HomeMy WebLinkAboutContract 44877 (2)SOFTWARE LICENSE AGREEMENT
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THIS SOFTWARE LICENSE AGREEMENT (th2 "Agreemenf') is made on August 5, 2013 (the "Effective Date"), by and between Cooper Notification, Inc., a Delaware Corporation
aulhorized to do business in Commonwealth of Virginia, with its principal offices located at 103 W Broad Street, Suite 500, Church Falis, VA, 22046 ("Cooper Notificafion"), and
City of Fort Worth, (the "Customer'�, a Texas home rule municipality with principal offices located at 1000 Throckmorlon Street, Fort Worth, Texas 76102:
CUSTOMER HAS READ AND AGREES TO BE LEGALLY BOUND BY ALL OF THE FOLLOWING TERMS AND CONDITIONS (INCLUDING THE ATTACHMENTS AND
APPENDICES THERETO), ALL OF WHICH ARE INCORPORATED FULLY INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
By:
Name:
Title:
Date:
A. Definitions.
COOPER NOTIFICATION, INC.
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David Lowrey -
Vice President Finance
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CITY OF FORT WORTH
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Name: (_�`j 1����i(,( �
Title: A�.�� 1�TI� I�h" C �'l�� I��€�l�rf�t�C,� )
Date: � j�,
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TERMS AND CONDITIONS
All capitalized terms used in this Agreement or in the Attachment or Appendixes to this
Agreement shall have the respective meanings ascribed to them in this Agreement or
in the glossary set forlh in Attachment 1, hereto. All capitalized terms used in this
Agreement, unless indicated othenvise, include all derivative forms and variations of
ihe terms.
B. Grant and Scope of License
1. Subject to the terms and conditions of this Agreement, Cooper Notification hereby
grants Customer a non-exclusive, non-transferable license to (i) Run and use the
software product(s) identified in Appendix A, (the "Producf') as well as any Updates
provided by Cooper Notification, and (ii) use the related documentation in connection
with Customer's authorized use of the Product. (The Product, any Updates fhereto, and
the related documentation, are collectively referred to in this Agreement as the
"Licensed Producf'.)
2. "Customer's Enterprise" means the Customer specifically named above, but
expressly excludes any Customer Affiliates. The Licensed Product may only be used
within Customer's Enterprise in accordance with Customer's authorized use as defined
in Section B3 on an application service provider ("ASP') basis.
3. Authorized Use. In consideration of the License Fees payable hereunder,
Customer may send notification(s) using the Licensed Product only to the size of the
licensed recipient population identified in Appendix A, Section C. Customer may
authorize only those individuals io send notification(s) using the Licensed Product who
are: (1) part of Custome�'s Enterprise, or (2) acting on behalf of Customer's Enterprise
and carrying out the purpose of Customer's Enterprise.
In no event shall any message(s) be transmitted for the benefit of a ihird party by
Customer or an outside entity using Customers Licensed Product. Any oiher use of
the Licensed Product is prohibited.
Any expansion of or addition to the size of Customer's licensed recipient population
shall require payment oi additional License Fees and where applicable, Support Fees
in accordance with Section C below.
4. As between the parties, all rights, title and interest in and to the Licensed Product
(and any derivative works thereto) and all underlying Intellectual Property Rights
thereto, are and at all times will be, the sole and exclusive property of Cooper
Notificalion or its licensors, as the case may be. The Licensed Product may not be
used for the benefit of any third parties not authorized herein, including without
limitation, in an outsourcing, timesharing, or ASP arrangement, or in the operation of a
service bureau. Except as expressly set forth in this Agreement, Customer acquires no
rights in or to the Licensed Product and Customer shall not use the Licensed Product
other than as specifically set forth in this Agreement.
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5. Customer may make �'reasona�6T�nurrl6�
bona fide back up purposes only. All such
conditions of this Agreement.
6. Cusiomer shall not (and shall not permi
reverse engineer, merge, adapt or modify tf
way, and no derivative work may be created
(and shall not permit any other party to) �
device, procedure, protocol, or mechanisi
require or establish with respect to ihe Licen.
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Product for
terms and
any
not
7, Customer shall not delete, alter, cover, or distort anycopy��lemark, or other
proprietary rights notice placed by Cooper Notification on or in the Licensed Product,
and shall ensure that all such notices are reproduced on all copies of the Licensed
Product.
8. All rights not expressly granted in this Agreement are reserved to Cooper
Notification.
C. License and Support Fees
1. Customer agrees to pay Cooper Notification or the contractor or reseller supplying
the Licensed Product the License Fees for the Licensed Product in the amounts as set
forlh in Appendix A, Section C, (the "License Fees.") For Support Services, Customer
agrees to pay Cooper Noiification or the contractor or reseller supplying the Licensed
Product the fees provided under Section G, below (the "Support Fees"), in the
amounts and according to the schedule set for�h in Appendix A, Section C. All License
Fees and Support Fees for the Licensed Product and Supporl Services are due and
payable within Thirty (30) days of the date of invoice. Any additional and/or
subsequent License Fees and Support Fees are due and payable within thirty (30)
days of the date of Customer's receipt of invoice. Renewal / Support fees are due prior
to the renewal date.
2. All License Fees and Support Fees are exclusive of all iaxes. Customer is a tax
exempt enlity and shall not be responsible for any taxes under this Agreement.
D. Confidentialitv / Unauthorized Access
1. Each party agrees to secure and protect the Confidential Information of the other
using at least as great a degree of care as it uses to protect own confidential
information of a similar nature, but in no event less than reasonable care. Each party
agrees to hold the Confidential Information of the other parly in confidence and not
disclose it to third parties. Neither party may use Confidential Information in any way,
commercially or othenvise, except in �e�f if�?��i u der this
Agreement �� ������� ������
2. Notwithstanding Section D(1), Confidei
information which: (i) is, as of the time of
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include
part of
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the public domain without the fault of the receiving party; (ii) was rightfully known to the
receiving party without obligation of confidentiality at the time of its disclosure; (iii) is
ir�dependently developed by the receiving party without fhe use of the disclosing party's
Confidential Information; (iv) is subsequently learned from a third party that has the
right to disciose the Confidential Information and is not under a confidentiality obligation
to the disclosing party; or (v) is required to be disclosed by law, rule, regulation or court
order. A party may disclose Confidential Information ihat is required to be disclosed
pursuant to a duly authorized subpoena, court order, or government authority or that is
required to be disclosed under the United States Freedom af Information Act, provided
that the party subject to same provides prompt written notice to the other party prior to
such disciosure, enabling such other party to seek a protective order or other
appropriate remedy.
3. D. Confidentiality/Unauthorized Access
3. Cooper Notification shall store and maintain Confidential Information and Customer
Information in a secure manner and shall not allow unauthorized users to access,
modify, delete or otherwise corrupt Customer Information in any way. Customer
Information shall mean any information collected, assembled, maintained, or provided
by Customer that identifies an individual and is "personal identifying information" or
"sensitive personal information" within the meaning of Section 521.002 of the Texas
Business and Commerce Code. Cooper Notification shall notify the Customer
immediately if the security or integrity of any Confidential Information or Customer
Information has been compromised or is believed to have been compromised, in which
event, Cooper Notification shall, in good faith, use all commercially reasonabie efforts
to cooperate with the Customer in identifying what information has been accessed by
unauthorized means and shall fully cooperate with the Customer to protect such
information from further unauthorized disclosure.
E. Term and Termination
1. The term of the License granted in Section B1 shall extend until terminated as
otherwise provided herein.
2. The term for the Standard Maintenance and Support Services set forth in Appendix
A, Section D shall be deemed to have commenced on the Effective Date and shall
continue for a period of 3 years ("Maintenance Term") unless earlier terminated
pursuant to the terms of this Agreement.
3. In accordance with applicable regulations, either party may terminate this Agreement
with written notice if the other party fails to comply with any material term or condition of
this Agreement and fails to remedy such breach within thirty (30) days of receipt of
written notice of such breach.
4. In addition to the foregoing, either party may terminate this Agreement if the other
party makes a general assignment for the benefit of creditors, files a voluntary petition
of bankruptcy, suffers or permits the appointment of a receiver for its business or
assets, becomes subject to any proceedings under any bankruptcy law, or has
liquidated its business voluntarily or otherwise, and the same has not been discharged
or terminated within forty-five (45) days.
5. In addition, either party may terminate ihis Agreement at any time for any reason,
after the first year of service, upon thirty (30) days written notice to the other party. In
the event Cooper Notification, within one (1) year from the Effective Date, terminates
this Agreement pursuant to ihis Section E5, Cooper Notification shall promptly refund to
Customer a pro-rated porfion of the License Fees paid by Customer for the remainder
of the license year in which the termination is effective, and a pro-rated portion of any
pre-paid Support Fees based upon the unexpired period of the Maintenance Term.
Notwithstanding the foregoing, in the event no funds or insufficient funds are
appropriated by the Customer in any fiscal period for any payments due hereunder,
Customer will notify Cooper Notification of such occurrence and this Agreement shall
terminate on the last day of the fiscal period for which appropriations were received
without penalty or expense to the Customer of any kind whatsoever, except as to the
portion of the payments herein agreed upon for which funds have been appropriated.
6. Immediately upon termination of this Agreement, the Customer shall: (i) pay all
amounts owed to Cooper Notification; (ii) cease all use of the Licensed Product; (iii)
return to Cooper Notification all copies of the Licensed Product and any other
Confidential Information or proprietary materials of Cooper Notification in its possession
or control or in escrow; and (iv) certify in writing Custome�'s compliance with this
Section E6.
F. Warranties and Disclaimer; Limitation of Liabilitv; Indemnification
1. Cooper Notification warrants that it has the full authority to grant the rights granted to
Customer herein, EXCEPT FOR THE FOREGOING EXPRESS WARRANTY,
COOPER NOTIFICATION DISCLAIMS ANY AND ALL WARRANTIES WITH
RESPECT TO THE LICENSED PRODUCTS AND UPDATES, WHETHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NONINFRINGEMENT. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY,
THE LICENSED PRODUCTS AND UPDATES ARE PROVIDED "AS IS" AND WITH
ALL FAULTS, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT IT
ASSUMES ALL RISKS OF THE USE, QUA�ITY, AND PERFOr�MANCE THEREOF.
2. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTA�, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE,
OR COVER DAMAGES, INCLUDING WITHOUT �IMITATION, �OSS OF PROFITS,
REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES (PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT
APPLY WITH RESPECT TO DAMAGES FOR BODILY INJURY OR DEATH OR
DAMAGES FOR BREACH OF SECTION D. EXCEPT FOR DAMAGES RESULTING
FROM COOPER NOTIFICATION'S GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT, COOPER NOTIFICATION'S TOTAL AGGREGATE LIABILITY
ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY REASON SHALL
BE LIMITED TO DIRECT DAMAGES UP TO THE TOTAL AMOUNT OF LICENSE
FEES PAID BY CUSTOMER TO COOPER NOTIFICATION HEREUNDER DURING
THE TERM. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION
IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF
WARRANTY, STRICT LIABILITY, NEGLIGENCE AND OTHER TORTS. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND
EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM
BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO
NEGLIGENCE), BY OPERATION OF LAW OR OTHERWISE. LIABILITY FOR
DAMAGES SHALL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE
REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL
PURPOSE.
3. Customer shall promptly notify Cooper Notification in writing prior to adding to
or expanding the size of Customer's licensed recipient population beyond that
indicated in Appendix A, Section C. Customer shall keep records relating to the
Licensed Product and its use. These records must be sufficient to allow Cooper
Notification to verify compliance with Customer's obligations under this
Agreement. Cooper Notification has the right to review such records, upon
reasonable notice to Customer, for as long as Customer's license under Section
Bi shall extend and for a period of two (2) years thereafter. If any such review
discloses use of the Licensed Product in violation of the terms of this Agreement,
upon written notice from Cooper Notification, Customer shall either immediately (i)
cease its use which is in violation of the terms of this Agreement and (b) pay to
Cooper Notification any and all fees and/or other amounts required to place
Customer in compliance with the terms of this Agreement commencing from the
date of the violation.
4. Cooper Notification agrees to indemnify and defend Customer from and against any
action, claim, demand, or tiability, including reasonable attorney's fees and costs,
arising from or relating to a claim that the Licensed Product infringes upon ihe copyright
of a ihird party. if the Licensed Product is held by a court of competent jurisdiction to
infringe a third party copyright, or if in Cooper Notification's opinion, such a claim of
copyright infringement is likely to occur, Cooper Notification may, at its sole option and
expense: (i) procure for Customer the right to continue using the Licensed Product; or
(ii) repiace or modify the Licensed Product so that it becomes non-infringing as long as
functionality is not materially and adversely affected, or (iii) refund to Customer a
portion of the License Fee paid by Customer and accept Custome�'s return of the
Licensed Product and termination of this Agreement. THIS SECTION F(4) STATES
COOPER NOTIFICATION'S ENTIRE LIABILITY AND OBLIGATION, AND
CUSTOMER'S EXCLUSIVE REMEDY, FOR INFRINGEMENT OF INTELLECTUA�
PROPERTY RIGHTS.
5. Cooper Noiification shall have no liability or obligation under Section F(4) above,
arising from or related to: (i) the Running of the Licensed Product after Cooper
Notification has notified Customer to discontinue Running due to an infringement claim
(existing or prospective); (ii) the combination, operation or use of the Licensed Product
with technology or other materials not supplied by Cooper Notification for such
purpose; (iii) the alteration or modification of the Licensed Product by Customer; or (iv)
the use of a version of the Licensed Product that has been superseded by a newer
version, if the infringement would have been avoided by use of a more current version
which Cooper Notification has provided or made available to Customer.
I' : -
6. Intentionally Deleted.
7. Customer acknowledges data entered into the software product is unencrypted and
agrees to assume fuli responsibility for all data and information stored in or transmitted
through the software product to ensure storage of such data does not violate any
Federa�, state and local laws and regulaiions.
G. Maintenance and Support
1. During the Maintenance Term and subject to the terms and conditions of this
Agreement, Cooper Notification agrees to provide the maintenance and support
services as set forth in Appendix A, Section D(collectively, the "Support Services") for
the Licensed Product, The parties agree that Cooper Notification shall have no
obligation to provide any maintenance or support-related services under this
Agreement except as expressly set forth in such Appendix A.
2. Customer wiil designate, in writing, no more ihan two (2) persons who will be
Customer's primary support contacts for Support Seroices (the "Support Contacfs").
Customer agrees that all Support Services inquiries from Customer's individual users
will be directed to a Support Contact and Customer's communications with Cooper
Notification for Support Seroices will be solely through the Support Contacts. In
addition, Customer agrees that Cooper Notification may contact, upon approval by
Customer, Customer's third party telecommunications carriers and Internet Service
Providers, including without limitaiion, cell phone, pager and similar carriers, on
Customers behalf, regarding issues relating to the technical support and maintenance
of the Licensed Product.. Any delay or interruption in service based upon Customer's
failure to provide approval or failure to provide approval in a timely manner shall be at
no fault of Cooper Notification.
3. All Updates and all other deliverables and work product hereunder provided to
Customer shall be subject to the terms and conditions of this Agreement, unless
othenvise expressly agreed in writing by Cooper Notification. Support Services extend
only to the Licensed Product free of any additions or modifications that have not been
made or sold by Cooper Notification or its agents.
4. Customer acknowledges and agrees that the Support Services, Updates, and all
other results of Support Services hereunder, and all work product and deliverables
thereof (collectively, the "Cooper Notificafion Materials'�, are the sole and exclusive
prope�ty of Cooper Notification, including ail woridwide Intellectual Property Rights
embodied in, related to, or represented by, the Cooper Notification Materials.
H. General
1. The failure by either party to exercise or enforce any right under any provision of this
Agreement shall not be deemed a waiver of such provision or the right of such party
to ihereafter enforce such provision or right, or a waiver of any other provision or
right of such party under this Agreement.
2. Modifications of this Agreement shall be binding only if made in writing and signed
by authorized representatives of both parties.
3. This Agreement (inciuding the Attachments and Appendices hereto,) contains the
pa�ties' entire agreement and understanding with respect to the subject matter
hereof and supersede all prior oral and written agreements and understandings
related thereto. If any purchase order for the Licensed Product contains any
provision inconsistent with or contrary to any provision of this Agreement, such
purchase order term shali be of no effect and shall form no part of any contract
between the parties related hereto.
4. If any provision of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal or unenforceable, such provision shall be interpreted or limited so as
to best accomplish the intent of the parties within the limits of applicable law, and the
remaining provisions contained in this Agreement will remain in full force and effect
(so long as such remaining provisions continue to substantially reflect the original
intent of the parties).
5. Customer may not assign this Agreement without Cooper Notification's prior written
consent. Cooper Notification may assign this Agreement to any of its affiliates or
any entity that gains majority control of its assets without Customer's consent;
however, Cooper Notification shall provide Customer with 30 days written notice of
any such assignment. Any assignment not authorized herein in this section shall be
considered null and void and have no effect. This Agreement shail be binding upon
and inure to ihe benefit of the parties hereto and their respective heirs, successors
and permitted assigns.
6. Neither party shall be responsible for any delay in performing or failure to perform
due to circumstances beyond its reasonable control, inciuding without limitation, acts
of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities,
fire, flood, earthquake or labor strike ("Force Majeure Event"). The party claiming
the benefit of a Force Majeure Event shall prompily notify the other party of the
occurrence and the anticipated duration of such Force Majeure Event, and shall
promptly resume performance at the end of such Force Majeure Event. Either party
shall have ihe right to terminate this Agreement in the event that a Force Majeure
Event continues for a period of sixty (60) consecutive days. Notwithstanding the
foregoing, ihe obligation to pay amounts due and owing under this Agreement that
arose prior to the occurrence of the Force Majeure Event shall not be extinguished
or delayed by virtue of the Force Majeure Event or the termination of this Agreement
by reason thereof.
7. Customer acknowledges that the laws and regulations of the United States restrict
the export and re-export of certain software. Accordingly, Customer shall not export,
directly or indirectly, all or part of the Licensed Product, or any product or other
materials derived therefrom, to any country without the appropriate United States
and/or foreign government licenses. Customer shall not export (including, without
limitation, via the Internet) the Licensed Product to any country subject to US
embargo.
S. All notices required or permitted to be given hereunder shall be in writing and shall
be delivered by personal delivery, by registered or certified mail, postage prepaid
and return receipt requested, or by courier, to the address set forth in this
Agreement or to such oiher address as a party may designate in writing from time to
time by notice given in accordance with the provisions of this sentence.
9. Any claim or dispute arising in connection with this Agreement which is not settled
by the parties within sixty (60) days after notice is first given by either party to the
other may be submitted to non-binding mediation under the applicable American
Arbitration Association Commercial Arbitration Rules., Either party may request a
court of competent jurisdiction to provide interim relief without waiving this
agreement to mediate disputes. Each party shail pay for and bear the costs of its
own experts, evidence and legal counsel and its own pro-rata share of the cost of
mediation.
10The provisions of this Agreement which by their nature or express language are
intended to suroive the termination or expiration of this Agreement, including without
limitation, Sections B4-8, D, E, F, G4, and H, shall so survive,
11 Cooper Notification may include Customer's name, logo and summary description of
its use of the Licensed Product in Cooper Notification's published customer list,
12The relationship of the parties under this Agreement is that of independent
contractors, and neither party shall have any authority to bind or commit the other.
Nothing herein shall be deemed or construed to create a joint venture, partnership or
agency relationship between the parties for any purpose.
13.This Agreement shall be interpreted, construed and governed in accordance with
and by the substantive laws of the State of Texas, without regard to its principles of
conflict of laws. Venue for any action brought pursuant to this Agreement shall be in
the state courts of Tarrant County, Texas, or the United States District Court for fhe
Northern District of Texas, Fort Worth Division.
Page 3
Attachment 1
Glossary of Defined Terms
1. "Customer Affiliates" means any legal entity that Customer now or hereafter owns or controls, or a company that owns or controls Customer, or a
company that is owned or controlled in common with Customer. For the purpose of this definition, "own or control," means ownership or control,
directly or indirectly, of more than fifty percent (50%) of the stock having the right to vote for directors thereof. If Customer is a governmental entity,
Customer Affiliate means any related agency, branch, federal, state, county or city governmental entity.
2. "Rur�' means to copy, install, use, access, display, run, and otherwise interact with, in its intended manner.
3. "Delivery Dafe"shall mean the day agreed upon by the parties for Cooper Notification to present the Licensed Product to Customer for delivery and
installation, provided Cooper Notification makes a reasonable attempt to do so on that day.
4. "Object Code" shall mean the human-readable version of the Licensed Product supplied to Customer hereunder.
5. "Intellectual Properfy Righfs" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual
property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights.
6. "Updates" means any update, patch, bug fix or minor modification to the Licensed Products that Cooper Notification provides to Customer. Once
provided, each Update shall be deemed to be included within the Licensed Product.
7. "Confidenfial lnformafio►�' means information that the other party considers to be confidential, business and technical information, marketing
plans, research, designs, plans, methods, techniques, processes and know-how, whether tangible or intangible and whether or not stored, compiled
or memorialized physically, electronically, graphically or in writing, and which is identified to the other party in writing or orally as "confidential" or
"proprietary."
8. "Trave/ Expenses" means any costs incurred by Cooper Notification associated with the transportation, storage or lodging of equipment, supplies,
Cooper Notification employees and consultants and other items necessary for business use from Cooper Notification headquarters to Customer's
facilities. Travel expenses may include, but are not limited to, airfare, hotel costs, and meals if applicable. [If Customer is a governmental entity,
any Travel Expenses paid by the Customer shall be approved by Customer in advance and shall be paid at allowable government travel rates.
9. "Travel Time" means the hours and minutes elapsing during transportation of Cooper Notification personnel from Cooper Notification headquarters
to Customer's facilities. Travel time shall not include the first hour of transportation from Cooper Notification headquarters to Customer's facilities or
from Customer's facilities to Cooper Notification headquarters.
�• : - .
Appendix A
A. • Licensed Product:
The Licensed Product includes server-sitle, Linux-based Roam Secure Alert Network ("RSAN'� software, which consists of the RSAN database scheme, core alert
processing module and web-based user, manager and administrator interface files. RSAN is distributed as a single RPM (Red Hat Package Manager) package - the
standard method of distributing software products on this platform. Based upon the Customer's exact configuration, installation and/or upgrades of certain other packages
that RSAN uses may be required.
Note: RSAN is engineered and tested to run at peak performance on specified server hardware. Cooper Notification makes no recommendations or warranties with
respect to performance, functionality, reliability or any other matter concerning the equipment set forth on the Standard Hardware List (including, without limitation,
performance of such equipment with the Licensed Product) and accepts no responsibility or liability with respect thereto).
Note also: RSAN is engineered to provide optimal delivery speeds and performance. Also, due to the unpredictable and uncontrollable results that may occur when using
a mail relay with RSAN, Cooper Notification makes no warranty, promise or guarantee regarding RSAN's performance shouid Customer deploy RSAN with a mail relay
system.
NOTWITHSTANDING ANYTHING SET FORTH IN THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN ANY ATTACHED APPENDIX), SHOULD CUSTOMER
ELECT TO IMPLEMENT RSAN USING A MAIL RELAY AND/OR NON-STANDARD NARDWARE, COOPER NOTIFICATION ASSUMES NO RESPONSIBILITY Ofi
LIABI�ITY FOR ANY FUNCTIONA� AND/OR PERFORMANCE PROBLEMS THAT MAY RESULT. DUE TO THE UNPREDICTABLE AND UNCONTROLLABLE
RESULTS THAT MAY OCCUR WHEN USING A MAIL RELAY AND/OR NON-STANDARD HARDWARE FOR RSAN, COOPER NOTIFICATION MAKES NO
WARRANTY, PROMISE OR GUARANTEE REGARDING RSAN'S ABILITY TO FUNCTION IN ACCORDANCE WITH ITS EXPECTED PERFORMANCE. COOPER
NOTIFICATION MAKES ONLY THE REPRESENTATIONS, WARRANTIES, PROMISES AND GUARANTEES EXPRESSLY SET FORTH IN THE AGREEMENT.
B. Installation Fees:
Cooper Notification will assist Customer with all installations, the costs of which are included in the License Fees and consist of Technical and Project Management
support in the amount specified below. Additional hours may be purchased in accordance with Cooper Notification's current Commercial Price List for such services,
Project Management/Technical Implementation Hours � 58
C. License Fees and Other Fees:
The License Fees payabie by Customer to Cooper Notification for the license rights granted to Customer under the Agreement are as follows: $13,215 per year for the
first three years and $9,900 for Subsequent Annual Renewals for Support Fees and Services. All License Fees shall be payable as set forth in Section C of the
Agreement. License Fees are payable based on the size of Customer's licensed recipient population for notification messages, which is 7,000 individuals. The License
Fees are payabie for use of the Licensed Product for the RSAN servers, back-up•server software, web-hosting services, and Updates.
D. Support Fees and Services
Support Fees for the Licensed Product are included in the License Fees set forth in Section C of this Appendix, cover a period of one year from the Effective Date and
consist of Standard Maintenance and Support Services and which extend for a period of 3 additional years following the Effective Date ("Initial Support Term") and
include, connection to the Roam Secure Information Exchange. The Support Services shall be renewable beyond the Initial Support Term according to the provisions set
forth in Section E of this Appendix.
Subject to Customer's payment of any outstanding License Fees and Support Fees, Cooper Notification will make the following Support Services availabie to the
Customer:
Premium SMS Delivery of Messages
The customer will be allowed to send 10,000 premium SMS messages per year, using the Aggregator. After this limit has been reached Premium SMS messages will be
charged at the higher of $0.05 per message or the Cooper Notification's then-current rate.
Voice Messaqes
The customer will be allowed to send 2,500 minutes of voice messages per year. After this limit has been reached additional voice minutes will be charged at the higher
of $0.15 per minute or the Cooper Notification's then-current rate. The Customer can also buy bundles of pre•paid of 10,000 minutes for $1,500 per bundle.
Standard Maintenance and Support Services
The Customer shall receive a total of 28 hours of customer support by phone, email, or if necessary, site visits free-of-charge per year. Time shall be tlebited in half-hour
increments. Requests due to failure of or defect in the RSAN system shall not count towards the free-of-charge hours. Requests over the allocated hour limit shall be
charged on a time and materials basis at the then-current rate published in Cooper Notification's Commercial Price List (on the Effective Date, such rate is $150 per hour)
billed in minimum half-hour increments, plus Travel Expenses.
Standard Updates are included in the Support Fee and will be delivered to the Customer electronically, in a manner agreed upon by the parties.
Cooper Notification shall not be responsible for downtime due to power outages, acts of God or other Force Majeure Events, hardware failures, injury suffered as a result
of the failure of an Enterprise User to receive RSAN messages and other matters outside of Cooper Notification's control. Support in such instances shall not be covered
�..-
by the License Fees or the Support Fees, and if requested by Customer, such support shall be billed at the then-current rate published in Cooper Notification's
Commercial Price List, bilied in minimum haif-hour increments, plus Travel Expenses.
Customer may at its option allow Cooper Notification technical staff to log into the RSAN server remotely in order to install Updates and/or to resolve technical problems.
E. Renewal of Support Services
The Customer may renew the Support Seroices set forth in Section D of this Appendix, including Standard Maintenance and Support, Premium SMS messages, Voice
Minutes and Enhancetl Maintenance and Support (if applicable) and connection to the Roam Secure Information Exchange, by paying an annuai renewal Support Fee
each year after the initial Support Term. The annual renewal Support Fee (for each of Standard Maintenance and Support and Enhanced Maintenance and Support)
shall be charged at Cooper Notification's fhen-current rates.
F Service Level Agreement
In order to deal efficiently with problems reported to Cooper Notification by the Customer, a problem ticket will be created for each problem and one of 3 priority cotles will
be allocatetl thereto:
• Level 1: Major Impact - Directly causing a total loss of the Customer's ability to send RSAN notifications using RSAN.
• Level 2: Significant Impact - Directly reducing a number of features of the RSAN, such as remote email alert generation.
. Level 3: No Immediate Impact - causing only inconvenience to Customer, and may include scheduled network changes to Customer's network architecture.
The target maximum times for response for each level are:
Level 1: as soon as possible, targeting a response time of 1 hour (during Cooper Notification's normal business hours), or 3 hours (during other than Cooper
Notification's normal business hours), from initial notification of problem to Cooper Notification by the Customer.
Level 2: 24 hours.
Level 3: 72 hours.
Page 6
Maleshia B. Farmer
Sr. Assistant City Attorney
DOCUMENT APPR4VAL / CORRECTION FORM
TO: Capt. Raiph Diamond
DEPT: Fire Department
DATE: September 25, 2013
SUBJECT: Appraval of Software �icense Agreement
TITLE OF DOCUMENT(S)
Software license Agreement with Cooper Notifieation, Inc.,
1�0 APPROVED F IGNATURE
RETURN TO DEPARTMENT
COMMENTS:
REQUIRED SIGNATURES ON DOCUMENT
d VENDOR
d ASSISTANT CITY ATTORNEY
� ASSISTANT CITY MANAGER
d CITY SECRETARY
OTHER;
OFFICE OF THE CITY ATTORNEY
The City of �ort Warth * 1000 Throckmorton 5treet *�ort Worth, Texas 76102
817-392-7600 * F'ax 817-392-8359