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Res 03-49 Authorizing the Purchase of Hardware and Enter into a Contract for New Accounting SoftwareTOWN OF WESTLAKE RESOLUTION NO. 03-49 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO PURCHASE HARDWARE AND ENTER INTO A CONTRACT FOR THE LEASE OF A NEW ACCOUNTING SOFTWARE SYSTEM. BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That the Board of Aldermen of the Town of Westlake does hereby authorize the Town Manager to purchase hardware and enter into a contract for the lease of a new accounting software system. SECTION 2: That this Resolution shall become effective upon the date of its passage. PASSED AND APPROVED ON THIS 11TH DAY OF AUGUST 2003. ATTEST: C� Scott Bradley, Mayor AingeCrosses , To ecretary Trent O. Petty, To ager APPROVED AS TO FORM: 1 CONTRACT BETWEEN WESTLAKE, TEXAS AND STW, INC. For Licensing, Installing and Supporting Application Software The parties to this Contract are STW, Inc. (STW), a Texas corporation and Town of Westlake, Texas (Customer). This Agreement sets forth the terms and conditions under which STW will furnish Licensed Products and provide certain services described herein to Customer, and Customer will pay therefor. Exhibits attached which are a part of this Contract are: Appendix A For and in consideration of the mutual undertakings herein set forth, the parties hereto agree as follows: 1. DEFINITIONS. The following terms as defined below are used throughout this Contract. (a) "Licensed Software." The machine-readable object code version of the software that STW makes generally available and described in Appendix A, whether embedded on disc, tape or other media. (b) "Licensed Documentation." The published user manuals and documentation that STW makes generally available for the Software. (c) "Updates." Any enhanced and/or improved versions of the Software provided under Appendix A of this Agreement and released to the Customer after execution of this Contract. (d) "Licensed Products." (1) The Licensed Software, (2) Licensed Documentation, (3) Updates, and (4) Licensed Custom Software provided under this Contract, or (5) any copy of items (1)-(4). (e) "Licensed Custom Software." Any software programs (or portions of programs) developed by STW specifically for Customer's own use. (0 "Authorized Copies." The only authorized copies of the Licensed Software and Licensed Documentation are the copies of each application software package defined as follows: (1) the single copy of the Licensed Software and the related Licensed Documentation delivered by STW under this Agreement; and 1 (2) any additional copies made by the Customer, as authorized in Section 3(c) and 3(d). (g) "Designated System." The hardware and software as specified, listed in Appendix A, and installed at Town of Westlake I City Hall. 3 Village Circle Ste 109 Solana Westlake Texas, 76262. 2. PRIMARY CONTACTS AND REPRESENTATIVES. The primary contact for STW during the term of this Agreement shall be: Mr. David Johnson 212 East Franklin The primary contact for Customer during the term of this Contract shall be: Mr. Todd Wood 3 Village Circle Ste 109 Solana Grapevine, Texas 76051 Westlake, Texas 76262 Telephone: (817) 329-1711 817-430-0941 Facsimile: (817) 421-0206 817-430-1812 Customer shall notify STW in writing of any change in the primary contact. 3. LIMITED USE LICENSE. (a) In consideration of annual software rental fees and other charges, if any, and the applicable custom software fees, if any, as provided in Appendix A, STW hereby grants Customer and Customer hereby accepts from STW a non-transferrable and non-exclusive right to use the Licensed Software only on the Designated System and only for its internal processing needs, subject to the terms and conditions specified herein for a term as provided by Section 18 herein. (b) Once Customer has paid the annual software rental fees for Licensed Software, Customer shall have the right and license to use, enhance, or modify the Licensed Software only for the Customer's own use and only on the Designated System for the term of the license. (c) In order to assist Customer in the event of an emergency, Customer is permitted to make up to two (2) back up copies on magnetic media of each application of the Licensed Software and one back up copy of the related Licensed Documentation. These Authorized Copies may be stored off- site away from Customer's premises (as specified in the Definitions Section) so long as they are kept in a location secure from unauthorized use. Customer or anyone obtaining access through Customer shall not copy, distribute, disseminate, or otherwise disclose to any third party the Licensed Products or copies thereof in whole or in part, in any form or media. This restriction on making and distributing the Licensed Products or copies of any Licensed Product includes, without limitation, copies of the following: 2 (1) program libraries, both source or object code; (2) operating control language; (3) test data, sample files, or file lay outs; (4) program listings; and (5) licensed documentation. (d) Upon written request by Customer, and with written permission by STW, additional Authorized Copies may be made for Customer's internal use only. (e) Customer may use the Licensed Products on the Designated System only while it possesses and operates the Designated System, and only during the term of the license. (f) If Designated System becomes temporarily inoperable, Customer may load and use the Software on another System until the original Designated System becomes operable. (g) Any other use or transfer of the Software will require STW's prior approval, which may be subject to additional charges. (h) Customer may use Licensed Products only in and for the Customer's own internal purposes and business operations. Customer will not permit any other person to use Licensed Products, whether on a time-sharing, remote job entry or other multiple -user arrangement. Customer may make back-up archival copies of the Software and any related Updates. Customer will reproduce all confidentiality and proprietary notices on each of these copies and maintain an accurate record of the location of each of these copies. Customer will not otherwise attempt to copy, translate, modify, adapt, decompile, disassemble or reverse engineer Licensed Products. 4. PAYMENT. Customer agrees to pay STW the amounts specified in Appendix A in U.S. dollars and by the date specified in Appendix A. Any amount not paid when due, which is not in dispute, will accrue interest at the rate of one and one-half (1.5) percent per month, or the maximum interest allowable under applicable law, whichever is less. Customer will pay such interest when remitting the principal amount to STW. 5. LICENSED SOFTWARE UPDATES, CUSTOMER SUPPORT. (a) STW agrees to provide Customer, at no additional charge, with the Updates that STW may make generally available during the Contract period. Customer agrees to install the Updates only on the Designated System. If an Update replaces the prior version of the Software, Customer 3 agrees to destroy such prior version upon installing the Update. This Paragraph will not be interpreted to require STW to either: (1) develop and/or release Updates; or (2) customize Updates to satisfy Customer's particular requirements. (b) Updates will not include any new Products that STW decides, in its sole discretion, to make generally available as a separately priced Update or option. (c) Updates will provide full data compatibility with prior versions or will include programs and/or utilities to automatically convert prior data files to structures required by the Update. (d) The following services shall also be included as Support, and provided under this Section: (1) Temporary fixes to Licensed Products; (2) Revisions to Licensed Documentation to reflect new software functions, features and operations; (3) Reasonable telephone and/or remote (dial -in) support for Licensed Products, Monday through Friday from 8:00 a.m. to 5:00 p.m., local time; and (4) Invitations to and participation in user group meetings, if any. (e) Additional support for other services is available as requested by Customer, using the hourly rates as provided in the Addendum to this Contract. These additional services include, but are not limited to, the following: (1) Designing, programming and supporting Licensed Custom Software; (2) Maintaining modified Licensed Software and/or Licensed Custom Software; and (3) File conversion assistance. (4) Installation of Licensed Software updates. 6. LIMITED WARRANTIES. (a) Warranty. STW warrants that Licensed Products and Updates will (1) conform to STW published product manuals in effect on the date of delivery; and (2) perform substantially as described in the accompanying Licensed Documentation after delivery for 90 calendar days. STW does not warranty that the Licensed Products will satisfy or may be customized to satisfy all of Customer's requirements. (b) Remedies. In case of breach of warranty or any other duty related to the quality of the Licensed Products, STW or its representative will correct or replace any defective Licensed Product or, if not practicable, STW will accept the return of the defective Licensed Product and refund to Customer the amount actually paid to STW for the defective Licensed Product, less depreciation based on a five-year straight-line depreciation schedule, and a pro -rata share of any maintenance fees that Customer actually paid to STW for the period that such Licensed Product was not usable. Customer acknowledges that this Paragraph sets forth Customer's exclusive remedy, and STW's exclusive liability, for any breach of warranty or other duty related to the quality of the Licensed Products. (c) Disclaimer. Except as expressly provided in this Contract, all warranties, conditions, representations, indemnities and guarantees with respect to the Licensed Products whether expressed or imputed, arising by law, custom, prior oral or written statements by STW or its licensors or representatives or otherwise, including, but not limited to, any warranty or merchantability or fitness for particular purpose, are hereby overridden, and excluded and disclaimed. (d) The foregoing warranties do not apply if the Licensed Products have been modified by any party other than STW or its authorized licensors or representatives. 7. INDEMNITY. (a) STW agrees to indemnify and save Customer harmless from and against any and all judgments, suits, costs and expenses subject to the limits set forth in this Contract resulting from any alleged infringement of any patent or copyright arising from the licensing of the Licensed Software pursuant to this Contract. (b) Indemnity. If action is brought against Customer claiming that Licensed Product infringes a patent, copyright or trade secret within the United States, STW will defend Customer at STW's expense and, subject to Section 8 of this Contract, pay the damages and costs finally awarded against STW in the infringement action. Such damages are due Customer only under the following conditions: (1) Customer notifies STW promptly upon learning that the claim might be asserted; (2) STW has sole control over the defense of the claim and an), negotiation for its settlement or compromise; and (3) Customer takes no action that, in STW's judgment, is contrary to STW's interest. (c) Alternative Remedy. If a claim described in Paragraph 7(b) may be or has been asserted, Customer will permit STW, at STW's option and expense to (1) procure the right to continue using the Licensed Product; (2) replace or modify the Licensed Product to eliminate the infringement while providing functionally equivalent performance; or (3) accept the return of the Licensed Product and refund to Customer the amount actually paid to STW for such Licensed Product, less depreciation based on a five-year straight-line depreciation schedule, and a pro -rata share of any maintenance fees that Customer actually paid to STW for the period that such Licensed Product was not usable. 5 (d) Limitation. STW shall have no indemnity obligation to Customer if patent, copyright or trade secret infringement claim results from the following: (1) a correction or modification of the Licensed Product not provided by STW; (2) the failure to promptly install an Update; or (3) the combined use of the Licensed Products with software not provided or supplied by STW. 8. NO CONSEQUENTIAL DAMAGES. Under no circumstances will STW or its licensors or representatives be liable for any consequential indirect special, punitive, or incidental damages, whether foreseeable or unforeseeable based on Customer's claims or those of its customers, including, but not limited to, claims for loss of data, goodwill, profits, use of money or use of the Licensed Products, interruption in use or availability of data, stoppage or other work or impairment of other assets out of breach or failure of express or implied warranty, breach of contract, misrepresentation of negligence, strict liability in tort or otherwise, except only in the case of death or personal injury where and to the extent that applicable law requires such liability. In no event will the aggregate liability which STW or its successors or representatives may incur in any action or proceeding exceed the total amount actually paid by Customer for the specific Licensed Product that directly caused the damage. 9. OWNERSHIP. (a) All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Licensed Products are and will remain the exclusive property of STW or its licensors, whether or not specifically recognized or perfected under applicable law. Customer shall obtain no right, title or interest in the Licensed Products by virtue of this Contract other than the non- exclusive, nontransferable license to use the Licensed Products as restricted herein. Customer will not take any action that jeopardizes STW's or its licensor's proprietary rights or acquire any right in the Licensed Products, except the limited use rights specified in Section 4. (b) STW or its licensor will own all rights in any copy, translation, modification, adaptation or derivation of the Licensed Products, including any improvement or development thereof. (c) Customer will obtain, at STW's request, the execution of any instrument that may be appropriate to assign these rights to STW or its licensor or perfect these rights in STW's or its licensor's name. (d) STW hereby warranties that STW has exclusive ownership of the Licensed Software. Customer agrees that STW claims exclusive ownership of the Licensed Software. rol 10. CONFIDENTIAL INFORMATION AND NON -DISCLOSURE. (a) Customer acknowledges that Licensed Products incorporate confidential and proprietary information developed or acquired by or licensed to STW. Customer will take all reasonable precautions necessary to safeguard confidentiality or proprietary notice placed on Licensed Products. The placement of copyright notices on these items will not constitute publication or otherwise impair their confidential nature. (b) Subject to requirements of the Freedom of Information Act (FOIA) and applicable State of Texas and local statutes relating to open records, each party shall hold all confidential information in trust and confidence for the party claiming confidentiality and not use such confidential information other than for the benefit of that party. The other party agrees not to disclose any such confidential information by publication or otherwise, to any other person or organization. (c) Customer hereby acknowledges and agrees that all Licensed Products are confidential information and proprietary to STW. In addition to other restrictions set forth elsewhere in this Contract or otherwise agreed to in writing, Customer agrees to implement all reasonable measures to safeguard STW's proprietary rights in Licensed Products, including without limitation the following measures: (1) Customer shall permit access to Licensed Products only to those employees who require access and only to the extent necessary to perform Customer's internal processing needs. (2) With respect to agents or third parties, Customer shall permit access to Licensed Products only after STW has approved and returned a written non -disclosure statement to Customer. STW reserves the right to reasonably refuse access to a third party after it has evaluated the request. Customer agrees to provide information reasonably requested by STW to assist STW in evaluating Customer's request to permit third party access to Licensed Products. In addition to any other remedies, STW may recover all damages and legal fees incurred in the enforcement of this provision on third party access. (3) Customer shall cooperate with STW in the enforcement of the conditions set forth in the non -disclosure statement, or any other reasonable restrictions STW may specify in writing in order to permit or restrict access. (4) Customer shall not permit removal of copyright or confidentiality labels or notifications from its proprietary materials. 11. TERMINATION. 7 (a) By Customer: If STW fails to provide the Licensed Software as warranted in accordance with the terms of this Contract. Customer may at its option, without refund, terminate this Contract with ninety (90) days written notice as follows: (1) The termination notice shall provide a detailed description (with examples) of any warranty defects claimed; (2) STW shall have ninety (90) days from receipt of said notice to correct any warranty defects in order to satisfy the terms of this Contract; (3) At the end of ninety (90) days unless the termination has been revoked in writing by Customer, the Contract terminates. (b) By STW: If Customer fails to make prompt payments to STW when invoiced, or if Customer fails to fulfill its responsibilities as prescribed in this Contract, STW may at its option terminate this Contract upon ninety (90) days written notice to Customer, as follows: (1) The termination notice shall define the reason(s) for termination; (2) if the reason cited for termination is Customer's failure to make prompt payment, Customer shall have ten (10) days from receipt of said notice to make payment in full for all outstanding invoiced payments due; (3) if the cited reason for termination is Customer's failure to fulfill its responsibilities, Customer shall have ninety (90) days from receipt of said notice to correct any actual deficiencies in order to satisfy the terms of this Contract; (4) At the end of ninety (90) days, unless the notice of termination has been revoked in writing by STW, the Contract terminates. (c) In the event of termination by either party, STW shall continue to provide services, as previously scheduled, through the termination date and Customer shall continue to pay all fees and charges incurred through the termination date as provided in this Contract. (d) This Contract may be terminated without judicial or administrative resolution if Customer or STW, or any of Customer's, or STW's employees or representatives breach any term or condition hereof. L (e) Either party may terminate this Contract in the event of bankruptcy, insolvency and/or assignment for the benefit of creditors of or by either party. (f) Upon the termination of this Contract for any reason, STW's maintenance and support of the Licensed Products will cease, and the license shall be considered terminated. (g) Upon termination of this Contract for any reason, Customer shall return or destroy all copies of the previously licensed software and shall cease all use of the software. (h) This Contract shall endure to the benefit of and bind parties hereto, their successors and assigns. (i) The provisions of Sections 8, 9 and 10 will survive the termination of this Contract. 12. RIGHT TO INSPECTION. During the term of this Contract, STW or its representative may, upon prior written notice to Customer, inspect the files, computer processors, equipment and facilities of Customer during normal working hours to verify Customer's compliance with this Contract. 13. MISCELLANEOUS. (a) All notices or approvals required or permitted under this Contract must be given in writing. Any waiver or modification of this Contract will not be effective unless executed in writing and signed by STW. (b) This Contract will bind both the Customer's and STW's successors -in -interest. This Contract will be governed by and interpreted in accordance with the laws of the State of Texas, U.S.A. If any provision of this Contract is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Contract. (c) This Contract constitutes the complete and entire statement of all conditions and representations of the agreement between STW and Customer with respect to its subject matter. (d) This Contract may be amended or modified only in writing by both parties. (e) Source code for the application Software will be resident on Customer's Designated System, during the term of the Contract. 14. INSTALLATION AND TRAINING. (a) STW shall make available to Customer qualified representative(s) who will provide installation and training support services for each application of the Licensed Software delivered. Customer and STW will develop a mutually agreeable training schedule. Costs for hourly services are described in Appendix A. (b) Installation and training support services will be performed at Customer's premises, unless otherwise stated. (c) Training shall consist of both operational and administrative information. (d) Training will also include hardware and data communications systems, as applicable, including, but not limited to, system configuration, back-up and recovery training, standards for system management and general operations training for Customer personnel. (e) Each software application training shall be provided by STW. Each program shall be demonstrated step-by-step, practicing each menu, each screen, and each entry as well as explaining how to use the written and/or on-line documentation. 15. INDEPENDENT CONTRACTOR. STW is an independent contractor. Tile personnel of one party shall not in any way be considered agents or employees of the other. To the extent provided for by law, each party shall be responsible for the acts of its own employees. 16. INSURANCE REQUIREMENTS. Each party shall be responsible for Worker Compensation coverage for its own personnel. STW shall not commence work under this Contract until it has obtained Worker Compensation Insurance. STW shall procure and maintain, during the term of this Contract, Worker Compensation Insurance for all of its employees or representatives who engage in the work to be performed. Should Customer require other insurance coverage of STW, it shall be provided at Customer's expense upon notice to STW. 17. NOTICES Notices to STW shall be mailed certified mail, return receipt requested to: Mr. David Johnson, 212 East Franklin, Grapevine, TX 76051. Notices to Customer shall be mailed certified mail, return receipt requested to: Mr. 'Todd Wood 3 Village Circle Ste 109 Solana Westlake, Tx 76262. ON 1 K. TEIZINI OF LICEINSF AND SOFTWARE. SUPPORT I lac initial term of this agreement is one year front the elate of the mItII0riZcd signatures provided behm. and will atutomatically renew annually tuticss notice of ts:rntilralt1011 is given by either party. Reasonable prices increases are applicable aper the first year of the contract. this Contract Contains the complete and exclusive statement of the Contract bets een the parties coneernin4, the ntaners referred to herein and replaces tiny' prior oral or written representations or communications bete"n the parties. Each individual signing below represents that they have [lie requisite authority to exccute this Contract [fin helnaall of the organization Im which they represent and than all necessary liyrmaalities have been stet. I lits Contract is effective upon the last elate Shown can this page. A[JItE�ED TO BY: S WV.I -C Bv: David. Johnson. President late; , b 9 \%`l-. Il.AKI:.I'L•X S By: Authorized signature Title Name & "Title Date: 11 Appendix A Installation Time. STW agrees to complete installation of all software modules within one year. 2. Licensed Products and Charges: One Time Annual Fee Maintenance & Total Application Software Lease Cost General Ledger / Project Accounting 1000.00 1000.00 Budget Preparation & Budget Control 500.00 500.00 Accounts Payable & Encumbrances 750.00 750.00 Payroll Processing & Benefit Management 1250.00 1250.00 Cash Receipts / Revenue Accounting 500.00 500.00 Utility Billing 1750.00 1750.00 Fixed Assets 1000.00 1000.00 PowerHouse 4GL. 3825.00 729.00 4554.00 Totals: $3,825.001 $7,479.00 $11,304.00 3. Payment Schedule: Customer shall pay STW upon receipt of a valid invoice within thirty (30 days) of the receipt of an invoice for one time license fees, installation, training, conversion, and travel charges. Annual Maintenance and Lease fees as set forth in Paragraph 2 hereof shall be due and payable when the specific application is in production use by the customer, and then annually from the effective date of this Contract. 4. Miscellaneous:(a) System Conversion. STW agrees to be responsible for system conversion to Designated System. Acceptable conversion shall require that prior Customer data files are operational and "in balance" under the Customer's current application software environment. The cost of the conversion is based upon the hourly charges as specified in 4(c). 12 (b) Use of Independent Contractors. STW may engage independent contractors to perform all or part of STW's obligations under this Contract. (e) Hourly Charges. Charges for services performed, such as charges For Software customization, installation, training, and conversion are $90.00 to $100.00 per hour (hourly rate based upon the individual), plus out-of-pocket expenses. 13