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HomeMy WebLinkAboutContract 35151LIMEHOUSE SOFTWARE AGREEMENT BETWEEN "Limehouse" LIMEHOUSE SOFTWARE Inc. or 1111 Brickell Avenue, "Contractor" 11'h Floor Miami Florida 33131 United States CiTY SECRETI4RV" ��P�lTRACT n!� , � 5 -/ S �_ AND "Customer" City of Fort Worth or Development Department "City" 1000 Throckmorton Street Fort Worth Texas 76102 The Parties hereby agree as follows: G� ' The Commencement Date for this Agreement shall be the � day of D(� �, 2007. u "Contract Documents" This agreement shall consist of the following documents and any attachments thereto: 1. Limehouse Software License — Terms and Conditions (the "Agreement") 2. Exhibit A to the Terms and Conditions — Support Services Schedule 3. Exhibit B to the Terms and Conditions — Hosting Services Schedule 4. Exhibit C to the Terms and Conditions — Term Sheet 5. Exhibit D— Limited Access Agreement Forl Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH � SOFTWARE LICENSE - TERMS AND CONDITIONS The Software is licensed not sold. Limehouse has developed the Software which the Customer has selected to run on the System. Upon execution of any agreement incorporating these Terms & Conditions, the Customer accepts a non-exclusive, non- transferable license to use the Software on the System and Limehouse grants to the Customer a non-exclusive, non-transferable license as specified and undertakes to provide Support Services (as described below) all upon these Terms and subject to the express provisions set out in the Term Sheet of the agreement. The Software will be supplied with XEP, proprietary software developed by Render X, which is supplied under the terms of the Render X sub-license, a copy of which is attached. INTERPRETATION / DEFINITIONS In these Terms & Conditions, except where the context requires otherwise: "Annual License Fee" "Client Admin Software" means the fee specified as such in the Term Sheet and payable in accordance with clause 5.3; means the Limehouse Publisher software module that controls project management, workflow and publishing; "Billing Rates" means Limehouse's standard personnel hourly and daily charging rates as in force from time to time; the rates in force at the date of this Agreement are as set out in the Term Sheet; "Commencement Date" "Customer" "Department" "Documentation" means that date described as such in the Term Sheet; means the authority or council accepting the License including its officers, employees, directors, agents or authorized representatives; means the department of the Customer described as such in the Term Sheet; means instruction manuals and other information relating to the Software; "Hosting Service" means the hosting by Limehouse of the Software on a dedicated computer server connected to the Internet which such services are to be provided in accordance with Exhibit B, which is attached hereto and made a part of this Agreement for all purposes; "Initial License Fee" the fee specified as such in the Term Sheet and payable in accordance with clause 5.2; "Limehouse" means Limehouse Software Limited including its officers, directors, employees, agents or Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 2 "License" "License Fees" "Location" "Software" "Software Materials" "Specification" authorized representatives; means the license to use the Software Materials granted by Limehouse to the Customer pursuant to this Agreement; means the Initial License Fee and the Annual License Fee the physical location of the server specified in the Term Sheet; Means the software product developed by Limehouse and described in the Term Sheet; means the Software and the Documentation; means the description of the Software in the Term Sheet; "Support Services" means the maintenance and support services to be provided by Limehouse during the term of this Agreement as described in the Support Services Schedule in accordance with Exhibit A, which is attached hereto and made a part of this Agreement for all purposes.; "System" "Task Manager Software" "Technical Architecture" "User" means the Customer's computer system described in the Term Sheet; means the Limehouse Publisher Software module that allows users to edit tasks that have been assigned for their completion. means the underlying technologies used to provide functionality to the Software. means an individual user who has access to the Task Manager Software from his personal computer or work station; "Update" means a modification or bug fix to the installed version of the Software with no changes to the functionality or Technical Architecture of the Software. "Upgrade" "Warranty Period" means a new version of the Software with functionality improvements or enhancements to the Technical Architecture of the Software. means the period of twelve calendar months from the Commencement Date; • Any of the foregoing definitions applies, as the context may require, to the singular or the plural form of the term used. Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 3 Any reference in this Agreement to "writing" or cognate expressions includes a reference to email, facsimile transmission or comparable means of communication provided that it is capable of providing a means of permanent record. Clause headings are inserted for ease of reference only and shall not affect the construction or interpretation of this Agreement Words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing bodies corporate, corporations, unincorporated associations and partnerships and vice-versa, words importing the singular shall be treated as importing the plural and vice-versa, and words importing whole shall be treated as including a reference to any part thereof. References to clauses and Schedules are to the clauses of and Schedules to this Agreement Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH � 1. COMMENCEMENT AND DURATION 1.1. This Agreement shall commence on the date of execution and, subject to clause 12, shall continue for a term of one (1) year ("Initial Term"), unless terminated earlier as provided herein. After expiration of the initial term, the City shall have the right to renew this Agreement for two (2) additional terms of one year each. 2. DELIVERY AND INSTALLATION OF SOFTWARE 2.1. Upon payment of the License Fee, Limehouse shall issue the Software Materials to the Customer. Risk of loss to the Software Materials shall pass to the Customer on delivery to the Customer. Notwithstanding the foregoing sentence, if any part of the Software Materials shall be lost within 3 months of delivery to the Customer, Limehouse shall replace the same free of charge. 2.2. Unless Limehouse has agreed to provide Hosting Services, Limehouse shall carry out a single installation (by remote access if possible) of the Software on the Customer's System at the Location. 2.3. It is the Customer's sole responsibility to ensure that all Users are adequately trained in the proper use of the Software. 2.4. On the delivery of Updates to the Customer, Limehouse shall also deliver training notes to enable Users to make full use of the updated Software. 3. SOFTWARE LICENSE 3.1. Limehouse hereby grants to the Customer, and the Customer hereby accepts from Limehouse, a non-exclusive, non-transferable License to use the Software Materials in accordance with and subject to the terms of this Agreement. 3.2. The grant of the License entitles the Customer to receive one copy of the Software for use on the System at the specified Location together with the necessary Documentation to install and use the Software. 3.3. The License and the use of the Software is subject to the following restrictions:- 3.3.1. the Software may be installed and used only at the Location, unless othenrvise agreed in writing by Limehouse; 3.3.2. the Software may be installed on no more than one server (and a second server for the purpose of replicating the other for operational security) per Location; 3.3.3. the Software may be installed and used by the Customer only at the Locations specified in the Term Sheet; 3.3.4. the Software may be accessed only by the Customer or others acting as consultants working for the Customer as it may apply to the Agreement; 3.3.5. the Client Admin Software may be installed on no more than one personal computer and used only in the Departments of the Customer specified on term sheet. Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 5 3.4. Limehouse shall provide Updates of the Software to the Customer at no additional charge. 3.5. Limehouse shall install any Updates on the Customer's System, provided that Limehouse is not providing Hosting Services to the Customer, and provided further that it has remote access to the System. In the absence of such remote access the Customer shall install such Updates promptly following delivery. 3.6. Where the Customer uses the Hosting service, the Customer shall install and use Updates so that at any time Limehouse is able to provide Support Services in accordance with clause 4.2. 3.7. It is acknowledged and agreed that the Customer's IT facilities management supplier may have access to the Software from time to time subject to the terms of this Agreement and to the terms of any agreement between the Customer and its IT facilities management supplier. 4. SUPPORT SERVICES AND HOSTING SERVICES 4.1. Subject to clause 4.2, Limehouse shall provide Support Services to the Customer in relation to the Software in accordance with the Support Services Schedule. 4.2. Limehouse shall only be required to provide Support Services in respect of the then current version of the Software and the two immediately preceding Upgrades. 4.3. Where requested Limehouse shall supply the Hosting Services to the Customer in accordance with the Hosting Services Schedule attached. If Limehouse does not perform the Hosting Services in accordance with the schedule, then the Customer shall be entitled to a refund of the Hosting Fees paid by the Customer to Limehouse in relation to that month in which Limehouse defaults in providing the Hosting Services. Such refund shall be paid by Limehouse to the Customer by the end of the month following the month in which Limehouse does not meet the requirements of the Hosting Services Schedule. 5. LICENSE FEE 5.1. The Customer shall pay to Limehouse the License Fees (consisting of the Initial License Fee and the Annual License Fee as described in the Term Sheet) and, if relevant, the Hosting Fee. The Term Sheet is attached hereto as Exhibit C and incorporated into this Agreement for all purposes. 5.2. The Initial License Fee and, if relevant, the Hosting Fee for the twelve months immediately following the Commencement Date shall be paid by the Customer to Limehouse on the signing of this Agreement. 5.3. The Annual License Fee shall be paid by the Customer to Limehouse on the first and each subsequent anniversary of the Commencement Date upon presentation of an invoice by Limehouse within 30 days of such invoice. 5.4. Additional fees (as specified in the Term Sheet or otherwise to be agreed with Limehouse) are payable where the Customer wishes to add to the Locations or install the Software on servers in addition to those included within the definition of the Customer's System or use the Software in any department in addition to the Department. In the event that the System is inoperable or requires or is Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH under repair, the Customer shall report the same to Limehouse for permission to use the Software on a back-up system at no extra charge, until the System is operational. 5.5. License Fees may be subject to additional charges (to be agreed with Limehouse) where any of the details specified in the Term Sheet change. The Annual License Fee shall be increased in line with any change in the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items, 1982-84=100 of the United States Department of Labor, Bureau of Labor Statistics between the Commencement Date and any subsequent anniversary of the Commencement Date, and such increased fee shall take effect on the first or a subsequent anniversary of the Commencement Date unless such fees exceed 5% of the previous rate and the Customer has notified Limehouse that it wishes to terminate this Agreement where upon this agreement shall terminate 30 days after receipt by Limehouse of such notice. 5.6. All sums due to Limehouse under this Agreement are exclusive of any taxes that may be owed by the Consumer as a result of this Agreement. Customer is a tax exempt entity, therefore no taxes shall apply under this Agreement . Customer will provide documents exhibiting such status upon request. 5.7. Without prejudice to any right or remedy available to it, Limehouse may at its discretion charge interest on any sum not paid on the due date The interest shall not exceed a rate of 1 per cent per annum on any amounts not paid within thirty (30) days of due date. 5.8. The Customer shall not withhold payment in whole or in part on the grounds that it has a claim, counterclaim or set-off against Limehouse, unless such claim or counterctaim is related to alleged amount of payment due. 5.9. Where under this Agreement fees are payable at the Billing Rates: 5.9.1. Limehouse shall maintain full and accurate records of the time spent by Limehouse's employees, agents and sub-contractors in providing the relevant services and shall produce such records to the Customer for inspection at all reasonable times on request; 5.9.2. The Customer shall reimburse Limehouse's employees' and sub-contractors' reasonable expenses properly incurred in providing the relevant services including but not limited to travelling and subsistence expenses, subject to submission of the relevant receipts and prior notification of an estimate of such expenses by Limehouse; 5.10.3 All charges payable by the Customer shall be paid within 30 days after the receipt by the Customer of Limehouse's invoice. 5.10. If a check delivered by the Customer is dishonored or a direct debit or standing order fails Limehouse may charge the Customer all costs incurred by Limehouse as a result. 6. CUSTOMERS OBLIGATIONS 6.1. During the term of this Agreement the Customer shall: 6.1.1. ensure that at any time it is using either the most recent version of the Software including Updates or one of the two immediately preceding Upgrades Fort Worth Limehouse Soflware Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 6.1.2. ensure that the Software and the System are used in a proper manner by appropriately qualified and trained employees only or by persons under their supervision; 6.1.3. where it is required to install any Software, ensure that installation of the Software and its configuration are carried out by appropriately qualified and trained personnel 6.1.4. keep full security copies of the Software and of its databases and computer records in accordance with best computing practice; 6.1.5. not request, permit or authorize anyone other than Limehouse to provide any Support Services in respect of the Software or the Software Materials; 6.1.6. co-operate fully with Limehouse's personnel in the diagnosis of any error or defect in the Software or the Software Materials; 6.1.7. make available to Limehouse free of charge all information facilities and services reasonably required by Limehouse to enable Limehouse to perform the Support Services including without limitation computer runs, core dumps, data protection, office accommodation, typing and photocopying; provide such telecommunication facilities as are reasonably required by Limehouse for testing and diagnostic purposes at the Customer's expense. 6.2. During and after the continuance of this Agreement the Customer shall not: 6.2.1. modify, reverse assemble, decompile or reverse engineer, or translate into another form, the Software or attempt to derive the source code or create derivative works from it, nor shall it permit, whether directly or indirectly, any third party to do any of the foregoing, or permit the Software to be combined with any other programs to form a combined work; or 6.2.2. sub-license, assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Software Materials or use the Software Materials on behalf of any third party or make available the same to any third party except as expressly provided by this Agreement; or 6.2.3. develop software itself or appoint a third party to do so which imitates any of the functionality of the Software; or 6.2.4. remove or alter any copyright or other proprietary notice on any of the Software Materials. 7. WARRANTIES 7.1. Limehouse warrants that: 7.1.1. it is entitled to enter into this Agreement and that it is entitled to grant the License in accordance with this Agreement; 7.1.2. in terms of the results obtained from use of the Software, it shall perform substantially in accordance with the Specification if properly used on the System. 7.2. Limehouse shall not be liable if a failure to meet the warranties in clause 7.1 is caused by: 7.2.1. software other than the Software running on the System; Fort WoAh Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH $ 7.2.2. modifications made by or on behalf of the Customer to the Software without the authorization of Limehouse; or 7.2.3. accidents, abuse, misuse, improper use, faulty equipment, acts of terrorism or acts of God 7.3. Subject to clause 7.5, if Limehouse receives a written notice from the Customer identifying a breach of the warranties set out in clause 7.1, or otherwise becomes aware of its failure to comply with the warranties set out in clause 7.1, then Limehouse shall, at its sole option, either refund the Initial License Fee or, at its own expense, use all reasonable efforts to remedy such breach or failure provided that Limehouse shall have no liability or obligation under the warranty in clause 7.1.2 unless it shall have received written notice of the defect or error within the Warranty Period. 7.4. The Warranties set out in clause 7.1 shall be subject to the Customer complying with its obligations under this Agreement and the Customer acknowledges that it is its responsibility to ensure that the facilities and functions described in the Specification meet its requirements and that the Software interfaces with the System or the hardware and software of any third party. 7.5. Due to the nature of computer programs, no guarantee is given of uninterrupted or error-free running or that all errors will be rectified by error correction or avoidance action and the existence of such errors shall not constitute a breach of this Agreement, unless caused by the negligence, omission(s) or intentional misconduct of Limehouse. 7.6. Customer shall regularly virus scan the Software. 7.7. Limehouse shall be liable to the Customer as expressly provided in this Agreement but shall have no other obligation, duty or liability whatsoever in contract, tort or otherwise to the Customer. 7.8. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, LIMEHOUSE MAKES NO WARRANTY OF ANY KIND IN RESPECT OF THE SOFTWARE MATERIALS OR ANY SERVICES TO BE PROVIDED BY LIMEHOUSE UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE FULLEST EXTENT PERMITTED BY LAW. 8. LIABILITY 8.1. Nothing in this Agreement shall exclude or restrict Limehouse's liability for: 8.1.1. indemnification of a third-parly claim of death or personal injury resulting from its negligence, omission(s) or intentional misconduct; or 8.1.2. fraudulent misrepresentation. 8.2. Except for (i) any obligation Limehouse may have to indemnify the Customer from claims by third parties arising from the harm specified in clause 8.1.1, or for (ii) any liability of Limehouse to the Customer arising from conduct set forth in clause 8.1.2, Limehouse's total liability to the Customer arising out of or in connection with this Agreement shall be limited to the total amount of the License Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH and Hosting Fees paid hereunder by the Customer, regardless of how that liability may arise. 8.3. Except for (i) any obiigation Limehouse may have to indemnify the Customer from claims by third parties arising from the harm specified in clause 8.1.1, or for (ii) any liability of Limehouse to the Customer arising from conduct set forth in clause 8.1.2, in no event shall Limehouse be liable to the customer in any way for indirect, special, incidental or consequential damages arising out of or in connection with this Agreement including, but not limited to, lost profits, lost revenues or lost business, whether or not such damages are foreseeable, whether or not Limehouse had been advised of the possibility of such damages and whether or not such damages are based on tort or breach of warranty or contract. 8.4. The provisions of this clause shall survive the termination or expiration of this Agreement. 9. PROPRIETARY RIGHTS IN THE SOFTWARE 9.1. All intellectual property rights and confidential information contained in and relating to the Software Materials (including the source and object code and any Updates) are and shall remain the exclusive property of Limehouse and/or its licensors as appropriate regardless of whether or not any enhancement or modification resulted from a suggestion put forward by the Customer. 9.2. The Customer shall agree not to develop or be involved in the development of any software which makes use of Limehouse's confidential proprietary information. 9.3. In order to prevent unauthorized use of Limehouse's confidential proprietary information, the Customer shall, on reasonable notice in writing from Limehouse, allow Limehouse access to any software developed by the Customer or a third party to replace the Software. 9.4. The Customer shall: 9.4.1. erase the Software from all hardware prior to disposing of or retiring such hardware from active use or in the event of termination of this Agreement, and the Customer also must destroy all other copies upon such termination, subject to clause 13.2; 9.4.2. to the extent allowed by law, keep confidential the Software Materials and limit access to the same to those of its employees, agents or sub-contractors who have a need to know; 9.4.3. reproduce on any copy (whether in machine readable or human readable form) of the Software Materials Limehouse's copyright or trade marks notices; 9.4.4. be entitled to make back up copies of the Software. Any such copies shall in all respects be subject to this Agreement and will be deemed to form part of the Software; 9.4.5. notify Limehouse immediately if the Customer becomes aware of any unauthorized use of the whole or part of the Software Materials by any third party; and Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 10 9.4.6. without prejudice to the foregoing take all such steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of Limehouse in the Software Materials. 9.5. The Customer shall inform all persons having access to the Software Materials that the Software Materials constitute confidential information of Limehouse and that all intellectual property rights therein are the property of Limehouse and the Customer shall take all steps as shall be reasonable to ensure that Users and other such persons respect such confidential information and intellectual property. 10. CONFIDENTIALITY 10.1. Without prejudice to clause 9, Limehouse and the Customer agree (subject to clauses 10.2 and 10.3) not to: 10.1.1.disclose any information which it receives from the other party and which is identified as confidential or proprietary by the other party or the nature of which is clearly confidential or proprietary ("Confidential Information"); or 10.1.2.make any use of any such Confidential Information other than for the purposes of performance of this Agreement.' 10.2. Each party may disclose Confidential Information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of this Agreement and who have entered into an agreement containing appropriate confidentiality provisions. 10.3. The confidentiality obligations in this clause shall not apply to any information which: 10.3.1.is or subsequently becomes available to the general public other than through a breach by the receiving party; or 10.3.2.is already known to the receiving party before disclosure by the disclosing party; or 10.3.3.is developed through the independent efforts of the receiving party; or 10.3.4.the receiving party rightfully receives from a third party without restriction as to use; or 10.3.5.is required to be disclosed by law. 10.4. Upon termination or expiration of this Agreement, each party shall return or destroy all Confidential Information obtained from the other party and all copies thereof. 10.5. Limehouse shall store and maintain Customer Confidential Information in a safe and secure manner. If customer confidential information is breached or reasonably believed to have been breached, Limehouse shall notify customer immediately, without delay. Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 11 11. INDEMNITIES 11.1. Limehouse shall indemnify and hold the Customer harmless against any and all costs, expenses or damages suffered or incurred by the Customer arising out of any claim by a third party that the normal operation, possession or use of the Software (including any Updates) by the Customer infringes the intellectual property rights of such third party, provided that the Customer: 11.1.1.gives Limehouse written notice of any such claim as soon as reasonably practicable; 11.1.2.gives Limehouse control of the defense and/or settlement of such claim and the Customer has not taken any action that would compromise Limehouse's ability to settle or otherwise defend the claim; and 11.1.3. uses all reasonable efforts to co-operate in any defense or settlement. 12. TERMINATION 12.1 Notwithstanding clause 1, this Agreement may be terminated at any time by notice in writing having immediate effect upon the occurrence of any of the following events 12.1.1.by Limehouse, if the Customer fails to pay any sum payable under this Agreement when due and such sum remains outstanding more than 30 days after receipt of notice from Limehouse to the Customer requiring it to be paid; 12.1.2.by Limehouse , if the Customer commits any breach of any provision of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving particulars of the breach and requiring it to be remedied. 12.1.3.by the Customer, if Limehouse commits any breach of any provision of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving particulars of the breach and requiring it to be remedied; 12.1.4.by either party, if the other gives notice to its creditors or any of them that it has suspended or is about to suspend payment or if the other shall be unable to pay its debts when due or if the other institutes any proceeding under any bankruptcy, insolvency or moratorium law, or if the other shall become insolvent or shall make any assignment for the benefit of creditors or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt; 12.2. Limehouse reserves the right to disable the Software without this resulting in termination of the Agreement upon the occurrence of any one or more of the events described in clause 12.1, providing (in the case of sub-clauses 12.1.1 and 12.1.2) that the period of 30 days has elapsed and written notice has been given to the Customer. 12.3. For the Software to operate it needs to be enabled using an encrypted key. Limehouse will provide the Customer with such a key or enable the Software automatically for so long as the License Fees are paid in accordance with clause 5. Limehouse will notify the Customer not less than 14 days prior to expiration of a key. Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH � 2 12.4. The Customer shall allow Limehouse access to the System on reasonable notice so as to allow Limehouse to enable it or maintain the key. 12.5. Limehouse shall not in any event be liable to the Customer in respect of any consequential or indirect loss or damage arising from the Software being disabled in accordance with this clause 12. 13. CONSEQUENCES OF TERMINATION 13.1. The License shall cease upon termination (however occurring) of this Agreement. 13.2. Within seven days of termination of the License, the Customer shall uninstall all copies of the Software from the System and shall return to Limehouse or, at Limehouse's direction, destroy the Software, including the original and all copies of the Documentation and any Updates supplied to Users, and deliver to Limehouse a certificate signed by a duly authorized representative of the Customer that the Software no longer resides on the System or any other computer system belonging to or under the control of the Customer and that any copies of the Software not returned have been destroyed. 13.3. Termination shall be in addition to, rather than a waiver of, any other remedy at law or equity under this Agreement. 13.4. Notwithstanding the foregoing, the provisions of clauses 8("Liability"), 9 ("Proprietary Rights") and 11 ("Indemnities"), shall survive termination of this Agreement . 14. ESCROW AGREEMENT 14.1. Limehouse shall, if so requested by the Customer, deposit the source materials relating to the Software with an escrow agent reasonably acceptable to both Limehouse and Customer ("Escrow Agent"), upon its standard terms and conditions from time to time and Limehouse shall maintain such deposit up to date upon any modification, enhancement or replacement of or addition to the Software, including Updates and Upgrades, being made available to the Customer from time to time. 14.2. The agreement between Limehouse, the Customer and the Escrow Agent (the "Escrow AgreemenY'), in so far as it relates to this Agreement, shall be completed as soon as practicable after the Customer requests the deposit of source materials relating to the Software. 14.3. The Customer shall be responsible for all costs and any fees charged by the Escrow Agent in connection with the Escrow Agreement. 15. ASSIGNMENT 15.1. Subject to clause 13.3, neither party shall assign, delegate or otherwise transfer all or any of its rights and obligations under the Agreement without the other's prior written consent, such consent to be given by Limehouse where the Customer seeks to assign due to a reorganization of Customer. 15.2. Limehouse may sub-contract the performance of any of its obligations under this Agreement to any third party with the consent of the Customer (such consent not to be unreasonably withheld), but such sub-contracting shall not relieve Limehouse of any liability under this Agreement, and any such Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH � 3 subcontractor shall have the same obligations and duties as Limehouse with respect to this Agreement. 15.3. Where the Customer outsources the Department's activities to a third party Limehouse's consent to an assignment of the Customer's rights under this License to such third party will not be unreasonably withheld provided always that the Customer shall remain liable for any acts or omissions of such third party in respect of this Agreement and that upon the termination of any such outsourcing any rights assigned to the third party shali be re-assigned to the Department. 16. FORCE MAJEURE 16.1. Notwithstanding anything contained in this Agreement to the contrary, if total or partial performance hereof by either party is delayed or rendered impossible by virtue of any reason whatsoever beyond its reasonable control (including but not limited to decision of any court or other judicial body of competent jurisdiction, unavailability of equipment, power or other commodity, failure or non-availability of Internet or telecommunications facilities, acts of government or other prevailing authorities or defaults of third parties, floods, fires, riots, acts of God or strikes) then such non-performance will not be deemed to constitute a breach of this Agreement and the party shall not be liable for any loss or damage which the other party may suffer as a result. 17. NOTICES 17.1. Any notice required or permitted hereunder shall be delivered personally, or sent by certified mail, return receipt requested, or private overnight express mail to the address of the other party as set out herein. 17.2. The parties may change such addresses by providing notice to the other in accordance with this clause. 17.3. Such notice shall be effective upon receipt. 18. DISPUTE RESOLUTION 18.1. The parties agree that if any controversy or claim which is not considered to be a breach of contract by either party arises in relation to this Agreement, representatives of each party shall negotiate promptly and in good faith, and for a period of not more than sixty (60) days, in an attempt to resolve the matter between themselves before the commencement of litigation or other dispute resolution procedures. 19. THIRD PARTY BENEFICIARIES 19.1. A person who is not party to this Agreement shall have no right to enforce any term of this Agreement. 20. GOVERNING LAW 20.1. This Agreement and all transactions under this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 14 21. ACCESS 21.1 Access to Customer's system shall be governed by Customer's outside Connection Policy- Limited Access Agreement, which is attached hereto as Exhibit D and incorporated for all purposes herein. Executed in multiple originals on this, the`/'�L` day of � n , 2007. CITY OF FORT WORTH: Dale Fisseler Assistant City Manager e_ By: �� '� ` r'�" ATTEST: Marty Hendrix City Secretary � By: APPROVED AS TO FORM AND LEGALITY: Maleshia B. Farmer Ass � Contract Authorization: M&C: C` o� iri �� a-- Approval Date: 3 �1 LIMEHOUSE SOFTWARE, INC. Name: � '` .,� „i Title: �/ � C- +�� �A l �C. '� By: . �. >��10�,. �� �� �,� �� _ Date: v � � -� :S / C� � Fort Worth Limehouse Software Agreement 3 21 07 (2)AGREEMENT / CITY OF FORT WORTH 15 SUPPORT SERVICES SCHEDULE — EXHIBIT A In this Schedule, the following terms have the following meanings: "Priority level 1" (Complete Failure) A fault or problem which completely prevents any use of the Software by all of the Users; "Priority level 2" (High) A fault or problem which completely prevents the performance of an essential part of the Software; "Priority level 3" (Medium) A fault or problem which prevents the faultless performance of an important or regularly used part of the Software "Priority level 4" (Low) A fault or problem which is of a minor or intermittent nature and does not significantly affect the performance of the Software "Normal Working Hours" The hours of 9:00 am to 5:00 pm Monday through Friday, excluding federal holidays in the United States 'Super user' A client representative who acts as an onsite expert for software queries. For errors that aren't simply resolved, the named Super Users can call upon Limehouse resources and expertise via the Help Desk. A client is allowed up to 3'Super Users' per administration installation. 'Technical user' A client representative who has permission to proceed with bug-fixing, patch application and updates. Limehouse will provide the necessary resources to enable the Technical user to provide this function. `End user' An operational user of the system. They will be expected to liaise with the 'Super Users' or the OSS (Online Support System) to find remedies for their issues. If a remedy cannot be found by this route, the error must be logged with a 'Super User' who has the authority to call upon Limehouse resources and expertise via the Help Desk to correct the issue. PART I— SUPPORT SERVICES TO THE CUSTOMER HELPDESK Limehouse shall provide competent trained personnel during Normal Working Hours to provide telephone advice, consultation and assistance to the Customer via the named Super User(s) in relation to the use of the Software and the reporting of faults. The Customer shall ensure an appropriate number of employees are trained to deal with the day to day support of the Software. Where the Customer trained employees are unable to resolve the problem they shall communicate this to Limehouse via the online support system. Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH 16 FAULT REPORTING PROCEDURE All faults shall be reported via the online support system or by telephone where this is not available. Limehouse engineers shall acknowledge receipt either by telephone, e-mail or automatic ticketing within 1 hour for categories 2— 4. Category 1 faults will be responded to immediately by telephone. In the event of a fault on the Software coming to the attention of the Customer it shall: • make a reasonable preliminary unilateral assessment of the category (1-4) of the fault in question; • report such fault (and its category) to Limehouse as soon as reasonably practicable; and • provide full information concerning the fault in writing using the online support system (OSS), including but not limited to the following: • full text of any message(s) displayed; • all the steps required reproducing the fault; • computer specifications (for example, operating system version); • exact time(s) of fault manifestation(s); and • details of any data being accessed at the time of the fault (for example, outline project name, task or document name). In the event of a fault on the Software coming to the attention of Limehouse, Limehouse shall: • log the report of such fault upon discovery of such fault; • where possible agree with the Customer the category and the nature of any such fault; • provide telephone and/or email assistance to the Customer in relation to such fault and if appropriate attempt to remedy such fault; and • unless the fault is remedied by Limehouse providing assistance over the telephone and/or via email, refer the fault on to other relevant members of Limehouse's personnel for remedy in accordance with the remaining provisions of this Agreement. REMEDY Upon a fault being reported to Limehouse, Limehouse shall where possible suggest an immediate remedy for the fault, failing which Limehouse shall assign an internal log number to the fault and use all reasonable efforts to: • remedy the fault if possible; or • implement a temporary solution for circumventing a fault (workaround) until a permanent remedy becomes possible within the following target periods calculated from the time when the fault first came to the attention of Limehouse: Priority Level Temporary Solution Remedy 1(Complete Failure) 4 hours 16 hours 2(High) 8 hours 7 days 3(Medium) 2 days 30 days 4(Low) 30 days 60 days Fort Worth Limehouse Sokware Agreemenl 3 21 07AGREEMENT / CITY OF FORT WORTH � 7 Hours refer to Normal Working Hours except that for Category 1 and 2 faults reported during Normal Working Hours, Limehouse shall continue working on the temporary solution even after Normal Working Hours. Any additional support provided to Users will be provided on a time and materials basis at the Billing Rates. PART II - EXCEPTIONS The following maintenance and support services are excluded from this Agreement. Repairs to the Software necessitated by: • relocation, movement, improper operation, neglect or misuse of the Software by Customer; • the Customer's failure to maintain proper site or environmental conditions; • failure to use the current version or one of the two immediately preceding Upgrades; • any fault of Users or the Customer's officers or employees; • any attempts at repairs, maintenance, or modifications to the Software perFormed by other than authorized Limehouse service personnel; • act of God, strikes, riot, war, the unauthorized acts of third parties; • failure or interruption of any electrical power, telephone or communication line or like cause; faults in the hardware, operating software or any other software used in conjunction with the Software; and failure due to configuration on incorrectly installed workstations caused by the Customer. Limehouse may, at its discretion and upon the Customer's request, provide maintenance and support services to the Customer that would otherwise be excluded under this Agreement on a time and materials basis at the Billing Rates. Fort Worth Limehouse Software Agreement 3 21 07AGREEMENT / CITY OF FORT WORTH �$ HOSTING SERVICES SCHEDULE — EXHIBIT B 1. HOSTING FEES • The Customer shall pay the Hosting Fees set out in the Term Sheet. • Annual Fees will be paid in advance within 30 days of receipt of Limehouse's invoice therefore. • Failure to make payment within 7 days of written notice being given to the Customer that Annual Fees are overdue when due may result in suspension/disconnection of the Hosting Service. 2. RESPONSIBILITIES OF CUSTOMER • The Customer is solely responsible for the accuracy, legality, currency and compliance of its own material and will be solely liable for false, misleading, inaccurate, infringing or other actionable material contained or referred to therein. • The Customer is solely responsible for maintaining the confidentiality and security of its Internet account and usage including use of its unique logon ID. • The Customer acknowledges and agrees that Limehouse may be required by a law enforcement agency to monitor content and traffic and, if necessary, give evidence of the same together with use of the logon ID to support or defend any dispute or actionable cause or matter which arises in relation to the same. 3. EXCLUSION OF WARRANITES • Limehouse does not warrant that the Hosting Service or the server will be continuously available 24 x 7 x 365 but will use its reasonable efforts to keep downtime to a minimum. • If in any calendar month the Hosting Service or the server is not available for a period in excess of 0.5 days Limehouse shall reimburse the Customer the Hosting Fee in respect of that month. • The Customer accepts the Hosting Service and Server "AS IS" with any faults or failings and without any representation, warranty or guarantee whatsoever, express or implied, including without limitation any implied warranty of accuracy, completeness, quality, continuity of service, connectivity, merchantability, fitness for a particular purpose or non-infringement. 4. INTELLECTUAL PROPERTY RIGHTS The Customer shall indemnify Limehouse fully against all liabilities, costs and expenses which Limehouse may incur as a result of work done in accordance with the Customer's instructions in hosting the Software involving infringement of any copyright, patent or other proprietary right. Fort Worlh Limehouse Software Agreement 3 21 07AGREEMENT! CITY OF FORT WORTH 19 EXHIBIT C Term Sheet Software (type and version) Limehouse Collaborate and Publish Software Version 2.7 Limehouse Consult Software 1.7 The product is shipped with 2 pre- designed PDF templates, 1 pre- designed HTML templates all of which will be reflective of Customer brand in respect of logo, color and font, provided it is a font supported by the System and available on the Customer's specified server. Specification Collaborate: Collaborate enables users to work simultaneously online on projects set up within the software. Content is entered into the system in the appropriate format using the Limehouse content editor. Document structure is defined in the Limehouse Client Administration software. Publish: Publish allows the information to be published in PDF format or in HTML format and allows the document to be published via the Internet (in both cases using branding and formatting according to pre-agreed templates). Consult: A variant of the HTML content can be uploaded by an administrator into the Consult module allowing citizens to view the plan, register and supply comments. Administrators can then view all comments and supply outcomes for each item. The systems also provides a number of standard reports to allow administrators to extract and present information for any given draft, content item or citizen. Limehouse Software Inc. Agreemen[— Private and conlidential Customer's System (minimum requirements) Server/workstation Location(s) 2GHZ processor 1 GB RAM Workstation SOOMHZ processor 128MB RAM Microsoft Windows 2000 or XP Internet Explorer 5.5+ A single location under the sole control of the Customer OR a single location under the sole control of Limehouse. Department (s) Development Planning Transportation & Public Works Limehouse Soflware Inc. Agreement— Private and con(idential PRICING YEAR ONE Annual Renewal (22%) A"Connection Suite" with 1 Admin seat to $ 40,000 $8,800 include the following: 1 x Collaborate Module 1 x Publish Module 1 x Consult Module 7 x Additional Admin Seats $70,000 $15,400 The Admin seats are to be used in accordance with the requirements sheet previously filled out by the city and implemented in the following departments; Transportation & Public Works — 2 seats Planning — 2 seats Development — 4 seats Hosting Included Included 2 days training on site Included N/A TOTAL $110,000 $24,200 City of Fort Worth $110,000 $24,200 Customer is a tax exempt entity and no taxes shall be included in the cost of the services. This agreement is subject to Limehouse Software's standard Terms and Conditions. Payment terms are 30 days from the date of order. Name Dale Fisseler Job Title Assistant City Manager Department ............................................. Date Purchase Order Number ........ . ... . . ..... .... . .... . � � (,�,�/% u`�'�- '�'L Signature .. ... . .....�„X.. .`.�, ..... . . . . ... . . . . �-� Limehouse Software Inc. Agreement— Private and confidential EXHIBIT D LIMITED ACCESS AGREEMENT A. The City of Fort Worth (the "City") owns and operates a file server computer system and network (collectively the "Network"). Limehouse Software Inc., ("Contractor") wishes to have access to the City's network. B. Contractor wishes to perform activities as described in the Limehouse Software Agreement, to which this Access Agreement is attached. C. In order to perform the necessary duties, Contractor needs access to City's Department of Development documents management and related systems in order to streamline the process of tracking multiple documents and dockets and to improve customer service. D. The City is willing to grant Contractor access to the Network, subject to the terms and conditions set forth in this Agreement, and in the City's standard outside connections policy, ("Extranet Standard") attached as Exhibit "D-1" and hereby incorporated by reference and made a part of this Agreement for all purposes herein. NOW, THEREFORE, the City and Contractor hereby agree as follows: 1. GRANT OF LIMITED ACCESS. Contractor is hereby granted a limited right of access to the City's Network for the purposes described above and in the Limehouse Software Agreement. Contractor can only enter the Network via the City's computer system; therefore, the City will provide Contractor with a password and access number or numbers as necessary to perform Contractor's duties. Contractor shall receive one password and access number to be used by its officers, directors, employees, agents, representatives, and subcontractors, and shall only disseminate such password and access number(s) as necessary to those who are providing services to the City pursuant to the Professional Services and Software License Agreement. 2. NETWORK RESTRICTIONS. 2.1. Contractor may not share any passwords or access number or numbers provided by the City except with Contractor's officers, agents, servants or employees who work directly with this project. 2.2. Contractor may not access the Network for any purpose other than those set forth in Section B of this Agreement. 2.3. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this Agreement. 2.4. A breach by Contractor, its officers, agents, servants or employees, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data in addition to any other remedies that the City may have under this Agreement or at law or in equity. 2.5. The City may terminate this Agreement at any time and for any reason. 3. UNUATHORIZED ACCESS. Contractor, for itself and its officers, agents, subcontractors and employees, agrees that it shall treat all information to which it is given access, or information that is provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Contractor shall only access City Information in a secure manner and shall not allow unauthorized users to view, access, modify, delete or otherwise corrupt City Information in any way. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. EXHIBIT "D-1" TO LIMITED ACCESS AGREEMENT EXTRANET STANDARD Overview The purpose of this standard is to establish the requirements under which third party organizations may connect to the City of Fort Worth networks for the purpose of transacting City business. The standards listed are specific activities required by Section 2.2 of the City of Fort Worth Information Security Policy. Sco e Connections between third parties that require access to non-public City of Fort Worth resources fall under this standard, regardless of whether a telecommunications circuit (such as frame relay or ISDN) or Virtual Privacy Network (VPN) technology is used for the connection. Connectivity to third parties such as the Internet Service Providers (ISPs) that provide Internet access for the City of Fort Worth or to the Public Switched Telephone Network do not fall under this standard. Standard Securitv Review All new extranet connectivity will go through a security review with the Information Security department (IT Solutions). The reviews are to ensure that all access matches the business requirements in a best possible way, and that the principle of least access is followed. Third Partv Connection Aqreement All new connection requests between third parties and the City of Fort Worth require that the third party and the City of Fort Worth representatives agree to and sign a third party agreement. This agreement must be signed by the Director of the sponsoring organization as well as a representative from the third party who is legally empowered to sign on behalf of the third party. The signed document is to be kept on file with IT Solutions. All documents pertaining to connections into the City of Fort Worth labs are to be kept on file with IT Solutions. Business Case All production extranet connections must be accompanied by a valid business justification, in writing, that is approved by a project manager in IT Solutions. Lab connections must be approved by IT Solutions. Typically this function is handled as part of a third party agreement. The sponsoring organization must designate a person to be the Point of Contact (POC) for the Extranet connection. The POC acts on behalf of the sponsoring organization, and is responsible for those portions of this policy and the third party agreement that pertain to it. In the event that the POC changes, IT Solutions must be informed promptly. Establishing Connectivity Sponsoring organizations within the City of Fort Worth that wish to establish connectivity to a third party are to file a new site request with IT Solutions to address security issues inherent in the project. If the proposed connection is to terminate within a lab at the City of Fort Worth, the sponsoring organization must engage IT Solutions. The sponsoring organization must provide full and complete information as to the nature of the proposed access to the extranet group and IT Solutions, as requested. All connectivity established must be based on the least-access principle, in accordance with the approved business requirements and the security review. In no case will the City of Fort Worth rely upon the third party to protect the City of Fort Worth's network or resources. Modifvinq or Chanqinq Connectivitv and Access All changes in access must be accompanied by a valid business justification, and are subject to security review. Changes are to be implemented via corporate change management process. The sponsoring organization is responsible for notifying IT Solutions when there is a material change in their originally provided information so that security and connectivity evolve accordingly. Terminatinq Access When access is no longer required, the sponsoring organization within the City of Fort Worth must notify IT Solutions, which will then terminate the access. This may mean a modification of existing permissions up to terminating the circuit, as appropriate. IT Solutions must conduct an audit of their respective connections on an annual basis to ensure that all existing connections are still needed, and that the access provided meets the needs of the connection. Connections that are found to be deprecated, and/or are no longer being used to conduct the City of Fort Worth business, will be terminated immediately. Should a security incident or a finding that a circuit has been deprecated and is no longer being used to conduct the City of Fort Worth business necessitate a modification of existing permissions, or termination of connectivity, IT Solutions will notify the POC or the sponsoring organization of the change prior to taking any action. Definitions Circuit Sponsoring Organization Third Party For the purposes of this policy, circuit refers to the method of network access, whether iYs through traditional ISDN, Frame Relay etc. or via VPN encryption technologies. The City of Fort Worth organization that requested that the third party have access to the City of Fort Worth network. A business that is not a formal or subsidiary part of the City of Fort Worth. 4 Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 4/3/2007 DATE: Tuesday, April 03, 2007 LOG NAME: 06LIMEHOUSE REFERENCE NO.: **C-22032 SUBJECT: Authorize the City Manager to Execute a Contract with Limehouse Software for Publishing/Document Management Software and Maintenance Services RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to execute a contract with Limehouse Software for publishing/document management software including licenses and maintenance at a cost not to exceed $110,000; and 2. Authorize the contract to have a one-year term with options to renew the license and maintenance agreements for two additional one-year periods at an annual cost of $24,200, or 22% of the original contract price. DISCUSSION: The development-related departments of the City are responsible for the publication of a number of complex documents and dockets that consume significant amounts of staff time and outsourcing for assembly and publishing. These documents require input from multiple departments and from the public which is difficult to track with ordinary word processing tools. Examples include the Zoning Ordinance, the Sub-Division Rules and Regulations, the Comprehensive Plan, the Zoning and Plan Commissions dockets, and others. These documents are complex and include maps, tables and photos that complicate assembly and publication. In order to streamline this process, track input and assignments, and publish both hard copies and web copies with greater efficiency, the staff recommends the acquisition of Limehouse Publisher at a first-year cost not to exceed $110,000. It is envisioned that after successful implementation in the Development and Planning Departments, it will be expanded to other activities such as Downtown Design Review Board dockets, Storm Water Design Manual, etc. The goal will be to create a user-friendly library of indexed City publications that are available via the City website. This will increase the incorporation of staff and citizen input while significantly reducing staff time required for assembly and review, improving efficiency and redirecting resources to activities related to the growth of Fort Worth. The Zucker consultant study of development processes focused on the use of technology to streamline staff processes and improve services to the public and this software will further that goal. Beginning in July 2006, staff proposed that revenues that exceeded direct expenditures in the Development Department be used to fund this initiative. As a result, the funds for this project are included in the Mayor and Council Communication to roll funds forward from FY2006 to FY2007 to fund various commitments across all City departments. The purchase will include the software with eight administrator seats, web hosting, technical support and updates for one year, and a choice of two templates from their catalogue. Beginning in 2008, the annual hosting, support, update and maintenance costs is anticipated to be 22 percent, or $24,200 annually. http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 4/9/2007 Page 2 of 2 BID ADVERTISEMENT - This bid was advertised in the Commercial Recorder on November 8, 2006 and November 22,2006. Two bids were received; however, only one was responsive with an existing software package rather than software development services. M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Development Department and approved by the M/WBE Office because the purchase of services is from sources where subcontracting or supplier opportunities are negligible. RENEWAL OPTIONS - Two one-year options to renew the licese and maintenance agreements at 22%. This license and maintenance agreement may be renewed for up to two one-year terms at the City's option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligation during the renewal term. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available, as appropriated, of the General Fund. TO Fund/AccountlCenters Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: FROM Fund/Account/Centers GG01 541440 0062000 $110,000.00 Dale Fisseler (6140) Bob Riley (8901) Susan Alanis (8180) http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 4/9/2007