ExecuTime Software/Payroll Software 111 ! ENTERPRISE TIME AND ATTENDANCE SOLUTIONS
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Order #: EXTLAQUIN0408
Date: 04/08/2011
Purchase and Sale Agreement
Purchaser: Seller:
City of La Quinta ExecuTime Software.
PO Box 1504 427 S. Boston, Suite 707
La Quinta, CA 92247 Tulsa, OK 74103
Attn: Louise West FAX: 413.235.6374
Qty. Model/Feat./ Description Unit Price Amount
ExecuTime Software License $15,000.00
$15,000.00
Up to 250 employees
AII-Inclusive Functionality includes: Clock in/out, Job Costing,
Benefits Tracking, Benefits Calendar, Time -Off Requests,
Automated Move to Payroll and more.
ExecuTime Software License Annual Maintenance $ 3,750.00
$ 3,750.00
Up to 250 employees
Implementation Services $ 8,500.00
$ 8,500.00
1. Design/Scope of Work
2. Project Managementlimplementation Services
3. Remote Training Services
4. System Integration with SunGard Public Sector Payroll
Total Selling Price:
$ 27,250.00
Payment Terms
- Full payment of ExecuTime Software License, ExecuTime Maintenance, Hardware and 50% of Services is
due at time of order and prior to commencement of project.
- Remaining 50% of Services due upon completion of training.
- Actual Tax & Shipping and reasonable and customary travel expenses (if applicable) will be added at time of
invoicing.
Not Included
- Hardware Server, PCs, etc.
- Reasonable and customary travel -related expenses (if applicable).
Charges from third party software companies or providers.
- Wiring, cabling etc.
- SunGard Time Keeping Integration Module- Please contact SunGard directly for ordering and pricing
information.
ExecuTime Software, LLC
427 South Boston Avenue, Suite 707
Tulea, OK 74103
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ExecuTimeTM LICENSE AGREEMENT COVER
This License Agreement, by and between ExecuTime Software, LLC, an Oklahoma Company, hereinafter referred
to as ExecuTime Software, LLC, and _City of La Quints, Ca —hereinafter referred to as "LICENSEE":
City of I a Ouinta
ORGANIZATION NAME
PO Box 1504
STREETADDRESS
La Quints, CA 92247 (760) 777-7000
CITY/STATE/LIP
TELEPHONE NUMBER
This License Agreement applies to the ExecuTlmeTM Time and Attendance Software System.
The computer with which the Licensed Software is to be used is known as the Designated Computer and is
identified as follows:
N/A Up to 250 NIA
Server Model Number of Employees Serial Number
The LICENSEE acknowledges that it has read this Agreement, the terms and conditions of which are set
forth on this page and in the ExecuTime"' License Agreement Terms and Conditions Document attached
hereto, and understands it and agrees to be bound by its terms and conditions. Further, the LICENSEE
agrees that it is the complete and exclusive statement of the agreement between the parties which
supersedes all proposals or prior agreements, oral or written, and all other communications between the
parties relating to the subject matter of this Agreement. Notwithstanding the foregoing, this Agreement is
pan of a Purchase and Sale Agreement between LICENSEE and LICENSOR executed contemporaneoulsy
herewith and Is subject to its terns.
LICENSOR: LICENSEE:
ExeecuTime Software, LLC
Kevin Malone
Manager
Date: 5— 6 - / I
8101/02
By:
Name:
Title:
Date:
1 of 4
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ExecuTime Software, LLC
LICENSE AGREEMENT TERMS AND CONDITIONS
DEFINITIONS:
The tens "Licensed Software" in this Agreement shall mean all licensed data processing programs consisting of
instructions or statements in machine readable form and any related licensed materials such as, but not limited to,
manuals, system documentation and written or verbal instructions provided for use in connection with the licensed
data processing programs.
1. TERM
This Agreement is effective from the date on which it is accepted by ExecuTime Software, LLC and will
remain in effect for a period of 99 years unless sooner terminated as provided herein. In the event the parties are
unable to reach agreement as to a Solution Design, either party may, upon notice to the other party, terminate this
Agreement without liability to the other party, as provided in the Purchase and Sale Agreement between the
parties. In addition, this Agreement may be terminated (a) by the LICENSEE, with or without cause, upon 30 days
prior written notice to ExecuTime Software, LLC, or (b) by ExecuTime Software, LLC if the
LICENSEE fails to comply with any of the material terms and conditions of this Agreement and fails to cure the
default within 30 days after receipt of written notice stating the exact nature of the default. It is hereby agreed that
upon termination of this Agreement for any reason, LICENSEE shall discontinue use of all Licensed Software and
all Licensed Software shall be returned to ExecUTlme Software, LLC.
2. LICENSE
ExecuTime Software, LLC hereby grants to LICENSEE a License to use the Licensed Software only on the
Designated Computer as identified on the License Agreement Cover. Any attempt to sub -license, assign or
transfer any of the rights, duties or obligations under this Agreement are void without written notification to and the
consent of ExecuTime Software, LLC, which consent must not be unreasonably withheld.
The License is transferable to a backup computer when the Designated Computer or an associated unit required
for use of the Licensed Software is temporarily inoperable, but only until status is restored to the Designated
Computer and processing an the backup computer is completed.
3. WARRANTY AND LIMITATION OF LIABILITY
ExecuTime Software, LLC warrants that it has the right to market, distribute, support and maintain
Licensed Software and that Licensed Software is warranted to conform to the operating specifications as outlined
in the applicable software documentation. LICENSEE agrees that its SOLE AND EXCLUSIVE REMEDY is for
ExecuTime Software, LLC to correct any error, malfunction or defect if the Licensed Software warranted
hereunder fails to conform to the applicable operating specifications and LICENSEE advises ExecuTime
Software, LLC of such failure in writing, during the three (3) month warranty period. The three (3) month
warranty period starts the day after the date of the complete installation. If after reasonable attempts,
ExecuTime Software, LLC is unable to correct the error, malfunction, or defect, LICENSEE shall be
entitled to recover an amount, commensurate with the nature and magnitude of the error or defect, up to the entire
amount paid for the Licensed Software. (For the purpose of this Agreement, the term "error, malfunction or
defect" shall mean only significant material deviations from the operating specifications for the Licensed Software
as set forth in the applicable software documentation issued by EXeCUTime Software, LLC)
Licensor represents, warrants and covenants.. that the Licensed Software delivered hereunder, including any
upgrades or subsequent releases, shall contain no "Virus". "Virus" shall mean any computer code intentionally
designed to disrupt, disable, harm or otherwise impede In any manner, including aesthetical disruptions or
distortions, the operation of the computer program, or any other associated software, firmware, hardware or
computer system.
ExecuTime Software, LLC's liability for damages to the LICENSEE for any cause whatsoever, and
regardless of the form of action, whether in contract or in tort including negligence, shall be limited to the amount
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paid for the Licensed Software. In no event will ExecuTime Software, LLC be liable for any damages
caused by the LICENSEE's failure to perform the LICENSEE's responsibilities, or for any lost profits or other
consequential damages, even if ExecuTime Software, LLC has been advised of the possibility of such
damages.
ExecuTime Software, LLC agrees to indemnify the LICENSEE against any loss and/or expenses, which
may arise as a result of an alleged copyright or patent infringement by the licensed software of the copyright,
patent, trademark, service mark, or other intellectual property of any third party.
This warranty and liability for ExecuTime"' are void in the event that the Licensed Software is not being used with
the Designated Computer.
ExecuTime Software, LLC and/or Certified Marketing and Technical Associates will provide complete
support services as outlined in the ExecuTime Software, LLC LICENSEE SUPPORT AGREEMENT
TERMS AND CONDITIONS AGREEMENT.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
4. PROTECTION AND SECURITY OF LICENSED SOFTWARE
LICENSEE agrees to use the Licensed Software only as provided herein and only during the term of License
granted by ExecuTime Software, LLC and further agrees not to provide or otherwise make available any
Licensed Software to any person other than LICENSEE's agents, consultants, contracted personnel or employees
without prior written consent from ExecuTime Software, LLC, and then only on the condition that they
acknowledge ExecuTime Software, LLC's Statement that the Licensed Software or any part thereof is the
property of ExecuTime Software, LLC and is proprietary to ExecuTime Software, LLC. LICENSEE
also acknowledges ExecuTime Software, LLC's statement that the Licensed Software is the exclusive
property of ExecuTime Software, LLC, constitutes trade secrets of ExecuTime Software, LLC, and
agrees to protect the Licensed Software or any part thereof from unauthorized disclosure by its agents,
consultants, contracted personnel, employees, LICENSEE, or successors.. In the event the License granted
hereunder is terminated, the above obligations of LICENSEE with respect to protection and security shall not
terminate but shall continue for a period of five (5) years following such termination of License.
LICENSEE agrees to reproduce and include ExecuTime Software, LLC's proprietary, copyright, and trade
secret notice on any copies, in whole or in part, in any form, including partial copies and modifications of Licensed
Software.
The LICENSEE further agrees to take appropriate action, by instruction, Agreement or otherwise, with any persons
permitted access to Licensed Software so as to enable the LICENSEE to satisfy the LICENSEE's obligation under
this Agreement.
5. MODIFICATION OF LICENSED SOFTWARE
The parties agree that LICENSEE shall have the right to modify any Licensed Software supplied by ExecuTime
Software, LLC in machine readable form for LICENSEE's use under this Agreement and on the Designated
Computer, and may combine such modified Licensed Software with other programs or material from updated
work, provided however, upon discontinuance or termination of rights under this Agreement, the Licensed
Software supplied by ExecuTime Software, LLC shall be completely removed from the updated work and
all such materials and copies shall be returned to ExecuTime Software, LLC in accordance with the
provisions of paragraph 7 of this Agreement. ExecuTime Software, LLC shall be under no obligation,
however, to make revisions or releases compatible with Licensed Software which has custom modifications.
6. CANCELLATION OF LICENSE
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The License granted hereunder may be canceled by ExecuTime Software, LLC if LICENSEE defaults in
payment of any amount due under this Agreement for a period of fifteen (15) business days after notice of default,
or may be canceled at any time upon breach by the LICENSEE of any other covenant of this Agreement if such
breach is not corrected within thirty (30) business days after receipt of written notice thereof. LICENSEE's
obligation to pay charges which have accrued and damages arising from its breach of this Agreement shall survive
cancellation thereof. No delay or omission in the exercise of any power or remedy herein provided or otherwise
available to the other party shall alter or waive any rights or remedies.
The parties agree that should either of them default in any of the covenants or agreements contained herein, the
prevailing party shall be entitled to all costs and expenses including a reasonable attorney's fee which may arise or
accrue from enforcing this Agreement in a court of law.
7. RETURN OF LICENSED SOFTWARE
Within thirty (30) days after the termination or cancellation for any reason of the License granted herein,
LICENSEE shall deliver to ExecuTime Software, LLC all copies thereof in whatever form, including partial
copies which may have been modified by LICENSEE, and execute a letter so certifying. ExecuTime
Software, .LLC, LICENSEE may be permitted for a specified period thereafter to retain one copy of certain
materials for record purposes.
B. SHIPPING AND HAN DUNG —Not Applicable
All charges for shipments and mailing to ExecuTime Software, LLC are the responsibility of the LICENSEE
All shipments to the LICENSEE will have a $0.00 shipping and handling fee and will be invoiced to the LICENSEE
For Non -US shipments, the shipping and handling fee will be $0.00.
g. CONFIDENTIALITY
ExecuTime Software, LLC and LICENSEE agree that this Agreement and the relationship it represents;
requires the exchange of Confidential Information over the course of normal business. Confidential Information is
information not generally known by non -parry personnel including, but not limited to, the financial, marketing and
other proprietary business information and LICENSEE's customer data.
ExecuTime Software, LLC and LICENSEE further agree that, except as expressly authorized in writing in
advance by the other party, neither of them will copy or disclose Confidential Information to any third party except
its agents, consultants, contracted personnel or employees on a need to know basis and the agents, consultants,
contracted personnel or employees are under the same obligations of confidentiality as those imposed on the
parties hereunder with no further rights of disclosure of Confidential Information.
Either party may use, copy, or disclose the Confidential Information to the extent required by any subpoena or
order of any.government authority, or otherwise as required by law, provided that the disclosing party shall give
prompt notice to the other parry of the circumstances.
10. GENERAL
This Agreement can be modified only by a written agreement duly signed by persons authorized to sign
agreements on behaff of the LICENSEE and of ExecuTime Software, LLC and variance from the terms
and conditions of this Agreement in any LICENSEE purchase order or other written notification will be of no effect.
Neither LICENSEE nor ExecuTime Software, LLC are responsible for failure to fulfill their respective
obligations under this Agreement due to causes beyond their control. No action, regardless of form, arising out of
this Agreement may be brought by either party more than two years after the cause of action has arisen, or in the
area of nonpayment, more than two years from the date of the last payment. It is mutually understood and agreed
that this Agreement shall be governed by the laws of the State of Oklahoma both as to interpretation and
performance. It is understood and agreed by the parties hereto that if any part, term, or provision of this
Agreement is by the courts held to be illegal or in conflict with any law of the state where made, the validity of the
remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the particular part, teml or provision held to be invalid.
Software for software version upgrades is free of charge. There is a charge for services on upgrades.
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ExecuTime Software, LLC
427 South Boston Avenue, Suits 707
Tulsa, OK 74103
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ExecuTime"' SOFTWARE SUPPORT AGREEMENT COVER
This Support Agreement ("Agreement'), by and between ExecuTime Software, LLC, a Oklahoma Company
hereinafter referred to as ExecuTlme Software, LLC, and _City of La Quinta_hereinafter referred to as
"Licensee":
ORGANIZATION NAME
STREETADDRESS
_ 1 aDuinta CA 92247 ___.---_--
CITY/STATE/ZIP
_ (7901777.7000
TELEPHONE NUMBER
This Support Agreement applies to the ExecuTimelm Time and Attendance Software System.
The Support Fee for the Licensed Software is $ 8,759.00
The Support Term is from naltil l9rvl l to n5"' "2n1 c
(Commencement Date: Month of Installation) (initial Term: 12 Months/Annually)
The computer with which the Licensed Software is to be used is known as the Designated Computer and is
identified as follows:
N/A Up to 260 N/A
Server Model Number of Employees Serial Number
The LICENSEE acknowledges that it has read this Agreement, the terms and conditions of which are set
forth on this page and in the ExecuTime Software, LLC Support Agreement Terms and Conditions
Document attached hereto, and understands it and agrees to be bound by its terms and conditions.
Further, the LICENSEE agrees that It is the complete and exclusive statement of the agreement between
the parties which supersedes all proposals or prior agreements, oral or written, and all other
communications between the parties relating to the subject matter of this Agreement Notwithstanding
the foregoing, this Agreement is part of a Purchase and Sale Agreement between LICENSEE and
ExecuTime Software, LLC executed contemporaneoulsy herewith and is subject to Its terms.
ExecuTime Software, LLC:
qL q���
Kevin Malone .
Manager
Date: S - (p 1(
LICqENSEE:
6 T o f LA I
Name:
Title:
Date:
118103 - 1 of 4
ExecuTlme Software, LLC
LICENSEE SUPPORT AGREEMENT TERMS AND CONDITIONS
This Support Agreement will remain in force from the Commencement Date until the Support
Termination Date and will then be automatically extended for annual periods at the current fees. The
LICENSEE can terminate this Support Agreement at the end of any Support Period by returning the
invoice without payment. ( See paragraph 6 of this Support Agreement.) In addition, in the event the
parties are unable to reach agreement as to a Solution Design, either party may, upon notice to the other
party, terminate this Agreement without liability to the other party, as provided in the Purchase and Sale
Agreement between the parties.
2. ExecuTlme Software, LLC will provide LICENSEE Licensed Software Support during ExecuTlme
Software, LLC's normal working hours, Monday — Friday 8:00am — 6:00 pm (CST) on a first -in, first -out
basis, based on problem severity ExecuTlme Software, LLC Mll:
(a) Provide at ExecuTlme Software, LLC's option and on ExecuTlme Software,
LLC's schedule, periodic error correction and updates to the object code and/or
user documentation of the product so as to bring installed applications to a level
equivalent with that of the current marketed version of the Licensed Software.
(b) Clarify installation and operating instructions contained in the user
documentation delivered with the Licensed Software.
(c) Assist in the identification of solutions to operating problems being experienced
by the LICENSEE with the Licensed Software.
(d) Provide problem determination, investigation, and program error correction for
verified program errors in the Licensed Software and the Payroll Interface at no
additional charge to LICENSEE.
(e) Provide data repairs for LICENSEE files and records for data problems
CAUSED BY the ExecuTlme Software, LLC product at no additional charge to
LICENSEE.
(f) Provide data repairs for LICENSEE files and records on a "best efforts" basis
for data problems NOT CAUSED BY the ExecuTime Software, LLC product at
ExecuTlme Software, LLC's normal hourly billing rate, currently $175.00 per
hour.
3. ExecuTime Software, LLC includes in the category "data problems" NOT CAUSED BY the ExecuTime
Software, LLC product, data corruption or integrity problems caused by, but not limited to the following:
(a) Equipment malfunction or failure.
(b) Failure by LICENSEE to follow procedures and/or instructions contained in the
documentation provided with the product or in supplementary documentation
provided by ExecuTime Software, LLC.
(c) . Failure by LICENSEE to follow accepted operating practices (for example,
failing to routinely prepare backup data files, powering off or Interrupting
equipment while programs are executing, etc.).
4. ExecuTime Software, LLC will take due care in responding to each request for LICENSEE Support to
assure that the LICENSEE is making proper use of the Licensed Software and that the Licensed
Software is operating properly.
ExecuTime Software, LLC will use its best efforts to locate and correct any identified Licensed
Software program defects reported by the LICENSEE.
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5. ExecuTime Software, LLC expressly excludes the following services from the Licensed Software
Support to be provided under this Support Agreement:
(a) System configuration and implementation
(b)
Operator training
(c)
On -site training and LICENSEE assistance visits
(d)
Training classes
(e)
Licensed software custom modifications.
(f)
Support of any licensed software product other than the one indicated herein.
6. Payment in full of the appropriate LICENSEE Support Fee shown above must accompany this Support
Agreement and be received by ExecuTime Software, LLC prior to Commencement of Licensed
Software Support under this Support Agreement. An invoice for the applicable LICENSEE Support Fee
will be submitted by ExecuTime Software, LLC to LICENSEE prior to the end of each annual renewal
period. To cancel the annual renewal, LICENSEE must return the invoice indicating intent to discontinue
within (30) days of receipt.
7. All charges for shipments and mailing to ExecuTime Software, LLC are the responsibility of the
LICENSEE.
a. Reinstatement of this Support Agreement after having not been in force for sixty (60) days or less will be
made with no reinstatement charge retroactive to the date that the Support Agreement was terminated.
9. ExecuTime Software, LLC's liability for damages to the LICENSEE for any cause whatsoever and
regardless of the form of actions, whether in contract or in tort including negligence, shall be limited to
any actual charges incurred for up to twelve.(12) months' Support Fee for the Licensed Software
indicated above. Such charges shall be those in effect for the Licensed Software when the cause of
action arose.
In no event will ExecuTime Software, LLC be liable for any damages caused by the LICENSEE's
representatives or for any lost revenues or other consequential damages, even if ExecuTime Software,
LLC has been advised of the possibility of such damages, or for any claim against the LICENSEE by any
party, except as otherwise agreed in the Agreement.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
10. This Support Agreement and none of the services granted hereunder nor any of the Licensed Software
materials or copies thereof may be sublicensed, assigned or transferred by the LICENSEE. Any
attempt to sublicense, assign or transfer any of the rights, duties or obligations under this Support
Agreement are void without the written consent of ExecuTime Software, LLC, which consent will not be
unreasonably withheld.
11. The terms and conditions of this Agreement may be modified by ExecuTime Software, LLC effective
on the date of automatic renewal by providing the LICENSEE with one month's prior written notice. Any
such modification will apply unless the LICENSEE exercises the option to terminate this Agreement.
Otherwise, this Agreement can only be modified by a written agreement duly signed by a person
authorized to sign agreements on behalf of the LICENSEE and ExecuTime Software, LLC and
variance from the terms and conditions of the Agreement in any LICENSEE order or other modification
will be of no effect.
12. The LICENSEE represents that it is the Licensee of the Licensed Software under this Support
Agreement via the Agreement effected directly with ExecuTime Software, LLC
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13. ExecuTime Software, LLC's Licensed Software Support provided outside the scope of this Support
Agreement will be furnished at ExecuTime Software, LLC's applicable time and material billing rate and
terns then in effect.
14, Neither LICENSEE nor ExecuTime Software, LLC are responsible for failure to fulfill its obligations
under this Agreement due to causes beyond either party's reasonable control
15. No actions, regardless of form arising out of this Support Agreement may be brought by either party
more than two (2) years after the cause of actions have arisen, or in the area of nonpayment, more than
two (2) years from the date of the last payment.
16. Any action of law, suit in equity or judicial proceeding for the enforcement of this Agreement or any
provision thereof shall be instituted only in the courts of the State of Oklahoma.
It is mutually understood and agreed that this Support Agreement shall be governed by the laws of the
State of Oklahoma both as to interpretation and performance.
17. It is understood and agreed by the parties hereto that if any part, term, or provision of this Agreement is
by the courts held to be illegal or in conflict with any law of the state where made, the validity of the
remaining portions or provisions shall not be affected and the rights and obligations of the parties shall
be construed and enforced as if the Support Agreement did not contain the particular part, term or
provision that is held to be invalid.
The parties agree that should either of them default in any of the covenants or agreements contained
herein, the prevailing party shall be entitled to all costs and expenses including a reasonable attorney's
fee which may arise or accrue from enforcing this Support Agreement in a court of law.
18. ExecuTime Software, LLC and LICENSEE agree that this Agreement and the relationship it
represents, requires the exchange of Confidential Information over the course of normal business.
Confidential Information is information not generally known by non-party personnel including, but not
limited to, the financial, marketing and other proprietary business information and LICENSEE's customer
data.
ExecuTime Software, LLC and LICENSEE further agree that, except as expressly authorized in writing
in advance by the other party, neither will copy or disclose Confidential Information to any third party
except its agents, consultants, contracted personnel or employees on a need to know basis and the
agents, consultants, contracted personnel or employees are under the same obligations of confidentiality
as those imposed on the parties hereunder with no further rights of disclosure of Confidential
Information.
Either party may use, copy, or disclose the Confidential Information to the extent required by any
subpoena or order of any government authority; or otherwise as required by law, provided that the
disclosing party shall give prompt notice to the other party of the circumstances.
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