FLEET MANAGEMENT SYSTEM AGREEMENT/FLEETANYWHERE 4.0
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FLEET MANAGEMENT SYSTEM AGREEMENT
his Fleet Mana ement System Agreement (the "Agreement") is entered into on
199 etween City of Clea~r, Florida (hereinafter "Licensee"), with
rincipal I es at I--'L and Prototype Incorporated
(hereina er "Licensor"), with principal offices at 3550 Round Barn Blvd., Suite 302, Santa Rosa,
California 95403.
Licensor has developed and owns the proprietary computer software identified in the License
Fees chart of Section 2 below. Licensor has also developed printed and electronic documentation
for use with such computer software, including certain items which may be made available to
Licensee on Licensor's World Wide Web site ("Documentation"). The computer software and the
Documentation shall hereinafter be referred to in this Agreement as "the Product".
Licensee desires to acquire the right to utilize the Product for a single database which will reside
on the database server computer identified in Section 9 of this Agreement. No official or
employee of Licensee has any financial interest in the subject matter of this Agreement. All
amounts are in U.S. Dollars.
The parties therefore agree as follows:
1. License. Effective upon the date of this Agreement, Licensor grants to Licensee a
perpetual non-transferable, non-exclusive license to use the Product for a single database upon
the terms and conditions set forth herein.
Licensor's Proposal to City of Clearwater, dated December 15, 1997, is hereby incorporated by
reference into this Agreement and made a part hereof. Where the terms of this Agreement
conflict with the terms of the above-referenced document, the terms of this Agreement shall
govern.
2. Deliverables. Licensor shall provide to Licensee (1) a license to use the Product
described below under "License Fees", and (2) the services listed below under "Services". The
prices for these items are as set forth below, and any applicable sales, use, license or similar
taxes shall be added to the prices.
LICENSE FEES
FleetAnywhere 4.0, multi-user Base System, up to 4,000 $50,000.00
equipment units
TOTAL $50,000.00
Licensee shall have the right to upgrade its license or to license optional modules in accordance
with the fees set forth in Exhibit A. This pricing is valid for two years from the date of contract
execution.
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SERVICES
Training and Implementation Assistance, 16 days,
$1,800.00 per day (includes travel expenses)
Project Management/Off-site Implementation Assistance, 80
hours, $150.00 per hour
Data Conversion Services, 100 hours, $150.00 per hour
Software Installation Services, 1 day, $1,000.00 per day
TOTAL (determinable items)
$28,800.00
12,000.00
15,000.00
1,000.00
$56,800.00
Licensor warrants that the quantity of services set forth above will be sufficient to achieve
Licensee's implementation, provided that:
. Licensee assumes responsibility for ensuring that its trainees have basic knowledge of
and familiarity with using Windows-based software prior to receiving Training Services
. Licensee's trainees have a reasonable ability to learn the material covered through
Training Services
. Licensee personnel attend training sessions when scheduled and devote their full
attention to them
. Licensee personnel respond promptly to requests for information from Licensor in
connection with Project Management and Data Conversion Services
. Licensee provides Licensor with remote access through PCAnywhere or Remote Access
via dial-up connection to its database server and application server and ensures that
Licensor's staff have the appropriate rights and security clearance to work in the
Product's database
If any of the above conditions are not met, Licensor does not guarantee that the quantity of
services above will be sufficient to achieve Licensee's implementation, and Licensee shall be
responsible for costs associated with additional services rendered. Licensor shall notify Licensee
immediately at any time in the implementation when (a) it believes Licensee's targeted
implementation schedule is in jeopardy, or (b) Licensee is not satisfying any of the above
conditions.
RDBMS
Licensee shall have the right to procure the Oracle relational database
management system from Licensor at Licensor's current list prices.
BAR CODE EQUIPMENT
Licensee shall have the right to procure bar code equipment from Licensor at
Licensor's current list prices. Exhibit B, Bar Code Equipment Price List, is
hereby incorporated by reference, and includes list prices as of the date of
contract execution. Prices are subject to change.
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3. Payment Terms. Licensor shall invoice Licensee for all Deliverables on the following
schedule:
LICENSE FEES
PAYMENT
EVENT
25% of license fees
upon contract execution
25% of license fees
upon the earlier of (1) Licensor's first site visit or (2) 60
days after contract execution *
upon the earlier of (1) acceptance in accordance with
Section 8 below, or (2) 180 days after delivery if
Licensee has caused a material delay in the
implementation schedule attached hereto as Exhibit C
50% of license fees
SERVICES, RDBMS, AND BAR CODE EQUIPMENT
100% of each delivery of services, RDBMS, or bar code equipment, including
travel expense associated with services, as delivered
Each invoice is due and payable within forty-five (45) days of the date of the invoice. All sums
remaining unpaid for forty-five (45) days after the date of invoice shall be subject to a service
charge at the rate of 1 % per month.
4. Training Program. Licensor and Licensee will consult on the optimal dates of delivery
for each training visit in accordance with the progress of Licensee's implementation of the
Product.
Licensor will provide on-site training to Licensee in a classroom environment suitable for training.
Licensee will be responsible for providing and preparing the training facility. Licensor will provide
setup, operations, and administration training to Licensee which will introduce the Product and its
philosophy, as well as train the appropriate individuals to define the operating environment, enter
and review data, create and generate reports, and administer the application and database.
Training sessions designed for system administrators will include:
· Generation and review of standard reports
· Using the ad hoc report writer to develop customize queries and reports
· Maintenance of the FleetAnywhere database and data tables
. End of period processing
. Utility functions
Training sessions designed for supervisors and project managers will include:
· Introduction to operations, including use of FleetAnywhere's graphical user interface
· System setup and configuration, including system options, equipment classification, repair
and PM task definition, PM program definition, and other supporting data items
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. Explanation of equipment records and data elements
. Explanation of parts records and data elements
Operational training for end users will include:
. Introduction to operations, including use of FleetAnywhere's graphical user interface
. Explanation of equipment tracking functions
. Explanation of work order functions
. Explanation of parts inventory tracking functions
5. Other Services.
Software Installation. Licensee will ship its database server to Licensor's offices with Windows
NT installed. Licensor will install the relational database management system and FleetAnywhere
software on the database server. At the appropriate time, Licensor will ship the server to
Licensee's offices, and Licensee will be responsible for installing the server into its network.
Licensee will be responsible for all shipping costs.
Project Management. Licensor will expend project management hours assisting Licensee with
project coordination and planning, computer hardware specifications and setup, data import, and
other implementation issues. Licensor will document in detail the activities in which it expends
project management hours and will provide this documentation to Licensee upon request.
Implementation Assistance Services. Licensor will deliver implementation assistance services
to address the following general tasks:
. Provide high-level view of the Product to key users and decision makers to preface initial
discussions concerning use and implementation of the system
. Provide guidance in outlining, at a macro level, existing procedures and shop operations
. Identify key areas of the Product's functionality based on specific business requirements
. Assist in mapping current data elements into the Product's features to optimize the
Product's functionality while meeting the defined procedural and reporting requirements
. Assist, where possible, in gathering and assimilating current and historical data for
migration into the new system
· Assist in developing the data import files to load base and historical data into the Product
. Develop a billing report substantially the same as the one currently used in the Licensee's
GEMS system (as provided via facsimile to Licensor prior to contract execution)
· Develop a single report for replacement analysis which identifies vehicles meeting all of
the following criteria:
. Mileage exceeds 50,000 (only those vehicles billed by utilization)
. Is fully depreciated
. Repair and maintenance costs exceed the purchase cost
Licensor makes the following assumptions for development of this report:
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1. Licensor will define "vehicles billed by utilization" as those vehicles for which Licensee
records usage (miles, hours, etc.) and bills the using or owning department for resulting
usage charges.
2. Licensor will assume that all "vehicles billed by utilization" will have the same one-
character Billing Code, which is defined on the Codes tab of the Equipment Unit Primary
Information screen.
3. Licensor will use Life Usage to evaluate the 50,000 mile threshold.
4. Licensor will identify fully depreciated vehicles as those that have zero months of
depreciation remaining as defined on the Ownership and Depreciation tab of the
Equipment Unit Primary Information screen.
5. Licensor will agree with Licensee as to which cost components to use to calculate total
repair and maintenance costs. Possible cost components are those that appear on the
Historical Costs screen.
6. Licensor assumes that the purchase price of each equipment unit will be recorded in
the Product's database.
This report will be executed through the Product's QuerylReport Generator.
· Provide on-site assistance during the final preparation for the commencement of live
operations
· Act as a resource to all members of the project team, including fleet management
personnel and end users, during the transition to live operations
6. Travel Expenses for On-Site Services. The service rates set forth in Section 2 above
include all travel expenses to be paid by Licensee.
7. This section intentionally deleted.
8. Acceptance Test. Acceptance will occur when the Product is capable of operating in live
operations at Licensee's site. The parties will act in good faith to agree upon when the Product is
capable of operating in live operations and will use the acceptance test below (to be performed by
Licensee) as a guide.
Licensee will identify a small subset of the entire fleet operation on which to perform testing. The
test will include the following steps:
Functional Test
· Set general configuration parameters and options
· Add and modify entries to all system tables, including repair and PM tasks, vendors,
employees, departments, locations, equipment classes, PM programs and standards
· Define and verify the security and access control functions
. Add and modify equipment master data
· Add and modify parts master data
· Order and receive parts into inventory and check inventory status (quantity and value on
hand and on order) at each stage of the process
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. Charge internal and external fuel to equipment lJnits, and verify the charges of quantity
and cost as well as proper inventory relief
. Open a repair order and a PM order for an equipment unit
. Charge labor to the work orders and verify the charges/credits of hours and costs
. Charge inventory parts to the work orders and verify the charges/credits of quantity and
cost as well as proper inventory relief
. Charge non-inventory parts to the work orders and verify the charges/credits of quantity
and cost
. Charge commercial charges to the work orders and verify the charges of labor and parts
. Close the repair and PM orders
. Verify work order charges
. Transfer a part from one stock location to another
. Adjust parts inventory both upward and downward
. Generate a sampling of standard reports
. Execute end of month processing
. Exercise the capabilities of the report generator
Load Test
Process transactions from multiple terminals, using the Product's data import capabilities, to
simulate a normal live load on the Product.
Procedures
During both test phases, Licensee will make a written record of any problems encountered, with
appropriate supporting descriptions to facilitate diagnosis and correction. If no problems are
encountered, Licensee will immediately certify that the Product has passed the test phase.
If any problems are encountered, Licensee and Licensor will attempt in good faith to reach
agreement on whether the problems would prevent Licensee from commencing production
operations with the Product or substantially inhibit Licensee's use of the Product if production
operations were commenced.
If agreement is reached that production operations can be commenced without substantial
inhibition, Licensor will provide to Licensee a written statement that the problems will be corrected
by a stated date acceptable to Licensee, and Licensee will immediately certify that the Product
has passed the test phase.
If agreement is reached that the problems either prevent Licensee from commencing production
operations with the Product or would substantially inhibit Licensee's use of the Product if
production operations were commenced, or if Licensee and Licensor are unable to agree,
Licensor will provide to Licensee a written statement that the problems will be corrected by a
stated date acceptable to Licensee, and Licensee will certify that the Product has passed the test
phase upon receipt of an updated version of the Product and verification that the problems have
been resolved. Licensee shall perform such verification within five (5) working days after receipt
of the updated version, and shall communicate the results of its verification to Licensor.
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The Product will be deemed to have passed the acceptance test if Licensee (I) uses the Product
in production operations for any period of three (3) consecutive business days, or (2) fails to
complete the acceptance test within 180 days after contract execution, and Licensor has notified
Licensee that the Product is capable of live operations at Licensee's site.
9. Database and Application Identification. (to be completed by Licensee)
Database server computer (circle one):
Pentium, NT
Location of database server:
RS/6000, AIX
Other:
Application server computer (circle one):
Pentium, NT
RS/6000, AIX
None (Fat Client)
10. Delivery of the Product. The Product is delivered on CD-ROM, together with one copy
of printed and electronic Documentation and reasonable access to the Documentation made
available on Licensor's World Wide Web site, and includes the following files ("Files"):
· one copy of the executable program code
· one copy of a program or script to create the (empty) Product database
· one copy of a file of help information for display online in the Product
· files, scripts, and programs used during installation of the Product
11. Data Conversion. Licensor's documentation for the Product includes data import
specifications in the form of ASCII format record layouts and other information which is useful in
preparing data for import into the Product. Licensee's staff will be responsible for extracting the
data to be imported from its existing system in ASCII format and providing such data promptly
upon request to Licensor. Licensee's staff will also provide Licensor with file layouts and
documentation for the data to be converted.
Licensor will be responsible for formatting the data to be imported in compliance with the Product
data import specifications, and for executing the data import functions. While Licensor guarantees
that it will be able to import any data which can be entered on a FleetAnywhere screen, Licensor
does not guarantee that all data supplied by Licensee will be capable of import. Licensor will use
its best efforts to achieve import of all data supplied by Licensee.
Upon receipt of Licensee's data in ASCII format and all other appropriate information, Licensor will
review the data and, within a reasonable time period, notify Licensee of any problems it expects to
encounter with the import process. If Licensor notifies Licensee that it will be unable to import any
portion of the supplied data, Licensee will have the option to discontinue data conversion seNices.
In this event, Licensee will pay Licensor for the number of hours it has spent to date on data
conversion at the rate set forth in Section 2.
12. Warranty.
(a) Licensor warrants that the Product will perform as described in the Documentation for the
Product when it is used in accordance with the Documentation. Licensor also warrants that the
Product is year-2000 compliant (i.e., is fully capable of processing data containing the years 2000,
2001, and subsequent years, without causing failure, defect, or disabling the Product). Licensor
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warrants that (i) the Product has been tested for compliance with the above year-2000 warranty,
(ii) the Product has passed such testing, and (iii) Licensor has no knowledge of any failures of the
Product in connection with year-2000 compliance.
The period of the warranty ("Warranty Period") shall be one year commencing upon delivery of the
Product. Under the warranty, Licensor will correct (as provided in Section 14 below) any Errors
(as defined in Section 14 below) reported by Licensee during the Warranty Period. The warranty
is included in the license fee for the Product.
(b) THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(c) Licensor's sole obligations under the warranty shall be to ensure that the Product will perform
as set forth in (a) above. All costs and expenses incurred by Licensor in performing the warranty
shall be for the account of Licensor. Licensor shall not, however, be responsible to Licensee for
any incidental or consequential damages.
(d) Notwithstanding the provisions of (b) and (c) above, Licensor shall indemnify and hold
Licensee harmless with respect to any claim made against Licensee that the Product infringes
upon the proprietary rights of others.
(e) Licensor's liability under this Agreement for damages including but not limited to liability for
infringement upon the proprietary rights of others, regardless of the form of action, shall not
exceed the total price paid pursuant to this Agreement.
13. Support Program.
(a) Licensor shall offer a program ("Program") of maintenance and support for the Product. The
Program will be divided into annual periods ("Program Periods"), the first of which will begin on the
day following delivery of the Product.
(b) The Program shall include the following: (1) distribution of the corrections, updates and
enhancements referred to in Section 14; (2) access to qualified telephone hot-line support from
Licensor from 5:00 am to 5:30 pm Pacific Time on normal business days, in connection with any
aspect of installation or operation of the Product; and (3) membership in any user's group of the
Product licensees which Licensor may organize.
(c) The annual cost for the Program will be an amount equal to 20% of the total license fees
(before any discounts) paid by Licensee for all copies of the Product licensed as of the first day of
each annual Program Period. In the event that Licensee licenses an optional module, contracts
for a custom enhancement/interface, or upgrades the number of equipment units covered by its
license after the date of license, the annual cost for the Program will be increased by an amount
equal to 20% of the total license fees for such optional module, custom enhancement/interface, or
license upgrade as of the first day of the Program Period immediately following the Program
Period in which such item was provided to Licensee. Upon license, such optional module, custom
enhancement/interface, or license upgrade shall be considered part of the Product, as defined in
these terms and conditions, and is subject to all terms and conditions herein. The cost for the first
Program Period is included in the license fees set forth in Section 2 above. For periods beginning
on or after four years following delivery of the Product, the annual cost of the Program will be
subject to adjustment proportional to any increases or decreases in Licensor's established price(s)
for the Product(s) licensed.
(d) Prior to the expiration of each annual Program Period for which Licensee has joined the
Program, Licensor shall notify Licensee of its option to join or continue in the Program. If Licensee
so elects, Licensee shall pay to Licensor an amount equal to the annual cost of the Program.
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(e) If Licensee fails to join the Program for any annual period, as a prerequisite to rejoining the
Program for any subsequent period, Licensee shall pay to Licensor an amount equal to the annual
cost of the Program for each Program Period or partial Program Period in which Licensee did not
participate, as well as the cost for the annual Program Period for which Licensee is rejoining.
Upon receipt of such payment, Licensor shall reinstate Licensee in the Program and furnish to
Licensee a then current copy of the Product.
(f) Service Guarantee. Licensor provides the following service guarantee for providing technical
support to Licensee while Licensee is a member of the Program. Licensor staff shall use their
best efforts to respond to problems (1) indicated by Licensee to be critical (the system is down)
within 15 to 30 minutes of receipt of a problem report, and (2) not indicated by Licensee to be
critical within two hours of receipt of a problem report. Licensee understands and acknowledges
that Licensor will not always be able to deliver the above response time, depending on fluctuating
demand for service from other clients.
Licensor's failure to contact Licensee within two hours of receipt of a critical problem report from
Licensee shall constitute an Incident. Licensor's failure to contact Licensee within 24 hours of
receipt of a non-critical problem report from Licensee shall also constitute an Incident. If Licensee
experiences more than five Incidents in a single annual period, Licensor shall credit 10% of the
Program fee for such annual period for each Incident after the fifth toward payment of the next
Program Period fee. If Licensor attempts to contact Licensee via telephone or fax but Licensee's
staff are not available to respond, Licensor shall be deemed to have made contact, provided that
Licensor leaves a message indicating such attempted contact.
The parties acknowledge and agree that the above service guarantee requires that Licensor make
an attempt to contact Licensee within the prescribed time periods, begin to diligently pursue
problem resolution, and continue to do so until the problem is resolved. Licensor makes no
guarantee regarding the time period for ultimate problem resolution, and such time period is
entirely dependent upon the nature of the problem.
(g) Uptime Guarantee. Licensor guarantees that the Product, when properly implemented and
maintained, will provide an uptime of 95% for Licensee. This guarantee shall not apply to
problems attributable to Licensee's network, including its local area network, wide area network,
intranet, and the Internet (as applicable). This guarantee shall also not apply to any performance
problem attributable to failure or excessive loading of any component of the network. If Licensee
experiences a critical problem (the system is down) for more than 5% of Licensee's official work
hours in an annual period, and such critical problem is attributable exclusively to a problem with
the Product, Licensor shall credit Licensee for 5% of the Program fee for such annual period for
each full day in which the critical problem exists toward payment of the next Program Period fee.
If Licensor provides assistance in the form of instructions or a new version of the software to
address a critical problem, Licensee shall follow such instructions or install the new version upon
receipt. Any delays by Licensee to respond to Licensor's assistance shall be deducted from the
period of downtime for purposes of this provision.
14. Enhancements and Corrections.
(a) From time to time, Licensor may discover, either itself or from its licensees, errors ("Errors") in
the Product. Licensor shall notify Licensee of and provide corrections ("Correction") for all Errors
discovered during the Warranty Period or during any Program Period during which Licensee is a
member of the Program, within ninety (90) days after the discovery. The Correction shall be on
CD-ROM and shall include a corrected copy of any portions of the Product which were changed to
correct an Error, and shall be accompanied by installation instructions. From time to time,
Licensor shall also provide an updated copy of the help file and updated pages for the
Documentation to incorporate in them any changes required by Corrections issued.
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An actual problem shall be an instance of an Error in the Product or a failure of one or more of the
products of others provided under this Agreement to perform as stated in its documentation.
Licensor shall act to resolve and correct all actual problems originating in the Product, and shall
promptly communicate with and diligently pursue with other vendors, within the scope of
Licensor's maintenance agreements with them, a resolution and correction of all actual problems
originating in any of the products of others delivered with the Product. Deficiencies of unknown
origin will be referred initially to Licensor. If Licensor believes in good faith that an actual problem
is attributable to hardware or to software other than the Product or the products of others,
Licensor shall so notify Licensee, with Licensor's reasons for such belief, and Licensee shall refer
the actual problem to the appropriate other source for resolution. Licensor shall assist and
cooperate fully with Licensee and any such other source in seeking a resolution of any problem
requiring any action by or information from Licensor. In the event of a disagreement between
Licensor and any such other source over the proper attribution of an actual problem, Licensor
shall use its best efforts to resolve such disagreement.
(b) From time to time, Licensor may develop enhancements to or updated versions of the Product
("Enhancement"). Enhancements shall be developed only in the next-to-be-released version of
the Product, and not in previous versions. If an Enhancement is made available by Licensor
during any Program Period during which Licensee is a member of the Program, Licensor shall
notify Licensee in writing of the existence and nature of the Enhancement and shall make the
Enhancement available to Licensee on CD-ROM containing the enhanced or updated version of
the Product, accompanied by installation instructions and an updated copy of the help file; from
time to time Licensor shall provide updated or new pages for the Documentation to cover such
enhancements to or updated versions of the Product.
15. Ownership and Use of the Product. The only right in the Product which is conveyed to
Licensee under this Agreement is the right to use the Product, with respect to only its own
operations, in machine readable form on the computer or computers identified in Section 9. The
term "use" means copying the Product from storage media into the central processor of the
computer for processing and executing the code. All other right, title and interest in all copies of
the Product, including Enhancements, remains in Licensor as the proprietary information and
trade secret of Licensor whether or not any portion of the Product is or may be validly copyrighted
or patented. Licensee shall not modify, alter, reverse engineer, disassemble, compile, reverse
compile, or decompile the Product. Any technical assistance required to remedy problems
associated with modification of the structure or content of the Product's database is outside the
scope of the Support Program provided by Licensor. Licensor will charge additional fees for such
services.
Licensee recognizes that the Product and any component thereof is the proprietary and
confidential information of Licensor. In particular, but without limitation, this Agreement does not
convey to Licensee or any of its agents or employees any of the following rights unless the prior
written consent thereto of Licensor is obtained:
(a) To make any copies of all or any part of the Product (including documentation) on any media
other than for purposes of Licensee's internal use, back-up, emergency restart, or replacement of
media at a computer identified in Section 9;
(b) To assign (whether voluntarily, by operation of law, or otherwise), sublicense, transfer or
deliver any copies of all or any part of the Product in any form to any person, firm, corporation or
other entity of any kind or description;
(c) To use the Product for the benefit of any other person, firm, corporation or other entity of any
kind or description, whether as a "service bureau" or in any other manner;
(d) To alter any portion of the Product in any manner, except with the prior authorization of
Licensor, which shall not be unreasonably withheld.
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16. Licensee's Responsibilities.
(a) Licensee shall be exclusively responsible for the supervision, management and control of its
use of the Product, including without limitation:
(1) assuring proper machine configuration, program installation, audit controls and
operating methods;
(2) establishing adequate backup plans based on alternate procedures or on access to
qualified personnel who are capable of resolving issues relating to computer hardware,
network configuration, server operating systems, workstation operating system, and
workstation configuration; and
(3) implementing sufficient procedures and checkpoints to satisfy its requirements for
security and accuracy of input and output as well as restart and recovery in the event of a
malfunction.
(b) Licensee shall take appropriate action with its employees, agents and contractors, by
agreement or otherwise, to satisfy its obligations under this Agreement with respect to use,
copying, modification, protection, and security of the Product.
(c) Licensee shall designate a representative to receive notices and communications from
Licensor related to this Agreement.
(d) On any termination of this Agreement for any reason, Licensee shall deliver to Licensor all
materials (including object programs, CDs, and written materials) furnished by Licensor pertaining
to the Product, and shall warrant in writing to Licensor that all copies of the Product in possession
of Licensee, including both magnetic and written materials, have been destroyed without backup.
(e) Licensee is responsible for providing the specified computing platform ready for installation of
the Product. This responsibility includes:
(1) Proper installation, wiring and connection of all hardware components, including
without limitation, host processors, file servers, database servers, application servers,
workstations, terminals, and printers;
(2) Proper installation of all system software required to support all hardware
components;
(3) Proper preparation and allocation of disk resources for the Product;
(4) Proper setup of any user accounts, rights and permissions required for operation of
the Product;
(5) License, installation and ongoing administration of the appropriate relational database
management system software and any associated equipment to be used in conjunction
with the Product.
17. Escrow. Licensor has deposited a copy of the source code for the Product and
Licensor's program documentation, on CD-ROM, to be placed into escrow with the following
escrow agent ("Escrow Agent"):
Corporate offices:
Lincoln-Parry Associates Inc.
1370 Don Mills Road, Suite 210
Don Mills, Ontario M38 3N7
Software escrow stored at:
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Lincoln-Parry Associates Inc.
6312 South Fiddler's Green Circle
MCI Plaza, Suite 200N
Englewood, Colorado 80111
Licensor will take steps to ensure that Licensee shall have the right, pursuant to the escrow
agreement between Licensor and the Escrow Agent and upon payment by Licensee to the
Escrow Agent of any costs involved (duplication and shipping), to obtain a single copy of such
source code and program documentation upon occurrence of any of the following events:
(a) Persistent failure or refusal, continuing for a period of sixty (60) days after written demand by
Licensee, by Licensor to perform any of its obligations under this Agreement, including but not
limited to the continuance of the Program.
(b) Discontinuance of business by Licensor because of bankruptcy (as evidenced by bankruptcy
filing), receivership, dissolution or other form of permanent business disruption; provided that such
business is not continued by a successor willing and able to perform the obligations of Licensor
under this Agreement.
(c) Abandonment by Licensor of attempts to market the Product for a period of one hundred
eighty (180) days.
If Licensor makes corrections or enhancements to the Product, Licensor shall deposit a copy of
the updated or enhanced source code for the Product with the Escrow Agent at the time such
corrections or enhancements are made available to Licensee.
18. Confidential and Proprietary Information. The Product is the confidential and
proprietary information of Licensor. Licensee shall treat the Product as such and shall take
appropriate steps with its employees, agents, and contractors to protect the Product (or any part
thereof, but not including Licensee's data stored in or obtained from the Product) from being
disclosed, delivered, or transferred to any person or organization outside of Licensee's immediate
implementation team and user community. Such disclosure, delivery, or transfer of all or any part
of the Product shall be a material breach of this Agreement. Licensee shall treat the terms of this
Agreement as confidential information. This section is subject to the Florida Public Records Law.
19. Breach.
(a) For any breach of the proviSions of Sections 2, 3, 15, 16(b), or 18, Licensor shall have the
right to terminate this license, in addition to any other rights available to it, and to repossess the
Product as described in Section 16(d).
(b) Upon any termination of this license, Licensee shall return to Licensor all materials (diskettes,
CD-ROMs and manuals) received from Licensor pursuant to this license, and shall certify to
Licensor in writing that all copies of all files listed in Section 10 made by Licensee have been
destroyed without backup.
20. On-Site Services Policy.
(a) Licensor will provide Licensee with a choice of unreserved on-site services dates upon
request.
(b) Licensor will require Licensee to specify in writing the on-site services dates it wishes to
reserve. Upon receipt of written notification, Licensor will formally reserve those dates for
Licensee (if available) and will begin making travel arrangements.
(c) Licensor will accept cancellation of on-site services dates up to one month prior to the dates.
For cancellations less than one month in advance of the first of a group of consecutive on-site
services days, Licensor will charge a service fee of $500 per day of training scheduled to be
12
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delivered and Licensee will reimburse Licensor for any travel expenses incurred for which
Licensor cannot secure a full refund.
(d) Licensee may include as many people as it wishes in each on-site services session.
(e) Licensor will not furnish any hardware required in connection with on-site services, but will
provide Licensee with hardware and facility recommendations upon scheduling of on-site
services.
(f) If Licensee procures the Bar Code Module and associated bar code hardware, it will be
responsible for setup of all bar code hardware and charging of batteries prior to on-site services.
Licensee may designate a portion of on-site services time for setup by Licensor of bar code
hardware. However, batteries must be charged by Licensee prior to on-site services.
21. Bar Code Module Eproms. If Licensee purchases from Licensor any Microwand or other
bar code readers ("Bar Code Reader") for use with the Bar Code Module of the Product, Licensor
provides an eprom for each such Bar Code Reader which contains software to enable the Bar
Code Reader to work properly with the Product.
When Licensor makes available a new version of the Product, Licensor may require that Licensee
exchange the eprom inside each such Bar Code Reader for a similar eprom containing an
updated version of such software. If Licensee returns an eprom to Licensor in good and re-usable
condition, Licensor will provide a replacement eprom containing an updated version of such
software at no charge to Licensee. For each eprom which Licensee fails to return to Licensor for
exchange, and for each eprom returned to Licensor in damaged or unusable condition, Licensee
will pay to Licensor, upon receipt of an invoice therefor, the sum of $20 as a service charge for
replacement of the eprom.
22. Dispute Resolution. Disputes on any matter relating to this Agreement shall first be
discussed by representatives of each party who shall use their best efforts to amicably and
promptly resolve the dispute. If litigation occurs, the non-prevailing party will reimburse the
prevailing party for attorneys fees and litigation costs.
23. Governing Law and Venue. This Agreement shall be governed by the laws of the State
of Florida, and venue shall lie in a court of competent jurisdiction in Pinellas County, Florida.
24. Entire Agreement. This Agreement contains the entire understanding of the parties and
supersedes all other communications, written or oral, relating to the subject matter of this
Agreement.
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The Agreement has been executed by the following duly authorized representatives for each
party:
PROTOTYPE INCORPORATED
CITY OF CLEARWATER, FLORIDA
Jh
SLbS ~
President
Name
Title
Countersigned:
Rita Garvey
Mayor-Commissioner
Attest:
Approved as to form:
~'
arassas
Assistant City Attorney
~
14
EXHIBIT A
PROTOTYPE INCORPORATED
FleetAnywhere License Upgrade Schedule
December 15, 1998
Pricing valid for two years from the date of contract execution
License Fees
Qty
FleetAnywhere Bar Code Module
FleetAnywhere Replacement Analysis Module *
FleetAnywhere Service Level Agreements Module
FleetAnywhere Motor Pool Module
Upgrade Fees
FleetAnywhere Base System, 500-unit increment
FleetAnywhere Bar Code Module, 500-unit increment
FleetAnywhere Replacement Analysis Module, 500-unit increment
FleetAnywhere Service Level Agreements Module, 500-unit increment
FleetAnywhere Motor Pool Module, 500-unit increment
Training Fees
FleetAnywhere Bar Code Module, days **
FleetAnywhere Replacement Analysis Module, days **
FleetAnywhere Service Level Agreements Module, days'" *
FleetAnywhere Motor Pool Module, days **
1
3
3
2
Unit Price Extension
$6,000.00 $6,000.00
8,000.00 8,000.00
10,000.00 10,000.00
8,000.00 8,000.00
$6,250.00 $6,250.00 -
750.00 750.00
1,000.00 1,000.00
1,250.00 1,250.00
1,000.00 1,000.00
$1,250.00 $1,250.00
1,250.00 3,750.00
1,250.00 3,750.00
1,250.00 2,500.00
* Anticipated completion date for this module is June 30, 1999.
* * Travel budget was based upon projected and agreed-upon implementation. If implementation deviates from projection
so as to cause additional travel costs, Prototype will inform the City as soon as possible of any such costs.
-,
NOTE: Prototype reserves the right to use training or implementation assistance services not delivered in the
implementation of the FleetAnywhere Base System for additional training on the optional modules.
EXHIBIT B
Prototype Incorporated - Bar Code Price List
September 18, 1998 .
The following price list is subject to change and excludes all applicable taxes which Prototype must collect. Bar code equipment is not returnable
once delivered. Prices quoted in U.S. Dollars.
Dolphins and Accessories
Hand Held Products Batch Dolphin, 2MB flash, 2MB RAM, (part number 90009400), each
Hand Held Products Radio Frequency Dolphin, 2MB flash, 2MB RAM, each
Hand Held Products Dual Homebase Communications/Battery Servicing Station for Dolphin, including cable (part number
90009330), each
Hand Held Products Holster for Dolphin, cordova with flap (part number 4800029), each
Hand Held Products Holster for Dolphin, cordova without flap (part number 4800028), each
Hand Held Products Battery Supercharger for Dolphin, up to 10 batteries (part number 90009373), each
Hand Held Products Battery for Dolphin, (part number 20000233), each
Wands and Accessories
Hand Held Products MicroWand IIIE, 4-line display, 128K RAM, (part number 9S000963), each
Hand Held Products Radio Frequency MicroWand IIIE (including Transceiver, part number 90005200), each
Hand Held Products Command Base (part number 90005300), each
Hand Held Products Satellite Base (part number 90005301), each
Hand Held Products Dual Homebase Communications/Battery Servicing Station for Microwand IIIE, including cable (part
number 90001142), each
Hand Held Products Leather Holster for MicroWand HIE (part number 04800009), each
Hand Held Products Battery Supercharger, up to 16 batteries (part number 90001103), each
Hand Held Products Nickel-Metal-Hydride, 9V Battery (part number 00603000), each
Laser-Scanner Wedge
TimeKeeping Systems Laser-Scanner Wedge for PC (part numbers V4-RDR-PC and PSC-LSR-6000), each**
Printer
Intermec 3400B Bar Code Printer, with thermal transfer adapter and cable, each
Price
$2,400
$3,895
$395
-
$55
$50
$1,695
$60
$1,500
$2,100
$1,300
$600
$335
-
$50
$1,925
$24
$1,475
$2,080
**IBM PS/2 and Dell computers require a special adapter, $25 each
Bar code equipment is not returnable once delivered.
EXHIBIT C
Assumes a January 1, 1999 Start Date
Suggested FleetAnywhere Implementation Schedule for City of Clearwater, Florida
Prototype Incorporated
Penon- Party Weeks rrom Notice to Proceed date
Project Item nays Responsible 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22
I I I I I I
Initial Platmi"g I I I I
Proje....1 KickofTMe.:tiJlg, via conference ~l City, Prolotype - ....
Delmni.uc iUlcrfa..:;e requirements City, Prototype
Determine data couvenioll requirements Cily. Prototype
Finalize interface SpecificatiOll5, ifrequired Clly. Prototype -
F/eelAnywlure Inslal/tuion and &,~ 00_
Deliver Fl~AJlywlwre Prototype
PrOl.,..n: databast; s~er wid install Windows NT Cily
Install Windows NT or Windows95 011 worbtatiolls Cily
Establish bltenwt OOJUl6l,,1ivily 10 Prototype City
Deliver server hardware 10 Prolotype City
'uslall ROBMS and l.4eale FJeetAllywhen: database I Prototype ~
Ship Senter hardware 10 Ihe City Prototype
hllllalJ server 011 City's network City
DaJa Con~trsio" mu:llmp/ememaJioll
Delivery of ASCII data 10 Protolype's FTP site City
De1iwf)' of layout descriptions to Prolotype City ~
Implesneulatiou Assislan~ . 4 Protolype . .
Data l.A)IlV~i(lIl, dala load Prololype
ImplcmealatiOlI A.ssislan~ ... 4 Cily, Prololype I I I I
I I I I
Ddhw(l.u Vf!r(jicaJi,," I I . I
Verity llt..:I...'11l'ate ~lIlVer.li(lH of dala. via inlernel Cily
Irnplemculatioll AssislaHl,;e. 4 Prototype I I
I I
F/uL4nywhere Accep/ance Tuling I .
Pl:ffooll acceplance lesling Cily
Implt::lnt:Jllatiou Assislancc. 4 Prololype
I
F/uLA.nywhert' OperaJiolu Sl!rvices I
Operational Training for Tminers. 5 City, Prototype ~
Operational Tnuning for Users Cily
I
Ul'e OperaJions =-
Beg.illlive operations City
Identity and Jeiolve any open ilems 4 City, Protolype
...
-.
Services will be provided subject to llI'ailability ~rPrototype's Implementation Specialists