Loading...
CASE MANAGEMENT AND ADMINISTRATION SUPPORT SYSTEM I I LICENSE AGREEMENT 0At--- THIS LICENSE AGREEMENT (the "Agreement") is entered into as of the (1' day of ,2000, by and between the CITY OF CLEARWATER, FLORIDA, a I corporation (the "City") and CYCOM DATA SYSTEMS, INC., a California ion ("Cycom"). I. DEFINITIONS A. Agreement The Agreement consists of the following terms and conditions and any exhibits or attachments to this Agreement. The prices quoted in Cycom I s proposal (Exhibit A hereto) are agreed to by the parties, and remain firm. B. Product The term "Product" as used herein means the proprietary software programs (hereafter "Modules ") as proposed in Exhibit A; all related material; documentation and information (including manuals and education materials) received by the City from Cycom, including software maintenance releases, updates, and improvements. C. License Fee The term "License Fee" as used herein means the one-time module fee quoted in Exhibit A for each applicable module, payable for the right to use the Product. The License Fee shall include all initial installation, custom installation, training and modification of and for the Product prior to Acceptance of the Product in addition to Product documentation and travel expenses. Receipt of software maintenance releases, updates and improvements shall be subject to payment of the Annual Maintenance Fee. D. Annual Maintenance Fee The term "Annual Maintenance Fee" as used herein refers to the fee payable on an annual basis beginning upon acceptance of the Product by the City as provided for in Section IV. The Annual Maintenance Fee shall provide for updates of the Product as well as maintenance and support as set forth in Section V of this Agreement E. Acceptance of Product The term "Acceptance of the Product" as used herein means the process of approval of the installation and performance of the Product by the City, which shall be the triggering event for payment of the first Annual Maintenance Fee. The Acceptance of the Product shall be carried out in accordance with Section IV. 2e7. !~'// '-/ / .'\ (/ ) I I II. LICENSE A. Grant of License Cycom hereby grants to the City, and the City accepts from Cycom, a nonexclusive, nontransferable perpetual license to use the Product, subject to the terms and conditions of this Agreement. The City acknowledges and agrees that the Product is proprietary information and a trade secret of Cycom and that this Agreement grants the City no title to or rights of ownership in the Product. B. Restrictions on Use The City is authorized to use the Product only for the City's internal purposes. The City agrees that it will use the Product only for the purposes for which it was intended and agrees that the Product will only be used by City authorized agents and employees. Remote dial-in access by City authorized agents and employees is permitted. C. Source Code A copy of the source code for the most recent versions of the products being used by the City shall be held by the City Clerk of the City of Clearwater. III. TERM A. Commencement on Delivery The license granted under this Agreement shall commence upon the delivery of the Product to the City and shall continue in perpetuity unless sooner terminated in accordance with the provisions of this Agreement. B. Payment of Maintenance and Support Fee The initial term for maintenance shall begin upon the date of acceptance of the products listed in Exhibit A and continue for a three-year period. The maintenance fee shall not increase for a period of two years from the date of this agreement. The amount of annual increase in the Maintenance and Support Fee after this two year term shall not exceed five percent (5 %) compounded annually. At the end of that three year term, and if both parties are not in breach of this Agreement, the City may negotiate an extension to the maintenance and support agreement a The Software Maintenance and Support fee is paid annually at the beginning of the annual term. C. Lapse and Renewal In the event the City fails to pay the Software Maintenance and Support fee as provided in this Agreement, Cycom shall have no further obligation to provide any further services to the City. The City may renew maintenance and support services by paying all accrued and unpaid software maintenance and support fees. 2 'I I IV. ACCEPTANCE OF THE PRODUCT The City shall have ninety (90) days from completion of installation of each Module as provided for in Exhibit A to test whether that Module of the Product materially conforms to the operational, functional and performance specifications represented by Cycom in Exhibit A. Failure of the City to notify Cycom in writing in the manner for notices called for in this Agreement within the above acceptance testing period that the Product, or anyone Module fails to materially conform to the specified performance standards shall be deemed to constitute "Acceptance" of the Product, or the applicable Module. In the event that any portion of the Product fails to pass the initial acceptance period, assuming proper notification of Cycom by the City, then the operational, functional or performance issue will be addressed by Cycom and the ninety (90) day acceptance period shall be restarted. V. MAINTENANCE AND SUPPORT A. Maintenance and Support Subject to the terms, conditions and charges as set forth in this section, Cycom will provide the City with maintenance and support services for the Product as follows: 1. Cycom will provide such assistance as is necessary to cause the Product to perform in accordance with Exhibit A. 2. Cycom will provide such improvements, enhancements, and other changes to the Product developed by Cycom suitable to the uses made of the Product by the City and will make known to the City any improvements as they are developed. 3. Cycom will provide updates to the Product if and as required to cause it to operate under new versions or releases of the operating system so long as such updates are technically feasible. 4. Cycom will provide customer support Monday through Friday between the hours of 9am to 9pm Eastern Standard Time (EST). Support service during the hours of 9am-9pm EST will provide call back times not to exceed 30 minutes, and work on resolution will begin within four (4) hours from the time of message receipt and continue until problem resolution. After hours support will be provided through a message service and will be reviewed for sufficiency as mutually agreed upon by both parties. 5. Cycom will be provided with modem access for dial-in support to be used on an as needed basis with notification given to the City before a modem session is started. B. Renewal 1. The City shall pay Cycom the annual Software Maintenance and Support charges for the first year after Acceptance of the Product as provided in Section IV. 3 ---. I I operating systems or any other product, hardware or software, not provided by Cycom. but. upon installation. will operate with City's present system . In the event of a breach of the above Year 2000 Compliance Requirements, Cycom will repair the software Product using its best efforts and as quickly as is possible once being informed by City. Cycom will not charge City for this Year 2000 repair work. If Cycom has not rectified all software Products ' Year 2000 Compliance problems after notice and reasonable opportunity to correct, City, its agents or consultants may, in addition to its other rights under this Agreement, copy or modify the software Product in order to rectify the problem. Cycom will cooperate with such efforts by City to rectify such problems, and such modifications shall not terminate or otherwise limit Cycom's service obligations with respect to the software Products. B. Disclaimer EXCEPT AS SPECIFICALLY PROVIDED ABOVE, CYCOM MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE PRODUCT, ITS MERCHANT ABILITY, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. VIII. TRADE SECRET, PATENT AND COPYRIGHT IDENTIFICATION A. Indemnity Cycom agrees to indemnify the City and to hold the City harmless from all damages awarded against the City, and all reasonable expenses and attorney fees incurred by the City as the result of any claim or trade secret, patent or copyright infringement asserted against the City by virtue of the City's use of the Product as delivered by Cycom and maintained on the City's computers; provided, however, that Cycom is given prompt notice of any such claims and the right to be involved in the investigation, defense and settlement of each such claim and further provided that the City shall cooperate with Cycom in connection with the foregoing, provided further, however, that Cycom shall not admit liability on behalf of the City. B. Trade Secret Should the Product as delivered and as customized, modified or otherwise altered by Cycom become, or, in Cycom's opinion, be likely to become, the subject of a claim of infringement of a trade secret, patent or copyright, Cycom may, at its option and expense either: 1. Procure for the City the right to continue to use the Product as contemplated in this Agreement; or, 2. Replace or modify the Product and/or modify its use to make its use under this Agreement non-infringing. 5 I I XI. CONFIDENTIALITY; NONDISCLOSURE A. Confidentiality by Cycom Cycom hereby agrees to exercise reasonable care in safeguarding the confidentiality of the City's data and information to which it may become privy in performance of this Agreement. B. Confidentiality by City The City hereby agrees that: 1. The Product received by the City from Cycom under this Agreement, whether received orally, in writing, or in any other medium, are, and shall be, treated as the confidential property of Cycom; 2. The City shall exercise at least the same degree of care to safeguard the confidentiality of the Product as the City would exercise to safeguard the City I S confidential property; 3. Neither the Product, nor any part thereof, received by the City from Cycom under this Agreement shall be duplicated (except for normal security backup purposes) or in any way disclosed to others, in whole or in part, without the prior permission of Cycom. Such prohibition on disclosure and duplication shall not apply to disclosures and duplication by the City to its employees and agents, provided such disclosures and duplications are reasonably necessary to the City I S use of the Product; and provided, further, that the City shall take all reasonable steps to ensure that the Product is not duplicated or disclosed by such employees and agents in contravention of this Agreement. 4. City is a public entity subject to the Public Records Disclosure Laws set forth in Section 119, Florida Statutes. C. Survival It is expressly understood and agreed that the obligation of this Section shall survive the expiration or termination of this Agreement or any provision hereof. XII. TERMINATION A. Basis for Termination by Cycom Cycom shall have the right to terminate this Agreement without further obligation or liability to the City if: 1. The City is delinquent in making payment of any sum due under this Agreement and continues to be delinquent for a period of thirty (30) after written notice by Cycom of such breach; or, 7 I I 2. The City commits any other material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice by Cycom of such breach; or, B. Basis for Termination by City The City shall have the right, without further obligation or liability to Cycom, to terminate this Agreement: 1. If Cycom commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice to Cycom of such breach. 2. Upon thirty (30) days prior written notice for any reason. C. Effect of Termination Termination of this Agreement following Acceptance of the Product by the City shall have no effect upon the City's right to continued use of the Product without maintenance and support as provided for in Section III. XIII. GENERAL A. Waiver, Amendment or Modification The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The terms of this Agreement shall not be amended or changed by the terms of any purchase order or acknowledgment even though Cycom may have accepted or signed such documents. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof. B. Notice All notices, consents, approvals, requests, invoices, and other communications, (herein collectively call "Notices)) required or permitted under this Agreement shall be given in writing and mailed by first-class mail and addressed as follows: If to the Corporation: Mr. Don McGregor, President Cycom Data Systems, Inc. P.O. Box 92437 Long Beach, CA 90809 Shallotte, NC 28470 8 I I If to the City; City Attorney City of Clearwater, Florida Post Office Box 4748 Clearwater, FL 33758-4748 All Notices shall be deemed given on the date of postmark. Either party to this Agreement may change its address or the receipt of notices any time by given notice to the other as provided. Any Notice given by a party must be signed by an authorized representative of such party, Notwithstanding the requirement above as to the use of first class mail, breach of agreement notices, termination notices, change of address notices, or other notices of legal nature, shall be sent by certified mail, postage prepaid, return receipt requested. D. Entire Agreement Exhibit A and these general terms and conditions constitute the entire agreement between the parties in connection with the subject matter hereof and supersede all prior and contemporaneous agreements, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements between the parties in connection with the subject matter hereof except as specifically set forth or referred herein. E. Successors and Assigns All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns and legal representatives, except that neither party may assign this Agreement or any right granted thereunder, in whole or in part, without the other party's prior written consent, which shall not be unreasonably withheld. F. Governing Law; Severability The validity, construction and performance of this Agreement and the legal relationships among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of Florida. If any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect. G. Effective Date This Agreement is effective upon review and approval by the City. 9 I I H. Conflict of Interest Cycom covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, which would conflict in any manner with the performance of the services under this Agreement. Cycom further covenants that, in the performance of this Agreement, no person having any such interest shall be employed. Cycom further covenants that no officer, member or employee of the City and no other public official who exercises any functions or responsibility in the review, approval or carrying out of the Agreement has any personal or financial interest, direct or indirect, in this Agreement. Cycom will not and has not employed any person to solicit or secure this Agreement, directly or indirectly. If this condition is breached, the City may, at its option, terminate this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by its duly authorized officials. CITY 0 CLEARWATER, FLORIDA By: Micliael J. Roberto City Manager Aer12 as to form: Pamela K. Akin City Attorney Attest: Attest: CYCOM DATA SYSTEMS, INC., a California corporation cf~_ ~~h- Colleen McGregor Secretary ITreasurer BY:~_ (hQ Don McGregor President 10 ~ I I EXHIBIT A City La w Case Management and Administration Support System UNIT PRICES per Module or Feature License & Annual Custom Class Number Class Cost per Maintenance SYSTEM MODULES Installation Hours of Classes Cost Module & Support Litigation $7,440 General User 6 990 Key Personnel 8 1,170 $9,600 $1,630 2160 Assignments 4,900 General User 4 630 Key Personnel 8 1170 $6.700 $1,140 File Management 4,580 General User 2 450 Key Personnel 8 1170 $6,200 $1,050 Time Accounting 4,800 Key Personnel 8 1200 $6,000 $1,020 Total $28,500 $4,840