Loading...
HomeMy WebLinkAboutResolution - 2046 - Cover Sheet - TDHPT - I27 Broadway Underpass Reconstruction Plans - 06/14/1985JWF:rm RESOLUTION Resolution 12046 Agenda Item #21 June 14, 1985 THAT the Mayor of the City of Lubbock is hereby authorized and directed to indicate the approval of the City of Lubbock by his signature as Mayor on behalf of said City signed upon the Cover sheet for I-27 Broadway Underpass Reconstruction Plans. This project is being done by the Texas Department of Highways and Public Transportation and said Department has requested approval of the City of Lubbock for said plans, and this Resolution is to authorize such approval by the signature of the Mayor as aforesaid. Passed this 14th ATTEST: C I � �- i "f Rene to Boyd, City Set-retNery day of June , 1985. APPROVED AS TO CONTENT: Larry HofrAaK, Di ect of Trans- portatio and City Engineer APPROVED AS TO FORM: J- It.,ta)t IJA4�t� J. hArth Fullingim, ssistent ity Att rney Nord s ...AW N R Y--' -KAI I-IRO�=- Resolution #2046 rllil� IIIIIIIIIIIIIt Iilivllililily� � i®als i� The Software Company MANAGEMENT SCIENCE AMERICA, INC./3445 PEACHTREE RD., N.E./ATLANTA, GEORGIA, U.S.A. 30326 SOFTWARE SYSTEM AGREEMENT Customer Name &Address: City Of Lubbock P. O. Box 2000 Lubbock, Texas 79457 If Customer executes this Agreement on or before Jurne 30 1915, Management Science America, Inc. ("MSA") grants to Customer, and Customer accepts, on the terms and conditions set forth on the reverse side, the right to use and receive support for the following MSA software systems (consisting of computer programs and associated documentation hereinafter collectively and individually referred to as the "System"): System and Version SEE EXHIBIT A, PARAGRAPH A.1. The System shall be initially installed on the following equipment: Manufacturer: II U, Model: 4381 Facility location: 916 Texas, Lubbock, Texas 79457 Exhibits A and B and Agreement Addendum are attached hereto and made a part hereof. MANAGE M T SCIENCE AMERICA, I CITY' LU Name Signed: Name Signed: Name Printed: Harry R. Howard Name Printed: 1=44 License Fee Title: Vice President Title: f//,.V. V:2A V Date: June 3 19 85 Date: d — �"7 �8� 19 _ UNTIL EXECUTED BY MSA IN ATLANTA, GEORGIA, THIS AGREEMENT SHALL CONSTITUTE AN OFFER BY CUSTOMER. 13185US ATL060385/LDH:kl 1. SUPPORT. MSA shall provide Customer with the following support: (a) MSA shall provide personnel to assist Customer with the installation and implementation of the System at Customer's computer facility location. To ensure that the System has been properly entered in Customer's program library and functions in accordance with the specifications contained in the documenta- tion delivered by MSA, MSA shall, using test data supplied by MSA, demonstrate that the System is operable. If the installation and implementation services exceed forty (40) hours per System, MSA shall, at Customer's request, use its best effortsto provide additional services. Customer shall pay MSA for all addi- tional services at MSA's hourly ratesthen in effect. Customer shall reimburse MSAfor all reasonable travel and living expenses incurred by MSA in rendering all services. (b) Fora period of one (1) year from the date of this Agreement: MSA shall provide Customer, on atimely basis and at no additional charge, with updates necessary for the System to continue to accomplish its principal computing functions and with updates reflecting improvements made to the System by MSA. If Cus- tomer notifies MSA that it suspects an error in the program logic or documentation of the System, MSA shall use its best efforts to confirm the existence of the error and correct it. If MSA and Customer ultimately determine that no such error exists, Customer shall pay MSA for its services at MSA's hourly rates then in effect and reimburse MSA for all reasonable travel and living expenses incurred by MSA in rendering such services. 2. PAYMENT. said invoice within en When each System is installed pursuant to Paragraph -1 (but no later than one (1) year from the date of this Agreement), MSA shall invoice Customer for the remaining ten per 's license fee and Customer shall pay said invoice within ten (10) days after its date. The license fee and all other amounts mentioned in this Agreement are in U.S. Dol ars a les use or other taxes, all of which shall be paid by Customer except for taxes on MSA's net income. Any amount payable to MSA pursuant to this Agreement and not pai invoice date 3. USE. . There shall be no other use of the System. Customer shall use the System initially at the computer facility designated on the reverse side. Customer may move the use of the System to another of Customer's facilities but for the license fee indicated on the reverse side Customer shall use the System at only one of Customer's facilities. If Customer processes the data of any subsidiary or if MSA authorizes any other party to use or have access to the System, System documentation or any related material, Cus- tomer and such subsidiary or party shall acknowledge in writing to MSA that they are bound by this Agreement and are jointly and severally liable to MSA for any breach of this Agreement by such subsidiary or party. Unless otherwise stated in this Agreement, cross application system -type modules, such as EASYSCREENTM and/or INFORMATION EXPERTIm Modules, licensed for use with a particular System shall be used only with that System. 4. WARRANTY. MSA warrants to Customer that the System furnished by MSA functions in accordance with the specifications contained in the System documentation delivered to Customer underthis Agreement. This warranty is dependent upon Customer's installation of all MSA updates to the System. MSA'S WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. PROPERTY RIGHTS. MSA represents that it has authority to enter into and perform its obligations under this Agreement. All copyright, trade secret and other property rights in and to the System and System documentation shall remain vested in MSA. 6. LIMITATION OF LIABILITY. MSA's liability for damages, excluding liability for patent or copyright infringement, shall not exceed the license fee paid by Customer for the particular System in- volved. MSA shall not be liable for lost profits or other incidental or consequential damages under any circumstances whatsoever. MSA also shall not be liable for any claim or demand against Customer by anythird party except for patent or copyright infringement and then only if MSA shall have received timely written notice of such claim or demand and an opportunity to assume or participate in the defense against such claim or demand. 7. NONTRANSFERABILITY. Customer shall not, in whole or in part, assign, sublease, extend, absorb or otherwise transfer this Agreement, the System, System documentation, any copy of the foregoing, or any right granted hereunder. As used in this Agreement, "Customer" means the specific corporation that executed this Agreement. Customer may make one copy of the System to be used solely for archival or back-up purposes and additional copies of the System documentation solely to enable it to utilize the System. Customer shall ensure that the proprietary, copyright and trade secret notices contained in or placed upon the System and System documenta- tion are affixed to any such copies in such manner and location as to give reasonable notice of the proprietary, copyright and trade secret claims and protections of MSA. Customer shall have no other right to copy the System or System documentation. 8. PROTECTION AND SECURITY. Customer shall not disclose or provide, or otherwise make available, the System, System documentation, this Agreement, or any other confidential material of MSA (whether obtained at a user meeting or otherwise), in whole or in part, except to MSAs employees in the scope of their employment and in confidence to other persons during the time such persons are on Customer's premises for purposes related to Customer's use of the System and are subject to Customer's security and control. Customer shall take all appropriate action, whether by instruction, agreement or otherwise, to satisfy its obligations underthis Agreement with respect to the use, copying, protection and security of the System and System documentation and all other confidential material of MSA. 9. MISCELLANEOUS. For purposes of Paragraphs 3, 5, 7, 8 and 9 of this Agreement, "System" includes all updates and modifications to the System and System documentation and all derivative works. If Customer materially breaches any of its obligations under this Agreement, MSA may, in addition to any other remedies it may have, terminate Customer's rights hereunder. Customer shall, within seven (7) days after such termination, remove the System from its computer program libraries, return the System and System documentation to MSA, and certify in writing to MSA that it has complied with the foregoing. The obligations of Customer under this Agreement shall survive any such termination. This Agreement supersedes all prior agreements and understandings between MSA and Customer pertaining to the System and can be changed only by a writing executed by the party against whom such change is sought to be enforced. Unless otherwise agreed in writing between MSA and Customer, Customer shall not provide any third party with any support for the System. This Agreement shall be governed by the laws of the State of Sema+ Customer shall have sole responsibility for the propriety, confidentiality and use of data maintained by the System. + Texas 13185US Resolution #2046 Exhibit A ATTACHED M AND MADE PART OF a Software System Agreement between Management Science America, Inc. ("MSA") and the City of Lubbock ("Customer") for the acquisition of the right to use certain of MSA's software systems specified in this Exhibit A. A.1. System and Version License Fee BC302 - MSA General Ledger/Budgetary Control System $177,000.00 - IBM,/OS online Realtime (CICS) Version M220 - EASY-PIJW Module 30,000.00 BC520 - Installation Under ADR/DA6TACCM/DB (when 15,500.00 available) AP302 - MSA Accounts Payable System - IBWOS online 76,000.00 (CICS) Version with General Ledger Interface Module AP520 - Installation Under ADR/DATACCM/DB (when 15,500.00 available) HR452 - MSA Payroll/Personnel Management & Reporting 173,100.00 Systems - IBR/o5 Online Realtime (CICS) (Not for Profit) Version with General Ledger Interface and Position Control Modules HR520 - Installation Under ADR/DATACOVDB (when 15,500.00 (available) PH302 - MSA Purchasing System - IBNVOS Online Realtime 115,000.00 (CICS) Version PH520 - Installation Under ADR/DATACa+W (when 15,500.00 available) IM302 - MSA Inventory Management System - IBM/OS online 73,000.00 (CICS) Version with General Ledger Interface Module 114520 - Installation Under ADR/DATACWbB (when 15,500.00 available) FA302 - MSA Fixed Assets Accounting System - IBM/06 69,000.00 Online (CICS) Version with General Ledger Interface Module FA520 - Installation Under ADR/DATAMN/DB (when 15,500.00 available) MM720 - MSA EXPERTLIW, as specified in and governed by the 3,000.00 attached Agreement Addendum Subtotal $809,100.00 less Volume Discount (310,000.00) WrAL $499,100.00 Page 1 of 8 A.2. Customer shall return MSA's bid bond within ten (10) days after Customer's receipt of this Agreement executed by both parties hereto. A.3. Within seven (7) days of Customer's execution of this Agreement, MSA shall provide to Customer a performance bond in the amount of one hundred percent (100%) of the System's license fee. MSA shall satisfy the conditions of the performance bond by installing and demonstrating the System to be fully operable pursuant to the provisions of Paragraph 1.(a). Upon acceptance by Customer, but in any event no later than forty-five (45) days after MSA has installed and demonstrated the System, Customer shall provide to MSA a written statement that the conditions of the performance bond have been satisfied with respect to said installa- tion and demonstration. Customer's sole criterion for evaluating the demonstration of the System is that the System functions in accordance with the MSA warranty contained in this Agreement. A.4. All materials shipped to Customer by MSA shall be F.O.B. Destination. A.S. Fbr a period of eighteen (18)months from the date of this Agreement, MSA shall provide unlimited access for Customer's personnel to attend Implementation Training sessions for the System scheduled by MSA in accordance with MSA's then -current Education Course Catalog. MSA reserves the right to limit attendance based on classroom space availability. Customer understands that in order to be entitled to the training specified in this Paragraph A.S., Customer must be operating under the support provisions of this Agreement or a subsequent support agreement with MSA. A.6. MSA's current standard rate for support services referred to in this Agreement is One Thousand Two Hundred Dollars ($1,200.00) per day. A.7. As used in Paragraph 1. of this Agreement, the phrase "reasonable travel and living expenses" shall be subject to the following limitations: a. Air travel by Coach class, whenever possible; b. Hotel or motel accommodations at reasonable rates; c. MSA's then -current meal allowance, presently $22.00 per person, per day; d. Ground transportation to and from airports, hotels or Customer's locations, as required; and e. Parking fees and tips, as required. A. 8. At the end of the one (1) year period specified in Paragraph 1.(b) of this Agreanent, Customer shall have the right to obtain support for the System for such prices as MSA shall then be charging and on such terms and conditions as MSA shall then be imposing. Page 2 of 8 A.9. Paragraph 2. (Payment) is deleted in its entirety and replaced with the following: "a. Concurrently with Customer's execution of this Agreenent, MSA shall invoice Customer for fifty percent (508) of the total license fee and Custcmer shall pay said invoice within ten (10) days after its date. b. Forty-five (45) days after installation of each System, but in any event not later than April 20, 1986, MSA shall invoice Customer for twenty-five percent (258) of the total license fee for each such System and Customer shall pay each invoice within ten (10) days after its date. c. Upon completion of Customer's thirty (30) day parallel test of live data for each System, but in any event not later than February 18, 1986 for BC302, M220, AP302, HR452, and FA302, and April 20, 1986 for PH302 and 114302, MSA shall invoice Customer for twenty percent (208) of the total license fee for each such System and Customer shall pay each invoice within ten (10) days after its date. d. Upon delivery to Customer of Installations Under ADR/DATACOM/DB for each System, but in any event not later than three (3) months after general availability of Installation Under ADR/DATACCM/bB for each System, MSA shall invoice Customer for the remaining five percent (58) of the total license fee for each such System and Customer shall pay each invoice within ten (10) days after its date. e. Time is of the essence in this Agreement and no waiver by MSA of any default shall constitute a waiver of any other default of the Customer or a waiver of any of MSA's rights. If Customer shall fail to perform any of its obligations under this Agreement, such event shall constitute a default by Customer, and (a) at the election of MSA, any remaining unpaid payments shall at once be due and payable upon ten (10) days' notice sent by registered mail; (b) MSA may elect to pursue any remedies for payment or damages it may have under applicable law; and (c) Customer's right to use the System shall immediately cease. Customer agrees to return the System and all related materials within a period of ten (10) days following Customer's termination, and Customer acknowledges that its nondisclosure and confidentiality obligations under this Agreement survive any tenmination of Customer's right to use the System. The license fee and all other amounts mentioned in this Agreement are in U.S. Dollars and do not include any sales, use or other taxes, all of which shall be paid by Customer except for taxes on MSA's net income. MSA acknowledges Customer's representation that Customer is exempt from such taxes pursuant to Article 20.04 of the Texas Limited Sales, Excise and Use Tax Act. Any amount payable to MSA pursuant to this Agreement and not paid within thirty (30) days after invoice date shall bear interest at the rate of 1-1/28 per month, or the maximum legal rate if less. All costs of collection, including reasonable attorney's fees, shall be paid by Customer. f. Schedules of installation, test, acceptance and/or payment may be changed with the prior written consent of both MSA and Customer." Page 3 of 8 A.10. Documentation, referred to in Paragraph 2. of this Agreement, consists of the following: One (1) DCI - Programmer's Guide One (1) ISP Manual Six (6) volusmes of MSA Accounts Payable System documentation Four (4) volumes of MSA Fixed Assets Accounting System documentation Seven (7) volumes of MSA General Ledger/Budgetary Control System documentation Fifteen (15-) volumes of MSA Payroll/Personnel Management & Reporting Systems documentation Three (3) volumes of MSA Inventory Management System documentation Three (3) volumes of MSA Purchasing System documentation MSA shall deliver to Customer, as part of the initial installation services provided pursuant to Paragraph 1.(a) of this Agreement, three (3) sets of documentation for the System. A.U. The first sentence of Paragraph 3. (Use) is deleted in its entirety and replaced with the following: "Customer shall have a nontransferable and nonexclusive license to use the System only to process its own data and the data of Customer's departments, agencies, and political subdivisions (hereinafter referred to as "subsidiary" or "subsidiaries")." A.12. The System, as initially installed pursuant to Paragraph 1.(a) of this Agreement, shall operate in conformance with the representations contained in MSA's response to Customer's Request For Proposal No. 8382; provided, however, that MSA's response is subject to the clarifications and amendments set forth in Exhibit B attached hereto and made a part hereof. A.13. MSA warrants that it is the owner of the System and related documentation and will defend, at its expense, any action brought against Customer to the extent that it is based upon a claim that the System infringes upon a United States Copyright or Patent. MSA shall pay such attorneys' fees and damages as shall be finally awarded against Customer in such action(s) which are attributable to such claims, provided however, that MSA's obligation hereunder is dependent upon the Customer's notifying MSA in writing of such claim promptly for MSA to fully participate in the defense of such claim, or at its option agree to any settlement of such claim. If the System becomes, or in MSA's opinion is likely to became, subject of a claim of infringement of a United States Copyright or Patent, MSA may, at its option, (a) procure for Customer the right to continue using the System or related documentation, (b) replace or modify then to make them noninfringing, or (c) grant to Customer a credit for the unused portion of the System license fee, based upon amortization over a five year period and accept return of the System and related documentation. MSA shall, however, have no liability for any claim of Copyright or Patent infringement based on: (1) use of programs or data not furnished by MSA, or (2) use of any programs or documentation delivered hereunder in a form other than as delivered by MSA, if such change in form is the cause of the claimed infringement. This paragraph Page 4 of 8 sets forth the complete liability of MSA with respect to infringement of any Copyright or Patent by the System and related documentation or any part thereof. A.14. MSA shall indemnify and hold Customer ha mless frau all liability in the event of injury to persons or damage to tangible property arising out of MSA's proven negligence in the performance of this Agreement. The parties recognize that the preceding indemnity shall not apply to damage to or loss of data files or records that could have been reconstructed had Customer- maintained source and/or back-up materials and information. Customer shall indemnify and hold MSA hanuless from all liability in the event of injury to persons or damage to tangible property arising out of Customer's proven negligence in the performance of this Agreement. A.15. Insurance. MSA shall maintain at its own expense for the life of this Agreement the following insurance: a. worker's Compensation Insurance including Occupational Disease and Exployer's Liability Insurance with a minimum limit of $100,000 with respect to all of MSA employees and agents entering upon the property of Customer, and MSA shall defend, protect, and save harmless Customer from and against all claims suits, and actions arising from any failure of MSA to do so. b. Comprehensive General Liability Insurance with minimum limits of $500,000 per person, $500,000 per accident for bodily injury liability; and $500,000 per accident, $500,000 aggregate for property damage liability. c. Contractual Liability Insurance with minimum limits of $500,000 per person, $500,000 per accident for bodily injury liability; and $500,000 per accident, $500,000 aggregate for property damage liability. This coverage may by endorsement to the Comprehensive General Liability Policy. d. Automobile Liability Insurance for all vehicles with minimum limits of $500,000 per person, $500,000 per accident for bodily injury liability; and $500,000 per accident for property damage liability. e. Excess Liability Insurance with a minimum limit of $1,000,000 which follows the foam of the above-mentioned policies. Within thirty (30) days from the date of this Agreement, MSA shall provide to Customer a certificate of insurance, which will designate Customer as the certificate holder and will provide that the issuing canpany shall endeavor to give Custaner thirty (30) days written notice of cancellation. MSA shall provide Customer written notice of cancella- tion no later than thirty (30) days after MSA's receipt of cancellation notice by the issuing caYpany. A.16. Subject to the confidentiality provisions of this Agreement, the Freedom of Information Act (5 U.S.C. S552(b)(4)) and any other applicable law or regulation, MSA shall allow Customer, and its duly authorized representa- tives, access to its books, documents and records related to this Agreement to the extent necessary to verify and/or document amounts Page 5 of 8 payable by Customer under this Agreement until the expiration of four (4) years after the services are furnished by MSA under this Agreement. By granting such access, MSA does not intend to, and shall not be deemed to, waive, or in any way affect, the confidentiality protections afforded to its trade secrets and other proprietary and confidential information under the provisions of this Agreement and other applicable laws and regulations, and any person obtaining access to MSA's books, documents and records hereunder shall by such act agree to, and shall be deemed to be bound by, such confidentiality provisions. If it should be determined by competent administrative or judicial authority that the applicable laws and regulations, as described above, do not apply to the services rendered by MSA, then this acknowledgement by MSA shall be of no effect. A.17. Paragraph 8. (Protection and Security) of this Agreement is amended to include the following wording: In the event Customer is required to disclose the System, System documentation, this Agreement, any related material, or any part thereof, pursuant to an written opinion issued by the Attorney General of the State of Texas requiring such disclosure pursuant to -Article 6252-17a, Texas Civil Statutes, Customer shall be held harmless for such disclosure provided that Customer defers such disclosure for the maximum time period allowed by such State statute, that Customer has, within 24 hours of the request, made all appropriate effort to contact one of the following by telephone: 1. Harry Howard 404-239-2000 2. Louis Parker 404-239-2000 3. Lucia Duncan Harrison 404-239-2000 provided further that Customer has confirmed in writing the notice of the request for disclosure, and that MSA shall have been given an opportunity to defend against such disclosure. A.18. Except for the provisions of Paragraphs 5., 7., and 8., each party will be excused from performance under this Agreement only for such period of time the failure to perform is caused by or attributable to any event or circumstance beyond the direct control of either party. It is further provided that if MSA shall fail to make any delivery required by this Agreement as a result of any such event or circumstance beyond its own direct control, it shall have the right to make such delivery within a reasonable time after the cause of such delay has been removed, and Customer shall accept such deferred delivery. A.19. So long as Customer is performing its obligations hereunder, Customer shall quietly possess and use the System in accordance with the provisions of this Agreement. Subject to the preceding sentence, no transfer, grant or assignment by MSA shall interfere with Customer's right of quiet possession and enjoyment. A.20. Tine parties hereto reserve the right to make amendments or modifications to this Agreement by written amendment signed by both parties. No amendmexits shall be effective unless signed by an MSA representative Page 6 of 8 authorized to bind the corporation and by Customer's representative authorized to bind Customer, or their designees authorized by written notice. A.21. MSA shall render all services under this Agreement in accordance with the provisions of applicable Federal, State and local laws, rules and regula- tions which are in effect at the time such services are rendered and of which MSA has actual notice. A.22. Customer shall provide to MSA, within thirty (30) days of the date of execution of this Agreement, an opinion from its legal counsel providing the following information: a. He/She is counsel for Customer. b. He/She has reviewed the Software System Agreement between MSA and Customer. c. He/She acknowledges that he/she has been requested by MSA to address himself/herself to the legal consequences of changing the governing law of this Agreement from Georgia to the State of Texas. d. He/she has reviewed the laws of the State of Texas, and, in his/her opinion, the Agreement is valid and binding an Customer under the laws of the State of Texas and will be enforced by the courts of the State of Texas in accordance with its terms. A.23. Both parties hereto, in the performance of this Agreement, will be acting in their individual capacities and not as agents, employees, partners, joint ventures or associates of one another. The employees or agents of one party shal not be deemed or construed to be the employees or agents of the other party for any purpose whatever. A.24. All notices or consents, wherever required or given under this Agreement, shall be sent by registered or certified mail to the following parties at the addresses indicated below. Notices so transmitted shall be deemed effective on the seventh day following such posting in the U.S. Mail. Customer John C. AldredQe Information Services City of Lubbock 916 Texas Lubbock, Texas 79757 MSA Harry R. Howard Vice President Management Science America, Inc. ("MSA") 3445 Peachtree Road, N.E. Atlanta, Georgia 30326 Either party hereto shall have the right to change any representative or address it may have given to the other party by giving such party written notice of such change. Page 7 of 8 r A.25. Each party has full power and authority to enter into and perfozm this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. Each party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. Page 8 of 8 Resolution #2046 EXHIBIT B ATtACHED TD AND MADE PART OF a Software System Agreement between Management Science America, Inc. ("MSA") and City of Lubbock ("Custamer") for the right to use the MSA software systems specified in Exhibit A to this Agreement. MSA's response to Customer's Request Fbr Proposal No. 8382 is amended as follows: B.1. Change Code: a. "A" shall mean that the "Correct Response" is to be in addition to the original response. b. "R" shall mean that the original response is to be deleted in its entirety and replaced with the "Correct Response". B.2. Section VI: Change Page Item Code Correct Response VI.15 25.a. A The MSA AP System provides thirty (30) characters. VI.15 25.a. -f. A The MSA IM System provides four (4) lines of thirty (30) characters each for vendor name and address. VI. 29 4 VI. 40 10 vi. 41 15 VI. 43 5 VI. 44 7 VI.46 After through Heading VI.50 vi. 70 21 R P* Items in the future are not posted by the MSA M System directly but held for processing. R P* The MSA CZ System handles manually issued checks, but not frau other systems. R A* the next release of the MSA GL System will provide this feature. R A* With AP 5.0 general release. R P* Use of an MSA Information Expert report from the MSA IM System could serve this purpose. A Total integration of the MSA AP and Purchasing Systems is targeted for mid -year 1986, and integration between the MSA AP, Purchasing, and BC Systems is anticipated to be canpleted by the end of 1986. R X Page 1 of 2 I B.2. Section VI (Continued): Change Page Item Code Correct Response VI.70 25 R P* Physical inventory discrepancy reporting can be accamplished if these discrepancies are adjusted through the ADJUSTYMT SCREENS (vs. PHYSICAL INN NTORY SCREENS) in the MSA IM System. MSA's Information Expert can produce these reports. B.3. Vendor Questionnaire: Change Section Item Code Correct Response IMPLIIMENTATION 13 A Assembler language is also used. 19.b. R Object code is provided for all applica- tions. Source code is provided for all applications except for certain system -type software programs, such as MSA's Information Expert. HAROWARE; 24 R General Ledger - 21.9 (Batch) Burroughs (Medium) Page 2 of 2 � I b To sornfim CW& 3445 F RD., N.B./ASA►. Com, USA 30326 ' / • i' 1' :Y =14W Resolution #2046 EXTENDED - FEE $3,000.00 TOTAL: $3,000.00 *FOR ORDERS RECEIVED PRIOR TO JUNE 30, 1985 AND OONDITIONF'I) UPON A FULLY FMTPED SOFTWARE; SYSTEM AGREEMENT EETW3EN MSA AND CUSTOMER. Customer agrees to accept and use ordered MSA Micro/Mainframe Systems, consisting of camputer programs and associated documentation, (hereinafter collectively "MSA Products") in accordance with the license terms set forth below and any non -MSA products offered by MSA in accordance with the manufacturer's license delivered with such products. 1. SUPPORT. (a) For a period of one (1) year from the date of this Agreement Addendum., MSA shall provide Customer, on a timely basis, with updates necessary for EXPER LINK or PC Data Fhtry to continue to accomplish its principal camputing functions and with updates reflecting improvements made to EXPERTLINK or PC Data Entry by MSA. Any updates provided to Customer shall be subject to the provisions of this Addendum as if they had been part of the original MSA Product provided hereunder. (b) Customer shall be entitled to introductory Customer education for EKPERTLINK at regularly scheduled classes at MSA's regional training facilities in accordance with MSA's educational credit allowance for the number of units of EXPERTLINK acquired. Page 1 of 3 060385US LICENSE ORDER MSA SYSTEMS FFA MM720 - EXPERTLINKK 1 Lbit(s) $ 3,000.00 Up to 25 Units 25,000.00 Up to 50 Units 40,000.00 Up to 100 Units 75,000.00 MM730 - PC Data Entry Up to 25 Units $ 40,000.00 Up to 50 Units 65,000.00 Up to 100 Units 115,000.00 MM740 - MSA PC Software Up to 25 (knits 12,500.00 Up to 50 Units 22,500.00 Up to 100 Units 30,000.00 Resolution #2046 EXTENDED - FEE $3,000.00 TOTAL: $3,000.00 *FOR ORDERS RECEIVED PRIOR TO JUNE 30, 1985 AND OONDITIONF'I) UPON A FULLY FMTPED SOFTWARE; SYSTEM AGREEMENT EETW3EN MSA AND CUSTOMER. Customer agrees to accept and use ordered MSA Micro/Mainframe Systems, consisting of camputer programs and associated documentation, (hereinafter collectively "MSA Products") in accordance with the license terms set forth below and any non -MSA products offered by MSA in accordance with the manufacturer's license delivered with such products. 1. SUPPORT. (a) For a period of one (1) year from the date of this Agreement Addendum., MSA shall provide Customer, on a timely basis, with updates necessary for EXPER LINK or PC Data Fhtry to continue to accomplish its principal camputing functions and with updates reflecting improvements made to EXPERTLINK or PC Data Entry by MSA. Any updates provided to Customer shall be subject to the provisions of this Addendum as if they had been part of the original MSA Product provided hereunder. (b) Customer shall be entitled to introductory Customer education for EKPERTLINK at regularly scheduled classes at MSA's regional training facilities in accordance with MSA's educational credit allowance for the number of units of EXPERTLINK acquired. Page 1 of 3 060385US •2. PAYMENT. Anything in the Software System Agreament to the contrary notwithstanding, upon acceptance of this Order by MSA, MSA shall invoice Customer one hundred percent (100%) of the Total above specified. Customer shall pay said invoice within ten (10) days of its date. MSA shall ship items ordered pursuant to this Agreement Addendum upon receipt of payment. The fee and all amounts mentioned in this Addendum are in U.S. Dollars and do not include any freight charges, sales or use taxes, any duties, and any similar assessments, all of which are the sole liability of, and shall be paid solely by, Customer. Any amount payable pursuant to this Addendum and not paid within thirty (30) days after the date of the invoice for said amount shall be delinquent and shall bear interest at the rate of one and one-half percent (1-1/2%) (or the maximum legal rate if less) for each month or portion thereof it is delinquent; Customer shall pay all such interest, as well as reasonable and necessary collection costs and attorney fees. 3. USE. Customer shall have a nontransferable and nonexclusive license to use each MSA Product.only to process its own data and the data of its subsidiaries. For the fee indicated on the fao:e of this Agreement Addendum, each MSA Product shall be used only on the number of microcomputers corresponding to the licensed number of units of that Product shown on the face of this Addendum. In no event shall any MSA Product be used on any microcomputers in excess of the number shown an the face of this Addendum. If so requested by MSA, Customer shall identify to MSA the microcomputers on which MSA Products are being used. There shall be no electronic transmission of any MSA Product. MSA Products shall be used only to link those MSA online mainframe systems licensed to Customer by MSA and those online mainframe systems developed in-house by Customer. Customer recognizes and agrees that Customer is responsible for purchasing and servicing all microcomputer processors, peripherals, and appropriate cables. 4. WARRANTY. MSA warrants for one (1) year from the date of this Agreement Addendum that EXPERTLINK and PC Data Entry substantially conform with the program specifications contained in the MSA documentation delivered under this Agreement when linked to MSA online mainframe systems licensed to Customer, subject to proper installation and use on the hardware and operating system for which they were designed, and that the media on which MSA Products are furnished will be free from. defects in material and workmanship under normal use. All other MSA Products ordered pursuant to the Addendum Agreement are similarly warranted by MSA for a period of ninety (90) days from delivery to Customer. Upon payment for all ordered MSA Products and any non -MSA products offered by MSA, MSA assigns to Customer, to the extent that it has the right to do so, any warranty issued by the manufacturer of ordered non -MSA products. MSA'S WARRANTIES SET FORTH IN THIS ADDEND(M ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR DTLIED, INCLUDING, BUT NOT LMTED To, ANY IMPLIED WARRAN`N OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. PROPERTY RIGHTS. MSA represents that it has authority to enter into and perform its obligations under this Agreement Addendum. All copyright, trade secret and other property rights in and to the MSA Products and Product documentation shall remain vested in MSA. 6. LIMITATION OF LIABILITY. MSA's liability for damages for any cause shall not exceed license fee paid by Customer to MSA for the particular copy of the MSA Product involved. In no event shall MSA be liable for lost profits or incidental or Page 2 of 3 060385US consequential damages under any circumstances whatsoever. Customer's sole remedy with respect to any defect or failure of any non -MSA product shall be to proceed against the manufacturer of any such product under whatever warranties are provided by that manufacturer. 7. NONTRANSFERABILITY, PROrMMON AND SECURITY. Neither this Agreement Addendum, any MSA Product, nor any right granted hereunder, shall be assigned, subleased, extended, absorbed or otherwise transferred in whole or in part in any manner, by Customer. As used in this Agreement Addendum, "Customer" means the specific corporation which has executed this Agreement Addendum. Customer agrees that it shall not oopy, duplicate, or reproduce any MSA Product, Product documentation, or portion thereof. Customer shall not in any form or manner disclose, provide or otherwise make available in whole or in part, any MSA Product, Product documentation, any related material or this Agreement Addendum to persons other .than MSA employees in the scope of their employment, except in confidence during the time such persons are on Customer's premises and are subject to Customer's security and control. Customer shall take all appropriate action, whether by instruction, agreement or otherwise and with its employees or others, to insure protection, confidentiality and security of LSSA Products and to satisfy its obligations under this Addendum. 8. MISCELLANEOUS. For purposes of Paragraphs 3, 5, 7 and 8 of this Agreement Addendum, 'MA Products" includes all updates and modifications to the MSA Products. and Product documentation and all derivative works. If Customer materially breaches any of its obligations under this Agreement Addendum, Customer's rights hereunder may, at the written election of MSA, be terminated. Customer shall within seven (7) days of the termination remove MSA Product from its computer program libraries and return same to MSA. Termination of Customer's rights hereunder shall not terminate Customer's obligations including without limitation those under Paragraphs 5 and 7 or any other rights and remedies MSA may have as a result of. Customer's breach. This Agreement Addendum, is conditioned upon the continued licensed use by Customer of MSA mainframe computer systems pursuant to a fully executed Software System Agreement between Customer and MSA. This Addendum can be changed only in writing executed by the party against wham such change is sought to be enforced. This Agreement shall be governed by the laws of the State of Georgia, USA. MANAGEMENT SC AMERICA, Name Signed:. �� Name Printed: Harry R. Howard Title: Vice President Date: June 3, 1985 CITY OF LUBBO Name Signed: Name Printed: Title: A zd /1 Date: - /4�- 2-5 Address: 916 Texas Lubbock, Texas 79457 UNTIL SIGNED BY MSA IN ATLANTA, GEORGIA, THIS ADDEND(24 SHALL CONSTITUTE AN OFFER BY CUSTOMER. Page 3 of 3 060385US Resolution #2046 �® APPLIED DATA RESEARCH, JNC. Route 206 and orchard Road, CN -8 Princeton, New Jersey 08540 1201) 874-9000 BASIC AGREEMENT FOR PROPRIETARY SOFTWARE PRODUCTS Name and Address of Customer: Basic Agreement No: C I TY OF. L,U1313OCK OFFICE OF.PURCHAS1NG MANAGER 1 625 13TH STREET, ROOM L-04 LUBDOCK, TEXAS 79401. 1. LICENSE: 1.1 In accordance with the terms of this Basic Agreement For Proprietary Software Products (hereinafter "Agreement"), Applied Data Research, Inc. (hereinafter "ADR") agrees to grant to Customer and Customer agrees to accept from ADR a nonexclusive license for the Product(s) which is ordered by Customer by means of an Order Under Basic Agreement (hereinafter "Order"), provided such Order is accepted by ADR. Said Order shall grant to Customer a license to operate the Product(s) on the computer(s) at a specified installation site (hereinafter "Site License") or on a specified number of computer(s) at a specified installation site (hereinafter "Computer License"). The license shall be a Site License unless otherwise specified on the Order. The duration of a license may be permanant or for a limited period of time. The Order will specify the duration of said license and whether any Product(s) stated therein is licensed pursuant to a Com- puter License. For the purposes of this Agreement, any Order, and/or any Maintenance Agreement, the word "Product" shall mean ADR's computer program(s) in machine-readable form and the related documentation. 1.2 An Order shall be submitted on an ADR Order Under Basic Agreement form. Said Order shall identify: the computer(s), by make and model, the operating system(s) on which the relevant Product(s) will operate, the location of said computer(s) and this Agreement by number. An accepted Order shall be subject to the terms and conditions of this Agreement. 2. TERM: This Basic Agreement shall be effective on the date it is accepted by ADR at Princeton, New jersey, and shall remain in force permanently unless terminated in accordance with the provisions set forth herein. 3.. PAYMENTS:. All payments shall be remitted in U.S. dollars within thirty (30) days of Customer's receipt of an invoice. Said invoice shall be issued in accordance with the payment terms specified on the relevant Order. 4. THE PARTIES HAVE READ THE FOUR PAGES OF THIS AGREEMENT AND AGREE TO BE BOUND BY ALL ITS TERMS. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THEM AND SUPERSEDES ALL PROPOSALS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THEM RELATING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE PRODUCT(S) ORDERED BY CUSTOMER. ACCEPTED: Name (Ftease Frim) 1,2 ,gy 2 Title Date SGBC—BP-401 ADR ACCEPTED: APPLIED DATA RESEARCH, INC. Autborized Signature CAROL, A. COHEN Name VICE ' EMS I DENT Title JUNE N. VGA% Date (Page 1 of 4) 5. SECURITY AND USE OF PRODUCTS: ; . .: solely,-, and exclusively. to Customer. Access to the Prod- .. 5.1 Customer acknowledges`tl at"an ADR Product constitutes' , uct(s) shall be' limited `to Customer's employees on a proprietary information and trade secrets which are the need -to -know basis only. Customer shall neither use property of ADR. Customer shall exercise all precautions, the Product(s) for the benefit of third parties nor shall commensurate with the highest reasonable standards Customer allow third parties to use or access the Product(s). _. of -industrial -.security' for the, -protection of trade secrets and proprietary information to insure that ADR's trade 5.4 Neither a Site License nor a Computer License may be secrets and proprietary information are not disclosed. assigned,. subleased, sublicensed -sold,` offered'' foi-'sale, transferred, ;disposed - of + ieneuiT bered,' • br"= mortgaged. 5.2 Under a Site License, the Customer shall have the right .. = " to install and use the Product(s) on all computers with 5.5 Customer may make ai teasohable'_%uiidber'':of c4pi4s of which the Product is compatible at one specified instal- any computer tapes, disks, or other material provided `latign, site. ;Customer shall, have, the right upon written • by ADR, to the extent, required for Customer's exclusive potice to, .ADg to. install .and use, the; Product(s),at an, use under a.Site or Computer License. Customer agrees installation site which replaces a prior installation site .. . , not to make any copies or partial copies of any,computer for which the Product(s) was licensed Provided that Cus- ( � p , tapes, -disks, ,or other material provided by ADR for the tomer certifies to ADR in writing that the Product(s) purpose, of supplying them to third parties,. , and all full and partial copies thereof have been moved to 'the installation 'site which replaced the prior instal -,5.6.;, " lation site and that the Pr`oduct(s) -is no 'longer Installed All copies of the Product(s) made, by Customer, including "or used at the :prior installation site. The Products) and translations, compilations, ;partial copies .within modi- trtransans ati all' full' and partial 'copies thereof, shall not be installed' fications and updated u d P Works, etc., are the property of or used at any other site, except pursuant -to the imine—ADR. The Customer will reproduce and include ADR's diately preceding sentence and paragraph six (6) of this such copies in accordance with Agreement,' . The Product(s) may not be installed or used the provisions herein, any instruction contained in or ata site which is owned and/or operated by a third party., enclosed with the Product(s),' or any instruction sent For .the purposes of this Agreement, the words, "third under separate cover. party" shall mean any natural person or legal entity other than ADR and Customer. Use of the Product(s) shall be 5.7 Customer will insure, prior to destroying any media, that restricted solely and exclusively to Customer. Access the Product(s) and all copies and partial copies of - the `to ,the Products) shall be limifed' to Customer's'employees Product(s) have been erased or otherwise destroyed. on a need -to -know basis only. Customer may use the `Prod- uct(s) for its other sites, if any, via remote communications 5.8 The preprinted terms and conditions on an ADR Order access as long as Customer does not own, lease, or have form for the license of ADR's Personal Computer Soft - access to a computer upon -which the Product(s)could" ware Product(s) may vary from the terms and conditions operate at said sites. Customer shall neither -use the Prod- -stated in. this Agreement.: In the event of a conflict be- uct(s) for the benefit of third parties nor shall Customer tween the terms and conditions of this Agreement and ,allow third, parties to use or access the Product(s) whether .; the • preprinted terms and conditions ; of the Order; for or not for consideration. such •,Products; the preprinted terms and conditions of such Order shall control. 5.3 Under a Computer License, the Product(s) shall be installed and used on a specified number of computers at one ^ specified installation site. The Product(s) and all full 6. EMERGENCY RELOCATION: and partial copies thereof shall .not be installed or used Customer may relocate the Product(s) licensed under a Site on a greater number of computers than specified on the or Computer License to-. a-brac(Cgp--,recovery facility, in relevant Order(s). Customer shall have the right upon the event of an emergency�•or testing therefore, on a tem - written notification to ADR to install and use the Prod- porary basis'1or the duration of said emergency or test, uct(s) on one or. more computers (replacement computers) provided that ,Customer.p'romptly notifies ADR in writing which - replace an equivalent' number of the computers of such relocation. If ;;su6jackup recovery facility is for which the Product(s) was licensed, provided that provided by a third party, Customer and said third party Customer certifies to ADR in writing- that the Product(s) shall,e cut f.`ADR's Security A�reement prior to any -,and all full and partial copies thereof have been moved —relocation of °the-hroduct(s)-to the backup recovery facility. to the replacement computer(s) and that the Product(s) In no event shall the Product(s) be installed at more sites or is no longer installed and used on the replaced computer(s). on more computers than permitted under this Agreement _The. Product(s) and :all full _and:-paitial-copies thereof _ .and. the_relevant:.Y)r'der s).`. f _Customer relocates the shall not be installed or used on any other computer(s) Product(s) to a backup recovery facility owned or operated or at any other site, except pursuant to the immediately by, a third party, priox to the execution of ADR's Security preceding sentence and paragraph six (6) of this Agreement. Agreement by Customer' and said third party Customer The Product(s) may not be installed or used at a site shall be absolutely liable for any breach of this Agreement or on a computer(s) which is owned and/or operated while the Product(s) is either at said backup recovery by a third party. Use of the Product(s) shall be restricted facility or accessible to third parties. (Page 2 of 4) 7., 7.1 TAXES AND DUTIES:able There shall be added to any charges.payable by Customer access to its installation site(s) and computer(s) and reasonable assistance to ADR in order to, facilitate instal - amounts equal to any personal propertty tax, tariff, duties Iation of the Product(s), Iri the event Customer fails to and/or sales or use tax, or any tax in lieu thereof imposed Y Y g g agenc acting ntoeanstat provide such access or assistance, ABR may, at its option, terminate this ' Agreement and/or any Order. pursuant to with respectl to the seryentity es, rendered by ADR, the Product(s) or its use, the license of the Prod- rod uct(s) uct(s) or this Agreement itself except for taxes based on ' ADR's net income and corporate franchise.taxes. 11. DEFAULT: " 111 ADR may, at its option, terminate this Agreement and/or 7.2 Customer shall not be liable fora tax, tariff, duty, assess- any Order in the event -of a default by Customer. In the event of termination, all license and/or lease fees payable ment or a tax in lieu thereof as long as Customer is legally for the entire term of the Order(s) in question shall, upon exempt therefrom. notice and demand by ADR, immediately become due - ;;and payable: This provision ;shall not be regarded as a waiver by ADR of, any other rights to which it may be 8. PATENTS AND COPYRIGHTS: entitled • in the event of Customer's- default, but rather, 8.1 ADR agrees at its own'cost to'defend or, atits option, to' such remedy shall be in addition to any other remedy settle any claim or suit broughtgagainsi Customer on the lawfully available to ADR. issue that an ADR Product infringes a United States patent, trademark, or copyright, provided that Customer (a) noti- fies ADR promptly in writing of any such claim or suit, 11.2 In the event of termination, Customer shall immediately (b) gives ADR full information and assistance to settle - return the Product(s) to-.ADR>unencumbered and certify and/or to defend, and (c) gives ADR full ° authority to to ADR in writing that all copies and partial copies of control the defense and/or settlement of any such action. the Products) have been destroyed. ADR shall not be liable'for any costs or expenses incurred without ADR's written authorization. 113 .Default is defined to include: Customer's failure to pay any amount within 30 days after written notice to Cus- 8.2 Notwithstanding the foregoing, ADR shall not be liable tomer that the same ,is delinquent; Customer's failure to for any claim of patent, trademark, or copyright infringe- provide reasonable access or assistance to facilitate installa- ment which is based on: the use or, combination of the tion; an assignment, sale, mortgage, sublease, or sublicense Product(s) with any other software not supplied to Cus- .of the Product(s) which is made or attempted by Customer; tomer by ADR, Customer's modification of tide Product(s), if any distress, execution, or attachment against Customer or Customer's use of other than the latest available release is levied hereon or upon the Product(s) or such action is of the Product(s). attempted; if Customer shall become insolvent; the initia- tion of of bankruptcy or receivership proceedings by or 8.3 THE FOREGOING STATES THE ENTIRE LIABILITY a ain g tomer; the execution by Customer of an Assign - OF ADR AND THE EXCLUSIVE REMEDY OF CUS- ment for the Benefit of Creditors or any other transfer or TOMER WITH RESPECT TO PATENT, TRADEMARK, assignment of a similar nature; or Customer's breach of any OR COPYRIGHT INFRINGEMENT. of the other terms or conditions hereof. 11.4 In the event of default, Customer agrees to pay all ADR's 9. TITLE: reasonable attorney's fees and costs. 9.1 Title to the Product(s) shall always remain in ADR. Cus- tomer, shall keep the Product(s) free and clear of any claims, liens or encumbrances.; Should any; act of Customer 12. .EXCUSABLE DELAYS: ,purport ,to create a daim,,lien,or encumbrance on the Product(s), Customer shall immediately cause such claim,.... If ADR shall be delayed: or ..prevented from performing lien.. or .encumbrance to -be removed, and shall indemnify this Agreement due to any cause beyond its reasonable and hold ADR harmless from any damages that may result control „ such delay hall be excused during the continuance from such act. of such delay, .and the period r -of performance shall be extended to such extent as may be necessary to enable ADR to perform after the cause of delay has been removed. 9.2 ADR WARRANTS THAT IT HAS THE RIGHT TO LI- CENSE OR DISTRIBUTE ANY ADR PRODUCT OR OTHER SOFTWARE PROGRAMS WHICH IT MARKETS. • 13. ASSIGNMENT: ADR may assign the license and/or lease feepayments 10 DELIVERY AND INSTALLATION: due and/or payable pursuant to any Order or any of its other rights, and/or duties hereunder. , Customer, on re - The Product(s) will be delivered to Customer in machine- ceiving , notice from =ADR of any such assignment, shall readable form. Customer agrees that it will provide reason- abide thereby and make payments as directed. (Page 3 of 41 14. NON -WAIVER: 14.1 No delay or failure of either Party in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder. 14.2 ADR may accept any payments from any person tendering the same without thereby accepting such person as Cus- tomer hereunder or waiving any breach of covenant or provision against assignment or transfer by Customer. 15. WARRANTIES: 15.1 ADR warrants that: (a) when the Product(s) is delivered and installed it will operate on the computer(s) specified on the front of the corresponding Order in the manner as described in the relevant Product documentation; and (b) the Customer will receive the relevant ' Product docu- mentation. 15.2 ADR warrants that while the Product(s) is under ADR maintenance, ADR will: (a) maintain the Product(s) to operate in a manner as described in the relevant Product documentation; (b) supply technical bulletins and updated user guides from time to time; (c) supply Customer with improvements, enhancements, or modifications to the Product(s) which are not charged for separately; (d) cor- rect or replace the Product(s) and/or remedy any program- ming error which is directly attributable to ADR; and (e) service the Product(s) in a professional manner with qualified personnel. Customer acknowledges that said Product documentation shall change over time with sub- sequent Product releases. Customer acknowledges that said improvements, enhancements or modifications to the Product(s) shall be subject to the provisions of this Agreement as if they had been part of the Product(s) originally licensed to Customer. 15.3 ADR will exert its best efforts to correct a programming error, which is directly attributable to ADR, within a reasonable time provided that Customer notifies the ap- propriate Product Support Staff of a problem with an ADR Product by telephone or mail and that Customer provides said Support Staff with information sufficient to identify the problem. Such information includes, but shall not be limited to: error diagnostic messages, diagnostic memory dumps, operator console log, data file dumps, application program listings, and other writ- ten explanation and documentation of said problem. 15.4 ALL WARRANTIES ON THE PRODUCT(S) SHALL BECOME VOID, AND ADR SHALL BE RELEASED FROM ANY OBLIGATION OF MAINTENANCE, IF THE PRODUCT(S) IS MODIFIED BY ANYONE OTHER THAN AN AUTHORIZED REPRESENTATIVE OF ADR. 15.5 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ,WARRANTIES OF MERCHANTABILITY AND 'FITNESS FOR A PAR- TICULAR PURPOSE AND ARE THE ONLY WARRAN- TIES MADE BY ADR IN CONNECTION WITH THE PRODUCT(S) AND THE INSTALLATION ASSISTANCE, IF ANY, RENDERED BY ADR. 15.6 Customer agrees that no affirmation, representation, or warranty by any agent, employee, or representative of ADR shall bind ADR or be enforceable by Customer unless it is specifically included within this written Agree- ment. 16. LIMITATION OF LIABILITY: ADR'S LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE CHARGES PAID BY CUSTOMER FOR THE LI- CENSE OR LEASE ,OF THE RELEVANT PRODUCT(S). IN NO EVENT SHALL ADR BE RESPONSIBLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES. 17. GENERAL: 17.1 This Agreement and each Order contain the entire contract between the parties. The terms and conditions of any past, present, or future purchase order submitted by Customer which alter, modify, or conflict with the terms and conditions of this contract shall be void. 17.2 This Agreement may not be waived, altered, or modified except by written agreement signed by both of the parries. 17.3 Customer's remedies in this Agreement are exclusive. 17.4 No action arising out of this Agreement, regardless of form, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought any time within two years after the date that Customer's final payment was due. 17.5 This Agreement shall be binding when accepted by ADR in Princeton, New Jersey, and shall be governed by the laws of the State of KcWV JKOV.TEXAS 17.6 THIS BASIC AGREEMENT SUPERSEDES AND CAN- CELS ANY PRIOR BASIC AGREEMENT BETWEEN ADR AND CUSTOMER. THE TERMS AND CONDI- TIONS OF THIS BASIC AGREEMENT SUPERSEDE THOSE OF ANY PRIOR LICENSE AND ANY AMEND- MENTS THERETO AND APPLY RETROACTIVELY TO THOSE PRODUCTS LICENSED TO CUSTOMER AT ANY TIME PRIOR TO THE EXECUTION OF THIS ' BASIC AGREEMENT. 18. SEVERABILITY: . If any provision, or portion thereof, of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. (Page 4 of 4) Resolution 12046 7 APPLIED DATA RESEARCH, INC. h ROUTE 206 AND ORCHARD ROAD, CN -89 PRINCETON, NEW JERSEY 08540• (201) 874-9000 AMENDMENT TO BASIC AGREEMENT Customer Name and Address: City of Lubbock Office of Purchasing Manager 1625 13th Street, Room L-04 Lubbock, Texas 79401 Customer and Applied Data Research, Inc. (ADR) agree that Basic Agreement No. is amended as follows: 5. SECURITY AND USE OF PRODUCTS 5.2 Paragraph 5.2 is amended by inserting the words ", and a third party(s) under contract to Customer to develop, audit and/or maintain its computer systems," after the word "employees" on the twenty-second line and by inserting the following two sentences after the period "." on the twenty-third line: - "Customer shall not allow or enable such third party(s) to access the Product(s) unless such third party(s) signs ADR's standard Non -Disclosure Agreement. Nothing in the Basic Agreement or this Amendment is intended to grant Customer or a third party the right to maintain an ADR Product(s)." 5.3 Paragraph 5.3 is amended by inserting the words ", and a third party(s) under contract to Customer to develop, audit and/or maintain its computer systems," after the word "employees" on the twenty-third line and by inserting the following two sentences after the period "." on the twenty- fourth line: "Customer shall not allow or enable such third party(s) to access the Product(s) unless such third party(s) signs ADR's standard Non -Disclosure Agreement. Nothing in the Basic Agreement or this Amendment is intended to grant Customer or a third party the right to maintain an ADR Product(s)." Section 5 is amended by inserting the following paragraph, designated as 5.9, therein: 5.9 Customer shall not de -compile, de -assemble or otherwise reverse engineer any ADR Product(s) or portion thereof. 8. PATENTS AND COPYRIGHTS 8.1 Paragraph 8.1 is amended by inserting the following: "and will indemnify and hold Customer harmless from the damages finally Page 1 of 2 awarded on the issue of Infringement," after the word "copyright" on the fourth line. 12. EXCUSABLE DELAYS The paragraph of section 12 is amended by replacing the acronym "ADR" in the first line with the words "either Party" and by replacing the acronym "ADR" in the sixth line with the words "the excused Party" and by inserting the following sentence at the end thereof: "However, this section shall not apply to Customer delays in making payments to ADR.". Except as modified herein all terms of the Agreement shall remain in full force and effect and shall apply to the Amendment with the same effect as they apply to that Agreement. This Amendment is valid if signed by Customer and returned to ADR by June 30, 1985 ACCEPTED: CITY OF LU /'YG E ,Q c Nam please pri ) Titl —iel- Date ACCEPTED: APPLIED DATA RESEARCH, INC. `eC 0-! - � Authorized Signature CAROL A. COHEN Page 2 of 2 Name VICE PRESIDENT Title JUNE 5, 1985 Date ®� APPLIED DATA RESEARCH, INC. Route 206 & Orchard Road, CN -8, Princeton, New Jersey 08540 (201) 874-9000 Resolution #2046 ADR Basic Agreement No.: BA ADR Order No.: ORDER UNDER BASIC AGREEMENT FOR PERMANENT LICENSE OF PROPRIETARY SOFTWARE PRODUCTS Customer Name and Address: Customer Billing Address: Customer P.O./ C i TY OF LUB13OCK Reference No.: OFFICE OF PURCHASING MANAGER (Insert "N/A" if not required) Computer 1624 18TH STREET, ROOM L.04 LUBBOCK, TEXAS 79401 System: 4361 Attn: Operating System : MVS LICENSE SCHEDULE MAINTENANCE SCHEDULE CONTRACT NO. PRODUCT/COMPONENT SITE LOCATION FULL PRICE DISCOUNTED PRICE ADD'L. YEARS PRICE (See Reverse) DATACOM/DB WITH MUF 916 TEXAS AVE $ 104,800 $ 74,415 $15,858/ 3 YEARS CICS SERVICE FACILITY LUBBOCK, TX 18,600 13,134 2,812 if VSAM TRANS. 78401 18,200 18,558 2,903 n it PC DATACOM MFU 18,500 4,588 2,041 rr rr DATADICTIONARY 87,700 26,622 5,704 r rr DATAQUERY 20,700 14,617 3,130 rr n GRAPHICS 8,400 5,932 1,270 r n ABR/IDEAL 89,000 62,847 14,130 r n ADR/DE 11 24,500 17,801 3,890 r rr ADR/LIBRARIAN 47,500 83,542 9,157 r rr ADR/ROSCOE 57,500 40,608 10,433 r rr ADR/LOOK 42,200 29,800 8,059 r rr ADR/DL 25,900' 18,290 4,111 r n TOTAL TOTAL TOTAL ORDER TOTAL $508,500 $ 355,249 $ 88,493/ TERM AND PAYMENT: The term of this Order shall commence upon the date Customer executes this Order (Commencement Date). The Total Price is payable as follows: �]XDpC 76OpdxcklwowK (X1W.)K ixy]61K D4iwxax)3aws)dourvjdtK ft=T=4CrUcnx k'tK; 30o - 0X tXeXtyXfiX .Remix bg5*) fwyxbbt*iW *3W k)x 6viX tkeXoxxW�Wx kt3C�7eXM kvgcpKgo(�°�kykblyterrRer�nd X 9Vf9FaM fSEE ATTACHED AMENDMENT TO ORDER UNDER. � THE PARTIES HAVE READ THIS ORDER, INCLUDING THE REVERSE SIDE HEREOF, AND AGREE TO BE BOUND BY ITS TERMS. THE PARTIES FUR- THER AGREE THAT IT AND THE BASIC AGREEMENT FOR PROPRIETARY SOFTWARE PRODUCTS REFERENCED ABOVE AND EXECUTED BY THEM CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THEM. THIS AGREEMENT SUPERSEDES ANY PRIOR PROPOSALS, AGREEMENTS, COMMITMENTS, OR REPRESENTATIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCT. CUSTOMER ACKNOWLEDGES THAT THIS AGREEMENT IS NOT ENTERED INTO IN RELIANCE UPON ANY REPRESENTATIONS AT VARIANCE WITH THE TERMS OF THIS AGREEMENT. This Order is valid if signed by Customer and returned to ADR by JUNE 30,196S This Order shall become effective when accepted by ADR in Princeton, New Jersey. . Accepted AND CITY OF LUBBOCK # 83382ITAND AMCOU IOED JUNE E 1985 PTIONS TO RIFPT�k 838 B> Mm A Title G Iy- Date SGBC-35-401 ADR APPLIED DATA RESEARCH, INC. CARQ1, A. COHEN Name VICE PRESIDENT Title JUNE 5, 1985 Date ture B/S CIA MAINTENANCE During the;fi- twelve (12) months from the Commencement Date of this Order, ADR will maintain the Products) at no charge to ,Customer in accordance with the terms and conditions 'of the Basic Agreement For'Proprietary _ Software Products. If additional years of maintenance are purchased y Customer with this Order (hereinafter; Additional Maintenance the duration and price of said maintenance shall be stated herein. 12) months and after the. Additional Maintenance, if any, at ADR's then current maintenance aster arg first' ch Re Renewal _.,Customei .shall continue to receive maintenance hereinafter Renewal Mamtenanc .,._ _. enance chae e `Such Renewal` Maintenance may be cancelled by either party at the end of any maintenance term upon thirty (30) days prior written notice. Renewal Maintenance shall be payabl1. e :in full and in advance within thirty (30) days of receipt of ADR's invoice. In the event of a Product Upgrade or Trade In, any previously paid, unused maintenance for the existing Product 7. "will be calculated and ,applied towards Additional, I� Aifenance, and' extend the mamtenahce term for the new Product, bej drid the mainten3inee term received with the Upgrade>Trade In M ,r Resolution #2046 7LAPPLIED DATA RESEARCH, INC. ROUTE 206 AND ORCHARD ROAD, CN -8 • PRINCETON, NEW JERSEY 08540 • (201) 874-9000 AMENDMENT TO ORDER UNDER Customer Name and Address: City of Lubbock Office of Purchasing Manager 1625 13th Street, Room L-04 Lubbock, Texas 79401 Customer and Applied Data Research, Inc. (ADR) agree that Order Under No. is amended as follows: The payment of the license fees will be as follows: Twenty-five percent (25%) of the total discounted license fee will be due thirty (30) days after Customer executes this Order. Fifty percent (50%) of the total discounted license fee will be due when Customer sends its Notification of Delivery to ADR or October 1, 1985, whichever occurs first. The remaining twenty-five percent (25°x6) of the total discounted license fee will be due upon successful completion of the Acceptance Test or December 1, 1985, whichever occurs first. The above payments are not contingent upon the occurence of any event, other than the delivery of the Products to Customer by ADR. The payment of the additional maintenance fees will be as follows: The first payment of $83,493 will be due upon the first anniversary date of the successful completion of the Acceptance Test or December 1, 1986, whichever occurs first. The second payment of $83,493 will be due upon the second anniversary of the successful completion of the Acceptance Test or December 1, 1986, whichever occurs first. The third payment of $83,493 will be due upon the third anniversary of the successful completion of the Acceptance Test or December 1, 1987, whichever occurs first. LIMITATION OF FUNDS Customer's obligation for payment(s) for additional maintenance under this Order is contingent upon the appropriation and allocation of funds by the Governing Body of the City of Lubbock. Customer agrees to provide thirty (30) days prior written notice to ADR in the event the Governing Body of the City of Lubbock does not appropriate or allocate funds, or appropriates or allocates insufficient funds, for payments due for additional maintenance under this Order in any fiscal year. Upon receipt of the above written notice to ADR the maintenance service will be terminated as of the next annual period and the Product Licenses will remain in effect. Page 1 of 2 Termination in accordance with this clause shall not be construed as a breach of this Order by Customer and, provided Customer is not in default of any of the other terms of this Order, shall be effected without penalty or action for damages. Customer agrees that all payments due ADR prior to the date of termination shall be paid in full. Except as modified herein all terms of the Order shall remain in full force and effect and shall apply to the Amendment with the same effect as they apply to that Order. This Amendment is valid if signed by Customer by June 30, 1985. ACCEPTED: CITY OF Ltd 1-11-1-31V /U 1 Nam g (please pr t) Date ACCEPTED: APPLIED DATA RESEARCH, INC. eel -t Authorized Signature CAROL A. COHEN Name VICE PRESIDENT .Title JUNE 5, 1988 Page 2 of 2 Date Resolution #2046 EXKBIT A Procedure for Installation and Approval 1. Customer shall notify ADR within ten (10) days of acceptance of the Agreement by the City Council. 2. Upon receipt of Notification of Acceptance, ADR shall provide Customer with such certificates as specified in the Request for Proposal. 3. Upon receipt of the neccessary certificates, Customer shall execute Contract and provide ADR with an original. 4. Within thirty (30) days of Notification of Acceptance, Owner's Representative shall provide ADR with written Notification to Proceed with Delivery and Installation. 5. Upon acceptance of installation of the equipment upon which the software is to be installed, Owner's Representative shall issue to ADR Notification to Proceed with Delivery and Installation. 6. ADR shall provide Customer with a schedule of actual delivery dates at least five (5) working days prior to delivery of the first shipment. 7. Upon completion of delivery and initial Installation of each software product as specified in the proposal, ADR shall provide Customer with Notification of Delivery and Readiness for Acceptance Test. B. Within ten (10) days of receipt of Notification of Delivery and Readiness for Acceptance Test, Owner's Representative shall verify readiness for acceptance test and provide ADR with Notification to Proceed with the acceptance test, or will notify ADR of deficiencies in the Installation which will not allow the acceptance test to begin. ADR shall remedy the deficiencies and notify Customer as specified in Item 7 above. 9. Acceptance Test shall be performed as specified and mutually agreed upon by ADR and Customer prior to Owner's Representative Issuing the Notice to proceed with Acceptance Test. Ths sole purpose of the acceptance test shall be to demonstrate that the Products perform as warranted. 10. Customer shall notify ADR within ten (10) days of successful completion of the acceptance test. 11. All noticies required or given under this Agreement shall be sent by registered or certified mail to the following parties at the addresses indicated below. Notices so transmitted shall be deemed effective on the seventh day following such posting in the U.S. Mail. Customer ADR John C. Aldredge Ronald G. Neely Manager of Information Services V.P. Southwest Region P.O. Box 2000 Applied Data Research Lubbock, Texas 79457 13101 NW Freeway, #325 Houston, Texas 77040 Either party hereto shall have the right to change any representative or addresses it may have given to the other party by giving such party written notice of such change. i EXHIBIT B Section 8a of Contractor's Bid in response to the City of Lubbock's ITB is amended as follows: Below is a list of expected initial training days supplied by ADR: ROSCOE 3 (2 follow-up days, if necessary) IDEAL 4 (2 follow-up days, if necessary) DATACOM/DB 5 DE -II 5 DATADICTIONARY 3 (2 follow-up days, if necessary) DATAQUERY 2 LIBRARIAN 2 LOOK 3 MetaCOBOL (DL) 2 (1 day follow-up, if necessary) In addition to the above listed training, four (4) days of on-site data design consulting will be supplied by ADR.