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HomeMy WebLinkAbout2008 CON Kaseya Corporation - Help Desk SoftwareAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND KASEYA CORPORATION THIS AGREEMENT is entered into this 17th day of September, 2008, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Kaseya Corporation, a Delaware Corporation (the "CONSULTANT"). RECITALS WHEREAS, the CITY desires to employ CONSULTANT to provide Installation and Configuration of Help Desk Software and Training. WHEREAS, the CITY has determined that the CONSULTANT is a Help Desk Implementor and is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY hereby agrees to engage the CONSULTANT and the CONSULTANT hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services required hereunder will be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. SCOPE OF SERVICES. The CONSULTANT will perform services as set forth in the attached Exhibit "A", and shall furnish the other items described in Exhibit "A" in accordance with the terms set fort in the attached Exhibit "B". The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15 % from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Ron Williams hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Joyce Morin thereby is designated as the Project Director for the CONSULTANT. 4. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit " A "shall not exceed the schedule given in Exhibit " A " (the Base amount) without prior written authorization from the IT Manager. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit " A "as determined by the CITY. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the CONSULTANT and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the City or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 6. LENGTH OF AGREEMENT. Completion dates or time durations for specific portions of the Project are from September 17, 2008 to November 17, 2008 for software installation and configuration. The CITY shall have the option to renew this Agreement for three (3) terms of one (1) year each for annual maintenance to begin after the first year. 7. Reserved 8. INDEPENDENT CONSULTANT. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employee of the CITY and are not entitled to any of the rights, benefits, or privileges of the CITY's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT's employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or subCONSULTANTs, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONSULTANT with its subCONSULTANT(s) shall require the subCONSULTANT to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT's employees except as herein set forth, and the CONSULTANT expressly agrees not to represent that the CONSULTANT or the CONSULTANT's agents, servants, or employees are in any manner agents, servants or employees of the CITY, it being understood that the CONSULTANT, its agents, servants, and employees are as to the CITY wholly independent 2 City's Standard Agreement — June 2008 revision CONSULTANTs and that the CONSULTANT's obligations to the CITY are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT, and each of its subCONSULTANTs, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 12. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, the CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT's professional performance or the furnishing of materials or services relating thereto. 13. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a 3 City's Standard Agreement — June 2008 revision third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 15. 15. INDEMNIFICATION, HOLD HARMLESS AND LIMITATION OF WARRANTY AND LIABILITY. The CONSULTANT agrees to defend, indemnify, and hold harmless the City of National City, its officers and employees, against and from any and all third party liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT's negligent performance of this Agreement. Except as explicitly set forth herein, all Services are provided "as is" and "with all faults" and without any warranty and CONSULTANT disclaims all warranties express, implied, or statutory, including without limitation, any of merchantability, or of fitness for any particular purpose. CITY agrees that the following damages are excluded and that CITY will not be entitled to any of them: all special, incidental, punitive, and consequential damages and damages for loss of profits or data. The foregoing damages will be excluded even in the event of the fault, tort (including negligence), strict or product liability, and/or breach of contract of CONSULTANT, and even if it has been advised of the possibility of such damages and even if any remedy fails of its essential purpose. Except for damages that are required by law to be paid and cannot be limited by contract, CITY agrees that all damages are excluded except for the direct damages that are actually incurred by you up to the amount of a refund of the price that CITY actually paid for the applicable Services regardless of the form of action or claim (e.g., contract, warranty, tort, strict liability, negligence, fraud, or other legal theory). 16. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. 17. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its subCONSULTANTs, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: ❑ A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). 4 City's Standard Agreement — June 2008 revision C. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the professional liability and workers' compensation policies, shall name the CITY and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY's Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. K. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or 5 City's Standard Agreement — June 2008 revision relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONSULTANT. During said 60-day period the CONSULTANT shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT's breach, if any. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: To CONSULTANT: Ron Williams IT Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 Joyce Morin Kaseya North America 2200 Clarendon Blvd Suite 1125 6 City's Standard Agreement — June 2008 revision Arlington, VA 22201 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk. The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 21 by the CONSULTANT. 23. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. 7 City's Standard Agreement — June 2008 revision H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Entire Agreement. This Agreement applies only with respect to the professional services set forth on Exhibit A and with respect to such professional services supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof and no subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. The parties agree that CONSULTANT'S click-accpet license set forth as Exhibit B will govern the other purchases made by CITY. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: George H. iser, III City Attorney KASEYA CORPORATION (Corporation - signatures of two corporate officers) By: (Na e) By: Frank I. Hoppe (Print) General Counsel (Title) (Na Coleman White (Print) CFO (Title) 8 City's Standard Agreement — June 2008 revision EXHIBIT A: SCOPE OF SERVICES Install and Configure Help Desk Software Provide training(2 days totally 16 hours) for Help Desk Staff Cost for 2 days (16 hours) of implementation and training of Help Desk Staff: $4,000. CITY's representative must be available to Kaseya during the entire engagement. The representative must have sufficient authority to schedule testing and address any issues that may arise. CITY will provide resources and information as needed or requested to enable Kaseya to sufficiently perform the Services. This will include access to personnel who can provide information related to the business operations, organizational structure, network architecture, security controls, disaster recovery and general daily operational processes and procedures. CITY is solely responsible for providing access to and coordinating any required interviews or testing with CITY's third parties or service providers. CITY agrees to provide CONSULTANT access to CITY's computers and information systems via remote data communications with proper authorization by CITY and/or by visits to CITY's site as reasonably required to perform any Services. All supplies, information and computer resources, including software licenses (other than software supplied by CONSULTANT), required to perform the Services shall be provided to CONSULTANT at CITY's expense. Travel and expenses are not included in the listed fees and will be billed separately. CONSULTANT will use commercially reasonable efforts to travel as efficiently and cost effective as possible given timing and travel requirements. Valid expenses typically include, but are not limited to parking, meals, lodging, photocopying, communication costs, transportation, gasoline, cabs, airfare, mileage, and automobile rental. CITY agrees to pay CONSULTANT for a half day minimum for remote Services and a 2 day minimum for onsite Services. Furthermore, CITY agrees that if Services are not able to be performed due to CITY failing to meet its obligations hereunder, CITY shall pay CONSULTANT for the greater of the actual time spent or the minimum. Once dates for performance are scheduled, CITY agrees to pay for any CONSULTANT related expenses to accommodate any CITY requested, initiated or causes changes. 9 City's Standard Agreement —June 2008 revision Kaseya cop Kaseya PO Box 100146 2200 Clarendon Blvd. Suite 1125 Arlington, VA 2221C Kaseya Professional Edition Quotation for: City of National City for Kaseya Kaseya Professional Edition Count Each Amount VSA/Agent Licenses 350 $120.00 $42,000.00 Modules Included: Computer Audit & Discovery Remote Desktop Management Patch Deployment & Management Help Desk & Trouble Ticketing LAN & Computer Monitoring, Policy Management Software Deployment & Scripting Reporting Value Added Modules: Back Up and Disaster Recovery -Server Licenses Back Up and Disaster Recovery -Workstation Licenses End Point Security (per end point year subscription) 0 $24.00 $0.00 User State Management $60.00 $0.00 Total License Value: 0 $ 1 ,000.00 $0.00 0 $50.00 $0.00 $42,000.00 (Less Special Discount ($23,500.00) Total Software $18,500.00 Professional Services: Bootcamp - 1 course per person 0 $750.00 $0.00 Ouickstart 0 $2,000.00 $0.00 Consulting - Per day 2 $2,000.00 $4,000.00 Total Software & Services $22,500.00 Covenants & Conditions This is a software license purchase (NOT a subscription). Updates to the product and updates to the patch management database are provided as part of maintenance. Maintenance (Elective) is 20% annually on the invoice price. As part of this proposal, Maintenance and Support will be included for the first year. Maintenance and Support Year Two: 10 $3, /00.00 City's Standard Agreement — June 2008 revision EXHIBIT B: CLICK ACCEPT AGREEMENT IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND MAINTAIN A COPY FOR YOUR RECORDS. BY DOWNLOADING, INSTALLING, ORDERING, RECEIVING OR USING KASEYA OR KASEYA- SUPPLIED SOFTWARE OR SERVICES, OR BY CLICKING THE "ACCEPT" BUTTON DISPLAYED AS PART OF THE PROCUREMENT, INSTALLATION, OR UPGRADE PROCESS, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, THE DOCUMENTATION, AND THE OTHER ITEMS REFERENCED HEREIN AND THEREIN (COLLECTIVELY, THE "AGREEMENT"), ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THE AGREEMENT. YOU MUST ACCEPT THE AGREEMENT BEFORE YOU CAN DOWNLOAD, INSTALL, ORDER, RECEIVE OR USE KASEYA OR KASEYA-SUPPLIED SOFTWARE OR SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN KASEYA IS UNWILLING TO OFFER, LICENSE OR SELL THE KASEYA OR KASEYA-SUPPLIED SOFTWARE OR SERVICES TO YOU AND (A) YOU MAY NOT DOWNLOAD, INSTALL, ORDER, RECEIVE OR USE THEM, AND (B) WITH RESPECT TO ANY SOFTWARE YOU MAY RETURN THE SOFTWARE (INCLUDING ANY UNOPENED CD PACKAGE AND ANY WRITTEN MATERIALS) FOR A FULL REFUND, OR, IF THE SOFTWARE AND WRITTEN MATERIALS ARE SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND; IT BEING AGREED THAT YOUR RIGHT TO RETURN AND REFUND WITH RESPECT TO ANY SOFTWARE EXPIRES 30 DAYS AFTER PURCHASE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL END USER PURCHASER. THE AGREEMENT IS BETWEEN THE KASEYA RELATED ENTITY THAT INVOICES FOR THE APPLICABLE SOFTWARE OR SERVICE ("KASEYA," "WE," OR "US") AND THE INDIVIDUAL OR LEGAL ENTITY DOWNLOADING, INSTALLING, ORDERING, RECEIVING OR USING KASEYA OR KASEYA-SUPPLIED SOFTWARE OR SERVICES, OR THAT CLICKS THE "ACCEPT" BUTTON DISPLAYED AS PART OF THE PROCUREMENT, INSTALLATION, OR UPGRADE PROCESS ("CUSTOMER," "YOU," OR "YOUR"). IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS "CUSTOMER," "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. 1. DEFINITIONS: All capitalized terms defined in the Agreement have the meanings as defined herein. In addition, as used in the Agreement the following terms shall be defined as set forth below: "Affiliates" means any legal entity that a party owns, which owns the party, or which is under common ownership with the party. "Ownership" means, for the purposes of this definition, more than 50% ownership. 1.2. "Affiliated Entities" means Kaseya and any licensors and suppliers providing any part of the Software or Services; and all subsidiaries, Affiliates, officers, employees, consultants, and agents of any of the foregoing. 1.3. "Authorized Machine" means a machine in the Territory meeting the license restrictions herein and the minimum requirements set forth in the Documentation and for which Customer has paid the required fees. 1.4. "Customer Data" means all Customer data, information and materials that are uploaded by or for you or that is accessed by Kaseya in connection with your use or Kaseya's provision of the Software or Services including without limitation personal information, photographs, caricatures, illustrations, designs, icons, articles, audio clips, trademarks, logos, and video clips but does not include Submissions. 1.5. "Documentation" means written information (whether contained in catalogs, maintenance policies, user or technical manuals, training materials, support policies, specifications, copyright attributions or 11 City's Standard Agreement — June 2008 revision otherwise) pertaining to the Software or Services and made available by Kaseya with the Software or Services in any manner (including on CD -Rom, via email, on the Website or other on-line format) as updated or amended by Kaseya from time to time and includes any Order Form(s) or SOW(s). 1.6. "Hosted System" means a computer system on which Kaseya Server Software is installed and made available for remote use by third parties (whether such use is internal only or involves the provision of services by the third party to others). 1.7. "Kaseya Server" means the core Kaseya Software platform that is required to enable other Software components to function. 1.8. "Marks" means Kaseya or Kaseya licensed trademarks, logos, symbols, and names. 1.9. "Order Form(s)" means the Kaseya form evidencing the Customer order, and which may specify, among other things, the number of Software or Service licenses and other services purchased, the applicable fees, the billing period, the Installment Schedule, Term and other items, each such Order Form to be incorporated into and to become a part of the Agreement; and depending on the Software or Services ordered, the Order Form may be completed online, may be Customer's invoice or billing statement, or may be an SOW. 1.10. "Service(s)" means the Kaseya services set forth in the applicable Documentation and also includes such Documentation. 1.11. "Software" means Kaseya or Kaseya-distributed software including any software provided to access and use Services and the associated Documentation. 1.12. "SOW" means a statement of work, work order, or other similar document executed by Kaseya and Customer which sets forth Services to be performed by Kaseya. 1.13. "Territory" means the geographic region where Software and Services may be deployed and used for which Customer has paid the applicable fees. 1.14. "Third -Party Client" means a person or entity to whom you provide information technology services through use of Software or Services where such services provided by you have sufficient added value so that in each case: (i) the Third -Party Client would not reasonably purchase or otherwise acquire such services for the purpose of obtaining the Kaseya Software or Services; and (ii) your services provided in direct conjunction with the Software or Services cost the Third -Party Client a material amount above what such Software or Service would cost if purchased directly from Kaseya. 1.15. "Upgrades" means a new version of any of the Software containing substantial new code, enhanced functionality or performance, or that otherwise is meant by Kaseya to improve or to materially add to, delete or otherwise modify any aspect of the any of the Software. 1.16. Updates means a new version of any of the Software containing bug fixes, new hot -fix feature additions and hot -fix feature enhancements or other minor modifications Software which is not deemed by Kaseya to be an Upgrade. 1.17. "Website" means http://www.kaseva.com and related Kaseya micro-site(s), or regional or in country websites applicable to Customer or the applicable Software or Services. 2. LICENSE. The Software and Services are the property of Kaseya or its licensors, and are protected by law, including applicable copyright law. Although Kaseya or its licensors continue to own the Software and Services, after Customer's acceptance of the Agreement, Customer will have certain rights to use the Software and Services during the Term as set forth in the Agreement. Conditioned upon compliance with the terms and conditions of the Agreement, Kaseya grants to Customer a nonexclusive and nontransferable license to download, install and use the Software and Services for which Customer has paid the required fees consistent with the Documentation. In order to use the Software or Services, Customer may be required to input a registration number or product 12 City's Standard Agreement — June 2008 revision authorization key and register online to obtain the necessary license key or license file. The Software and Services may automatically deactivate and become non -operational in whole or in part at the end of the Term. 3. LICENSING MODELS. As set forth in the Documentation, Kaseya offers different type of licensing models (sometimes in combination with each other) such as the following: 3.1. Paid Up. Under the paid up license model ("Paid Up"), once the applicable Software has been fully paid for, and subject to any applicable Opt Out and Conversion privileges, ongoing hosting fees, or conversion or other applicable fees, and subject to the terms and conditions of the Agreement, Customer owns the right to indefinitely use the applicable Software. 3.2. Subscription. Under the subscription model ("Subscription"), the Customer has the right to use the applicable Software or Service subject to the terms and conditions of the Agreement, only for the Term. 3.3. Standalone. Under the standalone model ("Standalone"), the Software or Services are not hosted by Kaseya. 3.4. Hosted. Under the hosted model ("Hosted"), the Software or Services are hosted by Kaseya. 3.5. Combination and Conversion. If set forth in the Documentation, different models may be combined (i.e. Paid Up and Hosted) and in such case fees are additive to the fees otherwise due except as otherwise set forth in the Documentation. Licenses under one model or models may not be converted to another model unless specifically set forth in the Documentation and is subject to applicable conversion or additional fees. 4. RESTRICTIONS. Customer agrees to the following restrictions: 4.1. Authorized Machines. The maximum number of Authorized Machines on which the Software may be installed and used is set forth in the Documentation based upon the edition of the Software or Services for which you have paid the required fees. You understand that you are only able to interact with Authorized Machines if a copy of the applicable Kaseya Software has been loaded onto that machine. You may only install and use Kaseya Server Software on Authorized Machines owned by you or your Affiliates. You may install and use copies of other Kaseya Software on Authorized Machines owned by you or your Affiliates and on third -party Authorized Machines owned by your Third Party Clients; provided that you agree that you will not otherwise make the Software or Services available or accessible for use by any third person or entity other than your Affiliates or Kaseya, either by means of a Hosted System or otherwise. Subject to the foregoing limitations and except as otherwise set forth in the Documentation, a copy of any Kaseya Software that you install on one Authorized Machine may be moved by you to a different Authorized Machine, it being understood that once you have installed and are using the maximum number of copies of the Kaseya Software, you will not be able to move Kaseya Software from an Authorized Machine without deleting the Software or any related account (i.e. on the Kaseya Server) attributable to that Authorized Machine thereby eliminating further use of any Kaseya Software on that machine. 4.2. General Restrictions. You acknowledge that the Software and Services contain trade secrets of Kaseya or its suppliers or licensors. You agree not to disclose, provide, or otherwise make available trade secrets contained within the Software and Services in any form to any third party and you further agree to implement reasonable security measures to protect such trade secrets. You agree not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly set forth in the Agreement, you may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. You shall not (A) create Internet "links" to the Software or Service or "frame" or "mirror" any Software or Service on any other machine; or (B) reverse engineer or access the Service or Software in order to (1) build a competitive product or service, (2) build a product using similar ideas, features, functions or graphics of the Software or Service, or (3) 13 City's Standard Agreement — June 2008 revision copy any ideas, features, functions or graphics of the Software or Service. IF YOU ARE NOT AN EMPLOYEE, INDEPENDENT CONTRACTOR, OR INVITEE OF A CUSTOMER, YOU ARE NOT AUTHORIZED TO INSTALL OR OTHERWISE USE THE SOFTWARE OR SERVICES. 4.3. Territory. Customer will be billed in the currency and under pricing schemes applicable to the Territory for the Software or Service. Customer acknowledges and agrees that it will not deploy or use the Software or Services on any machines which are located outside of the Territory. Kaseya has agreed to special pricing which would not otherwise be applicable based on Customer's agreement to use the Software and Services only in the Territory. Therefore, if Customer deploys or uses the Software or Services outside the Territory, Customer shall be deemed to have purchased the rights to use the Software or Services corresponding to Customer's deployment or use and Customer shall pay Kaseya for the entire Term the list price applicable to the geographic region(s) where such Software or Services are deployed or used including any increased amounts above the original amount(s) paid by Customer. 4.4. License Keys. You understand and agree that the Software and Service functionalities are enabled through the use of "license keys" issued by Kaseya. For so long as you are not in breach or default with respect to any of your obligations to Kaseya, Kaseya will provide you with all license keys necessary to enable you to make normal use of the Software or Services that you have acquired. You agree that Kaseya may disable or refuse to renew or replace license keys, rendering some or all aspects of the Software or Services unusable by you, at any time that you are in breach or default with respect to any of your obligations to Kaseya, or upon any termination of the Term applicable to the Software or Services. 4.5. Automated Tracking. You understand that the Software and Services are programmed to track the number of deployed copies of Software, Authorized Machines, users and other usage and user related data, and you consent to such operations. You at all times will enable, and will not hinder, impede, alter, prevent, or otherwise distort, the operation of such tracking and reporting functions. 4.6. No Competitors. You may not access or use the Software or Services if you are a direct competitor of Kaseya, except with Kaseya's prior written consent. In addition, you may not access or use the Software or Service for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. 4.7. Proprietary Rights. You acknowledge that Kaseya is the exclusive owner of all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other proprietary rights relating to the Software and Services. 4.8. Restricted Rights. The Software is provided to non -Department of Defense agencies with RESTRICTED RIGHTS and its supporting Documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the government is subject to the restrictions as set forth in subparagraph "C" of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19. In the event this transaction is with a Department of Defense agency, the government's rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202. Manufacturer is Kaseya International Limited, Channel House, 4th Floor, Green Street, St. Helier, Jersey JE2 4UH, Channel Islands. 4.9. License Subject To Compliance. Your license to use the Software and Services is and shall at all times remain subject to your compliance with all of the terms and conditions of the Agreement, and shall terminate without notice by Kaseya to you in the event of a breach by you of any of your obligations under the Agreement or in the event of any infringement by you of any patents, copyrights, trade secrets or trademarks of Kaseya. 5. CHARGES AND PAYMENT. 14 City's Standard Agreement — June 2008 revision 5.1. General Requirement. Customer agrees to pay Kaseya when due the applicable amounts in accordance with the Documentation. Customer agrees to be responsible for paying for all fees for the entire Term, regardless of whether such Software or Services are actively used. You will cause those who access or use the Software and Services by or through you or your accounts to comply with the terms and conditions of the Agreement and, except where caused by Kaseya's gross negligence, to be responsible for payment for all such activity regardless of whether authorized by Customer or not. This section and all of its subsections apply in all situations in which you directly pay Kaseya. If you pay a company other than Kaseya, then the charges and billing terms are as stated by the other company. Customer is responsible for all incidental charges related to using the Software or Services including, for example, charges for Internet access, third party software licenses mobile text messaging, or other data transmission. All pricing terms are confidential, and you agree not to disclose them to any third party. 5.2. Late Payments. Except to the extent prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1.5% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect any amounts. You must pay for all reasonable costs we incur to collect any past due amounts. These costs may include reasonable attorneys' fees and other legal fees and costs. We may suspend, cancel or otherwise terminate your rights with respect to the Software or Services if you fail to pay in full on time, including any failure to make an Installment or Subscription payment. 5.3. Upfront Pricing. lf, pursuant to the Documentation, Customer is paying upfront for all fees due for the Software or Service for the Term, except as required by law or as otherwise set forth in the Agreement, no refunds, opt outs or conversion are available and once an Order Form is accepted by Kaseya, Customer agrees to pay all applicable license fees for the Term in full up front. 5.4. Installment and Subscription Pricing. If, pursuant to the Documentation, Customer is paying installments ("Installments") under an installment schedule ("Installment Schedule") or on a Subscription basis, except as required by law or as otherwise set forth in the Agreement, no refunds, opt outs or conversion are available and once an Order Form is accepted by Kaseya, Customer agrees to pay the initial deposit and all applicable Installments for the full Installment Schedule or all Subscription fees for the full Subscription Term. 5.5. Opt Out and Conversion Pricing. If, pursuant to the Documentation, Customer is paying under an Installment Schedule with opt -out and conversion rights, except as required by law or as otherwise set forth in the Agreement, no refunds are available and once an Order Form is accepted by Kaseya, Customer agrees to pay the initial deposit in full and all Installment payments until such time as Customer opts out in accordance with the following: 5.5.1. Customer may elect at any time to cease making Installment payments with respect to all Software and Services purchased pursuant to this model, in which case Customer forfeits its rights to the original licensing package(s) ordered. 5.5.2. Any opt out election shall only be effective with respect to Installments due the first full billing cycle after Kaseya receives written notice at hillint;(_i;kasya.com. The Customer must opt out with respect to all Software or Services for which opt out is available as partial opt -outs are not allowed. 5.5.3. Customer will obtain a Paid Up license for the edition of the Software that Customer would have been able to obtain based on the standard list price at the time of original purchase, if any, for the total of all license fees paid with respect to original licensing package ordered. All discounts, promotions or other price reductions are forfeited in the event of an opt out and conversion is based solely on list price of the new licensing package at the time of original purchase. 5.5.4. If Customer makes such an opt out election, Customer's failure to pay future Installments under the Installment Schedule will not be treated as a breach or default; but Customer will not be entitled to any refund of any fees that Customer has paid, even if (a) the paid amount does not reach the list price for any licensing package; or (b) exceeds the list price for a licensing package but does not reach the next licensing package. The granting of the licenses above, if any, will be Kaseya's sole 15 City's Standard Agreement — June 2008 revision obligation and Kaseya will be entitled to retain all payments received and shall be entitled to be paid all amounts due Kaseya prior to the opt out as consideration for the Customer's use of the Software prior to conversion and customer's election of the opt out pricing option and not as a penalty. Customer will remain subject to all of the terms and conditions of the Agreement, and will remain obligated to pay Maintenance or other charges unless a timely election not to renew Maintenance is made. 5.5.5. Opt Out and Conversion Pricing is not available for Software or Services purchased on a Subscription basis. 5.6. Subscription Pricing and Changes. With respect to Software or Services on a Subscription basis, Customer agrees that Kaseya may from time to time may either increase or decrease the fee(s) for all or any portion thereof, and that any such adjustment, when made by Kaseya, shall apply effective at the expiration of the current Term to the applicable fees that Customer must pay. Customer's sole remedy in such a case, if it does not wish to pay the adjusted fees, is to elect to terminate the Software or Service at the expiration of the current Term. If Customer adds Subscription Software or Services, they will be coterminous with the preexisting Term for the applicable Software or Service and if added in the middle of a billing month will be charged in full for that billing month. Reductions will be effective at the end of the current Term. No refunds or credit adjustments will be given. 5.7. Payment method; Credit Card Authorization. You must provide Kaseya with valid credit card or approved purchase order information. Kaseya may require, and Customer agrees that such fees be paid by means of credit card payments or other forms of electronic funds transfers, and to implement measures enabling Kaseya to initiate such electronic funds transfers. If you are paying by credit card, only valid credit cards acceptable to Kaseya may be used by you to make payment, and all refunds will be credited to the same card. Until all amounts due have been paid in full, you hereby authorize Kaseya to charge any credit card provided by you to Kaseya, all amounts due under the Agreement from time to time, including without limitation, ongoing Subscription and Installment and other payments, taxes, and additional fees. If the card cannot be verified, is invalid, or is not otherwise acceptable, the Software and Services may be terminated, deferred, suspended, or cancelled by Kaseya without notice and Kaseya may generate invoices for payment. You agree to update your card information to keep it current at all times and that Kaseya may submit charges for processing even if the card appears to have expired. A credit card authorization form must be completed if you want to pay by credit card. All prices are given and must be paid in the currency listed. 5.8. Taxes. Kaseya's fees are exclusive of all taxes, fees, levies, duties or similar charges arising out of or relating to the Agreement, and you shall be responsible for payment of all such taxes, fees, levies, duties or similar fees, excluding only taxes based solely on Kaseya's income. 5.9. Conversion of Trial Period Offers. You may have received a limited time of free Software or Service or some other trial period offer. Unless we notify you otherwise, if you are participating in any trial period offer, you must cancel the service by the end of the trial period to avoid incurring charges. If you do not cancel, and we have informed you of automatic be conversion into a paid Software or Service at the end of the trial period, then you authorize us to charge your payment method for the Software or Service. 5.10. Refund Policies. All payment obligations are non -cancelable and all amounts paid are nonrefundable. Unless otherwise provided by law or in connection with any particular service offer, all charges are non-refundable, and the costs of any returns will be at your expense. 5.11. Invoices; Errors. We may only provide you with a single invoice and we may provide it via electronic means including via an online billing statement. This may be the only billing statement that we provide. If you request a paper copy, we may charge you a retrieval fee. If we make an error on your invoice, we will correct it promptly after you tell us and we investigate the charge. YOU MUST TELL US WITHIN NINETY (90) DAYS AFTER AN ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER 1N YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). YOU RELEASE US FROM ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR THAT YOU DO NOT REPORT TO US WITHIN (90) DAYS AFTER THE 16 City's Standard Agreement — June 2008 revision ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). If you do not tell us within this time, we will not be required to correct the error. We can correct billing errors at any time. 6. TERM AND TERMINATION. 6.1. Term and Auto -Renewal. Under the Paid Up model, the Agreement and the rights granted herein shall remain effective until terminated as set forth in the Agreement. Under the Subscription Model, the initial term shall be as set forth in the Documentation. Upon the expiration of the initial term, the Subscription will automatically renew for successive renewal terms equal in duration to the initial term at Kaseya's then current fees. For month to month Subscriptions, either party may terminate any such Subscription, effective only upon the expiration of the then current term, by notifying the other party in writing at least five (5) business days prior to the expiration date of the current term. For all other Subscriptions, either party may terminate any such Subscription, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) days prior to the expiration date of the current term. With respect to each Software or Service item, the current term shall be referred to as the "Term" herein. 6.2. Termination. In addition to the rights otherwise set forth in the Agreement and not in limitation thereof, Kaseya may terminate the Agreement and the rights granted herein in whole or in part upon written notice to Customer in the event of a material breach by Customer of the Agreement, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within thirty (30) days following the Customer's receipt of such written notice. Customer may terminate the Agreement with respect to the affected Software or Service upon written notice to Kaseya in the event of a material breach by Kaseya of the Agreement with respect to such Software or Service, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within thirty (30) days following the Kaseya's receipt of such written notice. Kaseya may deny access to all or part of the Software and Services without notice if you engage in any conduct or activities that Kaseya in good faith believes to be in violation of any of the terms and conditions in the Agreement. Kaseya will have no responsibility to notify you or any third party, of any such denial of access to the Services, nor will Kaseya have any responsibility for any consequences resulting from any such denial of access or lack of notification. Any free, trial or Pre -Release Software or Services may be terminated by either party at any time with or without notice to the other. 6.3. Effect of Termination. In the event of termination, cancellation, expiration or suspension: Customer's rights to use or deploy the Software or Service shall immediately terminate; Customer shall de -install and destroy all copies of Software (including any Documentation) in its possession or control; Customer shall pay Kaseya for all amounts due through the effective date of termination, cancellation, expiration or suspension; all sections of the Agreement other than the license grant in Section 2 shall survive; and except where Customer terminates for Kaseya's breach Customer agrees to pay any future Installment or Subscription payments due for the entire Installment Schedule or Subscription Term, as applicable, as consideration for pricing accommodations and other consideration and as a fair approximation of damages and not as a penalty. Kaseya shall have no obligation to notify any third party of a termination of the Agreement. You agree to implement such actions as Kaseya reasonably may specify to assure that third parties are not able to access the Software and Services following any termination of the Agreement. Except for a termination for cause by Kaseya, for 30 days after termination of the applicable Term, Kaseya will continue to make available to you any Customer Data or other reports that are normally made available through the Software or Service. Other than as set forth in the preceding sentence, Kaseya has no obligation to provide any information (including Customer Data) to Customer in any specific format. Kaseya reserves the right to withhold, remove and/or discard Customer Data or other reports without notice for any breach, including, without limitation, your non-payment. 7. PRIVACY & SECURITY; CUSTOMER DATA; DISCLOSURE 7.1. Privacy Statement. The Kaseya Privacy Statement can be accessed at the Website via http:!/www.kaseva.com/companv!privacy-statement.aspx ("Privacy Statement"). Notwithstanding the amendment process set forth in these Terms and Conditions, the Privacy Statement may be updated as 17 City's Standard Agreement — June 2008 revision set forth in the Privacy Statement. You hereby acknowledge that you have accessed and read the Privacy Statement and that it is a part of the Agreement. Personal information collected in connection with the Agreement may be stored and processed in the United States or any other country in which Kaseya or its Affiliated Entities maintain facilities or personnel, and you consent to any such transfer of information outside of your country. 7.2. Account Information and Data. Kaseya does not claim ownership of any Customer Data. You hereby grant to Kaseya a nonexclusive, worldwide, royalty -free, fully -paid, transferable license to host, cache, record, copy, and display Customer Data solely for the purpose of providing the Software or Services. Except as set forth in the Agreement, as between you and Kaseya, you retain all right, title, and interest in and to the Customer Data. You, not Kaseya, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Kaseya shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Kaseya reserves the right to refuse to post or to remove any information or materials, in whole or in part, that Kaseya believes in good faith to be unacceptable, undesirable, or in violation of the Agreement. Except for a termination for cause by Kaseya, for 30 days after termination of the applicable Term, Kaseya will continue to make available to you any Customer Data or other reports that are normally made available through the Software or Service. Other than as set forth in the preceding sentence, Kaseya has no obligation to provide any information (including Customer Data) to Customer in any specific format. Kaseya reserves the right to withhold, remove and/or discard Customer Data or other reports without notice for any breach, including, without limitation, your non-payment. 7.3. Representations and Warranties About Customer Data. You represent, warrant and covenant that you: (A) are the owner or authorized licensee of any and all Customer Data and have the right to grant the rights set forth herein; and (B) will not publish, post, upload, record, or otherwise distribute or transmit Customer Data that: (1) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (2) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti -discrimination, or false advertising); (3) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (4) is harmful to minors or otherwise pornographic; (5) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; (6) is materially false, misleading, or inaccurate; or (7) contains information for which you do not have the right to permit Kaseya to collect and process as set forth in the Privacy Statement. 7.4. Third Party Clients and Responsibility for Accounts Generally. You agree to furnish such information to Kaseya, and to adopt and utilize (and to cause Third -Party Clients to adopt and utilize) such other measures as Kaseya reasonably may prescribe, in order to assure that the Services are furnished by Kaseya pursuant to this Agreement only to Third -Party Clients, if any, to whom you have a contractual obligation to provide such Services. You further agree to adopt and utilize such measures as Kaseya may prescribe in order to enable Kaseya effectively to provide the Services for your benefit to Third -Party Clients. You agree that the security of your account and of any network or system utilized by you is solely your own responsibility. You further agree that if you believe that the security of your account or of any such network or system has been compromised in any way that may implicate or affect Kaseya's provision of the Software or Services, you will notify Kaseya or any designee of Kaseya for such purposes immediately both by email and telephone, and in writing by overnight courier. You agree that if any security violations are believed to have occurred in association with your account or any such network or system that may compromise or adversely affect Kaseya, any of Kaseya's other customers or any subcontractor through whom Kaseya provides any aspect of the Services, Kaseya shall have the right to suspend access to the Software or Services pending an investigation and resolution. You agree not to interfere with the proper operation of any network or system utilized by Kaseya (including but not limited to defeating identification procedures, obtaining access beyond that which you and Third -Party Clients are authorized for, and impairing the availability, reliability, or quality of service for other customers of Kaseya) or with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized 18 City's Standard Agreement — June 2008 revision access. You further agree not to use the Software or Services or knowingly to permit any Third -Party Customer to use the Services for or in connection with any illegal or improper purpose or activities. 7.5. Submissions. You may submit questions or comments to Kaseya from time to time. Kaseya reserves the right to edit and post such questions or comments along with answers, if any. All such communications and any comments, feedback, suggestions, ideas, and other submissions related to the Software and/or Services submitted to Kaseya (collectively, "Submissions") will be and remain Kaseya's property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are hereby assigned (and in the future deemed to be assigned) by you to Kaseya. 8. MAINTENANCE. 8.1. General. Maintenance is provided pursuant to Kaseya's Maintenance Policy which is part of the Documentation ("Maintenance"). Customers who purchase or are otherwise eligible for Maintenance will receive Update and Upgrade Maintenance releases as released by Kaseya for Software covered by a valid Maintenance Subscription. Customer agrees to test any Update or Upgrade in Customer's test environment and will only deploy an Update or Upgrade in Customer's production environment at Customer's sole risk once Customer is satisfied that the Update or Upgrade will not adversely affect Customer. 8.2. Pricing and Purchase. If set forth in the Documentation, Maintenance may be included with the purchase of the Software or Service or may be included for a limited time. Otherwise, Maintenance is only sold on a Subscription basis and may only be acquired through the: (A) Upfront; or (B) Installment pricing options. The installment with opt out and conversion rights pricing option is not available. Unless Customer notifies Kaseya (X) that it is electing to not purchase maintenance at the time of purchase of Software or Services; or (Y) 30 days prior to the expiration of any included Maintenance period, then upon the earlier of: (1) the purchase of the Software or Services that do not have maintenance included, or (2) the expiration of any included Maintenance period, Customer agrees to purchase an annual (or such shorter period if set forth in the Documentation) Maintenance Subscription for the applicable Software or Service. 8.3. All or Nothing. Customer is not required to purchase Maintenance. However, if Customer purchases Maintenance for any Software or Service, Customer must purchase Maintenance for all Software or Service for which Maintenance is not otherwise included. 8.4. Reinstatement. A customer who has elected to discontinue receiving and paying for Maintenance may elect to reinstate Maintenance; however, a reinstatement requires payment by the Customer of all of the Maintenance fees that the customer would have been obligated to pay if the Customer had not discontinued Maintenance plus a reinstatement fee in accordance with the Maintenance Policy. 8.5. Limited Maintenance Release Timing. Although we strive to improve Kaseya's Software and Services, we do not guarantee new Updates or Upgrade releases during any specific period of time. We will make commercially reasonable attempts to notify registered Customers of enhancements to products; however, the best way to learn of new Updates and Upgrades is to periodically visit the Website. 9. TRIAL AND PRE-RELEASE SOFTWARE AND SERVICES. 9.1. General. Customer acknowledges and agrees that any Pre -Release Software and Services (defined as any Software or Services that are not generally released to the public for purchase) may not be at the level of performance or compatibility of a final, generally available Software or Service offering. Furthermore, you understand that, for promotional purposes, from time to time, Kaseya may enable new functionality for a trial period to show you what is available or new in the Software and Services, and you agree to accept these new functionalities on a trial basis as they are provided to you. Pre - Release Software or Services may not operate correctly and may be substantially modified prior to commercial shipment, or withdrawn in whole or in part. All Pre -Release and Software and Services offered on a trial basis are provided "AS IS" without warranty of any kind. The entire risk arising out 19 City's Standard Agreement — June 2008 revision of the use or performance of Pre -Release or trial Software or Services remains with Customer. In no event shall any Kaseya Affiliated Entity be liable for any damage whatsoever arising out of or related to any Pre -Release or trial Software, Services even if Kaseya has been advised of the possibility of such damages and Customer's sole and exclusive remedy will be to terminate use of the Pre -Release or trial Software or Service. 9.2. Submissions, Confidentiality, and Releases. Customer agrees to provide Submissions with respect to Customer's use of Pre -Release and trial software including with respect to any problems, issues or ideas for enhancements all of which shall be deemed Submissions. Customer agrees to keep all Submissions and other information relating to Pre -Release or trial Software and Services confidential and not to disclose it to third parties; provided that upon completion of any Software or Service Pre - Release test and request from Kaseya, Customer agrees to issue a mutually agreeable press release or customer testimonial, and to serve as a reference in marketing and sales initiatives by Kaseya. 10. MARKS. The Marks are available to you only if you meet the criteria to use them. The criteria are explained on the Website. As long as you meet the criteria and during the Term, we grant to you a non-exclusive, non -transferable, limited, royalty -free license to use the applicable Marks. You acknowledge and agree that: (A) Kaseya or its licensors is the sole owner of the Marks and the sole beneficiary of the goodwill associated with your use of the Marks; (B) You will not acquire any right, title or interest in the Marks because of your use of the Marks; or (C) You will not register, adopt or use any name, trademark, domain name or other designation that includes all or part of any Mark, or any term that is confusingly similar to a Mark, or a translation or transliteration of a Mark and specifically agree not to direct or re -direct communications network traffic to any network address associated with Customer or with any other third party; cause such network traffic to be so directed or so re -directed on behalf of Customer or with any other third party; or list or cause to be listed any Internet website associated with Customer or with any third party in response to a keyword search that receives as input, whether in whole or in part based on the foregoing. 11. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES; INTERNET DELAYS; EXCLUSION OF DAMAGES; LIMITATION ON LIABILITY. 11.1. Limited Warranty. Kaseya warrants that the Software when shipped or transmitted to you will operate substantially in accordance with the Documentation. If you notify Kaseya in writing of a material failure on the part of the Software to conform to this limited warranty within thirty (30) days following your receipt of the Software, and if you provide Kaseya promptly with such evidence as Kaseya may require to verify the material non -conformity, Kaseya will correct or replace the materially non -conforming Software or (if the Software provides the functionality intended by Kaseya and the error is in the Documentation) Kaseya will correct the Documentation. Kaseya shall have no obligation to remedy any material non -conformity if the Agreement is materially breached by you in any manner, or if the non -conformity is due to your damage, abuse, or misapplication of the Software, or to any attempt to use the Software on a machine that is not an Authorized Machine or in any incompatible operating environment, or to any modification of combination of the Software with other material not furnished by Kaseya. 11.2. Disclaimer Of Warranties. EXCEPT AS SET FORTH IN THE PRECEDING SECTION, ALI, SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. EACH OF THE AFFILIATED ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OR OF NON — NEGLIGENT PERFORMANCE. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR -FREE, VIRUS -FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR 20 City's Standard Agreement —June 2008 revision SERVICES WILL BE FREE OF HARMFUL ASPECTS. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH ANYONE'S ENJOYMENT OF THE SOFTWARE OR SERVICES OR AGAINST INFRINGEMENT. 11.3. Internet Delays. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AFFILIATED ENTITIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 11.4. Exclusion Of Certain Damages. YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR FOR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION; AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN "DIRECT DAMAGES" AS DESCRIBED BELOW. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, AND/OR BREACH OF CONTRACT OF KASEYA OR ANY OF THE OTHER AFFILIATED ENTITIES, AND EVEN IF KASEYA OR ANY OF THE AFFILIATED ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 11.5. Limitation On Liability. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE: (A) FOR SOFTWARE UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE APPLICABLE SOFTWARE IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE DOLLAR (US$1.00); AND (B) FOR SERVICES UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE APPLICABLE SERVICES DURING FOR THE SERVICES TERM IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE DOLLAR (US$1.00). 11.6. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or Services. Customer acknowledges and agrees that Kaseya has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. Customer understands, acknowledges and agrees that if Kaseya takes any corrective action because of an action of Customer or any Third -Party Clients, that corrective action may adversely affect other Third -Party Clients, and Customer agrees that Kaseya shall have no liability to you, or to any Third - Party Clients, or any other third party due to such corrective action by Kaseya. The limitations and exclusions provided for by this section reflect an informed and voluntary allocation of risks between the parties and applies to risks both known and unknown that may exist in connection with the Agreement. 12. KASEYA'S OBLIGATIONS RE THIRD -PARTY INFRINGEMENT CLAIMS. Kaseya will defend, at Kaseya's expense, any lawsuit brought against you in any court located within the United States, insofar (but only insofar) as the suit is based on a claim that the Software, as provided by Kaseya to you, directly infringes any third 21 City's Standard Agreement — June 2008 revision party patent or copyright, provided that: (A) Kaseya is notified in writing of the lawsuit within thirty (30) days after you obtain actual knowledge of it, (B) Kaseya is given full control over the defense of such claims, and (C) you give Kaseya reasonable assistance and cooperation in its defense of the claim. if your use of the Software is determined in a final, enforceable judgment to infringe a third -party patent or copyright, Kaseya, at its own expense, shall either (1) procure for you the right to continue using the Software, or (2) modify the Software so that it becomes non - infringing while giving acceptable performance, or (3) in the event that neither of the foregoing options (1) and (2) are reasonably available to Kaseya, terminate the Agreement with respect to the infringing Software (and/or any related Services) and, in the case of fully Paid Up Software, provide a refund to you an amount equal to all sums received by Kaseya from you on account of the Software furnished by Kaseya to you, multiplied by a factor the numerator of which is 1095 minus the number of days during which your license to use the Software was effective and the denominator of which is 1095. In the case of all Subscriptions and Software for which Customer has Installment payments remaining on the Installment Schedule, Kaseya may terminate the Agreement without compensation or other liability. Notwithstanding anything to the contrary in the Agreement, Kaseya will have no obligation to you on account of any third -party claim of infringement that results from (V) any use by you of the Software in violation of the Agreement, (W) any damage to, or misapplication or misuse of the Software by you; (X) your combination of all or any portion of the Software with software not supplied by Kaseya; or (Y) your use of any superseded, altered, or allegedly infringing version or release of all or any portion of the Software if such alleged infringement could be avoided by the use of a different version or Upgrade made available to you by Kaseya; or (Z) any information, design, specification, instruction, software, data, or material not furnished by Kaseya. You agree to defend, indemnify and hold harmless the Affiliated Entities against any claims of infringement by third parties resulting from any of the circumstances listed in the immediately preceding sentence. The foregoing states Kaseya's entire responsibility with respect to intellectual property claims and Customers sole and exclusive remedy. 13. RESERVED. 14. MISCELLANEOUS. 14.1. Independent Contractor. Customer is an independent contractor, and nothing contained in the Agreement shall be construed to (A) give either party the power to direct and control the day-to-day activities of the other, (B) constitute the parties as partners, joint venturers, co -owners agents, franchisee or franchisor or otherwise, or (C) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Customer is not an employee of Kaseya and is not entitled to any Kaseya benefits. All financial and other obligations associated with each party's business and are the sole responsibility of such party. Customer represents and warrants that it: (X) will not make any representation, warranties, or guarantees on behalf of Kaseya, and (Y) will not disparage Kaseya in any manner or otherwise harm Kaseya's business or reputation. 14.2. Choice of Law. With respect to Customers located in Europe, the Middle East or Africa, the Agreement shall be governed by the laws of Switzerland, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Switzerland. With respect to Customers located in Asia, Australia, New Zealand and the Pacific islands, the Agreement shall be governed by the laws of Singapore, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Singapore. With respect to Customers located in North, Central or South America (including the Caribbean), the Agreement shall be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Software or Services shall be subject to the exclusive jurisdiction of the state and federal courts located in San Jose, California. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to the Agreement. Any claim by either party arising out of or related to the Agreement must be brought no later than two (2) years after it has accrued. This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement of recognition of any award or order in any appropriate jurisdiction. If either party 22 City's Standard Agreement —June 2008 revision commences litigation in connection with the Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees, costs and other expenses. 14.3. Third Party Beneficiaries; Assignment. The Affiliated Entities are third party beneficiaries to the Agreement. However, there are no other third party beneficiaries. No party may assign the Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except that Kaseya may assign the Agreement without your prior consent to: (A) one (1) or more of the Affiliated Entities, (B) an acquirer of assets, or (C) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Kaseya directly or indirectly owning or controlling 50% or more of you shall entitle Kaseya to terminate the Agreement for cause in whole or in part immediately upon written notice. 14.4. Force Majeure. Kaseya's performance of the Agreement (including the Privacy Statement) is subject to existing laws and legal process, and you agree that Kaseya may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of the Agreement. Each party's obligation to perform its obligations hereunder (other than your obligation to pay fees when due) shall be suspended during any period that the party is rendered incapable of performing by virtue of any criminal acts of third parties, war, viruses, acts of public enemies, severe weather conditions, utility failures, strikes or other labor disturbances, fires, floods, other natural disasters, other acts of God, unforeseeable acts of employees, telecommunication or interruption of Internet service, or any causes of like or different kind beyond any reasonable control of the party. 14.5. Waiver. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of its any of obligations with respect to such performance, or constitute a waiver of such party's right to insist upon the full and timely performance in the future of any of the other party's obligations under the Agreement. 14.6. Severability. If any of the provisions of the Agreement shall be held by a court of competent jurisdiction for any reason to be unenforceable by reason of being excessively broad, or excessively narrow or limited, in its scope or duration, the offending provision(s) automatically shall be deemed amended so as to be as broad as is permissible (if the unenforceability is due to excessive breadth) or as narrow or limited (if the unenforceability is due to excessive narrowness or limitation) as is permitted by applicable law. The unenforceability or invalidity of any one provision shall not affect the remainder of the Agreement, which shall continue in full force and effect. 14.7. Verifying Compliance And Customer Records. Customer grants to Kaseya and its independent accountants the right to examine Customer's books, records and accounts during Customer's normal business hours to verify compliance with the Agreement. In the event such audit discloses non- compliance with the Agreement, Customer shall promptly pay to Kaseya the appropriate fees, plus the reasonable cost of conducting the audit. 14.8. Agreement Priority. The terms of the Agreement govern Customer's access and use of the Software and Services, except to the extent: (A) there is an applicable separate non -electronic agreement manually signed by authorized representatives of the parties, or (B) the Software or Service includes a separate "click -accept" agreement as part of the installation and/or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (X) the signed agreement, (Y) the click -accept agreement, and (Z) the Agreement. Except as set forth in the preceding, sentence, these Terms and Conditions shall govern in case of a conflict between the Terms and Conditions and the Documentation. 14.9. Notices and Electronic Communications. Kaseya may give notice by means of a general notice on the Software or Service, electronic mail to your e-mail address on record in Kaseya's account information, or by written communication sent by first class mail or pre -paid post to your address on record in Kaseya's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre -paid post) or 12 hours after sending (if sent by email). You may give notice to Kaseya (such notice shall be deemed given 23 City's Standard Agreement — June 2008 revision when received by Kaseya) at any time by any of the following: letter sent by confirmed facsimile to Kaseya at the following fax number: +44 871 224 7525; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Kaseya at the following address: Channel House, 4th Floor (South), Green Street, St. Helier, Jersey JE2 4UH, Channel Islands. The Services and Software are conducted and provided electronically and you agree that Kaseya may communicate electronically with you for matters relating to the Services and Software, including educational information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Software and Services. The parties agree that the Agreement is to be written in English only, unless Kaseya in its sole discretion releases any Documentation in other language(s). 14.10. Compliance With Law and Export Control. You shall abide by all applicable local, state, national and foreign laws, rules, treaties and regulations in connection with your use of the Software and Service, including those related to data privacy, international communications and the transmission of technical or personal data. You acknowledge that the Software, Services and related technology and technical data (collectively "Controlled Technology") may be subject to the import and export laws of any country where Controlled Technology is imported or re-exported, including U.S Export Administration Regulations. You agree not to export or import any Controlled Technology in contravention to law nor to any prohibited country (such as embargoed countries), entity, or person (such as designated nationals) for which a license or other governmental approval is required or is otherwise prohibited. All Controlled Technology is prohibited for export or re-export to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, North Korea, Syria and Sudan and to any country subject to similar trade sanctions. You further agree that you will not use, export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons. 14.11. Entire Agreement. The Agreement (including these Terms and Conditions, the Documentation, and the other items referenced herein and therein) constitutes the entire agreement between Kaseya and you with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non -electronic, between Kaseya and you regarding them. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to Kaseya, will have no effect and that the Agreement is the only contract between Kaseya and you regarding the Software and Services and may only be amended as set forth herein. A printed version of the Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. 14.12. Amendments. Kaseya may, at any time, amend the provisions of the Agreement and/or the Privacy Statement, and you may accept the amended provisions in the manner indicated in the amendment notice as communicated by Kaseya. Any amendment proposed by you may only be accepted by Kaseya in a non -electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if Kaseya posts amended terms on the Website, such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Software or the Services after such revised terms are posted, you agree to be bound by any such amended provisions. Therefore, you agree to periodically visit the Website to examine the then -current Agreement (including the Privacy Statement). Questions or Additional Information: If you have questions regarding the Agreement or wish to obtain additional information, please send an e-mail to legal,;nkaseva.com. Last Updated: August, 2008 24 City's Standard Agreement — June 2008 revision City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 October 7, 2008 Ms. Joyce Morin Kaseya North America 2200 Clarendon Blvd., Suite 1125 Arlington, VA 22201 Dear Ms. Morin, On September 17, 2008, an Agreement was entered between the City of National City and Kaseya Corporation. We are enclosing for your records a fully executed original agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosure cc: MIS Dept. ® Recycled Paper