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R-03-03-27-9A1 - 3/27/2003RESOLUTION NO. R- 03- 03- 27 -9A1 WHEREAS, the City has a need for technical services for the purchase, installation, and support of an Automated Telephone Notification System, and WHEREAS, Dialogic Communications Corporation has submitted a Communicator License and Support Agreement to provide said services, and WHEREAS, the City Council desires to enter into said agreement with Dialogic Communications Corporation, 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 a Communicator License and Support Agreement for Application Software Products and Services with Dialogic Communications Corporation for the purchase, installation, and support of an Automated Telephone Notification System, a copy of said agreement being attached hereto as Exhibit "A" and incorporated herein for all purposes. 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. 0 : \wdox\RSSOLUTI \R30327A1.000/ac RESOLVED this 27th day of March, 2003 AT EST nohy CHRISTINE R. MARTINEZ, City Sect -tary 2 'ri ' -r ELL, Mayor ty of Round Rock, Texas This COMMUNICATOR! License and Support Agreement ( "Agreement ") is made between Dialogic Communications Corporation ( "DCC "), a Tennessee corporation located at 3730 Cool Springs Blvd, Franklin, Tennessee 37067, and City of Round Rock, TX ( "Licensee "), a municipality located at 221 East Main Street, Round Rock, TX 78664 -5299, I Definitions. 1.1 "Documentation" means written and/or on -line material provided by DCC to assist Licensee in the use of the Software. 1.2 "Equipment" means the equipment listed on Schedule A or comparable equipment delivered by DCC hereunder. 1.3 "Product" means the Software and Documentation. 1.4 "Site" means Licensee's offices at Round Rock, TX. 1.5 "Software" means the DCC software listed on Schedule A and any updates, modifications and corrections thereto provided by DCC to Licensee hereunder. 1.6 "Third Party Software" means any software developed by a third party which is installed by DCC on the Equipment. 1.7 "Initial Warranty Period" means the period b eginning on Licensee's written acceptance that the Software has been installed and ending one (1) year after the date of such written notice. 2. Equipment. Licensee shall have the Site properly prepared to accept delivery of the Equipment, and DCC shall deliver the Equipment to Licensee. In no event shall DCC be responsible for delays in delivery or installation or any damages to Licensee resulting from any delay. From and after the date of delivery, the risk of loss or damage to the Equipment shall be on the Licensee. Title to the Equipment shall pass to Licensee upon complete payment as required herein. 3. License Grant. DCC hereby grants to Licensee, and Licensee accepts, a non - exclusive, non - transferable license to use the Product for its internal business purposes at the Site in accordance with this Agreement and the Documentation. Licensee may use the Software only on the Equipment or substitute equipment approved in writing by DCC. Licensee may make one copy of the Product for backup purposes only but shall include therein all proprietary marks and notices included in the original. Licensee may not otherwise copy or permit the copying of any part of the Product. 4. Installation and Training. DCC shall provide installation and training at Licensee's site for a total of 4 days. 5. Payment and Taxes. 5.1 Licensee will pay DCC fees within thirty (30) days of the date of invoice in accordance with Schedule B. DCC reserves and Licensee grants DCC a security interest in the Equipment as security for p erformance b y Licensee o f t is o bligations h ereunder including, but not limited to, payment of the fees. Licensee shall execute other documents as requested to perfect this interest. 5.2 If Licensee elects to receive maintenance and support services for the Software, Licensee will pay DCC an annual fee for such services in accordance with Schedule B. 5.3 Licensee will pay all taxes based on this Agreement or any product or services related thereto, excluding taxes based on DCC's income, but including personal property taxes, if any. All shipping and insurance charges for products shipped between DCC and Licensee will be paid by Licensee. DCC 290698-1 (1 tn2 /02) COMMUNICATOR! LICENSE AND SUPPORT AGREEMENT acknowledges that Licensee is a governmental entity and as such is exempt from most taxation. 5.4 Prompt Payment Policy. In accordance with Chapter 2251, V. T. C. A., Texas Government Code, payment to Vendor will be made within thirty (30) days of the day on which the City receives the supplies, materials, equipment, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which the City receives a correct invoice for the supplies, materials, equipment, or services, whichever is later. Vendor may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy, however, this policy does not apply to payments made by the City in the event: 5.4.1 there is a bona fide dispute between the City and Vendor concerning t he s upplies, materials, o r e quipment d el ivered or the services performed that causes the payment to be late; or 5.4.2 the terms of a federal contract, grant, regulation, or statue prevent the City from making a timely payment with Federal Funds; or 5.4.3 there is a bona fide dispute between Vendor and a subcontractor or between subcontractor and its supplier concerning supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or 5.4.4 the invoice is not mailed to the City in strict accordance with instructions, if any, on the purchase order, or this Agreement or other such contractual agreement. 6. Initial Warranty. During the Initial Warranty Period, DCC shall provide the following warranty services: 6.1 DCC will provide such assistance as is reasonably necessary to cause the Software to perform in accordance with the then current Documentation provided that Licensee installs all updates, modifications and corrections provided by DCC and that Licensee's use is in accordance with this Agreement and the Documentation. 6.2 Licensee may notify DCC of Software errors or defects it believes to exist, and if DCC is able to confirm that such error or defect exists through independent testing, DCC will correct such error or defect. 7. Maintenance and Support Services. 7.1 Subject to the terms of this Agreement and provided that Licensee pays the fees specified in Section 0, DCC will provide Licensee with the following maintenance and support services: 7.1.1 DCC will provide such assistance as is reasonably necessary to cause the Software to perform in accordance with the then current Documentation provided that Licensee installs all updates, modifications and corrections provided by DCC and that Licensee's use o f t he Software is in a ccordance with this Agreement and the Documentation. EXHIBIT 1 Arr 7.1.2 DCC will provide updates to the Software ifand as required to cause it to operate under new versions or releases of the operating system approved by DCC for use with the Software, so long as such updates are commercial) 5 reasonable, and will provide other updates, modifications and corrections to the Software as are approved for release to Licensee by DCC. 7.1.3 Licensee may notify DCC of Software errors or defects it believes to exist, and, if DCC is able to confirm that such error or defect exists through independent testing, DCC will correct such error or defect. 7.1.4 DCC will provide reasonable telephone Software support from 8 a.m. CST to 5 p.m. CST Monday through Friday, excluding holidays. In addition, for emergencies, support personnel shall be available via pager 24 hours per day/7 days per week. 7.2 Licensee will provide DCC with all information, documentation, technical assistance, and access to the Site as DCC may require to provide services hereunder. 8 Warranties. 8.1 DCC represents that each DCC employee assigned to perform services hereunder will have industry standard skills and training so as to be able to perform in a competent and professional manner. During the Initial Warranty Period and for so long as Licensee pays maintenance and support fees, DCC warrants that the Software, as delivered by DCC if properly installed, will operate in conformance with the Documentation. LICENSEE'S EXCLUSIVE REMEDY, AND DCC'S ENTIRE LIABILITY IN CONTRACT, TORT OR OTHERWISE FOR NONCONFORMITY OF THE SOFTWARE WITH THE DOCUMENTATION WILL BE TO TO PROVIDE A CORRECTION OR WORK AROUND FOR ANY NONCONFORMITY WHICH IS (i) REPORTED TO DCC BY LICENSEE WHILE DCC 1S OBLIGATED TO PERFORM SUPPORT S ERVICES A ND (ii) REPRODUCIBLE B Y DCC IN THE EXECUTION ENVIRONMENT. 8.2 THE EQUIPMENT AND THIRD PARTY SOFTWARE ARE PROVIDED "AS IS ". DCC provides no support or warranty services for the Equipment or Third Party Software. To the extent permitted, DCC shall pass through and assign to Licensee any and all manufacturers' or suppliers' warranties, if any, w ith respect to the Equipment and Third Party Software. 8.3 THE EXPRESS WARRANTIES IN THIS SECTION 0 ARE EXCLUSIVE, PERTINENT TO THE INTENDED USE, AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES. DCC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. DCC WILL NOT BE LIABLE TO LICENSEE FOR ANY LOSS OF DATA OR SOFTWARE RESULTING FROM OR RELATING TO DCC'S SERVICES OR THE SOFTWARE. 8.4 IN NO EVENT WILL DCC BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCT, OR THE EQUIPMENT, EVEN IF DCC HAS BEEN ADVISED OF THE POSSIBILITY OR KNEW OF OR SHOULD HAVE KNOWN THEREOF. DCC'S TOTAL LIABILITY TO LICENSEE HEREUNDER, IF ANY, WILL IN NO EVENT 290698 -1 (11/12/02) EXCEED THE TOTAL AMOUNT PAID TO DCC HEREUNDER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. The warranties in this Section 0 will not apply to any defects or problems caused in whole or part by (i) defects in any equipment, (ii) failure of any portion of equipment to function in accordance with manufacturer's specifications, (iii) modifications or enhancements made to the Software by anyone other than DCC, (iv) any software, hardware, firmware, peripheral or communication devices used with the Software not provided by or approved of in writing by DCC, (v) failure of Licensee or any third party to follow DCC's most current instructions for proper use of the Software, (vi) negligence of Licensee or any third party, or (vii) failure to install and use the updates, modifications and corrections provided by DCC. If Licensee falls within any of the foregoing exceptions and requests DCC to provide support services for such defect or problem, Licensee will pay DCC for services at DCC's then current hourly rate. 9. Confidentiality. Except as provided below, a party receiving Information (defined below) of the other will not disclose such Information other than to persons in its organization who have a need to know and who will be required to comply with this Section 9. The party receiving Information will not use Information for a purpose inconsistent with the terms of this Agreement. "Information" means the Product, all information and intellectual property related thereto as well as information related to the business of DCC or Licensee. Information will not include: (i) information publicly known prior to disclosure; (ii) information coming into the lawful possession of the recipient without any confidentiality obligation; and (iii) information required to be disclosed pursuant to regulatory action or court order, provided adequate prior written notice of any request to disclose is given to the party w hose information is to be disclosed. Each party will exercise at least the same degree of care to safeguard the confidentiality of the other party's Information as it does to safeguard its own proprietary confidential information, but not less than a reasonable degree of care. Notwithstanding the above, the partners recognize and understand that Licensee is subject to the Texas Public Information Act and its duties run in accordance therewith. 10. Ownership. The Product is DCC's exclusive property and constitutes its valuable trade secret. Licensee will take reasonable steps to protect the trade secret of the Product. Ownership of all copies is retained by DCC. Licensee may not disclose or make available to others the Product or any portion thereof. DCC shall own the entire right, title and interest in and to all corrections, modifications, enhancements, programs, information and work product conceived, created or developed, alone or with Licensee or others, as a result of or related to the performance of this Agreement, including all proprietary rights therein and based thereon. Except and to the extent expressly provided herein, DCC does not grant to Licensee any right or license, express or implied, in or to the Product or any of the foregoing. 11. Injunctive Relief. Each party acknowledges that a violation or threatened violation by it of Section 9 or 0 hereof would result in damage that is largely intangible but nonetheless real and that is incapable of complete remedy by award of damages. Thus, such violation or threatened violation will give the injured party the right to a court- ordered injunction to specifically enforce such covenant or obligation. The party in violation of any such section shall pay as damages any reasonable expenses, including but not limited to attorney fees, incurred in obtaining specific enforcement. 12. Indemnification. 12.1 Indemnification. DCC will defend, indemnify and hold harmless Licensee against any claim brought in the US against Licensee that Licensee's use of the most current version of the Software in accordance with the Documentation infringes any US patent, copyright, trademark, or other intellectual property right of a third party, and DCC will pay all costs, fees, and damages reasonably incurred by Licensee in connection with any such claim or action provided that (1) Licensee promptly notifies DCC in writing of the claim; (ii) DCC will have sole control of the settlement or defense of any action to which this indemnity relates; and (iii) Licensee cooperates with DCC in every reasonable way to facilitate such defense or settlement. Licensee may, at Licensee's expense, have its own counsel participate in the defense of any such claim or action. DCC shall not be liable for any compromise entered or s ettlement made b y Licensee without its prior written c onsent. DCC shall not be liable for any losses, costs or damages, and Licensee will indemnify, defend, and hold DCC harmless from any losses, costs, or damages resulting from any suit or proceeding based upon a claim or action arising from (r) compliance with Licensee designs, specifications, or instructions; (ii) Software modifications; (iii) the combination, operation, or use of any Software with any other product, data, or apparatus not provided or approved in writing by DCC; (iv) the direct or contributory infringement of any patent by Licensee using any Software; or (v) the use of a superseded release of the Software if the infringement would have been avoided by the use of a current release of the Software. 12.2 Avoidance. If any infringement claim arises, or in DCC's judgment is likely to occur, DCC may, at its option and expense: (i) procure for Licensee the right to continue using the Software; (ii) modify the Software to become non - infringing but functionally equivalent; (iii) replace the Software with functionally equivalent non - infringing software; or (iv) terminate this Agreement and refund a pro rata portion of the license fee. 13. Term. This Agreement will commence upon the date of acceptance by DCC and will continue until terminated in accordance with this Section 13. 13.1 Termination of Support Services. Either party may terminate maintenance and support services by providing notice to the other party one hundred twenty (120) days prior to t he e nd o f t he then current annual term. Termination of support services alone will terminate DCC's obligations under Sections 7, 8, and 12 but will not terminate the other rights and obligations herein. 13.2 Termination by DCC. DCC may terminate this Agreement without further obligation or liability to Licensee if 13.2.1 Licensee fails to timely pay any amounts due under this Agreement and fails t o make such payments within ten (10) days of notice from DCC; 13.2.2 Licensee commits any material breach of this Agreement and fails to remedy such breach within ten (10) days of notice from DCC; or 13.2.3 Licensee becomes the subject of a petition in bankruptcy; is or becomes insolvent; or admits a general inability to pay its debts as they become due. 13.3 Termination by Licensee. Licensee may terminate this Agreement: 13.3.1 If DCC commits any material breach of this Agreement and fails to remedy such breach within sixty (60) days of notice from Licensee; or 13.3.3 At will b y giving D CC one hundred t wenty (120) days' notice of its election to terminate. 290698 -1 (11/12/02] 13.3.3 This Agreement is a commitment of the City's current revenues o nly. It is understood and agreed the C ity shall have the right to terminate this Agreement at the end of any City fiscal year i ft he governing bodyof the C ity does n of appropriate funds sufficient t o pay the contractual charges as stated herein above or attached hereto coming due in the City's next fiscal year, as determined by the City's budget for the fiscal year in question. The City may elect to terminate this Agreement before the end of the Agreement term and before the end of the fiscal year. The City may effect such termination by giving a written notice of termination and by paying any service charges or any other c harges which are d ue and have not been paid from those funds remaining which are appropriate for said services at o r b efore the end o f its then current fiscal year. 13.4 Effect. Upon termination of this Agreement, Licensee will cease using and will immediately return the Product and all copies to DCC. All amounts owed to DCC will be immediately due and payable, and DCC will cease performance of all obligations herein without liability to Licensee. Sections 5.3, 8.2, 8.3, 8.4, 8.5, 9, 10, 1 1, 13.4, 14, 16, 17, 18, 19, 20, 21, 22, and 23 will survive termination. 14. Other Remedies. The Licensee's and DCC's rights and remedies under this Agreement will be cumulative and in addition to all other rights and r emedies available t o Licensee and DCC in law a nd in equity. 15. Assignment. N either this Agreement n or a ny rights o r d u ties hereunder may be transferred, assigned, sublicensed or otherwise disposed of by either party hereto to a third party, by operation of law or otherwise, without the other party's prior written consent. 16. Notices. All notices and other communications required or con urpiated herein will be in writing and delivered either by (1) personal delivery; (ii) expedited messenger service; (iii) postage prepaid return receipt requested certified mail; or (iv) facsimile and confirmed by postage prepaid U.S. certified mail, addressed to the party or parties for whom it is intended, at the addresses first written above or such other address as the intended recipient previously has designated by written notice to the sender. 17. Partial Invalidity. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected. 18 Modification; Waiver. This Agreement may not be modified or amended except in writing signed by the parties. No term or condition of this Agreement may be w aived except in writing signed by the party charged with waiver. A waiver will operate only as to the specific term or condition waived and will not constitute a waiver for the future. 19. Governing Law. This Agreement will be governed exclusively by the laws of the State of Texas, without regard to its conflict of laws provisions. All parties agree that venue regarding any action arising hereunder will be exclusively in Williamson County, Texas 20. Third Party Beneficiaries. None of the provisions of this Agreement is intended by the parties, nor shall they be deemed, to confer any benefit on any person not a party to this Agreement. 21. Independent Contractor. The relationship of the parties hereunder will be one of independent contractors and not that of a franchise, joint venture o r e mployer. N either p arty will h ave, and n either of them will represent to any other person that it has, any power, right or authority to bind the other, or to assume create, any obligation or responsibility, express or implied, on behalf of the other, except as expressly provided by this Agreement or as otherwise permitted in writing signed by both parties. 22. Entire Agreement. This Agreement and its schedules constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior agreements between the parties, w ritten, oral or i mplied w ith respect to the s object matter hereof. 290698 - 1 (11/12/02) 23. Headings. Headings are included in this Agreement for convenience only and are not to be deemed to be part of this Agreement. The interpretation of this Agreement will not be affected by any heading herein. 24. Force Maieure. In the event an act of government, war, fire, flood, act of God, power shortages or blackouts, breakdown of telephone lines and services, failure of the Internet, or other causes beyond the reasonable control of DCC prevents DCC from performing in accordance with the terms of this Agreement, such nonperformance shall be excused and shall not be considered a breach or default for so long as such conditions prevail. Licensee: City of Round Rock By: Its: This Agreement is hereby accepted by the undersigned officer of DCC, on , 200 , at Franklin, Tennessee. Dialogic Co unications Corpora David B. Hanna, Vice President of Business Services Dell PowerEdge 2550 PC (tower) D240JCDT-T1 (JCT Ti card) All -in -one Printer /fax Printer cable 2X USR 56K external modems 2X Modem cables 290698 -1 (11112 /02) Networking: SCHEDULE A Equipment DCC Software The CommunicatorTM/Notifier Version GeoCast GIS Module 24 Port Configuration Integrated Paging (Alpha/Digital) Remote Telephone Activation Inbound Bulletin Board Intelligent Scenario Kit Key Function Wizards On -Line Help Data Import/Export Capability Position Filling Resource Management Tools Automatic Report Distribution Answering Machine Detection/Message Control Primary /Secondary Calling Sequence Control Multi -level Security Control PC Anywhere® Communications Software Microsoft® Operating System Driveimage 2002 GeoCast (1 network seat) Communicator/Notifier (4 seats) SCHEDULE B Equipment Fees Licensee shall pay to DCC an amount equal to $3,745 for the Equipment. Such amount shall be paid within thirty (30) days of date of invoice which shall be issued upon installation and acceptance. License Fees Licensee shall pay to DCC an amount equal to $29,845 for the Software license granted hereunder. Such amount shall be paid within thirty (30) days of date of invoice which such invoice shall be issued upon execution of this Agreement. Installation and Training Fees Licensee shall pay to DCC an amount equal to $6,000 for the installation and training services set forth in the Agreement. Such amount shall be paid within thirty (30) days of date of invoice which such invoice shall be issued upon completion of such installation and training services. 290698 -1 (11/12/02) Annual Maintenance and Support Licensee shall pay to DCC an amount equal to 13% of total software costs with an escalation of no more than 5% per year annually for annual maintenance and support services to be performed b y DCC hereunder. Such amount shall bepaid within thirty (30) days of the date of the annual invoice therefore. In the event there is a lapse in the provision of warranty and maintenance and support services due to nonpayment by Licensee, Licensee shall be charged 150% of the then current maintenance and support fee for the first year in which such services are reinstated. *This amount will be adjusted annually to reflect DCC's then current maintenance and support fees. DATE: March 21, 2003 SUBJECT: City Council Meeting — March 27, 2003 ITEM: 9.A.1. Consider a resolution authorizing the Mayor to execute a Communicator License and Support Agreement with Dialogic Communications for an Automated Telephone Notification System. Resource: Keith Tanner, Fire Marshal/Emergency Management Coordinator History: Staff recommends the approval of this contract for the installation and maintenance of an Automated telephone Notification System. This system combines digital, street level maps with the most accurate telephone data for geographic selection of targeted notification areas including homes, businesses, school, special needs locations, etc. The System automatically contacts citizens and/or City staff by phone, pager, fax and email; delivers incident - specific information or potentially life - saving instruction; confirms message receipt; and prints, faxes and emails comprehensive reports detailing callout results. This acquisition will greatly enhance our capabilities to deliver warning or emergency information to our citizens Funding: Cost: Base price $29,345.00 GeoCast Module (1 additional seat) 1,750.00 Communicator Module (4 additional seats) 3,250.00 Network Install 1,500.00 Server 3 745.00 Total Cost: $39,590.00 Source of funds: Capital Project Fund/General Self Financed Outside Resources: N/A Impact: N/A Benefit: Population warning and staff callbacks will be much quicker and more efficient during emergencies or disasters. Public Comment: N/A Sponsor: N/A ,2 -03- o3 - a7- 9R1 290698 -1 (11 /12 /02) COMMUNICATOR! LICENSE AND SUPPORT AGREEMENT This COMMUNICATOR! License and Support Agreement ( "Agreement") is made between Dialogic Communications Corporation ( "DCC "), a Tennessee corporation located at 3730 Cool Springs Blvd, Franklin, Tennessee 37067, and City of Round Rock, DC ( "Licensee "), a municipality located at 221 East Main Street, Round Rock, TX 78664 -5299. 1 Definitions. 1.1 "Documentation" means written and/or on -line material provided by DCC to assist Licensee in the use of the Software. 1.2 "Equipment" means the equipment listed on Schedule A or comparable equipment delivered by DCC hereunder. 1.3 "Product" means the Software and Documentation. 1.4 "Site" means Licensee's offices at Round Rock, TX. 1.5 "Software" means the DCC software listed on Schedule A and any updates, modifications and corrections thereto provided by DCC to Licensee hereunder. 1.6 "Third Party Software" means any software developed by a third party which is installed by DCC on the Equipment. 1.7 " Initial Warranty Period" means the period beginning on Licensee's written acceptance that the Software has been installed and ending one (I) year after the date of such written notice. 2. Equipment. Licensee shall have the Site properly prepared to accept delivery of the Equipment, and DCC shall deliver the Equipment to Licensee. In no event shall DCC be responsible for delays in delivery or installation or any damages to Licensee resulting from any delay. From and after the date of delivery, the risk of loss or damage to the Equipment shall be on the Licensee. Title to the Equipment shall pass to Licensee upon complete payment as required herein. 3. License Grant. DCC hereby grants to Licensee, and Licensee accepts, a non - exclusive, non - transferable license to use the Product for its internal business purposes at the Site in accordance with this Agreement and the Documentation. Licensee may use the Software only on the Equipment or substitute equipment approved in writing by DCC. Licensee may make one copy of the Product for backup purposes only but shall include therein all proprietary marks and notices included in the original. Licensee may not otherwise copy or permit the copying of any part of the Product. 4. Installation and Training. DCC shall provide installation and training at Licensee's site for a total of 4 days. 5. Payment and Taxes. 5.1 Licensee will pay DCC fees within thirty (30) days of the date of invoice in accordance with Schedule B. DCC reserves and Licensee grants DCC a security interest in the Equipment as security for p erformance b y Licensee o f i is o bligations hereunder including, but not limited to, payment of the fees. Licensee shall execute other documents as requested to perfect this interest. 5.2 If Licensee elects to receive maintenance and support services for the Software, Licensee will pay DCC an annual fee for such services in accordance with Schedule B. 5.3 Licensee will pay all taxes based on this Agreement or any product or services related thereto, excluding taxes based on DCC's income, but including personal property taxes, if any. All shipping and insurance charges for products shipped between DCC and Licensee will be paid by Licensee. DCC acknowledges that Licensee is a governmental entity and as such is exempt from most taxation. 5.4 Prompt Payment Policy. In accordance with Chapter 2251, V. T. C. A., Texas Government Code, payment to Vendor will be made within thirty (30) days of the day on which the City receives the supplies, materials, equipment, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which the City receives a correct invoice for the supplies, materials, equipment, or services, whichever is later. Vendor may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy, however, this policy does not apply to payments made by the City in the event: 5.4.1 there is a bona fide dispute between the City and Vendor concerning t he supplies, materials, or equipment d elivered or the services performed that causes the payment to be late; or 5.4.2 the terms of a federal contract, grant, regulation, or statue prevent the City from making a timely payment with Federal Funds; or 5.4.3 there is a bona fide dispute between Vendor and a subcontractor or between subcontractor and its supplier concerning supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or 5.4.4 the invoice is not mailed to the City in strict accordance with instructions, if any, on the purchase order, or this Agreement or other such contractual agreement. 6. Initial W arranty. During the Initial Warranty Period, DCC shall provide the following warranty services: 6.1 DCC will provide such assistance as is reasonably necessary to cause the Software to perform in accordance with the then current Documentation provided that Licensee installs all updates, modifications and corrections provided by DCC and that Licensee's use is in accordance with this Agreement and the Documentation. 6.2 Licensee may notify DCC of Software errors or defects it believes to exist, and if DCC is able to confirm that such error or defect exists through independent testing, DCC will correct such error or defect. 7. Maintenance and Support Services. 7.1 Subject to the terms of this Agreement and provided that Licensee pays the fees specified in Section 0, DCC will provide Licensee with the following maintenance and support services: 7.1.1 DCC will provide such assistance as is reasonably necessary to cause the Software to perform in accordance with the then current Documentation provided that Licensee installs all updates, modifications and corrections provided by DCC and that Licensee's use of the Software is in accordance with this Agreement and the Documentation. 7.1.2 DCCwill provide updates to t he Software i f and as required to cause it to operate under new versions or releases of the operating system approved by DCC for use with [h Software, so long as such updates are commercial) ' reasonable, and will provide other updates, modifications and corrections to the Software as are approved for release to Licensee by DCC. 7.1.3 Licensee may notify DCC of Software errors or defects it believes to exist, and, if DCC is able to confirm that such error or defect exists through independent testing, DCC will correct such error or defect. 7.1.4 DCC will provide reasonable telephone Software support from 8 a.m. CST to 5 p.m. CST Monday through Friday, excluding holidays. In addition, for emergencies, support personnel shall be available via pager 24 hours p er day /7 days per week. 7.2 Licensee will provide DCC with all information, documentation, technical assistance, and access to the Site as DCC may require to provide services hereunder. 8 Warranties. 8.1 DCC represents that each DCC employee assigned to perform services hereunder will have industry standard skills and training so as to be able to perform in a competent and professional manner. During the Initial Warranty Period and for so long as Licensee pays maintenance and support fees, DCC warrants that the Software, as delivered by DCC if properly installed, will operate in conformance with the Documentation. LICENSEE'S EXCLUSIVE REMEDY, AND DCC'S ENTIRE LIABILITY IN CONTRACT, TORT OR OTHERWISE FOR NONCONFORMITY OF THE SOFTWARE WITH THE DOCUMENTATION WILL BE TO TO PROVIDE A CORRECTION OR WORK AROUND FOR ANY NONCONFORMITY WHICH IS (i) REPORTED TO DCC BY LICENSEE WHILE DCC IS OBLIGATED TO PERFORM SUPPORT S ERVICES A ND (ii) REPRODUCIBLE B Y D CC 1 N THE EXECUTION ENVIRONMENT. 8.2 THE EQUIPMENT AND THIRD PARTY SOFTWARE ARE PROVIDED "AS IS ". DCC provides no support or warranty services for the Equipment or Third Party Software. To the extent permitted, DCC shall pass through and assign to Licensee any and all manufacturers' or suppliers' warranties, if any, with respect to the Equipment and Third Party Software. 8.3 THE EXPRESS WARRANTIES IN THIS SECTION 0 ARE EXCLUSIVE, PERTINENT TO THE INTENDED USE, AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES. DCC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. DCC WILL NOT BE LIABLE TO LICENSEE FOR ANY LOSS OF DATA OR SOFTWARE RESULTING FROM OR RELATING TO DCC'S SERVICES OR THE SOFTWARE. 8.4 IN NO EVENT WILL DCC BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCT, OR THE EQUIPMENT, EVEN IF DCC HAS BEEN ADVISED OF THE POSSIBILITY OR KNEW OF OR SHOULD HAVE KNOWN THEREOF. DCC'S TOTAL LIABILITY TO LICENSEE HEREUNDER, IF ANY, WILL IN NO EVENT 290698 - 1 (11/12/02) EXCEED THE TOTAL AMOUNT PAID TO DCC HEREUNDER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. The warranties in this Section 0 will not apply to any defects or problems caused in whole or part by (i) defects in any equipment, (ii) failure of any portion of equipment to function in accordance with manufacturer's specifications, (iii) modifications or enhancements made to the Software by anyone other than DCC, (iv) any software, hardware, firmware, peripheral or communication devices used with the Software not provided by or approved of in writing by DCC, (v) failure of Licensee or any third party to follow DCC's most current instructions for proper use of the Software, (vi) negligence of Licensee or any third party, or (vii) failure to install and use the updates, modifications and corrections provided by DCC. If Licensee falls within any of the foregoing exceptions and requests DCC to provide support services for such defect or problem, Licensee will pay DCC for services at DCC's then current hourly rate. 9. Confidentiality. Except as provided below, a party receiving Information (defined below) of the other will not disclose such Information other than to persons in its organization who have a need to know and who will be required to comply with this Section 9. The party receiving Information will not use Information for a purpose inconsistent with the terms of this Agreement. "Information" means the Product, all information and intellectual property related thereto as well as information related to the business of DCC or Licensee. Information will not include: (i) information publicly known prior to disclosure; (ii) information coming into the lawful possession of the recipient without any confidentiality obligation; and (iii) information required to be disclosed pursuant to regulatory action or court order, provided adequate prior written notice of any request to disclose is given to the party whose information is to be disclosed. Each party will exercise at least the same degree of care to safeguard the confidentiality of the other party's Information as it does to safeguard its own proprietary confidential information, but not less than a reasonable degree of care. Notwithstanding the above, the partners recognize and understand that Licensee is subject to the Texas Public Information Act and its duties run in accordance therewith. 10. Ownership. The Product is DCC's exclusive property and constitutes its valuable trade secret. Licensee will take reasonable steps to protect the trade secret of the Product. Ownership of all copies is retained by DCC. Licensee may not disclose or make available to others the Product or any portion thereof. DCC shall own the entire right, title and interest in and to all corrections, modifications, enhancements, programs, information and work product conceived, created or developed, alone or with Licensee or others, as a result of or related to the performance of this Agreement, including all proprietary rights therein and based thereon. Except and to the extent expressly provided herein, DCC does not grant to Licensee any right or license, express or implied, in or to the Product or any of the foregoing. 11. Injunctive Relief. Each party acknowledges that a violation or threatened violation by it of Section 9 or 0 hereof would result in damage that is largely intangible but nonetheless real and that is incapable of complete remedy by award of damages. Thus, such violation or threatened violation will give the injured party the right to a court- ordered injunction to specifically enforce such covenant or obligation. The party in violation of any such section shall pay as damages any reasonable expenses, including but not limited to attorney fees, incurred in obtaining specific enforcement. 12, Indemnification. 12.1 Indemnification. DCC will defend, indemnify and hold harmless Licensee against any claim brought in the US against Licensee that Licensee's use of the most current version of the Software in accordance with the Documentation infringes any US patent, copyright, trademark, or other intellectual property right of a third party, and DCC will pay all costs, fees, and damages reasonably incurred by Licensee in connection with any such claim or action provided that (1) Licensee promptly notifies DCC in writing of the claim; (ii) DCC will have sole control of the settlement or defense of any action to which this indemnity relates; and (iii) Licensee cooperates with DCC in every reasonable way to facilitate such defense or settlement. Licensee may, at Licensee's expense, have its own counsel participate in the defense of any such claim or action. DCC shall not be liable for any compromise entered or settlement made by Licensee without its prior written consent. DCC shall not be liable for any losses, costs or damages, and Licensee will indemnify, defend, and hold DCC harmless from any losses, costs, or damages resulting from any suit or proceeding based upon a claim or action arising from (i) compliance with Licensee designs, specifications, or instructions; (ii) Software modifications; (iii) the combination, operation, or use of any Software with any other product, data, or apparatus not provided or approved in writing by DCC; (iv) the direct or contributory infringement of any patent by Licensee using any Software; or (v) the use of a superseded release of the Software if the infringement would have been avoided by the use of a current release of the Software. 12.2 Avoidance. If any infringement claim arises, or in DCC's judgment is likely to occur, DCC may, at its option and expense: (!) procure for Licensee the right to continue using the Software; (ii) modify the Software to become non - infringing but functionally equivalent; (iii) replace the Software with functionally equivalent non - infringing software; or (iv) terminate this Agreement and refund a pro rata portion of the license fee. 13. Term. This Agreement will commence upon the date of acceptance by DCC and will continue until terminated in accordance with this Section 13. 13.1 Termination of Support Services. Either party may terminate maintenance and support services by providing notice to the other party one hundred twenty (120) days prior to the end o f t he t hen current annual term. Termination o f support services alone will terminate DCC's obligations under Sections 7, 8, and 12 but will not terminate the other rights and obligations herein. 13.2 Termination by DCC. DCC may terminate this Agreement without further obligation or liability to Licensee if; 13.2.1 Licensee fails to timely pay any amounts due under this Agreement and fails t o make such payments within ten (10) days of notice from DCC; 13.2.2 Licensee commits any material breach of this Agreement and fails to remedy such breach within ten (10) days of notice from DCC; or 13.2.3 Licensee becomes the subject of a petition in bankruptcy; is or becomes insolvent; or admits a general inability to pay its debts as they became due. 13.3 Termination by Licensee. Licensee may terminate this Agreement: 13.3.1 If DCC commits any material breach of this Agreement and fails to remedy such breach within sixty (60) days of notice from Licensee; or 13.3.3 At will b y giving D CC one hundred twenty (120) days' notice of its election to terminate. 290098-1(11/12/02) 13.3.3 This Agreement is a commitment of the City's current revenues only. I t is understood and agreed the C ity shall have the right to terminate this Agreement at the end of any City fiscal year if he governing body of the City d oes n of appropriate funds sufficient t o pay the contractual charges as stated herein above or attached hereto coming due in the City's next fiscal year, as determined by the City's budget for the fiscal year in question. The City may elect to terminate this Agreement before the end of the Agreement term and before the end of the fiscal year. The City may effect such termination by giving a written notice of termination and by paying any service charges or any other charges w hich are d ue and h ave not been paid from those funds remaining which are appropriate for said services at o r b efore the end o f i is then current fiscal year. 13.4 Effect. Upon termination of this Agreement, Licensee will cease using and will immediately return the Product and all copies to DCC. All amounts owed to DCC will be immediately due and payable, and DCC will cease performance of all obligations herein without liability to Licensee. Sections 5.3, 8.2, 8.3, 8.4, 8.5, 9, 10, 11, 13.4, 14, 16, 17, 18, 19, 20, 21, 22, and 23 will survive termination. 14. Other Remedies. The Licensee's and DCC's rights and remedies under this Agreement will be cumulative and in addition to all other rights and remedies available t o Licensee and DCC in law and in equity. 15. Assfenment. N either this Agreement n or any rights or d uties hereunder may be transferred, assigned, sublicensed or otherwise disposed of by either party hereto to a third party, by operation of law or otherwise, without the other party's prior written consent. 16. Notices. All notices and other communications required or contemplated herein will be in writing and delivered either by (i) personal delivery; (ii) expedited messenger service; (iii) postage prepaid return receipt requested certified mail; or (iv) facsimile and confirmed by postage prepaid U.S. certified mail, addressed to the party or parties for whom it is intended, at the addresses first written above or such other address as the intended recipient previously has designated by written notice to the sender. 17. Partial Invalidity. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected. 18 Modification; Waiver. This Agreement may not be modified or amended except in writing signed by the parties. No term or condition of this Agreement may be waived except in writing signed by the party charged with waiver. A waiver will operate only as to the specific term or condition waived and will not constitute a waiver for the future. 19. Governing Law. This Agreement will be governed exclusively by the laws of the State of Texas, without regard to its conflict of laws provisions. All parties agree that venue regarding any action arising hereunder will be exclusively in Williamson County, Texas 20. Third Party Beneficiaries. None of the provisions of this Agreement is intended by the parties, nor shall they be deemed, to confer any benefit on any person not a party to this Agreement. 21. Independent Contractor. The relationship of the parties hereunder will be one of independent contractors and not that of a franchise, joint venture o r employer. N either party will h ave, and neither of them will represent to any other person that it has, any power, right or authority to bind the other, or to assume create, any obligation or responsibility, express or implied, on behalf of the other, except as expressly provided by this Agreement or as otherwise permitted in writing signed by both parties. 22. Entire Agreement This Agreement and its schedules constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior agreements between the parties, written, oral or implied with respect to the subject matter hereof. 290698 -1 (11/12/02) 23. Headings. Headings are included in this Agreement for convenience only and are not to be deemed to be part of this Agreement. The interpretation of this Agreement will not be affected by any heading herein. 24. Force Maleure. In the event an act of government, war, fire, flood, act of God, power shortages or blackouts, breakdown of telephone lines and services, failure of the Internet, or other causes beyond the reasonable control of DCC prevents DCC from performing in accordance with the terms of this Agreement, such nonperformance shall be excused and shall not be considered a breach or default for so long as such conditions prevail. By: This Agreement is hereby accepted by the undersigned officer of DCC, on License Sty . Ro .;Ti . , 200 Dialogic Co unications Corporatio , at Franklin, Tennessee. Davi. B. Hanna, Vice President of Business Services Dell PowerEdge 2550 PC (tower) D2401CDT -TI (JCT TI card) All -in -one Printer /fax Printer cable 2X USR 56K external modems 2X Modem cables 290698 -1 (11/12/02) Networking: SCHEDULE A Equipment DCC Software The CommunicatorTM/Notifier Version GeoCast GIS Module 24 Port Configuration Integrated Paging (Alpha/Digital) Remote Telephone Activation Inbound Bulletin Board Intelligent Scenario Kit Key Function Wizards On -Line Help Data Import/Export Capability Position Filling Resource Management Tools Automatic Report Distribution Answering Machine Detection/Message Control Primary /Secondary Calling Sequence Control Multi -level Security Control PC Anywhere® Communications Software Microsoft® Operating System Driveimage 2002 GeoCast (1 network seat) Communicator/Notifier (4 seats) SCHEDULE B Equipment Fees Licensee shall pay to DCC an amount equal to $3,745 for the Equipment. Such amount shall be paid within thirty (30) days of datc of invoice which shall be issued upon installation and acceptance. License Fees Licensee shall pay to DCC an amount equal to $29,845 for the Software license granted hereunder. Such amount shall be paid within thirty (30) days of date of invoice which such invoice shall be issued upon execution of this Agreement. Installation and Training Fees Licensee shall pay to DCC an amount equal to $6,000 for the installation and training services set forth in the Agreement. Such amount shall be paid within thirty (30) days of date of invoice which such invoice shall be issued upon completion of such installation and training services. Annual Maintenance and Support Licensee shall pay to DCC an amount equal to 13% of total software costs with an escalation of no more than 5% per year annually for annual maintenance and s upport services to be performed b y D CC h ereunder. S uch amount shall be paid within thirty (30) days of the date of the annual invoice therefore. In the event there is a lapse in the provision of warranty and maintenance and support services due to nonpayment by Licensee, Licensee shall be charged 150% of the then current maintenance and support fee for the first year in which such services are reinstated. *This amount will be adjusted annually to reflect DCC's then current maintenance and support fees. 290698 -1 (11/12/02)