HomeMy WebLinkAboutResolution - 4570 - Agreement - Systems Innovations Inc - Computer Software & Services - 08/11/1994Resolution No. 4570
August 11, 1994
Item #11
RESOLUTION
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute
for and on behalf of the City of Lubbock a Purchase and Software License Agreement, by and
between the City of Lubbock and Systems Innovations Inc. for computer software and
services. Said Agreement is attached hereto and 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 11 t day gust
VID R. LA1VG,$TON, MAYOR
ATTEST:
Betty A Johnson, ity Secretary
APPROVED AS TO CONTENT:
Thomas W. Tuning, Director ation &
Communication Services
APPROVED AS TO FORM:
G. Vandiver, First Assistant City Attorney
aa= \systemres
August 2, 1994
SII
Resolution No. 4570
August 11, 1994
Item #11
PURCHASE AND SOFTWARE LICENSE AGREEMENT
System Innovators, Inc. (SII), whose corporate address is 8301 Cypress Plaza Drive, Suite 105,
Jacksonville, Florida, 32256-4416 ("SII") and The City of Lubbock whose address is 916 Texas Avenue
("Customer") agree that this Purchase and Software License Agreement ("Agreement") entered into this ?lid
day of August, 1994 ("Effective Date") governs the sale of computer equipment and related peripherals and
supplies ("Hardware"), the provision of professional consulting, programming, installation, and training
services ("Services"), and the licensing of SII computer software and related documentation ("Software") by
SII to Customer.
1. Prices. SII's charges for Hardware, Software licenses and Services are specified in the
Exhibits of this Agreement. The prices set forth in such Exhibits are exclusive of and Customer agrees to
pay: (a) shipping charges where not specifically covered; (b) SII's time and material charges plus reasonable
travel and living expenses, at cost, for additional Services requested by Customer; and (c) all taxes, including
sales taxes, (however designated) paid or payable by SII (exclusive of taxes based on SII net income) for
Hardware, Services and Software licenses provided hereunder. Customer agrees to support any claim for tax
exemption for purchases hereunder by providing SII with a copy of the applicable tax exemption certificate
prior to delivery.
2. Purchase Orders. Customer purchase orders, as may be issued from time to time and
accepted by SII, shall be treated as Exhibits to this Agreement. The terms and conditions of this Agreement
shall prevail, not withstanding any variations or additions contained in any purchase order or other document
submitted by the Customer.
3. Delivery and Risk of Loss. All Hardware and Software sold or licensed to Customer is
shipped at Customer's expense. Customer assumes the risk of loss for Hardware and Software upon delivery.
4. Acceptance. Hardware and Software shall be deemed Accepted by Customer upon (a) receipt
of Hardware and/or Software and (b) delivery of a signed acceptance statement to SII or use of the Hardware
and/or Software in the ordinary course of business.
5. Payment Terms. (a) Customer shall pay SII twenty five percent (25%) of the total price for
all Hardware, Services, and Software licenses specified in this Agreement upon execution of this Agreement.
(b) Customer shall pay SII fifty percent (50%) of the total price for all Hardware, Services
and Software licenses specified in this Agreement, as amended, upon delivery of the Hardware to the
Customer and as invoiced by SII.
(c) Customer shall pay SII the remaining amount of the total price for all Hardware, Services
and Software licenses specified in this Agreement, as amended, upon Acceptance of the Hardware and
Software and as invoiced by SII.
SII Purchase and Software License Agreement 1
04/94
(d) Customer shall pay SII for all other charges (e.g.: Services, travel expenses, other billable
charges) as invoiced by SII.
(e) All invoiced charges are due upon receipt. Interest, at the rate of one and one half percent
(1.5%) per month, will be charged by SII on all amounts unpaid and outstanding after thirty (30) days from
the date of SII's provision of an invoice to Customer.
6. Title and Security Interest. (a) SII shall own all rights, title and interest in and to the
Software including all customizations, enhancements, modifications, improvements, derivations or other
changes thereto, whether made by SII, Customer, or jointly by SII and Customer. Any copies of the Software,
in whole or in part, which are made hereunder, shall also remain the sole property of SII.
I (b) SII shall retain title of the Hardware delivered under this Agreement and title shall not
pass to Customer until the Software licenses and Hardware are fully paid by Customer. Customer hereby
grants to SII a purchase money security interest under the Uniform Commercial Code in all Hardware
purchases hereunder. All Hardware purchased herein and hereafter from SII shall remain subject to such
security interest until the purchase price is paid in full. For such purpose, all payments shall be applied first
to the cost of taxes, delivery charges and interest, if any, then to charges for Services, then to Software
licenses, and finally to Hardware. Payments applied to Hardware shall be applied in the order they were
purchased.
7. License. SII grants to Customer, subject to the timely payment of all charges due under this
Agreement, and Customer hereby accepts a nonexclusive, indivisible and nontransferable license to use and
copy the Software for its own internal business purposes in accordance with the terms and conditions of this
Agreement. Customer agrees that this license is solely for the installation site(s) and/or number of central
processing units listed in the Exhibits of this Agreement.
8. Term. This Agreement shall commence on the Effective Date and shall remain in force until
terminated according to the provisions of this Agreement.
9. Use and Copying Restrictions. (a) Customer understands that the Software provided
under this Agreement contains trade secrets and proprietary information belonging to SII. Customer agrees to
hold the Software in trust and confidence and will safeguard the Software to the same extent that Customer
safeguards other trade secret information related to its business.
(b) Except for necessary back-up or archival purposes, Customer shall not copy,
duplicate, print, publish or reproduce the Software, or any part or portion thereof. Additional copies of the
Software shall be available to Customer at SII's prevailing prices.
(c) Customer further agrees not to disclose, provide or otherwise make available
Software to any person other than Customer's employees or agents or SII's employees without prior written
consent of SII.
(d) Customer further agrees not to sell, assign, lease, license, or in any manner encumber,
pledge, convey, or transfer the Software or any interest therein.
10. Termination. (a) Either party may terminate this Agreement upon written notice to the
other if: (i) a material violation of this Agreement by the other party is not remedied within thirty (30) days
SII Purchase and Software License Agreement 2
04/94
after notice of violation; or (ii) any representation or warranty made by the other party shall prove to have
been false or fraudulent in any material respect as of the date the same was made; or (iii) the other party
admits in writing its inability to pay its debts generally as they become due, or executes an assignment for the
benefit of creditors or similar document; or (iv) a receiver, trustee in bankruptcy or similar officer is
appointed for the other party's property.
(b) Termination shall not exclude other remedies for failure of a party to perform its
obligations.
(c) Upon termination of this Agreement, each party shall promptly return to the other any
and all personal property of the other held by such party and shall provide a certificate to the other party to the
effect that it has delivered to the other party all property belonging to the other party and has retained no
duplicates or copies of any such property.
11. Warranties and Disclaimers. SII warrants that the Software will conform to SII supplied
technical specifications and documentation, as periodically revised, for a period of one (1) year following
Acceptance of the Software, provided no changes, modifications or enhancements have been made to the
Software by Customer or third parties. SII will use its reasonable efforts to correct or repair any defects in the
Software; provided, however, that such defect is reported to SII in writing within the warranty period. SII
does not warrant that the operation of the Software will be uninterrupted or error free.
SII MAKES NO OTHER WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
SOFTWARE, HARDWARE, TECHNICAL INFORMATION OR TECHNICAL ASSISTANCE PROVIDED
BY SII UNDER AND PURSUANT TO THIS AGREEMENT.
12. Patent and Copyright Indemnification. (a) SII shall defend or settle any suit or
proceeding brought against Customer by a third party arising out of, or relating to, Customer's own internal
use of the Software provided that SII is given prompt written notice of such claim and is given information,
reasonable assistance and sole authority to defend or settle the claim.
(b) SII, at its option, may obtain for Customer the right to continue using or to replace or
modify the Software involved so it becomes non -infringing; or if such remedies are not reasonably available,
grant Customer a credit for the Software involved based upon its fair market value and accept its return.
(c) SII shall have no obligation under this Section if the alleged infringement or violation
is based upon the use of the Software in combination with other hardware or software not furnished by SII or
if such a claim arises from SII's compliance with Customer's designs, specifications or instructions or from
Customer's modification of the Software.
13. Limitation of Actions and Liability. (a) Neither party shall be liable for any failure of or
delay in performance of its obligations under this Agreement to the extent such failure or delay is due to
circumstances beyond its reasonable control.
(b) The parties agree that no action may be instituted hereunder more than one (1) year
after the cause of action accrued or should have been discovered by reasonable due diligence.
(c) IN NO EVENT SHALL SII OR ITS OFFICERS, AGENTS AND EMPLOYEES BE
LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, CONSEQUENTIAL, INCIDENTAL, INDIRECT
SII Purchase and Software License Agreement 3
04/94
OR SPECIAL DAMAGES UNDER ANY CIRCUMSTANCES EVEN IF SII HAS BEEN ADVISED OF
THE POSSIBILITY OF SAME.
(d) In any event, SII's liability for damages under any theory of liability or form of action
shall not exceed the total amount paid by Customer to SII under this Agreement.
14. Notice. All notices required or permitted to be given by one party to the other under this
Agreement shall be sufficient if sent by certified mail, return receipt requested, to the parties at the respective
addresses set forth above or to such other addresses as the party to receive the notice has designated by notice
to the other party.
15. Governing Law. This Agreement shall be governed by and construed under the laws of the
State of Texas.
16. Consent to Jurisdiction, Venue and Service Customer consents and agrees that all legal
proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the
State of Texas. Customer further consents and agrees that jurisdiction and venue for such proceedings shall
lie exclusively with such courts. Service of process in any such proceeding may be made by certified mail,
return receipt requested, directed to the respective party at the address at which it is to receive notice as
provided herein.
17. Severability. If any provision of this Agreement is held invalid or otherwise unenforceable,
the enforceability of the remaining provisions shall not be impaired thereby.
18. No Waiver. The failure by any party to exercise any right provided for herein shall not be
deemed a waiver of any right hereunder.
19. Other Provisions. (a) Separate Software and Hardware maintenance agreements are
available from SII and, if accepted, Software and/or Hardware maintenance provisions shall be governed by
those Agreements.
(b) The scope of any Services provided under this Agreement and any Customer
obligations related to such Services will be documented and attached as an Exhibit to this Agreement.
(c) Customer may not sell, assign, transfer, lease, sublicense or otherwise convey any of
its rights (or delegate any of its duties) under this Agreement, including the Software license granted herein,
without the prior written consent of SII.
(d) Both parties acknowledge receipt of the documents listed below and consent to their
incorporation into and attachment to this Agreement as the indicated Exhibit number.
SII Purchase and Software License Agreement 4
04/94
Exhibit Number Document Title
"CUSTOMER"
The City of Lubbock
By: David R. Langston
Name: David R. Langston
Hardware and Software Description and
Pricing Schedule
Scope of Services
I,SHIV
System Innovat , Inc.
By:
Name: n
ATTEST:
Betty Ne Johnson, ity Secretary
APPROVED AS TO CONTENT:
Thomas W. Tuning, Director Info n &
Communication Services
APPROVED AS TO FORM:
ZS& h 2C)I� -
D nald 6. Vandiver, First Assistant City Attorney
SII Purchase and Software License Agreement 5
04/94
EXHIBIT "I"
HARDWARE AND SOFTWARE DESCRIPTION AND PRICING HEDULE
I. LIST OF HARDWARE, SOFTWARE AND SERVICES TO BE PURCHASED BY CUSTOMER
FROM SII:
II. SOFTWARE LICENSE QUANTITIES:
Quantity of 4 each:
A. CASHIER Workstation Module
III. Quantity of 1 each:
A. CASHIER Control Station Module
SII Purchase and Software License Agreement 6
04/94
Unit Price
Extended
Description
Qty.
Amount
CASHIER Workstation Module
$3,995.00
4
$15,980.00
Tailoring for the Base CASHIER Workstation Module
$4,995.00
1
$ 4,995.00
CASHIER Control Station Module
$3,995.00
1
$ 3,995.00
Tailoring for the CASHIER Control Station Module
$ 950.00
1
$ 950.00
CASHIER Host Communication Tailoring
$4,995.00
1
$ 4,995.00
CASHIER System Customization Identified beyond standard
system tailoring - 56 Hours @ $105/Hour
$105.00
56
$ 5,880.00
CASHIER System Functional Training (prior to Technical
Specifications writing - 26 Hours @ $105/HR)
$105.00
26
$ 2,730.00
One Trip for CASHIER System Functional Training
$1,527.46
1
$ 1,527.46
CASHIER System On -Site End -User Training
$4,200.00
1
$ 4,200.00
CASHIER System End User Training Preparation
$4,200.00
1
$ 4,200.00
One Trip for End -User System Training (Not to Exceed)
$2,000.00
1
$ 2,000.00
One Trip for System Installation (Not to Exceed)
$2,000.00
1
$ 2,000.00
Total Amount
$53,452.46
II. SOFTWARE LICENSE QUANTITIES:
Quantity of 4 each:
A. CASHIER Workstation Module
III. Quantity of 1 each:
A. CASHIER Control Station Module
SII Purchase and Software License Agreement 6
04/94
PROPOSED TME SCHEDULE
Contract Execution
Training
Specifications Writing
Specifications Acceptance by the City of Lubbock
CASHIER System Coding
Software Delivery
System Installation
System Acceptance Testing
PROJECTED DATES
8/2/94
8/12/94
9/8/94
9/9/94
7/25/94
8/2/94
8/2/94
8/5/94
8/4/94
8/24/94
8/29/94
8/29/94
9/2/94
9/6/94
9/20/94
SII Purchase and Software License Agreement 7
04/94