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HomeMy WebLinkAboutContract 45190 ITY SECRETARYq T RACTW, LICENSE .G EE_ Thi-S License Agreement (this "Agreement"), is entered into ,:is of the last date sigried by the parties below (the "ElTe:ti ve ]__)c-tte") by and between the following: C SHAI I n'-/ 7 P. 0. BOX 9445 N/1IDLAND, r TEXAS 79708-9445 (800) 968-2748 (4-32) 6118-01012 (facsimile) 1.,lCFNSEE.- C117Y OF FORT WORTH 1000 THROCKMORTON' STREET FORT WORTH, TEXAS 7'61012 (8 17) 392-5700_(TELEHONE) (817) 392-5724 (FACSIMILE) (ELECTRONIC MAIL) RECITALS WHEREAS Licensor develops and markets web based computer soft ware applications on demand so-ftware), for Client Trod king, Project Tracking comi-nonly retei-red to "CaseManager-NewGen ", and WHEREAS Licensee desires to acquire a license to use the software and Licensor desires to grant Licensee the license. NOW THEREFORE, 1"or good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties agree as f6:llows.. 1. DEFINITIONS 1.1. "'Software"' means Licensor's, core web-based software application for Client Tracking, Project Track] g kn n #AS " Manager — New Gen." Software as used herein shall also include any options or riow C Z Case modules added, to the core application as identified on Exhibit B hereto, incorporated herein, which may include linking to Hardware and custom modules., 1_2 "Documentation" means all user manuals, and other written material created by Licensor to describe the functionality or assist in the use of the Software., 1.3. "Hardware" means the optional hardware, if any, identifIed. on Exhibit C,1 attached hereto and corporated herein, roc red for I",icenseeby Licensor. FF1 IAL 12 City of Fort Worth'-Shah Software License Agreement Case Manager NewGen Page I of 9 C17T SECRETARY R EC E�V E!D L",', FT# WORTH,TX 1.4 it License Fee"' means the fee to be paid by Licensee to Licensor as consideration for the 11cciise(s) granted under this Agreement and the right to use the Software and the DOCLIIIICntation, as further described herein and on Exhibit A. l.5 "'Reports" mean all Community Services Block Grant (CS ) and Comprehensive Fnergy Assistance Program (CEAp' repoils. as Texas Department of' Housing and Cornmunity Affairs (TDI CA) I - y g requires including programmatic and financial reports, along with tI ie abilit to query and enerate reports on specific munity clemogrCaphics, services, outcomes, etc., "fic to corn Act-ion Partners,. 2. GRANT OF HCENSE 2.1. Grant. Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a nonexclusive, nontransferable license in the Software, to use the Software exclusively for Licensee's business purposes and to use the Documentation solely in connection with Licensee's use of the Software, for use only by the number of licensed users permitted on Exhibit A. 2.2. License Restrictions. Except as specifically granted in this Agreement, Licensor owns and retains all right, title, and interest in the Software,, Documentation, and any and all related materials. This Agreement does not transfer ownership rights, of any description in the Software, Documentation, or any related materials to Licensee or any third party. Licensee will not modify, reverse engineer, or decompile the Software, or create derivative works, based on the Software. Licensee will not grant access, to the Software to any persons or entities other than Licensee's employees, consultants, or contractors and than only to the number of licensed users, specified in Exhibit A. Licensee may not sell the Software or right to use the Software to any person or make any other commercial use of the Software. Licensee will retain all copyright and trademark notices on the Soft ware and Documentation and will take other necessary steps to protect Licensor's intellectual property rights. City of Fort Worth-Shah software License Agreement Case Manager,New,Gien Page 2 of 9 3. VEt]'S & COSTS I License I'lees. In consideration for the License granted t o Licensee under this Agreement, Licensee shall p Licensor* (a.) Annual License Fee The fee provided in Exhibit A attached hereto, and incorporated herein, annually, in advance for each term of this Agreement, which includes the Software license t"clel, annual maintenance and support,, web hosting fee and the fees for any additional mod Life o�r component identifited on Exhlbit, B. (b.) Initial Set-up. Account Creation, Software U-pgr,a,de and Mqp Licensin A one-tinie,i Wn- reoccurring fee of $9,800.00 payable on or after the Effective Date but prior to the C ominen cement Date. Taxes. The City is a tax exempt entity and shall not 'be liable for ai.-iy taxes pursuant to this Agreenient. 4. LICENSO,R"S OBLIGATIONS 4.1. Deliverables. On the Commencement Date or Conversion Date specified in Exhlhlt A of this Agreement, Licensor will provide (1) access to the Software, limited to the number of users as specified in Exhibit A,, for Licensee's use together with the Documentation. 4.2 R Licensor shall provide Licensee with the ability to download and save Reports in CS,V or pdf format for day-to-day use of the hosted solution. 4.3. Suppo.rt and Maintenance. For so long as, Licensee subscribes to -the Software, and for so long as Licens,or offers, support and maintenance for users of the Software, Licensor will provide Licensee with telephone technical support, software upgrades as developed, webinars on request in connection with Licensee's use of the Software included in Licensee's annual license fee. 5, TERM AND TERMINATION 5.1. Term. This Agreement is effective on the Effective Date first specifiled above. The initial tern of this Agreemerit shall be one (1) year from the Effective Date. Unless sooner terminated as set forth in Sections 5.2 and 5.3, below, the Agreement shall be renewable at the option old the City for two (2) additional ternis of one year each. The City shall provide Consultant with written notice of its intent to renew at least thirty ('NO) days prior to the end of each term. 5.2. Termination for Convenience. Licensor or Licensee may terminate the Agreement at any time and frorn time to time on thirty (30) days' prior written notice to the other. Licenser's notice of any teri-nination for convenience must be accompanied by a refund of any prorated, payments received by Licensor in advance City of Fort Worth—Shah Software License Agreement Case Manager NewGen Page 3 of 9 for nionths beyond the tee tninc-,,itioj,,1 (late. Licensor rnc,,ty a.1so to 1.1-1­1 In ate this Agree rlient ca, to any additional iiio dial es, appliccatiorls, Or con1ponents I,n excess of' (lie core, application (as identified on Exhibit B) t,ipioil thirty ( �"l Y C 11 �Z. CIO) 1C. .3 wt*itten riottice (Witl_100t diSCOLIFIt or reftin,d) if (i) 1_,icensor's core software application 1-10 ioilgel. SLIPI)Off,tS SUCh c-7tdd I itlol-ial t'nod'utes, applications or compoitleints or (ii) L,iCe1'ISCe ftlik tO Up'ryi-ade any 11-trd%, ti kit", c 0 r c1CCjL11re additional hardware 1"'iecessary to n,iake SLIGh niodules,, applications, oi- co n"I pol'i e I'll's Co11,1[x:I'[.i[)JC wit1­1, l Jeetisol. s corc capplicatioti software. Ternailiatiot"i t' it, Either pariy as applicable, will hitav(, the 'gi-it. in ­,Clditioin�, \vIll-Icutt 0_­.­111111­.­­­..... C , *� H Prejudice to any other rights or ren-ledics, to terniinate t1ils Agreein.ent C-ts follows.- �11. By Licerisor, oi-i 15 cktys" writtien notice, it' L,.icerlsec fails) to pay fl,ic anioun[s due to [,iceil.sor [?Lirsuant to this Agreeinent,' b By Licetisor, ()n '15 days' written notice, if there is a change in control oc 1,icense , whether by sale of assets, stock-,, merger, or (Atierwise; C. B either party foi- any niaterial breach of this Agreement, h I Itll y 1 olt er tha"), F i e to rTlake payniel-its under Section that is not cui-ed wit it 10 clays of recc,ipt by the party iti defaLilt of' a notice spifyinor the breach and requiring its cure* oil, ice] t") I d. By e ther art on written notice, if.- (i) all or, a substantial portion ofthe assets of' the other party are transferred 'to, an assignee for the benefit olf creditors, to, a receiver, 01, to a trustee in, banki-tiptcy; (ji) a proceeding is commenced by or ag,ainst the other party for relief under bal"iki:LIPICY or similar laws, and Sli proceeding is not distIllssied within 60 day& or (iji) the other party is, adjudgeld bankrupt. 5-4. Rill hts, on Termination. Licensor has and i7eiserves all rights and rernediles that it has, by' operation, of law or otherwise to enjoin d"le unlawful or unauthorized use of the Software or Documentation, including, With,01.1t limitation, terniinatlng L'icensee'lis a,cce�ss, to the Software. Upon termination, Licensee s have the riglit to receive fro t-n Licensor, a copy of all Licelisee data generated through the hosted solution in a format that is inachine readable with the ability to download and impoi-t data in a iiiatlner th,at is acceptable to Ucensee. Licensor shall Provide such, data to Licensee within filve (51), calendar days following the effective date of terrnini,c,ition. Sections 6, 7, and 8 will survive termination or expilration of this Agreement as will, any cause of or ction a c c lairn of either party, whether in law,or in equity, arising OLlt of any breach or default. 6. WARRANTIES, DISCLAIMER, AND f.,IMITATIONS 6.1. W a r ra n t1i e S. (a.) Software and Documentation. Licenisor hereby warrants, to Licensee that Licensor is the owner of the Software and the Documentation oi- hias the right to gricant, to Licensee the license to use the Software and Doicurnentati,on in the nianner and for the purposes, set forth in this Agi-ecinent \Vit11OUt violating any rights, oil"a third party, and that the ,niedia containing the Software wfll be tree fion-i defects for a period of ninety (190) days from the date of"dielivery to Licensee, provided ttiat this ra rity does City of Fort,Worth,-Shai h Software License Agreement Ma Case nager NewGen Page 4 of 9 k not cover defects fil Lhe diskettes dUe to Licensee's n,)isuse of -the soft ware mecha or Can accident sUbseqUellt to delivery to Liceii,see. (b.) Tli­jird Pla ,Goods or Services,. To the extent the items delivered I)LII-Stlailt tO Agreement include any product developed, manufactUred, or delivered by a person or entity other thaj_i� Ljcensoi,, including but not limited to goods, services,, software, licenscisl applicatio,jis or code, mobile Plata computers, tablets, or terminals, 1--,I CENSOR 1­"iX1'1RESS,LY DISCLAIMS AND F'XCL(JDES ALL REPRESEN T,ATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ORAL OR, WRITTEN,, INCLUDING, 1T,HO_(JT LIMITATION, ANY AND ALL IMPLIED WARI�ANTIES OF MERCHANTABILITY ANDANY AND, ALL WARRANTIES OF FITNESS FOR A PATZTICULAR PURPOSE., All such third party products are delivered and accepted by Licensee "AS-IS, W1JERE-IS,: ,and with ALI., FAUI_,.TS.51 6.2. Disclairner. TFIE WARRANTIES SET FORTH IN SECTION 6.1, ABOVE, ARE fN LIEU 0F3 AND THIS AGREEMENT EXPRESSLY EXCLtJDF-"'.S,, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL (.')R WRITTENI, fNCLU DING WITTOUT` LIMITATION: (a) ANYWARRANTY THAT THE SOFTWARE IS ERROR-FREE,, WILL, OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARI". CONFIGURATIONS,; (b) ANY AND ALL IMPLIED WARRANTIES, OF MERCHANTABILITY,- AND (c) ANY AND ALL WAR R.ANTIE,S OF FITNESS FOR A PARTICULAR PURPOSE. 6.31. Remedies on Breach of Warr,aqy. In the event of any breach of the warranty set forth in Section 6.1 (a), above, Licensee's exclusive remedy will be for Licensor to promptly replace defective software media. In the event of any other breach of-the warranty set forth in this Section 6, Licensee's exclusive remedy will be for Licensor to refund the license fees actually received from Licensee. 6A Limitation of Li'abilit y. LICENSOR ISNO"I" LIABLE FOR ANY INDIRECT, INCIDENTAL,1 SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE I..,OSS, OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE, GOODS INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE 1JOSSIB1111"I'YOF SUCH DAMAGES. 7. CONFIDENTIALFry 7.1. Confiden Licensee acknowledges that the Software and Documentation, and all. inforniation relating to the business and operations, of the Licensor that Licensee learns. or has learned during or prio�r to the term of this Agreement, is the valuable, confidential, and proprietary information of the Licensor. City of Fort Worth-Shah Software License Agreement Case Manager NewGen Page 5 f 9 j,")d its ei: Uring t1le Period this Agreement is in effect, and at all tinles, after a wards, I-licenseell '11ployees, ("ontractors, coristiltatits, and a(,:),ents, will: a..a. sa_fegu,,-i,rd the con-17'idential informati,on with ffie san-ie degree of cc-ire (1i,at it uses to 1)rolect its oNvii confidential inforrilati-oi-i,; b. not use the informatioll except as permitted tincler this Agreement; L­uld C. not diss eminat-e, disclose, sell, publis.-Ji, or otherwise rna,ke avai,lable the infori-nation to y thircl party w ithout tl,,--)e prior written consent of Lice,Rsor. 7.2. Limitations on Confidentiality Restrictions. Section 7'.1 does not apply to an,y int"orm,ation that: a. Is already law-,fully in the Licenseefs, possession (unless received pursuant to a nondis,clostire agreement)., 1). Is or becomes generally available to the public through no Fault of the Licensee, C. Is disclosed to the Licensee by a third party who may transfer or disc,lose Such infori-nation without restriction; d. Is required to be disclosed by Licensee as a matter of law Cprovided that the Licensee will use all reasonable efforts to provide the disclosing, party with prior notice of such disclosure and to obtain a protective order therefore); e. Is disclosed by the Licensee with the disclosing party's approval, or f. Is independently developed by the Licensee without any Use of confidential information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party 10 days' prior written notice of any disclosure of information Under this agreement. 7.3). Lj*.unctive Relief for Breach. Licensor and Licensee acknowledge that any breach of Section T 1 by a receiving party will irreparably harm Licensor. Accordingly, in the event, of a breach, Licensor is entitled to promptly seek injunctive relief, in addition to any other remedies that Licensor may have at law or in equitY. & GENERAL inmen icensee may not assign, sublicense, or transfer Licensee's rights or delegate its 8.1. Assig t. L obligations tinder this Agreement, without icensor's prior written consent., This Agreement will be binding on. the successors and assigns of Licensee. 8.2. Entire Agre,ement. ,1.". is Agreement, along with -the Exhibits attached and the executed th' A constitute the final and complete understanding between the parties, and replaces, Addendum to is Agreement, and supersedes all previous oral, or written agreements, understandings, or arrangements between the parties, witli respect to the subject matter contained in this Agreement. -eement, notices required to be oven purstu ant 8.-) Notices, Except as otherwisle provided in this Agi a to this Agreement will be effective when received, and will be sufficient if given in writing, land-delivered, sent by facsin-ille with confirmation of receipt, sent by First Class it return receipt requested, postage prepaid,, or sent by overnight courier service and addressed as provided on page 1. of this Agreement or such C er address as the parties may provide to the other in writing. City of Fort Worth—Shah Sow m ftare License Agreeent Case Manager New Page 6 of 9 G111overning_j_.,aw and Jurisdiction. The license is, sold and delivered in, Fort Worth, Tem-Is. "I"'leis will be governed by aild Cent tI-LIed in accordance witt-i Texas law,, without reg(axd to the pri,riciples of' J'ct of laws. Venue shall be proper (-)nty it "I- -- nI County, Texas. c o iii I I _"cu I a 8.5. Seers i In use any provision of this Agreement is held to he invc,"Ll,id, tinenforceabtc, Ot 'llegall, the provision will be severed froni tai**s Agreement, and stich hivalidity, UDCnforceabllity, Or illeg(ahty will 1101 ,,Iffect Lioy ottier provisions oftt'iis Agn,cerriet'a eemetit to be ex,,ecuted as, ofthe dca,te wi"Ifen above. I N' W the parties have caused th-.is Agi I J GEN S S ff A 11 S 0 114 T W A,,R'Fj I J N C. By Jaga"""'t, Shah, President 1011",� Date,.- i 1?" 4) Z �' I t'' o ;) L I C EN�E E CITY OF FORT WORTH _t', �Visian Aliants Assistant City Manager ol Date. .......... TES 00 0 wool (10e % % Ma a ser 00 000000 City Secretary ............. of 4"I, APPROVED TO FORM AND LE(__4ALITY B Maleshia B. Farmer Sr. Assistant City Attorney CONTRACT AUTHORIZATION M&C: Not OFFICIAL RECORD CITY SECRETARY mw..� City of Fort Worth Shah Software License Agreement FTm WORTH,TX e o 9 Case Manager NewGen P 7 f E A COMMENCEMENTICONVERSION DAT11'"'4. Upon tl-je E-t-fective Date of the Agrecriielill, as defined in the License Agreernent tAcensee's Initials-, City of Fort Worth-Shah Software:License Agreement Case Manager NliewGen Page 8 of 9 VII F x 1111131 IT, I ATPLICA1,10N.') OPZ fAOf U L FS- Licensee's ln'dals- City of Fort Worth Shah Software License Agreement Case, Manager NewGen Page 9 of 9 Iq WORTH Will STANDARD FORM ADDENDUM OF THE CITY OF FORT WORTH, TEXAS To: Salles Contract and License Agreement With: Shah Software, Inc. Notwithstanding any language to the contrary in the attached Agreement pr,eseinted by Shah software, Inc., ("Contractor") for Client Tracking software upgrade referred to as Cas,eManager-NewGien (11,services"'), the City of Fort Worth ("City") and Contractor (collectively the [I parties"') hereby ,stipulate by evidence of execution below by a representative of each party duly authorized to bind the parties, hereto, that the parties hereby agree to the following: 1. Insurance: The City is, a governmental entity under the laws of the state of Texas, and pursuant to Chapter 22519 of the Texas Government Code, entitled ""Self-Insurance by Governmental Units," is self-insured) and therefore is not required to purch�ase, insurance. To the extent the Agreement requires, the City to purchase insurance, the City will provide a letter of self-insured status as requested by Contractor. To the extent the Contractor will be providing Technology services for the City, including but not limited to, software impllemen�tation, data migration, hosting services, maintenance and support services, or any other services which will require contractor to access to the City's network, servers,, or computers,, Contractor s,halll maintain Techinoloigy Errors & Ornissions insurance coverage in an amount acceptable to the City. 21. Indemnity.- To the extent the attached Agreement requires, the City to indemnify or hold Contractor or any third party, harmless from damages of any kind or character,1 such obligations are not binding upon the City. 3. Attorneys'' Fees, Penalties, and Liquidated' Damages: To the extent the attached Agreement requires the City to pay attorney's' fees for any action contemplated or taken, or penalties, or liquidated damages in any amolunt, the i City shall not be liable for attorniey's fees of Contractor or any third party, or any other fees or penalties or other such obligations. 4. Governing Law and Venue: This Agreement and the rights and obligat�io:ns of the parties, hereto shall be governed by, and co,n�strued in accordance with the laws of the United States, a,nd the state of Texas, exclusive of conflicts of laws provisions. VenLie for any suit brought under this Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. 5. Sovereign Immunity: Nothing herein oonstitutes a waiver of the City's sovereign immunity. To the extent this Agreement requires, the City to waive its rights or immunities as a government entity, such provisions are herelby deleted and shall have no force or effect. 6. Non Appropriation of Funds: In compliance with Article 11 § 5 of the Texas Constitution, iit is understood and agreed that all financial obligations of the City hereunder are subject to the availability of funds. If sufficient funds, are not appropriated or become unavailable to satisfy the City's, financial obligations, under the Agreement, the City shall have the right to ter,minate the Agreement without penalty, or expense to the City whatsoever, except as to the portiions of the payments agreed upon for which funds have been appropriated. 7. Taxes: Toy the extent the attached Agreement requires the City to pay taxes of any natuire, the City shalll not be liable for any taxes, pursuant to the Agreement. Upon request, the City shall provide Contractor with evidence of its tax exempt status. 8. Confidential Information: To the extent the Agreement places any restrictions, on the City with respect, to disclosure of information, Contractor understands and acknowledges, that the City of Foirt Worth ("City") is a public, entity Under the laws of 'the State of Texas, and as such, all public documents and data, including the attached Agreement,, held by the City are subject to disclosure uinder Chapter 552 of the Texas Government Code, the Texas, Public Information Act (the "Act"). If the City is required to disclose any documents, that may reveal any Contractor proprietary information to, third parties under the Act, or by any other legal process, law, ruile or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Contactor prior to disclosure of such documents, The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as, "Proprietary / Confidential Information" or if'disclosure is required by the Act or any other applicable law or court order. In the event there its a request for such information, it will be the responsibility of Contractor to work, with the C,ity to submit reasons objecting, to disclosure. A determination as to whether such reasons are sufficient will not be decided by the City', blut by the Office of the Attorney General of the State of Texas, or by a court of competent jurisdiction, To the extent the pity proviidles information to the Contractor, Contractor shall More and maintain City Information in a secure manner and shall) not allow unauthorized users to access, modify, delete or otherwise corrupt City Information: in any way. Contractor shall notify the City immediately if the security or integirity of any City information has been compromised or is believed to have been compromised, The parties agree that Confidential Information shall not include information that is required to be disclosed pursuant to applicable 12W, rule, regulation or court order, 9. Limitation of Liability: [IntentionaHly Deleted]. 110. Iln dlemnity,.: To the extent the attached Agreement requires the City to indemnify Contractor or any third party, the hereby rejects any obligation for the City to comply with an indlemnity provision, and any such provision shall be binding on the City only to the extent permitted by law. 111. Force Maieure. To the extent the attached Agreement purports to release a party from its obligations under-the Agreement due to causes beyond its reasonable control (force ma�j'euire:)!, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the pulbilic enemy, fires, strikes, lockouts, natural disa,s,ters, wars, riots, material or labor restrictions by any governmental authority, transportation problems, and/or any other similar causes, such provision shell apply equally to both parties, 12., Diispute Resolution: To the extent the attached Agreement sets forth a dispute resolution procedure, such provision shall only apply to the City as set forth herein in this Addendum. In the event of a dispute, the parties may first submit the dispute for non-binding mediation in Tarrant County, Texas. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however, the parties, shall share equally in the costs of the mediation, In the event mediation is not successful, the dispute may, upon written consent of both parties, be submitted for binding arbitration in accordance,wit h the ruffles of the American Arbitration Association. Each party, shall be liable for its own expenses, including attorney's, fees; however, the parties shall share equally in the costs of the arbitration. In no event shall the City be required to submit a dispute to binding mediation, or arbitration without the City's pirior,written consent. 13. Assignment: To, the extent the Agreement authorizes assignment of rights, duties and obligations of either party, such assign ent shall only be valid upon the express written consent of both parties. Any attempted, assignment in violation of this provision shall be null and void. 14. Conflicting Terms: If any provisions herein conflict with the terms, of the attached Agreement, the terms herein shall control. [,Signature Page Follows] C F,W Shah Software,Inc,Addenduni Pau of ACCEPTED AND AGREED,,,: CITY OF FORT WORTH: SHAH SO ARE, INC. ma By* By, Asa Allende IF QR t Shah, P A sztant City Manager ent 0 Date, 018 ATTEST-. By.� /90017 'OIIIIIII�Io ,a Yn City SeIcre,rryr [Title] I Lc 13 APPROVED AS TO, FORM AND LEGALITY: CONTRACT AUTHORIZATIOW: M&C: ww 06 males i arm r Date Approved,. Sr,, Assistant City Attorney CTW Shah Sofiwarc. InIc.Addend urn I la e 3 o 13) C IAL J RECORD RECORD CITY SECRETARY FTs W X'THI T O RTH', TX