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CM-2019-0212 - 7/12/2019RADLEY SOFTWARE LICENSE AND SERVICE AGREEMENT CORPORATION CORPORATE LICENSE This Software License and Services Agreement (the "Agreement") is between Radley Corporation with its principal place of business at 23077 Greenfield, Suite 440, Southfield, MI 48075 ("Radley") and the City of Round Rock with its principal place of business at 221 E Main St, Round Rock, Texas 78664 ("Customer"). The terms of this Agreement shall apply to each Program license granted and to all services provided by Radley under this Agreement. When completed and executed by both parties, a Proposal and Order Form shall evidence the Program licenses granted and the services to be provided. DEFINITIONS 1.1. "Program" shall mean the computer software in object code form owned or distributed by Radley for which Customer is granted a license pursuant to this agreement; the media; the user guides and manuals for use of the software ("Documentation"); and Updates. 1.2. "Proposal" shall mean the document that contains standard terms and conditions of sale prepared by Radley and included by reference to this Agreement. 1.3. "Order Form" shall mean the document by which Customer orders Program licenses and services, and which is agreed to by the parties. The Order Form shall reference the Effective Date of this Agreement. 1.4. "Price List" shall mean Radley's applicable standard commercial fee schedule that is in effect when a Program license or any other product is ordered by a Customer. 1.5. "Designated System" shall mean the computer hardware and operating system designated on the relevant Order Form; and shall include as a minimum the CPU Serial Number, CPU Model, Operating System, and Media & Density. 1.6. "Supported Program License" shall mean a Program license for which Customer has ordered Software Maintenance for the relevant time period. "Software Maintenance" shall mean Program support provided under Radley's Software Maintenance Terms & Conditions in effect on the date is ordered. 1.7. "Commencement Date" shall mean the date on which Radley delivers the Programs to Customer, or if no delivery is necessary, the Effective Date set forth on the relevant Order Form. 1.8. "Update" shall mean a subsequent release of the Program that is generally made available for Supported Program Licenses at no additional charge other than media and handling charges. Update shall not include any release, option or future product, which Radley licenses separately. 1.9. "Application Program" shall mean a Program designated as application software by Radley. 1.10. "Limited Production Program" shall be a Program which does not appear on the Price List or which is designated as a Limited Production by Radley. II. PROGRAM LICENSE 2.1 Rights Granted A. Radley grants to Customer a nonexclusive license to use the Programs Customer obtains under this Agreement, as follows: L to use the Programs solely for Customer's own internal data processing operations on the Designated System or backup system if the Designated System is inoperative, consistent with the applicable licensed use limitations. Customer may not relicense the Page i ars Programs or use the Programs for third -party training, commercial time-sharing, rental or service bureau use; ii, to use the Documentation provided with the Programs in support of Customer's authorized use of the Programs; iii. to copy the Programs for archival or backup purposes; no other copies shall be made without Radley's prior written consent. All titles, trademarks, and copyright and restricted rights shall be reproduced in such copies. All archival and backup copies of the Programs are subject to the terms of this Agreement; and iv. to modify the Programs and combine them with other software products Customer shall not copy or use the Programs (including Documentation) except as otherwise specified in this Agreement or an Order Form. Customer shall have the right to allow Customer's third party agents ("Agents") to use the Programs for Customer's internal use purposes so long as Customer ensures that Agents use the Programs in accordance with the terms of this Agreement. B. Customer agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Programs. C. Radley shall retain all title, copyright and other proprietary rights in the Programs. Customer does not acquire any rights, express or implied, in the Programs, other than those specified in this Agreement. D. To use a Program specified on an Order Form ("ordered Program"), Customer may need to use an ancillary Program embedded in or delivered with the ordered Program. The ancillary program may be used only as described in the Order Form or Documentation for implementation of the ordered Program and for no other purpose. Customer shall have no right to use any other software program that may be delivered with ordered Programs. E. As an accommodation to Customer, Radley may supply Customer with pre -production releases of Programs (which may be labeled "Alpha" or "Beta"). These products are not suitable for production use. 2.2 Acceptance of Program For each Program license for which delivery is required under this Agreement, Customer shall have a 15 day "Acceptance Period" beginning on the Commencement Date. During the Acceptance Period, Customer may cancel the licenses by giving written notice to Radley and returning the Program in accordance with Section 4.5. Unless such cancellation notice is given, the license will be deemed accepted by Customer at the end of the Acceptance Period. If Customer is granted a right -to -copy license, subsequent copies shall be deemed accepted upon acceptance of the master copy. 2.3 Transfer and Assignment A. Customer may transfer a Program license within its organization upon notice to Radley; transfers are subject to the terms and fees specified in Radley's transfer policy in effect at the time of the transfer. B. Customer may not assign this Agreement or transfer a Program License to a third party (i.e., a legal entity separate from Customer) without prior written consent of Radley. Radley shall not unreasonably withhold such consent. 2.4. Verification At Radley's written request, not more frequently than annually, Customer shall furnish Radley with a signed certification (a) verifying that the Programs are being used pursuant to the provisions of this Agreement and applicable Order Form; and (b) listing the locations, types And serial numbers of the Designated Systems on which the Programs are run. Radley may, at its expense, audit the Customer's use of the Programs. Any such audit shall be conducted during regular business hours at Customer's facilities and shall not unreasonably interfere with Customer's business activities. If an audit reveals that Customer has underpaid fees to Radley, Customer shall be invoiced for such underpaid fees based on the Price List in effect at the time the audit is completed; if the underpaid fees exceed 5% of the license fees paid, then Customer shall also pay Radley's reasonable costs of conducting the audit. Audits shall be conducted no more than once annually. III. SOFTWARE MAINTENANCE SERVICES 3.1. Software Maintenance Software Maintenance services will be considered to be ordered by the Customer and will be provided to Customer under Radley's Software Maintenance Terms and Conditions in effect on the Effective Date of this Agreement, subject to the payment by Customer of the applicable fees, unless a waiver of Software Maintenance is acknowledged as part of this Agreement. Subsequent to the Effective Date of this Agreement, the Customer may cancel Software Maintenance for any Program licensed under this agreement in writing 30 days prior to the anniversary of the Effective Dale. Reinstatement of previously waived or lapsed Software Maintenance services is subject to Radley's Software Maintenance reinstatement fees in effect an the date Software Maintenance is re -ordered. Customer agrees to provide remote access to Radley for diagnostic and support services. In the event remote access is not available via the Internet Radley may elect to charge Customer a remote access fee. Customer may obtain Software Maintenance services for Limited Production Programs and pre -production releases of Programs on a time and material basis. 3.2. Consulting and Training Services Radley will provide consulting and training services agreed to by the parties under the terms of this Agreement. All consulting services shall be billed on a time and materials basis unless the parties expressly agree otherwise in writing. Any consulting services acquired from Radley shall be bid separately from Program licenses, and Customer may acquire either Program licenses or consulting services without acquiring the other. 3.3. Incidental Expenses For any on-site services requested by Customer, Customer shall reimburse Radley for actual, reasonable travel and out-of- pocket expenses incurred. IV. TERM AND TERMINATION 4.1. Term Page 2 ors If not otherwise specified on the Order Form, each Program license granted under this Agreement shall remain in effect perpetually unless the license or this Agreement is terminated as provided in Section 4.2 or 4.3. 4.2. Termination by Customer Customer may terminate any Program license at any time; however termination shall not relieve Customer's obligations specified in section 4.4. 4.3. Termination by Radley Radley may terminate this Agreement or any license upon written notice if Customer or agents of the customer breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach. Customer shall be liable and Radley may recover all expenses, including but not limited to reasonable attorney's fees, required to correct any breach of this Agreement. 4.4. Effect of Termination Termination of this Agreement or any license shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer's obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Form or other similar ordering document under this Agreement The parties' rights and obligations under Sections 2.1.6, 2.1.C, 2.1.13, and 2.3.8 and Articles IV, V, VI, VII, and VIII shall survive termination of this Agreement. 4.5. Handling of Programs Upon Termination If a license granted under this Agreement expires or otherwise terminates, Customer shall (a) cease using the applicable Programs, and (b) certify to Radley within one month after expiration or termination that Customer has destroyed or has returned to Radley the Programs and all copies. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials. Before returning Programs to Radley, Customer shall acquire a Return Material Authorization ("RMA") number from Radley. v. ESCROW 5.1. Escrow Agent Radley has provided an escrow for the "Source Code" licensed under this Agreement. The software is held in escrow by the designated "Escrow Agent" listed below. Neil Stre(ling, PC 26153 John R Madison Heights. Ml 48071 (810)541-3320 5.2. Conditions for Obtaining Source Code in Escrow A. The software Source Code will be made available in the event of Radley no longer being in business in the discretion of the Escrow Agent to end users provided: i. End user has valid license for software ii. All payments due Radley are paid in full iii. Payment of the fee for Source Code in effect at the Effective Date of this Agreement is paid to the Escrow Agent B. Radley agrees to provide the Source Code for end user internal use only, should end user organization determine Radley is no longer capable of supporting them adequately provided: i. Radley has a signed Source Code end user agreement ii. End user has valid license for software iii. All amounts due Radley are paid in full iv. Payment of the fee for Source Code in effect at the Effective Dale of this Agreement is paid to Radley VI. INDEMNITY, WARRANTIES, REMEDIES 6.1. Infringement Indemnity Radley will defend and indemnify Customer against a claim that the Programs infringe a copyright or patent, provided that: (a) Customer notifies Radley in writing within 30 days of the claim; (b) Radley has sole control of the defense and related settlement negotiations; and (c) Customer provides Radley with the assistance, information and authority necessary to perform Radley's obligations under this Section. Reasonable out-of- pocket expenses incurred by Customer in providing such assistance will be reimbursed by Radley. Radley shall have no liability for any claim of infringement based on use of a superseded or altered release of Programs if the infringement would have been avoided by the use of a current unaltered release of the Program which Radley provides to Customer. In the event the Programs are held or are believed by Radley to infringe, Radley shall have the option, at its expense, to (a) modify the Programs to be noninfringing; (b) obtain for Customer a license to continue using the Programs; or (c) terminate the license for the infringing Programs and refund the license fees paid for those Programs, prorated over a five year term from the Commencement Date. This Section 6.1 states Radley's entire liability and Customer's exclusive remedy for infringement. 6.2. Warranties and Disclaimers A. Program Warranty Radley warrants for a period of one year from the Commencement Date that each unmodified Program for which Customer has a Supported Program License will perform the functions described in the Documentation. B. Media Warranty Radley warrants the tapes, diskettes or other media to be free of defects in materials and workmanship under normal use for 90 days from the Commencement Date. C. Services Warranty Radley warrants that Software Maintenance and consulting services will be performed consistent with generally accepted industry standards. This warranty shall be valid for 90 days from performance of service. D. Disclaimers THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Programs will operate in the combinations which Customer may select for use, that the operation of the Programs will be uninterrupted or error -free, or that all Program errors will be corrected. Limited Production Programs, pre -production releases of Programs, and computer-based training products are distributed "as is." 6.3. Exclusive Remedies For any breach of the warranties contained in Section 6.2, Customer's exclusive remedy, and Radley's entire liability, shall be: A. For Programs The correction of Program errors that cause breach of the warranty, or if Radley is unable to make the Program operate as warranted, Customer shall be entitled to recover the fees paid to Radley for the Program license. B. For Media The replacement of defective media returned within 90 days of the Commencement Date. C. For Services The reperformance of the services, or if Radley is unable to perform the services as warranted, Customer shall be entitled to recover the fees paid to Radley for the unsatisfactory services. VII PAYMENT PROVISIONS 7.1. Invoicing and Payment Invoices for payment of license fees shall be payable 30 days from Commencement Date, Software Maintenance fees shall be payable annually in advance, net 30 days from the renewal date; such fees will be those in effect at the beginning of the period for which the fees are paid. All other applicable fees shall be payable 30 days from the invoice date, and shall be deemed overdue if they remain unpaid thereafter. Any amounts payable by Customer hereunder which remain unpaid after the due dates shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid. Customer agrees to pay applicable media and shipping charges. Customer shall issue a purchase order, or alternative document acceptable to Radley, on or before the Effective Date of the applicable Order Form. 7.2. Taxes The fees listed in this Agreement do not includes taxes; if Radley is required to pay sales, use, property, value-added or other taxes based on the licenses or services granted in this Agreement or on Customer's use of Programs or services, then such taxes shall be billed to and paid by Customer. This section shall not apply to taxes based on Radley's income, Vlll. GENERAL TERMS 8.1. Nondisclosure By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Programs, the terms and pricing under this Agreement, and all information clearly identified as confidential. A party's Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the Radley does not warrant that the Programs will party either directly or indirectly from the disclosing party; (c) is meet Customer's requirements, that the lawfully disclosed to the other party by a third party without Paye 3 of.5 restriction on disclosure; or (d) is independently developed by the other party. Customer shall not disclose the results of any benchmark tests of the Program to any third party without Radley's prior written approval. The parties agree to hold each other's Confidential Information in confidence during the term of this Agreement and fora period of two years after termination of this Agreement. The parties agree, that unless required by law, not to make each other's Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential information is not disclosed by its employees or agents in violation of the terms of this Agreement. Customer agrees to allow Radley to use Customers name as a user of Radley products for marketing purposes. 8.2. Governing Law This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Michigan, and shall be deemed to be executed in Southfield, Michigan. 8.3. Jurisdiction Any legal action or proceeding relating to this Agreement shall be instituted in a state court in Oakland County, Michigan, or a federal court in Detroit, Michigan. Radley and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. 8.4. Notice All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the first address listed in the relevant Order Form (if to Customer) or to the Radley address on the Order Form (if to Radley). To expedite order processing, Customer agrees that Radley may treat documents faxed by Customer to Radley as original documents; nevertheless, either party may require the other to exchange original signed documents. B.S. Limitation of Liability In no event shall either party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. Radley's liability for damages hereunder shall in no event exceed the amount of software license fees paid by Customer under this Agreement, and if such damages result from Customer's use of the Program or services, such liability shall be limited to fees paid for the relevant software license giving rise to the liability, prorated over a five-year term from the Commencement Date of the applicable license or the date of performance of the applicable services. The provisions of this Agreement allocate the risks between Radley and Customer. Radley's pricing reflects this allocation of risk and the limitation of liability specified herein. 8.8. Severability In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. 8.7. Waiver The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Radley's proprietary rights in the Programs, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. 8.8 Export Administration Customer agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that neither the Programs nor any direct product thereof are (1) exported, directly or indirectly, in violation Export Laws; or (2) are intended to be used for any purposes prohibited by the Export Laws, including, without limitations, nuclear, chemical, or biological weapons proliferation. 8.9 Relationship Between the Parties Radley is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. 8.10. Non -Solicitation of Employees The Customer agrees that during the period this Agreement is in effect and for a period of two years after termination, it will not solicit for employment or retention as an independent contractor, or retain the services in any other way, any employee or former employee of Radley. Customer agrees to liquidated damages in the amount equal to the hired or retained person's last base salary at Radley, or total fees chargeable by such person if such person is compensated on a fee basis, for six (6) months. 8.11. Entire Agreement This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement and any Order Form shall supersede the terms in any Customer purchase order or other ordering document. This Agreement shall also supersede all terms of any unsigned or "shrink-wrap" license included in any package, media, or electronic version of Radley - furnished software and any such software shall be licensed under terms of this agreement, provided that the use limitations contained in a Program Use Certificate or other unsigned ordering document shall be effective for the specified licenses. The Effective Date of this Agreement shall be RADLEY CORPORATION 23077 Greenfield Voice Suite 440 or Southfield, MI 48075 Fax Paye 5 :,f! Executed by Radley Corporation: Authorized Signature: Name: Kevin C Cammet Title: Vice President (248) 559-6858 (800) EDI -9934 (248)559-6822 City of Round Rock =' ROUND ROCK Agenda Item Summary Agenda Number: Title: Consider issuing a purchase order to Radley Corporation for water line software licenses, hardware, and maintenance services and executing a related Software License and Service Agreement. Type: City Manager Item Governing Body, City Manager Approval Agenda Date: 7/12/2019 Dept Director: Michael Thane, Utilities and Environmental Services Director Cost: $32,523.74 Indexes: Utility Fund Attachments: Agmt, Storeroom Configuration Department: Utilities and Environmental Services Text of Legislative File CM -2019-0212 The City of Round Rock Utilities and Environmental Services Department stocks standard parts and supplies for repairs and maintenance of the utility systems. The current inventory program for these parts and supplies is manual and time consuming. Radley Corporation provides an inventory management software that will stream -line and automate the inventory process by using a barcode scanner. The new system will generate reports quickly and provide transparency for accounting purposes. Radley Corporation is a sole source vendor for the City's City Works program. This will enable us to track the inventory from the time of delivery to the moment they are utilized in the field. The Utilities and Environmental Services Department requests approval to purchase the Radley Corporation inventory management software. Cost: $32,523.74 Source of Funds: Utility Fund City of Round Rock Page i Painted on 7/11/2019