HomeMy WebLinkAbout2000 07 24 Consent A Datamatic Inc. Agreement
COMMISSION AGENDA
ITEM A
July 24, 2000
Meeting
~ @
Mgr. / Dept.
Authorization
Consent X
Informational
Public Hearing
Regular
REQUEST:
The General Services Department requests that the City Commission approve
the attached agreement with Datamatic, Inc" for the purchase, licensing, and
maintenance of a new meter reading system.
PURPOSE:
The purpose of this agenda item is to replace the current hand-held devices for
meter reading with a modern system that better serves the city's purposes.
APPLICABLE LAW AND PUBLIC POLICY:
Ordinance # 2000-15. Purchasing Policies and Procedures
CONSIDERATIONS:
- The current hand-held devices used to record water consumption were
originally purchased 9 years ago, and have reached the end of their useful
life. Hardware parts and maintenance are no longer available, and software
support is available on a very unreliable basis from a single supplier who
wishes to terminate her contract with the City,
Datamatic, Inc., has specialized in the production, installation. and
maintenance of state-of-the-art meter reading systems since 1977. and has
many satisfied customers in Florida and elsewhere.
- The City of Tallahassee has a current contract with Datamatic, and by
"piggybacking," we can take advantage of very favorable prices and terms in
that contract.
- The current system will not inerface with the new financial software.
July 24, 2000
City Commission Consent Agenda
Item "A"
The proposed purchase has been reviewed with the Director of Utilities to
assure system compatibility, and the software has also been reviewed with
the Information Services Manager to assure that it will interface with out
current financial software, as well as the new financial software recently
purchased.
Funding for this purchase is available in this fiscal year's utility billing budget
for capital expenditures to improve and enhance the overall meter services
program.
FUNDING:
No additional funding required other than remains in the FY 99/2000 utility
billing budget for capital expenditures.
STAFF RECOMMENDATION:
Staff recommends the Commission authorize the execution of the attached
agreement with Datamatric, Inc,
ATTACHMENTS:
- RouteStar Purchase, License, and Maintenance Agreement
- Evaluation Sheet of Proposed Vendors, City of Tallahassee, dated January
4,2000
- Contract between City of Tallahassee and Datamatric, Inc.
COMMISSION ACTION:
SPONSORING DEPARTMENT: Utility Business & Customer Service
RFP TITLE: ReQuest Hanheld Meter Ready System
RFP NO: 0019-00-KR-RC
:Maximum Rating Points 15 25 25 10 5 20 10 5 125 25 130
'Category Classifications A B C D E F G H I
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CITY OF TALLAHASSEE <3 IJl )( Q. '0 ~~~.3 Q. ::>
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Name of Applicant Firms
Badger Meter, Ine,
Datamatie, Inc,
Hughes Supply, Itron
Sunstate Meter - Schlumberger
Ratmg Section (Preliminary)
10 0 11 5
8 0 19 5
10 0 14 5
10 0 14 5
o
o
o
o
10
13
15
15
21
21
21
21
22
17
24
24
Name of Applicant Firms
Rating Section (Final)
Badger Meter, Inc, 10 17 19 10 0 13 5 0 74 12 86
Datamatic, Inc. 15 22 20 8 0 19 6 0 90 24 114
Sunstate Meter - Schlumberger 14 21 21 10 0 16 5 0 87 16 103
Hughes Supply' Itron 14 21 21 10 0 16 5 0 87 14 101
Recommended: Datamatic, Inc.
Chairperson: Ted M. Kinsey, Sr.
Selection Committee Members:
Ted Kinsey
Maurice Fuller
Don Worthington
Theo Swain
Mike Cronan
Removed:
Posted:
1/4/00
Date
Date: January 4, 2000
Date Time
5:00
Time
ROUTESTAR PURCHASE, LICENSE AND MAINTENANCE AGREEMENT
This RouteSTAR Purchase. License and Maintenance Agreement (hereinafter "Agreement") is made on this day of ,20_ by and
between DA T AMATIC.COM. LTD. a Texas limited partnership, located at 715 North Glenville Drive. Suite 450. Richardson, Texas 75081 (hereinafter
referred to lL~ "Datamatie"), and the City of Winter Springs, doing business at 1126 EState Rd 434 Winter Springs. Florida 32708 . (hereinafter referred
to as "Purchaser and/or Licensee").
RECITALS
A. WHEREAS Datamatic sells computer hardware and licenses, in object foml only, proprietary computer software as a system. hereinafter referred to
as "System" and provides maintenance on the System; and
B. WHEREAS Purchaser desires to acquire the System 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, thc partics hereto agree as follows:
ARTICLE 1 - GENERAL TERMS
I. 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 [nfonnation 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 Purcha~er.
The term "Proprietary Information" shall 'not extend to any information. or any embodiment of infomlation. which has become general public
knowledge or is generally known in the trade,
B. Protection of Proprietary Information. The parties hereto agree that all Proprietary Infonnation 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.
3. TRADE NAMES, Purchaser acknowledges that ROUTESTAR, DATASW1TCH. ROADRUNNER and FIREFLY are proprietary trade names of
Datamatic,
4. ENTIRE AGREEMENT. It is agreed that this Agreement and the 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 Dallas County, Texas. This
Agreement shall be govemed by the laws of the State of 'I' ex as. To the extent that there is to be a delivery or perfomlance 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. In case anyone or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegaL
or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be
construed as ifsuch invalid, illegal, or unenforceable provisions had never been contained herein.
7. FORCE MAJEURE. Neither party hereto shall be in default by reason of any failure of its performance under this Agreement ifsuch failure results..
whether directly or indirectly, from fire. explosion, strike, freight embargo, act of God, act of the public enemy. war. civil disturbance, act of
govemment de jure or de facto, or any agency or otTicial 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
occa<;ioned 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 I, or any part
thereof, infringes any patent or copyright, or constitutes misappropriation or unauthorized use of any person's trade secret. Datamatic shall indemnity
and hold Purchaser hannless from all damages, costs, and expenses arising from such claims, provided that Purchaser notifies Datamatic in writing
within 10 days from the date such claim is asserted. Datamatic shall have the sole right to control thc 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 (I) obtain for Purchaser the right to continue using such System and/or Sonware; (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 pertonnance to the then,existing Systcm and/or Software. If Datamatic or
Purcha,>er leams or should have rea,>onably leamed that such an action has been filed or threatened against Datamatic or Purchaser, Datamatic or
Purchaser, as the ca,>e may be, shall notify the other party promptly in writing. Datamatic shall not be liablc for, and Purchaser shall indemnity
[)atamatic against, damages arising from use of the System and/or Software by Purcha,>er more than 10 days after Purcha,>er ha,> Ieamed or been
notitied of such a liled or threatened action, In no event shall Datamatic be liable fix special, consequential or punitive damages arising from such a
tiled or threatened action, The foregoing states the entire liability of Datamatic to Purcha,>er 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 Purehaser. Purehaser agrees to indemnity 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 specitications into the System,
9. TAXES, SHIPPING AND INSURANCE. Purchaser shall pay all taxes arising out of this Agreement. except lor taxes levied upon the net income of
Datamatic, Purchaser agrees to provide an exemption certiticate with this contract if Purchaser qualifies as an cxempt organization tor state sales and
use tax purposes, The shipping party pays shipping charges. Purcha,>er 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 part thereof shall pass to Purchaser upon delivery. Damage to the system in the possession of
Purchaser shall be the responsibility of the Purchaser.
ARTICLE 2 - PA YMENT
I. Purchaser shall pay Datamatic for the System, including training thereon, training manuals, and shipping charges the sum of $32.194,00 . exclusi\'e
of taxes. Payment shall be made as follows:
A. $16,097,00 shall be paid to Datamatic upon delivery of the equipment and software identified in Schedules A & B at Purchaser's premises.
B. $16,097,00 shall bc paid to Datamatic upon installation of equipment and sofhvare idcntitied in Schedule A & Band notitication to Purchaser by
Datamatic that the System confonns to Specitications.
2. MAINTENANCE, Purchaser agrees to pay a monthly maintenance charge for the maintcnance services provided by [)atamatic under this Agreement
following a one year warranty period, This warranty period is to begin upon deliver)' of the system. The tirst payment shall be due on the first day of
the month following the one year anniversary of delivery of the completed System and shall contain the pro rata monthly amount due from the date of
the one year anniversary of delivery to the end of the month in which the one year anniversary of delivery occurs. plus the following month payable
in advance, Thereafter each monthly payment shall be due on the first day of each succeeding month payable in advance. The monthly charge tix
the tirst twelve months following the one year anniversary of delivery shall be $274,50. The monthly charge is subject to change in the event
Purchaser purchases additional equipment and/or licenses additional software, and also on the second anniversary date of delivery and all subsequent
anniversary dates of delivery of the completed System, but in no event shall the annual percentage change in the monthly charge exceed ten (10)
percent.
], Any principal amounts payable hereunder that remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month from the due
date until such amount is paid.
ARTICLE 3 - HARDWARE
I. PURCHASE. The System shall include the hardware and equipment identitied in Schedule A, included herein, and hereby incorporated by
reference, hereinafter referred to as "Hardware",
2. TITLE, Title to said Hardware shall transfer to Purchaser upon payment to Datamatic of the total sum set forth in Article 2, Paragraph I.
ARTICLE 4 - SOFTWARE
I. SPECIFICATIONS, TIle system shall include software to meet the Functional Specifications applicable at time of Agreement, hereinafter referred to
as "Software" or "Datamatic Software", A copy of the Functional Specifications is attached hereto as Exhibit I.
2, Datamalic SOFTWARE LICENSE GRANT. [)atanlatic hereby grants to Licensee a nontransferable and nonexclusive license for the use and
possession of the Datamatic Software in object code fonn 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 acquircs no title to thc Dalamatic Software, nor
any other interest in the Oatamatic Software, other than the right to use and possess the Datamatic Sofhvare in accordancc with thc temlS and
conditions of this Agreement. All rights not explicitly grantcd to Liccnsee arc retained by Datamatic, Licensce also agrees not to make any copies or
reproductions orthe 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 units purchased from Datamatic under this Agreement or in the
future. Licensee may purchase additional ROADRUNNI:-:R units Crom Dalall1atic, and may use the Datamatie Software with such units,
C. The Datamatic Software on the DATASWITCH is warranted by Datamatic to operate only on an IBM,compalible Personal Computer. In the event
Purchaser supplies any Personal Computer other than an IBM-compatible ,L<; the DATASWITCH, Datamatic makes no representations as to System
perfonnance, and Purchaser agrees to make all payments to Datamatic in accordance with ARTICLE 2, Paragraph I,
D, For the purpose of inspection to deternline Licensee's compliance with the tenns and conditions oCthis Agreement. Licensee hereby grants Datamatie
the right during regular business hours, and in compliance with established security procedures to entcr Licensce's premises where the Datamatic
Software is located.
E. Licensee shall not use the Datamatic Software in service bureau and/or timesharing operations. Licensee shall only use the Datamatie Software to
perfonn Liccnsee's work; and Licensee shall not pemlit 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 - SYSTEM TRAINING
Datamatic shall provide Purchaser six (6) days of System training at Purchaser's location. All travel and living expenses are at Datamatic's expense.
ARTICLE 6 - WARRANTIES
I, Datamatic warrants that the System on the date of delivery to Purchaser shall confonn to the Functional Specifications. The exclusive remedy for
breach of this warranty shall be repair or replacement as to nonconfonning hardware, at Datamatic's option; and the provision of confornling
software, as to nonconfonning software.
2. DISCLAIMER OF WARRANTY AND LIMITATIONS OF REMEDIES. Purchaser understands and agrees as follows:
A. THE EXPRESS WARRANTIES AS SET FORTH INTI-liS 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 DATAMATlC.
B. DATAMATlC SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING HARDWARE.
PRODUCTS, SERVICES, SOFTWARE OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT,
C. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE REMEDIES FOR
DATAMATlC'S LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE) WITH RESPECT TO THE SYSTElvt.
HARDWARE. PRODUCTS, SERVICES AND SOFfWARE COVERED BY THIS AGREEMENT AND ALL PERFORMANCE BY Datamatic
UNDER OR PURSUANT TO THIS AGREEMENT, WILL BE LIMITED TO THE REMEDIES SET FORTI,! IN THIS ARTICLE EXCEPT AS
PROVIDED IN ARTICLE 1, PARAGRAPH 8 (INFRINGEMENT),
D, 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 7 - MAINTENANCE
Datamatic agrees to provide maintenance services on the System subject to the tenns and conditions set forth herein and upon receipt of the monthly
maintenance charge as provided for in ARTICLE 2, Paragraph 2,
I. DESCRIPTION. Telephone response time from Datamatic shall be within two hours of trouble call. The ROADRUNNER and all equipmelll
identified in Schedule A except DATASWITCI-!, Programming/Profiling Units and FIREFLY Meter Interface Units are to be maintained al
Datamatic's headquarters. Datamatic shall return repaired ROADRUNNERs to Purchaser within three working days or less after receipt by
Datamatic.
I. SCOPE. Datan1atic shall keep the Hardware and the Datamatic Software in good working order. Maintenance services shall include:
A. Preventive Hardware maintenance as is generally providcd by the equipment manufacturers.
[3, Sollware maintenance, including providing Purchaser wilh such rcvisions, updates and improvements in the Datamatie Soil ware as Oatamatic
generally makes available to licensees ofthc Datamatic Soliware: and
C. Remedial maintenance of both the Hardware and DatamaLic Solhvan;,
3, PERFORMANCE OF MAINTENANCE, Purchaser agrees Lhat Dalamatic may subcontract Hardware maintenance services under this Agreement.
4. EXCLUSIONS, Maintenance services shall not include:
A. Repair of FIREFL Y Meter Interface UniLs,
B. Repair of Programming/Profiling Units,
C. Electrical work external to the Hardware or maintenance of accessories, alterations, attachments or other devices not furnished by Oatamatic;
O. Repair of damage or increase in service time caused by accident, transportation, neglect or misuse and alterations (which shall include, but not be
limited to, any deviation from circuit or structural machine design as provided by Oatamatie):
E. Repair of damage or increase in servicc time attributable to the use of the Hardware far other than data processing purposes tar which designed;
F. Furnishing platens. batteries, supplies or accessories: painting or refinishing the machines or furnishing material therefore: making specification
changes or pert'onning services connected with relocation of machines; or adding or removing accessories. attachments or other devices,
ARTICLE 8 - TERM INA TION
I. In the event Purchaser fails to perfonn any non-monetary obligation in accordance with the tenns and conditions of this Agreement and Oatamatic
notifies Purchaser in writing of the details of said failure of perfonnance, then Datamatic may. at its option, tenninate this Agreement if Purchaser
fails to cure said deficiencies in performance within ten (10) days of its receipt of said notice,
2. Licensee may terminate its license of the Oatamatic Software upon sixty (60) days written notice to Datan1atic.
3. In the event either party tern1inates this Agreement or the license of Qatamatic Soflware, or should Purchaser fail to make any monthly payment tor
maintenance. all licenses granted under this Agreement shall be tenninated, and Purchaser shall, within tiftecn days following such tennination,
return to Oatamatic the Oatamatic Software in whatever fonn retained, and all copies of Oatamatic Software documentation. Purchaser shall certify in
writing to Oatamatic that Purchaser has so returned the Oatamatic Solhvare docum<:ntation to Oatamatic.
ARTICLE9-AMR PILOT EQUIPMENT
I. The parties agree that Purchaser shall have forty-five (45) days ("Evaluation Period") following receipt of notice that the System complies with th.:-
Functional Specifications to evaluate the AMR Pilot Equipment and Software identified on Schedule 13,
2. Upon the expiration of the Evaluation Period, Purchaser agrees to. within fiHeen (15) days following the end of the Evaluation Period, to either:
A. Return to Datamalic the equipment and software identified on Schedule 13, or,
B. Provide Oatamatic with a Purchase Order for a least 200 additional FIREFLY MIU's.
DATAMATIC.COM, LTO
CITY OF WINTER SPRINGS
BY:
Philio J. Masters
BY:
TITLE:
Chief Fi1nncial Officer
~ ~"'-
SIGN, 'URE
TITLE:
SIGNATURE
SClIEDULE A
HARDWARE, SOFTWARE, AND TRAINING SCHEDULE
QUANTITY
DESCRIPTION
5
ROADRUNNER S60ES ('land-Held T<.:nninals (2MB) ineludinl? NiCad batteri<.:s and carrvinl? slraps
Radio FrcqucnCY Rccciving Unit for ROADRUNNER S60ES (int<.:grated)
Four-Slot Communication/Charging Cradic
Single-Slot Communication/Charging Cradle
Logicon VersaProbe VP,4T
RouteSTAR Routc Management Software and Liecnse for DATASWITCH
5
RouteSTAR Route Management So!lwarc and License for ROADRUNNERS
FieldSTAR Service Order Software and License for DATASWITCI-I
5
FieldSTAR Service Order Software and License for ROADRUNNERS
Six (6) Days On-Site Training and I CODY ofComDlete System Documentation
EMR System Total
30.194,00
SCHEDULE B
AMR f>ILOT EQUIPMENT
2
Programming/Profiling Unit
10
FIREFL Y Meter Intcrface Unit lor Water
FIREFLY AMR Software License
AMR Pilot Total
2.000,00
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 32708-2799
Telephone (407) 327-1800
3 July, 2000
TO: Gene DeMarie, Director, General Services
FROM: Gregory A. Bishop, Meter Services Manager~
SUBJECT: Electronic Meter Reading System Replacement
Attached is the information regarding Datamatic and the purchase of the meter reading system.
I have contacted three of the listed customers and received nothing but very favorable endorsements
of the Datamatic system and the company itself
. Tallahassee, FL - Ted Kinsey 850-891-6835
. Lynn Haven, FL - Linda Lucante 850-265-2121
. Island Water Association (Sanibel, FL) - Rusty Isler 941-472-2113
. North Lauderdale, FL - Cindy Burke 954-722-3800
. Lauderhill, FL - Paul Froelich 954-730-3021
. Belleaire, FL - Dave Brown 727-588-3794
. Niceville, FL - Dan Doucet 850-729-4019
. Punta Gorda, FL - Cindy English 941-575-5057
. Margate, FL - Terri Stoleson 954-972-6454
. Winter Haven, FL - Tracy Mercer 941-291-5756
. Albany, GA - Timothy Range 912-435-2020
. Gwinnett County, GA - Peggy Samples 770-822-7139
I have found additional information on the company as requested by the City Manager.
Datamatic was the very first provider of any meter reading system. Datamatic built the first handheld
electronic meter reading (EMR) system, and Datamatic is still uniquely devoted to that market alone.
Datamatic does not build and sell meters, billing systems, etc. Datamatic only provides systems to
serve the utility (gas, electric and water) meter reading market alone. Datamatic is privately owned
and has been in business since 1977, and has been included on Inc. Magazines list of fastest growing
companies twice. Datamatic currently serves over 600 customers in the municipal meter reading
market (also serves customers in other private markets), spread out from Saskatchewan, Canada to
Public Utilities, Singapore. The applications are built and maintained by Datamatic's own staff, and
are by their very architecture meant to be open, that is to say that they work with any type of meter
and most any billing system. Datamatic provides all of their own maintenance on all components,
and by agreement will have equipment back within 72 hours of having sent it in for repair.
Combined with this is 24 hour customer support, with three Service Reps on call after hours every
day, including holidays.
I recommend that we purchase the Datamatic RouteSTAR meter reading system and implement it as
quickly as possible.
Datamatic, inc.
~-
TEL:972-234-5000
Jul 14'00
7:36 No.003 P.02
, " ~ ~~
Thi5 RouceSTAR PurdJue. Ucrmc UId Main\dnCIC Apccrncn\ (hctdnIftcr .~) is midi 01\ thit \\.9 _ cia)' of ~OOO by aeS
baIween DATAMAnC.COM. LID, a T-.limiJOd pdltItOtthlp. JocaIId ..1., Nonh OIcAvUIe Dri~ SuI1& lUO, ~ ~1 (hcreIMfter
referred to IS "0IJamatie").1SSd die ctty of TaU""" "'''I businoa. 100 W. ViIIM StI-. Tel...... Ftorida 32301. theninafter refemd to IS
"PurcMser and/or LIcensee").
RECITALS
A. WHEREAS Datamlltic sen. compu\cr haldwlIe UlClIlcenses, In obJec:l (onIl only, proprietary computer roftware IS al)'SCtm. hereinafter ref~ 10
as "Systcm" and providos mNnteIWlCC on 1M $yttan; and
B. WHEREAS Purchaser desir'CS to lICqUlrc eM S~ Ind mlUntcnlnCC m Oar,amatic;
111I CONSloERA nON or the paymcn1 of 1be deposit, the terms and conditioi'll of !hIs AJrecment, Ind other pod and valuable considmlion. tho receiPl
and 5Ufficicnt)' of which is hmby acknowledged. 1he panies hereto ... as followa:
ARTICLE 1- CENERAL TERMS
1. ASSICNMENT. The riabl8 end duties of the rapeclive parties may be wiped only with the priOf written COMeI\t of the nonusignina pM)',
2. PROPRJETARY INFORMATION.
A. Definitions, As \I5ed herein, cht tcnn "Proprietary Information" Iball man and incllKte Dawnatic's software. software specificalions. MCI softw~
routines (includin& withoul llmitalion the display rouIinos. the routtnes pennitting aUcration in direetion and soquen<:e. and interfllCll: routines
pmnining the con'\BIUnication of data over telephone lines). Oatamelic's keytJoInI ~ IUId 1he pzomptina sequences cmboctlcd In Dltamadc'.
softwlte. This dcfinition shall extend to Proprietary Informl1ion in ~ form such PropriCCl:ry InfOftMlian ~ be embodiod, Ind_n. INt nol
limiled to source code, objea code. System dGcumetlration. S)'IlClrft IpClCifiCllioM. now dwu and difllWlllo ~ie rcpJeSefttalions. and
variations made to Dalamatic: SoftWII'C ~ the reqUC$I or Purehuer end II*ialldapWions ~ desipod by Purchaser or OaIMIItic, or IS tile
I'CS\III o(thc joint eft'ort orDatama1ie and Pun:haser.
The term "proprietaty Infomwion" shall no( ~cnd 10 In)' Infonnation. or In)' embodiment of infonnation, whim hes bec;.o~ prien! public
knowledge Of is generally known In the trade,
8. Pro\ectlon o(Propric1aly Information, Delamatle In 8* fallla represents, wi the parties hereto IINC. d'Iat all Propri<<.uy Information disclosed by
Oa1amaIic: 10 Purchaser In COMCClion with Ibis A&roement conatituIa 1M ttIde RCreIS acUm amfidcntlal information of ~ie, and. subject to
lhe requifCMCfllS of Florida law. shall be held in IMt Md conndcnoe by PurdIaRr- POl'Chascr tgnes 10 rake I'CalIOnabIe S'ePS to CM\Ire the secNt)' of
the Proprietary Information oro.wnatic; sudl reasonable Steps IIhaII include, but ce nqtlimited to. the adoption ofrcuonablc security procedures.
and notification in writing to pctSOn$ hlYin& access to the Propriotal)' Inf'ormation thatlhc Propricwy Information embodies the crade recreu 8ftd
confidential infonnalion of~~ and is not 10 be used or dildoscd wi1hCNlt proper au1horiZltion &am OaIamatie.
3_ TRADE NAMES_ Purchaser acknowledges lM1 ROUTES! AI. DATASWITCK. and ROADRUNNER. are propricwy tIlldc lIImI5 DfOatamatie.
4. ENTIRE AGREEMENT_ It Is qrad that this AJTeement Ind 1hc EJd\ibitl aftIIChed hereto and IIIIldc . part hmby embody the entire qroemcnt of
the panies in relation 10 thc subjCC1 matter ~tf.1nd Utat there is no odlar OlW or wrfu.cn tplCtfteftl or undl:l'llaDding be(ween tho ,.n1e$ allhe
time or ~CCUlion pcneinin& to the subject matter of Ihis AeaCClIlCft\. This Apeemcnt shan not be modlfled except by cht wriuen ~t of.,1
parties hCl'Clo.
5. GOVERNING LAW. The plltics hereto I&fCC UIIIlhis Apment is accepted.. entered into and enfonx:ablc in Leon Count)'. AoridL This
Agreement shall be governed by the laws,oflhe Stale or Florida. To the extCftt that thlft it 10 be a dcli\1:fy or performance ofservices in connection
with &he sale of aoods under Utls AJrecmeAL such services WIll be dccmod ".GOds" wMln Ute def1nl1lon oftlte lhdfonn Commercial Code.
6. LEGAL CONSTRUcnON, In c:ase any one or more oftht pnMsfons c:ontained in lIIis Asreemertt shill for IJI)' raDOn bt heIcI 10 be Invalid. illcpl.
Of unenforceable in a1I)' respecl auch in.alidity. i1lep1lty. Of uncnforcabillty st\all not d'Cle\ any otMr provision chocof.lnd this Apecment shall be
c:onstrUed as if such invalid. iIICall. or unCflfOYCQblc provisions hid ~ bem contained herein.
7. FORCE MAJEURE. Neither pI/1)' herao shall be in dcfauh by reason of any f'ailllJC or its performance under Ibis Apecmenl jf S6Id'I ~hIre results.
whether directly or indir~tJ)'. hm fi~ cxplosion. strike, ~gh1 emba1JO. let or Ood. ad of the public cncm)'. WIT. civit diswrbance. act or
government. de jure or de flClo. or any 1Ient:)' Of olflcial thmor. labor shor1qe, 1IMSpOfWion ClOftlinpnclcs. unusually Kveft wellher. default or
manuflCtUl'Cl' Of . supplier or IUbeontrs~. qUituuinc. ra1ricIion epidemic. or ca\lSV'OPhe. IIdI ofcimcly ill$1rUClions or essential inf'om'lalion fTam
!he owr part)'. The oceunenc:c of InY event enumcrsted herein IhaII extend pcrf'onnanoe n'lquired under lhi1 AJrccmenl by the lImOUftl of del.)'
occasiOned by such oc:currencc.
8. fNFRINOEMI::NT. l>alamatK: ~;II defend. a\ ilS 0"" Clipcnse. '11)' ae1.ion brou~l.inl\ Pun:baser 10 the exlent "'- such ee\ion is bucd on . claim
Datamatic, inc. TEL:972-234-5000 Jul 14'00 7:36 No.003 P.03
, , ~ , : ,,~"'f, infrinpJ any peIGIIt or ~ or GOnJtitutes miApprvpriMion or \IIlIU'IJlOrimd uK or any pmon'l1nlde seereL Datllmatic shall indemnify
I' :'; .,. 6 bold Putehuer IlInnlaI hm all dImqa, CClIIIs.ItId cxpcnICI.... tom Mb ellirns. pt'OvkIod thIl P~hIW noUflo$ o.tamItk in writi..
,::;. ddn 10 days ftvm tho elite. claim it tI8Il'IaI. DI1amatic .....1...~ Ihc .. riabt to comroIlhc dcf1mc, MJQti1lions. ICUlcmerR and
, " compronrise or en)' $UCh ecdon. Ifthe System andr'or Softwwe becorMs. .In DllamtJic'. opinion is likel)' 10 become, the IUbjcct of audla ~Iaim.
'. I>mniclc may. Gl iu opciaa, ehbcr (1) olMin forhrcN.w 1be rf8ht tD ClOntUlue .... _ SyNm IJICVor Softwln; (2) rcplece aueh $)'IIem ancVor
,;. SoftwIR with . non-lft8inaiJII S,.em llIdIor SoftwM; or (J) moctiI)'lUCf1 SytIIlm II1dIor Softwwc to make h nonatnainal,.. 50 '0Ilf .., such
1"ef'~1 or modificalion it ~ionaUy CICllli~1 in ~Iky Md pafon'Mnc:c 10 1M dJen.cxi$tin1 System endIor Softwve. If ~ie or
, PurcJwer lcams or Ihould haw rcuonab'y lelmed Ibll such 1ft ICIIon has been filed or dveaIened lpiftst Dmmetlc or Ptlrthaser, DaIamatic or
Pun:haser. II &he ClIIIll may be, 11III1 notify 1he odl<< 'I*'Y pNmJIIJy in wrkina. 0I&IInIIic Ihall no& be liable for, an4 PW'Chasef. to the Cll.tcnt
pcrmlucd by Florida law, shaIIlndaanify Da1ImIIic: 'Pintl, cIamapIlrilina from UIC of the S)'Ilcm and/or Soltwlrc b,)' PW'CIIWr more u.n 10
days after Purdwer has IICMMld or belli nOlifield or such a filed or ~.sion. In no cveftllhaJ( D.ramatic he lilble for special, COMCqlleMIal
or punitive dam8feS an" &om such a filed or duaIemld -=don. The fbrcpu.1Utes the entire liability or OaIamaIic 10 Purehuer with respect to
inft'tnaement or any patent or co~"'t or any misappt opnatlon or unauthorized use OrwMor person'! 1rade secret. Dawnallc shall not be liable to
.pUtctwer if lilY claim or patent or copyriiM infrlnpmem. or claim 0( misapproprialion or unaWIoriJed use of InOlher penon's vade seem. is bucd
Upon the use of the S)'Jltm andfor Software, or any pili of ather, in ClOftfMllCllan with cqulpmlll'll or IOft'wIn not delivered or Uc:cnllCd by Datamlalc:..
or in a manner for which the Syacm lIIdIor Software or ID)' pin or okber. hu Men modltlcd by or ror~. PurdIucr, 10 &be extent Umilc4 by
Florida law, 'frees to indemnify Dal8malic for damaaes. QOItS, IIld expensa lIriJin, fiom I claim of palen1 or gopyritht infringement or
misappropriation of trade sccrcu. which claim results. in wtlole or in par1, from incorporation of Pun:buct's dcsi",s. hardware, software. or
spccltiC8%iOft~ into the System.
9. TAXES, SHIPPING AND INSlIJlANCE. Purchaser shill pi)' aU_es ensln, out ormis A,srcomenf, QCCpl for ~ JevJed.llpon the neI income of
D8IImItic. Pvrchucr ep'CICS to provide en cltemption mtiftcacc with &hll QO~ if Purdlescr qualifies u 1ft exempt orpnizatlon for 5WC sales IlId
UIIe faX P'"l'OJCS. The shippina pSI'ly payS sbippina dtarJes. Purdaacr aarees UW no COft\mOn carrier whose services ~ ~ACd b)- Daamalic shall
be (be -eent of Dalamalic.
10. RISK OF LOSS, Risk of toss as to the System or any pen thEl'COfahall paD to Purch&'tcr upon deliYa)'. Darnaccto the 5yStem in the: possession or
Pun:haser shall be: the rcsponslbllicyofthe P~. ,
J I. UMITATION OF DAMAGES. Notwith3tBndlna any other provilioas of "", Aarument to the conCl'lJ)', in no event shall either DataJn.ti~ or
Purchaser have (iOOllil)' of any kind to &he other patty for any special, incidenlal. consequential, Of punitive damages. evCr\ if such part)' had been
advised or the possibility or such polmtialloss or dlmap.
ARnCLl2 . PAYMENT
I. Purebaser shall pay Datamllfc forw S)'Stcm.lncl\.ldln& tralntn& tbeteon. tralnfna manuals, and shippfng d1qa the sum of~' 26900. cxelusive of
taxes. Payment shall be made as follows:
(i) $20.000.00 shall be paid fO Dalamalic upon deliVCl)' oflhe equipment and softwIre IdcnlificcS in Schedule A It Pun:hasefs premises.
(ii) ~J~9.SW shall be paid to Oatamatic upon satisflCCOty compl<<lon or irnplemeuia1ion and u.lnin, as de1emlined by Pun:huer. 111r Purchaser
will have fifteen (I S) da)'$ after inMllation to test 1hc sysaem and enture lho product conforms to the specifiCltions outlined In the anached RFP
response (rom DatanWic.
2. MAINTENANCE. Purchaser lip! to pay an annual maintenance ehl'Je for lhe maintenanc:.e JetYices provided by Datamatic under 1h.is Agreement
followill3 a ont-year wamnty period. This WBR1II1ty period is to bcJm upon implernenwion and I&:lClIp1ance orlhe S)'SWft. The mainteaance char8e
for &he first 24 months followina the warrant)' period shaJl be $11 994.00. The IIInual mainlCn8nCe chIrJe is subject 10 cbanp on 1he 2'" anniYmll)'
date of the end orlhe wtrftnf)' period and on CId\ suc:h annivenary dale theraftcr. but In no event shan any IIIlnuaJ ~&I8c chanSC in the annual
d\arac c"cced ten (10) pen:ent. The annual charJc is subjecc (0 chan,e in the event Purdwer pun:hases Iddldonal equipment and/or licenses
additional software.
.1. Paymenu will be made following receipt of an I<<Vrtte inYCliee. Late paymtn1S wjIJ bear interest on Ill)' oUlSlandina. undisputed amount 1\ \ht tate
se\ rorth in the Florida Prompt Payment Act.
ARTICLE 3 . HARDWARE
I. PURCHASE, The Sys<<cm shall include the Iwdwere an4 equipment idenlified in Sdlcd\lle A. included herein. and hereby incorporated by
refcrenec. hereinafter referred to IS ..Hardware....
2. TIl1...E. TItle to said Hardware shallll'1nsfcr to ~haset upon paymem to Oawnatic orlhe total sum se1 toM In Miele 2. Parap.ph I,
ARTICLE. . SOFTWARE
I. SPECIFICATIONS. The ~ shall include JOftwan: 10 tncct the Functional Spetiflc:ations Ipplicablc II time of ^Jrmncnl. hereinatler lCferrcd to
U "Softwarcn or "DllIama1ic So~., ^ ropy orthe Functional Specifications is anachcd hereto 115 Exhibit I.
Datamatic, inc. TEL:972-234-5000 Jul 14'00 7:37 No.003 P.04
~.':;"';'l...t ........, .,u. . "'n.~ .....~.......~c. ~.... .................,. '....-.;, ............, .....II..."........-v. .....___....we............ ......,....~._._ ..__ __.. ..... ~ _'w
. ,,:~\:;};~::, " ofthc DMImIIie so....ln ohjecteode Conn only. Slid licwe Is pled under the teams ud conditioftt.. forth herein.
,:;:(, L~ qRIW thM DIuImIIIc nlIIina ownmhip rip to.. o.s.m.dc ~ IlId UlIl LIca\tce ICq\1Itcs no 1ido to the DnunIl~ Softwwoc, nor
, , any cMcr inIaesI In the DIIamIIic Softwatc, other dMlft dtt riaJu 10 '* end pcI'JIleIIlhe 0Ir.tmcIc Softwn In IIXlOJ'dancc wkb die ICm&J end
conditions of1lris Aw~~11. All risMa nul explicitty .,.tcd 10 u.n.e lie retIlntct by ~ LioeMee a1. ..-a nullO make MY COJties or
reproduc:tions oCtile Datamatic Softwue other thin one copy 10 be VIed b)' Ucensee lI$' bIcJc-up for emer_y silUltlcm5.
B. The OaIamIIic SoftwR may be used onl, in oonneccion wRb She t.OAORUNNEIt unila pun:hued &om DaIama&ic under !his Aarecmcnl. undct
previOU$ ~..c;llla1U. or in d1e f\alure. U""* IYII)' pwdluo t4dldonal JtOADRUNNEk unt1a from DaamuIlH:. Met may UK the Datamatic
Softwvo with such will.
C. The Datamallc Software on the DATASWITCH I. WlImIItad by OaIImIIic 10 opeme on. IBM compItible Windows NT wortcswion personaS
~mputer,
D. For the purpose ofinspection to determine Lkcnsec's complitnce with the termS aDd conditions oflhiJ AJ:ftleftIent, Lic:cnIllC hereby pints Dawnatic
ItIe riJht, durina rqular businm hours. and in complilllCC wich allbtbhed geCUrif)' ptOCedu... to enter Ltccnson pmnlses where Ihe Datamat1c:
Software is located.
E. Licensee $haJf only ule tbe OIwnaalc: Software to pc:tform Lice_', WOItt InCI wOftt for conbICl CUItOI'IIerS after havina palcl Da1amali~ . one-\ilne f'ee
oUSOO per contratt tUS\omer, and Licensee shin not permit anyOfle but 1JceMee'. employea to UK thc Datamlllk Software.
F. Licensee ~ that II shall not .(templ to or tctually sell. give, lencI. lease. convey. transfer, license. IlIb1esse, provtdc. or in any other Ift1nJlct
U'lnsfer ony orib riahlS in the Daumatlc Software. whether or not modlftal
ARTICLE 5 . SYSTEM TRAINING
~
Datamatic shall provide Purchaser three m days ofSysttm InIinins It Purehasds 1ocaIion. All tl'Ivellnd living expenses are at Datamalic'. expense,
ARTICLE f. WAIUtANTIES
I. DeIMlatle warrants thar the S)'ItCm on the date of delivery to PuJdwer shall conform to the Functional SpecifiClltions. The exelllsi\'e nsmody for
breadI of this Wltl'lftty shall ~ repair or replacemtnt as to nonconforming bantware. at OaIamatic's option; end 1he provision of conf'onnin&
software. as to nonoonfonni"8 software.
2, DISCLAIMER OF WARRANT'{ ANO LIMIT A nONS OF REMEDIES. Purd\ascr understands end ear- as follows:
A. THE EXPRESS WAkRANTlES AS SET FORTH IN llilS AOR.E2MENT AA.E IN LIEU OF AU. OntER WARRANTIES. EXPRESS OR
IMPLIED INCLUDINO, WIntOur 1.IMITATlON. ANY WAARANllES OF MERCHANTABIU1Y OR FlTN~ FOR A PARTICULAR
PURP()~E. AND ALl. SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCWDED BY D^TAMA nc.
B, 01\ TAMA T1C SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE 1'0 THE exTENT mE SAME IS CAUSED SOLEL V BV DELAY
IN FURNfSHI'NO HARDWA,Rf. PRODUCTS. SERVICES. SOFTWAAE Oil ANY OTHBl PERFORMANCE UNDER OR PURSUANT TO
THIS AORttMENT.
C. TIiE SOLE AND EXCLUSIvE REMEDIES FOR BREACH OF ANY AND ALL WAARANTlES AND 11ft SOLE REMEDIES FOR
DATAMATlC'S LIABILITY OF ANY KIND (JlIICLUDINO LIA8fUTY FOIl NEOLtOENCE) WJnt RESPECT TO nte SYSTEM.
HARDWARE. PRODUCTS. SERVICES AND SOFTWARE COVERED BY nus AGREEMENT AND ALL PERF'ORMANCE BY
DATAMATtC UNDER OR PURSUANT to nilS AGREEMENT. WILL BE LIMITED 1'0 nfE REMEDIES SET FORTli IN THIS ARTJCLE
EXCEPT AS PROVIDED IN ARTICLE I. PARAGRAPH 8 (lNfRINOEMENT).
D. IN NO EVENT SHALL OAT AMA TIC'S LIABILITY OF ANY KINO INCLVOE ANY SPECIAl.. iNCIOENT At., CONSEQUENTIAl. OR
PUNITIV€ DAMAOES. EVEN IF OAT AMA nc SHALL HAVE BEEN ADVISED OF THE POSSIBILITY Of SUCH POTENTIAL LOSS OR
DAMAGE.
ARlICl"t' . MArNTENANCt:
Oawnalic aafCCS to providt mainteftllftCC services on \he S)wm subjta to W letms II1d ClOndillons set fOfth hemn and upon receipt of'the mon!hly
maintenance eharae as pl'OYidcd for in AR'nCLE 2. ~ 2.
I. DESCRIPnON. TeJephone response time from Dalamatic: shall be within Iwe hou~ or uoubfo call. The ROADRUNNER and an equipment
identified in Schedule ... ACCI" DAT^SWITCH. we to be ~nl&i~ al Dmnwlc's hoedqlllnCf$. Oatamalie shalJ tetum NpIoired
ROADR UNNERs and c:ommunieationldwgift& ct8dles to Purchaser within Ihree WOJ1ting dI)'S or Ins titer receipt by Datlmalic.
2. SCOPE. DaUunalic shall keep &he Hatcfwltf and Chc ~ Softw. in good woltinl order. MiintOnanc:c scrvic:a shall include:
Datamatic, inc. TEL:972-234-5000 Jul 14'00
, : Ptnenlive HardWlre IJIIintenwK1O.. it pncraIl, prOVided by Che equipment manll~.
(ii)'. Softwft maintcnlnllt, indudina providiq PurdIul:r wbJl U:h rcvtJJona, updala and lmprovemanta in the OIramade Softwart 15
Dalamttic acnmJly makes aVliIabfe 10 lic:cnsocs ofUlc DararnI&lc Software;
7:38 No.003 P.05
?
Ciii) Rcplacancm. . n.clod. ofbancrios Ind bandsnps; and.
(Iv). Remalialmainf.cnlnce ofbodl d\e HtJdwaro end 0IrImIde Softwn.
3. PERFORMANCE OF MAINTENANCE. PurchacrtA\'OCIlhIr ~ JIll)' IUboonnct HMI~ matntenanee.cmcc:s under Chis Apcmont.
4. EXCLUSIONS, Maint~ f8'\1iccs shall not in(:'*
(i) Eloc:uic;af work CKlCmIIlO the HardwIre or mainlOftlncc of ICCICIIOriCI, IJlcrI1iofts, dldtrnall. or OCher dcYic:a not fVmiWld by Det&nadc;
(il) Repair of cfama&c or inc:n:ae in service lime ~ by accident. IJMSpOf1ItiGn. nca*l or misuse and Gltemlions (which shall include, but
nOl be limited 10. any deviation from Cil'Cl,lit Of $tt\ICtuntl mKhine ""Ian IS provided by OaIama&ic);
(Ui) Repelr of damIie Of i~ in Ml\'~ time anributlble to the use of lhe Hardware for other Ihan dIra proc;cssing purposes for which
designed;
(iv) FumishinS platens; paintins or refinishing rtle nuchlfteJ or ftmllsflln& materfal Chertfore; making SJ*ifjCllion chahaos Of perl'onnlna
!OelViccs c::onnected with relocation of machines; M adding or mnovina ftCOeSSOtits, auac:hmcclS or Olbcr devi<:es.
ARTICLE' - TERMINATION
~ '
I. In me CVC11t Purc""~ fail! to perform any no"","oncwy obJlpllolt In accordance with the ttml$ and oondiUOR$ of this ~I and Oallmltic
notifit$ Purcm.ser in writ ins or thc details of said failure or pedonMnce. thC4'I Datlmatic may, It its option, lcnnlnaae this Apccmcnl if Purchaser
fails to cure aid ckficicnc:ies in performance within 800)' (60) days oflts m:cipt of said notice.
2. Licensee may tcnninate its Jiocnse Oflhc Dttamatic; Software upon si~- (60) d~ wriuen nOliee 10 Oa&amatic.
3. In the evenl eilher Pan)' lennillllcs chis Agreement or the IiCl:lW of Oawna1lc Software, or should Pun:haser tiff 10 mike .ny payment for
mainlenancc. all Ii<<nscs granted under this Agreement stlall be terminated. and P~haser shaJ~ within fony-five (4S) days following such
termination, rerum to Dawnaric: 1Ile DawnaUc SOftware in whatc\'cr fonn reWncd. and all copies of Dllamllic Software doeumenlalionj ellc:cpt rbat
Pul'tl'\a$er shall be entitled 10 ~in I dupli~te $Ct or all delivtrable proclllCU Ind , d"pllcatc of infoimalion n:twncd to DatamaUc until
cksuvction thereof is pennitted under Florida law, Pun:hucr shall c:crtifY in writing to Datlmatic that Purchaser has so reNmed 1ht: Dalarnalic
Softwere documtntation to Dawnatic:,
TIn.E:
~OW_
Sf RE
,,'
OATAMATIC.COM, LTO
CITY OF TALLAHASSEE
BY:
Phili!) J. MISICI'S
BY:
NiY
A~
/ obert B~~
City Trea.urer.Clerk
.-. -- ., ..... . _e.
.:.; ; ~ ',,' ::. :"Y CrTY ~ ..." .
~~~~. Ao .. L' ~..... 4n'"',...
.... .-..... .... -~~6-..~~~~
ROUTESTAR PURCHASE, LICENSE AND MAINTENANCE AGREEMENT
This RouteSTAR Purchase, License and Maintenance Agreement (hereinafter "Agreement") is made on this day of , 20_ by and
between DATAMATIC.COM, LTD, a Texas limited partnership, located at 715 North Glenville Drive, Suite 450, Richardson, Texas 75081 (hereinafter
referred to as "Datamatic"), and the City of Winter Springs, doing business at 1126 E State Rd 434 Winter Springs, Florida 32708, (hereinafter referred to
as "Purchaser and/or Licensee").
RECITALS
A. WHEREAS Datamatic sells computer hardware and licenses, in object form only, proprietary computer software as a system, hereinafter referred to
as "System" and provides maintenance on the System; and
B. WHEREAS Purchaser desires to acquire the System 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
I. 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.
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.
B. 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.
3. TRADE NAMES. Purchaser acknowledges that ROUTESTAR, DATASWITCH, ROADRUNNER and FIREFLY are proprietary trade names of
Datamatic.
4. ENTIRE AGREEMENT. It is agreed that this Agreement and the 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 Seminole County, Florida. This
Agreement shall be governed by the laws of the State of Florida. 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. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provisions had never been contained herein.
7. FORCE MAJEURE. Neither party hereto shall be in default by reason of any failure of its performance under this Agreement if such failure results,
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 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 10 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 anon-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 10 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 aiising 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, hazdware, 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. The shipping party pays shipping charges. Purchaser agrees that no common carrier whose services are retained by Datamatic shall
be the agent of Datamatic.
]0. RISK OF LOSS. Risk of loss as to the System or any part thereof shall pass to Purchaser upon delivery. Damage to the system in the possession of
Purchaser shall be the responsibility of the Purchaser.
ARTICLE 2 -PAYMENT
1. Purchaser shall pay Datamatic for the System, including training thereon, training manuals, and shipping charges the sum of $32,194.00 ,exclusive
of taxes. Payment shall be made as follows:
A. $16,097.00 shall be paid to Datamatic upon delivery of the equipment and software identified in Schedules A & B at Purchaser's premises.
B. $16,097.00 shall be paid to Datamatic upon installation of equipment and software identified in Schedule A & B and notification to Purchaser by
Datamatic that the System conforms to Specifications.
2. MAINTENANCE. Purchaser agrees to pay a monthly maintenance charge for the maintenance services provided by Datamatic under this Agreement
following a one ~eaz warranty period. This warranty period is to begin upon delivery of the system. The first payment shall be due on the first day of
the month following the one year anniversary of delivery of the completed System and shall contain the pro rata monthly amount due from the date of
the one year anniversary of delivery to the end of the month in which the one year anniversary of delivery occurs, plus the following month payable
in advance. Thereafter each monthly payment shall be due on the first day of each succeeding month payable in advance. The monthly charge for
the first twelve months following the one year anniversary of delivery shall be 274.50. The monthly charge is subject to change in the event
Purchaser purchases additional equipment and/or licenses additional software, and also on the second anniversary date of delivery and all subsequent
anniversary dates of delivery of the completed System, but in no event shall the annual percentage change in the monthly charge exceed ten (10)
percent.
3. Any principal amounts payable hereunder that remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month from the due
date until such amount is paid.
ARTICLE 3 -HARDWARE
1. PURCHASE. The System shall include the hardware and equipment identified in Schedule A, included herein, and hereby incorporated by
reference, hereinafter referred to as "Hazdwaze".
2. TITLE. Title to said Hardware shall transfer to Purchaser upon payment to Datamatic of the total sum set forth in Article 2, Pazagraph 1.
ARTICLE 4 -SOFTWARE
1. SPECIFICATIONS. The system shall include software to meet the Functional Specifications applicable at time of Agreement, hereinafter referred to
as "Software" or "Datamatic Software". A copy of the Functional Specifications is attached hereto as 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 aback-up for emergency situations.
B. The Datamatic Software may be used only in connection with the ROADRUNNER units purchased from Datamatic under this Agreement or in the
future. Licensee may purchase additional ROADRUNNER units from Datamatic, and may use the Datamatic Software with such units.
C. The Datamatic Software on the DATASWITCH is warranted by Datamatic to operate only on an [BM-compatible Personal Computer. In the event
Purchaser supplies any Personal Computer other than anIBM-compatible as the DATASWITCH, Datamatic makes no representations as to System
performance, and Purchaser agrees to make all payments to Datamatic in accordance with ARTICLE 2, Paragraph 1.
D. For the purpose of inspection to determine 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.
E. Licensee shall not use the Datamatic Software in service bureau and/or timesharing operations. 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 -SYSTEM TRAINING
Datamatic shall provide Purchaser six 6 da s of System training at Purchaser's location. All travel and living expenses are at Datamatic's expense.
ARTICLE 6 -WARRANTIES
1. Datamatic warrants that the System on the date of delivery to Purchaser shall conform to the Functional Specifications. The exclusive remedy for
breach of this warranty shall be repair or replacement as to nonconforming hardware, at Datamatic's option; and the provision of conforming
software, as to nonconforming software.
2. DISCLAIMER OF WARRANTY AND LIMITATIONS OF REMEDIES. 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,
PRODUCTS, SERVICES, SOFTWARE OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT.
C. 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, PRODUCTS, SERVICES AND SOFTWARE COVERED BY THIS AGREEMENT AND ALL PERFORMANCE BY Datamatic
UNDER OR PURSUANT TO THIS AGREEMENT, W[LL BE LIMITED TO THE REMEDIES SET FORTH IN THIS ARTICLE EXCEPT AS
PROVIDED IN ARTICLE 1, PARAGRAPH 8 (INFRINGEMENT).
D. 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 7 -MAINTENANCE
Datamatic agrees to provide maintenance services on the System subject to the terms and conditions set forth herein and upon receipt of the monthly
maintenance charge as provided for in ARTICLE 2, Paragraph 2.
1. DESCRIPTION. Telephone response time from Datamatic shall be within two hours of trouble call. The ROADRUNNER and all equipment
identified in Schedule A except DATASWITCH, Programming/Profiling Units and FIREFLY Meter Interface Units are to be maintained at
Datamatic's headquarters. Datamatic shall return repaired ROADRUNNERS to Purchaser within three working days or less after receipt by
Datamatic.
1. SCOPE. Datamatic shall keep the Hardware and the Datamatic Software in good working order. Maintenance services shall include:
A. Preventive Hardware maintenance as is generally provided by the equipment manufacturers.
B. Software maintenance, including providing Purchaser with such revisions, updates and improvements in the Datamatic Software as Datamatic
generally makes available to licensees of the Datamatic Software; and
C. Remedial maintenance of both the Hardware and Datamatic Software.
3. PERFORMANCE OF MAINTENANCE. Purchaser agrees that Datamatic may subcontract Hardware maintenance services under this Agreement.
4. EXCLUSIONS. Maintenance services shall not include:
A. Repair of FIREFLY Meter Interface Units.
B. Repair of Programming/Prot3ling Units.
C. Electrical work external to the Hardware or maintenance of accessories, alterations, attachments or other devices not furnished by Datamatic;
D. Repair of damage or increase in service time caused by accident, transportation, neglect or misuse and alterations (which shall include, but not be
limited to, any deviation from circuit or structural machine design as provided by Datamatic);
E. Repair of damage or increase in service time attributable to the use of the Hardware for other than data processing purposes for which designed;
F. Furnishing platens, batteries, supplies or accessories; painting or refinishing the machines or furnishing material therefore; making specification
changes or performing services connected with relocation of machines; or adding or removing accessories, attachments or other devices.
ARTICLE 8 -TERMINATION
1. In the event Purchaser fails to perform any non-monetary 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 ten (10) days of its receipt of said notice.
2. Licensee may terminate its license of the Datamatic Software upon sixty (60) days written notice to Datamatic.
3. In the event either party terminates this Agreement or the license of Datamatic Software, or should Purchaser fail to make any monthly payment for
maintenance, all licenses granted under this Agreement shall be terminated, and Purchaser shall, within fifteen 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 documentation to Datamatic.
ARTICLE 9 -AMR PILOT EQUIPMENT
1. The parties agree that Purchaser shall have forty-five (45) days ("Evaluation Period") following receipt of notice that the System complies with the
Functional Specifications to evaluate the AMR Pilot Equipment and Software identified on Schedule B.
2. Upon the expiration of the Evaluation Period, Purchaser agrees to, within fifteen (15) days following the end of the Evaluation Period, to either:
A. Return to Datamatic the equipment and software identified on Schedule B, or,
B. Provide Datamatic with a Purchase Order for a least 200 additional FIREFLY MIU's.
DATAMATIC.COM, LTD
BY: Philip J. Masters
TITLE: hief Financial Officer
SIG A RE
CITY OF WINTER SPRINGS
BY: Ronald W. , i~Ic~~more
TITLE: Clty P~Iastager
_~_.
SIGNATU?~~'
SCHEDULE A
HARDWARE, SOFTWARE, AND TRAINING SCHEDULE
QUANTITY DESCRIPTION
5 ROADRUNNER 860ES Hand-Held Terminals (2MB) including NiCad batteries and carr~g strans
1 Radio Frequency Receiving Unit for ROADRUNNER 860ES finte rg ated~
1 Four-Slot Communication/ChargingGradle
1 Single-Slot Communication/Charging Cradle
I LOQICOn VersaProbe VP-4T
1 RouteSTAR Route Management Software and License for DATASWITCH
5 RouteSTAR Route Management Software and License for ROADRUNNERS
1 FieIdSTAR Service Order Software and License for DATASWITCH
5 FieIdSTAR Service Order Software and License for ROADRUNNERS
1 Six (6) Davs On-Site Training and 1 Copv of Complete System Documentation
EMR System Total 30,194.00
SCHEDULE B
AMR PILOT EQUIPMENT
2 Pro amming/Profiling Unit
10 FIREFLY Meter Interface Unit for Water
1 FIREFLY AMR Software License
AMR Pilot Total 2 000.00