HomeMy WebLinkAboutContract 48756���CItS=�qS
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CONTRACT N0.
ViJEWorlcs0
Customer Sofhvai•e License Agreement
(Server Version)
THIS C[JSTOA�IER SOFTWARE LICENSE AGREENIENT (this "Agf�eenteftP') is made as of
�%%�l (the "Effective Date'') by and bet�veen Data Ti•ansfei• Solutions, LLC, a
limited liabi ity company (`DTSs"), with an address at 3680 Avalon Park Blvd. East, Suite 200,
Orlando, Florida, USA, and the City of Ft. Worth, Te�as, a TeYas Municipal Corporation
('`Customer"), with an addcess at 200 Teaas Street, Ft. Worth, TX 76102. DTS and Customer are
each also referred to herein as a"Party" and collectively as the "Parties".
Whereas Custo�ner desires to license and implement, and DTS desires to provide, the "V[JEWorl�s
Soft►v�u�e" described in this Agreement. Therefore, in conside►•ation of the mutual duties and
obligation set forth herein, the Parties hei•eby muhially agree to the terms and conditions as
provided in this Agreement.
DTS AND CUSTOMER HAVE EACH READ AND AGREE TO BE LEGALLY BOUND BY
THE ATTACHED TERMS AND CONDITIONS AND THE ACCOMPANYING ORDER
FORM, ALL OF WHICH ARE INCORPORATED FULLY INTO THIS AGREEMENT, AND
HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY
AUTHORIZED REPRESENTATIVES BELOW.
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ITY ORT WORTH
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�; �.., Coin��l Name
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ACCEPTED BY:
DATA TRANSFER SOLUTIONS, LLC
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ure ate Signa ure Date
Susan Alanis
Printed Name
Assistant City Managei•
7'ltle
A. M. "Trey" Fragala, III, AICP, PMP
Printed Name
Chief Opei•ating Officer
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APPROVE� AS TO FORA7 AND LEGALI'TY: C �1� i�r��x�'" �S,r,y�Tj�j���j
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�FFICIAL RECORD
CITY SECRET'ARY
FT. WORTH, TX
VIJEWorksO
Customer Sofhvai•e License Agreement
(Server Version)
TERMS AND CONDITIONS
Please Note: Customer is purchasing a
license to use the VLJEWorks Soft�vare.
The VTTEWorks Soft�vare is o�i�ned and
remains the property of DTS and its
licensors and is protected by copyright
and other intellectual property laws and
international treaties.
1. Grant of Customer License. The
WEWorks li software product(s) identified
on EYhibit A, attached hereto and made a part
hei•eof, in object code format, along with any
Custoiner documentation provided to
Customer by DTS hereunder (collectively,
"VLJEWorks Software") are licensed, not
sold, to Customer for use solely under the
tet�ns of this Agreement. Subject to the
timely payment by Customer of the Fees (as
hereaftei• defined), DTS hereby grants to
Customer a limited, noneaclusive, non-sub-
licensable, nontransferable, license to use the
VUEWorks Software; in object code, solely
for the internal business purpose or municipal
purpose, as applicable, of Customer on a
single servec with up to the ntunber of
concurrent users as specified in any
applicable ORDER FORM. DTS shall have
the right to audit, either on-site or remotely,
the number of users and use of the software
in accordance with the ternls and conditions
herein upon reasonable notice. Customer
agrees to provide DTS access to servers,
computers, records, etc. in conjunction with
this audit provision.
2. Deliverv, Fees and Pavment Terms.
The terins and conditions stated herein shall
control for all ptuchases of DTS products.
All DTS prices are F.O.B. DTS' office
address. Costs of shi�ping and insurance, if
Page �2
applicable, shall be paid and borne by
Customer. Prices do not include federal,
state oi• local taYes, excise ta�es, tariffs oi•
duties. Customer a�rees to pay all siich taYes
or to reimbuise DTS for such taYes that DTS
may be required to pay. Customer agrees to
pay all fees set forth on the ORDER FORM
(the "Fees") on a net 30 days fi•om invoice
date. Late payments are subject to an interest
charge of the lesser of (i) one and one-half
percent (1.5%) per month of the overdue
amount or (ii) the maYiinum amount
perinitted under applicable law. ln the event
that any unpaid amounts are referred to
collection, Customer shall reimburse DTS
for all costs and expenses of collection,
including all reasonable attorneys' fees
incurj•ed. Customer agi•ees that it will not
directly or indirectly eYpoi�t or re-e�port tlle
VUEWorlcs Sofltivare, in whole or in pai-t, or
any technical data relating thereto, to any
countr�y, person, oi• entity subject to U.S.
export restrictions. Customer specifically
agrees not to e�port or re-eYport VUEWorks
Software (a) to any country that the U.S. has
embargoed oi� resh•icted the export of goods
oi• seivices or (b) to any national or resident
of any such country who intends to transmit
or transpoi-t the products back to such
country.
3. Maintenance anci Techuical
Sunpoi•t. Maintenance and Technical
Support services are available directly by
VUEWoi•ks or the VLTEWorlcs authorized
repr�esentative designated in the ORDER
FORM per the terms of this Agreement or
tlle terins of a separate Maintenance and
Technical Support Agreement. Such
services are subject to the timely payment of
the applicable Maintenance and Technical
Support fees set forth in the ORDER
� d ts
FORM. Annual maintenance and hosting
will be invoiced in fiill starting on the "Go
Live" date as determined by VLTEWorks (or
the anniver•sai•y thei•eof, as applicable). The
Maintenance and Support shall eltend for a
one (1) year term and will automatically
renew for sliccessive one (1) year terms
unless either party tei•minates this
Agreement in writing thirty (30) days prior
to the eapiration of then cur►•ent term of this
Agreement. The Fee shall be due and
payable upon receipt of the iuvoice.
Technical support shall be provided in
accordance with the terms of the
Maintenance and Technical Support Policy
attached hereto as EYhibit B.
4. Intellectual Propertv Ri�hts and
License Restrictions. The VUEWorks
Software, and all components thereof and all
propi•ietary materials used by DTS, or
delivered or pi•ovided by DTS to Customer
in the course of this Agreement is, and shall
at all times remain, the sole and e�clusive
property of DTS or its licensors, including,
without limitation, all worldwide Intellectual
Property Rights embodied in, related to, or
represented by, the VUEWorks Software or
any version thereo£ "Intellectual Property
Rights" ineans, collectively, rights under
patent, trademark, copyright and trade seci•et
laws, and any other� intellectual property or
proprietaiy rights recognized in any country
or jurisdiction woc•ldwide, incltlding moral
rights and similar i'ights.
Customer may ilot directly or indu•ectly copy,
alter, inodify, adapt, n•anslate, or create
derivative works based upon the VLTEWorks
Software oi• any pal•t of it. Customei• inay not
directly or indirectly (i) de-compile, �•everse
engineer, disassemble or otherwise reduce
the VUEWorI<s Sofltivare, or (ii) remove any
copyi•ight, trademarlc, proprietaiy rights,
disclaimer, or warning notice included on or
embedded in any part of the WEWorks
Page �3
Software, or (iii) interfere with or disrupt the
integrity of the WEWorks Software.
Customer may not rent, lease, sublease, re-
license or otheitivise malce available the
WEWorks Softwal•e (other than allowing
access to Custolnei's data through the use of
the VUEWorks Sofrivai•e), in whole or in
part, to third parties or use the WEWorks
Software as part of a colnmercial service
bureau, outsotircing, tinlesharing, or affiliate
program environment. Without in any way
limiting tlle foregoing, if Customer, directly
or through a third par�ty, makes any
Derivative (as hereafter defined) of the
ViJEWorks Sofrivare, Customer
ackno�vledges and agrees that all such
Derivatives are the sole property of DTS, and
all such use of the Derivatives is expressly
siibject to the tei•ms of this Agreement.
Customer iirevocably grants, transfers, and
assigns to DTS, without t•eseivation, a
worldtivide ownersl�ip 1•ight, title and interest
in and to all Derivatives of the VUEWorlcs
Software, which Custoinei• inay have or
acquire, by operation of law or otherwise.
Customer fui�ther hereby irrevocably transfeis
and assigns to DTS any and all moral rights
that Custoiner may have in stich Derivatives,
and hereby forever waives and agrees never
to assei�t any and all moral rights it may have
therein. Customer, at the written request and
eapense of DTS, agrees to e�ecute any and
all documentation necessary to foc�mally
transfer such rights to DTS. "Derivative(s)"
means an adaptation, enhancement,
improvement, modification, revision,
dei•ivation, oc translation. DTS acicnowledges
and agrees that all data delivered or provided
to DTS by Custoiner is propi•ietary to tl�e
Gity of Fort Worth and may not be used by
DTS for any other pucpose.
5. Confidentialitv. As used herein,
"Disclosing Party" and "Recipient" refer
respectively to the Party which discloses
� d tS
information and the Party to whicl�
information is disclosed in a given
elchange. Either DTS or Customer may be
deemed Disclosing Party or Recipient
depending on the circumstances of a
particular communication or transfer of
infoi•mation. Recipient will hold the
Confidential Information (as hereafter
defined) of the Disclosing Party in
confidence, using the same degree of care
that it uses to protect its own infoimation of
similar importance, but will in auy case use
no less than a reasonable degree of care to
protect Confidential Information. Recipient
will not directly or indirectly disclose
Confidential Information or any part thereof
to any third party without Disclosing Party's
advance eYpress written authorization to do
so. Recipient may disclose Confidential
Infor�nation only to its employees or agents
in the noi•mal course of its blisiness and only
on a need-to-kvow basis; provided; each
such employee oj� agent must either have
agreed in writing to comply with
confidentiality obligations no less restrictive
than those set forth herein or must be bound
by an ethical duty of confidentiality that
would prohibit disclosure of such
Confidential Information. Notwithstanding
the forgoing, a Party �vill not be prohibited
fro►n disclosing the Confidential Information
to the eatent reqliired by applicable law,
statute, rule, regLilation, or regulatory or
administrative body. If disclosure is required
by la��, statute, rlile, regulation, or
regulatoiy or administrative body (inchiding
any snbpoena or other similar focm of
process), the Party to which the request for
disclosure is made shall (to the eatent
permissible by la�v) provide the other Party
with prior prompt written notice thei•eof and,
if pi'acticable under the circumstances, allow
the other Party to seek a restraining ordei• or
other appropriate relief. The Party required
to make such disclosure will cooperate with
the efforts of the other Party in obtaining
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such relief. If such relief cannot be obtained,
the Party required to disclose the
Confidential Information shall cooperate
with tl�e otller Party's efforts to obtain
reasonable asstn�ances that confidential
t�•eatment will be accorded to the
information so disclosed. The injured Party
shall be entitled in such event to seel:
injunctive relie£ Such Party shall be entitled
to recover its costs and fees, including
reasonable attorneys' fees, incurred in
obtaining such relief. "Coniidential
Information" means all nonpublic
infoi•mation and material that fi�om all the
relevant circumstances should reasonably be
assumed to be proprietaiy or otherwise
confidential. Confidential Information of
DTS includes, but is not limited to,
nonpublic infoi•ination related to tlle details
and conlponents of the VUEWorks Softwai•e
and the terms of this Agreement, inchiding
those celated to pricing. "Confidential
Information" does not include information
that (a) is or becomes �enerally known to
the public or nlade available on the Internet
at any time by any means other than a
breach of the obligations under this
Agreement of a Receiving Party; (b) is
received by the Receiving Party fi�om a third
party who had a lawful right without
restriction to disclose such information; or
(c) is independently developed by the
Receiviug Party.
6. Warrantv. DTS repi•esents and
warrants that it has the rights to grant the
license aud other r•ights to Custoiner
hereunder, the VUEWorks Softvvat•e
supplied by it undec this Agreement will not
infringe upon the copyright or trademark of
any thii•d party and the VUEWoi•ks Software
media pi•ovided hereundel• to be fi•ee of
defects for a period of ninety (90) days fi�om
the date of purchase. Dtiring this period,
DTS will replace at no cost any sucl�
defective media returned to DTS.
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7. Exclusive Remedv. Ctistomeis exclusive
remedy and DTS' entire liability for breach
of the liinited wan�anties set forth in this
Agreement shall be limited to (i)
replaceinent of any defective media; (ii)
r•epair, coi-rection, or a workaround for
VUEWorks' Software, provided that
Customer is curi•ent with Maintenance and
Suppoi-t fees, or (iii) return of the Fees paid
by Customer for the VUEWorks Software
that does not meet DTS' limited warranty,
provided that (i) Cilstomer uninstalls,
removes, and destroys all copies of
VUEWorks Software and any
documentation in connection therewith and
(ii) eaecutes and delivei�s evidence of such
actions to DTS.
8. Indemnification.
(a) DTS agrees to indelnnify and hold
harmless Customer and its officers,
directors, agents and employees fi�om and
against any and all claims, costs, damages,
losses, liabilities and eapenses (including
reasonable attorneys' fees and costs)
attributable to the use of the VUEWorks
Software infi•inging the U.S. patent or
copyright or utilizin� the trade secret
misappropriation fi•om any third party,
provided that Customer promptly notify
DTS in writing of any and all lcnown threats,
claims and proceedings related thereto. The
foregoing obligation of DTS does not apply
with respect to any intellech�al property (a)
uot supplied by DTS, (b) combined with
other products, processes or materials, to the
e�tent the alleged infi•ingement relates to
such combination and such combination was
not alithorized by DTS, oi• (c) to the ehtent
that Customer's use of the VUEWorks
Soft��are is not in accordance with this
Agreement.
If any VUEWorlcs Software becomes; or m
DTS' opinion is likely to become, the subject
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of a claim of infi�ingement, DTS will, at its
option, (i) proc��re for Customer the right to
continue using the VUEWorks Software; (ii)
replace the VLTEWorks Soflware with a non-
infi•inging product substantially complying
with the VUEWorl:s Soft�vare's
specifications and functionality; (iii) modify
the VUEWorks Software so it becomes non-
infi�inging and perfoims in a stibstantially
similar manner to the original VUEWorks
Software; or (iv) termuzate the license, in
whole or in part, to the affected VUEWorks
Software and DTS will refund any prepaid
fees with respect to the affected VUEWorlcs
Software.
(b) The Parties agree that the indeinnification
obligations set forth above shall be
conditioned upon the indemnified Party (i)
promptly notifying the indemnifying Party of
slich claim, (ii) providing the indemnifying
Party with the right to defend oi• settle such
claim, including selection of defense counsel
to i'epresent DTS, and (iii) pi•oviding the
indemnifying Party with good faith assistance
in the defense or settlement of such claims.
Subject to the foregoing, the indemnified
Party shall have the right to participate at its
o�vn eYpense in any indemnification action or
related settlement negotiations using col�nsel
of its own choice. Neither Party may consent
to the entry of any judgment or enter into any
settlement that adversely affects the rights or
interests of the other Party without such
Party's prior written consent, which may not
be unreasonably withheld.
9. Disdaimer and Limitatious of
Liabili . DTS AND ITS LICENSORS DO
NOT REPRESENT OR WARRANT THAT
(i) THE USE OF THE VUEWORKS
SOFTWARE W1LL BE SECURE,
LJNITERUPTED OR ERROR FREE OR (ii)
THE VUEWORKS SOFTWARE WILL
MEET CUSTOMER'S REQUIREMENTS.
+� dts
EXCEPT AS EXPRESSLY PROVIDED
HEREIN. THE VUEWORKS SOFTWARE
IS PROVIDED TO CUSTOMER "AS-IS".
DTS DISCLAIMS ALL OTHER
REPRESENTATIONS A�
WARR.ANTIES, WHETHER EXPRESS,
IMPLIED OR STATUTORY,
INCLUDING, WTTHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF
MERCHANTLBILITY OR FITNESS FOR
p, PARTICULAR PURPOSE,
REGAR_DING THE VUEWORKS
SOFTWARE, AND/OR ITS USE AND
OPERATION.
ALL THIRD PARTY SOFTWARE
INCORPORATED IN THE VUEWORKS
SOFTWARE IS PRODUCED "AS IS".
DTS MAKES NO REPRESENTATIONS
OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE THIRD
PARTY SOFTWARE, 1NCLUDING,
WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTIBILITY
OR FIT`NESS FOR A PARTICULAR
PURPOSE, REGARDING THE
VUEWORKS SOFTWARE, AND/OR ITS
USE AND OPERATION.
LICENSE FEES PAID FOR THE
VUEWORKS SOFTWARE DO NOT
INLCUDE ANY CONSIDERATION FOR
ASSUIvIPTION OF THE RISK AND 1N
NO EVENT, OTHER THAN WITH
RESPECT TO THE PARTIES'
CONFIDENTIALITY A�
1NDENINIFICATION OBLIGATIONS
HEREUNDER, SHALL EITHER PARTY
BE LIABLE FOR ANY EXEMPLARY,
SPECIAL, 1NCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES
(INCLUDING LOSS OF PROFIT,
REVENUE, OR DATA), ARISING OUT
OF OR RELATING TO THIS
AGREEMENT EVEN IF THE OTHER
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PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH POTENTIAL
LOSS OR DAMAGES, OR FOR ANY
INTERUPTION, INACCURACY, ERROR
OR OMMISSION, REGARDLESS OF
CAUSE, IN THE VUEWORKS
SOFTWARE. IN NO EVENT SHALL
THE AGGREGATE LIABILITY OF DTS
AND ITS LICENSORS SHALL NOT
EXCEED THE AMOUNT OF LICENSE
FEES ACTUALLY PAID BY CUSTOMER
TO DTS.
THIS AGREEMENT PROVIDES
CUSTOMER WITH SPECIFIED LEGAL
RIGHTS AND CUSTOMER MAY HAVE
OTHER RIGHTS THAT VARY FROM
JUSRISDUCTION TO JUSRISDICTION.
SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSIONS OR LIMITATIONS
OF WARRANTIES, SO THE ABOVE
WARRANTY, DISCLAIMER AND
LLMITATIONS OF LIABILITY OR
EXCLUSIONS MAY NOT APPLY.
10. Term and Termination. This
A�•eement shall commence on the Effective
Date and shall continue until all ORDER
FORMS issued hereunder have eapired or
have been terminated, unless terminated in
accordance with the termination procedures
set forth her•ein oi• as otherwise provided
herein. Either Party may terminate this
Agreeinent upon written notice to the other
Parry if the other Party inatel•ially bt•eaches
any obligation and fails to cure such breach
within thirty (30) days after receiving written
notice thereof (such notice providing specific
details of such breach). Either Party shall
also have the right to terminate this
Agreeinent upon written notice to the other
Party if the other Party: (i) terminates or
ceases opei•ating its bLisiness in the normal
course; (ii) becomes subject to any
bankruptcy or insolvency proceeding under•
federal or state statlite; (iii) becomes
� dts
insolvent or becomes subject to direct connol
by a n•ustee, receiver or similar authority; or
(iv) has wound l�p liqliidated, voluntarily or
otheitivise, and in the case of (ii) and (iii),
above, if tl�e covdition has not been cured
within si�ty (60) days. Upon the tertnination
or expiration of this Agreement, upon a
request by either Party hereto: (i) all
outstanding payments to the other Pai�y
shall promptly be paid in full; (ii) all
Confidential lilformation of one Party in the
possession of the other shall be promptly
returned (or, at the other Party's written
instruction, destroyed). Upon termination or
eXpiratioiz of this Agreement, Customer
agrees, at the option of DTS, to return or
destroy/disable the VUEWorks Software so
that it is no longer usable and to make no
further use of the VUEWorlcs Software. The
Parties' rights and obligations, which by
their nature would contiilue beyond the
eapiration or termination of this Agreement,
including, but not limited to, Sections 2, 4,
5, 6, 7, 8, 9, 10, 1 l, 12 and 13, shall survive
any termination or e�piration of this
Agreement.
11. EYemption under Public Records
Disclosure Laws. In the event Customer ts
a government entity subject to state or
federal public records disclosure law, it
eYpressly acicnowledges and agrees that all
DTS' Confidential Infoi•iilation and
Intellectual Property Rights constitutes
and/or will constitute "trad� secrets" as
defined by the Uniform Trade Secrets Act as
enacted, and/or pursllant to other applicable
state or federal 1aw. Customer agrees tl�at
prior to any stat�rtorily maudatory disclosure
of such DTS' Confidential Information
and/or Intellectual Property Rights, it will
promptly notify DTS of any request foi•
disclosure so that DTS may take sucl� action
or actions it deems necessary to prevent
such disclosure.
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12. Govei•nin� Law. This Agreement will
be governed by and construed, interpreted
and enforced in accordance with the laws of
the State of Florida, without giving effect to
any pt•ovisions relating to conflicts of laws
that would require the laws of another
jurisdiction to apply. The Pat�ties agree that
any litigation pertaining to this Agreetnent
shall e�clusively be in the state and federal
courts located in Orange County, Florida.
The Parties hereby waive any objections
based upon the jurisdiction, forum, or venue
Of SUCI1 COLIPiS
13. General Terms.
(a) Assignment. EYcept in the case of any
assignment to the surviving entity in the
event of a mer•ger or other business
combinatiou involving a Par-ty, or to the
purchaser of all or st�bstantially all of a
Party's assets oi• voting stock, this
Agreeinent may not be assigned, or
otherwise h•ansferi•ed by either Party it1
�vhole, oi• in part, witl�otrt the eapress prioi•
�vritten consent of the other Party. Such
consent will not be unreasonably withheld.
All terms and conditions of this Agreement
shall be binding upon and shall inure to the
benefit of the Parties to this Agreement and
their respective successors and permitted
assigns.
(b) Corporate Authority. Each Pai•ty
1•epresents and warrants that the pet•son
e�ecuting this Agreement is duly
authorized to bind and to act on bel�alf of its
respective entity and that this Agreement is
binding upon said entity in accordance with
this Agreenlent's terms.
(c) Compliance �vith La�vs. Customer will
comply with all federal, state, and local
laws, codes, ordinances, cules, and
regulations in its use of the VUEWorks
Software, and in performing its duties,
� dtS
responsibilities, and obligations pui•suant to
this Agreement.
(d) Prevailing Party. The prevailing Party
in any action or proceeding relating to this
Agreeuzent shall be entitled to recover
reasonable attorneys' fees and other costs
fi•oin the non-prevailing Party, in addition to
any other relief to which such prevailing
Party is entitled.
(e) Counterparts. The Parties may e�ecute
this Agreement in multiple counterparts,
each of which constitutes an original, and all
of which, collectively, coilstitute only one
agreement. This Agreement may be
eYecuted by facsimile ar PDF. Said
facsimile or PDF shall be deemed an
original and fully enforceable and
adinissible in any legal proceeding.
Delivery of an e�ecuted counterpart
signature page by facsimile or PDF is as
effective as e�ecuting and delivering this
Agreement in the presence of the other
Parties to this Agreeulent. This Agreement
is effective upon delivery of one eaecuted
counterpart fi•om each Party to the other
Party(ies).
(� Entire Agreement. This is the entire
agreetnent between tl�e Pai-ties relating to the
subject matter herein and supersedes any
prior representations or agreements, oral or
written and all otl�er commLinications. This
Agreenlent will not be varied except iu
writing, signed by the Parties. EYcept as
otherwise eYplicitly provided in this
Agreement, the provisions of this
Agreement shall control and prevail over
any conflicting provisions in any proposal,
purchase order, acceptance notice or other
document attached hereto and/or related to
the subject matter of this Agreement.
(� Force Majeure. Neither party shall be
liable to the other for delays or failure of
performance (other than the failure to make
Page �8
any payment when due) resulting fi�om acts
beyond the reasonable contl•ol of such party,
including, but not liinited to, acts of God,
governmental orders or reshictions, strikes,
terrorism, power failures, i•iots, fires, floods
or other natural disasters.
(g) Headings and Captions. The
descriptive headings of the articles, sections
and subseciions of this Agreement are for
couvenience only and do not constitute a
part of this Agreemeut.
(h) Interpretations. The Parties agree
that the terms and conditions of this
Agreement ace a result of mutual
negotiations. Therefore, the rule of
construction that any ambiguity shall apply
against the drafter is not applicable and will
not apply to this Agreenlent Any
ambiguities shall be reasonably construed as
to its fair meaning and not stt•ictly for or
against one Party regardless of who authored
the ambiguous language.
(j) No Waiver. A Party does not waive any
right under this Agreement by failing to
insist on coinpliance with any term of this
Agreement or by failing to elercise any
right hereunder. Any waiver granted
hereunder is effective only if it is written
and signed by the Party granting such
waiver. A waiver of any provision of this
Agreement shall not imply a subsequent
waiver of that or any other provision of this
Agreement.
(k) Publicity. Neither Party shall use the
other Party's name or refer to the other Party
directly or indirectly in auy media release,
public announcement, ol' public disclosure
relating to this Agreement or its subject
matter, including any promotional or
marl:eting materials, lists, refei•ral lists, or
business presentations, without written
consent fi�om the other Party for each such
� dts
Page �9
use or release. Such approval will not be
unreasonably witllheld.
(1) Seve►•ability. If any provision of this
Agreement is determined to be illegal,
invalid or unenforceable by a competent
coui�t or tribunal, the validity and
enforceability of the remaining provisions
will not be affected and, in lieu of such
illegal, invalid or unenforceable provision,
there will be added as part of this Agreement
one oi� more provisions as similar in terms
and effect as may be legal, valid and
enforceable under applicable law.
(in) Notices. Any notice, request,
instruction, or otl�er communication required
or permitted to be given under this
Agreement shall be in writing, delivered to
the addi•esses first set forth above, to the
attention of Chief Operating Officer, with
respect to DTS, and to the attention of Chief
Operating Officer, with respect to the
Customer. Copies of all notices to DTS shall
also be delivei•ed to David G. Mitchell, PA,
Suite 500, 3780 Sand Lalce Road, Orlando,
Florida 32819 Attention: David G. Mitchell.
All such notices shall be effectively given:
(i) upon personal deliveiy to the Party to be
notified; or (ii) upon receipt when delivered
by a nationally recognized overnight courier,
with written verification of receipt; or (iii)
upon receipt as indicated by the date on the
signed receipt when delivered by registered
or certified mail, return receipt reqliested
and postage prepaid.
(n) Third Party Beueiiciat•ies. This
Agreement is for the benefit of DTS and the
Custoiner and not for the benefit of any
other party.
Ef�cl of TERII�IS AND CONDITIONS
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EXHIBIT A
ViJEWorks Software Product(s)
(ORDER FORM)
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, vueworks, uc
,� � � � � SOFTWARE ORDER FORM
ngreementoace: zno/zou
Organizitian
Namc: Ciryot Fc Worth, 7X
CoMact� Kathryn°a-- Dw�
Phane:8173928459
Fax•
Email: Kat�rynAgez-Dov+@fortvrortht¢rasgw
Add tc u: 200 ¢xa s Str ect
Ft. Nbrth, lX 76102
Fax:
Email:
Adcliess�
v...h.+. v,a x�.,i�ee Yrovided}funu�da mdAnv7uable L7m'Ee�:
Technirzl
Corrtad:
Fhone:
Fax:
Emai�:
Address:
Oeliuery
Cordad�
Phone:
fax:
Email:
Address�
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���Ibrt��e:ChJb WS� MSIYgMCN6 A�C�IRy �A�� WI{OStI
ALiNIJAL MAIN �l'TANCS AND SUFPORt (SUB SCRIPIIOfl PRO[�IAht) INCLUD&S UPDAIG 5, UPGRADES AND BASIC 1Ts C}1NICAL
5UPPORT DURING SACH ATiPiUAL'1&IUd BA56D UPQft20% OF TFIG 1}Q'sN-CURR&fiT T07AL LIC&N5E( � FFi&. IN5TALLAIION,
AtPLhldENTAIION OR i1tAINING 5&RVIC&SAR& AVAII.Affi.E SUB7ECT 14 5CH6DULINGAT 7}Q's 1}�N CURR&NTRA7&S AND
POI3CIGS. PLEASH C�tTTACT WfiWORIC5 FOA hiQRfi INFORhiAIIOI'1.
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EXHIBIT B
MAINTENANCE & TECHNICAL SUPPORT POLICY
DTS technical support is available fi•om 8:OOam to S:OOpin, Eastern Time, on all
weelcdays other than Federal holidays. DTS' suppor�t includes answering questions fi�om
Ctistomer over• the telephone or email, and the commercially i•easonable effort to have the
VUEWorks Software functioning properly in accordance with the docLullented prodtict
features and specifications.
DTS Support must be initiated either through calling the support line (800) 252-2402 Y2
oi• Support Email: su�port�vueworks.com. DTS recommends the use of einail as it
serves as a written record of tl�e event.
Customer shall designate one individllal to serve as the prinlaty support contact for
requests. Additionally, Ciistomer may designate as many as two (2) moi•e secondary
individuals who may contact DTS directly for support issues. Other a1•rangements will be
addressed on a case by case basis and must be agreed to in wi•iting by Custoiner and DTS.
The initial contact whether invoked by email or telephone for a particl�lar issue defines
the beginning of a suppoc•t incident.
In cases whei•e a DTS staff inember is unable to answer the pllone, oj• when the Customer
uses email for a support request, Customer will include in the message their name, their
organization, a thorougl� description of the steps that pi•eceded the problem, and a call
bacic number. Screen shots and complete descriptions of the problem, activities leading
to the problem and any related detail are most helpful. DTS may not be able to respond if
this information is not provided.
Coinnzon incidents include opei•ational questions, impi•oveulent suggestions, problems
related to changes in the Customers' GIS environment, probleins related to changes in the
customers' VUEWorks Software implementation, and pi•oblems t•elated to defects in the
software.
a. If the incident involves a defect in the VUEWorks software, DTS will provide the
commercially reasonable effort to fix the defect(s) at no char�e.
i. A defect is defined as an issue with the sofrivare during the normal course
of operation where the software does not function as documented due to
an ei•i•or in the softwal•e code.
ii. A defect is often, but not always, accompanied by an error message.
iii. VUEWorks software has inany dependeucies that could generate error
inessages that are delivered through the VUEWorlcs software but are
not VUEWorlcs software defects. These include but are not limited to:
1. ESRI GIS Soft�vare (ArcGIS Server or ArcIMS)
2. MS SQL Server
3. Server opei•ating system
4. Pertnissions
5. Hardware
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6. Networlc connectivity
7. Individual Customer cotnputer issues
a. Individual Custoiner computei• issues are identified when
the issue occurs on a limited number of coinputei•s but not
on all coinptiters using the same VUEWoi•ks software user
login.
b. DTS reserves the right to determine if an issue is caused by a VUEWorks
software defect or not
If the issue is determined to be anything other than a defect in the VUEWorks softwace
code then DTS will provide up to 30 minutes of technical support at no charge, followed
by a charge of two hundi•ed dollars ($200) per hour per incident.
DTS technical services do not include support for ESRI Software. While DTS staff inay
attempt, at its sole discretion, to resolve issues stemming fi�oin ESRI Softwace, the
Customer recognizes that these types of issues are best supported through ESRI's many
support channels.
DTS handles incident reports in the following manner
Each incident logged will be given a priority of 0 to 4 as determined by DTS technical
support staff. DTS will first attempt to resolve the issue with the Customec upon initial
response. If the iss�ie cannot be i•esolved during initial response then DTS will respond to
the r•equest depending on the prioi•ity ofthe issue as defined in the following sections:
a. Priority 0. Cr•itical Issue. DTS will start woi•king on the issue within 4 business
hotu•s of initial response and continue to work on the issue dLu•ing normal business
hours until the issue is resolved. E�amples of Critical Issues:
i. No user at the Customer site can log on to the VUEWorks soft�vai•e
ii. The inap does not display on any user computer at the Customer's site.
iii. No user at the Customer's site can create a Service Call or Work Order
b. Priority 1. Severe Issue. DTS �vill stai-t worl:ing on the issue within one business
day of initial response and continue to work on the issue during normal business
hours until the issue is t•esolved if any of the following occurs:
i. The VUEWorlcs software genei•ates infocmation that is obviously and
substantially incarrect
ii. A feature prodt�ces eri•or messages that causes an application feature to
stop functioning oi• uot produce results
c. Pi•iority 2. Impoctant Issue. If the issue cannot be i•esolved through the initial
response process then DTS will start working on the issue within 5 business days
and resolve the issue within 30 days thereafter if any of the following occurs:
i. An issue i•epoi•ted by Customer that can be i•esolved by pr•oviding help on
iising a specific feature
ii. Issties that cause an eri•or message but do not cause the application to stop
functioning or create res�ilts that are substantially incorcect �
iii. Issues acicnowledged by DTS as a defect that can be avoided without loss
of filnctionality through a work around process
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d. Priority 3. Low priority issues. If the issue cannot be resolved through the initial
response process then DTS will doctunent the issue but not be obligated to
respond within any specific time fi�ame for the following types of issues:
i. Issues oi• questions that are uot directly related to the functio►iality of
the product
ii. Non-conh•actual application enhancement request (the "Wishlist"). A
non-contractual i•equest to provide featui•es in the VUEWorks software
that ai•e not in the curi•ent product.
e. Priority 4. Issue is not directly related to VTJEWorks software. If an issue is
determined to be related to hardware, bro�vser, or operating system
malfunction DTS will notify Customer that the issue must be resolved by the
Customer. These cases are usually substantiated if the issue occurs on only
one user computer and cannot be replicated on another user computer or at
DTS' test environment.
DTS, LLC. will provide commercially reasonable effort based on the above
guidelines. If it is determined that the effort required to resolve the issue is
not included in this Annual Maintenance and Support policy, worlc will stop
and the Customer �vill be advised that the work is not covered. At DTS
disci•etion, the customer may be provicied an option for DTS to continue the
�vork at an agreed to cost and scope.
10. Dz�-ect Se���er Access: In order for DTS to provide adequate suppoi�t the Customer
agrees to provide DTS the means to i•emotely conti•ol and transfer files with the
Custamet•'s WEWorks server, the GIS sei•ver and the SQL ser•vei• through the Intet•net.
a. DTS cecommends LogMeIn software fol• remote access but �vill work with any
coinmercially acceptable system that pi•ovides remote control and file transfer
capabilities as preferred by the Customer
b. This requireinent allows DTS support staff to:
i. Offer the Custoinei• software update services to install patches, updates,
and upgrades that would otherwise rec�uire Customer resources
ii. Ability for DTS staff to directly opei•ate the VUEWorks software at the
Custoiner site for the purpose of investigating issues reported by the
Customer
iii. Attempt to resolve issues remotely that �vould other�vise require an On-
Site visit
c. Customers understands and agrees that if remote access to Customers serveis is
not provided then the all response times documented in item 10 above will uot
apply.
i. DTS agrees to not access any other data or applications other than cequired
for VUEWorks software support purposes.
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