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HomeMy WebLinkAboutContract 27054 CITY SECRETARY �. CONTRACT NO COPYRIGHT LICENSE AGREEMENT FOR THE USE OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S TRANSPORTATION MANAGEMENT SATELLITE (TMS) SOFTWARE STATE OF TEXAS * COUNTY OF TRAVIS THIS AGREEMENT is made by and between the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the "State," and the City of Fort Worth, Tarrant County , located at 1000 Throckmorton, Fort Worth, TX 76102 , hereinafter called the "Licensee." WITNESSETH WHEREAS, the State, in accordance with Transportation Code, §201.205, may: 1. Apply for, register, secure, hold, and protect patents, copyrights, trademarks, or other evidence of protection or exclusivity issued under the laws of the United States, any state, or any nation, including ideas, publications, and other original innovations fixed in a tangible medium; 2. Enter into nonexclusive license agreements with any third party for the receipt of fees, royalties, or other thing of monetary or nonmonetary value; and 3. Waive or reduce the amount of fees, royalties, or other monetary or nonmonetary value to be assessed if it determines that such waiver will further the goals and missions of the department and result in a net benefit to the State; and WHEREAS, the State has authored, produced, or participated in the production of a work, or works, known generally as the Dallas District Transportation Management Satellite System Software ("TMS Software") , and is the owner of certain rights in the TMS Software, including copyrights, title and interests related thereto; and WHEREAS, the Licensee desires to obtain a license from the State to use the TMS Software for the purpose of transportation management ; and WHEREAS, the State is agreeable to provide a nonexclusive, non-transferable license to the Licensee to use the _ TMS Software as stated herein, provided the Licensee agrees to the terms and conditions established in this agreement. AGREEMENT NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, it is agreed as follows: Rcc�'Al PEND �u U c�EU1(5�;1Q1( Page 1 of 5 -. rj �ll ��0 04/05/01 1. CONTRACT PERIOD This agreement becomes effective upon the date of final execution by the State and shall terminate four(4) years from that date unless terminated or modified as hereinafter provided. At the end of the contract period, the State and the Licensee may enter into a written supplemental agreement, in a manner defined herein, to extend the period of the license agreement. 2. RIGHTS GRANTED A. The State hereby grants to the Licensee a nonexclusive right, license, and privilege worldwide to use the TMS Software for the purpose of traffic management in the Dallas/Fort Worth Metroplex . The Licensee shall establish in Attachment A, attached and incorporated hereto for all purposes, a list describing how the Licensee intends to use the TMS Software . Any additions or deletions to this list shall have the advance written approval of the State. B. The Licensee agrees that this License does not transfer or convey any ownership or any other rights other than those rights expressly granted by this agreement. Title to and all rights of ownership in the TMS Software , are and remain with the State. The Licensee does not have, nor shall it attempt to obtain, any title to the TMS Software. The TMS Software consists of the State's trade secrets and other proprietary and confidential information. The Licensee shall not disclose, publish, or disseminate any of the State's proprietary information to any third party who is not bound by a written confidentiality agreement with the State expressly covering this information. The Licensee will not use, reproduce, distribute and/or sell the TMS Software , except as expressly authorized in this agreement. 3. LICENSE FEE The State agrees to waive the fee associated with the use of the license. The State at all times under this agreement reserves the right to employ a fee for the use of the license by providing not less than thirty (30) days written notice to the Licensee defining the terms of the fee. 4. COPYRIGHT INFRINGEMENT Each party to this agreement shall notify the other of any infringement or potential infringement by a third party of the copyright or any other rights owned by the State relating to the TMS Software , or of any breach of this agreement by any third party. Each party shall assist and cooperate in resolving any and all breaches or infringements. The Licensee agrees to execute any instruments necessary for the State's prosecution of any action for infringement. 5. RESPONSIBILITY FOR MAINTENANCE OF THE WORK The State is not responsible for providing the Licensee any upgrades or modifications to the TMS Software , nor is the State responsible for any maintenance to, or correcting any defects in, the TMS Software after the work has been provided to the Licensee under this agreement. Should the Licensee make any modifications to or upgrade the TMS Software , the Licensee shall provide the State a copy of such upgraded or modified version of the work. Page 2 of 5 ��������C���Q� 04/05/01 f 6. ASSIGNMENT PROHIBITION The Licensee is prohibited from assigning the licensed rights to the TMS Software , or licensing any of the rights conferred by this agreement, to any third party without the advance written approval of the State. Any attempted sublicense, assignment, or other transfer of the TMS Software or of the rights or obligations of this agreement without the State's consent shall be void and may be grounds for termination of this agreement. 7. COVENANT AGAINST CHALLENGE By entering into this agreement, the Licensee is prohibited from challenging or contesting in any manner the validity of the TMS Software's copyright or its ownership by the State. 8. TERMINATION A. Including the provisions established herein, this agreement may be terminated by any of the following conditions: (1) Mutual agreement and consent of the parties hereto. (2) By the State, upon written notice to the Licensee as consequence of the Licensee's failure to comply with the requirements of this agreement, unless the Licensee's failure to comply with the agreement is due to no fault of its own. (3) By the State for reasons of its own and not subject to the approval of the Licensee upon not less than thirty (30) days written notice to the Licensee. B. If the termination is due to the failure of the Licensee to fulfill its contractual obligations, the State will notify the Licensee a possible breach of contract has occurred. The Licensee must remedy the breach as outlined by the State to the State's satisfaction within thirty 30) days from receipt of the State's written notification. The State will declare this agreement terminated upon the Licensee's failure to remedy the breach within the thirty (30) day_ _period. C. Termination of the agreement shall extinguish all rights, duties, obligations and liabilities of the State and the Licensee under this agreement. All rights granted to the Licensee shall revert to the State as owner of the TMS Software . Upon termination of this agreement, the Licensee will immediately cease using the TMS Software as soon as is operationally feasible. D. Termination or expiration of this agreement shall not extinguish any of the Licensee's or the State's obligations under this agreement which by their terms continue after the date of termination or expiration. 9. INDEMNIFICATION To the extent permitted by law, the Licensee shall indemnify and save harmless the State from any and all losses, liabilities, damages, claims, demands, costs, expenses, or other liabilities arising out of or connected with the Licensee's possession or use of the TMS Software during the term of this agreement including, but not limited to, any illegal or improper use of the TMS Page 3 of 5 iff OG�'�� EKDRD 04/05/01 rff, t1E',(eNPMQY Fto wcu) `�� Ta Software . The Licensee's indemnification of the State shall extend for a period of three (3) years beyond the date of termination of this agreement. 10. REMEDIES Violation or breach of contract by the Licensee shall be grounds for termination of the agreement and any increased costs arising from the Licensee's default, breach of contract or violation of contract terms shall be paid by the Licensee. This agreement shall not be considered as specifying the exclusive remedy for any default, but all remedies at law and in equity may be availed by either party and shall be cumulative. 11. COMPLIANCE WITH LAWS The Licensee shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any court or administrative body in any manner affecting the performance of this agreement. 12. SUPPLEMENTAL AGREEMENTS Any changes in the contract period, character, or agreement terms shall be enacted by a written supplemental agreement executed by both parties. Any supplemental agreements must be executed during the contract period established in Article 1, Contract Period. 13. LEGAL CONSTRUCTION In case one or more of the provisions contained in this agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 14. PRIOR AGREEMENTS SUPERSEDED This agreement constitutes the sole and only agreement between the parties and supersedes any prior understandings and/or written or oral agreements between the State and the Licensee respecting the within subject matter. 15. SIGNATORY AUTHORITY The undersigned for the Licensee represents and warrants that he/she has the full and complete authority to enter into this agreement on behalf of the Licensee. 16. NOTICES All notices to either party by the other party required under this agreement shall be delivered personally or sent by certified or U.S. Mail, postage prepaid, addressed to such party at the following respective address: State: Texas Department of Transportation ATTN: Director of Transportation Operations PO Box 133067 Dallas, Texas 75313-3067 L 01 ^ fr Page 4 of 5 04/05/01 Licensee: City of Fort Worth ATTN: Director of Transportation/Public Works 1000 Throckmorton Fort Worth, TX 76102 and shall be deemed to be received by the addressee on the date so delivered or so deposited in the mail, unless,otherwise provided herein. Either party hereto may change the above address by sending written notice of such change to the other in the manner provided herein. IN TESTIMONY WHEREOF, the State and the Licensee have executed duplicate counterparts of this agreement. THE CITY OF FOR W TH ----:.--� APROYBD AS TO FORM AND GKOAt,ITY: By: -- Mike Groomer Assistant City Attorney ASSISTANT CITY MANAGER Typed Name and Title ATTESTED BY Date pivot /J:jL� ,-nr , � d i k02 ContraC Authorization STATE OF TEXAS 7, r� D e Executed by and approved for the Texas Transporta on Commission for the purpose and effect Ak of activating and/or carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission. By: hallas n, P.E. ngineer ,,'ct (/ Date C01PD Page 5 of 5 �- 04/05/01 o ATTACHMENT A The Licensee intends to use the TMS Software to control the following devices within the Licensee's Traffic Management Center. These devices are: Video Switch ATM Switch Video Cameras The State's DalTrans Center and the Licensee's TMC will be connected through the State's TransVision ATM network as a client at a security level determined by the State. The Licensee will be allowed to utilize the software to tour the State's DalTrans CCTV images. The Licensee may request the access to pan, tilt and zoom by a voice request to the State, these requests will be honored if the controls are needed for transportation management issues and if they are not currently being utilized by the State or another Licensee.