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HomeMy WebLinkAboutContract 46058 CITY SECRETARY CONTRACT NO. `� CUBCDo C CUBEX SOFTWARE LICENSE AND SUPPORT AGREEMENT This Software License and Support Agreement("License and Support Agreement"), effective as of the date set forth below, is between Cubex LLC ("Cubex") and the CITY OF FORT WORTH, a home rule municipal corporation in Texas, acting by and through Charles Daniels, its duly authorized Assistant City Manager ("Customer") signing below. This License and Support Agreement contains the terms and conditions of Customer's licensing of the Cubex Software and use of the Cubex Customer Portal(as those terms are defined below)for the inventory storage and management system ("System Hardware") identified on the signed quote (referred to herein as Exhibit A), and the maintenance and support services to be provided by Cubex to Customer for the Cubex Software and System Hardware. If there are any conflicts between the terms outlined in this Software License and Support Agreement and Exhibit A,the terms of this Software License and Support Agreement shall control. Customer, please complete the Customer Data and sign below. Forward a signed copy of this License and Support Agreement to Cubex. Cubex will then countersign and return a fully-signed copy to you.The"Monthly Software License and Support Fee'is shown on the Quote Worksheet referred to as Exhibit A. If you install equipment at different times,there may be multiple Exhibits A. CUSTOMER CUBEX LLC City of Fort Worth By(Signature): Address:1000 Throckmorton St. Name(Print): Title: .V Fort Worth,Texas 76102 Date: By(Signature): Address: 1048 N.44th Street,Suite 100 Name(Print): Ch aniels Phoenix,AZ 85008 Title: Assistant City Manager 1. GENERAL www.mvcubex.net, of which Customer will attempt to comply with the Terms of Use of such site. The Cubex Software License shall 1.1 The term "Cubex Software" means the object code of (i) continue for the term hereof so long as Customer is current on its Cubex's system software that is pre-installed on the System Software License and Support Fee payments to Cubex. Customer Hardware,(ii)the current version of Cubex's web-hosted myCubex may not resell the System Hardware (or the Cubex Software software,and(iii)so long as Customer is current on its payments installed on the System Hardware)to any third party;provided,that to Cubex, all "Updates"to the Cubex Software made available by in connection with the sale of its practice it may sell the System Cubex. The term "Cubex Software" does not include any third Hardware (and the Cubex Software installed on the System party software that may be installed on or included with the System Hardware)to the purchaser; provided further,that such purchaser Hardware, including any software provided by the System agrees in writing to abide by all the terms and conditions of this Hardware manufacturer or any distributor. The term "Updates' License and Support Agreement. means all bug fixes, patches, and error corrections to the Cubex Software that Cubex makes generally available. 3. RESTRICTIONS 1.2 The Cubex Software is licensed to the Customer, not sold. 3.1 Customer shall not(i)use,copy,modify,sublicense,or assign Any references to terms such as "sale", or"purchase", or similar the Cubex Software(or any of Cubex's intellectual property related terms with respect to the Cubex Software in any documentation thereto, including, without limitation, any of Cubex's patents, related to Customer's purchase of the System Hardware will be copyrights,trademarks,know-how and/or trade secrets),except as interpreted as license rights only and will be subject to all the terms expressly provided herein; (ii) create any derivative works based and conditions set forth in this License and Support Agreement. on the Cubex Software,or create any custom applications with or custom interfaces to the Cubex Software without Cubex's prior 2. SOFTWARE LICENSE written consent; (iii) reverse engineer, disassemble or otherwise attempt to discover the source code of the Cubex Software;or(iv) Subject to the terms of this License and Support Agreement, in remove the Cubex Software from the System Hardware. consideration for Customers annual payment of the Software License and Support Fee, Cubex hereby grants to Customer(i)a 3.2 The Cubex Software and all intellectual property rights related non-exclusive, non-sublicenseable license to use the Cubex thereto are owned by Cubex and Cubex retains all right, title and Software as part of the System Hardware only and solely for End- interest in and to the Cubex Software (subject only to the Cubex Users internal purposes(the"Cubex Software License");and(ii) Software License). Cubex shall also own all copies, the right to use the current version of Cubex's web-hosted improvements,enhancements,modifications,and derivative works myCubex software and the "Cubex Customer Portal" at of the Cubex Software whether created by Cubex, or any other CUBEX and CFW License and Support Agreement lit Page 1 of 7 Execution Copy 10/9/14 RECEIVED OCT 23 2014 party. Customer will maintain and reproduce all trademark, 5.INVOICING copyright, patent and other proprietary rights notices included in the Cubex Software. Cubex will commence invoicing Customer for the first 12 months of the Annual Software License and Support Fee on the completion 4. MAINTENANCE AND SUPPORT SERVICES of the installation of the System Hardware. If the options to renew are exercised, Cubex will invoice Customer on each annual 4.1 In consideration for the Software License and Support Fee, anniversary thereafter for each renewal option. The full invoiced during the term of this Agreement, Cubex shall provide amount shall be due and payable upon receipt and shall be Customer with the following"Maintenance and Support Services" considered late if not paid within 30 days of the date of invoice. for the Cubex Software: Cubex may immediately suspend or terminate (at its option) A. Telephone and email Support.Cubex shall provide Customer's right to use the Cubex Software and the Cubex Customer telephone support (English only) designed to provide Customer Portal and the delivery of the Maintenance and Support assistance in diagnosing, troubleshooting and attempting to Services at any time while Customer is in default of any payment resolve technical problems involving the most current version of obligation under this License and Support Agreement, but only the Cubex Software.Telephone support may be accessed by any after Cubex has notified Customer of its intent to suspend or authorized Customer employee or representative calling Cubex at terminate and giving the Customer the right to cure the default the following toll-free number: 866.930.9251. Cubex's support within a reasonable time. The Software License and Support Fee department currently is staffed Monday through Friday 7:00 a.m. exclusive of all applicable sales,use and other similar taxes which to 6:00 p.m. Pacific Time, excluding Cubex observed will be added to the invoiced amount if applicable. holidays. Messages left on the support department's voice 6. WARRANTIES AND DISCLAIMERS mail after regular business hours will be promptly responded to on the next business day. The email address for Maintenance and 6.1 Subject to Customer's compliance with its responsibilities Support Services is su000rt(a)Cubexsystem.com. Please do not hereunder and the restrictions set forth herein, Cubex warrants send urgent support questions by email,use the telephone number that for 90 days from the completion of the installation of the above instead. System Hardware (the "Software Warranty Period"), the Cubex B. Updates. Cubex shall provide Customer with Software will substantially conform in accordance with its published Updates to the Cubex Software if and when any such Updates are specifications. This limited warranty extends only to Customer as generally released by Cubex to its customers. Cubex makes the original purchaser and extends only the Cubex Software and S o no representation or warranty that there will be any particular not the System Hardware. If,during the Software Warranty Period, n Customer reports to Cubex any substantial non-conformance with umber of Updates during the time that Customer is purchasing Maintenance and Support Services. Cubex will promptly notify the above warranty,Cubex will,as Customer's sole and exclusive remedy,make commercially reasonable efforts to repair or replace, Customer from time to time as Updates become available. at Cube Cubex's support personnel will coordinate the delivery (via the ware. Any unauthorized use or Internet) and assist Customer with its installation of all Updates misuse of f t the Cubex Soft option,the Cubex Software voids this warranty. In addition,this warranty does not apply if Customer has not properly operated, when necessary, and will use reasonable efforts to minimize any disruption to Customer's use of the Cubex Software when repaired or maintained the Cubex Software or the System providing such Updates. Updates will be furnished to Customer no Hardware, if the System Hardware has been subject to later than the date the relevant Update is released to other abnormal physical or electrical stress. Cubex does not warrant that the operation of the Cubex Software will be uninterrupted. customers of Cubex;provided,that Customer is then current on its Monthly Software License and Support Fee obligations to Cubex 6.2 Subject to Customer's compliance with its responsibilities and not otherwise in breach of its obligations to Cubex under this hereunder and the restrictions set forth herein,Cubex warrants the Software License and Support. All Updates will be provided with System Hardware for 90 days parts and labor. Post Warranty scripts and programs that install complete,working versions of the parts and labor will be provided at Cubex's prevailing prices and applicable Updates. rates. This limited warranty extends only to Customer as the 4.2 Cubex is not obligated to provide Maintenance and Support original purchaser. Services in the following situations:(i)Customer has not complied 6.3 Subject to Customer's compliance with its responsibilities with its obligations under Section 8, (ii) Customer's use of the hereunder and the restrictions set forth herein, Cubex warrants System Hardware is not in compliance with the manufacturer's that the Maintenance and Support Services will be performed in a conditions of use, (iii) the Cubex Software or the System professional and workmanlike manner with personnel that are Hardware is being used in combination with any item with which trained to provide such services. This warranty will continue for 90 such Software or Hardware is not intended to operate or be used, days from the completion of any Maintenance and Support (iv)the Cubex Software or the System Hardware has been modified Services(the"Support Warranty Period"). This limited warranty or altered other than by Cubex or as permitted by Cubex in writing, extends only to Customer as the original purchaser. If,during the (v)the problem is caused by Customer's negligence or damage to Support Warranty Period, Customer reports to Cubex any the Cubex Software or the System Hardware,(vi) Customer fails substantial non-conformance with the above warranty, Cubex will, to follow the recommended operating environment for the as Customer's sole and exclusive remedy, make commercially System Hardware, (vii)the problem is with third party software or reasonable efforts to redo the Maintenance and Support Services. hardware not licensed through or sold by Cubex, (viii)Customer This warranty does not apply if Customer has not properly has not installed and implemented all Updates provided by Cubex, operated, repaired or maintained the Cubex Software or the and(ix)moving the System Hardware. System Hardware,or if the System Hardware has been subject to 4.3 Cubex reserves the right to contract with a third party to abnormal physical or electrical stress. perform all or a portion of the Maintenance and Support Services. In the event Cubex chooses to use the services of a third party for 6.4 Extended Warranty. If you have elected to accept the Support Services, Cubex shall remain obligated hereunder to extended warranty and subject to your compliance with your ensure the quality and service level of service work in accordance responsibilities hereunder,the terms of any Warranty for hardware with this Maintenance and Support Agreement. or software herein are equal to the term of this agreement or the term of your extended warranty,whichever is greater. 6.5 EXCEPT AS EXPRESSLY WARRANTED ABOVE, THE CUBEX SOFTWARE AND THE MAINTENANCE AND SUPPORT CUBEX and CFW License and Support Agreement Page 2 of 7 Execution Copy 10/9/14 SERVICES ARE PROVIDED"AS IS"AND"WITH ALL FAULTS," AND CUBEX DISCLAIMS ALL OTHER WARRANTIES OF ANY 9.3 Sections 1,3,5,6.2,9.2,10, 11, 13, 14, 15, 16, 17,21,26 and KIND OR NATURE, WHETHER EXPRESS, OR IMPLIED, Section 9.3 of this License and Support Agreement shall survive INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF any termination or expiration of this License and Support OPERABILITY,QUIET ENJOYMENT,ACCURACY OF DATA,OR Agreement. QUALITY, AS WELL AS ANY WARRANTIES OF 10. GENERAL MERCHANTABILITY, WORKMANSHIP, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY 10.1 The Parties recognize that each party (the "Disclosing DEFECTS THEREIN. IN ADDITION, NO WARRANTY IS MADE BY CUBEX ON THE BASIS OF TRADE USAGE, COURSE OF Party")may provide confidential or proprietary information of such DEALING OR COURSE OF TRADE. Party (the "Confidential Information") to the other party (the "Receiving Party") in connection with this License and Support Agreement. Confidential Information does not include any 7. LIMITATION OF LIABILITY information that the Receiving Party can document: (i)was in the public domain at the time of disclosure or entered the public 7.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE domain subsequent to the time of disclosure, through no fault of OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, the Receiving Party; (ii)was in the Receiving Party's possession CONSEQUENTIAL, TORT, OR PUNITIVE DAMAGES, free of any obligation of confidence at the time it was REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, communicated to the Receiving Party; or (iii) was independently WITHOUT LIMITATION,LOST PROFITS, LOSS OF GOODWILL, developed by the Receiving Party without reference to or use of COSTS OF DELAY, BUSINESS INTERRUPTION, COSTS OF the Confidential Information of the Disclosing Party. The Receiving LOST OR DAMAGED DATA, BUSINESS, PROFITS OR Party agrees not to use or disclose the Confidential Information of LIABILITIES TO THIRD PARTIES ARISING FROM ANY the Disclosing Party, except as permitted in this License and SOURCE,EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE Support Agreement or as may be required by Federal or Texas POSSIBILITY OF SUCH DAMAGES. law. In addition, the Receiving Party will restrict access to the Confidential Information to those of its employees and agents who 7.2 THE CUMULATIVE LIABILITY OF EACH PARTY TO THE have a need to know for purposes of this License and Support OTHER PARTY FOR ALL CLAIMS ARISING FROM OR Agreement. The Receiving Party will protect the confidentiality of RELATING TO THIS LICENSE AND SUPPORT AGREEMENT the Confidential Information with the same degree of care the SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY Receiving Party uses to protect its own confidential information of CUSTOMER TO CUBEX OR CUBEX'S DISTRIBUTOR UNDER a similar nature,but in no event with less than reasonable care. THIS LICENSE AND SUPPORT AGREEMENT FOR THE Cubex may collect and use data generated through Customers PRECEDING CONSECUTIVE 12-MONTH PERIOD. IN THOSE use of the Cubex System for any reason whatsoever, including JURISDICTIONS THAT PURPORT TO DISALLOW THE using such data to provide system optimization and sharing such EXCLUSION OR LIMITATION OF DAMAGES, EACH PARTY'S data with third parties. Cubex agrees that it will comply with all LIABILITY SHALL BE LIMITED OR EXCLUDED TO THE applicable privacy laws in its use of such data. Notwithstanding MAXIMUM EXTENT ALLOWED WITHIN THOSE the foregoing, Customer shall remain responsible for compliance JURISDICTIONS. with all applicable customer data and privacy laws with respect to Customer's patients/customers to the extent allowed under Federal 8. CUSTOMER RESPONSIBILITIES or Texas law. 8.1 Customer shall be solely responsible,at its own cost and expense, 10.2 This License and Support Agreement comprises the entire for preparing and maintaining an appropriate physical environment for understanding between the parties with respect to the subject the System Hardware, including clean commercial power, climate matter hereof. This License and Support Agreement supersedes control and internet access at the System Hardware location. Internet all prior or contemporaneous oral, written or electronic access may be direct or through Customers internal network and shall communications,representations and warranties and prevails over be at a speed equal to DSL or Cable(not dial-up).Customer shall also any conflicting or additional terms of any quote, order, be responsible for providing, at its own cost and expense, suitable acknowledgment, or other communication between the parties or web-browsers(currently Microsoft Internet Explorer). Customer shall between Customer and any other party relating to its subject promptly install and implement any and all Software updates provided matter. to Customer. 10.3 This License and Support Agreement shall be deemed to 8.2 Customer shall ensure that its personnel receive adequate have been made in, and shall be construed under, the internal training in the use of the Cubex Software. laws of the State of Texas, without regard to the principles of conflicts of laws thereof. 9. TERM AND TERMINATION 10.4 If any provision of this License and Support Agreement is 9.1 This License and Support Agreement shall remain in effect for invalid or unenforceable for any reason in any jurisdiction, such one (1) years from the date of installation of the related System provision shall be construed to have been adjusted to the minimum Hardware and renew in one (1) year increments as long as extent necessary to cure such invalidity or unenforceability. The Customer is paying the Annual Software License and Support Fee; invalidity or unenforceability of one or more of the provisions provided,that Cubex may immediately terminate this License and contained in this License and Support Agreement shall not have Support Agreement (including, without limitation, the Cubex the effect of rendering any such provision invalid or unenforceable Software License and the delivery of the Maintenance and Support in any other case,circumstance or jurisdiction,or of rendering any Services) for any breach of Customer's payment obligations other provisions of this License and Support Agreement invalid or hereunder, and upon written notice, if Customer breaches any unenforceable whatsoever. other provision in this License and Support Agreement and fails to cure such breach (or to commence diligent efforts to cure such 10.5 No waiver under this License and Support Agreement shall be breach)within 5 days of such notice. valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any 9.2 If this License and Support Agreement is terminated by Cubex delay or forbearance by either party in exercising any right pursuant to Section 9.1, Customer must immediately discontinue hereunder shall not be deemed a waiver of that right. It is use of the Cubex Software and immediately pay to Cubex all understood and agreed that by execution of this Agreement, the amounts owed hereunder. CUBEX and CFW License and Support Agreement Page 3 of 7 Execution Copy 10/9/14 Customer does not waive or surrender any of its governmental conclusion of any audit commenced during the said three years powers or immunities. have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such 10.6 No amendment to this License and Support Agreement shall subcontractor involving transactions related to the subcontract,and be valid unless such amendment is made in writing and is signed further that Customer shall have access during normal working by authorized representatives of both parties. This License and hours to all subcontractor facilities and shall be provided adequate Support Agreement may be executed by facsimile and may be and appropriate work space in order to conduct audits in executed in two or more counterparts, each of which shall be compliance with the provisions of this paragraph. Customer shall deemed an original, but all of which together shall constitute one give subcontractor reasonable notice of intended audits. and the same instrument. 14.INDEPENDENT CONTRACTOR 10.7 14.1 It is expressly understood and agreed that Cubex shall Cubex shall not assign or subcontract any of its duties,obligations operate as an independent contractor as to all rights and or rights under this Agreement without the prior written consent of privileges and work performed under this Agreement,and not as the Customer. If the Customer grants consent to an assignment, agent, representative or employee of the Customer. Subject to the assignee shall execute a written agreement with the Customer and in accordance with the conditions and provisions of this and Cubex under which the assignee agrees to be bound by the Agreement, Cubex shall have the exclusive right to control the duties and obligations of Cubex under this Agreement.Cubex and details of its operations and activities and be solely responsible Assignee shall be jointly liable for all obligations of Cubex under for the acts and omissions of its officers, agents, servants, this Agreement prior to the effective date of the assignment. If the employees, contractors and subcontractors. Cubex Customer grants consent to a subcontract,the subcontractor shall acknowledges that the doctrine of respondeat superior shall not execute a written agreement with Cubex referencing this apply as between the Customer, its officers, agents, servants Agreement under which the subcontractor shall agree to be bound and employees, and Cubex, its officers, agents, employees, by the duties and obligations of Cubex under this Agreement as servants, contractors and subcontractors. Cubex further agrees such duties and obligations may apply. Cubex shall provide the that nothing herein shall be construed as the creation of a City with a fully executed copy of any such subcontract. partnership or joint enterprise between Customer and Cubex. It is further understood that the Customer shall in no way be 10.8 Customer shall appoint a qualified employee to assist Cubex considered a Co-employer or a Joint employer of Cubex or any o and to act as Cubex's primary contact during the delivery of the officers, agents, servants, employees or subcontractors of Cubex. Neither Cubex, nor any officers, agents, servants, Maintenance and Support Services. employees or subcontractors of Cubex shall be entitled to any 11. NON-APPROPRIATION OF FUNDS employment benefits from the Customer. Cubex shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself,and any of its officers,agents,servants, 11.1 In the event no funds or insufficient funds are appropriated employees or subcontractors. by Customer in any fiscal period for any payments due hereunder, Customer will notify Cubex of such occurrence and this Agreement shall terminate on the last day of the fiscal period for 15.INDEMNIFICATION which appropriations were received without penalty or expense to the Customer of any kind whatsoever,except as to the portions of CUBEX HEREBY COVENANTS AND AGREES TO the payments herein agreed upon for which funds have been INDEMNIFY, HOLD HARMLESS AND DEFEND THE appropriated. CUSTOMER, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS 12.DISCLOSURE OF CONFLICT OR LAWSUITS OF ANY KIND OR CHARACTER,WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE 12.1 Cubex hereby warrants to the Customer that Cubex has OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO made full disclosure in writing of any existing or potential conflicts CUBEX'S BUSINESS AND ANY RESULTING LOST PROFITS) of interest related to Cubexs services under this Agreement.In the AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY event that any conflicts of interest arise after the Effective Date of AND ALL PERSONS,ARISING OUT OF OR IN CONNECTION this Agreement, Cubex hereby agrees immediately to make full WITH THIS AGREEMENT,TO THE EXTENT CAUSED BY THE disclosure to the Customer in writing. GROSSLY NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CUBEX, ITS OFFICERS, AGENTS, 13.RIGHT TO AUDIT SERVANTS OR EMPLOYEES. 13.1 Cubex agrees that the Customer shall,until the expiration of 16.COPYRIGHT INFRINGEMENT three(3)years after final payment under this Agreement,or the final conclusion of any audit commenced during the said three Cubex agrees to defend, settle, or pay,at its own cost and years, have access to and the right to examine at reasonable expense, any claim or action against the Customer for times any directly pertinent books, documents, papers and infringement of any patent, copyright, trade secret, or records of Cubex involving transactions relating to this similar property right arising from Customer's use of the Agreement at no additional cost to the Customer. Cubex agrees software and/or documentation in accordance with this that the Customer shall have access during normal working Agreement.Cubex shall have the sole right to conduct the hours to all necessary Cubex facilities and shall be provided defense of any such claim or action and all negotiations for adequate and appropriate work space in order to conduct audits its settlement or compromise and to settle or compromise in compliance with the provisions of this section. The Customer any such claim,and Customer agrees to cooperate with it in shall give Cubex reasonable advance notice of intended audits. doing so. Customer agrees to give Cubex timely written notice of any such claim or action,with copies of all papers 13.2 Cubex further agrees to include in all its subcontractor Customer may receive relating thereto. If the software agreements hereunder a provision to the effect that the and/or documentation or any part thereof is held to infringe subcontractor agrees that the Customer shall, until expiration of and the use thereof is enjoined or restrained or,if as a result three(3)years after final payment of the subcontract, or the final of a settlement or compromise, such use is materially adversely restricted,Cubex shall,at its own expense and as CUBEX and CFW License and Support Agreement Page 4 of 7 Execution Copy 10/9/14 Customer's sole remedy, either: (a) procure for (iv)Fraud,Dishonest or Intentional Acts with Customer the right to continue to use the software and/or final adjudication language documentation; or (b) modify the software and/or documentation to make it non-infringing,provided that such Technology coverage may be provided through an modification does not materially adversely affect endorsement to the Commercial General Liability(CGL) Customer's authorized use of the software and/or policy, or a separate policy specific to Technology documentation; or (c) replace the software and/or E&O. Either is acceptable if coverage meets all other documentation with equally suitable, compatible, and requirements. Any deductible will be the sole functionally equivalent non-infringing software and/or responsibility of the Prime Vendor and may not exceed documentation at no additional charge to Customer;or(d)if $50,000 without the written approval of the none of the foregoing alternatives is reasonably available to City. Coverage shall be claims-made,with a retroactive Cubex, terminate this Agreement and refund to or prior acts date that is on or before the effective date of Customer the payments actually made to Cubex under this this Contract. Coverage shall be maintained for the Agreement. duration of the contractual agreement and for two (2) years following completion of services provided. An 17.INSURANCE annual certificate of insurance shall be submitted to the Customer to evidence coverage. Cubex shall provide the Customer with certificate(s)of insurance documenting policies of the following minimum coverage limits 17.2 General Requirements that are to be in effect prior to commencement of any work pursuant to this Agreement: (a) The commercial general liability and automobile liability policies shall name the Customer as an 17.1 Coverage and Limits additional insured thereon, as its interests may appear. The term Customer shall include its employees, (a) Commercial General Liability officers,officials,agents,and volunteers in respect to the $1,000,000 Each Occurrence contracted services. $1,000,000 Aggregate (b) The workers'compensation policy shall include a Waiver (b) Automobile Liability of Subrogation(Right of Recovery)in favor of the City of $1,000,000 Each occurrence on a combined Fort Worth. single limit basis (c) A minimum of Thirty(30)days notice of cancellation or Coverage shall be on any vehicle used by the Cubex, reduction in limits of coverage shall be provided to the its employees,agents, representatives in the course of City. Ten (10) days notice shall be acceptable in the the providing services under this Agreement. "Any event of non-payment of premium. Notice shall be sent vehicle" shall be any vehicle owned, hired and non- to the Risk Manager, City of Fort Worth, 1000 owned Throckmorton, Fort Worth,Texas 76102,with copies to the City Attorney at the same address. (c) Worker's Compensation-Statutory limits (d) The insurers for all policies must be licensed and/or Employer's liability approved to do business in the State of Texas. All $100,000 Each accident/occurrence insurers must have a minimum rating of A- VII in the $100,000 Disease-per each employee current A.M.Best Key Rating Guide,or have reasonably $500,000 Disease-policy limit equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below This coverage may be written as follows: that required, written approval of Risk Management is required. Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits (e) Any failure on the part of the Customer to request outlined in the Texas workers' Compensation Act (Art. required insurance documentation shall not constitute a 8308—1.01 et seq. Tex. Rev.Civ.Stat.)and minimum waiver of the insurance requirement. policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease Certificates of Insurance evidencing that Cubex has policy limit and$100,000 per disease per employee obtained all required insurance shall be delivered to the Customer prior to Cubex proceeding with any work pursuant to this Agreement. (d) Technology Liability(E&O) 18. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND $1,000,000 Each Claim Limit REGULATIONS $1,000,000 Aggregate Limit Cubex agrees that in the performance of its obligations hereunder,it will comply with all applicable federal,state and local Coverage shall include,but not be limited to,the laws, ordinances, rules and regulations and that any work it following: produces in connection with this Agreement will also comply with (i)Failure to prevent unauthorized access all applicable federal,state and local laws,ordinances,rules and regulations. If the Customer notifies Cubex of any violation of (ii)Unauthorized disclosure of information such laws, ordinances, rules or regulations, Cubex shall immediately desist from and correct the violation. (iii)Implantation of malicious code or computer virus 19.NON-DISCRIMINATION COVENANT Cubex, for itself, its personal representatives, assigns, CUBEX and CFW License and Support Agreement Page 5 of 7 Execution Copy 10/9/14 subcontractors and successors in interest, as part of the employment verification,and nondiscrimination. Cubex shall verify consideration herein, agrees that in the performance of Cubex's the identity and employment eligibility of all employees who duties and obligations hereunder, it shall not discriminate in the perform work under this Agreement. Cubex shall complete the treatment or employment of any individual or group of individuals Employment Eligibility Verification Form(1-9),maintain photocopies on any basis prohibited by law. If any claim arises from an alleged of all supporting employment eligibility and identity documentation violation of this non-discrimination covenant by Cubex,its personal for all employees,and upon request,provide Customer with copies representatives,assigns,subcontractors or successors in interest, of all I-9 forms and supporting eligibility documentation for each Cubex agrees to assume such liability and to indemnify and defend employee who performs work under this Agreement. Cubex shall the Customer and hold the Customer harmless from such claim. establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to 20.NOTICES perform such services. Cubex shall provide Customer with a certification letter that it has complied with the verification Notices required pursuant to the provisions of this Agreement requirements required by this Agreement. Cubex shall indemnify shall be conclusively determined to have been delivered when Customer from any penalties or liabilities due to violations of this (1) hand-delivered to the other party, its agents, employees, provision. Customer shall have the right to immediately terminate servants or representatives, (2) delivered by facsimile with this Agreement for violations of this provision by Cubex. electronic confirmation of the transmission,or(3)received by the other party by United States Mail, registered, return receipt 25.REPORTING REQUIREMENTS requested,addressed as follows: For purposes of this section, the words below shall have the City of Fort Worth following meaning: Attn:Assistant City Manager 1000 Throckmorton Child shall mean a person under the age of 18 years of age. Fort Worth,Texas 76102-6311 Facsimile:(817)392-8654 Child pornography means an image of a child engaging in sexual conduct or sexual performance as defined by Section 43.25 of the With Copy to the City Attorney at same address. Texas Penal Code. Cubex LLC Computer means an electronic,magnetic,optical,electrochemical, Attn:Anton Visser,CEO or other high-speed data processing device that performs logical, 1048 N.44"Street,Suite 100 arithmetic,or memory functions by the manipulations of electronic Phoenix,AZ 85008 or magnetic impulses and includes all input, output, processing, Facsimile:(408)967-5433 storage, or communication facilities that are connected or related to the device. 21. SOLICITATION OF EMPLOYEES Computer technician means an individual who, in the course and Neither the Customer nor Cubex shall, during the term of this scope of employment or business, installs, repairs, or otherwise Agreement and additionally for a period of one year after its services a computer for a fee. This shall include installation of termination, solicit for employment or employ, whether as software,hardware,and maintenance services. employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, If Cubex meets the definition of Computer Technician as defined without the prior written consent of the person's employer. herein, and while providing services pursuant to this Agreement, Notwithstanding the foregoing,this provision shall not apply to an views an image on a computer that is or appears to be child employee of either party who responds to a general solicitation of pornography, Cubex shall immediately report the discovery of the advertisement of employment by either party. image to the Customer and to a local or state law enforcement agency or the Cyber Tip Line at the National Center for Missing 22.FORCE MAJEURE and Exploited Children. The report must include the name and address of the owner or person claiming a right to possession of the computer,if known,and as permitted by law.Failure by Cubex The Customer and Cubex shall exercise their best efforts to meet to make the report required herein may result in criminal and/or their respective duties and obligations as set forth in this civil penalties. Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their 26.SIGNATURE AUTHORITY reasonable control, including, but not limited to, compliance with any government law,ordinance or regulation,acts of God,acts of The person signing this Agreement hereby warrants that he/she the public enemy, fires, strikes,lockouts, natural disasters,wars, has the legal authority to execute this Agreement on behalf of the riots, material or labor restrictions by any governmental authority, respective party,and that such binding authority has been granted transportation problems and/or any other similar causes. by proper order, resolution,ordinance or other authorization of the 23.REVIEW OF COUNSEL entity. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 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. 24.IMMIGRATION NATIONALITY ACT The Customer actively supports the Immigration &Nationality Act (INA)which includes provisions addressing employment eligibility, CUBEX and CFW License and Support Agreement Page 6 of 7 Execution Copy 10/9/14 CITY OF FORT WORTH: ATTEST: F 0 �0000000l ` By: u0 Mary J.Kayser City Secretary ooOOOOOOO°°°o o° APPROVED AS TO FORM AND LEGALITY: S By: - Jes�ca art anfeey Assistant City Atto CONTRACT AUTHORIZATION: M&C: NA Date Approved: ©FFICOAL RECORD CUBEX and CFW License and Support Agreement L�0���1 3F.C�RE d p tY of 7 Execution Copy 10/9/14 GPI'. M RTHY TK