HomeMy WebLinkAboutResolution - 2008-R0395 - Software FX Agreement - M_A-COM, Inc. - 10_09_2008Resolution No. 2008-RO395
October 9, 2008
Item No. 5.10
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock or his designee BE and is hereby
authorized and directed to execute for and on behalf of the City of Lubbock, a Software
FX Agreement and related documents between the City of Lubbock and M/A-COM, Inc.
Said Agreement and certain documents are attached hereto and incorporated in this
Resolution as if fully set forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 9th day of
.Q
Rebe ca Garza, City Secretary
APPROVED AS TO CONTENT:
October 2008.
TOM MARTIN, MAYOR
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Mart Yeltrw6bd
Assi ant City Manager/Chief Information Officer
APPROVED AS
gs/Agreement-Software FX-MACOM.res
09/30/08
Resolution No. 2008-RO395
tyco
Electronics
MIA-COM
SOFTWARE FX
AGREEMENT
FX Sales Order No.
Customer P.O. No.
THIS SOFTWARE FX AGREEMENT ("Agreement") is hereby entered into between M/A-COM, Inc. ("Seller")
and City of Lubbock, TX ("Subscriber") on the following terms and conditions:
1. SCOPE OF AGREEMENT
During the term of this Agreement, as set forth in Section 7, Seller agrees to provide Subscriber with software
updates, documentation updates and other services, as set forth in Section 3 of this Agreement, for the
software developed and provided by Seller and contained within the Subscriber's Designated MIA-COM
System(s) as described in Schedule A to this Agreement.
2. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below.
A. "Contract" means the agreement for the purchase of the Designated System(s).
B. "Current Software Release Levels" means the most recent Software release announced by Seller as being
commercially available. "Commercially available" does not include interim releases provided as
emergency fixes or software released for beta test or noncommercial or similar purposes.
C. "Designated System(s)" means the M/A-COM system(s) purchased by Subscriber and identified in
Schedule A to this Agreement. The Designated System does not include Vendor Products, Excluded
Products or other systems to which the Designated System may be linked.
D. "Encrypted Features" means those SOFTWARE product features which are not included as part of the
standard M/A-COM system component or radio product software and which are activated by Seller only
upon their being licensed to Subscriber. Examples of such features are Landline Data and Multiple
Channel Partitioning for the M/A-COM system components and Priority System Scan for the M/A-COM
portable radios.
E. "Licensed Programs" means all Seller Software programs and associated documentation nonexclusively
licensed to Subscriber by Seller for use solely with Subscriber's Designated System, under one or more
licenses, for which services are to be provided hereunder.
F. "Software" means computer programs contained on a magnetic tape, semiconductor device or other
memory device or system memory consisting of: (a) hardwired logic instructions which manipulate data
in a processor and control input-output operations and error diagnostic and recovery routines, and (b)
instruction sequences in machine-readable code that control transaction processing, per pheral equipment
and administration and maintenance functions, as well as associated documentation used to describe,
maintain and use the programs.
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G. "SOFTWARE FX Classification" means the classification of Subscriber's Designated System(s) within
categories of system type and complexity, as defined by Seller from time to time, for the purpose of
determining Subscriber's annual SOFTWARE FX Fee.
H. "Updates" means any commercially available corrections, modifications or enhancements to the Licensed
Programs generally released and/or provided by Seller. -
I. "MIA-COM Network Solutions Provider" (NSP) means a person or entity authorized by Seller to sell
certain MIA-COM products and systems as an authorized NSP in accordance with the provisions of a
NSP Agreement between Seller and such person or entity.
3. DESCRIPTION OF SOFTWARE FX PROGRAM FEATURES
A. Software Releases Included. With respect to each Licensed Program, and subject to the conditions of this
Agreement, Seller will provide the Software Updates described below during the term of this Agreement.
All Updates shall be shipped to Subscriber's SOFTWARE FX contact designated in Schedule A of this
Agreement via protective packaging containing a quantity of programmed Software media (e.g., Proms,
Tapes, Compact Discs or diskettes) necessary for Subscriber to fully implement the Software Updates
within its Designated System. In addition, each shipment of Software Updates shall contain at least one
set of Software release notes detailing the contents of the Software Update and providing installation
instructions. All Software Updates and documentation shipped to Subscriber shall be considered part of
the Licensed Programs, shall be subject to the terms and conditions of the nonexclusive licenses granted
by Seller to Subscriber, and Seller shall be free to license others with respect thereto.
i. Software Updates Upon Enrollment. As determined by the system audit described in Section 3.C.i. of
this Agreement, Seller shall provide to Subscriber the Software Updates needed, if any, to bring the
Licensed Programs within Subscriber's Designated System up to Seller's Current Software Release
Levels. Such Updates will be provided at no additional cost to Subscriber provided Subscriber has
enrolled in the SOFTWARE FX program within the enrollment deadline specified in Section 4.A of
this Agreement and provided Subscriber has installed, at Subscriber's expense, the compatible
hardware necessary to accommodate the Software Updates.
ii. Subsequent Software Updates. During the term of this Agreement and subject to Subscriber's
performance of its obligations, Seller shall provide to Subscriber Software Updates, released by Seller
subsequent to Subscriber's enrollment in SOFTWARE FX, for the Licensed Programs contained
within Subscriber's MIA-COM Designated System. Such subsequent Software Updates may include:
a. Enhancements and/or corrections to existing features for all MIA-COM Designated System
backbone components and/or radios;
b. New features implemented via the system components already contained within Subscriber's
Designated System, including unencrypted features for the system backbone components and/or
unencrypted features for the radio products.
iii. Software Replacements. In the event any Software media contained within Subscriber's
Designated System incurs damage, whether from acts of Nature or human error, Seller shall
provide replacements for such Software to Subscriber at no additional charge, subject to the terms
and conditions of this Agreement.
B. Software Releases Not Included. The following Software releases are not included thin the terms of
this Agreement:
i. New Products. Any Software products released by Seller for which an earlier generation or release
level is not already contained within Subscriber's Designated System. If Subscriber wishes to
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implement such Software products within its Designated System, it will need to license such products
at the fees then in effect and purchase any necessary compatible hardware for operation of such
Software.
ii. Encrypted Features. Encrypted features for M/A-COM products are not included under this
Agreement. Such features must be licensed separately by Subscriber at the fees then in effect.
iii. Third Party Software. To the extent that such Vendor Products are available and compatible with the
Designated System, Seller reserves the right to charge an additional fee for upgrades to software
programs that are licensed by a third party for use with the M/A-COM system yet are not the property
of Seller.
C. Services Included. Subject to the terms and conditions of this Agreement and Subscriber's compliance
therewith. Seller will provide to Subscriber the services described below. Unless otherwise indicated,
these services are provided to Subscriber at no additional charge.
System Configuration Baseline and Documentation Update. As part of the initial enrollment process
for SOFTWARE FX, Seller may deem it necessary to conduct a system audit of Subscriber's
Designated System(s) to be covered under this Agreement. If said audit is required, Seller, or its
WA-COM Network Solutions Provider will conduct the audit.. This audit will be used to verify
Subscriber's first -year SOFTWARE FX Fee and to determine the Software release levels for
Licensed Programs contained within Subscriber's System at the time of enrollment, together with any
hardware updates necessary to accommodate Software Updates. .
ii. SOFTWARE FX Features Summary. Prior to the general release by Seller of any Software Updates,
Seller shall make available a SOFTWARE FX Features Summary announcing the impending release,
and detailing its contents and impact, if any, on any other M/A-COM hardware or Software
components. Subscriber acknowledges that older hardware may not have sufficient capacity for the
operation of the Software Updates. NOTHING IN THIS AGREEMENT OR OTHERWISE
REQUIRES SELLER EITHER TO DESIGN UPDATES THAT REMAIN COMPATIBLE WITH
DESIGNATED SYSTEM HARDWARE OR TO PROVIDE ADDITIONAL HARDWARE UNDER
THIS AGREEMENT, AND SUBSCRIBER WAIVES ANY SUCH DUTY OR OBLIGATION BY
SELLER.
iii. Installation Phone Support. Subscriber's SOFTWARE FX subscription shall include telephone
support by Seller's Technical Assistance Center (TAC) personnel with respect to the installation of
Software Updates. Such support will be available during Seller's normal business hours (8:00 a.m. to
5:00 p.m. Eastern Standard Time Monday through Friday, excluding holidays) and for a period of
ninety (90) days from the date the Software Update is released to Subscriber. After-hours emergency
support will be available through Sellers optional System Maintenance services at prices then in
effect, provided that Subscriber is in compliance with the terms of this Agreement.
iv. Upgrade Planning. If Subscriber is in compliance with the terms of this Agreement and its
Designated System is classified as a Single Node Network or higher, upon request by Subscriber,
Seller, or its M/A-COM Network Solutions Provider, shall provide an annual consultation service at
Subscriber's site to review Seller's planned Software releases and evaluate the operational and
financial impact such releases may have on Subscriber's Designated System:--4-f-Subscriber is in
compliance with the terms of this Agreement and its Designated System is classified below a Single
Node Network, upgrade planning is not included within the terms of this Agreement but can be
obtained from Seller at the rates then in effect for such service.
D. Services Not Included. The following services/products are not included within the terms of this
Agreement:
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i. Installation of Terminal Software Updates. Installation of Software Updates to terminal products is
not included, but such installations may be obtained through Seller, or, its M/A-COM Network
Solutions Provider , at the rates then in effect for such service provided that -Subscriber is in
compliance with the terms of this Agreement.
ii. Installation of System Software Updates. Installation of System Software Updates by Seller is not
included, but such installations may be obtained from Seller, or its MIA-COM Network Solutions
Provider, , at the rates then in effect for such service, provided that Subscriber is in compliance with
the terms of this Agreement.
iii. Hardware Upgrades. In the occasional event that a Software Update released requires a
corresponding hardware change, Subscriber will need to purchase separately the compatible hardware
required. Seller will endeavor to notify Subscriber in advance via the SOFTWARE FX Features
Summary or, if applicable, via SOFTWARE FX's upgrade planning service of any hardware changes
needed in order to implement a Software Update. No such notice will be given for Vendor Products
or Excluded Products, and no hardware upgrade may be available.
iv. Optional Support Services. Other Software support services Subscriber may require, including, but
not limited to, training, customized software programming or troubleshooting through Seller's
Technical Assistance Center are outside the scope of this Agreement but may be obtainable through
other programs offered by Seller.
v. Remote Site TranMortation Costs. For those sites that are not readily accessible by motor vehicle and
require special transportation arrangements in order to gain access for Designated System audits,
Subscriber will be responsible, at its expense for providing transportation to the site and reasonable
lodging and other support where same day service is not reasonably available.
4. CONDITIONS FOR SERVICE
A. Enrollment Deadline. Subscriber agrees to enroll in SOFTWARE FX no later than sixty (60) days after
the earlier of. (i) the first expiration date of the warranty provided by Seller for any component of
Subscriber's Designated System, or (ii) the first expiration date of the warranty provided by Seller for any
of the Software within Subscriber's Designated System. If either such warranty already has expired when
Subscriber is first offered the SOFTWARE FX Program, Subscriber will be given a 60-day grace period
in which to enroll in SOFTWARE FX. A Subscriber meeting the enrollment deadline will receive, at no
additional charge as described in Section 3.A.i. of this Agreement; the Software Updates needed to bring
its Designated System up to Seller's Current Software Release Levels to the extent the Designated System
hardware is compatible with such Software Updates.
B. Subscriber Contact. Seller requests that Subscriber identify its Subscriber Contact in Section 5.B. of
Schedule A to this Agreement. Subscriber shall designate a person with sufficient technical expertise to
be able to interact knowledgeably with Seller's technical support personnel. To the maximum extent
practicable, Subscriber's communications with Seller (with regard to the Software Updates provided
under this Agreement) should be through the Subscriber Contact.
C. Installation. Subscriber agrees to properly install the Software Updates provided by Seller in order of
receipt from Seller. Subscriber understands that Software support provided by Seller is limited to Seller's
Current Software Release Levels of Licensed Programs for the Designated System.
D. Media Labeling. Subscriber agrees that if it makes copies of any Software Update supplied by Seller, for
backup purposes, Subscriber will reproduce any copyright notice and/or proprietary notice appearing on
and/or in such Update and will label all copies with all information, including part numbers and revision
levels, provided on the set of media provided by Seller. Nothing herein grants Subscriber any right to
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sublicense any Software or to distribute copies to any other person, and such-sublicensing and distribution
is expressly prohibited. __
E. No Modification of Software. Subscriber agrees not to modify, enhance or otherwise alter any Software
unless specifically authorized in the user documentation provided by Seller with such Software Update or
unless the prior written consent of Seller is obtained. Under no circumstance shall Subscriber create or
permit the creation of any derivative work from any Software or the reverse engineering or replication of
any Software.
F. Seller's obligations under this Agreement are conditional upon Subscriber's compliance with the terms of
this Agreement and any Contract then in effect between Seller and Subscriber.
5. FEES, TERMS OF PAYMENT & TAXES
A. SOFTWARE FX Fee. Subscriber agrees to pay Seller or its M/A-COM Network Solutions Provider an
annual SOFTWARE FX Fee, in the amount set forth in Schedule A to this Agreement, plus taxes
pursuant to Subsection E below, for SOFTWARE FX services provided during the term as defined in
Schedule A. Subsequent years' SOFTWARE FX Fees, beyond Subscriber's first -year fee specified in
Schedule A, may or may not remain at the same rates. Any changes made to Subscriber's Designated
System(s) or mobile equipment which results in their falling into another SOFTWARE FX Classification
will be reflected in the following year's SOFTWARE FX Fee. If Seller's rates for SOFTWARE FX
should increase, Subscriber will be notified in writing of any such increases at least one hundred twenty
(120) days prior to the end of Subscriber's yearly SOFTWARE FX period then in effect.
B. Other Charges. Subscriber understands that if it chooses to delay its enrollment in SOFTWARE FX
beyond the deadline described in Section 4.A. of this Agreement, Subscriber will need to license, at the
applicable fees then in effect, the initial Software Updates needed to bring its System up to Seller's
Current Software Release Levels, as well as any hardware which may be required to accommodate such
Updates.
C. Due Date. Subscriber's first -year SOFTWARE FX Fee will be invoiced upon receipt of this Agreement
signed by Subscriber. Payment will be due thirty (30) days from the date of the invoice. Subscriber's
subsequent years' SOFTWARE FX Fees will be automatically invoiced sixty (60) days prior to the
commencement of the subsequent year's term. Payment of all amounts due is a condition precedent to
Seller providing any future Software Updates or other services.
D. Payment Terms. Payment shall be made in United States currency. All amounts over thirty (30) days
past due shall accrue interest from the due date at the rate of one and one-half percent (1-1/2%) per month
(or such lesser rate as is the maximum permissible rate under applicable law). In addition to payment of
interest, Subscriber agrees to pay all collection costs and enforcement expenses, including reasonable
attorneys' fees, if Seller must bring an arbitration or other proceeding to collect any amount owed by
Subscriber or to enforce any rights in any bankruptcy or similar proceeding involving Subscriber.
E. Taxes. In addition to all fees specified herein, Subscriber shall pay the gross amount -of any present or
future sales, use, excise, value-added, or other similar tax applicable to the price, sale or delivery of any
products or services furnished hereunder or to their use by Subscriber, unless Subscriber shall otherwise
furnish Seller with a tax -exemption certificate acceptable to the applicable taxing authorities.
F. Discontinuance. Subscriber understands that if Subscriber discontinues and then subsequently resumes
participation in the SOFTWARE FX Program, Subscriber will be required to pay a re-entry fee for any
benefits provided to Subscriber upon re-entry to the SOFTWARE FX Program plus the SOFTWARE FX
Fee for the term then commencing.
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6. TITLE
The Licensed Programs and all copies thereof, in whole or in part, and all Software, documents and materials
which may be provided by Seller hereunder for use in connection with such Programs are furnished
nonexclusively as part of the Licensed Program(s) defined in the applicable software license agreement(s) and
shall remain the exclusive property of Seller and will be held in confidence by Subscriber in accordance with
the provisions of each such software license agreement. Under no circumstance shall Subscriber create or
permit the creation of any derivative work from any Software or the reverse engineering or replication of any
Software.
7. TERM & TERMINATION
A. SOFTWARE FX services will be provided by Seller to Subscriber for an initial five year term, as defined
in Schedule A to this Agreement, and thereafter on a year-to-year basis as provided herein, subject to
prior payment in full of all outstanding fees and charges at the time of renewal and compliance with the
provisions of this Agreement.
B. Provided Subscriber is then in full compliance with all of its obligations, Subscriber's SOFTWARE FX
enrollment shall be automatically renewed at the end of the five- year term for a second year's term and
on a succeeding yearly basis thereafter unless either party notifies the other in writing, at least ninety (90)
days prior to the end of the yearly period then in effect, that this Agreement will not be renewed.
C. Seller shall have the right to suspend or terminate this Agreement upon thirty (30) days' prior written
notice if Subscriber fails to pay any fees or charges due hereunder or if Subscriber commits any other
breach of this Agreement or commits any breach of any applicable Software license agreement for any
Licensed Program being supported under this Agreement, any contract between Subscriber and Seller or
any other obligation of Subscriber to Seller or any of its affiliates.
D. Seller shall have the right to discontinue providing SOFTWARE FX services (including Updates) for any
Licensed Program supported under this Agreement. Software Updates may be discontinued at any time at
Seller's discretion. Other services shall not be discontinued without at least ninety (90) days' prior
written notice by Seller to Subscriber. Notwithstanding any other provision of this Agreement, as
Subscriber's sole and exclusive remedy Seller will provide a pro-rata refund of Subscriber's annual
SOFTWARE FX Fee if Seller elects to discontinue providing SOFTWARE FX services for any Licensed
Program supported under this Agreement.
E. Except as provided in Section 7. D. above, under no circumstances (including any termination of this
Agreement) shall any fees paid pursuant to this Agreement be refundable once paid by Subscriber.
F. Subscriber may terminate this Agreement at any time upon thirty (30) days' prior written notice to M/A-
COM, in which case the services described in Section 3.A of this Agreement shall be discontinued and
this Agreement shall terminate provided, however, that no portion of the annual fee shall be refunded.
8. SOFTWARE WARRANTY
Seller warrants, for a period of ninety (90) days from delivery of a Software Update, that any Software furnished
to Subscriber shall be capable of successfully operating on the designated hardware in accordance with the logic
defined in the operator's manuals or other supporting documentation when Subscriber's Designated System is
supplied with correct input data. If, on the basis of evidence submitted to Seller within the 90 day term of this
warranty, it is shown that any Software does not meet this warranty, Seller, at its option, will either correct the
defect or error in the Software free of charge and provide a corrected Software Update, or make available to
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Subscriber a satisfactory substitute program. The foregoing warranty is exclusive and in lieu of all other
warranties whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY, ALL OF
WHICH ARE WAIVED IN FULL BY SUBSCRIBER. IN NO EVENT SHALL SELLER BE LIABLE
FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES,
OR FOR ANY LOST PROFITS OR REVENUES OR OTHER INDIRECT ECONOMIC PREJUDICE,
OR FOR ANY EQUITABLE REIMBURSEMENT OR RECOVERY, ALL OF WHICH ARE HEREBY
WAIVED IN FULL BY SUBSCRIBER.
9. LIMITATION OF LIABILITY
The total liability of Seller, including its subcontractors or suppliers, for all direct or indirect claims of any kind
for any loss, cost, expense, liabilities, or damage, whether in contract, warranty, tort (including negligence or
infringement), strict liability, equity or otherwise, directly or indirectly arising out of, connected with, or resulting
from the performance or non-performance of this Agreement (or any related software license agreement) or from
the furnishing of any good or service pursuant to this Agreement (or any related software license agreement) shall
not exceed the amount of the most recent annual SOFTWARE FX Fee paid by Subscriber under this Agreement.
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE OR INFRINGEMENT), STRICT LIABILITY, EQUITY, OR OTHERWISE,
SHALL SELLER OR ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, VENDORS,
SUBCONTRACTORS OR SUPPLIERS, BE DIRECTLY OR INDIRECTLY LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL,
COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME
COSTS, INTEREST, ATTORNEYS FEES OR LITIGATION COSTS OR CLAIMS OF SUBSCRIBER'S
CUSTOMERS FOR SUCH DAMAGES. The provisions of this Section, Limitation of Liability, shall apply
notwithstanding any other provisions of this Agreement (or any related software license agreement). The terms
and provisions of this Section shall survive the termination or expiration of this Agreement.
10. CONFIDENTIALITY
A. Subscriber agrees not to disclose, provide or otherwise make available to any third party any Software or
portion thereof, or any technical information provided to Subscriber under the provisions of this
Agreement (hereinafter "Confidential Information"), and to hold such materials in confidence using a
strict degree of care to protect the Confidential Information from unauthorized disclosure.
B. Subscriber's obligation with respect to disclosure of Confidential Information shall terminate with respect
to any Confidential Information which Subscriber can show was rightfully in its possession prior to the
disclosure made by Seller, or which subsequently came into its possession through a third party under no
obligation of confidentiality to Seller, or which was independently developed by employees of Subscriber
who did not have access to Confidential Information or which becomes a matter of public knowledge other
than as a breach of any obligation owed to Seller, or which is disclosed with the prior written permission
of Seller.
C. Notwithstanding the obligations on disclosure and use set forth herein, Subscriber may disclose
Confidential Information to third parties insofar as is necessary to satisfy a proper court order, subpoena,
litigation discovery demand or administrative or regulatory proceeding order, provided that Subscriber
promptly notifies Seller in writing of such order or demand prior to any disclosure and takes advantage of
all available and appropriate measures to prevent further disclosure of the Confidential Information.
D. "MIA-COM agrees that it is aware of subscriber's duty to comply with the requirements of the Texas
Public Information Act." This deals with the open records laws. If subscriber receives a request under the
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Texas Public Information Act to disclose M/A-COM confidential information to a third party, Subscriber
shall give M/A-COM prompt written notice of such request and an opportunity to intervene and defend
M/A-COM's confidentiality interests.
E. The provisions of this Section shall survive the expiration or termination of this Agreement.
11. FAILURE TO ENFORCE
The failure of either party to enforce, at any time or for any period of time, any provision of this Agreement in
accordance with its terms shall not be construed to be a waiver of such provision or of the right of such party
thereafter to enforce each and every such provision.
12. GOVERNING LAW AND DISPUTE RESOLUTION
A. Any and all Disputes (as defined herein) between or involving Seller and Subscriber shall be resolved by
arbitration conducted by three arbitrators in accordance with the commercial arbitration rules of the
American Arbitration Association, and in accordance with applicable law and the express terms hereof.
The arbitration shall be conducted in St. Louis Missouri. The decision of the arbitrators shall be reported
with their written findings of fact and conclusions of law. The arbitrators shall use their best efforts to
reach their decision within six (6) months from the date when the initial arbitration request is made. As
used herein the term "Disputes" means any and all disputes, controversies, claims or causes of action of
every kind, whether arising from any alleged breach of contract or warranty, tort, violation of law, right to
equitable relief or other legal or equitable theory, in any way, directly or indirectly, arising out of or
relating to this Agreement. Any arbitration must be commenced within one year from the date on which
the cause of action accrued under applicable law or it shall be barred.
B. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas,
excluding its rules pertaining to conflict of laws. Subject to the provisions of Subsection A, Subscriber
consents to the personal jurisdiction of the state and federal courts in the State of Texas, which courts
shall constitute the exclusive forum for all court proceedings involving the enforcement of this Agreement
and the resolution of all Disputes related to the subject of this Agreement, whenever, wherever and
however arising, whether at law, in equity or otherwise and whether the Dispute involves an alleged
breach of contract, violation of law or tort of any kind.
C. Each party acknowledges that jury trials are slower and more expensive than court trials without juries,
and, considering the complex nature of the technology and other issues which may give rise to Disputes,
the parties agree that any court proceedings commenced by or against either party shall be resolved
(subject to arbitration as provided herein) by a court without a jury, and each party waives its right to a
jury as to any disputes or claims arising under or relating to this Agreement, whether for breach or
enforcement of contract, tort or otherwise, including all Disputes as defined herein.
13. NO THIRD PARTY BENEFICIARIES; ASSIGNMENT
The provisions of this Agreement are solely for the benefit of Subscriber and Seller. No other person or
entity is intended to be a beneficiary of nor is entitled to rely upon or enforce any of the provisions of this
Agreement or to assert any claim for nonperformance of this Agreement by any party. This Agreement
may not be assigned by either Seller or Subscriber without the prior written consent of the other party.
The provisions of this Agreement shall inure to the benefit of and be binding upon Subscriber and Seller
and their respective permitted successors and permitted assignees (if any).
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14. NOTICES
All notices required or permitted hereunder shall be in writing and shall be deemed validly given upon
being hand delivered, or upon receipt if sent by facsimile or if mailed by certified mail, return receipt
requested, to Subscriber at the address set forth in Schedule A or to M/A-COM, Inc. at 221 Jefferson
Ridge Parkway, Lynchburg, VA. 24501, Attention: Software Services Group, or to such other address as
either party may designate to the other in writing.
15. ENTIRE AGREEMENT, EXECUTION AND MODIFICATION
A. This Agreement contains the entire and only agreement between the parties concerning the
subject matter hereof, and all prior representations and understandings in connection with the
subject matter hereof are superseded and merged herein, and any representation or understanding
not incorporated herein shall not be binding upon either party.
B. This Agreement shall not become effective until signed on behalf of Seller by one of its officers
or by an executive duly authorized by Seller's Vice President. No change, modification,
ratification, rescission, or waiver of this Agreement or any of the provisions hereof shall be
binding upon Seller unless made in writing and signed on its behalf in like manner.
C. SELLER DOES NOT ASSUME ANY OBLIGATIONS OR LIABILITIES IN CONNECTION
WITH THE SOFTWARE OR SERVICES OTHER THAN THOSE EXPRESSLY STATED IN
THIS AGREEMENT, AND DOES NOT AUTHORIZE ANY PERSON (INCLUDING
SELLER'S M/A-COM NETWORK SOLUTIONS PROVIDERS OR SUBCONTRACTORS OR
SUPPLIERS) TO ASSUME FOR SELLER ANY OTHER OBLIGATIONS OR LIABILITIES.
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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this
Agreement to be executed by their duly authorized officers or representatives.
SELLER:
M/A-COM, INC.
By: — /-,, ,,
Name: Tom Kegley
Title: Mgr., Technical SupportServices
Date:
M/A-COM, Inc.
221 Jefferson Ridge Parkway
Lynchburg, VA. 24501
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SUBSCRIBER:
City of Lubbock, TX
Name: Tom Martin
Title: Mayor
Date: October 9, 2008
ATTEST:
Rebe ca Garza
City Secretary
APPROVED AS TO CONTENT:
Mar Yearwood
Assistant City Manager
6V
Assistant City Attorney
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3. SOFTWARE FX Fees
The first -year SOFTWARE FX Fee for the above Designated System(s) is as follows:
System Name
City of Lubbock
SOFTWARE FX Option
SSSVID
System Fee
$50,000.00 (Annually)
Optional 5 year commitment will
include a 15% annual discount
adjusting the annual fee to
$42,500.00.
Subscriber's subsequent years' SOFTWARE FX Fees will be determined in accordance with Section S.A. of the
Agreement.
4. Fiscal Year Billing Option
If Subscriber requests billing for the first and subsequent years' SOFTWARE FX Fees coincident with
Subscriber's fiscal year, please indicate the fiscal year end date:
mm dd
If this option is selected, Subscriber's initial SOFTWARE FX term will be from the effective date shown in
Section 1 of this Schedule A through the next fiscal year end date and the first -year SOFTWARE FX Fee will be
prorated accordingly.
S. Designated Subscriber Contact(s)
A. All notices regarding the SOFTWARE FX Agreement to which this Schedule A is attached are to be sent
by MIA-COM, Inc. to:
Contact's Name:
Title:
Address:
(Do not use P.O. Boxes)
Telephone:
Mark Yearwood
1915 Texas Avenue
Lubbock, TX 79411
806-775-2326
13
ECR 5145 Rev. / Q
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FAX No.
806-767-3085
B. All Software Updates to be provided by Seller to Subscriber under this Agreement are to be sent to (if
different than 5.A. above):
Contact's Name: SAME
Company Name:
Title:
Address:
(Do not use P.O. Boxes)
Telephone:
FAX No.
6. This Schedule A is agreed to by:
Seller:
M/A-COM, Inc.
221 Jefferson Ridge Parkway
Lynchburg, VA. 24501
By: 4kt5-�l n
Name: Tom Kegley
Title: Mgr., Technical Support Services
Date:
Subscriber Name:
City of Lubbock, TX
1915 Texas Avenue
Lubbock, TX 79411
By: ��
Name: TOM MARTIN
Title: MAYOR
Date: October 9, 2008
14
ECR 5145 Rev. / Q
12/21/05
Resolution No. 2008-RO395
SOFTWARE FX
AGREEMENT
SCHEDULE A
1. Term of SOFTWARE FX Agreement
The services, as described in the SOFTWARE FX Agreement to which this Schedule A is attached, will be
Provided for the initial period beginning 06/15/08 and ending 06/14/13
and will be automatically renewed for one=year periods thereafter pursuant to Section 7 of the Agreement.
2. Designated System.
The Designated System(s) for which the SOFTWARE FX Agreement will apply is (are):
System Name System Classification System Location
City of Lubbock EDACS Lubbock, TX
N/A
N/A
N/A
N/A
N/A
N/A
IN
ECR 5145 Rev. / Q
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