Loading...
HomeMy WebLinkAboutResolution - 2011-R0210 - PO - Mythics Inc.- Database License, Banner Utility Billing System - 05/10/2011Resolution No. 2011—RO210 May 10, 2011 Item No. 5.14 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Purchase Order No. 21.400249 for the purchase of database license to support Banner Utility Billing System, by and between the City of Lubbock and Mythics, Inc. of Virginia Beach, VA, and related documents. Said Purchase Order is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on May 10, 2011 TOM MARTIN, MAYOR ATTEST: Retie a Garza, City Secretary APPROVED AS TO CONTENT: C' -7A C-4 e -'d Mark arwoo , Assistant City Manager Chief Information Officer APPROVE AS TO FORM: Chad Weaver, Assistant City Attorney vwxcdocs/RES.Mythics Inc.-PurchaseOrd April 25, 2011 4 a C1 of lubbock TEXhs TO: PURCHASE ORDER MYTHICS INC 1439 GREAT NECK RD SUITE 201 VIRGINIA BEACH Virginia 23454 SHIP TO: INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: Page - I Date - 04/25/2011 Order Number 21400249 000 OP CITY OF LUBBOCK MUNICIPAL SQUARE BUILDING C/O JASON GOELZER, ROOM 104 916 TEXAS AVENUE LUBBOCK Texas 79401 Ordered 04/25/2011 Freight Requested 04/25/2011 Taken By D.TORRES Delivery PER LGOELZER/REQ 37313 GS -35F -0153M QUOTE 32811 Description/Supplier Item Ordered Unit Cost UM Extension Request Date Oracle Database Enterprise 2.000 17,020.9200 EA 34,041.84 06/01/2011 Incremental Support 1.000 7,489.2000 EA 7,489.20 06/01/2011 Migrated Support 1.000 4,349.4300 EA 4,349.43 06/01/2011 Oracle Database Enterprise 4.000 19,320.0000 EA 77,280.00 06/01/2011 Softwr Update; Product Support 4.000 4,250.4000 EA 17,001.60 06/01/2011 Diagnostics Pack 6.000 1,449.0000 EA 8,694.00 06/01/2011 Softwr Update, Product Support 6.000 31.8.7800 EA 1,912.68 06/01/2011 Tuning Pack 6.000 1,449.0000 EA 8,694.00 06/01/2011 Softwr Update; Product Support 6.000 318.7800 EA 1,912.68 06/01/2011 Internet Appl Srvr Enterprise 6.000 14,490.0000 EA 86,940.00 06/01/2011 Softwr Update; Product Support 6.000 3,187.8000 EA 19,126.80 04/25/2011 Oracle Test & Development Envr 50.000 386.4000 EA 19,320.00 04/25/2011 Softwr Update; Product Support 50.000 85.0080 EA 4,250.40 04/25/2011 Diagnostics Pack 50.000 28.9800 EA 1,449.00 04/25/2011 Softwr Update; Product Support 50.000 6.3756 EA 318.78 04/25/2011 Tuning Pack 50.000 28.9800 EA 1,449.00 04/25/2011 Softwr Update; Product Support 50.000 6.3756 EA 318.78 04/25/2011 Total Order Terms NET 30 DAYS 294,548.19 This purchase order encumbers funds in the amount of $294,548 awarded to Mythics of Virginia Beach, Virginia, on May 10, 2011. The following is incorporated into and made part of this purchase order by reference: Price quotation dated March 28, 2011 from Mythics of Virginia Beach, Virginia. Resolution# 2011—RO210 CITY OF LUBBOCK ATTEST: =' , A;;;-, Tom Martin, Mayor Rebeccll Garza, City Secretary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goats under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RiSK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer acumlly receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided where the time for performance has not yet expired. the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward. 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. Time Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gills or otherwisc, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract mr securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of viciation of this warranty the Buyer shad have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods fiunished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) furnished by the Seller, if any. in the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -fire performance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. Also, the Seller wan -ants the year2000 calculations will be recognized and accommodated and will not, in any way, result in hardware, software or firmware failure. The City of Lubbock, at its sole option, may require the Seller, at any time, to demonstrate the procedures it intends to follow in order to comply with all the obligations contained herein. The obligations contained herein apply to products and services provided by the Seller, its sub -Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained hereon are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may retain the product for correction or replacement at the Sellers expense. In the event Seller Fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer he liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the lice, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said parry is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended bythe parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subScllcr or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided 22. TiME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. Rev. 08/2005 I u b b"oty O&f PURCHASE ORDER TEXAS TO: MYTHICS INC 1439 GREAT NECK RD SUITE 201 VIRGINIA BEACH Virginia 23454 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Ordered 04/1812012 Freight Requested 04/18/2012 Taken By Delivery Per J Zhine / Req #39530 Resolution No. 2011-80210 Page - 1 Date - 04118/2012 Order Number 33000237 000 OP Branch/Plant 3410 SHIP TO: CITY OF LUBBOCK INFORMATION TECHNOLOGY CIO MARK YEARWOOD 1611 10TH STREET LUBBOCK Texas 79401 BY #CLB 5132019SR/GS-35F-0153M D.TORRES Description/Supplier Item Ordered Unit Cost UM Extension Request Date Tuning Pack-Processr Perpetual 6.000 344.9950 EA 2,069.97 04127/2012 05/24/2012 - 05/31/2013 Oracle DB Enterprise Edin-User 50.000 92.0000 EA 4,600.00 04/2712012 05/24/2012 - 05/31/2013 Inet Appl Srvr Entrp Edtn-Proc 6.000 3,449.9516 EA 20,699.71 04127/2012 05/24/2012 - 05/31/2013 Diagnostics Pck-Proc Perpetual 6.000 345.0000 EA 2,070.00 04/2712012 05/24/2012 - 05/31/2013 Oracle DB EntrprsEdtn-Proc Prp 2.000 5,475.1750 EA 10,950.35 04/27/2012 05/24/2012 - 05/31/2013 Oracle DB EntrprsEdtn-Proc Prp 4.000 4,599.9350 EA 18,399.74 04/2712012 05/242012 - 05/31/2013 Diagnostics Pck-User Perpetual 50.000 6.9000 EA 345.00 04/27/2012 05/242012 - 05/31/2013 Tuning Pack -User Perpetual 50.000 6.9000 EA 345.00 04/27/2012 05/242012-05/3112013 TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: t. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows lal Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seiler is not authorized to ship the goods underreservation and no tender of a biI of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods et the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as In time of delivcry, quality and the like. Ifa lender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming lender within the contract time but not afterward. k 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, ,in duplicate, one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. 0. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of enterta.inmunt, gifts or otherwise, were offered Or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract, In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, w recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. I3.. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Sellers current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced w the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona tide established commercial or selling agencies maintained by the Seiler for the purpose of securing business. For breach of vitiation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of sucb commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) furnished by the Seller, if any. in the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Seiler, its sub - Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and I lealth Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to tate specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result. he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice andis subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in pari by the Buyer in accordance with this prevision. Terminationof work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assignedor delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shal I be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. I& INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as pan of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code' is used, it shall he construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. Whenever one party to thiscontract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims., suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom ofincurred in connection therewith, and, if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses. satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. 24. NON -ARBITRATION. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. 25. RIGHT TO AUDIT. At any time during the term of the contract. or thereafter. the City. or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable times, reserves the right to audit Contractors records and books relevant to all services provided to the City under this Contract. In the event such an audit by the lily reveals any errors or overpayments by the City. Contractor shall refund the City the full ammmt of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City firm any payments due Contractor. Rev. 0212012 city of lubbock TIXAi TO PURCHASE ORDER MYTHICS INC 1439 GREAT NECK RD SUITE 201 VIRGINIA BEACH Virginia 23454 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Ordered 04/18/2012 Freight Requested 04/18/2012 Taken By Delivery Per J Zhine / Req #39530 Description/Supplier Item Terms NET 30 DAYS Ordered Page - 2 Date - 04/18/2012 Order Number 33000237 000 OP Branch/Plant 3410 SHIP TO: CITY OF LUBBOCK INFORMATION TECHNOLOGY C/O MARK YEARW OOD 1611 10TH STREET LUBBOCK Texas 79401 BY: I Marta D.TORRES #CLB 5132019SR/GS-35F-0153M Unit Cost UM Extension Total Order 59,479.77 Request Date This purchase order encumbers funds in the amount of $59,479.77, for a bid awarded to Mythics Inc of Virginia Beach, Virginia, on May 10, 2011 in accordance with Resolution No. 2011 -R0210 - The following is incorporated into and made part of this purchase order by Resolution No. 2011- R0210. CITY OF LUBBOCK Tom M min, Mayor ATTEST: (D 'Q'e' - - - '�c Re cca Garza, City Secretary TERMS AND CONDITIONS IMPORTANT. READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be Final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorizedto ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided, when the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward. 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreementnumber if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not W due until the above instruments are submitted after delivery, 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing. such gratuities.. 7. SPECIAL TOOLS & TEST EQUH'MENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall he that contained in Seller's bid which Seller warrants to be no higher then Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of vitiation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 4. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and ro the sample(s) famished by the Seller, if any. In the event Cis conflict or between the specifications. drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or incombination, as the case may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Seller, its sub - Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject many disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1470. In the event the product does not conform to OSI IA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to ibis effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terns hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. IC TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the dale upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE. MAJEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permissian of the Buyer. Any attempted assignment or delegation by Seiler shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or input by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement, Whenever a tern defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the Stale of Texas as effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 2l. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits., liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses. satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in defauh of this agreement. 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. 24. NON -ARBITRATION, The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. 25. RIGHT TO AUDIT. At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the Stale of Texas, at its expense and at reasonable Beres, reserves the right to audit Contractors records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City re,, eals any errors or overpayments by the City, Contractor shall refund the City ilia full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. Rev. 02/2012 ikrof PURCHASE ORDER 4 ldbo& TEXAS TO: MYTHICS INC 1434 GREAT NECK RD SUITE 201 VIRGINIA BEACH Virginia 23454 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Ordered 06/04/2013 Freight Requested 06/04/2013 Taken By Delivery Per J Zhine / Req #41864 Page - 1 Date - 06/04/2013 Order Number 33000375 000 OP B ranch/Plant 3410 SHIP TO: CITY OF LUBBOCK INFORMATION TECHNOLOGY C/O MARK YEARWOOD 1611 10TH STREET LUBBOCK Texas 70401 BY- JV2",I lI Marta Alvarez, Director of P asing & D.TORRES #COL513209-14SR/DIR- VPC -03-018 Description/Supplier Item Ordered Tuning Pack - Proc Perpetual 6.000 CSI 18056267 6/01/13-5/31/14 Oracle DB Entrp Edtn Named Usr 50.000 Plus Perpt 06/01/12-05/31/14 Internet Appl Servr Entrp Edtn 6.000 Proc Perpt 06/01113-05/31/14 Diagnostic Pack Proc Perpt 6.000 06/01/13-05/31/14 Oracle DB Entrp Edtn Named Usr 2.000 Proc Perpt 06/01113-05131/14 Oracle D13 Entrp Edtn Named Usr 4.000 Proc Perpt 06/01/13-05/31/14 Diagnostic Pack Named Usr Plus 50.000 Perpt 06/01/13-05/31/14 Tuning Pack Named User Plus 50.000 Perpt 06/01/13-05/31114 Unit Cost UM Extension Request Date 331.9183 EA 1,991.51 06/14/2101 88.5114 EA 4,425.57 06/14/2101 3,319.1816 EA 19,915.09 06/14/2101 331.9183 EA 1,991.51 06/14/2101 5,267.6350 EA 10,535.27 06/14/2101 4,425.5725 EA 17,702.29 06/14/2101 6.6382 EA 331.91 06/14/2101 6.6382 EA 331.91 06/14/2101 TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Se€ler's name, and address. (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container hearing the packing slip. Seller shall bear cost of packaging unless otherwise provided Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications, Buyer's count or %eight shall be final and conclusive on shipments net accompanied by packing lists. 2. SHIPMENT LINDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation andno tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like, If a tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforrning fender, provided, where the time for performance has not yet expired, the Sella may reasonably notify Buyer of his intention to cure and may then make a conformingtender within the contract time but not afterward. 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release atter each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock,. P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without liability to Sella if it is determined by Buyer that gratuities, in the fort of entertainment, gifts at otherwise, were offeredor given by the Seller, or any agent or representative ofthe Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determination with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of airy special tooling of special test equipment fabricated or required by Seller for The purpose of filling this order, such special tooling equipment and any process sheets related thereto shall became the property of the Buyer and to the extent feasible shall be identified by the Seller as such. 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. in the event Sol ler breaches this warranty, the prices of the iters shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seiler For breach or Seller's actual expense. b. Tse Sella warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting lona fide employees of bona fide established commercial or setting agencies maintained by the Seller for the purpose of securing business. For breach of vitiation of this warranty the Buyer shall have the right in addition to any other right of sights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Sella warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the samplc(s) Furnished by the Seller, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Sella represents and warrants fault -free performance and fault -free result in the processing date and dale related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective dale of this Contract. The obligations contained herein apply to products and services provided by the Seller, its sub - Seller or any third party involved in the erection or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligation contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to terntination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or himatation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. in the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agimment will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goads according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indennifmcation in the event. that Seller is stied on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goads in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. L3. CANCELLATION. Buyer shall have the Tight to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terns hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held respomible for losses, resulting if the fulfillment of any terns of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim at right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Sella as part of his bid, is intended by the paries as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a tern defined try the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE I.P.W. This agreement shall be governed by the Uniform Commercial Code. Where ever the teen "Uniform Commercial Code" is used it shall be construed r s meaning the Uniform Commercial Cade as adopted in the State of Texas as effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within rive (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, clauns, patent claims, suits,. liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in cor5aquenoe of the granting of this Contract at which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in defaull of this agreement. 23. MBE, The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be of ,rded equal opportunities to submit bids in response to this invitation and will notbe discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. 24. NON -ARBITRATION. The City reserves the right to exercise any right or remedy available to it by law, conbw-% equity, or otherwise, including without limitation, the right to seek any and all farms of relief in a court of competent jurisdiction. Further, the City shall not W subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently.. To the extent of any conflict between this provision and another provision in. or related to, this document, this provision shall control. 25. RIGHT TO AUDIT. At any time during the tern of the contract, or thereafter, the City, or a duly authorized audit representative of the City at the State of Texas, at its expense and at reasonable times, reserves the right to audit Contracioes records and books relevant to all services provided to the City under this Contract. In the event inch an audit by the City reveals any errors or overpayments by the City, Contractor shall refund the City the Rall amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. Rev. 0212012 rl City' of bo& iI%AS TO: PURCHASE ORDER MYTHICS INC 1439 GREAT NECK RD SUITE 201 VIRGINIA BEACH Virginia 23454 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBSOCK, TX 79457 Page - 2 Date - 06/04/2013 Order Number 33000375 000 OP Branch/Plant 3410 SHiP TO: CITY OF LUBBOCK INFORMAATION TECHNOLOGY CIO MARK YEARWOOD 1611 10TH STREET LUBBOCK Texas 79401 Ordered 06/04/2013 Freight Requested 06/04/2013 Taken By D.TORRES Delivery Per 3 Zhine / Req #41864 #COL513209-14SR/DIR-VPC-03-018 Description/Supplier Item Ordered Terms NET 30 DAYS Unit Cost UM Extension Total Order 57,225.06 Request Date This purchase order encumbers funds in the amount of $57,225.06, for a purchase order awarded to Mythics Inc. of Virginia Beach, Virginia on May 10, 2011 in accordance with Resolution No. 2011- R0210. The following is incorporated into and made part of this purchase order by Resolution No. 2011- 80210. CITY OF L TEST: Glenbertso , Mayor Reb cca Garza, City S re TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxc% and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common caries and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is trade which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward. 5. INVOICES & PAYMENTS, a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall he listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. 0. Bax 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUrM, The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Siler, or any agent or representative of the Seller, to any officer or employe of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the perforating of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUiPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Sella for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall Become the property of the Buyer and to the extent feasible shall be identified by the Seller as such 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Sellers current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of viciatien of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods famished will conform to the specification, drawings, and descriptions listed in the bid imitation., and to the sample(s) furnished by the Seller, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Seller, its sub - Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person by way of infringement of the Lice. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer bamiless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting atom 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or comm is acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall bre effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the Tights of Buyer setforth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting. if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, andwhich by the exercise of reasonable diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this. paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. I& INTERPRETATION -PAROLE EVIDENCE, This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terns of their agreement. Whenever a term defined by the Uniform. Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is used it shall be construed as meaning the Umform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is trade and no assurance is given within five (5) days, the demanding party may meat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined thatthe act was caused through negligence or omission of the Seiler or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall be rendered against the Buyer inany such action, the Seller shall., at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seiler, sinal) in rw way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME. It is hereby expressly agreed and understood that lime is of the essence for the perfornance of this contract, andfailure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not he discriminated against on the grounds of race, color, sex or natural origin in consideration far an award. 24. NON -ARBITRATION, The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict Between this provision and another provision in, or related to, this document, this provision shall control. 25. RIGHT TO AUDIT. At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable times, reserves the right to audit Contractor's records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any errors or overpayments by the City, Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. Rev. 02/2012 Jr � TM MYTH ICS �- ,cared Bames Company Name: City of Lubbock Direct: 757.416.6539 Fax: 757Al2,1060 Contact: Jay2hine Email: Jbames&nytWcz.com Phone: {606} 775.2366 Email: izhinerramail.cdubbock:txus Mythics, Inc � 1439 N. Great Neck Rd. Suite 201 Virginia Beach, VA 23454 ORACLE SUPPORT RENEWAL +tom Platinum Partner Quote Number. COL 5132019 -14 -SR Prepared On: May 31, 2013 Valid Through: June to, 2013 Line Item CSI f _Oracle Product Description Term License Type Number of Licenses License Level Extended Price 1 18056267 Tuning Pack Jun 1, 2013- May31, 2014 Processor Perpetual 6 Full Use $1,991.51 2 18056267 Oracle Database Enterprise Edition Jun 1, 2013- May31, 2014 Named User Plus Perpetual 50 Full Use $4,425.57 3 18056267 Internet Application Server Enterprise Edition Jun 1, 2013- May31, 2014 Processor Perpetual 6 Full Use $19,915.09 4 18056267 Diagnostics Pack Jun 1, 2013- May31, 2014 Processor Perpetual 6 Full Use $1,991.51 5 18056267 Oracle Database Enterprise Edition Jun 1, 2013- May31, 2014 i Processor Perpetual 2 Full Use $10,535.27 6 18056267 Oracle Database Enterprise Edition Jun 1, 2013- May31, 2014 Processor Perpetual 4 Full Use $17,702.29 7 18056267 Diagnostics Pack Jun 1. 2013- May31, 2014 Named User Plus Perpetual 50 Full Use $331.91 B 18056267 Tuning Pack Jun 1, 2013-May31, 2014 Named User Plus Perpetual 50 Full Use $331.91 SUPPORT: NEW LICENSE & SUPPORT: TRAINING: SERVICES: $57,22Ay.06 UPON REQUEST UPON REQUEST UPON REQUEST TOTAL $57,225.06 "'Please reference Mythics Quote Number on your purchase order: COL 5132019 -14 -SR itional lnfomration: quotation is an estimate and is an invitation for you to after to purchase products and semces from Mythics_ Your order is subject to Mythics' acceptance and to software licensing terms and itions per reference to an existing licenselcontract or a newly executed license accompanying your order. ics DUNSM 013358002 ics Fed Tax ID# 541987871 Z CODE: 1TA34 ':423430 xxt services are provided under Oracle's then current technical support policies located at: http:llwww.oracle.comisupporUpolicies.html agree that Mythics has the right to cancel your support due to non-payment. a is available for download at no additional cost at httpJledelivery.oracle.com+ reliance on your order, Mythics will issue a non -cancellable order with its supplier for software or hardware products ordered. Therefore all orders are non -cancellable. Purchasing Instructions: Please include the following statements in your order: 1. This order is placed pursuant to the terms and conditions of Texas DIR-VPC-03-018. 2. Payment terms are: Net 30 City of Lubk�- bock PURCHASE ORDER 1 4! TEXAS TO: MYTHICS INC 1439 GREAT NECK RD SUITE 201 VIRGINIA BEACH Virginia 23454 Page - 1 Date - 06/04/2014 Order Number 33000511 000 OP Branch/Plant 3410 SHIP TO: CITY OF LUBBOCK INFORMATION TECHNOLOGY C/O MARK YEARWOOD 1611 10TH STREET LUBBOCK Texas 79401 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: UA Marta Alvarez r of Purchasing & Contract Management Ordered 06/04/2014 Freight Requested 06/12/2014 Taken By K SHEPHERD Delivery PER J ZHINE - REQ 43825 Q#COL5132019 FY15/GS-35F-0153M Description/Supplier Item Ordered Oracle TuningPack CSI 1805627 1.000 6 lie 6/1/14-5/31/15 ProcPerp EA Oracle DB EntrpEdn CSI 1805627 1.000 50 lie 6/14-5/15NamUsrPlusPerp EA INet App] Sever Entrprise Edn 1.000 6 lie 6/1/145/31115 ProcPerp Oracle Diagnostics CST 1805627 1.000 6 lic 6/1/14-5/31/15 ProePerp Oracle DB EntrpEdn CSI 1805627 2.000 2 lie 6/1/145/31/15 ProcPerp Oracle D13 EntrpEdn CST 1805627 4.000 4 lie 611/14-5/31/15 ProcPerp Oracle Diagnostics CST 1805627 1.000 50 lic 6/14-5/15NamUsrPlusPerp Oracle TuningPack CSI 1805627 1.000 50 lie 6/14-5/15NamUsrPlusPerp Unit Cost Um Extension Request Date 2,051.2600 EA 2,051.26 06/12/2014 4,558.3400 EA 4,558.34 06/12/2014 20,512.5400 EA 20,51254 06/12/2014 2,051.2600 EA 2,051.26 06/12/2014 5,425.6650 EA 10,851.33 06/12/2014 4,558.3400 EA 18,233.36 06/12/2014 341.8700 EA 341.87 06/12/2014 341.8700 EA 341.87 06/12/2014 TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the comainer bearing the packing slip, Seller shall bear cast of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusiveon shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not mftrized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every [cnda of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like If a tender is made which does not fully confocal this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, pir"dod, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to core and may then make a conforming tender within the contract time but not afterward. S. INVOICES & PAYMENTS. a Sella shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number amend the supply agmemeru number if applicable, Invoices shall be itemized and trantsportatim charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Sella, or any agent or representative of the Sella, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract bi the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. if the price stated on the face hereof mciuds the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this ender, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. S. WARRANTY -PRICE. a The price to be paid by the Buyer shall he that contained in Sella's bid which Sella warrants to be no higher than Seller's current process on orders by others for products of the kindand specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Sella breaches this warranty, the pries of the items shall be reduced to the Seller's current pricy on orders by others, or in the alternative. Buyer may cancel this contract without liability to Sella far breach or Sella's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employes of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business For breach of viciation of this warranty the Buyer shall have the tight in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, art otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Sella shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawing,.- and descriptions listed in she bid invitation and to the sample(s) furnished by the Seller, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Sella represents and warrants fault -free performance and fault -fres resultin the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as time case may be from the effective date of this Contract The obligations contained herein apply to products and services provided by the Sella, its sub- Sella or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its Tights under the law and under this Contract including, but not limited to, its right pertaining to termination or default The warranties contained herein are separate and discrete fromany other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its sclmedules, its annexes or any document incorporated in this Contmet by reference. 10. SAFETY WARRANTY. Sella warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product dos not conform to OSHA standards, Buyer may return the product for correction or replacement at the Sella's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will he at the Sellas expense. IL NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whetter goods manufactured in accordance with the specifications adached to this agreement will give rise to the rightful claim of any third person 12. Non Approtttiabom: All funds for payment by the City under this contract are subject to the availability of m annual appropriation for this purpose by the City. [n the event of mnappmpriation of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City will terminate the contract without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then-curreet year for the goods or services covered by this contract is sport, whichever event occurs first.. [fat any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the Sella an thirty (30) days prior written notice, but failure to give such notice shall be of mo effect and the City shall not be obligated under this contract beyond the date of termination by way of infringement of the like. Buyer maks no warranty that the production of goods according to the specification will not give rise to such a claim, and in an event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Sellar is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement If Buyer does not receive notice and is subsequently held liable for the infringement or the like. Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void 13. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them 14. CANCELLATION. Buyer shall have the right to cancel for default all or any par of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 1.5. TERMINATION. The performance of work under this order may be terminated in whole, or in pan by the Buyer in accordance with this provision. Termination of work hacunda shall be cffected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu ofthe rights of Buyer set forth in Clause 13, herein 16. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the parry whose performance is interfered with, and which by the exercise of reasonable diligence said partyis unable to prevent 17. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Sella shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 18. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration amid is in writing signed by the aggrieved party. M INTERPRETATION•PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as past of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenevera term defined by the Uniform Commercial Code is used in this agreement the definition contained in the Cade is to control. ' A APPLICABLE LAW. This agreement shall be governedby the Uniform Commercial Cade. Where over the tern "Uniform Commercial Code" is used, it shall be cmtstrual as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the dale of this agreement 21. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his inter to performs In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract 22. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employes, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employes, or of the subSeller or assignee or its employes, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall W rendered against the Buyer in any such action, the Seller shall, at its own expenses. satisfy and discharge the same Sella expressly understands and agrees that any bond required by this contract or otherwise provided by Sella, shat] in no way limit the responsibility to indemnify, keep and save harmless and defrrid the Buyer as herein provided 23. TIME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller lobe in default of this agreement. 24. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of Tam. color. sex or natural origin in consideration for an award 25. NON -ARBITRATION. The City reserves the right to exercise any right or remedy to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all firms of relief in a court of competent jurisdiction Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of anyconllict betwcen this provision and anotherprovision in, or related to, this document, this provision shall control. 26. RIGHT TO AUDIT. At any time during the term of the contract, or thereafter, the City, err a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable tines, reserves the right to audit Contrdcwrs records and books relevant to all services provided to the City under this Contract in the event snob an audit by the City reveals any errors or overpayments by the City. Contractor shall refund the City the full amount ofsuch overpayments within thing (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. 27. House Bill 2015, signed by the Governor on June 14, 2013 and effective on January 1, 2014, authorizes a penalty to be imposed on a person who contracts for certain services with a governmental entity and who fails to properly classify their workers. This applies to subcontractors as well. Contractors and subcontractors who fail to properly classify individuals performing work under a governmental contract will be penalized 5200 for each individual that has been misclassified. Govermnental entities may want to include information on this new misclassification penally in their contrails with entities thin ate providing services covered by this new requirement (Texas Government Code Section 2155.001). Rev. 0212012 i City of11 UubF4P. bo►c0x TEXAS PURCHASE ORDER TO: MYTHICS INC 1439 GREAT NECK RD SUITE 201 VIRGINIA BEACH Virginia 23454 Page - 2 Date - 06/0412014 Order Number 33000511 000 OP Branch/Plant 3410 SHIP TO: CITY OF LUBBOCK INFORMATION TECHNOLOGY C/O MARK YEARWOOD 1611 10TH STREET LUBBOCK Texas 79401 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: Marta Alvarez, di r of Purchasing & Contract Management Ordered uo/t1q/LU1'1 ureigni Requested 06/12/2014 Taken By Delivery PER J ZHINE - REQ 43825 Q#COL5132019 FY15/GS-35F-0153M K SHEPHERD Description/Supplier Item Ordered Unit Cost UM Extension Request Date Total Order Terms NET 30 BAYS 58,941.83 This purchase order encumbers funds in the amount of $58,941.83 for a purchase order awarded to Mythic Inc. of Virginia Beach, Virginia on May 10, 2011. In accordance with Resolution No. 2011-110210. The following is incorporated into and made part of this purchase order by Resolution No. 2011 -1102 10 ATTEST: 'D a4le� - Rebecc Garza, City Secretary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUDBOCR TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consigns s name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of contains, c.g, box I of 4 boxes, and )d) the number of the containerbearing the packing slip. Seller shall bear cost of packaging unless otherwise provided Goods shall be suitably packed to secure lowest transportation. costs and to conform with requirements of conmwn carriers and any applicable speeificatiore. Buyer's count or weight shall be final and conclusive= shipments not accompaniedby packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a hill of lading will operate m a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. H a tender is made which dos not fully conform, this shall constitute a breach and Sella shall not have the right to substitute a conforming tends, provided, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tends within the contract Time but not afterward. S. INVOICES & PAYMENTS. a Sella shall submit separate invoices, in duplicate, one each purchase order or pterobase release after enCh delivery. Invoices shall indicate the purchase order or purchase release numbs and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should he attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. 0. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments aro submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Sella, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered err given by the Sella, or any agent or representative of the Seller, to any officer or employs of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract In the event this contrast is canceled by Buyer pursuant to this provision,. Buyer shall be entitled, in addition to any other rights and remedies- to rerw!va or withhold the amount of the cost incurred by Sella in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Sella for the purpose of filling this order, such special tooling equipment and any process sleets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Selleras such 8. WARRANTY -PRICE. a The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase In the event Sella breachm this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Sella warrants that no person or selling agency has beat employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona We employees of bona fide established commercial or selling agencies maintained by the Sella for the purpose of securing business. For breach of viciation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise reeov r without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fec. 9. WARRANTY -PRODUCT. Sella shall not limit a exclude any implied warranties and any attempt to do w shall render this contract voidable at the option of the Buyer. Sella warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sarnple(s) furnished by the Sella, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free perfernance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this ComracL The obligations contained herein apply to products and services provided by the Sella, its sub- Seller or any third party involved in the creation or development of the produces and services to be delivered to the City of Lubbock under this Contract Failure to comply with any of the obligations contained herein, may rewh in the City of Lubbock availing itself of any of its rights under the law and under this Contract including. but not limited to, its right pertaining to termination or default The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaims of warranty, implied or expressed, of limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that due product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Sella fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. IL NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Sella agrees to ascertain whether goods mmanufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person 12. Non Anoromiation All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this purpose by the City. In the event of nonappropriadon of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City will terminate the contract without tmnination charge or other liability,on the last day of the thencumml fiscal year or when the appropriation made for the then-cvnent year for the goods or services covered by this contract is spent, whichever even occurs first If at any time funds are nct appropriated for the continuance of this contract, cancellation shall be accepted by the Seller on thirty (30) days prim written notice, but failure to give such notice shall be of aro effect and the City shall not be obligated under this contract beyond the date Dftermination. by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buysbe liable to Seller for' indemnification in the event that Seller is sued on the grounds ofinfn'.ngement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void 13. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 14. CANCELLATION. Buyer shall have the tight to cancel for default all or any part of the undelivered portion of this order if Sella breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancelialion is in addition to and not in lies of any other remedies which Buyer may have in law or equity. 15. TERMINATION. The performance of work under this order maybe terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such temtination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyerset forth in Clause 13, herein.. 16. FORCE MAJEURE. Neither petty shall be held responsible for losses, resulting if the fulfillment of any teras of provisions of this contract is delayed or prevented by any cause not within the control of the party whose perfornimm is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent Ill. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Sella without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 18. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or tight unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party, 19. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents Provided by Sella as par of his hid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of The terms of their agreement Whaneva a term defined by the Uniform Commercial Code is used in this ag ee neat, the definition contained in the code is to control. -0, APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the tam "Uniform Commercial Code" is used, it shall be mristrued as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement 21. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other pasty's intent to perform he may demand that the other party give written assurance, of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract 22. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss. damages. claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or orression of the Seller or its employees, or of the svbSeller or assignee or its employees. if any, and the Seller shall., at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall be rendered against the Buyer in any such action., the Seller shall, at its own expenses, satisfy and discharge rhe same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Sella, shall in no way limit the responsibility to indenm'sfy, keep and save harmless and defend the Buyer as herein provided. 23. TIME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Sella to be in default of this agreement. 24. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of .race, color, sex m natural origin in consideration for an award 25. NON -ARBITRATION. The City reserves the right to exercise any right or remedy to it bylaw, contract, equity, or otherwise, including without limitation, the right to sock any and all forms of relief in a court of competent jurisdiction Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. Theremedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent ofany conflict between this provision and another provision in, or related to, this docunnent, this provision shall control. 26. RIGHT TO AUDIT. At any time during the term of the contract, or thereafter, the City.. or a duly authorized audit representative of the City or the State of Texas, at itsexpense and at reasonable times, relates the right to audit Contractor's records and books relevant to all services provided to the City under this Connect In the event such an audit by the City reveals any enrors or overpayments by the City, Contractor shall refund the City dte full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City front any payments due Connactor. 27, House Bill 2015, signed by the Governor on lune 14, 2913 and effective on January I, 2014, authorizes a penalty to be imposed on a person who contracts foreertain services with a governmental entity and who fails to properly classify their workers. This applies to subcontractors as well, Contractors and subcontractors who fail to properly classify individuals performing work under a governmental contract will be penalized $200 for each individual that has been misclassified. Governmental entities may want to include information on this new misclassification penalty in their contracts with entities that are providing services covered by this new requirement (Texas Government Code Section 2155,001). Rev. 0212012