HomeMy WebLinkAboutContract 56753 CSC No.56753
LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of October 29, 2021 (the
"Effective Date")by and between the following:
LICENSOR: SHAH SOFTWARE, INC.
1 COLLINWAY PL
DALLAS, TEXAS 75230
(800) 968-2748
(432) 224-1014 (facsimile)
LICENSEE: CITY OF FORT WORTH
200 TEXAS STREET
FORT WORTH, TX 76102
PH: 1 817-392-7540
RECITALS
WHEREAS Licensor develops and markets web based computer software applications(on
demand software) for Client Tracking, Project Tracking commonly referred to "CaseManager -
NewGen ", and
WHEREAS Licensee desires to acquire a license to use the software and Licensor desires
to grant Licensee the license.
NOW THEREFORE,for good and valuable consideration,receipt and sufficiency of which
is hereby acknowledged,the parties agree as follows:
1. DEFINITIONS
1.1. "Software" means Licensor's core web-based software application for Client
Tracking, Project Tracking known as "CaseManager—NewGen". Software as used herein shall
also include any options or modules added to the core application as identified on Exhibit B hereto,
incorporated herein,which may include linking to Hardware and custom modules.
1.2 "Documentation" means all user manuals and other written material created by
Licensor to describe the functionality or assist in the use of the Software.
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Lice
1.3. "Hardware" means the optional hardware, if any, identified on Exhibit C, attached
hereto and incorporated herein, procured for Licensee by Licensor.
1.4 "License Fee" means the fee to be paid by Licensee to Licensor as consideration
for the license(s) granted under this Agreement and the right to use the Software and the
Documentation, as further described herein and on Exhibit A.
2. GRANT OF LICENSE
2.1. Grant. Subject to the terms and conditions set forth in this Agreement, Licensor
hereby grants to Licensee a nonexclusive, nontransferable license in the Software, to use the
Software exclusively for Licensee's business purposes and to use the Documentation solely in
connection with Licensee's use of the Software, for use only by the number of licensed users
permitted on Exhibit A.
2.2. License Restrictions. Except as specifically granted in this Agreement, Licensor
owns and retains all right,title,and interest in the Software,Documentation,and any and all related
materials. This Agreement does not transfer ownership rights of any description in the Software,
Documentation, or any related materials to Licensee or any third party. Licensee will not modify,
reverse engineer, or decompile the Software, or create derivative works based on the Software.
Licensee will not grant access to the Software to any persons or entities other than Licensee's
employees, consultants, or contractors and then only to the number of licensed users specified in
Exhibit A. Licensee may not sell the Software or right to use the Software to any person or make
any other commercial use of the Software. Licensee will retain all copyright and trademark notices
on the Software and Documentation and will take other necessary steps to protect Licensor's
intellectual property rights.
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3. FEES & COSTS
3.1. License Fees. In consideration for the License granted to Licensee under this Agreement,
Licensee shall pay Licensor:
(a.) Annual License Fee The fee provided in Exhibit A attached hereto, and
incorporated herein, annually, in advance for each term of this Agreement,
which includes the Software license fee, annual maintenance and support, web
hosting and the fees for any additional module or component identified on
Exhibit B.
(b.) Initial Set-up,Account Creation, Software Upgrade and Map Licensing. A one-
time,non-reoccurring fee of$0 payable on or after the Effective Date but prior
to the Commencement Date.
3.3 Taxes. In addition to other amounts payable under this Agreement, Licensee will
pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or
subsequently imposed on Licensee's use of the software or the payment of the License Fee or
Hardware costs to Licensor, other than taxes assessed against Licensor's net income. Such taxes,
duties, fees, withholding, or other charges will be paid by Licensee or Licensee will provide the
appropriate authority with evidence of exemption from such tax,duty,fee,withholding, or charge.
If Licensor is required to pay any such tax, duty, fee, or charge, or to withhold any amount from
monies due to Licensor from Licensee pursuant to this Agreement, Licensee will promptly
reimburse Licensor any such amounts.
4. LICENSOR'S OBLIGATIONS
4.1. Deliverables. On the Commencement Date or Conversion Date specified in Exhibit
A of this Agreement, Licensor will provide (i) access to the Software, limited to the number of
users as specified in Exhibit A, for Licensee's use, together with the Documentation.
4.2. Support and Maintenance. For so long as Licensee subscribes to the Software, and
for so long as Licensor offers support and maintenance for users of the Software, Licensor will
provide Licensee with telephone technical support, software upgrades as developed, webinars on
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request in connection with Licensee's use of the Software included in Licensee's annual license
fee.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective on the Effective Date first specified above. The
license granted under this Agreement becomes effective on the Commencement Date/Conversion
Date specified in Exhibit A. The initial term of this Agreement shall be one (1) year from the
Commencement Date/Conversion Date specified in Exhibit A. Unless sooner terminated as set
forth in Sections 5.2 and 5.3,below,the Agreement may be renewed for three additional terms of
one year each,by the mutual written consent of the parties. Licensee shall provide consultant with
written notice of its intent to renew at least thirty (30) days prior to the end of each term.
5.2. Termination for Convenience. Licensor or Licensee may terminate the Agreement
at any time and from time to time on thirty (30) days'prior written notice to the other. Licensor's
notice of any termination for convenience must be accompanied by a refund of any prorated
payments received by Licensor in advance for months beyond the termination date. Licensor may
also terminate this Agreement as to any additional modules, applications, or components in excess
of the core application (as identified on Exhibit B) upon thirty (30) days' written notice (without
discount or refund) if(i) Licensor's core software application no longer supports such additional
modules, applications, or components or (ii) Licensee fails to upgrade any Hardware or acquire
additional hardware necessary to make such modules, applications, or components compatible
with Licensor's core application software.
5.3. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by
Licensee in any fiscal period for any payments due hereunder, Licensee will notify Licensor of
such occurrence and the 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 have been
appropriated.
5.4. Termination for Cause. Either party, as applicable, will have the right, in addition,
and without prejudice to any other rights or remedies,to terminate this Agreement as follows:
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a. By Licensor, on 15 days'written notice, if Licensee fails to pay the amounts due to
Licensor pursuant to this Agreement;
b. By Licensor, on 15 days'written notice, if there is a change in control of Licensee,
whether by sale of assets, stock,merger, or otherwise;
C. By either party for any material breach of this Agreement, other than failure to
make payments under Section 3, that is not cured within 10 days of receipt by the
party in default of a notice specifying the breach and requiring its cure; or
d. By either party, immediately on written notice, if. (i) all or a substantial portion of
the assets of the other party are transferred to an assignee for the benefit of creditors,
to a receiver, or to a trustee in bankruptcy; (ii) a proceeding is commenced by or
against the other party for relief under bankruptcy or similar laws and such
proceeding is not dismissed within 60 days; or (iii) the other party is adjudged
bankrupt.
5.4. Rights on Termination. Licensor has and reserves all rights and remedies that it has
by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Software or
Documentation, including, without limitation, terminating Licensee's access to the Software.
Sections 6, 7, and 8 will survive termination or expiration of this Agreement as will any cause of
action or claim of either party, whether in law or in equity, arising out of any breach or default.
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6.WARRANTIES,DISCLAIMER,AND LIMITATIONS
6.1. Warranties.
(a.) Software and Documentation. Licensor hereby warrants to Licensee that
Licensor is the owner of the Software and the Documentation or has the right to grant to
Licensee the license to use the Software and Documentation in the manner and for the
purposes set forth in this Agreement without violating any rights of a third party.
(b.) Third Party Goods or Services. To the extent the items delivered pursuant
to this Agreement include any product developed, manufactured, or delivered by a person
or entity other than Licensor, including but not limited to goods, services, software,
licenses, applications or code, mobile data computers, tablets, or terminals, LICENSOR
EXPRESSLY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND ANY AND ALL WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE. All such third party products are delivered and accepted by
Licensee "AS-IS, WHERE-IS, and with ALL FAULTS."
6.2. Disclaimer. THE WARRANTIES SET FORTH IN SECTION 6.1,
ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES,
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE
SOFTWARE IS ERROR-FREE,WILL OPERATE WITHOUT INTERRUPTION, OR IS
COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b)
ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (c) ANY
AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
6.3. Remedies on Breach of Warranty.In the event of any breach of the warranty
set forth in this Section 6, Licensee's exclusive remedy will be for Licensor to refund the
license fees actually received from Licensee and applicable to service dates from the date
of breach forward.
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6.4 Limitation of Liability. LICENSOR IS NOT LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES,
INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY
THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED
ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. CONFIDENTIALITY
7.1. Confidentiality. Licensee acknowledges that the Software and Documentation, and
all information relating to the business and operations of the Licensor that Licensee learns or has
learned during or prior to the term of this Agreement,is the valuable,confidential, and proprietary
information of the Licensor. During the period this Agreement is in effect, and at all times
afterwards, Licensee, and its employees, contractors, consultants, and agents,will:
a. safeguard the confidential information with the same degree of care that it uses to
protect its own confidential information;
b. maintain the confidentiality of this information;
C. not use the information except as permitted under this Agreement; and
d. not disseminate,disclose,sell,publish,or otherwise make available the information
to any third party without the prior written consent of Licensor, or as required by
law.
7.2. Limitations on Confidentiality Restrictions. Section 7.1 does not apply to any
information that:
a. Is already lawfully in the Licensee's possession (unless received pursuant to a
nondisclosure agreement);
b. Is or becomes generally available to the public through no fault of the Licensee;
C. Is disclosed to the Licensee by a third party who may transfer or disclose such
information without restriction;
d. Is required to be disclosed by Licensee as a matter of law (provided that the
Licensee will use all reasonable efforts to provide the disclosing party with prior
notice of such disclosure and to obtain a protective order therefore);
e. Is disclosed by the Licensee with the disclosing party's approval; and
f. Is independently developed by the Licensee without any use of confidential
information.
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Notwithstanding the above, Licensee is a government entity under the laws of the State of
Texas and all documents held or maintained by Licensee are subj ect to disclosure under the Texas
Public Information Act. In the event there is a request for information marked Confidential or
Proprietary, Licensee shall promptly notify Licensor. It will be the responsibility of Licensor to
submit reasons objecting to disclosure. A determination on whether such reasons are sufficient
will not be decided by Licensee, but by the Office of the Attorney General of the State of Texas
or by a court of competent jurisdiction.
7.3. Injunctive Relief for Breach. Licensor and Licensee acknowledge that any breach
of Section 7.1 by a receiving party will irreparably harm Licensor. Accordingly, in the event of a
breach, Licensor is entitled to promptly seek injunctive relief, without the requirement to post a
bond, in addition to any other remedies that Licensor may have at law or in equity.
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8. GENERAL
8.1. Assignment. Licensee may not assign, sublicense, or transfer Licensee's rights or
delegate its obligations under this Agreement without Licensor's prior written consent. This
Agreement will be binding on the successors and assigns of Licensee.
8.2. Entire Agreement. This Agreement, along with the Exhibits attached and
referenced in this Agreement, including Licensor's "Terms and Conditions" attached hereto as
Exhibit C as may be amended from time to time, constitute the final and complete understanding
between the parties, and replaces and supersedes all previous oral or written agreements,
understandings, or arrangements between the parties with respect to the subject matter contained
in this Agreement.
8.3. Notices. Except as otherwise provided in this Agreement, notices required to be
given pursuant to this Agreement will be effective when received, and will be sufficient if given
in writing,hand-delivered, sent by facsimile with confirmation of receipt,sent by First Class Mail,
return receipt requested, postage prepaid, or sent by overnight courier service and addressed as
provided on page 1 of this Agreement or such other address as the parties may provide to the other
in writing.
8.4. Governing Law and Jurisdiction. The license is sold and delivered in Fort Worth,
Texas. This Agreement will be governed by and construed in accordance with Texas law,without
regard to the principles of conflict of laws. Venue shall be proper only in Tarrant County, Texas.
8.5. Severability. In case any provision of this Agreement is held to be invalid,
unenforceable, or illegal, the provision will be severed from this Agreement, and such invalidity,
unenforceability, or illegality will not affect any other provisions of this Agreement.
8.6 IP Indemnification. Licensor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the Licensee for infringement of any patent, copyright, trade mark, service mark, trade
secret,or other intellectual property right arising from Licensee's use of the software,or any
part thereof, in accordance with this Agreement, it being understood that the agreement to
indemnify, defend, settle or pay shall not apply if Licensee modifies or misuses the
software. So long as Licensor bears the cost and expense of payment for claims or actions
against the Licensee pursuant to this section 8, Licensor shall have the right to conduct the
defense of any such claim or action and all negotiations for its settlement or compromise and
to settle or compromise any such claim; however, Licensee shall have the right to fully
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participate in any and all such settlement,negotiations, or lawsuit as necessary to protect the
Licensee's interest, and Licensee agrees to cooperate with Licensor in doing so. In the event
Licensee, for whatever reason, assumes the responsibility for payment of costs and expenses
for any claim or action brought against the Licensee for infringement arising under the
Agreement,the Licensee shall have the sole right to conduct the defense of any such claim or
action and all negotiations for its settlement or compromise and to settle or compromise any
such claim; however, Licensor shall fully participate and cooperate with the Licensee in
defense of such claim or action. Licensee agrees to give Licensor timely written notice of any
such claim or action, with copies of all papers Licensee may receive relating thereto.
Notwithstanding the foregoing, the Licensee's assumption of payment of costs or expenses
shall not eliminate Licensor's duty to indemnify the Licensee under the Agreement. If the
software, or any part thereof, is held to infringe and the use thereof is enjoined or restrained
or, if as a result of a settlement or compromise, such use is materially adversely restricted,
Licensor shall, at its own expense and as Licensee's sole remedy, either: (a) procure for
Licensee the right to continue to use the software; or (b) modify the software to make them/it
non-infringing, provided that such modification does not materially adversely affect
Licensee's authorized use of the software; or (c) replace the software with equally suitable,
compatible, and functionally equivalent non-infringing software at no additional charge to
Licensee; or (d) if none of the foregoing alternatives is reasonably available to Licensor,
terminate the Agreement, and refund all amounts paid to Licensor by the Licensee,
subsequent to which termination Licensee may seek any and all remedies available to Licensee
under law. LICENSOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE
REQUISITE INSURANCE COVERAGE REQUIRED BY LICENSEE.
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IN WITNESS,the parties have caused this Agreement to be executed as of the date written
above.
LICENSOR: SHAH SOFTWARE, INC.
By:
Jagat Shah, President
LICENSEE:
By:
Name:
Title:
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
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EXHIBIT A
NO. OF LICENSED USERS: FIFTY FIVE (55)
YEARLY LICENSE FEE: - $30,537
COMMENCEMENT/CONVERSION DATE: JANUARY 1, 2022
Licensee's Initials:
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EXHIBIT B
ADDITIONAL APPLICATIONS OR MODULES:
• CSBG REPORTING, CEAP REPORTING
• WEATHERIZATION MODULE
• CSBG UPLOAD
• LIHEAP UPLOAD
• FASTRACK-NEWGEN (ENGLISH & SPANISH)
Licensee's Initials:
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EXHIBIT C
TERMS OF USE
User agrees to abide by these terms of use,as may be changed from time to time right to make such enhancements, modifications, or alterations generally
upon notice in the Licensor's sole discretion. available to other users of the software.
Disclaimers. USER HEREBY WAIVES ALL WARRANTIES, Title.Title and full and complete ownership rights to all Licensor's owned or
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, developed software (including source and object code) and other technical
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A specifications, addresses, or configurations (collectively the "Software")
PARTICULAR PURPOSE OR INTENDED USE;ANY WARRANTY OF associated with or contained in the system or used by User in connection
COMPATIBILITY BETWEEN THE SYSTEM, EQUIPMENT, herewith shall remain with Licensor. User understands and agrees that
SOFTWARE,OR DATA PROVIDED BY LICENSOR AND CUSTOMER Licensor's owned or developed Software is Licensor's trade secret,proprietary
OWNED EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN information,and confidential information whether any portion thereof is or may
NEGLIGENCE,TORT,STRICT LIABILITY,OR OTHERWISE,WITH be validly copyrighted or patented.Any Software provided to User is provided
RESPECT TO THE SYSTEM,EQUIPMENT,SOFTWARE,DATA,OR by license only,and such license is personal,nonexclusive,nontransferable,and
SERVICES FURNISHED HEREUNDER, USER AGREES THAT limited to the right to use such Software only according to guidelines
LICENSOR SHALL NOT BE LIABLE FOR ANY INDIRECT, established by Licensor from time to time.Such Software shall be utilized by
INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE User only in accordance with these Terms of Use and shall not be copied,
DAMAGES UNDER ANY CIRCUMSTANCES,INCLUDING BUT NOT duplicated, reproduced, manufactured, decompiled, reverse engineered,
LIMITED TO, LOSS OF REVENUES, EVEN IF ADVISED OF THE incorporated into any software (including any source code, object code, or
RISK OF SUCH DAMAGES IN ADVANCE. Although Licensor has algorithms),modified or disclosed in any form by any media to any other person
attempted to find and correct any bugs in the software, Licensor is not or party.User agrees to abide by any terms imposed by any third party that has
responsible for any damage or losses of any kind caused by the use or misuse directly or indirectly licensed Licensor to use Software in relation hereto.
of the programs. Licensor shall not be liable nor deemed to be in default of this
Agreement for any delays, errors, malfunctions, compatibility problems, or Miscellaneous. Nothing herein is intended or shall be construed to create or
breakdowns with respect to the system,equipment,data,or services provided establish an agency, partnership, or joint venture relationship between the
hereunder or used in connection herewith. parties.
Payment. User shall pay to Licensor in advance the fees pursuant to its License The captions herein are for convenience only and in no way define,limit,or
Agreement. Licensor shall notify User of any rate increase at least ten(10)days enlarge the scope of any of the provisions therein.
before same takes effect. Failure of Licensor to issue any invoice or bill shall
not relieve User of the obligation to pay for any charge owed Licensor No waiver by either party of any provision or any breach of this agreement
hereunder.User shall pay all fees and other charges within the earlier of fifteen constitutes a waiver of any other provision or breach,and no waiver shall be
(15)days from the receipt of an invoice or,for a renewal license term,three(3) effective unless made in writing. The right of either party to require strict
days of the start of the license term. In the event that User fails to pay any performance and observance of any obligations hereunder shall not be affected
amount within thirty(30)days of the date due,Licensor shall be entitled to in any way by any previous waiver,forbearance,or course of dealing.
interest on the amounts due at the highest rate allowed by law from the date due
until payment in good funds is received by Licensor. Licensor shall also have Except for User's obligation to make payments hereunder,neither party will be
the right to terminate User's access, without notice, if any invoice remains deemed in default as a result of a delay in performance or failure to perform its
unpaid for more than thirty(30)days.User shall pay all sales,use,personal obligations caused by acts of God or governmental authority,strikes or labor
property, excise, license, and any other taxes or similar fees, charges, or disputes,fire,acts of war,failure of third-party suppliers,or for any other cause
assessments which arise as a result of User's use of the software. beyond the control of that party.
Notice. All notices, requests, demands, or other communications hereunder User shall not sell,assign,license,sublicense,franchise,or otherwise convey
shall be in writing,hand delivered,sent by first class mail,overnight mail,or in whole or in part to any third party any of the services provided hereunder
facsimile(upon electronic confirmation that the transmission was received), without the prior written consent of Licensor.
and shall be deemed to have been given when received at the addresses stated
on this invoice. Any notice provided by facsimile which is received after 4:00 This is a nonexclusive agreement.Similar agreements may be entered into by
p.m.local time shall be deemed received the following business day.A party either party with any other person.
may change its addresses for notice on not less than ten(10)business days'prior
written notice to the other party. This agreement shall be governed by, construed, interpreted, and enforced
according to the laws of the State of Texas, without regard to principles of
Confidential&Proprietary Information. User understands that the information conflict of laws and rules. Each party hereby consents to the nonexclusive
it has access to through the right of access to Licensor's software and/or jurisdiction of the courts of the State of Texas and United States federal courts
facilities is of a confidential and proprietary nature,and User may hereinafter located in the State of Texas to resolve any dispute arising out of this agreement.
have access to other information of Licensor which is of a confidential and
proprietary nature and could result in irreparable harm to Licensor if any such In the event that any material provision of these terms are determined to be
confidential or proprietary information is directly or indirectly:(1)used by User invalid,unenforceable, or illegal,then such provision shall be deemed to be
for any purpose other than as specifically set forth herein;or(2)disclosed to superseded and the parties'agreement modified with a provision which most
any third party.Accordingly User agrees not to use the information for other nearly corresponds to the intent of the parties and is valid,enforceable and legal.
purposes or disclose or allow access to such information or software to any third
party.User agrees that a breach of these conditions shall be grounds sufficient
for immediate termination of its use and legal as well as injunctive relief.
Modifications. Licensor retains the right, in its sole discretion,to enhance,
modify,or alter the operation of the software at any time and further retains the
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FOR CITY OF FORT WORTH: LICENSOR:
F ;
Fernando Costa(Nov 29,202110:00 CST)
Name: Fernando Costa Name: Jagat Shah, President
Title: Assistant City Manager Date: Nov 12,2021
Date: Nov 2s,202u
APPROVAL RECOMMENDED
Name: Victor Turner 0.00�°F 00000. �
Title: Director 0 °o�.�d
ov° °=d
0° O
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APPROVED AS TO FORM AND ATTEST: � °°°°°°°°°°°°° ICY
LEGALITY �a��EXASoAp
Name: Taylor Paris Name: Ronald Gonzales
Title: Assistant City Attorney Title: City Secretary
Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring
and administration of this contract,
including ensuring all performance and
reporting requirements.
o
Name: Sonia Singleton
Title: Assistant Director
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX