HomeMy WebLinkAboutResolution - 5791 - Contract - Radix Corporation - Electronic Meter Reading System - 03_12_19984
RESOLUTION NO. 5791
Item #23
March 12, 1998
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Contract and all related
documents by and between the City of Lubbock and Radix Corporation for an
electronic meter reading system, which Contract is attached hereto, which shall be
spread upon the minutes of the Council and as spread upon the minutes of this Council
shall constitute and be a part of this Resolution as if fully copied herein in detail.
Passed by the City Council this 12th day of
ATTEST:
Kay Dainell, City Secretary
APPROVED AS TO CONTENT:
0;&qki - -
Victor Kilman, Pusing Manager
APPROVED AS TO FORM:
01
D�dald G. Vandiver, First
City Attorney
da/ccdocs/ radix.res
March 3, 1998
March , 1998.
RESOLUTION NO. 5791
Item #23
# Date
SALES
AGREEMENT
radix .
RADIX CORPORATION
4855 Wiley Post Way
P.O. Box 16400-0400
Salt Lake City, Utah 84116
(800)453-5195
(801)537-1717
FAX (801) 328-3401
http://www.radix-intl.com
I. DEFINITIONS:
Agreement - This Sales Agreement and Customer's
purchase order, together with attached Order
Schedule and Supplementary Schedule, including
properly executed amendments the terms and
provisions of which govern the sale of Radix
Products.
CFI - Cost, Freight, and Insurance
Date of Delivery - The tenth day after the Products
are shipped to Customer or the date on which the
Products are received by Customer, whichever
occurs earlier. Products delivered FOB Salt Lake
City, CFI.
FOB - Free On Board
Parties - Collectively Radix and Customer, or singly
a "Party„
Product(s) - Supplies, equipment, software and/or
services manufactured and/or sold by Radix. (All
supplies, equipment, software, etc. may not be
eligible for maintenance.)
THIS AGREEMENT CAN BE MODIFIED ONLY
BY A WRITTEN DOCUMENT SIGNED BY
EACH PARTY.
H. ORDER, ACCEPTANCE AND
MODIFICATION:
Customer may order Products by executing and
delivering to Radix a Sales Agreement, an Order
Schedule, and a Purchase Order; or an Order
Schedule and a Purchase Order when a properly
.executed Sales Agreement is in effect. The
Customer's purchase order, together with the terms
and provisions of this Agreement when executed by
an officer of Radix shall be the complete and
exclusive statement of the terms of purchase of the
GENERAL TERMS AND CONDITIONS
Products. The Agreement shall be effective when
this document is executed on behalf of Radix. In the
event of inconsistent terms and provisions between
this Agreement and Customer's purchase order, the
terms of this Agreement are hereby deemed to
supersede the terms and provisions of Customer's
purchase order. The Parties shall not be bound by
any agent's or employee's representation, promise
or inducement not set forth in this Agreement. No
course of prior dealings or custom and usage in the
industry or by and between the Parties has been
considered in negotiating this Agreement and no
course of prior dealings or custom and usage in the
industry shall be relevant to supplement or explain
any of its terms.
III. PRICES:
Prices for all Products shall be Radix's published
prices as defined on the Radix Order Schedule.
Customer shall pay all freight, transportation,
handling charges, demurrage and similar expenses,
including costs of insurance in connection with the
transportation of the Products to Customer and with
any return of the Products to Radix for any reason
other than Customer's rightful revocation of accept-
ance of the Products. Prices quoted for Products by
Radix, unless otherwise indicated, do not include
the sales, use, or other excise taxes levied by the
United States or any state or local governmental
unit. The payment of any excise, sales, or use taxes,
present or future, applicable to the sale of Product(s)
shall be the responsibility of the Customer, unless
otherwise stipulated.
IV. PURCHASE ORDER; CUSTOMER
ACCEPTANCE; INVOICES AND TERMS;
SECURITY INTEREST:
A. Purchase Order. A separate Purchase Order
must be issued for each delivery request.
SALESAGR.DOC Revised 2/21/97 Pagel of 5
B. Customer Acceptance Installment. Twenty
percent (20%) of the contract price is due and
payable by Customer upon contract acceptance
C. Invoices and Terms. Payment for delivered
Products is due and payable by Customer 30
days after date of invoice. If Customer fails to
pay any invoice when due, Customer will pay to
Radix late payment charges equal to an annual
interest rate of eighteen percent (18%) on the
unpaid balance. Radix may at its option
withhold subsequent shipments of Products until
Customer pays past due invoices together with
late payment charges. If any default in payment
is not corrected within fifteen (15) days after the
date payment is due, cancellation charges will
be due and payable for such shipments withheld
as provided herein.
D. Security Interest. Radix hereby retains a
purchase money security interest in and to any
and all of the Products and the proceeds thereof,
in the amount of the sale price. Such security
interest shall be satisfied by payment in full of
the sale price. A copy of this Agreement may
be filed as a financing statement with the
appropriate state authorities at any time after
Customer's execution of this Agreement in
order to perfect this security interest. Customer
will execute appropriate financing statements as
requested by Radix.
V. LIMITED WARRANTY; DISCLAIMER;
LIMITATION OF DAMAGES:
A. Limited Warranty. For a period of 90 days
after Customer receives a Product, Radix will
repair or replace, at its sole option, the Product
determined by Radix not to meet the Product's
written specifications as incorporated herein, or
otherwise determined by Radix to be defective
because of defects in manufacturing or
materials. This warranty extends only to
original Customer. This warranty does not
extend to any Product that Customer
reconstructs or modifies. As a condition to
recovery under this warranty, Customer must (1)
notify Radix within the warranty period that
Customer believes the Product is defective, (2)
receive authorization from Radix to return a
Product before returning said Product for
warranty service, and (3) should return such
Product to Radix under then current freight
policy.
If Customer does not obtain prior authorization,
and Customer has returned the Product, Radix
reserves the right, upon receipt of Product, to
return the Product to Customer, freight collect.
Additionally, if Radix reasonably determines
that any Product returned for credit is not
defective, Radix reserves the right to charge
Customer for its reasonable cost of making that
determination and for associated freight costs.
All repaired or replaced Products will be
returned to Customer FOB shipping point.
B. Warranty Disclaimer. THIS LIlvIITED
WARRANTY CONSTITUTES THE SOLE
WARRANTY MADE BY RADIX. THERE
ARE NO OTHER WARRANTIES, EXPRESS
OR IMPLIED, WHICH EXTEND BEYOND
THOSE DESCRIBED HEREIN OR TO
ANYONE OTHER THAN THE CUSTOMER,
INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
C. Limitation of Damages. IN NO EVENT
SHALL RADIX BE LIABLE FOR
CONSEQUENTIAL, CONTINGENT,
SPECIAL OR INCIDENTAL DAMAGES
ARISING OUT OF OR RELATING TO THE
PRODUCTS OR THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION,
LOST BUSINESS PROFITS.
VI. CANCELLATION CHARGES:
A. Cancellation Charges. If Buyer cancels any
Purchase Order or portion thereof, Buyer agrees
to pay to Radix a cancellation charge, computed
from the scheduled shipment date. Buyer shall
pay a cancellation charge for each canceled
Product that will constitute Buyer's entire
SALESAGR.DOC Revised 2/21/97 Page 2 of 5
liability to Radix with respect to the canceled
order as follows:
Number of days
before the Shipment
Date that Radix
received written
notice of
cancellation
Cancellation charge
per product
(expressed) as a
percentage of the list
price specified in the
Order Schedule
60 and over 10%
30 - 59 25%
Fewer than 30 35%
VIII. SOFTWARE LICENSE:
A. License Grant. Radix grants to Customer the
nonexclusive right to use one copy of Product
("Software") on a single terminal connected to
a single computer (i.e., with a single CPU).
Customer may not network Software or
otherwise use it on more than one computer
terminal at the same time unless Radix
provides written permission to Customer.
1. Customer's use shall be limited solely to
use with Radix manufactured or approved
B. Payment. Payment of cancellation charges
hardware products.
shall be made within thirty (30) days after Radix
receives notice of cancellation.
2. Any initial and subsequent license fees as
set forth in this Agreement shall be paid by
C. Cancellation Charges for Rescheduled
Customer.
Orders. If orders for Product that have been
rescheduled for delivery are later canceled, the
3. If Customer shall modify, misuse or
original shipment date, rather than the date for
negligently handle the Software in any
which delivery was rescheduled, will be used in
respect, Radix shall have no responsibility
calculating the cancellation charge.
to support the modified Software and
Radix's warranty set forth herein shall be
rendered void.
VII. PATENT INFRINGEMENT:
Radix shall indemnify Customer against any claim
that Products provided by Radix infringes a United
States patent, provided Customer gives Radix
prompt written notice of any claim and grants Radix
control of the defense and settlement thereof. Radix
shall, at its option and expense, either (1) replace or
modify the Products so that they become
noninfringing, or (2) accept return of the Products
and refund an amount equal to the then depreciated
value (to be determined by the straight line
depreciation method over five (5) years) of the
returned products.
THE FOREGOING CONSTITUTES THE
ENTIRE LIABILITY OF RADIX AND SOLE
REMEDY OF CUSTOMER WITH RESPECT
TO ANY CLAIM OR ACTION BASED IN
WHOLE OR,IN PART UPON PATENT
INFRINGEMENT.
4. Radix shall make modified, revised or
updated Software, if any, available to
Customer.
B. Copyright. Software is owned by Radix and is
protected by United States copyright laws and
international treaty provisions; therefore,
Customer must treat Software as any other
copyrighted material, except Customer may (1)
make one copy of Software solely for backup
and archival purposes, and (2) transfer Software
to a single hard disk connected to a single -user
computer, provided Customer keeps the
original Software solely for backup and
archival purposes, and (3) make copies of
Software as transferred to a single hard disk
solely for backup and archival purposes.
Customer may not copy written materials
accompanying software without written
permission of Radix.
SALF.SAGR.DOC Revised 2/21/97 Page 3 of 5
C. Software Maintenance. Radix shall make
available to Customer all enhancements and
improvements to Software, provided such
enhancements or improvements are generally
released by Radix. New capabilities or new
products that are generally released as new or
different from existing Software as of contract
date may require an adjustment to software
maintenance fees. Radix reserves the sole right
to determine which capabilities and/or new
features shall be made available to Customer
and which shall be deemed new and different.
D. Proprietary Rights. With respect to any
employees, agents, representatives or
independent contractors of Customer to whom
Customer gives access to the Software,
Customer agrees to implement reasonable
security measures by written agreement with
such persons to prevent disclosure of
information or data regarding Software.
E. Transfer of License. Customer may not rent,
lease or otherwise transfer Software or any
written material accompanying Software on a
temporary or permanent basis without receiving
prior written permission of Radix. If
permission to transfer Software is granted by
Radix, recipient must agree to the terms of this
Agreement, and unless otherwise agreed to by
Radix in writing, Customer must not retain
copies of Software or written material
accompanying Software. If Software is an
update, transfer must include the update and all
prior versions.
F. Damage to Software. Customer may not
reverse engineer, decompile, or disassemble
Software. Customer agrees to pay, at Radix's
then generally applicable current rates, for
programming services Radix performs that
result from unauthorized modification to any
Software component, or from failure to utilize
the current release of Software.
G. Dual Media Software. If Software package
contains both 31/2 and 51/4-inch disks, Customer
may use only the disks appropriate for
Customer's single -user computer. Customer
may not use the other size disks on another
computer, or loan, rent, lease, or transfer other
disks to another user except as part of the
permanent transfer, as provided in this
Agreement, of all Software and written
materials.
IX. DELAY IN PERFORMANCE:
In the event that Radix shall be delayed or hindered
in or prevented from the performance of any act
required to be performed by Radix hereunder by
reason of strikes, lockouts, labor troubles, inability
to procure materials, parts, machines or equipment;
failure of power; restrictive governmental laws or
regulations; riots, insurrection, war or other reasons
of a like nature not the sole fault of Radix or any
circumstance beyond the reasonable control of
Radix, performance of such act shall be excused for
the period of the delay. The period for the
performance of any such act shall be extended for a
period equivalent to the period of such delay.
X. DELIVERY IN INSTALLMENTS:
Radix reserves the right to make delivery in
installments, unless otherwise expressly set forth
herein. All such installments shall be separately
invoiced and paid for when due, without regard to
subsequent deliveries. Delay in delivery of any
installment shall not relieve Customer of its
obligation to accept remaining deliveries.
In the absence of specific instruction, the shipping
method will be at the sole discretion of Radix. All
shipments are FOB shipping point, CFI. Buyer shall
pay reasonable shipping and handling charges and
include them on Purchase Order. Radix does not
collect or remit state sales and use taxes.
Responsibility for such reporting and payment rests
with Buyer, unless otherwise stipulated. If products
are delivered to points outside the continental
United States, the costs of export packing and all
export duties, licenses, and fees that Radix is
required to pay shall be payable by Buyer and
included in invoices sent by Radix to Buyer.
SALESAGR.DOC Revised 2/21/97 Page 4 of 5
XI. MAINTENANCE:
Customer may enter into an annual Maintenance
Agreement with Radix, or order maintenance
services for Products owned by Customer on a time,
materials, plus transportation basis at Radix's prices
in effect at the time such services or materials are
provided.
MI. NOTICES:
All notices hereunder shall be in writing and shall be
deemed given when deposited in the United States
mail, postage prepaid, and when so deposited, shall
be directed to Radix or to Customer, as the case may
be, at its address shown below, unless otherwise
specified in writing.
State of Utah
County of Salt Lake
On this 19th day of February, 1998, before me
Tami S. Martin, a notary public, personally
appeared Steve Lewis, personally know to me to
be the person whose name is subscribed to on this
instrument, and acknowledged that he executed
the same.
Notary Public
Z4 206Z Commission Expiration
AGREED TO THIS
19 day of FEBRUARY , 19 98
Radix Corporation
4855 Wiley Post Way
Salt Lake City, Utah 84116
ATTN: Contract Administration
� t
Title: REGIONAL SALES MANAGER
TAMI S. MARTIN
• NOTARY PUBLWIATEofUTAN
$ 4855 WILEY POST WAY
'�,, .•" SALT LAKE CITY, LIT $4116
"•• WWAXPIRES 1.29.2002
XIII. DEFAULT IN PAYMENT:
Upon the occurrence of a default in payment,
insolvency or business failure of Customer,
admission by Customer in writing of its inability to
pay its debts as they become due; or the
commencement of any proceedings under any
bankruptcy or insolvency laws by or against
Customer, Radix shall have, in addition to all other
remedies provided by law, the remedies provided
for a seller of goods under the Uniform Commercial
Code and the right to recover from Customer all
reasonable attorneys' fees incurred by Radix as a
result of such default in payment.
XIV. MISCELLANEOUS:
The Parties acknowledge that (1) performance of the
obligations herein set forth will occur at the places
of business of Radix and Customer and that
litigation, if required, may be commenced in the
state of any such place of business, and (2) the
provisions of this Agreement comply with and to be
subject to the laws of the State of Utah.
AGREED TO THIS
Title:
day of , 19
SALESAGR.DOC Revised 2/21197 Page 5 of 5
ADDENDUM TO RADIX SALES AGREEMENT
This Addendum (the "Addendum") is a modification of the Radix Sales Agreement (Salesagr.Doc
Revised 2/21/97) between Radix Corporation, 4855 Wiley Post Way, P.O. Box 16400-0400, Salt
Lake City, Utah 84116 ("Radix") and the City of Lubbock, Texas ("Customer") for the purchase
of an electronic meter reading system in accordance with the City of Lubbock's Request for
Proposal 97160. Both the Sales Agreement with this Addendum and the Maintenance Agreement
with its Addendum will be signed on the same date.
Radix and Customer agree to the following modifications of the Radix Sales Agreement:
1. Paragraph I. "DEFINITIONS:" is amended to read as follows:
"Agreement - This Sales Agreement and Customer's purchase order, together with
attached Order Schedule and Supplementary Schedule, including properly executed
amendments constitute an agreement between Radix and Customer for the purchase of an
electronic meter reading system in accordance with The City of Lubbock's Request for
Proposal 97160 and Radix's Response to this Request for Proposal.
Acceptance Date - The date the System is accepted or deemed accepted as set forth in
Paragraph IV. E. hereof.
Acceptance Test - Upon Radix's completion of installation and training, a thirty (30)
calendar day period of successful, live operations set forth in Paragraph IV. E. hereof..
Certificate of Insurance - This shall mean the certificate to be provided by Seller
evidencing the insurance coverage of Radix.
Date of Delivery - The date on which the Products are received by Customer.
Down -time - Any period of time, commencing at the time Customer gives oral or written
notice to Radix of the existence of any Major Failure or at such earlier time at which Seller
has actual knowledge of such Major Failure, during which such Major Failure shall exist
and be continuing, ending at the time that the Major Failure is remedied.
Installation Schedule - The schedule mutually agreed upon by Customer and Radix for the
delivery of the System and the performance of the Services described in the attachment,
Project Schedule.
Major Failure - Any of the following conditions:
A. Any simultaneous failure of more than two (2) handheld devices.
B. Any failure of any Loader/Charger cradle.
C. Any failure of any communications hardware or software between the PC and
the Loader/Charger cradles.
Addendum - Radix Sales Agreement - Page 1
D. Any failure of UMS software which prevents or materially affects operations
and procedures.
Parties - Collectively, Radix Corporation and The City of Lubbock, or singly a "Party".
Product(s) - Equipment, software, supplies, and/or services sold by Radix.
Proposal - Radix's response to the Request for Proposal dated July 23, 1997.
RFP - Customer's Request for Proposal #97160 dated June 20, 1997.
Services - The services to be provided by Radix to Customer as set forth in the RFP and
the Radix's proposal.
Software - The proprietary computer software of Radix as owned exclusively by Radix or
Radix's suppliers, as appropriate, and as further defined in and licensed to Customer
pursuant to the terms of the Software License Agreement in Paragraph VIII.
System - All FW200 handheld devices, all Loader/Charger cradles, cabling, UMS software
with ReportWriter, and any other components, taken as a whole, that satisfy the meter
reading specifications contained in the Agreement.
Total Contract Price - The price of hardware, the software license, and installation and
warranty services to be furnished by Radix to Customer pursuant to the terms set forth in
this Agreement."
2. Paragraph III. "PRICES:" is amended to read as follows:
"Prices for all Products shall be Radix's published prices as defined on the Radix Order
Schedule. Customer shall pay all freight, transportation, handling charges, demurrage, and
similar expenses, including costs of insurance in connection with the transportation of the
Products to Customer to the maximum amount shown on line 13 of the Freight and
Handling of the Radix Order Schedule in Radix's Proposal. The proposal price includes
full compensation for all taxes, permits, etc. that Radix is or may be required to pay.
Customer is exempt from all state sales taxes and will provide tax exempt certificates
upon request."
Paragraph IV. B. is amended to read as follows:
"B. Contract Acceptance Installment. Twenty percent (20%) of the contract price is due
and payable by Customer upon contract acceptance as evidenced by signatures of all
parties."
Addendum - Radix Sales Agreement - Page 2
4. Paragraph VI. C. is amended to read as follows:
"C. Invoices and Terms. Payment for delivered Products is due and payable by Customer
thirty (30) days after date of invoice according to the attached Schedule for Payments.
Radix may at its option withhold subsequent shipments of Products until Customer pays
past due invoices."
5. Paragraph IV. E. is added to read as follows:
"E. Testing and Acceptance. Customer requires a thirty (30) calendar day Acceptance
Testing period during which to evaluate the System's operability and reliability. Provided
the System is operating within Radix's specifications and has passed the necessary
Acceptance Tests, the System will be deemed acceptable by Customer and Customer shall
issue a Notice of Acceptance signifying such acceptance. The Acceptance Test shall
consist of live operations of the system during the thirty (30) day period with no Major
Failures occurring.
1. Acceptance Test Procedure. Upon completion of System Installation and
Training as noted in the Project Schedule attachment to this Agreement, Radix
shall notify the Customer in writing that the System is ready and available for
Acceptance Testing. Within two (2) working days, Customer shall begin the
Acceptance Test by utilizing the System for live Meter Reading operations. The
current Meter Reading system will be held in reserve should Major Failures occur
in the new System. If a Major Failure occurs during the testing period, Customer
shall notify Radix by telephone immediately of such failure followed by written
notification. Radix shall take immediate action to correct, at no additional charge
to Customer, the Major Failure and provide the correction to Customer. Upon
receipt and installation of the correction, the 30 calendar day Acceptance Test shall
restart and continue for a new 30 calendar day period. This process shall be
repeated, as necessary, until the System has successfully passed the Acceptance
Test, provided the Acceptance Test has been successfully completed within a
maximum period of ninety (90) days from the notice of availability for testing
given by Radix. Once the System has successfully passed the Acceptance Test,
Customer shall issue a Notice of Acceptance signifying such.
2. Failure to Pass Acceptance Test. If the System fails to successfully complete
the Acceptance Test within a maximum of ninety(90) calendar days after Radix
notifies Customer that the System is available for testing, Customer may declare
this Contract void, and Radix shall pay to Customer all moneys paid to Radix by
Customer under this Agreement. Customer shall return all purchased components
of the System to the Radix at Radix's expense."
Addendum - Radix Sales Agreement - Page 3
6. Paragraph V. A. "LIMITED WARRANTY:" is amended to read as follows:
"A. Limited Warranty. For a period of one (1) year after Customer fully accepts the
Products, Radix will repair or replace, the Product determined not to meet the Product's
written specifications as incorporated herein, or otherwise determined by Radix to be
defective because of defects in manufacturing or materials. This warranty extends only to
Customer. This warranty does not extend to any Product that Customer reconstructs or
modifies. As a condition to recovery under this warranty, Customer must (1) notify Radix
within the warranty period that Customer believes the Product is defective, (2) receive
authorization from Radix to return a Product before returning said Product for warranty
service, and (3) should return such Product to Radix under then current freight policy. If
Radix reasonably determines that any Product returned for credit is not defective, Radix
reserves the right to charge Customer for its reasonable cost of making that
determination."
7. Paragraph V. B. "WARRANTY DISCLAIMER:" is amended to read as follows:
"B. Warranty Disclaimer. The amended Limited Warranty as defined in paragraph A.
above, constitutes the sole warranty made by Radix. There are no other warranties,
express or implied, which extend beyond those described herein or to anyone other than
the customer, including the implied warranties of merchantability."
8. Paragraph V. C. "LIM[ITATION OF DAMAGES:" is amended to read as follows:
"C. Limitation of Damages. Liability for consequential, contingent, special or incidental
damages arising out of or relating to the products or this agreement are limited to the
$1,000,000.00 insurance certificate for personal injury and the cost of the Radix
equipment for any other damages."
9. Paragraph VI. "CANCELLATION CHARGES" is deleted.
10. Paragraph VIII. "SOFTWARE LICENSE" is amended to read as follows:
A. License Grant. Radix grants to Customer the nonexclusive right to use one copy of
Product ("Software") on an operations personal computer and one copy of Product on an
operational backup personal computer. Customer may not network Software or
otherwise use it on more than one personal computer at the same time unless Radix
provides written permission to Customer.
.1. Customer's use shall be limited solely to use with Radix's manufactured or
approved hardware products.
2. Any initial and subsequent license fees as set forth in this Agreement shall be
paid by Customer.
Addendum - Radix Sales Agreement - Page 4
3. If Customer shall modify, misuse, or negligently handle the Software in any
respect, Radix shall have no responsibility to support the modified Software and
Radix's warranty set forth herein shall be rendered void.
4. Radix shall make modified, revised, or updated Software, if any, available to
Customer.
B. Copyright. Software is owned by Radix and is protected by United States copyright
laws and international treaty provisions; therefore, Customer must treat Software as any
other copyrighted material, except Customer may (1) install Software as set forth in
subsection A. of this section, (2) transfer Software to a single hard disc connected to a
single -user computer, provided Customer keeps the original Software solely for backup
and archival purposes, and (3) make copies of Software as transferred to a single hard disk
solely for backup and archival purposes. Customer may not copy written materials
accompanying software without written permission of Radix except as set forth in
subsection C. of this section.
C. Texas Open Records Act. Radix acknowledges that the Customer is subject to
requests for information under the Texas Open Records Act, Art. 6252, 17a, V.A.T.S.,
and that Customer may receive requests for information about this contract, other
contracts existing between the parties, software, and other materials furnished to the
Customer by Radix. Customer agrees that it will, in all cases where information is
requested and said information falls within the terms Non -disclosure or Rights to
Information as used in this contract, apply to the Attorney General of Texas for an opinion
under section 7(c) of the above Act to determine if such information requested is exempt
from public disclosure. In each case, however, the burden to establish the exempt nature
of the requested information shall be on Radix. In any case where Customer has
requested an opinion from the Attorney General of Texas as to whether or not requested
information is public under the above Act, it discharges its obligation to Radix under the
sections titled Non Disclosure or Rights to Information found in this contract or in any
agreement existing between the Parties. Radix further agrees to pursue the protection of
its property rights on its own behalf and to bear all costs associated therewith. In the
event Customer is notified by the Attorney General that the requested information is
public, it shall release such information subject to an order of any court having jurisdiction
over the premises obtained by Radix. In every case where Radix obtains such order, it
shall bear all costs and save Customer harmless from any cost, attorney's fees, or
damages.
D. Software Maintenance. Radix shall make available to Customer all enhancements and
improvements to Software which are generally released by Radix at no cost to Customer.
E. Proprietary Rights. With respect to any employees, agents, representatives, or
independent contractors of Customer to whom Customer gives access to the Software,
Customer agrees to implement reasonable security measures with such persons to prevent
Addendum - Radix Sales Agreement - Page 5
disclosure of information or data regarding Software. Such information or data may also
fall under the Texas Open Records Act as outlined in Section C. above.
F. Transfer of License. Customer may not rent, lease, or otherwise transfer Software or
any written material accompanying Software on a temporary or permanent basis without
receiving written permission from Radix. If permission to transfer is granted by Radix,
recipient must agree to terms of this contract, and unless otherwise agreed to by Radix in
writing, Buyer must not retain copies of Software or written material accompanying
Software. If Software is an update, transfer must include the update and all prior versions.
G. Damage to Software. Customer may not reverse engineer, decompile, or disassemble
Software. Customer agrees to pay, at Radix's then generally applicable current rates, for
programming services Radix performs that result from unauthorized modification to any
Software component, or from failure to utilize the current release of Software.
H. Dual Media Software. If Software package contains both 3 1/2 and 5 1/4-inch disks,
Customer may use only the disks appropriate for Customers two personal computers.
Customer may not loan, rent, lease, or transfer other disks to another user except a part of
a permanent transfer, as provided in this contract, of all Software and written materials."
11. Paragraph )UV. "MISCELLANEOUS:" is amended to read:
"The Parties acknowledge that (1) performance of the obligations herein set forth will
occur at the places of business of Radix and Customer and (2) the provisions of this
Agreement comply with and to be subject to the laws of the State of Texas."
12. Paragraph XV. "ATTACHMENTS AND ORDER OF PRECEDENCE" is added to read
as follows:
A. Attachments. The following attachments to this Agreement are incorporated herein by
reference as if fully stated in the body of this Agreement:
1. Attachment I - Project Plan
2. Attachment II - Payment Schedule
B. Order of Precedence. In the event of a conflict among or between the Agreement
documents, the documents shall control in the order of precedence set forth below:
1. This Agreement including all amendments and attachments.
.2. Radix's Proposal
3 City's RFP #97160, Electronic Meter Reading System."
Addendum - Radix Sales Agreement - Page 6
EACH PARTY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS ADDENDUM AND
AGREES TO BE BOUND BY ITS TERMS. EACH PARTY FURTHER WARRANTS THAT IT HAS FULL
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND DELIVER THIS ADDENDUM AND TO
PERFORM ITS OBLIGATIONS HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE APPEARS
BELOW IS DULY AUTHORIZED TO ENTER INTO THIS ADDENDUM ON BEHALF OF THAT PARTY.
Signed in duplicate this 19 day of FEBRUARY , 1998.
CITY OF LUBBOCK RADIX CORPPRATION
WINDY OrTON, MAYOR Steve Lewis 1%1
Regional Sales Manager
A ST:
P1A, I',
ayt Darnell,. City Secretary
APP VED AS TO CONTENT:
100V /a,
Derrell Oliver,
Director of Sales and Services
APPROVED AS TO FORM:
G'
Linda L. Chamales, Supervising
Attorney, Office Practice Section
State of Utah
County of Salt Lake
On this 19th day of February, 1998, before me
Tami S. Martin, a notary public, personally
appeared Steve Lewis, personally know to me to
be the person whose name is subscribed to on this
instrument, and acknowledged that he executed
the same.
0-4A." 1.Notary Public
—(/?4r 2coz Commission
Expiration
TAMI S. MARTIN
• NOTARY PUBLXrSTATE of UTAH
4&% W&EY POST WAY
SALT LAKE CITY, LIT 64116
Addendum - Radix Sales Agreement - Page 7
ATTACHMENT I
PROJECT PLAN
HANDHELD ELECTRONIC METER READING SYSTEM
TASK
DESCRIPTION
INVOLVED
DATE
1
Effective Date (Contract Signed)
City
0
Radix
2
Post Sale Meeting
Radix Sales
1
Discuss General Utility Profile. Confirm
Radix CS
assignments, contracts, and order
Radix Production
schedule requirements.
3
Pre -Project Plan complete.
Radix CS
3
Prepare information regarding City
Radix Management
profile, contacts, and order schedule
requirements
4
Preliminary City Contact
Radix CS
3
Complete information for Project Plan
City
detailing City involvement, training,
and installation.
5
Project Plan Completion and
Radix CS
3
Approval
Radix Management
Outline entire Project Plan to City
6
Introduction Packet
Radix CS
7
Introduction letter from Customer
Support Representative. Project
Plan and Pre -Installation Questionnaire
sent to City.
7
Pre -Install Questionnaire
City
15
Completion of Questionnaire on -site
Radix CS
8
Pre -Install Questionnaire Received
City
15
Completion of Pre -Install Questionnaire
Radix CS
received by City
9
Project Plan Review and Approval
Radix CS
16
Review entire Project Plan and draft
Radix Management
Approval Packet.
10
Prepare sample host file
City
16
City prepare sample host file and send
to Radix.
11
Approval Packet
Radix CS
20
Prepare Approval Packet for Pre -install
Radix Management
Questionnaire, Send to City
12
Receive Approval Packet/Data
City
30
City receive signed Approval Packet.
Radix CS
Radix receive sample host file from
City.
13
Hardware Delivery
City
30
All equipment delivered with sample
Radix C S
software and set up instructions.
Radix Mfg.
14
Verify Hardware/Sample Software
City
30
Dwfivery
Radix CS
City to verify Hardware and Sample
Software delivery
15
City Software Configuration
Radix CS
30
Software configuration using Approval
Packet at Radix
16
Software Testing at Radix
Radix CS
35
All aspects of Software tested with
sample Data from City
17
Delivery of Software
Radix CS
50
Delivery of City's configured
City
Software.
18
.Delivery of Training Mate4s
Radix CS
50
Delivery of Training Materi�l to,City
City
19
Install and Training
Radix CS
60 - 63
Radix to install and test all hardware
City
and Software on City's PC and Printer.
Radix to complete training for System
operator's, Meter Reader's, and US Staff.
20
Notification of Availability for Testing
Radix CS
63
Radix to issue Notice of Availability
City
to City to begin Acceptance Test.
21
Acceptance Test
City
64 -94
City begin live operation with System
Radix CS
and fulfill Acceptance Test
22
Post Install Contact
City
64 - 94
Radix respond to any Major Failures
Radix
of System as necessary.
,23
System Acceptance
City
94 +* *
Upon completion of Acceptance Test
City to issue Notice of Acceptance.
`**
- Aw,eptance Test to be completed within ninety (90) days after commencement of
Acceptance. Test.
24
Continuing Support and Review
Radix
. 94+
-Continuing contact, Customer Service
"Bulletins. Hardware and Software
'.Maintenance.
ATTACHMENT II
PAYMENT SCHEDULE
HANDHELD ELECTRONIC METER READING SYSTEM
Radix agrees to Invoice the City the following Installment Amount at the completion of
the following tasks:
TASK COMPLETION
Effective date
Signed contracts, Radix Order Schedule
Purchase Order
Completed delivery of all Hardware and
Software
Completion of Installation, Training, and
Issuance of Notice of Availability for Testing.
Completion of Acceptance Testing and
Issuance of Notice of Acceptance
INSTALLMENT AMOUNT
$ 8,108.00
$16,500.00
$ 3,200.00
$12,732.00
TOTAL AMOUNT $40,540.00
MAINTENANCE
AGREEMENT
0
M01A,
RADIX CORPORATION
4855 Wiley Post Way
P.O. Box 16400-0400
Salt Lake City, Utah 84116
(800) 453-5195
(801) 537-1717
FAX (801) 328-3401
# Date http://www.radix-intl.com
1. DEFINITIONS:
Agreement - This Maintenance Agreement, together
with attached Sales Agreement, Order Schedules,
Supplementary Schedules, and Customer Purchase
Orders, and any properly executed amendments that
in total define the terms and provisions that govern
the sale of Radix Products.
CFI - Cost, Freight, and Insurance
Date of Delivery - The tenth day after the Product(s)
is shipped to Customer or the date on which
Product(s) is received by Customer, whichever
occurs earlier. Products are delivered FOB shipping
point, CFI.
FOB - Free On Board
Parties - Collectively Radix and Customer, or singly
a "Party".
Product(s) - Supplies, equipment, software, and/or
services manufactured and/or sold by Radix.
II. GENERAL TERMS:
Radix shall repair and/or maintain Products
identified on the Order Schedule as "maintainable
items" as promptly as circumstances permit and in a
commercially reasonable manner in accordance
with all of the terms and conditions set forth below.
This Agreement shall be effective when it has been
executed by Customer and by Radix. In the event of
inconsistent terms and provisions between this
Agreement and Customer's purchase order, the
terms of this Agreement are hereby deemed to
supersede the terms and provisions of Customer's
purchase order. Parties shall not be bound by any
agent's or employee's representation, promise or
inducement not set forth in this Agreement and no
course of prior dealings or custom and usage in the
industry or by and between the parties has been
GENERAL TERMS AND CONDITIONS
considered in negotiating this Agreement and no
course of prior dealings or custom and usage in the
industry shall be relevant to supplement or explain
any of its temps.
THIS AGREEMENT CAN BE MODIFIED ONLY
BY A WRITTEN DOCUMENT SIGNED BY
EACH OF THE PARTIES.
III. MAINTENANCE SERVICE:
Radix will provide maintenance service, as required
to keep Products in good operating condition, by
repairing or exchanging Products. Radix provides
depot maintenance and repair services on
equipment. All maintenance and repair services are
rendered on a first -in, first -out basis at Radix's
designated facilities. Prior to shipping Equipment
for maintenance services, customer must contact
Radix's customer service department for a Return
Materials Authorization (RMA) number. The RMA
number must appear on the outside of the shipping
container and any associated documentation. All
shipping and transportation costs for equipment
being repaired under a current Maintenance
Agreement are the responsibility of Radix.
Defective equipment or parts shall become the
property of Radix when replaced.
IV. SERVICES FOR ADDITIONAL
CHARGES:
The services for additional charges described in this
section are not maintenance services as described in
the preceding section. If any such service is
required and Radix provides it, a charge shall be
assessed. Radix shall invoice Customer for Radix's
then currently published hourly service rates and
minimum charges for service time, travel time, parts
and transportation expenses. Services within the
scope of this section include repairs resulting from
alteration to equipment not authorized in writing by
MAINTAORDOC Revised 616197 Page 1 of 3
Radix; damage resulting from accident, abuse,
neglect, power surge or failure when the operating
environment is not in conformity with Radix's
published specifications for electric power, air
quality, humidity, temperature, etc.; repair or
replacement of nonmaintained items including, but
not limited to, batteries, cables, etc.; or other events
except normal wear and tear. Customization of
software and system configuration changes
performed by Radix may also be part of this section.
V. INVOICES:
Invoices for maintenance services and charges for
additional services will be due and payable by
Customer 30 days after date of invoice.
Maintenance services will be billed on a monthly
basis. If Customer fails to pay any invoice when
due, Customer shall pay Radix late payment charges
equal to an annual interest rate of eighteen percent
(18%) on the unpaid balance.
VI. TERMS:
The initial term of this Agreement shall commence
on the 91st day following the Date of Delivery of the
Products and shall endure for a period of nine (9)
months thereafter. Such initial term shall be
extended automatically for one additional year
immediately following the expiration of the initial
term, and for each year thereafter. Either Radix or
Customer may terminate this Agreement by
providing 60 days prior written notice to the other
Party of its intent to do so. Charges for maintenance
services, following the expiration of the initial term,
shall be subject to change on 60 days prior written
notice to Customer, provided that each new price
shall not be more or less favorable than prices
charged to other Radix customers for maintenance
services for similar Products.
VII. DELAY IN PERFORMANCE:
In the event that Radix shall be delayed or hindered
in or prevented from the performance of any act
required to be performed by it hereunder by reason
of strikes, lockouts or labor troubles; inability to
procure materials, parts, machines or equipment;
failure of power; restrictive governmental laws or
regulations; riots, insurrection, war or other reasons
of a like nature not the sole fault of Radix or any
circumstance beyond the reasonable control of
Radix, performance of such act shall be excused for
the period of the delay. The period for the
performance of any such act shall be extended for a
period equivalent to the period of such delay.
VIII. NOTICES:
All notices hereunder shall be in writing and shall be
deemed given when deposited in the United States
mail, postage prepaid; and when so deposited, shall
be directed to Radix or to Customer, as the case may
be, at its address shown below, unless otherwise
specified in writing.
IX. DISCLAIMERS:
NO WARRANTIES, EXPRESS OR IMPLIED,
EXTEND TO THESE SERVICES, INCLUDING
THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT WILL
RADIX BE LIABLE FOR CONSEQUENTIAL,
CONTINGENT, SPECIAL OR INCIDENTAL
DAMAGES ARISING OUT OF OR RELATING
TO THESE SERVICES OR THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, LOST
BUSINESS PROFITS.
X. MISCELLANEOUS:
The Parties acknowledge that (1) performance of the
obligations herein set forth will occur at the places
of business of Radix and Customer and that
litigation, if required, may be commenced in the
state of any such place of business, and (2) the
provisions of this Agreement comply with and are
subject to the laws of the State of Utah.
MAINTAGR.DOC Revised 6/6/97 Page 2 of 3
v
AGREED TO THIS
AGREED TO THIS
19 day of FEBRUARY , 19 93 day of , 19
Radix Corporation
4855 Wiley Post Way
Salt Lake City, Utah 84116
ATTN: Contract Administration
By:
Title: REGIONAL SALES MANAGER Title:
State of Utah
County of Salt Lake
On this 19th day of February, 1998, before me
Tami S. Martin, a notary public, personally
appeared Steve Lewis, personally know to me to
be the person whose name is subscribed to on this
instrument, and acknowledged that he executed
the same.
Notary Public
1z`l 1��2- Commission
Expiration
���°"�•� TAM! S. MARTIN
• NOTARYPU&WATEMUTAH
4M WM P06T WAY
w, SALT LAKE ciTY, Ur d4116
Q2MMJXffSJ-29-2X2l
MAINTAGR.DOC Revised 6/6/97 Page 3 of 3
ADDENDUM TO RADIX MAINTENANCE AGREEMENT
This Addendum (the "Addendum") is a modification of the Radix Maintenance Agreement
(Maintagr.Doc Revised 6/6/97) between Radix Corporation, 4855 Wiley Post Way, P.O. Box
16400-0400, Salt Lake City, Utah 84116 ("Radix") and the City of Lubbock, Texas ("Customer")
for the provision of maintenance service of an electronic meter reading system purchased in
accordance with the City of Lubbock's Request for Proposal 97160. Both the Sales Agreement
with its Addendum and the Maintenance Agreement with this Addendum will be signed on the
same date.
Radix and Customer agree to the following modifications of the Radix Maintenance Agreement:
1. Paragraph II. "GENERAL TERMS:" is amended to read as follows:
"Radix shall repair and/or maintain Products identified on the Order Schedule as
`maintainable items' as promptly as circumstances permit and in a commercially reasonable
manner in accordance with all of the terms and conditions set forth in this Maintenance
Agreement and the attached Addendum."
2. Paragraph IV. "SERVICES FOR ADDITIONAL CHARGES:" is amended to read as
follows:
"The services for additional charges described in this section are not maintainable services
as described in the previous section. If any such service is required and Seller provides it,
a charge will be assessed. Radix shall invoice Customer for Radix's then current published
hourly service rates and minimum charges for service time, parts, and transportation
expenses. Services within the scope of this section include repairs resulting from
alteration to equipment not authorized in writing by Radix; damage resulting from abuse,
neglect, power surge, or other events except normal wear and tear. Customization of
Software and system configuration changes performed by Radix may also be part of this
section. Radix shall make all new Software Releases and Software Updates available to
Customer at no additional cost during the duration of this Agreement. In the event that
additional on -site training is deemed necessary by Customer, Radix's charge for those
services shall be $85.00 per hour excluding travel time and other direct expenses."
Addendum - Radix Maintenance Agreement - Page 1
3. Paragraph V. "INVOICES" is amended to read as follows:
"Invoices for maintenance services and charges for additional services will be due and
payable by Customer 30 days after date of invoice. Maintenance services will be billed on
a monthly basis."
4. Paragraph VI. "TERMS" is amended to read as follows:
"The initial term of this Maintenance Agreement shall commence one (1) year following
the Notice of Acceptance issued by the Customer at the completion of a successful
Acceptance Test. Charges will be as follows: Year One - Extended Service Warranty -
No Charge; Year Two - Maintenance Agreement - $576.00 per month; Years Three
through Five- Maintenance Agreement - Any increase for maintenance during years three
through five may not exceed five (5) percent of the previous year's monthly charge; Years
Six and Seven - Maintenance Agreement is renewable at negotiated costs."
5. Paragraph IX "DISCLAIMERS" is amended to read as follows:
"No warranties, including the limited warranty defined in the Addendum to Radix Sales
Agreement between the City of Lubbock and Radix, extend to these services, including
the implied warranty of merchantability."
6. Paragraph X. "MISCELLANEOUS:" is renumbered XI. and amended to read as follows:
"The Parties acknowledge that (1) performance of the obligations herein set forth will
occur at the places of business of Radix and Customer, and (2) the provisions of this
Agreement comply with and are subject to the laws of the State of Texas."
7. New Paragraph X. "EQUIPMENT ON LOAN:" is added to read as follows:
"At any point in time that Customer is unable to perform required operations due to
Equipment covered in this agreement being out of service, Radix agrees to provide loaner,
replacement equipment at no charge such that Customer's operations may be continued.
Customer agrees to return all loaner equipment immediately upon receipt of repaired,
original equipment."
Addendum - Radix Maintenance Agreement - Page 2
EACH PARTY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS ADDENDUM AND
AGREES TO BE BOUND BY ITS TERMS. EACH PARTY FURTHER WARRANTS THAT IT HAS FULL
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND DELIVER THIS ADDENDUM AND TO
PERFORM ITS OBLIGATIONS HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE APPEARS
BELOW IS DULY AUTHORIZED TO ENTER INTO THIS ADDENDUM ON BEHALF OF THAT PARTY.
8
Signed in duplicate this 19 day of FEBRUARY , 1997.
CI=LUBBOCK
wae_" ,
WINDY SITTON, MAYOR
FVV-%-*U
Kaytly Darnell, City Secretary
APP ED AS TO RNTENT:
?7
Derrell Oliver,
Director of Sales and Services
APPROVED AS TO FORM:
Linda L. Chamales, Supervising
Attorney, Office Practice Section
RADIX CORPORATION
Steve Lewis
Regional Sales Manager
State of Utah
County of Salt Lake
On this 19th day of February, 1998, before me
Tami S. Martin, a notary public, personally
appeared Steve Lewis, personally know to me to
be the person whose name is subscribed to on this
instrument, and acknowledged that he executed
the same.
Notary Public
Z4� Zoo Z Commission
Expiration
TAMI S. MAR IN
w NOTARYFU&D$TATE0f UTAH
4855 WILEY POST WAY
'$ SALT LAKE CITY,1IT 94116
Addendum - Radix Maintenance Agreement - Page 3