Contract - PerfectMIND Technology, Inc. - 11/12/2015 CITY OF ROUND ROCK
"SOFTWARE AS A SERVICE" &
PROFESSIONAL SERVICES AGREEMENT
WITH PERFECTMIND TECHNOLOGY INC.
This "Software as a Service" agreement (hereinafter referred to as the "Agreement") is
made on the 14 day of the month of October, 2015 (hereinafter referred to as the "Effective
Date") by and between PerfectMIND Technology Inc., a British Columbia corporation with
offices located at 110-980 West First Street, North Vancouver, British Columbia V7P 3N4
(hereinafter referred to as "PerfectMIND" or "Services Provider") and the City of Round Rock,
Texas, a home-rule municipality with offices located at 221 East Main Street, Round Rock,
Texas 78664 (hereinafter referred to as the"Client" or the "City").
WHEREAS, Client desires to license certain parks and recreation program management
software (hereinafter referred to as the"System"); and
WHEREAS, PerfectMIND is in the business of providing the type of software Client
intends to obtain; and
WHEREAS, PerfectMIND wishes to license to Client, and Client wishes to use and
license from PerfectMIND, the Platform (as defined herein) on the terms and conditions set out
in this Agreement; and
WHEREAS, Client, by signature on this Agreement, is awarding PerfectMIND
the contract for furnishing, delivering, installing, and implementing the specified
System;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and
promises set forth herein, which consideration is declared good and sufficient by both parties,
PerfectMIND and Client agree that PerfectMind shall provide certain products and services, and
Client shall pay the prices agreed therefor, in accordance with the requirements and conditions
set forth in this Agreement.
This Agreement consists of the following sections and exhibits, each of which is attached
hereto and incorporated by reference as though recited herein verbatim:
SECTION A: DEFINITIONS AND INTERPRETATION
SECTION B: LICENSE
SECTION C: PROFESSIONAL SERVICES
SECTION D: FEES AND PAYMENTS
SECTION E: USE OF THE PLATFORM
SECTION F: CONTENT,INTELLECTUAL PROPERTY AND PRIVACY
SECTION G: TERM AND TERMINATION
SECTION H: CONFIDENTIALITY
SECTION I: WARRANTIES,DISCLAIMERS,INDEMNITIES AND LIABILITY
SECTION J: GENERAL
Exhibits:
Exhibitl —Scope of Work
Exhibit 2—Platform Features and Functionalities
SECTION A: DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, unless the context otherwise requires, capitalized
terms will have the meaning assigned to them herein, including the following:
(a) "Account"has the meaning set out in Section E;
(b) "Account-holder" means an individual designated by Client to whom an
Account is issued;
(c) "Applicable Laws" means all applicable laws and regulations, including all
applicable local, provincial, state, national and foreign laws, treaties and regulations
as well as orders of courts of laws, regulations, by-laws or ordinances of applicable
governmental agencies;
(d) "Claims" means liabilities, actions, proceedings, claims, causes of action,
demands, debts, losses, damages, charges and costs, including reasonable legal costs,
any amount paid to settle any action or to satisfy a judgment and expenses of any kind
and character whatsoever incurred in connection therewith;
(e) "Confidential Information" has the meaning set out in Section H;
(f) "Content" means all materials and content, including designs, editorials, text,
graphics, audiovisual materials, multimedia elements, photographs, videos, music,
sound recordings, reports, documents, software, information, formulae, patterns, data
and any other work, and "Client Content" is Content entered, uploaded or inputted
into the Platform by or on behalf of Client;
(g) "Client Data" means information, materials, or data, including Client
Content, entered, uploaded or inputted into the Platform by or on behalf of Client;
(h) "Enhancement" means enhancements, developments, modifications, updates,
additions and improvements made to the Platform, other than New Features and
Functions;
(i) "Force Majeure" means circumstances beyond a party's reasonable control,
including without limitation, acts of God, acts of government, flood, fire,
earthquakes, civil unrest, acts of terror, strikes or other labour problems, or Internet
service provider failures or delays, or hosting service provider failures or delays;
0) "Intellectual Property Rights" means any and all (i) proprietary rights
provided under patent law, copyright law, trade-mark law, design patent or industrial
design law, semi-conductor chip or mask work law, or any other applicable statutory
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provision or otherwise arising at law or in equity, including, without limitation, trade
secret law, that may provide a right in works, software, source code, object code,
marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions,
or know-how, or the expression or use thereof, (ii) applications, registrations,
licenses, sublicenses, agreements, or any other evidence of a right in any of the
foregoing, and (iii) past, present, and future causes of action, rights of recovery, and
claims for damage, accounting for profits, royalties, or other relief relating, referring,
or pertaining to any of the foregoing;
(k) "New Features and Functions" means any update, revision, new version,
new module or upgrade of the Platform made available by PerfectMIND from time to
time (i) that adds new functions or features to the Platform and (ii) and for which
PerfectMIND charges a fee to its Clients in order to obtain same;
(1) "PerfectMIND Privacy Policy" means PerfectMIND's privacy policy made
available at http://www,perfectmind.com/academy/privacy as amended from time to
time;
(m) "PerfectMIND Technology" means (i) any concepts, inventions, systems,
processes, techniques, methodologies, know-how, data, tools, templates, technology
(including software in executable code and source code), documentation or any other
information, data or materials, and any expressions of the foregoing, developed by,
owned by, or licensed to, PerfectMIND; and (ii)the Work Product;
(n) "Permitted Purpose" means providing services to the City of Round Rock,
Texas, as set forth herein, including client relationship management, facility
bookings, membership sales,point of sale transaction processing and scheduling;
(o) "Platform" means the software and supporting hardware platform known as
"PerfectMIND" that is owned and operated by PerfectMIND, and that will be made
available to Client as a service under this Agreement via a designated website or
websites as may be designated by PerfectMIND, from time to time, together with the
related documentation, Content (other than Client Content and Client Data) and end
user materials delivered therewith;
(p) "Professional Services" has the meaning set out in Section C;
(q) "Term"has the meaning set out in Section G; and
(r) "Work Product" means all improvements, enhancements and derivatives
thereto developed by PerfectMIND for the purposes of providing the Professional
Services under this Agreement or otherwise and any and all other work products
developed by PerfectMIND for the purposes of providing the Professional Services
under this Agreement.
1.2 Interpretation. In this Agreement, unless expressly stated otherwise or the context
otherwise requires, (a) headings and captions are for convenience only and will not be deemed to
explain, limit or modify the provisions hereof, (b) the word "including", when following a
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general statement or term, is not to be construed as limiting the general statement or term
(whether or not used in connection with phrases such as "without limitation" or "but not limited
to") and the word "or", when connecting two or more matters, will not imply an exclusive
relationship between the matters, (c) a reference to a "person' or "entity" means an individual,
corporation, body corporate, firm, limited liability company, partnership, syndicate, joint
venture, society, association, trust or unincorporated organization or governmental authority or
trustee, executor, administrator or other legal representative, including any successor to that
person, (d) a word importing the masculine gender includes the feminine and neuter, a word in
the singular includes the plural, a word importing a corporate entity includes an individual, and
vice versa, (e) words, phrases and acronyms not otherwise defined herein that have a meaning
commonly understood and accepted by persons familiar with the Internet and computing services
professionals will be interpreted and understood to have that meaning herein, and (f) in the event
of any conflict or inconsistency between the terms of this Agreement and the terms of the
Exhibits hereto, the terms of the Exhibits hereto will prevail to the extent necessary to resolve
such conflict or inconsistency.
SECTION B: LICENSE
2.1 License. PerfectMIND grants to Client a non-exclusive, non-transferable, right and
limited license, only during the Term, to access and use the Platform for the Permitted Purposes
only. All rights not expressly granted to Client are reserved by PerfectMlND and, if applicable,
its licensors.
2.2 Complete Software; Enhancements. Client agrees that its entry into this Agreement is
not contingent on the delivery of any future functionality or features by PerfectMIND.
PerfectMIND may, from time to time and its sole discretion, update the Platform (including the
underlying server software or hardware) or otherwise offer Enhancements, which Enhancements
will form part of the Platform being licensed and provided hereunder without further payment by
Client. PerfectMIND will use commercially reasonable efforts to (a) ensure that such
Enhancements are compatible with and will not adversely affect or reduce the functionality,
performance, availability and accessibility of the Platform, and (b) to the extent that such
Enhancements do so adversely affect the Platform and Client notifies PerfectMIND of same,
restore or reinstate the Platform or parts of it causing the adverse effects to its or their status prior
to the Enhancement, as soon as may be reasonable and practicable in the circumstances.
Notwithstanding any Enhancements or other changes to the Platform, PerfectMIND will
maintain the functionality of the Platform so it is always materially equal to better than the
functionality of the Platform as of the date that Client first commences using the Platform.
2.3 New Features and Functions. PerfectMIND may, from time to time and its sole
discretion, develop and offer New Features and Functions that will not form part of the Platform
licensed hereunder and may be provided and licensed separately to Client for an additional fee.
For clarity, in no event will PerfectMIND be obligated to provide any New Features and
Functions free of charge, nor will Client be obligated to purchase any New Features and
Functions. PerfectMIND will use commercially reasonable efforts to (a) ensure that New
Features and Functions are compatible with and will not adversely affect or reduce the
functionality, performance, availability and accessibility of the Platform, and (b) to the extent
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that such New Features and Functions do so adversely affect the Platform and Client notifies
PerfectMIND of same, restore or reinstate the Platform or parts of it causing the adverse effects
to its or their status prior to the New Features and Functions, as soon as may be reasonable and
practicable in the circumstances. Notwithstanding any New Features and Functions or other
changes to the Platform, PerfectMIND will maintain the functionality of the Platform so it is
always materially equal to better than the functionality of the Platform as of the date that Client
first commences using the Platform.
SECTION C: PROFESSIONAL SERVICES
3.1 Professional Services. PerfectMind agrees to provide the Professional and
Implementation Services as set forth in PerfectMind's Scope of Services attached as Exhibit "1"
and incorporated herein as a part of the Agreement.
3.2 Supplemental Agreement. Professional Services and other terms of this Agreement
may be modified by written Supplemental Agreement hereto, duly authorized by City Council or
by the City Manager, if the Client determines that there has been a significant change in (1) the
scope, complexity, or character of the services to be performed; or (2) the duration of the work.
Any such Supplemental Agreement must be executed by both parties within the period specified
as the term of this Agreement. Consultant shall not perform any work or incur any additional
costs prior to execution, by both parties, of each Supplemental Agreement.
3.3 Client's Responsibilities. The work functions and tasks relating to the Professional
Services for which Client or a third party shall be responsible are described in the Agreement and
Exhibits "1" and "2." Client agrees to perform and cause the third party to perform such work
functions or tasks in a timely fashion. Client agrees to provide or make available and cause any
third party identified by the Client as being responsible for any function or task in any way
related to the Professional Services to provide or make available all information reasonably
requested by PerfectMIND to perform the Professional Services. PerfectMIND will not be liable
for loss or damage arising from reliance on any such information.
3.4 Project Teams. Each party will be solely responsible for staffing its project team for the
performance of the Professional Services by PerfectMIND and relating work functions and tasks
by Client as described in the Proposal. Each member of a project team will possess skills and
knowledge appropriate to the work functions to be performed by that team member. Either party
may, by way of replacement or addition, make changes to the personnel assigned to its project
team, provided that each replacement team member shall possess skills and knowledge at least
equivalent to the project-related skills and knowledge of the team member being replaced. Each
party shall appoint a project manager in respect of its project team. The project managers shall
be available for weekly meetings to review the progress of the Professional Services.
3.5 Use of Client's Facilities. For Professional Services to be performed at the Client's
premises, Client will provide all work space, facilities and support that are reasonably requested
by PerfectMIND to perform such Professional Services, including without limitation, secretarial
support, telephone, and computer facilities.
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3.6 No Liability for Others' Failure to Perform. Client agrees and acknowledges that
PerfectMIND's performance of the Professional Services will be conditional upon, and subject
to, Client's performance of its obligations hereunder and the performance by any third party
identified by the Client of its functions and task to the extent that such functions and task relate
to the Professional Services, and that PerfectMIND will not be liable or responsible, in any
manner or to any extent, for any failure of PerfectMIND to perform all, or any part of, the
Professional Services to the extent that any such failure is caused by a failure of Client to
perform its obligations or the third party to perform its functions and tasks.
3.7 Third Party Hardware/Software. Client will be solely responsible for the evaluation,
selection, installation, implementation, compatibility, use and performance of and results
obtained from any hardware, systems software, utility software, security software,
telecommunication equipment or software, and applications software used in connection with the
Professional Services, unless (and only to the extent) otherwise expressly agreed in this
Agreement. Except as expressly provided in this Agreement, Client and/or the third party
vendors of the software packages selected for use by Client will be responsible for the
installation, acceptance and performance of the selected software packages.
3.8 Third Party Products. Where the Professional Services to be provided by PerfectMIND
involve the acquisition by Client of products of third parties, PerfectMIND will not be
responsible for delays in the delivery of such products by third parties or for such product's
faulty quality, defective performance, or failure to perform in accordance with published
specifications or accepted standards. PerfectMIND will transfer to Client any transferable
warranties provided to PerfectMIND by third parties. PerfectMIND makes no independent
representations or warranties with respect to products provided by third parties. Any third party
warranties are the exclusive remedies of Client with respect to such products.
3.9 Use of Subcontractors. Client acknowledges that PerfectMIND may engage agents and
subcontractors to perform any of the Professional Services described in the Proposal;provided,
however, that any such agent or subcontractor shall be subject to the reasonable approval of
Client. PerfectMIND shall be responsible for the fulfilment of its obligations hereunder,
notwithstanding the performance of any of its obligations by its agents and subcontractors.
3.10 No Recruitment. Client agrees that during the term of this Agreement, and for a period
of one (1) year thereafter, it will not, without the prior written consent of PerfectMIND, hire,
retain or engage, or make an offer in respect of same to, any employee, independent contractor or
consultant of PerfectMIND. PerfectMIND agrees that during the term of this Agreement, and for
a period of one (1) year thereafter, it will not, without the prior written consent of Client, hire,
retain or engage, or make an offer in respect of same to, any employee, independent contractor or
consultant of Client.
SECTION D: FEES AND PAYMENTS
4.1 Fees.
(a) Platform Use Fees: Client will pay all Platform Use Fees and charges in
connection with the use of the Platform in accordance with Exhibit "1" in the amount of
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Forty-Two Thousand Five Hundred Seventy-Two Dollars and No/100 ($42,572.00)
each year for the Term of this Agreement.
(b) Website Design Fees: Client will pay a one-time Website Design Fee in
accordance with Exhibit "1" in the amount of Twenty-Five Thousand Dollars and
no/100 ($25,000.00).
4.2 Platform Use Billing. The fees payable by Client for use of the Platform in each twelve
(12) month period is payable in advance at the beginning of such period. PerfectMIND will
invoice Client for such fees at the beginning of each 12 month period, and Client will pay each
invoice within thirty (30) days after the date of the invoice; provided that the entire fee for the
first twelve-month period in the Term is payable and due upon execution of this Agreement in
accordance with Exhibit "1." All amounts due by Client hereunder will be paid, unless
otherwise expressly set out herein, without any deduction, adjustment or set-off whatsoever.
4.3 Taxes. Fees for use of the Platform do not include any taxes, and Client agrees to pay all
applicable sales, use, value-added and other taxes or similar nature based on or due as a result of
any amounts paid to PerfectMIND under this Agreement.
4.4 Late Payments. In accordance with Chapter 2251, V.T.C.A., Texas Government Code,
any payment to be made by Client to PerfectMIND will be made within thirty (30) days of the
date Client gives final approval to PerfectMIND for goods under this Agreement, performance of
the services under this Agreement. PerfectMIND may charge interest on an overdue payment at
the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in
accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt
Payment Policy does not apply to payments made by Client in the event:
(a) There is a bona fide dispute between Client and PerfectMIND, a contractor, or
supplier about the goods delivered or the service performed that cause the
payment to be late; or
(b) The invoices are not mailed to Client in accordance with the stages and
payments set forth in Exhibit"1" incorporated herein.
4.5 Professional Services Fees. The Client agrees to pay a one-time Implementation Cost in
the amount of Seventy Thousand One Hundred Dollars and no/100 ($70,100.00) as set forth
in Exhibit"1."
4.6 Professional Fee Invoices.
(a) Invoices: To receive payment, PerfectMIND shall prepare and submit invoices to
Client for services rendered pursuant to the schedule set forth in Exhibit "1." Each invoice for
professional services shall detail the service performed. All payments to PerfectMlND shall be
made immediately after final approval of the services by the Client.
Should additional backup material be requested by Client to support the amount invoiced,
PerfectMIND shall comply promptly. If the backup material is not responsive to the Client's
request or the Client needs further material to confirm the payment amount(s) in the invoice,
PerfectMIND agrees to make all relevant records and books relating to the invoice available to
Client for inspecting and auditing.
If Client has any dispute with work performed, then then Client shall notify PerfectMIND
prior to final acceptance of the work. Once final acceptance of the work has been given by
Client, Client may not request that work be re-performed or request the Client provide
appropriate credit, unless the amount invoiced to Client is not consistent with the terms of this
Agreement or the attached Exhibits.
(b) Payment of Invoices: Client reserves the right to correct any
calculation/numerical error that may be discovered in any invoice that may have been paid to
PerfectMIND and to adjust same to meet the requirements of this Agreement. Following receipt
of an invoice, Client shall endeavor to pay PerfectMIND promptly, but no later than the time
period required under the Texas Prompt Payment Act described in Section 4.4 herein. Under no
circumstances shall Client be entitled to receive interest on payments which are late because of a
good faith dispute between PerfectMIND and Client or because of amounts which Client has a
right to withhold under this Agreement or state law. Client shall be responsible for any sales,
gross receipts or similar taxes applicable to the services as set forth in Section 4.7 herein, but not
for taxes based upon PerfectMind's net income.
4.7 Taxes and Duties Relating to Professional Fees. All amounts payable in respect of the
Professional Services rendered by PerfectMIND to Client under this Agreement will be exclusive
of all shipping charges, insurance charges, customs duties, sales taxes, value-added taxes, and
any other like charges or taxes. Client will be responsible for paying all such charges and taxes
in connection with the provision of the Professional Services under this Agreement.
4.8 Currency. All prices in this Agreement are in United States dollars.
SECTION E: USE OF PLATFORM
5.1 PerfectMIND Responsibilities. PerfectMIND will provide the Platform in accordance
with the services set out in Exhibits "1" and "2." PerfectMIND will provide to Client, at no
additional charge, the support for the Platform described in Exhibits "1" and "2." PerfectMIND
will comply with all Applicable Laws in the performance of this Agreement. PerfectMIND has
used its best commercially reasonable efforts through quality assurance procedures to ensure that
there are no Computer Viruses or undocumented features in the Platform, and the Platform does
not contain any embedded device or code(e.g.,time bomb) that is intended to obstruct or prevent
use of the Platform. Notwithstanding any rights granted under this Agreement or at law,
PerfectMIND hereby waives under any and all circumstances any right it may have or may
hereafter have to exercise Electronic Self-Help. PerfectMIND agrees that Client may pursue all
remedies provided under law in the event of a breach or threatened breach of this Section,
including injunctive or other equitable relief. The term "Computer Virus" means any malicious
code, program, or other internal component (e.g., computer virus, computer worm, computer
time bomb, or similar component), which could damage, destroy, alter or disrupt any computer
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program, firmware, or hardware or which could, in any manner, reveal, damage, destroy, alter or
disrupt any data or other information accessed through or processed by such software in any
manner. The term "Electronic Self-Help" means any use of electronic means to exercise
PerfectMIND's license termination rights, if allowable pursuant to this Agreement, upon breach
or cancellation, termination or expiration of this Agreement. PerfectMIND warrants that the
Platform does not and shall not contain any lock, counter, CPU reference, virus, worm or other
device capable of halting operations or erasing or altering data or programs. PerfectMIND
further warrants that neither PerfectMIND, nor it agents, employees or subcontractors shall insert
any such device after execution of this Agreement. For the avoidance of doubt, termination of
Client's access to the Platform in accordance with this Agreement will not be considered
Electronic Self Help. During the term of this Agreement, PerfectMIND shall carry errors and
omissions insurance coverage in the amount of $3,000,000 or more, and such other insurance
relating to the Platform and its business operations as is reasonable and customary in this
industry.
5.2 Training. PerfectMIND will provide training to Client's staff during the implementation
period as provided in Exhibit "1." This training shall be in form of remote/online training.
Client's staff will also have access to all on-line training materials made available by
PerfectMIND to its clients including live and pre-recorded webinars.
5.3 Client Responsibilities. Client will (a) be responsible for Account-holders' compliance
with all of the terms and conditions of this Agreement; (b) be solely responsible for the accuracy,
quality, integrity and legality of Client Data, including Client Content, (c) to the extent not
encompassed by PerfectMIND's responsibilities with respect to the Platform, be responsible for
(i) the means by which Client Data is acquired and used, including compliance with all personal
information privacy laws and regulations and (ii) ensuring that no third party Intellectual
Property Rights are infringed; (d) use commercially reasonable efforts to prevent unauthorized
access to or use of the Platform, and notify PerfectMIND promptly of any such unauthorized
access or use; and (e) use the Platform only for Permitted Uses and in accordance with the
documentation therefor and all Applicable Laws.
5.4 Prohibited Conduct. Client will not:
(a) make the Platform available to anyone, or permit anyone to access the Platform,
other than Account-holders;
(b) license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent,
lease or time-share the rights granted to Client under this Agreement, or copy or
otherwise commercially exploit the Platform or its components in any way except in
accordance with the rights granted hereunder;
(c) use the Platform in any manner or for any purpose (i)that violates this Agreement,
(ii) that contravenes, facilitates the violation of, or violates any Applicable Laws; (iii)
that extracts, gathers, collects, or stores personal information about individuals except in
compliance with all applicable personal information privacy laws or that involves data
mining, robots or similar data gathering or extraction methods on individual's personal
information without their express consent, or (iv) that interferes with or disrupts the
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integrity or performance of the Platform, PerfectMIND's systems or networks or third-
party data of Content contained therein;
(d) attempt to gain unauthorized access to the Platform or its related systems or
networks;
(e) post, upload, reproduce, distribute or otherwise transmit on the Platform (i)
pyramid schemes, (ii) any material that contains a virus, cancelbot, Trojan horse, worm
or other harmful, disruptive or surreptitious component, (iii) defamatory, infringing,
indecent or unlawful software, materials or information, or (iv) inappropriate, profane,
or obscene software, materials or information without suitable or lawfully-required
access controls;
(f) alter, modify, reverse engineer, decompile, or disassemble, translate, extract data
structures from or otherwise attempt to extract the source code from the Platform or any
part thereof;
(g) create derivate works based on the Platform or works containing a substantial part
of the Platform;
(h) copy, frame or mirror any part or content of the Platform;
(i) disable or circumvent any access control or related process or procedure
established with respect to the Platform;
0) remove any copyright or other proprietary or Intellectual Property Rights notices
or labels on or in the Platform or any part, copy or report generated therefrom or
thereof;
(k) use the Platform to scan or probe another computer system, obstruct or bypass
computer identification procedures or engage in unauthorized computer or network
trespass without the express permission of the owners of such computer systems;
(1) access the Platform in order to (i) build a competitive product or service, or (ii)
copy any ideas, features, functions or graphics of the Platform;
(m) forge headers or otherwise manipulate any protocols or identifiers used in any
system or protocol in such a manner to disguise the origin of any Content transmitted
using the Platform;
(n) impersonate or falsely represent an association with any person, including a
PerfectMIND representative, without the prior express, written permission of such
person; or
(n) permit any of the foregoing to be done by any person, including Client's
employees, contractors, agents, or representatives, including Account-holders.
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5.5 Commercial Electronic Messages. All email messages that Client sends using the
Platform will comply with all applicable anti-spam laws and regulations, including those relating
to commercial electronic messages. When using the Platform, Client will represent itself and/or
its organization accurately and will not impersonate any other person, whether actual or
fictitious. Client specifically agrees that (to the extent that the Platform permits it, and it is within
Client's control to do so) for all messages that Client sends using the Platform (i) the "from" line
of the message will accurately and in a non-deceptive manner identify Client's organization; (ii)
the "subject" line of the message will not contain any deceptive or misleading content regarding
the overall subject matter of the message, and (iii) the message will include the contact
information of the Account-holder who sends the message or another individual within Client's
organization who may be readily contacted by the recipient, and such contact information will
remain valid for at least sixty (60) days after the message is sent. Client will ensure that every
message sent using the Platform will contain an "unsubscribe" link that allows recipient to
remove himself/herself/itself from Client contact list and specify an electronic address on the
World Wide Web that can be accessed by the recipient of the message for the purpose of
unsubscribing. Client will promptly, and in any event no later than ten (10) days after the receipt
of the request, give effect to any unsubscription requests it receives. Client may not charge a fee,
require the recipient to provide any personally identifying information beyond an email address,
or make the recipient take any step other than sending a reply email or visiting a single page on
an Internet website as a condition for giving effect to an unsubscribe request. Client
acknowledges that Client will be responsible for maintaining and giving effect to the list of
unsubscribe requests following termination of this Agreement.
5.6 Account Use. PerfectMIND will issue Accounts, or permit Client to issue Accounts, to
individuals selected by Client as Account-holders. Only Account-holders may access or use the
Platform and each Account-holder's access to the Platform requires valid login credentials,
including at least user identification and secure passwords (each an "Account"). The rights of an
Account-holder may not be used by more than one individual, unless the Account of the
Account-holder is reassigned in its entirety to another Account-holder, in which case the prior
holder of the Account shall no longer have any right to access or use the Platform. Client
acknowledges and agrees that Client:
(a) is fully responsible for Accounts assigned by or at the request of Client and the
acts and omissions of each Account-holder, including the creation of Account credentials
by any person, the maintenance, confidentiality and security of all passwords related to
Accounts, and any and all activities that occur under Accounts (including persons who
gain access to such Accounts, whether with or without permission);
(b) will notify PerfectMIND as soon as practicable after obtaining or receiving any
knowledge of (i) any unauthorized use of an Account or any password related to an
Account, or (ii) any other breach of security with respect to an Account, provided that
such notification will not negate Client's liability for any unauthorized use of an Account
or password until such time as PerfectMIND can be reasonably expected to take
corrective measures; and
(c) will provide true, current, accurate and complete information as prompted by the
Account-creation process or as otherwise requested by PerfectMIND from time to time
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and to promptly update such information when any changes occur so as to keep such
information held by PerfectMIND true, current, complete and accurate.
5.7 Usage Limitations. The following provisions apply with respect to the Platform:
(a) General Practices and Limits. Client acknowledges and agrees that
PerfectMIND may establish from time to time general practices and limits concerning the
use of the Platform, including: the maximum size of any Client Data, including Client
Content, that may be stored on PerfectMIND servers (the "Storage Limit"); the
maximum amount, speed and type of Client Data, including Client Content, that may be
sent from or received using the Platform (the "Usage Limit"). Such general practices
and limits may be posted on PerfectMIND's website or otherwise made available through
the Platform. Client agrees that Client's usage may not exceed such limits, and that it is
Client's responsibility to monitor Account usage of the Platform. PerfectMIND
covenants that the Storage Limit and the Usage Limit set for Client will not be less than
the following:
Minimum Storage Limit
• Storage: 80GB ($160 per month for every additional 80GB blocks of
storage)
Usage Limit
• Users: 500 users ($25 per month for each additional user)
• Email: 200,000 emails per month ($200 per month for additional 50,000
emails)
(b) Internet-based Software. The Platform depends on the Internet, including
networks, cabling, equipment and facilities that are not in PerfectMIND's control;
accordingly (i) any representation made by PerfectMIND regarding access performance,
speeds, reliability, availability, use or consistency of the Platform, to the extent that they
are dependent on the underlying Internet services, are on a "commercially reasonable
efforts" basis, (ii) PerfectMIND cannot guarantee any minimum level regarding actual
user performance, speed, reliability, availability, use or consistency based on factors
depending on the Internet, and (iii) content, data, messages, information or materials sent
over the Internet may not be completely private, and anonymity is not guaranteed.
SECTION F: CONTENT, INTELLECTUAL PROPERTY AND PRIVACY
6.1 Reservation of Rights. All right, title and interest, including all Intellectual Property
Rights, in and to the Platform and PerfectMIND Technology is and will at all times be fully
vested in PerfectMIND or its licensors, as the case may be.
6.2 Third-Party Content. Content accessed or available through the Platform may be
owned by third-parties other than PerfectMIND or Client (collectively, "Third Party Content")
and may be protected by applicable Intellectual Property Rights. During use of the Platform,
12
Client may enter into correspondence with, purchase goods, hardware or services from, or
participate in promotions of advertisers or sponsors showing their goods or services through the
Platform. Any such activities, and any terms, conditions, warranties or representations
associated with such activities are solely between the applicable third party and Client.
PerfectMIND and its licensors shall have no liability, obligation or responsibility to Client for
any such correspondence, purchases or promotions. Client acknowledges and agrees that Client
shall be solely responsible for obtaining necessary licenses, consent and permits from third-party
providers with respect to any Third Party Content or ancillary software, hardware, or services
that Client may use in connection with its use of the Platform.
6.3 Feedback. From time to time during the term of this Agreement, Client and Account-
holders may provide PerfectMIND with comments, suggestions, ideas and impressions of the
Platform ("Feedback"). Client acknowledges and agrees that, by disclosing such Feedback to
PerfectMIND, the provider thereof will be deemed to have granted to PerfectMIND a royalty-
free, worldwide, transferable, sub-licensable, non-exclusive, irrevocable and perpetual license to
use, modify, adapt, improve or incorporate such Feedback into the Platform. Client
acknowledges and agrees that the right to use the Platform is good and sufficient consideration
for any contributions, through the Feedback or otherwise, to the design, improvement, or
functionality of the Platform and the transfer to PerfectMIND thereof.
6.4 Client Data. PerfectMIND does not claim ownership of, and assumes no liability or
responsibility with respect to, any Client Data, including Client Content. As between
PerfectMIND and Client, all right, title and interest (including Intellectual Property Rights) in
and to Client Data will at all times be fully vested in Client, except that, by posting, uploading,
inputting, providing, submitting, entering or otherwise transmitting Client Data to PerfectMIND
or any third party using the Platform, Client agrees as follows:
(a) Client will have thereby granted PerfectMIND a royalty-free, non-exclusive,
worldwide, fully paid-up limited license to use, copy, distribute, transmit, display, edit,
delete, publish and translate such Client Data to the extent reasonably required by
PerfectMIND in connection with the functionality of the Platform and the performance
of this Agreement as well as to ensure adherence to or enforce the terms of this
Agreement;
(b) Client, and not PerfectMIND, will have sole responsibility for the accuracy,
quality, integrity, legality, reliability, appropriateness and Intellectual Property Rights of
all Client Data, and PerfectMIND will not be responsible or liable for the deletion,
correction, destruction, damage, loss or failure to store any Client Data; and
(c) Client will have thereby confirmed, represented and warranted to PerfectMIND
that Client has all rights, titles and interests (including all Intellectual Property Rights as
well as the power and authority necessary), to grant the license to such Client Data set
above in subsection 6.4(a).
6.5 Privacy. PerfectMIND acknowledges and agrees that Client Data may contain sensitive
information, and, in connection therewith, (a) PerfectMIND will comply with all Applicable
Laws relating to personal information privacy, including British Columbia Personal Information
13
Privacy Act and will adhere to the PerfectMIND Privacy Policy, which forms an integral part
hereof and is incorporated herein by reference; (b) PerfectMIND will use industry-standard
management practices, technologies and security to protect the integrity, safety and security of
Client Data in both physical and electronic form; (c) Client acknowledges and agrees that its use
of the Platform will utilize, in whole or in part, the public Internet and third party networks to
transmit communications, which transmissions may be intercepted by other parties or stored,
cached, routed, transmitted or received in jurisdictions outside of the jurisdiction of Client, (d)
PerfectMIND will not use Client Data for any purpose other than to provide the functionality of
the Platform to Client and its users, to ensure adherence to or enforce the terms of this
Agreement, or (only in aggregate form) for site metrics; (e) PerfectMIND reserves the right to
modify the PerfectMIND Privacy Policy and its security policies in its reasonable discretion
from time to time, subject to any Applicable Laws.
6.6 Use of the Other Party's Name. Each party may use the other party's name in its news
releases, marketing and promotional materials and the like provided that such will comply with
any standards set by the other party from time to time. Each party will cease to use the other
party's name upon any expiration or termination of this Agreement.
SECTION G: TERM AND TERMINATION
7.1 Term. This Agreement shall be effective on the date this Agreement has been signed by
each party hereto, and shall remain in full force and effect unless and until it expires by operation
of the term indicated herein, or is terminated or extended as provided herein. The term of this
Agreement shall be for five (5) years commencing on the effective date hereof (the "Term").
After the initial term, the Agreement shall automatically renew for two (2) successive terms of
twelve (12) months each, unless a party provides written notice to the other party of the first
party's intention not to renew, at least thirty (30) days before the expiration of the then-current
term.
7.2 Renewal Terms. The fees payable by Client during any such renewal term will be the
same as that during the prior term unless PerfectMIND has given Client written notice of a
pricing change at least ninety (90) days' before the end of such prior term, in which case the
pricing change will be effective upon renewal and thereafter.
7.3 Termination. Either party may terminate this Agreement for cause, immediately upon
written notice to the other party, if:
(a) the other party is in default of any of its material obligations under this Agreement
and such default is not remedied within thirty (30) days of the date of receipt of written
notice thereof, provided that cure period with respect to default in payment obligations is
ten (10) days; or
(b) the other party ceases to conduct business in the normal course; the other party
becomes insolvent or bankrupt; the other party makes any assignment for the benefit of
creditors; proceedings are instituted by or against the other party seeking relief,
reorganisation or rearrangement under any laws relating to insolvency; a receiver,
14
liquidator or trustee is appointed in respect of any property or assets of the other party; or
an order is made for the liquidation, dissolution or winding up of the other party;
In the event of a claim or dispute arising under this Agreement that is not described in (a)or (b)
above, the parties must attempt to resolve the dispute or claim using the following procedure
prior to terminating the Agreement: The party contemplating termination shall make a written
request for a telephone conference to be held between a representative of each party within five
(5) calendar days of the request. The purpose of this telephone conference and any subsequent
telephone conferences shall be to negotiate in good faith the matter(s) constituting the dispute. If
within ten (10) calendar days of the initial telephone conference, the parties have not reached a
mutually satisfactory resolution, then the parties shall attempt to resolve the dispute or claim
with the assistance of a mutually selected mediator. If the parties cannot agree on a mediator,
Client and PerfectMIND shall each select a mediator and the two (2) mediators shall agree upon
a third mediator. A mediator shall be chosen within fifteen (15) days or within such time frame
as agreed upon by both parties. Any mediation proceeding shall occur in Round Rock, Texas.
Any costs and fees, other than attorney fees, associated with the mediation shall be shared
equally by the parties. Failing resolution through mediation, either party may terminate the
Agreement by written notice to the other party. The parties may agree to waive the above
procedure and terminate the Agreement by mutual agreement of the parties. The parties may
also terminate this Agreement by mutual agreement to terminate evidence in writing by the
parties.
7.4 Payment on Termination. If this Agreement is terminated by Client due to
PerfectMlND's default, then PerfectMIND shall refund to Client an amount equal to the fees
actually paid by Client for the year during which the termination occurs prorated based on the
post-termination portion of the year. Otherwise, any termination of the Agreement will not result
in a refund of any paid fees by the Client. Upon the termination of this Agreement that is not
due to PerfectcMIND's default, without prejudice to any other rights PerfectMIND may have,
Client will (a) remit all fees owed for the Professional Services and Work Products accepted by
Client prior to the date of such termination; (b) remit all fees payable for work-in-progress, on a
time and materials basis, at the rates and times set forth herein and in the attached Exhibit "1";
and (c) remit all such other costs of PerfectMlND, demonstrated to the reasonable satisfaction of
the Client, directly related to the permanent or temporary winding down of the Professional
Services, work and deliveries which are being terminated.
7.5 Return of Client Data. Upon request by Client made within thirty (30) days after the
effective date of expiration of the initial term or any renewal period of this Agreement, or upon
termination by the City for cause, PerfectMIND will make available to Client for download a file
of the relevant Client Data in a commercially-reasonable standard (such as comma separated
value (.csv) or extendible markup language (.xml)) format along with attachments in their native
format as stored by PerfectMIND. After such thirty (30)-day period, PerfectMIND will have no
obligation to maintain or provide any such Client Data and will thereafter, unless legally
prohibited, delete all such Client Data in PerfectMIND systems or otherwise in PerfectMIND's
possession or under PerfectMIND's control. Within fifteen (15) days of any termination f of this
Agreement for any other reason than described above, Client may request return of Client Data,
in which case Client will pay to PerfectMIND any fees outstanding prior to the termination of
this Agreement plus any reasonable fee that PerfectMIND requests, based on the time required to
15
accommodate Client's request regarding return of Client Data, and upon receipt of such
payments, PerfectMIND will make available Client Data to Client for download as set out above.
If Client does not make a request within the fifteen (15) day time limit or fails to make payments
within ten (10) days after receiving PerfectMIND's fee request, Client's right to access or use
Client Data will immediately cease, and PerfectMIND will have no obligation to maintain or
provide any Client Data and will thereafter, unless legally prohibited, delete all such Client Data
in PerfectMIND systems or otherwise in PerfectMIND's possession or under PerfectMIND's
control.
7.6 Survival. Without limiting the applicability of other terms and conditions of this
Agreement, the terms of this Agreement that, by their nature, are intended to survive any
purported or actual termination or expiration of this Agreement will so survive.
SECTION H: CONFIDENTIALITY
8.1 Confidential Information. Neither party will, without the prior written approval of the
other party, disclose or use for any purpose other than exercise of its rights or performance of its
obligations under this Agreement any information, documents, know-how, trade secrets of the
other party, including the terms of this Agreement and such other information that is not in the
public domain including, in respect of the Client Data and, in respect of the Platform
(collectively, "Confidential Information") that may come to its knowledge or possession by
reason of exchange of information under this Agreement or entering into this Agreement.
8.2 Obligation to Protect. Each party will protect the other's Confidential Information
using the same standard of care that it would use to protect its own, similar information, but in
any case no less than a reasonable standard of care for information of similar sensitivity.
8.3 Title. All right, title and interest (including all Intellectual Property Rights) in and to
each party's Confidential Information will be and remain vested in such party.
8.4 Permitted Disclosures. Each party will not disclose Confidential Information of the
other party to any person except to the first party's employees, agents and sub-contractors on a
strictly "need-to-know" basis, and provided that such persons have are subject to confidentiality
obligations equivalent to the obligations imposed hereunder. Notwithstanding such disclosures,
each party will be fully responsible for any breaches of confidentiality caused by such persons to
whom the Confidential Information is disclosed as if such breach were committed by such party.
8.5 Exceptions. Neither party will have an obligation with respect to Confidential
Information where such party can establish, through documentary evidence, that such
information (a) was previously known to it free of any obligation to keep it confidential, (b) is or
becomes publicly available other than by unauthorized disclosure, (c) is legally disclosed by
third parties without restrictions of confidentiality, or (d) has been independently developed by it
without reference to the other party's Confidential Information.
8.6 Governmental Disclosures. The parties recognize and understand that the Client is subject
to the Texas Public Information Act and its duties run in accordance therewith.
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SECTION I: WARRANTIES, DISCLAIMERS,INDEMNITIES AND LIABILITY
9.1 PerfectMIND Warranties. PerfectMIND represents and warrants to Client that (a) the
Platform will perform materially in accordance with the documentation therefor under normal
use and circumstances; (b) the Professional Services will be performed in a diligent and
workmanlike manner consistent with standards generally observed in the industry for similar
services, and the Work Product will materially conform to the Statement of Work upon
acceptance, and PerfectMIND will use all commercially reasonable efforts to remedy any
material non-conformance of the Work Product to the Statement of Work in an expeditious
manner; and (c) the functionality of the Platform will not be materially decreased during the
Term, subject to the other provisions of this Agreement. For clarity, PerfectMIND will not be
responsible for and the warranties provided by PerfectMIND in this Section 0 do not apply to
situations where improper or inadequate installation or maintenance of software or hardware that
Client uses to access or utilize, or otherwise in connection with, the Platform or Client Data, or
failure to properly configure the Platform for use in connection with such hardware or software
is the cause of a failure or malfunction. PerfectMIND warrants that it has the financial capacity
to perform and continue to perform its obligations under this Agreement; that PerfectMIND has
no constructive or actual knowledge of a potential legal proceeding being brought against
PerfectMIND that could materially adversely affect its performance of this Agreement and that
entering into this Agreement is not prohibited by any contract, or order by any court of
competent jurisdiction. PerfectMIND warrants that a product of similar scope and complexity as
the Platform required by this Agreement, including all component products and services, has
been installed and is operating in a production environment in a non-related third party's facility
without significant problems due to said product or PerfectMIND.
9.2 Mutual Warranty. Each party represents and warrants that it has the legal power and
authority to enter into this Agreement and to fully abide by the terms and conditions hereof.
9.3 NO OTHER WARRANTIES. THE PLATFORM AND THE WORK PRODUCT ARE
PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS AND PERFECTMIND DOES
NOT GUARANTEE THAT THE PLATFORM WILL FUNCTION ERROR-FREE OR
UNINTERRUPTED. CLIENT ACKNOWLEDGES THAT PERFECTMIND DOES NOT
CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES,
INCLUDING THE INTERNET, AND THAT THE SERVICE PROVIDED UNDER THIS
AGREEMENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER
PROBLEMS INHERENT TO THE USE OF SUCH COMMUNICATIONS FACILITITES.
PERFECTMIND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR
OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THERE ARE NO
RESPRESENTATIONS, CONDITIONS, OR WARRANTIES OTHER THAN THOSE
EXPRESSLY PROVIDED IN THIS AGREEMENT. THE CONDITIONS,
REPRESENTANTIONS, AND WARRANTIES EXPRESSLY SET OUT HEREIN ARE IN
LIEU OF, AND PERFECTMIND EXPRESSLY DISCLAIMS, ALL CONDITIONS,
WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING IMPLIED CONDITIONS, WARRANTIES OR REPRESENTATIONS IN
RESPECT OF QUALITY, CONDUCT, PERFORMANCE, RELIABILITY, AVAILABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER
ARISING BY USAGE OF TRADE, BY COURSE OF DEALING, BY COURSE OF
17
PERFORMANCE, AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE HOWSOEVER,
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.4 Indemnification by PerfectMIND for Infringment of Intellectual Property Rights.
PerfectMIND will indemnify and hold harmless Client, and its officers, employees and agents
(collectively, in this Section 0, the "Indemnified Persons"), from and against any and all Claims
brought or made against, or incurred by, the Indemnified Persons, or any one of them, arising out
of a claim by a third party that the Platform or the Work Product infringes the Intellectual
Property Rights of a third party enforceable in Canada or the United States.
9.5 Exception to PerfectMIND Indemnity. Notwithstanding Section 0, PerfectMIND will
not be required to defend or indemnify any Indemnified Person if, and to the extent that, the
Claim would not have arisen but for(a) any Indemnified Person's combination of the Platform or
Work products with software, services or products not supplied by PerfectMIND, (b) any breach
by an Indemnified Person of any provision of this Agreement, or (c) any refusal by the
Indemnified Person to use a non-infringing version of the Platform or the Work Product offered
by PerfectMIND under Section 0.
9.6 Indemnification by Client for Infringement of Intellectual Property Rights. Client
will indemnify and hold harmless PerfectMIND and its officers, employees and agents
(collectively, in this Section 0, the "Indemnified Persons"), from and against any and all Claims
brought or made against, or incurred by, the Indemnified Persons, or any one of them, arising out
of a claim by a third party that Client Data, or Client use of Client Data (a) infringes the
Intellectual Property Rights of a third party, or (b) is inappropriate, profane, defamatory,
infringing, obscene or indecent or otherwise breaches any Applicable Law.
9.7 Additional Infringement Obligations. If PerfectMIND receives any knowledge of any
Claim in respect of Section 0 or any circumstances in which a Claim in respect of such provision
is threatened or reasonably anticipated, it will, as soon as reasonably practicable, (a) procure, at
its expense, the right for Client to use the Platform or the Work Product, as the case may be, or
such infringing part thereof; (b) replace, at its expense, the Platform or the Work Product, as the
case may be, or such infringing part thereof, with material of comparable functionality that does
not breach this Agreement; (c) if the removal of such infringing part of the Platform or the Work
Product, as the case may be, would not be a breach of this Agreement, remove such infringing
part of the Platform; or (d) terminate this Agreement and refund to Client a pro rata portion of
the Platform use fees prepaid by Client for the period during which the Agreement is terminated.
9.8 Indemnification and Limitations of Liability.
(a) PerfectMIND shall indemnify and hold harmless Client and its agents, officials
and employees from and against any and all direct claims, losses, liabilities, damages,
costs and expenses (including reasonable attorney's fees and costs) for personal injury or
physical property damage arising from PerfectMIND's negligence or willful misconduct.
(b) To the extent allowable by law, Client shall indemnify and hold harmless and its
agents, officials and employees from and against any and all direct claims, losses,
liabilities, damages, costs and expenses (including reasonable attorney's fees and costs)
18
for personal injury or property damage arising from Client's negligence or willful
misconduct.
(c) In no event shall Client be liable for special, indirect, incidental, consequential or
exemplary damages. In no event shall PerfectMIND be liable for special, indirect,
incidental, consequential or exemplary damages, including without limitation any
damages resulting from loss of use, loss of data, interruption of business activities or
failure to realize savings arising out of or in connection with the use of the Platform. In
no event shall PerfectMIND be liable for damages in excess of amounts paid by Client
for the Platform Use Fees identified herein and the attached Exhibit "1," and paid by
Client. This limitation applies to all causes of action in the aggregate, including without
limitation breach of warranty, negligence, strict liability and misrepresentation and other
torts. The fees herein reflect and are set in reliance upon this allocation of risk and the
exclusion of such damages as set forth in this Agreement. The foregoing limitation of
liability is not applicable to Third Party Products.
9.9 Dispute Resolution. The parties hereby expressly agree that no claims or disputes
between the parties arising out of or relating to this Agreement or a breach thereof shall be
decided by any arbitration proceeding, including without limitation, any proceeding under the
Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. In the
event of a claim or dispute arising under this Agreement, the parties agree to mutually develop
and pursue a dispute resolution process and will use reasonable efforts to efficiently address and
resolve the claim or dispute through such dispute resolution process. Failing resolution, the
parties may pursue remedies available to them pursuant to this Agreement or at law or in equity.
SECTION J: GENERAL
10.1 Marketing. PerfectMIND may use Client's name, with an accurate reference to Client's
use of the Platform, in PerfectMIND's marketing materials or on PerfectMIND's website,with a
link to Client's website.
10.2 Notice. All notices and other communications in connection with this Agreemetn shall
be in writing and shall be considered given as follows:
(a) When delivered personally to a recipient's address as stated herein; or
(b) Three (3) days after being deposited in the mail, with postage prepaid to the
recipient's address as stated in the Agreement; or
(b) By facsimile if confirmed on the same day;
to the following:
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If to PerfectMIND:
Farid Dordar-CEO or Ali Sanei-COO
PerfectMIND Technology Inc.
110- 980 West 1St Street
North Vancouver, BC, V71? 3N4
If to Client:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
And to:
City Attorney
Stephan L. Sheets
309 East Main Street
Round Rock, TX 78664
Any notice given by personal delivery (including courier) will be conclusively deemed to have
been given on the day of actual delivery thereof and, if given by facsimile, on the day of
transmittal thereof if given during the normal business hours of the recipient on a business day,
and on the business day during which such normal business hours next occur if not given during
such hours.
10.3 Assignments. This Agreement may not be assigned by either party without the prior
written approval of the other party, such approval not to be unreasonably withheld or delayed,
but may be assigned by PerfectMIND to (i) a parent or subsidiary; (ii) an acquirer of assets; or
(iii) a successor by merger, on written notice to Client. Any purported assignment in violation of
this section shall be void.
10.4 Applicable Law; Enforcement and Venue. This Agreement shall be enforceable in
Round Rock, Texas, and if legal action is necessary by either party with respect to the
enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in
Williamson County, Texas. This Agreement shall be governed by and construed in accordance
with the laws and court decisions of Texas.
10.5 Force Majeure. Notwithstanding any other provisions hereof to the contrary, no failure,
delay or default in performance of any obligation hereunder shall constitute an event of default
or breach of this Agreement, only to the extent that such failure to perform, delay or default
arises out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
10.6 Waivers. No delay or omission by either party in exercising any right or power shall impair
such right or power or be construed to be a waiver. A waiver by either party of any of the covenants
20
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing
and signed by an authorized representative of the party against whom such waiver or discharge is
sought to be enforced.
10.7 No Presumption.No presumption shall operate in favor of or against any party hereto as
a result of any responsibility that any party may have had for drafting this Agreement.
10.8 Enurement. This Agreement will enure to the benefit of and be binding upon the parties
and their successors,trustees, permitted assigns and receivers.
10.9 Compliance with Laws, Charter and Ordinances. PerfectMIND, its employees and
agents, shall use best efforts to comply with all applicable federal state laws, the Charter and
Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations
promulgated by local, state and national boards, bureaus and agencies.
10.10 Injunctive Relief. Each party acknowledges and agrees that a breach by it of the
provisions of this Agreement relating to Confidential Information, Intellectual Property Rights,
or restrictive obligations may result in immediate and irreparable harm to the other party for
which compensation would be an inadequate remedy. Accordingly, each party acknowledges
and agrees that the other party may seek, as a matter of right and without the necessity of
establishing the inadequacy of monetary damages, injunctive or other equitable relief to prevent
or remedy such conduct from a court of appropriate jurisdiction.
10.11 Entire Agreement. This Agreement together with the Exhibits constitutes the entire
Agreement between the parties and supersedes all prior representations, agreements, statements
and understandings, whether verbal or in writing. In connection therewith, no terms or
conditions stated in any Client purchase order or other order documentation will be incorporated
into or form any part of this Agreement, and all such terms or conditions will be null and void,
notwithstanding any provision therein.
10.12 Amendments. This Agreement may not be amended except by written instrument
signed by an authorized representative of both parties.
10.13 Severability. If any term or provision of this Agreement will be found by a court of
competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect
the other terms or provisions hereof or the whole of this Agreement, but such terms or provisions
will be deemed modified to the extent necessary in the court's opinion to render such terms or
provisions enforceable, and the rights and obligations of the parties will be construed and
enforced accordingly, preserving to the fullest permissible extent the intent and agreements of
the parties herein set forth.
10.14 Relationship of the Parties. The parties are independent contractors. This Agreement
does not create a partnership, franchise, joint venture, agency, fiduciary or employment
relationship between the parties.
21
10.15 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.16 Software Source Code Escrow. Concurrent with the execution of this Agreement,
PerfectMIND will deposit a source code version of the software component of the Platform other
than any third party software (the "Software") with all necessary passwords, software keys, and
related technical documentation (collectively, the "Source Code") with a third party escrow
holder reasonably acceptable to Client (the "Escrow Holder"). PerfectMIND will update the
Source Code with all Enhancements and new releases and with any bug fixes or workarounds
provided to Client. The annual escrow fees will be borne entirely by Client. The escrow
agreement for the Source Code deposit will name Client as beneficiary, and will provide for the
release of the Source Code to Client if PerfectMIND becomes insolvent; if any proceedings are
commenced or taken for the dissolution, liquidation or winding up of PerfectMIND; or if a
trustee, receiver or other person with similar powers is appointed in respect of PerfectMIND in
respect of all or a substantially all of its property or assets; or if PerfectMIND ceases to carry on
all or substantially all of its business; or if any proceedings involving PerfectMIND involving its
bankruptcy or insolvency are taken under any legislation dealing with insolvency are taken under
any legislation dealing with creditor's rights; or PerfectMIND makes any assignment or proposal
in bankruptcy or any other assignment or proposal for the benefit of creditors ("Release
Conditions"). PerfectMIND will have a forty-five (45) day cure period to rectify any of the
foregoing Release Conditions after the receipt of a written notice from Client. Upon the release
of the Source Code to Client, Client will only use the Source Code in accordance with this
Agreement and will only use the Source Code internally for the purpose of providing
maintenance, and support for, or to add functionality to the Software. PerfectMIND covenants
that the Source Code, and all Enhancements, new releases, updates, bug fixes and workarounds
deposited into escrow will include all documentation and materials necessary for a competent
programmer to compile, verify, maintain, and support the Source Code. Subject to the
information and materials described in this Section being released to Client pursuant to the terms
of this Agreement and any escrow agreement between PerfecMIND, Client, and Escrow Holder,
PerfectMIND hereby grants to Client a royalty-free license that permits disclosure to a third
party support-vendor of a complete and accurate copy of then-current Source Code for the
purposes set forth in this Agreement.
10.17 Pricing. PerfectMIND warrants and agrees that the Platform use fees pursuant to this
Agreement are comparable to or better than the Platform use fees being offered to any
commercial or government Client of PerfectMIND with a substantially similar profile as Client,
including number and size of facilities operated, revenue of the facilities, volume of the
transactions processed, number and types of users of the Platform (e.g. front desk,
administration, fulltime/part-time instructor users), number and types of members, usage of
features and functionalities within the Platform, and whether the Client is part of a group of
Clients who negotiated and entered into substantially similar agreements with PerfectMIND
together as group.
10.18 Interlocal Cooperative Contracting/Purchasing. Authority for local governments to
contract with one another to perform certain governmental function and services, including but
not limited to purchasing functions as granted under Government Code, Title 7, Chapter 791,
Interlocal Cooperation Contracts, Subchapter B and Subchapter C, and Local Government Code,
Title 8, Chapter 271, Subchapter F, Section 27 1.101 and Section 271.102. Other governmental
22
entities within the State of Texas may be extended the opportunity to purchase off of the City's
bid, with the consent of the services provider and the City. Such agreement shall be conclusively
inferred from the services provider from lack of exception to this clause. However, all parties
hereby expressly agree that the City is not an agent of, partner to, or representative of those
outside agencies or entities and that the City is not obligated or liable for any action or debts that
may arise out of such independently negotiated "piggyback"procurements.
10.19 Counterparts. This Agreement may be signed in as many counterparts as may be
necessary, each of which so signed will be deemed to be an original and each copy sent by
electronic facsimile transmissions will be deemed to be an original, and such counterparts
together will constitute one and the same instrument and notwithstanding the date or dates of
execution will be deemed to bear the date as first above written.
f
[Signatures are on the following page.]
23
IN WITNESS WHEREOF the parties have executed this Agreement with effect as of the date
first above written.
PERFECTMIND TECHNOLOGY INC. CITY OF ROUND ROCK,TEXAS
BY: 'V� - BY:
l
Name: Vz ALI Ana� Name: Alan McGraw
Title: V, Title: Mayor
13 aws)
Attest:
Sara W ite, Clerk
For it , Approved s to Form:
Qa4 L. Sheets, City Attorney
P
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EXHIBIT I - SCOPE OF WORK
Scope/Project Management and Planning
PerfectMIND will responsible for planning and managing the project, using best practices
generally recognized as good project management methodology, and designating a Project
Manager for the project, who will be responsible for:
• Adherence to the project scope and schedule
• Management of work activities including system design and installation, system
configuration, data conversion,testing and quality assurance, administrator and end-user
training, and go-live support
• Coordination of resources, work sessions, and training
• Communications
• Managing project issues and issue tracking
• Status reports
• Available for status calls to provide updates
• Working with the designated Client project manager
• Deliverable acceptance and sign-off
With the frequency and other details of such reports to be agreed upon during the discovery
phase. In addition to the Project Manager, PerfectMIND will assign appropriate staff to complete
the deliverables described in this Statement of Work, including at minimum: system installation,
software configuration, data conversion, testing, administration and end-user training and go-live
support.
Timeline
Client is planning to implement the solution by June , 2016 with the following estimated
timeline. PerfectMIND is expected to recommend an overall implementation plan and timeline
based on their experience with implementations of similar scope and complexity.
November 2015 Contract Signature
November 2015—December 2015 Project kick off
Januar 2016—February 2016 Project Initiation
February 2016—April 2016 Software Configuration and Reports
February 2016—April 2016 Website-Acceptance Testing
March 2016—April 2016 User Acceptance Testing
April 2016—May 2016 Training and Documentation
June, 2016 Go-live
Technical Requirements
PerfectMIND will provide a SaaS solution, the only requirement for operating and using the
proposed solution will be broadband internet connection and access to the internet via a web
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browser with all standard browsers being supported (recommended browsers will be
communicated to Client during the implementation phase).
Client Testing
PerfectMIND will develop a test plan for Client that covers system and functional, testing.After
all of the components of the system have been completed, Client will conduct system and
functional testing. Client will report any defects to PerfectMIND immediately for correction. If
any defects are found, PerfectMIND will provide a plan to achieve acceptance or to make
corrections or replacements.
Training
PerfectMIND will provide full training to system administrators and trainers (number of system
administrator and trainers to be determined at the discretion of Client). PerfectMIND will
develop a training plan for Client to fully prepare the system administrators to support the
system. The training plan will include:
• In-depth understanding of the system functionalities, including:
■ Security Settings
■ Workflow Development
■ Report Development
■ Software Configuration
• A review of best practices in the configuration and use of the system.
• Training sessions on different modules of the system, including:
■ Contact/Account Management
■ Store/Point of Sale Training
■ Membership Management
■ Attendance Tracking
■ Billing Management
■ Activity/Program Registration
■ Facility Rental
■ Appointments and Private Lesson scheduling
■ Marketing
■ Staff Management
■ Accounting
■ Document Template creation and configuration
• Troubleshooting
PerfectMIND will provide technical assistance to Client's IT staff on the operation of the system.
PerfectMIND will investigate and troubleshoot any technical issues with the system that Client's
IT staff report to PerfectMIND.
Post-live Support
PerfectMIND will provide full application support during the week of go-live. PerfectMIND's
project team will be available to provide go-live and post go-live support. The resource(s)will
be accessible by phone and email to the system administrators.
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Future Services
The ability to provide the services/products in this section may be required in the future. Client
may request to add similar services or products in/the future, including but not limited to:
• New features or;
• Features that were identified as Custom
• Additional Reports
and such similar services and products will be provided by PerfectMIND upon PerfectMIND and
Client negotiating and entering into Statements of Work providing for same.
Deliverables and Service Acceptance
Client designee will formalize the acceptance of the service via written acceptance of the
following acceptance forms:
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Acceptance Form A- Project Kickoff(Milestone 1)
Purpose
The purpose of the Project Kickoff Acceptance Form is to confirm that the project kickoff has
occurred and the following deliverables are completed.
Deliverables
• Contract signature and execution
• Planning of the project kickoff/discovery session
• Resourcing and scheduling for the discovery phase
• Preliminary review of the requirements by the project team prior to the first meeting
• Creation of live production environment,which includes at a minimum:
— Setup of Client's production environment on the cloud
— System setups including backups and retentions
— Database security setup
— Setup of the monitoring tools and systems on Client's database
— Basic configuration of the database with Parks and Rec Modules
The work was completed on and accepted by Client.
Accepted by:
(City of Round Rock): Date:
Title:
(PerfectMIND): Date:
Title:
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Acceptance Form B - Project Initiation (Milestone 2)
Purpose
The purpose of the Project Initiation Acceptance Form is to confirm that the project initiation is
complete.
Deliverables
• Discovery phase, which will inform the detailed work breakdown structure and includes:
— Existing database system discovery
— Business process review and gap analysis
— Activity registration overview
— Facility configuration overview
— Membership management overview
— Store and point of sale overview
— Marketing overview
— Accounting configuration
The Discovery phase may involve multiple meetings and communications to clarify and
assist PerfectMIND in understanding the above areas further.
• Project work breakdown structure includes:
— Tasks and durations
— Scheduling
— Resourcing and assignments
— Dependencies
• Initiation of tasks listed under"Scope/Project Management and Planning" above, which
includes:
— Communications requirement
— Project reporting requirements including the frequency and details of the status reports
— Issue list/tracker requirements
The work was completed on and accepted by Client.
Accepted by:
(City of Round Rock): Date:
Title:
(PerfectMIND): Date:
Title:
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Acceptance Form C — Software Configuration and Reports (Milestone 3)
Purpose
The purpose of the Software Configuration and Reports Acceptance Form is to confirm that the
software and reports configuration is complete.
Deliverables
• Application configuration and setup
• Security and roles configuration
• Setup workflows and business rules
• Configuration and creations of the reports
The work was completed on and accepted by Client.
Accepted by:
(City of Round Rock): Date:
Title:
(PerfectMIND): Date:
Title:
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Acceptance Form D —Website Acceptance Testing (Milestone 4)
Purpose
The purpose of the Website Acceptance Testing Form is to confirm that the website testing is
complete and the website is functional.
Deliverables
The website is provided to Client. Client will conduct a complete test on the Website.
The work was completed on and accepted by Client.
Accepted by:
(City of Round Rock): Date:
Title:
(PerfectMIND): Date:
Title:
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Acceptance Form E — User Acceptance Testing (Milestone 5)
Purpose
The purpose of the User Acceptance Testing Form is to confirm that the system testing is
complete and the system is functional.
Deliverables
The test plan including test scripts, schedule, roles and responsibilities, and definitions of
passed/failed test is provided to Client and Client is coached through the testing phase. Client
will conduct a complete test on the system to ensure the following is tested and passed:
• System functions
• Work flows and business rules
• Reports
The work was completed on and accepted by Client.
Accepted by:
(City of Round Rock): Date:
Title:
(PerfectMIND): Date:
Title:
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Acceptance Form F - Training (Milestone 6)
Purpose
The purpose of the Training Acceptance Form is to confirm that the training is complete.
Deliverables
The training plan is complete and specifies the training schedule and curriculum for the
recipients of system administrator training and end-user training.
Client will confirm the following:
• System administrators have been trained on all aspects of system configuration,
individual and role-based security profiles, enterprise silo security settings and
configurations, document template creation, and report queries and changes.
• System administrators are able to complete new configuration items with minimal
assistance from PerfectMIND.
• End users have been trained on all aspects of the system and can complete tasks within
the system.
• Training materials and online learning center access have been delivered.
The work was completed on and accepted by Client.
Accepted by:
(City of Round Rock): Date:
Title:
(PerfectMIND): Date:
Title:
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Acceptance Form G - Go-Live (Milestone 7)
Purpose
The purpose of the Final Acceptance Form is to confirm that the system is operational.
Deliverables
The final data conversion has been completed and the system is pushed to the Production
environment.
The work was completed on and accepted by Client.
Accepted by:
(City of Round Rock): Date:
Title:
(PerfectMIND): Date:
Title:
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PRICING
Schedule Target
Dates Milestones & Deliverable Amount Payment Date
Upon signing of the agreement
• Contract Signature and Execution
November 2015 Payments due:
— I"year licensing fee($42,572)
— 50%of the Website Designs($12,500)
Upon signing of
the Agreement
$55,072
Project Kick off(Milestone 1)
• Planning of the project kick off/discovery session
November 2015 — 0 Resourcing and Scheduling for the discovery
December 2015 phase Upon
• Preliminary review of the requirements by the completion of
Acceptance
project team prior to the first meeting Form A
• Creation of the live production environment
$15,000
Project Initiation (Milestone 2)
• Discovery phase
January 2015 — * Project work breakdown structure
February 2015 . Initiation of tasks listed under"Scope/Project
Upon
Management and Planning" completion of
Acceptance
$10,000 Form B
Software Configuration and Reports(Milestone 3)
February 2016 — • Application configuration and setup
April 2016 • Security and roles configuration
• Setup workflows and business rules Upon
Configuration and creations of the reports completion of
Acceptance
$15,000 Form C
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Website Acceptance Testing(Milestone 4)
February 2016 — ' Delivery of the website
April 2016
Upon
completion of
Acceptance
$12,500 Form D
User Acceptance Testing(Milestone 5)
March 2016— • System functions
April 2016 • Work flows and business rules Upon
• Reports completion of
Acceptance
$15,000 Form E
Training(Milestone 6)
• System administrators have been trained on all
aspects of system configuration,individual and
role-based security profiles,enterprise silo
security settings and configurations, document
template creation,and report queries and
April 2016— changes.
May 2016
• System administrators are able to complete new
configuration items with minimal assistance from
PerfectMIND.
• End users have been trained on all aspects of the
system and can complete tasks within the system.
• Training materials and online learning center Upon
completion of
access have been delivered
Acceptance
$10,000 Form F
Go-live (Milestone 7)
June 2016 The system is pushed to the Production Upon
environment. completion of
Acceptance
$5,100 Form G
Total(including the subscription fee for the 1"year) $137,672
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Annual Subscription Fee Payment Due Date Total
11/15/2015 - 11/14/2016 11/15/2015 $42,572
11/15/2016 - 11/14/2017 11/15/2016 $42,572
11/15/2017 - 11/14/2018 11/15/2017 $42,572
11/15/2018 - 11/14/2019 11/15/2018 $42,572
11/15/2019 - 11/14/2020 11/15/2019 $42,572
Optional Services Unit Price Comments
Importation of Data $150/hr Upon termination of the contract the
Contractor shall supply the County with a basic
export of the complete data in a format suitable
for importation. Anything beyond will be
charged at$150/hr
Professional Services $150/hr Services outside the agreed to scope of work
that requires additional resourcing to
accommodate client's requests are to be billed
at $150.00 per hour as agreed upon in writing
by both parties.
Integration to third party $250/hr Processing Integration with the County's
software preferred payment processor.
Training $150/hr
Any future additional training requested
outside the scope of work.
Development $250/hr Services outside the agreed to scope of work
that requires additional development
(programming) work are to be billed at
$250.00 per hour as agreed upon in writing by
both parties.
The above fees do not include any travel, living or any other out-of-pocket expenses incurred by
PerfectMIND in providing Professional Services. Client will reimburse PerfectMIND for all
reasonable travel, living and other out-of-pocket expenses incurred by PerfectMIND's
employees and permitted subcontractors in providing the Professional Services. All such
expenses for which PerfectMIND seeks reimbursement will be supported by documentation in a
form reasonably acceptable to Client.
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Exhibit 2
Platform Features and Functionalities
PerfectMIND's Platform will include the following features and functionalities:
• Built-In Reporting Engine
A built-in reporting engine to help the customer to create reports.
• Integrated Workflow Engine
Generate workflows to streamline your team's processes and communications
• Business App Store
PerfectMind is adaptable through our community-driven App Store.
• Open API
Having access to an adaptable integration with external apps allows fluid
interconnectivity and collaboration across platforms
• Data Security,Auditing and Permissions
The ability to control app-level access, user auditing, user time limits, specific IP access,
as well as group- and role-based data permissions.
• Multi-Site Management& Reporting
To allow client to manage multiple sites from one account.
• 24/7 Customer Service
PerfectMind provides 240 operation support using live agents/chat/email.
Recreation Management Features:
• Facility booking and Scheduling
PerfectMind booking takes care of conflict and contract management, recurring bookings,
equipment and rental inventory, capacity management and more. Your staff and your
members can schedule events online or on-site. PerfectMind lets you manage facility
dependencies, availability, and multiple rates. Customers can book using desktop,tablet
or mobile devices on all popular web browsers.
• Membership Management
This allows you to manage families, multiple memberships, and related contacts.
• Document Management
You can create, save,print, upload and manage your documents for your organization in
the cloud. Sign waivers, contracts, and other documents electronically with a digital
signature and store them safely in the cloud.
• Staff Management
You can view all your staff schedules in one master calendar. PerfectMind provides your
staff with the ability to make their own schedule and to adjust availability for vacations
and time off. Manage staff wages, commissions, hours, availability and much more.
Restrict access permissions for users and groups to improve security.
• Activity Registration
Online or on-site registration for all types of bookings including courses, private lessons,
drop-in and flexible registrations to accommodate your needs. Intelligent conflict
management gives you the flexibility to readily make changes to events.
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• POS and Inventory Management
To sell products, service or event online or on-site using cutting-edge features within
inventory and sales management. Track purchase orders and inventory.
• Attendance Tracking and Check-in
Allow customers to scan or check themselves in at the front desk using a kiosk, or
manually check-in with a staff member. Improve retention with live class statistics,and
much more. Guest check-ins allow for quick processing to non-members or during busy
periods.
• Calendar
Flexible, multi-functional calendar with drag-and-drop functionality to make changes and
updates to events, activities and facility booking. You can also view multiple facilities,
locations and courses.
• Marketing
A built-in, fully-functional email solution replaces the need for any additional email
applications so you can streamline your marketing for programs, campaigns, and
personalized operation emails. Increase signups and enrollments using loyalty and
referral programs. You can also have access to simple and customizable landing pages
and lead-capture forms.
• Task Management
To schedule automated and recurring tasks with alerts to stay up-to-date, organized and
focused. Set reminders based on predefined or custom triggers
• Reports
PerfectMIND's built-in reporting engine enables you to create, customize and run
reports. Create and schedule custom financial, attendance, utilization, and marketing
reports all from the same interface. View real-time analytics and historical data in tabular
or graphical format. All reports can be exported for use in a third-party application.
• Account management
To keep track of your clients and contacts including organizations and families
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13erfectM/ jind 1-877-737-8030 2nd floor, 4333 Still Creek Dr
www.perfectmid,com Burnaby, BC Canada
V5C 6S6
Date: December 20,2018
City of Round Rock
221 East Main Street
Round Rock,Texas 78664
Attn: Laurie Hadley,City Manager
Dear Laurie Hadley:
Re:Agreement between City of Round Rock and PerfectMind
We write in reference to the Software as a Service& Professional Services Agreement dated October 14,
2015 between PerfectMind Technology Inc. and City of Round Rock(the "Agreement").
In accordance with section 10.2 of the Agreement,we respectfully request your consent to the assignment
of the Agreement from PerfectMind Technology Inc. ("PM Technology") to PerfectMind Inc. effective
January 1, 2019. PerfectMind Inc. is an affiliate of PM Technology, having an identical ownership as PM
Technology. A large majority of our parks and recreation agreements are currently in the name of
PerfectMind Inc. and all our new parks and recreation agreements are entered into by PerfectMind Inc.
Please provide your consent by signing in the space provided below and returning a copy of the signed
document by email to us.
Yours truly,
PerfectMind Te rfology Inc. PerfectMind Ipc. j
•
Per: Per:/
e �
Fi
Ali Sanei—COO Al 3anei-COO
City of Round Rock hereby consents to the assignment of the Agreement from PM Technology to
PerfectMind Inc.
ti
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rift1-877-737-8030
www 2nd floor, 4333 Still Creek Dr
ec�i� �j�jMind .perf tmid.com Burnaby, BC Canada
V5C 6S6
City of Round Rock
Per: l
Name: Laurie Hadley
Title: City Manager
Date: 12 14 •1,T,