CM-2004-009DATAMATIC LICENSE AND MAINTENANCE AGREEMENT
This Datamatic License and Maintenance Agreement ("Agreement") is made on this day of 20 by and between
DATAMATIC, LTD., a Texas limited partnership, located at 3600 K Avenue, Plano, Texas 75074 (hereinafter "Datamatic"), and City of Round Rock
doing business at 2008 Enterprise Drive, Round Rock, Texas 78664 ("Purchaser and/or Licensee").
RECITALS
A. WHEREAS Datamatic sells computer hardware ("Hardware") and licenses, in object form only, proprietary computer software ("Software") as a
system ("System"), provides related services ("Services") and provides annual support and maintenance on the System ("Support and
Maintenance").
B. WHEREAS Purchaser desires to acquire Software, Services, and Support and Maintenance from Datamatic;
IN CONSIDERATION of the payment of the deposit, the terms and conditions of this Agreement, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1- GENERAL TERMS
1. ASSIGNMENT. The rights and duties of the respective parties may be assigned only with the prior written consent of the nonassigning party.
2. PROPRIETARY INFORMATION.
A. Definitions. As used herein, the term "Proprietary Information" shall mean and include Datamatic's Software, software specifications, and
software routines (including without limitation the display routines, the routines permitting alteration in direction and sequence, and interface
routines permitting the communication of data over telephone lines), Datamatic's keyboard layout, and the prompting sequences embodied in
Datamatic's Software. This definition shall extend to Proprietary Information in whatever form such Proprietary Information may be
embodied, including but not limited to source code, object code, System documentation, System specifications, flow charts and diagrams,
photographic representations, and variations made to Datamatic Software at the request of Purchaser and special adaptations whether
designed by Purchaser or Datamatic, or as the result of the joint effort of Datamatic and Purchaser.
B. The term "Proprietary Information" shall not extend to any information, or any embodiment of information, which has become general public
knowledge or is generally known in the trade.
C. Protection of Proprietary Information. The parties hereto agree that all Proprietary Information disclosed by Datamatic to Purchaser in
connection with this Agreement constitutes the trade secrets and/or confidential information of Datamatic, and shall be held in trust and
confidence by Purchaser. Purchaser agrees to take reasonable steps to ensure the secrecy of the Proprietary Information of Datamatic; such
reasonable steps shall include, but are not limited to, the adoption of reasonable security procedures, and notification in writing to persons
having access to the Proprietary Information that the Proprietary Information embodies the trade secrets and confidential information of
Datamatic, and is not to be used or disclosed without proper authorization from Datamatic.
D. Notwithstanding the above, the parties recognize and understand that Licensee is subject to the Texas Public Information Act and its duties
run in accordance therewith.
3. TRADE NAMES. Purchaser acknowledges that ROUTESTAR, ROUTESTAR MVP, FIELDSTAR, PROFILEPLUS and FIREFLY are proprietary
trade names of Datamatic.
4. ENTIRE AGREEMENT. It is agreed that this Agreement and any EXHIBITs attached hereto and made a part hereby embody the entire agreement
of the parties in relation to the subject matter hereunder, and that there is no other oral or written agreement or understanding between the parties at the
time of execution pertaining to the subject matter of this Agreement. This Agreement shall not be modified except by the written agreement of all parties
hereto.
5. GOVERNING LAW. The parties hereto agree that this Agreement is accepted, entered into and enforceable in Williamson County, Texas. This
Agreement shall be governed by the laws of the State of Texas. To the extent that there is to be a delivery or performance of services in connection with
the sale of goods under this Agreement, such services will be deemed "goods" within the definition of the Uniform Commercial Code.
6. LEGAL CONSTRUCTION. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions of this Agreement shall not be in any way affected or impaired, and, to the fullest extent possible, the provisions
of this Agreement shall be construed so as to give effect to the intent manifested by all of the terms of the Agreement, including those provisions held
invalid, illegal or unenforceable; provided, however, that if the invalidity, illegality or unenforceability of any such provision results in material alteration
of the terms of this Agreement, the remaining provisions of this Agreement shall be adjusted equitably so that no party benefits disproportionately.
7. FORCE MAJEURE. Neither party hereto shall be in default by reason of any failure of its performance under this Agreement if such failure result-
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whether directly or indirectly, from fire, explosion, strike, freight embargo, act of God, act of the public enemy, war, civil disturbance, act of government,
. de jure or de facto, or any agency or official thereof, labor shortage, transportation contingencies, unusually severe weather, default of manufacturer or a
supplier or subcontractor, quarantine, restriction epidemic, or catastrophe, lack of timely instructions or essential information from the other party. The
occurrence of any event enumerated herein shall extend performance required under this Agreement by the amount of delay occasioned by such
occurrence.
8. INFRINGEMENT. Datamatic will defend, at its own expense, any action brought against Purchaser to the extent that such action is based on a claim
that the System, including the Hardware as described in Article 3, Paragraph 1 and the software as described in Article 4, Paragraph 1, or any part thereof,
infringes on any patent or copyright, or constitutes misappropriation or unauthorized use of any person's trade secret. Datamatic shall indemnify and hold
Purchaser harmless from all damages, costs, and expenses arising from such claims, provided that Purchaser notifies Datamatic in writing within 30 days
from the date such claim is asserted. Datamatic shall have the sole right to control the defense, negotiations, settlement and compromise of any such
action. If the System and/or Software becomes, or in Datamatic's opinion is likely to become, the subject of such a claim, Datamatic may, at its option,
either (1) obtain for Purchaser the right to continue using such System and/or Software; (2) replace such System and/or Software with a non -infringing
System and/or Software; or (3) modify such System and/or Software to make it non -infringing, so long as such replacement or modification is functionally
equivalent in capability and performance to the then -existing System and/or Software. If Datamatic or Purchaser learns or should have reasonably learned
that such an action has been filed or threatened against Datamatic or Purchaser, Datamatic or Purchaser, as the case may be, shall notify the other party
promptly in writing. Datamatic shall not be liable for, and Purchaser shall indemnify Datamatic against, damages arising from use of the System and/or
Software by Purchaser more than 30 days after Purchaser has learned or been notified of such a filed or threatened action. In no event shall Datamatic be
liable for special, consequential or punitive damages arising from such a filed or threatened action. The foregoing states the entire liability of Datamatic to
Purchaser with respect to infringement of any patent or copyright or any misappropriation or unauthorized use of another person's trade secret. Datamatic
shall not be liable to Purchaser if any claim of patent or copyright infringement, or claim of misappropriation or unauthorized use of another person's trade
secret, is based upon the use of the System and/or Software, or any part of either, in connection with equipment or software not delivered or licensed by
Datamatic, or in a manner for which the System and/or Software or any part of either, has been modified by or for Purchaser. Purchaser agrees to
indemnify Datamatic for damages, costs, and expenses arising from a claim of patent or copyright infringement or misappropriation of trade secrets, which
claim results, in whole or in part, from incorporation of Purchaser's designs, hardware, software, or specifications into the System.
9. TAXES, SHIPPING AND INSURANCE. Purchaser shall pay all taxes arising out of this Agreement, except for taxes levied upon the net income of
Datamatic. Purchaser agrees to provide an exemption certificate with this contract if Purchaser qualifies as an exempt organization for state sales and use
tax purposes. Purchaser agrees to pay shipping and handling charges for shipping the Hardware and Software described on EXHIBIT 1. Thereafter, the
shipping party pays shipping charges. For shipments of all items other than warranty replacements and items repaired pursuant to the maintenance
provisions herein from Datamatic to Purchaser, Purchaser agrees to pay Datamatic a minimum shipping and handling charge for each shipment.
Purchaser agrees that no common carrier whose services are retained by Datamatic shall be the agent of Datamatic.
10. RISK OF LOSS. Risk of loss as to the System or any component thereof shall pass to Purchaser upon inside delivery. Damage to or loss of the
Hardware or Software after delivery to Purchaser shall be the responsibility of the Purchaser.
11. SUBCONTRACTING. Purchaser agrees that Datamatic may subcontract the Services or Support and Maintenance under this Agreement only with
prior written consent of Licensee, such consent shall not be unreasonably withheld.
ARTICLE 2 - PAYMENTS
1. Payment will be made within thirty (30) days after the Licensee receives the supplies, materials, equipment, or the day on which the performance of
services was completed or the day on which Licensee receives a correct invoice for the supplies, materials, equipment, or services, whichever is later.
Datamatic may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt
payment policy, however, this policy does not apply to payments made by the Licensee in the event:
A. there is a bona fide dispute between the Licensee and Datamatic concerning the supplies, materials, or equipment delivered or the services
performed that causes the payment to be late; or
B. the terms of a federal contract, grant, regulation, or statute prevent the Licensee from making a timely payment with Federal Funds; or
C. there is a bona fide dispute between Datamatic and a subcontractor or between a subcontractor and its suppliers concerning supplies,
materials, or equipment delivered or the services performed which causes the payment to be late; or
D. the invoice is not mailed to the Licensee in strict accordance with instructions, if any, on the purchase order, or the contract or other such
contractual agreement.
2 SUPPORT AND MAINTENANCE. Purchaser shall pay Datamatic recurring monthly charges for the Support and Maintenance of items so listed
in Exhibit 1, the amount of $ 281.44 beginning the first of the calendar month following delivery of the Hardware and Software and completion of the
training listed on EXHIBIT 1. Thereafter each recurring monthly maintenance payment shall be due on the first day of each succeeding month, payable
in advance. Support and Maintenance shall continue for an initial period of one (1) year from its commencement date and shall automatically renew
thereafter for subsequent terms of one (1) year each unless and until Purchaser gives Datamatic at least thirty (30) days written notice prior to the
expiration of the then -current term (hereinafter "Maintenance Anniversary"). The recurring maintenance charge is subject to change in the event
Purchaser purchases additional equipment and/or licenses additional software. The recurring maintenance charge is also subject to change on the second
Maintenance Anniversary and all subsequent Maintenance Anniversaries, but in no event shall the annual percentage change in the maintenance charge
exceed ten (10) percent.
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ARTICLE 3 —HARDWARE
1. PURCHASE. The System shall include the Hardware identified in EXHIBIT 1, included herein, and hereby incorporated by reference. Datamatic
will use commercially reasonable efforts to deliver Hardware described on and according to the schedule described in EXHIBIT 1.
2. TITLE. Title to each Hardware item shall transfer to Purchaser upon payment to Datamatic of the Unit Price for such Hardware item.
ARTICLE 4 — SOFTWARE
1. SPECIFICATIONS. The System shall include the Software identified in EXHIBIT 1 to meet the Functional Specifications applicable at the time of
this Agreement. A copy of the Functional Specifications is attached hereto as EXHIBIT 2. Datamatic will use commercially reasonable efforts to deliver
the Software described on and according to the schedule described in EXHIBIT 1.
2. DATAMATIC SOFTWARE LICENSE GRANT. Datamatic hereby grants to Licensee a nontransferable and nonexclusive license for the use and
possession of the Datamatic Software in object code form only. Said license is granted under the terms and conditions set forth herein.
A. Licensee agrees that Datamatic retains ownership rights to the Datamatic Software, and that Licensee acquires no title to the Datamatic
Software, nor any other interest in the Datamatic Software, other than the right to use and possess the Datamatic Software in accordance with
the terms and conditions of this Agreement. All rights not explicitly granted to Licensee are retained by Datamatic. Licensee also agrees not
to make any copies or reproductions of the Datamatic Software other than one copy to be used by Licensee as a back-up for emergency
situations.
B. The Datamatic Software may be used only in connection with the ROADRUNNER handheld or mobile notebook units purchased from
Datamatic under this Agreement or in the future. Licensee may purchase additional ROADRUNNER or mobile notebook units from
Datamatic, and may only use the Datamatic Software with such units.
C. The Datamatic PC Software is warranted by Datamatic to operate only on a PC configured to meet Datamatic's then -minimum requirements
which are available upon request. In the event Licensee operates the Software on a Personal Computer other than as specified by Datamatic,
Datamatic makes no representations as to System performance, and Licensee agrees to make all payments to Datamatic in accordance with
Article 2.
D. For the purpose of inspection to confirm Licensee's compliance with the terms and conditions of this Agreement, Licensee hereby grants
Datamatic the right, during regular business hours, and in compliance with established security procedures to enter Licensee's premises where
the Datamatic Software is located and/or to conduct an electronic confirmation of same.
E. Licensee shall not use the Datamatic Software to process accounts or records or to generate output data for the direct benefit of, or for
purposes of rendering services to, any other non-affiliated business entities or organizations. Licensee shall only use the Datamatic Software
to perform Licensee's work; and Licensee shall not permit anyone but Licensee's employees to use the Datamatic Software.
F. Licensee agrees that it shall not attempt to or actually sell, give, lend, lease, convey, transfer, license, sublease, provide, or in any other
manner transfer any of its rights in the Datamatic Software, whether or not modified.
ARTICLE 5 - SERVICES
1. Datamatic shall provide Purchaser with the Services described on the attached EXHIBIT 1. Datamatic will use commercially reasonable efforts to
conduct or complete the Services described on and according to the schedule described in EXHIBIT 1. Services include those specifically described on
EXHIBIT 1 and Purchaser agrees that any services not described such as supplemental training, installation, or consulting and their related travel and
living expenses are not included and Purchaser agrees to pay such charges and expenses upon receipt of Datamatic's invoice.
ARTICLE 6 - SUPPORT AND MAINTENANCE
Datamatic agrees to provide Support and Maintenance services subject to the terms and conditions set forth herein and upon receipt of the payments as
provided for in Article 2.
1. DESCRIPTION. Telephone response time from Datamatic shall be within two hours of a trouble call to Datamatic's designated Call Center number.
All maintainable equipment identified in EXHIBIT 1 (identified with a related maintenance charge), is to be maintained by Datamatic on a best efforts
basis subject to the provisions described below.
2. INCLUSIONS. Datamatic shall keep the Hardware and the Datamatic Software in good working order. Maintenance services shall include:
A. PreventiveHardware maintenance as is generally provided by the equipment manufacturers.
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B. Software maintenance, including providing Licensee with such revisions in the Datamatic Software as Datamatic generally makes available to
licensees of the Datamatic Software at no charge; and
C. Remedial maintenance of both the Hardware and Datamatic Software.
3. EXCLUSIONS. Maintenance and repair services shall not apply to the following:
(1) FIREFLY Meter Interface Units, batteries, straps, power supplies, carrying cases, cabinets and mounting equipment or any other
consumable supply item.
(2) Electrical work external to the Hardware or maintenance of accessories, alterations, attachments or other devices not furnished by
Datamatic;
(3) Repair of damages or increases in telephone support or service time caused by accident, transportation, neglect, misuse, Purchaser's
employee turnover or alterations (which shall include, but not be limited to, any deviation from circuit or structural machine design as
provided by Datamatic);
(4) Repair of damages or increases in telephone support or service time attributable to the use of the System for purposes for other than
which it was designed;
(5) Furnishing supplies or accessories; painting or refinishing the Hardware or furnishing material therefore; making specification
changes or performing services connected with relocation of machines; or adding or removing accessories, attachments or other
devices.
(6) Software upgrades, releases, enhancements, functionality or products that Datamatic separately licenses or charges for outside of
Support and Maintenance.
ARTICLE 7 - WARRANTIES
1. Datamatic warrants that the System shall operate substantially in accordance with the Functional Specifications. The exclusive remedy for any valid
warranty claim shall be the repair or replacement of the nonconforming hardware, at Datamatic's option; and the provision of conforming software, to
replace nonconforming software.
2. DISCLAIMER OF WARRANTY AND LIMITATIONS OF REMEDIES. TO THE EXTENT ALLOWED BY LAW, PURCHASER
UNDERSTANDS AND AGREES AS FOLLOWS:
A. THE EXPRESS WARRANTIES AS SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY
DATAMATIC.
B. DATAMATIC SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING HARDWARE,
SOFTWARE, SERVICES OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT.
C. DATAMATIC DOES NOT WARRANT THAT THE OPERATION OF SOFTWARE, HARDWARE OR SERVICES INCLUDED IN THE
SYSTEM WILL BE ERROR FREE.
D. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE REMEDIES FOR
DATAMATIC'S LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE) WITH RESPECT TO THE SYSTEM,
HARDWARE, SOFTWARE OR SERVICES COVERED BY THIS AGREEMENT OR ANY PERFORMANCE BY DATAMATIC
UNDER OR PURSUANT TO THIS AGREEMENT, WILL BE LIMITED TO THE REMEDIES SET FORTH IN THIS ARTICLE
EXCEPT AS PROVIDED IN ARTICLE 1, PARAGRAPH 8 (INFRINGEMENT).
E. IN NO EVENT SHALL DATAMATIC'S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES, EVEN IF DATAMATIC SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL
LOSS OR DAMAGE.
ARTICLE 8 — TERMINATION
1. Licensee may terminate its license of the Datamatic Software and the Support and Maintenance for each upcoming annual term thereon by providing
written notice at least irty (30) days prior to the Maintenance Anniversary of the then -current term. 51/41'
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• . 2. In the event Purchaser defaults on any obligation in accordance with the terms and conditions of this Agreement and Datamatic notifies Purchaser in
writing of the details of said failure of performance, then Datamatic may, at its option, terminate this Agreement if Purchaser fails to cure said deficiencies
in performance within thirty (30)days of its receipt of said notice.
3. In the event either party terminates this Agreement or the License of Datamatic Software, or should Purchaser fail to make any payment for
maintenance, all licenses granted under this Agreement shall be terminated, and Purchaser shall, within thirty (30 days following such termination, return
to Datamatic the Datamatic Software in whatever form retained, and all copies of Datamatic Software documentation. Purchaser shall certify in writing to
Datamatic that Purchaser has so returned the Datamatic Software and Datamatic Documentation to Datamatic.
4. This Agreement is a commitment of Licensee's current revenues only. It is understood and agreed that Licensee shall have the right to terminate this
Agreement at the end of any Licensee fiscal year if the governing body of Licensee does not appropriate funds sufficient to purchase the services as
determined by Licensee's budget for the fiscal year in question. Licensee may effect such termination by giving Vendor a written notice of termination at
the end of its then current fiscal year.
DATAMATIC, LTD.
BY:
TITLE:
Philip J. Masters
Chief Financial Officer
SIGN
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CITY OF ROUND ROCK
BY:
David Kautz
TITLE:
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EXHIBIT 1
HARDWARE, SOFTWARE, AND SERVICES SCHEDULE
UNIT EXTENDED SCHEDULED
QUANTITY DESCRIPTION PRICE PRICE DELIVERY MAINTENANCE
5
5
1
1
1
ROADRUNNER X7 Handheld Computer 3,130.00 15,650.00 3/2004 2,347.50
Communication/Charging Cradle 638.00 3,190.00 3/2004 478.50
Cradle Controller 680.00 680.00 3/2004 102.00
RouteSTAR MVP Route Management Software 2,995.00 2,995.00 3/2004 449.25
Up to 2 Days On -Site Training 2,400.00 2,400.00
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