R-98-08-13-10A2 - 8/13/1998RESOLUTION NO. R- 98-08- 13 -10A2
WHEREAS, the City has a need for utility billing software,
software support and equipment, and
WHEREAS, Interactive Computer Designs, Inc. has submitted an
agreement to provide the needed software, software support and
equipment, 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 an agreement with Interactive Computer Designs,
Inc. for utility billing software, software support and equipment,
a copy of said agreement being attached hereto 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, and the Act.
RESOLVED this 13th day of August f 1998.
CHARLES CULPEPPER, Mayor
EST: City of Round Rock, Texas
.441./1 AA _' 10
E LAND, City Secretary
K: \wPOOCs \NSs Ixrrr\RaQ,13nx.4m0 /Geg
Customer Name
City of Round Rock
-
Salesman
LM
Street Address
221 E. Main Street
P.O. Box
3
City
Round Rock
State
TX
2,625.00
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
PO Number
522.00
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRICE
Epson TM -93011 Receipt Printer
3
3,300.00
APG Automated Cash Drawer
3
1,050.00
ScanWedge Bar Code Scanner
5
2,625.00
Installation and Configuration
2 days
1,700.00
Estimated Travel Expenses
1
522.00
THE HARDWARE & SYSTEM SOFTWARE TO BE PROVIDED IIEREIN IS
SUBTOTAL pg 1
9,197.00
SALES TAX
AC CE TED ' BY: ACCEPTED BY:
TOTAL pg 1
9,197.00
CIt Rock INTERACTIVE COMPUTER DESIGNS, INC.
DATE DUE
•
HARDWARE AND SYSTEM SOFTWARE SALES AGREEMENT
This agreement is entered into by and between Interactive Computer De igns, Inc., hereinafter referred to as INCODE,
located at 6102 Chicago, Lubbock, Texas; and; THE CITY OF ROUNDROCK, hereinafter referred to as CUSTOMER
on, , 1998.
Pursuant to the terms and conditions of this agreement which are contained on these pages, the CUSTOMER agrees to
purchase the following items tram INCODE.
Signature
•
mA yob
Title
8 -13 -9g
Date
Signature
Marketing Administrator
Title
7/7/98
Date
hwswa032594
•
•
•
HARDWARE SALES & SYSTEM SOFTWARE LICENSE '
AGREEMENT
TERMS AND CONDITIONS
The following terms and conditions are incorporated into the
Hardware Sales and System Software License Agreement
between INCODE and the CUSTOMER. •
HARDWARE AND SYSTEM SOFTWARE
PURCHASE. INCODE agrees to sell and CUSTOMER
agrees to buy the Hardware and acquire a non-exclusive
perpetual license to the System Software specified in this
Agreement.
PRICE. For the purchase of the Hardware and the license of
the System Software, CUSTOMER agrees to pay the total
amount specified in this Agreement.
PAYMENT. CUSTOMER agrees to pay INCODE in
accordance with the following:
A. Twenty -five percent (25 %) upon delivery of the
hardware.
B. Seventy -five percent (75 %) upon acceptance of the
hardware. The hardware will be considered accepted
when appropriate hardware functions are demonstrated
by INCODE.
Payment does not in and of itself constitute acceptance.
ESTIMATED HARDWARE DELIVERY DATE. Unless
otherwise agreed upon by 1NCODE and the CUSTOMER,
the date of the I lardware and System Software's delivery is
approximate. INCODE and CUSTOMER shall agree upon
scheduled delivery date(s)..
TITLE. Title to the I lardware shall pass from INCODE to
the CUSTOMER upon payment in full by the CUSTOMER
to INCODE in accordance with this Agreement. Risk of loss
passes with title.
INSTALLATION AND SITE PREPARATION. The
CUSTOMER agrees to prepare the installation site prior to
the delivery of the I lardware and INCODE agrees to install
the Hardware in accordance with the following:
A. INCODE shall provide CUSTOMER with a copy of all
relevant site preparation instructions.
B. CUSTOMER shall prepare the installation site in
accordance with the site preparation instructions.
C. Unless otherwise specified in this Agreement,
CUSTOMER shall be solely responsible for and will
furnish all necessary labor and material to install all
associated electrical lines, CRT cables, and telephone
lines for communication modems.
D. The dine INCODE installs the Hardware shall he defined
as the Hardware Installation Date.
I Iowever, if the CUSTOMER has not prepared the
Hardware site in accordance with the site preparation
instructions and /or the I lardware site is not available for
installation, then the tenth day after delivery of the Hardware
shall be deemed to he the I lardware Installation Date,
regardless ofwhcn actual installation occurs.
(2) CUSTOMER agrees to compensate INCODE, at
INCODE's then standard rates, for all time and
materials expended because of Cl /SfOMER's
delays in preparing the I lardware site and /or
because of the unavailability of the hardware site.
HARDWARE ACCEPTANCE. The acceptance of the
Hardware shall be determined as follows:
A. On or after the Hardware Installation Date, INCODE
shall perform INCODE's and manufacturer's standard
diagnostic tests to determine that the Hardware is
functioning in accordance with the Hardware's
specifications.
B. When INCODE's standard diagnostic tests indicate that
the Hardware is functioning in accordance with the
Hardware's specifications, INCODE shall inform the
CUSTOMER and INCODE and CUSTOMER must
mutually agree that the hardware is functioning properly.
Upon such mutual agreement the Hardware shall be
deemed accepted by CUSTOMER (the "Hardware
Acceptance Date ").
SECURITY INTEREST. INCODE shall retain a Security
Interest in all Hardware, related products, and in any
proceeds for as long as any amount is owed to INCODE by
the CUSTOMER under this Agreement.
WARRANTIES. ALL WARRANTIES RELATING TO
IIIE HARDWARE AND SYSTEM SOFTWARE ARE
PROVIDED DIRECTLY FROM THE HARDWARE
MANUFACTURERS AND /OR SOFTWARE
I'UBLISI IERS UNDER THE TERMS AND CONDITIONS
OF TI f EtR RESPECTIVE WARRANTIES. INCODE
HEREBY DISCLAIMS ANY AND ALL WARRANTIES
WHETHER EXPRESS OR IMPLIED RELATING TO THE
HARDWARE AND SYSTEM SOFTWARE.
WARRANTY AND /OR MAINTENANCE. There is no
hardware maintenance provided pursuant to this Agreement.
Hardware warranty and /or maintenance are typically
provided by the manufacturer or a Third Party. In situations
where INCODE and the CUSTOMER agree that INCODE
will provide hardware maintenance, such hardware
maintenance shall he governed by the terns of INCODE's
hardware maintenance agreement. Notwithstanding any of
the other provisions of this Agreement, INCODE warrants
that the Software is fit for the purpose(s) stated in the
Request for Proposal (RFP) and INCODE's response to the
RFP.
ASSIGNMENT. 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
terms of this Agreement as if it had executed the Agreement
LEGAL CONSTRUCTION. In case any one or more of
the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any
respect. such invalidity, illegality, or unenforeeability 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 therein.
BINDING EFFECT. This Agreement shall inure to the
benefit of and bind the parties hereto, their successors and
their permitted assignees.
LIMITATION OF LIABILITY.
EXCEPT FOR VIOLATIONS OF INCODE'S
INTELLECTUAL OR PROPRIETARY RIGHTS,
NEITHER PARTY SHALL BE LIABLE FOR ANY
•
•
•
i r
HARDWARE SALES & SYSTEM SOFTWARE LICENSE
AGREEMENT
TERMS AND CONDITIONS
INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST DATA OR LOST PROFITS,
HOWEVER ARIISING, EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
INCODES LIABILITY FOR DAMAGES UNDER THIS
AGREEMENT SHALL IN NO EVENT EXCEED THE
AMOUNT PAID BY CUSTOMER TO INCODE FOR THE
SOFTWARE, HARDWARE AND THE SERVICES AS TO
WHICH THE CLAIM AROSE. EXCEPT FOR:
(1) DAMAGES INCURRED UNDER THE ARTICLE
ENTITLTED "PATENT AND COPYRIGHT
INDEMNITY "; AND
(2) CLAIMS FOR BODILY INJURY OR TANGIBLE
PROPERTY DAMAGED TO THE EXTENT
CAUSED BY INCODE. THE PARTIES AGRE TO
TILE. ALLOCATION OF LIABILITY RISK SET
FOR 11 I IN THIS SECTION.
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 he 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
tenn, covenant, representation, warranty or condition set
forth.
GENERAL This Agreement is made and shall he governed
by the laws of the Slate of Texas, excluding choice of law
principles. Venue shall be in Williamson County, Texas.
The section headings herein 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 of supplement the printed
text of this Agreement or any Schedule shall add to or vary
the terns of this Agreement All such proposed variations or
additions (whether submitted by INCODE or CUSTOMER)
are objected to and deemed material unless agree to in
writing. Except for CUSTOMER's obligation to pay
INCODE_ neither party shall he liable for any failure due to
causes beyond its reasonable control. If any provision of this
Agreement is held to be unenforceable, this Agreement shall
he 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 Copies 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 together with documents listed below (in
order of precedence) are dependent on each other to create
the Utility Billing System which INCODE proposes to
furnish CUSTOMER. The terms and conditions of this
Agreement, including the documents listed below, constitute
the entire agreement between the parties concerning
CUSTOMER's acquisition and use of the Software. This
Agreement replaces and supersedes any prior verbal or
written understandings, communications, and representations
between the parties. This Agreement may be executed in
counterparts, which taken together shall be considered
original.
A.
B.
C.
D.
li.
(1
FI.
1.
1.
Request for Proposal (REP) Number 98 -81 -0001
INCODE's response to the RFI'
I lardware And System Software Sales Agreement
Annual Hardware Maintenance Agreement
Software License Sales Agreement
Software Modification/Required Interfaces Agreement
Third Party Application Software Sales Agreement
Software Conversion Agreement
Software Training Agreement
Annual Software Maintenance Agreement
NOTE: C,D,E,F,G [1,1, AND J ARE OF EQUAL
PRECENDENCE.
2
Customer Name
-
City of Round Rock
PRIG
Salesman
LM
Street Address
-
221 E. Main Street
Utility System
39,000.00
City
Round Rock
State
TX
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
Utility System 29,250.00
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRIG
InCode /2000 Pricing - Character -based Product
•-I t-I ,
1
Utility System
39,000.00
Central Cash Collections
9,500.00
Work Order Management
7,500.00
U /SQL Data Dictionary
4,750.00
Additional InVision Pricing - Windows (GUI) based Product
Utility System 29,250.00
Central Cash Collections 7,125.00
Work Order Management 5,625.00
The prices quoted above for INCODE's InVision product is in addition
to the cost of the InCode /2000 character -based product.
Customer does not pay for the InVision cost difference until the
product is delivered. All payment terms contained in this
agreement will apply to the InVision product.
TJIE APPLICATION SOFTWARE TO BE PROVIDED IIEREIN IS
SUBTOTAL
60,750.00
SU BJECT TO THE ATTACHED TERMS AND CONDITIONS.
SALES TAX
ACCEP ED BY: ACCEPTED BY:
TOTAL
60,750.00
City nd ock INTERACTIVE COMPUTER DESIGNS. INC.
DATE DUE
This agreement is entered into by and between Interactive Computer r referred to as INCODE,
located at 6102 Chicago, Lubbock, Texas; and; THE CITY OF ROU referred to as CUSTOMER
on. , 1998.
Pursuant to the terms and conditions of this agreement which are con e CUSTOMER agrees to
purchase the following items from INCODE.
S /1
Signatu
i/ Ayo4
Title
f- 9f!
Date
SOFTWARE LICENSE SALES AGREEMENT
Signature
Marketing Administrator
Title
7/7/98
Date
hwswa032594
•
•
•
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, perpetual, 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.
PRICE. CUSTOMER agrees to pay the total INCODE
Software License Fee amount specified in this Agreement.
PAYMENT. CUSTOMER agrees to pay ibr the INCODE
Software in accordance with the following:
A. Twenty -five percent (25 %) upon delivery of the
Software.
B. Fifty percent (50 %) upon installation of the Software.
C. Twenty -five percent (25 %) upon acceptance of the Utility
System.
NOTICE: Payment does not in and of itself constitute
acceptance.
SOFTWARE ACCEPTANCE. Software will be
considered to be accepted by the CUSTOMER when the
software has been in use with the CUSTOMER's "live" data
for a period of thirty working days and is performing
substantially in accordance with INCODE's responses to the
CUSTOMER's Request for Proposal together with any
modifications, enhancements, changes or any other mutually
agreed alterations.
OTHER SERVICES. CUSTOMER agrees to pay
INCODE for any reasonable 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 to, 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 attached hereto and made a
part hereof by reference. INCODE shall 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 he shared
between CUSTOMER and any other installation site(s).
INCODE's current standard fee schedule is $97.50 per hour
and will remain in effect until the completion of the delivery
of the products and services purchased herein.
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 lihnihed to, use of the appropriate operating system at the
version and release levels specified by INCODE.
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
B. 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. 1NCODE 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 he responsible for problems related to
transferring the INCODE Software from one Computer
Hardware configuration to another unless INCODE
transfers the INCODE Software.
B. CUSTOMER agrees that if CUSTOMER modifies the
INCODE Software, INCODE will not be responsible for
providing support and /or new Software releases or
upgrades.
C. CUSI'OMF'.R shall not use the INCODE Software in
service bureau or time sharing without the express
written consent of INCODE and payment of additional
fees determined by INCODE.
D. CUS'T'OMER shall not use the INCODE Software to
perform services for any other entity or person acquired
through expansion or merger, if the acquired entity or
person creates a substantial increase in the usage of
1NCODE 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's compliance with this
Section with minimal interruption of business activities.
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 puposes and /or
disaster recovery testing 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.
SPECIFIC LICENSED USE CUSTOMER's use is limited
to the uses described above. license fee is based on the
following, and will be subject to increases if CtJSI'OMER
exceeds any of the parameters stated below.
A. Area: Williamson and Travis Commies, Texas
1
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SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS
Average annual billings: . 194,500
B. INCODE may assess additional license fees for
increases as follows: NO ADDITIONAL LICENSE
FEE SHALL BE ASSESSED IF THE ANNUAL
AVERAGE BILLINGS DO NOT INCREASE BY
MORE THAN 100,000.
C. Thereafter, INCODE may assess additional license fees
in accordance with INCODE's then current policy.
SOFTWARE MAINTENANCE. This License Agreement
entitles the CUSTOMER to twelve month's free INCODE
software maintenance and support beginning with the
Software Installation Date. At the - end of this period an
INCODE Software Maintenance Agreement may be
purchased by the CUSTOMER. The INCODE Software
Maintenance Agreement includes unlimited telephone
support, support by communication modem, and all software
upgrades, enhancements and new releases. This License
Agreement provides no Software maintenance beyond twelve
months from the Software Installation Date. 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
] NCODE'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 or settle the claim. In the
defense or settlement of the claim, INCODE shall, in its
reasonable judgment and at its option and expenses: (i)
obtain for Cl l S' IOM ER 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.
LIMITATION OF LIABILITY EXCEPT FOR
VIOLATIONS OF INCODIi'S INTELI;CTUAL OR
PROPIRETARY RIGHTS, NEITHER PARTY SI IALI. BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES, INCLUDING !till'
NOT LIMITED TO 1,05'1 DATA OR I.OSf PROFITS,
HOWEVER ARISING, EVEN IF -IT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
INCODE'SLIABILITY FOR DAMAGES UNDER THIS
AGREEMENT SHALL IN NO EVENT EXCEED THE
AMOUNT PAID BY CUSTOMER TO INCODE FOR THE
SOFTWARE, HARDWARE AND THE SERVICES AS TO -
WHICH THE CLAIM AROSE. EXCEPT FOR: (i)
DAMAGES INCURRED UNDER THE ARTICLE
ENTITLED "PATENT AND COPYRIGHT INDEMNITY ";
AND (ii) CLAIMS FOR BODILY INJURY OR TANGIBLE
PROPERTY DAMAGED TO TE EXTENT CAUSED BY
INCODE. THE PARTIES AGREE TO THE
ALLOCATION OF LIABILITY RISK SET FORTH IN
THIS SECTION.
WARRANTY 1NCODE 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 twelve (12) 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 twelve (12)
months after its receipt of the Software of any substantial
non - conformity of the Software with such specifications.
INCODE's sole obligation under this warranty is to remedy
such defect within sixty (60) working days of the reported
error. If INCODE is unable to provide CUSTOMER with a
remedy within sixty (60) working days of the reported error,
CUSTOMER reserves the right to cancel this Agreement
without further obligation. In the event of such cancellation,
INCODE shall he liable to pay C115l0MER all monies paid
by CUSTOMER for the software license fees. THE
FOREGOING WARRANTY IS EXCLUSIVE AND IS
MADE IN LIEU OF ALL 0111ER WARRANTIES OR
REPRESENTATIONS, WHETHER EXPRESS OR
IMPLIED, IN FACT OR IN LAW, INCI,UDING'11 It;
IMPLIED WARRANTIES OF MERCI IAN'FABILlTY
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
OE SUCH DAMAGES.
Notwithstanding any of the other provisions of this
Agreement, INCODI1 warrants that the Software is fit for the
purpose(s) stated in the Request for Proposal (REP) and
INCODE's response to the RFP. INCODE warrants that the
current version of its product will be supported and
maintained for a period of five (5) years from thc date of
installation. However, it is the intent of CUSTOMER 10
upgrade to INCODE's new release of its Windows -based
product, IrV ision, as soon as practical.
2
•
•
SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS
HOLD HARMLESS CUSTOMER agrees that it will hold
INCODE harmless against any claims, damages, liabilities,
casts and expenses, including reasonable attorneys' fees,
arising out of or relating to (i) CUSTOMER's failure to
implement any corrections, improvements and new releases
relating to the Software, or any part thereof, (ii)
CUSTOMER's unauthorized alterations to or use of the
Software, or (iii) CUSTOMER's breach of any of its
obligations to maintain the confidentiality of the Software or
CUSTOMER's 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, tegat proceedings, claims, demands, damages,
costs, expenses, and attorneys' 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
referenced hereunder may be terminated by either party upon
written notice 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. 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 ofthis Agreement as if it had executed the Agreement.
GENERAL.
This Agreement is made and shall be governed by the laws of
the State of Texas, excluding choice of law principles.
Venue shall he in Williamson County, 'Texas. The section
headings herein are provided for convenience only and have
no substantive effect on the construction of this Agreement.
No purchase order or other ordering docurnent that purports
to modify of supplement the printed text of this Agreement
or any Schedule shall add to or vary the terms ofthis
Agreement. All such proposed variations or additions
(whether submitted by INCODI; or CUSTOMER) are
objected to and deemed material unless agree 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 ofthis
Agreement is held to be 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 Copies 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 together with documents listed below (in
order of precedence) is dependent on each other to create the
Utility Billing System which INCODE proposes to furnish
CUSTOMER. The terms and conditions of this Agreement,
including the documents listed below, constitute the entire
agreement between the parties concerning CUSTOMER's .
acquisition and use of the Software. This Agreement
replaces and supersedes any prior verbal or written
understandings, communications, and representations
between the parties. This Agreement may be executed in
counterparts, which taken together shall be considered
original.
A. Request for Proposal (RFP) Number 98 -81 -0001
B. INCODE's response to the REP
C. Hardware And System Software Sales Agreement
D. Annual Hardware Maintenance Agreement
E. Software I,icense Sales Agreement
F. Software Modification /Required Interlaces Agreement
G. Third Party Application Software Sales Agreement
H. Software Conversion Agreement
1. Software Training Agreement
1 Annual Software Maintenance Agreement
NOTE: C,D,E,F,G 11,1, AND J ARE OF EQUAL
PRECENDENCE.
YEAR 2000 As part of the warranty of substantial
conformity to Documentation contained in this Agreement,
INCODE warrants that the Software is Year 2000 compliant
and will correctly address and operate accurately: (i) the
change of the century in a standard compliant manner.
including both Year 2000 and beyond; (ii) the existence and
absence of leap years; and (iii) date related operations.
Compliance means that the Software operates and correctly
processes in a manner that: (i) calculations using dates
execute utilizing a four digit year; (ii) the Software
functionality, including but not limited to, entry, inquiry,
maintenance and update (whether on -line, hatch, or
otherwise) supports four digit processing; (iii) without
human intervention; (iv) after transition of Year 2000,
processing with a four digit year shall occur without human
intervention (v) all leap years shall he calculated correctly;
and (vi) correct results shall be produced in forward and
backward date calculation spanning century boundaries
(there are no years stored as two digits.)
INSURANCE INCODE will furnish CUSTOMER with
evidence of (i) General Liability Policy, (ii) Worker's
Compensation Policy, and (iii) Professional Liability Policy,
SURETY INCODE shall furnish CUSTOMER with a
Performance 13ond in the amount of one hundred percent
(100 %) of the Contract amount.
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
3
•
•
•
SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS
,relationship of employer - employee, partnership, or joint
venture.
ESCROW In order to protect the rights of the CUSTOMER
pursuant to the agreement, INCODE shall keep and maintain
a current copy of the source code for any product licenses
held by CUSTOMER with a commercial escrow agency.
INCODE shall provide evidence as to the establishment of
the escrow account within thirty (30) days after th'e execution
of the agreement. Such escrow agreement shall authorize the
escrow agent to release such source code to the CUSTOMER
if and when the CUSTOMER shall have a right thereto
pursuant to the escrow agreement or if INCODE fails to
maintain the escrow as agreed herein. CUSTOMER shall
have the right at any time to verify that the copy of the source
code placed in escrow shall be reproduced and maintained on
machine readable mcdia compatible with CIJS'I OMER's
equipment and shall be accompanied by full documentation
thereof Copies of the revised source code and the source
code prior to the then - latest revision shall be maintained in
escrow as provided hereunder.
4
Customer Name
City of Mound Rock
Salesman
LM
Street Address
221 E. Main Street
P.O. Box
City
Round Rock
State
TX
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
PO Number
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRICE
Acucorp Run Time ( 20 users )
20
750.00
Transoft U /SQL 5 User License
5
2,475.00
THE THIRD PARTY SOFTWARE TO BE PROVIDED HEREIN IS
SUBTOTAL
3,225.00
SUBJECT TO THE ATTACHED TERMS AND CONDITIONS.
SALES TAX
ACCEPTED BY: ACCEPTED BY:
TOTAL
3,225.00
DATE DUE
City o und Rock INTERACTNE COMPUTER DESIGNS, INC.
•
•
THIRD PARTY APPLICATION SOFTWARE SALES AGREEMENT
This agreement is entered into by and between Interactive Computer Designs, Inc., hereinafter referred to as INCODE,
located at 6102 Chicago, Lubbock, Texas; and; THE CITY OF ROUNDROCK, hereinafter referred to as CUSTOMER
on , 1998.
Pursuant to the terms and conditions of this agreement which arc contained on these pages, he CUSTOMER agrees to
purchase the following items from INCODE.
• Signature
r� Aya2
Title
8 43 - 9g
Date
Signature
Marketing Administrator
Title
7/7/98
Date
hwswa032594
•
•
THIRD PARTY APPLICATION SOFTWARE 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:
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 terms and
conditions of the license from the publisher of the Third
Party Application Software to the CUSTOMER
CUSTOMER agrees to be 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 T11F, TERMS AND CONDITIONS
OF THE LIMITED WARRANTY GRANTED THEREBY,
1NCODE 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.
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. Upon execution of this agreement, an invoice for twenty-
five percent of the total amount specified in this
agreement will be issued and payment is due and payable
after the Customer secures financing/leasing
arrangements.
B. Within ten days of the date the Third Party Software is
delivered to CUSTOMER, and installed if applicable, the
balance of the total amount specified in this Agreement is
immediately due and payable.
C. All purchases of the rights to use the Third Party
Application Software following installation are final.
Returns of unopened, un installed 'third Party Application
Software must he made within thirty (30) days from the
date of this Agreement.
SOFTWARE SUPPORT. Support far Third Party
Application Software is not provided by INCODI; unless
otherwise specified in this 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. INCODI? shall not be liable for failure to provide, or
delays in providing, any services under this Agreement if
due to any cause beyond INCODE's reasonable control,
B. INCODE SHALL NOT RE LIABLE FOR ANY
INCIDENTAI., SPECIAL OR CONSEQUENTIAL
DAMAGES OF ANY NATURE WHATSOEVER,
INCLUDING, BUT NOT LIMITED TO, LOSS OF
ANTICIPATED PROFITS, OR OTHER ECONOMIC
LOSS IN CONNECTION WITH, OR ARISING OUT
OF ANY SOFTWARE OR SERVICES PROVIDED IN
THIS AGREEMENT. INCODE SHALL NOT BE
LIABLE FOR DAMAGES AS INDICATED ABOVE,
EVEN IF INCODE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
C. 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 Addcndum hereto.
GENERAL.
This Agreement is made and shall be governed by the laws of
the State of Texas, excluding choice of law principles.
Venue shall he in Williamson County, Texas. The section
headings herein 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 of supplement the printed text of this Agreement
or any Schedule shall 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 agree 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 to be 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 Copies 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 together with documents listed below (in
order of precedence) is dependent on each other to create the
Utility Billing System which INCODE proposes to furnish
CUSTOMER. The terms and conditions of this Agreement,
including the documents listed below, constitute the entire
agreement between the parties concerning CUSTOMER'S
acquisition and use of the Software. This Agreement
replaces and supersedes any prior verbal or written
understandings, communications, and representations
between the parties. This Agreement may be executed in
counterparts, which taken together shall be considered
original.
A. Request for Proposal (REP) Number 98 -81 -0001
B. INCODE's response to the RFP
C. Hardware And System Software Sales Agreement
D. Annual Hardware Maintenance Agreement
E. Software License Sales Agreement
1
•
•
THIRD PARTY APPLICATION SOFTWARE AGREEMENT
TERMS AND CONDITIONS
P. Software Modification/Required Interfaces Agreement
G. Third Party Application Software Sales Agreement
fl. Software Conversion Agreement
I. Software "Training Agreement
J. Annual Software Maintenance Agreement
2
Customer Name
City of Round Rock
Salesman
LM
Street Address
221 E. Main Street
P.O. Box
City
Round Rock
State
TX
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
PO Number
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRICE
Utility Billing
Master File
1
10,000.00
Transaction File
1
2,500.00
Consumption File
1
2,500.00
Estimated On -Site Assistance
80 hours
8,500.00
Esitmated Travel Expenses
1
2,273.00
Please Note: Customer must supply data in ASCII file
format on either 3.5" diskette, or 1/4" tape. Record layout and
description must be provided.
THE CONVERSION SERVICES TO BE PROVIDED HEREIN ARE
SUBTOTAL
25,773.00
SUBJECT TO THE ATTACHED TERMS AND CONDITIONS.
SALES TAX
ACCEP ED BY: ACCEPTED BY:
TOTAL
25,773.00
City of d.Opcn _ INTERACTIVE COMPUTER DESIGNS. INC.
DATE DUE
SOFTWARE CONVERSION AGREEMENT
This agreement is entered into by and between Interactive Computer Designs, Inc., hereinafter referred to as INCODE,
located at 6102 Chicago, Lubbock, Texas; and; THE CITY OF ROUNDROCK, hereinafter referred to as CUSTOMER
on , 1998.
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.
ignature
Title
S' -f3- 98
Date
By ' J/'� / /J!
Signature
Marketing Administrator
Title
7/7/98
Date
hwswa032594
SOFTWARE CONVERSION AGREEMENT
TERMS AND CONDITIONS
ic CONSIDERATION OE good and valuable consideration, the
eipt and sufficiency of which is hereby acknowledged, the parties
e reto 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. INCODE warrants that the conversion services
stated herein will not negatively impact the CUSTOMER's ability to
receive future enhancements and will not effect system performance.
PRICE. For the purchase of the Services, CUSTOMER agrees to pay
• the total amount specified on the first page of this Agreement.
Estimatedcosts shall be paid based on actual usage and may not exceed
the estimated amount without consent of CUSTOMER.
PAYMENT. CUSTOMER agrees to pay for the Services in
accordance with the following: -
A. Upon execution of this Agreement, CUSTOMER will be invoiced
and agrees to pay twenty-five percent (25 %) of the total amount
specified in this Agreement after securing lease /financing
arrangements.
B. Within fifteen days after the acceptance of converted data for each
application listed in this Agreement, CUSTOMER agrees to pay the
balance of the Iota] amount specified in this Agreement for such
conversion.
CONVERSION ACCEPTANCE Data conversion activities
described on page 1 of the Agreement will be considered accepted by
the CUSTOMER when the converted data is accurate and complies
with INCODE's response to the RFP and/or any addendum to this
Agreement. INCODE shall notify CUSTOMER upon successful
completion of all conversion routines. CUSTOMER shall have fifteen
alli 5) working days to verify the conversion and notify INCODE of
W.ceptance or non - acceptance of the converted data. Payment will be
made in accordance with the payment provisions stated herein above.
CUSTOMER'S OBLIGATIONS. As a condition to INCODE's
obligations hereunder. CUSTOMER agrees to the following:
A. "fo provide INCODE with sufficient file descriptions and layout
information for the data to be converted for each software
application.
13. To provide INCODE with data in an ASCII unpacked format on
either UNIX 1/4 inch streaming tape or on industry standard 9 track
tape, DAT tape, or 4mm tape.
C. To provide INCODE with data that is current as of the dates agreed
upon between the CUSTOMER and 1NCODE.
D. To pay for any charges or fees billed by a third party for the
purpose of providing data to INCODE in the required fomml set
forth in B. above.
E. 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 for any reason be held to
be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or uncnforccability 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.
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
INCODE shall have any effect upon CUSTOMER's right to use the
,fivare in accordance with this Agreement, and amy assignee shall be
bound by the terms of this Agreement as if it had executed the
Agreement
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.
INDEMNITY 1NCODE 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 attorneys' fees
arising out of a willful or negligent act or omission of CUSTOMER,
its officers, agents. servants and employees, or third parties.
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.
I). 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
MERCI IANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE IMPOSED BY LAW OR WHICH COULD
OTHERWISE ARISE IN CONNECTION WITH INCODE'S
PERFORMANCE TINDER TI I1S 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 INJURY 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
l'OSSII3Il.ITY THEREOF IN ADVANCE. THESE
LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE
1
•
SOFTWARE CONVERSION AGREEMENT
TERMS AND CONDITIONS
AGGREGATE, INCLUDING WITHOUT LIMITATION
BREACH OF CONTRACT, BREACH OF WARRANTY,
INCODE'SNEGLIGENCE, 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
CUSTOMER'S 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 1-IAVE BEEN SUBSTANTIALLY
HIGHER.
E. In no event shall INCODE be liable for any amount in excess of the
amount paid by CUSTOMER to INCODE pursuant to this
Agreement.
FORCE MAJEURE. The parties to this Agreement shall not be liable to each other
for any delay or failure of the other party 10 perform its obligations under this
Agreement or otherwise if such delay of 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 God, floods, lightning,
shortages of materials, rationing, utility or communication failures. earthquakes,
casually, war, acts of public enemy, riots, insurrections, embargoes, blockages,
actions, restrictions. regulations, or orders of any government agency or subdivision
thereof
GENERAL.
This Agreement is made and shall be governed by the laws of the State
of Texas, excluding choice of law principles. Venue shall be in
illiamson County, "Texas. The section headings herein are provided
1111/Jr convenience only and have no substantive effect on the construction
of this Agreement. No purchase order or other ordering document that
purports to modify of supplement the printed text of this Agreement or
any Schedule shall 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 agree 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 to be 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 he executed in counterparts. "fo expedite order
processing, Transmitted Copies 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 together with documents listed below (in order of
precedence) is dependent on each other to create the Utility Billing
System which INCODE proposes to furnish CUSTOMER. The terms
and conditions of this Agreement, including the documents listed
below, constitute the entire agreement between the parties concerning
CUSTOMER'S acquisition and use of the Software. This Agreement
replaces and supersedes any prior verbal or written understandings,
o e ommunications, and representations between the parties. 'this
greement may be executed in counterparts, which taken together shall
considered original.
A. Request for Proposal (RFP) Number 98 -81 -0001
B. INCODE's response to the RFP
C. Hardware And System Software Sales Agreement
D. Annual Hardware Maintenance Agreement
E. Software License Sales Agreement '
F. Software Modification/Required Interfaces Agreement
G. Third Party Application Software Sales Agreement
H. Software Conversion Agreement
I. Software Training Agreement
J. Annual Software Maintenance Agreement
INSURANCE INCODE will furnish CUSTOMER with evidence of
(i) General Liability Policy, (ii) Worker's Compensation Policy, and
(iv) Professional Liability Policy.
SURETY INCODE shall furnish CUSTOMER with a Performance
Bond in the amount of one hundred percent (100 %) of the Contract
amount.
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.
2
Customer Name
City of Round Rock
Salesman
LM
Street Address
221 E. Main Street
P.O. Box
City
Round Rock
State
TX
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
PO Number
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRICE
Estimated Costs for Utility System Modification
Automatically generate a cut off list after printing a preview
report that can be reviewed for possible revisions. Listing will
include credit history codes for customer
1
300.00
Provide for reporting a summarized credit history for previous
1
300.00
24 months, and optionally print this credit history on cut off reports
and work order reports.
Provide ability to send and track a total of not less than three (3)
97.50 per hr.
different user defined variations of automated, system-
generated notification of delinquency based on credit history
parameters set by user.
Not to Exceed
487.50
Provide interface to the Accounts Payable module of the City's
97.50 per hr.
new financial system for processing of security deposit refunds to
customers. Refund checks must be printed and tracked in the
Not to Exceed
975.00
City's new financial system.
Provide interface to the general ledger module of the city's new
97.50 per hr.
financial system to allow for processing accounting transactions.
Not to Exceed
975.00
(I.e. billings, adjustments, and collections) from Utility Billing.
Interface between Utility Billing System and system used by
97.50 per hr.
subcontractor for printing /mailing bills to customers.
Not to Exceed
780.00
THE MODIFICATION SERVICES TO BE PROVIDED HEREIN ARE
SUBTOTAL
3,817.50
SUBJECT TO THE ATTACHED TERMS AND CONDITIONS.
SALES TAX
ACCEP D BY: ACCEPTED BY:
TOTAL
3,817.50
City o nd Rock INTERACTIVE COMPUTER DESIGNS, INC.
DATE DUE
This agreement is entered into by and between Interactive Computer Designs, Inc., hereinafter referred to as INCODE,
located at 6102 "Chicago, Lubbock, Texas; and; THE CITY OF ROUNDROCK, hereinafter referred to as CUSTOMER
on, , 1998.
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.
Signature
• MA yo/2
Title
8 -- 13 - 9
Date
SOFTWARE MODIFICATION REQUIRED INTERFACES AGREEMENT
By
Signature
Marketing Administrator
Title
7/7/98
Date
hwswaO32594
•
SOFTWARE MODIFICATION /REQURIED INTERFACES
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:
SOFTWARE MODIFICATIONS. INCODE agrees toprovide
CUSTOMER with the software modifications services described on the
first page of this Agreement (the "Software Modification Services "). In
addition, the Software Modification Services provided are limited to the
following:
A. Software Modification Services necessary to allow INCODE's
Software to perform"according to INCODE's responses to the
CUSTOMER's Request for Proposal. Software modifications will be
completed in a time frame mutually agreed Upon by INCODE and
CUSTOMER.
B. Additional Software Modifications shall be provided in accordance
with these terms and conditions only when requested by CUSTOMER
- in writing as an addendum to this Agreement or a new agreement is
created.
C. INCODE will incorporate any modification performed for the
CUSTOMER into any new release or enhancement of the INCODE
software.
D. INCODE will notify CUSTOMER if a modification will negatively
impact system performance or destroy /impact the upgrade path for
future releases of the software,
PRICE. CUSTOMER AGREES TO PAY THE TOTAL Software
Modification Services fees specified in this Agreement. Any additional
Software Modifications shall be provided by INCODE in accordance with
the agreed upon pricing stated in any addendum hereto or anyadditional
agreement entered into by the parties hereto
PAYMENT. CUSTOMER agrees to pay for the Software Modification
Services fees in accordance with the following:
A. Upon execution of this Agreement, CUSTOMER agrees to pay
twenty-five percent of the total amount specified in this Agreement,
unless olenvi.se specified in this Agreement
13. CUSTOMER agrees to pay the balance of the fees charged by
INCODE within thirty days of Software Modification Acceptance.
SOFTWARE MODIFICATION ACCEPTANCE. Software
Modifications described on page 1 of the Agreement will be considered
accepted by the CUSTOMER when the software functions substantially in
accordance to INCODE's response to the RFP and/or any addendum to this
Agreement. INCODE shall notify CUSTOMER upon completion and
installation of Software Modification(s). Payment will be made in
accordance with the payment provisions stated herein above.
Notwithstanding any of the other provisions of this Agreement, INCODE
warrants that the Software is fit for the purpose(s) stated in the Request for
Proposal (RFP) and INCODE's response to the REP.
INDEMNITY INCODE shall indemnity. 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 or 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 attorneys' fees arising out of a
willful or negligent act or omission of CUSTOMER, its officers,
agents, servants and employees, or third parties.
LIMITATION OF LIABILITY.
A. INCODE shall not be liable for failure 10 provide, or delays in
providing, Software Modification Services under this Agreement if
due to any cause beyond INCODE's reasonable control.
B. 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 WI -IICI I COULD OTHERWISE
ARISE IN CONNECTION WITH INCODE'S PERFORMANCE
UNDER THIS AGREEMENT.
C. 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 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 THEREOF IN ADVANCE. THESE 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 ILAVE BEEN
SET TO REFLECT THE FACT TIIAT CUSTOMER'S 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 IHGHER.
D. In no event shall INCODE be liable for any amount in excess of the
amount paid by CUSTOMER to INCODE pursuant to this Agreement
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 of failure
arises from any cause or causes beyond the reasonable control of either
party, including, but art limited to. labor disputes, strikes, other labor or
industrial disturbances, acts of God, foods, 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 olher condition
or the breach of any other term, covenant, re presentation. warranty or
condition set forth.
GENERAL.
This Agreement is made and shall be governed by the laws of the
Stale of Texas, excluding choice of law principles. Venue shall he in
Williamson County, Texas. 'The section headings herein 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 of supplement the printed text of
this Agreement or any Schedule shall 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 agree 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 to he unenforceable, this Agreement shall
•
SOFTWARE MODIFICATION /REQURIED INTERFACES
AGREEMENT TERMS AND CONDITIONS
be construed without such provision. The failure of a paity 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 Copies 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 together with documents listed
below (in order of precedence) is dependent on each other to
create the Utility Billing System which INCODEproposes to
furnish CUSTOMER. The terms and conditions of this
Agreement, including the documents listed below, constitute
the entire agreement between the parties concerning
CUSTOMER's acquisition and use of the Software. This
Agreement replaces and supersedes any prior verbal or
written understandings, communications. and representations
between the parties. This Agreement may be executed in
counterparts, which taken together shall be considered
original.
A. Request for Proposal (RFP) Number 98 -81 -0001
B. INCODE's response to the RFP
C. Hardware And System Software Sales Agreement
D. Annual 1 lardware Maintenance Agreement
E. Software License Sales Agreement
F. Software Modification /Required Interfaces Agreement
G. Third Party Application Software Sales Agreement
H. Software Conversion Agreement
I. Software Training Agreement
J. Annual Software Maintenance Agreement
NOTE: C,D,E,F,G H,I, AND J ARE OF EQUAL
PRECENDENCE.
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 attorneys' fees arising out
of a willful or negligent act or omission of CUSTOMER,
its officers, agents. servants and employees. or third
parties.
INSURANCE INCODE will furnish CUSTOMER with
evidence of(i) General Liability Policy, (ii) Worker's
Compensation Policy, and (iii) Professional Liability
Policy.
SURETY INCODE shall furnish CUSTOMER with
Performance Bond in the amount of one hundred percent
(100 %) of the Contract amount.
RELATIONSHIP OF THE PARTIES The parties
acknowledge that 1NCODE 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.
2
Customer Name
City of Round Rock
Salesman
LM
Street Address
221 E. Main Street
P.O. Box
City
Round Rock
State
TX
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
PO Number
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRICE 1
On -Site Training
Utility System (MMS)
128 hours
13,600.00
U /SQL Data Dictionary
0 hours
0.00
Central Cash Collections
20 hours
2,125.00
Work Order Management
20 hours
2,125.00
Estimated On -Site Training Travel Expenses
1
4,741.00
THE TRAINING SERVICES TO BE PROVIDED HEREIN ARE
SUBTOTAL
22,591.00
SUBJECT TO THE ATTACHED TERMS AND CONDITIONS.
SALES TAX
ACC ' TED BY: ACCEPTED BY:
TOTAL
22,591.00
Ci ound Rock INTERACTIVE COMPUTER DESIGNS, INC,
n e
DATE DUE
•
This agreement is entered into by and between Interactive Computer Designs, Inc., hereinafter referred to as INCODE,
located at 6102 Chicago, Lubbock, Texas; and; THE CITY OF ROUNDROCK, hereinafter referred to as CUSTOMER
on, , 1998.
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.
orXfe JN ayh e
Signature
/ ///
• rnyo4
Title
8 -13 -9g
Date
SOFTWARE TRAINING AGREEMENT
By
Signature
Marketing Administrator
Title
7/7/98
Date
hwswa032594
•
•
•
SOFTWARE TRAINING AGREEMENT
TERMS AND COND'ITIONS
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.
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.
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.
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 reasonable expenses as incurred by INCODE.
B. CUSTOMER is not charged for travel time to and from
the CUSTOMERS site. Only time spent on -site is billed
as training lime.
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 CUSTOMER'S 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 ]raining time beyond INCODE's control will
he billed as training time. INCODE will make reasonable
efforts to schedule training on dates requested by the
CUSTOMER. INCODE's training effort shall he staffed
with professional personncl with standards and qualifications
necessary for a successful training program. If in the opinion
of CUSTOMER the assigned training personncl 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 travel expenses related to the on -site training
services to be provided hereunder. INCODE and
CUSTOMER shall mutually establish the training datc(s).
A. 'travel expenses may include but is not limited to airtime,
automobile rental, lodging, gasoline, parking fees and
mileage (if a personal automobile is used for travel to the
CUSTOMER's site). 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. The estimated expenses
shall not be exceeded unless approved in writing by
CUSTOMER.
PREREQUISITES. The CUSTOMER agrees that the
Training quoted in INCODE's bid/proposal 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
(raining that may be 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 if requested by CUSTOMER.
C. 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 I.A W OK
WHICH COULD OTHERWISE ARISE IN
CONNECTION WITH INCODE'S PERFORMANCE
UNDER 'Il -IIS AGREEMENT.
D. INCODE AND CUSTOMER ACKNOWLEDGE AND
AGREE '11 INF, EXCEPT FOR ANY DAMAGES
CLAIMED BY CUSTOMER AND FINALLY
AWARDED AGAINST INCODE IN CONNECTION
WITH PERSONAL INJURY TO CUSTOMER
PERSONNEL RESUCf1NG FROM INCODE'S
NEGLIGENT BEHAVIOR WHILE PERFORMING
SERVICES HEREUNDER, IN NO EVENT WILL
INCODE'S LIABILITY TO '111E 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.
'111ESE LIMITATIONS APPLY TO ALL CAUSES
OF ACTION IN THE AGGREGATE, INCLUDING
W1111011'1 1.1MITA ION BREACH OF CONTRACT.
BREACH OF WARRANTY, INCODE'S
NF1GI,IGENCE, STRICT
LIABILITY, MISREPRESENTATION, AND OTHER
CAUSES OF ACTION BASED ON SIMILAR
LEGALTHEORIES. INCODE AND CUSTOMER
FURTHER ACKNOWLEDGE AND AGREE 'H IAI'
THEY ARE ENTERING INTO THIS AGREEMENT
ON THE UNDERSTANDING '11 IA f "1'1113 FEES FOR
1
•
•
SOFTWARE TRAINING AGREEMENT
TERMS AND CONDITIONS
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.
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 of 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 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,
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 soils ,
actions, legal proceedings, claims, demands, damages,
costs, expenses, and attorneys' fees arising out of a willful
or negligent act or omission of CUSTOMER, its officers,
agents, servants and employees, or third parties.
GENERAL.
'th is Agreement is made and 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 herein 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 of supplement the printed text of this Agreement
or any Schedule shall 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 sinless agree 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 to be 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 Copies are considered documents equivalent to
original documents, however CUSTOMER and INCODE
agree to provide each otter with one fully executed original
and complete Agreement.
"Phis Agreement together with documents listed below (in
order of precedence) is dependent on each otter to create the
Utility Billing System which INCODE proposes to furnish
CUSTOMER. The terms and conditions of this Agreement,
including the documents listed below, constitute the entire
agreement between the parties concerning CUSTOMER's
acquisition and use of the Software. This Agreement
replaces and supersedes any prior verbal or written
understandings, communications, and representations
between the parties. This Agreement may be executed in
counterparts, which taken together shall be considered
original.
A. Request for Proposal (RFP) Number 98 -81 -0001
B. INCODE's response to the RFP
C. Hardware And System Software Sales Agreement
D. Annual Hardware Maintenance Agreement
E. Software License Sales Agreement
F. Software Modification/Required Interfaces Agreement
G. Third Parry Application Software Sales Agreement
H. Software Conversion Agreement
I. Software Training Agreement
I, Annual Software Maintenance Agreement
NOTE: C,D,E,F,G H,I, AND ,I ARE OF EQUAL
PRECENDENCE.
INSURANCE 1NCODE will furnish CUSTOMER with
evidence of (i) General Liability Policy, (ii) Worker's
Compensation Policy, and (iii) Professional Liability Policy.
SURETY INCODE shall furnish CUSTOMER with a
Performance Bond in the amount of one hundred percent
(100 %) of the Contract amount.
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.
2
Customer Name 'Salesman
City of Round Rock LM
Street Address
221 E. Main Street
PRICE
City
Round Rock
State
TX
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
PO Number
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRICE
InCode /2000 Character -based Product
,c- N
Utility System (MMS)
7,800.00
Central Cash Collections
1,900.00
Work Order Management
1,500.00
U /SQL Data Dictionary
950.00
Additional Maintenance for InVision Windows - based (GUI) Product
Utility System 5,850.00
Central Cash Collections 1,425.00
Work Order Management 1,125.00
Maintenance will become due forinVision product as per teens
contained in this agreement.
Please note.' INCODE provides maintenance and support for 12 months
at no charge as per the Software License Agreement. The amount
included in this agreement is the second year maintenance cost.
You will be invoiced for this amount on the one year anniversary
of the installation of your software.
THE MAINTENANCE SERVICES TO BE PROVIDED HEREIN ARE
SUBTOTAL
12,150.00
SUBJECT TO THE ATTACHED TERMS AND CONDITIONS.
SALES TAX
ACCEPTED BY: ACCEPTED BY:
TOTAL
12,150.00
City of und Rock INTERACTIVE COMPUTER DESIGNS, INC.
DATE DUE
•
ANNUAL SOFTWARE MAIN'] NAN E AGREEMENT
This agreement is entered into by and between Interactive Computer DI referred to as INCODE,
located at 6102 Chicago, Lubbock, Texas; and; THE CITY OF ROUNDROCK, hereinafter referred to as CUSTOMER
on, 1998.
Pursuant to the terms and conditions of this agreement which are contained CUSTOMER agrees to
purchase the following items from INCODE.
Signature f1 p
• Titl yn/ -
8 - /3-Rk
Date
By: �`
Signature
Marketing Administrator
Title
7/7/98
Date
hwswa032594
•
•
•
SOFTWARE MAINTENANCE AGREEMENT
TERMS AND CONDITIONS
IN CONSIDERATION OF the terms and conditions of the
Agreement and other good and valuable consideration, the patties
hereto agree as follows:
SOFTWARE SUPPORT. INCODE shall provide CUSTOMER
With software support for the INCODE Software and Sublicensed
Software specified on the fast page of this Agreement.
ERROR CORRECTION. An error correction is defined as a
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
INCODE's opinion are caused by a defect in an unaltered version
of the INCODE Software.
B. lithe CUSTOMER notifies INCODE that an error exists and
INCODE's 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 INCODE's then standard rates. Examples of causes of this
type errors include but are not limited to, errors caused by
CUSTOMER's 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 arc 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 hest efforts to insure t hathohaneements shall be compatible
with hardware that INCODE has recommended the CUSTOMER to
use.
A. CUSTOMER acknowledges that the Enhancements may not be
compatible with CUSTOMER's 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 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 di( is in the best interest of
CUSTOMER to install such Enhancements.
UPDATES. An update is defined as a change made in the INCODE
Software which is required in order for the software to function
according to INCODE's software specifications. Updates of the
INCODE Software arc provided to CUSTOMER as part 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
CUSTOMER's State or other governmental statutes or by
procedural changes directed by governmental agencies having
control over CUSTOMERS operations.
(I) CUSTOMER will provide INCODE with the necessary
inf mnation 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
INCODE's 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. However, 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. 1CODE shall
use its best efforts to insure that Enhancements shall be
compatible with hardware that INCODE has recommended the
CUSTOMER to use.
A. CUSTOMER acknowledges that the New Release may not be
compatible with CUSTOMER's 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.
13. 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 INCODE's
customers,
TELEPHONE SUPPORT. INCODE shall provide CUSTOMER
telephone support for answering questions concerning use of
INCODE Software. This service shall be provided between the hours
of 8:00 a.m. and 5:00 rym., Central Time, Monday through Friday,
excluding INCODE 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 shall 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 INCODE's offices incurred while
providing Updates and Enhancements.
C. CUSTOMER shall provide telephone lines, communications
software specified by INCODE and all equipment necessaryet
CUSTOMER location to use INCODE's on -line support.
SOFTWARE COVERED. This Agreement applies to all licensed
INCODE Software listed on this Agreement If CUSHJMER
acquires additional INCODE Software in the tinure, 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 INCOOE Software inetndestwelve
month's maintenance from the time the Software is installed.
B. the annual maintenance fees will become due the first of the
month following twelve months after the installation of the
INCODE Software.
If Customer fails to pay the maintenance fee when due, INCODE
shall have the right 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. 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 twelve months after the installation of the
INCODE Software and ending upon the last day of the month one
year following that date.
•
•
•
SOFTWARE MAINTENANCE AGREEMENT
TERMS AND CONDITIONS
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.
B. INCODE will not increase maintenance fees more than
10% per year and will furnish CUSTOMER a schedule
of fees not less than forty -five (45) days prior to the
expiration of the then curreltt agreement.
C. If CUSTOMER has not elected to participate in the INCODE
Software Maintenance Agreement, or elects not to renew the
Agreement, the CUSTOMER may acquire Software
maintenance in accordance to the Section entitled "SUPPORT
FOR CUSTOMERS NOT PARTICIPATING ".
SUPPORT FOR CUSTOMERS NOT PARTICIPATING. The
Software License Agreement includes twelve months free
maintenance. If CUSTOMER elects not to participate in the
INCODE Software Maintenance Agreement CUSTOMER shall
receive support on a Time and Materials basis followingtwelve
months after the 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 lifteen minute minimum.
13. Updates, Enhancements and New Releases shall be provided to
CUSTOMER at CUSTOMER'S request. The fee for said
Updates, Enhancements and New Releases shall be determined
solely by INCODE at the time the request is made by
CUSTOMER.
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 he billed on a Time and Materials
basis at INCODE's 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 specifically covered by this Agreement.
1, Responding to problems resulting from misuse, accidents,
CUSTOMER neglect, fire, or any other cause not within
INCODE's 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.
FORCE MAJEURE The parties to this Agreement shall
not he 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 of 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 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.
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 attorneys' fees arising out of a willful
or negligent act or omission of CUSTOMER, its officers,
agents, servants and employees, or third parties.
REMEDIES.
A_ INCODE IIEREBY 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.
B, INCODE AND CUSTOMER ACKNOWLEDGE ANT) AGREE
THAT, EXCEPT FOR ANY DAMAGES CLAIMED BY
CUSTOMER AND FINALLY AWARDED AGAINST
INCODE IN CONNECTION WITH PERSONAL INJURY 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
CI. AIM OR REASON WHATSOEVER RELATING TO THE
SUBJECT MATTER Or TIIIS AGREEMENT EXCEED ONE
YEAR'S MAINTENANCE FEES PAID BY CUSTOMER.
CUSTOMER AND INCODE ACKNOWLEDGE AND AGREE
TIIAT 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 LIMf1'ATIONS APPLY TO ALL
CAUSES OF ACTION IN THE AGGREGATE, INCLUDING
WITHOUT LIMITATION BREACH OF CONTRACT,
BREACH OF WARRANTY, INCODE's NEGLIGENCE,
5 ]RIOT LIABILITY, MISREPRESENTATION, AND OTHER
CAUSES OF ACTION BASED ON SIMILAR LEGAL
THEORIES. INCODE AND CUSTOMER FURTHER
ACKNOWLEDGE AND AGREE THAT THEY ARE
ENTERING INTO TIIIS AGREEMENT ON THE
UNDERSTANDING THAT THE FEES FOR THE SERVICES
TO BE PROVIDED TINDER THIS AGREEMENT HAVE
BEEN SET TO REFLECT THE FACT THAT CUSTOMER'S
REMEDIES, AND INCODE's LIABILITY, SHALL BE
LIMITED AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, AND IF NOT SO I]MITED, THE FEES FOR
THE SAME WOULD HAVE BEEN SUBSTANTIALLY
HIGHER.
FISCAL FUNDING This Agreement is a commitment
of CUSTOM ER's current revenues only. It is
understood and agreed that CUSTOMER shall have to
right to terminate this Agreement at the end of any
CUSTOM ER's fiscal year (October 1 through
2
•
•
SOFTWARE MAINTENANCE AGREEMENT
TERMS AND CONDITIONS
September 30) if the governing body of the City of
Round Rock does not appropriate funds sufficient to
pay the contractual charges as stated herein or attached
hereto coming due in the CUSTOMER'S next fiscal
year, 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 Hardware
Support Services tem falls into more than one fiscal
year, and if CUSTOMER must terminate Software
Support Services due nonappropriation of funds during
the term other than the initial included year,
CUSTOMER shall be entitled to a partial refund of the
prepaid Software Support Services fcc or a partial
abatement if fees have not been paid.
GENERAL.
This Agreement is made and 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 herein are provided for convenience only and have
no substantive effect an the construction of this Agreement.
No purchase order or other ordering document that purports
to modify of supplement the printed text of this Agreement
or any Schedule shall 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 agree to in writing.
Except for CUSTOMER's obligation to pay INCODE,
neither party shall he liable for any failure due to causes
beyond its reasonable control. Batty provision of this
Agreement is held to be unenforceable, this Agreement shall
be construed without such provision. 'lire 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 he
executed in counterparts. To expedite order processing,
"Transmitted Copies 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 together with documents listed below (in
order of precedence) is dependent on each other to create the
Utility Billing System which INCODE proposes to furnish
CUSTOMER. The terms and conditions of this Agreement,
including the documents listed below, constitute the entire
agreement between the parties concerning CUSTOMER's
acquisition and use of the Software. This Agreement
replaces and supersedes any prior verbal or written
understandings, communications, and representations
between the parties. This Agreement may be executed in
counterparts, which taken together shall be considered
original.
A, Request for Proposal (RFP) Number 98 -81 -0001
B. INCODE's response - to the RFP -
C. Hardware And System Software Sales Agreement
D. Annual Hardware Maintenance Agreement .
E. Software License Sales Agreement
K Software Modifieation/Required Interfaces Agreement
O. Third Party Application Software Sales Agreement
H. Software Conversion Agreement
L Software Training Agreement
J. Annual Software Maintenance Agreement
NOTE: C,D,E,F,G H,I, AND J ARE OF EQUAL
PRECENDENCE.
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 attorneys' fees arising out of a willful
or negligent act or omission of CUSTOMER, its officers,
agents. servants and employees, or third parties.
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.
BINDING EFFECT AND ASSIGNMENT This Agreement shall
inure to the benefit of and hind the parties hereto, their successors
and assigns_ Neither party shall assign this Agreement without thc
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 terms of this Agreement as if it had
executed the Agreement.
2
Customer Name
City of Round Rock
Salesman
LM
Street Address
221 E Main Street
Epson TM -93011 Receipt Printer
City
Round Rock
State
TX
Zip
78664
Contact Person
Irma Mendoza
Phone Number
512/218 -5400
PO Number
Tax Exempt
YES
DESCRIPTION
QUANTITY
PRICE
Epson TM -93011 Receipt Printer
CO CO LO
495.00
APG Automated Cash Drawer
157.50
ScanWedge Bar Cod Scanner
325.00
Please note: The manufacturer's warranty provides
maintenance for twelve (12) months at no charge.
You will be invoiced for the amount in this agreement
one year following the installation of your hardware.
Loaner services are provided under this agreement during the
first twelve months at no extra charge.
TIIE IIARDWARE MAINTENANCE TO BE PROVIDED HEREIN IS
SUBTOTAL
977.50
SUBJECT TO THE ATTACHED TERMS AND CONDITIONS.
SALES TAX
ACCEPTED BY: ACCEPTED BY:
TOTAL
977.50
City und Rock INTERACTIVE COMPUTER DESIGNS, INC.
DATE E DUE
on,
ANNUAL HARDWARE MAINTENANCE AGREEMENT
This agreement is entered into by and between Interactive Computer Designs, referred to as INCODE,
located at 6102 Chicago, Lubbock, Texas; and; THE CITY OF ROUNDROCK, hereinafter referred to as CUSTOMER
ru. a me
Signature
�'-
Title
Date
1998.
Pursuant to the terms and conditions of this agreement which are contained CUSTOMER agrees to
purchase the following items from INCODE.
Signature
Marketing Administrator
Title
7/7/98
Date
hwswa032594
•
•
•
ANNUAL HARDWARE MAINTENANCE AGREEMENT
TERMS AND CONDITIONS
IN CONSIDERATION OF the terms and conditions of the
Agreement and other good and valuable consideration, the
premises contained herein, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
EQUIPMENT TO BE COVERED. CUSTOMER -
requests to cover and INCODE agrees cover the equipment -
'specified in this agreement.
PURPOSE. The purpose of this Agreement is to:
A. Outline the servicesprovided by INCODE during
the stated warranty period for each piece of equipment
covered under the Agreement.
B. Outline the services to be provided for extended
periods of time agreed upon by INCODE and the
Customer.
C. Indicate the rate that will be charged by INCODE
for the first period (twelve months, unless stated
otherwise in this Agreement) of optional extended
maintenance_
PRICE. The CUSTOMER agrees to pay the Maintenance
fcc specified in this Agreement. INCODE guarantees this
fee for thc term of the Maintenance Agreement which is
twelve months. Any increase will be limited to a ten
percent (10 %). INCODE shall furnish a schedule of fees
not less than forty -five (45) days prior to the expiration of
the then current agreement
PAYMENT. CUSTOMER agrees to pay the Maintenance
Agreement fee in accordance with the following terms:
A. The CUSTOMER will be invoiced for the first
period of extended maintenance upon the one year
anniversary of the installation of the hardware.
B. In order for equipment to be eligible to he covered
under this Agreement, the equipment must be covered
beginning with the date of purchase of the equipment
and must remain under continuous coverage on the
Agreement.
FISCAL FUNDING This Agreement is a commitment of
CUSTOMER's current revenues only. It is understood and
agreed that CUSTOMER shall have le right to terminate
this Agreement at the end of any CUSTOMER's fiscal year
(October 1 through September 30) if the governing body of
thc City of Round Rock does not appropriate funds
sufficient to pay the contractual charges as stated herein or
attached hereto coming due in the CUSTOMER's ncxt
fiscal year, 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 Hardware Support
Services tem falls into more than one fiscal year, and if
CUSTOMER must terminate Software Support Services
due nonappropriation of funds during the term othcr than
the initial included year, CUSTOMER shall be entitled to a
partial refund of the prepaid Software Support Services fee
or a partial abatement if fees have not been.paid.
EQUIPMENT MAINTENANCE PROGRAM TERMS.
INCODE agrees to provide the maintenance on the
• equipment specified under this agreement in accordance to
the following terms: -
A. In the event of equipment failure, INCODE will
repair the defective equipment and provide the
CUSTOMER with "like or near like" equipment while
the defective equipment is being repaired.
B. CUSTOMER shall notify INCODE of equipment
failure. Upon notification, INCODE will ship via over-
night service to the CUSTOMER the appropriate loaner
equipment. The CUSTOMER shall package the
defective equipment in its appropriate container and
ship the equipment to INCODE.
C. Once the equipment is repaired, it will be shipped to
the CUSTOMER. Upon receipt of the repaired
equipment the CUSTOMER shall ship the loaner
equipment back to INCODE. The loaner equipment
should be shipped back to INCODE within five
working days of receiving the repaired equipment. The
CUSTOMER agrees to pay mutually agreed upon daily
rental fees to INCODE if the loaner equipment is not
shipped back to INCODE within the time frame
specified.
D. The CUSTOMER is responsible for shipping cost
related to shipping equipment to INCOUE. INCODE
is responsible for shipping cost related to shipping
equipment to the CUSTOMER.
DEFINITIONS. The following definitions apply to the
terms of this Agreement:
A. Loaner Equipment. Equipment loaned to the
CUSTOMER by INCODE for use while the
CUSTOMER's equipment is being repaired.
13. Like or Near-Like Equipment. Equipment
compatible with the CUSTOMER'S computer system
and capable of performing the tasks performed by the
equipment being repaired.
EQUIPMENT NOT COVERED. INCODE is not
responsible for maintenance related problems on
equipment not covered under this Agreement.
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 Hardware in accordance with this Agreement,
and any assignee shall be bound by the terms of the
Agreement as if it had executed the Agreement.
LEGAL CONSTRUCTION. In cast any one or more of
the provisions contained in this Agreement shall for 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.
2
•
•
•
ANNUAL HARDWARE MAINTENANCE AGREEMENT
TERMS AND CONDITIONS
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 of 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 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.
RISK OF LOSS. Risk of loss or damage to equipment
being shipped to INCODE is the responsibility of the
CUSTOMER. Risk of loss or damage to equipment being
shipped to the CUSTOMER is the responsibility of
INCODE.
LIMITATION OF LIABILITY. This Agreement is
subject to the following provisions:
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 control.
B. CUSTOMER expressly assumes all responsibility
for the selection and use of the hardware, licensed
software, and products.
C. INCODE shall not be liable for any incidental,
special or consequential damages of any nature
whatsoever, such as, but not limited to, loss of
anticipated profits, or other economic loss in
connection with, or arising out of the existence of the
furnishing, functioning, or CUSTOMER's use of any
services or goods provided in this agreement, INCODE
will 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 moneys paid by CUSTOMER to
INCODE pursuant to this Agreement.
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 attorneys' fees arising
out of a willful or negligent act or omission of
CUSTOMER, its officers, agents, servants and
employees, or third parties.
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 crate any relationship
of employer- employee, partnership, or joint "venture.
GENERAL This Agreement is made and shall be governed
by the laws of the State of Texas, choice of law
principles. Venue shall be in Williamson County, Texas.
The section headings herein 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 of supplement the printed
text of this Agreement or any Schedule shall 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 agree to in
writing. Except for CUSTOMER's obligation to pay
] NCODE, neither party shall be liable for any failure clue to
causes beyond its reasonable control. If any provision of this
Agreement is held to be 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 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 Copies 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 together with documents listed below (in
order of precedence) arc dependent on each other to create
the Utility Biting System which 1NCODE proposes to
furnish CUSTOMER. The terms and conditions of this
Agreement, including the documents listed below, constitute
the entire agreement between the parties concerning
CUSTOMER's acquisition and use of the Software. This
Agreement replaces and supersedes any prior verbal or
written understandings, communications, and representations
between the parties. This Agreement may be executed in
counterparts, which taken together shall be considered
original.
A. Request for Proposal (REP) Number 98 -81 -0001
B. INCODE's response to the REP
C. Hardware And System Software Sales Agreement
D. Annual Hardware Maintenance Agreement
E. Software License Sales Agreement
F. Software Modification/Required Interfaces Agreement
G. "third Party Application Software Sales Agreement
11. Software Conversion Agreement
1, Software Training Agreement
1. Annual Software Maintenance Agreement
NOTE: C,D,E,F,G HI, AND J ARE OF EQUAL
PRECENDENCE.
2
INCODE Support and Escalation Policy
1. Take Call & Assign Incident Number. Customer contacts INCODE on the toll free
support line. Customer support receptionist logs the support call in our help desk system,
which assigns the call an incident number. The receptionist will ask what application the
call is in reference to (General Ledger, Utility Customer Information System, Payroll,
etc.) and the priority of the call.
2. Triage Call. In situations where we have a backlog of support calls, a triage staff member
who is experienced with supporting our software will return the customers call. A
detailed description of the incident is recorded. The triage person determines the priority
of the call, which determines its escalation process. In cases where the incident may be
closed quickly, the triage person will help the customer resolve the incident. In most
cases the triage person will assign the call to a support technician who specializes in the
application the incident is related to.
3. Incident Resolution Call. Calls are returned by the software support technicians based on
a combination of the priority of the calls and the order the calls are received. When there
is either no or very little backlog, a support technician will initiate the first call back to a
customer instead of the Triage staff member. In most cases the software support
technician will resolve the incident and the incident will be closed. If the support
technician is unable to resolve the incident, he or she will go to a support department
manager.
4. Management Level Resolution Backup. If the software support technician cannot resolve
the incident, he or she meets with one of the two software support department managers.
The manager will either do what is necessary to help the technician resolve the incident
or if necessary refer the incident to the Vice President of Operations.
The status of all support calls received during the day are monitored by the Triage staff
member as well as the support department co- managers, Cathy Curtis and Mark Zahn.
The INCODE help desk system automatically escalates incidents based on priority and
the order the calls were received. In situations where a manager identifies a call that
needs manual escalation, the manager may take personal assignment of the call or
manually escalate the call.
INCODE
6102 Chicago Avenue
Lubbock, TX 79424
800 - 646 -2633
July 15, 1998
DATE: August 7, 1998
SUBJECT: City Council Meeting, August 13, 1998
ITEM: 10. A. 2. Consider a resolution authorizing the Mayor to enter into an
agreement with interactive Computer Designs, Inc. for utility
billing software, software support and certain equipment.
This agreement has been funded by a revision to the Operating Budget
approved by the Council and is for $125,354. Ongoing system software
support and the related costs are also agreed to in the contract. Staff
Resource Person: David Kautz, Finance Director