HomeMy WebLinkAboutR-2013-118 Purchase Executime Software Time & Attendance RESOLUTION NO. R- 2013 -118
A RESOLUTION AUTHORIZING THE PURCHASE OF TIME AND ATTENDANCE
SOFTWARE FROM EXECUTIME SOFTWARE, LLC IN AN AMOUNT NOT TO EXCEED
$19,000.00.
WHEREAS, the City of Riverside has a need for time and attendance software, and
issued a request for proposals for such software; and
WHEREAS, after evaluation of the responses, the City finds that ExecuTime Software,
LLC's proposal is the lowest responsible proposer, and that it is in the best interest of the City to
authorize and approve the purchase of its software package.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI AS FOLLOWS:
THAT the Board of Aldermen ( "Board ") hereby authorizes and approves the purchase of
ExecuTime Software's Premise System, including its Software Timekeeping License (for up to
150 employees), Implementation Services and Training, and annual maintenance, in an amount
not to exceed $19,000.00; and
FURTHER THAT the Mayor, the City Administrator, the Finance Director, and other
appropriate City officials are hereby authorized to take any and all actions as may be deemed
necessary or convenient to carry out and comply with the intent of this Resolution and to
execute and deliver for and on behalf of the City all certificates, instruments, agreements and
other documents, as may be necessary or convenient to perform all matters herein authorized.
PASSED A D ADOPTED by the Board of Aldermen of the City of Riverside, Missouri,
the J l U- day of 2013.
i�A�dlitP/R) • tee-4)-
• yor Kathleen L. ose
: ATTEST:
acrek
Robin ittrell, Cit Clerk
Finance Division
Memo
To: Greg Mills
Front Donna Resz
CC:
Date: 11/04/2013
Re: Time and Attendance Software
In September, the City issued a Request for Proposal for Time and Attendance Software. We
received 3 proposals as a result.
Software & Annual Maintenance # of users
Implementation
Executime 16,500 2,500 Up to 150
TimeClock Plus 15,149 1,385 Up to 100
Time Centre Software unable to meet our needs
The proposals were reviewed by the Finance Director, Director of Administration and the Police Major.
Both Executime and TimeClock Plus provided an on -line demo of their product. Based on the
proposals and the on -line demo, we felt that both companies would be able to meet our needs.
However, Executime's software appeared to be much more user friendly and flexible.
In addition, the City currently has over 100 total employees. As such, we inquired as to the cost of
TimeClock Plus with up to 150 employees. They were unwilling to give us a straight answer. Instead
responding with. "Don't worry about it. It's not like we are going to shut down your software if you
exceed the limit."
Therefore, due to the unknown true cost of 150 employees with TimeClock Plus, we are uncertain that
they would be the lowest bidder. In addition, we feel that Executime's product would better meet our
needs. As such, we are requesting approval to proceed with the Executime software.
1
ExecuTime Software, LLC
1601 S Eucalyptus STE 210
Broken Arrow, OK 74012
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ExecuTimeTM LICENSE AGREEMENT COVER
This License Agreement, by and between ExecuTime Software, LLC, an Oklahoma limited liability company,
hereinafter referred to as "ExecuTime ", and the organization named below, hereinafter referred to as "LICENSEE ":
City of Riverside
ORGANIZATION NAME
2950 N.W. Vivion Road
STREET ADDRESS
Riverside, MO 64150 (816)741 -3993
CITY/STATE/ZIP TELEPHONE NUMBER
This License Agreement applies to the ExecuTimeTM Time and Attendance Software System.
The computer with which the Licensed Software is to be used is known as the Designated Computer and is
identified as follows:
N/A 150 N/A
Server Model Number of Employees Serial Number
The LICENSEE acknowledges that it has read this Agreement, the terms and conditions of which are set
forth on this page and in the ExecuTimeTM License Agreement Terms and Conditions Document attached
hereto, and understands it and agrees to be bound by its terms and conditions. Further, the LICENSEE
agrees that it is the complete and exclusive statement of the agreement between the parties which
supersedes all proposals or prior agreements, oral or written, and all other communications between the
parties relating to the subject matter of this Agreement. Notwithstanding the foregoing, this Agreement is
part of a Purchase and Sale Agreement between LICENSEE and ExecuTime executed contemporaneoulsy
herewith and is subject to its terms.
ExecuTime: LICENSEE: ,
ExecuTime Software, LLC � " L
G 1. - r e
B y: .LS
Kevin Malone
Manager Name: r e Q 0 (y 1
Title: C ;� J )) Na tc �l & #CA1 - 0
Date: U Date: i a a 1 1 13
8/01/02 1 of 4
ExecuTime Software, LLC
LICENSE AGREEMENT TERMS AND CONDITIONS
1. DEFINITIONS
The term "Licensed Software" in this Agreement shall mean all licensed data processing programs
consisting of instructions or statements in machine readable form and any related licensed materials such as, but
not limited to, manuals, system documentation and written or verbal instructions provided for use in connection
with the licensed data processing programs.
2. TERM
This Agreement is effective from the date on which it is accepted by ExecuTime and will remain in effect
unless terminated as provided herein. In the event the parties are unable to reach agreement as to a Solution
Design, either party may, upon notice to the other party, terminate this Agreement without liability to the other
party, as provided in the Purchase and Sale Agreement between the parties. In addition, this Agreement may be
terminated (a) by the LICENSEE, with or without cause, upon 30 days prior written notice to ExecuTime, or (b) by
ExecuTime if the LICENSEE fails to comply with any of the material terms and conditions of this Agreement and
fails to cure the default within 30 days after receipt of written notice stating the exact nature of the default. It is
hereby agreed that upon termination of this Agreement for any reason, LICENSEE shall discontinue use of all
Licensed Software and all Licensed Software shall be returned to ExecuTime.
3. LICENSE
(a) ExecuTime hereby grants to LICENSEE a License to use the Licensed Software only on the
Designated Computer as identified on the License Agreement Cover. Any attempt to sub - license, assign or
transfer any of the rights, duties or obligations under this Agreement are void without written notification to and the
consent of ExecuTime, which consent must not be unreasonably withheld.
(b) The License is transferable to a backup computer when the Designated Computer or an
associated unit required for use of the Licensed Software is temporarily inoperable, but only until status is restored
to the Designated Computer and processing on the backup computer is completed.
4. WARRANTY AND LIMITATION OF LIABILITY
(a) ExecuTime warrants that it has the right to market, distribute, support and maintain Licensed
Software and that Licensed Software is warranted to conform to the operating specifications as outlined in the
applicable software documentation. LICENSEE agrees that its SOLE AND EXCLUSIVE REMEDY is for
ExecuTime to correct any error, malfunction or defect if the Licensed Software warranted hereunder fails to
conform to the applicable operating specifications and LICENSEE advises ExecuTime of such failure in writing,
during the three (3) month warranty period. The three (3) month warranty period starts the day after the date of
the complete installation. If after reasonable attempts, ExecuTime is unable to correct the error, malfunction, or
defect, LICENSEE shall be entitled to recover an amount, commensurate with the nature and magnitude of the
error or defect, up to the entire amount paid for the Licensed Software. (For the purpose of this Agreement, the
term "error, malfunction or defect" shall mean only significant material deviations from the operating specifications
for the Licensed Software as set forth in the applicable software documentation issued by ExecuTime, that render
the Licensed Software unusuable.)
(b) ExecuTime represents, warrants and covenants that the Licensed Software delivered hereunder,
including any upgrades or subsequent releases, shall contain no "Virus". "Virus" shall mean any computer code
intentionally designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetical
disruptions or distortions, the operation of the computer program, or any other associated software, firmware,
hardware or computer system.
(c) ExecuTime's liability for damages to the LICENSEE for any cause whatsoever, and regardless of
the form of action, whether in contract or in tort including negligence, shall be limited to the amount paid for the
Licensed Software. In no event will ExecuTime be liable for any damages caused by the LICENSEE's failure to
perform the LICENSEE's responsibilities, or for any lost profits or other consequential damages, even if
ExecuTime has been advised of the possibility of such damages.
8/01/02 2 of 4
(d) ExecuTime agrees to indemnify the LICENSEE against any loss and/or expenses, which may
arise as a result of an alleged copyright or patent infringement by the licensed software of the copyright, patent,
trademark, service mark, or other intellectual property of any third party.
(e) This warranty and liability for ExecutimeTM are void in the event that the Licensed Software is not
being used with the Designated Computer.
(f) ExecuTime and /or Certified Marketing and Technical Associates will provide complete support
services as outlined in the ExecuTime LICENSEE SUPPORT AGREEMENT TERMS AND CONDITIONS
AGREEMENT.
(g) EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. PROTECTION AND SECURITY OF LICENSED SOFTWARE
(a) LICENSEE agrees to use the Licensed Software only as provided herein and only during the term
of License granted by ExecuTime and further agrees not to provide or otherwise make available any Licensed
Software to any person other than LICENSEE's agents, consultants, contracted personnel or employees without
prior written consent from ExecuTime, and then only on the condition that they acknowledge ExecuTime's
statement that the Licensed Software or any part thereof is the property of ExecuTime and is proprietary to
ExecuTime. LICENSEE also acknowledges ExecuTime's statement that the Licensed Software is the exclusive
property of ExecuTime, constitutes trade secrets of ExecuTime, and agrees to protect the Licensed Software or
any part thereof from unauthorized disclosure by its agents, consultants, contracted personnel, employees,
LICENSEE, or successors. In the event the License granted hereunder is terminated, the above obligations of
LICENSEE with respect to protection and security shall not terminate but shall continue for a period of five (5)
years following such termination of License.
(b) LICENSEE agrees to reproduce and include ExecuTime's proprietary, copyright, and trade secret
notice on any copies, in whole or in part, in any form, including partial copies and modifications of Licensed
Software.
(c) The LICENSEE further agrees to take appropriate action, by instruction, Agreement or otherwise,
with any persons permitted access to Licensed Software so as to enable the LICENSEE to satisfy the
LICENSEE's obligation under this Agreement.
6. MODIFICATION OF LICENSED SOFTWARE
The parties agree that LICENSEE shall have the right to modify any Licensed Software supplied by
ExecuTime in machine readable form for LICENSEE's use under this Agreement and on the Designated
Computer, and may combine such modified Licensed Software with other programs or material from updated
work; provided however, upon discontinuance or termination of rights under this Agreement, the Licensed
Software supplied by ExecuTime shall be completely removed from the updated work and all such materials and
copies shall be returned to ExecuTime in accordance with the provisions of paragraph 8 of this Agreement.
ExecuTime shall be under no obligation, however, to make revisions or releases compatible with Licensed
Software which has custom modifications.
7. CANCELLATION OF LICENSE
(a) The License granted hereunder may be canceled by ExecuTime if LICENSEE defaults in payment
of any amount due under this Agreement for a period of fifteen (15) business days after notice of default, or may
be canceled at any time upon breach by the LICENSEE of any other covenant of this Agreement if such breach is
not corrected within thirty (30) business days after receipt of written notice thereof. LICENSEE's obligation to pay
charges which have accrued and damages arising from its breach of this Agreement shall survive cancellation
thereof. No delay or omission in the exercise of any power or remedy herein provided or otherwise available to the
other party shall alter or waive any rights or remedies.
(b) The parties agree that should either of them default in any of the covenants or agreements
contained herein, the prevailing party shall be entitled to all costs and expenses including a reasonable attorney's
fee which may arise or accrue from enforcing this Agreement in a court of law.
8/01/02 3 of 4
8. RETURN OF LICENSED SOFTWARE
Within thirty (30) days after the termination or cancellation for any reason of the License granted herein,
LICENSEE shall deliver to ExecuTime all copies thereof in whatever form, including partial copies which may have
been modified by LICENSEE, and execute a letter so certifying. ExecuTime, LICENSEE may be permitted for a
specified period thereafter to retain one copy of certain materials for record purposes.
9. CONFIDENTIALITY
(a) ExecuTime and LICENSEE agree that this Agreement and the relationship it represents, requires
the exchange of Confidential Information over the course of normal business. Confidential Information is
information not generally known by non -party personnel including, but not limited to, the financial, marketing and
other proprietary business information and LICENSEE's customer data.
(b) ExecuTime and LICENSEE further agree that, except as expressly authorized in writing in
advance by the other party, neither of them will copy or disclose Confidential Information to any third party except
its agents, consultants, contracted personnel or employees on a need to know basis and the agents, consultants,
contracted personnel or employees are under the same obligations of confidentiality as those imposed on the
parties hereunder with no further rights of disclosure of Confidential Information.
(c) Either party may use, copy, or disclose the Confidential Information to the extent required by any
subpoena or order of any government authority, or otherwise as required by law, provided that the disclosing party
shall give prompt notice to the other party of the circumstances.
10. UPGRADES
(a) If LICENSEE has chosen the Premier Annual Support/Maintenance option, software for software
version upgrades is free of charge. However, there is a charge for services on upgrades.
(b) If LICENSEE has chosen the Standard Annual SupporUMaintenance option, there is a charge for
both software and services.
11. GENERAL
(a) This Agreement can be modified only by a written agreement duly signed by persons authorized to
sign agreements on behalf of the LICENSEE and of ExecuTime and variance from the terms and conditions of this
Agreement in any LICENSEE purchase order or other written notification will be of no effect.
(b) Neither LICENSEE nor ExecuTime is responsible for failure to fulfill their respective obligations
under this Agreement due to causes beyond their control. No action, regardless of form, arising out of this
Agreement may be brought by either party more than two years after the cause of action has arisen, or in the area
of nonpayment, more than two years from the date of the last payment.
(c) The parties agree that should either of them default in any of the covenants or agreements
contained herein, the prevailing party shall be entitled to all costs and expenses including a reasonable attorney's
fee which may arise or accrue from enforcing this Support Agreement in a court of law.
(d) If any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with
any law of the state where made, the validity of the remaining portions or provisions shall not be affected, and the
rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be invalid.
8/01/02 4 of 4
I >� i � r r• • I ENTERPRISE TIME AND ATTENDANCE SOLUTIONS I
Resale Number Payment Terms Ship Via FOB Point
Due Upon Receipt Best Way Origin
The Seller agrees to sell, and the Purchaser agrees to purchase, the data processing equipment, software and services listed above (the "Equipment ")
subject to the additional terms and conditions above, below and on the reverse. A late fee of 1.5% per month will be charged on overdue amounts.
IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be signed by their respective duly authorized representatives.
Agreed tre d Accepted by: Agreed to and Accepted by:
By: . By: Kevin Malone
Title: ' d`6.(\.S Title: Contract Officer
Date: 1 c� a 1 l3 Date: 11/12/2013
1. Delivery and Risk of Loss: Included Items. Seller will de- install and prepare equipment for shipping, using suitable packing materials,
and will deliver the Equipment to the Seller's shipping dock, F.O.B. location shown on reverse. Purchaser shall bear the risk of loss or
damage from the time of such delivery, except when seller is transporting the Equipment, during which time seller will be responsible.
Purchaser shall promptly pay for all transportation, rigging, packaging, and drayage charges.
All form stands, logic or other manuals, diagnostics, tools, test decks, diagrams, cables, terminators and special RPQ devices permanently
attached or removable in one or more ends, which are required to attach and re- install the Equipment in a similar configuration or any
"Manufacturer's Approved Configuration ", shall be delivered to Purchaser at no additional charge.
2. Taxes. There have been or shall be added to the purchase price amounts equal to any sales, use, or similar taxes, however designated. Any
personal property taxes assessable on the Equipment after delivery to the carrier shall be borne by the Purchaser.
3. Title. Seller warrants that at the time of delivery to Purchaser, Seller will be the lawful owner of the Equipment, with full right, power and
authority to sell the Equipment to Purchaser, and that the Equipment will be free and clear of all liens, claims and encumbrances of any
kind. Good and marketable title to the Equipment shall vest in Purchaser upon payment in full of the Purchase Price and the parties'
execution of a mutually satisfactory Solution Design. Purchaser agrees it will not sell, transfer, lease or otherwise part with possession of
the Equipment until title has vested in Purchaser.
4. Maintenance; Warranties. Seller warrants that the Equipment will be eligible to be place under the Manufacturer's Maintenance
Agreement. Purchaser shall be responsible for placing the Equipment under such coverage and will promptly notify Seller, in writing, of
any dispute concerning the Equipment's eligibility therefore, to afford Seller a reasonable opportunity to assure such eligibility. (As to
Equipment involved in the IBM Service Exchange Center Program, Seller warrants the Equipment is in good working order and has not
been subject to neglect or misuse.)
THE ABOVE WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
THE WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR PURPOSE. PURCHASER
ACKNOWLEDGES THAT IT IS NOT RELYING ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS
SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH ARE NOT
CONTAINED IN THIS AGREEMENT.
5. Default; Remedies; Limitation of Liability. If Purchaser fails to accept delivery of the Equipment when available, fails to pay all or any
part of the Purchase Price when due, or otherwise fails to perform any of it's obligations hereunder, Seller may: (a) terminate this
Agreement upon written notice to Purchaser; (b) repossess the Equipment without notice or demand, and (c) pursue any other lawful
remedy.
If Seller fails to deliver the Equipment in a timely manner, or breaches any warranty or otherwise fails to perform any of it's obligations
hereunder, Purchaser may: (a) terminate the Agreement upon written notice to Seller, and (b) pursue any other lawful remedy.
SELLER SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE EQUIPMENT OR IT'S USE BY
1601 S Eucalyptus STE 210, Broken Arrow, OK 74012 1 www.executime.net 1 P: 918.551.7676 1 F: 413.235.6374
film I ENTERPRISE TIME AND ATTENDANCE SOLUTIONS I
PURCHASER, AND SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH SELLER'S FAILURE TO PERFORM IT'S OBLIGATIONS HEREUNDER.
IN NO EVENT SHALL EITHER PARTY'S LIABILITY TO THE OTHER, FOR ANY CAUSE OF ACTION WHATSOEVER
ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE FEE FOR THE EXECUTIME SOFTWARE
LICENSE STATED ABOVE.
6. Solution Design. Upon execution of this Purchase and Sale Agreement and Purchaser's payment of the initial installment described above,
the Seller and the Purchaser shall proceed to negotiate a mutually satisfactory Solution Design that will state the exact services to be
provided by Seller to Purchaser. The parties acknowledge that this Purchase and Sale Agreement, and the ExecuTime Time and
Attendance Software System License Agreement (the "License Agreement ") and the ExecuTime Software Support Agreement (the
"Support Agreement ") executed contemporaneously herewith, are contingent upon the parties' execution of a mutually satisfactory
Solution Design. In the event the parties are unable to reach agreement as to a Solution Design, either party may, upon notice to the other
party, terminate this Purchase and Sale Agreement, the License Agreement and the Support Agreement, without liability to the other party.
Upon such termination, Seller shall have the right to take possession of all Equipment and shall be obligated to return to Purchaser all
amounts previously paid by Purchaser under this Purchase and Sale Agreement, less Seller's out -of- pocket expenses and a reasonable fee
for services rendered by Seller prior to termination.
7. Entire Agreement. This Purchase and Sale Agreement, and the License Agreement and Support Agreement the terms of which are
deemed incorporated herein, constitute the complete and exclusive statement of the agreement between the parties which supersede all
proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of such
agreements.
8. Effective Date. This Agreement is subject to acceptance by ExecuTime Software at its offices in Broken Arrow, OK, and shall only
become effective on the date thereof.
Minimum ExecuTime Server Requirements
1601 S Eucalyptus STE 210, Broken Arrow, OK 74012 I www.executime.net I P: 918.551.7676 1 F: 413.235.6374
•
13\ 1 v 11 I i 1 r i2 • I ENTERPRISE TIME AND ATTENDANCE SOLUTIONS I
Hardware:
Processor: Intel Xeon quad core 3.0 GHz with 64bit support. (or equivalent)
RAM: 8 GB
Hard Disk: 2 Disk Drives with a minimum of 100GB free space on secondary drive. (Recommended configuration: 1 drive for
Operating System and 1 drive for application and database installation. After installation, it is recommended to maintain at least 20GB
of free space at all times.)
100/1000 Ethernet Adapter
OS:
Any of the following - (Must be 64 bit)
Microsoft Windows Server 2003 Standard, Enterprise, Datacenter (64 -bit)
Microsoft Windows Server 2008 Standard, Enterprise, Datacenter (64 -bit)
Java Environment:
JDK v1.6 minimum
Web Application Servers:
JBoss AS (Installed by ExecuTime)
Databases Environment:
Any of the following — Single Processor License
Microsoft SQL Server 2005, SP2 (64 bit recommended)
Microsoft SQL Server 2008 or 2008 R2 (64 bit recommended)
PC Requirements:
Internet Explorer 8.0 or higher
2 GB RAM
1601 S Eucalyptus STE 210. Broken Arrow, OK 74012 I www.executime.net I P: 918.551.7676 1 F: 413.235.6374
1»1,1 i 1 1 1 1 , I ENTERPRISE TIME AND ATTENDANCE SOLUTIONS
N-1/
Date: 11/12/2013
Purchase and Sale Agreement
Purchaser: Seller:
Riverside, MO ExecuTime Software.
Attn: Donna Rez 1601 S Eucalyptus STE 210
Broken Arrow, OK 74012
FAX: 413.235.6374
Qty. ModeUFeat./ Description Unit Price Amount
1 ExecuTimeTM Software License
Up to 150 employees $ 10,000.00 $ 10,000.00
1 Implementation Services and Training $ 6,500.00 $ 6,500.00
1. Design /Scope of Work
2. Implementation Services
3. Training Services
4. System Integration with Paycor
1 First Year Maintenance $ 2,500.00 $ 2,500.00
Total Selling Price: $ 19,000.00
Payment Terms
- Full payment of ExecuTime Software License, Hardware and 50% of Services is due at time of order and prior to
commencement of project.
- Remaining 50% of Services due upon completion of user training.
- Actual Tax & Shipping and reasonable and customary expenses will be added at time of invoicing.
Not Included
- Hardware — Server, PC's, etc.
- Conversion Services — converting data from other T/A system to ExecuTimeTM Software.
- Reasonable and customary travel- related expenses.
- Charges from third party software companies or providers.
- Wiring, cabling etc.
- Paycor Time Keeping Integration Module (If Applicable) — Please contact Paycor directly for ordering and pricing
information.
1601 S Eucalyptus STE 210, Broken Arrow, OK 74012 1 www.executime.net j P: 918.551.7676 I F: 413.235.6374
ExecuTime Software, LLC
1601 S Eucalyptus STE 210
Broken Arrow, OK 74012
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•
ExecuTimeTM SOFTWARE SUPPORT AGREEMENT COVER
This Support Agreement ( "Agreement "), by and between ExecuTime Software, LLC, a Oklahoma limited
liability company, hereinafter referred to as " ExecuTime," and the organization named below, hereinafter referred
to as "Licensee ":
City of Riverside
ORGANIZATION NAME
2950 N.W. Vivion Road
STREET ADDRESS
Riverside, MO 64150 (816)741 -3993
CITY/STATE/ZIP TELEPHONE NUMBER
This Support Agreement applies to the ExecuTimeTM Time and Attendance Software System.
The Support Fee for the Licensed Software is $ $2,500.00
The Support Term is from 01/01/2014 to 12/31/2014
(Commencement Date: Month of Installation) (Initial Term: 12 Months/Annually)
The computer with which the Licensed Software is to be used is known as the Designated Computer and is
identified as follows:
NIA Up to 150 N/A
Server Model Number of Employees Serial Number
The LICENSEE acknowledges that it has read this Agreement, the terms and conditions of which are set
forth on this page and in the ExecuTime Software, LLC Support Agreement Terms and Conditions
Document attached hereto, and understands it and agrees to be bound by Its terms and conditions.
Further, the LICENSEE agrees that it is the complete and exclusive statement of the agreement between
the parties which supersedes all proposals or prior agreements, oral or written, and all other
communications between the parties relating to the subject matter of this Agreement. Notwithstanding
the foregoing, this Agreement is part of a Purchase and Sale Agreement between LICENSEE and
ExecuTime executed contemporaneoulsy herewith and Is subject to its terms.
ExecuTime Software, LLC: LIC SW
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l Y1 By: = % �.
Kevin Malone ' /
Manager Name: � (4 O C`{ 4 • \ ` M
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Title: @, t \, f , 3s I kCC4 (�
Date: A- r\-- Y 1 Date: j 1 ) a 113
1/8/03 1 of 4
ExecuTime Software, LLC
LICENSEE SUPPORT AGREEMENT TERMS AND CONDITIONS
1. This Support Agreement will remain in force from the Commencement Date until the Support
Termination Date and will then be automatically extended for annual periods at the current fees. The
LICENSEE can terminate this Support Agreement at the end of any Support Period by returning the
invoice without payment. ( See paragraph 6 of this Support Agreement.) In addition, in the event the
parties are unable to reach agreement as to a Solution Design, either party may, upon notice to the other
party, terminate this Agreement without liability to the other party, as provided in the Purchase and Sale
Agreement between the parties.
2. ExecuTime will provide LICENSEE Licensed Software Support during ExecuTime's normal working
hours, Monday — Friday 7:OOam — 6:00 pm (CST) on a first -in, first -out basis, based on problem severity
ExecuTime will:
(a) Provide at ExecuTime's option and on ExecuTime's schedule, periodic error correction and
updates to the object code and /or user documentation of the product so as to bring installed
applications to a level equivalent with that of the current marketed version of the Licensed
Software.
(b) Clarify installation and operating instructions contained in the user documentation delivered with
the Licensed Software.
(c) Assist in the identification of solutions to operating problems being experienced by the
LICENSEE with the Licensed Software.
(d) Provide problem determination, investigation, and program error correction for verified program
errors in the Licensed Software and the Payroll Interface at no additional charge to LICENSEE.
(e) Provide data repairs for LICENSEE files and records for data problems CAUSED BY the
ExecuTime product at no additional charge to LICENSEE.
(f) Provide data repairs for LICENSEE files and records on a "best efforts" basis for data problems
NOT CAUSED BY the ExecuTime product at ExecuTime's normal hourly billing rate, currently
$175.00 per hour.
(g) If LICENSEE has chosen the Premier Annual Support/Maintenance option, ExecuTime shall
provide LICENSEE with Emergency support 24 hours per day, 7 days per week (excluding
holidays), provided the call is initiated by one of up to three (3) persons previously designated by
LICENSEE. "Emergency" shall be limited to an issue that renders the Licensed Software
unusuable (as determined by ExecuTime in its sole discretion). All other calls will be billed at
ExecuTime's normal hourly billing rate, with a minimum charge of one hour.
3. ExecuTime includes in the category "data problems NOT CAUSED BY the ExecuTime product," data
corruption or integrity problems caused by, but not limited to, the following:
(a) Equipment malfunction or failure.
(b) Failure by LICENSEE to follow procedures and /or instructions contained in the documentation
provided with the product or in supplementary documentation provided by ExecuTime.
(c) Failure by LICENSEE to follow accepted operating practices (for example, failing to routinely
prepare backup data files, powering off or interrupting equipment while programs are executing,
etc.).
4. ExecuTime will take due care in responding to each request for LICENSEE Support to assure that the
LICENSEE is making proper use of the Licensed Software and that the Licensed Software is operating
properly. ExecuTime will use commercially reasonable efforts to locate and correct any identified
Licensed Software program defects reported by the LICENSEE.
1/8/03 2 of 4
5. ExecuTime expressly excludes the following services from the Licensed Software Support to be
provided under this Support Agreement:
(a) System configuration and implementation.
(b) Operator training.
(c) On -site training and LICENSEE assistance visits.
(d) Training classes.
(e) Licensed software custom modifications.
(f) Support of any licensed software product other than the one indicated herein.
6. Payment in full of the appropriate LICENSEE Support Fee shown above must accompany this Support
Agreement and be received by ExecuTime prior to commencement of Licensed Software Support under
this Support Agreement. An invoice for the applicable LICENSEE Support Fee will be submitted by
ExecuTime to LICENSEE prior to the end of each annual renewal period. To cancel the annual renewal,
LICENSEE must return the invoice indicating intent to discontinue within (30) days of receipt.
7. Reinstatement of this Support Agreement after having not been in force for sixty (60) days or less will be
made with no reinstatement charge retroactive to the date that the Support Agreement was terminated.
8. ExecuTime's liability for damages to the LICENSEE for any cause whatsoever and regardless of the
form of actions, whether in contract or in tort including negligence, shall be limited to any actual charges
incurred for up to twelve (12) months' Support Fee for the Licensed Software indicated above. Such
charges shall be those in effect for the Licensed Software when the cause of action arose.
In no event will ExecuTime be liable for any damages caused by the LICENSEE's representatives or for
any lost revenues or other consequential damages, even if ExecuTime has been advised of the
possibility of such damages, or for any claim against the LICENSEE by any party, except as otherwise
agreed in the Agreement.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
9. Except as provided herein, neither this Support Agreement, the services granted hereunder nor any of
the Licensed Software materials or copies thereof may be sub - licensed, assigned or transferred by the
LICENSEE. Any attempt by LICENSEE to sub - license, assign or transfer any of the rights, duties or
obligations under this Support Agreement are void without the written consent of ExecuTime, which
consent will not be unreasonably withheld. Notwithstanding the foregoing, this Support Agreement, the
services granted hereunder and the Licensed Software materials or copies thereof may be assigned by
either party to any successor by reason of merger, reorganization, sale of all or substantially all of the
assets, change of control or operation of law.
11. The terms and conditions of this Agreement may be modified by ExecuTime effective on the date of
automatic renewal by providing the LICENSEE with one month's prior written notice. Any such
modification will apply unless the LICENSEE exercises the option to terminate this Agreement.
Otherwise, this Agreement can only be modified by a written agreement duly signed by a person
authorized to sign agreements on behalf of the LICENSEE and ExecuTime and variance from the terms
and conditions of the Agreement in any LICENSEE order or other modification will be of no effect.
12. The LICENSEE represents that it is the Licensee of the Licensed Software under this Support
Agreement via the Agreement effected directly with ExecuTime
13. ExecuTime's Licensed Software Support provided outside the scope of this Support Agreement will be
furnished at ExecuTime's applicable time and material billing rateS and terms then in effect.
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14. Neither LICENSEE nor ExecuTime are responsible for failure to fulfill its obligations under this
Agreement due to causes beyond either party's reasonable control.
15. No actions, regardless of form arising out of this Support Agreement may be brought by either party
more than two (2) years after the cause of actions have arisen, or in the area of nonpayment, more than
two (2) years from the date of the last payment.
16. If any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with any
law of the state where made, the validity of the remaining portions or provisions shall not be affected and
the rights and obligations of the parties shall be construed and enforced as if the Support Agreement did
not contain the particular part, term or provision that is held to be invalid.
17. The parties agree that should either of them default in any of the covenants or agreements contained
herein, the prevailing party shall be entitled to all costs and expenses including a reasonable attorney's
fee which may arise or accrue from enforcing this Support Agreement in a court of law.
18. ExecuTime and LICENSEE agree that this Agreement and the relationship it represents, requires the
exchange of Confidential Information over the course of normal business. Confidential Information is
information not generally known by non -party personnel including, but not limited to, the financial,
marketing and other proprietary business information and LICENSEE's customer data.
ExecuTime and LICENSEE further agree that, except as expressly authorized in writing in advance by
the other party, neither will copy or disclose Confidential Information to any third party except its agents,
consultants, contracted personnel or employees on a need to know basis and the agents, consultants,
contracted personnel or employees are under the same obligations of confidentiality as those imposed
on the parties hereunder with no further rights of disclosure of Confidential Information.
Either party may use, copy, or disclose the Confidential Information to the extent required by any
subpoena or order of any government authority, or otherwise as required by law, provided that the
disclosing party shall give prompt notice to the other party of the circumstances.
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