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HomeMy WebLinkAboutContract 37121CITY SECRETARY � i a � CONTRACT NO I N T E R N A T I O N A L Evaluation Agreement for DCAI Software and Hardware 8 Faneuil Hall Marketplace, 3rd Floor Boston, Massachusetts 02109 Toll -free: 1 866 454 3224 www.dcainti.com Copyright ©2000-2008, Database Consultants Australia (DCA) and DCA International (DCAI) This publication is protected by copyright, remains the property of DCA and DCAI and is provided under specific product license only. No part of this publication may be reproduced, distributed, transmitted or stored, electronically or mechanically, for any purpose, on any media, in any form or by any means whatsoever, without the explicit written authority of DCA or DCAI being first had and obtained. Information in this publication and the products and procedures described herein are subject to changes without notice. To the extent permitted by law, the publication and information in the publication must be distributed to authorized persons only and held in confidence by them. The information contained herein shall be used only for the express purpose described within the product license. DCA and DCAI assumes no responsibility or liability for damages arising from the inability to use this publication or for any omissions from and errors in this publication. DCA International City of Fort Worth, Texas Page 2 TABLE OF CONTENTS PRODUCTEVALUATION Agreement...................................................................................................4 1. Definitions and Interpretations.................................................................................................4 2. Schedules................................................................................................................................6 3. Rights &Title...........................................................................................................................6 4. Prohibited Usage..................................................................................................................... 7 5. Confidentiality..........................................................................................................................7 6. Warranties and Limitation of Remedies.................................................................................0 8 7. Term and Termination.............................................................................................................8 8. General Provisions..................................................................................................................9 ExecutionPage....................................................................................................................................10 Schedule1............................................................................................................................................11 - Reference Schedule........................................................................................................................11 DCA International City of Fort Worth, Texas Page 3 PR®DUCT EVALUATION AGREEMENT h This Agreement is made the J day of 1 2008 BETWEEN The City of Fort Worth Of 1000 Throckmorton Street, Fort Worth (Tarrant County) in the State of Texas, USA (the Customer) Of the First Part DCAI International, LLC a Delaware Limited Liability Company Of 3`d Floor, 8 Faneuil Hall, Marketplace, Boston in the State of Massachusetts, USA )CAn Of the Second Part RECITALS: A. DCAI is an authorized reseller of the Product and systems owned by the Sarb Management Group Pty Ltd trading as Database Consultants Australia of Level 5, 355 Spencer Street, West Melbourne in the State of Victoria, Australia (hereafter "DCA"), and has the authority to authorize Customer to use the Product and systems for purposes of this Agreement. B. DCAI and the Customer agree that the following terms and conditions shall govern the temporary access and use of the Product systems described and identified in Schedule 1 attached hereto, for the purposes of the Customer's evaluation of the Product, its associated documentation and related technical services to be supplied by DCAI and DCA. OPERATIVE PROVISIONS:- 1. Definitions and /nterpretations 1.1 Definitions In this Agreement, the following words and phrases shall, except where there is something or some other matter in the subject or context inconsistent therewith, have the meanings given to them, as follows: - "Agreement" means the terms and conditions described herein as well as the Program Master Document and any Schedules, attachments and appendices and all future addenda, if any. "Commencement Date" means the date as specified at item 5 of Schedule 1. "Customer" means the party herein named at item 2 of Schedule 1. "Intellectual Property Rights" means a proprietary or personal right arising from intellectual activity in the business, industrial, scientific or artistic fields. It includes a Copyright, Trademark, Design, Patent, Semi -conductor or Circuit layout rights, Trade, Trade and Service mark rights, Business or Company Names, Trade Secrets, confidential or other proprietary rights, or any rights to Registration of such rights whether created before or after the date of this Agreement and whether existing in Australia, the USA or otherwise. DCA International City of Fort Worth, Texas Page 4 "Product' includes but is not limited to PinForce and Sentinel technology (including but not limited to computer programs, data, hardware, software and applications) in machine executable code, derivative works, (including but not limited to code software output, screen displays, file hierarchies, graphics and user interfaces), circuit boards, enclosures, formulas, data, inventions, techniques, product designs, trade secrets, and support material including documentation, manuals, flow charts, specifications, training materials, updates, modifications and new releases, as identified at item 8 of Schedule 1, whether provided by DCAI, DCA or provided directly or indirectly by a third party. 1.2 Interpretation In and for the purposes of interpretation of this Agreement, unless inconsistent with the sub - context or subject matter: - (a) The singular includes the plural and vice versa and words importing a gender include other genders; (b) Reference to any legislation or any provision of any legislation includes any amendments, modifications, consolidations or re-enactments of the legislation or any legislative provision substituted for, and all legislation and statutory instruments and regulations issued under, the legislation as it applies to any of the transactions contemplated by this Agreement; (c) A reference to a person includes a reference to the person's heirs, executors, administrators, successors, legal personal representatives, substitutes, permitted transferees and permitted assignees; (d) An agreement, representation, warranty or indemnity in favour of two or more persons is for the benefit of them jointly and severally; (e) A reference to more than one party in this Agreement will be a reference to them jointly and each of them separately; (f) Inconsistencies between the terms of this Agreement will be resolved in the following order of priority:- (i) Schedule 1 to this Agreement; This Agreement. (g) Words importing natural persons will (where appropriate) include corporations, firms, unincorporated associations, partnerships, trusts and any other entities recognised by law and vice versa; (h) Words "written" and "in writing" include any means or visible means of reproduction of words in a tangible and permanently viable form; (i) References to clauses and schedules are references to clauses and schedules (if any) of this Agreement; (j) Reference to aSub-Clause is a reference to aSub-Clause of the clause in which it appears, reference to a paragraph is a reference to a paragraph of the Sub -Clause in which it appears and reference to a sub -paragraph is a reference to a sub- paragraph of a paragraph in which it appears; DCA International City of Fort Worth, Texas Page 5 (k) Reference to any document or Agreement shall be deemed to include references to such document or Agreement as amended, supplemented, varied or replaced for time to time; (I) Reference to time, unless otherwise specified, shall be reference to USA Eastern Standard Time (EST); (m) Reference to currency, unless otherwise specified, shall be reference to United States Dollar (USD$) amounts; and (n) No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it. 1.3 The headings in this Agreement are for the purpose of more convenient reference only and shall not form part of this Agreement or affect its construction or interpretation. 1.4 The Recitals shall be adopted and shall form part of this Agreement. 1.5 Except as otherwise expressed or provided, where under or pursuant to this Agreement or anything done hereunder the day on or by which any act, matter or thing needs to be done falls on a day other than a business day, such act, matter or thing shall be done on the immediately succeeding business day. 1.6 The obligations and liabilities imposed and the rights and benefits conferred on the parties in this Agreement will be binding upon and in favour of the respective parties and each of their respective successors in title, legal personal representatives and permitted assigns. 1.7 In performing this Agreement, both parties must act reasonably and in good faith. 2. Schedu/es 2.1 The Schedules will specify: (a) The Product, Specifications, and Implementation Schedule to be provided or distributed by DCAI for the Customer's evaluation; (b) The Reference Schedule (c) Any applicable Fees - The Customer shall in no way be obligated to pay any fees or compensation in any form to DCAI pursuant to this Agreement; and (d) Any other relevant matters that are in addition to or different from those set forth herein. 3. Rights &Tit/e 3.1 DCAI grants the Customer anon -exclusive, time -limited license to use the Product for evaluation and trial purposes only under the conditions stipulated within this Agreement. This includes but is not limited to the on site installation, maintenance, provision of technical support configuration, advice regarding the use of the Product; recommendations for required infrastructure and/or configuration and if required, the removal of the Product at no charge to the Customer. 3.2 Subject to the terms and conditions of this Agreement, DCAI hereby grants the Customer a royalty free, non-exclusive, non -transferable, personal, revocable license to use the Product solely to perform the evaluation. This Agreement does not include any rights to Product maintenance, support or updates. DCA International City of Fort Worth, Texas Page 6 3.3 DCAI does not warrant the provision of any other services requested or required in the execution of this agreement. This includes but is not limited to: provision of technical support; on -site installation services; advice regarding the use of the Product; recommendations for required infrastructure and/or configuration. 3.4 The Customer shall use the Product solely to process the work of the Customer's own business. 3.5 The Customer is not granted any rights of ownership or title in the Product. Title to and ownership of the Product (and all copies and portions thereof) and all applicable rights to patents, copyrights, trademarks, trade secrets and other intellectual property in the Product, modifications and derivative works, is permanently and irrevocably vested in DCA and its suppliers and shall remain with DCA and its suppliers notwithstanding the delivery of copies to and use of Product by the Customer under this Agreement. 3.6 DCAI and the Customer acknowledge that DCA reserves all rights, copyright, and ownership of the intellectual property embodied in the Product. 3.7 The right to use the Product may be revoked by termination of this agreement as specified in clause 7 (Term and Termination). 4. Prohibited Usape 4.1 The Customer shall not (and shall not allow any third party to): (a) use the Product to process the work of any non- majority owned subsidiary, non - majority owned affiliate or third party; (b) translate, reverse engineer, decompile, disassemble or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Product by any means; (c) provide, rent, lease, license, transfer or grant any rights in the Product, in full or in part, to or for the benefit of third parties; (d) remove or alter any product identification, copyright, trademark or other proprietary notices, labels or marks on or in the Product; (e) modify, incorporate into or with other Product, or create a derivative work of any part of the Product; (f) except as designated, transmit or use the Product over a network of interconnected computers and associated devices; (g) except as designated, transmit or use the Product over a network of interconnected computers and associated devices; 5. Confidentia/itV 5.1 The Customer agrees that the Product constitutes and includes valuable trade secrets and confidential information of DCAI, DCA and/or their third party suppliers, as applicable. To the extent allowed by law, the Customer agrees to hold such in, in confidence and to take all reasonable precautions necessary to protect the confidentiality of such information. Unless disclosure is required by applicable law, rule, regulation or court order, the Customer further agrees not to disclose, provide or otherwise make available such information in any form to DCA International City of Fort Worth, Texas Page 7 any person other than the Customer's own employees, DCA's employees or DCAI's employees. This provision shall survive any cancellation or termination of this Agreement. 5.2 DCAI agrees to hold any information provided to it by the Customer in the course of executing this agreement in confidence and to take all reasonable precautions necessary to protect the confidentiality of such information. DCAI further agrees not to disclose, provide or otherwise make available such information in any form to any person other than the Customer's own employees or DCAI 's employees. DCAI shall, if requested by the Customer, deliver up to the Customer or destroy any Confidential Information provided to it by the Customer. This provision shall survive any cancellation or termination of this Agreement. 5.3 The Customer's and DCAI's obligations of the above clauses under Sections 5.1 and 5.2 shall continue for five (5) years from the date of termination of this Agreement. This Agreement does not restrict or impair the right of the Customer or DCAI to use or disclose any technical information or data which: (a) is or becomes generally available to the public through no wrongful act or breach of the Customer or DCAI; (b) was in the possession of the Customer or DCAI prior to execution of this agreement, and was not acquired directly or indirectly from the Customer or DCAI or others under an obligation of confidentiality; or (c) Is independently made available to the Customer or DCAI by a third party without an obligation of secrecy, provided the third party did not acquire it directly or indirectly from DCAI or the Customer. 5.4 It is not a breach of this clause 5 for the Customer or DCAI to disclose confidential information which it is obliged by law, ruling, court order or the rules or laws of any stock exchange to disclose to the person to whom it is disclosed. 6. Warranties and Limitation of Remedies 6.1 DCAI warrants that it has full authority to provide the Product for the purposes of evaluation by the Customer. 6.2 The Customer agrees that neither DCAI nor DCA shall be liable for any of the Customer's consequential or incidental damages which may arise in connection with the Customer's use of the Product. 6.3 The Customer acknowledges that the Product may be apre-release version and thus assumed to not be free of bugs or other errors. The Customer assumes all liability and care for all activities connected with the evaluation of the Product. 6.4 Any liability of DCAI, DCA, and their officers, agents or employees with respect to the Product or the performance thereof under any warranty, contract, negligence, strict liability, vicarious liability or other theory is specifically excluded. 6.5 Neither DCAI nor DCA warrant or support any Product, operating systems, operating hardware, networking Product or hardware or related items that are not produced by and owned by DCAI and/or DCA unless expressly stated within this agreement. 7. Term and Termination 7.1 This agreement is to allow the Customer to evaluate the Product for the period stipulated at item 6 of Schedule 1 of this document or for 90 days, whichever is the lesser. This agreement DCA International City of Fort Worth, Texas Page 8 does not constitute a future commitment by the customer to DCAI beyond the terms specified in this document and neither does it indicate that there is any bind between the two parties beyond the date of termination on this agreement. 7.2 This agreement is terminated automatically if the Customer is or becomes subject to any event of insolvency, including without limitation becoming a party to a composition or arrangement with any of its creditors. 7.3 Either DCAI or Customer at its option may terminate the agreement at any time by notifying the other in writing. 7.4 Upon termination, the Customer shall immediately cease all use of the Product. 7.5 Within fifteen (15) days after termination of the Agreement, the Customer shall destroy the original and all copies of the Product in all forms, and shall certify to DCAI in writing that such obligation has been completed; however, upon expiration or termination of the evaluation period, DCAI shall remove all hardware installed on City equipment, property and vehicles at no charge and repair all damage including holes made as part of installations, to the City's satisfaction. 8. Genera/Provisions 8.1 This agreement is made in and bound by the laws of the State of Texas, USA. Venue shall lie in Tarrant County, Texas, 8.2 This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties provided, however, that the Customer shall not assign this Agreement or the License, or any right granted nor delegate any duties under this Agreement, in whole or in part, without the prior written consent of DCAI. 8.3 The waiver of a breach of this Agreement or the failure of DCAI or the Customer to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. 8.4 If any provisions of this Agreement are invalid under any applicable statute or rule of law, they areI to that extent, omitted, but the remainder of this Agreement shall continue to be binding upon the parties. 8.5 Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties. No party by virtue of this Agreement is authorised as an agent, employee or legal representative of the other party, and the relationship of the parties is, and at all times will continue to be, that of independent contractors. 8.6 This Agreement shall be effective on the date of execution by the Customer. 8.7 This Agreement embodies the entire understanding of the parties and supersedes any previous agreements or understandings, written or verbal, in effect between such parties relating to the subject matter thereof. 8.8 This Agreement may be amended or modified only by an instrument of equal formality signed by duly authorised officers of the respective parties. 8.9 The Customer and DCAI shall exercise their best efforts to meet their respective duties and obligations as set forth herein, but shall not be held liable for any delay or omission in performance due to causes beyond their reasonable control. DCA International City of Fort Worth, Texas Page 9 EXEL;U 11UN PAGE IN WITNESS WHEREOF THE PARTIES HERETO HAVE SET THEIR HANDS AND SEALS THE DAY, MONTH AND YEAR FIRST HEREINBEFORE WRITTEN, EXECUTED BY: DCAI International, LLC a Delaware Limited Liability Company ............................................. .....ram ...R ........ 4 4 M I I I M I I ..................... (Signature of Director) (Print Full Name) ` PAN �Uc. t?T�L�� 3�..........................................o .......... .ld�g.................................9 (Usual Address of Director) Abbe (Date) ............................................................... (Signature of Secretary) ...................................................................... (Print Full Name) .................................................................................................................................................................. . (Usual Address of Secretary) EXECUTED BY: City of Fort Worth 5 ......... v R I I I 1 0 0 a F N v N 4 M M M & 0 0 M I M I I I I I 1 0 1 1 M .................... (Signature of Assistant City Manager) Fernando Costa Assistant.City. Manager ............. (Print Full Name) . �11�?G'.. /.!T. F"lJ1G;kY3Lor. L• vt2.. ar/...1.".or�..f..�l...76.................................... (Usual Address of Assistant City Manager) ...................................................... (Signature of Secr ary) .......................... (Print Full Name) ................................................................................................................................................................... (Usual Address of Secretary) NO M&C REQUIRED (Signature of Assistant City Attorney) SCHEDULE 1 - REFERENCE SCHEDULE 1. DCAI: DCAI International LLC, a Delaware Limited Company Of 3`d Floor, 8 Faneuil Hall, Marketplace, Boston in the State of Massachusetts, USA Tel: 1 866 454 3224 Fax: 506454=7349 2. Customer: City of Fort Worth Of 1000 Throckmorton Street, Fort Worth (Tarrant County) in the State of Texas, USA Tel: 817=392=7977 Fax: 3. DCAI Contact: Mark Dee 4. Customer Contact: Peter Elliot 5. Commencement Date: 28th May 2008 6. Evaluation Period: 28th May 2008 to 28th August 2008 7. Site for evaluation: City of Fort Worth, Texas 8. Product: The Agreement pertains to the temporary licenses granted for Product evaluation purposes of the following: Item Description No. of Licenses 1. PinForce Mobile Software 4 licenses 2. PinForce Manager Software 1 license 3. MC 35 Handheld Computers and Peripherals 4 units 4. Cameo PB20 Printers 4 units 5. PinForce Sentinel Vehicle Detection Units (VDU's) 48 units 6. PinForce Sentinel Meter Interface Units (SMI's) 48 units 7. Sentinel Baywatch and Data -dashboard Program 1 license 8. PinForce Sentinel Transient Middle Tier 2 units 9. PinForce Sentinel Fixed Middle Tier TBD 10. Fees: Customer shall not be responsible for any fees during the term of this Agreement Texas Page 11 FORT WORTH INTEROFFICE MEMO TO: Peter Elliott, Transportation and Public Works Department FROM: Allison Tidwell, City Secretary's Office DATE: November 12, 2008 SUBJECT: AMENDMENT NO. 2 TO CSC NO. 37121 FOR AGREEMENT FOR DATABASE CONSULTANTS OF INTERNATIONAL SOFTWARE AND HARDWARE EVALUATION AUSTRALIA These documents are being forwarded to you for original signature from Database Consultants of Australia International. Please return a copy with original signatures for official file copy. Thank you in advance for your cooperation. If you have any questions, please call me at 817-392- 6090. Attached: 3 sets