Agreement
C"'fBORG
SYSTEMS
Ouality Options in Human Resource Technology
EXHIBIT A
TO THE SOFTWARE LICENSE AGREEMENT DATED JANUARY
BETWEEN
CYBORG SYSTEMS, INC.
AND
CITY OF MIAMI BEACH
J9tt.
The CUSTOMER'S Computer/Server on which the CYBORG SYSTEM will be used is identified below:
COMPUTER/SERVER pes
SERIAL NUMBER
OPERATING SYSTEM
Windows NT
TAPE DRIVE MODEL NUMBER AND REOUIRED MEDIA TYPE
COBOL COMPILER VERSION AND RELEASE NUMBER
RDBMS MS SOL Server
PRECOMPILER VERSION AND RELEASE NUMBER (FOR RDBMS VERSIONS ONL Yl
,1999
CLlENT/ WORKSTATION
ADDENDUM TO THE SOFTWARE LICENSE AGREEMENT
BETWEEN
CYBORG SYSTEMS, INC.
AND
CITY OF MIAMI BEACH
This Addendum is incorporated into and made a part of the Software License Agreement between
Cyborg Systems, Inc. (ref~lled to as CYBORG) and City of Miami Beach (referred to as the CUSTOMER),
dated January d? TA. , 1999 (referred to herein as the Agreement), In the event of any
conflict or inconsistency between this Addendum and the Agreement, the terms of this Addendum shall
control.
1, In Paragraph 2 of the Agreement, the payment terms are revised as follows:
a, Thirty-four percent (34%), or $62,900,00, due upon the CUSTOMER's signing of this
Agreement;
b, Forty-one percent (41 %), or $75,850,00, due upon delivery of the documentation and
computer programs, and installation of the programs which is defined as a demonstration with
CYBORG test data on the CUSTOMER's computer identified in Exhibit A attached hereto, The
CUSTOMER shall accept such delivery and installation no later than sixty (60) days from the
date of signing of this Agreement; and
c,Twenty-five percent (25%), or $46,250,00, due within sixty (60) days of such installation,"
2, The following is added after the second sentence of Paragraph 4 of the Agreement:
"CYBORG further warrants that the CYBORG SYSTEM will, when used in accordance with the product
documentation provided by CYBORG, include 'Year 2000 capabilities: For the purposes of this warranty,
'Year 2000 capabilities' means the CYBORG SYSTEM will:
a, Process, manage, manipulate and accurately indicate date data, including but not limited to,
correctly recognizing date data information, calculating, comparing and sequencing without error or
interruption from, into and between the twentieth and twenty-first centuries (including leap year
calculations), and correctly indicating the century in date outputs and results;
b, Provide that date-related user interface functionalities and data fields include the indication of
century, as appropriate; and
c, Provide that date-related data interface functionalities include the indication of century, "
3, In the first sentence of Paragraph 6 of the Agreement, the words "one hundred percent of which is due
upon the signing of this Agreement" are deleted and the fees of $40,424,00 thereunder shall be payable
as follows:
a. CYBORG will invoice the CUSTOMER for the installation and account management days on a
weekly basis as they are used by the CUSTOMER and payment is due within thirty (30) days of
the CUSTOMER's receipt of CYBORG's invoice(s); and
b. Payment is due for the education days upon the CUSTOMER's registration for the training
classes,
4. The following is added at the end of Paragraph 6 of the Agreement:
"The CUSTOMER agrees to purchase 55 days of additional consulting services according to the daily rates set
forth in CYBORG's current Professional Services rate schedule below:
Consultant Level
Number of Days Purchased
1 - 49 days 50 - 149 days 1 50 + days
$2,000.00 $1,850,00 $1,750,00
$1,600.00 $1,450,00 $1,350.00
$1,450.00 $1,350,00 $1,250,00
$975,00 $950.00 $925.00
Project Manager/Account Manager
Senior Consultant
Consultant/Senior Programmer (on-site)
Programmer (off-site)
The services fees for such days shall be computed at the average daily rate for 50-149 days for all the
consultant levels above, or $1,400,00, multiplied by 55 days, for a total of $77,000,00, The foregoing fee shall
be payable by the CUSTOMER as follows: CYBORG will invoice the CUSTOMER for the consulting
services days on a weekly basis as they are used by the CUSTOMER and payment is due within thirty (30)
days of the CUSTOMER's receipt of CYBORG's invoice(s). Notwithstanding the foregoing, the CUSTOMER
acknowledges and agrees that, in the event it purchases a total of less than 55 days of consulting services,
it will be charged the applicable daily rates for 1-49 days noted above, less a credit for any amounts already
paid at the 50-149 days level.
The CUSTOMER also may purchase an additional 45 days of services at the rates set forth above, The rate
schedule above is effective through September 30, 1999, The additional services purchased according to this
paragraph shall be governed by the terms of a separate written Consulting Services Agreement between the
parties,
The CUSTOMER also may exchange any or all of its fifty (50) education days for on-site training in increments
of six (6) education days for one (1) day of on-site training:'
5, In Paragraph 16 of the Agreement, the word "Illinois" is replaced with the word "Florida:'
The parties, each acting under proper authority, have signed this Addendum on the date(s) indicated
below,
CITY OF MIAMI BEACH
CYBORG SYSTEMS, INC.
APPROVED AS TO
FORM & LANGUAGE
JOf4 D/J eLulo, VIce tlAj()1l. & FOR EXECUTION
NeiS8R K~qnin. M~yo~
Name (Typed/Printed)
Steven J. Weinberg
4I/~'
ih-oJ!1~ ~~ .
Sig~ture ~
President
c:r
January 14, 1999
2
'f'f-2 ~ OIl(
C .,'( E3 0 R G
II 5 Y 5 T E M sC'Jm
_lIIlIrn T -
Ouality Options in Human Resource Technology
SOFTWARE LICENSE AGREEMENT Ii
This Software License Agreement (referred to as the Agreement) is entered into this J 9 day of January, 1999, by and
between CYBORG SYSTEMS, INC. (referred to as CYBORG) and
City of Miami Beach
ORGANIZATION NAME
IT Department
ADDRESS
1100 Washington Avenue
ADDRESS
Miami Beach FL
CITY STATE
Dade
COUNTY
33139
ZIP
TAX EXEMPT NUMBER, IF ANY
(referred to as the CUSTOMER), and states that:
For and in consideration of the mutual promises and covenants stated in this Agreement, the parties agree as follows:
1, CYBORG grants to the CUSTOMER and the CUSTOMER accepts a perpetual, non-exclusive license to use the following named
components which are either owned by CYBORG or are third-party products that CYBORG has the right to distribute:
The Solution Series@/SPM Payroll/Human Resources Management System (Windows NT/MS SOL Server version) - 1 copy
The Windows Solution for use by 25 concurrent users
The Reporting Solution, which includes Cyborg's data mart and data extract components (when generally-released) and the
following Cog nos Corporation products: 7 copies Impromptu User, 1 copy Impromptu Administrator, 2 copies PowerPlay User,
and 1 copy PowerPlay Administrator
TravisCobra for Windows - 1 copy single user version
(referred to as the CYBORG SYSTEM), subject to the terms and conditions set forth in this Agreement The CYBORG SYSTEM consists of
computer programs and documentation, The CUSTOMER may make a reasonable number of copies of all documentation for its internal use only as
permitted by this Agreement No title or other rights than those expressly set forth in this Agreement are transferred to the CUSTOMER
2, It is understood and agreed between the parties that the license fee for the CYBORG SYSTEM is $185,000.00, and is due and payable
by the CUSTOMER as follows:
a. Ninety percent (90%), or $ , due upon the CUSTOMER's signing of this Agreement; and
b, Ten percent (10%), or $ , due upon delivery of the documentation and computer programs and a demonstration with
CYBORG test data on the CUSTOMER's host computer/application server (referred to as its Computer/Server) which is identified in
Exhibit A attached hereto.
3, The CUSTOMER'S Computer/Server identified herein is currently located at the address noted above, In addition, CYBORG agrees
that the CYBORG SYSTEM may be used at any of the CUSTOMER's locations in the United States accessing its Computer/Server, for no
additional fee, provided such use does not result in an increase in the number of Computers/Servers using the CYBORG SYSTEM, The
CUSTOMER also shall have the rights to: (a) relocate its Computer/Server anywhere in the United States of America and use the CYBORG
SYSTEM on such relocated Computer/Server, for no additional fee, if such relocation does not result in an increase in the number of CUSTOMER
Computers/Servers using the system, and (b) maintain an emergency back-up site, provided said site will not be used for production processing
unless the primary site is not functioning,
4, CYBORG warrants, for a period of 12 months commencing from the date of this Agreement, that the CYBORG SYSTEM will operate
substantially as described in its documentation, In order to maintain the warranty during such 12-month period, it is the CUSTOMER's sole
responSibility to notify CYBORG, promptly in writing using CYBORG's Problem Notification form, of any problems or potential problems and make
available to CYBORG all written and printed documents to substantiate said problem, CYBORG's responsibility is limited to responding to any
problems or potential problems of which it has been made aware, Further, this warranty: (a) shall only be effective if the CUSTOMER has all current
releases, updates, and enhancements of the CYBORG SYSTEM installed and is not using the CYBORG SYSTEM in conjunction with other
software products that have not been recommended or authorized by CYBORG and (b) shall only apply to the standard, unmodified product as
delivered to the CUSTOMER by CYBORG, Further, the CUSTOMER is solely responsible for its selection, use, and operation of the CYBORG
SYSTEM by its employees, CYBORG DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY EXPRESSED OR IMPLIED WARRANTIES
EXCEPT AS SET FORTH IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5, The CUSTOMER will receive from CYBORG, for a periOd of 12 months commencing from the date of this Agreement, non-exclusive
Basic Support Plan maintenance consisting of United States tax table changes, all releases containing improvements, enhancements, updates,
and/or corrections to any program problems or documentation errors, and telephone and written support between the CUSTOMER and CYBORG
pursuant to CYBORG's then-current policy, Such non-exclusive maintenance is included in the license fee in Paragraph 2 above,
6, CYBORG shall provide to the CUSTOMER the following account management, installation, and training services for the additional fees
of $40,424.00, one hundred percent (100%) of which is due upon the signing of this Agreement:
a, 10 days of on-site account management;
b, One standard fixed-price installation, If additional installation services are required for the CUSTOMER's installation, such services will
be billed separately on a time-and-materials basis according to CYBORG's then-current rates; and
c, 50 education days (at one person per day) for attendance at CYBORG'S Solution Center training facility, Such training is subject to the
terms and conditions set forth in CYBORG's Corporate Curriculum, a copy of which is available for review by the CUSTOMER
The days specified above must be used by the CUSTOMER within 12 months of the date of this Agreement The CUSTOMER also shall pay the
(over)
2 North Riverside Plaza 12th Floor Chicago, IL 606b6-0899 312.454,1865 Fax 312,930,1033
home page: http://www.cyborg.com
reasonable transportation, food, and lodging expenses of CYBORG personnel that arise under the terms of this Agreement, including tll",::,,;
expenses incurred while such personnel are engaged in performing the above on-site services for the CUSTOMER Any additional services may be
provided to the CUSTOMER under the terms of a separate written agreement between the parties,
7, The CUSTOMER's license to use the CYBORG SYSTEM is valid for a headcount of up to 3,500, Headcount for purposes of this
Agreement shall be defined as the average, active number of persons processed by the CYBORG SYSTEM during any year. CYBORG reserves
the right to periodically audit its customers to verify then-current headcount information, The CUSTOMER agrees to pay an additional license fee for
each 1,000 headcount increase over the headcount stated above, or part thereof, in order to extend the license rights for such an increased
headcount Such additional license fee will be based on CYBORG's then-current list prrces for the headcount to which the CUSTOMER is
Increasing its license, and will be due in full upon the CUSTOMER's receipt of CYBORG's inVOice, The CUSTOMER may not use the CYBORG
SYSTEM to perform data processing, as a service bureau or an outsourcer, for other companies without CYBORG's prior written consent
8, The CUSTOMER agrees and understands that CYBORG has incurred great expense in creating its system and has a proprietary
interest in it, which is protectible under the law of trade secret, contract and copyright The CUSTOMER represents, agrees, covenants, and
promises that it will not: (a) reverse-engineer, disclose, sublicense, resell or sublease the CYBORG SYSTEM, or any updates, changes,
improvements or enhancements, or any part thereof, (b) will hold in the strictest fiduciary confidence all material of CYBORG, including but not
limited to, the design specifications and associated documentation of the CYBORG SYSTEM, and (c) will reproduce all proprietary notices or
legends of CYBORG as they now appear or as CYBORG may in the future furnish to its customers on the licensed programs, documentation, and
the media and/or packaging containing them, The CUSTOMER further acknowledges and agrees that, in the event of a breach or threatened or
anticipatory breach (referred to, collectively or individually, as a Breach) by the CUSTOMER of the provisions of this paragraph, that no adequate
remedy at law in money or damages will be available to CYBORG that will fairly compensate CYBORG Therefore, CYBORG shall be entitled to
seek an injunction against such Breach, and reasonable attorney's fees for bringing and maintaining an action to remedy such Breach, However, no
designation in this Agreement of a specific legal or equitable remedy shall be construed as a waiver or prohibition of any other legal remedies in the
event of a Breach of this Agreement The obligations contained in this paragraph shall survive this Agreement, the consummation of this
transaction, and the delivery of any documents, and thereafter shall remain in effect for as long as CYBORG is entitled to protection of its
proprietary interest in the CYBORG SYSTEM under applicable law, The CUSTOMER further agrees, if requiring third party consultants to perform
services regarding the CYBORG SYSTEM, to bind such third parties, in Writing prior to such third parties' access to the CYBORG SYSTEM, to
nondisclosure terms that are the same as those contained in this paragraph,
9, CYBORG agrees to indemnify and hold the CUSTOMER harmless against any claims by any third person and costs in connection with
defense thereof resulting from alleged trade secret, patent, trademark or copyright infringement by the CUSTOMER's use of the CYBORG
SYSTEM in accordance with this Agreement, provided that CYBORG: (a) is notified promptly by the CUSTOMER, in writing, of any action or
allegation of infringement and (b) shall have sole control of defense of any such action and all negotiations for its settlement or compromise,
10. CYBORG shall not, without the CUSTOMER's prior written consent, use or disclose to others any of the CUSTOMER's technical and
accounting data or proprietary confidential information acquired by CYBORG from the CUSTOMER
11, This Agreement is personal in nature and therefore is not assignable by the CUSTOMER without CYBORG's express written consent
Any such assignment is contingent on the assignee's expressly assuming the CUSTOMER's obligations under this Agreement and being subject to
all of its terms and conditions,
12, Each paragraph and provision of this Agreement is severable from the entire Agreement and, if one paragraph and/or provision is
declared invalid, the remaining paragraphs and provisions shall remain in effect
13. THE PARTIES ACKNOWLEDGE THAT THERE IS GREAT DIFFICULTY IN ASCERTAINING DAMAGES UNDER THIS
AGREEMENT AND IT IS THEREFORE AGREED THAT THE LIABILITY OF CYBORG TO THE CUSTOMER FOR ANY DIRECT LOSSES OR
DAMAGES ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT STATED IN PARAGRAPH 2 OF THE AGREEMENT.
IT IS FURTHER AGREED EXPRESSLY BETWEEN THE PARTIES THAT IN NO EVENT SHALL CYBORG BE LIABLE FOR ANY INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC
LOSS IN CONNECTION WITH, OR ARISING OUT OF, THE SERVICES PROVIDED FOR IN THIS AGREEMENT AND/OR THE
PERFORMANCE OF OR THE CUSTOMER'S USE OF THE CYBORG SYSTEM, WITH THE EXCEPTION OF THE INDEMNIFICATION
EXPRESSED IN PARAGRAPH 9 ABOVE.
14, CYBORG shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures
result from causes beyond its reasonable control, provided that, in order to be excused from delay or failure to perform, CYBORG must act
diligently to remedy the cause of such delay or failure,
15, The fees referred to in Paragraphs 2 and 6 do not include any local or state sales or use taxes, any assessment of which shall be paid
by the CUSTOMER Without limiting the foregoing, the CUSTOMER shall promptly pay to CYBORG any amounts actually paid or required to be
collected or paid by CYBORG pursuant to any statute, ordinance, rule or regulation of any legally constituted taxing authority, If the CUSTOMER
claims tax exempt status or the right to remit taxes directly, the tax exempt number must be entered on the front page of this Agreement and the
CUSTOMER shall indemnify and hold CYBORG harmless for any loss occasioned by its failure to pay any tax when due, Also, CYBORG may, at
its option, charge interest on fee payments that are more than thirty (30) days overdue in the amount of 1,5% per month (or 18% per annum) or the
then-current highest applicable rate,
16, This Agreement shall be governed by and construed with the laws of the State of Illinois,
17, This Agreement supersedes all prior agreements and understandings between the CUSTOMER and CYBORG, including any
representations, expressed or implied, and any letters, proposals, quotations, statements, or purchase orders that are not expressly set forth, or
incorporated by reference herein, into this Agreement The CUSTOMER acknowledges that the provisions of this Agreement may not be changed,
terminated, or waived orally, but any such change, termination or waiver of any provisions shall only be binding if in writing and signed by both
parties,
The parties, each acting under proper authority, have signed this Agreement on the date(s) indicated below,
Robert Pa
CYBORG SYSTEMS, INC.
APPROVE[J~~ % _) .
FORMR,lAN '~'~~/
FOR EXECUTION t7" Signatur~
1:- - I . r~(. Steven J. Wemberg
Name (Typed/Printed)
President
Title
January 14, 1999
Date of Signing
\/7,. \ /en
, D.J~
Neisen