HomeMy WebLinkAbout5.927 Original Contract
5. q~ 7
Azteca Systems, Inc
11075 South State St
SUIte 24
Sandy, Utah 84070
Qt~orksQ~"
Phone (801) 523-2751
FAX (801) 523-3734
Emml azteca@cltyworks com
http Ilwww cltyworks com
CITYWORKS @
SOFTWARE LICENSE AGREEMENT
Contract No. C140309
This is a license agreement and not an agreement for sale. This license agreement (Agreement)
is between City of Port Angeles, W A (Licensee) and Azteca Systems, Inc. (Azteca Systems), a
Utah corporation, with its principal place of business at 11075 South State Street, Suite #24
Sandy, Utah, 84070, and gives Licensee certain limited rights to use the proprietary software
The Software Cityworks and Related Materials. All rights not specifically granted in this
Agreement are reserved to Azteca Systems.
1. Definitions: As used herein, the following words, phrases, or terms in this Agreement shall
have the following meanings:
1.1 "The Software Cityworks" means the actual copy of all or any portion of the
computer programs delivered as listed in paragraph 5.1 Licensed Software, inclusive
of backups, updates, or merged copies permitted hereunder or subsequently supplied
by Azteca Systems.
1.2 "Related Materials" means all of the printed materials, user documentation,
training documentation, and confidential activation code for The Software Cityworks
supplied by Azteca Systems under this Agreement.
1.3 "Effective Date" shall mean the date on which Licensee receives the Software Cityworks
and Related Material from Azteca Systems.
2. Term: This Agreement shall become effective on the Effective Date and shall be valid for as
long as Licensee complies with the Permitted Uses and Uses Not Permitted provisions of this
Agreement. Azteca Systems may terminate this Agreement by 30 calendar days' prior written
notice to Licensee if Licensee fails to comply with the Permitted Uses and Uses Not Permitted
provisions of this Agreement. Unless otherwise agreed in writing, Licensee shall have 60 days
after receiving notice of such failed compliance from Azteca Systems to cure the default. If this
Agreement is terminated either under Section 7 or Section 16 below, Licensee shall then return
to Azteca Systems all of The Software Cityworks, related modules, related updates, and any
whole or partial copies, codes, modifications, and merged portions in any form. Azteca will for
no additional charge to Licensee and at Licensee's option either grant a perpetual license to the
Licensee which will allow Licensee to retain the ability to access records and data contained in
The Cityworks Software or will provide hard copies of all files needed by the Licensee. The
1/27/2009
Software License Agreement, Page 1
parties hereby agree that all provisions which operate to protect the intellectual rights of Azteca
Systems shall remain in force should breach occur.
3. Reservation of Ownership and Grant of License: Azteca Systems retains exclusive title
and ownership of any copy of The Software Cityworks and Related Material licensed under this
Agreement and grants to Licensee a personal, nonexclusive, nontransferable license to use The
Software Cityworks and Related Materials pursuant to the terms and conditions of this
Agreement. From the Effective Date, Licensee agrees to use reasonable effort to protect The
Software Cityworks and Related Materials from unauthorized use, reproduction, distribution, or
publication.
4. Copyright: The Software Cityworks and Related Material are owned by Azteca Systems and
are protected by United States copyright laws and applicable international treaties and/or
conventions. Licensee agrees not to export The Software Cityworks into a country which does
not have copyright laws that will protect Azteca System's proprietary rights.
5. Licensing: Azteca Systems grants to Licensee a nonexclusive, nontransferable license to use
the Licenses obtained under this Agreement as follows:
5.1 Licensed Software
Citvworks Enterprise License
An Enterprise-wide (ELA)' unlimited use license includes:
Cityworks Desktop, Cityworks Anywhere, Cityworks
Server MMS, Storeroom, Equipment Manager,
Metrics API
Included applications can be installed on any
number of computers throughout the Enterprise or
Department and have unlimited simultaneous use.
Initial /;JJ!;
5.2 Permitted Uses:
. Licensee may use the number of copies of The Software Cityworks specified in
paragraph 5.1 for which License Fees have been paid on the computer systems(s) and/or
specific computer networks(s) for Licensee's own internal use.
. Licensee may install the number of copies and modules of The Software Cityworks
specified in paragraph 5.1 for which License Fees have been paid onto the permanent
storage device(s) on the computer system(s) and/or specific computer network(s).
. Licensee may maintain one (1) copy of The Software Cityworks to a CD or DVD type
medium for archival purposes during the term ofthis Agreement unless the right to make
additional copies is granted to Licensee in writing by Azteca Systems. Regularly
scheduled full system and partial system archival backups are allowable and specifically
exempted from this provision.
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Software License Agreement, Page 2
. Licensee may use, copy, alter, modifY, merge, reproduce, and create derivative works of
the on-line documentation accessible on MyCityworks.com for Licensee's own internal
use. The portions of the on-line documentation merged with other software, hard copy,
and digital materials shall continue to be subject to the terms and conditions of this
Agreement and shall provide the following copyright attribution notice acknowledging
Azteca Systems proprietary rights in the on-line documentation: "Portions of this
document include intellectual property of Azteca Systems and are used herein by
permission. Copyright @ 2009 Azteca Systems, Inc. All Rights Reserved."
5.3 Uses Not Permitted:
. Licensee shall not sell, rent, lease, sub-license, lend, assign, time-share, transfer or
export, in whole or in part to unlicensed third parties, or provide access to prior or
present versions of The Software Cityworks, any updates, or Licensee's rights under this
Agreement. Nothing in this Section shall prevent use of and access to The Software
Cityworks by Licensee's employees, agents or others performing work for or on behalf
of the Licensee.
. Licensee shall not reverse engineer, decompile, or disassemble The Software Cityworks,
or make any attempt to unlock or bypass The Software Cityworks keycode, as
applicable, subject to local law.
. Licensee shall not make additional copies of The Software Cityworks and Related
Materials beyond that described in the Permitted Uses section above.
. Licensee shall not remove or obscure any Azteca Systems copyright or trademark
notices.
6. Limited Warranty: Limited Warranty: Azteca Systems warrants that it owns or has the full
right and authority and all associated intellectual property rights necessary to grant Licensee
rights and licenses set forth in this Agreement to The Software Cityworks and Related
Materials. Azteca Systems warrants that The Software Cityworks, unaltered, will substantially
conform to the Related Materials for a period of one (1) year from the Effective Date
("Warranty Period"). Azteca Systems warrants that the media upon which The Software
Cityworks is provided will be free from defects in materials and workmanship under normal use
and service during the Warranty Period.
AZTECA SYSTEMS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A P ARTICULAR PURPOSE, WITH RESPECT
TO THE SOFTWARE CITYWORKS. AZTEC A SYSTEMS DOES NOT WARRANT THAT
THE OPERATIONS OF ITS RESPECTIVE SOFTWARE AND RELATED MATERIALS
WILL BE UNINTERRUPTED AND/OR ERROR FREE.
7. Exclusive Remedy and Limitation of Liability: Exclusive Remedy and Limitation of
Liability: One (1) year from the Effective Date and during the Warranty Period, Azteca System's
entire liability and Licensee's exclusive remedy for breach of the warranties against defect(s) in
materials and workmanship shall be to request Azteca Systems correct the defect(s) by whatever
1/27/2009 Software License Agreement, Page 3
means reasonably available to Azteca Systems such as remedy the defect(s), or provide a suitable
work around, or replace The Software Cityworks in accordance with the Cityworks Update and
Support Agreement (if then in effect with Licensee). If Azteca Systems exhausts available
remedies and is unable to remedy the defect( s) Licensee may by written notice of its election to
Azteca Systems, terminate this Agreement for its convenience and have Azteca Systems return
100% of the License Fees paid upon the Licensee's return of The Software Cityworks to Azteca
Systems. Azteca Systems shall not be liable for indirect, special, incidental, or consequential
damages related to Licensee's use of The Software Cityworks, unless such damage is caused by
Azteca System's actual negligence.
IN NO EVENT SHALL AZTECA SYSTEMS BE LIABLE TO THE LICENSEE FOR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST
SALES OR BUSINESS EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN
CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF
THIS AGREEMENT OR USE OF THE SOFTWARE AND RELA TED MATERIALS, UNLESS
SUCH LOSS OR DAMAGE IS CAUSED BY AZTECA SYSTEM'S ACTUAL NEGLIGENCE.
8. Indemnity: Indemnity: Azteca Systems, at its own expense, will hold harmless, defend and
indemnify Licensee from all claims that The Software Cityworks or Related Materials furnished
under this Agreement infringes a U.S. Copyright or other intellectual property rights of a third
party, provided that Licensee gives Azteca Systems prompt written notice of such claims and
permits Azteca Systems the sole right to control the defense of such claims and provides Azteca
Systems all reasonable cooperation.
As to The Software Cityworks which are or in the opinion of Azteca Systems may become subject
to a claim of infringement, Azteca Systems, at its option, will obtain the right for Licensee to
continue using The Software Cityworks or replace or modify The Software Cityworks so as to
make them non-infringing. If none of the alternatives is available on commercially reasonable
terms, then Licensee agrees to, upon Azteca Systems' written request, terminate for convenience
the Agreement upon the Licensee returning The Software Cityworks to Azteca Systems and
Azteca Systems will refund to the Licensee 100% of the License Fees paid.
Azteca Systems will not indemnify or defend Licensee from any infringement claim resulting
from Licensee's unauthorized modification or alteration of The Software Cityworks or Related
Materials.
This section states Azteca System's entire obligation to Licensee and Licensee's sole and
exclusive remedy for infringement.
9. Additional Software Licenses: Additional copies and modules of The Software Cityworks
licenses may be ordered without signed amendments provided the following language is
incorporated in the signed Purchase Order: "By accepting this order, both parties agree to
amend the Master Software License Agreement Contract No. [insert Contract Number) between
[insert Licensee name) and Azteca Systems, Inc., dated [insert Master Software License
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Software License Agreement, Page 4
Agreement date j, which is incorporated herein by reference, to include the above software
licenses, which are hereby licensed under the same terms and conditions "
10. Export Regulations: Licensee acknowledges that this Agreement and the performance
thereof are subject to compliance with any and all applicable United States laws, regulations, or
orders relating to the export of computer software or know-how relating thereto. The Software
Cityworks are determined to be Technical Data under United States export laws. Licensee agrees
to comply with all laws, regulations, and orders of the United States in regard to any export of
such Technical Data. Licensee agrees not to disclose or re-export any Technical Data received
under this Agreement in or to any countries for which the United States government requires an
export license or other supporting documentation at the time of export or transfer, unless Licensee
has obtained prior written authorization from Azteca Systems and the U.S. Office of Export
Control.
11. Force Majeure:
Neither party shall be liable to the other for failure or delay in the performance of a required
obligation during any period where such failure or delay is caused by strike, riot, fire, flood,
natural disaster, or other similar cause beyond such party's control, provided that such party gives
prompt written notice of such condition and resumes its performance as soon as possible.
12. Severability: If any provision(s) of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The provisions of this Agreement shall be enforceable to the extent permissible under the laws of
the State of Washington.
13. No Implied Waivers: No failure or delay by Azteca Systems or Licensee in enforcing any
right or remedy under this Agreement shall be construed as a waiver of any future or other
exercise of such right or remedy by Azteca Systems.
14. Order of Precedence: Any conflict between the terms ofthis License Agreement and any
Purchase Order or other terms shall be resolved in favor of the terms of this License Agreement.
15. Governing Law: This Agreement, entered into in the County of Clallam shall be construed
and enforced in accordance with, and be governed by, the laws of the State of Washington without
reference to conflict of laws principles. The parties hereby consent to the personal jurisdiction of
the courts of this county and waive their rights to change venue.
16. Termination for Convenience: In the event that either funding from the Licensee or other
sources is withdrawn, reduced, or limited, or the authority of the Licensee to perform any of its
duties is withdrawn, reduced, or limited in any way after the Effective Date of this Agreement
and prior to normal completion, the parties shall have the authority to exercise the Termination
for Convenience option to terminate this Agreement, in whole or in part. If a party to this
Agreement chooses to terminate for convenience that party may do so by thirty (30) days written
notice to the other party.
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Software License Agreement, Page 5
. .
If this Agreement is terminated for convenience, the Licensee is only liable for payment required
by the terms of this Agreement for services rendered or software received and accepted prior to
the Effective Date of termination.
Also, set forth elsewhere in this Agreement are specific provisions which allow the parties to
terminate this Agreement for convenience (see Exclusive Remedy and Limitation of Liability
provision).
17. Mediation Clause: Azteca Systems and Licensee will attempt to settle any claim or
controversy arising out of this Agreement through consultation and negotiation in good faith and
a spirit of mutual cooperation. If those attempts fail then the dispute will be mediated by a
mutually acceptable mediator to be chosen by Azteca Systems and the Licensee within thirty
(30) days after written notice by one of the parties demanding non-binding mediation. Neither
party may unreasonably withhold consent to the selection of a mediator. Azteca Systems and the
Licensee will share the cost of the mediation equally. By mutual agreement, however, Azteca
Systems and Licensee may postpone mediation until both parties have completed some specified
limited discovery about the dispute. The parties may also agree to replace mediation with some
other form of non-binding alternate dispute resolution procedure ("ADR").
Any dispute which cannot be resolved between the parties through negotiation or mediation
within two (2) months of the date of the initial demand for it by one of the parties may then be
submitted to a court of competent jurisdiction in the County of Clallam, Washington. Both
Azteca Systems and Licensee consent to jurisdiction by such a court. The use of any ADR
procedures will not be considered under the doctrine of latches, waiver or estoppel to affect
adversely the rights of either party. Nothing shall prevent either of the parties from resorting to
the judicial proceedings mentioned in this paragraph if (a) good faith efforts to attempt
resolution of the dispute under these procedures have been unsuccessful; or (b) interim relief
from the court is necessary to prevent serious and irreparable injury to one of the parties or
others.
18. Entire Agreement: This Agreement constitutes the sole and entire agreement of the parties
as to the matter set forth herein and supersedes any previous agreements, understandings, and
arrangements between the parties relating hereto. Except as otherwise expressly provided herein,
any Amendments to this Agreement must be in writing and signed by an authorized representative
of each party.
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Software License Agreement, Page 6
. .
. .
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective, valid,
and binding upon the parties as of the date below as executed by their duly authorized
representatives.
Accepted and Agreed:
City of Port Angeles, W A
(Licensee)
Azteca Systems, Inc.
B:1rv~~u
Authorized Signature
By: ~ ~~
Authorize ignature
Printed Name:
Gary Braun
Printed Name: Brian L. Haslam
Title:
Mayor
Title: President
Date: r nJr~ I ~D'- )@ll
Date: P:\njaJd ,I.o'}~!
Attest:
Witness:
By: ~D ~ ~^'-- BY:~I~" ^ 0 5tJe.-'l.Jl.a~
Becky Up , Cl Clerk
Approved as to form:
By: ~:u/
William Bloor, City Attorney
. .
1/27/2009
Software License Agreement, Page 7
5. 9t:fl., 7
Azteca Systems, Inc
11075 South State St
SUite 24
Sandy, Utah 84070
Q!~orks~cil"
Phone (801) 523-2751
FAX (801) 523-3734
Emall. mfo@cltyworks com
http //www.cltyworks com
CITYWORKS @
Update & Support Agreement
Contract No. C140309
This agreement (Agreement) is between City of Port Angeles, W A (hereafter the User),
as specified in paragraph 9.1, and Azteca Systems, Inc. (hereafter Azteca Systems), a
Utah corporation, with its principal place of business at 11075 South State Street, Suite
#24 Sandy, Utah, 84070. Azteca Systems and the User have entered into a license
agreement with respect to use of The Cityworks Software (the "Cityworks Software
License Agreement"); and User also desires to secure software Cityworks update and
support services from Azteca Systems with respect to such Software as more specifically
enumerated in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 "Covered Software" shall mean the particulai S6ftware, scripts, interfaces and
custom code identified in paragraph 9.3.
1.2 "Custom Applications" shall mean any scripts, interfaces, reports or program
code requested by the Licensee, other than Program Modifications to the Cityworks
applications that provide specific functionality uniquely designed for the Licensee.
Any Custom Applications delivered to Licensee shall NOT become part of the
Licensed Software unless otherwise specified in section 9.3. The Custom
Applications scripts, interfaces, reports and program code shall be provided to the
client as a deliverable and client shall have full ownership rights for the Custom
Applications. However, Azteca Systems shall retain the right to utilize, modify and
enhance the scripts, interfaces, reports or program code of the Custom Applications
as Azteca Systems deems appropriate.
1.3 "Effective Date" shall mean the date on which User receives the Software
Cityworks software from Azteca Systems in accordance with the Cityworks Software
License Agreement, Contract No. C140309, between User and Azteca Systems dated
[[g..nll(~ l~tJ€>'P,I. M.A
1.4 "Licensed Software" shall mean the particular Software identified in the
Cityworks Software License Agreement.
1/27/2009
Update & Support Agreement, Page - 1 -
1.5 "Program Fixes" shall mean minor corrections to the Licensed Software to
correct deviations in the Licensed Software. Any Program Fixes delivered to User
shall become part of the Licensed Software under the Cityworks Software License
Agreement.
1.6 "Program Modifications" shall mean new versions of or additions to the
Licensed Software, which adds to or alters the function( s) of the Licensed Software
and new modules or products adapted to interface with the Licensed Software and add
to or alter the function(s) of the Licensed Software, requested by the User. Any
Program Modifications delivered to User shall become part of the Licensed Software
under the Cityworks Software License Agreement.
1.7 "Product Updates" are Program Fixes, Program Upgrades and Program
Modifications.
1.8 "Program Upgrades" shall mean new versions of, or additions to, the Licensed
Software prepared by Azteca Systems that improve its operating performance but do
not add to or alter its basic function(s). Any Program Upgrades delivered to User shall
become part of the Licensed Software.
1.9 "Software" shall mean Cityworks source code, machine-readable code, and
related documentation.
1.10 "Update & Support Period" shall mean the initial Update and Support period
commencing upon the Effective Date of this Agreement, as set forth in section 9.2,
and any subsequent twelve-month period.
1.11 "Update & Support Agreement" or "Agreement" shall mean this Update &
Support Agreement between Azteca Systems and User identified in paragraph 9.1, the
terms and conditions of which are hereby incorporated by reference.
2. SUPPORT
2.1 The services to be provided during the Update & Support Period include Azteca
Systems Product Updates to Azteca System's Cityworks applications including
Program Fixes, Program Upgrades and Program Modifications (not Custom
Applications). Azteca Systems will ensure upward compatibility for The Cityworks
Software applications within a reasonable timeframe for minor and major ESRI@
ArcGIS and Cityworks supported databases revisions. If identified as "Covered
Software", Azteca Systems will ensure upward compatibility within a reasonable
timeframe for Custom Applications when there are minor AreGIS and Cityworks
supported databases revisions (for example, from rev 9.1 to rev 9.2). Azteca Systems
will not ensure upward compatibility for Custom Applications when there are major
ESRI ArcGIS and Cityworks supported databases revisions (for example, from rev 9.x
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Update & Support Agreement, Page - 2 -
to rev 1 a.x), Azteca Systems will make all reasonable efforts to provide upward
compatibility.
2.2 Azteca Systems shall, with out additional charge (except as allowed for in
paragraph 3.4 and 7.3), during the term of this Agreement:
(a) Make all reasonable efforts to provide those Program Fixes, if any, that are
necessary to assure the Covered Software is functioning properly; provided User
provides Azteca Systems with written notice specifying particularity in narrative,
non-technical terms to the best of User staffs ability the apparent error in the
system and the manner in which the Covered Software is not functioning
properly (as provided in Section 8); and
(b) Deliver to User any Program Upgrades relating to the Covered Software made
available to others.
(c) Provide Telephone User Support, Email Support, Web Support, during normal
business hours Monday through Friday (excepting Holidays) and after hour
emergency support through messaging service, and other benefits deemed
appropriate by Azteca Systems (as set forth in Section 7).
(d) Implement and maintain a means of secure, remote direct network access
(VPN, Web-access, dial-up, etc) to the User's systems in order to perform
thorough remote diagnostics and effect remote repairs, upgrades, and fixes.
2.3 The following items, among others, however, are specifically excluded as
support services under this section of this Agreement:
(a) interpretation of program results;
(b) assistance with questions related to computer hardware and peripherals that are
not related to the use of the Covered Software;
(c) assistance with computer operating system questions not directly pertinent to the
Covered Software or Program Modifications;
(d) data debugging and/or correcting;
( e) services necessitated as a result of any cause other than authorized ordinary and
proper use by the User of the Covered Software, including but not limited to
neglect, abuse, unauthorized modification, unauthorized updates or electrical,
fire, water or other damage; and
1/27/2009 Update & Support Agreement, Page - 3 -
(f) consulting regarding Custom Applications created to function with the Covered
Software unless the Custom Application is identified as Covered Software in
paragraph 9.3.
3. CHARGES
3.1 For services hereunder, User shall pay Azteca Systems an annual fee. The annual
fee for the initial Update & Support Period is set forth in paragraph 9.2, and shall be
paid prior to the start of the initial Update & Support Period. The annual fee for
successive Update & Support Periods (twelve-month periods commencing upon the
anniversary of the initial Update & Support Period) shall become due prior to the end
of the preceding paid-up Update & Support Period.
3.2 Upon 90 days written notice, the fee for Update and Support Periods listed in
paragraph 9.2 subsequent to the third Update and Support Period may be adjusted by
Azteca to reflect increases in costs of providing the services described herein and/or to
reflect increases in the population, users, size, usage, and other factors of User;
provided, however, that (a) if the above factors remain constant the increase in the
pricing shall not exceed the Consumer Price Index and (b) if any such proposed cost
increase is in User's opinion excessive, User shall be entitled to terminate this
Agreement prior to the start of the applicable Update & Support Period and shall not
be liable for any further payment under this Agreement. Azteca will notify User of the
new pricing no later than 90 days prior to the annual renewal date of the year
preceding the year for which such adjusted pricing applies.
3.3 In addition to charges due under this Agreement, User shall pay amounts equal
to any sales tax, duties, or other consumption taxes, however designated, which are
levied or based upon such charges, or upon this Update & Support Agreement.
3.4 In the event User and Azteca Systems agree it becomes necessary for Azteca
Systems to be on-site to provide support for the Covered Software, the User will
reimburse Azteca Systems for reasonable and customary travel expenses directly
related to the on-site work. Azteca Systems shall provide an estimate and get the
prior approval of User before incurring any costs for which it shall seek
reimbursement from User under this Section. Any reimbursement shall be subject
to Azteca providing verifiable documentation of such expenses to User. User
reserves the right to require an audit of any such cost related records of Azteca to the
extent reimbursement has been made by User under the terms of this Section.
4. LIMITED WARRANTY
4.1 Azteca Systems will provide support services for the Cityworks Software,
Enhancements to Cityworks Software and Custom Applications created by Azteca
Systems identified as Covered Software in paragraph 9.3. The support services are
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Update & Support Agreement, Page - 4 -
provided as part of the Azteca Systems Update and Support services and will be in-
force for the duration of this Agreement. Update & Support Periods beyond the
initial Update & Support Period are renewable unless terminated as provided in
Section 6 below. The Update and Support Services consists of software and
documentation updates and access to technical support via telephone, emai1, web-
based (MyCityworks.com) and after hours support via pager as set forth in Section 2
above. The User will provide Azteca Systems in writing the names of the User
individuals who are authorized to contact Azteca Systems and request support
servIces.
4.2 Azteca Systems warrants that trained personnel employed or contracted by Azteca
Systems will perform the services performed hereunder in conformance with best
industry standards.
4.3 With respect to the services provided hereunder and to the extent permitted by
applicable law, this warranty is in lieu of all other warranties, whether written or oral,
express or implied, including without limiting the generality of the foregoing, any
warranty of non-infringement, merchantability or fitness for a particular purpose.
5. LIMIT A TION OF LIABILITY
5.1 The liability for Azteca Systems for damages arising under this Agreement shall be
limited to the fees actually paid by User to Azteca Systems for the current Update and
Support Period pursuant to Section 3 hereof. In no event shall Azteca Systems be liable
for any incidental, indirect, special, or consequential damages whatsoever (including but
not limited to lost profits) arising out of or related to the support and services provided
hereunder by Azteca Systems, even though Azteca Systems may have been advised,
know or should have known of the possibility of such damages, unless such damage is
caused directly by Azteca System's actual negligence.
6. TERM AND TERMINATION
6.1 The effective date of this Agreement, as set forth in section 9.2, shall continue
until terminated.
6.2 This Agreement shall be terminated upon termination of the Cityworks Software
License Agreement and, after the initial Update & Support Period, may be terminated
by either party upon 30 days' written notice prior to the end of the then current Update
& Support Period. If termination occurs during a successive Update & Support Period
for which the User has paid the renewal fee in full, Azteca Systems shall return a
prorated portion of the renewal fee for that period to the User.
7. PROCEDURES FOR ACCESSING SUPPORT
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Update & Support Agreement, Page - 5 -
7.1 All problem categories from routine, non-critical and critical that occur during
normal business hours shall procedurally occur as follows: 1) User's system
administration staff as first line of support, 2) Azteca Systems staff as the second
line of support. Azteca Systems will make all reasonable efforts to acknowledge all
requests for support during normal business hours within 4 hours.
7.2 Prior to calling Azteca Systems for support services, the User will first attempt
to isolate any problems that occur with the System. The User will try to reduce the
problem down to a specific software or system component. If it is determined that
the problem is The Cityworks Software component the User will first try and
resolve the problem without Azteca Systems' involvement. If the User cannot
resolve the problem or isolate the problem, the User will call Azteca Systems
directly.
7.3 For critical problems that occur outside of Azteca Systems' normal business
hours (8 AM to 5 PM, Mountain Time) and cannot be isolated and resolved by the
User, Azteca Systems will provide an after-hours phone number or pager number
that will forward the call or page to the currently assigned Azteca Systems support
staff. Azteca Systems will make all reasonable efforts to acknowledge and respond
to the request for support for critical problems that occur outside of normal business
hours within 4 hours of receipt of the call from a designated and authorized User
representative. Critical problems are defined as problems that cause several users to
be unable to perform their duties. Depending upon the type of problem, Azteca
Systems support staff may need to be sent from Azteca Systems offices to the User
location. Azteca Systems project management will confer with the User's
representative or project management before making this decision. The speed at
which remote Azteca Systems staff can respond may be limited by the driving time
or the airline flights that are available. The User will reimburse Azteca Systems for
all reasonable and customary travel expenses associated with resolving the problem
(pursuant to the provisions of paragraph 3.4). For routine and non-critical problems
the User will submit support requests during normal business hours.
7.4 For all problems involving The Cityworks Software component that are
resolved without Azteca Systems' involvement, the User will document the problem
and the resolution and send a report to Azteca Systems so that it can be tracked,
monitored, and historically recorded.
8. MISCELLANEOUS
8.1 Azteca Systems shall not be in default under this Agreement for its failure to
perform or its delay in performing any obligation under this Agreement (other than the
reimbursement of fees as set forth in paragraph 5.1) during any period of time during
which such delay is due to fire, flood, earthquake, strike, labor trouble or other
industrial disturbance, war (declared or undeclared), embargo, blockage, legal
prohibition or governmental action, riot, insurrection, damage, destruction or any other
1/27/2009
Update & Support Agreement, Page - 6-
cause beyond the control of Azteca Systems or any of its contractors preventing or
delaying the performance of such obligation, provided that such obligation shall be
performed immediately upon the termination of such cause preventing or delaying
such performance; and provided further that the sole effect of any delay by Azteca
Systems shall be a related delay in payment by the User pursuant to the relevant
schedule.
8.2 The illegality, invalidity or unenforceability of any provision of the Agreement
under the law of any jurisdiction shall not affect its legality, validity or enforceability
under the law of any other jurisdiction nor the legality, validity or enforceability of any
other provision. The provisions of this Agreement shall be enforceable to the extent
permissible under the laws of the State of Washington.
8.3 This Agreement constitutes the entire agreement between the parties with respect
to the subject matter; all prior statements, negotiations, and undertakings are
superseded hereby, and may not be amended, modified or supplemented except in a
writing executed by both parties, expressly purporting to amend this Agreement.
8.4 This Agreement may not be assigned by either party without the prior written
consent of the other party, which consent will not be unreasonably withheld. User
may not sublicense or encumber the Licensed Software without prior written consent
of Azteca Systems.
8.5 Section headings herein are for the sake of 90nvenience only and are not
intended to affect in any way the meaning of this Agreement or the related paragraphs.
8.6 This Agreement becomes effective only upon execution by both parties. One
fully executed copy of this Agreement shall be delivered by User to Azteca Systems
at its office in Sandy, Utah 84070.
8.7 Until further written notice, all payments and notices relevant to this Agreement
shall be sent to the following addresses:
Azteca Systems: Azteca Systems, Inc.
11075 South State St.
Suite 24
Sandy, UT 84070
User: The address set forth in paragraph 9.1.
1/27/2009 Update & Support Agreement, Page - 7-
9.
IDENTIFICATION AND AMOUNTS
9.1 (a) User Name: City of Port Angeles, W A
(b) User Contact: Michael Puntenney
Number and Street: 321 East Fifth Street. PO Box 1150
City/Province/Zip/Country: Port Angeles, W A 98362-0217
Phone: (360) 417-4802 Email: mpuntenn@cityofpa.us
9.2 User Agreement: Between Azteca Systems and the User dated:
(a) Effective Date 02/17/2009
(Software Delivery Date)
Initial fijj7-.;;:7-1
(b) Enterprise License annual fee (U&S included):
Initial jj 0:>-
02/17/2009 - 02/16/2010 (year 1)
02/17/2010 - 02/16/2011 (year 2)
02/17/2011 - 02/16/2012 (year 3)
02/17/2012 - 02/16/2013 (year 4)
02/17/2013 - 02/16/2014 (year 5)
$25,000.00
$25,000.00
$25,000.00
$25,000.00
$25,000.00
Pricing: Guaranteed per letter in Attachment A
(c) The dates in paragraphs (a) and (b) shall be modified by addendum to this
agreement to the effective date, as defined in the definitions, should the date of
receipt of software change.
9.3 (a) Description of Covered Software:
Citvworks Enterprise License
An Enterprise-wide (ELA), unlimited use license includes:
Cityworks Desktop, Cityworks Anywhere,
Cityworks Server MMS, Storeroom, Equipment
Manager, Metrics API.
Included applications can be installed on any number of
computers throughout the Enterprise or Department, and
have unlimited simultaneous use.
1/27/2009
Update & Support Agreement, Page - 8 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective,
valid, and binding upon the parties as of the date below as executed by their duly authorized
representatives.
Accepted and Agreed:
City of Port Angeles, W A
(D ser)
By: (C1~ Y:~~
Authoriz SIgnature
Printed Name: Gary Braun
Title:
Mayor
Date: [l]'!"l,.jDl-1 e(f J
Attest:
By:
Approved as to From:
By:
v~~
William Bloor, City Attorney
\ .
I .-
1/27/2009
By:
Printed Name: Brian L. Haslam
Title: President
Date: 0 1 ,ll~~dl 0 ~y:vy]
Witness
BY~~~O .-J~
Update & Support Agreement, Page - 9 -
Attachment A
Qt~orksQ~-~
Azteca Systems, Inc
11075 South Slate Street #24
Sandy. UT 84070
(801) 523-2751
(801) 523-3734 (fax)
January 15, 2009
Weston SolutIOns, Inc.
Greg Selby
PnncIpal Project Manager
190 Queen Anne A vc N
Suite 200
Seattle. W A 98109
Gregg
Azteca Systems IS commIttcd to the software IIcensmg & support co~ts specltied on
pages 34 -36 of the attached proposal for the City of Port Angeles;
Port_Angeles _ Cl'vlMS ]roposal- Weston pdf
As outhned 111 the proposal, Azteca Systems has offered a Moddled Enterpnse LIceme
Agreement 1'01 $25,000, Option 2 II1 the proposal This modified ELA includes unlimited
use of Cltyworks Server MMS, CItyworks Desktop, Cltyv,rorks Anywhere, Cltyworks
Storeloom, Cltyworks Equipment Manager and the Cltyworks Metncs API The modIfied
ELA prIce of S25,000 IS an annual renewable that IS guaranteed for three years. At
anytllne dunng the lIfe of the ELA, the City of Port Angeles Will have the opportumty to
uPbrrade to OptIon 3 as descrIbed and outlined ll1 the proposal
11m erell',.
/ ;
!
BrIan L. Haslam
President
1/27/2009
Update & Support Agreement, Page - 10 -
Computenzed Mamlemmce ManEJgenll,'nt System
City of Potl A/lfjeles
Pricing
I'n~1l1g for sol1ware and prote~sional SUYI":CS related to CMM~ 1n1plcmc11tation Pha.,e I me
included in the pnce form requested lIlthe RFP. I'llcing e"tl1nate~ ll)r professIOnal "erVICC$ arc
given in g'lod tanh based upon the mfornmtlOrl given b) the City 10 the Rl;P and related addenda.
Professional serYILC~ wtll bc inVOiced on a tunc aml1113terwls hdSis althe rates detDlled 111 Table
I IfaddItlonaI mflWIl111tlOn i~ ch"cnvered dUring project i11itlat]('n or at any time during tbis
project thm will matenally change these e~l1mates, \\iESTON \\'111 notd} lhe City irrunediately
\VESTON will not exceed the pm.:irlg eSlimatl.:s given Without wntten dllthonlaliun from the
City.
While preparing this proposal, \VESTON worked cxtensrvdy with Az[Cca to explore slllhvare
pricmg altemaltves that would best meet the nceds afthe ell)' both now and into Ihe fbreseeable
future. The pricing mcluded in the pnee form reflects the altematl\'C that WESTON
recommend~ l11llrdcr to maXlll1rle co~t clkcllve and timely implementatIOn of City works, ThIS
altcrnatl\'e pnl\ ide~ unlimited usage of' Cityworks Server Mr..'IS, Cltyworks Desktop MMS,
Cilywork'i Anywhere. Cityworb Storeroom, Cltyworks equipment Manager, and the Cityworks
Metrics APt. Combmed, these software toob WII! provide the most eos[ el1cctive and scalahle
CMMS platform for the City.
Azteca Entcrpnse Licensing Agreement'> provide unllll1lted IlS<lgC of' products named in the
agreement EtA alli)rn:ltlves conSidered include,
Azteca EtA Optwn I - 'i\20.000
CitYWOlks Desktop, Cilyworks Anywhere, Cityworks Storeroom, Cityworb EqUipment
Manager, Cltyworks Metric API
Azteca ELA Option 2 - $25,000 (Recommended)
Cltyworks MMS, Cityworks Dc,ktop, Cllywurks I\nywherc, Cityworks Storeroom,
CJtyworks Equipment !\lanager, Cityworks Metnc API
Azteca Standard ELA OptIOn 3 - S30,OOO
CitywOIks MivlS, Cltywurks P~'rmilling, Crtyworks Desktop, Cltyworks Anywhere.
Cilyworks StOleroom. Cltyw'orks Equipment Manager, Cityworks Meine API, CCTV
Interface, Pavement AnalYSIS Interface, SCf\'ice Request API
Note: Cltyworks MMS I:an be added to Option I anytime durmg lhe 3-year term of the ELA for
$50(J(J .
~
34
4 OecQm::.er 2008
1/27/2009
Update & Support Agreement, Page - II -
Compufenzeej Mamtenance Management System
City of Pori Angelds
Price Form
Price Furm
Dc~~ription _< Qtylllrs Cost Extended Total
Licensing (T)'pe/Dcscription)
Azteca Modified ELA $25,000 $25,000
Comment:.: ThIs IS a moddled venmm or Ancea's Entl'rprise License Agreement (described in
tlm. propo~al a,:; priclI1goptlo11 2)< It l11cludcs: unhmited deployment of City works Server
MMS, Cltyworks Desktop, Cityw\)rh Any\\<here, Cltyworks Slon:room. Cltyworks Eqlllpml'l1t
Manager and City\vorks Metnc., API.
Comments:
Professional Services
System Configuration 304 $1 03.16 $.~ 1.360
Comments: This pl1l:c represents a total for IhlS tusk, including D,min Farmer (~8 hour:,) and
Tyrone Ward (20X hours) and Keith Palmer (S hours) "[ he cost column reflcets the blended
hourly rate.
Trainjng-Adminj~tnltors 40 $150.00 $6,000.00
Comments:
Training-End U1>crs 32 $150.00 $4,800.00
Commems'
Additional Development to
meet project requirements.
Comments: No additional development is required In Phase L
Project Management and 80 $141.00
Administration
__J-
o
o
o
$11,280.00
COll1ment~.< ProJcct Managernend and Adnllnistration will be eonducled by Amah 13howmick
(72 hour~) and Dawn Madore (8 hours), The cost column rel1ects the blended houdy rate.
Data Migration =r 161~-~~15~.-!!,~L___. $3,600.00
Comments: WESTON wiII migrate \York order records provided by the City into the Cltyworks
database,
Implementation Planning 40 J SO $(),OOO.OO
C\lmments: WESTON \vll1 prepare a detailed plan !()r [llture phases or CMMS ImplementatIOn.
3S
4 [)ocemool 2000
1/27/2009
Update & Support Agreement, Page - 12 -
Computerized Mafnten[Jnce MiJnagement System
City of Port Angeles
AllnUH] ivlainccmmcc &. Support
for following years. (txplain
Pncing Model)
"'~-,,~"--,.... ~M..~"._ --
Comments: The Azteca Enlerpnse Licensing l\greement provides updatC' and support for all of
the products included in the agreement for one flat rate, Update and Support includes all major
and minor sot1ware updates as well as technical support.
Annual Malfltcnrl1lCl~ 1 ~l Year S - S -
Comments' Yom first yeur of Update and Support is included in )iOUf initial purchase jJrlce,
Annuall'v1all1tcnancc 2nd Ycar $ 25.000,00 S 25,000.00
Comments:
----n---~--.I-- ------ ---'-T~--- ]
Annual Maintenance 3rd Year $ 25,000.00 $ 25.000.00
Comments: t
Annual Maintcnum;c 4th Y car $ '25,000.00 $ 25,000.00
Comments:
Annual Maintenance 5th Year $ 25.000.00 $ 25,000.00
C',
--
Hardware, Operating System 11J1d D1ltabase Requirements:
Flease list all hardwllre and soji>vl/re rhot will he required by your system.
__n --
Comments: \VESTON'& proposal does not requite any specialized hardware or software that
the City docs not either already own or \-vill acquire in conjunction with its Enterprise GJS
Foundation project.
$ -
Suh Total $ 188,040.00
Tax $ -
L!~tal $ l88,O40.00
-' --'-----
Additional 01' Optional Costs
Travel and AccommoJat1OIls I $ -
I
Comml.:nts:
-- ------- l--n-- I ,-- I ---~---~
Cost ofaddilional modllle,> i $ --
sotlware to meet requirements
1
Sub Total $ --
l2!u $ -
r Total I ___n_
$ 188.040.00
3fi
.\ Decemb(l[ 2008
U27 i2009
Update & Support Agreement, Page - 13 -