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HomeMy WebLinkAboutContract 45190 (2)4 ARV C�. 5T A 1 � 9 LICENSE AGREEMENT This License Agreement (this "Agreement") is entered into as of the last date signed by the parties below (the "Effective Date") by and between the following: LICENSOR: SHAH SOFTWARE, INC. P. O. BOX 9445 MIDLAND, TEXAS 79708-9445 (800) 968-2748 (432) 618-0012 (facsimile) LICENSEE: CITY OF FORT WORTH 1000 THROCKMORTON STREET FORT WORTH, TEXAS 76102 (817) 392-57001TELEHONE) (817) 392-5724 (FACSIMILE) ELECTRONIC MAIL) RECITALS WHEREAS Licensor develops and markets web based computer software applications (on demand software) for Client Tracking, Project Tracking commonly referred to "CaseManager - NewGen ", and WHEREAS Licensee desires to acquire a license to use the software and Licensor desires to grant Licensee the license. NOW THEREFORE, for good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS 1.1. "Software" means Licensor's core web -based software application for Client Tracking, Project Tracking known as "CaseManager -- NewGen." Software as used herein shall also include any options or modules added to the core application as identified on Exhibit B hereto, incorporated herein, which may include linking to Hardware and custom modules. 1.2 "Documentation" means all user manuals and other written material created by Licensor to describe the functionality or assist in the use of the Software. 1.3. "Hardware" means the optional hardware, if any, identified on Exhibit C, attached hereto and incorporated herein, procured for Licensee by Licensor. City of Fort Worth_Shah Software License Agreement Case Manager NewGen RECEIVED DEC 1 2 2013 Page 1 of 9 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, as further described herein and on Exhibit A. 1.5 "Reports" mean all Community Services Block Grant (CSBG) and Comprehensive J-nergy Assistance Program (CF1AP) reports as Texas Department of Housing and Community Affairs (TDHCA) requires, including programmatic and financial reports, along with the ability to query and generate reports on demographics, services, outcomes, etc., specific to Community Action Partners. 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 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 not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software Licensee will not grant access to 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 or right to use the Software to any person or make any other commercial use of the Software Licensee will retain all copyright and trademark notices on the Software and Documentation and will take other necessary steps to protect Licensor's intellectual property - rights. City of Fort Worth_Shah Software License Agreement Case Manager NewGen Page 2 of 9 3. FEES & COSTS 3.1 License Fees. In consideration for the License granted to Licensee under this Agreement, Licensee shall pay Licensor: (a.) Annual License Fee The fee provided in Exhibit A attached hereto, and incorporated herein, annually, in advance for each term of this Agreement, which includes the Software license fee, annual maintenance and support, web hosting fee and the fees for any additional module or component identified on Exhibit B. (b.) Initial Set-up, Account Creation, Software Upgrade and Map Licensing. A one-time, non - reoccurring fee of $9,800.00 payable on or after the Effective Date but prior to the Commencement Date. 3.3 Taxes. The City is a tax exempt entity and shall not be liable for any taxes pursuant to this Agreement. 4. LICENSOR'S OBLIGATIONS 4.1. Deliverables. On the Commencement Date or Conversion Date specified in Exhibit A of this Agreement, Licensor will provide (i) access to the Software, limited to the number of users as specified in Exhibit A, for Licensee's use, together with the Documentation. 4.2 Reports Licensor shall provide Licensee with the ability to download and save Reports in CSV or pdf format for day-to-day use of the hosted solution. 4.3. Support and Maintenance. For so long as Licensee subscribes to the Software, and for so long as Licensor offers support and maintenance for users of the Software, Licensor will provide Licensee with telephone technical support, software upgrades as developed, webinars on request in connection with Licensee's use of the Software included in Licensee's annual license fee. 5. TERM AND TERMINATION 5.1. Term. This Agreement is effective on the Effective Date first specified above. The initial term of this Agreement shall be one (1) year from the Effective Date. Unless sooner terminated as set forth in Sections 5.2 and 5.3, below, the Agreement shall be renewable at the option of the City for two (2) additional terms of one year each. The City shall provide Consultant with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 5.2. Termination for Convenience Licensor or Licensee may terminate the Agreement at any time and from time to time on thirty (30) days' prior written notice to the other Licensor's notice of any termination for convenience must be accompanied by a refund of any prorated payments received by Licensor in advance City of Fort Worth_Shah Software License Agreement Case Manager NewGen Page 3 of 9 for months beyond the termination date. Licensor may also terminate this Agreement as to any additional modules, applications, or components in excess of the core application (as identified on Fxhibit B) upon thirty (30) clays' written notice (without discount or refund) if (i) Licensor's core software application no longer supports such additional modules, applications, or components or (ii) Licensee fails to upgrade any Hardware or acquire additional hardware necessary to make such modules, applications, or components compatible with Licensor's core application software. 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 Licensoi, on 15 days' written notice, if there is a change in control of Licensee, whether by sale of assets, stock, merges, or otherwise; c. By either party foi 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. 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, including, without limitation, terminating Licensee's access to the Software. Upon termination, Licensee shall have the right to receive from Licensor, a copy of all Licensee data generated through the hosted solution in a format that is machine readable with the ability to download and import data in a manner that is acceptable to Licensee. Licensor shall provide such data to Licensee within five (5) calendar days following the effective date of 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. 6. WARRANTIES, DISCLAIMER, AND LIMITATIONS 6.1. Warranties. (a.) Software and Documentation Licensor hereby warrants to Licensee that 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 that 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 City of Fort Worth_Shah Software License Agreement Case Manager NewGen Page 4 of 9 not cover defects in the diskettes due to Licensee's misuse of the software media or an accident subsequent to delivery to Licensee. (b.) 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, tablets, or terminals, LICENSOR hXPRFSSLY DISCLAIMS AID FXCLUDFS ALL RFPRFSENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTFI\, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED 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, WHERE -IS, and with ALL FAULTS." 6.2. Disclaimer. THE WARRANTIES SET FORTH IN SECTION 6.1, ABOVE, ARE IN LIEI1 OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE 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 (a) above, Licensee's exclusive remedy will be for Licensor to promptly replace defective software media. In the event of any other breach of the warranty set forth in this Section 6, Licensee's exclusive remedy will be for Licensor to refund the license fees actually received from Licensee. 6.4 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. City of Fort Worth_Shah Software License Agreement Case Manager NewGen Page 5 of 9 • During the 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. not use the information except as permitted under this Agreement; and c. 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 party'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 10 days' prior written notice of any disclosure of information under this agreement. 7.3. Intunctive 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. GENERAL 8.1. 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. 8.2. Entire Agreement. This Agreement, along with the Exhibits attached and the executed Addendum to this Agreement, constitute 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. 8.3. 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. City of Fort Worth_Shah Software License Agreement Case Manager NewGen Page 6 of 9 8.4. Governing, Law and Jurisdiction. The license is sold and delivered in Fort Worth, Texas. 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. 8.5. Severability. In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, the provision will be severed from this Agreement, and such invalidity, unenforceability, or illegality <<vi I l not affect any other provisions of this Agreement. IN WITNESS, the parties have caused this Agreement to be executed as of the date written above. LICENSOR: LICENSEE: �y�dy1Tt�. ur S o 0 00000 X City of Fort Worth_Shah Software License Agreement Case Manager NewGen SHAH SOFTWARE, INC. By: Jagat Shah, President Date: I>) CITY OF FORT WORTH By: 'r Date: +41( 110 isan Alanis Assistant City Manager r AI$04i TTES rMa ./ a ser City Secretary APPROVED TO FORM AND LEGALITY Maleshia B. Farmer Sr. Assistant City Attorney CONTRACT AUTHORIZATION M&C: Not Required Date Approved: Page 7 of 9 W1 CIAL RECORD ©rim SECRETARY F'!f o WORTH, TX I. EXHIBIT A NO. OF LICENSED USERS: 50 (FIFTY) YEARLY LICENSE FEE: 16,200 COMMENCF4MFNT/CONVERSION DATI-.• Upon the Effective Date of the Agreement as defined in the License Agreement Licensee's Initials: C- City of Fort Worth Shah Software License Agreement Case Manager NewGen Page 8 of 9 EXHIBIT B ADDITIONAI. APPLICATIO\S OR MODULES: NONE Licensee's Initials: City of Fort Worth_Shah Software License Agreement Case Manager NewGen Page 9 of 9 Fowr Wornlrr STANDARD FORM ADDIj N 1)LiVI OF THE CITY OF FORT WORTH, TEXAS To: Sales Contract and License Agreement With: Shah Software, Inc. Notwithstanding any language to the contrary in the attached Agreement presented by Shah Software, Inc., ("Contractor") for Client Tracking software upgrade referred to as CaseManager-NewGen ("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," is self -insured and therefore is not required to purchase insurance. To the extent the Agreement requires the City to purchase insurance, the City will provide a letter 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 harm►ess from aamages of any kind or character, such obligations are not binding upon the City. 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 shall not be liable for attorney's fees of Contractor or any third party, or any other fees or penalties or other such obligations. 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 o& conflicts of laws provisions. Venue for any suit brought under this Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. 5. 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 government entity, such provisions are Hereby deleted ana shall have no force or effect. 6. Non Appropriation of Funds: In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed tnat 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 shall 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 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 Act (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, rule or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Contactor prior 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 / 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 shall notify the City immediately if the security or integrity of any City information has been compromised or is 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, egulation or court order. 9. Limitation of Liability: [Intentionally Deleted]. 10. Indemnity: To the extent the attached Agreement requires the City to indemnify Contractor or any third party, the hereby rejects any obligation for the City to comply with an indemnity provision, and any such provision shall be binding on the City only to the extent permitted by law. 11. 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, acts of God, acts of the public enemy, f res, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority. transportation problems and/or any other similar causes, such provision shall apply equally to both parties. 12. Dispute Resolution: To the extent the attached Agreement sets forth a dispute resolution procedure, such provision shall 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 n 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 party shalt be liable for its own expenses, including attorney's fees; however, the parties shall share eaually in the costs of the aroitration. In no event shall the City be required to submit a dispute to binding mediation or arbitration without the City's prior written consent. 13. 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 provision shall be null and void. 14. Conflicting Terms: if any provisions herein conflict with the terms of the attached Agreement, the terms herein shall control. [Signature Page Folows] / S!iah Soft ire. Inc. i\cidcndun Pace 2 ol 3 ACCEPTED AND AGREED: CITY OF FORT WORTH: ■ Musa% �� Alan is Assistant Qity Manager lacy Ka City Secre ary APPROVED AS TO FORM AND LEGALITY: MaleshiaFarmer Sr. Assistant City Attorney CFW 1 shah Softwat'c. Inc. Addet;Cittti}1 SHAH SO T ARE, INC. t Shah ent %J t VA AV- Hic 1 5 CONTRACT AUTHORIZATION: M&C: cit,Or ne-Oti Yea Date Approved: • • 3 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX +-r