HomeMy WebLinkAboutR-1999-068 NON-EXCLUSIVE SOFTWARE LICENSE AGREEMENT AND SOFTWARE MAINTENANCE AND SUPPORT SERVICES AGREEMENT FOR OBTAINNG & OPERATINRESOLUTION NO. R-99- 88
A RESOLUTION authorizing and directing the City Manager of the City of Yakima to
execute a "Non -Exclusive Software License Agreement" and
"Software Maintenance and Support Services Agreement" with
Hitech Systems, Inc., for the purpose of obtaining and operating a
"Safety Net CAD MDT" software system for the Public Safety
Communication Division of the City of Yakima.
WHEREAS, the Public Safety Communication Division of the City of Yakima
requires a CAD software system and corresponding maintenance and support services
in order to provide critical 911 and dispatching services; and
WHEREAS, Hitech Systems, Inc. has the personnel and expertise necessary to
provide said CAD software system and corresponding maintenance and support
services to the City, and is willing to do so in accordance with the terms and conditions
of the attached agreements; and
WHEREAS, the City Council deems it to be in the best interest of the City of
Yakima to enter into a software license agreement and a software maintenance and
support services agreement with the Hitech Systems, Inc., for the purpose of obtaining
and operating a "Safety Net CAD MDT" software system for the Public Safety
Communication Division; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed to
execute the attached and incorporated "Non -Exclusive Software License Agreement"
and "Software Maintenance and Support Services Agreement" with Hitech Systems,
Inc., for the purpose of obtaining and operating a "Safety Net CAD MDT" software
system for the Public Safety Communication Division of the City of Yakima.
ADOPTED BY THE CITY COUNCIL this 18th day of May, 1999.
A1//IEST:
?
City Clerk
John Puccinelli, Mayor
aims/Info systems h tedepm
Hitech Systems, Inc
Non -Exclusive Software License Agreement
Master License Agreement Number: 199803301
This Non -Exclusive Software License Agreement (hereinafter "Agreement") made as of this 1st day of
February, 1999, is entered into by and between Hitech Systems, (hereinafter "Hitech") a California
Corporation, and the City of Yakima, a Washington State municipal corporation, (hereinafter "Customer")
at 129 North Second Street, Yakima, WA 98901.
WHEREAS, Customer desires to license from Hitech for non-exclusive and non-transferrable use the
software, documentation, manuals, utilities and related items and information (hereinafter collectively
referred to as "Program Product") listed in Exhibit A attached; and
WHEREAS, Hitech desires to license Program Product to Customer for a good and valuable consideration;
and
NOW, THEREFORE, the parties agree that the following terms and conditions will govern the licensing of
the Program Product:
1 LICENSE
1.1
Hitech hereby grants to Customer and Customer hereby accepts a perpetual non-exclusive
non-transferrable license to use Program Product in the number specified in Exhibit A,
attached hereto and incorporated by this reference, according to the terms and conditions
specified in this Agreement. Customer expressly agrees to and accepts these terms and
conditions and agrees to abide by the limitations of this Agreement.
1.2 Customer shall be granted license to use Program Product on Mobile Data Computers using
Western Data Com radio modems used by the Customer and other entities utilizing
dispatching and 911 services provided by the City of Yakima Public Safety Communications
Division.
1.3 Customer acknowledges and agrees that it is a licensee of Hitech and that the license shall
be non-exclusive and non-transferrable. All rights, title and ownership, including intellectual
property rights, shall remain with Hitech. Customer acknowledges that Program Product
contains valuable trade secret information proprietary to Hitech and that all rights thereto
shall remain with Hitech
1.4 Source Code. No license to source code is provided, expressly or otherwise, by this license
except as provided for in Paragraph 1.5. Customer has no rights to any and all human -
readable programs, data, know-how, techniques, methods, programming practices,
structures, utilities, and other materials and information which are used to create or are
essential to the creation of the executable versions of Program Product. Customer recognizes
and acknowledges that source code represents a valuable trade secret of Hitech and is a
copyrighted work of Hitech Customer further represents and acknowledges that all methods,
know-how, programming practices, structures, techniques and other information, procedures
or methodologies embodied in source code are proprietary to and represent valuable trade
secrets of Hitech.
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Non -Exclusive Software License Agreement
1.5 Should Hitech for any reason become insolvent, cease to exist, or for any reason be unable
to perform necessary maintenance of the Program Product, Hitech shall provide that the
source code to Program Product be made immediately available to Customer by
transmitting a copy of all source code for the Program Product as installed on Customer's
system(s) to Customer. In this event, Hitech grants Customer a limited license to source
code for the sole purpose of maintaining Customer's systems(s).
1.6 Derivative Works. Derivative Works shall include, but shall not be limited to: features; bug
fixes; workarounds; new or additional functionality, systems, modules or programs;
interface programs; utilities; documentation; methods; procedures; etc., that are for use with
Program Product provided to Customer as part of this License Agreement.
1.6.1 In the event that Derivative Works are developed by Customer, Customer
acknowledges and agrees that all derivative works shall be the exclusive property
of Hitech. Customer shall have no rights in derivative works save that Customer
shall be granted a perpetual non-transferrable non-exclusive license to use for its
own benefit said derivative works subject to the terms and conditions of this
Agreement.
1.6.2 Customer shall notify Hitech immediately upon commencement of development of
any derivative work. Customer shall provide Hitech with source code, technical
assistance, documentation and all other materials related to said derivative works.
1.6.3 Hitech makes no representation or warranty that future versions of Program Product
shall be consistent with or compatible with derivative works developed by
Customer.
2 LICENSE FEE
2.1 In consideration of the rights granted to Customer pursuant to this Agreement, Custom' r
shall pay Hitech the License Fee (hereinafter "Fee") specified for each product in Exhibit
A.
2.2 Payment Terms. Payment of Fee is due upon receipt of invoice and is payable to Hitech
within (30) days of that receipt, unless other arrangements are agreed to in writing by the
parties hereto. In the event that payment is not received within thirty (30) days, interest on
the outstanding amount shall accrue at the rate of 1.5% per month.
3 CUSTOMER'S REPRESENTATIONS AND WARRANTIES
3.1 Customer represents and warrants that it will not modify or permit anyone else to modify
the Program Product without Hitech's prior written consent.
3.2 Customer shall give Hitech notice as to any particular defect in the Program Product within
ninety (90) days of receipt of the Program Product.
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Non -Exclusive Software License Agreement
4 UNAUTHORIZED USE
4.1 Customer agrees to notify Hitech, within twenty-four (24) hours of the discovery of
unauthorized use, of the circumstances surrounding any unauthorized possession, use or
knowledge of the whole or any part ofthe Program Product or physical embodiment thereof,
or other information made available pursuant to this license, by anyone other than persons
authorized by this license to have such possession, use or knowledge.
4.2 The Program Product is serialized. Each copy of the Program Product is identified by a
serial number and the Customer's name, which will appear when the Program Product is run.
In the event it is discovered that unauthorized use of the Customer's copy has been made,
Customer agrees to pay liquidated damages to Hitech in an amount equal to the then current
license fee for Program Product for each separate CPU on which the unauthorized use has
been made.
5 WARRANTIES AND LIABILITIES. The following warranties are in lieu of all other warranties,
express or implied, including, but not limited to, the implied warranties of merchantability and
fitness for a particular purpose.
5.1 Hitech warrants that the Program Product, when properly installed and used, will be in good
working order and reasonably conform to current specifications as published in the
then -current manual that describes the facilities of the Program Product. Hitech shall only
be obligated to correct a defect in the Program Product if given reasonable notice within 90
days after the date of receipt of the Program Product by the Customer. Should Hitech be
unable to correct a defect then Hitech's sole obligation shall be to refund any license fees
paid by Customer upon return of the Program Product and related materials to Hitech.
Hitech's sole liability for the failure of the Program Product is to make all necessary
corrections in accordance with current specifications. Hitech makes no warranty that the
operation of the Program Product will be uninterrupted or error free. Program Product is not
warranted for incompatible environments.
5.2 Magnetic Media and Documentation. Hitech warrants that if the magnetic media or
documentation is in a damaged or physically defective condition at the time that the license
is purchased and if they are returned (postage prepaid) to Hitech within ninety (90) days of
purchase, Hitech will provide the Customer with replacements at no charge.
5.3 Hitech warrants that if a Program Product fails to substantially conform to the specifications
in the documentation and if the nonconformity is reported to Hitech in writing within ninety
(90) days from the date that the license is purchased, then Hitech will, at its sole discretion,
remedy the nonconformity or offer to refund the License Fee to the Customer upon return
of all copies of the software and documentation to Hitech. In the event of a refund, the
Customer's right to use the software shall automatically expire.
5.4 Modification to the Program Product or any part thereof by Customer without Hitech's
written consent shall void any and all warranties contained herein.
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Non -Exclusive Software License Agreement
5.5 DISCLAIMER. HITECHMAKES NO WARRANTY, REPRESENTATION OR PROMISE
NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. HITECH DISCLAIMS AND
EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
TITLE AND FITNESS FOR A PARTICULAR PURPOSE. HITECH DOES NOT
WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL SATISFY
PARTICULAR REQUIREMENTS OR THAT THE SOFTWARE AND
DOCUMENTATION ARE WITHOUT DEFECT OR ERROR OR THAT THE
OPERATION OF PROGRAM PRODUCT WILL BE UNINTERRUPTED. HITECH
SHALL IN NO WAY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES EVEN IF HITECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS
OF PROFITS. CUSTOMER AGREES THAT HITECH'S OBLIGATIONS AND
WARRANTIES SHALL BE LIMITED TO THOSE EXPRESSED ABOVE. HITECH
ASSUMES NO RESPONSIBILITY FOR THE REPAIR OR REPLACEMENT OF DATA
WHICH MAY BE DAMAGED OR LOST THROUGH THE FAILURE OF PROGRAM
PRODUCT.
5.6 Hitech's aggregate liability arising from or relating to this Agreement is limited to the total
of all payments made by the licensee for the license. Hitech's liability hereunder for
damages, including but not limited to, liability for patent or copyright infringements,
regardless of the form of action, shall not exceed the fees paid by Customer to Hitech. No
action, regardless of form, arising out of the transaction under this Agreement, may be
brought by Customer more than one (1) year after the cause of action has occurred.
6 PROPRIETARY INFORMATION AND NON -DISCLOSURE
6.1 Customer agrees not to remove any product identification or notices of any proprietary
restrictions from the Program Product or accompanying materials. Hitech has exclusive
ownership of the Program Product, derivative works, patents, copyright, trademarks, trade
secrets and proprietary information. Customer acknowledges that all such items are
confidential and trade secret information belonging solely to Hitech. To the extent legally
possible, Customer shall keep all such items strictly confidential and shall not use such
items except pursuant to this Agreement.
6.2 Customer agrees to reproduce Hitech's copyright notice on copies of Program Product and
on all copies of materials relating to Program Product.
6.3 Customer shall ensure that Program Product, or any portion thereof, whether residing on
magnetic media or in any other form, are not distributed or otherwise made available by
Customer or agents or employees of Customer to individuals or organizations not
specifically authorized to make use of Program Product by this License Agreement.
6.4 Customer shall instruct its employees and agents having access to Program Product not to
copy or otherwise duplicate or attempt to duplicate Program Product. Customer shall instruct
employees and agents as to the proprietary and trade secret nature of Program Product.
6.5 Customer shall ensure that reasonable security measures are in place to safeguard Program
Product from access by unauthorized personnel and from theft.
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Non -Exclusive Software License Agreement
6.6 Customer recognizes the proprietary nature of Program Product, and shall not, for the
duration of this Agreement or at any time thereafter, perform any of the following acts:
6.6.1 Make any unauthorized copies or duplicates or permit anyone else to copy or
duplicate any physical embodiments of the Program Product;
6.6.2 Create or recreate, or attempt to create or to recreate, or permit anyone else to create
or recreate, or attempt to create or to recreate, the source programs, object programs
or any other aspect of the Program Product;
6.6.3 Use the Program Product on systems not specifically identified in Section 1 .2 ofthis
Agreement;
6.6.4 Use Program Product in any manner inconsistent with this Agreement.
6.7 Upon termination ofthis Agreement and thereafter, Customer shall not utilize or divulge any
confidential information or trade secrets provided by Hitech.
6.8 Customer shall not disclose any proprietary information belonging to Hitech except pursuant
to a court order from a court of competent jurisdiction; when required to do so under the
Washington State Public Disclosure Act, RCW Chapter 42.17 et seq., after notification of
Hitech of the request for disclosure and opportunity to respond; or when required to do so
in accordance with any other applicable state or federal law.
6.9 Customer recognizes and acknowledges that failure on the part of Customer to protect
Program Product can cause irreparable harm to Hitech and that Customer shall be liable for
damages to Hitech which result from Customer's failure to protect Program Product.
Customer agrees that because of the special nature of Program Product, monetary damages
will be inadequate to compensate for such irreparable harm caused by Customer's breach of
this Agreement and that injunctive relief will be an appropriate remedy to enforce the
provisions of this Agreement. In the event that damages due to Hitech resulting from
Customer's failure to protect source code must be adjudicated in a court of law, Customer
shall be responsible for Hitech's reasonable Attorney's fees and other costs and expenses
incurred in resolving such dispute.
6.10 Customer's obligations under this paragraph 6 shall survive and continue beyond the term
of this Agreement.
7 TERM
7.1 This Agreement shall become effective upon the execution hereof by Customer and Hitech
and shall remain in full force and effect until terminated pursuant to the applicable
paragraph(s) of this Agreement.
8 TERMINATION
8.1 Hitech shall give Customer thirty (30) days written notice of its intent to terminate this
Agreement. Customer acknowledges and agrees that Hitech shall be entitled to give such
notice and terminate this Agreement with cause, as defined herein. Upon termination of this
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Non -Exclusive Software License Agreement
Agreement by Hitech, Hitech shall have no obligation to refund fees previously paid by
Customer and Customer shall be liable for all fees then due to Hitech.
8.2 Hitech shall have the right to terminate this Agreement by written notice to Customer in the
event that Customer shall file, or have filed against it, a petition to declare it insolvent or
bankrupt, or file a petition for reorganization under the provisions of Federal bankruptcy
law, or make an assignment or other arrangement for the benefit of its creditors; have all or
any substantial portion of its capital stock or assets expropriated by any government, be
dissolved or liquidated; be a party to a merger, consolidation or other corporate
reorganization in which it is not the survivor; have a majority of its stock acquired by
another party; or have all or substantially all of its assets acquired by another party. If Hitech
terminates this Agreement for any of the above reasons, Customer shall not be entitled to
any refund of the Fee.
8.3 In the event of breach of any provision of this Agreement by either party, the non -breaching
party shall have the right to terminate this Agreement by providing the breaching party with
a thirty (30) day written notice of its intent to terminate this Agreement for breach. Both
parties agree that the thirty (30) day notification period shall be used by both parties for the
purposes of seeking a mutually satisfactory solution to the dispute precipitating the breach.
In the event that the parties are unable to resolve this dispute within the thirty (30) day
notification period, the non -breaching party shall have the right to immediately terminate
this Agreement. In the event of termination by Hitech due to breach on the part of Customer,
Customer shall not be entitled to any refund of the Fee.
8.4 Upon termination of this Agreement, Customer shall immediately cease using the Program
Product. Within thirty (30) days of termination of this Agreement, Customer shall deliver
to Hitech all materials furnished by Hitech and shall destroy all copies and render unusable
all information placed in any storage facility. Customer shall also warrant in writing that all
materials and copies have been returned or destroyed, that all use of the Program Product
or any portion thereof has been discontinued, and that the provisions of this Agreement
relating to proprietary information and non -disclosure shall remain in full force and effect.
8.5 Customer shall make immediate payment in full to Hitech for all amounts due and owing
as of the date of termination, and agrees not to withhold any monies accrued, due and
payable by Customer hereunder by reason of a dispute arising out of or in relation to this
Agreement or as set-off against any claim for damages sought to be put forward by
Customer.
9 DEFAULT
9.1 If Customer defaults with regard to any provision concerning proprietary information and
non -disclosure referred to in Paragraph 6 above, or in the payment of any sum of monies
due, or in the performance of any other of its obligations under this Agreement, Hitech may,
at its option, terminate this Agreement with written notice to Customer provided in
accordance with Paragraph 8 above. Hitech may pursue any legal and equitable remedies
which may be available to it. Upon termination of this Agreement by Hitech pursuant to this
subparagraph, Hitech shall have no obligation to return fees previously paid by Customer
and Customer shall remain liable for all fees then due Hitech.
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Non -Exclusive Software License Agreement
9.2 In the event that Hitech breaches any of its obligations and duties under this Agreement,
Customer may, at its option, terminate this Agreement with written notice to Hitech in
accordance with paragraph 8 above. Customer may pursue any legal and equitable remedies
which may be available to it.
9.3 Customer's failure to pay the Fee provided for in Exhibit A shall constitute a default
pursuant to the terms of this Agreement.
9.4 In the event of the breach of this Agreement by Customer, Hitech shall have, in addition to
all other rights and remedies at law or in equity, the right and remedy to have the provisions
of this Agreement specifically enforced or enjoined, as the case may be, by any court having
equity jurisdiction.
10 MISCELLANEOUS PROVISIONS
10.1 NOTICES
Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand -
delivered to the parties to their addresses as follows:
To Customer: To Hitech:
Rick Pettyjohn Henry P. Unger
Information Systems Manager President
City of Yakima Hitech Systems, Inc.
129 North Second Street 1964 Westwood Blvd. #435
Yakima, WA 98901 Los Angeles, California 90025
or to such other addresses as the parties may hereafter designate in writing. Notices and/or
demands shall be sent by registered or certified mail, postage prepaid, or hand -delivered.
Such notices shall be deemed effective at the time mailed or hand delivered at the addresses
specified above.
10.2 Interpretation: The validity, construction and performance of this Agreement shall be
governed by and interpreted in accordance with the laws of the State of Washington. In
construing this Agreement, none of the parties hereto shall have any term or provision
construed against such party solely by reason of such party having drafted the same.
10.3 Venue: The venue for any action to enforce or interpret this Agreement shall lie in the
Superior Court of Washington for Yakima County, Washington.
10.4 Assignment: The rights and obligations of Customer under this Agreement shall not be
assigned without the prior written consent of Hitech. Customer is not entitled to license the
use of the Program Product nor may Customer authorize any other individual or entity to
license the use of the Program Product.
This Agreement, or any interest herein, or claim hereunder, shall not be assigned or
transferred in whole or in part by Hitech to any other person or entity without the prior
written consent of the Customer. In the event that such prior written consent to an
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Non -Exclusive Software License Agreement
assignment is granted, then the assignee shall assume all duties, obligations, and liabilities
of Hitech as stated herein.
10.5 Entire Agreement: This instrument contains all of the agreements, understandings,
representations, conditions, warranties, and covenants made between the parties hereto.
Unless set forth herein, neither party shall be liable for any representations made whether
orally or in writing, and all modifications and amendments made hereto must be in writing
and executed by both parties.
10.6 Severability: In the event that any provisions hereof is determined to be illegal or
unenforceable, such determination shall not affect the validity or enforceability of the
remaining provisions hereof, all of which shall remain in full force and effect.
10.7 Taxes: Customer shall be liable for all federal, state, municipal or other governmental taxes,
duties charges or costs, however designated, now or hereinafter imposed, upon the storage,
licensing, transportation, distribution or use of the Program Product including, but not
limited to any sales or use tax, privilege or excise tax, exclusive, however, of taxes based
upon net income.
10.8 Waiver: Either parry's failure to exercise any right under this Agreement shall not constitute
a waiver of any other term or condition of this Agreement with respect to any other or
subsequent breach, nor a waiver by that party of its right at any time thereafter to require
exact and strict compliance with the terms of this Agreement. The rights or remedies set
forth in this Agreement are in addition to any other rights or remedies which may be granted
by law.
10.9 Survival: Any provision of this Agreement which impose an obligation after termination or
expiration of this Agreement shall survive the terms or expiration of this Agreement and be
binding on the parties.
10.10 Attorneys' Fees: In the event of any dispute with respect to this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees and other costs and expenses incurred
in resolving such dispute. Any attorneys' fees or collection expenses incurred by Hitech in
order to effect collection of any payment due pursuant to the terms of this Agreement shall
be paid by Customer.
10.11 Limited Disclosure: Customer agrees that it will not actively circulate or distribute copies
of this Agreement except as needed by Customer in the conduct of normal operations.
Hitech understands that this Agreement shall become a public document and shall be subject
to access and disclosure consistent with applicable Federal, State or local statutes.
10.12 Effective Date: This Agreement shall become effective as of the date set forth on Page One
of this Agreement upon being signed by Customer and Hitech.
10.13 Indemnification: Hitech shall indemnify, defend and hold harmless Customer, its
elected officials, officers, employees and agents against, and will hold and save them
and each of them harmless from any and all actions, claims, damages to persons or
property, penalties, obligations or liabilities that may be asserted or claimed by any
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Non -Exclusive Software License Agreement
person, firm, entity, corporation, political subdivision or other organization arising
out of or in connection with the provision of the System by Hitech, operations or
activities of Hitech, its agents, employees or subcontractors provided for herein,
whether or not there is concurrent passive or active negligence on the part of
Customer, its elected officials, officers, agents or employees, (but excluding such
actions, claims, damages to persons or property, penalties, obligations, or liabilities
arising from the sole negligence or willful misconduct of Customer, its elected
officials, officers, agents, servants or independent contractors who are directly
responsible for customer) and in connection therewith:
10.13.1 Hitech will defend any action or actions filed in connection with any of said
claims, damages, penalties, obligations or liabilities and will pay all costs
and expenses including attorney's fees incurred in connection therewith.
10.13.2 Hitech will promptly pay any judgment rendered against Hitech or Customer
covering such claims, damages, penalties, obligations and liabilities arising
out of or in connection with such Services, operations, or activities of Hitech
hereunder; and Hitech agrees to save and hold Customer harmless therefrom.
10.13.3 In the event Customer is made a party to any action or proceeding filed or
prosecuted against Hitech for such damages or other claims arising out of or
in connection with the work, operations or activities of Hitech hereunder,
Hitech agrees to defend and to pay to Customer any and all costs and
expenses incurred by customer in such actions or proceedings, together with
reasonable attorney's fees.
11 ATTESTATION. By the signatures below, the parties accept and agree to the terms of this License
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized officials on the date first written above.
City of Yakima `/77
Signature �--}
Dick Zais
Hitech ystems, I
Date Signature
Printed Name
City Manager
Title
,/"^ ATTEST
City Clerk
Contract No. 99-69 .
Resolution No. R-99-68
Henry Unger
Printed Name
President
Of)? 7
Date,
Title
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Non -Exclusive Software License Agreement
Exhibit A
36 SafetyNet CAD MDT Client Licenses
$100
..............
$3,600
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Hitech Systems, Inc.
Software Maintenance and Support Services Agreement
Master License Agreement Number: 199803302
THIS AGREEMENT made this l st day of February, 1999 by and between Hitech Systems, Inc., a California
Corporation, (hereinafter "Hitech") and the City of Yakima, a Washington State municipal corporation,
(hereinafter "Customer") at 129 North Second Street, Yakima, WA 98901.
WHEREAS, Hitech is making available software maintenance and support services for certain of Customer's
software; and
WHEREAS, Customer has license to use said software on a perpetual basis; and
WHEREAS, Customer has selected Hitech to provide such software maintenance and support services;
NOW, THEREFORE, it is hereby agreed as follows:
1 COVERED SOFTWARE
Hitech provides maintenance services under this Agreement for such software as described in
Exhibit A. Hitech will only maintain such software pursuant to this Agreement for which Customer
is duly licensed (hereinafter "Covered Software"). In the event that additional software listed in
Exhibit A is licensed for use by Customer, such software will be included in the Covered Software
upon payment of the appropriate prorated maintenance fee listed in Exhibit B. Covered Software
must not have been modified by anyone other than Hitech without prior written permission from
Hitech.
2 DESCRIPTION OF SERVICES
2.1 Customer may contact Hitech twenty-four (24) hours a day, seven (7) days a week for software
support service. Customer may contact Hitech via telephone to Hitech's office during normal
business hours (9:00 am to 5:00 pm Pacific time, Monday through Friday) or through a paging
service outside of office hours or on holidays, or when the office is otherwise unattended. Hitech
will respond to such requests as soon as practical, within two (2) hours during normal business
hours or within four (4) hours outside of normal business hours or on holidays. Holidays include
New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving, and Christmas.
2.2 Hitech will investigate and remedy, without additional cost to Customer, except as described
below, all program errors or documentation errors reported by Customer regarding the Covered
Software. An error is defined as the behavior of the Covered Software at variance with the
documented functionality and operation of the Covered Software.
2.3 Hitech will periodically publish and distribute to Customer a notice (hereinafter "Notice") of the
enhancements, modifications, and corrections (collectively referred to as "Enhancements") that
have been made to the Covered Software by Hitech. Hitech will, upon written request, make
available one machine-readable copy of these Enhancements, and one copy of the supporting
documentation (hereinafter "Release"). The Release will be provided to Customer "as is", for
installation and use by Customer.
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Software Maintenance And Support Services Agreement
2.4 Hitech will provide assistance for procedural questions relating to the Covered Software. Such
assistance will be limited to two hours per month. Any such assistance in excess of two hours
per month will be billed to Customer at Hitech's billing rates for such services.
2.5 Hitech will be reimbursed by Customer for all reasonable non -labor expenses relating to services
rendered, including but not limited to, air fare (coach when available), meals not to exceed
$30.00 per diem, lodging, local transportation and telephone charges. Customer has the right of
first refusal in engaging or selecting travel -related services to be prepaid by Customer.
2.6 Hitech will be available to assist Customer on a time and materials basis at Hitech's then -current
billing rates for any additional Customer -requested enhancements, modifications, or customized
work relating to the Covered Software (hereinafter "Additional Services"), beyond those services
already specified in Sections 2.1 through 2.5 of this Agreement, including:
• Analysis • Project Management
• System Design • Technical Reviews
• Programming • Training
• Testing • Documentation
• Implementation Support
2.7 Hitech will be available to provide Customer with assistance to correct damage caused to
Customer's system by Customer's operator error or negligence. Such determination will be
mutually agreed to by the parties.
2.8 Hitech will provide Customer with a cost estimate for approval before the commencement of
effort relating to the Additional Services.
2.9 The following services provided to Customer will be billed to Customer on a time and materials
basis:
• Functional enhancements to the Covered Software.
• Diagnosis and correction of hardware errors.
• Diagnosis and repair of Covered Software modified by anyone other than Hitech.
• Diagnosis, repair or correction of software other than the Covered Software, including,
but not limited to, operating system software and other third party software.
• Hardware installation.
• Software installation.
• Training, except procedural questions as described above.
2.10 In the event that Hitech determines that a reported problem is the result of user error,
hardware error, operating system software error, or software error caused by other than the
Covered Software, Customer will reimburse Hitech for its efforts expended relating to the
reported problem to the extent that such efforts exceed the two hours per month limit for
procedural questions as described above.
3 TERMS AND CONDITIONS
3.1 The Yearly Maintenance Fee for Covered Software is based on the Maintenance Price List for
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Software Maintenance And Support Services Agreement
such services, the current schedule for which is shown in Exhibit B. Customer agrees to pay
Hitech the appropriate yearly fee based on this price list for the number and type of users of the
Covered Software. Based on information supplied by Customer, and that Customer warrants to
be complete and correct, Hitech has calculated the Yearly Maintenance Fee for the Covered
Software on Customer's Systems to be that as shown in Exhibit C. The initial period of coverage
for this Agreement is for the twelve (12) months commencing February 1, 1999 (hereinafter
"Commencement Date"), for which Customer agrees to pay to Hitech the Annual Maintenance
Fee as shown in Exhibit C within thirty (30) days of either Commencement Date or the date of
this Agreement, whichever is later. This Agreement may be renewed by Customer from year to
year by payment in advance of each anniversary of the Commencement Date for the succeeding
year. Hitech reserves the right to increase the yearly maintenance fees each year and will provide
written notice to Customer no less than sixty (60) days prior to the end of the annual period of
its intention to do so. Any increase in the number of users of the Covered Software will result
in an increase in the amount of the Yearly Maintenance Fee. No credit or refund will be given
Customer for any decrease in the number of users of the Covered Software for an annual period.
In the event of an increase in the number of users of the Covered Software, Customer will remit
to Hitech the prorated increase in the Annual Maintenance Fee for the annual period within
thirty (30) days of such an increase.
3.2 Hitech hereby grants Customer during the term of this Agreement the non-exclusive and non-
transferrable license to use any Release(s) provided to Customer subject to the terms and
conditions of the Master License Agreement referenced on the first page of this Software
Maintenance and Support Services Agreement.
3.3 Any Release(s) provided by Hitech shall only be installed at the designated location and on the
designated CPU(s) specified in the Master License Agreement referenced on the first page of
this Software Maintenance and Support Services Agreement.
3.4 Customer may install as many instances of Release(s) on the designated CPU(s) as desired for
testing and training purposes.
3.5 Customer represents and warrants that it will not modify or permit anyone else to modify a
Release or the Covered Software without the written consent of Hitech.
3.6 Customer agrees to notify Hitech promptly of the circumstances surrounding any unauthorized
possession, use, or knowledge of the whole or any part of the Covered Software, a Release, or
physical embodiment thereof, or other information made available pursuant to this license, by
anyone other than persons authorized by this license to have such possession, use, or knowledge.
3.7 The Covered Software is serialized. Each copy of the Covered Software is identified by serial
number and the Customer's name, which will appear when the Covered Software is run. In the
event that it is discovered that unauthorized use of the Customer's copy has been made,
Customer agrees to pay to Hitech liquidated damages in an amount equal to the then current
license fee for the Covered Software for each separate CPU on which the unauthorized use has
been made.
Rev 05/18/99 - Page 3
Software Maintenance And Support Services Agreement
3.8 Customer agrees to provide dial -up access to Customer's system via Cisco router in conjunction
with an ISDN telephone line. The option selected shall be provided at Customer's expense.
Customer agrees to provide phone numbers, login ids, passwords, and access codes to each
employee of Hitech requiring access to Customer's system upon request. Customer further agrees
to provide access to programs and files on Customer's system necessary for the performance of
the services described herein.
4 PROPRIETARY INFORMATION
4.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto, related
parties in interest, their respective successors and, to the extent permissible in any assignment
hereunder, assignees. Customer agrees not to make or to permit any loan, lease sale, assignment
or other disposal of this Agreement without the prior written consent of Hitech. It is agreed that
any such loan, lease, sale, assignment or other such disposal made without the prior written
consent of Hitech shall be null and void.
4.2 Customer agrees not to remove any product identification or notices of any proprietary
restrictions from the Covered Software, Release(s) or accompanying materials. Hitech has
exclusive ownership of portions of the Covered Software, Release(s), patents, copyright,
trademarks, trade secrets and proprietary information; and Customer acknowledges that all such
is confidential information belonging solely to Hitech. Customer agrees to keep all such items
strictly confidential and shall not use such items except pursuant to this Agreement. After
termination of this Agreement, Customer shall not utilize or disclose such items. Hitech agrees
that it has no right to or interest in the data processed by Customer while using the Covered
Software.
4.3 Customer shall not, for the duration of this Agreement or at any time thereafter:
4.3.1 Make any unauthorized copies or duplicate or permit anyone else to copy or duplicate
any physical embodiments of the Covered Software or any Release(s), except as
required for backup purposes.
4.3.2 Create or recreate, or attempt to create or to recreate, or permit anyone else to create or
attempt to recreate, the source programs, object programs or any other aspect of the
Covered Software and any Release(s).
4.4 Customer shall not disclose any proprietary information belonging to Hitech except pursuant to
a court order from a court of competent jurisdiction; when required to do so under the
Washington State Public Disclosure Act, RCW Chapter 42.17 et seq., after notification of Hitech
of the request for disclosure and opportunity to respond; or when required to do so in accordance
with any other applicable state or federal law. Customer's obligation under this Paragraph shall
continue beyond the termination of this Agreement.
Rev 05/18/99 - Page 4
Software Maintenance And Support Services Agreement
5 TERMINATION
This Agreement may be terminated due to the impossibility of performance caused by acts of God,
floods, fires, storms, strikes, lockouts, disputes with employees, riot, insurrection, acts of public
enemy, war, federal, state, county, municipal, and local restrictions, prohibitions, regulations, and
requisitions, or other interferences beyond the control of the parties to the extent that the same
prevent or delay the performance of the obligations herein contained.
This Agreement may be terminated by either party in the event of breach by the other party by
written notice in accordance with section 17 below. In the event of termination due to breach, the
non -breaching party shall be entitled to all other remedies available at law, and the election to
terminate shall not constitute a waiver of any other rights the non -breaching party may have.
This Agreement may be terminated by either party without cause upon thirty (30) days written notice
in accordance with section 17 below. In the event Customer chooses to terminate this Agreement
without cause, Customer shall not be entitled to a refund or credit of any of the maintenance fees
previously paid or owing to Hitech. In the event of termination by Hitech without cause, or by
Customer for breach, Customer shall be entitled to a pro rata refund of the annual maintenance fee
effective the first of the month following the thirty days written notice.
6 STATUS OF HITECH AS INDEPENDENT CONTRACTOR
Hitech and the City understand and expressly agree that Hitech is an independent contractor with
regard to the performance of each and every part of this Agreement. Hitech and its officers,
employees, agents, and/or subcontractors shall make no claim of City employment nor claim against
the City any related employment benefits, social security, and/or retirement. Additionally, neither
party shall have the power to act as an agent of the other or bind the other in any respect.
7 COMPLIANCE WITH LAWS
Hitech agrees to perform all services and obligations under and pursuant to this Agreement in full
compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any
governmental agency or regulatory body, whether federal, state, local or otherwise.
8 ATTORNEY'S FEES
In the event of any dispute with respect to this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and other costs and expenses incurred in resolving such dispute. Any
attorneys' fees or collection expenses incurred by Hitech in order to effect collection of any payment
due pursuant to the terms of this Agreement shall be paid by Customer.
9 TAXES
Customer shall be liable for all federal, state, municipal or other governmental taxes, duties, charges
or costs, however designated, now or hereinafter imposed, upon the storage, licensing,
transportation, distribution or use of the Covered Software including, but not limited to any sales or
use tax, privilege or excise tax, exclusive, however, of taxes based upon net income.
Rev 05/18/99 - Page 5
Software Maintenance And Support Services Agreement
10 SEVERABILITY
If any portion of this Agreement is changed per mutual agreement or any portion is held illegal or
invalid, the remainder of the Agreement shall remain in full force and effect.
11 SURVIVAL
Any provision of this Agreement which imposes an obligation after termination or expiration of this
Agreement shall survive the terms or expiration of this Agreement and be binding on the parties.
12 PROPRIETARY RIGHTS
All Enhancements provided to Customer under this Agreement shall become and remain the property
of Hitech.
13 CONTRACT MODIFICATION
The terms, scope, and conditions of this contract may be modified only by a formal, written
modification signed by duly authorized representatives of both Customer and Hitech.
14 INDEMNIFICATION
Hitech shall indemnify, defend and hold harmless Customer, its elected officials, officers,
employees and agents against, and will hold and save them and each of them harmless from
any and all actions, claims, damages to persons or property, penalties, obligations or
liabilities that may be asserted or claimed by any person, firm, entity, corporation, political
subdivision or other organization arising out of or in connection with the provision of the
System by Hitech, operations or activities of Hitech, its agents, employees or subcontractors
provided for herein, whether or not there is concurrent passive or active negligence on the
part of Customer, its elected officials, officers, agents or employees, (but excluding such
actions, claims, damages to persons or property, penalties, obligations, or liabilities arising
from the sole negligence or willful misconduct of Customer, its elected officials, officers,
agents, servants or independent contractors who are directly responsible for customer) and
in connection therewith:
14.1 Hitech will defend any action or actions filed in connection with any of said claims,
damages, penalties, obligations or liabilities and will pay all costs and expenses
including attorney's fees incurred in connection therewith.
14.2 Hitech will promptly pay any judgment rendered against Hitech or Customer
covering such claims, damages, penalties, obligations and liabilities arising out of or
in connection with such Services, operations, or activities of Hitech hereunder; and
Hitech agrees to save and hold Customer harmless therefrom.
Rev 05/18/99 - Page 6
Software Maintenance And Support Services Agreement
14.3 In the event Customer is made a party to any action or proceeding filed or prosecuted
against Hitech for such damages or other claims arising out of or in connection with
the work, operations or activities of Hitech hereunder, Hitech agrees to defend and
to pay to Customer any and all costs and expenses incurred by customer in such
actions or proceedings, together with reasonable attorney's fees.
15 WAIVER
In the event either party elects not to exercise any of its rights hereunder, such election shall not
constitute a waiver of that party's rights at that time or at any time in the future, and that party shall
be entitled to exercise all rights it has hereunder at any time.
16 ASSIGNMENT
This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in
whole or in part by either party to any other person or entity without the prior written consent of the
other party. In the event that such prior written consent to an assignment is granted , then the
assignee shall assume all duties, obligations, and liabilities of Hitech as stated herein.
17 RATIFICATION
Acts taken in conformity with this Agreement prior to its execution are hereby ratified and affirmed.
18 NOTICES
Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand -
delivered to the parties to their addresses as follows:
To Customer: To Hitech:
Rick Pettyjohn Henry P. Unger
Information Systems Manager President
City of Yakima Hitech Systems, Inc.
129 North Second Street 1964 Westwood Blvd. #435
Yakima, WA 98901 Los Angeles, California 90025
or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands
shall be sent by registered or certified mail, postage prepaid, or hand -delivered. Such notices shall
be deemed effective at the time mailed or hand delivered at the addresses specified above.
19 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of
Washington.
20 VENUE
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Software Maintenance And Support Services Agreement
The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of
Washington for Yakima County, Washington.
21 AUTHORITY
Each individual signing this Agreement on behalf of any corporation or other legal entity represents
and warrants that he has the right, power, legal capacity, and authority to enter into and perform this
Agreement and no further approval or consent of any persons or entities is necessary for him to enter
into and perform this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized officials on the date first written above.
Yakima County 911
Hitech Systems, Inc.
9 047/97
Signature `� ' Date Signature Date
Dick Zais Henry P. Unger
Printed Name
City Manager
Title
ATTEST
Printed Name
President
Title
/+r
City Clerk
City Contract No.:
Resolution No.
99-70
rt-99-68
Rev 05/18/99 - Page 8
Software Maintenance And Support Services Agreement
Exhibit A
Software
SafetyNet MDT Client Licenses
Rev 05/18/99 - Page 9
Software Maintenance And Support Services Agreement
Exhibit B
Annual Maintenance Price List
Product
Price
SafetyNet CAD Server
$7,500
SafetyNet CAD Workstation
1,500
SafetyNet CAD E911 Interface Server
1,200
SafetyNet CAD E911 Interface Workstation
120
SafetyNet CAD Message Switch Server
2,400
SafetyNet CAD Message Switch Workstation
120
SafetyNet Zetron Model 25 Tone Encoder Server
1,200
SafetyNet Zetron Model 25 Tone Encoder Workstation
120
SafetyNet Zetron Model 26 Station Status Server
1,200
SafetyNet Zetron Model 26 Station Status Workstation
120
SafetyNet CAD Paging Server
1,200
SafetyNet CAD Paging Workstation
120
SafetyNet CAD Radio Interface Server
1,200
SafetyNet Radio Interface Workstation
120
SafetyNet CAD Mapping Server
1,200
SafetyNet CAD Mapping Workstation
120
SafetyNet Mobile Server
4,500
SafetyNet Mobile Client
90
SafetyNet Mobile Server Mapping Option
375
SafetyNet Mobile Client Mapping Option
30
SafetyNet Mobile Server AVL Option
750
SafetyNet Mobile Client AVL Option
15
SafetyNet Mobile Server Field Reporting Environment Option
750
SafetyNet Mobile Client Field Reporting Environment Option
75
SafetyNet CAD ProQA Server
1,200
SafetyNet CAD ProQA Workstation
120
SafetyNet Records Management System - Law Enforcement (RMS-LE)
7,500
SafetyNet RMS/LE Operator
750
SafetyNet Records Management System - Fire (RMS/FIRE)
6,000
SafetyNet Records Management System - Mobile Field Reporting
750
SafetyNet Digital Mugshot Interface (DMI)
1,500
SafetyNet Digital Mugshot Interface client/user
30
SafetyNet Bar Coding Interface (BCI)
225
SafetyNet Bar Coding Interface client/user
15
SafetyNet Document Imaging Interface (DII)
375
SafetyNet Document Imaging Interface client/user
30
Laserfiche Document Imaging Software
1,400
Rev 05/18/99 - Page 10
Software Maintenance And Support Services Agreement
Exhibit C
36 SafetyNet MDT Client Licenses
90
$3,240
Rev 05/18/99 - Page 11
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. /'�
For Meeting Of 5-18-99
ITEM TITLE: Resolution Authorizing Agreements with Hitech Systems, Inc. for Mobile
Data Terminal software licenses and maintenance.
SUBMITTED BY: Rick Pettyjohn, Information Systems Manager
CONTACT PERSON/TELEPHONE: Rick Pettyjohn, Information Systems Manager
575-6098
SUMMARY EXPLANATION:
The attached Agreements provide for the procurement of thirty-six Mobile Data Terminal (MDT)
client software licenses and for software maintenance and support of those licenses. The City is
acquiring this software from Hitech Systems, Inc. — the same vendor that provided the Computer
aided Dispatch/911 (CAD/911) system. This MDT software provides better integration with the
CAD/911 system, provides a single point of support for these two critical systems, and provides
for future implementation of Automatic Vehicle Location (AVL), CAD Mapping, Mug Shots, and
more advanced communication technologies.
The software license fee is $3,600 and the maintenance fee is $3,240 for a total of $6,840.
Software maintenance fee savings in 1998 has provided funding for these agreements. These
savings were included in the 1998 year-end encumbrance appropriation into the 1999 budget.
Resolution X Ordinance _ Contract X Other (Specify)
Funding Source
General Fund - Information Systems' budget
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Adopt Resolution
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
Legal/BD
rev. effective 7/21/92