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PROFESSIONAL SERVICES AGREEMENT
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This PROFESSIONAL SERVICES AGREEMENT ("AgreemenY') is made and entered into by
and between the CITY OF FORT WORTH (the "City" or "Customer"), a home rule municipal corporation
situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through its duly
authorized Assistant City Manager, and CHEMWARE INC., ("ChemWare" or "Consultant"), a North
Carolina corporation, with its principal office at 900 Ridgefield Drive, Suite 150, Raleigh, North Carolina,
27609, and acting by and through, its duly authorized president and CEO.
CONTRACT DOCUMENTS
This Agreement shall consist of the following documents:
This Professional Services Agreement
Attachment A— Software License Agreement
Attachment B— Software Maintenance Agreement
Attachment C— Statement of Work plus any attachments to the Statement of Work
Attachment D— Network Access Agreement
1.
2.
3.
4.
5.
All Attachments are affixed hereto, incorporated herein, and made a part of this Agreement for all
purposes. In the event of a conflict between the documents, the order of precedence shall be (1)
Professional Services Agreement, (2) the Statement of Work, (3) Software License Agreement, (4) and
Software Maintenance Agreement. Notwithstanding the foregoing, the Network Access Agreement shall
take precedence in any conflicting matters related to computer or network security.
1. SCOPE OF SERVICES.
Consultant hereby agrees to provide the City with professional consulting services for the
purpose of upgrading Customer's Laboratory Information Management System (LIMS), installing an
LIMS test environment, building a Customer web portal, and providing maintenance and support
services. Attached hereto and incorporated for all purposes incident to this Agreement is Attachment
"C," Statement of Work, more specifically describing the services to be provided hereunder.
2. TERM.
This Agreement shall commence upon May 1, 2013, ("Effective Date") and shall expire on April
30, 2014 ("Initial Term"), unless terminated earlier in accordance with the provisions of this Agreement.
This Agreement may be renewed at the City's option for three additional consecutive terms of one-year
each (each a "Renewal Term").
3. COMPENSATION.
The City shall pay Consultant an amount not to exceed $68,435.00 each year in accordance
with the provisions of this Agreement and the Quotation Summary attached as Exhibit C-1 to
Attachment "C." Consultant shall not perform any additional services for the City not specified by this
Agreement unless the City requests and approves in writing the additional costs for such services. The
City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless
the City first approves such expenses in writing.
TERMINATION.
4.1. For Convenience.
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The City or Consultant may terminate this Agreement at any time and for any reason by
providing the other party with 30 days written notice of termination.
4.2 Non-appropriation of Funds.
In the event no funds or insufficient funds are appropriated by the City in any fiscal
period for any payments due hereunder, City will notify Consultant 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 City of any kind whatsoever, except as to the portions
of the payments herein agreed upon for which funds have been appropriated.
4.3 Duties and Obliqations of the Parties.
In the event that this Agreement is terminated prior to the Initial Term, or prior to the
end of any Renewal Term, the City shall pay Consultant for services actually rendered up to the
effective date of termination and Consultant shall continue to provide the City with services
requested by the City and in accordance with this Agreement up to the effective date of
termination.
4.4 Termination of License Agreement.
The foregoing notwithstanding, the License Agreement may be terminated by either
party in accordance with the Termination provisions in Attachment A.
4.5 Termination of Maintenance Aqreement.
The foregoing notwithstanding, the Maintenance Agreement may be terminated by
either party in accordance with the Term and Termination provisions in Attachment B.
5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION.
Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any
existing or potential conflicts of interest related to Consultant's services under this Agreement. In the
event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby
agrees immediately to make full disclosure to the City in writing. Consultant, for itself and its officers,
agents and employees, further agrees that it shall treat all information provided to it by the City as
confidential and shall not disclose any such information to a third party without the prior written approval
of the City. Consultant 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.
Consultant shall notify the City immediately if the security or integrity of any City information has been
compromised or is believed to have been compromised.
6. RIGHT TO AUDIT.
Consuitant agrees that the City shall, until the expiration of three (3) years after final payment
under this contract, have access to and the right to examine at reasonable times any directly pertinent
books, documents, papers and records of the consultant involving transactions relating to this Contract
at no additional cost to the City. Consultant agrees that the City shall have access during normal
working hours to all necessary Consultant facilities and shall be provided adequate and appropriate
work space in order to conduct audits in compliance with the provisions of this section. The City shall
give Consultant reasonable advance notice of intended audits.
Consultant further agrees to include in ali its subcontractor agreements hereunder a provision to
the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final
payment of the subcontract, have access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of such subcontractor involving transactions related to
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the subcontract, and further that City shall have access during normal working hours to all subcontractor
facilities and shall be provided adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of
intended audits.
7. INDEPENDENT CONTRACTOR.
it is expressly understood and agreed that Consultant shall operate as an independent
contractor as to all rights and privileges granted herein, and not as agent, representative or employee of
the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant
shall have the exclusive right to control the details of its operations and activities and be solely
responsible for the acts and omissions of its officers, agents, servants, employees, contractors and
subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as
between the City, its officers, agents, servants and employees, and Consuitant, its officers, agents,
employees, servants, contractors and subcontractors. Consuitant further agrees that nothing herein
shall be construed as the creation of a partnership or joint enterprise between City and Consultant.
8. �IABILITY AND INDEMNIFICATION.
CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY
LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUD/NG DEATH, TO ANYAND ALL
PERSONS, OF ANY K/ND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT
CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR /NTENTIONAL
MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES.
CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD
HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES,
FROM AND AGAINST ANY AND ALL CLA/MS OR LAWSUITS FOR EITHER PROPERTY DAMAGE
OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY
RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUD/NG DEATH, TO ANY AND
ALL PERSONS, OF ANY K/ND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT
OF OR /N CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE
NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, lTS OFFICERS,
AGENTS, SERVANTS OR EMPLOYEES.
9. ASSIGNMENT AND SUBCONTRACTING.
Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement
without the prior written consent of the City, which assignment shall not be unreasonably delayed or
withheld. If the City grants consent to an assignment, the assignee shali execute a written agreement
with the City and the Consultant under which the assignee agrees to be bound by the duties and
obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable
for all of Consultant's obligations under this Agreement prior to the assignment. If the City grants
consent to a subcontract, the subcontractor shall execute a written agreement with the Consuitant
referencing this Agreement under which the subcontractor shall agree to be bound by the duties and
obligations of the Consultant under this Agreement as such duties and obligations may apply. The
Consultant shall provide the City with a fully executed copy of any such subcontract.
10. INSURANCE.
Consultant shall provide the City 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:
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10.1 Coveraqe and Limits
(a) Commercial General Liability
$1,000,000 Each Occurrence
$1,000,000 Aggregate
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(c)
Automobile Liability
$1,000,000 Each occurrence on a combined single limit basis
Coverage shall be on any vehicle used by the Consultant, 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
Worker's Compensation - Statutory limits
Employer's liability
$100,000 Each accidenUoccurrence
$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
benefits outlined in the Texas workers' Compensation Act (Art.
Civ. Stat.) and minimum policy limits for Employers'
accident/occurrence, $500,000 bodily injury disease policy limit
employee
limits consistent with statutory
8308 — 1.01 et seq. Tex. Rev.
Liability of $100,000 each
and $100,000 per disease per
(d) Technology Liability (Errors & Omissions)
$1,000,000 Each Claim Limit
$1,000,000 Aggregate Limit
Technology coverage may be provided through an endorsement to the Commercial General
Liability (CG�) policy, or a separate policy specific to Technology E&O. Either is acceptable if
coverage meets all other requirements. Coverage shall be claims-made, and maintained for the
duration of the contractual agreement and for two (2) years following completion of services
provided. An annual certificate of insurance shall be submitted to the City to evidence coverage.
10.2 General Requirements
(a) The commercial general liability and automobile liability policies shall name the City as an
additional insured thereon, as its interests may appear. The term City shall include its
employees, officers, officials, agents, and volunteers in respect to the contracted services.
(b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in
favor of the City of Fort Worth.
(c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be
provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of
premium. 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.
(d) The insurers for all policies must be licensed and/or approved to do business in the State of
Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating
Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk
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Management. If the rating is below that required, written approval of Risk Management is
required.
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(f)
Any failure on the part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirement.
Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall
be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement.
11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS.
Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules
and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or
regulations, Consultant shall immediately desist from and correct the violation.
12. NON-DISCRIMINATION COVENANT.
Consultant, for itself, its personal representatives, assigns, subcontractors and successors in
interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and
obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group
of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-
discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or
successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City
and hold the City harmless from such claim.
13. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined
to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or
representatives, (2) delivered by facsimile (if facsimile number is provided below) with electronic
confirmation of the transmission, or (3) received by the other party by United States Mail, registered,
return receipt requested, addressed as follows:
To The CITY:
City of Fort Worth
Attn: Water Department / Barbara Wilson
1000 Throckmorton
Fort Worth TX 76102-6311
Facsimile: (817) 392-8654
14. SOLICITATION OF EMPLOYEES.
To CONSULTANT:
CHEMWARE INC.
Attn: President/Mark Grosskopf
900 Ridgefield Drive, Suite 150
Raleigh, North Carolina, 27609
Neither the City nor Consultant shall, during the term of this agreement and additionally for a
period of one year after its termination, solicit for employment or employ, whether as employee or
independent contractor, any person who is or has been employed by the other during the term of this
agreement, without the prior written consent of the person's employer.
15. GOVERNMENTAL POWERS.
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It is understood and agreed that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers.
16. NO WAIVER.
The failure of the City or Consultant to insist upon the performance of any term or provision of
this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or
ConsultanYs respective right to insist upon appropriate perFormance or to assert any such right on any
future occasion.
17. GOVERNING LAW / VENUE.
This Agreement shall be construed in accordance with the internal laws of the State of Texas. If
any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue
for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court
for the Northern District of Texas, Fort Worth Division.
18. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
19. FORCE MAJEURE.
The City and Consultant shall exercise their best efforts to meet their respective duties and
obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in
performance due to force majeure or other causes beyond their 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, fires, strikes, lockouts, natural disasters, wars, riots, material or labor
restrictions by any governmental authority, transportation problems and/or any other similar causes.
20. HEADINGS NOT CONTROLLING.
Headings and titles used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
21. REVIEW OF COUNSEL.
The parties acknowledge that each party and its counsel have reviewed and revised this
Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto.
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This Agreement shall not be amended or otherwise modified without the mutual written consent of
an authorized representative of both parties.
23. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of Attachments "A" through "D" attached hereto, and
any documents incorporated herein by reference, contains the entire understanding and agreement
between the City and Consultant, their assigns and successors in interest, as to the matters contained
herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement.
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24. NETWORK ACCESS.
Consultant requires access to the City's Intranet, Internet, email, or other City department
database, and therefore, Consultant hereby agrees to execute the City's Network Access Agreement,
which is attached hereto and incorporated as Attachment "D." The Network Access Agreement outlines
the scope of access of Consultant, its employees, agents, and representatives, including any
subcontractors, to the City's network.
25. SIGNATURE AUTHORITY.
The person signing this agreement hereby warrants that he/she has the legal authority to execute
this agreement on behalf of the respective party, and .that such binding authority has been granted by
proper order, resolution, ordinance or other authorization of the entity. The other part� is f�lly entitled to
rely on this warranty and representation in entering into this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF,
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CITY OF FORT WORTH:
CHEMWARE, INC.
B f�i/I!� l�i� v�`v�,,-.
y: �� �a���`By:
Fernando Costa p �'QoaaQ���`
Assistant Ciry Manager ,d� �o /� a_�
Date:
ATT
By:
APPROVED AS TO FORM AND LEGALITY:
B.
Maleshia . Farmer
Assistant City Attorney
CONTRACT AUTHORIZATION:
M8�C: �_ ��EQ� S��
Date Approved: ,� �l �--.
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the parties hereto have executed this Agreement in multiples this �� day of
Mark R. Gr ssk pf
'� President
j4 �j�-l'13
OFFICIAL itECOiSD
C�ITY SECRE'TAItY
�. �D��H� �
Director, Business Development
City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny
Contractor access to the Network and Contractor's Data, terminate the Agreement, and pursue any other
remedies that the City may have under this Agreement or at law or in equity.
5.1 Notice to Contractor Personnel — For purposes of this section, Contractor Personnel shall
include all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be
responsible for specifically notifying all Contractor Personnel who will provide services to the City under
this agreement of the following City requirements and restrictions regarding access to the City's Network:
(a) Contractor shall be responsible for any City-owned equipment assigned to Contractor
Personnel, and will immediately report the loss or theft of such equipment to the City
(b) Contractor, and/or Contractor Personnel, shall be prohibited from connecting personally-
owned computer equipment to the City's Network
(c) Contractor Personnel shall protect City-issued passwords and shall not allow any third
party to utilize their password and/or user ID to gain access to the City's Network
(d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic
Communications Resources as described in the City's Administrative Regulation D7
(e) Any document created by Contractor Personnel in accordance with this Agreement is
considered the property of the City and is subject to applicable state regulations
regarding public information
(f) Contractor Personnel shall not copy or duplicate electronic information for use on any
non-City computer except as necessary to provide services pursuant to this Agreement
(g) All network activity may be monitored for any reason deemed necessary by the City
(h) A Network user ID may be deactivated when the responsibilities of the Contractor
Personnel no longer require Network access
6. Termination. In addition to the other rights of termination set forth herein, the City may terminate
this Agreement at any time and for any reason with or without notice, and without penalty to the City.
Upon termination of this Agreement, Contractor agrees to remove entirely any client or communications
software provided by the City from all computing equipment used and owned by the Contractor, its
officers, agents, servants, employees and/or representatives to access the City's Network.
7. Information Securitv. Contractor agrees to make every reasonable effort in accordance with
accepted security practices to protect the Network credentials and access methods provided by the City
from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of
a breach or threat of breach which could compromise the integrity of the City's Network, including but not
limited to, theft of Contractor-owned equipment that contains City-provided access software, termination
or resignation of officers, agents, servants, employees or representatives with access to City-provided
Network credentials, and unauthorized use or sharing of Network credentials.
ACCEPTED AND AGREED:
CITY ORTH:
By: ,� -
Fernando Costa
Assistant City an� ger
Date: �v �}//3
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BY:
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Vlafy J. Kayser
City Secretary
CHEMWARE, INC.:
By:
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Name: Mark � Grossko f
Title: Pre " � nt
Date: � 3 n � a
ATTEST�
By:
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Name: Conor Ward
Title: Director, Business Development
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Vendor Network Access
Chemware, Inc.
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Rev. 10/5/2011
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NETWORK ACCESS AGREEMENT
This NETWORK ACCESS AGREEMENT ("Agreement") is made and entered into by and
between the CITY OF FORT WORTH ("City"), a home rule municipal corporation with its principal
location at 1000 Throckmorton Street, Fort Worth, Texas 76102, organized under the laws of the State of
Texas and situated in portions of Tarrant, Denton and Wise Counties, Texas, and CHEMWARE INC., with
its principal location at 900 Ridgefield Drive, Suite 150, Raleigh NC 27609, ("Contractor").
1. The Network. The City owns and operates a computing environment and network (collectively
the "Network"). Contractor wishes to access the City's network in order to provide HORIZON Laboratory
Instrument Management (LIMS) software installation and upgrade services, configuration services and
remote diagnostic and troubleshooting services. In order to provide the necessary support, Contractor
needs access to City's Internet, Intranet, and LIMS System.
2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's
Network for the sole purpose of providing HORIZON Laboratory Instrument Management (LIMS) software
installation and upgrade services, configuration services and remote diagnostic and troubleshooting
services. Such access is granted subject to the terms and conditions forth in this Agreement and
applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource
Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of
this Agreement for all purposes herein and are available upon request.
3. Network Credentials. The City will provide Contractor with Network Credentials consisting of
user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor.
Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being
granted for purposes of completing services for the City pursuant to a separate contract, then this
Agreement will expire at the completion of the contracted services, or upon termination of the contracted
services, whichever occurs first. This Agreement will be associated with the Services designated below.
❑ Services are being provided in accordance with City Secretary Contract No. N/A.
❑ Services are being provided in accordance with City of Fort Worth Purchase Order No. N/A.
X Services are being provided in accordance with the Agreement to which this Access Agreement
is attached.
❑ No services are being provided pursuant to this Agreement.
4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed
annually if the following conditions are met:
4.1 Contracted services have not been completed.
4.2 Contracted services have not been terminated.
4.3 Within the thirty (30) days prior to the scheduled annual expiration of tfiis Agreement, the
Contractor has provided the City with a current list of its officers, agents, servants, employees or
representatives requiring Network credentials. �
Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall
provide the City with a current list of officers, agents, servants, employees or repr'esentatives that require
Network credentials on an annual basis. Failure to adhere to this requirement may result in denial of
access to the Network and/or termination of this Agreement.
5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may
not share the City-assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives
its authorization to the City to monitor Contractor's use of the City's Network in order to ensure
Contractor's compliance with this Agreement. A breach by Contractor, its officers, agents, servants,
employees or representatives, of this Agreement and any other written instructions or guidelines that the
Network Access Agreement Rev. 10/5/2011
ATTACHMENT A— SOFTWARE LICENSE AGREEMENT
PARAGRAPHIS
RELATIONSHIP BETWEEN CHEMWARE AND ORACLE
The parties agree that Oracle is a third party beneficia�y of this
Agreement. ChemWare is an independent contractor/licensee in all
matters relating to its contracts with Oracle. Except for as specifically
identified in this Agreement, neither ChemWare nor Oracle has any
authority to assume or create any obligation, express ar implied, on
behalf of the other party, nor to represent the other party as agent,
employee, franchisee, oi• in any other capacity.
PARAGRAPHI6
WAIVER AND SEVERABILITY
161. No term of this Agreement shall be deemed waived and no
breach excused unless such waiver or excuse shall be in writing and
signed by the party giving the waivei• or excuse. Thefailui•e of either
party to exercise in any respect any right provided for in this
Agreeinent shall not be consh•ued as a waivei• of any further right
under this Agreement, and no waiver shall be a continuing waiver
unless specifically so stated in the writing.
16.2. If any provision of this Agreement shall for any reason be
held to be invalid or unenforceable, such decision shall not affect,
impair a� invalidate the remainder of this Agreement, but shall be
confined in its operation to the provision of this Agreeinent directly
involved in the controversy in �vhich the decision was i•endered, the
invalid or unenforceable provision shall be refonned by the arbitrator
so that each party shall have the obligation to perfonn reasonaUly
alternatively to give the other party the benefit of the bargain.
PARAGRAPHI7
TAXES
Customer is responsible for and shall pay all sales, use, and
excise taxes, and like charges i�nposed by any federal, state, or local
governmental entity for products or services provided under this
Agreement, excluding only taaes based solely on ChemWare's
income. When ChemWare has the legal obligation to collect such
taxes, the appropriate amount shall be invoiced to and paid by
Customer unless Customer provides ChemWare with a valid tax
exemption certificate authorized by the appropriate taxing authority.
Customer shall hold ChemWare hai•mless from all claims and liability
arising from Customer's failw•e to pay any such taxes, duties, oi•
chaiges.
PARAGRAPHI8
WHOLE AGREEMENT
Each party acknowledges that it has read this Agree�nent,
understands it, and agrees to be bound by its terms. The parties
further agree that this Agreeinent, including its Exhibits, is the
complete and exclusive statement of the agreement of the parties with
respect to the subject matter hereof and that it supersedes a��d �nerges
all prior proposals, understandings, and agreements, whether oral or
written, between the parties with respect to the subject matter hereof.
This Agreement may not be modified except by a written instru�nent
duly executed by the parties hereto. Any term a• condition on a
pi•inted foi7n which shall be sent to ChemWare fi•om Customer shall
have no effect, and shall not modify, add to, or subtract from the
obligations and rights set forth herein.
Irt wi�Ess wHEaEOF, the parties have caused this Agreeinent to be executed by their duly authorized representatives as set forth below.
ChemWare, Inc.
Signed:
Print:
Title:
Date:
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Title:
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ATTACHMENT A— SOFTWARE LICENSE AGREEMENT
a. Provide written notice to ChemWare not later than fifteen (IS)
days after Custotner receives notice of a claim or suit; and
b. Give ChemWare (or Oracle if the claims relate to the
Database) sole control of the defense and any settlement negotiations;
and
c. Give ChemWare (or Oracle if the claims relate to the
Database) the infoi7nation, autt�ority and assistance requested to
defend against or setde the claim. ChemWare may settle any such
claim in any manner it deems appropriate, provided that Customer
shall have no obligation to make a payment under any such settle�nent
without its prior consent. Customer shall have the right to participate
at its own expense in the defense of any such suit or proceeding
through counsel of its own choosing.
d. If the Materials or any part thereof are held to infi•inge and the
use thereof is enjoined ar restrained or, if as a result of a settlement or
compromise, such use is materially adversely resh•icted, ChemWare
(or Oracle if the claims relate to the Database) shall, at its own
expense, either: (a) procure far Customer the right to continue to use
the Materials; or (b) modify the Materials to make them non-
infringing, provided that such modification does not materially
adversely affect Customer's authorized use of the Materials; or (c)
replace the Materials witl� equally suitable, compatible, and
funetionally equivalent non-infringing Materials at no additional
chatge to Customer; or (d) if none of the foregoing alternatives is
reasonably available to ChemWare (or Oracle if claims relate to the
Database), tenninate this agreement and refund to Customer the
payments actually made to ChemWare under this Agreement.
9.2. ChemWare (or Oracle, as applicable) shall have no
indemnification obligation to Customer other than as set forth in
Paragraph 9.1. In clarification but not limitation of the foregoing,
neither ChemWare nor Oracle will indemnify Customer if Customer:
a. Makes a claim based upon third �arty programs or ancillary
programs not included in the Materials; or
b. Alters the Materials or>uses a version of the Materials which
has been superseded, and the infringement claim could have been
avoided by using an unaltered cun•ent version of the Materials; or
c. Combines the Materials with any`othez°soft�tare or hardware
not recommended or furnished by ChemWare or Oracle; or
d. Uses the Materials outside the scope of use set farth in the
Documentation.
Pa�,c�rR 10
NOTICES
All notices under this Agreement shall be delivered by hand or
by a reputable national overnight courier se�vice, with recipient
signature required, and addressed to the recipient's physical address
indicated in the first paragraph of this Agreement, or to such other
address as the recipient may designate by providing notice. The notice
shall be considered delivered on the day of delivery, as indicated by
tlie signed receipt.
PARAGRAPHII
ASSIGNMENT
Neither party may assign any right, remedy,, obligation, or
liability under this Agreement without the prior�written�consent of the
other party, which consent shall not be unreasonably withheld,
provided that ChemWare may, without the consent of Customer, but
upon no less than thirty (30)' days written notice, assigm all, but not
less than all, of its rights and obligations under this Agreeinent to a
third party puret�aser of al} or substantially all tl�e assets or equity of
Clie�nWare, or with w}iich ChemWare affects a inerger or business
combination, provided any such third party agrees in writing to
asswne all obligations of C1iemWare under this Agreement. Oracle
may deny assignment of tt�e Database for any reason, may require an
assigmnent fee, and may assign its rights and obligaHons witl�out
further notice.
Section 11, ChemWare shall secure for Customer the right to have
sufficient access to the Materials as necessary to allow Customer's
continued use pursuant to the Agreement.
PARAGRAPHI2
FORCE MAJEURE
Neither party shall be in default or otherwise liable for any delay
in or failure of its perfoi�rnance under this Agreement if such delay or
failure arises by any reason beyond its reasonable control, including
any act of God, any acts of the common enetny, earthquakes, floods,
fires, epidemics, riots, labor disputes, failures or delay in
transportation or commm�ications, or any act or failure to act by the
other party or such other party's employees, agents or conh•actors (a
"Force Majeure EvenY'); provided, however, that failure to make
payment of the License Fee when due shali never be deemed to be a
result of a Force Majeure Event.
PARAGRAPH 13
TERMINATION
13.1. The License granted hereunder shall automatically
tei-�ninate with the termination of this Agreement.
13.2. In the event of any default of any obligation under this
Agreeme��t which remains uncured thirty (30) days after receipt of a
written notice identifying in detail the nature of the default and the
expectations to cure the default, the non-defaulting party may
terminate this Agreement.
13.3. Within ten (10) days after tennination of this Agreement,
Customer shall discontinue use of the Materials; shall either return to
ChemWare the Materials and all copies thereof, or delete or destroy
all copies of the Materials; and deliver to ChemWare a written
certification as such.
13.4. Upon termination of this Agreement, except terinination by
Customer as a result of a breach by ChemWare of Paragraph 7.1a oi•
7.Ib, all unpaid License Fees shall immediately become due and
payable.
13.5. Notwithstanding Paragraph 13.4, no further License Fee
pa}nnent shall be due in the event of tennination of this Agreement
pursuant to the terms of Paragraph 8.1 or 8.2, and Customer may
recover damages as set forth in Paragraph S.l ar 8.2, as applicable
and as limited thereby.
13.5. Any provision of this Agreement which by its terms
imposes continuing obligations, including but not limited to
Paragraphs 4, 5, 6, 7, 8, 9, 13, 14 and 15, shall suivive the
tennination of this Agreement.
PARAGRAPR 14
GOVERNING LAW AND ADJUDICATION
14.1. This Agreement is to be governed by and interpreted in
accordance with the laws of the State of Texas, without regard to its
conflicts of law provisions. Venue for any actions arising hereunder
shall be in Tan•ant County, Texas.
14.2. In the event of a dispute arising under or related to this
Agreement, except as set forth in Paragraph 14.4, the parties may
first submit the dispute for non-binding mediation in Tarrant County,
Texas, or in any other place mutually agreed upon by botl� ChemWare
and Customer. The mediator shall be agreed upon by the parties. Each
party shall be liable for its own expenses, including attorneys fees;
however, the parties shall share equally in the costs for the mediation.
14.3. In the event that mediation is not successfW, the dispute
may, upon written consent of both parties, be submitted for binding
arbih•ation by one arbitrator in accordance with the rules of the
American Arbitration Association. Enhy of judgment fi•om tl�at
arbih•ation may be inade in a court of eompetent jurisdiction. Each
party shall be liable for its own expenses, including attorneys fees;
however, the parties sliall share equally in the costs for the arbitration.
14.4. Notwitl�standing the foregoing, in order to prevent
irreparable� harm, either party may seek tempora�y and interiin
''unetive relief fi•om a court of competent juiisdietion.
Rev. 5/16/2013
Notwithstanding the faregoing provision, in the event Oracle 1°�
makes an assignment pursuant to the pi•ovision set forth in this
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ATTACHMENT A— SOFTWARE LICENSE AGREEMENT
within a tablespace in the same database and on the same Server as
the production environment.
d. ChemWare must approve, in advance and in writing, any
additional copies, backups or archives Customer �vishes to make,
which approval may be contingent upon, among other conditions, the
licensing rules of Oracle and other Licensors.
�
I _:: .:',
TEtuvt
This Agreement is effective upon execution by the Customei• ,
and shall continue until such time as it is terminated in accordance
with the tei7ns of this Agreement.
�� . . � .i
: .:_ .. . ,
LICENSE FEES
4.1. Customer agrees to pay ChemWare a license fee ("License
Fee") for the License to use the Materials in accordance with the
license quantities and payment terms specified in Attachment "E" to
the Professional Services Agreement to which this Software License
Agreement is attached. An additional license fee will be required if
Customer adds to the quantity of Licensed Units or acquires licenses
for additional modules, add-ins, options, special functions,
customizations or other products from ChemWare, and such
additional fee is deemed part of the License Fee.
4.2. Neither the License Fee nor any additional license fee shall
include the right to new versions, updates, upgrades, or additional or
different software or seivices of any kind.
4.3. All payments shall be made within the United States in U.S.
dollars, and shall be nonrefundable.
4.4. Unless the License Fee is paid in full on or before the
Installation Date, a temporary license key will be issued to Customer.
At such time as Customer has paid the License Fee in full, Customer
will be issued a pennanent license key allowing access to the
Materials. ln the event Customer fails to pay the License Fee in full
and pursuant to the terms of Attachment "E," the temporary license
key will expire, certain functions of the Materials will cease to
operate, and ChemWare may proceed with its remedies far breach.
PARAGRAPHS
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
ChemWare and its Licensors retain all ownership and intellectual
property rights in and to the Materials. Customer acknowledges that
the Materials and any modifications, copies or derivatives thereof are
the sole and exclusive property of ChemWare and its Licensors,
regardless of the form ar media in which the original or copies may
exist. The Software, including its code, logic, design and structure,
contains trade secrets which are the sole property of ChemWare, and
to the extent pennitted by applicable law, Customer agrees to secure
and protect the Software so that ChemWare's trade secrets therein are
not disclosed to any third parties.
PA�G�rH 6
CONFIDENTIAL INFORMATION
Subject to applicable law, all information related to the nature
and use of the Materials is confidential. Customer will use its best
efforts and take all reasonable steps to protect the Materials from
unauthorized reproduction, publication, disclosure or dish•ibution.
PARAGRAPH 7
LIMITED WARRANTIES
71. ChemWare makes the following warranties to Customer
with respect to the Materials:
a. For the first sixty (60) days after the Installation Date, if the
Software, as delivered (and, if applicable, installed) by ChemWare
fails to perform in accordance with the functional specifications in the
Documentation, and provided that ChemWare is given written notice
of the failure within this �varranty period, ChemWare will correct or
bypass such ei7•or to the extent the error (i) materially affects the
user's ability to use tlie Software in accordance with the
9.1. Subject to the limitations in Paragraph 9.2, ChemWare (or
Oracle if the claims relate to the Database) agrees to indemnify and
defend Customer with respect to any claim brought against Customer
based on alleged infi•ingement by the Materials of the claimant's
intellectual property rights, provided Customer must:
Documentation; and (ii) can be reproduced or recreated by
C E ti' C � rx.ti, rc At tm c�sF A E� ose _r�r cv3cz.i_,� __' P; d�c,'�taa�-k,r��.-�€ 4-'e—_tte?rn L+tirr K-s�c�Page 2 �
ChemWare under similar conditions and in a commercially reasonable
manner. ChemWare shall have no obligation to con•ect or bypass
errars under this wa�7•anty which result from: (iii) modification of the
Materials by a person other than ChemWare; (iv) errors caused by
defects, problems ar failures of hardware, software or other
components ar systems not provided by ChemWare; or (v)
introduction of errors caused by the negligence of Customer or other
non-ChemWare personnel.
b. If the Materials, as delivered to Customer, are alleged to
infringe any registered trademark, registered service mai•k, copyright
or patent, or to misappropriate any ri•ade secrets of a third party (or if
ChemWare otherwise believes the Materials may infringe or
misappropriate), ChemWare will make colmnercially reasonable
efforts to either modify the Materials to be noninfringing (while
substantially preserving the utility and functionality of the affected
portion of the Materials) or obtain a license to continue use.
7.2. Other than the foregoing specific warranties, the Materials
are provided "AS IS" and ChemWare makes no wan•anty, guaranty,
condition, covenant or representation, express or i�nplied. All other
wan•anties, including without limitation the implied warranties of
merchantability, fitness for a particular purpose, noninfringement,
timeliness, currency, accuracy or other attributes, or from a course of
dealing or usage, are specifically disclaimed. Without limiting the
foregoing, ChemWare and its Licensors make no warranty or
representation that the operation of the Software or the Database will
be uninten•upted or the Materials will be error-free.
PARAGRAPH 8
LIMITATIONS ON LIABILITY
8.1. In the event of a breach of the warranty set forth in
Paragraph 7.1 a, and provided that such breach continues for a period
of thirty (30) days after Customer gives �n•itten notice to ChemWare
of the breach, then Customer may tei�ninate this Agreement and
recover the License Fees paid to ChemWare through the date of
termination and once the License is tenninated. This is Customer's
exclusive remedy.
8.2. In the event Customer alleges a breach of the warranty set
forth in Paragraph 7.Ib, or in the event ChemWare otherwise
tenninates part of the License granted hereunder based on an
allegation or detennination that any part of the Materials infringe the
intellectual property of a third party, then ChemWare's liability shall
be limited to a refund of the License Fees actually paid to ChemWare
for the applicable part of the Materials for which the License has been
terminated. This is Customer's exclusive remedy.
8.3. Except with respect to damages arising out of or related to a
breach of Paragraphs 7.1a or 7.Ib, the remedies which are set forth
exclusively above, or damages which may arise as a direct result of
ChemWare's negligence, gross negligence, or intentional conduct,
ChemWare's liability to Customer for damages arising fi•om or related
to this Agreement shall be limited to the amount of the License Fees
Customer has paid to ChemWare hereunder.
8.4. Neither party shall be liable for any indirect, incidental,
special, punitive, or consequential damages, whether in tort or
contract or based on any other legal theoiy. Neither ChemWare nor its
Licensors, including but not limited to Oracle, shall be liable foi•
damages from interruption of business, loss of use of the Materials,
loss of profits, revenue, data, or data use, cost of recreating data, cost
of capital, cost of any substitute software, ar losses caused by delay,
even if ChemWare or its Licensors, including but not limited to
Oracle, has been advised of the likelihood of such damages occui7•ing.
PARAGRAPH 9
INDEMNIFICATION
Rev. 5/16/2013
ATTACHMENT A— SOFTWARE LICENSE AGREEMENT
HORIZON� LABORATORY INFORMATION
MANAGEMENT SYSTEM
This Software License Agreement ("Agreement") is entered into
between ChemWare Inc., a North Carolina coiporation
("ChemWare") with its principal office at 900 Ridgefield Drive,
Suite 150, Raleigh, North Carolina, 27609, and the City of Fort
Warth, Texas ("Customer"), with its principal office at 1000
Throckmorton Street, Fart Worth, Texas, 76102.
PARAGRAPHI
DEFWITIONS
1.1. "Software" means the executable code of the HORIZON
Laboratory Information Management System Software, together with
the executable code for the modules, add-ins, options, special
functions, and other ChemWare products identified in Exhibit A
under a"HC" or "HO' item designation.
1.2. "Database" means the single central OracleOO database
including tables for housing Laboratory Information Management
System (LIMS) data established by the Software, together with any
Oracle software products identified in Exhibit A under a"OR" item
designation.
1.3. "Documentation" means all information provided by
ChemWare which describes the installation, operation and use of the
Software, in printed or electronic format.
1.4. "Materials" means the Soft�vare, Documentation and
Database.
1.5. "Oracle" means the Oracle Corporation, located at 500
Oracle Parkway, Redwood Shores, California 94065.
1.6. "Installation Date" means the earliest of the date on which:
(a) the Software is delivered to the Customer; or (b) the Software is
loaded onto Customer's hardware.
1.7. "Licensed UniY' means the unit of ineasurement used to
define the quantity of Materials licensed to Customer according to the
following definitions:
a. "Named User" means any real person authorized by Customer
to use the Materials, regardless of whether tliat person is actively
using the Materials at any given time.
b. "Concurrent User" means any real person authorized by
Customer to use the Materials simultaneously with other authorized
real persons.
c. "Processor" means the CPU in the computer on which the
Materials are installed and/or running. In a virtual computing
environment, to count as one (1) Processor it must be either dedicated
to the Materials or the Materials must be bound to the Processor;
otherwise all Processors in the computer must be counted when
deterniining compliance with the license quantity.
d. "Server" means the computer on which the Materials are
installed.
e. "Instrument" means the individual anal��tical instrument, or
instrument data system conh•olling that instrument, as the case may
be, on �vhich the Materials are installed.
f. "Workstation" means the individual personal computer on
which the Materials are installed.
g. "Device" means the individual hardware, hardware data
system, netwark folder or other medium for data starage.
1.8. "EmUedded Software License°' means a special Database
licensii�g option limiting the Customer's routine access to the
Database to the functions provided through the Software interface.
1.9. "Licensm�" means any third party software provider,
including Oracle, fi•om �vhich ChemWare l�as secured the right to
sublicense, dish•ibute, integrate, and/oi• support the provider's product
as a module, add-in, option ar special function when used in
conju��ction with the Materials and the terms of this Agreement.
PARAGRAPH 2
LICENSE
2.1. Grant of License. ChemWare grants to Customer and
Customer accepts, pursuant to the terms and conditions of this
Agreement, nonexclusive, nontransferable license ("License") to use
the Materials commencing on the Installation Date and continuing in
perpetuity unless tenninated in accordance with Hie tei7ns herein, with
the following resh•ictions:
a. The Materials tnay be used only by Customer. Customer may
not sublicense, rent, distribute, lease, timeshare or otherwise transfer
or assign Customer's rights in the Materials. Customer may not act as
a service bureau or provide subscription services using the Materials.
b. Customer may not change, alter, modify, translate,
disassemble, decompile or reverse engineer the Materials. If Customer
has an Embedded Software License, Customer tnay not tnodify the
Database data shuctures except as may be provided through the
Software interface.
c. The Materials may be installed and used by no more than the
quantity of Licensed Units specified in Exhibit A(as may be amended
from time to time). If Licensed Units are based on Concun�ent Users
or Named Users, authorization for use must be granted by defining
unique individual user names and security credentials through the
Software interface, which names and credentiais may not be shared by
other users. A previously authorized Named User may be deactivated
and replaced by a new Named User, with no net change in license
c�uantity.
d. Customer may not export or re-export the Materials or any
copy, adaptation, or product thereof, directly or indirectly, in
violation of any U. S. export law or other applicable regulation, or use
the Materials for any purpose prohibited by these laws. The Materials,
delivered to U.S. Government end users, are "commercial computer
software" pursuant to the applicable Federal Acquisition Regulation
("FAR") and agency-specific supplemental regulations. As such, use,
duplication, disclosure, modification, and adaptation of the Matei•ials
shall be subject to the license and license resh•ictions set forth in this
Agreement, and, to the extent applicable, the additional rights set
forth in FAR 52.227-19, Commercial Computer Software — Restricted
Rights (June 1987).
e. Customer may not publisl� tl�e results of any benchmark tests
on the Materials.
f. Customer may not remove or modify any ChemWare or
Licensor program markings, cop}n•ight notices, trademarks or other
notices of proprietary rights in the Materials.
g. All rights not expressly granted are reserved to ChemWare
and its Licensors.
2.2. Additional Units and Materials. Any updates or new
versions, modules, add-ins, options, customizations or special
functions to the Materials provided to Customer by ChemWare shall
also become part of the Materials and shall be governed by the tenns
of this Agreement. Additional Units may be added by an Addendum
to Exhibit A, subject to payment of the required fees pursuant to
Paragraph 4.
2.3. Copies. Customer shall not make any copies of the Materials
except in accordance with the following:
a. The Materials may be copied as part of the standard backup
process used by Customer, provided that such copies are used only
when restored to the primary production em�iromnent and only during
the terni of the License granted herein.
U. One copy of the Materials may be used on an unlicensed spare
(failover) Server provided that (i) such use is exclusively in a failover
environment; (ii) use of the failover Server does not extend beyond a
total of ten separate days in any given calendar year; and (iii) use of
the failover Servei• in a production enviromnent is discontinued wlien
the primaiy production Server is repaired oi• replaced.
c. One copy of the Materials may be installed in development,
test and/or training eilvironments, provided that such copy is installed
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ATTACHMENT B— SOFTWARE MAINTENANCE AGREEMENT
IN wiTNess wHEaEor, the parties have caused this Agreement to be executed Uy tlieir duly authorized representatives as set forth belo�v.
ChemWare, Inc.
Signed:
Print:
Title:
Date:
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Date:
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ATTACHMENT B- SOFTWARE MAINTENANCE AGREEMENT
liability for damages to Customer shall be limited in all cases to the
annual maintenance fee paid by Customer for H�is Agreement, for tl�e
year in which the alleged liability fiist arose.
PARAGRAPH 6 ,
TERM AND TERMINATION �
6.L The initial �term of this Agreement shall ��commence upon
completion and Customer acceptance of the Software Installation and
Installation Qualification (IQ) deliverables, and shall continue for a
period of one year. Customer shall have the` option to renew this
Agreement for consecutive annual renewals unless terminated in
accardance with the terms herein. Unless ChemWare provides written
notice to the contrary, this Agreement shall automatically terminate at
the conclusion of any tenn if payment for the next consecutive ter�n is
not received by ChemWare as specified in Paragraph 3.
6.2. This Agreement may be terminated as follows;
a. This Agreement shall immediately tenninate upon the
tei7nination of the License Agreement
b. This Agreement may be terminated by either party upon the
expiration of the then-cui7•ent term of this Agreement, provided that at
least thirty (30) days' prior written notice is given to the other party.
c. This Agreement may be tenninated by either party upon thirty
(30) days' prior written notice if the otlier party has materially
breached the provisions of this Agreement and has not cured such
breacl� within such notice period.
6.3. Following termination of this Agreement, ChemWare shall
immediately invoice Custoiner for all accrued fees and charges and all
reimbursable expenses up through the date of tertnination, and
Customer shall pay all amounts due within thirty (30) days of the
invoice. -
6.4. Termination of this Agreement prior to the expiration of the
then-cui�•ent tei•m specified in Exhibit A, and pursuanY to the tenns of
this Paragraph, shall noY obligate ChemWare to refund any amount
paid by Customer�for th�s Agree�nent nor result in any liability, under
any theoiy of law or equity, of ChemWare to Customer, other than to
provide Customer with ali cun•endy available Updates through the
date of tennination. �
6.5. Provided that the License Agreement remains in effect, then
upon termination of this Agreetnent Customer shall be pennitted to
continue use of the Materials pursuant to the tei7ns of the License
Agreement. If the License Agreement has tenninated, Customer shall
take sucl� actions with respect to the Materials as required under the
License Agreement upon its tennination.
6.6. Notwithstanding tennination of this Agreement, all
obligations related to Proprietaiy Rights under Paragraph 4, all
disclaimers and limitations under Paragraphs 5 and 6.4, and the tenns
in Paragraphs 3.5, 7.1, 7.2, 73, 7.4 and 7.6 shall remain in effect.
6.7. The tenns of the Agreement shall renew automatically; in
such cases, only the prior term's Exhibit A will be superseded by a
revised Exhibit A for the renewal term, unless otherwise agreed to by
the parties.
PARAGRAPH 7
MISCELLANEOUS
7.1. Unless written approval is granted by the other party, eacl�
party agrees to refrain fi•om soliciting or hiring or contracting or
attempting to hire or contract the other's employees or subcontractors
who have been involved with the provision of services under this
Agreement for a period of one (1) year from termination of such
employee's provision of services under this Agreement.
7.2. Eacl� party acknowledges that it has read this Agreeinent,
understands it, and agrees to be bound by its tenns. The parties
further agree that this Agreement, including its Exhibits, is the
complete and exclusive statement of the agreement of the parties with
respect to the subject matter hereof and that it supersedes and merges
all prior proposals, understandings, and;agreeu�ents, whether oral or
written, between the parties with respect to the subject matter hereof.
This Agreement may not be modified except by a written instrument
duly executed by the parties hereto. Any term or condition on a
ChemWare Attachmenl_B_Dlaintenance Support Agreement_4 22 13_rev.doc Pa
printed foi�n which shall be sent to ChemWare fi•oin Custoiner sl�all
have no effect, and shall not modify, add to, or subh•act from the
obligations and rights set forth herein.
7.3. This Agreement is to be governed by and interpreted in
accordance with the laws of the State of Texas, without regard to its
conflicts of law provisions. Venue for any actions arising hereunder
shall be in Tairant County, Texas. In the event of a dispute arising
under or related to this Agreement, the parties may first submit the
dispute for non-binding mediation in Tarrant Couunty, Texas, or in
any other place mutually agreed upon by both ChemWare and
Customer. The mediator shall be agreed upon by the parties. Each
party shall be liable for its own expenses, including attorneys fees;
however, the parties shall share equally in the costs for the mediation.
In the event that �nediation is not successful, the dispute may, upon
written consent of both parties, be sub�nitted for binding arbitration
by one arbitrator in accordance with the rules of the American
Arbitration Association. Entry of judgment from that arbitration may
be made in a court of competent jurisdiction. Each party shall be
liable for its own expenses, including attorneys fees; however, the
parties shall share equally in the costs for the arbiri•ation.
7.4. In the event that any provision of this Agreement is held by
a court of competent juiisdication to be invalid, illegal, or
unenforceable, such decision shall not affect, impair or invalidate the
remainder of this Agreement, but shall be confined in its operation to
the provision of this Agreement directly involved in the conh•oversy
in which the decision was rendered. The remaining provisions shall
be enforced to the maximum extent pennitted by applicable law.
7.5. Neither party tnay assign any right, remedy, obligation, or
liability under this Agreement without the prior written consent of the
other party, which consent shall not be unreasonably withheld,
provided that ChemWare may, without the consent of Customer, but
upon no less than thirry (30) days written notice, assign all, but not
less than all, of its rights and obligations under this Agreement to a
third party purchaser of all or substantially all the assets or equity of
ChemWare, or with whicl� ChemWare affects a merger or business
combination, provided any such third party agrees in writing to
assume all obligations of ChemWare under this Agreement.
7.6. No term or provision of this Agreement shall be deemed
waived and no breach excused unless such waiver or consent shall be
in writing and signed by the party claimed to have waived or
consented. Failure to enforce any of the provisions of tliis Agreement
shall not be construed as a waiver of future rights to enforce the same
or other provisions of this Agreement.
7.7. Customer shall be entitled to all benefits of the escrow
arrangements ChemWare has with Business Records Management
(`BRM", Pittsburgh, PA), or its successor soft�vare escro�v company,
so long as (i) Customer continuously renews this Agreement and pays
in full any associated fees for this Agreement; and (ii) is not in
material breach of this Agreement or other vv�•itten contract between
ChemWare and Customer. The escrow agreement ChemWare has
with BRM entitles Customer, with the exceptions described above
and with the exception of any third party software not owned and
controlled direcdy by ChemWare, to receive the source code in the
event (iii) ChemWare no longer supports the software; (iv)
ChemWare has made an assignment for the benefit of creditors; or (v)
ChemWare institutes or becomes subject to a liquidation or
bankruptcy of any kind. In the event that Customer does access the
source code fi•om escrow, tl�e source code tnay only be used as set
forth in the Software License Agreement and the Software
Maintenance Agreement, and for no other purpose and to no greater
extent Release of source code from escrow sliall not tenninate this
Agreement nor cause waiver of any of ChemWare's or ChemWare's
successor's rights described by this Agreement.
ge 3 of 5
Rev. OS/16/13
ATTACHMENT B— SOFTWARE MAINTENANCE AGREEMENT
reproduced or recreated by ChemWai•e under similar conditions and
in a commercially reasonable manner.
e. If the E�ror affects the use of the Materials in a production
environment, ChemWare shall provide En•or Correction through a
"service pack" or "patch," which may be downloaded fi•om
ChemWai•e's web site, and ChemWare shall include the Error
Correction in all subsequent Updates of the Materials.
2.3. Other Services. Any services not specified in Paragraph 2.2
above will be considered "Other Seivices."
a. Other Services shall include, but not be limited to, (i)
correction of Custotner Errors; (ii) services provided outside of
Normal Working Hours; (iii) assistance with installation of Updates if
it is more practical, in ChemWare's sole opinion, to provide the
service at Customer's site; (iv) training; (v) system configuration; (vi)
custom programming; (vii) methods customization; (viii) data imports
or conversion (such as client and sample results data migration); (ix)
control table enhancements; (x) custom interface development; (xi)
report customization or development; (xii) consulting ar project
management services; or (xiii) network, database management ar
recovery, operating system, hai•d�vare or other IT service not
specifically identified in Paragraph 2.2 as a Covered Service.
b. Other Services may be provided by ChemWare, at its sole
discretion, subject to staff availability and pursuant to the additional
payments and tenns specified in Paragraph 3, Exhibit A and (if
applicable) a separate Technical Services Agreement by and between
the parties.
c. If Customer notifies ChemWare of an Error, and after
investigation by ChemWare it is determined that the problem is the
result of Customer Error, ChemWare reserves the right to bill
Customer as an Other Seivice for all time and expenses accrued in
making this determination.
PARAGRAPH 3
FEES AND CHARGES
31. Maintenance Fees. Fees for the term of this Agreement
shall be as set forth in Exhibit A and shall be due and payable upon
execution of this Agreement. Thereafter, Customer may renew this
Agreement for consecutive one year terms upon payment of the
annual maintenance fee•, provided however, ChemWare hereby
reserves the right to adjust annual maintenance fees and make other
modifications to this agreement so long as ChemWare notifies
Customer of such adjushnent no later than sixty (60) days priar to the
renewal of this Agreement. A renewal notice and quotation shall be
sent to Customer at least sixry (60) days before the beginning of each
renewal teim, followed by an invoice no later than thirty (30) days
before the beginning of each renewal term. Following the first year of
maintenance, the rate used to calculate maintenance fees for the
second ("Year 2"), third ("Year 3"), and fourth ("Year 4") renewal
periods shall remain fixed; thereaftei•, the fees shall not increase by
more than one basis point (e.g., from 18% to 19%) from one year to
the next, provided that any such rate increase shall not exceed an
average of five percent (5%) per year since the last year in which an
adjustment was made. Full payment shall be due on or before the first
day of the renewal support period.
3.2. Emergenc,y Support. This Agreement does not include 24-
hour/365 days "on-call" support. Any services provided outside of
Nonna) Business Homs will be considered "Emergency Support."
This Agreement may be au7ended by the Parties to include the
Emergency Support Option, which must be established in advance,
based on applicable tei�ns and rates described in the Technical
Services Agreement and published on ChemWare's Web site at
ww�v.chemware.com.
3.3. Travel Expenses. Customer shall reimburse ChemWare for
reasonable h•avel expenses (e.g., transpartation, lodging, and meals),
com•ier fees, and long distance telephone or modem expenses incurred
by ChemWare in rendering seivices to Customer mare than t�venty
five (25) miles fi•om ChemWare's principal office. ChemWare shall
provide documentation �vith the invoice in the form of copies of
receipts for all billable expenses incuired. CxEMWnxE sttnLL No7
CHARGE CUSTOMER FOR TIME SPENT TRAVELING TO AND FROM
CusTONtEx's S�TE. Travel expenses shall not exceed $13,500.00 on an
annual basis.
3.4. Payment Terms. Payments are due to ChemWare within
thirty (30) days fi•om receipt of invoice. If payment is not made within
thirty (30) days, Customer agrees to pay interest on all unpaid
amounts at the rate of the lesser of one percent (1%) per month or the
highest rate allowed under applicable law.
3.5. Late Pa,yment and Nonpa,yment. If Customer fails to pay
any invoices issued �vhen due, ChemWare reserves the right to
withhold any and all services to the Customer, and no refund shall be
due if services are so suspended. If ChemWare does suspend services,
Customer may have the services reinstated only upon pa}nnent of all
overdue invoices including interest. ChemWare also reserves the right
to seek any other remedies available to collect delinquent payments
from Customer. Withholding of services by ChemWare for
nonpayment does not release Customer of any obligations to
ChemWare, including without limitation the obligation to pay the
remaining amounts due for the term of this Agreement.
Pa�cuarx 4
PROPRIETARY RIGHTS
4.1. Any Updates or Error Coi-�•ections received by Customer
shall also become part of the Materials and shall be governed by the
tenns and conditions of this Agreement and the License Agreement.
4.2. The Materials are and shall remain the sole property of
ChemWare and its licensors, regardless of whether Customer, its
employees, or contractors shall have contributed to the conception of
such work, joined in the effort of its development, or paid ChemWare
for the use of the work product. Customer shall take any further
action and execute and deliver any further instrument, including
documents of assignment or acknowledgment, that ChemWare may
reasonably request in ordei• to establish and perfect ChemWare's
exclusive ownership rights in such works. Customer shall not assert
any right, title, or interest in such works, except far the non-exclusive
right of use granted to Customer at the time of its deliveiy or on-site
development.
PA1zAGRArH 5
LIMITED WARRANTIES AND DISCLAIMER OF LIABILITY
51. Except as set forth in this Agreement, ChemWare expressly
disclaims any and all warranties concerning the Materials or the
services to be rendered hereunder, whether expressed or implied,
including (without limitation) any warranty of inerchantability or
fitness for a particular purpose.
� 5.2. Neither party shall be liable for any consequential or special
damages arising fi•om breach of warranty, breach of conh•act,
negligence or any other legal theory, whether in tort or contract, even
if the other party has been advised of the likelihood of such damages
occurring, including without limitation, damages fi•om interruption of
business, loss of profits or business opportunities, loss of use of
software, loss of data, cost of reci•eating lost data, cost of any
substitute software, or losses caused by delay.
5.3. Neither party shall be liable for any failure or delay in
performance of any obligation under this Agreement if such failure or
delay is caused by circumstances not directly or substantially under
the control of the other party, including without limitation, failures
resulting fi•om acts of God, acts of public authorities, fires or other
natural disasters, delays of suppliers or carriers.
5.4. ChemWare shall not be liable for recovery of the database or
lost data due to Customer Error, disk carruption or other factors
outside of ChemWare's control, including but not limited to acts of
God, power surges or othei• electrical malfunction, neglect or
inadequate maintenance of the Software, or problems caused by or
related to the operating systein, nehvork or system hardware, which
problems shall also be considered Other Services.
5.5. Except for damages for personal injury, including death, or
damage to tangible property, caused by ChemWare, ChemWare's
ChemWare Attachment_B_Main[enance Suppori Agreement_4 22 13_rev.doc Page 2 of 5 Re��. OS/I6/13
ATTACHMENT B— SOFTWARE MAINTENANCE AGREEMENT
HORIZON� LABORATORY INFORMATION
MANAGEMENT SYSTEM
This Standard Soflware Maintenance Agreement ("Agreement")
is made and entered into as of the date of the last signatt�re below,
between ChemWare Inc., a North Carolina corporation
("ChemWare") with its principal office at 900 Ridgefield Drive,
Suite 150, Raleigh, North Carolina, 27609, and City of Fart Worth,
Texas ("Customer"), �vith its principal office at 1000 Throckmorton
Street, Fart Worth, Texas 76102.
WITNESSETH:
WHEREAS, ChemWare and Customer entered into a Software
License Agreement dated 3/1 U2010 ("License AgreemenY'); and
WHEFtEAS, Customer desires to obtain from ChemWare certain
software maintenance services with respect to the License Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
and conditions set out in this Agreement, the parties agree as follows:
PARAGRAPHI
DEFINITIONS �
1.1. "Sofhvare" means the executable code of the HORIZON
Laboratory Information Management System Software, together with
the executable code for the modules, add-ins, options, special
functions, and other ChemWare products included in the terms of the
License Agreement.
1.2. "Database" means the single central Oracle� database
including tables for housing Laboratory Information Management
System (LIMS) data established by the Software, together with any
other Oracle software products included in the tenns of the License
Agreement.
1.3. "Documentation" means all information provided by
ChemWare which describes the installation, operation and use of the
Software, in printed ar elech•onic format.
1.4. "Materials" means the Software, Documentation and
Database.
1.5. "Oracle" means the Oracle Corporation, located at 500
Oracle Parkway, Redwood Shores, California 94065.
1.6. "Parser" means an executable program, routine, ar other
code or method developed by ChemWare to reformat data and
generate an output file.
1.7. "Error Correction" means (i) a software modification or
addition that, when made or added to the Materials, establishes
material confoi7nity of the Materials to the Documentation; (ii) a
procedure or routine that, when observed in the regular operation of
the Materials, eliminates or bypasses the practical adverse effect on
Customer of such nonconformity; or (iii) an update to the
Documentation to reflect the intended description of the proper use of
the Materials.
1.8. "Updates" means any additional or supplemental releases of
the Materials made generally available under this Agreement, and
which may include Error Corrections or enhancements to the
Materials. The Updates do not include fundamental changes to the
graphical user interface technology, supported database or operating
system platfonn, or any additional hardware or software necessary to
support such changes.
1.9. "Unsupported Items" shall include but not be limited to the
following, whether or not provided by ChemWare: (i) scripts; (ii)
Materials or other software beyond the wairanty period; (iii) example
software (e.g., off-the-shelf reports, calculations, h•iggers or
interfaces) to assist users in extending the Software's functionality;
(iv) Parsers for versions of instruments or data sources other than
those for which the Parsers were ariginally developed; (v) Updates
other than the most recent Update of the Materials, provided that
ChemWare shall continue to support prior Updates for a period of
sixty (60) days fi•om the date of the most recent Update; and (vi)
hardware.
110. "Customer Error" means an errar in the functioning of
the Materials wl�ich results frotn (i) defects, problems, failures, or use
CI�emWare Attactunent B Maintenance Support Agreemenl_4 22 13_rev.doc Page I o
with hardware, software or other components or systems not provided
by ChemWare; (ii) use with Unsupported Items; (iii) negligence of
Customer or other non-ChemWare personnel; or (iv) modification of
the Materials by Customer, including without limitation changes
made by Customer to the control tables and computation routines in a
�nanner inconsistent with the Documentation or ChemWare-provided
h•aining. Customer Error shall also mean an eiror resulting from
Customer's use of the Materials (v) in a manner that is not within
ordinaiy use of the Materials as described in the Docmnentation; or
(vi) in a computing environment not certified or recommended by
ChemWare for use with the Materials.
1.1L "Error" means any e�7�or in the Documentation or failure
of the Software, as delivered (and, if applicable, installed) by
ChemWare, that materially affects the user's ability to use the
Software in accordance with the Documentation, to the extent the
error or failnre is not the result of Custoiner Error.
112. "Normal Working Hours" means the hours between 8:00
A.M, and 6:00 P.M. Eastern time, Monday through Friday, excluding
regularly scheduled ChemWare holidays.
113 "System Administrator" means any employee or
representative of Customer who has successfully completed all
ChemWare-recommeded h•aining on implementation a��d use of the
Materials.
PARAGRAPH 2
OBLIGATIONS AND SERVICES
2.1. Customer Obligations.
a. Customer shall be responsible for procuring, installing, and
maintaining all equipment, telephone lines, communications
interfaces, operating systems and other hardware and software
necessary to operate the Materials in conformance with the
Documentation.
b. Customer shall be responsible for installing and implementing
the Materials, unless such services are provided by ChemWare
pursuant to a separate agreement.
c. Customer shall designate up to three (3) System
Administrators for all software suppart and maintenance
communication �vith ChemWare's designated Technical Support and
Project Management points-of-contact.
d. Prior to contacting ChemWare for assistance, the System
Administrator shall review the Documentation and attempt to
diagnose and resolve Customer's issues relating to the Materials.
e. The System Administrator shall provide ongoing and timely
feedback to ChemWare in support of all troubleshooting and
resolution activities relating to the Materials. In some cases, this
feedback may reyuire the Customer Technical Representative to
supply a reproducible test case, database export, documentation (such
as screen captures), or remote or on-site access to Customer's
software and hardware.
2.2. Covered Services. During Normal Working Hours and
throughout the term of this Agreement:
a. ChemWare shall provide to the Customer Technical
Representatives telephone and e-mail suppart related to (i) Error
notification and resolution; (ii) questions on functional and
operational issues related to the Materials; (iii) configuration of the
conh•ol tables and results computations; and (iv) installation of new
Updates.
b. ChemWare shall adequately staff a call support center with
trained, full-time employees capable of rendering the Covered
Services in accordance with the response time objectives described in
Exhibit A to this Agreement.
c. ChemWare shall maintain a technical support request database
for tracking the disposition of all technical support requests, software
change rec�uests, and related com�nunications and diagnostic
information.
d. ChemWare shall be responsible for Ei�•or Correction, provided
that (i) ChetnWare is given written notice of the En•or by the
Customer dui•ing the term of this Agreement; a��d (ii) the Error can be
e 5 Rev. OS/16/ 13
EXHIBIT C-1
TO ATTACHMENT C- CHEMWARE STATEMENT OF WORK
ATTACHMENT C
STATEMENT OF WORK
Chemware shall provide implementation and installation services necessary to upgrade Customer's LIMS
system in accordance with this Statement of Work (SOW) and the Quotation Summary, which is attached
hereto to this SOW as Exhibit C-1. Chemware shall also provide maintenance and support services for
the LIMS system. The following tasks below shall be completed by Chemware and approved by
Customer as evidenced by an authorized signatory for Customer on the Milestone Acceptance Form.
Customer and Chemware shall mutually agree upon specific tasks to carry out the services contemplated
under this Agreement.
Test Environment - This task will provide Customer's LIMS laboratory (the "lab") with LIMS test
environment separate from the production server. This will enable the lab to effectively test software
patches and new software releases before introducing them to the production environment.
Enhancements and Additional Reports - Traditionally the lab receives additional guidance from
regulatory agencies such as the Texas Commission on Environmental Quality (TCEQ) or the
Environmental Protection Agency (EPA) that would require new reports. Upon Customer's request,
Chemware will provide additional enhancements to the LIMS system that will generate new reports as
necessary.
Customer Web Portal - The lab will engage Chemware to build a customer facing web portal that will
allow a self-service feature for outside customers to obtain their lab results. Typically customers receive
their reports via mail or fax. This enhancement will allow customer to log on to the Internet to retrieve
results without the added expense of faxing or mailing results.
Wireless Devices for Field Collectors - The lab uses employees to collect water samples from various
areas throughout the City. These activities can be streamlined by use of wireless devices and allow for
collection data to be sent directly to the lab. Chemware will recommend appropriate wireless devices and
perform the necessary software code changes to work with the �IMS system.
Maintenance and Support Services — Maintenance and support services shall be provided in
accordance with Attachment B hereto, Software Maintenance Agreement.
ATTACHMENT B— SOF'I'WARE MAINTENANCE AGREEMENT
EXHIBIT A
TO SOFTWARE MAINTENANCE AGREEMENT
A. RATE SCHEDULE FOR SERVICES:
. �..<,,,,
fi e and I;oc��iou of,u�erv�ce .; . =;< Serviee Level-Rate=Schedul,e `` '`
Normal Workin Hours, at ChemWare Covered under this Agreement.
Normal Working Hours, at Customer Site Other Service�; requires Technical Services
Agreement.
Emergenc,y Hours, Support Staff Contacted No additional charge if resolvable without
at ChemWare overtime.
Emergency Hours, Requires On-Site Work, �equires Customer to establish in advance an
Overtime or Support Staff Contacted Off- Emergency Support Option account.z
Site
B. RESPONSE TIME OBJECTIVES:
� ... :
��� ,Prior��� i°.� . . '��� ��..�:� �#'riorit 2���, �� ���� ��� �. .1'irior► �.�3v`��..�. ': Pri�rri� ��9�: : � �:�riori#�������� ��
� Ser�ceLe�?el '_ ; � � �.. ��� _� �: �� � '`� �:���'� $ug �Rep4rt%� Test �� 5ys#eml �� -.:,. ,
� � .�..�� � ��� �'roddeta�� Sys��e�ns �; : , � �. . Unsa�porfed Item
� � , � �.
� � � � � >�. :. , - � Ues�t�on��. � ��. �� � � ��; �' �emeutatiou ' .
� �..
Ackno�vledgement Immediate Immediate 10 hours 10 hours l0 hours
Res onse 1 hour 4 hours 10 hours 2 days Other ServiceZ
Tem orar Fix 1 hour 2 da s Not A licable Not A licable Other Servicez
Software Update Next Update or Next Update or Next Update or Not Applicable Other Service2
General Release General Release General Release
Down production System useability Issue not affecting System config- As defined in
system; Oracle crash; compromised; low data delivery; pro- uration and control Paragraph 23:
critical sample or priority samples or duction or parallel table setup; database printer setup;
data processing data processing testing questions; information; general networking and
halted. impacted; form implementation implementation hardware issues;
Description/ failure or data halted during questions; enhance- custom work z not
Examples processing en•or. parallel testing; ment request. under warranty.
bug with reason-
able workaround
or non-critical
feature with no
workaround;
custom work
under warranty.
C. STANDARD SOFTWARE MAINTENANCE FEES:
❑ Software maintenance fee for the Software and Documentation for period 5/1/2013 — 4/30/2014, at $38,676.00.
❑ Software maintenance fee for the Database for period 5/1/2013 — 4/30/2014, at $1,563.00.
Each Renewal Period: The maintenance fees for each annual renewal period from 5/1/2014 — 4/30/2017 shall be $43,433.00 far currently
owned licenses. Maintenance on all additional licenses purchased during the term will be assessed at 18% far the Software and Documentation
and 22% for the Database.
A renewal notice and quotation far fees to renew this Agreement shall be provided to Customer no later than sixty (60) days prior to the
expiration of the then-current tenn. An invoice for renewal fees shall be provided to Customer no later than thirty (30) days prior to expiration,
and shall be payable on the date the ne�v agreement commences. Unless other�vise agreed to by the parties, the terms of the Agreement shall
renew automatically; in such cases, only the prior term's Exhibit A will be superseded by a revised Exhibit A for the renewal term.
' See Parag•aph 2.3 and Teclmical Se�vices Agreement for applicable tenns and i�ates.
2See ww�v.che�mvare.com for applicable tenns and iates.
ChemNare Attnchmenl_A_D4aintenance Support Agreement_4 22 13_rer.doc Page S of 5 Re��. OS/l6/13
APPROVED AS TO�ORM AND L,EGALITY:
gyL.�y� v r 'u►�
Assistant City Attorn y
M & C: none required
Vendor Network Access Agreement 3
Chenn��are, Inc. Rev. 10/5/2011
. .r»'
•CH EM WA�2 E
Customer: City of Forl Warth
Contact: Stacy Walters
Address: 2600 SE Loop 820
Ciry, ST Zip: Fort Worth, TX 76140
Phone: (817)392-5902
Email: stacv waltersCa�forM
��D���f�� �
HORIiON� LA�IORATOftY YN�OFtMAiIbN NIANA��M�N7 S�fSY�fWS #201301o10-CC
January 26, 2013
O ❑ HC-001 HORIZON Central
0
0
0
0
❑ HO-101 HORIZON Data Management-Vision�
❑ HO-105 HORIZON Data Manspement-WebVis
Acct Mgr. Chris Couch
Phone: 919.896.7740
EmaiL ccouch�^a.chemware com
Project Mgr: Kevin Carter
Phone: 919.855.8716 x223
Email: kcarter�chemware.com
LIMS License
❑ HO-106 HORIZON Report Manage�-Actua[e�
❑ HO-108 HORIZON Statistical Analysis-NWA Quality Analyst�
Web Application Server for HDM
Web Report Portal, Dev Too
Control Charts/Anatysis Tool
Domestic USD
� �
10 named usersl No Charge
� '�'
� named users� 3,568
� server�_ _ 4,967
subtotal SDMS software� $ 8.535
�_ named
1 � work;
1, 304
2,439
�
2,394
3,146
5,540
�
1,192
1,192
No C�
10,974
5,540
1.192
subtotal BI
� ❑ OR-304 Oracle Database, ESL S�
❑O ❑ OR-303 Oracle Forms Services
�� IM-404 Software Installation Sen
��� — --
O ❑ HC HORIZON LIMS
O ❑ HO Advanced Enlerprise Solutions
0 ❑ OR Database and Tools
O ❑ IM Project Management and Implementation
Footnotes:
Named User License
Web-Based LIMS De
subtotal
10 � named usersJ_
ent 10 named users
subtotal database software� $
�`/`/ +� hours 149
management and implementation $
_ �
� 10 named users
�� various �
—�various �
g 8 _ hours _ �
quotation total�
'erms and Conditions: Refer to ChemWare's proposal and/or attachments for details. Unless specifed otherwise in ChemWare's proposal or purchase agreement, (1) this is a
�-exceed quotation valid for 30 days; (2) sales/use taxes, S&H (if applicable) and travel expenses will be computed/billed separately untess itemized above; (3) payment lerms
!et 30 and subject to 1.5% per month late payment fee; (4) retes and subtotals above may be rounded; totals are accurate; (5) volume discounts are based on license size; s�
'�iscounted and bundled pnces are dependent on other items/quantities in this order, (6) customer agrees to take delivery on all items in this order no later than 12 months from F
�nless specifed othenvise in Exhibit B of the Sofhvare License Agreemenl.
Accepted by:
Signed: Title:
Name: Stacy Walters Dale:
.�
�CHEMWARE
quotation ,-
HORIZON� LABORATORY INFORMATION MANAGEMENT SYSTEMS
Gustomer. Cfty of Ft. Worth Water Department Acct Mgr:
Contact: Rick Brents Phone:
Address: 1000 Throckmorton Street Email:
City, ST Zip: Ft. Worth, TX 76102 Project Mgr:
Phone: 817.392.8453 Phone:
Email: F'ick Brent;(p�fprtwo�thqov org Email:
O ❑ WA-703 HORIZON Software Maintenance Renewal
❑x ❑ WA-704 Oracle Software Maintenance Renewal _
❑x ❑ WA Warranty and Support
Marya Metivier
919.855.8716 x270
mm��ivirr; 7 chgmware.��om
Help Desk/Updates
' S/1/2013 - 4/30/2014 = $40,239 ($38,676 - HORIZON, $1,563 - Oracle)
' S/1/2014 - 4/30/2015 = $43,433 ($40,651 - HORIZON, $2,782 - Oracle)
' S/1/2015 - 4/30/2016 = $43,433 ($40,651 - HORIZON, $2,782 - Oracle)
' S/1/2016 - 4/30/2017 = $43,433 ($40,651 - HORIZON, $2,782 - Oracle)
z Amounts are based on the attached calculations. Additional license purchases made
during this term would increase total amounts for lhe period.
i ���
�
��: This quotation is valitl for 90 days. Sales taxes, if appticable, will be computed and billed separately.
Payment terms are Net 30 Days and subject to 1.5 % per month late payment fee.
Accepted by:
Signed: Title:
Name: Rick Brents Date:
18°/a
22 %
#20080-13
March 4, 2013
Domestic USD
170,537
ATTACHMENT A— SOFTVVARE LICENSE AGREEMENT •
EXHIBIT A
TO SOFTWARE LICENSE AGREEMENT
A. LICENSED MATERIALS:
The Materials included in this License are itemized in the Licensed Units and quantities described below:
Laborator Information
HC-
002 HORIZON Central-One
HO-
101
HO-
105
ScientiCc Data .
HORIZON Data
HORIZON Data
Vision�
WebVision�
and Business
HO-
106
HO-
107
HO-
108
HO-
120
OR-
305
OR-
303
HORIZON Report Manage
ActuateC� e.Spreadsheet
HORIZON Statistical Anal
Simple Barcode Software�
Data Capture and Integration
�
Database and Tools
Oracle9i� Database, ESL Standard Edition
Oracle Forms Services (Includes Oracle Re�
Core LIMS, Database Licenses
Data Capture/Manage
Thin Client for HDM
Web Report Portal,
DMR Spreadsheet
Conh•ol Charts/Ana
Scanned Document
Dev Tools
Tool
Processor-Based (Unlim Users)
Named User License
Web-Based LIMS Denlovment
C'�
Named Users
17 Named Users
2 Seivers
1 Processor
2 Named Users
1 Named User
2 Workstation
1 Server
2
10
45
Processors
Named .Users
Named Users
( E'f it f'i�t.�il�"arc. ,�tt hn nt ?.,_I � rt�c �er�cm nt_�'__> 1, nrcAi.-ael uc-z�i- ,F-"ti�-c�,.. F,e�.-t--FE-s:AaePage 5 0(5 Rev. 5/16/2013
M&C Review
Page 1 of 2
O�cial site of the City of Foit tNarch, Texas
� , � �" �
'� .r �� � �-„�� -��.-i<'a a r%,si _- �;-='c� ���1`SeJ A'f -�� � -•iTd/ �`-1
� ' �-
COUNCIL ACTION: Approved on 5/14/2013
DATE:
CODE:
5/14/2013
C
REFERENCE NO.: **G26255
TYPE:
CONSENT
LOG NAME:
PUBUC
HEARING:
60CHEMWARE
UPGRADE
NO
SUBJECT: Authorize Execution of a Sole Source Services Agreement with ChemWare Inc., to
Upgrade the Laboratory Instrument Management System, Provide Software
Implementation Services, and Provide Software Maintenance and Support Services for
the Water Department in the Amount of $68,435.00 Per Year (ALL COUNCIL
DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a sole source services Agreement
with ChemWare Inc., to upgrade the Laboratory Instrument Management System, provide software
impiementation services, and provide software maintenance and support services for the Water
Department in the amount of $68,435.00 per year.
DISCUSSION:
On March 9, 2010, (M&C C-24124) the City Council authorized the procurement, licensing,
implementation and support of software for the Laboratory Information System (LIMS) for use by the
Water Laboratory. The purpose of this Mayor and Council Communication (M&C) is to authorize the
upgrade for LIMS, renewal of support and maintenance, provide additional onsite support of the
system and to provide additional software licenses for the LIMS test system. The LIMS system is
critical to the lab for compliance with environmental quality regulations, maintaining accreditation and
continued support of the Water utility. This services Agreement will allow the vendor to upgrade the
current LIMS system software, install an LIMS test environment that provides the ability to test
updates before applying them to the production system, build a new web portal and provide other
needed system enhancements.
ChemWare is the sole supplier and authorized service company for the software for LIMS, including
data management and instrument interFacing products. Additional software, services and support
relating to LIMS products are not available from any other supplier source.
ADMINSTRATIVE AMENDMENT — An increase or administrative amendment for this Agreement
may be made by the City Manager, or his designee, for the amount up to $50,000.00 and does not
require specific City Council approval so long as sufficient funds have been appropriated.
M/WBE OFFICE: A waiver of the goal for MBE/SBE subcontracting requirements was requested by
the Department and approved by the M/WBE Office, in accordance with the M/WBE or BDE
Ordinance, because the M/WBE Waiver is solicited based on the sole source information provided to
the M/WBE Office by the managing department's project manager.
TERM — This Agreement shall be effective on May 1, 2013 and expire on April 30, 2014.
RENEWAL OPTIONS - This Agreement may be renewed for three additional consecutive one-year
terms at the City's option, in accordance with the terms contract. This action does not require specific
City Council approval provided that the City Council has appropriated sufficient funds to satisfy the
City's obligations during the renewal term.
http://apps.cfwnet.org/council�acicet/mc_review.asp?ID=18407&councildate=5/14/2013 5/23/2013
M&C Review
FISCAL INFORMATION/CERTIFICATION:
Page 2 of 2
The Financial Management Services Director certifies that funds are available in the current operating
budget, as appropriated, for the Water and Sewer Operating Fund.
TO Fund/AccountlCenters
FROM Fund/Account/Centers
PE45 531200 0603001 $12,500.00
PE45 531200 0703001 $12,500.00
PE45 539120 0604012 $21,717.50
PE45 539120 0704012 $21,717.50
Submitted for City Manager's Office by:
Originatinq Department Head:
Additional Information Contact:
ATTACHMENTS
Fernando Costa (6122)
S. Frank Crumb (8207)
Rick Brents (8453)
http://apps.cfwnet.org/council�acicet/mc review.asp?ID=18407&councildate=5/14/2013 5/23/2013