HomeMy WebLinkAboutContract 37782SEC'RETARY��s,
SMART Software License AgreementC)";'TACT NO
Presented by IBM as Reseller to (Co. Name) Forth Worth Water
This License Agreement is presented by your IBM sales representative as a Reseller of Syclo's SMART Software. Any
questions or comments regarding this Agreement should be directed to contractsCcDsyclo.com or (847) 230-3800 x 245.
1. Definitions
1.1. "Software" means the SMART computer software
identified for purchase by Reseller and related the
Software Documentation, the backup diskettes, and all
additions, corrections, updates, and enhancements
provided under this Agreement, together with all copies
of such items.
1.2. To "disclose" Software means to allow any person to
possess, use, view or copy any portion of such Software.
1.3. To "copy" Software means to create a
representation of any portion of such Software in or on
any medium, whether physical, magnetic or otherwise.
A "copy" refers to the representation thus created.
2. License
Syclo, LLC (Syclo) grants Customer a non-exclusive,
nontransferable limited license to use the SMART
Software as purchased from Reseller. Syclo remains
the owner of the Software and of any copy of the
Software Customer may make. This license agreement
is made solely between Syclo and the Customer. Syclo
is the disclosed principal and sole party to this
agreement with Customer.
3. Support and Maintenance Definitions
3.1 General Support
General Support includes an initial determination made
solely by Syclo as to whether the problem is due to the
SMART Software or is the result of another issue. If it is
determined that the problem emanates from the SMART
Software, Syclo will provide General Support by
answering questions, troubleshooting code, examining
logs, reviewing integration scripts and rules, and
suggesting the implementation of code fixes and
workarounds. All support services will be provided on a
best commercial effort basis. In addition, General
Support for the SMART Software will be provided only
for the software environment as it existed on the date of
acceptance and with respect to versions that, in
accordance with Syclo's internal policies, are then being
supported by Syclo, which will include the previous
major version as well as the current version of the
SMART Software. Support will not include services
requested which are reasonably determined by Syclo to
have been the result of accident or misuse or any
alteration, modification or addition to the SMART
Software other than by Syclo, and, in such cases, Syclo
shall charge Customer upon prior written approval by
Customer, on a time and materials basis in accordance
with Syclo's standard rates as outlined in Addendum A
or Be
3.2. General Maintenance -Maintenance is defined as
new versions, patches, maintenance releases and
enhancements to the SMART Software. All
maintenance services will be provided on a best
commercial effort basis. In addition, Maintenance for the
SMART Software will be provided only with respect to
versions that, in accordance with Syclo's internal
policies, are then being supported by Syclo, which will
include the previous major version as well as the current
version. Maintenance will not include services
requested which are reasonably determined by Syclo to
have been the result of accident or misuse or any
alteration, modification or addition to the SMART
Software other than by Syclo.
3.3. Support Process
3.3.1. Once Customer identifies a support issue, the
process and terms and conditions for providing support
shall be as follows:
3.3.2. Customer shall contact Syclo via e-mail or
telephone as described in the General Support section.
Syclo's Support Center will make a determination
whether the issue presented by Customer qualifies as a
support issue. Syclo will have the sole authority to
determine qualification.
3.3.3. For problems that are qualified by Syclo as a
support issue, Syclo will provide support to Customer in
the form of either a bug fix, a workaround, or a patch.
3.3.4. If Syclo determines that the problem is not with the
SMART Software and is unable to resolve the problem
utilizing the Support services described above, Syclo
may resolve the problem for Customer upon prior written
approval by Customer, on a time and materials basis in
accordance with Syclo's then standard rates.
4. Support Terms and Conditions
4.1. Purchase of Initial Support for the SMART Software.
The first year of the Support and Maintenance Plan
(SMP) is bundled with the initial Software purchase and
is based upon the number of licenses purchased by
Customer each time a purchase is made. The plan
commences upon shipment of the software.
Syclo, LLC Confidential
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4.2. Renewal of the SMP for the SMART Software.
Each Support and Maintenance Plan will automatically
renew for additional one-year terms if not cancelled by
Customer in writing at least 30 days before the end of
the then -current term. Customer will be billed directly by
Syclo for renewal of all SMP. If during a given term,
Customer purchases additional users for the SMART
Software, the SMP with respect to those additional users
shall be in effect from the date of purchase until the end
of the then -current SMP for the SMART Software and
the fees for the additional users shall be appropriately
pro -rated, it being the intent that the SMP with respect to
all users and seats shall be co -terminus. If Customer
elects to renew the Plan after the initial one-year term,
the SMP must be purchased for each and every license
in accordance with the fees outlined in the renewal
invoice. If Customer elects not to continue the SMP and
thereafter elects to reinstate such, Customer must pay,
in addition to the then current SMP fee, all fees that
would have been paid had Customer not let the SMP
lapse. Syclo may also charge a Reinstatement fee of no
more than 20% of the annual Fee.
4.3. Support shall be provided by Syclo as follows:
answer questions regarding use of the SMART Software
by phone, fax and/or e-mail during regular business
hours, 8am to 5pm CST Monday through Friday, as
observed by Syclo (Phone number +1 847-230-3800 or
800-567-9256; fax number +1 847-230-3801; email
support(@syclo.com), use reasonable commercial efforts
to correct errors in the SMART Software which cause
the SMART Software to materially deviate from the
functionality described in the SMART Software
documentation through an update or workaround;
provided full description of the suspected errors are
submitted in writing to Syclo and Syclo is able to
replicate such errors at its facilities and provide
Customer with new versions, patches, maintenance
releases and enhancements to the SMART Software
which Syclo provides without additional costs to its other
customers on the SMP.
4.4. Syclo shall not be required to provide Support or
Maintenance if any of the following conditions apply:
a) any SMART Software errors which are the result of
(i) failure to properly install or use the SMART
Software in accordance with its documentation,
(ii) accident, unusual physical, electrical or
electromagnetic stress, misuse, failure of electric
power, air conditioning or humidity control or failure
of hardware, or
(iii) modifications to the SMART Software other than
by Syclo,
b) any superseded enhancement, version or
upgraAe at any time after one year from the U.S.
release date of the new enhancement, version or
upgrade provided that the current version and
previous version are supported,
c) the Customer's account with Syclo is over 30 days
past due.
4.5. On -site Maintenance or Support services or services
in addition to the services described herein, shall be
provided by Syclo to Customer pursuant to a Statement
of Work executed by both parties, on a time and
materials basis in accordance with Syclo's then standard
rates.
5. Installation
Syclo products must be installed in accordance with
Syclo's Installation Procedures provided with the product
or by Syclo certified professional services.
6. Proprietary Rights
Customer and Syclo agree that Syclo owns all
proprietary rights, including patent, copyright, trade
secret, trademark and other proprietary rights in and to
the Software and any corrections, bug fixes,
enhancements, updates or other modifications, whether
made by Syclo or any third party.
7. Confidentiality:
Limitations on Customer's use of the Software
7.1. Customer may make two copies of the Software for
its own internal use, as aback -up, provided that the
Customer includes in and on such copies all notices of
copyright and proprietary rights appearing in and on the
Software. All such copies must be erased or destroyed
when they are no longer required. Except for such back-
up copies, Customer will not copy or permit anyone else
to copy any portion of the Software. All copies remain
the exclusive property of Syclo.
7.2. Customer agrees the Software contains proprietary
information, including trade secrets, know-how and
confidential information that are the exclusive property of
Syclo. During the period this Agreement is in effect and
at all times after its termination, Customer and its
employees and agents shall maintain the confidentiality
of this information and not sell, license, publish, display,
distribute, disclose or other wise make available this
information to any third party to use such information
except as authorized by this Agreement.
7.3. Customer shall not disassemble, unassemble, or
decode any portion of the Software. Customer shall not
modify any portion of the Software, or merge or embed
the Software into another computer program.
Syclo, LLC Confidential
IBM Reseller - Syclo Software License Agrmt 6-11-08.doc
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8. Limited Warranty & Disclaimer of Implied Warranties
8.1. Syclo warrants to Customer that the Software will
perform in accordance with the Documentation (User
Manuals) in the software environment as it exists on the
date of acceptance for a period of thirty (30) days from
the date that the initially purchased Software is installed.
If during this time period the Software does not perform
as warranted, Syclo shall, at Customer's option, correct
or replace such Software free of charge. In addition,
Syclo warrants to Customer that the media on which the
Software is distributed will be free from defects in
materials and workmanship under normal use for a
period of thirty (30) days from the installation date. Syclo
will replace any defective media returned to Syclo within
a 30-day period. The foregoing are Customer's sole and
exclusive remedies for breach of warranty.
8.2. Except as set forth above, Syclo makes no
warranties, whether express or implied, relating to the
Software. Syclo does not warrant that the Software will
be error -free, timely, reliable or meet Customer's
requirements. In addition, Syclo specifically disclaims all
implied warranties of merchantability and fitness for a
particular purpose with respect to the Software.
9. Customer Remedies and Limitation of Liability
9.1. In no event will Syclo be liable for any loss of profits,
loss of use, business interruption, loss of data, or
indirect, special, punitive, incidental, or consequential
damages of any kind arising out of this Agreement,
including without limitation, the development program,
use of the software or documentation or support (or any
delay in providing same), even if Syclo has been advised
of the possibility of such damages, Syclo's liability under
this Agreement for damages will not, in any event,
exceed the license fee paid by Customer under this
agreement.
9.2. The provisions of Article 7 and this Article allocate
risks under this Agreement between Customer and
Syclo. Syclo's pricing reflects this allocation of risks and
limitation of liability.
9.3. No action by Customer arising out of any breach or
claimed breach of this Agreement may be brought more
than one (1) year after Customer knew or reasonably
should have known of the breach or claimed breach.
10. Infringement
Syclo shall, at its expense, indemnify, defend, and hold
Customer harmless from and against any legal claim or
proceeding that an unaltered copy of the Software
infringes a United States patent, copyright, trade secret,
or other proprietary right of any third party, provided that
Customer has given written notice of any claim, action,
or allegation of infringement to Syclo within fifteen (15)
days after Customer first receives written notice thereof.
Syclo will have exclusive right to defend any such claim,
action, or allegation and make settlements thereof at its
own discretion and Syclo will not be responsible or
indemnify Customer for any settlement or compromise
made without Syclo's prior written consent. Customer
shall give such assistance and information as Syclo may
reasonably require to settle or oppose such claims. If
any such infringements occurs or may occur, Syclo may,
at its sole option and expense:
10.1. Procure for Customer the right to continue use of
the Software;
10.2. Modify or amend the Software, or replace the
Software with other software having similar capabilities;
or
10.3. Terminate this Agreement and repay to Customer
an amount equal to the License Fee. Syclo and
Customer will then be released from any further
obligations to the other under this Agreement except for
the obligations of indemnification provided for above and
such other obligations that survive termination.
11. Syclo will not be liable to Customer under the terms
of this Section or otherwise if any infringement or claim
thereof is based upon
(i) the use of the Software in violation of this
Agreement,
(ii) use of the Software in combination with any other
software program, or
use of a superseded or altered release of the
Software if such infringement would have been
avoided by the use of a current unaltered release of
the Software. The foregoing state the entire liability
of Syclo with respect to infringement of a United
States patent, copyright, trade secret, or other
proprietary right.
mination
12. Ter
Customer may terminate this license at any time by
complying with the following termination procedure:
12.1. Customer must erase or destroy the original and all
copies of the Software and
12.2. Customer must certify in writing that the original
and all copies have been erased or destroyed.
12.3. If Customer fails to comply with any material
provisions of this Agreement after thirty (30) days notice
and opportunity to cure, Syclo may, in addition to all
other remedies available, terminate the license by notice
to the Customer. Upon termination by Syclo, Customer
will comply with the termination procedure described
above. Customer's obligation to hold the Software in
confidence and all related obligations shall survive
termination of the license.
Syclo, LLC Confidential
IBM Reseller - Syclo Software License Agrmt 6-11-08.doc
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13. Assignment
Customer may not assign or sub -license its rights under
this Agreement without Syclo's prior written consent.
14. Miscellaneous
This Agreement is the complete and exclusive statement
of the Agreement between the parties. It supersedes
any proposal or prior agreement, oral or written, and any
other communications between the parties relating to the
subject matter of this Agreement. The Software licensed
under this Agreement does not include any licensed
access to the enterprise system with which it is intended
to interface and such licensed access is the sole
responsibility of Customer. U.S. Export Restrictions:
Customer acknowledges that the Product(s) and all
related technical information, documents and materials
are subject to export controls under the U.S. Export
Administration Regulations. Customer will (i) comply
strictly with all legal requirements established under
these controls, and (ii) cooperate fully with Company in
any official or unofficial audit or inspection that relates to
these controls, and (iii) not export or re-export any
Product(s) without the appropriate United States and
Signed and agreed to by the parties;
Syclo, LLC
By
Name Mark L. Schlossberg
Title CFO. EVP Finance
Date
y ��nd>rit��i
Contract Authorization
1301
Date
foreign governmental licenses or approval. Customer
agrees to comply with all applicable laws, rules,
regulations, and policies of any legal authority
throughout the Territory, and shall render Syclo
harmless and indemnify Syclo from any failure of
Customer to do so. This Agreement will be governed by
the laws of the state of Illinois. Customer consents to
the exclusive jurisdiction of the federal and state courts
in Illinois in any action arising out of or in connection with
this Agreement. If any legal action is brought by either
party against the other regarding the subject matter of
this Agreement, the prevailing party shall be entitled to
over, in addition to any other relief, reasonable
attorney's fees and expenses. This Agreement may not
be amended except by written agreement of the parties.
No agent, employee, or representative of Syclo except
for an authorized officer of Syclo has any authority to
bind Syclo to any affirmation, representation or warranty.
If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, or
unenforceable, the remainder of this Agreement shall
remain in full force and effect.
Company Name Forth Worth Water
Name rnando Costa�_
Assistant CRY w6leplease print)
Title
Date /O/�'3�DB
Syclo, LLC Confidential Page 4 of 5
IBM Reseller - Syclo Software License Agrmt 6-11-08.doc
Customer Contact Information
This document will not be accepted unless the information below is completed in its entirety by an agent of the Purchasing Company.
Company Name _
Address
city
State, Zip
Purchasing Contact
(please print)
Name
(please print)
Title
Phone
::Wail
Technical Contact
Name
Title
Phone
E-Mail
(please print)
License keys and download instructions will be emailed to this
address unless instructed otherwise.
Syclo, LLC Confidential Page 5 of 5
IBM Reseller - Syclo Software License Agrmt 6-11-08.doc
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• r; •
• . • • • •
DATE: Tuesday, September 30, 2008
LOG NAME: 60SYCL0 REFERENCE NO.: **C-23Q94
SUBJECT:
Authorize a Sole Source Maintenance Agreement with IBM, Inc., for Syclo SMART Software
Licenses and Maintenance Support for the Water Department for a Cost Not to Exceed $96,280.00
RECOMMENDATION:
It is recommended that the City Council authorize a sole source maintenance agreement with IBM, Inc., for
Syclo SMART software licenses and maintenance support for the Water Department for a cost not to
exceed the amount of $96,280.00.
DISCUSSION:
The Water Department will use this agreement to purchase 40 Syclo SMART software licenses and one
year maintenance support to expand the deployment of the Computerized Maintenance Management
System (CMMS) Maximo into the Department's mobile environment. SMART Software is used by field staff
to view and complete Maximo work orders electronically, using a simple step-by-step process that captures
all required information.
In September 2007, the Water Department initiated a pilot project to evaluate deploying Maximo into the
mobile environment to improve timely access to work order detail, eliminate error prone paperwork, and
increase productivity by capturing data quickly and accurately at the point of work performance. Twelve
mobile crews were deployed in Field Operations for a six month period while both business and technical
analysts evaluated the results obtained versus a set of success criteria. The results of the pilot found that
the technologies utilized and the business process changes deployed remained flexible enough to serve the
diverse needs of the mobile workforce and agile enough to meet new business challenges in the future,
eliminating error prone paperwork and the resultant review backlog, and reducing work crew wait time for
dispatcher assistance. Moving from a pilot project to a full implementation of Mobile Maximo will gain
greater efficiencies for the Department.
IBM, Inc., is the documented sole source maintenance provider for the Syclo SMART Software. The
technical support is necessary to keep existing software functioning properly and for making programming
enhancements to the system.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating
http://apps.cfwnet.org/council�acket/Reports/mc�rint.asp 10/14/2008
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budgets, as appropriated, of the Water and Sewer Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
Originating Department Head:
Additional Information Contact:
PE45 539120 0707012 $96,280.00
Fernando Costa (8476)
S. Frank Crumb (8207)
S. Frank Crumb (8207)
http://apps. cfwnet.org/council�acket/Reports/mc�rint.asp 10/14/2008