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HomeMy WebLinkAboutContract 43478 (2)CRY Y SECRET coviavAmr mop SALES C 1 NTRACT LICENSE AGkEEMENT I ui This Sales Contract and License Agreement (this "Agreement") is entered into as of May 2.4 , 2012 (the "Effective Date") by and between the following: LICENSOR: SHAH SOFTWARE, INC. P. O. BOX 9445 MIDLAND, TEXAS 79703-9445 (800) 968-2748 (432) 618-OOI2 (facsimile) LICENSEE: City of Fort Worth 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 817-392 =1650 (TELEHONE) (FACSIMILE) (ELECTRONIC MAIL) RECITALS Whereas Licensor develops and markets computer software applications for tracking clients commonly known as Client Tracking System (the "Software"), which is more particularly described in the user manuals and other written materials created by Licensor to describe the functionality and use of the software (the "Documentation"); and Whereas Licensee desires to acquire a license to use the software, equipment and documentation, and Licensor desires to grant Licensee the license. THEREFORE, for good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. DE INITIONS 1.1. "Authorized Platform" means the computer or operating system, or both, on which Licensee is authorized to use the software pursuant to this Agreement. 1.2. "Authorized Site" means a location at which Licensee is authorized to use the software. H:\DOCS\4511.\f LICENSEAGRE MEN �I�, 5bcX FG1C�11 ©Mr Ol Cal1WtC"%RXV 08-Q8-1 2 P02:46 IN Page 1 of 14 1.3. "Documentation" means all user manuals and other written material created by Licensor to describe the functionality or assist in the use of the software. 1.4. "License Fee' means the fee to be paid by Licensee to Licensor as consideration for the license(s) granted under this Agreement and the right to use the software and the documentation. 1.5. "Software" means the computer program or programs marketed and sold as Client Tracking System as further described on the proposal attached as Exhibit A, and the Documentation. Software includes any updates, modification, bug fixes, updates, enhancements, or other modifications. It does not include any version of the software that constitutes a separate product because of differences in function or features. 1.6. "Technical Support Schedule" means the description of the technical support and maintenance provided by Licensor in connection with Licensee's use of the software, and a schedule of the fees charged by Licensor for such support and maintenance. 2. GRANT OF LICENSE 2.1. Grant. Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a nonexclusive, nontransferable license in the Software, to use the Software exclusively for Licensee's business purposes and at the Authorized Site and to use the Documentation solely in connection with Licensee's use of the Software, for use only by the number of licensed users permitted on Exhibit A. 2.2. License Restrictions. Except as specifically granted in this Agreement, Licensor owns and retains all right, title, and interest in the Software, Documentation, and any and all related materials. This Agreement does not transfer ownership rights of any description in the Software, Documentation, or any related materials to Licensee or any third party. Licensee will reproduce, install, and render the Software operational only on the Authorized Platform at the Authorized Site. Licensee will not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software. Licensee will not distribute the Software to any persons or entities other than Licensee's employees, consultants, or contractors and then only to the number of licensed users specified in Exhibit A. Licensee may not sell the Software to any person or make any other commercial use of the Software. Licensee will retain all copyright and trademark H:\DOCS\4511\1\LICENSEAGREEMENT-FTWORTH.DOCX Page 2 of 14 notices on the Software and documentation and will take other necessary steps to protect Licensor's intellectual property rights. 3. LICENSE FEES 3.1. License Fees. In consideration for the License granted to Licensee under this Agreement, Licensee will pay Licensor a license fee of as provided in Exhibit A (the "Purchase Price') All amounts not paid within thirty (30) days of the date on which payment is due will bear interest at one percent (1 %). 3.2. Taxes In addition to other amounts payable under this Agreement, Licensee will pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Licensee's use of the software or the payment of the License Fee to Licensor, other than taxes assessed against Licensor's net income. Such taxes, duties, fees, withholding, or other charges will be paid by Licensee or Licensee will provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Licensor is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Licensor from Licensee pursuant to this Agreement, Licensee will promptly reimburse Licensor any such amounts. 4. LICENSOR'S OBLIGATIONS 4.1. Deliverables. On execution of this Agreement, Licensor will begin to develop the Software for Licensee's use and obtain all purchased hardware, licenses, etc., as specified in Exhibit A for Licensee's use. When Licensee s software package is complete, Licensor will deliver the Software to Licensee in a format appropriate for the Authorized Platform at the Authorized Site, together with the Documentation. The expected delivery schedule is provided in Exhibit A. 4.2. Sunnort and Maintenance. For so long as Licensor offers annual support and maintenance for the Software, Licensee annually subscribes thereto without lapse, and Licensee pays when due all costs associated therewith as provided herein, Licensor will provide Licensee with technical support in connection with Licensee's use of the Software according to the attached as Exhibit B. On each anniversary of the Effective Date of this Agreement, Licensee will pay Licensor the annual support and maintenance H:\DOCS\4511\1\LICENSEAGREEMENT-FTWORTH.DOCX Page 3 of 14 fee set forth in the attached Exhibit B, as may be increased by Licensor annually on or after the second anniversary of the Effective Date. Such support and maintenance shall include all Licensor's developed modifications, bug fixes, and updates for the Software. However, Licensor has no obligation to provide Licensee with subsequent product releases. 5. TERM AND TERMINATION 5.1. Term. This Agreement, and the license granted under this Agreement, becomes effective on the Effective Date. Unless sooner terminated as set forth in Sections 5.2 and 5.3, below, the Agreement will continue in effect for five (5) years from the Effective Date. This Agreement and the license shall automatically renew for successive one (1) year periods thereafter until the earlier of (i) termination as provided herein; (ii) the expiration of Licensor s rights in the software or (iii) the tenth (10th) anniversary of the Effective Date. 5.2. Termination for Convenience. Licensee may terminate the Agreement at any time and from time to time on thirty (30) days' prior written notice to Licensor. 5.3. Termination for Cause. Either party, as applicable, will have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement as follows: a. By Licensor, on 15 days' written notice, if Licensee fails to pay the amounts due to Licensor pursuant to this Agreement; b. By Licensor, on 15 days' written notice if there is a change in control of Licensee, whether by sale of assets, stock, merger, or otherwise; c. By either party for any material breach of this Agreement, other than failure to make payments under Section 3, that is not cured within 10 days of receipt by the party in default of a notice specifying the breach and requiring its cure; or d. By either party, immediately on written notice, if: (i) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within 60 days; or (iii) the other party is adjudged bankrupt. H:\DOCS\4511\1\LICENSEAGREEMENT-FTWORTH.DOCX Page 4 of 14 5.4. Rights on Termination Licensor has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Software or Documentation. If termination occurs after delivery of the Software to Licensee and receipt of the Purchase Price by Licensor, Section 2.1 will survive termination. Sections 6, 7, and 8 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default. 5.5 Payment on Termination. If Licensee terminates this Agreement pursuant to its rights granted under Section 5.2, Licensee shall pay Licensor the following termination fees: a. If Licensee's termination notice is received by Licensor after the Effective Date but before the seventh (7th) day following the Effective Date, one percent (1%) of the Purchase Price; b. If Licensee's termination notice is received by Licensor after the period provided in (a) above, but before delivery, twenty percent (20%) of the Purchase Price; c. If Licensee's termination notice is received by Licensor after delivery, Licensee shall be liable for the full Purchase Price plus any then outstanding support and maintenance fees. Licensee shall only be liable for support and maintenance through the date of termination. 6. WARRANTIES, DISCLAIMER, AND LIMITATIONS 6.1. Warranties. Licensor hereby warrants to Licensee that (a) Licensor is the owner of the Software and the Documentation or has the right to grant to Licensee the license to use the Software and Documentation in the manner and for the purposes set forth in this Agreement without violating any rights of a third party, and (b) the media containing the Software will be free from defects for a period of ninety (90) days from the date of delivery to Licensee, provided that this warranty does not cover defects in the diskettes due to Licensee's misuse of the software media or an accident subsequent to delivery to Licensee. 6.2. Disclaimer. THE WARRANTIES SET FORTH IN SECTION 6.1, ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLI F.D, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE H:\DOCS\4511\1\LICENSEAGREEMENT-FIWORTH.DOCX Page 5 of 14 SOFTWARE IS ERROR -FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE 6.3. Remedies on Breach of Warranty. In the event of any breach of the warranty set forth in Section 6.1(b), Licensee's exclusive remedy will be for Licensor to promptly replace defective software media. In the event of any breach of the warranty set forth in Section 6.1(a), Licensee's exclusive remedy will be for Licensor to refund the Purchase Price. 6.4. Third Party Goods or Services. To the extent the items delivered pursuant to this Agreement include any product developed, manufactured, or delivered by a person or entity other than Licensor, including but not limited to goods, services, software, licenses, applications or code mobile data computers or terminals, and like items, LICENSOR EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIF,D WARRANTIES OF MERCHANTABILITY AND ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. All such third party products are delivered and accepted by Licensee "AS - IS, WIIERE-IS, and with ALL FAULTS." 6.5 Limitation of Liability LICENSOR IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES 7. CONFIDENTIALITY 7.1. Confidentiality. Licensee acknowledges that the Software and Documentation, and all information relating to the business and operations of the Licensor that Licensee learns or has learned during or prior to the term of this Agreement, is the valuable, confidential, and proprietary information of the Licensor. During the H:\DOCS\4511\1\LICENSEAGREEMENT FTWORTH.DOCX Page 6 of 14 period this Agreement is in effect, and at all times afterwards, Licensee, and its employees, contractors, consultants, and agents, will: a. safeguard the confidential information with the same degree of care that it uses to protect its own confidential information; b. [Intentionally Omitted]; c. not use the information except as permitted under this Agreement; and d. not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of Licensor. 7.2. Limitations on Confidentiality Restrictions. Section 7.1 does not apply to any information that: a. Is already lawfully in the Licensee's possession (unless received pursuant to a nondisclosure agreement); b. Is or becomes generally available to the public through no fault of the Licensee; c. Is disclosed to the Licensee by a third party who may transfer or disclose such information without restriction; d. Is required to be disclosed by Licensee as a matter of law (provided that the Licensee will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefore); e. Is disclosed by the Licensee with the disclosing parry's approval; or f. Is independently developed by the Licensee without any use of confidential information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party ten (10) days' prior written notice of any disclosure of information under this agreement. 7.3. Iniunctive Relief for Breach. Licensor and Licensee acknowledge that any breach of Section 7.1 by a receiving party will irreparably harm Licensor. Accordingly, in the event of a breach, Licensor is entitled to promptly seek injunctive relief in addition to any other remedies that Licensor may have at law or in equity. 8. EXPORT CONTROLS AND RESTRICTED RIGHTS 8.1. Exnort Controls. The Software the Documentation, and all underlying information or technology may not be exported or re-exported into any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Licensee will not export the Software or Documentation or any underlying H:\DOCS\4512\1\LICENSEAGREEMENT-FIWORTH.DOCX Page 7 of 1.4 information or technology to any facility in violation of these or other applicable laws and regulations. Licensee represents and warrants that it is not a national or resident of, or located in or under the control of, any country subject to such export controls. 9. GENERAL 9.1. Assignment. Licensee may not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this Agreement without Licensor's prior written consent. This Agreement will be binding on the successors and assigns of Licensee. 9.2. Entire Aareement. This Agreement, along with the Exhibits attached and referenced in this Agreement and the executed Addendum to this Agreement, constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter contained in this Agreement. 9.3. Waiver. This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party. The failure of either party to enforce any provision of this Agreement will not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. 9.4. Notices. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement will be effective when received, and will be sufficient if given in writing, hand -delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested, postage prepaid, or sent by overnight courier service and addressed as provided on page 1 of this Agreement or such other address as the parties may provide to the other in writing. 9.5. Intentionally Omitted. 9.6. Independent Contractor. Licensor is, and at all times will be, an independent contractor. Nothing in this Agreement will be deemed to create an employer/employee, principal/agent, joint venture or other similar relationship. Neither party will have the authority to enter into any contracts on behalf of the other party. 9.7. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with Texas law, without regard to the principles of conflict of laws. Venue shall be proper only in Tarrant County, Texas. H:\DOCS\4511\1\LICENSEAGREEMENT-FTWORTH.DOCX Page 8 of 14 9,8. Severabili•ty. In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, the provision • provision will be severed from this Agreement, and such . unenforceab.l�fi.y, or illegality will not affect any other provisions of this valldi � Agreement. have caused this A eemexit to be executed as of the IN WITNESS, the parties �' date written above. LICENSOR: SHALL SO ; WARE, INC. Jaga Shah, President LICENSEE: CITY OF FORT WORTH 140' H:\DOCS\4511\1\LICENSEAGREEMENT-FTWORTH.DOCX By: By: Name: �._ Title: • • APPROVED AS TO FORM AND LEGALITY: s A Page 9 of 14 EXHIBIT A NO. OF LICENSED USERS (Additional purchased): TOTAL PURCHASE PRICE: Twenty One Thousand Dollars TEN (10) $21,000.00 The attached proposal initialed or signed by the parties is incorporated herein in this Exhibit A as if set forth verbatim, however, in the event of any conflict in provisions of the attached proposal and this Agreement, this Agreement shall control. f Licensee's Initials: H:\DOCS\4511\1\LICENSEAGREEMENT-FTWORTH.DOCX Page 10 of 14 EXHIBIT B TECHNICAL SUPPORT SCHEDULE Licensor shall provide telephone support and upgrades for one (1) year from the Effective Date, included in the Purchase Price. Licensee shall pay an annual fee (the current rate which is $10,350.00) for each year thereafter for technical support and maintenance. The fee is based on 43 licenses. Additonal licenses may be subject to additional fees. This fee schedule is firm for two (2) years beyond the initial one (1) year performance period and shall increase (exclusive of additional licenses and related charges) not more than five percent (5%) per year for subsequent years. Licensee's Initials: H:\DOCS\45fl\1\LICENSEAGREEMENT-FTWORTH.DOCX Page 11 of 14 FORT WORTH STANDARD FORM ADDENDUM OF THE CITY OF FORT WORTH, TEXAS To: SALES CONTRACT & LICENSE AGREEMENT 1 With: Shah Software, Inc. Notwithstanding any language to the contrary in the attached Agreement presented by Shah Software, inc. ("Contractor') for Client Tracking Software /`services"), the City of Fort Worth ("City") and Contractor (collectively the "parties') hereby stipulate by evidence of execution below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree to the following: 1. Insurance; The City is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by Governmental Units,' s self -insured and tnerefore is not required to purchase insurance. To the extent the Agreement requires the City to purchase insurance, the City will provide a fetter of self -insured status as requested by Contractor. To the extent the Contractor will be providing Technology services for the City, including but not limited to, software implementation. data migration. hosting services. maintenance and support services, or any other services which will require contractor to access to the City's network, servers. or computers, Contractor shall maintain Technology Errors & Omissions insurance coverage In an amount acceptable to the City. 2. indemnity: To the extent the attached Agreement requires the City to indemnify or hold Contractor or any third party harmless hors damages of any kind or character, such obligations are binding upon the City only to the extent permitted by law. 3. Attorneys' Fees, Penalties, and Liquidated Damages: To the extent the attached Agreement requires the City to pay attorneys` fees for any action contemplated or taken, or penalties or liquidated damages in any amount, the City shad not be liable for attomey's fees of Contractor or any third party, or any other fees or penalties or other such obligations, all of which are binding upon the City only to the extent permitted by law. 4. Governing Law and Venue: This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and the state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under this Agreement shag be in a court of competent jurisdiction in Tarrant County, Texas. S. Sovereign Immunity: Nothing herein constitutes a waiver of the City's sovereign immunity. To the extent this Agreement requires the City to waive its rights or immunities as a govemment entity, such provisions are hereby deleted and she(' nave no force or effect S. Non Appropriation of Funds: In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all financial obligations of the City hereunder are subject to the availability of funds. If sufficient funds are not appropriated or become unavailable to satisfy the City's financial obligations under the Agreement, the City shall have the right to terminate the Agreement without penalty or expense to the City whatsoever, except as to the portions of the payments agreed upon for which funds have been appropriated. 7. Taxes: To the extent the attached Agreement requires the City to pay taxes of any nature, the City shall not be liable for any taxes pursuant to the Agreement. Upon request, the City sha i provide Contractor with evidence of its tax exempt status. 8, Confidential information: To the extent the Agreement places any restrictions on the City with respect to disclosure of information, Contractor understands and acknowledges that the City of Fort Worth {'City") is a public 11:\DOCS\4511\1\LICENSEAGREEMENT-F7WORTH,DOCX Page 12 of 14 entity under the laws of the State of Texas, and as such. all public documents and data, including the attached Agreement; held by the City are subject to disclosure under Chapter 552 of the Texas Government Code, the Texas Public information Mt (the "Act"), If the City is required to disclose any documents that may reveal any Contractor proprietary information to third parties under the Act, or by any other legal process, law, rude or judicial order by a court of competent junsdiction: the City will utilize its best efforts to notify Contactor arior to disclosure of such documents. The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as "Proprietary 1 Confidential Information" or if disclosure is required by the Act or any other applicable law or court order. In the event there Is a request for such information, it will be the responsibility of Contractor to work with the City to submit reasons objecting to disclosure A determination as to whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas, or by a court of competent jurisdiction, To the extent the City provides information to the Contractor, Contractor shall Store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Contractor shalt notify the City iimmediately if the security or integrity of any City information has been compromised or s believed to have been compromised- The parties agree that Confidential Information shall not include information that is required to be disclosed pursuant to applicable law, rule, regulation or court order. Wvaw.1 t/J II,O 0 03 1a 6„ q.iW vl V,,;:i0h. Vl,v, VI „11.'G;,,V„dI A,n. k"( e. 3V41040-4.1aI, ILO 0%:1%;S, aired- wseaa, 10. Force Majeure: To the extent the attached Agreement purports to release a party from its obligations under the Agreement due to causes beyond its reasonable control (force majeure), including but not limited to, compliance with any government law, ordinance or regulation, ants of God, acts of the public enemy, fires, strikes, lockouts, natural disasters. wars, riots, material or labor restrictions by any governmental authority, transportation problems andior any other similar causes, such provision shall apply equally to both parties. 11. Dispute Resolution: To the extent the attached Agreement sets forth a dispute resolution procedure such provision sha'I only apply to the City as set forth herein in this Addendum. In the event of a dispute the parties may first submit the dispute for non -binding mediation in Tarrant County, Texas- The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees: however, the parties shall share equally in the costs of the mediation. In the event mediation is not successful, the dispute may, upon written consent of both parties, be submitted for binding arbitration in accordance with the rules of the American Arbitration Association. Each patty shall be liable for Its own expenses, including attorney's fees: however. the parties shalt share equally in the costs of the arbitration. In no event shalt the City be required to submit a dispute to binding mediation or arbitration without the Cityts prior written consent. 12. Assignment To the extent the Agreement authorizes assignment of rights, duties and obligations of either party, such assignment shall only be valid upon the express written consent of both parties. Any attempted assignment in violation of this prevision shall be null and void. 13, Conflicting Terms: If any provisions herein conflict with the terms of the attached Agreement, the terms herein shall control. [Signature °age Follows' (VW lInset'. Nume e; Contactor! Addendum i'uge 2 of'1 H:\DOGS\4511\1\LUCENSEAGREEMENT FiWORTH.DOCX Page 13 of 14 ACCEPT zD AND AGREED: CITY OF FORT WORTH: Nat.* Assistant City Manager Data �j �j I ter ATTEST: By: SHAH SOFTWARE, INC. By: JAGAT SHAH PRESIDENT �„a-o4�O �$�� Date: �aa�oQoaaR? °T %r Y te a EST: 0 '14 �S boa 0 [ me] aoo �a� le] APPROVED AS TO FORM AND LEGALITY: CONTRACT AUTHORIZATION: By. " 3/4 IT City S Greta Maleshia B° Farmer Assistant City Attorney CFW / [Insert Name of Contactor] Addendum Page 3 of 3 M&C• Date Approved: iMO- 110KC REQUakiyi I .1 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX