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DocuSign Envelope ID: BB9808EA-C41D-477D-BF12-AB309B9D2BA0
SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement, including the attached Exhibits (“Agreement”), is entered into by and between
BS&A Software LLC ("BSA"), a Delaware corporation and the City of Muskegon, Muskegon County MI (“Customer”),
effective the date of the signature of the last Party to sign the Agreement (“Effective Date”). Each party to the Agreement
is referred to as a “Party” and the parties, collectively, are referred to as “Parties.”
This Agreement sets the terms and conditions under which BSA will furnish certain Software as a Service (“SaaS”) and
certain professional services described herein to Customer.
SECTION A – SAAS SERVICES
1. Rights Granted.
1.1. Upon the Effective Date, subject to the terms of this Agreement and Customer’s ongoing compliance
therewith, BSA hereby grants to Customer a non-exclusive, non-transferable, and non-assignable license to
use the BSA Software Products. “BSA Software Product(s)” means, the: (i) BSA Software as a Service set forth
in Schedule 1 to Exhibit A; (ii) related interfaces and customizations; (iii) BSA manuals, BSA official
specifications, and BSA user guides provided in or with BSA software products set forth in Schedule 1 to
Exhibit A (“Documentation”); and (iv) all modifications to the BSA software products set forth in Schedule
1 to Exhibit A, including, but not limited to, fixes, new versions, new releases, updates, upgrades,
corrections, patches, work-arounds (collectively, “Modifications”). For the avoidance of doubt,
Documentation does not include advertising, other general statements about products, or statements by
sales or other staff members.
1.2. Customer acknowledges that BSA will not ship copies of the BSA Software Products as part of the SaaS
Services.
2. Restrictions. Customer will not (i) sublicense, modify, adapt, translate, or otherwise transfer, reverse compile,
disassemble or otherwise reverse engineer BSA Software Products or any portion thereof without prior written
consent of BSA; (ii) access or otherwise use the BSA Software Products to create or support, and/or assist a third
party in creating or supporting software products competing with the BSA Software Products; or (iii) assign,
disclose, display, distribute, host, lease, license, outsource, permit timesharing or service bureau use, rent, sell,
transfer or otherwise use the BSA Software Products for any commercial use other than fulfilling Customers own
internal business purposes. Without limiting the foregoing, the BSA Software Products may not be modified by
anyone other than BSA. If Customer modifies the BSA Software Products without BSA’s prior written consent, any
BSA obligation to provide support services on, and the warranty for, the BSA Software Products will be void. All
rights not expressly granted are reserved.
3. SaaS Fees. Customer agrees to pay BSA, and BSA agrees to accept from Customer as payment in full for the rights
granted herein, the SaaS fees set forth in Schedule 1 to Exhibit A.
4. Ownership.
4.1. BSA retains all ownership and intellectual property rights to the SaaS Services, the BSA Software Product(s),
and anything developed by BSA under this Agreement. Customer does not acquire under this Agreement any
license to use the BSA Software Product(s) beyond the scope and/or duration of the SaaS Services. Customer
agrees not to challenge such rights and hereby assigns any and all copyrights and other intellectual property
rights in and to the BSA Software Products to BSA and agrees to execute any and all documents necessary to
effect the purpose of this paragraph. “Intellectual property rights” means all trademarks, copyrights, patents,
trade secrets, moral rights, know-how, and all other proprietary rights.
DocuSign Envelope ID: BB9808EA-C41D-477D-BF12-AB309B9D2BA0
4.2. Customer retains all ownership and intellectual property rights to the data.
5. Limited Software Warranty.
5.1. BSA warrants, for the term of use granted, that the BSA Software Products will perform without material defects
in workmanship or materials. Customer’s exclusive remedy in the event of a breach of this warranty shall be to
have BSA use reasonable efforts, consistent with industry standards, to repair or replace the non-conforming
BSA Software Product so as to render it conforming to the warranty, in accordance with the maintenance and
support process set forth below in Exhibit C and BSA’s then current Support Call Process.
5.2. THE FOREGOING LIMITED SOFTWARE WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS OR
WARRANTIES RELATING IN ANY WAY TO THE BSA SOFTWARE PRODUCTS INCLUDING, BUT NOT LIMITED TO,
THEIR FEATURES, ATTRIBUTES, FUNCTIONALITY, AND PERFORMANCE. THE FOREGOING LIMITED SOFTWARE
WARRANTY IS IN LIEU OF ALL SUCH REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR REPRESENTATIONS OF
MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE
ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE. BSA
DOES NOT REPRESENT OR WARRANT THAT THE BSA SOFTWARE PRODUCTS WILL MEET ANY OR ALL OF
CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE OPERATION OF THE BSA SOFTWARE PRODUCTS WILL
OPERATE ERROR FREE OR UNINTERRUPTED, OR THAT ALL PROGRAMMING ERRORS IN THE BSA SOFTWARE
PRODUCTS CAN BE FOUND IN ORDER TO BE CORRECTED.
6. One Year Money Back Guarantee. BSA offers a one (1) year Money Back Guarantee on all SaaS products. If, for
any reason, Customer is not satisfied with the BSA Software Product, Customer may cancel service within one (1)
year of the date that the BSA Software Product becomes available for use (“Activation Date”), for a full refund of
the SaaS Fees, as identified in Schedule 1 to Exhibit A. Customer must notify BSA of intention to terminate at
least thirty (30) days prior to the end of the one (1) year period.
7. SaaS Services.
7.1. Customer will utilize shared hardware in a data center, but in a database dedicated to Customer’s use, which
is not accessible to other customers.
7.2. Microsoft Azure data centers, or any replacement data centers utilized by BSA during the term of this
Agreement are accessible only by authorized personnel, for specific business purposes, with prior approval
required.
7.3. Data centers utilized by BSA will have redundant telecommunications access, electrical power, and the
necessary hardware to provide access to the BSA Software Products in the event of a disaster or component
failure. In the event any of Customer’s data is lost or damaged due to a negligent act or omission of BSA, or
due to a defect in the BSA Software Product, BSA will use reasonable commercial efforts to restore data on
servers in accordance with the system capabilities and with the objective of minimizing any data loss possible.
BSA’s systems are reasonably designed to ensure that the recovery point shall not exceed a maximum of
twenty-four (24) hours from declaration of disaster. For purposes of this section, the declaration of disaster
shall be declared by BSA in response to issues discovered by BSA, or upon confirmation of issues relayed by
Customer to BSA. Said declaration of disaster will not be unreasonably withheld by BSA.
7.4. In the event that a backup must be restored due to a declaration of disaster, or database failure, BSA will be
responsible for importing backup data and verifying that Customer can log in. Customer will be solely
responsible for running reports and testing critical processes to verify the restored data.
7.5. BSA’s systems are reasonably designed to ensure that, access to the BSA Software Products can be restored
within one (1) business day of the declaration of disaster.
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7.6. Customer will not attempt to reverse engineer, bypass, or otherwise subvert security restrictions in the BSA
Software Products or the SaaS environment related to the BSA Software Products. Unauthorized attempts to
access files, passwords, other confidential information, or unauthorized vulnerability and penetration testing
of BSA’s system (hosted or otherwise) is prohibited without the prior express written approval of BSA.
SECTION B – PROFESSIONAL SERVICES
8. Professional Services. BSA shall provide the services (“Professional Services”) set forth in Schedule 2 to Exhibit
A, for the prices indicated, provided Customer fulfills its obligations set forth in this Agreement. BSA and Customer
may enter into future Statements of Work, which shall become part of this Agreement. Future Statements of Work
resulting from a change in scope to the contracted services may necessitate Change Orders to indicate changes to
the agreed upon scope of work and any increase or decrease in costs related to the change in scope. Customer
acknowledges that the fees stated in the Cost Summary are good-faith estimates of the amount of time and
materials required for Customer’s implementation. BSA will bill Customer for the actual fees incurred based on the
services provided to Customer.
9. Change Orders. In the event of a change in the agreed upon project scope for professional services not covered
or otherwise included in the existing Agreement, Customer shall deliver to BSA’s Project Manager a written change
order and specify in such change order the proposed work with sufficient detail to enable BSA to evaluate it
(“Change Order”). BSA may, at its discretion, prescribe the format of the Change Order. BSA shall provide the
Customer with an evaluation of the Change Order, which may include a written proposal containing the following:
(i) implementation plan; (ii) the timeframe for performance; and (iii) the estimated price for performance of such
change, based on the then current rates for said services. Upon execution, all Change Orders shall be governed by
the terms and conditions of this Agreement, unless mutually agreed upon otherwise in writing. Customer
acknowledges that such Change Orders may affect the implementation schedule and dates otherwise established
as part of the project plan. The implementation schedule and schedule of activities for contracted services (the
“Project”) shall be established based on a timeline mutually agreed upon between the Parties following the
execution of this Agreement.
10. License and Ownership.
10.1. All rights, including intellectual property rights, in and to work product delivered as a result of Professional
Services under this Agreement shall be owned by BSA. For the avoidance of doubt, work product that
constitutes a BSA Software Product, or portion thereof shall be governed by Section A of this Agreement,
including Section 1.1 thereof.
10.2. Subject to Section 10.1 and Customer’s compliance with this Agreement (including payment in full), BSA grants
to Customer a non-exclusive, non-transferrable, and non-assignable license to use the work product and the
intellectual property rights therein for Customer’s internal business purposes only.
11. Cancellation. In the event Customer cancels or reschedules Professional Services (other than for Force Majeure or
breach by BSA), and without prejudice to BSA’s other rights and remedies, Customer is liable to BSA for: (i) all non-
refundable expenses actually incurred by BSA on Customer’s behalf; and (ii) daily Project Management or Training
fees associated with the cancelled Professional Services (in accordance with the daily fee rate), if less than thirty
(30) days advance notice is given regarding the need to cancel or reschedule and BSA cannot reasonably reassign
its affected human resources to other projects where comparable skills are required.
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12. Limited Professional Services Warranty.
12.1. BSA warrants that its Professional Services will be performed in a professional and workmanlike manner,
consistent with industry standards. In the event of a breach of the foregoing warranty and a claim in accordance
with the breach, BSA’s sole obligation and Customer’s exclusive remedy with respect to such claim will be to
have BSA reperform the portion of the Professional Services with respect to which the warranty has been
breached, to bring it into compliance with such warranty. Any claim for breach of the foregoing warranty must
be made by notice to BSA within thirty (30) days of performance of the portion of the Professional Services
with respect to which the claim is made or said claim shall be deemed waived.
12.2. THE FOREGOING LIMITED PROFESSIONAL SERVICES WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS
OR WARRANTIES RELATING TO THE PROFESSIONAL SERVICES, EXPRESS OR IMPLIED. INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OR REPRESENTATIONS OF MERCHANTABILITY, MERCHANTABLE
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN
LAW, OR FROM THE COURSE OF DEALING OR USAGE OF TRADE.
13. Customer Site Access and Assistance.
13.1. Customer agrees and acknowledges that the implementation of the BSA Software Products is a cooperative
process requiring time and resources of Customer personnel. Customer shall, and shall cause Customer
personnel to, use all reasonable efforts to cooperate with and assist BSA as may be reasonably required to
meet the project deadlines and other project milestones agreed to by the Parties for implementation. BSA shall
not be liable for failure to meet such deadlines and milestones when such failure is due to force majeure (as
defined in Section 30, below) or to the failure by Customer personnel to provide such cooperation and
assistance (either through action or omission.)
13.2. At no cost to BSA, Customer agrees to provide to BSA full access to and use of personnel, facilities, and
equipment as reasonably necessary for BSA to provide implementation and training services. Such access will
be subject to any reasonable security protocols or written policies provided to BSA prior to Effective Date of
this Agreement, or mutually agreed to thereafter.
SECTION C – MAINTENANCE AND SUPPORT
14. Maintenance and Support Generally.
14.1. For a one (1) year period, commencing on the Activation Date, and subject to Customer’s compliance with the
Agreement, BSA will provide, at no charge to Customer, “Maintenance and Support”, meaning the following;
(i) Modifications (such as patches, corrections and updates) as are generally provided at no additional charge
by BSA to BSA customers; and (ii) technical support assistance, as further described in Section 14, during BSA’s
normal business hours.
14.2. Commencing one (1) year from the Activation Date, Maintenance and Support will continue to be provided
subject to compliance with the terms of the Agreement and payment of the SaaS Fees outlined in Exhibit B.
14.3. BSA guarantees that the annual SaaS Fees, as set forth in Exhibit B will not change for two (2) years from the
Activation Date. After that date, BSA reserves the right each year to increase the fee over the previous year by
no more than an amount that is proportionate to the increase (measured from the beginning of such previous
year) in the Consumer Price Index as set forth by the U.S. Department of Labor, Bureau of Labor Statistics,
Consumer Price Index – All Urban Customers – U.S. City Average (CPI-U), or a similar measure should such data
become unavailable.
DocuSign Envelope ID: BB9808EA-C41D-477D-BF12-AB309B9D2BA0
14.4. Maintenance and Support and the SaaS fee do not include amounts that may be due for such items as
additional training, additional BSA Software Products, custom development work, hardware purchases, BSA
staff time to create or modify report writer based reports, configurable imports or exports, or data entry.
Additional fees may be payable for items charged on a per event basis, such as Permit Application Submission
Fees related to online permit applications.
15. Support.
15.1. With respect to Errors following expiration of the Limited Software Warranty, BSA’s sole obligation and
Customer’s sole remedy are set forth in this Section 15. Subject to Customer’s compliance with the terms of
the Agreement and payment of SaaS fees, BSA shall use commercially reasonable efforts, commensurate with
the severity level, to achieve its support response and resolution targets with respect to Errors as set forth in
Exhibit C. An “Error” means a verifiable and reproducible failure of a BSA Software Product to operate in
accordance with the Documentation under conditions of normal use and where the Error is directly attributable
to the BSA Software Product as updated with current Modifications. If the customer modifies the BSA Software
Products without BSA’s written consent, BSA’s obligation to provide support services on the BSA Software
Products will be void.
15.2. Support does not include the following: (i) installation or implementation of the BSA Software Products; (ii)
onsite training/support, remote training, application design, and other consulting services; (iii) support of an
operating system, hardware, or support outside of BSA’s normal business hours; (iv) support or support time
due to a cause external to the BSA Software Products adversely affecting their operability or serviceability,
which shall include, but not be limited to, water, fire, lightning, other natural calamities, misuse, abuse, or
neglect; (v) repair of the BSA Software Products modified in any way other than modifications made by BSA or
its authorized agents; and (vi) support of any other third-party vendors’ software, such as operating system
software, network software, database managers, word processers, etc. All such excluded Maintenance and
Support Services performed by BSA at Customer’s request shall be invoiced to Customer on a time and
materials basis, plus reasonable expenses associated therewith.
15.3. Notwithstanding anything to the contrary, Customer shall provide prompt notice of any Errors discovered by
Customer, or otherwise brought to the attention of Customer. Proper notice may include, without limitation,
prompt telephonic and written (either via e-mail or postal mail) notice to BSA of any purported Error. If
requested by BSA, Customer agrees to provide written documentation of Errors to substantiate those Errors
and to otherwise assist BSA in the detection and correction of said Errors. BSA will use its commercially
reasonable judgment to determine if an Error exists, and the severity of the Error.
15.4. Customer acknowledges and agrees that BSA and product vendors may require online access to the BSA
Software Product in order for BSA to provide Maintenance and Support Services hereunder. Accordingly,
Customer shall provide a high-speed internet connection to facilitate BSA’s remote access to the BSA Software
Products. BSA shall provide remote connection software, which may require installation of a software
component on a workstation or server computer.
SECTION D – THIRD PARTY PRODUCTS
16. Third Party Products.
16.1. BSA will sell, deliver and install onsite any hardware products not produced by BSA (“Third-Party Hardware”),
if purchased by Customer, for the prices set forth in Schedule 1 to Exhibit A, as modified by any subsequent
Change Order(s).
16.2. BSA shall not provide any warranty services on Third Party Hardware sold. BSA is not the manufacturer of the
Third-Party Products. To the extent applicable, BSA will grant and pass through to Customer any warranty that
BSA may receive from the supplier of the Third-Party Product(s).
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SECTION E – GENERAL TERMS AND CONDITIONS
17. BSA Proprietary Information.
17.1. Customer acknowledges that the information associated with or contained within the BSA Software Products
and information used in the performance of Professional Services include information relating to BSA Software
Products, BSA’s business, and the terms of this Agreement (the “Proprietary Information”).
17.2. Customer shall maintain in confidence and not disclose Proprietary Information, directly or indirectly, to any
third party without BSA’s prior written consent. Customer shall safeguard the Proprietary Information to the
same extent that it safeguards its own most confidential materials or data, but in no event shall the standard
implemented be less than industry standard. Proprietary Information shall be used by Customer solely to fulfill
its obligations under this Agreement. Customer shall limit its dissemination of such Proprietary Information to
employees within the Customer’s business organization who are directly involved with the performance of this
Agreement and have a need to use such Proprietary Information. Customer shall be responsible for all
disclosures by any person receiving Proprietary Information, by or through it, as if Customer itself disseminated
such information.
17.3. Proprietary Information shall not include any information that: (a) is or becomes publicly known through no
wrongful act of breach of any obligation of confidentiality by Customer; (b) was lawfully known to Customer
prior to the time it was disclosed to or learned by Customer in connection with this Agreement, provided that
such information is not known to Customer solely because of its prior business relationship with BSA; (c) was
received by Customer from a third party that is not under an obligation of confidentiality to BSA; or (d) is
independently developed by Customer for a party other than BSA without the use of any Proprietary
Information. The following circumstances shall not cause Proprietary Information to fall within any of the
exceptions (a) through (d) above: (i) a portion of such Proprietary Information is embraced by more general
information said to be in the public domain or previously known to, or subsequently disclosed to, the
Customer; or (ii) it is a combination derivable from separate sources of public information, none of which
discloses the combination itself.
17.4. If Customer is required, or anticipates that it will be required, to disclose any Confidential Information pursuant
to a court order or to a government authority, Customer shall, at its earliest opportunity, provide written notice
to BSA so as to give BSA a reasonable opportunity to secure a protective order or take other actions as
appropriate. Customer shall at all times cooperate with BSA so as to minimize any disclosure to the extent
allowed by applicable law.
18. Limitation on Liability and Damages. BSA’S ENTIRE LIABILITY AND RESPONSIBILITY FOR ANY AND ALL CLAIMS,
DAMAGES, OR LOSSES ARISING FROM THE BSA SOFTWARE PRODUCTS (INCLUDING BUT NOT LIMITED TO THEIR
USE, OPERATION AND/OR FAILURE TO OPERATE), PROFESSIONAL SERVICES, MAINTENANCE AND SUPPORT, ANY
THIRD-PARTY PERFORMANCE OR LACK THEREOF, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS
AGREEMENT, SHALL BE ABSOLUTELY LIMITED IN THE AGGREGATE FOR ALL CLAIMS TO DIRECT DAMAGES NOT IN
EXCESS OF THE INITIAL SAAS FEES PAID FOR THE FIRST YEAR OF SERVICE OF THE BSA SOFTWARE PRODUCTS
PLUS, TO THE EXTENT APPLICABLE, THE PURCHASE PRICE OF ANY PROFESSIONAL SERVICE SET FORTH IN THIS
AGREEMENT THAT GIVES RISE TO A CLAIM. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN, BSA
SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR CONTINGENT DAMAGES
OR EXPENSES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING IN ANY WAY
OUT OF THIS AGREEMENT, BSA SOFTWARE PRODUCTS, ANY THIRD-PARTY PERFORMANCE, OR LACK THEREOF,
OR BSA’S PERFORMANCE, OR LACK THEREOF, UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, LOSS OF REVENUE, PROFIT, OR LOSS OF USE. TO THE EXTENT THAT APPLICABLE
LAW DOES NOT PERMIT THE LIMITATIONS SET FORTH HEREIN, THE LIABILITY AND DAMAGES SHALL BE LIMTED
AND RESTRICTED TO THE EXTENT PERMITTED BY LAW.
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19. Additional Disclaimer. BSA PROVIDES NO WARRANTY FOR ANY THIRD-PARTY SOFTWARE AND/OR HARDWARE,
EXCEPT AS SET FORTH IN THIS AGREEMENT, BSA WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE,
THIRD-PARTY SERVICES AND/OR HARDWARE.
20. Indemnification for Intellectual Property Infringement. If a claim is made or an action is brought alleging that
a BSA Software Product infringes on a U.S. patent, or any copyright, trademark, trade secret or other proprietary
right, BSA will defend Customer against such claim and will pay resulting costs and damages finally awarded,
provided that: (a) customer promptly notifies BSA in writing of the claim; (b) BSA has sole control of the defense
and all related settlement negotiations; (c) Customer reasonably cooperates in such defense at no expense to BSA;
and (d) Customer remains in compliance with the Agreement and has continued to remain current on payment of
SaaS fees. The obligations of BSA under this Section are conditioned on Customer’s agreement that if the applicable
BSA Software Product, in whole or in part, or the use or operation thereof, becomes, or in the opinion of BSA is
likely to become, the subject of such a claim, BSA may at its expense and without obligation to do so, either procure
the right for the Customer to continue using the BSA Software Product or, at the option of BSA, replace or modify
the same so that it becomes non-infringing (provided such replacement or modification maintains the same
material functionality and does not adversely affect Customer’s use of the Update as contemplated hereunder). In
the event that BSA provides a replacement for Customer, Customer shall cease use of the infringing product
immediately upon receiving the replacement. THIS SECTION 20 SETS FORTH THE ENTIRE LIABILITY AND
OBLIGATION OF BSA AND THE SOLE AND EXCLUSIVE REMEDY FOR CUSTOMER FOR ANY DAMAGES ARISING
FROM ANY CLAIM OR ACTION COVERED BY THIS SECTION 20.
21. No Intended Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of BSA and
Customer. No third party will be deemed a beneficiary of this Agreement, and no third party will have the right to
make any claim or assert any right under this Agreement.
22. Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of
the state of Michigan, without regard to its choice of law rules. BSA and the Customer agree that the exclusive
venue for any legal or equitable action shall be the Courts of the County of Clinton, State of Michigan, or in any
court in the United States of America lying in the Western District of Michigan.
23. Entire Agreement. This Agreement represents the entire agreement of Customer and BSA with respect to the
subject matter hereof, and supersedes any prior agreements, understandings, and representations, whether written,
oral, expressed, implied, or statutory. Customer hereby acknowledges that in entering into this Agreement, it did
not rely on any information not explicitly set forth in this Agreement.
24. Contract Term. This initial term of this Agreement extends from the Effective Date of the Agreement until one (1)
year from the Activation Date. Upon expiration of the initial term, this Agreement will renew automatically for
successive one (1) year terms under the same terms and conditions set forth herein without further documentation
being required unless and until either party provides written notice to the other party, at least sixty (60) days prior
to the end of the then current term. Customer’s right to access or use the BSA Software Product will terminate at
the end of the Agreement.
25. Payment Terms. Customer shall pay BSA for all amounts in accordance with this Agreement and Exhibit A.
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26. Termination. Without prejudice to other rights and remedies, and except as otherwise provided in this Agreement,
either Party may terminate this Agreement as set forth below. Upon termination of this Agreement: (a) Customer
shall promptly pay BSA for all fees and expenses that are not subject to a good faith dispute and that are related
to the software, products, and/or services received, or expenses BSA has incurred or delivered, prior to the effective
date of the termination (b) Customer shall return or destroy, at the direction of BSA, BSA’s Proprietary Information
in its possession. The termination of this Agreement will not discharge or otherwise affect any pre-termination
obligations of either Party existing under this Agreement at the time of termination. Sections 2, 4, 16 through 18,
21-23, 25 -39, and the provisions of this Agreement which by their nature extend beyond the termination of this
Agreement, will survive the termination of the Agreement. No action arising out of this Agreement, regardless of
the form of action, may be brought by Customer more than one (1) year after the date the action occurred.
26.1. Termination for Cause. If Customer believes that BSA has materially breached this Agreement, Customer may
terminate this Agreement for Cause in the event BSA does not cure, or create a mutually agreeable plan to
address, a material breach of this agreement within thirty (30) days after Notification by Customer. Notice shall
be provided in accordance with Section 31, below.
26.2. Force Majeure. Either Party may terminate this Agreement if a Force Majeure event suspends performance of
the SaaS Services for a period of forty-five (45) days or greater.
26.3. Lack of Appropriations. If Customer cannot appropriate, or otherwise make available funds sufficient to
continue to utilize the SaaS Services, Customer may unilaterally terminate this Agreement with thirty (30) days
written notice to BSA. Customer shall not be entitled to a refund, offset, or credit for previously paid, but
unused SaaS fees.
26.4. Failure to Pay SaaS Fees. Customer acknowledges that timely payment of SaaS Fees is necessary to maintain
continued access to the SaaS Services. If Customer does not make timely payment of SaaS fees, BSA may
discontinue the SaaS Services, and deny access to the BSA Software Products. If such failure to pay is not cured
within forty-five (45) days of receiving BSA’s notice of intent to terminate, BSA may terminate this Agreement.
26.5. Convenience. If Customer terminates SaaS Services for convenience, any SaaS fees already paid will not be
prorated, and will be retained by BSA.
27. Severability. If any term or provision of this Agreement, or the application thereof, to any extent, is held invalid or
unenforceable, the remainder of this Agreement or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby, and
each term and provision of this Agreement will be valid and enforced to the fullest extent permitted by law.
28. No Waiver. In the event that any terms or conditions of this Agreement are not strictly enforced by either Party,
such nonenforcement will not act as, or be deemed as, a waiver or modification to this Agreement, nor will such
nonenforcement prevent either Party from enforcing terms of the Agreement thereafter.
29. Successors and Assigns. This Agreement shall be binding upon the successors, permitted assigns, representatives,
and heirs of the Parties hereto. For avoidance of doubt, any expanded use by Customer of the Program, for example,
in the event of annexation or desired shared services, shall require the consent of BSA.
30. Force Majeure. “Force Majeure” is defined as an event beyond the reasonable control of a Party, including
governmental action, war, riot or civil commotion, fire, natural disaster, epidemic, pandemic, other public health
emergency, problematic weather, lack of availability of Customer provided technology, labor disputes, restraints
affecting shipping or credit, delay of carriers or any other cause that could not, with reasonable diligence, be
foreseen, controlled or prevented by the Party. Neither Party shall be liable for delays in performing its obligations
under this Agreement to the extent that the delay is caused by Force Majeure.
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31. Notice. All notices, requests, demands, and determinations under the Agreement (other than routine operational
communications), shall be in writing and shall be deemed duly given: (i) when delivered by hand; (ii) one (1) business
day after being given to a nationally recognized overnight delivery service for next-business-day delivery, all fees
prepaid; (iii) when sent by confirmed facsimile with a copy sent by another means specified in this provision; or (iv)
six (6) calendar days after the day of mailing, when mailed by United States mail, via registered or certified mail,
return receipt requested, postage prepaid, and in each case addressed as shall be set forth below. A Party may
from time-to-time change its address or designee for notification purposes by giving the other prior written notice
of the new address or designee and the date upon which it will become effective.
If to BSA:
BSA Software
14965 Abbey Lane
Bath, MI 48808
Attn: Contracts Manager
Telephone: 517-641-8900
If to Customer:
City of Muskegon Finance Office
933 Terrace St
Muskegon, MI 49440
Telephone: 231-724-6713
32. Independent Contractor. This is not an agreement of partnership or employment of BSA or any of BSA’s
employees by Customer. BSA is an independent contractor for all purposes under this Agreement.
33. Cooperative Procurement. To the maximum extent permitted by applicable law, BSA agrees that this
Agreement may be used as a cooperative procurement vehicle by eligible jurisdictions. BSA reserves the right to
negotiate and customize the terms and conditions set forth herein, including but not limited to pricing, to the
scope and circumstances fitting to that cooperative procurement.
34. Business License. In the event a local business license is required for BSA to perform the services under this
Agreement, Customer agrees to promptly notify and inform BSA of such requirement, as well as to provide BSA
with the necessary paperwork and contact information so that BSA can obtain such license in a timely manner.
35. Nondiscrimination. BSA will not discriminate against any person employed, or applying for employment,
concerning the performance of BSA’s responsibilities under this Agreement. This discrimination prohibition will
apply to all matters of employment including hiring, tenure, and terms of employment, or otherwise with respect
to any matter directly or indirectly relating to employment concerning race, color, religion, national origin, age,
sex, sexual orientation, ancestry, disability that does not impact the individual’s ability to perform the duties of a
particular job or position, height, weight, marital status, or political affiliation. BSA will post, where appropriate, all
notices related to nondiscrimination as may be required by applicable law.
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36. Taxes. Fees for SaaS Services, Professional Services, or any other fees shown in Schedule 1 to Exhibit A do not
include any taxes, including, without limitation, any sales, use or excise tax. Customer shall be responsible for all
taxes, exclusive of taxes on BSA’s net income, arising out of this Agreement. If Customer is not validly tax-exempt,
and BSA is required to remit taxes on customer’s behalf, Customer agrees to reimburse BSA for any taxes by BSA.
37. U.S. Government Rights. Each instance of the Documentation, Modifications and software that are constituents
of BSA Software Products is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of
"commercial computer software" and "commercial computer software documentation" as such terms are used in
48 C.F.R. § 12.212. Any use, modification, reproduction release, performance, display or disclosure of the
Application by the U.S. Government shall be solely in accordance with the terms of this Agreement.
38. Export Control. Certain uses of the Software by Licensee may be subject to restrictions under United States
regulations relating to exports and ultimate end uses of computer software. Licensee agrees to fully comply with
all applicable United States laws and regulations, including but not limited to the Export Administration Act of
1979, as amended from time to time, the Arms Export Control Act, as amended from time to time, any regulations
promulgated thereunder to implement those statutes, and all sanctions programs administered by the U.S.
Government.
39. Contract Documents and Order of Precedence. The text of this Agreement without any Exhibits and Schedules
shall control over any inconsistent text in any of the Exhibits or Schedules. This Agreement includes the following
Exhibits and Schedules:
Exhibit A – Payment Terms Generally
Schedule 1 to Exhibit A – SaaS/Interface/Customization Fees
Schedule 2 to Exhibit A – Professional Service Fees
Exhibit B – Annual Service Fees
Exhibit C – Support Call Process
IN WITNESS THEREOF, the Parties hereto have executed this Agreement as of the dates set forth below.
BS&A SOFTWARE, LLC CUSTOMER
By: ______________________________ By: ___________________________
Mark Puetz Ken Johnson
Name: ___________________________ Name: _________________________
Title: ____________________________
Product Manager Mayor
Title: __________________________
9/27/2023 10/2/2023
Date: ____________________________ Date: __________________________
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EXHIBIT A
Payment Terms
1. Customer shall pay BSA within thirty (30) days of invoice. Payments not received within fifteen (15) days of
the due date shall be subject to a one and one-half percent (1.5%) per month interest charge (or, if lower, the
highest amount chargeable at law) assessed against the unpaid balance from the date due until the date
payment is received
2. Any amount not subject to good faith dispute and not paid within fifteen (15) days of the due date of each
invoice shall, without prejudice to other rights and remedies, be subject to an interest charge equal to the
lesser of 1.5% monthly or the maximum interest charge permissible under applicable law, payable on demand.
Any charges not disputed by Customer in good faith will be deemed approved and accepted by Customer.
For purposes of this Agreement, a good faith dispute regarding amounts owed exists only if Customer provides
in writing at least ten (10) days prior to due date of payment on the invoice, notification of such dispute, the
specific portion of the invoice in dispute, and the specific grounds of the dispute (which must be asserted in
good faith), and Customer pays in timely fashion such portions that are not subject to such dispute.
3. BSA shall invoice Customer $30,800 upon Effective Date for BSA’s Project Management/Implementation
Planning Fees and Data Conversion fees as set forth in Schedule 2.
4. BSA shall invoice Customer $132,300 upon activation of Customer’s site for use of the BSA Software Product(s).
Such amount equals BSA’s SaaS Fees as set forth in Schedule 1.
5. BSA shall invoice Customer $69,375 at completion of On-Site Implementation and Training. Such amount
equals On-Site Implementation and Training costs, Customization and Interface costs, and travel expenses, as
set forth in Schedule 2.
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Schedule 1 to Exhibit A
SaaS Fees
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Schedule 2 to Exhibit A
Professional Services Fees
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EXHIBIT B
Annual Service Fees
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EXHIBIT C
Support Call Process
BSA’s standard hours for telephone support are from 8:30 a.m. to 5:00 p.m. (EST), Monday through Friday, excluding
holidays.
Customer can lodge a support request in three ways: (i) Contact Customer Support option located within the Help
menu of all of BSA’s applications (ii) BSA’s toll-free support line (1-855-BSA-SOFT) or via email.
BSA targets less than thirty (30) minutes for initial response (“Initial Response Target”).
Customer service requests fall into four main categories:
A. Technical. Questions or usage issues relating to I.T. functionality, future hardware purchases, and
configuration. BSA tries to resolve these issues within BSA’s Initial Response Target or as soon thereafter as
reasonably possible.
B. Questions/Support. General questions regarding functionality, use, and set-up of the applications. BSA tries
to resolve these issues within BSA’s Initial Response Target or as soon thereafter as reasonably possible.
C. Requests. Customer requests for future enhancements to the applications. Key product management
personnel meet with development staff on a regular basis to discuss the desirability and priority of such
requests. BSA tries to resolve these issues within BSA’s Initial Response Target or as soon thereafter as
reasonably possible.
D. Issues/Bugs. Errors fall into three (3) subcategories:
i. Critical. Cases where an Error has rendered the application or a material component unusable or not
usable without substantial inconvenience causing material and detrimental consequences to business
-- with no viable Customer workaround or alternative. The targeted resolution time for critical issues is
less than one (1) business day.
ii. Moderate. Cases where an Error causes substantial inconvenience and added burden, but the
application is still usable by Customer. The targeted resolution time for all moderate issues is within
two (2) weeks, which is within BSA’s standard update cycle.
iii. Minimal. Cases that are mostly cosmetic in nature, and do not substantially impede functionality in
any significant way. These issues are assigned a priority level at BSA’s regular meetings, and resolution
times are based on the specified priority.
Remote Support Process
Some support calls may require further analysis of Customer’s database or set-up to diagnose a problem or to assist
Customer with a question. BSA’s remote support tools share Customer’s desktop via the Internet to provide Customer
with virtual on-site support. BSA’s support team is able to connect remotely to Customer’s desktop and view its setup,
diagnose problems, or assist Customer with screen navigation.