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HomeMy WebLinkAboutContract 39250REVERSE 911®INTERACTIVE COMMUNITY NOTIFICATION SYSTEM LICENSE AND SUPPORT SERVICES AGREEMENT BETWEEN CITY OF FORT WORTH THROUGH ITS COMMUNITY RELATIONS DEPARTMENT DIALOGIC COMMUNICATIONS CORPORATION �FEiC1,�L RECORD ��TX �ECRETAR� ET, WORTH, TX LICENSE AND SUPPORT AGREEMENT (REVERSE 911® SYSTEM) This License and Support Agreement ("Agreement") is made the last date of signature by the parties (the "Effective Date") between Dialogic Communications Corporation ("DCC"), with offices located at 730 Cool Springs Boulevard, Suite 300, Franklin, Tennessee 37067 and the City of Fort Worth ("Licensee"), located at 1000 Throckmorton, Fort Worth, Texas 76102 1 Definitions. 1.1 "Documentation" means written and/or on-line material provided by DCC for the Reverse 911 H0 System to assist Licensee in its use. 1.2 "Effective Date" means the date set forth above. 1.3 "Equipment" means the Equipment other than software provided by DCC hereunder. 1.4 "Site" means Licensee's location at 1000 Throckmorton, Fort Worth, Texas 76102. 1.5 "Software" means the REVERSE 911© software and any updates, modifications and corrections thereto provided by DCC to Licensee hereunder. Software does not include Third Party Software and source code to the Software. 1.6 "Third Party Sofhvare" means any software developed by a third party which is installed by DCC on the Equipment. 1.7 "Support Term" means the period running from August 15'to July 31S' of each year this Agreement is in effect. 1.8 "Initial Warranty Period" means one (1) year period beginning on the date after installation or ninety (90) calendar days after DCC determines that implementation of the Equipment and Software is complete, whichever is earlier, and ending one (1) year after such date. 1.9 "REVERSE 911®System" means the combined configuration of the Software and the Equipment. 2 Delivery of Software and Equipment. Licensee shall have the Site properly prepared to accept delivery of the Equipment and DCC shall deliver the Equipment to Licensee in accordance with Section 5 of this Agreement. In no event shall DCC be responsible for delays in delivery or installation or any damages to Licensee resulting from any delay. Delivery shall be F.O.B. point of origin. Title and risk of loss shall pass to Licensee upon shipment. 3 Payment and Taxes. 3.1 Licensee will pay DCC all fees within thirty (30) days of the date of invoice in accordance with Schedule A or applicable proposal approved by Licensee. 3.2 If Licensee elects to purchase support services for the Software, such fees are due within thirty (30) days of the date of invoice or any quotes for service support renewals provided by DCC. A description of DCC's support services is set forth in Schedule B which is incorporated herein by reference. 3.3 Licensee is a tax exempt entity and will provide evidence of such exemption upon request by DCC. All shipping and insurance charges for products shipped between DCC and Licensee will be paid by Licensee. 3.4 In addition to any other remedy available to DCC, for a late payment by Licensee, Licensee shall pay a charge of 1.0% per month, or the maximum percentage permitted by applicable law, whichever is less, on any amount not paid when due as set forth herein. 4 Installation and Training. 4.1 Installation. DCC will configure, test and install the REVERSE 911° System in accordance with the specifications listed herein. Installation for purposes of this Agreement shall be the dates) on which the REVERSE 911 ° System is installed by DCC at the customer's Site (if applicable), and/or a test call is successfully generated using the REVERSE 9l 1®System. 1 4.2 Training. Training may be purchased by Licensee at the rate quoted by DCC. The term of any annual training subscription purchased by Licensee shall expire with the Initial Support Term. 5 Site Preparation. Licensee will prepare the Site to accommodate the REVERSE 911° System in accordance with the following guidelines: 5.1 The console and CPU used in the REVERSE 911° System may be located at the Licensee's discretion provided that the telephone company interface to the phone lines to be used is located in the same building and within 100 feet of the console. All phone lines to be connected to the REVERSE 911° System will be installed at the direction and cost of the Licensee. 5.2 The Licensee agrees to install all necessary power supplies for the CPU and all peripherals. 5.3 The Licensee will be responsible for obtaining all consents necessary to connect any equipment included in the REVERSE 911° System and/or its peripherals to telecommunication lines. Such consents shall be obtained prior to the scheduled installation date. 5.4 The Licensee represents and warrants to DCC that: a) adequate electrical power shall be provided to the CPU and the peripherals; and b) the electrical system of the Licensee is adequate to safely operate the REVERSE 911 ° System and all contemplated peripherals, and meets with all applicable codes, regulations, laws, standards and guidelines. 5.5 The Licensee will be responsible for providing the following environment for the REVERSE 911°System: Temperature Range: 60-90°F, Humidity Range: 20-80%, Electrical Requirements: ]20-125V, 15A dedicated cn•cuit plug is NEMA WD. All other peripherals 120-125V, 15A plug is NEMA WD-1. Failure to provide such an enviromnent may delay the installation of the items in this Agreement, and Reverse 911©will be excused from any installation obligations under this Agreement until such an environment is provided. 6 Warranty. 6.1 Limited Warranty. IF THE REVERSE 911° SYSTEM IS USED IN EMERGENCY SITUATIONS, THEN THE REVERSE 911° SYSTEM IS INTENDED TO ONLY INCREASE THE NOTICE WHICH WILL BE GIVEN. THERE IS AND CAN NOT BE ANY GUARANTEE THAT ALL PERSONS INTENDED TO BE CONTACTED WILL BE CONTACTED. DCC ACCEPTS NO RESPONSIBILITY FOR ANY FAILURE OF THE REVERSE 911® SYSTEM TO CONTACT ANY PERSON OR PERSONS AND IS NOT RESPONSIBLE FOR ANY DAMAGE OR INJURY WHICH RESULTS FROM ANY FAILURE TO CONTACT ANYONE. 6.2 Original Equipment Manufacturer. DCC does not provide a warranty with respect to any third party equipment manufactured by an original equipment manufacturer (OEM); however, DCC will pass along to Licensee any existing OEM warranty to the extent authorized by the OEM. 6.3 Software Warranty. DCC warrants for the Initial Warranty Period that the Reverse 911® Software provided herein shall perform in material accordance with the Documentation current as of the Effective Date. ANY AND ALL THIRD PARTY SOFTWARE IS PROVIDED "AS IS" AND WITH ALL FAULTS. 6.3.1 During the Initial Warranty Period, DCC will provide such assistance as it deems reasonably necessary to cause the Reverse 911® Software to perform materially in accordance with the then cun•ent Documentation provided that Licensee installs all updates, modifications and corrections provided by DCC and that Licensee's use of the Software is in accordance with this Agreement and the Documentation. 6.3.2 Licensee may notify DCC of Software errors or defects it believes to exist and if DCC is able to confirm that such error or defect exists through independent testing, DCC will use commercially reasonable efforts to correct such error or defect. 6.3.3 If DCC does not provide the Equipment, DCC shall not be responsible to correct any defects in the REVERSE 911°System resulting from defects in the Equipment. 6.3.4 LICENSEE'S EXCLUSIVE REMEDY, AND DCC'S ENTIRE LIABILITY IN CONTRACT, TORT OR OTHERWISE FOR BREACH OF ANY OF THE ABOVE WARRANTIES WILL BE TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO PROVIDE A CORRECTION OR WORK AROUND FOR ANY MATERIAL NONCONFORMITY WHICH IS (i) REPORTED TO DCC BY LICENSEE WHILE DCC IS OBLIGATED TO PERFORM SUPPORT SERVICES AND (ii) REPRODUCIBLE BY DCC IN THE EXECUTION ENVIRONMENT. 6.4 Disclaimer of Warranties. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER. REPRESENTATIONS AND WARRANTIES. DCC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. DCC DOES NOT WARRANT THAT THE SOFTWARE IS ERROR -FREE OR WILL OPERATE WITHOUT INTERRUPTION. The warranties in this Section 6 will not apply to any defects or problems caused in whole or part by (i) defects in any Equipment not provided by DCC or approved by DCC in writing, (ii) failure of any portion of equipment to function in accordance with manufacturer's specifications, (iii) modifications or enhancements made to the Software by anyone other than DCC, (iv) any software, hardware, firmware, peripheral or communication devices used with the Software not provided by or approved of in writing by DCC, (v) failure of Licensee or any third party to follow DCC's most current instructions for proper use of the Software, (vi) negligence of Licensee or any third party, or (vii) failure to install and use the updates, modifications and corrections provided by DCC. If Licensee falls within any of the foregoing exceptions and requests DCC to provide support services for such defect or problem, Licensee will pay DCC for services at DCC's then current hourly rate. 7 Software SuUport Services. If Licensee elects to purchase annual support services for the Software, such support services shall automatically renew annually unless terminated by written notice by Licensee to DCC at least ninety (90) days prior to the expiration of the then in effect term. A description of DCC's support services is set forth in Schedule B which is incorporated herein by reference. 8 License Grant. 8.1 Scope. DCC hereby grants to Licensee, and Licensee accepts, anon -exclusive, non -transferable license to use the object code version of the Software and the Documentation at the Site in accordance with this Agreement. Licensee may only use the Software for internal data processing in the normal course of Licensee's business as it exists as of the date of this Agreement, and may not use the Software in a service bureau, outsourcing, time share, or any other manner. In the event that Licensee is a governmental entity, Licensee may only use the Software for Licensee's specific statutory and geographic jurisdiction approved by the parties. Licensee may use the Software only on the Equipment or substitute equipment approved in writing by DCC. Licensee may make one copy of the Software for backup purposes only but shall include therein all proprietary marks and notices included in the original. Licensee may not otherwise copy or permit the copying of any part of the Software or Documentation. 8.2 Restrictions on Use. Licensee may not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; (ii) modify, translate, or create derivative works based on the Software; (iii) copy (except for archival purposes), rent, lease, resell, sublicense, distribute, assign, or otherwise transfer rights to the Software, except as otherwise provided herein; (iv) use or allow the transfer, transmission, export, or re-export of the Software in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other governtnent agency; or (v) remove any proprietary notices or labels on the Software. 8.3 Updates and Upgrades. Updated or upgraded versions of the Software may be created or issued by DCC from time to time. If the Software is an updated or upgraded version, Licensee is bound by the terms of this License and tnay only use that updated or upgraded Software in accordance with this License. DCC may, at its sole discretion, require the installation of software updates or upgrades to maintain any applicable wan•anty. 8.4 Intellectual Property, Trademark and Copyright. DCC retains ownership of the Software, any portions or copies thereof, and all rights therein. DCC reserves all rights not expressly granted to Licensee. This License does not grant Licensee any rights in connection with any trademarks or service tnarks of DCC, its parent, suppliers or licensors. All right, title, interest and copyrights in and to the Software and the accompanying Documentation and any copies of the Software are owned by DCC or its parent cotnpanies, suppliers or licensors. All title and intellectual property rights in and to the content which may be accessed through use of the Software is 3 the property of the respective content owner and may be pt•otected by applicable copyright or other intellectual property laws and treaties. This License grants Licensee no rights to use such content. 8.5 U.S. Government Restricted Rights. The Software and associated Equipment and Documentation are provided with RESTRICTED RIGHTS. With respect to any acquisition of the Software by or for any unit or agency of the United States Government ("Government"), the Software shall be classified as "commercial computer software," as that term is defined in the applicable provisions of the Federal Acquisition Regulation ("FAR") and supplements thereto, including the Department of Defense (DoD) FAR Supplement ("DFARS"). The Software was developed entirely at private expense and no part of the Software was first produced in the performance of a Government contract. If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this LICENSE and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a) or (ii) with restricted rights in accordance with DFARS 252-227-7013 (Oct. 1988), as applicable. If the Software is supplied for use by Government agency other than DoD, the Software is restricted computer software delivered subject to the terms of this LICENSE and (i) FAR 12.212; (ii) FAR 52.227-19; or (iii) FAR 52.227-14, as applicable. 8.6 Licensee Data. Licensee shall have responsibility for the accuracy or functionality of any data it places into the System ("Licensee Data") as set forth in the documentation. Regarding any self registration portal tool purchased or licensed by Licensee through or with DCC, Licensee shall assume all duties, obligations and compliance with any applicable law regarding its use, including but not limited to the gathering, storage and dissemination of such Licensee Data. Licensee also shall be solely responsible for communicating any applicable notices or terms of use to its regishants. These duties and obligations are non - delegable by Licensee to DCC, its parent corporation or affiliates. 9 Third warty Software. This Agreetnent may include Third Party Software that is licensed to the Licensee under an agreement provided by the manufacturer(s). Licensee agrees to abide by all terms and conditions of the Third Party Software Agreement(s), including but not limited to the following: ESRI CORPORATION SUBLICENSE AGREEMENT a. Restrict use of the OEM Software to executable code, subject to the restrictions provided under the applicable Sublicense Addenda and consistent with the Sublicense fees payable to ESRI. b. Prohibit (a) transfer of the OEM Software except for temporary transfer in the event of computer malfunction; (b) assignment, time-sharing, lend or lease, or rental of the OEM Software or use for commercial network services or interactive cable or remote processing services; and (c) title to the OEM Software from passing to Sublicensee or any other party. c. Prohibit the reverse engineering, disassembly, or decompilation of the OEM Software and prohibit duplication of the OEM Software except for a single archival copy; reasonable Sublicensee backup copies are permitted. d. To the extent permitted by applicable law, not to assert claims against ESRI for any damages, or loss of any kind, whether special, direct, indirect, incidental, or consequential, arising from the use of the OEM Software for the REVERSE 911®system. e. Require Sublicensee to comply fully with all relevant export laws and regulations of the United States to assure that the OEM Software, or any direct product thereof, is not exported, directly or indirectly, in violation of United States law. f. Prohibit the removal or obscuring of any copyright, trademark notice, or restrictive legend. g. If Company grants a Sublicense to the United States Government, the OEM Software shall be provided with the "Restrictive Rights". 10 Calling Database. 10.1 DCC may provide and load onto Licensee's REVERSE 911° System the initial calling database. The database (the "REVERSE 911° Database") will be derived fi•om certain. commercial sources) and will only be as accurate as such sources) of the database. Use of the REVERSE 911° Database is restricted to use on the REVERSE 911 ° System. It will consist of all listed phone numbers that can be commercially acquired with addresses for both residences and businesses. The database will be provided, and installed along with longitude and latitude positions. The database may be provided by a third party and is subject to any restrictions placed on it by 0 the third party provider, if applicable. The data provided by the third party provider will remain the property of that third party. 10.2 The data included in the database, if provided through DCC, includes the location (including geographic coordinates) of each telephone subscriber's address. The data concerning any geographic coordinates is confidential information of DCC and its parent corporation, shall remain their property and may not be used for any other purpose. 10.3 DCC and its parent corporation will take reasonable care to protect the confidentiality of the database according to the provisions of Section 12. 11 Limitation of Liability. 11.1 DCC SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER RESULTING FROM THE LICENSEE'S FAILURE TO TIMELY SUPPLY DCC WITH NECESSARY DATA, INFORMATION OR SPECIFICATIONS OR ANY CHANGES IN SUCH DATA, INFORMATION OR SPECIFICATIONS. 11.2 EXCEPT FOR THE DUTY OF INDEMNIFICATION PURSUANT TO PARAGRAPH 14.1 AND 14.2 HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE REVERSE 911® SYSTEM, EQUIPMENT, SOFTWARE, AND/OR THIRD PARTY SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THAT PARTY WAS ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER, IF ANY, WILL 1N NO EVENT EXCEED THE TOTAL AMOUNT PAID HEREUNDER IN THE T'W>✓LVE (12) MONTHS IM1vi�DIA'I'ELY PRECEDrNG THE EVENT GIVING RISE TO THE CLAIIv1. 12 ConBdentiality. A party receiving Information (defined below) of the other will not disclose such Information other than to persons in its organization who have a need to know and who will be required to comply with this Section 9. The party receiving Information will not use such Information for a purpose inconsistent with the terms of this Agreement. "Information" means the Software, Documentation and all information and intellectual property related thereto (including, but not limited to all databases provided to Licensee by DCC whether created by DCC or its third party licensors such as, without limitation, the mapping product databases) as well as information related to the business of DCC or Licensee. Information will not include: (i) information publicly known prior to disclosure; (ii) information coming into the lawful possession of the recipient without any confidentiality obligation; and (iii) information required to be disclosed pursuant to law, regulatory action or court order, provided adequate prior written notice of any request to disclose is given to the party whose information is to be disclosed. Each party will exercise at least the same degree of care to safeguard the confidentiality of the other's Information as it does to safeguard its own proprietary confidential information, but not less than. a reasonable degree of care. 13 Ownership. The Software and Documentation are the exclusive property of DCC and its parent corporation and constitute their valuable h•ade secret. Licensee will take reasonable steps to protect the trade secret of the Software and Documentation. Ownership of all copies is retained by DCC and its parent corporation. Licensee may not disclose or make available to third parties the Software or Documentation or any portion thereof. Reverse 911® shall own all right, title and interest in and to all corrections, modifications, enhancements, programs, and work product conceived, created or developed, alone or with Licensee or others, as a result of or related to the performance of this Agreement, including all proprietary rights therein and based thereon. Except and to the extent expressly provided herein, neither DCC nor its parent corporation grant Licensee any right or license, express or implied, in or to the Software and Documentation or any of the foregoing. 14 Indemnification. 14.1 Infringement Indemnification. With the exception of any third party software, hardware or equipment that may be provided under this Agreement, DCC and/or its parent corporation agree to hold Licensee harmless fi•om liability to third parties resulting from infringement of any United States patent or copyright or trade secret by the Reverse 91 ] ® software purchased hereunder and DCC and/or its parent corporation further agree to pay all damages and costs, including reasonable legal fees, �7 which may be assessed against Licensee under any such claim or action. DCC and its parent corporation shall be released fi•om the foregoing obligation unless Licensee provides DCC with (i) written notice within fifteen (15) days of the date Licensee first becomes aware of such a claim or action, or possibility thereof; (ii) sole control and authority over the defense or settlement thereof; and (iii) proper and full information and assistance to settle and/or defend any such claim or action. Without limiting the foregoing, if a final injunction is, or DCC believes, in its sole discretion, is likely to be, entered prohibiting the use of the software by Licensee as contemplated herein, DCC and its parent corporation will, at their sole option and expense, either (a) procure for Licensee the right to use the infringing software as provided herein or (b) replace the infringing software with noninfringing, functionally equivalent products, or (c) suitably modify the infi•inging software so that it is not infringing; or (d) in the event (a), (b) and (c) are not commercially reasonable, terminate the license, accept return of the infringing software and refund to Licensee an equitable portion of the license fee paid therefor. Except as specified above, neither DCC nor its parent corporation will be liable for any costs or expenses incurred without DCC's prior written authorization. Notwithstanding the foregoing, neither DCC nor its parent corporation assume liability for infringement claims with respect to software (i) not supplied by DCC, (ii) made in whole or in part in accordance to Licensee's specifications, (iii) that is modified after delivery by DCC, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infi•inging activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Licensee's use of the software is not strictly in accordance with this Agreement. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF DCC AND ITS PARENT CORPORATION AND THE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE. 14.2 General Indemnification. DCC agrees to indemnify, save, hold harmless, and at Licensee's request, defend Licensee, its officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to Licensee in connection with any bodily injuries or damages incurred as a result of DCC's negligence while traveling to or fi•om Licensee's premises to perform services or while performing services on Licensee's premises. 15 Iniunctive Relief. Each party acknowledges that a violation or threatened violation by it of Section 12 or 13 hereof would result in damage that is largely intangible but nonetheless real and that is incapable of complete remedy by award of damages. Thus, each party shall be entitled to take any immediate action to protect its interests, such as seeking injunctive relief or any other remedy available to that party in law or equity. 16 Term and Termination. This Agreement will commence upon the Effective Date and will continue until terminated in accordance with this Section 16. 16.1 Termination of Support Services by DCC. DCC may terminate this Agreement without further obligation or liability to Licensee i£ 16.1.1 Licensee fails to timely pay any amounts due under this Agreement and fails to make such payments within thirty (30) days of notice fi•om DCC or 16.1.2 Licensee commits any material breach of this Agreement and fails to remedy such breach within thvty (30) days of notice from DCC; or 16.1.3 Licensee becomes the subject of a petition in bankruptcy; is or becomes insolvent; or admits a general inability to pay its debts as they become due. 16.2Termination of Support Services by Licensee. Licensee may terminate this Agreement: 16.2.1 If DCC commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days of notice from Licensee; or 16.2.2 At will by giving DCC sixty (60) days notice of its election to terminate; or 16.2.3 For lack of approval of funds by the appropriating government agency. In the event of termination under this provision, Licensee will notify DCC of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the Licensee of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 16.3 Effect. Upon termination of this Agreement all amounts owed to DCC will be immediately due and payable and DCC will cease performance of all obligations herein without liability to Licensee. Sections that, by their nature, are intended to survive termination shall so survive following termination. 17 Other Remedies. The rights and remedies of DCC and its parent corporation under this Agreement will be cumulative and in addition to all other rights and remedies available to them in law and in equity. [.� 18 Assignment. Neither this Agreement nor any rights or duties hereunder may be transferred, assigned, sublicensed or otherwise disposed of by Licensee to a third party, by operation of law or otherwise, without the other patty's prior written consent. In the event of assignment to a third party by DCC, DCC will provide thirty (30) days prior written. notice to Licensee before such assignment. Notwithstanding the foregoing, either party tnay assign its interests to a parent or affiliate company in the event of sale or merger of its assets so long as the acquiring entity agrees to assume all of the assigning patty's duties and obligations hereunder and the assigning party provides written notice of such assignment to the other party. 19 Partial Invalidity. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected. 20 Modification; Waiver. This Agreement may not be modified or amended except in writing signed by the parties. No term or condition of this Agreement may be waived except in writing signed by the party charged with waiver. A waiver will operate only as to the specific term or condition waived and will not constitute a waiver for the future. 21 Notice. All notices and other communications required or contemplated het•ein will be in writing and delivered either by (i) personal delivery; (ii) expedited messenger service; (iii) postage prepaid return receipt requested certified mail; or (iv) facsimile and confirmed by postage prepaid U.S. certified mail, addressed to the party or parties for whom it is intended, at the addresses first written above or such other address as the intended recipient previously has designated by written notice to the sender. 22 Third Party Beneficiaries. None of the provisions of this Agreement is intended by the parties, nor shall they be deemed, to confer any benefit on any person not a party to this Agreement. 23 Independent Contractors. The relationship of the parties hereunder will be one of independent contractors and not that of a franchise, joint venture or employer. Neither party will have, and neither of them will represent to any other person that it has, any power, right or authority to bind the other, or to assume create, any obligation or responsibility, express or implied, on behalf of the other, except as expressly provided by this Agreement or as otherwise permitted in writing signed by both parties. 24 Entire Agreement. This Agreement and its schedules constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior agreements between the parties, written, oral or implied with respect to the subject matter hereof. 25 Headings. Headings are included in this Agreement for convenience only and are not to be deemed to be part of this Agreement. The interpretation of this Agreement will not be affected by any heading herein. 26 Force Maieure. In the event an act of government, war, fire, flood, act of God, power shortages or blackouts, breakdown of telephone lines and services, failure of the Internet, or other causes beyond the reasonable control of either party prevents that party from performing in accordance with the terms of this Agreement, such nonperformance shall be excused and shall not be considered a breach or default for so long as such conditions prevail. 27 Right to Audit. Licensee shall, until the expiration of one (1) year a$er final payment under this contract, have access to and the right to examine at reasonable times any non -privileged, relevant books, documents, papers and records of DCC involving transactions relating to this Agreement. DCC agrees that Licensee shall have access during normal working hours to all necessary DCC facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. Licensee shall give DCC reasonable advance notice of intended audits. Any audits under this Paragraph shall take place at the sole expense of Licensee. [Signature Page Follows] 7 EXECUTED in multiple originals on this, the}� day of 2009 ATTEST: I j ` City Secr t 'y-Citftyyoff Fort orth Date: APPROVED AS TO FORM AND LEGALITY: By: Attorney -City of Fort Worth Date: 1© O NO M&C required Contract Authorization Date: By: CITY OF FORT WORTH Assistant City of Fort Worth DIALOGIC COMMUNICATIONS CORPORATION Dialogic Communications Corporation Date: 4 j u �F�IC;i�� RECC)�p �'ECRETAK' WORTH TX MiJARIVAIMLWMALI Software -License Fees: Licensee already purchased the version of software in use at its facility. However, in the event Licensee wishes to purchase extra features or modules, additional charges may apply. Hardware and Third Party Software: Licensee already purchased the hardware and third party software in use at its facility. However, in the event Licensee wishes to purchase extra features or modules, additional charges may apply. Services: Installation Fees Not applicable. However, in the event Licensee purchases extra features or modules, installation charges may apply. . Training Fees Not applicable. However, in the event Licensee purchases additional training, fees will apply. Annual Software Support Licensee's support term runs from August 1S` to July 31St of each year this Agreement is in effect. Support fees for August 1, 2009 through July 31, 2010 is $8,070, to which an increase of 3.25% per year shall be applied for cost of business increases. Such amount shall be paid within thirty (30) days of the date of DCC's invoice. Failure to pay such amount when due will subject Licensee to a service charge to reactivate support if such services are interrupted. DCC offers support to purchasers of the REVERSE 911® Interactive Community Nocation System ("REVERSE 911@ System"), in accordance with the terms and conditions of this Support Program which is made a part of and incorporated by reference into the License and Support Agreement entered into by Customer and DCC or its related entities. A separate Support Program Fee shall apply to each REVERSE 9110 System purchased. This Support Program does not apply to system software or ancillary software as defined below. A. Definitions "Customer" is defined as the party purchasing the Support Program from DCC. "End User" is defined as the user of the application software supported hereunder. "Hardware" is defined as all hardware purchased from DCC for use with the REVERSE 911®System. "Software" is defined as computer program instructions that facilitate functionality within hardware. There aIV three main types of software. System software (operating systems, i.e. Windows 2003 server) controls the working of the computer. Ancillary software includes database applications, back up products, and other third party software. SQL is considered ancillary software. Application software is designed to perform specific tasks. The REVERSE 9110 Interactive Community Notification System ("REVERSE 9110 System") is an example of application software. This Support Program applies to application software only. "Response Time" is defined as the period of time that it takes the TSC to call back the Customer when a voice mail has been left or to provide an update on the call ticket. Response times are only implemented when the call is not resolved on the first call. Response Time does not mean Resolution Time. "Resolution Time" is defined as the period of time it takes to solve a problem. The resolution time is different for each situation and cannot be determined until the appropriate TSC personnel have evaluated the problem and is able to determine an approximate resolution time. "TSC" is the Technical Services Center. "TSS" is the Technical Services Specialist. is the Technical Services Analyst. B. Conditions of Support In order to keep the Support Program active, the Customer is required to: (1) maintain a REVERSE 911® application software release that is within 12 months from the most current REVERSE 911®application software release. The application software release dates are determined by the date of the related product release notice as specified in the applicable published Product Change Notice (PCN); (2) pay all applicable Support Program Fees; (3) comply with all terms and conons of this Support Program C. Customer's Responsibilities 1. Hardware Operating Environment. It is the Customer's responsibility to ensure that the hardware -operating environment is fully functional and meets DCC's minimum operating requirements for the REVERSE 9110 software product supported hereunder. 2. Operating System and Ancillary Software and Firmware Environment. It is the Customer's responsibility to ensure that the operating system and ancillary software are fully functional, commercially available (except as otherwise agreed to by DCC) and meet DCC's minimum operating requirements for the software product(s) provided hereunder. However, DCC may provide service pack updates for operating systems when applicable and available by the respective manufacturer. 3. Trained Personnel. The Customer Site should have at least one system administrator that has attended REVERSE 9110 System training. The Customer shall provide the administrator's contact information to the TSC. 4. Regular Maintenance. The customer will perform regular maintenance to keep the system in optimal condition. This includes performing regular tape, CD or DVD backups and creating emergency repair discs when changes are made, de -fragmenting the hard drive on a regular basis, and testing the system at regular intervals. 5. Timeliness and Accurateness. Customer will schedule install of all updates and respond to alI requests for information CI timely manner and will work with TSC staff to maintain an accurate database of contact names. 6. Adding to, or Moving System. The Customer will not add software to the System without prior TSC approval and will not move the System to a new location without notifying TSC. A. REVERSE 911®'s Technical Support Center 1. Supported Products The TSC will only support Software approved and installed by DCC. The TSC will not resolve requests associated with software other than that provided by DCC; the requests will, however, be logged into the database. Third Party Software loaded by Customer on a REVERSE 911@ System without TSC's prior written approval, voids the associated Software Warranty and this Support Program. Pursuant to this Support Program, the TSC will provide issue resolution and updates to supported Software as further described below. 2. Hours of operation Normal Business Hours (NBH): Monday through Friday, excluding holidays, from 8:OOAM to 5:OOPM, Central Time. B. Services Provided 1. Issue Resolution The TSC works with Customers to resolve issues related to supported Software that does not perform materially in accordance with the then current Documentation for such Software. This service is designed to support the Customer's technician who is adequately trained in the product about which they are calling and listed as an approved Customer Contact with DCC. TSC. To be adequately trained the Customer's technician must have received training directly through a REVERSE 911@ System training program or have been trained by a Customer Technician that has received training directly through REVERSE 9110. A trained Customer's technician is responsible for attempting to troubleshoot issues prior to calling TSC. If the Customer's technician is not adequately trained, based on the description above, in the product about which he or she is calling, and thus not listed as an approved Customer Contact, REVERSE 911@. TSC personnel will attempt to contact an approved Customer contact for problem resolution. For security purposes, only Customer contacts that are listed with TSC will receive support unless a listed contact provides approval to do so. In the event of an emergency TSC may make a special allowance if TSC personnel are unable to reach one of the listed contacts for verification. To better facilitate high first call resolution, the TSC will utilize remote control software. This will allow the TSC to connect to the Customer's system via a dial -up connection and "take control" of the system to perform troubleshooting and/or resolution services. The TSS/TSA will at all times advise the Customer of their intention to access the system, and upon completion will advise the Customer that they have left the system, relaying to them what steps were taken to resolve an issue. The TSC will maintain a database of all calls received from the Customer, the steps taken to resolve and the resolution. The database will show dates when a call was received and dates of all contacts related to call. TSC will work with the Customer to identify errors or defects in the Software, and if the TSC is unable to confirm that such error or defect exists through independent testing, it will then escalate the issue to the Research and Development ("R&D") Department. The TSC will remain as the Customer contact and will work with the R&D Department to provide updated information to the Customer through resolution of the issue. 2. Hardware Support The REVERSE 9110 System TSC will track hardware issues related to the system during the Initial Support Period and, if a hardware warranty is purchased through DCC from the third party vendor, DCC will contact the appropriate vendor for warranty repairs. For subsequent years the Customer has the option to extend its warranty by contacting DCC Sales, The REVERSE 9110 System TSC will continue to work with the Customer to diagnose and make recommendations on hardware issues. 3. Contacting the Technical Support Center During Normal Business Hours: The TSC may be accessed by the Customer's technician via our dedicated ACD at 800-247-2363. If all TSC personnel are busy assisting other customers, the call will go to voice mail. If the caller is experiencing an emergency, the caller may hit 00 for the operator and a TSC manager will be paged to assist. If the call is not an emergency, the caller should leave a message with their name, company name and ID, telephone number and a brief description of the reason for the call. Messages are checked frequently and calls are returned in the order in which they are received. After Hours Emergency: If the Customer is experiencing an emergency they should call the TSC at 800-247-2363. The call will be routed to an answering service where the Customer should leave a clear message with their name, company name and ID, telephone number and a brief description of the reason for the call. The on -call TSS will be paged and will return your call. E-mail Requests: The TSC may be accessed by the Customer's technician via email at help@r911.com. Note: Emergency or very important requests should always be phoned into the TSC. E-mail can sometimes be unreliable and the TSC has no control over the timely delivery of requests. E- mail service level commitments are based on the time the requests actually reach the TSC. 4. Problem Diagnostics and Resolution. If the problem is beyond the scope of the REVERSE 911®System TSS, the problem will be escalated to the appropriate DCC staff member for resolution. If the Customer resolves the problem, the Customer's technician will call the TSC to report resolution. The REVERSE 9110 System TSS will document the repair notes into the case and then close the case. 5. Remote Connection Support The TSC will make every reasonable effort to support remote connections to the REVERSE 911® System server. Third party software or network configurations including but not limited to Customer firewalls or proxy servers, which restrict remote connection, are the responsibility of the Customer. C. REVERSE 911®System Software Application Program Fixes Application software program fixes are defined as resolutions to problems that result from a defect in the application software product or supplied documentation. Customers will be notified of the availability of program fixes by a REVERSE 9110 System Product Change Notice posted on the REVERSE 911® System web site. The Customer may then contact the Technical Support Center to order the program fix at no additional charge provided that the Support Program is in effect. The program fix will be available only within the current release of the product and subsequently will be incorporated into future software program updates. Any onsite assistance to accommodate the fix may be subject to service fees by DCC. For the sake of accurate clarification as to the detected problem, the Customer is required to submit to DCC a written description of the problem including date, time, position, call -taker ID, and a general description of the problem. Such written description shall be sent to the TSC. D. REVERSE 911®System Software Application Program Updates Application software program updates are defined as minor enhancements to the already purchased product feature /functionality set. A product change is classified as minor, in the discretion of DCC, based upon the impact of the change to the core functionality of the product. Customers will be notified, by a REVERSE 911® System Product Change Notice posted on the REVERSE 9110 System web site, of all application software program updates. The Customer may then contact the Technical Support Center to order the update at no additional charge provided that the Support Program is in effect. Application Software program updates will roll into the existing Support Program, thereby not extending the term of the Support Program. Any change in the two numbers following the decimal point within the product version number constitutes an application software program update (for example a change from product version 1.10 to 1.20, or 2.11 to 2.12, or 3.20 to 3.30 et. al. will represent an application software program update). A. Data, Maps and Geocoding Support Customer provided data and maps remain the responsibility of the Customer and must comply with the minimum requirements provided by DCC. DCC will make every reasonable effort to assist in providing the best available geocoding percentage (i.e. match rate). Manual geocoding efforts on Customer provided data or Customer provided maps by DCC through automated means will be billed at the professional services rate (currently, $225/hour). B. Operating Systems and Database Maintenance Operating system and database maintenance are the responsibility of the Customer. Customers should contact the TSC before applying any operating system version changes, JAVA version changes or Microsoft SQL version changes to the REVERSE 911® System C. Disaster Recovery, Anti of and Backups Disaster recovery, anti -virus protection, and software and database backups are the sole responsibility of the Customer. D. New Modules New modules are defined as separate and significant functionality outside the already purchased feature set of the software products. New software modules are not included as part of this Support Program, but will be made available at a price to be determined upon their release. E. On -site Installation or Project Management Support On site installation and / or project management services are not covered under this Support Program. Such services may be provided pursuant to a separate Statement of Work detailing the specific services to be rendered for a given project and the applicable price. F. Training Training is not covered under this Support Program. Training is available at DCC's prevailing rates. G. Post Installation Support Limitations DCC's support obligations hereunder will not apply to any REVERSE 911®System supported application software or hardware if correction of an error, adjustment, repair, or parts replacement is required because of: • Accident, neglect, tampering, misuse, improper /insufficient grounding, failure of electric powerI the End User and/or others to provide appropriate environmental conditions, relocation of hardware or software, or causes other than ordinary use. • Repair or alteration, or attempted repair or alteration of any REVERSE 9110 System supported product (hardware and/or software) by the End User or others. • Connection of another machine, device, application or interface to REVERSE 9110 System supported equipment (hardware and/or software), the End User or others, which has caused damage to REVERSE 9110 System supported equipment. • Damage or destruction caused by natural or man-made acts or disasters • Failure or degradation in performance of REVERSE 911® System supported equipment (hardware and/or software) due to the installation of another machine, device, application or interface not specifically certified and approved by DCC for use. • The operation of the software in a manner other than that currently specified by DCC. • The failure of the Customer to provide suitable qualified and adequately trained operating and maintenance staff. • Incompatible or faulty customer equipment. • Unauthorized database or configuration files access without DCC's written approval. • Modifications made without DCC's written approval to the OS, network, hardware or software environment or software applications. Further, support described herein does not include cosmetic repairs, refurbishment, furnishing consumables, supplies or accessories, making accessory changes or adding additional devices or software applications. Telephone support and/or field engineering to rectify such unsupported failures as described above may be obtained from DCC on a time & materials basis as set forth in the applicable price list. The labor rate charged will be the current DCC labor rate (plus expenses) at the time service is requested. H. Other Services Other services not specifically identified as being included in the "Support Services Provided" section of this program are not included.