HomeMy WebLinkAboutSoftware License Agreement With Bender Engineering Inc.
Augusta Richmond GA
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SOFTW ARE LICENSE AGREEMENT
THIS AGREEMENT made as of the
30
day of September. 19---22.. by and between:
Bender Engineering, Inc. with its place of business at 3535 Farquhar Avenue, Los Alamitos, California, U.S.A.
90720 ("Bender Engineering"), and Augusta, Georgia, a political subdivision of the State of Georgia, with its
place of business at 530 Greene Street, Augusta, Georgia, U ,S.A., 309 I I ("Licensee").
WHEREAS Bender Engineering is the owner of the rights to certain software as identified in Exhibit A (collectively
the "Software"), including copyright, trademark, trade secret and other intellectual property rights;
AND WHEREAS Licensee is desirous of obtaining a license to use the Software;
Now therefore, in consideration of the covenants, conditions and agreements herein contained, the parties agree as
follows:
1. Bender Engineering hereby grants to Licensee a personal, non-transferable and non-exclusive license
restricted toLicensee's own operations:
(a) to use one production copy of the object code version of the Software, in the form supplied by Bender
Engineering, on hardware approved by Bender Engineering; and
(b) to use documentation pertaining to the Software as supplied by Bender Engineering (the
"Documentation"), but only as required to exercise the license granted herein.
Licensee may make two back-up copies of the Software. Licensee may use the production copy of the
Software solely to process Licensee's own data, and the software may not be used on a service bureau or
similar basis to process data of others.
Other than the rights of use expressly conferred upon Licensee by this paragraph, Licensee shall have no
further rights to use the Software or the Documentation, and shall not copy, reproduce, modifY, adapt or
translate them, without the express written authority of Bender Engineering.
2. In consideration of the license granted to Licensee by this Agreement, Licensee shall pay to Bender
Engineering a license fee, the amount(s) of which is as set out in Exhibit B (the "License Fee"), Bender
Engineering will invoice Licensee for services (including installation, customization, training and additional
services) and related expenses on a monthly basis for such services performed and expenses incurred during
each month as set out in Exhibit B. In addition to the fees payable by Licensee to Bender Engineering, all
taxes and other levies, including sales and use taxes (but excluding taxes based on the net income of Bender
Engineering resulting from this Agreement) shall be the responsibility of the Licensee. If any withholding tax
or similar levy is applicable to the, fees or other amounts payable to Bender Engineering, Licensee shall pay
such additional amount as shall result in Bender Engineering receiving the total amount of the fees or other
amounts it would have been paid but for such tax or levy.
3. Licensee acknowledges that the Software, the Documentation and other information relating thereto (including
all customizations and modifications developed for Licensee) disclosed to Licensee pursuant to this
Agreement are owned by BenderEngineering and include trade secrets and other confidential and proprietary
information of Bender Engineering, and Li~nsee shall maintain in confidence and not disclose the same,
directly or indirectly, to any third party wit out Bender Engineering's prior written consent or pursuant to
Court order, Licensee shall make no attempt \> reverse compile, disassemble, or otherwise reverse engineer
the Software or any portion thereof These obligations of confidentiality shall survive termination of the
license granted herein.
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..
Licensee shall not communicate with representatives of the general or technical press, radio, television, or
other communications media regarding the work under this Agreement without the prior written consent of
Bender Engineering. Neither the Licensee nor any of its personnel shall publish or reproduce or arrange press
releases regarding Bender Engineering without the prior consent in writing of Bender Engineering upon such
terms as may be agreed. Bender Engineering acknowledges that this Agreement and certain documentation
may be subject to the Georgia Open Records Act (O.C.G.A, S 50-18-70, et seq. Bender Engineering shall
cooperate fully in responding to such request and shall make all records, not exempt, available for inspection
and copying as required by law. Bender Engineering shall notify Licensee immediately of any Open Records
request arising out of this contract and shall provide to Licensee a copy of any response to the same.
Bender Engineering reserves the right to publish, after discussion with the Licensee, the results of the work
done under this agreement with appropriate acknowledgement of the work contributed by the staff of the
Licensee,
4. Bender Engineering warrants the Software to operate in all material respects as specified in the
Documentation, including the Bid Documentation. This warranty shall be perpetual as long as the Licensee
'has a current maintenance agreement with Bender Engineering
Bender Engineering represents that Bender Engineering's software application has been tested and is Year
2000 compliant. Specifically, Bender Engineering software shall correctly process date data within and
between the 20th and 2151 century, provided that (a) the software is used in accordance with its associated
documentation, and (b) all other technologies used with it properly exchanges date data within it. Bender
Engineering has proposed modem technology be used with this project which Bender Engineering is informed
and believes'is year 2000 compliant. Further, Bender Engineering will provide Y2K statements, disclosures
and other related information that it has in its possession for the respective third-party te'chnologies. Upon
certification of non-compliance with this statement, Bender Engineering shall endeavor to correct reported
material deficiencies in its software products so as to conform with the aforementioned definition, In the event
that Bender Engineering is not able to correct the software products to conform to the statement within ninety
(90) days after notification by Licensee, then Bender Engineering shall refund to Licensee all monies paid for
such nonconforming technologies other than hardware under this Agreement and this Agreement shall be null
and void. '
THE FOREGOING WARRANTY is IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A
PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM
THE COURSE OF DEALING OR USAGE OF TRADE. BENDER ENGINEERING DOES NOT
REPRESENT OR WARRANT THAT THIS SOFTWARE WILL MEET ANY OR ALL OF LICENSEE'S
PARTICULAR REQUIREMENTS, 'EXCEPT AS SET FORTH IN THE BID DOCUMENTATION, THAT
THE OPERA nON OF THE SOFTWARE WILL OPERATE ERROR-FREE OR UNINTERRUPTED, OR
THAT ALL PROGRAM ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE
CORRECTED.
5. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN, BENDER ENGINEERING SHALL
NOT BE LIABLE FOR ANY INDIRECT,' CONSEQUENTIAL, SjlECIAL, INCIDENTAL OR
CONTINGENT DAMAGES OR EXPENSES, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, ARISING IN ANY WAY OUT OF THIS AGREEMENT, THE
SOFTWARE, OR BENDER ENGINEERlNG'S PERFORMANCE OR LACK THEREOF UNDER THIS
AGREEMENT, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOSS
OF REVENUE, PROFIT OR USE.
6, The license granted by this Agreement is effective until terminated. Bender Engineering has the right to
terminate the license granted under this Agreement if Licensee is in default of any term or condition of this
Agreement, and fails to cure such default within thirty (30) days after receipt of written notice of such default.
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Without limiting the foregoing the Licensee shall be deemed to be in default if Licensee becomes insolvent or
any proceedings should be commenced by or against Licensee under any bankruptcy, insolvency or similar
laws. In the event that the license granted under this Agreement is terminated, Licensee shall forthwith return
to Bender Engineering all copies of the Software, the Documentation and other materials provided to Licensee
pursuant to this Agreement and will certify in writing to Bender Engineering that all copies or partial copies of
the Software, the Documentation and such other materials have been returned to Bender Engineering or
destroyed.
7. Licensee acknowledges having read and understood this Agreement and agrees to be bound by its terms and
conditions. Licensee also agrees that this Agreement, together with the relevant terms and conditions of the
contract(s) between Bender Engineering and Licensee as identified in Exhibit B, represents the complete and
exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior
agreements, negotiations, discussions or understandings between them in any way relating thereto. No other
terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, shall
form a part hereof or have any legal effect whatsoever. In the event of any conflict or inconsistency between
the provisions of this Agreement and the provisions of the contract(s) identified in Exhibit B, the latter
provisions shall be of no force and effect and the provisions of this Agreement shall govern. This Agreement
shall not be modified except by later written agreement signed by both parties.
8, Bender Engineering agrees to have the software implemented and "ready for live" by the week of 11/22/1999.
"Ready for live" is defined as Bender Engineering delivering software, consulting, and training sufficient to
enable Licensee to begin operational use of the software and the date BenderEngineering states the Licensee
can "go live" with the software. With the full cooperation of the Licensee, Bender Engineering shall not be
responsible for, and its performance of obligations shall automatically be postponed as a result of, delays
beyond Bender Engineering's reasonable control.
In recognition of the importance of this timeframe, Bender Engineering offers the following penalty and
procedures:
Bender Engineering will give written notice to the licensee, when in Bender Engineering's
judgment, the software has been implement and the Licensee is "ready for live" (Implementation
date). The Licensee shall be deemed to be "ready for live" five (5) working days after receiving
Bender Engineering's written notice, unless during this period, the Licensee gives written notice to
Bender Engineering, describing in reasonable detain, any critical deficiencies in Bender
Engineering's software or the delivery of consulting, training or hardware which precludes the
Licensee trom being "ready for live", If the Licensee gives proper notice of not "ready for live"
then:
a. Bender Engineering shall respond immediately to remedy the deficiency, or
b. If Bender Engineering determines, reasonably and in good faith, that there is no critical
deficiency and that the Licensee is "ready for live", then Bender Engineering shall give
written notice to the Licensee explaining that determination' in reasonable detail. The
Licensee shall be deemed to have accepted the "ready for live" date of Bender
Engineering's notice as described in this paragraph, unless notice of a dispute is provided
to Bender Engineering in writing with five (5) working days.
Provided Licensee meets its deadlines set Jorth in the Project Schedule attached as a part of
Exhibit B, Bender Engineering agrees to pay the Licensee a late penalty of $100 per day for each
workday after 11/20/1999, that Bender Engineering fails to have the Licensee "ready for live",. All
penalties will become due and payable upon failure to meet the "ready for live" date.
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9. This Agreement, or any of the rights or obligations of Bender Engineering created herein, may not be assigned
by Bender Engineering without Licensee's consent, which consent shall not be unreasonably be withheld, but
this Agreement is for the sole benefit of Licensee and may not be assigned by Licensee without the express
written consent of Bender Engineering.
10. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia,
U.S.A. All claims, disputes and other matters in question between Licensee and Bender Engineering arising
out of, or relating to, this Agreement, or the breach thereof, shall be decided in the Superior Court of
Richmond County, Georgia. Bender Engineering, by executing this Agreement, specifically consents to venue
and jurisdiction in Richmond County, Georgia and waives any right to contest jurisdiction and venue in said
Court.
II. All notices hereunder shall be in writing and shall be duly given if delivered personally or sent by registered
orcertified mail, return receipt requested, postage prepaid, to the respective addresses of the parties appearing
, on page one of this Agreement. Any notice given shall be deemed to have been received on the date, which it
is delivered if delivered personally, or, if mailed, on the fifth business day next following the mailing thereof.
Either party may change its address for notices by giving notice of such change as required in this Section II,
12: To ensure effective communications, Bender Engineering shall submit all invoices and correspondence
regarding accounts payable and receivables shall be made to the following address:
The originals to: Director ofInformation Technology
530 Greene Street, Annex 101
Augusta, Georgia 30911
ATTN:
Title:
Telephone:
Fax Number:
Clifford Rushton
Director
706.821.2522
706,821.2530
IN WITNESS WHEREOF, this Agreement has been read, understood, and signed by duly authorized officials of
Bender Engineering and Licensee,
By:
BENDER ENGINEERING:
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Page 4 of 10
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EXHIBIT A
(Software License Agreement)
Item Licensed Product Product Description Configuration License Fee License Date
I. BENDER MaintStar IV SQL Server $22,395 10/2 1/1999
ENGINEERING
, ,
TOTAL $22,395
Notes:
1. Licenses provided for software utilization for the Augusta, Georgia, a political subdivision of the State of
Georgia (Augusta, Georgia) for purposes of supporting the Transit operations.
2. All licenses required to operate the proposed application are set forth in the Summary of Proposed Pricing.
3. Proposed software solution is Windows based with an ODSC database engine, Bender Engineering
acknowledges that it will examine the Licensee's system and will confirm if the software solution will operate
properly on said system.
4. Any components may be operated on any of the workstations and additional local or remote workstations may
be purchased for additional costs at those then current rates,
5. Any hardware that may be required is identified in this Agreement and must be tested by Sender Engineering.
The installation of this hardware will not add additional days of work covered in this agreement.
6. Bender Engineering will assist in reviewing hardware specifications however, the Licensee is responsible for
purchasing hardware and pre-requisite products,
Page 5 of 10
Both parties agree that the above accurately reflects the Software which is subject to the license terms and conditions
outlined in the attached Software License Agreement dated 10/30/1999.
Name:
BENDER ENGINEERING SOFTWARE:
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Page 6 of 10
EXHIBIT B
(Software License Agreement)
Item #: 1,
Bender Engineering Summary of Proposed Pricing dated 7/5/1999 (Attached).
2.
Project Schedule dated 9/30/1999 (Attached)
BENDER ENGINEERING SOFTWARE GROUP, INC.:
By:
By:
Name: b. /~I)n.e1i~ Name:
Title: ;4f,fli C~'i?~,JJ /Y7~lJtjjerv Title:
Page 7 of 10
1.0 Summary of Proposed Pricing(7/5/1999)
A. SOFTWARE COMPONENTS AND LICENSE FEES
1.
SQL Server MaintStar System Version
(Discounted, regularly $19,899,50)
$16,395.00
2.
Fuel Interface Module (discounted, regularly $3,500,00)
$ 2,500.00
3.
Equipment I/O information and parts data conversion, All
Data to be submitted to Bender in ASCII format
$ 3,500.00
TOTAL SOFTWARE COSTS $22,395.00
B. INSTALLATION AND STAFF TRAINING COSTS
Installation, project management and user training 5 days,
Unlimited number of people
$ 6,250.00
Training expenses 5 days, I person plus I day fly
In/out (discounted, regularly $295/day)
$ 1,200.00
Training airfare (estimated)
$ 1,200.00
System setup and installation including MIS training
by technical specialist, 2 days
$ 2,500.00
Expenses $200/day plus 2 1 day fly in/out
$ 600,00
Air far (estimated)
$ 1,200.00
TOTAL TRAINING CO'STS
$12,950.00
c. HARDWARE & MAINTENANCE
Bar coding unit with laser beam
$ 2,250.00
Shipping
$
39,50
Annual support and upgrades 15% of software cost $ 3,359,00
GRAND TOTAL: $40,993.00
NOTES:
,I. A different person versus application tra}ning will do system installation.
2, System customization cost $11 O/hr. '
3. The system table layout(schema) will be provided,
4. The source code will be placed in escrow and available for purchase,
Page 8 of 10
1.1 Maintstar Project Implementation (9/30/1999)
System installation and MIS training
Application implementation and training
10/21-10/22-99
11/15-11/19-99
Application Implementation and Training Schedule
Day 1- System overview and files setup
Day 2- Work orders and Contractors modules
Day 3 - PM Setup
Day 4- Purchasing and Inventory
Day 5- Standard Reports, Report Writer and Query
Page 9 of 10
1.2 Payment Schedule
Item ' Description
1 100% of License Fee 60 days after "Go Live" date
2 Implementation Services as performed
3 Expenses in proportion to the services invoiced(rounded to nearest $100)
I
4 As any customized items are delivered, full payment less 10% holdback
5 Holdbacks due upon utilization of each component in "production"
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