HomeMy WebLinkAboutRouteSTAR Purchase, License and Maintenance Agreement -2000 01 01ROUTESTAR 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