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HomeMy WebLinkAboutContract 45191 (2)41174747111! Ay Software Incorporated www. SweepsSoftware. com AGREEMENT FOR SIMMS® This agreement between Sweeps Software, Incorporated, the Supplier, herein after referred to as S.S.I. and the City of Fort Worth, Texas, herein after referred to as the Customer, Appendix 'A', Al►�l'.? Charges for the Period of October 1, 2013 through September 30, 2014 and Appendix `B', AVMS® Site License Agreement' constitute the entire agreement of the parties and shall supersede any prior agreements, either oral or written pertaining to the contemplated services. I. .f71Wl't SOFTWARE / MAINTENANCE PROVIDED S.S.I. agrees to provide to the CUSTOMER the Sll l'S! SOFTWARE SYSTEM. The system includes, but is not limited to, the following modules: Master File Records (MFR) — Establishment and Inventory Information Daily Activity Records (DAR) — Inspection and Time Accounting Information (Includes\ Field Inspections) Investigation Request / Code Enforcement (IR/CE) — Complaint and Code Enforcement Informatio Billing / Permitting — Accounts Receivable Tracking and Permit Generation Card Registration (Reg Card) — Maintains Applicant Information for Food Handlers, Food Managers, Pool Operators or anyone that requires training / registration to be issued a certificate or card. Software updates, Maintenance and Telephone Support are included in the Monthly Charges. II. CHARGES The charges for .f71' 't are based on the number of employees enrolled in the system and the number of permitted inventories carried in the system. Charges are adjusted quarterly. Charges are detailed in Appendix A, STIMin Charges for the period of October 1, 2013 through September 30, 2014 and are estimated charges based upon current operations. The charges for services stipulated herein are subject to revision for any changes the Customer may make to its requirements or for additional work requested which is not set forth in this agreement or in the Appendices. III. PERFORMANCE S.S.I. warrants that the software provided has been tested and will provide the proper results when used in accordance with the manufactures instructions. S.S.I. reserves the right to upgrade, modify, or otherwise enhance, or change, S7►iIIil'. ! whenever necessary or appropriate to the proper utilization of the system. IV. TRAINING AND SUPPORT S.S.I. will provide on -site installation, assistance, and training on SIJ71tVt . In addition, S.S.I. will provide telephone support from approximately 9:00 A.M. Pacific Time until 5:00 P.M. Pacific Time, Monday through Friday, normal holidays excluded. The Customer agrees to allow S.S.I. communications access to provide remote support on a pre -arranged basis. RECEIVED DEC ? r OFFICIAL L ©9 RD CITY SECRETARY Page 1 of 10 16308 Orange Avenue, Paramount, CA 90723 FToW 'TJJ3756-634ii70 562-634-0993 Fax V. BILLING The Customer will be billed on a monthly basis. Charges are adjusted on a quarterly basis, based on the net additions or deletions of employees and permitted inventories in the system. Three (3) monthly invoices will be mailed during the first week of each quarter. Invoices for each month are due and payable no later than the 10'i' day of the calendar month following the month for which the invoice applies See Appendix A for monthly charges. PROPERTY All computer programs, written procedures and similar items provided by S.S.I., are the exclusive property of S.S.I. and shall always remain the property of S.S.I., unless there is an express written provision to the contrary SO7s'H!'t provided to the Customer is the property of S.S.I. and is not for sale. Individual modules provided as a part of SWEEP, contain licensing and expiration routines that will make them unusable, unless the Customer continues their subscription on an annual basis to the system S.S.I. will NOT store NOR be responsible for the Customer s source documents, data, magnetic tapes, diskettes or other media. All Customer data will be stored at the Customer's location, and it is the responsibility of the Customer to properly back up, store and safeguard. All Customer furnished information and data resulting from the operation of S.S.I.'s programs on the Customer's information in connection with this agreement shall be the sole and exclusive property of the Customer. Such information is the propnetary property of the Customer and constitutes government records of the Customer S.S.I. shalt treat the Customer's information as confidential, and shall safeguard it to the greatest extent practicable. Furthermore, S.S.I. agrees that during the term of this agreement it shall not make such information available in any form to any person, other than the Customer, without the pnor written authorization of the Customer Upon termination of this agreement, such information will not be made available by S.S.I. to any person other than a duly authorized representative of the Customer VII LIABILITY In the event of any error, omission, or other problem, whether human or mechanical, on the part of S.S.I., its employees, or S►PTifi't, S.S.I. agrees to correct the software at no additional charge to the Customer. It is expressly understood and agreed that S S.I. SHALL NOT be liable to any third persons for any damages which said third persons may incur, directly or indirectly, as a result of the errors or omissions of the Customer or the Customer's employees. S.S.I. SHALL NOT be liable for failure to perform if due to causes beyond its control, under this contract, if the failure arises from causes beyond the control of and without the fault or negligence of S.S.I Such causes shall include but not be limited to, acts of God, the public enemy, the Government, or contractual capacity fires, flood, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. S.S.I. shall be liable for any and all damages, including personal injury or damage to property, caused by the acts or omissions of its employees agents, officers, or representatives. Page 2 of 10 S.S.I. shall provide the Customer with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement. 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250,000 Property Damage $500,000 Bodily injury per person per occurrence Coverage shall be on any vehicle used by S.S.I., its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non -owned. (c) Worker's Compensation Statutory Limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease — per each employee $500,000 Disease — policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) And minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. 10.2 Certificates Certificates of Insurance evidencing that S.S.I. has obtained all required insurance shall be delivered to the Customer prior to S.S.I. proceeding with any work pursuant to this Agreement All policies shall be endorsed to name the Customer as an additional insured thereon as its interests may appear. The term Customer shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services Any failure on the part of the Customer to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the Customer. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto S.S.I.'s insurance policies. Notice shall be sent to the Risk Manager City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. Page 3 of 10 VIII REPRESENTATIONS This agreement, Appendix 'A', Sit PS® -- Charges for the Period of October 1, 2013 through September 30, 2014 and Appendix B', SUMPS® -- Site License Agreement shall constitute the entire agreement of the parties and shall supersede any prior arrangements, either oral or written pertaining to the contemplated services This agreement shall be governed by the laws of the State of Texas, and applicable Federal Law. The terms and conditions of this agreement may be changed by written mutual consent. The provisions of this agreement are severable: and if for any reason any one or more of the provisions contained herein are held to be invalid, illegal, or unenforceable in any respect, the individuality, illegality or un-enforceability shall not affect any other provision of this agreement and this agreement shall remain in effect and be construed as if the invalid, illegal, or unenforceable provisions had never been contained in the agreement. IX ANNUAL PRICE ADJUSTMENT S.S.I. reserves the right to modify or change S117i71PS® prices on an annual basis. Customer will receive written notice of S.S.I 's intent to modify or change the existing prices no later than ninety (90) days prior to the expiration date of the contract year. X. FUNDING Availability of Funds: The parties agree that this Agreement and all claims, suits, or obligations arising under or related to this Agreement are subject to and limited to the availability of funds appropriated by the Fort Worth City Council, for the purposes of this Agreement or for the respective claim, suit, or obligation, as applicable. The Customer agrees to place the above notices relating to availability of funds, the source of funds, and legal authority in all subcontracts ASSIGNMENT S S I and the Customer bind themselves and any successors and assigns to this agreement. Neither S.S.I. nor the Customer shall assign, sublet, or transfer its interest in this agreement without written consent of both, and any attempted transfer without such consent is void. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of S.S.I., or the Customer, nor shall it be construed as giving any rights or benefits hereunder to anyone other than to S.S.I. and the Customer. Notwithstanding any provisions relating to assignment in the Uniform Commercial Code, no delegation by a party hereto of any duties or obligations nor assignment by a party hereto of any rights under or interests in the agreement will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, monies that may become due and monies that are due may not be assigned without such consent (except to an extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this agreement. S.S.I. and the Customer each binds itself, its partners, successors, assigns and representatives to the other party hereto, its partners, successors assigns and representatives in respect to all covenants, agreements and obligations contained in the agreement. Page 4 of 10 X[I. WAIVER OF SOVEREIGN IMMUNITY S.S.I. and the Customer hereby agree that this Agreement does not waive the Customer s sovereign immunity relating to suit, liability and the payment of damages. The parties further agree that all claims, suits or obligations arising under or related to this Agreement are subject to and limited to the availability of funds appropriated by the Fort Worth City Council for that respective claim, suit, or obligation. XIII SEVERABILITY Any provision of this agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon S.S.I. and the Customer. In such an event, it is herein agreed by S.S.I. and the Customer that the agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision In the absence of reformation, this agreement shall remain in effect and be construed as if the invalid, illegal or unenforceable provision had never been contained in the agreement. XIV GOVERNING LAW AND VENUE S.S.I. and the Customer agree that the laws of the State of Texas shall govern the validity and construction of this agreement, except where preempted by Federal law. Should any action, real or asserted, at law or in equity, arise out of the terms and conditions of this agreement, venue for said action shall be in Tarrant County, Texas. XV. RIGHTS AND REMEDII-4S NOT WAIVED In no event shall the making by the Customer of any payments to S.S.I. constitute or be construed as a waiver by the Customer of any breach of covenant or any default which may then exist, and the making of any such payment by the Customer while any such breach or default exists shall in no way impair or prejudice any right or remedy available to the Customer with respect to such breach or default. Any waiver by either party of any provision or condition of this agreement shall not be construed or decreed to be a waiver of any other provision or condition of this agreement, nor a waiver of a subsequent breach of the same provision or condition, unless such waiver be expressed in writing by the party to be bound. XVI. TERMINATION The Customer may terminate this contract without cause by giving ninety (90) days written notice to S S.I. provided that such termination shall be without prejudice to any other remedy the Customer may have In the event of termination, any work in progress will continue to completion unless specified otherwise in the notice of termination S.S.I. may terminate this contract without cause by giving ninety (90) days written notice to the Customer, provided that such termination shall be without prejudice to any other remedy S.S.I. may have. In the event of termination, any work in progress will continue to completion unless specified otherwise in the notice of termination. The Customer may terminate this agreement for failure of S.S.I. to comply with the terms of this agreement In the event the Customer decides to terminate S.S.I. s contracted services, the Customer will provide S.S I. with written notice ninety (90) days prior to termination of the agreement. S.S.I may terminate this agreement for failure of the Customer to comply with the terms of this agreement. In the event S.S.I. decides to terminate services contracted by the Customer, S.S.I will provide the Customer with written notice ninety (90) days prior to termination of the agreement. Page 5 of 10 In the event either party defaults in the performance of any of its obligations under this contract, misrepresents to the other a material fact, or fails to notify the other party of any material fact which would affect the party's performance of its obligations hereunder, the non -defaulting party shall have a right to terminate this contract upon giving the defaulting party written notice describing the breach or omission in reasonable detail. The defaulting party shall have a ninety (90) day period commencing upon the date of notice of default in which to effect a cure If the defaulting party fails to effect a cure within the aforesaid ninety (90) day period, or if the default cannot be cured, the contract shall terminate as of the date provided in the notice of default. XVII. FORCE MAJEURE S.S.I. shall not be deemed to be in default because of any failure to perform under this contract, if the failure arises from causes beyond the control and without the fault or negligence of S.S.I. Such causes shall include acts of God acts of the public enemy, acts of Government, in either its sovereign or contractual capacity fires flood, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. If the failure to perform is caused by the failure of a subcontractor of S.S.I 's to perform, and if such failure was beyond the control of both S.S.I and the subcontractor, without their fault or negligence, S.S.I. shall not be deemed to be in default unless the subcontracted supplies or services were reasonably obtainable from other sources. Alternatively, if at any time during the term of this contract the work of S.S.I. fails to meet the specifications of the contract documents, the Customer may notify S. S.I of the deficiency in writing Failure of S.S.I to correct such deficiency and complete the work required under this contract to the satisfaction of the Customer within ten days after written notification shall result in termination of this contract. S.S.I. shall pay all costs and attorneys fees incurred by the Customer in the enforcement of any provision of this contract. The remedies provided for herein are in addition to any other remedies available to the Customer elsewhere in this contract. This shall be reciprocal where neither party is liable or deemed to be in default for a force majeure event. XVIII AUTHORIZATION The undersigned officer and/or agents of the parties hereto are properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions extending such authority have been duly passed and are now in full force and effect. XIX. 1'FRM of AGREEMENT This agreement is in effect when all parties have signed and is valid for the period of October 1, 2013 through September 30, 2014, subject to paragraphs IX and XVI. The terms and conditions of this agreement may be changed by written mutual agreement at any time. Page 6 of 10 APPENDIX A: MITI NC CHARGES S717/BPI4® Charges for City of Fort Worth, Texas October 1, 2013 — September 30, 2014 Charges for S►171/1/'S® are based on: The number of Active Employees enrolled in the system and, the number of Active Inventories. The charge for Employee's enrolled in the system is $33.00 each per month. The charge for Permitted Inventories `Site' is $0.33 each per month. The estimated charges for siEiJiiit�® are based on the Employee, and Inventory counts from current operations. SWUIJI%® CHARGES 18 EMPLOYEES @ $33.00/ea/mo $ 594.00 7,150 PERMITI'hD INVENTORIES @ $0.33/ea/mo $ 2,359.50 MONTHLY COST $ 2,953.50 ANNUAL COST $ 35,442.00 ACTUAL MONTHLY CHARGES ARE BASED UPON QUARTERLY COUNTS PROVIDED BY THE CUSTOMER MONTHLY CHARGES WILL BE ADJUSTED QUARTERLY Page 7 of 10 SIIVERS' Software Incorporated www. SweepsSoftware. com .3717181 Site License Agreement — Appendix `B' IMPORTANT: READ THIS LICENSE AGREEMENT CAREFULLY GRANT OF LICENSE S.S.I., grants to the Customer — a non -transferable, non-exclusive license — to use the software system, programs and documentation referred to herein as tWEE/ t This is a LICENSE AGREEMENT and NOT an agreement for sale. S.S.I., owns SIIMS®, which is copyrighted, and has proprietary rights in the product. You are purchasing a revocable license to use the system. You obtain no rights other than the license granted by this agreement. Title to AVMS® and any copy made of it, is retained by S.S.I. The Customer does not receive any, and S.S.I., retains all ownership rights in Sii7iiiiS®. This agreement and any of the licenses, programs, or materials to which it applies may not be assigned, sub -licensed or otherwise transferred by the Customer without written consent from S.S.I. LIMITED WARRANTY AND LIABILITY S.S.I., warrants that A71711110e will perform in compliance with the documentation and instructions, when used on computer hardware approved by S.S.I. S.S.I., does not warrant that sII7szfIA®, will operate error free or uninterrupted, or that all non -conformities can or will be corrected. S.S.I., does not warrant statements, or claims by other parties. Should the software fail to operate as warranted, S.S.I., shall promptly, upon notice, replace or correct the defective software. This shall be the only liability of S.S.I., with respect to the software product or license. In no event shall S.S.I. be liable for any damages, claim or loss incurred by user, including without limitation, compensatory, incidental, indirect, special, consequential, or exemplary damages, lost revenues, or expenditures resulting from lost data or the Customer's inability to use the data or the product. The CUSTOMER assumes all responsibility for the use of the product to achieve the intended results, and for the results obtained from the product. software is provided subject to the warranty and remedy just expressed, and is in lieu of all other warranties of any kind, either expressed or implied, but not limited to the implied warranties of merchantability and fitness for a particular purpose, both of which are specifically excluded. S. S.I. agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the Customer for infringement to any patent, copyright, trade secret, or similar property right arising from Customer's use of the software in accordance with this agreement. S.S.I. 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 Customer agrees to cooperate with it in doing so. Customer agrees to give S.S.I. timely written notice of any such claim or action, with copies of all papers Customer 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, S.S.I. shall, at its own expense and as Customer's sole remedy, either: (a) Page 8 of 10 16308 Orange Avenue, Paramount, CA 90723 800-327-9337 562-634-1170 562-634-0993 Fax procure for customer 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 Customer's authorized use of the software; or (c) replace the software with equally suitable compatible, and functionally equivalent non -infringing software at no additional charge to Customer; or (d) if none of the foregoing alternatives is reasonably available to S.S.I , terminate this agreement and refund to Customer the payments actually made to S.S.I. under this agreement. NUMBER OF MACHINES THAT S717lf1f't MAY BE INSTALLED ON S117Nf'S® licensed under this agreement authorizes the Customer to use S117lBPt on as many single -user P.C. computer systems, or as many multi-user (networked) computer systems, or any combination thereof, as desired, provided they adhere to the pricing provisions of the `AGREEMENT FOR SA7lfl't'. PERMISSION TO COPY LICENSED PROGRAMS No right to print or copy, in whole or in part, S7171fi t licensed program(s), documentation, procedures, or any related materials is granted except as herein expressly provided. The programs and their related documentation are copyrighted Any licensed programs which are provided by S. S.I. in machine readable form may be copied for back-up or archive purposes only. The Customer agrees to maintain appropriate records of the number and location of all such copies of S117111'S®. The original and any copies of S717l11f't licensed programs, in whole or in part, which are made by the Customer shall be the property of S.S.I. except for the media on which the licensed programs are recorded. The Customer agrees to reproduce and include the copyrighted notice of S.S I. on all copies, in whole or in part, in any form, including partial copies of licensed programs made hereunder. You may not copy, reverse engineer (de -compile), translate, port, merge, modify, or make derivative works of 5117111n. You may not rent, disclose publish sell, assign, lease, sub -license, market, or transfer Sll'flfs7'S° or use it in any manner not expressly authorized by this agreement. You shall not alter or remove any copyright notice or proprietary legend contained in or on SINNJII't. PRO 1tCTION AND SECURITY The Customer agrees NOT to provide or otherwise make available any portion of SIIWI /'t including but not limited to object code in any form, to any person other than Customer, or S.S.I. employees, without prior written consent from S S I , except for purposes specifically related to the Customer's use of the licensed program. TERM OF AGREEMENT The term of this agreement is referenced in and stipulated by 'The Agreement For S7171h1't' which is a part of this 'Site License Agreement'. MISCELLANEOUS This 'Site License Agreement' shall be governed by the laws of the State of Texas and applicable Federal law, and shall inure to the benefit of S.S.I , its successors, administrators, heirs and assignees Any litigation arising from the use of the programs must be filed in Tarrant County, Texas. If any provision of this agreement is declared invalid or unenforceable, the remaining provisions of this agreement shall remain in full force and effect. Any notice under this agreement shall be delivered by U.S. Certified Mail return receipt requested to the following address: Sweeps Software, Incorporated 16308 Orange Ave. Paramount, Ca 90723 Page 9 of 10 �' Charges N. �1'L� � s and Appendix A" b the tern . agreement, Alp be bound Y e read this a�, and agree to that you hav them fee A understand t you ac'now Agreement, agree nen Y Site License this�� � �y signing dux �► : � ents . and ��pen theso agreements. gree . conditions of co Accepted BY Incorporated Sweeps SoftvIare' In n. 'thrasher 'Kevin. pre sidentICE0 Date: AcceptedBy: -�'o�h, Texas City °� -Fort °rt cipitoxitiCtg t€11.1, OFFICIAiL REIf{��',�` CITY �EC�ETAIFS' Ft WORTH, TY