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HomeMy WebLinkAboutAssetWorks Inc; 2009-09-25; (3)Agreement, Number CLD 0709 SOFTWARE LICENSE AGREEMENT FOR AND IN CONSIDERATION of the mutual benefits accruing and expected to accrue hereunder, this Software License Agreement ("Agreement") is made as of the 23xiday of feftemb ("Effective Date") by and between AssetWorks, with offices at 998 Old Eagle School Road, Suite 1215, Wayne, PA 19087 ("AssetWorks"), and The City of Carlsbad, with offices at 1635 Faraday Ave, Carlsbad, CA 92008 ("CUSTOMER"). Intending to be legally bound, the parties hereby mutually agree to the following terms and conditions: ARTICLE I - LICENSE A. AssetWorks grants to CUSTOMER a non-exclusive, perpetual (subject to Article V) non-transferable license for the number of users specified in Schedule 1 ("Users") to make use of the software specified in Schedule 1 (herein "Software") in either a AssetWorks1 hosted environment or on the CUSTOMER'S database servers and application servers designated in Article VII (the database servers and application servers shall be referred to as the "Enterprise"). If in CUSTOMER'S environment and any part of the Enterprise becomes temporarily inoperative the license may be extended to backup servers until such time as the Enterprise becomes operative again at which time all Software will be returned to the Enterprise. If in the CUSTOMER'S environment, CUSTOMER may replace any component of the Enterprise by giving AssetWorks prior written notice of the new servers. Except as provided above, use of Software in excess of limits defined in Schedule 1 or other than on the AssetWorks' hosted environment tor Enterprise requires additional fees. CUSTOMER'S license is to use the Software in its own business; CUSTOMER has no right to use the Software in processing work for third parties. B. CUSTOMER shall have the right to use only one copy or image of the Software for production purposes to manage up to the number of Active Equipment Units identified in the Product Schedule (Schedule 1) and shall not copy or use the Software for any other purpose except (i) for archival purposes, (ii) in connection with a disaster recovery program, and (iii) for the purpose of testing the operation of the Software, provided such testing copy shall not be used in a live production environment. CUSTOMER may increase the number of authorized Active Equipment Units by executing a subsequent Product Schedule and paying in full the applicable fees. Upon signing the subsequent Product Schedule and paying in full the applicable fees, CUSTOMER shall have the right to monitor the revised number of Active Equipment Units as set forth in the subsequent Product Schedule. "Active Equipment Unit" shall mean any in service unit to which work orders, fuel tickets, or usage tickets are posted. C. If any third party software is provided to CUSTOMER pursuant to this Agreement, such license shall be in accordance with terms set forth in Schedule 1. ARTICLE II - FEES AND PAYMENTS A. CUSTOMER shall pay AssetWorks the fees specified in Schedule 1 with the following schedule: 90% of fees will be paid upon delivery of software and 10% of fees will be paid upon satisfactory completion of all acceptance testing in the production environment. All fees are payable by CUSTOMER within thirty (30) days of receipt of invoice.. B. CUSTOMER shall be responsible for all taxes and charges assessed or imposed with respect to amounts payable hereunder, including, without limitation, state and local, occupation, sales, use or excise taxes paid or payable by AssetWorks, exclusive, however, of taxes imposed on AssetWorks' net income by the United States or any political subdivision thereof. C. CUSTOMER shall be entitled to the support described in the Maintenance Agreement, which shall commence on the date set forth in the Maintenance Agreement D. AssetWorks reserves the right to apply a late payment charge of 1.5% per month to amounts outstanding more than thirty (30) days after the date of the invoice. ARTICLE III - NON-DISCLOSURE A. Subject to the other paragraphs in this Article III, CUSTOMER agrees that the Software shall be held in confidence by CUSTOMER and shall not be disclosed to others without the prior written consent of AssetWorks, which may be withheld by AssetWorks in its sole discretion. This obligation to hold confidential does not apply to any portion of the Software (1) developed by CUSTOMER and in CUSTOMER'S possession prior to the receipt of same from AssetWorks; (2) which at the time of disclosure is part of the public domain through no act or failure to act by CUSTOMER; or (3) which is lawfully disclosed to CUSTOMER without restriction on further disclosure by another party who did not acquire same from AssetWorks. B. The CUSTOMER may copy, in whole or in part, any printed material relative to the Software that may be provided by AssetWorks under this Agreement. Additional copies provided by AssetWorks will be billed to CUSTOMER at AssetWorks' standard rates. C. Any Software provided by AssetWorks in machine-readable form may be copied by CUSTOMER for use with the designated servers to the extent necessary for archive or emergency restart purposes, to replace a worn copy, or to understand the contents of such machine-readable material. D. The CUSTOMER agrees to keep the original and any copies of that Software at the same location as the CUSTOMER'S designated servers, except that a machine-readable copy of the Software may be kept for archive or emergency restart purposes only at another facility. E. All of CUSTOMER'S records with regard to the Software shall be made available to AssetWorks at all reasonable times at AssetWorks' request, and CUSTOMER shall certify to the truth and accuracy of thereof. F. If CUSTOMER receives a request to disclose any confidential information under any Public Information Act, Open Records Act or similar law (Request), CUSTOMER shall immediately notify AssetWorks and prior to disclosure give AssetWorks an opportunity to take any protective action it deems appropriate. If AssetWorks has not responded timely to the Request, as defined by the applicable law for which the Request is made pursuant to, CUSTOMER may, in its sole discretion and without being in breach of this Agreement, respond to the Request as CUSTOMER deems appropriate. In the event that AssetWorks directs CUSTOMER not to disclose the confidential information materials sought pursuant to the Request, AssetWorks will indemnify CUSTOMER against any losses, including reasonable attorney fees and costs, sustained arising from the non- disclosure of the confidential information material requested in the Request. CUSTOMER, in its sole discretion may tender the Request to AssetWorks for response, including, any and all subsequent legal actions or challenges related to the non-disclosure. ARTICLE IV - WARRANTIES AND LIMITATION OF LIABILITY A. AssetWorks represents that it has the right to license the Software to CUSTOMER as provided in ARTICLE I. AssetWorks further represents that the Software will conform to the description contained in the User Manual but, except as provided in Article IV B, AssetWorks makes no other representations, warranty, or guarantees, express or implied, with respect to the accuracy, completeness, or usefulness of the Software, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In the event the Software fails to conform to the description contained in the User Manual, AssetWorks' sole obligation shall be to correct the errors in accordance with the provisions of Article IV E. This limited warranty is lieu of all liabilities or obligations of AssetWorks for damages arising out of or in connection with the delivery, use or performance of the Software. B. AssetWorks will defend, at its own expense, any action brought against CUSTOMER to the extent that it is based on a claim that the Software supplied by AssetWorks infringes a United States patent or copyright, and AssetWorks will pay those costs and damages finally awarded against CUSTOMER in any such action that are attributable to any such claim; provided, such defense and payments are conditioned on the following: (1) that AssetWorks shall be promptly notified in writing by CUSTOMER following its receipt of any such claim; (2) that AssetWorks shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; (3) should the Software become, or in AssetWorks' opinion is likely to become, the subject of a claim of infringement of a United States patent or copyright, then CUSTOMER shall permit AssetWorks, at its option and expense, either to (A) procure for CUSTOMER a non-infringing license to use the Software; (B) modify the Software so that it becomes non-infringing; (C) procure for CUSTOMER a depreciated credit for the Software and accept its return. Depreciation shall be an equal amount per year over the lifetime of the Software, which the parties agree shall be five (5) years. AssetWorks shall have no liability to CUSTOMER under any provision of this clause with respect to any claim of patent or copyright infringement that is based on CUSTOMER'S unauthorized use or combination of the Software with software or data not supplied by AssetWorks as part of the Software. C. CUSTOMER agrees to defend and hold AssetWorks harmless against any claims made by any third party against AssetWorks arising out of CUSTOMER'S use of the Software unless such claims are due to the negligence or willful misconduct of AssetWorks. D. CUSTOMER agrees that AssetWorks total liability to Customer for any and all damages whatsoever arising out of or in any way related to this Contract from any cause, including but not limited to negligence, errors, omissions, strict liability, breach of contract or breach of warranty shall not, in the aggregate, exceed fees paid to AssetWorks. In no event shall AssetWorks be liable for special, indirect, incidental, economic, consequential or punitive damages, including but not limited to lost revenue, lost profits, replacement goods, loss of technology rights or services, loss of data, or interruption or loss of use of software or any portion thereof regardless of the legal theory under which such damages are sought even if AssetWorks has been advised of the likelihood of such damages, and notwithstanding any failure of essential purpose of any limited remedy. Any claim by CUSTOMER against AssetWorks relating to this Contract must be made in writing and presented to AssetWorks within one (1) year after the date on which AssetWorks completes performance of the Services specified in this Contract. E. The warranty period for the Software shall extend for a period of 90 days from the date upon satisfactory completion of all acceptance testing. The satisfactory completion of all acceptance testing will be deemed to have occurred thirty (30) days after the software is placed into production. During the warranty period, in the event that the CUSTOMER encounters an error and/or malfunction whereby the Software does not conform to the description in the User Manual, AssetWorks will respond as follows: 1. In the event that, in the mutual and reasonable opinion of AssetWorks and the CUSTOMER, there exists an error or nonconformance to the User Manual, AssetWorks will take such steps as are reasonably required to correct the error with due dispatch. 2. In the event that, in the mutual and reasonable opinion of AssetWorks and the CUSTOMER, the error or nonconformance to the User Manual does not constitute a serious impediment to the normal intended use of the Software, AssetWorks will correct the error and distribute the correction to the CUSTOMER in accordance with AssetWorks' normal Software revision schedule. F. AssetWorks represents and warrants that the software, as delivered to the CUSTOMER, does not contain any program code, virus, worm, trap door, back door, timer, or clock that would erase data or programming or otherwise cause the software to become inoperable, inaccessible, or incapable of being used in accordance with its documentation, user manuals, either automatically, upon the occurrence of AssetWorks selected conditions, or manually on the command of AssetWorks. ARTICLE V - TERMINATION A. The license conveyed pursuant to Article I-A may be terminated by AssetWorks in the event of breach or default by CUSTOMER under this Agreement if AssetWorks notifies CUSTOMER in writing of the breach or default and CUSTOMER does not correct same within thirty (30) days of AssetWorks' written notice. B. In addition, CUSTOMER shall have the right to terminate this Agreement at any time after one (1) year from the effective date of this Agreement; provided such termination shall not relieve CUSTOMER of its obligations (1) to pay any remaining unpaid balance for the total software license fee (as per Schedule 1), and (2) to honor the terms of the Professional Services Agreement or the Software Maintenance Agreement, which were independently executed and each of which must be terminated in accordance with its terms. C. All Software and documentation supplied hereunder by AssetWorks shall be and remain the property of AssetWorks. Upon termination of this Agreement, whatever the reason, such Software and documentation and any copies thereof made by CUSTOMER pursuant to Article III-B and C shall be promptly returned to AssetWorks. ARTICLE VI - ASSIGNMENT This Agreement shall not be assigned by either party without the prior written consent of the other party, and any attempted assignment without such consent shall be void. No assignment of this Agreement shall be valid until and unless consented to in writing by the consenting part and assumed by the assignee in writing. When duly assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the assignee. ARTICLE VII - CUSTOMER'S ENTERPRISE CUSTOMER'S application server(s) and database server(s) are as follows: Server(s) Location(s) Application Server(s): Unlimited No restrictions Database Server(s): Unlimited No restrictions ARTICLE VIII - ENTIRE AGREEMENT This Agreement supersedes all prior proposals, oral or written, all previous negotiations and all other communications or understandings between AssetWorks and CUSTOMER with respect to the subject matter hereof. It is expressly agreed that if CUSTOMER issues a purchase order or other document for the services provided under this Agreement, such instrument will be deemed for CUSTOMER'S internal use only, and any provisions contained therein shall have no effect whatsoever upon this Agreement. This Agreement sets forth the sole and entire understanding between AssetWorks and CUSTOMER with respect to the subject matter. No amendments to this Agreement, either at the execution or subsequently, shall be binding on AssetWorks or CUSTOMER unless agreed to in writing by both parties. ARTICLE IX - GOVERNING LAW: DISPUTES A. This Agreement shall be governed by the law(s) of the State of California. B. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA LOCATED IN THE CITY OF SAN DIEGO, OR IF SUCH COURT DOES NOT HAVE JURISDICTION, THE STATE COURTS OF THE STATE OF CALIFORNIA LOCATED IN THE CITY OF SAN DIEGO, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE COURTS REFERRED TO ABOVE, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. ARTICLE X - SCHEDULES Schedules 1 (Product Schedule) and any additional schedules specified below are hereby incorporated into this Agreement. ARTICLE XI - GENERAL TERMS 1. Neither AssetWorks nor CUSTOMER will assign or transfer its interest in this Agreement or any Attachment without the prior written consent of the other party. 2. All provisions of this Agreement, which by their nature should survive termination of this Agreement, will so survive. 3. No delay or failure by either party to exercise any right hereunder, or to enforce any provision of this Agreement will be considered a waiver thereof. No single waiver will constitute a continuing or subsequent waiver. To be valid, a waiver must be in writing, but need not be supported by consideration. 4. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such provision will be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement will not be affected. 5. Reserved. 6. Any communication or notice hereunder must be in writing, and will be deemed given and effective: (i) when delivered personally with proof of receipt; (ii) when sent by e-mail; (iii) when delivered by overnight express; or (iv) three (3) days after the postmark date when mailed by certified or registered mail, postage prepaid, return receipt requested and addressed to a party at its address for notices. Each party's address for notices is stated below. Such address may be changed by a notice delivered to the other party in accordance with the provisions of this Section. AssetWorks CUSTOMER: 998 Old Eagle School Rd. - Suite 1215 1635 Faraday Av Wayne, PA 19087 Carlsbad, CA 92008 Attn.: John Hines Attn.: Copy to: Copy to: Director of Contracts AssetWorks 998 Old Eagle School Rd. - Suite 1215 Wayne, PA 19087 Attn: 7. In the event of any dispute arising in the performance of this Agreement or any Attachment, AssetWorks and the CUSTOMER will seek to resolve such dispute through good faith, amicable discussions and negotiations. Any specific agreed upon problem escalation procedure will be stated in the related Attachment. In the event of a conflict between the terms of an Attachment and this Agreement, the Attachment shall control unless otherwise provided in the Attachment.. 8. Neither party will be liable for any failure to perform or any delay in performing any of its obligations hereunder when such failure or delay is due to circumstances beyond its reasonable control and without its fault (Force Majeure), including without limitation, any natural catastrophe, fire, war, riot, strike, or any general shortage or unavailability of materials, components or transportation facilities, or any governmental action or inaction. Upon the occurrence of such event of Force Majeure, the affected party will immediately give notice to the other party with relevant details, and will keep the other party informed of related developments. 9. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral, and all prior written, negotiations, commitments and understandings of the parties relating to the subject matter hereof. This Agreement may not be modified except by a writing executed by both parties. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have entered into this Agreement as of the Effective Date. ASSETWORKS Inc. By: GUSTO By: SCHEDULE 1 - FEES Software License Fees SOFTWARE- FASUITE FleetFocusFA, licensed by vehicle equipment units GSA Discount GSA Pricing Components/Other Assets 350 -21% 350 1050 50 (10.50) 39.50 $ 13,825 Unlimited Users No Charge Modules: Shop Scheduling Module Equipment Planning Module Motor Pool Module InfoCenter Web Applications: Replacement (and Performance) Modeling Module Shop Activity Portal (technician, parts and supervisor portals) Ad Hoc Query Module Customer Access Portal (service request) Notifications Portal Reporting Portal KPI/Dashboard Portal Motor Pool Web Reserve Equipment Planning Customer Access Enterprise Portal (0-client GUI) MobileFocus software for Pocket PC 1 GSA Discount -21% GSA Pricing 1 10% Incl. 10% 5% 5% 5% 5% 5% Incl. Incl. $ 64 $ 960 $ (201.60) $ 758.40 $ $ $ $ $ $ $ $ $ $ $ $ Included Included 1,383 - 1,383 2,500 691 691 691 691 691 - - Subtotal $ 758 Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users Unlimited Users 22,546 Per PDA Crystal XI OEM embedded edition 1/2 CPU 1 $ 2,500 GSA Discount -1% $ (25.00) GSA Pricing 1 $ 2,475.00 Discount, valid through June 30, 2009 Server and one report writer $ 2,475 Subtotal $ $ (2797) Net Subtotal $ 25,780 12% 22,983 B.Hardware Shop Floor QTY Price Total PDA Hardware: SYMBOL (Motorola) Symbol MC5590 with Qwerty Keypad, 1D scanner 128/256 1x 1 $ Symbol MC5590 Cradle 1 $ Power supply 1 $ Cord 1 $ USB cable 1 $ Laser Scanner Wedges PSC Quickscan 6000 used with FA QS6000+ WITH UNIVERSAL WEDGE/USB INTERFACES 1 $ 495 $ 1 ,368 130 45 10 17 1 ,368 130 45 10 17 495 Zebra Thermal Bar Code Printers FA Zebra S4M USB/PrintServerll Printer Ribbon Labels 4x2 4 rolls per case 1 $ 1,595 $ 5 $ 19 $ 5 $ 78 $ Total w/o tax $ 1,595 95 390 4,145