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R-02-09-12-13B2 - 9/12/2002RESOLUTION NO. R- 02- 09- 12 -13B2 WHEREAS, the City has a need for technical services for the purchase, installation, and support of a new Water and Wastewater Billing System, and WHEREAS, Interactive Computer Designs, Inc. has submitted an agreement to provide said services, and WHEREAS, the City Council desires to enter into said agreement with Interactive Computer Designs, Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City, subject to the City Manager's and City Attorney's approval of the final language and terms, an agreement with Interactive Computer Designs, Inc. for the purchase, installation, and support of a new Water and Wastewater Billing System. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 12th day of September, 2002. ATT CHRISTINE R. MARTINEZ, City Secreta ::ODMA \WOAL➢OX \O: \WUOX \RESOLUTI \12o912SZ. WPD /sc NYL LL, Mayor City o Round Rock, Texas DATE: September 6, 2002 SUBJECT: City Council Meeting — September 12, 2002 ITEM: 13.B.2. Consider a resolution authorizing the Mayor to execute an agreement with Interactive Computer Design, Inc. for a new Water and Wastewater Billing System. Resource: Bill White, Finance Director History: Outside Resources: N/A Impact/Benefit: Public Comment: N/A Sponsor: Finance Department The current version of the Utility Billing, Incode 2000, was purchased in August 1998. The current version of the billing system will no longer be supported by the vendor. Funding: Self Financed Utility Construction Fund Cost: $80,000 Source of Funds: Self Financed Utility Construction Fund This migration allows more flexibility for the Utility Billing staff. It also allows easier access to the data. The current version of software, Incode 2000, will no longer supported. Software Maintenance Agreement, Software Training Agreement, Software Conversion Agreement, and Third Party Application Software Sales Agreement, Software License Sales Agreement SOFTWARE SOURCE CODE ESCROW AGREEMENT TERMS AND CONDITIONS IN CONSIDERATION OF the terms and conditions of the Agree nent and other good and valuable consideration, the parties hereto agree as follows: ESCROW AGREEMENT. INCODE agrees to name The City of Round Rock hereinafter CUSTOMER, as a beneficiary in accordance with the provisions of the Software Escrow Service Agreement INCODE maintains with an independent escrow service. PRICE. CUSTOMER agrees to pay an initial annual fee of $500.00, due upon execution of this agreement. Future annual payments will be invoiced in the month prior to the renewal date and will be due in full for this agreement to continue in effect. SOFTWARE SOURCE CODE COVERED. This Agreement applies to all INCODE Software for which CUSTOMER has paid the full agreed upon price of the INCODE Software license. If CUSTOMER acquires additional INCODE Software in the ihture, such software shall also be covered by this Agreement. If fails to pay the Escrow fee when due, INCODE shall have the right in its sole discretion to suspend its performance or terminate this Agreement. TERM. This Agreement shall become effective on the date executed by an officer of INCODE and shall have a term beginning upon the first of the month following the installation of the INCODE Software and ending upon the last day of the month one year following that date. A. This Agreement will automatically renew for subsequent one year terms unless either party gives the other party at least thirty days prior written notice of its intent not to renew. Fees for subsequent years are subject to change, PROVISIONS. As a minimum requirement, INCODF. agrees to provide the following service to CUSTOMER through an escrow agreement: A. INCODE. will maintain a software escrow service agreement with an independent escrow service provider. B. INCODE will deposit a current copy of source code for all licensed INCODE software applications and will update the deposit when a major revision of the software is released. C. If INCODE chooses to change the provider of the escrow service, INCODE will notify CUSTOMER of the name and address of the new escrow service provider. D. The provisions included in the escrow service agreement will include provisions for the beneficiary to receive access to the INCODE source code when the escrow service provider has received written instruction directly from INCODE, INCODE's trustee in bankruptcy, or a court of competent jurisdiction and payment to the escrow service provider of the deposit copying and delivery tees, then the escrow service provider will release a copy of the deposit materials to CUSTOMER ACCEPTED BY: R- 007-09 -/a - /3ao.J ACCEPTED BY: INTERACV efir.44.772E–de— TII ECOMPP COMPUTER DESIGNS, INC. BY Sign President Title 10/11/02 Date DESCRIPTION QUANTITY PRICE InVision ��r Utility CIS 29,250.00 Central Cash Collection 7,125.00 Service Order Management 5,625.00 THE APPLICATION SOFTWARE TO BE PROVIDED HEREIN IS SUBTOTAL 42,000.00 SUBJECT TO THE ATTACHED TERMS AND CONDITIONS. ACCEPTED BY: ACCEPTED BY: TOTAL 42, 000.00 THE CITY OF ROUND ROC / INTERACTIVE COMPUTER DESIGNS, INC. DATE DUE Customer Name City of Round Rock Salesman L.Midkiff/ Street Address 221 E. Main Ave, City Round Rock Contact Person Irma Mendoza Phone Number (512) 218-5400 State TX PO Number R.Reeves/ K McNutt Zip 78664 -5271 Tax Exempt YES This agreement is entered into by and between Interactive Computer Designs, Inc, hereinafter referred to as INCODE, located at 5808 - 4th Street, Lubbock, Texas 79416; and; THE CITY OF ROUND ROCK, hereinafter referred to as CUSTOMER on, , 2002. Pursuant to the terms and conditions of this agreement which are contained CUSTOMER agrees to p urchase the following items from INCODE. Cus B rYl yor -, Title Date SOFTWARE LICENSE SALES AGREEMENT Signature President Title 10/11/02 Issue Date hwswa032594 InVision MIGRATION SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS IN CONSIDERATION OF the terms and conditions of the Agreement and other good and valuable consideration, the parties hereto agree as follows: LICENSED SOFTWARE. INCODE agrees to provide CUSTOMER with a non-exclusive, non - transferable license to the INCODE Software described in this Agreement (the "Software "). INCODE will provide CUSTOMER with one set of Existing & New Software documentation as it becomes available at no charge. Additional copies are available for an extra charge. MODIFICATIONS OF SOFTWARE. Any INCODE Software modifications requested by CUSTOMER and agreed upon by INCODE shall be billable at the fee agreed upon by both parties in writing. TERM. This License is effective from the date of execution of this Agreement by both parties. The License granted herein shall remain in full force and effect until CUSTOMER permanently discontinues the use of the Licensed Progam(s) or until INCODE terminates this Agreement, upon written notice to CUSTOMER, by reason of CUSTOMER's failure to comply with any of the terms and conditions of this Agreement. If CUSTOMER inadvertently fails to comply with any of the terms of this Agreement, CUSTOMER will be granted thirty (30) days after written notification from INCODE to comply with the terms of this Agreement prior to termination. - - -- CUSTOMER must return an executed copy of this agreement to INCODE. If the agreements are not returned to INCODE within 90 days from the issue date, then they will be voided and prices are subject to change. PRICE. CUSTOMER agrees to pay the total INCODE Software License Fee amount specified in this Agreement. PAYMENT. A. CUSTOMER agrees to pay sixty percent (60 %)of the balance of the License Fee for the INCODE Software within ten days of the installation date of the software (install is defined as the time in which the INCODE application files are loaded on the CUSTOMER's operating system). B. Customer agrees to pay the remaining forty percent (40 %) and/or balance of the License Fee within 10 days of Acceptance of the software. C. Sections A and B of the payment terms, listed directly above in this agreement, will be invoiced on a per application basis. SOFTWARE ACCEPTANCE. Software will be considered to be accepted by the CUSTOMER when the software has been in use with the CUSTOMER'- "live" data for a period of thirty days (30) and is performing substantially in accordance with INCODE's specifications defined in INCODE's standard documentation. OTHER SERVICES. CUSTOMER agrees to pay INCODE reasonable charges for any services and related travel expenses provided at CUSTOMER's request and not otherwise specified in this Agreement. Unless otherwise specified in this Agreement, these services include, but are not limited lo, customized form printing programs and any other software modifications requested by the CUSTOMER, and INCODE's services will be billed in accordance with INCODE's standard fee schedule. INCODE's standard fee schedule is as follows: $125 /hr for modifications These standard fees shall remain in effect until the completion of delivery and installation of the products and services purchased herein. INCODE will use its best efforts to schedule any of the travel, accommodations and related services to coincide with other installations in the general location of CUSTOMER so the expenses may be shared. SOFTWARE ENVIRONMENT. In order for the INCODE Software to function properly, CUSTOMER must provide a hardware and software environment in accordance with INCODE's specifications. Such environment includes, but is not limited to, use of the appropriate operating system at the version and release levels specified by INCODE and additionally specifies that the environment for any InVision software application requires the City to have e-mail and Internet access. CUSTOMER will be responsible for all additional costs incurred to the extent such hardware and software does not conform to INCODE's specifications. LICENSED SOFTWARE OWNERSHIP. CUSTOMER agrees that INCODE possesses exclusive title to and ownership of the INCODE Software. A. CUSTOMER agrees that CUSTOMER acquires neither ownership nor any other interest in the INCODE Software, except for the right to use and possess the INCODE Software in accordance with the terms and conditions of this Agreement. R. All rights not expressly granted to CUSTOMER in this Agreement are retained by INCODE. C. Customer agrees that INCODE Software including, but not limited to, systems designs, programs in source and/or object code format, applications, techniques, ideas, and/or know -how utilized and/or developed by INCODE are and shall remain the exclusive property of INCODE. CUSTOMER agrees that the INCODE Software consists of INCODE's trade secrets. INCODE shall retain all copyrights in the INCODE Software, whether published or unpublished. SOFTWARE LICENSE. INCODE hereby grants to CUSTOMER a non - transferable and non -exclusive license for the use and possession of a single copy of the INCODE Software. A. INCODE shall not be responsible for problems related to transferring the INCODE Software from one Computer Hardware configuration to another unless INCODE transfers the INCODE Software. R. CUSTOMER agrees that if CUSTOMER modifies the INCODF. Software, INCODE will not be responsible for providing support and/or new Software releases or upgrades. C. CUSTOMER shall not use the INCODE Software in service bureau or time sharing without the express written consent of INCODE and payment of additional fees mutually agreed upon by INCODE and CUSTOMER. D. CUSTOMER shall not use the INCODE Software to perform services for any other entity or person 1 InVision MIGRATION SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS acquired through expansion or merger, if the acquired entity or person creates a substantial increase in the usage of INCODE software, without the express written consent of INCODE and payment of additional fees mutually agreed upon by INCODE and CUSTOMER. E. CUSTOMER agrees that INCODE may enter CUSTOMER's business premises during regular business hours to determine CUSTOMER k compliance with this Section. USE OF SOFTWARE. CUSTOMER may: A. Use the Software temporarily on a back -up machine in the event that the Server is inoperable; B. Make a reasonable number of copies of the Software, solely for archive or emergency back -up purposes and/or disaster recovery purposes;C. Make a reasonable number of copies of Documentation solely for CUSTOMER's internal use with the Software provided all copyright notices are reproduced. BINDING EFFECT. This Agreement shall inure to the benefit of and bind the partics hereto, their successors and assigns. Neither party may assign this Agreement in whole or in part only with the prior written consent of the other party. No subsequent transfer of this Agreement by INCODE shall have any effect upon CUSTOMER's right to use the software in accordance with this Agreement, and any assignee shall be bound by the terms of this Agreement as if it had executed the Agreement. SOFTWARE MAINTENANCE. This License Agreement entitles the CUSTOMER to lnVision software maintenance and support, only if the CUSTOMER is current with their present Annual Software Maintenance Agreement, and only for the specified time period beginning with the InVision Software Installation Date and ceasing at the first Anniversary due date of the present Annual Software Maintenance Agreement. An INCODE InVision Software Maintenance Agreement may be purchased by the CUSTOMER. This License Agreement provides no Software maintenance beyond the present Annual Software Maintenance Agreement's anniversary due date, provided the CUSTOMER has remained current with their present Annual Software Maintenance. INCODE shall provide extended software maintenance only if INCODE and CUSTOMER have so agreed in writing. PROPRIETARY INFORMATION. A. Distribution of INCODE Software. CUSTOMER may not sell, assign, transfer, disclose, or otherwise make available, either directly or indirectly, any object code, documentation or other material relating to the Software, in whole or in part, or any copy of the same in any form, to any other person or entity. B. Software as Trade Secret. CUSTOMER shall maintain the confidentiality of the Software and unless specifically authorized by INCODE or except for ordinary and necessary backup purposes, CUSTOMER may not make or have made any copies of the Software or any part thereof. CUSTOMER shall include INCODE's proprietary notice or other legend on any copies made by CUSTOMER as permitted hereunder. C. Notwithstanding the above, the parties recognize and understand that CUSTOMER is subject to the Texas Public Information Act and its duties run in accordance therewith.. PATENT AND COPYRIGHT INDEMNITY. INCODE shall indemnify and defend CUSTOMER against any claims that the Software infringes any foreign or domestic patent or copyright; provided that INCODE is given prompt notice of such claim and is given information, reasonable assistance, and sole authority to defend of settle the claim. In the defense or settlement of the claim, INCODE shall in its reasonable judgment and at its option and expense: (1) obtain for CUSTOMER the right to continue using the Software; (ii) replace or modify the Software so that it becomes non - infringing while giving equivalent performance. In the event of litigation, CUSTOMER shall have the right to have such litigation monitored by its counsel, at CUSTOMER's expense. WARRANTY; DISCLAIMER, LIMITATION ON LIABILITY. INCODE warrants that the Software will substantially conform to documentation delivered by INCODE to CUSTOMER pursuant to this Agreement, including INCODE's response to the Request for Proposal for six (6) months following installation; provided, however, that INCODE's warranty hereunder shall not cover or apply to any software, or part thereof, that is not developed or designed by INCODE. In the event that the Software is found to be defective in such respect and CUSTOMER notifies INCODE in writing within six (6) months after its receipt of the Software of any substantial nonconformity of the Software with such specifications, INCODE's sole obligation, if possible, under this warranty is to remedy such defect within a reasonable time, not to exceed sixty (60) days of report of error. If INCODE is unable to provide CUSTOMER with a remedy within said sixty (60) working days of the reported nonconformity, the remedy will be available in the next general release and, in the meantime, INCODE will provide a workaround for the CUSTOMER.. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS MADE IN LIEU OF ALL OTHER WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INCODE SHALL IN NO EVENT BE LIABLE FOR DAMAGES THAT EXCEED THE AMOUNT OF THE CHARGES PAID BY CUSTOMER HEREUNDER FOR THE DEVELOPMENT AND LICENSE OF THE SOFTWARE. IN NO EVENT SHALL INCODE BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, REVENUES OR DATA, EVEN IF INCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding any of the other provisions of this Agreement, INCODE warrants that the Software is for the purpose(s) stated in INCODE's standard documentation.. INCODE warrants that the current version of its product will be supported and maintained for 2 InVision MIGRATION SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS a period of not less than five (5) years from the date of installation. HOLD HARMLESS CUSTOMER agrees that it will hold INCODE harmless against any claims, damages, liabilities, costs and expenses, including reasonable attorneys' fees, arising out of or relating to (i) CUSTOMER'; failure to implement any corrections, improvements and new releases relating to the Software, or any part thereof, (ii) CUSTOMERS unauthorized alterations to or use of the Software, or (iii) CUSTOMER§ breach of any of its obligations to maintain the confidentiality of the Software or CUSTOMERS unauthorized copying thereof. INDEMNITY. INCODE shall indemnify, save harmless and exempt CUSTOMER, its officers, agents, servants, and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney fees, and any and all other costs or fees incident to any work done as a result of this Agreement and arising out of a willful or negligent act or omission of INCODE, its officers, agents, servants, and employees; provided, however, that INCODE shall not be liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attorney's fees arising out of a willful or negligent act or omission of CUSTOMER, its officers, agents, servants and employees; provided, however, that INCODE shall not be liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attorney's fees arising out of a willful or negligent act or omission of CUSTOMER, its officers, agents, servants and employees or third parties. TERMINATION. This Agreement or any license employees, or third parties. referenced hereunder may be terminated by either party upon written notice to the other party if either party performs any breach of the terms of this Agreement. At the date of termination of this Agreement, CUSTOMER shall promptly return to INCODE any Software, related documentation, materials and other property of INCODE then in its possession, and any copies thereof wherever located. Notwithstanding the foregoing, all provisions hereof relating to confidentiality of the Software shall survive the termination of this Agreement. ASSIGNMENT. Neither party shall assign this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld. No subsequent transfer of this Agreement by INCODE shall have any effect upon CUSTOMER's right to use the Software in accordance with this Agreement, and any assignee shall be bound by the semis of this Agreement as if it had executed the Agreement. GENERAL. This Agreement shall be governed by the laws of the State of Texas, excluding choice of law principles. Venue shall be in Williamson County, Texas. The section headings are provided for convenience only and have no substantive effect on the construction of this Agreement. No purchase order or other ordering document that purports to modify or supplement the printed text of this Agreement or any Schedule hereto shall not add to or vary the terms of this Agreement. All such proposed variations or additions (whether submitted by INCODE or CUSTOMER) are objected to and deemed material unless agreed to in writing. Except for CUSTOMER's obligation to pay INCODE, neither party shall be liable for any failure due to causes beyond its reasonable control. If any provision of this Agreement is held unenforceable, this Agreement shall be construed without such provision. The failure Ma party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. This Agreement may he amended only by a written document executed by a duly authorized representative of each of the parties. This agreement may be executed in counterparts to expedite order processing. Transmitted documents are considered documents equivalent to original documents, however CUSTOMER and INCODE agree to provide each other with one fully executed original and complete Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the Software described herein, and shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to the matters set forth herein. RELATIONSHIP OF THE PARTIES. The parties acknowledge that INCODE is an independent contractor performing duties on behalf of CUSTOMER. Neither this Agreement, nor the parties' efforts hereunder shall create any relationship of employer-employee, partnership, or joint venture. 3 DESCRIPTION QUANTITY PRICE AcuCorp Runtime v4.0 Upgrade for NT N/A No Charge AcuCorp AcuServer Distributed Data Server Software (# of Users) 0 -25 1,000.00 THE 'THIRD PARTY SOFTWARE TO BE PROVIDED HEREIN IS SUBTOTAL 1,000.00 SUBJECT TO THE ATTACHED TERMS AND CONDITIONS. ACCEPTED BY: ACCEPTED BY: TOTAL 1,000.00 THE CIT OF ROUND ROC- ) INTERACTIVE COMPUTER DESIGNS, INC. DATE DUE THIRD PARTY APPLICATION SOFTWARE SALES AGREEMENT Customer Name City of Round Rock IID #: 2002 -0127 Salesman L. Midkiff/ Street Address 221 E. Main Ave. City Round Rock Contact Person Irma Mendoza Phone Number (512) 218 -5400 P.O. Box State TX PO Ntunber R.Reeves/ E.McNutt Zip 78664 -5271 Tax Exempt YES This agreement is entered into by and between Interactive Computer Designs, Inc.. hereinafter referred to as INCODE, located at 5808 - 4th Street, Lubbock. Texas 79416; and; THE CITY OF ROUND ROCK, hereinafter refcrrcct t as CUSTOMER on, 2002. Pursuant to the terms and conditions of this agreement which are contained on these pages, the CUSTOMER agrees to purchase the following items from INCODE. Date Signature President Title 10/11/02 Issue Date hwswa032594 InVision MIGRATION THIRD PARTY APPLICATION SOFTWARE AGREEMENT TERMS AND CONDITIONS IN CONSIDERATION OF the terns and conditions of the Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: THIRD PARTY APPLICATION SOFTWARE PURCHASE. INCODE agrees to sell and CUSTOMER agrees to buy the Third Party Application Software specified in this Agreement. The rights to use the Third Party Application Software is based exclusively on the terns and conditions of the license from the publisher of the Third Party Application Software to the CUSTOMER. CUSTOMER agrees to he subject to and is bound by all of the terms and conditions of the license agreement relating to such software. ALL WARRANTIES RELATING TO THE THIRD PARTY APPLICATION SOFTWARE ARE PROVIDED DIRECTLY FROM LICENSOR OF THE SOFTWARE UNDER THE TERMS AND CONDITIONS OF THE LIMITED WARRANTY GRANTED THEREBY. INCODE DISCLAIMS RESPONSIBILITY FOR ANY AND ALL WARRANTIES WHETHER EXPRESS OR IMPLIED RELATING TO THE THIRD PARTY APPLICATION SOFTWARE, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TERM. This License is effective from the date of execution of this Agreement by both parties. The License granted herein shall remain in full force and effect until CUSTOMER permanently discontinues the use of the Licensed Program(s) or until INCODE terminates this Agreement, upon written notice to CUSTOMER, by reason of CUSTOMER's failure to comply with any of the terms and conditions of this Agreement. If CUSTOMER inadvertently fails to comply with any of the terms of this Agreement, CUSTOMER will be granted thirty (30) days after written notification from INCODE to comply with the terms of this Agreement prior to termination. CUSTOMER must return an executed copy of this agreement to INCODE. If the agreements are not returned to INCODE within 90 days from the issue date, then they will be voided and prices are subject to change. PRICE. For the right to use the Third Party Application Software, CUSTOMER agrees to pay the total amount specified in this Agreement. PAYMENT. CUSTOMER agrees to pay for the Third Party Application Software in accordance with the following terms: A. Within ten days of the date the Third Party Software is delivered to CUSTOMER, and installed if applicable, the price shall be due and payable. B. All purchases of the rights to use the Third Party Application Software following installation are final. Returns of unopened, uninstalled Third Party Application Software must be made within thirty (30) days from the date of this Agreement. SOFTWARE SUPPORT. Support for Third Party Application Software is not provided by INCODE unless otherwise specified in this Agreement or the associated Software Maintenance Agreement. INCODE's responsibility is limited to delivering the Third Party Application Software and installing the software if installation services are specified in this Agreement. LIMITATION OF LIABILITY. A. INCODE shall not be liable for failure to provide, or delays in providing, any services under this Agreement if due to any cause beyond INCODF.'s reasonable control_ B. CUSTOMER expressly assumes sole responsibility for the selection and use of the Third Party Application Software. C. INCODE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, OR OTIIER ECONOMIC LOSS IN CONNECTION WITH, OR ARISING OUT OF ANY SOFTWARE OR SERVICES PROVIDED IN THIS AGREEMENT. ENCODE SHALL NOT BE LIABLE FOR DAMAGES AS INDICATED ABOVE, EVEN IF INCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. D. In no event shall INCODE be liable for any amount in excess of the monies paid by CUSTOMER to INCODE pursuant to this Agreement. ADDENDUM. Any additional terms that constitute part of this Agreement shall be set forth on the Addendum hereto. GENERAL. This Agreement shall he governed by the laws of the State of Texas, excluding choice of law principles. Venue shall be in Williamson County, Texas. The section headings are provided for convenience only and have no substantive effect on the construction of this Agreement. No purchase order or other ordering document that purports to modify or supplement the printed text of this Agreement or any Schedule hereto shall not add to or vary the terms of this Agreement. All such proposed variations or additions (whether submitted by ENCODE or CUSTOMER) are objected to and deemed material unless agreed to in writing. Except for CUSTOMER's obligation to pay INCODE, neither party shall be liable for any failure due to causes beyond its reasonable control If any provision of this Agreement is held unenforceable, this Agreement shall be construed without such provision. The failure of a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. This agreement may be executed in counterparts to expedite order processing. Transmitted documents are considered documents equivalent to original documents, however CUSTOMER and INCODE agree to provide each other with one fully executed original and complete Agreement. This THIRD PARTY APPLICATION SOFTWARE AGREEMENT TERMS AND CONDITIONS ADDENDUM A Agreement constitutes the entire agreement between the parties hereto with respect to the Software described herein, and shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to the matters set forth herein. purcnasc me rouowmg hems rrom Iry 'corm. DESCRIPTION QUANTITY PRICE Custom Programming* GL Interface from InVision CIS * Please Note: INCODE has connected to the City's system and determined the existence of, and /or extent of the custom programming listed above. 1 1,000.00 THE CONVERSION SERVICES TO BE PROVIDED HEREIN ARE SUBJECT TO THE ATTACHED TERMS AND CONDITIONS. ACCEPTED BY: ACCEPTED BY: CS \ THE CITY OF ROUND RO I INTERACTIVE COMPUTER DESIGNS, INC SUBTOTAL 1,000.00 TOTAL 1,000.00 DATE DUE Customer Name City of Round Rock IID #: 2002 - 0127 Salesman L.Midkiff/ Street Address 221 E. Main Ave. City Round Rock Contact Person Irma Mendoza Phone Number (512) 218 P.O. Box State TX PO Number R.Reeves/ K.McNutt Zip 78664 -5271 Tax Exempt YES This agreement is entered into by and betweenInteractive Computer Designs, Inc, hereinafter referred to asINCODE, located at 5808 - 4th Street, Lubbock, Texas 79416; and; THE CITY Of ROUND ROCK, hereinafter referred to as CUSTOMER on, 2002. Pursuant to the terms and conditions of this agreement which are contained on these pages, the CUSTOMER agrees to • SOFTWARE CONVERSION AGREEMENT By Signature President Title 10/11/02 Issue Date hwswa032594 InVision MIGRATION SOFTWARE CONVERSION AGREEMENT TERMS AND CONDITIONS IN CONSIDERATION OF good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: CONVERSION SERVICES. INCODE agrees to provide the conversion services described on the first page of this Agreement (the "Services "), and CUSTOMER agrees to pay the amounts set forth herein for the Services. TERM. CUSTOMER must return an executed copy of this agreement to INCODE. If the agreements are not returned lo INCODE within 90 days from the issue date, then they will be voided and prices are subject to change. PRICE. For the purchase of the Services, CUSTOMER agrees to pay the total amount specified on the first page of this Agreement. CONVERSION ACCEPTANCE. Data conversion activities described herein will be considered accepted by CUSTOMER when the converted data is accurate and has been in use by CUSTOMER for a period of sixty (60) days and performs substantially in accordance with INCODE's specifications defined in INCODE'S standard documentation and any modifications requested by CUSTOMER. PAYMENT. CUSTOMER agrees to pay for the Services in accordance with the following: A. Within fifteen days after the conversion acceptance for each application listed in this Agreement, CUSTOMER agrees to pay in full the balance of the total amount specified in this Agreement for such conversion. CUSTOMER'S OBLIGATIONS. As a condition to INCODE's obligations hereunder, CUSTOMER agrees to the following. A. To provide INCODE with sufficient file descriptions and layout information for the data to be converted for each software application. B To provide INCODE with data in an ASCII file format with unpacked data fields. This data may be provided on DOS compatible 3.5 inch diskettes, 4mm DAT tape or CD OR UNIX compatible 1/4 inch streaming tape, in either TAR, CPIO, or "SM1T" backup formats, 4mm DAT tape or CD. C. To provide INCODE with data that is current as of the dates agreed upon between the CUSTOMER and INCODE. D. To pay for any charges or fees billed by a third party for the purpose of providing data to INCODE in the required format set forth in "CUSTOMER'S OBLIGATIONS" Section B. above. E. If the data is not provided to INCODE in the required format set forth in "CUSTOMER'S OBLIGATIONS" Section B. above, and dependent on the complexity of the data, INCODE may charge additional fees. F. To promptly review necessary reports to verify accuracy of the conversion. LEGAL CONSTRUCTION. In case any one or more of the provisions contained in this Agreement shall 1'or any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein. CUSTOMER DELAYS. If any act of failure to act by the CUSTOMER delays INCODE's performance, INCODE shall be excused from performance for an amount of time commensurate with the delay caused by CUSTOMER. CUSTOMER acknowledges that its delay may excuse INCODE from performance for an amount of time greater than the delay caused by CUSTOMER. Such delays by CUSTOMER that may cause INCODE to delay performance include, but are not limited to, the following: A. CUSTOMER's failure to adequately prepare in advance for the conversion Services as specified by INCODE. B. CUSTOMER's failure to provide accurate data for use by INCODE in any respect, on the date and in the format required by INCODE. LIMITATION OF LIABILITY. A. INCODE shall not be liable for failure to provide, or delays in providing, Services under this Agreement if due to any cause beyond INCODE's reasonable control. B. CUSTOMER assumes sole responsibility for making complete up -to -date backups of existing data prior to conversion of the data. C. INCODE shall not be liable for inaccurate data in INCODE's application software which is the result of conversion of inaccurate data from the previous system. D. INCODE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS WARRANTIES NOT INCORPORATED INTO THIS AGREEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IMPOSED BY LAW OR WHICH COULD OTIIERWISE ARISE IN CONNECTION WITH INCODE'S PERFORMANCE UNDER THIS AGREEMENT. E INCODE AND CUSTOMER ACKNOWLEDGE AND AGREE THAT, EXCEPT FOR ANY DAMAGES CLAIMED BY CUSTOMER AND FINALLY AWARDED AGAINST INCODE IN CONNECTION WITH PERSONAL INTURY TO CUSTOMER PERSONNEL RESULTING FROM INCODE'S NEGLIGENT BEHAVIOR WHILE PERFORMING SERVICES HEREUNDER, IN NO EVENT WILL INCODE'S LIABILITY TO THE CUSTOMER, IF ANY FOR ANY CLAIM OR REASON WHATSOEVER RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO INCODE. CUSTOMER AND INCODE ACKNOWLEDGE AND AGREE THAT INCODE WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF DATA, AND LOSS OF REVENUES, EVEN IF INFORMED OF THE POSSIBILITY TIIEREOF IN ADVANCE. TITESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, INCODE'S NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER CAUSES OF ACTION BASED ON SIMILAR LEGAL THEORIES. INCODE AND CUSTOMER FURTHER ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT ON THE UNDERSTANDING THAT THE FEES FOR THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT HAVE BEEN SET TO REFLECT THE FACT THAT CUSTOMERS REMEDIES, AND INCODE'S LIABILITY, SHALL BE LIMITED AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND IF NOT SO LIMITED, THE FEES FOR THE SAME WOULD HAVE BEEN SUBSTANTIALLY HIGHER. In no event shall INCODE be liable for any amount in excess of the amount paid by CUSTOMER to INCODE pursuant to this Agreement. 1 InVision MIGRATION SOFTWARE CONVERSION AGREEMENT TERMS AND CONDITIONS FORCE MAJEURE. INCODE shall not be liable to Customer for any delay or failure by INCODE to perform its obligations under this Agreement or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of INCODE, including, but not limited to, labor disputes, strikes, other labor or industrial disturbances, acts of God, floods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of public enemy, riots, insurrections, embargoes, blockages, actions, restrictions, regulations, or orders of any government, agency or subdivision thereof. WAIVER. The terms, covenants, representations, warranties and conditions of this Agreement may be waived only in a written agreement signed by the party waiving compliance therewith. No waiver by any party of any condition, or the breach of any term, covenant, representation, warranty or condition set forth herein, whether by conduct or otherwise, in any one or more instances, shall be construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or the breach of any other term, covenant, representation, warranty or condition set forth. GENERAL. This Agreement shall be governed by the laws of the State of Texas, excluding choice of law principles. Venue shall be in Williamson County, Texas. The section headings are provided for convenience only and have no substantive effect on the construction of this Agreement. No purchase order or other ordering document that purports to modify or supplement the printed text of this Agreement or any Schedule hereto shall not add to or vary the terms of this Agreement. All such proposed variations or additions (whether submitted by INCODE or CUSTOMER) are objected to and deemed material unless agreed to in writing. Except for CUSTOMER's obligation to pay INCODE, neither party shall be liable for any failure due to causes beyond its reasonable control. If any provision of this Agreement is held unenforceable, this Agreement shall be construed without such provision. The failure of a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. This agreement may be executed m counterparts to expedite order processing. Transmitted documents are considered documents equivalent to original documents, however CUSTOMER and INCODE agree to provide each other with one fully executed original and complete Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the Software described herein, and shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to the matters set forth herein. RELATIONSHIP OF THE PARTIES. The parties acknowledge that INCODE is an independent contractor performing duties on behalf of CUSTOMER. Neither this Agreement, nor the parties' efforts hereunder shall create any relationship of employer - employee, partnership, or joint venture. INDEMNITY. INCODE shall indemnify, save harmless and exempt CUSTOMER, its officers, agents, servants, and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney fees, and any and all other costs or fees incident to any work done as a result of this Agreement and arising out of a willful or negligent act or omission of INCODE, its officers, agents, servants, and employees; provided, however, that INCODE shall not be liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attorney's fees arising out Ma willful or negligent act or omission of CUSTOMER, its officers, agents, servants and employees, or third parties. 2 DESCRIPTION QUANTITY PRICE Estimated On -Site Assistance for InVision's CIS Features (# of Hours) 64 Hours 7,600.00 InVision Utility CIS Central Cash Collection Service Order Management Estimated On -Site Travel Expenses 1 4,936.00 Please Note: Estimated On -Site Assistance reflects training, setting up hardware, and /or confirming migration. THE TRAINING SERVICES TO BE PROVIDED HEREIN ARE SUBTOTAL 12,536.00 SUBJECT TO THE ATTACHED TERMS AND CONDITIONS. ACCEPTED BY: ACCEPTED BY: TOTAL 12,536.00 THE CITY OF ROUND ROCK INTERACTIVE COMPUTER DESIGNS. INC. DATE DUE Customer Name 1ID #: 2002 -0127 City of Round Rock Salesman L.Midkiff/ Street Address 221 E. Main Ave. City Round Rock Contact Person Irma Mendoza Phone Number (512) 218-5400 P.O. Box State TX PO Ntmiber R.Reeves/ K.McNutt Zip 78664 -5271 Tax Exempt YES This agreement is entered into by and betweenInteractive Computer Des'gns, Inc, hereinafter referred to asINCODE, located at 5808 - 4th Street, Lubbock, Texas 794 6; and; THE CITY OF ROUND ROCK, hereinafter referred to as CUSTOMER on, , 2002. Pursuant to the terms and conditions of this agreement which are contained on these pages, the CUSTOMER agrees to purchase the following items from 1NCODE. 0.IStO By Title Date SOFTWARE TRAINING AGREEMENT Signature President Title 10/11/02 Issue Date hwswa032594 InVision MIGRATION SOFTWARE TRAINING AGREEMENT TERMS AND CONDITIONS IN CONSIDERATION OF the terms and conditions of the Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: INCODE TRAINING. INCODE agrees to provide the CUSTOMER with the training described in this Agreement. Training may also include time required to install and configure INCODE software on existing CUSTOMER hardware, and/or confirming migration. Additional training may be provided by INCODE upon the request of the Customer. Additional training will be billed on a time and material basis on the basis of the fees schedule provided to Customer, or on terms agreed to prior to the time such services are provided by INCODE. See fee schedule below in the section entitled "PRICE ". TERM. CUSTOMER must return an executed copy of this agreement to INCODE. If the agreements are not returned to INCODE within 90 days from the issue date, then they will be voided and prices are subject to change. PRICE. CUSTOMER agrees to pay INCODE for the actual amount of training provided. This Agreement reflects the estimated cost for the training proposed to be furnished by INCODE. The price quoted for CUSTOMER Training has been partially based on INCODE's current training rates. Training fees will be invoiced as incurred based on the INCODE personnel assigned to the CUSTOMER's installation. INCODE agrees to maintain the quoted rates for a period of six (6) months. Should training occur more than six (6) months after these Agreements are signed, INCODE reserves the right to charge CUSTOMER the prevailing training rates at the time of training. In these situations, CUSTOMER agrees to pay INCODE training fees at the rates which prevail at the time training is conducted. INCODE agrees that any potential rate increase is limited to 10% over the life of this training agreement. INCODE's current training rates are as follows: Senior Project Manager $162.50/hr Project Manager $118.75/hr Senior Software Specialist $106.25/fu Software Specialist $100.00 /hr Not withstanding the above, the on -site training costs shall not be increased for the duration of the Utility System InVision Migration. FEES AND PAYMENT, CUSTOMER agrees to pay for INCODE training in accordance with the following: A. CUSTOMER will be billed for reasonable travel and other expenses as incurred by INCODE. B. CUSTOMER is not charged for travel time to and from the CUSTOMER'S site. Only time spent on -site is billed as training time; excluding those cases in which the CUSTOMER requires the INCODE trainer(s) to travel on the weekend, in which case CUSTOMER will be billed for weekend travel time at a rate of $500 per weekend day. C. If training fees and/or travel expenses are financed by the CUSTOMER and INCODE is paid in advance for training, INCODE will provide invoices to the CUSTOMER as training fees and travel expenses are incurred, showing a credit on the invoice until such time the credit becomes exhausted. Any charges for training over and above the amount paid in advance will be billed to the CUSTOMER and will be due and payable upon receipt. D. CUSTOMER agrees to pay all expenses related to transportation of CUSTOMER's employees. TRAINING ENVIRONMENT. If training is being conducted at the CUSTOMERS site, the CUSTOMER is responsible for providing a productive environment to conduct training. INCODE is not responsible for its inability to conduct training or for inadequate training arising due to interruptions and/or unavailability of CUSTOMER personnel to be trained. Time spent on -site by INCODE that results in non - productive training time beyond INCODE's control will be billed as training time. INCODE will make reasonable efforts to schedule training on dates requested by the CUSTOMER. Trainers will be on -site approximately noon Monday through noon Friday. This allows appropriate travel time to and from the CUSTOMER's site. INCODE's training effort shall be staffed with professional personnel with standards and qualifications necessary for a successful training program. If in the opinion of CUSTOMER the assigned training personnel do not or cannot successfully complete the training project, CUSTOMER may, at its sole option, request replacement personnel to complete the training and CUSTOMER shall not be charged for the time spent by the removed personnel. TRAVEL EXPENSES. In addition to other reimbursable expenses incurred by INCODE, CUSTOMER agrees to pay INCODE's reasonable travel expenses related to the on -site training services to he provided hereunder. A. Travel expenses may include but is not limited to airfare, automobile rental, lodging, per diem, gasoline, parking fees and mileage (if a personal automobile is used for travel to the CUSTOMER's site), plus a 10% processing fee. INCODE will not charge the CUSTOMER for actual travel time. B. CUSTOMER understands and agrees that any estimate of travel expense stated in this Agreement is an estimate and that the CUSTOMER will be billed the actual amount of expense incurred by INCODE. PREREQUISITES. The CUSTOMER agrees that the Training quoted herein does not include training the CUSTOMER'S personnel in their job skills. INCODE's training is intended to provide instruction on the basic skills required to operate INCODE's application software. A. The CUSTOMER represents that the personnel that will receive training are competent and possess the necessary skills required to execute the responsibilities of their position. B. The CUSTOMER acknowledges that any additional training that maybe required due to personnel who do not possess the necessary skills required to execute the responsibilities of their position will be billed on a time and material basis. C. INCODE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED 1 InVision MIGRATION SOFTWARE TRAINING AGREEMENT TERMS AND CONDITIONS TO, ANY EXPRESS WARRANTIES NOT INCORPORATED INTO THIS AGREEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IMPOSED BY LAW OR WHICH COULD OTHERWISE ARISE IN CONNECTION WITH INCODES PERFORMANCE UNDER THIS AGREEMENT. D. INCODE AND CUSTOMER ACKNOWLEDGE AND AGREE THAT, EXCEPT FOR ANY DAMAGES CLAIMED BY CUSTOMER AND FINALLY AWARDED AGAINST INCODE IN CONNECTION WITH PERSONAL INJURY TO CUSTOMER PERSONNEL RESULTING FROM INCODES NEGLIGENT BEHAVIOR WHILE PERFORMING SERVICES HEREUNDER, IN NO EVENT WILL INCODES LIABILITY TO THE. CUSTOMER, IF ANY FOR ANY CLAIM OR REASON WHATSOEVER RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO INCODE. CUSTOMER AND INCODE ACKNOWLEDGE AND AGREE THAT INCODE WILL NOT BE LIABLE TO CUSTOMER IN EXCESS OF THE AMOUNT OF THIS AGREEMENT. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, INCODES NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER CAUSES OF ACTION BASED ON SIMILAR LEGALTHEORIES. INCODE AND CUSTOMER FURTHER ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT ON THE UNDERSTANDING THAT THE FEES FOR THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT HAVE BEEN SET TO REFLECT THE FACT THAT CUSTOMERS REMEDIES, AND INCODES LIABILITY, SHALL BE LIMITED AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND IF NOT SO LIMITED, THE FEES FOR THE SAME WOULD HAVE BEEN SUBSTANTIALLY HIGHER. FORCE MAJEURE. The parties to this Agreement shall not be liable to each other for any delay or failure of the other party to perform its obligations under this Agreement or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of either party, including, but not limited to, labor disputes, strikes, other labor or industrial disturbances, acts of Clod, floods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of public enemy, riots, insurrections, embargoes, blockages, actions, restrictions, regulations, or orders of any government, agency or subdivision thereof. INDEMNITY. INCODE shall indemnify, save harmless and exempt CUSTOMER, its officers, agents, servants, and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney fees, and any and all other costs or fees incident to any work done as a result of this Agreement and arising out of a willful or negligent act or omission of INCODE, its officers, agents, servants, and employees; provided, however, that INCODE shall not be liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attorney's fees arising out of a willful or negligent act or omission of CUSTOMER, its officers, agents, servants and servants and employees; provided, however, that INCODE shall not be liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attorney's fees arising out of a willful or negligent act or omission of CUSTOMER, its officers, agents, servants and employees or third parties. GENERAL. This Agreement shall be governed by the laws of the State of Texas, excluding choice of law principles. Venue shall be in Williamson County, Texas. The section headings are provided for convenience only and have no substantive effect on the construction of this Agreement. No purchase order or other ordering document that pm to modify or supplement the printed text of this Agreement or any Schedule hereto shall not add to or vary the terms of this Agreement. All such proposed variations or additions (whether submitted by INCODE or CUSTOMER) are objected to and deemed material unless agreed to in writing. Except for CUSTOMER's obligation to pay INCODE, neither party shall be liable for any failure due to causes beyond its reasonable control. If any provision of this Agreement is held unenforceable, this Agreement shall be construed without such provision. The failure of a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. This agreement may be executed in counterparts to expedite order processing. Transmitted documents are considered documents equivalent to original documents, however CUSTOMER and INCODE agree to provide each other with one fully executed original and complete Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the Software described herein, and shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to the matters set forth herein. TERMINATION. This Agreement or any license employees, or third parties. referenced hereunder may be terminated by either party upon written notice to the other party if either party performs any breach of the terms of this Agreement. At the date of termination of this Agreement, CUSTOMER shall promptly return to INCODE any Software, related documentation, materials and other property of INCODE then in its possession, and any copies thereof wherever located. Notwithstanding the foregoing, all provisions hereof relating to confidentiality 2 InVision MIGRATION SOFTWARE TRAINING AGREEMENT TERMS AND CONDITIONS of the Software shall survive the termination of this Agreement. ASSIGNMENT. Neither party shall assign this Agreement without the prior written consent aft. other party, such consent shall not be unreasonably withheld. No subsequent transfer of this Agreement by INCODE shall have any effect upon CUSTOMER's right to use the Software in accordance with this Agreement, and any assignee shall be bound by the terms of this Agreement as if it had executed the Agreement. WAIVER. The terms, covenants, representations, warranties and conditions of this Agreement may he waived only in a written agreement signed by the party waiving compliance therewith. No waiver by any party of any condition, or the breach of any term, covenant, representation, warranty or condition set forth herein, whether by conduct or otherwise, in any one or more instances, shall be construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or the breach of any other term, covenant, representation, warranty or condition set forth. INSURANCE. INCODE warrants that it satisfactorily possesses the following insurance: (a) General Liability (b) Professional Liability (c) Worker's Compensation RELATIONSHIP OF THE PARTIES. The parties acknowledge that INCODE is an independent contractor performing duties on behalf of CUSTOMER. Neither this Agreement, nor the parties' efforts hereunder shall create any relationship of employer-employee, partnership, or joint venture. 1 DESCRIPTION QUANTITY PRICE InVision Utility CIS 1 15,288.00 Central Cash Collection 1 3,724.00 Service Order Management 1 2,940.00 Third Party AcuCorp AcuServer Distributed Data Server Software (# of Users) 0 -25 200.00 Custom Programming GL Interface from InVision CIS 1 250.00 THF, MAINTENANCE SERVICES TO BE PROVIDED HEREIN ARE SUBTOTAL 22,402.00 SUBJECT TO THE ATTACHED TERMS AND CONDITIONS. SALES TAX ACCEPTED BY: ACCEPTED BY: TOTAL 22,402.00 THE CITY OF ROUND ROCK s _ \ INTERACTIVE COMPUTER DESIGNS, INC. DATE DUE ANNUAL SOFTWARE MAINTENANCE AGREEMENT Customer Name City of Round Rock IID #: 2002 -0127 Salesman L.Midkiff/ Street Address 221 E. Main Ave. City Round Rock Contact Person Irma Mendoza Phone Number (512) 218 -5400 P.O. Box State TX PO Number R.Reeves/ K.McNutt Zip 78664 -5271 Tax Exempt YES This agreement is entered into by and between[nteractive Computer Designs, Inc, hereinafter referred to asINCODE, located at 5808 - 4th Street, Lubbock, Texas 79416; and; THE CITY OP ROUND ROCK, hereinafter referred to as CUSTOMER on, 2002. Pursuant to the terms and conditions of this agreement which are contained on these pages, the CUSTOMER agrees to purchase the following items from INCODE. Date B y it'Q /� Signature President Title 10/11/02 Issue Date bwswa032594 InVision MIGRATION SOFTWARE MAINTENANCE AGREEMENT TERMS AND CONDITIONS IN CONSIDERATION OF the terms and conditions oldie Agreement and other good and valuable consideration, the parties hereto agree as follows: SOFTWARE SUPPORT. INCODE shall provide CUSTOMER with software support for the INCODE Software and Sublicensed (Third Party) Software specified on the first page of this Agreement. CUSTOMER acknowledges if the INCODE Software and Sublicensed Software specified on the first page of this agreement includes any InVision software applications. the CUSTOMER will be required to mai ntain e-mail and Internet access, in order to receive INCODE software support and upgrades for any InVision application. ERROR CORRECTION. An error correction is defined as e change made to the INCODE Software so that the INCODE Software functions in accordance with its specifications. As part of the maintenance services provided herein, INCODE shall provide error corrections in accordance with the following: A. INCODE shall provide reasonable systems analysis and programming services to correct documented errors which in INCODES opinion are caused by a defect in an unaltered version of the INCODE Software. B. If the CUSTOMER notifies INCODE that an error exists and INCODES investigation reveals that the error is due to some cause other than a malfunction of the INCODE Software, then the CUSTOMER agrees to compensate INCODE for its efforts at INCODES then standard rates. Examples of causes of this type error include but are not limited lo, errors caused by CUSTOMERS personnel, erroneous dates, and hardware malfunctions. ENHANCEMENTS. INCODE shall at its sole discretion make Enhancements to the INCODE Software. INCODE shall provide CUSTOMER these Enhancements as and when they are made generally available. An Enhancement as used in this Agreement is defined as an improvement to the Software, such as but not limited to adding a report, adding a function, or a new program INCODE shall use its best efforts to insure that Enhancements shall be staying current with technology. A. CUSTOMER acknowledges that the Enhancements may not be compatible with CUSTOMERS particular hardware configuration or operating system CUSTOMER acknowledges that additional hardware and software may be requited at the CUSTOMERS expense in order to utilize the Enhancements B. If the vendor of Sublicensed Software distributes software Enhancements without charge to INCODE, INCODE shall notify CUSTOMER of such distribution and offer said Enhancements to CUSTOMER for a reasonable shipping charge, INCODE shall advise CUSTOMER if it is in the best interest of CUSATOMER to install such Enhancements. UPDATES. An update is defined as a change trade in the INCODE Software which is required in order for the software to function according to INCODES software specifications. Updates of the INCODE Software are provided to CUSTOMER as pan of the maintenance services provided by this Agreement. Updates would include, but are not necessarily limited to the following: A. Installation of an Error Correction. B. Any change in the INCODE Software that does not add a function. C. A change made necessary because of legislative changes to CUSTOMERS State statutes or by procedural changes directed by State agencies having control over CUSTOMERS operations. (1) CUSTOMER will provide INCODE with the necessary information required in order to make the changes necessitated. (2) It is the CUSTOMER's responsibility to notify INCODE of such legislative changes. (3) CUSTOMER acknowledges that if such changes would in INCODES sole determination require a major rewrite of the INCODE Software, or if such changes are not required by any other INCODE CUSTOMERS in that state, INCODE, would make such changes for a reasonable mutually agreed cost. (4) CUSTOMER acknowledges that INCODE will have a reasonable amount of time to make any such changes to the INCODE Software. Ilowever, INCODE shall use its best efforts to meet any effective date of any such legislation. NEW RELEASES. INCODE shall provide CUSTOMER with all new releases of the INCODE software applications. A New Release is defined as a major rewrite of an INCODE Software application and which replaces the old release. INCODE shall use its best efforts to insure that Enhancements and New Releases shall be staying current with technology. A. CUSTOMER acknowledges that the New Release may not be compatible with CUSTOMERS particular hardware configuration or operating system CUSTOMER acknowledges that additional hardware and software may be required at the CUSTOMER's expense in order to utilize the New Release. B. CUSTOMER acknowledges that INCODE shall be given a reasonable amount of time to install such New Releases after the date the New Release becomes generally available to INCODES customers. TELEPHONE SUPPORT. INCODE shall provide CUSTOMER telephone support far answering questions concerning use of INCODE Software. This service shall be provided between the hours of 8:00 a.m. and 5:00 p.m. Central Time, Monday through Friday, excluding holidays. ON -LINE SUPPORT. INCODE shall provide CUSTOMER with on -line support through the use of communications modem and software. On -line support shall include the following services: A. INCODE may provide software Updates and Enhancements either by means of on -line support or on diskette. B. INCODE is responsible for all on -line support long distance charges originated from INCODES offices incurred while providing Updates and Enhancements. C. CUSTOMER shall provide telephone lines, communications software specified by INCODE and all equipment necessary at CUSTOMER location to use INCODES on -line support. SOFTWARE COVERED. This Agreement applies to all licensed INCODE Software listed on this Agreement. If CUSTOMER acquires additional INCODE Software in the future, such software shall be subject to this Agreement. The additional INCODE Software shall be subject to the annual maintenance fees already being charged to CUSTOMER. The Software Maintenance Agreement must include all INCODE Software applications licensed to CUSTOMER. FEES AND PAYMENT. For the services provided herein, CUSTOMER agrees to pay the annual maintenance fee as specified in this Agreement in accordance with the following: A. The Licensing Fee of the INCODE InVision Software includes maintenance from the time the InVision software is installed until the first anniversary due date of your present Annual Software Maintenance Agreement, provided the CUSTOMER is current with their present Annual Software Maintenance Agreement. B. The InVision Annual Maintenance fees will not become due until the first renewal date of your present Annual Software Maintenance Agreement, following the installation of the InVision product. If Customer fails to pay the maintenance fee when due, INCODE shall have the tight in its sole discretion to suspend its performance or terminate this Agreement. EXPENSES. CUSTOMER is responsible for the reasonable expenses incurred by INCODE in its performance of this Agreement such as travel, lodging, and transportation. TERM. CUSTOMER must return an executed copy of this agreement to INCODE. If the agreements are not returned to INCODE within 90 days from [he issue date, then they will be voided and prices are subject to change. This Agreement shall become effective ['tithe dale executed by an officer of INCODE, and shall have a term beginning upon the first anniversary due date of your 1 InVision MIGRATION SOFTWARE MAINTENANCE AGREEMENT TERMS AND CONDITIONS present Annual Software Maintenance Agreement, after the installation of the InVision INCODE Software, and ending upon the last day of the month one year following that date. A. This Agreement will automatically renew for subsequent one year terms unless either party gives the other party at least thirty days prior written notice of its intent not to renew. Fees for subsequent years are subject to change. B. If CUSTOMER has not elected to participate in the INCODE Software Maintenance Agreement, or elects not to renew the Agreement, the CUSTOMER shall acquire Software maintenance in accordance to the Section entitled "SUPPORT FOR CUSTOMERS NOT PARTICIPATING ", C. INCODE shall not increase maintenance fees more than ten percent (10 %) per year and will furnish CUSTOMERS schedule of fees not less than forty -five (45) days prior to the expiration of the then current agreement. SUPPORT FOR CUSTOMERS NOT PARTICIPATING. If CUSTOMER elects not to participate in the INCODE Software Maintenance Agreement, CUSTOMER shall receive support on a Time and Materials basis, following the first anniversary due date of your present Annual Software Maintenance Agreement, after the InVision INCODE Software is installed, in accordance with the following terms: A. Support telephone and modem calls and related work and/or expenses will be billed at INCODE's then current hourly rate with a fifteen - minute minimum B. Updates, Enhancements and New Releases shall be provided to CUSTOMER at CUSTOMERS request. The fee for said Updates, Enhancements and New Releases shall be determined solely by INCODE at the time the request is made by CI ISTOMER. C. If CUSTOMER elects not to have Updates, Enhancements and New Releases to the INCODE Software installed, INCODE shall not be responsible for its inability to support the INCODE Software. ADDITIONAL SERVICES. The Services listed below are not included in the INCODE Software Maintenance Agreement. These services, if requested by CUSTOMER, shall be provided at INCODE's discretion and will be billed on a Time and Materials basis at INCODES current rates. A. Changes in print programs. B. Software modification unique to particular CUSTOMER installation. C. Responding to problems caused by CUSTOMER'S personnel, including but not limited to operator errors. D. Providing operator training. E. Responding to problems caused by bad data. F. Performing hardware maintenance or hardware diagnostics. G. Responding to problems caused by hardware. H. Responding to problems caused by software that is not INCODE Software or software not specifically covered by this Agreement. I. Responding to problems resulting from misuse, accidents, CUSTOMER neglect, fire, or any other cause not Within. INCODES reasonable control. I. Changes made to the INCODE Software by someone other than INCODE personnel. K. Any other services performed by INCODE not otherwise specifically provided for in this Agreement. REMEDIES, A. INCODE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS WARRANTIES NOT INCORPORATED INTO THIS AGREEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IMPOSED BY LAW OR WHICH COULD OTFIERWISE ARISE IN CONNECTION WITH INCODE's PERFORMANCE UNDER TIIIS AGREEMENT. B. INCODE AND CUSTOMER ACKNOWLEDGE AND AGREE THAT, EXCEPT FOR ANY DAMAGES CLAIMED BY CUSTOMER AND FINALLY AWARDED AGAINST INCODE IN CONNECTION WITH PERSONAL INJURY TO CUSTOMER PERSONNEL RESULTING FROM INCODES NEGLIGENT BEHAVIOR WHILE PERFORMING SERVICES HEREUNDER, IN NO EVENT WILL INCODE 's LIABILITY TO THE CUSTOMER, IF ANY FOR ANY CLAIM OR REASON WHATSOEVER RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEED ONE YEARS MAINTENANCE FEES PAID BY CUSTOMER. CUSTOMER AND INCODE ACKNOWLEDGE AND AGREE THAT INCODE WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL. DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF DATA, AND LOSS OF REVENUES. EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE, THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY. INCODES NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER CAUSES OF ACTION BASED ON SIMILAR LEGAL THEORIES. INCODE AND CUSTOMER FURTHER ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT ON THE UNDERSTANDING THAT THE FEES FOR THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT HAVE BEEN SET TO REFLECT THE FACT THAT CUSTOMERS REMEDIES, AND INCODES LIABILITY, SHALL BE LIMITED AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND IF NOT SO LIMITED, THE FEES FOR THE SAME WOULD HAVE BEEN SUBSTANTIALLY HIGHER. FISCAL FUNDING. This Agreement is a commitment of CUSTOMER's current revenues only. 11 is understood and agreed that CUSTOMER shall have the right to terminate this Agreement at the end of any of CUSTOMER's fiscal year (October I through September 30) if the governing body of CUSTOMER does not appropriate funds sufficient to pay the contractual charges as stated herein or attached hereto corning due in the CUSTOMER'S next fiscal yea, as determined by Customer's budget for the fiscal year in question. CUSTOMER may elect to terminate this Agreement at the end of the Agreement term and before the end of the then current fiscal year without incurring any financial liability. CUSTOMER shall endeavor to pay any charges which are due and have not been paid from those funds remaining which are appropriated for said charges at or before the end of its Then current fiscal year. In the event the term of this Agreement or any associated Agreement falls into more than one fiscal year, and if CUSTOMER must terminate any said Agreement due to nonappmpriation of funds during the term other than the initial included year, CUSTOMER shall be entitled to a partial refund of the prepaid Agreement(s) or a partial abatement if fees have not been paid. GENERAL. This Agreement shall be governed by the laws of the State of Texas, excluding choice of law principles. Venue shall be in Williamson County, Texas. The section headings are provided for convenience only and have no substantive effect on the construction of this Agreement. No purchase order or other ordering document that purports to modify or supplement the printed text of this Agreement or any Schedule hereto shall not add to or vary the terms of this Agreement. All such proposed variations or additions 2 InVision MIGRATION SOFTWARE MAINTENANCE AGREEMENT TERMS AND CONDITIONS (whether submitted by INCODE or CUSTOMER) are objected to and deemed material unless agreed to in writing. Except for CUSTOMER'S obligation to pay INCODE, neither parry shall be liable for any failure due to causes beyond its reasonable control. If nay provision of this Agreement is held unenforceable, this Agreement shall be construed without such provision. The failure of a party to exercise any right hereunder shall not operate as a waiver of such parry's right to exercise such right or any other right in the future, This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. This agreement may be executed in counterparts to expedite order processing. Transmitted documents are considered documents equivalent to original documents, however CUSTOMER and INCODE agree to provide such other with one fully executed original and complete Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the Software described herein, and shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to the maners set forth herein. RELATIONSHIP OF TILE PARTIES. The parties acknowledge that INCODE is an independent contractor performing duties on behalf of CUSTOMER. Neither this Agreement, nor the parties' efforts hereunder shall create any relationship of employer-employee, partnership, or joint venture. INDEMNITY. INCODE shall indemnify, save harmless and exempt CUSTOMER its officers, agents, servants, and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney fees, and any and all other costs or fees incident to any work done as a result of this Agreement and arising out of a willful or negligent act or omission of INCODE, its officers, agents, servants, and employees; provided, however, that INCODE shall not he liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attomey's fees arising out of a willful or negligent actor omission of CUSTOMER its officers, agents, servants and employees, or third parties. BINDING EFFECT AND ASSIGNMENT. This Agreement shall inure to the benefit of and bind the parties hereto, their successors and assigns. Neither party shall assign this Agreement without the prior written consent of the other. No subsequent transfer of this Agreement by INCODE shall have any effect upon CUSTOMER'S right to use the software in accordance with this Agreement and any assignee shall be bound by the terra of this Agreement as if it had executed the Agreement. 2 INCODE InVision Migration Customer Survey Customer Name Address Primary Contact Title Primary Phone Fax Number E -mail Address Location (Directions) General custorner'int ,rm+ tton Lending Agent Name of the Lending Agent Name of Contact at Lending Agent Lending Agent Phone Number Other Contacts by Department Department Contact Phone /Ext. INCODE InVision Migration Customer Survey 1 Hardwa I fnrrmc ion NOTE: We require access to a PC on your Network via pcAnywhere. pcAnywhere access will need to be in place 2 weeks prior to scheduled training. Will you be using a modem or the Internet (requires a static, "routable" IP address) for remote pcAnywhere access? If using a modem, do you have a phone line in place? Is the modem shared with a fax or is it a dedicated line? What is your modem number? If using the Internet, what is the IP Address for the machine where pcAnywhere is installed? What is the pcAnywhere login name & password? NOTE : If modem is installed by customer, a technician must be on hand and INCODE must have tested connection prior to sending trainer. What printers will you be using? (Indicate the printer to be used for forms such as AP, PY & Utility Refund checks and Utility Bills.) Do your existing PCs run in a DOS or a Windows environment? Is third -party software used in printing checks, such as a check signer or forms overlay product? If the above is "yes ", what is the name of the software? Has the third party software been modified to work with InVision? If not modified, when is the scheduled completion date? NOTE : Cable must be pulled by City prior to installation of hardware. INCODE InVision Migration Customer Survey 2 System nfarnlation' ................. .................. Current Operating System New Operating System Are you currently running INCODE /2000 on a Windows NT or Windows 2000 Network? Yes or No. If "no ", is the Windows NT or Windows 2000 server in place? Are the client stations in place? Are the client stations connected to the server? PLEASE NOTE: INCODE cannot perform your InVision Migration if INCODE /2000 is currently running on your UNIX or AIX server. Please schedule a date for INCODE to transport your data to a Windows or Novell Server. There is a $1,500 charge plus travel expenses, for transporting your data and configuring your printers on the new Windows or Novell Server. Indicate whether you are currently using INCODE standard forms or custom forms? NOTE: If you are currently using dot matrix forms, you may want to consider going with laser forms. Contact our receptionist and request a standard forms packet that includes samples of the laser forms (checks, utility bills, late notices) for your review. Are you going to modify existing forms or replace them with new forms? (Please describe the change by completing the section below for each type of form.) Indicate forms being changed: Description of Change: (modified / new) ❑ AP Checks ❑ PY Checks ❑ Purchase Orders ❑ Utility Bills ❑ Late Notices ❑ Refund Checks Are the modified or new forms on hand, ready to print? If the forms are not ready, when will they be? Please send blank originals of modified or new forms to INCODE at least 2 weeks prior to the week you will need to use them. This will allow our forms programmer to develop and test the print programs required to print on the forms. INCODE InVision Migration Customer Survey 3 Acoounfi ng Infarmlti NOTE: If we are migrating your financial applications to InVision, please complete this section. How often do you have a Payroll run? (Weekly, Bi- Weekly, etc) What dates will Payroll be run'? (Please list last Payroll run) How often do you have an Accounts Payable run? What dates will Accounts Payable be run? (Please list last Accounts Payable run) Please send a description of your longevity program. (This information will be needed for payroll setup.) Do you use the Optional Function Menu (98) in the INCODE 2000 software? If so, please send us copies of these reports. Ultiity, Bitlmg ifoirmn . NOTE: If we are migrating your utility billing applications to InVision, please complete this section. List the services that you bit. How often do you bill? List approx. dates of billing. Number of accounts? Do you bill for any other entities that are not a part of the utility fund? (Zone Distribution Billing) Do you use bank drafts'? Via Paper or ACH? If you use hand helds, are you getting new hand held software in conjunction with the migration on INCODE's software? If so, what brand? Do you give early payment discounts? If so, please provide details of discount calculation. Do you outsource the printing & distribution of bills and /or late notices? If so, provide vendor name. 1NCODE InVision Migration Customer Survey 4 Do you use the Optional Function Menu (98) in the INCODE 2000 software? If so, please send us copies of these reports. GeneralIn ati€ Before the trainer arrives on -site, the software will be installed and existing data will be migrated into a test environment. Once the trainer arrives, training will be done on processing and printing forms, etc. in the test system. The timing of the "live" migration varies from site to site. For financial migrations, it can take place from late on the third day to early on the fifth day. For utility billing migrations, it can take place from the fifth day to early in the second week. At the time the migration takes place, all processes must be complete in the INCODE 2000 system. Once the "live" migration is complete, the trainer will assist in going through a sampling of data to verify that all data was successfully migrated into InVision. All transactions from the "live" migration point forward are entered in InVision and the INCODE 2000 system will be disabled for the migrated applications. INCODE InVision Migration Customer Survey 5 INCODE Administrative Contact ** *NOTICE — Please fill out and return with INCODE's copy of signed agreements.*** * ** Important! INCODE support does not begin until this document is completed. * ** Each Customer site must designate the person at the Customer site who will be the "INCODE Administrative Contact ". All communications (email, fax, mail, and telephone) related to INCODE software updates, user group meetings, online help updates, continuing education opportunities, new products, and other general correspondence will be sent to this contact. This contact will be responsible for forwarding this information to the appropriate person(s) at the Customer site. This person must have access to email (not a home account) who checks their email on a daily basis (preferably gets email on a real -time basis). The primary mode of communication will be by email. Requiring an INCODE Administrative Contact does not apply to day -to -day support calls. Our support staff will interact with any individual at the Customer site for support issues. Upon receipt of this form, INCODE will be sending an email to the address provided below and must receive a response in order to begin the implementation process. Training dates will not be scheduled until email communication is established. INCODE is not responsible for information sent to the INCODE Administrative Contact that does not get forwarded to the appropriate person at the Customer site. The Customer is responsible for notifying INCODE if the INCODE Administrative Contact changes to a different person. Customer Site: INCODE Administrative Contact Job Title at Customer Site: Email Address (required): Telephone Number and Extension: Fax Number: Mailing Address: Shipping Address: Date: Signature: