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HomeMy WebLinkAboutC2011-468 - 12/12/2011 - NALICENSE AGREEMENT Software license and professional services agreement with Tracker Products LLC for the implementa and use of bar code tracking software application This software license and professional services agreement ( "Agreement ") dated this 10 day of November , 2011 (the "Execution date ") is entered between Tracker Products LLC (the "Vendor ") and Corpus Christi Fire Department (the "Licensee" or "Agency "). BACKGROUND The vendor wishes to license computer software to the licensee and the licensee wishes to purchase the software license undo the terms and conditions stated below. In consideration of the provisions contained in this agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows: A. LICENSE 1. Under this agreement the vendor grants to the licensee a non - exclusive and non - transferrable license (the "License ") to use Tracker Products bar code tracking application (the "Software "). 2. This software shall allow up to 2 simultaneous connections (The total number of authenticated software users accessing the licensee's tracking system at a given time) —and— Unlimited items entered into the licensee's tracking system per calendar year —and— Unlimited items entered into the licensee's tracking system during the initial calendar year. 3. Software includes either, A. (Hosted Version Cnstoiru rs) The hosted site and any related printed, electronic and online documentation and any other files that may accompany the product. *Agency is selecting this option. —or— B. (Purchased lZersion C ustoniers) The executable computer programs and any related printed, electronic and online' documentation and any other files that may accompany the product 4. Title, copyright, intellectual property rights and distribution rights of the software remain exclusively with the vendor.' Intellectual property rights include the look and feel of the software. This agreement constitutes a license for use only is not in any way a transfer of ownership rights to the software. 5. This agreement grants a single server license to the licensee. The licensee is allowed access one live site and one test s on the server, as further specified in the Proposal, attached hereto as Exhibit "A" and incorporated herein by reference. 6. The rights and obligations of this agreement are rights granted to the licensee only. The licensee may not transfer or assign any of the rights or obligations granted under this agreement to any other person or legal entity. The licensee ma not make available the software for use by one or more third parties. 7. The software may not be modified, reverse- engineered, or de- compiled in any manner through current or future availat technologies. 8. Failure to comply with any of the terms under the license section will be considered a material breach of this B. COMPENSATION Licensee shall pay vendor for the Software, hardware and services provide ( "Project ") in accordance with the provisions of this Section, Section C and the Proposal attached hereto as Exhibit "A ". Vendor's compensation for all products and work performed in accordance with this agreement (riot including all reimbursable items and applicable sales tax) shall not exceed 10981.16 without prior written authorization from licensee. No rate changes shall be made during the term of this agreement without the prior written approval of licensee. License fee. The license fee for the software described in this agreement will consist of the initial purchase price 2011- 46$ ')le sales tax. The license fee shall include the first year of software support and 12/12/11 Tracker Products LLC T roar Prnri� �r.e �..£n.�a�o ...,��.,.. a.,.i I:�o..ea e...m...o.., I ➢n... 5 of Si 2. Sales tax. The vendor will charge licensee applicable state or local sales tax unless licensee provides proper sales tax exemption documentation and supporting W9 information. 3. Hosted version* annual renewal agreement (See helow rcpplir(Tble detrzits). A. *Purchased version --- Maintenance and support agreement: Thereafter, an optional annual maintenance and support agreement is available to the licensee for the sum of 2486.23 per year, subject to an increase in i not to exceed five percent in any given year. The annual maintenance and support agreement is not required. Opti out or electing not to renew the maintenance and support agreement will not cause the licensee's purchased softw to be disabled in any way. The Licensee may enter into a written amendment to this agreement for these services any time during the term of this agreement. B. *Hosted version —Annual hosting, support, maintenance and upgrades Thereafter, an annual hosting, maintenance and support fee will be charged to the licensee for the sum of 2486.23 per year, subject to increase in cost not to exceed five percent in any given year, unless agreement is terminated prior to renewal. 4. Hardware. Initial Hardware purchase as further described in the Proposal attached hereto as Exhibit "A" for the purchase price of 5567.82 plus applicable sales tax. 5. On -site setup and training. On -site system setup and user training for a date to be mutually agreed upon for the sum 1949.77 . Compensation for any authorized additional on -site training services shall be paid in accordance wi the Proposal as set forth in Exhibit "A ". C. PAYMENT TERMS 1. Software. Within three (3) business days of this signed license agreement, your hosted site or purchased staging site will be made available for use. bull payment is due within thirty (30) days of access information being provided. Software costs may be invoiced separate from hardware, training and miscellaneous costs 2. Hardware. Payment for all hardware is due within thirty (30) days of receipt of Hardware. Hardware costs may be invoiced separate from training, Software and miscellaneous item costs 3. Training. Payment for training is due within thirty (30) days of on -site training completion. Training costs may be invoiced separate from hardware, software and miscellaneous item costs. 4. Accounts payable. Invoices shall be provided in writing as specified in the section entitled "Notices." D. INDEMNIFICATION To the fullest extent permitted by law, vendor shall indemnify, defend and hold harmless Agency, its Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitatio attorney's fees, disbursements and court costs) of every bind and nature whatsoever (individually, a "Claim "; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this agreement, or any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or vendor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of vendor, its principals, officers, agents, employees, vendors, suppliers, vendors, subcontractor anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require vendor to indemnify the Indemnified Parties fron any Claim arising from the negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this agreement. This indemi shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not ac a limitation upon the amount of indemnification to be provided by the vendor. E. WARRANTS AND REPRESENTATIONS The vendor warrants and represents that it is the copyright holder of the software. The vendor warrants and represents that granting the license to use this software is not in violation of any other agreement, copyright or applicable statute. F. ACCEPTANCE All terms, conditions and obligations of this agreement will be deemed to be accepted by the licensee ( "Acceptance ") upon execution of this agreement by all parties. as I0 �T " G. USER SUPPORT SERVICES 1. The licensee shall be entitled to one year of phone support available 5:00 a.m. EST to 5:00 p.m. EST or 24 hours, 7 a week when pre - arranged by an annual maintenance and support agreement, at no additional cost. Refer to Section for optional annual maintenance and support agreement. 2. The licensee shall be entitled to maintenance upgrades and bug fixes, at no additional cost, for a period of one year f the date of Acceptance. 3. At any time the licensee can request a full copy of all data and it will be provided in database or excel format. The licensee is the owner of all data inputted to the system and Tracker will in no way view or modify that data unless requested by the licensee. H. TERM The term of this software licensee shall commence upon acceptance and continues so as annual hosting, support, upgrade fees in Section 3S are timely paid with 30 days of invoice receipt. I. TERMINATION and This agreement will be terminated and the license forfeited where the licensee has failed to comply with any of the terms of this agreement or is in material breach of this agreement. On termination of this agreement for any reason, the licensee will promptly destroy the software or return the software to the vendor. J. FORCE MAJEURE The vendor will be free of liability to the licensee where the vendor is prevented from executing its obligations under this agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the vendor has taken any and all appropriate action to miti gate such an event. K. CONTROLLING LAW AND VENUE The laws of the State of Texas shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in the State of Texas L. MISCELLANEOUS 1. This agreement can only be modified in writing signed by both the vendor and the licensee. 2. Changes to this agreement within fifteen business days of the Execution Date will be subject to a twenty percent restocking fee based on the total hardware and software cost. Changes to this agreement after fifteen days will be ma upon mutual agreement of licensor and licensee. No full or partial refunds will be expressed or guaranteed after fifteg days from the date of this agreement. Sales of special order hardware items will not be restocked. 3. This agreement does not create or imply any relationship in agency or partnership between the vendor and the licens 4. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender ai vice versa. 5. If any term, covenant, condition or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this agreement will in no way be affected, impaired or invalidated as a result. 6. This agreement contains the entire agreement between the parties. All understandings have been included in this agreement. Representations which may have been made by any party to this agreement may in some way be inconsistent with this final written agreement. All such statements are declared to be of no value in this agreement. Only the written terms of this agreement will bind the parties. 7. This agreement and the terms and conditions contained in this agreement apply to and are binding upon the vendor's successors and assigns. M. ADDITIONAL PROVISIONS (APPLIES TO HOSTED VERSION CUSTUMEPS ONLY) At any time the primary client contact may request a full copy of their Tracker Products database in a compressed .zip file. T e client can choose between having the file emailed to them or downloading the file from a secure FTP site. In the event that Tracker Products goes out of business or ceases to operate for any reason, a fully functional, current copy o the purchased version shall be supplied at no additional cost. N. NOTICES All notices, demands, requests or approvals to be given under the terms of this agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from vendor to licensee shall be addressed to licensee at: Attn: Corpus Christi Fire Department, Attn: Fire Chief 2406 Leopard Street. Suite 300, Corpus Christi, TX 78408 All notices, demands, requests or approvals from licensee to vendor shall be addressed to vendor at: Attn: Products Licensing Tracker Products LLC PO Box 1026 Florence, KY 41022 Phone: 859 -746 -9700 In witness whereof, the parties have caused this agreement to be executed on the day and year first written above. LICENSEE Approved as orm: Name: Signature: Aa{ Date: IkeCerwuh- 1a, aDI VENDOR: Tracker Products LLC A Kentucky Limited Liability Company B Benjamin D. ownsend, Managing Member Date: h— Appmed to form: a-Sc- i i 3v i t �r Lisa Aguilar Assistant Cif ttorney For City Attorney Trer4arPmrl,�rre enF,uera nririnn anA 4irwnan a.Km.�.e� +I De..a 4 n/' li s The Winvale Group (Small Business Concern) GSA Schedule GS -05F -0074S CAGE CODE: 35RS6 DUNS: 141213871 TAX ID: 20 -0019673 Terms: Net 30 FOB: Destination Order Payment Address: Andrew M. Bollmeier 1012 14th St, NW, Fifth Floor Washington, DC 20005 Phone: 202 - 296 -5505 - Fax: 202- 296 -5506 abollmeier @winvale.com www.vAnvale.com ®� M F G Part Num SubTotal $10,981.16 Sales Tax i$0.00 Motorola DS6708- SR20007Z Motorola Handheld Scannerwith USB cord 3 $389.95 $1,169.85 ZR Motorola MC5590- P30DUQQ Motorola MC55 PDA Device with Tracker Mobile Software 3 $1,465.99 $4,397.97 A7WR License Tracker TP -1-10I Tracker Products Level I Data Import/Conversion 1 $977,33 $977.33 Tracker TP -OSTD1 Tracker Products One Day On -site Training Installation 1 $1,949.77 $1,1949.77 Tracker TR- H -AT -1 Tracker Hosted Asset Tracking License - price per user per 2 $1 243 12 $2 486 24 year. SubTotal $10,981.16 Sales Tax i$0.00 Shipping $0.00 Total $10,981.16 — ALL CREDIT CARD ORDERS WILL INCUR A 4.5% FEE — Quote # Terms WrtvaI Rep P.'O. N Lim ber MIN,Q1561 N.ET3� Andrew, Page EX lei- - -