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HomeMy WebLinkAbout2006-001 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-lAW 2006- 001 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Work Tech Inc., Grimsby, Ontario, to enter into a license agreement for the municipal application. THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON HEREBY ENACTS AS FOllOWS: 1 . THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a contract between Work Tech Inc, Grimsby, Ontario, and said Corporation; and 2. THAT the contract attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 16th day of January, 2006. By-law read a third time and finally passed this 16th Clerk WORKTECH Software License Agreement WORKTECH SOFTWARE LICENSE AGREEMENT This Software License Agreement ("Agreement") is made effective the date set out in Part I of Exhibit A, by and between WorkTech Inc., a corporation duly incorporated under the laws of the Province of Province and carrying on business as WorkTech, with its principal office at 33 Main Street W, Grimsby, Ontario, L3M IR3 ("WORKTECH"), and the Municipality ofClarington, with its principal offices at the address set out in Part II of Exhibit A ("CUSTOMER"). WHEREAS WORKTECH desires to provide to CUSTOMER and CUSTOMER desires to purchase and license from WORKTECH, the products, materials and services described herein. NOW THEREFORE, WORKTECH and CUSTOMER agree as follows: SECTION 1- INTERPRETATION 1.1 "Definitions" In this Agreement, the following terms shall have the following meanings: (a) "Authorized Consultant" means a consultant to CUSTOMER who (i) has a need for access to the Software to enable CUSTOMER to exercise its rights hereunder, (ii) does not actively market a product which competes directly with the Software, and (iii) prior to receiving such access, has executed and delivered a confidentiality agreement which contains substantially similar provisions of the confidentiality obligations described in this Agreement. (b) "Confidential Information" means the Software, Modifications and Documentation (and any complete or partial copies thereof including the structure, sequence and organization of such programs or modules, and any other information of WORKTECH (which WORKTECH has provided to CUSTOMER or CUSTOMER has obtained in connection with this Agreement) whether or not developed for CUSTOMER under this Agreement, provided however, that Confidential Information shall not include any information which (a) is specifically identified by WORKTECH as not confidential; (b) was in the possession ofor was known by CUSTOMER prior to its receipt from WORKTECH; (c) is or becomes public knowledge through no wrongful act of CUSTOMER; (d) is disclosed with the prior written approval of WORK TECH; or (e) is received from a source other than WORKTECH through no wrongful act of CUSTOMER. (c) "Defect" means any failure of the applicable Software to comply with the description of functionality contained in the Documentation. (d) "Documentation" means the support material for the Software provided by WORKTECH to CUSTOMER from time to time including, but not limited to, on-line help, user manuals and technical bulletins and memos. (e) "Modification" means all enhancements, overlays, functional changes, corrections, and upgrades, either functional or technical, to the Software, including interfaces and modifications to jointly developed software of CUSTOMER and WORKTECH. (1) "Software" means all WORKTECH Software identified and set forth in Part III of Exhibit A in machine- readable object code only, including without limitation all fixes, patches, and Updates delivered to CUSTOMER and all Modifications thereto, all in machine-readable object code only. (g) "Support Agreement" has the meaning given in Section 5.1. (h) "Updates" means each enhancement within function to the Software developed by WORKTECH, which is generally made available to WORKTECH's customers. -1- WORKTECH Software License Agreement (i) "use" means, for the purposes of Section 2.1 of this Agreement, (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes. (j) "Warranty Period" means the period described in Part V of Exhibit A commencing on the date of this Agreement. 1.2 "Schedules and Exhibits" The following Exhibits are part of this License Agreement. Exhibit A: License Details Part I ~ Effective Date Part II - CUSTOMER Address Part III - WORKTECH Software Part IV - Hardware and Operating environment Part V ~ Warranty Period Part VI - Number of Users License Fees Exhibit B: SECTION 2 - SOFTWARE LICENSE 2.1 Grant of License. WORKTECH grants and CUSTOMER accepts a non-exclusive, non-transferable, perpetual (unless otherwise terminated in accordance with this Agreement) license to use the Software, in Canada, solely for the purposes of processing the data of, and for the internal business purposes of, CUSTOMER, in accordance with this Agreement, provided that the total number of users who have access to the Software at any time does not exceed the number specified in Part VI of Exhibit A. 2.2 CUSTOMER agrees that the License granted to CUSTOMER pursuant to Section 2.1 does not permit CUSTOMER to: (i) use the Software for providing service bureau or time sharing services to third parties; (ii) sublicense the Software; or (iii) use the Software other than in accordance with this Agreement. CUSTOMER shall allow access to the Software and Documentation only to the Authorized Consultants and employees of CUSTOMER. CUSTOMER shall remain fully liable for any breach by its employees or Authorized Consultants of the terms of this Agreement. 2.3 Modifications. CUSTOMER shall not modifY the Software without the prior written consent of WORK TECH. 2.4 Receipt of Software. CUSTOMER shall be entitled to receive one copy of the Software and one copy of the Documentation. 2.5 Additional Software. The parties agree that the terms and conditions of this Agreement shall be applicable to any additional software acquired by CUSTOMER from WORKTECH following the effective date of this Agreement, including without limitation, all fixes, patches, Updates and Modifications to such software, whether or not identified in Part III of Exhibit A, except that CUSTOMER shall pay any additional License Fees to WORK TECH that may be payable in connection with such additional software. -2 - WORKTECH Software License Agreement SECTION 3 - WARRANTY 3.1 Warranty. WORKTECH warrants for the Warranty Period that the Software will comply with the functionality and specifications outlined in the Documentation, provided in all cases that (i) the Software is operated solely in accordance with the Documentation, (ii) the Software has not been modified by any party other than WORKTECH and (iii) CUSTOMER promptly verifies the accuracy of all data generated by the use of the Software. After the expiration of the Warranty Period, WORKTECH shall have no obligation or liability with respect to any Defect in such Software. 3.2 Obligation to Correct or Reolace Defects. Should CUSTOMER notifY WORKTECH in writing during the Warranty Period that the Software contains any Defect and provided that CUSTOMER has complied with Section 3.1, (i) WORKTECH shall take the corrective action set out in the Support Agreement; and (ii) if a Defect which prevents the operation of the Software or a major component of the Software is not corrected within 45 days of the expiration of the Warranty Period, then CUSTOMER may, by written notice to WORKTECH, terminate this Agreement. In order to be effective, CUSTOMER must exercise such right of termination within 90 days of the expiration of the Warranty Period and return all Confidential Information to WORKTECH. In this event CUSTOMER shall be entitled to reimbursement of the license fees. The remedies in this Section 3.2 shall constitute CUSTOMER's sole remedy against WORKTECH for any Defects in the Software. 3.3 CUSTOMER's Defect Reoorts. In order to be eligible for the warranties and remedies described in this Section 3, CUSTOMER must promptly report Defects in writing to WORKTECH and the Defects must be reproducible by WORKTECH in a controlled environment. 3.4 Year 2000 Comoliance. The term "Year 2000 Compliant" or "Year 2000 Compliance" as used herein is defined as the capability of a product or a system to accurately process dates and date-related data between the twentieth and twenty-first centuries, in a format agreed to between the parties, in either direction, including leap year calculations, when used in its original and unmodified condition and in accordance with its associated Documentation, provided that all products and systems (i.e. hardware, software, firmware) not provided under this Agreement, used in combination with the product or system properly exchange unambiguous and Year 2000 compliant data with it. WORKTECH warrants that the Software is and will be Year 2000 Compliant. WORKTECH shall repair or replace, at its option, any Software whose non-compliance with the warranties described in this Section 3.4 is discovered and made known by CUSTOMER to WORKTECH in writing prior to the expiry of the Warranty Period. The remedies in this Section 3.4 shall be CUSTOMER's sole remedy against WORKTECH relating to Year 2000 Compliance of the Software or Year 2000 matters or issues associated within the Software. 3.5 Scooe ofWarrantv. WORKTECH DOES NOT WARRANT THAT: (a) THE SOFTWARE WILL OPERATE UNINTERRUPTED NOR THAT IT WILL BE FREE FROM MINOR DEFECTS OR ERRORS NOR THAT ALL PROGRAMMING ERRORS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED; (b) THE APPLICATIONS CONTAINED IN THE SOFTWARE ARE DESIGNED TO OR WILL MEET CUSTOMER'S BUSINESS REQUIREMENTS OR LEGISLATIVE, REGULATORY OR POLICY REQUIREMENTS, EXCEPT TO THE EXTENT WORKTECH IS OBLIGATED TO MEET THOSE REQUIREMENTS AS DESCRIBED IN THIS AGREEMENT. 3.6 Exoress Disclaimer. WORKTECH EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED NOT CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF PERFORMANCE, QUALITY, DURABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. - 3- WORKTECH Software License Agreement SECTION 4 - CONFIDENTIAL INFORMATION 4.1 Confidential Information. CUSTOMER acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, copyright and trade secret rights, in and to the Software, Documentation and other Confidential Information, are and shall remain with WORKTECH. CUSTOMER agrees that it will not, either during or after termination of this Agreement, contest or challenge the title to the intellectual property rights in the Confidential Information. CUSTOMER acquires only the right to use the Confidential Information under the terms and conditions of this Agreement and does not acquire any ownership rights in or title to the Confidential Information. 4.2 Protection of Confidential Information. In order to protect the rights of WORKTECH in the Confidential Information, CUSTOMER agrees as follows: 4.2.1 CUSTOMER shall not, without the prior written consent of WORKTECH, disclose, provide, or make available any of the Confidential Information in any form to any person, other than to employees, officers, directors, or Authorized Consultants of CUSTOMER whose access is necessary to enable CUSTOMER to exercise it rights hereunder. CUSTOMER agrees that prior to disclosing any Confidential Information to any Authorized Consultant, it will obtain from that Authorized Consultant a written acknowledgment that such Authorized Consultant will be bound by the same terms as specified in this Agreement. 4.2.2 CUSTOMER acknowledges that any disclosure to third parties of Confidential Information may cause immediate and irreparable harm to WORKTECH and, therefore, CUSTOMER agrees to take all reasonable steps and the same protective precautions to protect the Confidential Information from disclosure to third parties as with its own proprietary and confidential information. 4.2.3 WORKTECH may use CUSTOMER's name referring to them as a user of the Software but shall not indicate that CUSTOMER recommends the use of the Software without obtaining the CUSTOMER's prior written consent. 4.3 Derivative Work. CUSTOMER shall not copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Software licensed hereunder or use the Software to create a derivative work or any functionally compatible or competitive software. SECTION 5 - SUPPORT 5.1 Sunnort Am-eement. WORKTECH shall provide the Support Services (including the provision of Updates and associated Documentation but excluding Modifications) described in WORKTECH's standard form of Software Support Agreement (as may be amended by WORKTECH from time to time) (the "Support Agreement") to CUSTOMER during the Warranty Period at no additional cost. If the parties execute a Support Agreement, WORKTECH will provide Support Services to CUSTOMER following the termination of the Warranty Period in accordance with and for the fees described in such Support Agreement for so long as the Support Agreement remains in effect. SECTION 6 - HARDWARE 6.1 Hardware Acouisition. CUSTOMER shall be solely responsible for the acquisition and installation of the appropriate hardware and operating environment necessary to operate the Software. The parties agree the operating environment shall be as set forth in Part IV of Exhibit A. -4 - WORKTECH Software License Agreement SECTION 7 - PRICE AND PAYMENT 7.1 License Fees. In consideration of the license granted hereunder, CUSTOMER shall pay to WORKTECH the license fees and other charges for the Software ("License Fees") as set forth in Exhibit B to this Agreement. 7.2 Taxes. In addition to all fees payable by CUSTOMER under this Agreement, CUSTOMER shall payor reimburse WORKTECH for all federal, provincial, state or local, sales, use or similar taxes, or amount levied in lieu thereof applicable to the License Fees or based on the Software or Documents, their use or any services performed hereunder, whether such taxes are now or hereafter imposed under the authority of any federal, provincial, state, local or other taxing jurisdiction. 7.3 Payment Terms. All payments are due within thirty (30) days after receipt of invoice. Any amount not paid when due will be subject to interest at a rate of two (2%) percent per month on the amount outstanding from the date when payment is due until the date payment in full is received by WORKTECH. SECTION 8 - LIMITATION OF LIABILITY 8.1 Lumtations of Liabihtv. In no event will the aggregate of WORKTECH's liability for damages exceed the License Fees paid under this Agreement. 8.2 Exclusions. IN NO EVENT SHALL WORKTECH BE LIABLE TO CUSTOMER FOR DAMAGES RESULTING FROM LOSS OF DATA, USE OF PRODUCTS, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES HAS BEEN COMMUNICATED TO WORKTECH AND REGARDLESS OF WHETHER WORKTECH HAS OR GAINS KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST REVENUE, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS. 8.3 Disclaimer. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT. SECTION 9 - TERM AND TERMINATION 9.1 Term. This Agreement and the license granted hereunder shall become effective upon execution of this Agreement by both parties and shall continue in effect unless terminated in accordance with this Agreement. 9.2 Termination. 9.2.1 WORKTECH may immediately terminate this Agreement by notice in writing to CUSTOMER if CUSTOMER is in material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the breach from WORKTECH. 9.2.2 If WORKTECH is in material breach of this Agreement, and fails to cure such breach within 30 days after receipt of written notice of breach from CUSTOMER, CUSTOMER may terminate this Agreement. In such event, CUSTOMER will return all Confidential Information to WORKTECH. 9.3 Effect of Termination. Upon any termination of this Agreement: (i) Sections 4,7 (to the extent sums are owing on termination), 8, 9, 10, II, 13 and 14 shall survive such termination; (ii) CUSTOMER's rights under Section 2 shall immediately cease; and (iii) CUSTOMER shall promptly perform its obligations under Section 9.4. - 5- WORKTECH Software License Agreement 9.4 Duties Uoon Termination. Within fourteen (14) days after the effective date of termination of this Agreement for any reason except that stated in Section 9.2.2., CUSTOMER shall either (i) deliver to WORKTECH at CUSTOMER's expense (adequately packaged and insured for safe delivery), all copies of the Confidential Information in every form, or (ii) destroy all such copies, and CUSTOMER shall certifY in writing to WORKTECH that it has performed the foregoing. SECTION 10 - ARBITRATION 10.1 Arbitration. All disputes of every kind and nature between the parties arising out of or in connection with this Agreement shall be submitted to binding arbitration in Ontario. 10.2 Selection of Arbitrator. Arbitration shall be by single arbitrator selected by mutual agreement between the parties. If the parties cannot agree on an arbitrator within 10 business days after referral of a matter to arbitration, then either party may apply to a judge of the Ontario Court of Queen's Bench for the appointment of such arbitrator. The parties shall endeavor to select an arbitrator familiar with the computer industry, and who, if possible, has a law background and is a resident of Ontario. 10.3 Cost of Arbitration. Each party shall bear its own legal expenses and costs of arbitration, including attorneys' fees. The costs and expenses of the arbitration proceedings, including applicable arbitration fees and expenses, shall be borne equally by the parties or as otherwise determined by the arbitrator. 10.4 Arbitration Provisions. The parties agree that the provisions hereof shall be a complete defense to any suit, action, or proceeding instituted in any federal, provincial, or local court or before any administrative tribunal with respect to any controversy or dispute arising out of this Agreement. Notwithstanding this Section 10, either party may seek injunctive relief in a court of law or equity to enforce its rights in: (i) any intellectual property, including, without limitation, any rights it has in patents, copyrights, trademarks or trade secrets; or (ii) confidential or proprietary information as described in this Agreement. This Section 10.4 shall in no way be construed to allow for an award of monetary damages other than by arbitration. 10.5 Arbitration Authoritv. Nothing herein contained shall be deemed to give the arbitrator any authority, power, or right to alter, change, amend, modifY, add to or subtract from any of the provisions of this Agreement. 10.6 Disclosure of Proorietarv lnformatlOn. The parties expressly agree that all trade secrets, proprietary or confidential information of either party (including the Confidential Information) shall be disclosed during arbitration only upon the issuance of appropriate protective orders limiting the disclosure or discoverability of such information outside ofthe arbitration of this Agreement. SECTION 11 - INTELLECTUAL PROPERTY Il.l Intellectual ProoerlY Infringement Claims. In the event that the Software and/or Documentation are in the reasonable opinion of WORKTECH likely to or do become the subject of a claim for infringement of any patent, copyright, trade secret or other proprietary right of a third party, WORK TECH may, at its expense and option, promptly (i) replace the Software with a compatible, functionally equivalent, non-infringing software product; (ii) modifY the Software or take other action so that the Software becomes non-infringing; (iii) procure the right of CUSTOMER to continue using the Software; or (iv) terminate the license for the infringing Software application and, subject always to the limitation of liability set forth in Section 8 of this Agreement, (a) if such termination occurs during the twelve (12) months immediately subsequent to the date of this Agreement, refund the License Fees paid for that Software application; or (b) if such termination occurs subsequent to the twelve (12) month period immediately subsequent to the date of this Agreement, refund the License Fees paid for that Software application, less 2% of such license fees for each calendar month elapsed from the expiry of the twelve (12) month period immediately subsequent to the date of this Agreement to the date of termination. - 6- WORKTECH Software License Agreement 11.2 Defense of Claims. WORKTECH shall defend or settle any suit or proceeding brought against CUSTOMER based on a claim that the Software or the use thereof by CUSTOMER as authorized hereunder infringes any Canadian patent, copyright, trade secret, or other proprietary right and WORKTECH shall pay all costs and damages expressly awarded therein against CUSTOMER or all amounts settled upon therein, provided that: 11.2.1 (i)WORKTECH shall have sole control of the defense and/or settlement of the claim; (ii) CUSTOMER shall immediately notify WORKTECH in writing of such claim; (iii) CUSTOMER shall at WORKTECH's cost provide WORKTECH with all information known to CUSTOMER regarding such claim and otherwise cooperate with WORKTECH as WORKTECH may reasonably require in the defense or settlement of such claim; (iv) CUSTOMER shall comply with any settlement or cost order made in connection with such claim; and (v) WORKTECH shall not be responsible for any cost, expense or compromise incurred or made by CUSTOMER without WORKTECH's prior written consent, and 11.2.2 WORKTECH shall have no obligation to CUSTOMER under this Section 11.2 to the extent any claim is based upon or arises out of (i) CUSTOMER's use of the Software other than in accordance with this Agreement or the Documentation; (ii) all Updates have not been properly installed in accordance with the Documentation; (iii) the combination, operation or use of the Software with any hardware or other software; or (iv) Modifications made to the Software by any person other than WORKTECH. 11.3 THE PROVISIONS OF THIS SECTION II STATE THE SOLE, EXCLUSNE, AND ENTIRE LIABILITY OF WORKTECH TO CUSTOMER AND CUSTOMER'S SOLE REMEDY WITH RESPECT TO ALL CLAIMS, DAMAGES, DEMANDS AND LOSS WHATSOEVER FROM OR IN RESPECT OF THE INFRINGEMENT OF VIOLATION OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHT OF ANY THIRD PERSON. SECTION 12 - ASSIGNMENT/SUBCONTRACT 12.1 CUSTOMER Assi!!llIIlent. CUSTOMER may not, without WORKTECH's prior written consent, assign, delegate, sublicense, pledge, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or any of the Software or Documentation, to any party. SECTION 13 - NON-IDRE 13.1 Non-Solicitation Clause. CUSTOMER agrees to not actively solicit or recruit any employees, agents, or consultants of WORK TECH during the term of this Agreement and for a period of one year after termination of this Agreement without WORKTECH's written consent. 13.2 Non-Solicitation Clause. WORKTECH agrees to not actively solicit or recruit any employees, agents, or consultants of the CUSTOMER during the term of this Agreement and for a period of one year after termination of this Agreement without CUSTOMER's written consent. SECTION 14 - GENERAL PROVISIONS 14.1 Agreement Binding. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 14.2 Rights to Iniunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide WORKTECH or CUSTOMER with full compensation in the event of CUSTOMER's or WORKTECH's material breach of Sections 2 or 4, and that the non-breaching party shall therefore be entitled to seek injunctive relief in the event of any such material breach. -7 - WORKTECH Software License Agreement 14.3 Force Maieure. Any delay or non-performance by WORKTECH of any provision of this Agreement caused by conditions beyond its reasonable control, including, without limitation, acts of God, fire, flood, war, embargo, strikes, labour disturbances, explosions, impairment or delay in obtaining services or materials and riots, shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance. 14.4 No Waiver. If either party should waive any breach or default of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach or default of the same or any other provision hereof; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that has or may have hereunder operate as a waiver of any breach or default by the other party. 14.5 Notices. All notices or other correspondence under this Agreement shall be in writing and sent by prepaid registered mail, facsimile or personal delivery to the offices of WORKTECH at the address first set forth above and to CUSTOMER at the address set forth in Part II of Exhibit A. Either party may give written notice of a change of address. All notices and other correspondence under this Agreement shall be effective upon receipt if delivered personally or sent by facsimile, and seven (7) days after mailing if sent by registered mail. 14.6 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason the invalid, illegal or unenforceable provisions shall not affect any other provisions, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision is severed and deleted from this Agreement. The remaining Agreement shall remain in full force and effect. 14.7 Governing Law. This Agreement shall be governed by and construed under the laws of the Province in which the CUSTOMER is located as set forth in Part II of Exhibit A as of the effective date of this Agreement, and the laws of Canada in force therein. 14.8 Section Headings. The section headings in this Agreement are intended solely for convenience; they are not part of this Agreement and shall not affect its construction. 14.9 Entire Agreement. This Agreement and any Exhibits hereto constitute the complete and exclusive statement of the Agreement between WORKTECH and CUSTOMER, and all previous representations, discussions, and writings are merged in and superseded by this Agreement. No modifications, amendments, or supplement to this Agreement shall be effective for any purpose unless in ""Titing and signed by CUSTOMER and an officer or director of WORK TECH. This Agreement and any Exhibits hereto shall prevail over any additional, conflicting, or inconsistent items and conditions, which may appear on any purchase order, or other document furnished by CUSTOMER to WORKTECH. 14.10 Precedence of Documents. In the event ofa conflict between documents, the order of precedence will be as follows (1) this Agreement, (2) Exhibits under this Agreement. 14.11 Counterparts. This Agreement may be signed in more than one counterpart, each of which shall be deemed an original and which shall together constitute one Agreement. - 8- WORKTECH Software License Agreement IN WITNESS WHEREOF, the undersigned intending to be legally bound, have duly executed this Agreement to become effective as of the date first above written. MUNICIPALITY OF CLARINGTON By: Name: Title: Date: WORKTECH INC. By: Name: Title: Date: - 9- WORKTECH Software License Agreement EXHIBIT A LICENSE DETAILS Part I - Effective Date: December I, 2005 (Date of Installation) Part II - CUSTOMER Address: Municipality of Clarington 40 Temperance Street Bowmanville, Ontario Part III - WORKTECH Software: Aoolications/Functionalitv . # Users Cost Work Manaoer Foundation 4 10,500 Securitv Extender 2 2,000 FleetlEouioment Extender le.o trucks, pumps etcl n/a 3,000 Service Manaoer Foundation 3 2,500 Advanced Service Manaoer Extender n/a 1,000 Software Subtotal '$19,000 Not including applicable taxes. Part N - Hardware and operating environment necessary to operate the Software. Clarington's current system complies with the minimum requirements. Part V - Warranty Period: One (I) Year Part VI - Number of Users: Seven (7) -10 - WORKTECH Software License Agreement Software Fees -11- EXIllBIT B LICENSE FEES # Users 4 2 n/a 3 n/a $19,000 Cost 10,500 2,000 3,000 2,500 1,000 *$19,000 WORKTECH Software License Agreement Incidental Costs Knowledge SeNices: For time incurred in excess of monthly support allotment $1,000 day Technical For on-site and remote assistance in technical work - network, installations, printing, etc. $1,000 day $1,000 day Consuiting I Research & Deveiopment For on-site and remote consultative services (training, documentation, go-live support, levy assistance, implementation of new applications, etc.) Travel Time For travel time from Diamond Paris office to the Municipality, associated with all on-site consultative or technical services $50 i hour Other Costs: Mileage: $0.40 per km Accommodations/Airfare/Rental Car: Actual rates are recouped. Meals J Per Diem: $50 per day ($15 - Breakfast, $15 - Lunch, $20 - Dinner) Administrative/ Long Distance: Included OGPUG (User Group): Included Client Relations I Newsletters: Included Knowledge Base: Included -12- SOFTWARE SUPPORT AGREEMENT SOFTWARE SUPPORT AGREEMENT This Software Support Agreement is made effective the date set out in Part I of Schedule I, by and between WorkTech Inc., a corporation duly incorporated nnder the laws of Ontario and carrying on business as WorkTech ("WorkTech") and the Municipality of CIa ring ton ("Customer") WHEREAS WorkTech desires to provide to Customer and Customer desires to purchase from WorkTech, the products, materials and services described herein. NOW THEREFORE, WorkTech and Customer agree as follows: I. DEFINITIONS (I) "Agreement" means this Software Support Agreement together with the following Schedules, which are attached.to and form part of this Agreement: Schedule I - Support Details Schedule 2 - Support Fees (2) "Billing Period" means the time period for which the Customer shall be invoiced for Support Services, as set forth in Part II of Schedule 1. (3) "License Agreement" means the License Agreement in force between the parties on the effective date of this Agreement. (4) "Support Fees" means the fees payable by the Customer to WorkTech for all Support Services provided by WorkTech under this Agreement other than the provision of Updates, as more particularly described in Schedule 2 attached. (5) "Support Services" means the services to be provided by WorkTech to Customer pursuant to this Agreement, but shall exclude any service for which Additional Fees (as described in Section 10) are paid. (6) "Update Fees" means the fees payable by the Customer to WorkTech for the provision of Updates, as more particularly described in Section 3. (2). (7) Other capitalized terms used in this Agreement and not defmed herein shall have the meanings ascribed to them in the License Agreement. 2. TERM This Agreement shall commence on the Commencement Date set forth in Part IV of Schedule I and shaH remain in effect up to and including the Initial Renewal Date set forth in Part V of Schedule I and shaH be subject to automatic renewal for further 12 month terms as long as the Customer continues to use the Software. This Agreement may be terminated by written notice by either party to the other party at least 60 days prior to the Renewal Date. If this Agreement is terminated for any reason, WorkTech shaH have no further responsibility to provide Support Services to the Customer (including, without limitation, the provision of updates) and shaH have no liability in connection with any use of the Software by the Customer thereafter. 3. SUPPORT PROVIDED This Agreement entitles the Customer to the foHowing: (I) Diligent effort by WorkTech to attempt to correct program errors where the copyright ownership belongs to WorkTech. (2) Updates to existing Software where the copyright ownership belongs to WorkTech. (3) Manuals, Technical bulletins, checklists, update memos and newsletters produced by WorkTech. (4) Custom progranuning at W orkTech's then current rates for labour, travel, material and expenses. The decision to work at the Customer's site shall be at the Customer's discretion and expense. (5) Training (a) Training in new feature procedures is at no additional cost over the telephone, and on-site training or seminar training is at WorkTech's current rates for labour, travel, materials and expenses. (b) Retraining in areas already learned by previous users and training new employees of the Customer will be at WorkTech's then current rates for labour, travel and material and expenses. The decision to work at the Customer's site will be at the Customer's discretion and expense. (6) Updates to the manuals where copyright ownership belongs to WorkTech will be provided by mail at no additional charge. - 1 - SOFTWARE SUPPORT AGREEMENT 4. ADD-ONSOFTWARE All add-on software and upgrades acquired by the Customer from WorkTech will be subject to this Agreement, whether or not identified in Part III of Exhibit A to the License Agreement or any amendment to this Agreement or to the License Agreement, and shall be subject to the renewal term set forth herein, except that the Customer shall pay any additional Support Fees and Update Fees to WorkTech that may be payable in connection with such add-on software and upgrades. 5. SERVICE LIMITATIONS WorkTech shall have no liability with respect to the Support Services provided to the Customer, and some or all of the Support Services may not be provided as part of this Agreement, where: (1) Proper backup procedures were not followed; (2) Equipment problems exist and the equipment was not supplied by WorkTech; (3) Software problems exist with WorkTech-supplied products which are caused by equipment not approved by WorkTech; (4) Additional software programs have been added which alter the settings required for the Software or do anything else to alter the working environment required for the Software; (5) Problems resulting from improper use, neglect or abuse by the Customer including, but not limited to, failure to provide a proper operating environment, or water, flood, fire, or wilful damage by any person other than WorkTech; (6) The Software is used for purposes other than for which it was designed and intended; (7) The Software has been modified by personnel not specifically authorized by WorkTech to perform the said modification; (8) Data has been modified by personnel not specifically authorized by WorkTech to perform the said modification; (9) The Software is operated in a manner inconsistent with the procedures described in the Documentation; (IO)A phone is not provided beside the Customer's computer or where the phone beside the computer is not used for support or is not available for use; (II) All Updates were not acquired and installed by the Customer promptly upon their becoming available. For greater certainty, the Customer shall not be relieved of its obligation to pay the fees payable by the Customer under this Agreement in any of the circumstances described in this Section 5. 6. PERIODS OF MAINTENANCE WorkTech will provide telephone support in accordance with this Agreement during WorkTech's regular support hours, except on WorkTech recognized holidays. 7. RESPONSE TIME TO SUPPORT REQUESTS W orkTech's policy is to respond by telephone to a support request within a reasonable time and will, in 90% of such requests, respond within one (1) business hour. The call will be assigned a severity level as agreed upon by the Customer and WorkTech as defined in Part VI of Schedule I. A resolution to the issue depending on the severity level can be expected as follows: (I) Critical Severity: within one (I) business day. (2) Priority Severity: within two (2) business days. (3) Standard Severity: within three (3) business days. 8. CUSTOMER RESPONSIBILITIES (I) The Customer shall notify WorkTech promptly of all perceived Software Defects and malfunctions and provide all details as W orkTech may reasonably require. (2) The Customer shall not make any attempt to correct any such malfunctions or Defects either to the Software or data directly or give authorization to any other party to do so without the prior written consent of Work Tech. (3) The Customer will, at its expense, promptly and duly execute and deliver to WorkTech such further documents and assurances and take such further action as WorkTech may from time to time request in order to more effectively carry out the intent and purpose of this Agreement. 9. TERMINATION In the event that: (a) any amount payable by the Customer under to this Agreement remains unpaid for a period of thirty days or more after becoming due; (b) the Customer is otherwise in default of this Agreement and fails to correct such breach within thirty days of receiving written notice thereof; or (c) the License Agreement is terminated for any reason; -2- SOFTWARE SUPPORT AGREEMEl"T WorkTech may terminate this Agreement by giving thirty (30) days written notice to that effect and effective immediately upon the passing of thirty (30) days from receipt or deemed receipt of such notice by the Customer, without any liability, cost or penalty to WorkTech. In the event that this Agreement is terminated under paragraph 9(a) or 9(b), the Customer shall be obligated to pay to WorkTech any outstanding amounts owing to WorkTech under this Agreement up to and including the date of Termination. In addition to the foregoing the customer shall pay to WorkTech a termination fee equivalent to two months of the annual Support Fee in effect on the date of the termination. Upon the termination of this Agreement for any reason, Sections 10 (to the extent that any amounts are owing on termination), 12, 13, 14 and 15 shall survive such termination. 10. CHARGES, INVOICES AND PAYMENTS The Support Fees set forth in Schedule 2 shall be payable by the Customer to WorkTech in advance beginning on the Commencement Date set forth in Part IV of Schedule I for the first Billing Period and on the first day of each subsequent Billing Period. Fees for add-ons or special modifications beyond the Updates provided by WorkTech as part of the Support Services ("Additional Fees") shall be charged at WorkTech's then current rates for labour, travel and material. Additional Fees shall be invoiced upon the completion of the applicable service. All labour charges shall be billed at a twelve minute minimum and shall be computed to the nearest twelve minutes over the twelve minute minimum for services performed in addition to Support Services. Any invoices not paid within thirty (30) days from the date of the invoice shall incur interest at the rate of 2% per month from the date of the invoice until paid in full. 11. RATE CHANGES WorkTech reserves the right to make adjustments to the rates for Support Fees, Update Fees and Additional Fees from time to time. WorkTech shall limit annual increases to not more than 10% of the Support Fees described in Schedule 2 of this Agreement. 12. TAXES The fees payable under this Agreement are exclusive of any taxes, duties, customs or levies. The Customer shall payor reimburse WorkTech for all federal, provincial, local, sales, use, privilege or property taxes, or any similar amount, based on the fees payable under this Agreement or based on any service provided hereunder, whether such taxes are now or hereafter imposed under the authority of any federal, provincial, local or other taxing jurisdiction. 13. LIMITATION OF LIABILITY WorkTech shall exercise all reasonable efforts in performing its obligations hereunder, but shall not be liable for delay or failure to provide services hereunder due to causes beyond the reasonable control of Work Tech, including but not limited to, causes due to acts of God, goverrunent and delays due to weather. The sole and exclusive remedy for any breach of this Agreement by WorkTech and the sole remedy for WorkTech's liability of any kind, including liability for negligence, with respect to WorkTech's obligations under this Agreement shall be limited to monies actually paid by the Customer to W orkTech for the services provided hereunder. IN NO EVENT SHALL WORKTECH BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES HAS BEEN COMMUNICATED TO WORKTECH AND REGARDLESS OF WHETHER WORKTECH HAS OR GAINS KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST REVENUE, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES M'ID/OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT. 14. ARBITRATION All disputes of every kind and nature between the parties arising out of or in connection with this Agreement shall be submitted to binding arbitration in accordance with the provisions of Section 10 of the License Agreement. - 3- SOFTWARE SUPPORT AGREEMENT 15. OTHER (1) The Customer agrees that all Software (including, without limitation, all Updates, special add-ons and custom programming performed by WorkTech) shall be subject to Section 4.1 of the License Agreement and that the Customer shall take all appropriate steps in order to ensure that WorkTech's intellectual property rights and copyright in connection with all such Software are protected. (2) This Agreement shall be governed by and construed in accordance with the laws of the province in which the Customer is located as set forth in Part III of Schedule I as of the effective date of this Agreement, and the laws of Canada applicable therein. (3) This Agreement together with the Schedules hereto constitute the complete and exclusive statement of the Agreement between WorkTech and the Customer with respect to the maintenance and support of the Software licensed pursuant to the License Agreement, and all previous representations, discussions, and writings, with respect to the support and maintenance, are merged in and superseded by this Agreement. No modifications, amendments, or supplement to this Agreement shall be effective for any purpose unless in writing and signed by WorkTech and the Customer. Only an officer or Director of Work Tech by written agreement has the power and authority to amend this Agreement on behalf of WorkTech. (4) Any notice required or permitted under this Agreement shall be given in accordance with Section 14.5 of the License Agreement and any party may give notice of a change of address in the manner stated in Section 14.5. (5) This Agreement shall enure to the benefit of and be binding upon the successors and assigns of Work Tech and the successors and permitted assigns of the Customer. (6) Any provision of this Agreement which is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability in the jurisdiction without invalidating the remaining provisions hereof, and any such unenforceability in that jurisdiction shall not render unenforceable such provision in any other jurisdiction. (7) In the event WorkTech obtains judgment against the Customer and the laws of the jurisdiction in which judgment is obtained permit, the amount of such judgment shall bear interest at the rate which is the lesser of the rate described in Section 10 and the maximum permitted by law. (8) This Agreement or any part thereof may not be assigned by either WORKTECH or the CUSTOMER without the prior written consent of the other party. (9) WorkTech reserves the right to appoint in its sole discretion representatives to be responsible for the provision of all or any part of the Support Services. (10) If either party should waive any breach or default of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach or default of the same or any other provision hereof; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that has or may have hereunder operate as a waiver of any breach or default by the other party. (11) The section headings in this Agreement are intended solely for convenience; they are not part of this Agreement and shall not affect its construction. Accepted by the Municipality of Clarington Accepted by WorkTech Signature Signature -4- SOFTWARE SUPPORT AGREEMENT Schedule 1 Support Details Part I - Effective Date: December 1,2005 (Date of Software Installation) Part II - Billing Period: One year - except the initial billing shall be for the period December I, 2006 (Date ofInstallation) to December 31,2006 (and the amounts listed in Schedule 2 shall be reduced proportionately). Part III - Customer Address: Municipality of Clarington 40 Temperance Street Bowmanville, Ontario Part IV - Commencement Date: January 1,2006 (First billing date for the period stated in Part II) Part V - Initial Renewal Date: January 2, 2007 (Date immediately following the I-year billing period starting from the Commencement date in Part IV) Part VI - Call Severity Level Definitions (I) Critical Severity - The material function of a licensed product is (i) Inoperable and cannot be restarted and/or (ii) Subject to intermittent failures occurring so frequently they render the function inoperable and/or (iii) Having a substantial effect on business operations, with no workaround available. (2) Priority Severity - Issue does not have an innnediate effect on business operations. A wotkaround may be available, which may be labour-intensive or cost-prohibitive over a long period of time, but could be an acceptable short-term solution. (3) Standard Severity - Issue does not tequire immediate attention to maintain system operation such as: (i) a program is not working but a workaround is available and/or (ii) clarification or gnidance is needed on how to use the documentation or online help and/or (iii) the issue occurs in a test environment. - 5 - SOFTWARE SUPPORT AGREEMENT Schedule 2 Support Specifications and Fees Annual Maintenance and Support ( 18% of software value) Annual Maintenance and Support (18% of$19,000) $3,420 - 6 -