Agreement No. 9206 (CCS)
SOFTWARE LICENSE AND HARDWARE PURCHASE AGREEMENT
(AssetWorks FASuite)
This Software License Agreement and Hardware Purchase ("Agreement) entered into on April LZ_, 2012 ("Execution Date"), by and between Trapeze, Inc., a Delaware corporation ("Vendor"), and the City of Santa Monica, a California municipal corporation ("City") is made with reference to the following:
RECITALS
A City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. City seeks to license Vendor's proprietary Fleet and Asset Management software Trapeze EAM (also known as AssetWorks FASuite) ("Trapeze EAM") and third party hardware for use by the City of Santa Monica's Big Blue Bus pursuant to the City's Request for Proposal ("RFP"), which is attached hereto as Exhibit 1 and incorporated herein by reference.
Vendor is a Delaware corporation, with its office located in Cedar Rapids, Iowa, U.S.A. that markets and supports Trapeze EAM and related services plus third party hardware. In response to the City's RFP, Vendor submitted a Proposal, as well as the Listing of Products and their license operational characteristic limitations, Statement of Work, Pricing, Payment Schedule and other communications related to the Proposal as attached hereto as Exhibits 2 through 6 which are incorporated herein by reference.
D. City and Vendor desire to enter into this Agreement upon the terms and conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
SECTION 1: DEFINITIONS
The following definitions shall apply to the terms as they appear in this Agreement:
A. "Vendor" means and refers to Trapeze, Inc.
B. "Licensed Company" or "City" means and refers to the City of Santa Monica.
C. "Software Products)" or "Licensed Products)" means and refers to the Vendor's proprietary computer software and associated media and printed materials, and may include "online" or electronic documentation as listed, in the Proposal as Trapeze EAM attached hereto as Exhibit 2 and as more specifically described in Exhibit 3-6, including the all of the optional • modules.
"Hardware Deliverable(s)" means the certain third party hardware or equipment as listed in Exhibits 2-6.
E. "Server Software" means and refers to the Software Product to be used on a shared computer referred to as the "Server"
F. "Client Software" means and refers to the Software Product to be used on individual user workstations.
G. "Documentation" or "Proposed Documentation" means and refers to the user documentation and training materials pertaining to the Software Product or Hardware Deliverable as supplied by the Vendor.
SECTION 2: LICENSE GRANT
In consideration of the City's promises contained in this Agreement, Vendor grants to City, and City accepts, subject to the terms and conditions set forth in this Agreement, a perpetual, non-exclusive and non-transferable license to use the Licensed Products. Specifically, City is licensed to install and use the Server Software in accordance with Exhibits 1- 6. Vendor represents that it possesses all rights and interest in the Software Product to enter into this Agreement. Vendor grants to City a personal, non-exclusive and non-transferable license to use the Documentation, but only as required to exercise the license granted herein for the Software Products.
SECTION 3: LICENSE USE
A. City shall not copy the Licensed Products or allow their use by others without the written permission of Vendor except for City's production, backup, archival, and in-house disaster recovery purposes. City will reproduce and include the copyright, trade secret or other restrictive and proprietary legends from the original on all copies. All copies will be subject to the terms of this Agreement. The Licensed Products may be used only by City, and not for the benefit of any third party.
B. City shall not (i) reverse engineer any part of the Licensed Products; (ii) distribute, sell or otherwise transfer any part of the Licensed Products; and (iii) remove the patent; copyright, trade secret or other proprietary protection legends or notices which appear on or in the Licensed Products.
City shall not create any derivative work or product based on or derived from the Licensed Products or documentation or modify any Licensed Products or documentation without the prior written consent of Vendor. In the event of a breach of this provision (and without limiting Vendor's remedies) said modification, derivative work or product based on the Licensed Products or documentation is hereby deemed assigned to Vendor. 2 SECTION 4: SOFTWARE SERVICES
A. Vendor shall provide software and services as outlined in Exhibits 2- 6 attached hereto. Such services include project consulting and implementation, annual service and maintenance, on-site training, software set-up and installation, and data load assistance services.
B. Vendor will determine and City shall review qualifications and approve or. reasonably disapprove the key personnel to be assigned to perform the services under this Agreement, an engagement letter, scope of work, exhibit or other written amendment. By mutual change order, Vendor shall be required to provide additional functional and technical resources as required to provide the services required hereunder. In the event of any changes to the Vendor's staff, Vendor will notify the City immediately in writing. Vendor agrees that any replacement of any listed individuals will be made with individuals of comparable or higher experience, and that the composition of Vendor's employees or subcontractors assigned to this Agreement will be maintained in a manner that provides the same or higher level of services to the City. The City reserves the reasonable right to approve or disapprove any individuals proposed by Vendor to be included as part of Vendor's staff assigned to this Agreement. In the event of any additional staffing or personnel changes by Vendor, Vendor agrees to absorb all expenses and costs associated with such change and shall not charge the City with such expenses or costs under this Agreement.
C. Either party may request at any time the removal of any individual performing Services if that. party: (i) reasonably believes that individual is not qualified to perform the services or does not meet appropriate professional standards; and (ii) previously provided the other party with written notice of the problem and a reasonable opportunity to remedy the situation.
SECTION 5: INSTALLATION
A. Vendor will install the Licensed Product and Hardware Deliverables in accordance with the Schedule attached hereto as Exhibit 4 and incorporated herein by reference.
B. • Software Deliverables. Upon completing the delivery, installation, and testing of the Software Products, Vendor will notify City in writing, on a per product basis, that the Software Product is production ready (*Production Ready Date"). Subsequently, Software Product acceptance will be complete after the Software Product has been in successful full use for a consecutive period of one (1) calendar month without a Level A Priority, and in accordance with the mutually agreed upon acceptance plans. Any Level A Priority of the Software Product during the acceptance period shall extend the acceptance period on a day by day basis until a correction is fully completed, and the Production Ready Date shall be adjusted by the respective extension of the acceptance period.
SECTION 6: LICENSE FEES AND SUPPORT SERVICES FEES
A. Payment Amount for Software License and Hardware Deliverables. The City shall pay to Vendor the amount set forth in the Budget attached hereto as Exhibit 3 for the license fees, hardware fees, third party costs, implementation services, customizations and expenses. The total amount shall not exceed Three Hundred Twenty Nine Thousand, One Hundred Seventy Nine Dollars ($329,179), excluding Maintenance Fees and sales taxes, if any, which shall be determined and charged according to California law. City will be responsible for payment of all applicable taxes and other levies, including sales and use taxes, and this obligation will survive termination of this Agreement. If City has a tax exemption certificate, a copy of the certificate must be provided to Vendor upon signing of this Agreement to avoid payment of the applicable tax to Vendor.
B. Payment Schedule. Payments will be made in accordance with the payment schedule contained in the Budget. After completion of each milestone set forth in the Budget, the Vendor shall first submit a request for sign off on each milestone. After milestones have received signed off, Vendor shall submit an invoice to the City. The City agrees to pay all undisputed invoices not later than thirty (30) days upon receipt of invoice, and to notify the Vendor of any disputed amounts not later than ten (10) days after receipt of invoice.
Payment Schedule
Product/Milestone % Amount Deliverables
Project Kickoff :15 $49,376.77 Kickoff meeting, delivery of project schedule and software manuals.
2 Delivery of Software 10 $32,992.00 Software
Installation of Software 20. $65,835.70 Installation of Baseline FASuite software and options. Options consist of EquipmentFocus, for Bus Stops, ActionMap, Capital Planning Module (for State of Good Repair), Telematics Module, Fleet Focus Performance Measures and Metrics module, Stemco interface, OPS and TransitMaster Integration modules and MAXQue Integration License (bundled with Trapeze,
Integrations):
4 Training Services, on 20 $65,835.70 Delivery of training materials and "Train the Trainers" style completion training
Data Conversion 15 $49,376.77 Data conversion services, batch process training, batch load assistance for Equipment and Parts Master Records.
6 Go Live 20 $65,835.70 Preparation for cutover, go live, and go live support.
C. Maintenance Fees for Trapeze EAM. Commencing with the expiration of the current maintenance for the Vendor's M4 software on July 1, 2012 (pursuant to a separate agreement between the parties), the City may elect to renew, at its discretion, maintenance services on an annual basis for the Trapeze EAM for a period of five years and the Vendor agrees to charge no more than the following for each of the five years: (i) Year 1: $56,828; (ii) Year 2: $59,670; (iti) Year 3: $62,653; (iv) Year 4: $65,786; (v) Year 5: $69,075.
SECTION 7: INTELLECTUAL PROPERTY AND OTHER RESTRICTIONS The Software Product is licensed, not sold and is not transferable. Title and intellectual property in and to the Software Product, excluding City data (including any images, photographs, video, audio, and text incorporated into the Software Product), accompanying printed material, and any copies you are permitted to make herein are owned by Vendor and are protected by United States intellectual property laws and international treaty provisions.
SECTION 8: LIMITED WARRANTY
A. Vendor warrants the Software Product shall be free from defects in materials and workmanship for one (1) year from the acceptance date. Vendor shall pass through manufacturer's warranty on Hardware Deliverables, which shall commence from the date of acceptance The subsequent maintenance periods of the Software Products shall be aligned so that Feat lied e that the City only receives one maintenance billing a year, and the terms and fees for the first year maintenance shall be adjusted in order to align the billing of the various Software Products.
During this warranty period, the Software Product is warranted to conform to the specifications as stated in the RFP and RFP response. This warranty does not apply to any Software Product or Hardware Products damaged as result of any accident, negligence, use in any application for which it was not designed or intended, or modification without prior written consent of Vendor.
B. The Software Products shall continue to perform in accordance with Vendor's most current documentation, which may be modified from time to time, so long as the City remains a subscriber to the maintenance and support plan between the parties.
C. There is no program code, other than as specified in Vendor's documentation, that will restrict the City's use of the Licensed Product upon payment in full.
D. If Vendor makes any modifications or enhancements to the Licensed Products, Vendor shall deliver to the Escrow Agent identified in the Escrow Agreement by and between the parties such modifications or enhancements, including, but not limited to, software language source codes, object libraries and supporting documentation for such modifications and enhancements, so long as the City is a subscriber to the Maintenance Agreement between the parties and party to an escrow agreement, and maintenance and escrow fees are paid and up to date.
E. • Any modification or enhancement of the Licensed Product shall satisfy the warranties and conditions set forth in this Section, so long as the City is a subscriber to the Maintenance Agreement between the parties.
F. The Software Products will be free of any errors which severely effect the operation of the system or keep the system from production use.
This section shall survive the termination of any individual Software Product or Hardware Deliverable, and shall apply to any Software Products or Hardware Deliverables that are retained by the City.
5 SECTION 9: MAINTENANCE AND SUPPORT SERVICE
A. Vendor agrees to provide technical software support services necessary to remedy problems arising from any operational difficulties attributable to the Software Products listed in Exhibit 2 while under warranty, or for subsequent maintenance periods as long as maintenance and support payments are kept current.
B. While under warranty, or for subsequent maintenance periods as long as maintenance and support payments are kept current, Vendor agrees to provide reasonable unlimited Help Desk phone support from 5:00 a.m. to 5:00 p.m. Pacific Time on weekdays except for major holidays.
While under warranty, or for subsequent maintenance periods as long as maintenance and support payments are kept current, Vendor agrees to provide product updates and upgrades applicable to the City's specific version of their Software Products within the same operation environment and for the Software Products listed in Schedule 1, at no additional cost.
D. The warranty period for each Software Product shall extend for a period of one (1) year from the installation date. The warranty also extends for any maintenance period as long as maintenance and support payments are kept current. Maintenance and support periods following the warranty period shall be for a period of one (1) year, and annually may be renewed by the City at its sole option for additional one year terms at the rates set forth in this Agreement. . During the warranty period, in the event that the City encounters an error and/or malfunction whereby the Software does not conform to the description in the Proposed Documentation, Vendor will respond in accordance with the following Priority Levels:
"A" Priority - A Level "A" Priority shall mean and refer to a software error that by a reasonable industry standard renders the entire system inoperable. Vendor shall assign resources within the first hour. Vendor shall continue to work on the problem until the problem is resolved. Average resolution time shall be no less than eight (8) hours, so long as there is no development work required.
"B" Priority - A Level "B" Priority shall mean and refer to the detection of a software error for a system module which by a reasonable industry standard seriously impairs system operations, but does not render it "down." Vendor shall assign resources within four hours and continue to work on the problem until the problem is resolved. "C" Priority - A Level "C'" Priority shall mean and refer to a minor problem, but of sufficient severity that both parties mutually agree that it warrants correction before the next production software release or service pack. Generally completed within sixty (60) days.
"D" Priority - A Level "D" Priority shall mean and refer to minor problems that do not severely affect the operation of the system and generally will be incorporated in the next production of the software.
E. City shall, at its own expense, install and maintain reasonable remote access lines for Vendor use in providing support services, and shall ensure that Vendor shall at all times have 24 hour/day, 7 days per week access to provide technical support services.
F. During the warranty period and any subsequent maintenance and support periods, if Vendor provides services to City outside the standard maintenance and support services contracted herein, City agrees to pay Vendor at Vendor's then current standard rates for services, and travel expenses in an amount to be pre-approved in writing by City in advance of provision of said services.
G. Vendor will not provide any additional services to the City during the term of the warranty and any subsequent maintenance and support period; including but not limited to:
a. Vendor will not support application software that is running on outdated operating systems. Distribution of updates and enhancements, telephone support and functional corrections will only be made available for current operating systems. The City is responsible for maintaining compliance with the "industry standard" version of the relevant operating system. City should determine that an upgraded version of a component part of the software product (Oracle for example) has been certified prior to installation. b. Vendor is not responsible for loss of data due to lack of sufficient backup files. The City is responsible for following standard backup procedures to insure data integrity.
c. Vendor will not support Software Products wherein custom programming or the development of specialized routines not approved by Vendor have been applied to the Software Product.
H. Data conversions and problems associated with data conversions are not covered under this Agreement. Vendor will assist the City through the Help Desk for workstation installation only if other workstations are already installed and working. The Help Desk will not install or upgrade server software or database client software on a "first" machine.
I. Vendor agrees to provide, through its third party supplier, Hardware Deliverables support services necessary to remedy problems arising from any defects attributable to the Hardware Deliverables listed in Exhibit 2 while under warranty, or for subsequent maintenance periods as long as maintenance and support payments are kept current. The warranty period for each Hardware Deliverable shall extend for a period of one (1) year from the delivery of the first sign.
J. The Vendor, through its third party supplier, will at its discretion refund the price of goods or repair, or to replace free of charge, any of the goods found to its satisfaction to be defective within one (1) year of the date of delivery of the first sign owing to faulty design materials or workmanship, provided that the goods have been operated and maintained with the 7 third party supplier's recommendations for use and have not been modified or repaired other than by the third party supplier.
K. In the case of Hardware Deliverables not manufactured by the Vendor, the Vendor's liability shall in no circumstances extend beyond the liability obligations of the third party supplier and manufacturer of such goods to the Vendor.
L. Goods returned under this provision shall be delivered to the location of the third party supplier specified by the Vendor at the City's expense. Goods returned under the guarantee and found not to be defective will be returned to the City at its expense and subject to a charge of $160.00 (US$) per hour plus applicable taxes for the time taken testing the goods.
M. The Vendor's obligation herein to refund, repair or replace the goods is the sole liability of the Vendor.
SECTION 10: CONTRACT DOCUMENTS
The Contract Documents shall consist of this Agreement and all of the Exhibits attached hereto and incorporated herein. The following exhibits are attached hereto and incorporated herein by reference as a term of this. Agreement.
Exhibit 1 RFP
Exhibit 2 Proposal
Exhibit 3 Budget
Exhibit 4 Schedule
Exhibit 5 Statement of Work, Hardware Specifications & Deliverables Exhibit 6 Software and Hardware Details
The Vendor has outlined Software Products Functionality and Product Description included as the proposal, Exhibit 2 and made a part of this Agreement. In addition, the Scope of Work is included as Exhibit 2 and made a part of this Agreement.
The following order of precedence shall apply to all Contract Documents:
1. This Agreement
2. Exhibit 2
3. Exhibit 1
4. Exhibit 6
5. Exhibit 3
6. Exhibit 4
7. Exhibit 5
8 SECTION.11: INSURANCE
Vendor's Insurance
Prior to commencing work, the Vendor shall procure and maintain at Vendor's own cost and expense for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work or services hereunder by the Vendor, his agents, representatives, employees, or subcontractors. The cost of such insurance shall be included in Vendor's bid.
Without in any way affecting the indemnity provided, the Vendor shall secure before commencement of the work and throughout the contract the following types and amounts of insurance:
Minimum Limits of Insurance
Vendor shall obtain insurance of the types and in the amounts described below:
Commercial General Liability Insurance
Vendor shall maintain commercial general liability (CGL) with a limit of not less than $1,000,000 each occurrence/$2,000,000 in the annual aggregate.
Business Auto and Umbrella Liability Insurance
Vendor shall maintain business auto liability with a limit of not less than $1,000,000 each accident.
3) Workers' Compensation and Employer's Liability Insurance Vendor shall maintain workers' compensation insurance as required by the State of California and Employer's Liability Insurance in the amount of $1,000,000 per accident for bodily injury or disease.
Minimum Scope of Insurance
1) CGL insurance shall be written on Insurance Services Office form CG 00 01 (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury liability assumed under an insured contract (including the tort liability of another assumed in a business contract), and explosion, collapse and underground hazards.
Business Auto Insurance shall cover liability arising out of any auto (including hired, and non-owned autos). Coverage shall be written on Insurance Services Office form CA 00 01, CA 00 05, CA 00 12, CA 00.20; or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage equivalent to that provided in the 1990 and later editions of CA 00 01.
Deductibles and Self-Insured Retentions
Any deductibles or self - insured retentions must be declared to and approved by the City of Santa Monica. At the option of the City of Santa Monica, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City of Santa Monica, its officers, officials, employees, or volunteers; or the Vendor shall provide a financial guarantee satisfactory to the City of Santa Monica guaranteeing payment of losses and related investigation, claim administration and defense expenses.
Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1) City of Santa Monica, its officers, officials, employees, and volunteers are to be covered as additional insureds with respect to liability arising out of automobiles owned, leased, hired, or borrowed by or on behalf of the contractor; and with respect to liability arising out of work or operations performed by or on behalf of the Vendor including materials, parts or equipment furnished in connection with such work or operations. Under the CGL policy, using the Insurance Services Office additional insured endorsement form CG 20 10 or a substitute providing equivalent coverage, and under the commercial umbrella, if any. City and other additional insureds mentioned in this paragraph shall not, by reason of their inclusion as additional insureds, become liable for any payment of premiums to carriers for such coverage. 2) For any claims related to this project, the Vendor's insurance coverage shall be primary as respects the City of Santa Monica, its officers, officials, employees, and volunteers.
Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees, or volunteers shall be excess of the Vendor's insurance and shall not contribute with it.
3) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under subdivision (b) of Section 2782 of the Civil Code.
General Liability, Workers' Compensation and Employer's Liability The insurer shall agree to waive all rights of subrogation against the City of Santa Monica, its officers, officials, employees, and volunteers for losses arising from activities and operations of Vendor in the performance of services under the contract.
All Coverages
4). Each insurance required by this clause shall be endorsed to state that coverage shall not be canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given (add user department and specify specific individual and title). to the City.
10 5) If Vendor, for any reason, fails to maintain insurance coverage which is required pursuant to this Contract, the same shall be deemed a material breach of contract. City, at its sole option, may terminate this Contract and obtain damages from the Vendor resulting from said breach. Alternatively, City may purchase such coverage (but has no special obligation to do so), and without further notice to the Vendor, City may deduct from sums due to the Vendor any premium costs advanced by the City for such insurance.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:6 unless otherwise approved by the City's Risk Manager.
Verification of Coverage
Vendor shall furnish the City of Santa Monica with original certificates and amendatory endorsements effecting coverage required by this section. The certificates and endorsements for each policy are to be signed by a person authorized by the insurer to bind coverage on its behalf.
The certificates and endorsements should be on forms provided by the City of Santa Monica or on other than the City of Santa Monica's forms, provided those forms and endorsements conform to the requirements. All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
Subcontractors
Vendor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
SECTION 12: INDEMNIFICATION
During the period any portion of the Software Products are in transit and prior to installation, Vendor shall have sole responsibility for all risk of loss or damage to the Software Products.
B. Vendor shall indemnify, defend and hold harmless City from and against any and all claims, damages, losses, expenses or liabilities, including, but not limited to, reasonable attorneys' fees, arising out of or resulting from the following: (i) Vendor's performance of or failure to perform its obligations under this Agreement; (ii) arising from the willful misconduct or the negligent acts, errors or omissions of Vendor, its officers, agents, and employees in the performance of its services under this Agreement, including, but not limited to the installation of the Software and the training hereunder; and (iii) any patent, copyright and other infringement claim by any third party in connection with the Licensed Product. 1l
C. Vendor further agrees that if City is prevented from using the Licensed Products) due to an actual or claimed infringement of any patent, copyright or other intellectual property right, then at Vendor's option, Vendor shall promptly either:
1) procure for City, at Vendor's expense, the right to continue to use the Licensed Products);
2) replace or modify the Licensed Products), at Vendor's expense, so that the Licensed Products) become non-infringing; or
Terminate the Agreement and return City's license fees for the infringing Licensed Products) in the event that neither (i) nor (ii) are reasonably feasible.
Vendor shall pay any award rendered against City by a court of competent jurisdiction in such action, provided that City gives Vendor prompt notice of the claim.
Vendor will not be liable for any infringement or claim based upon any modification of the Licensed Products) developed by City or any other third party, or use of the Licensed Products) in combination with software or other technology not supplied or approved in advance by Vendor, or use of the Licensed Products) contrary to this Agreement or the Proposed Documentation.
D. City's sole remedy, and vendor's sole obligation, for a breach of warranty, express or implied, shall be limited to (i) the correction of Software errors that cause the breach of warranty or (ii) repair or replace the Hardware Deliverables or (iii) re-performance of services as warranted. If Vendor is unable to make the Software operate as warranted or perform the services as warranted, City shall be entitled to recover from vendor any. Software License and/or Services Fees paid to Vendor for the unsatisfactory Software or services. Vendor's liability shall not include liability for any lost profits, incidental or consequential damages, or for any claim or demand against City or any other party.
E. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANȚIES OR CONDITIONS, EXPRESSED OR IMPLIED, RELATING TO THE
PROVISION OR PERFORMANCE OF THE, SOFTWARE OR RELATED SERVICES
HEREUNDER INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR
MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND
THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
F. Vendor shall not be liable for any delay in performance directly or indirectly resulting from acts of City, its agents, employees or subcontractors, which are not attributable in part or in whole to Vendor or causes beyond the control of Vendor, including, but not limited to, acts of God, acts of a public enemy, acts of the United States or the District of Columbia, any State or Territory of the United States, or any of their political subdivisions; fire, flood, epidemics, quarantine restrictions, strikes, civil commotions or revolution; freight embargoes; • unusually severe weather condition; or default of Vendor's subcontractors or suppliers. 12 G. Except for claims arising out of intellectual property infringement, claims arising out of death or personal injury caused by either party's gross negligence or fraudulent misrepresentation, which will not be subject to the provisions of this Section 12(G), the parties agree that Vendor's entire liability and responsibility for any claims, damages, costs or losses whatsoever arising either jointly or solely from or in connection with this Agreement or the use of the Licensed Products or Hardware Deliverables (whether or not in the manner permitted by this Agreement) including claims for breach of contract, tort, misrepresentation, or otherwise, or the development, modification or maintenance of the Software Products or Hardware Deliverables will be subject to a limit of $2,000,000 up until the Licensed Products and Hardware Deliverables are accepted in accordance with Section 5, and thereafter, after acceptance, a limit of $1,000,000. Nothing in this provision, however, shall not be deemed to limit the insurance requirements set forth in Section 11.
SECTION 13: NOTICES
All notices, demands, requests or approvals to be given under this Agreement, shall be given in writing and shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided.
To City: City of Santa Monica
1685 Main Street, Room 110
. Santa Monica, CA 90401
Attn: Jory Wolf, Chief Information Officer
with a copy to: City Attorney's Office of the City of Santa Monica 1685 Main Street, Third Floor
Santa Monica, CA 90401
Attn: City Attorney
To Vendor: Trapeze Software Inc.
5800 Explorer Drive, 5th Floor
Mississauga, Ontario L4W 5K9
Attn: General Counsel
SECTION 14: COSTS OF LITIGATION
If any legal action or proceeding is necessary to enforce any provision of this Agreement or for breach of this Agreement, the prevailing party shall be entitled to receive from the opposing party all costs and expenses and such amount as may be adjudged to be reasonable attorney's fees. The prevailing party's attorneys' fees shall be paid whether or not the action is prosecuted to judgment. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by the prevailing party as well as any attorneys' fees paid to outside attorneys in connection with the action. 13 SECTION 15: ASSIGNMENT
Vendor shall not assign, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City, which may be withheld at the City's reasonable sole discretion. Any attempt to do so without the City's consent shall be null and void, and any assignee, sublessee, hypothecatee or transferee. shall acquire no right or interest by reason of such attempted assignment, sublease, hypothecation or transfer.
SECTION 16: APPLICABLE LAW
This Agreement shall be governed by the substantive laws of the State of California without regard to its choice of law provisions.
SECTION 17: TERMINATION
A. If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate.
B. Upon termination, the License to use the Licensed Products shall be immediately revoked and all Licensed Products, related documentation, Software Tools, and supporting materials will be returned to Vendor or destroyed.
C. The maintenance and support period for the Trapeze EAM Software Products may be terminated by either party at the end of its initial term or upon sixty (60) days prior written notice.
The maintenance and support period may be terminated at any time by Vendor in the event of any ta maint the event of any failure on the part of City to pay maintenance fees after thirty (30) days notice that the maintenance fee is delinquent.
SECTION 18: INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No oral agreement or implied covenant shall be held to vary the provisions hereof. Any modifications of this Agreement will be effective only by written execution signed by both City and Vendor and approved as to form by the City Attorney.
This Agreement is the product of negotiation and compromise between the parties. Accordingly, notwithstanding California Civil Code Section 1654, in the event of uncertainty, the language shall not be construed against the party causing the uncertainty. 14 SECTION 19: PERMITS AND LICENSES
Vendor, at its sole expense, shall obtain and maintain during the term of this Agreement, all required business and professional permits, licenses and certificates. The City, at its sole • expense, shall obtain and maintain during the term of this Agreement, any necessary permits required for the installation of the signs.
SECTION 20: COMPLIANCE WITH LAW
Vendor shall comply with all applicable federal, state and local laws, including all ordinances, rules and regulations.
SECTION 21: NONDISCRIMINATION
In rendering services under this Agreement, Vendor shall not discriminate based upon race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability and shall comply with the requirements of all federal, state and local law. • SECTION 22: VENUE AND JURISDICTION.
The purchase of the software shall be deemed to take place in Santa Monica, California.
For any dispute arising from this Agreement, the parties consent to jurisdiction and venue in either California Superior Court, Los Angeles County, West District, or the United State District Court for the Central District of California.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the. day and year first above written.
CIȚY OF SANTA MONICA
ATTEST: a municipal corporation
Lusi
he pleart By:
MARIA STEWART ROD GOULD
City Clerk City Manager
APPROVED AS TO FORM:
MÁRSHA JÓNES MOUTRIE
City Attorney
TRAPEZE, INC.
a Delaware corporation
By:
Title: PRESIDENT
15 EXHIBIT 1
RFP