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HomeMy WebLinkAboutR-1999-075 SOFTWARE LICENSE AGREEMENT TO PROVIDE COMPUTER SOFTWARE SYSTEM & SERVICES FOR YAKIMA VALLEY VISITORS & CONVENTION BUREAURESOLUTION NO. R-99- 75 A RESOLUTION authorizing and directing the City Manager to execute a Software License Agreement with Ungerboeck Systems, Inc. for the purpose of providing a computer software system and related services for the Yakima Valley Visitors & Convention Bureau. WHEREAS, the Yakima Valley Visitors & Convention Bureau requires a computer software system to efficiently operate the Yakima Convention Center; and WHEREAS, Ungerboeck Systems, Inc. has the personnel and expertise necessary to provide said computer software and related services to the City, and is willing to do so in accordance with the terms and conditions of the attached Software License Agreement; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to enter into the attached Software License Agreement with Ungerboeck Systems, Inc. for the purpose of purchasing computer programs, and for providing related services for the Yakima Valley Visitors & Convention Bureau; now, therefore, BE IT RESOLVED BY 1 H CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated "Software License Agreement" with Ungerboeck Systems, Inc. for the purpose of purchasing a computer software system and related services for the benefit of the Yakima Valley Visitors & Convention Bureau. ADOPTED BY THE CITY COUNCIL this 16 day of ATTEST: City Clerk (1 k)res/un gerboedc-1 p John Puccinelli, Mayor 1999. Software License Agreement Page 1 of 4 This Software License Agreement between Ungerboeck Systems, Inc (USI) and Yakima Valley Visitors & Convention Bureau, Yakima, Washington (CLIENT), sets forth the terms and conditions under which USI will license to CLIENT the use of software products (SOFTWARE) including: a) the computer programs identified in Schedule A (in object code only unless source code is specifically listed) and associated documentation, and b) any revised and corrected versions (UPDATES) and enhanced and improved versions (UPGRADES) of programs and documentation which USI makes available hereunder. 1. OWNERSHIP' CLIENT acknowledges that the SOFTWARE is the sole property of USI or its licensors, and the CLIENT shall gain no right, title or interest in the SOFTWARE by virtue of this Agreement other than the non-exclusive right of use granted herein. 2. LICENSE. In consideration of CLIENT's payment of the license fee specified in Schedule A and any maintenance and support fees payable hereunder, USI grants to CLIENT a perpetual, non -transferable license on a computer network for up to four (4) concurrent users of the SOFTWARE. 3. MAINTENANCE AND SUPPORT During the first ninety days after installation, USI shall provide to CLIENT at no additional charge. a) telephone support during the hours of 6:00 a.m. to 1000 p m. C S.T. Monday through Friday except on holidays observed by USI Emergency beeper service available 24 hours per day, 7 days per week. b) electronic customer support services, however, excluding the cost of long-distance communications charges, and c) such UPDATES and UPGRADES as are generally released by USI to all customers holding a current Maintenance and Support Agreement. The SOFTWARE installation date is the date on which the SOFTWARE is first loaded on the licensed Computer After ninety days CLIENT shall be entitled to continue maintenance and support services upon payment to USI of an annual maintenance fee of fifteen percent (15%) of the list license fee then charged to new customers for the then current version of the products identified in Schedule A. This agreement does NOT include any licenses, training, installation, maintenance and ongoing support of integrated third -party products (including Microsoft Windows, SQL Server, Sybase SQL, InfoMaker, Drafix CAD, Asymmetrix ToolBook, Wordperfect, Microsoft Word, etc.) unless specifically defined in the Agreement. If CLIENT allows maintenance to lapse, it may thereafter renew maintenance by paying USI the then current maintenance fees plus a reinstatement fee equal to the omitted maintenance fees plus compound interest of fifteen (15) percent per annum. 3.1 Any SOFTWARE modifications or enhancements performed by USI specifically on behalf of the CLIENT, whether paid for by CLIENT or not, remain the property of USI and may at USI sole discretion be incorporated into or withheld from the software generally made available to USI's other clients 4. SERVICES EXCLUDED' This agreement covers only the right to use the SOFTWARE. Any related services (including installation, training, implementation assistance, custom programming, and integration of updates and upgrades) may be procured by separate contract with USI 5. CONFIDENTIALITY CLIENT acknowledges that the information contained in the SOFTWARE is confidential and contains trade secrets and proprietary data belonging to USI or USI's licensor(s). Therefore, CLIENT shall implement all reasonable measures necessary to safeguard USI's ownership and confidentiality of the SOFTWARE, including without limitation. Software License Agreement Page 2 of 4 a) to allow its employees and third parties access to the SOFTWARE only to the extent necessary to permit the performance of their services to CLIENT and to require that they agree to comply with the provisions of this Section 5, b) not to permit the removal or alteration of any copyright or confidentiality labels or notices contained in the SOFTWARE, c) not to disassemble or reverse engineer the SOFTWARE, d) and not to duplicate or reproduce the SOFTWARE, except that CLIENT may make reasonable backup copies for backup and recovery purposes 6. WARRANTY USI warrants to CLIENT for twelve(12) months from the date of software installation that the SOFTWARE shall function substantially in accordance with the related user documentation provided by USI USI's sole obligation in respect of a breach of the foregoing warranty shall be to modify or replace the SOFTWARE so as to correct the defective performance USI also warrants that it does not nor does its licensor(s) violate any US copyrights or patents. CLIENT shall give USI prompt written notice of any claims under the foregoing warranties. USI shall have sole control and bear the entire cost of the defense of any infringement claim and any negotiations for the settlement thereof Neither of the foregoing warranties shall apply in the event that any alleged infringement or defect derives from a combination of the SOFTWARE with any program, equipment of device not supplied or recommended by USI in the case of a modification or customization of the SOFTWARE by or on behalf of CLIENT, or in the event of CLIENT's failure to install promptly any updates or upgrades provided by USI under this agreement. 7. DISCLAIMER OF OTHER WARRANTIES. Except as provided in Section 6, all warranties, conditions, representations and guarantees whether expressed or implied, are hereby excluded, superseded and disclaimed. 8. REMEDY LIMITATIONS. In no event shall USI be liable for any consequential, indirect or special damages, except only in the case of personal injury where and to the extent applicable law imposes such liability USI's liability for damages shall in any event be limited to the aggregate license and maintenance fees received by USI from CLIENT under this agreement. 9. ESCROW: Upon CLIENT's request, USI will issue source code of EBMS software to a software escrow agent selected by CLIENT and approved by USI. This source code may be updated up to twice per year at CLIENT's request. All cost of the escrow arrangement must be borne by CLIENT The source code may be used by CLIENT only if USI discontinues the ongoing support of software In that event, CLIENT may acquire a perpetual, non-exclusive license by paying to USI an amount equal to 25% of the initial license fees set out in Schedule A of the Software License Agreement to use the source code for the purpose of maintaining, supporting and modifying the software for its internal uses only 10. TERMINATION: USI shall have the right to terminate this agreement for cause upon thirty (30) calendar days written notice if CLIENT breaches any of its obligations under this agreement. CLIENT shall have the above thirty (30) days to cure the breach to the satisfaction of this Agreement. Otherwise, CLIENT shall, upon the effective date of such notice or upon ceasing to use the SOFTWARE, whichever is earlier, immediately purge all SOFTWARE from the licensed computer and all other computer systems, storage media and other files, return to USI any copies of the SOFTWARE, and certify to USI in writing that it has complied with the foregoing obligations and has not provided total or partial copies of the SOFTWARE to any third party Software License Agreement Page 3 of 4 The expiration or termination of this agreement for any reason shall not extinguish or diminish CLIENT's obligation under Section 5 to maintain the confidentiality of the SOFTWARE, which obligation is continuing and shall survive termination of this agreement. 11. ASSIGNMENT This agreement is personal to CLIENT and neither this agreement nor any of CLIENT's rights or duties hereunder shall be assigned, sub -licensed, sold or otherwise transferred by CLIENT, including to any successor -in -interest to CLIENT's rights in the Licensed Computer, without USI's prior written consent, which shall not be unreasonably withheld. 12. GOVERNING LAW- This agreement shall be governed by and interpreted in accordance with the laws of the state of Missouri. 13. PAYMENT- CLIENT shall pay the license fee specified in Schedule A in accordance with the payment terms in Schedule B 14. EFFECTIVE DATE. This agreement shall be in effect on the date that it is signed by an officer of USI after it has first been duly signed by an authorized representative of CLIENT 15. TRAVEL EXPENSES- All reasonable travel related expenses including air fare, hotel, meals, taxi, telephone, etc. incurred by USI on the behalf of CLIENT shall be reimbursed by CLIENT within ten (10) days after USI submits a written statement of actual expenses incurred. Travel expenses specifically include USI's time spent traveling during normal business hours. 16. ADVERTISEMENT CLIENT authorizes USI to reference CLIENT's name and business association in published advertisement and public discussions as appropriate. USI agrees not to divulge CLIENT's proprietary information, trade secrets, or related data. 17. MISCELLANEOUS: Neither CLIENT nor USI shall disclose the terms and conditions of this agreement to third parties, (except CLIENT's auditors or third parties whose review is mandated by law) without prior written authorization from the other party All notices or writings required to be given pursuant hereto shall be deemed given, when actually delivered to an officer of the receiving party In the event that a court of competent jurisdiction holds that a particular provision or requirement of the agreement is in violation of any applicable law, each such provision or requirement shall be enforced only to the extent is not in violation of such law or is not otherwise unenforceable, and all other provisions and requirements of this agreement shall remain in full force and effect. No amendment to this agreement or waiver of any rights hereunder shall be effective unless in writing and signed by the party against whom enforcement is sought. This agreement contains the entire agreement and understanding of the parties as to the subject matter hereof and merges and supersedes all prior discussions and agreements with respect thereto Add Addendum: Parties recognize that disclosure of this agreement may be mandated by RCW Chapter 42.17 and/or Federal public disclosure laws. Within ten (10) months from contract execution, CLIENT may add module (s) and upgrade to 8 user level per USI proposal dated 3/17/99 at package prices in effect at that time. Software License Agreement Page 4 of 4 SCHEDULE A: Software Modules, Initial License Fees and First Annual Maintenance Fees for up to 4 Concurrent Users. Event Management & Coordination (4,600) Event Sales & Marketing (2,400) Facility Booking (2,100) InfoMaker Query & Reporting (1,500) System Access Manager (required) (1,300) (Maintenance calculated on Total Value $11,900) EBMS Software Pack Pricing Sybase SQL Anywhere Database Total License Fees 7,800 600 $8,400 Prepaid Bronze Services Pack and Travel $6,500 Maint. $1,785 SCHEDULE B: Payment Terms (Amended) 100% of Third -Party Products upon execution of this license agreement. ($2,100) 100% of Remaining License fees upon delivery of software ($6,300) 100% of Prepaid Services Pack prior to consulting/implementation services rendered. First Annual Maintenance & Support fee is due 90 (ninety) days after software installation date. ($1,785) Additional Consulting and Training, as well as related expenses, invoiced as incurred. CLIENT agrees that it has read this agreement, understands it, and agrees to be bound by it. Further, CLIENT and USI agree that this agreement is the complete statement of. terms and conditions of the license granted hereunder to CLIENT. CLIENT: Authorized Signature Richard A. Zais, Jr. Typed or Printed Name City Manager Title USI: Authorized Signature Typed or Printed Name Title Date Date Ar1'RST: City Clerk City Contract No. 99-74 Resolution No. R-99-75 9.41 l N G0 HEM '1'1'1'LE: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of May 18,1999 Software License Agreement with Ungerboeck Systems, Inc. for The -Yakima Valley Visitors & Convention Bureau SUBMITTED BY: Kathy Coffey, Yakima Center General Manager CONTACT PERSON/TELEPHONE: Kathy Coffey, Yakima Center General Manager Phone No. 575-1300 SUMMARY EXPLANATION: The Yakima Valley Visitors & Convention Bureau requests that the attached Software License Agreement with Ungerboeck Systems, Inc. be approved to provide computer software for event scheduling and related services to the Yakima Valley Visitors & Convention Bureau. The total cost of this agreement is not to exceed $16,685. Resolution — Ordinance _ Contract _ Other (Specify) Agreement Funding Source Yakima Center Operating Budget APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Approve Resolution BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: