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HomeMy WebLinkAboutResolution - 2001-R0328 - Agreement With Diologic Communications Corporation - 08/30/2001Resolution No. 2001-RO328 August 30, 2001 Item No. 40 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, an Agreement between the City of Lubbock and Dialogic Communications Corporation, for the purchase an Automatic Phone Calling System, and related documents. Said Agreement 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 this 30th day of August , 2001. FLaj �W0131 IN, 21 ATTEST: � "o '0 , '- ni2i-� PR ecca Garza City Secretary APPROVED AS TO CONTENT: a n� Sharlett Chowning Managing Director of Information Technology APPROVED AS TO FORM: William de Haas Contract Manager/Attorney Dh/Ccdocs/AutomaticPhoneCallingSystem.res August 21, 2001 Resolution No. 2001-RO328 August 30, 2001 Item No. 40 SOFTWARE LICENSE AGREEMENT This SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into on August 20, 2001 by and between DIALOGIC COMMUNICATIONS CORPORATION, a Tennessee corporation ("DCC"), and The City of Lubbock, Texas ("Licensee"). WHEREAS, DCC is in the business of developing and licensing software programs; and WHEREAS, DCC desires to grant to Licensee, and Licensee desires to accept, a license to use the Licensed Software (hereinafter defined). NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows: ARTICLE I DEFINITIONS As used herein, the following definitions shall apply: 1.1 "Licensed Software" shall refer to the software program known as "The CommunicatorTm for Windows, Release 7.X", in object code form, supplied by DCC and all permitted copies of the foregoing. 1.2 "Licensed Documentation" shall mean all documentation, other than the Licensed Software, related to the Licensed Software supplied by DCC hereunder. 1.3 "Licensed Product" shall mean collectively the Licensed Software and the Licensed Documentation. ARTICLE II LICENSE Subject to the terms of this Agreement, DCC hereby grants to Licensee, and Licensee hereby accepts, a personal, non-exclusive and non -transferable license to use the Licensed Product. ARTICLE III TERM This Agreement shall commence on the Effective Date and continue in perpetuity. 176919-2 ARTICLE IV FEES AND TAXES IV.1 License Fees. The license fee for the license herein granted is set forth in Exhibit 1.1, Statement of Work. IV.2 Taxes. The City of Lubbock is a tax free organization. IV.3 Payment Terms. The fees and other applicable charges shall be due and payable as follows: Payable upon execution of contract: $23,500. Payable within 30 -days of System Acceptance: $23,500. Licensee shall pay a late payment charge of 1.5 percent per month, or the maximum rate permitted by applicable law, whichever is lower, on any unpaid amount for each calendar month or fraction thereof any payment to DCC is in arrears. ARTICLE V RESTRICTIONS V.1 Restrictions on Transferability. This Agreement may not be transferred, assigned, sublicensed or otherwise disposed of to a third party without DCC's prior written consent. Such prior consent will not be unreasonably withheld. Licensee must give DCC written notice requesting transfer sixty (60) days before the transfer is to take place. ARTICLE VI PROTECTION OF LICENSED PRODUCT VI.1 Intellectual Property Rights. Licensee acknowledges and agrees that the Licensed Product is DCC's exclusive property and constitutes a valuable trade secret of DCC. Licensee is required to take reasonable steps to protect the trade secret of the Licensed Product. Licensee may not remove or omit any proprietary notices from the Licensed Product. Ownership of all copies is retained by DCC. Licensee may not disclose or make available to third parties the Licensed Product or any portion thereof without DCC's prior written consent, or a valid court order, or in compliance with the Texas Public Information Act. Upon any termination, cancellation, or expiration hereof, Licensee shall immediately return the Licensed Product and all copies thereof to DCC. VI.2 Iniunctive Relief. Licensee acknowledges that any violation by Licensee of its covenants or obligations relating to the intellectual property rights of DCC would result in damage that is largely intangible but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, such violation shall give DCC the right to a court-ordered injunction to specifically enforce said covenants and obligations. The Licensee agrees to pay as 176919-2 2 damages any reasonable expenses, including but not limited to attorney fees, incurred in obtaining specific enforcement of those covenants and obligations. ARTICLE VII MODIFICATIONS The Licensed Software may not be modified or merged with any other software. ARTICLE VIII REPRODUCTION Licensee may reproduce the Licensed Product for backup purposes only. In no other event may Licensee copy, allow anyone else to copy, or otherwise reproduce any part of the Licensed Product without prior written consent of DCC. ARTICLE IX SUPPORT DCC shall provide Licensee with technical support and services under the terms and conditions of a separate Software Maintenance Agreement. ARTICLE X WARRANTY X.1 Physical Media Warranty. DCC warrants the physical media on which the Licensed Software is provided to be free from defects and materials of workmanship for ninety (90) days after the Effective Date. The physical medial warranty does not apply to defects arising from acts of non -DCC personnel, misuse, theft, vandalism, fire, water, acts of God or other peril. Licensee's sole remedy for breach of the physical breach warranty, to the exclusion of all other remedies therefor, shall be replacement of the media that does not comply with the warranty, at DCC's expense, including shipping and handling costs. Defective Licensed Software may be returned for replacement without charge for ninety (90) days. X.2 Conforms to Documentation. DCC warrants, for ninety (90) days after the Effective Date, that the unaltered Licensed Software will perform substantially in accordance with the Licensed Documentation and the City of Lubbock Request for Bid No 00-020. 176919-2 3 X.3 Exceptions from Warran i. The Warranties set forth above shall not apply to any defects or problems caused in whole or in part by (i) any defect in any portion of any hardware or equipment, (ii) the failure of any portion of any hardware or equipment to function in accordance with applicable manufacturer's specifications, (iii) any modification or enhancement made to the Licensed Software by Licensee or any third person or entity other than DCC, (iv) any software program, hardware, firmware, peripheral or communication device used in connection with the Licensed Software, (v) the failure of Licensee or any third person or entity to follow the most current instruction promulgated by DCC from time to time with respect to proper use of the Licensed Software, or (vi) the negligence of Licensee or any other third party or entity. In the event, that Licensee falls within any of the foregoing exceptions, Licensee shall pay DCC for its services at DCC's hourly rates than in effect. ii. Due to the complex nature of computer software, DCC does not warrant that the Licensed Software is completely error free, will operate without interruption or is compatible with all equipment or software configuration. iii. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, DCC MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED. DCC DOES NOT MAKE BY VIRTUE OF THIS AGREEMENT, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY TO THE LICENSEE OR ANY THIRD PARTY. X.4 Exclusive Remedy. Licensee's exclusive remedy, and DCC's entire liability in contract, tort or otherwise shall be to use its best efforts to provide a correction or workaround for any substantial nonconformity of the Licensed Software with the Licensed Documentation which is (i) reported to DCC by Licensee during the Warranty Period and (ii) reproducible by DCC in the execution environment. If, however, after repeated efforts, DCC is unable to provide a correction or workaround for any reported error, Licensee's exclusive remedy and DCC's entire liability in contract, tort or otherwise is to refund the amounts paid by Licensee for the Licensed Product upon Licensee's return of the original and all copies of the Licensed Product in its possession, together with its certification that it has ceased all use of the Licensed Product. X.5 Additional Representations. DCC warrants that it has title to the Licensed Software and the authority to grant licenses to use the Licensed Software. DCC represents and warrants that the Licensed Software is year 2000 compliant and will operate in the same manner with respect to year dates of year 1900 through 2000 and 2000 and beyond as it operates with respect to year dates of 1900 to 1999. Specifically, the Licensed Software will (a) manage and manipulate data involving dates, including single century and multiple century dates, and will not cause an abort or result in the generation of incorrect values or invalid output involving such dates, and (b) include the indication of the correct century in all date related user interface functions. DCC further represents and warrants that the Licensed Software will correctly recognize and process the date of February 29, and any related data, during leap years. 176919-2 4 X.6 Indemnification. DCC shall defend, indemnify and hold harmless Licensee against any claim brought in the United States against Licensee that Licensee's use of the Licensed Software infringes any United States patent, copyright, trademark, trade secret or other proprietary right of any third party and DCC shall pay all costs fees and damages reasonably incurred by Licensee in connection with any such claim or action provided that: 1. Licensee promptly notifies DCC in writing of the claim; (2) DCC shall have sole control of the settlement or defense of any action to which this indemnity relates; and (3) Licensee cooperates with DCC in every reasonable way to facilitate such defense or settlement. Licensee may have its own counsel participate in the defense of any such claim or action provided that the costs of such counsel shall be borne exclusively by Licensee. The foregoing obligations of DCC shall survive the termination of this agreement for any reason. X.7 Limitations of Infringement Liability. DCC shall not be liable for any compromise entered or settlement made by Licensee without its prior written consent. In addition, DCC shall not be liable for any losses, costs or damages, and Licensee will indemnify, defend, and hold DCC harmless from any loses, costs, or damages resulting from any suit or proceeding based upon a claim or action arising from (1) compliance with customer designs, specifications, or instructions; (2) a modification of the Licensed Software; (3) the combination, operation, or use of any Licensed Software with any other product, data, or apparatus not provided or approved in writing by DCC or DCC's authorized representative; (4) the direct or contributory infringement of any patent by Licensee using any Licensed Software furnished pursuant to this Agreement; or (5) the use of a superseded release of the Licensed Software if the infringement would have been avoided by the use of a current release of the Licensed Software pursuant to this Agreement does not confer upon the Licensee any license under any patent rights or copyrights. ARTICLE XI TERMINATION/CANCELLATION XI.1 Events of Termination/Cancellation. DCC may terminate/cancel this Agreement and any license granted to Licensee hereunder if: Licensee fails to pay DCC any license fee or charge; ii. Licensee is in default of any other provision of this Agreement and such default is not cured within ten (10) days after DCC gives Licensee written notice thereof; or iii. Licensee files a petition (or is the subject of an involuntary petition) in bankruptcy; or is or becomes insolvent; or admits of a general inability to pay its debts as they become due; iv. Licensee becomes subject to the de facto or de jure nationalization or expropriation by governmental or military action, whether or not with valid authority; or V. DCC discovers any material false statement or other misrepresentation made by the Licensee to DCC. 176919-2 5 X1.2 Consequences of Termination/Cancellation. In the event of any termination/cancellation of this, Agreement or any license granted to Licensee hereunder, DCC may: Declare all amounts owed to DCC to be immediately due and payable; ii. Require that Licensee cease any further use of Licensed Product or any portion thereof and immediately return the same and all copies thereof in whole or in part; and iii. Cease performance of all obligations hereunder without liability to Licensee. XI.3 Return of Licensed Product. Licensee shall return the original and all copies of the Licensed Product in its possession, together with its certification that it has ceased all use of the Licensed Product. XIA Other Remedies. DCC's foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to DCC in law and in equity. ARTICLE XII LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL DCC BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSS PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF DCC HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. DCC's LIABILITY TO LICENSEE HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES PAID TO DCC HEREUNDER BY THE LICENSEE. ARTICLE XIII MISCELLANEOUS X111.1 Effective Date. The Effective Date of this Agreement shall be upon execution hereof by Licensee and acceptance hereof by an authorized representative of DCC. XI11.2 Partial Invalidity: Waiver. The invalidity or unenforceability of any particular portion of this Agreement will not effect the other provisions hereto and this Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted. Further, there will be automatically substituted for such invalid or unenforceable provision a provision as similar as possible which is valid and enforceable. Neither the failure nor any delay on the part of any party hereto in exercising any rights, power or remedy hereunder will operate as a waiver thereof or of any other right, power or remedy; nor will any single or partial exercise of any right, power or remedy preclude any further or other exercise thereof, or the exercise of any other right, power or remedy. No waiver of any other provision of this Agreement will be valid unless it is in writing and signed by the party against which it is sought to be enforced. 176919-2 6 X111.3 Entire Agreement: Counterparts. This Agreement, including the exhibits and attachments hereto, constitutes the entire Agreement between the parties hereto with regard to the matters contained herein and it is understood and agreed that all previous undertakings, negotiations and agreements between the parties are merged herein. This Agreement may not be modified orally, but only by agreement in writing signed by both parties. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original and all of which together constitute but one in the same instrument. X111.4 Controlling Law: Venue. This Agreement will be construed, interpreted and enforced in accordance with the substantive laws of the State of Texas, without giving effect to its conflict of laws provisions. All parties agree that venue regarding any action arising hereunder shall be Lubbock County, Texas. X111.5 Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement. 176919-2 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. ATTEST: Reb cca Garza City Secretary APPROVED AS TO CONTENT: DCC: DIALOGIC COMMUNICATIONS CORPORATION By: Print: Z e' C, Title: C. o // a✓ Date: '3' I q- d / CITY OF LUBBOCK: By: Print: Windv Sitton Title: Mayor Date: August 30, 2001 APPROVED AS TO FORM: d--'--� ela 0', �g e "j --c Sharlett Chowning William de Haas Managing Director of Information Technology Competition and Contracts Manager 176919-2 8 Resolution No. 2001-R STATEMENT OF WORK Prepared for: Lubbock Police Department August 13, 2001 The Lea" Provider of Automated Notification Solutions Rick Wimberly Dialogic Communications Corporation 381 Riverside Drive Suite 300 Franklin, TN 37064 800-723-3207 (3967) rick.wimberlvna dccusa.com_ Statement of Work Lubbock Police Department August 13, 2001 w4ra NAM The C0111111unicalopl. C; Integrated Paging (Alpha/Digital) Automatic Phone Number Update Remote Telephone Activation Inbound Bulletin Board Intelligent Scenario Kit Key Function Wizards On -Line Help Data Import/Export Capability Dynamic Group Capability Position Filling Resource Management Tools Automatic Scenario Scheduler Automatic Report Distribution Name Speak Feature Answering Machine Detection/Message Control Primary/Secondary Calling Sequence Control Multi-level Security Control PC Anywhere® Communications Software Microsoft® Operating System Pre -Installation Set-up Hot Link Directional Calling Ad Hoc List Builder Mail Merge Map Appearance Controls Off -Site Geo -Coding On -Site Geo -Coding Multi -Pattern Geo Selection Unlimited Layers Map/Data Layer Control Symbol Selection Tool Map Point Labeling Tool Data Accommodation Flexibility Find/Edit Map Points Map Contents Labeling Scale Bar Measure Tool Display Scale Control Message Repeat Duplicate Number Removal On -Line Help T-1 Configuration One Year 24/7 Support — Premium Level Hardware Package OneCa11TM one-year access Installation/Training (3 days) PRICING: Software NotifierTM Base Software GeoNotifyTM geographic notification module Inbound Bulletin Board PC AnywhereTM MicroSoftTM Operating System Training/Installation (2 days) Software Expansion Upgrade from NotifierTM to Communicatofm Hardware Configuration Upgrade to T-1 phone expansion Includes additional day of installation. Best of Class Commercial Telephone Database TOTAL OPTIONAL ITEMS: $15,750 $3,000 $7,500 $4,750 $13,500 $2,500 $47,000 The number of Telephone Database Updates will be determined annually by the City of Lubbock based on need. NOTE: Prices good for 45 -days from date on front page. Lease plans available. Rick Wimberly Dialogic Communications Corporation 381 Riverside Drive; Suite 300 Franklin, TN 37069 rick.wimberly.Cwdccusa.com phone: 800-723-3207 (ext 3967) fax: 615-790-1329