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HomeMy WebLinkAboutRES 85-364 R E S O L U T I O N BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to execute a software licensing agreement between the City of Beaumont and Infosol, Inc. , a copy of which is attached hereto as Exhibit ' A' . PASSED BY THE CITY COUNCIL of the City of Beaumont this the day of _ 1985 . (bid4ov., Mayor - N , SOFTWARE LICENSING AGREEMENT In consideration of the mutual covenants and promises hereinafter contained, this Agreement is made by and between City of Beaumont ("BEAUMONT"), a Texas jurisdiction having offices at 801 Main Street, Beaumont, Texas 77704 , and INFOSOL, INC., ("LICENSEE"), a Texas Corporation, having offices at 8 Greenway Plaza 5-610, Houston, Texas 77046, to provide LICENSEE with the exclusive right to market the BEAUMONT FLEET MANAGEMENT SYSTEM, a computer software system, which has been developed by and is the exclusive property of BEAUMONT. Section 1. Definitions 1.1 "LICENSED SOFTWARE" means all or any material portion of the software product known as BEAUMONT FLEET MANAGEMENT SYSTEM, including all originals and all copies of the machine-readable source and object code for such product, all originals and all copies of the user documentation as set forth in Schedule A hereto for the BEAUMONT FLEET MANAGEMENT SYSTEM and any other related materials which are furnished to LICENSEE by BEAUMONT in connection with the BEAUMONT FLEET MANAGEMENT SYSTEM. 1.2 "USE" means to cause a computer system to execute any machine-readable portion of the LICENSED SOFTWARE or to make USE of any user documentation or related materials in connection with the exertion of any machine-readable portion of the LICENSED SOFTWARE. 1.3 "END USER" means the customer of LICENSEE who will implement the LICENSED SOFTWARE for its own use. 1.4 "LICENSED INSTALLATION" shall mean a single physical location at which the END USER regularly conducts business on his own behalf and which is designated by a single mailing address and which houses the host computer. 1 Section 2. Grant and Payment of License Fees 2.1 During the term of this Agreement, BEAUMONT grants to LICENSEE an exclusive worldwide license to market to END USERS the LICENSED SOFTWARE. The LICENSEE will sublicense the LICENSED SOFTWARE to the END USER at the LICENSED INSTALLATION. For purposes of this License, wholly-owned subsidiaries of LICENSEE shall be vested with both the benefits and obligation under this Agreement and shall for this purpose stand in the stead of LICENSEE. 2.2 LICENSEE will pay to BEAUMONT the amount of $5,000. for each LICENSED INSTALLATION sublicensed and installed by LICENSEE until BEAUMONT has received a maximum of $70,000. in LICENSED SOFTWARE payments at which time BEAUMONT will grant LICENSEE a permanent, paid-up exclusive license to the BEAUMONT FLEET MANAGEMENT SYSTEM and transfer ownership of the LICENSED SOFTWARE to LICENSEE. For a sale of multiple LICENSED INSTALLATIONS sublicensed and installed by LICENSEE to a single customer, BEAUMONT will receive from LICENSEE an amount of $5,000. less the percent of discount on each LICENSE sold to said customer. 2.3 All software license fees collected by LICENSEE shall be paid to BEAUMONT within thirty (30) days from the date of receipt of payment for each LICENSED SYSTEM transferred by LICENSEE to the END USER. Section 3. Sublicense to END USERS 3.1 LICENSEE will provide the LICENSED SOFTWARE to END USERS under written terms which at least (a) limit USE of the LICENSED SOFTWARE to END USERS, (b) restrict USE of the LICENSED SOFTWARE to a specifically identified host computer at a LICENSED INSTALLATION, and (c) prohibit copy and distribution of the LICENSED SOFTWARE by the END USER. - 3.2 The parties hereto agree that the END USERS should be accurately informed about the capabilities and features of the LICENSED SOFTWARE and LICENSEE agrees to accurately represent the 2 173/1 capabilities of the LICENSED SOFTWARE to END USERS. To assist LICENSEE in its efforts, BEAUMONT Mill, for one year, review any request for proposal (RFP) or similar documentation which sets forth the requirements of the END USER. BEAUMONT shall promptly identify any requirements in the RFP which are outside the capability of the LICENSED SOFTWARE. BEAUMONT agrees, with reasonable notice, to demonstrate and be a reference for the LICENSED SOFTWARE, such demonstration and reference will be done at BEAUMONT's Data Processing Center. Section 4. Obligations of BEAUMONT 4.1 BEAUMONT shall deliver to LICENSEE a demonstration tape, a demonstration script, source code, and a current version of machine-readable object code for the LICENSED SOFTWARE along with corresponding documentation for demonstration purposes The demonstration materials shall be provided to LICENSEE without charge. 4.2 LICENSEE shall provide BEAUMONT with written notice indicating each INSTALLATION at which all or any portion of the LICENSED SOFTWARE is currently in use. 4.3 All future enhancements made to the BEAUMONT FLEET MANAGEMENT SYSTEM by BEAUMONT will be provided to LICENSEE at no charge. 4.4 BEAUMONT will assist LICENSEE in demonstrating the BEAUMONT FLEET MANAGEMENT SYSTEM on a scheduled basis at BEAUMONT's Data Processing Center. Section 5. Installation and Training 5.1 LICENSEE acknowledges and understands that the LICENSED SOFTWARE has been developed specifically for USE on INFOSOL computer systems. LICENSEE assumes full responsibility for procurement and installation of the appropriate INFOSOL hardware and system software and for preparing and maintaining the operating environment for such 3 hardware at each LICENSED INSTALLATION. 5.2 LICENSEE will be responsible for the installation and training of the LICENSED SOFTWARE at the END USER installation. Section 6. Maintenance and support 6.1 LICENSEE will provide on-going maintenance and support services for the LICENSED SOFTWARE at a separate charge under the sublicense between the LICENSEE and the END USER. 6.2 BEAUMONT will provide telephone support at no charge to aid in LICENSEE's technical and marketing efforts by providing knowledgeable persons with reasonable frequency during business hours. Section 7. Title 7.1 Ownership of all LICENSED SOFTWARE shall remain with BEAUMONT until BEAUMONT receives $70,000. in licensing payments from LICENSEE at which time ownership transfers to LICENSEE. Section 8. Term and Termination 8.1 This Agreement shall become effective upon execution by the parties hereto and shall continue until terminated as provided herein. 8.2 BEAUMONT may terminate this Agreement for reason of non-performance upon ninety (90) days written notice to LICENSEE, and any payments then due and owing among parties shall be paid prior to the . expiration of said ninety-(90) day period. Non-performance will occur if LICENSEE fails to sublicense a minimum of one system per year or if LICENSEE fails to pay BEAUMONT license fees due. LICENSEE will be provided one hundred and eighty (180) days from the date of written termination notice within which to close any proposals that the LICENSEE 4 has outstanding. 8.3 LICENSEE may terminate this Agreement by providing BEAUMONT ninety (90) days written notice and, at the end of the ninety (90) days, returning the LICENSED SOFTWARE to BEAUMONT. LICENSEE shall pay BEAUMONT for all LICENSED INSTALLATIONS closed within such ninety (90) day period. 8.4 No termination hereunder shall act as a termination of any sublicense granted to an END USER. Section 9. Warranties and Remedies 9.1 BEAUMONT warrants that it owns the LICENSED SOFTWARE and that it is free, as of the date it signs this Agreement, of any contractual obligations that would prevent BEAUMONT from entering into this Agreement. 9.2 BEAUMONT warrants that for a period of ninety (90) days from installation at the first LICENSED INSTALLATION the LICENSED SOFTWARE will substantially perform the functions described in its documentation as furnished to LICENSEE by BEAUMONT. BEAUMONT does not warrant that the LICENSED SOFTWARE is "error free"; however, during that ninety (90) day period, BEAUMONT shall use its best efforts to correct, free of charge, any portion of the LICENSED SOFTWARE that is not in conformity with the warranty of this paragraph 9.2. LICENSEE shall provide BEAUMONT with written notice of any defect in the LICENSED SOFTWARE, describing with particularity the nature of such defect. If BEAUMONT or its designated representative fails to correct the defect within sixty (60) days after receipt of such notice, LICENSEE may terminate its USE of the LICENSED SOFTWARE at the LICENSED INSTALLATION and shall receive a full refund from BEAUMONT of the license fee paid in respect of the LICENSED SOFTWARE at that LICENSED INSTALLATION. If LICENSEE has modified a program in the LICENSED SOFTWARE and that program is defective, the above warranty is null and void for that program. 5 D.3 In the event LICENSEE shall assert any claim or claims for damages arising out of this Agreement, BEAUMONT's liability in respect to such claim or Claims shall be limited to the amounts which have been paid to BEAUMONT by LICENSEE under the terms of this Agreement. IN NO EVENT SHALL BEAUMONT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF GOOD WILL OR CONSEQUENTIAL DAMAGES SUFFERED BY LICENSEE OR END USER OR ANY OTHER PERSON, FIRM OR ENTITY., IRRESPECTIVE OF WHETHER SUCH LOSS OF PROFIT, LOSS OF GOOD WILL OR CONSEQUENTIAL DAMAGES WAS DISCLOSED TO BEAUMONT OR COULD HAVE BEEN FORESEEN BY BEAUMONT. 9.4 THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER TYPE OF WARRANTY WHETHER EXPRESS OR IMPLIED. Section 10. Proprietary Software BEAUMONT has, at great expense, developed the LICENSED SOFTWARE for its own use and for re-license. The LICENSED SOFTWARE is the sole property of BEAUMONT and no modifications or changes to the LICENSED SOFTWARE shall make it different than the originally LICENSED SOFTWARE. Any changes or modifications to the LICENSED SOFTWARE shall be the property of BEAUMONT until the LICENSED SOFTWARE is paid for in full in accordance with Section 2.2 and, at that time, all modifications as well as the LICENSED SOFTWARE will belong to the LICENSEE. BEAUMONT may, however, at no charge, continue to use the LICENSED SOFTWARE and all modifications thereto. Section 11. Entire Agreement and Amendments The parties hereto have read this Agreement and agree to be bound by all its terms. The parties further agree that this Agreement constitutes the complete and exclusive statement of the Agreement between them and supersedes all proposals, whether oral 6 or written. No amendment to this Agreement shall be effective unless it is in writing and is dated and signed by duly authorized representatives of both parties. Section 12. Severabi l i ty If any provision or provisions of this Agreement shall be held- to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 13. Non-Waiver of Rights No terra or provision hereof shall be deemed waived and no breach excused, unl ess such wai ver or consent shat l be i n wri ti ng and signed by the party claimed to have waived or consented. Any consent by any part to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. Section 14. Notice All notices under this Agreement shall be deemed to have been duly given three (3) days after posting, if sent by registered mail, return receipt requested, to either party at the following locations: (a) in the case of BEAUMONT: City of Beaumont Post Office Box 3827 Beaumont, Texas 77704 (b) in the case of the LICENSEE: INFOSOL, Inc. 8 Greenway Plaza S-610 Houston, Texas 77046 7 Section 15. Relationship of the Parties Except as expressly provided for herein, the parties are and shall conduct themselves as independent contractors and neither party shall be construed to be an agent nor be permitted to bind the other or be bound by the representation of the other. Section 16. Governing Law This Agreement shall be governed by and construed with the laws of the state of Texas, United States of America. IN WITNESS WHEREOF, the parties have caused this Agreement to be signed and entered as of the day of 1985. CITY OF BEAUMONT By Title f INFOSOL, INC. By I Title ,�es' 8