark's behalf. 4. Unsupported Environments. Tidemark knows these environments to be unreliable or not compatible with the Tidemark Products. Tidemark will not attempt to fix problems occurring in Unsupported Environments. For best results, Tidemark recommends operation if its products in Certified Environments. Tidemark does not guarantee performance, as your specific requirements may require additional resources. Tidemark reserves the right to change these requirements at any time. // Advantage Express License and Services Agreement Page 18 of 26 Revised:7/6/2000 i V Certified Supported Minimally Unsupported Environment Environment Supported Environment Environment Client Processor: Pentium 233 or Pentium 166 Pentium 75 1 486 or slower better PC's Operating System: Windows 95/98 Windows NT with Windows NT 3.51 Windows 3.1 Service Pack 4 with Service Pack 5 Hard Drive: 50 MB of disk space available RAM: • 64 MB - Windows NT and/or Tidemark Designer • 32 MB(Windows 95/98) CD-ROM: 4x or better MS SQL Server SQL Server—DB Client: Library compatible with SQL Server version ODBC ODBC driver ODBC driver Connection: supplied by target supplied with database vendor Crystal Reports Monitor: SVGA with SVGA with 800 X 600/small 640 X 480 fonts or resolution 1024 X 768/small fonts Crystal2 Reports • 601.135 Professional • 601.151 • 701.192 MS Office, 32-bit versions only WordPerfect, AutoCad,or other software for attaching documents Database Processor: 3 Server Operating System: Windows NT Server Any platform Netware 4.0(Service Pack 4) supported by the database vendor Hard Drive: 3 RAM: 3 Modem: 28,800 or higher CD-ROM: 4x or better Database: Microsoft SQL Oracle,Sybase 1 This platform may be used for occasional look-ups only. Response times will be extremely slow. 2 Crystal Reports licenses are required only for report development. 3 Sized to match Customer's requirements. Contact Tidemark for assistance. All brand and product names are registered or unregistered trademarks of their respective owners. Tidemark Now features and specifications subject to change without notice. Exhibit revised 6/22/1999. Advantage Express License and Services Agreement Page 19 of 26 Revised:7/6/2000 r tt f t .. Certified Supported Minimally Unsupported Environment Environment Supported Environment Environment Server 6.5(with System 11, Service Pack 3) Sybase SQL Anywhere Microsoft SQL Server 7.0 Printers Any non-postscript Dot matrix printers Windows- Postscript printers compatible laser printer END OF DOCUMENT Advantage Express License and Services Agreement Page 20 of 26 Revised:7/6/2000 r f e 14140 Tidemark SOLUTIONS TIDEMARK SOLUTIONS ADVANTAGE EXPRESS LICENSE AND SERVICES AGREEMENT EXHIBIT C SOFTWARE MAINTENANCE SERVICE ("BASIC SMS") Summary Tidemark's Software Maintenance Service ("BASIC SMS") for Advantage Express is designed to provide Software usage assistance, advice, and remedial support, as well as the right to use new versions of application software. Support includes problem identification and resolution, usage advice on proper Software execution, and information on the interpretation of Documentation. It also addresses point-specific questions about initial installation and deployment of Software within the operating environment. The Customer Care Teams are available twelve (12) hours per day, five (5) days per week. BASIC SMS is provided via access to Tidemark's Customer Care Teams either through telephone support or electronic problem submission. General Terms 1. Agreement. The service agreement consists of this agreement (Exhibit C to the License Agreement), and the duly executed Advantage Express License and Service Agreement (the License Agreement), inclusive of all exhibits. All terms set forth in these documents are incorporated herein and expressly made a part of the Basic SMS agreement as though set forth in full. 2. Term,Renewal, and Fees. 2.1 Term. BASIC SMS is available for an initial term of one (1) year, for which the fee is included in the purchase price, as indicated in Exhibit A. 2.2 Renewal. At the conclusion of the initial term or any subsequent term, BASIC SMS shall be automatically renewed for an additional one (1) year term, unless either party has delivered written notice of its intent not to renew to the other Advantage Express License and Services Agreement Page 21 of 26 Revised:7/6/2000 1 party not fewer than thirty (30) calendar days prior to the conclusion of the current term. 2.3 Fee Calculation. The BASIC SMS fee for the first annual renewal term is estimated to be $4,750. This estimate is for information and evaluation purposes only and may be modified by Tidemark in its sole discretion until Customer is sent an invoice by Tidemark for the renewal fee and Customer pays said fee; Customer agrees that until it receives Tidemark's invoice for the renewal fee and pays the fee, any reliance on the above estimate is unreasonable on Customer's part. Following the first annual renewal term, Tidemark will send an invoice to Customer for the next annual term not less than forty (40) days prior to the expiration of the then-current term. The fee for each annual term following the first renewal term will be calculated as follows: the prior year's renewal fee will be increased or decreased based upon a) the most recently published twelve- month Consumer Price Index for All Urban Consumers ("CPI-U"), an inflation index published monthly by the United States Department of Labor; and b) a factor indicating increases or decreases in the cost of Tidemark's support for Customer's software, considering, amongst other matters, the age of Customer's version of the Tidemark Now software. All fees shall be paid in accordance with the terms and conditions of this Agreement, described above in Section 7. 3. Geographic Availability. BASIC SMS is available in the United States and Canada. Additional travel charges may apply for service in Alaska and Hawaii. 4. Purchase Options. BASIC SMS for Tidemark Advantage Express may be renewed annually as an unlimited support option. BASIC SMS entitles Customer to an unlimited number of service requests during the term of this BASIC SMS agreement. Customer's BASIC SMS coverage is available during prime business hours, twelve (12) hours per day, five (5) days per week (from 6:00 a.m. until 6:00 p.m. Pacific Time). Customer shall specify no more than three (3) Designated Contacts amongst its employees. These Designated Contacts will be Customer's connections to the Tidemark Expertise Center ("TEC"). 5. Eligibility. BASIC SMS is available for Tidemark Advantage Express applications and options subject to the following: 5.1 Customer must be properly licensed to use the software for which BASIC SMS is purchased. Customer must be properly licensed to obtain the right to use updated versions of the Tidemark-supported Software covered by the Tidemark Now License and Service Agreement; this right-to-use applies to updates which become available during the term of this Agreement. 5.2 The installation/operating software and hardware environments in which the Tidemark Software runs must be properly maintained at the latest manufacturer revision level and must comprise at least the minimum hardware and software Advantage Express License and Services Agreement Page 22 of 26 Revised:7/6/2000 specified in the Documentation. Failure to properly maintain these environments will limit BASIC SMS to no more than a"best endeavor"level, as defined below. 5.3 All Tidemark-supported layered software products operated by Customer must be covered by BASIC SMS. BASIC SMS extends assistance for the Software to Customer via the Designated Contacts. 5.4 A hardware maintenance agreement is not required to establish or maintain Customer's eligibility for BASIC SMS. However, it is strongly recommended that Customer make provisions for hardware maintenance to ensure maximum coverage for the Software in Customer's operating environment. 6. Assignment. Customer acknowledges that Tidemark may assign or subcontract to third parties any functions or services offered as BASIC SMS provided that Tidemark shall remain responsible for the performance of the services by its assignee, and provided further that Tidemark shall provide written notice of the assignment to Customer at least ten(10)business days prior to the effective date of the assignment. 7. Restricted Information. Customer acknowledges Tidemark's right to deny Customer access to certain information only if said information is mandatorily restricted by export, business, or other regulations or restrictions. Tidemark's Responsibilities 8. Access. A toll-free telephone number provides Customer's access to Tidemark's Customer Care Teams for timely resolution of support issues. The Customer Care Teams are available Monday through Friday, from 6:00 a.m. until 6:00 p.m. Pacific Time, excluding Tidemark's observed holidays. Access to the electronic technical databases and electronic problem submission functions is available twenty-four(24) hours per day, seven (7) days per week. Service requests submitted electronically will be addressed during regular support hours 9. Technical Software Support. Technical support includes both advisory and remedial support. This includes usage advice on proper execution methods and assistance in interpreting the Documentation, as well as help to resolve identifiable and reproducible technical problems. BASIC SMS ensures that the Software operates substantially as specified in the Documentation. Access to support is provided as follows: 9.1 Telephone Assistance. Customer will receive a toll-free telephone number and a TEC access number to use technical support telephone assistance. Support will be provided to the Designated Contacts. 9.2 Electronic Support. Designated Contacts may communicate electronically with the TEC, submit routine or non-critical service requests, exchange files, search available product databases, and access software patches for all Tidemark- supported Software included in this Agreement. Generally, electronic service Advantage Express License and Services Agreement Page 23 of 26 Revised:7/6/2000 n i I s requests are recognized and acknowledged and action is commenced within two (2) hours during the regular support hours. Electronic access should not be used for critical problem submissions. 9.3 On-Site Support. On-site support may be provided to assist in the resolution of requests which Tidemark determines are critical and cannot be resolved via electronic or telephone support. On-site support is subject to Tidemark's travel charges. 9.4 Response Goals. The TEC goal is to provide prompt access to the Customer Care Teams. If a callback is required on a service request, Team members will attempt to contact the Designated Contacts within two (2) hours of the time the request is logged at the TEC during regular support hours. For requests logged outside the regular support hours, a response will be provided during the next business day. It is the Customer's (Designated Contacts') responsibility to be available for a period of two (2) hours after logging a request. Availability is defined as being reachable by phone or pager, and, if appropriate,providing an additional available back-up contact who is knowledgeable about the service request. 9.5 Software Service Request Resolution. A service request is defined as resolved when Customer: 9.6.1 Receives information which resolves the Software problem; 9.6.2 Receives information on how to obtain one or more software patches which will resolve the Software problem; 9.6.3 Receives notice that the Software problem is caused by a product, condition, or circumstance not supported under BASIC SMS; 9.6.4 Is informed that the Software problem is corrected or resolved in a subsequently-released product; 9.6.5 Is informed, after notification that the Software problem has been referred to an appropriate engineering group, of Tidemark's engineering response; or 9.6.6 Is informed that the Software problem has been diagnosed as a hardware fault. Customer's Responsibilities 10. Response times are designated based upon the severity of the incident as follows: Critical The failure causes a system crash or unrecoverable data loss. Tidemark response time=2 hours. Advantage Express License and Services Agreement Page 24 of 26 Revised:7/6/2000 ( i• �' * ( 1 t • i I High The failure causes impairment of critical system functions and no workaround solution exists. Tidemark response time=4 hours. Medium The failure causes impairment of critical systems functions, though a workaround solution does exist. Tidemark response time= 12 hours. Low All other anomalies or action items. Tidemark response time= 24 hours. "Response" means, for purposes of this Agreement, that an incident report will be assigned by Tidemark for resolution within the above-described response times. Customer will specifically identify issues which will enable the TEC to determine the severity of the reported incident. 11. Customer will provide,at no charge to Tidemark,an appropriate work space when on-site support is made available, and will permit full and unrestricted access to all communication facilities. Customer will notify Tidemark in advance of any on-site service of all safety or health hazards which exist at the work site and will recommend safety procedures to be followed at Customer's location. 12. Customer will notify Tidemark of changes in the hardware or software operating environment which could affect the Software. 13. Customer will provide dial-in facilities, employing a modem with a transmission speed no less than 56kbs, to support remote communications with the TEC. Customer is strongly encouraged to install"PC Anywhere"in order to facilitate the TEC's delivery of BASIC SMS services. 14. Customer will maintain a current back-up copy of the Software and its associated Customer data. 15. Customer will allow Tidemark's personnel full and unconditional access to the Software. If security restrictions such access, Customer may be required to assume additional responsibilities for maintaining its system and/or the Software. If Customer's Hardware is not supported under this Agreement, Customer may be required to assume additional responsibilities for maintaining its system and/or the Software. 16. Customer will provide the TEC with the assigned request log number for follow-up on previously-submitted service requests. Exclusions from BASIC SMS 17. The following services are not included under the terms of this Agreement: 17.1 Services required due to mistreatment or misuse of the Software; Advantage Express License and Services Agreement Page 25 of 26 Revised:7/6/2000 z 1 I w4 . 17.2 Services required due to attempts by non-Tidemark personnel to repair, maintain, or modify the Tidemark Products, when such attempts are not authorized in writing by Tidemark; 17.3 Services required due to external causes, including, but not limited to, Customer's use of third-party software and hardware no authorized by Tidemark; 17.4 Services required due to software corrections, customizations, or modifications not developed or authorized by Tidemark; 17.5 Maintenance or support of Customer's hardware; 17.6 Support for any Software version more than 180 days following Tidemark's release of a subsequent Software version, unless specifically agreed to in writing by Tidemark. Support for prior Software versions may be provided on a "best endeavor" basis, but will not include vendor engineering back-up support in any event. "Best endeavor" consists of answering questions or service requests using available database information. Support requiring additional research, engineering-level support, or coding by Tidemark may be available separately at an additional charge. Support may also be available through the optional purchase by Customer of Tidemark's Prior Version Support Service. If Customer does not use the current version of the Software, Tidemark strongly encourages Customer to purchase that support; 17.7 Consulting services including, but not limited to, performance tuning, development of code modifications for specific operating environments, and network integration; and 17.8 Support beyond the scope of the BASIC SMS may be separately available at Time and Materials rates and Terms and Conditions which may vary from those in this Agreement. END OF DOCUMENT Advantage Express License and Services Agreement Page 26 of 26 Revised:7/6/2000