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HomeMy WebLinkAboutC2011-376 - 9/29/2011 - NA6 technology SOFTWARE LICENSE AGREEMENT THIS AGREEMENT is entered into as of the I" day of October, 2011, (hereinafter referred to as the "Effective Date ") by and between Brazos Technology Corporation, a Texas corporation, with its principal offices located at 526 University Drive East, Suite 201 -A, College Station, Texas 77840 (hereinafter referred to as 'Brazos Technology "), and City of Corpus Christi, a Texas Municipality with its principal offices located at 1201 Leopard St., Corpus Christi TX 78401 (hereinafter referred to as "Licensee"), This Agreement is made with respect to the following facts and objectives: - RECITALS A. Brazos Technology has developed a proprietary software product, which is designed to extend data and processes across multiple platforms and technologies (hereinafter referred to as the "Software "). B. Licensee desires to obtain a non - exclusive license to use the Software and Brazos Technology desires to grant Licensee such a Iicense. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. License Brazos Technology hereby grants to Licensee a non - exclusive license to use the Software and the documentation, if any, provided in connection therewith (hereinafter referred to as the 'Documentation ") solely in connection with RDC, eCitation, and Parking Citation . Licensee may make one copy of the Software and Documentation for back -up and/or archival purposes. 2. Licensee Fee Licensee agrees to pay Brazos Technology the license fee identified in Exhibit A to this Agreement. Such fee shall be due immediately upon execution of this Agreement by the parties. Fees for Configuration/Installation will be due on the following schedule: %z upon contract execution and % upon delivery. Fees for training will be due upon delivery. 2011 -376 09/29/11 Brazos Technology INDEXED �D brazes technology V1.3 3. Limitations of Use Licensee acknowledges and agrees that Licensee will not timeshare, modify, sublicense, transfer, assign, copy, reverse engineer or decompile the Software, Documentation or any portion thereof except as expressly set forth herein. Licensee fiu acknowledges and agrees that Licensee will limit its use of the Software and Documentation to the number of users and/or the site location identified in Exhibit A to this Agreement. 4. Non - disclosure Licensee acknowledges and agrees that the Software and Documentation contain trade secrets and/or confidential information (hereinafter collectively referred to as "Confidential Information ") and that Licensee will take reasonable efforts to prevent the disclosure of such Confidential Information to any third party. 5. Ownership Licensee acknowledges and agrees that Brazos Technology is the sole owner of all right, title and interest in and to the Software and Documentation and that nothing contained herein shall grant Licensee any ownership interest in the Software or Documentation. 6. Upgrades In the event that Brazos Technology, in its sole discretion, should provide Licensee with any upgrades, corrections or modifications to the Software or Documentation, such upgrades, corrections or modifications shall be considered, as applicable, "Software" or "Documentation" for the purposes of this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall be construed as obligating Brazos Technology to provide Licensee with any upgrades, corrections, modifications, maintenance services or support services hereunder. 7. Warran a. Brazos Technology warrants and represents that it is the owner of all right, title and interest in and to the Software and Documentation and that use of the Software and Documentation as contemplated herein shall not infringe upon any third party patent or copyright. This warranty and representation does not apply to any infringement arising out of any unauthorized modification of the Software or Documentation or any infringement arising out of the use of the Software or Documentation in combination with any third party product. b. BRAZOS TECHNOLOGY DOES NOT WARRANT OR REPRESENT THAT ANY USE OF THE SOFTWARE OR DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. 8. INDEMNIFICATION FOR BREACH OF THE WARRANTY PROVISIONS BRAZOS TECHNOLOGY AGREES TO INDEMNIFY AND DEFEND LICENSEE FROM AND AGAINST ANY THIRD PARTY CLAIM ARISING OUT OF A BREACH OF THE WARRANTY PROVISIONS SET FORTH IN THIS AGREEMENT, PROVIDED THAT BRAZOS TECHNOLOGY IS PROVIDED WITH PROMPT NOTICE OF ANY SUCH THIRD PARTY CLAIM AND BRAZOS TECHNOLOGY IS ALLOWED FULL CONTROL OVER THE DEFENSE OF SUCH CLAIM. LICENSEE ACKNOWLEDGES Brazos Technology Software License Page 2 of 7 CONFIDENTIAL INFORMATION (o) brazos technology V1.3 AND AGREES THAT BRAZOS TECHNOLOGY MAY FULFILL ITS OBLIGATIONS HEREUNDER BY (I) OBTAINING FROM THE THIRD PARTY CLAIMANT A LICENSE PURSUANT TO WHICH LICENSEE MAY CONTINUE ITS USE OF THE SOFTWARE AND DOCUMENTATION OR (H) PROVIDING LICENSEE WITH SUBSTITUTE SOFTWARE AND /OR DOCUMENTATION THAT DOES NOT INFRINGE UPON THE RIGHTS OF THE THIRD PARTY CLAIMANT. LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT IN THE EVENT THAT BRAZOS TECHNOLOGY, IN ITS SOLE DISCRETION, DETERMINES THAT NEITHER OF THE OPTIONS SET FORTH ABOVE ARE REASONABLE, BRAZOS TECHNOLOGY MAY FULFILL ITS OBLIGATIONS HEREUNDER BY TERMINATING THIS AGREEMENT AND REFUNDING TO LICENSEE THE LICENSE FEES PAID BY LICENSEE TO BRAZOS TECHNOLOGY HEREUNDER, PRORATED OVER A PERIOD OF FIVE (5) YEARS. HOWEVER, NOTWITHSTANDING THE FOREGOING TWO SENTENCES, BRAZOS TECHNOLOGY MUST CONTINUE, AT ITS OWN EXPENSE, TO INVESTIGATE ALL CLAIMS AND DEMANDS ARISING OUT OF A BREACH OF THE WARRANTY PROVISIONS SET FORTH IN THIS AGREEMENT, ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL REASONABLY SATISFACTORY TO LICENSEE AND PAY ALL CHARGES OF ATTORNEY AND ALL OTHER COSTS AND EXPENSES OF ANY HIND ARISING FROM ANY OF SAID LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS OR ACTIONS. 9. Limitation of Liability a. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT BRAZOS TECHNOLOGY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES OR ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, PROPERTY DAMAGE, PHYSICAL INJURY, LOST SAVINGS, ARISING OUT OF THE USE OF THE SOFTWARE OR DOCUMENTATION, REGARDLESS OF WHETHER ARISING UNDER BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY OR CLAIM, EVEN IF BRAZOS TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. b. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL THE ENTIRE LIABILITY OF BRAZOS TECHNOLOGY FOR ANY LOSS OR CLAIM ARISING OUT OF THIS AGREEMENT, ANY USE OF THE SOFTWARE OR DOCUMENTATION, OR ANY INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EXCEED THE SUM OF THE LICENSE FEE PAID BY LICENSEE TO BRAZOS TECHNOLOGY HEREUNDER. Brazos Technology Software License Page 3 of 7 CONFIDENTIAL INFORMATION i► brazos V1.3 technology 10. Allocation or Risks LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSEE FEE PAID BY LICENSEE TO BRAZOS TECHNOLOGY FAIRLY AND ACCURATELY REFLECTS THE ALLOCATION OF RISKS BETWEEN LICENSEE AND BRAZOS TECHNOLOGY, INCLUDING WITHOUT LIMITATION, THE TERMS AND CONDITIONS SET FORTH IN THE WARRANTY AND LIMITATION OF LIABILITY SECTIONS OF THE AGREEMENT. LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT ANY MODIFICATIONS TO THE ALLOCATIONS OF RISK WOULD REQUIRE BRAZOS TECHNOLOGY TO CHARGE A HIGHER LICENSEE FEE FOR THE SOFTWARE AND DOCUMENTATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE ACKNOWLEDGES AND AGREES THAT EACH OF THE TERMS AND CONDITIONS SET FORTH IN THE WARRANTY AND LIMITATION OF LIABILITY SECTIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT, EVEN IF ANY REMEDY CONTAINED HEREIN IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 11. Term and Termination a. This Agreement shall commence as of the Effective Date and shall continue unless and until terminated as set forth herein. b. Either party may terminate this Agreement in the event that the other party commits a material breach of this Agreement and fails to cure such material breach within twenty (20) days after receiving written notice of the same. Licensee may terminate this Agreement, with or without cause, at any time, upon thirty (30) days written notice. C. Brazos Technology may terminate this Agreement, immediately upon written notice to Licensee, in the event that Licensee fails to use the Software and Documentation for the purpose. contemplated herein. d. Immediately upon any termination of this Agreement, Licensee shall return to Brazos Technology any and all copies of any Software or Documentation in its possession. e. The terms and conditions of this Agreement relating to Non - disclosure, Warranty, Limitation of Liability and Allocation of Risks shall survive any termination or expiration of this Agreement. 12. Assignment Licensee acknowledges and agrees that it may not assign any right or obligation arising under this Agreement to any third party without the express written consent of Brazos Technology which may be withheld for any or no reason. 13. Governing Law This Agreement, including its interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the State of Texas applicable to contracts entered into and performed in Nueces County, and exclusive jurisdiction Brazos Technology Software License Page 4 of 7 CONFIDENTIAL INFORMATION (o) brazos technology V1.3 over any dispute arising out of or relating to this Agreement shall be held by the appropriate state and/or federal courts located in Nueces County, Texas. 14. Binding Effect This Agreement shall inure to the benefit of and binding upon the parties hereto and to their respective successors and legal representatives. 15. Nonwaiver No provisions of this Agreement will be waived by any party except in writing. The parties hereto agree that the waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of that provision by the same party, or any other provision or condition of this Agreement. 16. No Joint Venture Nothing herein contained shall be construed to place the parties in the relationship of partners, joint venturers, or principal and agent and neither party .shall have any power to obligate or bind the other party in any manner whatsoever. 17. Severability If any provision or application of this Agreement shall be held invalid or unenforceable the remaining provisions and applications of this Agreement shall not be affected, but rather shall remain valid and enforceable. 18. Entire Agreement This Agreement constitutes the entire agreement and supersedes any and all other understandings and agreements between the parties with respect to the subject matter hereof and no representation, statement or promise not contained herein shall be binding on either party. This Agreement may be modified only by a written amendment duly signed by persons authorized to sign agreements on behalf of the parties and shall not be supplemented or modified by any course of dealing or trade usage. Brazos Technology Software License Page 5 of 7 CONFIDENTIAL INFORMATION brazos technology V1.3 IN WITNESS WHEREOF, the parties have hereunder executed this Agreement effective as of the date last signed. CITY OF CORPUS CHRISTI BRAZOSTECHNOLOGY Signed: Signed: Print Name: Fbfta d L. 0 1500 Print Nance: Michael S. McAleer Title: Date: J. Lisa Agul ar ASSiStant r;i" attorney For City attorney Title: President Date: 7 `)'T-2,0lf Brazos Technology Software License Page 6 of 7 CONFIDENTIAL INFORMATION 6� brazos V1.3 technology EXHIBIT A Five (5) RunIT software license for PDA $13,830 USD Software Includes: Unlimited number of logins to the PDA One -Year of Software Maintenance One -Year of Software Support IN -A -BOX, COP, ELECTRONIC CITATION, INTEGRATION, SOFTWARE, SERVICES. GSA CONTRACT# GS- 35F0096X, SKU# IB- ONSITE- BRAZOS- IU -GOV Configuration/Installation Fee $ INCL Configuration Includes: Customized PDA/Web screen layouts Customized citation receipt for defendant Customized citation report for court and PD Integration with electronic data processing system used for processing of criminal violationsfiled at Municipal Court Integration with electronic data processing system used for processing of non- criminal violations filed at Municipal Court Extended Training $ INCL 2 days of on -site training of officers 1 day of administrator training Classroom and practical training * Brazos will deliver the equipment to eliminate shipping to customer. Brazos Technology Software License Page 7 of 7 CONFIDENTIAL INFORMATION