HomeMy WebLinkAboutContract 37736,7Y r,-.(` �®Y i�3
�Ql'N, ► ,
WALLINGFORD SOFTWARE LTD
SOFTWARE LICENCE
THIS SOFTWARE LICENSE AGREEMENT SHALL BE BETWEEN
WALLINGFORD SOFTWARD LTD ("WSL") AND THE CITY OF
FORT WORTH, TEXAS ("CITY" OR "LICENSEE"), A TEXAS
MUNICIPAL COPRORATION.
I GENERAL TERMS
1.1 Definitions
The following expressions shall have the following meanings:-
"WSL" Wallingford Sofivare Limited, whose registered office is at Howbery Park, Wallingford,
Oxfordshire, OX10 8BA, UK.
"Licence Term" subject always to Clause 6 hereof; means a term licence oftwo (2) years with three ortadyear options far
Licensee to renew, unless a quotation has specifically stated a dx tar period and such shaft period has
been spacifically ordered by the Licensee.
"Licensed Equipmenf' equipment of the Licensee that WSL has approved for the use of the Software.
"Licensee" the person, firm or company that has placed an Order.
"Number of Users" the number of users specified in the Quotation who are authorised to use the Software.
"Proprietary Information" all intellectual property rights including but not limited thereto all copyrights, design rights
(registered and unregistered), patents, trademarks, designs, formula, code and other
similar data relating to the Software.
"Order" any purchase order issued by the Licensee for software from WSL.
"Quotation" any quotation for the supply of Software issued by WSL.
"Site" the location for which the Software may be used shall be identified in the Quotation or Order.
"Software" each WSL software program provided by WSL, including software in which WSL has
sub -licensing rights, in executable, machine readable, object, printed or interpreted form,
including any Software Protection Device and any documentation, modifications,
improvements or updates supplied to the Licensee set forth in any applicable Quotation
or Order.
"Software Protection Device" the hardware or software protection key supplied by WSL.
"Specification" the written specification of the Software.
"Support Agreement" the Software Maintenance and Technical Support Agreement supplied separately by WSL.
1.2 Incorporation Of Terns
These Terns shall appl} to all Sothvare supplied by WSL its Distributors Agents or Subsidiary companies under any Order placed
by the Licensee. In the event of any ambiguity between [these terns and the provisions of the Terns and Conditions of Sale or the
Support .Agreement, the terns of the relevant Agreement shall apply.
2 GRANT OF LICENCE/ FEES
2.1 The Software contains Proprietary Information that is owned or supplied under licence by WSL. The Licensee owns the
media upon which the Software has been recorded by WSL for the purpose of delivery of the software but WSL retains title
to the Software and all Proprietary Information related thereto, including third parties from whom WSL has obtained
licensing rights.
2.2 This Licence allows the Licensee to use the Software on the Licensed Equipment for the Site for the Number of Users for
the Licence Term unless stated differently upon the WSL Quotation and Purchase Order of the Licensee.
2.3 The Licensee is expressly prohibited from copying, duplicating, reproducing or otherwise transferring the Software (or any
component thereof) for any other purpose whatsoever except for one copy retained for backup purposes.
2A In the event that and only for so long as the Licensed Equipment is not operative the Licensee may transfer and use the
Software on backup hardware provided the Licensee has informed WSL of such transfer in writing.
2.5 FAILURE TO COMPLY WITH AND ADHERE TO THE TERMS AND CONDITIONS OF THIS LICENCE COULD
SUBJECT THE LICENSEE TO LEGAL ACTION BY WSL AND/OR TERMINATION OF THIS LICENCE.
2.6 The fees for each software purchase pursuant to this Agreement shall be set forth in a WSL Quotation or Order. Each Quotation or
Order shall be attached and incorporated into this License and made a part of this Agreement for all purposes. Each Quotation or
Order shall reference this License Agreement and be numbered as Attachment A, Attachment B, Attachment C and so forth.
3 COPYRIGHT AND RESTRICTIONS
3.1 Corinieht
The Software contains copyright data (including but not limited to images, photogtapbs, animations, video, audio and text MOMP r W into the
Software) and Proprietary hmf imudon, which temam the property of WSL and third parties from whom WSL has obtained licensing rights.
3.2 Restricted Acts
3.2.1 Unless otherwise agreed the Software may only be used for the Site specified in the Quotation/Order.
3.2.2 The Licensee shall not decompile, reverse engineer, disassemble or otherwise reduce the Software to a human
perceivable form The Licensee may not modify, adapt, translate, rent, lease, loan, sell, distribute or create
derivative works based on the Software in whole or part except where WSL has expressly authorised the Licensee
Walringford Software UdSofiwore Licence Agreement 1 revised July =8
C i . .,
FT +f 0RTH, TX
to do so in writing. The Licensee shall not electronically transfer the Software from one computer to another over a
network unless WSL has expressly authorised the Licensee to do so in writing.
3.3 Man Obiects: Intellectual Property Right
For the avoidanceof doubt and notwithstanding the generality of 3.2.2 above, the following supplementary provisions apply where the
Software Licence includes Map Object data procur-ed from the third parry supplier ESRL
(a) Map Objects components may not be separated from use of the base executable application.
(b) The licensed user shall not reverse engineer by any method, except and only to the extend such activity is
expressly permitted by applicable law, copy for commercial use, transfer, or assign its rights under the license
grant; and
(c) ESRI or its suppliers may enforce their intellectual property rights through injunctive relief as well as all other
remedies available at law or equity,
Warranty61 on Media
WSL warrards that the CDROM/floppy disk on which the Software is recordedfree from defects r mate and workmanship under
normal s for period of rl r.ys from the e.r of delkoery evidenced by n- delivery note WSL'sentire liabilityand n;Licensee's exclusive
remedy will be oe replacement t nf,- CI)ROM/floppy disknot u.:am • WSUs limited warranty and which is returned• WSL with r• r r
authonsed poss;ession. WSL will have no responsibiliqr to replace a CDROM/floppydisk ram • :r by accident; abuse or misapplication
4.2 Warranty on Software
4.2.1 WSL warrants that the Software will be fit for the purposes set out in WSL's Specification subject to clause 4.2.2
below. If there is no Specification the Software will be of satisfactory quality. The Licensee is responsible for the
use of the Software, all results obtained and how these are interpreted. WSL does not warrant that the Software will
meet the Licensee's requirements or that operation of the Software will be error or interruption free.
4.2.2 The Warranty set out in 4.2.1 above shall not apply to Software used on or in connection with equipment which is not
approved equipment as set out in WSL's Specification. If there is no Specification it is the Licensee's responsibility to assess
whether the Software will operate on the Licensed Equipment or any replacement equipment (authorised by WSL) and no
liability is accepted by WSL for failure of the Software's operation on the Licensed Equipment on which it is installed
4.2.3 In the event of any breach of WSL's warranty in this clause 4.2 (whether by reason of defective materials,
production faults or otherwise) WSL's total liability shall be limited to:-
4.2.3.1 replacement or repair of the Software in question, or
4.2.3.2 at WSL's option repayment of the price paid by the Licensee for the Software in question.
4.2.4 Except as expressly provided herein, all other warranties whether implied by statute or common law or otherwise are
hereby expressly excluded to the fullest extent permissible by law.
4.2.5 WSL shall not be liable to the Licensee for any consequential special or indirect loss or damage (whether for loss of
profit or contracts or otherwise and whether arising from negligence, breach of contract or howsoever), even if
WSL has been advised of the possibility of such damages.
4206 Subject to Section 4.3 below, in no event shall WSL's total liability to the Licensee for all damages, losses, and causes of action,
whether in contract tort (including negligmee) or otherwise, exceed the amount paid by the Licensee for the CDROM/ floppy disk
and the Software thereon PROVIDED THAT WSL does not seek to exclude or restrict its liability for death or personal injury
resulting fiorn its negligence.
4.3 Intellectual Property Rights
WSL does not warrant that use of the Software will not infringe the intellectual property rights of any third party although it is unaware of
any such possibility. If the Licensee, having used all reasonable endeavours to do so, is unable to use the Software without infringing the
intellectual property rights of a third party WSL may at its discretion subject always to the availability of a licence of such intellectual
property rights either:-
4.3.1 pay any licence fee demanded by a third party for the use of the Software; or
4.32 terminate the licence andrefund the written down value (based on life of 5 years) ofhe purchase price appropriate to the Software.
4.3.3 WSL agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the City for
infringement of any patent, copyright, trade secret, or similar property right arising from City's use of the
software in accordance with this agreement. WSL shall have the sole right to conduct the defense of any such
claim or action and all negotiations for its settlement or compromise and to settle or compromise any such
claim, and CYty agrees to cooperate with it in doing so. City agrees to give WSL timely written notice of any
such claim or action, with copies of all papers CYty may receive relating thereto. If the software or any part
thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or
compromise, such use is materially adversely restricted, WSL shall, at its own expense and as CYty's sole
remedy, either: (a) procure for CYty the right to continue to use the software; or (b) modify the software to
make it non -infringing, provided that such modification does not materially adversely affect CFty's authorized
use of the software; or (c) replace the software with equally suitable, compatible, and functionally equivalent
non4nfringing software at no additional charge to CYty; or (d) if none of the foregoing alternatives is
reasonably available to WSL, terminate this agreement and refund to CYty the payments actually made to
WSL under this agreement
4A Subject to WSL's obligations under Section 4.3.3 above, in no event shall WSL's liability to the Licensee under or as a
result of clause 4.3 exceed the sums paid to WSL by the Licensee for the alleged infringing Software.
Wallingford Software Lid Software Licence Agreement 2 revised July 2OD8
5 REFERENCING
v,� .ur�..i� ..•u:rri. min n: - n: �' - 171O N- L=1 blij LI L- LI' .i-:nI ti r an
6 TERMINATION
6.1 This licence shall continue for the Licence Term unless terminated earlier by agreement of the parties or in accordance with this clause 6.
6.2 The Licensee may terminate the licence at any time by destroying the CDROM/floppy disk for the Software and all copies
thereof and by returning any Software Protection Device to WSL.
6.3 The Licence will terminate immediately upon notice from WSL if the Licensee fails to comply with the provisions of this Licence.
6.4 This Licence will terminate automatically if the Licensee shall commit any act of bankruptcy or become insolvent or go into
liquidation or suffer a mortgagor or receiver to become entitled to possession of any of its assets or if any of the foregoing
events are in the reasonable opinion of WSL threatened.
6.5 In the event no funds or insufficient funds are appropriated by the Licensee in any fiscal period for any payments due
hereunder, Licensee will notify Licensor of such occurrence and this Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the Licenses: of any kind whatsoever, except
as to the portions of the payments herein agreed upon for which funds shall have been appropriated
6.6 On termination of this Agreement the Licensee must destroy the CDROM/floppy disk for the Software and return any
Software Protection Device to WSL.
7 INSPECTION
WSL or any of its duly appointed agents shall have the right at any time to inspect the Licensee's premises to verify that its
use of the Software is in accordance with the terms of this Licence.
8. MISCELLANEOUS
8.1 This Agreement shall be construed under and governed by the laws of the state of Texas.
8.2 If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired.
8.3 The City and WSL shall exercise their best efforts to meet their -respective duties and obligations as set forth in this
Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes
beyond their reasonable control (force mgjeure), including, but not limited to, compliance with any government law,
ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots,
material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes.
8A This Agreement, including the Quotations and/or Orders attached hereto and any documents incorporated herein by
reference, contains the entire understanding and agreement between the City and WSL, their assigns and successors in
interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared
null and void to the extent in conflict with any provision of this Agreement.
8.5 The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of
the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other
authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this
Agreement.
ACCEPTED AND AGREED:
W.
Title:
Date:
Contract Authorization:
ARE LTD:
Date Approved: Ty/tl�
CITY OF FORT WORTH, TX:
By: tttwir4wL-•
Fernando Costa
Assistant CI ager
ATTEST:
Marty Hendrix, City ecretary
APPROVED TO FORM AND
LEGALIT
Assistant City ttorney
Wallingford Soffwore Ltd Software LJcence Agreement 3 revised July 2008
y
DATE: Tuesday, September 30, 2008
LOG NAME: 20SWMWALLINGFOR REFERENCE NO.: C-23105
SUBJECT:
Authorize a License Agreement in the Amount of $242,125.00 with Wallingford Software, Ltd., for
Asset and Survey Data Management Software and Hydrologic and Hydraulic Modeling Software for
the Transportation and Public Works Department, Storm Water Engineering Division, and Adopt
Supplemental Appropriation Ordinance
RECOMMENDATION:
It is recommended that the City Council:
1. Adopt the attached supplemental appropriation ordinance increasing appropriation in the Storm Water
Utility Fund by $242,125.00 and decreasing the unreserved fund balance by the same amount; and
2. Authorize the City Manager to execute a License Agreement with Wallingford Software, Ltd., in the
amount of $242,125.00 for Asset and Survey Data Management Software and Hydrologic and Hydraulic
Modeling Software for the Transportation and Public Works Department, Storm Water Engineering Division,
DISCUSSION:
The Storm Water Engineering Division of Transportation and Public Works will use this agreement to
acquire the software programs InfoNet and InfoWorks SD from Wallingford Software, Ltd. Five licenses of
each software program will be acquired with this purchase.
InfoWorks SD is advanced hydrologic and hydraulic modeling software that will allow analysis of the City's
numerous undersized storm drain systems and provide the tools to develop a master improvement plan for
each system to reduce home and business flooding.
InfoNet is asset and survey data management software that is being used for quality control in the City's
Storm Water GIS mapping project and will help to convert data for use in the infoWorks SD models. The
software will provide a simplified method for the data transfer from the City's GIS contractor to the City.
A related InfoWorks product has been used by the Water Department to develop a master plan for the
City's sanitary sewer system, and the InfoWorks SD software has been determined to have a suitable
application for the storm drain systems. Wallingford InfoWorks is considered by staff to be the best solution
for the City's needs because; it incorporates dynamic modeling features that best mimic actual inlets,
surcharges, and overland flow conditions; it provides the most stable models capable of future manipulation
by staff and consultants as various capital improvements_ are installed; and it has been endorsed by a
number of technically qualified local consultants, including the five consultants currently using it for storm
drain modeling projects.
The City has an existing license agreement for InfoWorks hydraulic modeling software with Wallingford
Software, Ltd., from a previous purchase by the Water Department (M&C C-14401) pursuant to City
Logname: 20SWMWALLINGFOR Page 1 of 2
Secretary Contract No. 20565.
M/WBE A waiver of the goal for IVIMIBE subcontracting requirements was requested by the
Transportation and Public Works Department and approved by the M/WBE Office because the City has an
existing license agreement for InfoWorks hydraulic modeling software with Wallingford Software, Ltd., from
a previous purchase by the Water Department. TPW s Storm Water Management Division would like to use
this software also and must obtain additional licenses for its staff. Wallingford is the sole -source supplier of
this software and there are no subcontracting or supplier opportunities associated with this license
agreement.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above recommendations
and adoption of the attached supplemental appropriation ordinance, funds will be available in the current
operating budget, as appropriated, of the Storm Water Utility Operating Fund. Upon approval, the unaudited
available cash balance of the Storm Water Utility Operating Fund will be $2,900,598.57 which is the amount
available above the minimum reserve cash balance of $2,638,738.30 required by the City's Financial
Management Policy Statements (i.e., 20 percent of the current -year adopted expenditures less debt service
and capital projects).
TO Fund/Account/Centers FROM Fund/AccountlCenters
PE69 539120 0209201 $242,125.00 PE69 539120 0209201 $242,125.00
Submitted for City Manager's Office bk Fernando Costa (8476)
Originating Department Head: Greg Simmons (7862)
Additional Information Contact: Wendy Cooper (8010)
Logname: 20 S WNf WALLINGFOR Page 2 of 2