Res 1088 - Comp Softwre Agmt
COUNCIL NO. 1344
RESOLUTION NO. 1088
A RESOLUTION ENTERING INTO A COMPUTER SOFTWARE AGREEMENT WITH
NEW WORLD SYSTEMS CORPORATION AND AUTHORIZING THE MAYOR TO SIGN
SAID AGREEMENT.
WHEREAS, the North Marion 9-1-1 Communications Center requested proposals
from computer software vendors to allow for enhanced 9-1-1 computer-aided dispatch,
and
WHEREAS, the 9-1-1 User Board has recommended that a contract with New
World Systems Corporation be executed, NOW, THEREFORE
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. That the City of Woodburn enter into a contract with New World
Systems Corporation, which is attached as Exhibit "A" and by this reference incorporated
herein.
Section 2. That the Mayor is authorized to sign said agreement on behalf of the
city. ~ ~
Approved as to form: f J.~ /)! 0 - I tI - r /
City Attorney Date
APPROVED' 1cuJ v[/ ~4f!1/
FRED W. KYSER, M R
Passed by the Council
October 28, 1991
Submitted to the Mayor
October 29, 1991
Approved by the Mayor
October 29, 1991
Filed in the Office of the Recorder
October 29, 1991
ATTEST: 0~ /~-A..
Mary Ten , City Recorder
City of Woodburn, Oregon
Page 1 - COUNCIL BILL NO. 1344
RESOLUTION NO. 1088
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:'W WORLD SYSTEMS
3270 W. Big Beaver Rd. Suite 300 Troy, MI 48084 (313) 649-7100
October 9, 1991
SOFfW ARE LICENSE AND SERVICES AGREEMENT
This AGREEMENT is between New World Systems Corporation (NWS), a Michigan Corporation and
CITY OF WOODBURN, OREGON (CUSTOMER). This AGREEMENT sets forth the terms and conditions
under which NWS will license to CUSTOMER the use of the LICENSED PRODUcrS as defined herein.
This AGREEMENT further sets forth the terms and conditions by which NWS shall provide S,!Ipport Services,
including Software Installation, Customer-Assisted education and training, Software modifications and enhancements,
and Consultation services as more fully described in Exhibit B ("SUPPORT SERVICES AND FEES
AUTHORIZATION").
This AGREEMENT further sets forth the terms and conditions of your STANDARD SOFTWARE
MAINTENANCE AGREEMENT (SSMA) as more fully described in Exhibit C ("STANDARD SOFTWARE
MAINTENANCE AGREEMENT").
This AGREEMENT further sets forth the terms and conditions by which third parties may obtain access to NWS
Confidential and/or proprietary infonnation through CUSTOMER (see Exhibit D).
The Licensed Products and Services provided hereunder are governed by the terms and conditions of this
fourteen (14) page AGREEMENT and the attached Exhibits A, B, C and D. NWS and CUSTOMER
acknowledge that each of them has read this AGREEMENT, together with the attached Exhibits A, B, C and
D, understands them, and agrees to be bound by their terms and conditions. Further, both parties agree that
the complete and exclusive statement of the agreement between the parties relating to the matters referenced
herein is set forth in this AGREEMENT and the attached Exhibits A, B, C, and D. This AGREEMENT
supersedes all prior representations, commitments or other prior agreements, oral or written, and neither
party is relying upon the expertise of the other in entering into this AGREEMENT.
ACKNOWLEDGED AND AGREED TO BY:
NEW WORLD SYSTEMS CORPORATION
(NWS)
CITY OF WOODBURN. OREGON
(Customer)
By:
Larry D. Leinweber, President
By:
Authorized Signature,
BY:~&
Authorized Signature,
9-/-1 ~
Title
Date:
Date: October 29, 1991
CONFIDENTIAL
Page 1 of 14
I. DEFINITIONS. The following tenns as defined below are used throughout this Agreement:
1. "LICENSED STANDARD SOF1WARE": The
current version of NWS standard application software
package(s) (in machine readable code and, if
applicable, the related source code) listed on Exhibit
A.
2. "UPDATES": Any revised and/or corrected
versions of tbe LICENSED STANDARD
SOFTWARE provided under this AGREEMENT.
3. "UPGRADES": Any enhanced and/or improved
versions of tbe LICENSED STANDARD
SOFIW ARE provided under this AGREEMENT and
released after tbe execution of this AGREEMENT.
4. "CUSTOM SOF1WARE": Any software
(programs or portions of programs) developed by
NWS specifically for CUSTOMER's own use.
5. "LICENSED SOF1WARE": The LICENSED
STANDARD SOFTWARE, UPDATES,
UPGRADES, and CUSTOM SOFIW ARE provided
under this AGREEMENT.
6. "DOCUMENTATION": User Manuals and other
written instructions (such as Product Bulletins) related
to the use of the LICENSED SOFTWARE.
7. "AUTHORIZED COPIES": Except as provided in
Paragraph 2.4 of the GENERAL TERMS AND
CONDITIONS, the only authorized copies of the
LICENSED SOFTWARE and DOCUMENTATION
are the two copies of each application software
package defined in this Paragraph. They are:
(i) tbe single copy of the LICENSED
SOFIW ARE in binary machine readable
code and, if applicable, the source code, and
the single copy of the related
DOCUMENTATION delivered by NWS
under this AGREEMENT; and
(ii) a second copy made by CUSTOMER as
authorized in Paragraph 2.3 of the
GENERAL TERMS AND CONDITIONS
for emergency processing needs only.
8. "LICENSED PRODUCTS": The LICENSED
SOFIWARE, the related DOCUMENTATION, and
the AUTHORIZED COPIES of the foregoing.
9. "CUSTOMER LIAISON": A responsible person
employed and assigned by CUSTOMER to act as
liaison between CUSTOMER and NWS for the
duration of this AGREEMENT. The responsibilities
and requirements of the CUSTOMER LIAISON are
further set forth in Paragraph 4.1(iii) of the
GENERAL TERMS AND CONDITIONS. The
CUSTOMER LIAISON assigned by CUSTOMER
shall be identified in writing by CUSTOMER within
ten (10) days of execution of this AGREEMENT.
10. "SSMA": The NWS Standard Software
Maintenance Agreement as set forth in Exhibit C.
11. "COMPUTER": The singte IBM AS/400 model
10 processor, to be located at:
CITY OF WOODBURN
270 MONTGOMERY STREET
WOODBURN, OREGON 97071
CUSTOMER shall identify in writing the serial
number of the COMPUTER within ten (10) days of
receipt of tbe COMPUTER or within ten (10) days of
execution of this AGREEMENT, whichever is later.
In the event CUSTOMER wishes to relocate the
COMPUTER, it must so notify NWS of the new
location in writing prior to the relocation.
12. "CONFIDENT1AL INFORMATION": Information
disclosed or obtained by CUSTOMER in connection
with, and during the term of, this AGREEMENT and
designated as 'CONFIDENTIAL" by NWS at the
time of disclosure. CONFIDENTIAL INFORMA-
TION shall not mean any information which was
previously known to CUSTOMER without obligation
of confidence or without breach of this AGREE-
MENT, is publicly disclosed either prior or subse-
quent to CUSTOMER's receipt of such information,
or is rightfully received by CUSTOMER from a third
party without obligation of confidence.
CONFIDENTIAL
Page 2 of 14
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II. GENERAL TERMS AND CONDITIONS
1.0 OWNERSHIP.
1.1 CUSTOMER acknowledges and agrees that the UCENSED PRODUCTS and aH copyright, trade
secrets and other proprietary rights, title and interest therein, are the sole property of NWS or its
licensors, and CUSTOMER shall obtain no right, title or interest in the UCENSED PRODUCTS
by virtue of this AGREEMENT other than the nonexclusive right to use the UCENSED
PRODUCTS as set forth below. Without limiting the foregoing, CUSTOMER specifically
acknowledges and agrees that NWS exclusively owes, or is the licensor of, the UCENSED
SOFTWARE, or any other Software developed for CUSTOMER, and/or provided to CUSTOM-
ER, by NWS under this AGREEMENT.
1.2 The license to use any CUSTOM SOFTWARE provided under this AGREEMENT, if any, is
included in this license. NWS shaH have the right to use any data processing ideas, techniques,
concepts, and/or know-how acquired by it in the performance of services under this AGREE-
MENT including the development of CUSTOM SOFTWARE for the advancement of its owe
technical expertise and the performance of other Software License and Service Agreements or any
other applicable agreements. NWS shall have, without restriction, the right to use aH programs,
procedures, information, and techniques that are publicly available, obtained or obtainable from
third parties and/or developed independently by NWS without specific reference to CUSTOMER's
organization. Under no circumstances shaH CUSTOMER be aHowed to seH, copy, or distribute
the UCENSED SOFTWARE, including any CUSTOM SOFTWARE, to any third party.
2.0 SINGLE USE LICENSE.
2.1 In consideration of CUSTOMER's payment of the license fees specified in Exhibit A and any
support and maintenance fees payable hereunder, NWS grants CUSTOMER a perpetual, personal,
nontransferable and nonexclusive right and license to use the UCENSED PRODUCTS on the
COMPUTER. CUSTOMER represents and warrants and agrees that the UCENSED PRODUCTS
shaH be used only on the COMPUTER and only for the benefit of CUSTOMER. With payment
of license fees for source code, CUSTOMER shall have the right and license to use, enhance, or
modify the UCENSED SOFTWARE only for CUSTOMER's owe use and only on the
COMPUTER.
2.2 Upon availability of equipment, NWS shaH deliver to CUSTOMER one copy of the user manual
and one copy of the binary code (in machine readable form compatible with the systems
configuration selected on storage media supplied by CUSTOMER) for each application of
UCENSED SOFTWARE installed. Where applicable, NWS shall also deliver one copy of the
source code of the UCENSED SOFTWARE.
CONFIDENTIAL
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2.3 In order to assist CUSTOMER in the event of emergency processing needs caused by fire, flood,
or power failure, or other act of God, CUSTOMER is authorized to make and remove one
AUTHORIZED COPY of each application of the LICENSED SOFTWARE and one AUTHO-
RIZED COPY of the related DOCUMENTATION from CUSTOMER's premises specified in the
DEFINITIONS above so long as all AUTHORIZED COPIES are locked in a secure location with
access limited to the CUSTOMER LIAISON. No other copies shall be made by CUSTOMER
or another obtaining access through CUSTOMER. CUSTOMER, both through its own employees
and/or through other contractor/service organizations, agrees not to make any unauthorized copies
and not to distribute copies of any LICENSED PRODUCT in any form, including magnetic
media, to any party, individual, or organization. This restriction on making and distributing copies
of any LICENSED PRODUCT, includes without limitation, copies of the following:
(i) Program libraries, both source or object code;
(ii) Operating control language;
(iii) Test Data or sample files;
(iv) Program Listings; and
(v) DOCUMENTATION.
2.4 Upon written request by CUSTOMER, and with written pernusslOn by NWS, additional
AUTHORIZED COPIES may be made for CUSTOMER's internal use only.
3.0 CORRECTION AND SOF1WARE MAINTENANCE ON STANDARD SOF1WARE.
3.1 For a period of ninety (90) days after the date the LICENSED STANDARD SOFTWARE is
installed, NWS provides program corrections and maintenance for LICENSED STANDARD
SOFTWARE at no charge. The services provided under this Paragraph as those set forth in
Paragraph 2 of the SSMA (Exhibit C). As part of this AGREEMENT, CUSTOMER is also
obtaining a SSMA. The SSMA provides a continuation of LICENSED STANDARD SOFT-
WARE maintenance and other support services after the ninety (90) day period has passed. The
SSMA shall begin on the ninety-first (91sl) day after the LICENSED STANDARD SOFTWARE
is installed.
3.2 The procedure for requesting LICENSED STANDARD SOFTWARE correction service is as
follows:
(i) CUSTOMER shall submit in writing (with examples) each feature and/or report it
believes to be in error. All such submissions must be reviewed and approved by the
CUSTOMER LIAISON before delivery to NWS;
(ii) The CUSTOMER LIAISON and a NWS Manager will review as may be required the
LICENSED STANDARD SOFTWARE correction requests. Valid requests will be
serviced at no charge, A valid request is a feature and/or report which is not working
as designed. Invalid requests will not be serviced. An invalid request includes a feature
and/or report which is working as designed or a feature not included as part of the
LICENSED STANDARD SOFTWARE;
(iii) Upon a cost estimate and CUSTOMER approval, requests for features and/or reports
which are not covered by this correction service will be billed to CUSTOMER.
CONFIDENTIAL
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3.3 This correction service does not apply to any of the folloWing:
(i) situations where the LICENSED STANDARD SOFTWARE has been changed by anyone
other than NWS personnel;
(ii) situations where CUSTOMER's operations error causes incorrect information or reports
to be generated; and
(iii) invatid requests.
4.0 CUSTOMER COMMITMENTS AND RESPONSIBILITIES.
4.1 In order for this AGREEMENT to result in a successful installation and user operation, and in
addition to all other CUSTOMER obligations set forth herein, CUSTOMER hereby commits to
and must comply with the following responsibilities:
(i) CUSTOMER shall make direct payment(s) to IBM or other appropriate parties for the
purchase, lease, or rental of the hardware equipment components necessary for this
AGREEMENT;
(ii) CUSTOMER shall provide the management interface and support necessary to
successfully complete the installation of LICENSED SOFTWARE. This includes policy
and procedure reviews, priority setting, and timely involvement in supporting a change
in CUSTOMER's environment where systems, people, or the like, are being restructured
and/or the organizations are being modified;
(iii) CUSTOMER shall assign a responsible person defined as the CUSTOMER LIAISON to
act as the liaison between CUSTOMER and NWS for the duration of the LICENSED
SOFTWARE installation. In the event CUSTOMER must replace the CUSTOMER
LIAISON because of an employee termination or at NWS' request, CUSTOMER is
required to assign a new CUSTOMER LIAISON within 30 days of the termination or
request. NWS is not responsible for any delay caused directly or indirectly by the
reassignment of the CUSTOMER LIAISON. In addition to other liaison activities, the
CUSTOMER LIAISON shall:
(a) be responsible for obtaining responses to all of NWS' requests for
information;
(b) have authority to sign for and obligate CUSTOMER to any changes relating
to design, costs and delivery dates; and
(c) have authority to sign acceptance lest documents if requested by NWS
evidencing systems performance of each application of the LICENSED
SOFTWARE pursuant to the application systems test procedures specified in
Paragraphs 9.1 and 9.2.
(iv) CUSTOMER shall provide timely participation in systems definition, detail design, and
direction of user data collection, where appropriate;
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(v) At NWS' request when appropriate, CUSTOMER shall approve the overall system design
according to the implementation plan;
(vi) CUSTOMER shall edit and control the master file data to assure accurate systems
performance;
(vii) CUSTOMER shall provide qualified persannelto be trained on how to operate and how
to utilize the output from the LICENSED SOFTWARE installed;
(viii) CUSTOMER shall provide appropriate and competent employees for training at the times
scheduled provided reasonable notice is giveo;
(ix) CUSTOMER shall provide adequate access to reasonable office and desk space for NWS
employees at no charge to NWS; and
(x) CUSTOMER shall comply with all ootice and all other CUSTOMER requirements of this
AGREEMENT including, without limitation, those listed in paragraphs 4.2, 5.1, 6.1,
6.2,6.3,7.2,8.1,8.2,8.3,9.1,9.2,9.3,12.1,13.1, 13.3, 14.1, 17.1, 17.2, 18.1 and
19.2.
4.2 This AGREEMENT requires the cooperation and performance of both NWS and CUSTOMER.
To the extent CUSTOMER imposes additional requirements on NWS for services other than those
expressly provided in this AGREEMENT, NWS retains the right to make additional price
adjustments and/or any other adjustments which may be necessitated. In the event CUSTOMER
does not fulfill its responsibilities and/or fails to cooperate with NWS as specified in this
AGREEMENT and in addition to any other remedies available to NWS, NWS may, at its option,
rightfully terminate any further performance on this AGREEMENT, retain all fees collected to
that date, collect and hold CUSTOMER liable for all unpaid LICENSED SOFTWARE fees listed
on Exhibit A, and all unpaid fees for service and support performed to date.
5.0 TRAINING AND INSTALLATION SUPPORT SERVICES.
5.1 AI; provided for in Exhibit B and concurrent with timely license and service fee payments, NWS
shall make available to CUSTOMER qualified representative(s) who will provide training and
other support services for each application of the LICENSED SOFTWARE. These services may
include .software overviews and detail reviews for each application of the LICENSED
SOFTWARE installed. These support services may be held at our national headquarters in Troy,
Michigan and/or at CUSTOMER's premises. The parties shall mutually agree to a reasonable
time table and site for the training and support services to be performed.
6.0 BIUING AND AS/400 MODEL UPGRADE CHARGES.
6.1 The attached Exhibits set forth the manner in which fees and payments shall be allocated and made
under this AGREEMENT. NWS shall have the right to add a service charge of 1.5% per month
on past due amounts. CUSTOMER agrees that it shall pay such service charges applied to such
amounts.
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6.2 In the event CUSTOMER decides to upgrade the computer model of AS/400, CUSTOMER will
pay at the time of upgrade the difference between the standard software charges for the present
AS/400 model (see Section I, number 11) and the standard software charges for the upgraded
AS/400 model. Software maintenance charges provided for under Exhibit C shall be increased
according to the upgraded AS/400 charges 00 the next annual billing date after the upgrade occurs.
With said payments, CUSTOMER's license shall be transferred to permit use of the LICENSED
SOFTWARE on the upgraded AS/400 model.
6.3 CUSTOMER agrees to immediately notify NWS when AS/400 models will be upgraded and to
pay promptly wheo invoiced.
7.0 PERSONNEL.
7.1 During the entire duration of this AGREEMENT and for twelve (12) months thereafter, each party
agrees not to solicit or hire current or former employees of the other without the other's prior
written consent.
7.2 NWS shall exercise its best efforts to furnish competent employees for service under this
AGREEMENT. CUSTOMER shall notify NWS ifit believes a NWS employee is unsatisfactory.
Given adequate cause to believe the NWS employee is unsatisfactory for the services to be
performed hereunder, NWS shall remove that employee from the project upon receipt of
notification from CUSTOMER and replace him/her with a competent employee satisfactory to
CUSTOMER as soon as reasonably possible.
8.0 CONFIDENTIAL INFORMATION/NON-DISCLOSURE AGREEMENT.
8.1 Subject to the requirements of the Freedom of Information Act (FOIA) and/or other comparable
applicable state law, each party shall hold all CONFIDENTIAL INFORMATION in trust and
confidence for the party claiming confidentiality and not use such CONFIDENTIAL INFORMA-
TION other than for the benefit of that party. The other party agrees not to disclose any such
CONFIDENTIAL INFORMATION, by publication or othetwise, to any other person or
organization. To the extent CUSTOMER needs to disclose or make available CONFIDENTIAL
INFORMATION to a person or organization whose services CUSTOMER requires for purposes
of carrying out the terms of this AGREEMENT or as NWS othetwise agrees in writing,
CUSTOMER agrees that it shall require the person and/or organization to execute and deliver to
NWS prior to disclosure a NonDisclosure agreement in the form and manner as set forth in
Exhibit D. Failure by CUSTOMER to comply with this restriction on third party access will
allow NWS to recover all damages and legal fees incurred in the enforcement of this provision,
in addition to any other legal remedies available to NWS.
8.2 CUSTOMER hereby acknowledges and agrees that all LICENSED PRODUCTS are CONFIDEN-
TIAL INFORMATION and proprietary to NWS. CUSTOMER agrees, in addition to the
foregoing, that it shall implement all reasonable measures necessary to safeguard NWS' (or its
licensor's, as appropriate) ownership of, and the confidentiality of, its LICENSED PRODUCTS,
including withoutlimilation the following measures:
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(i) After obtaining NWS' permission, CUSTOMER sball allow access to the LICENSED
PRODUCTS to only those employees, agents and third parties who require access and
only to the extent necessary to perform CUSTOMER's internal processing needs; and
with respect to agents or third parties, only after he/she bas executed, and CUSTOMER
bas delivered to NWS, an appropriate Non-Disclosure Agreement (see Exhibit D);
(ii) CUSTOMER shall cooperate with NWS in the enforcement of the conditions set forth in
the attached Non-Disclosure Agreement;
(iii) CUSTOMER shall not permit removal of copyright or confidentiality labels or
notifications;
(iv) CUSTOMER shall not attempt to disassemble, decompile or reverse engineer the
LICENSED SOFTWARE; and
(v) CUSTOMER shall not duplicate or reproduce the LICENSED SOFTWARE or
DOCUMENTATION except as permitted in paragraphs 2.3 and 2.4 of the GENERAL
TERMS AND CONDITIONS.
8.3 CUSTOMER acknowledges that use or disclosure of CONFIDENTIAL INFORMATION in
violation of this AGREEMENT may cause irreparable barm to NWS and/or its licensor(s).
9.0 SYSTEMS PERFORMANCE TEST CRITERIA.
9.1 Successful systems performance will be determined by either Systems Performance Criteria I or
Systems Performance Criteria 2 (listed in 9.2 and 9.3), whichever occurs first, for each
application of LICENSED SOFTWARE installed:
9.2 Systems Perfonnance Criteria 1:
(i) The successful entry and editing of a representative sample of transactions concurrently
entered from multiple terminals using NWS outIined procedures and controls;
(ii) The successful processing of a representative sample of file maintenance transactions for
the master files; and
(iii) The successful generation of standard output reports using NWS outlined procedures and
!:ontrols.
Acceptance of each application of LICENSED SOFTWARE installed shall occur upon successful
completion of the systems test procedure as specified above. Both parties shall jointly conduct the
systems test procedure for each application of LICENSED SOFTWARE. NWS and CUSTOMER
shall mutually agree on the location and test date of each application deliverable. CUSTOMER
sball not unreasonably delay the systems test procedure. In the event that NWS and CUSTOMER
cannot agree on a test date or location, then NWS may provide CUSTOMER with reasonable
notice of the place and date the LICENSED SOFTWARE is to be tested. If CUSTOMER delays
the start of the system test procedure for more than fourteen (14) calendar days beyond the
designated lest date, then acceptance shall be deemed to have occurred for that application of
LICENSED SOFTWARE deliverable on the fifteenth (15th) day after the designated test date.
CONFIDENTIAL
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9.3 Systems Perfonnance Criteria 2:
Acceptance of each application of LICENSED SOFTWARE installed shall occur based on
CUSTOMER's use of the application of LICENSED SOFTWARE to produce data or output
which is distrihuted for actual use and/or otherwise utilized as "live data" (e.g. payroll checks,
water bills, tax bills, general ledger reports, data base searches and/or inquiries, police reports,
fire reports, ele.).
10.0 WARRANTIES
10.1 NWS warrants that the LICENSED STANDARD SOFTWARE will perform as represented in its
user manuals based on the then-current release of LICENSED ST ANDARD SOFTWARE.
10.2 NWS warrants that it possesses the necessary intellectual rights to license to CUSTOMER the
LICENSED SOFTWARE provided hereunder.
11.0 DISCLAIMER, RELEASE AND LIMITATION OF LIABILITIES
11.1 THE WARRANTIES SET FORTH IN PARAGRAPHS 10.1 AND 10.2, AND THE
OBLIGATIONS AND LIABILITIES OF NWS AND THE RIGHTS AND REMEDIES OF
CUSTOMER SET FORTH IN TIllS AGREEMENT ARE EXCLUSIVE. CUSTOMER
HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES,
OBLIGATIONS, REPRESENTATIONS AND LIABILITIES OF NWS NOT SPECIFICAL-
LY WARRANTED HEREIN, TOGETHER WITH ALL RIGHTS, CLAIMS AND
REMEDIES OF CUSTOMER AGAINST NWS, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR
IMPERFECTION IN ANY LICENSED PRODUCT, INCLUDING BUT NOT LIMITED TO:
(i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE;
(ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(iii) ANY OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES
(a) FOR LOSS OF USE, REVENUE OR PROFIT; AND/OR
(b) FOR ANY INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES
AND/OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT
LIMITATION, ANY LIABILITY OF CUSTOMER TOA THIRD PARTY.
11.2 FOR ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT,
INCLUDING AS AN INDEMNITOR TO A THIRD PARTY, NWS' LIABILITY FOR
DAMAGES, REGARDLESS OF FORM OF ACTION, IS LIMITED TO THE RECOVERY
OF THE EXHIBIT A SOFTWARE LICENSE FEES PAID TO NWS FOR EACH
APPLICATION LICENSED SOFTWARE LISTED ON EXHIBIT A.
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11.3 IN THE EVENT THAT, FOR WHATEVER REASON, IT IS DETERMINED A LIMITA-
TION OF LIABILITY AND/OR REMEDY CONTAINED HEREIN FAILS OF ITS
ESSENTIAL PURPOSE, THEN THE PARTIES AGREE THAT THE EXCLUSION OF
INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES IS STILL EFFECTIVE.
11.4 IT IS AGREED THATNWS MAKES ABSOLUTELY NO WARRANTY, UNDERTAKING
OR REPRESENTATION OTHER THAN THOSE EXPRESSLY STATED IN TIllS
AGREEMENT, AND THAT CUSTOMER IS NOT RELYING ON ANY OTHER
REPRESENTATIONS OR STATEMENTS MADE BY OR ON BEHALF OF NWS.
12.0 PERFORMANCE BOND.
12.1 In those situations where CUSTOMER requests NWS to provide a Performance Bond, NWS shall
provide a Performance Bond for the cost of the UCENSED STANDARD SOFTWARE listed on
Exhibit A. CUSTOMER shall pay for the cost of the Performance Bond. CUSTOMER also
agrees to pay promptly for the Performance Bond when invoiced by NWS.
13.0 IERMINATlON.
13.1 Tennination - By CUSTOMER: In the event NWS does not satisfactorily complete the
installation of software in accordance with the terms of this AGREEMENT, CUSTOMER may
at its option terminate this AGREEMENT in ninety (90) days as follows:
(i) CUSTOMER shall notify NWS in writing of CUSTOMER's intention to
terminate this AGREEMENT in ninety (90) days;
(ii) The termination notice shall provide a detailed documentation and definition
(with examples) of any deficiencies claimed;
(iii) NWS shall have ninety (90) days from receipt of said notice to correct any
actual deficiencies in order to satisfy the terms of this AGREEMENT;
(iv) CUSTOMER agrees to cooperate with NWS at all times and shall use best
efforts to apply sound management practices to resolve any claimed deficiencies
-- including reassignment of personnel by both parties if necessary to improve
the working relationships;
(v) At the end of ninety (90) days unless the termination has been revoked in
writing by CUSTOMER, the AGREEMENT terminates.
13.2 Tennination - By NWS: In the event CUSTOMER fails to make prompt payments to NWS for
all invoiced LICENSED SOFTWARE and/or support services, or in the event CUSTOMER fails
to fulfill its responsibilities outlined in Paragraphs 4.1 and 4.2, then NWS may at its option
terminate this AGREEMENT as follows:
(i) NWS shall notify CUSTOMER in writing of its intention to terminate this
AGREEMENT;
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(ii) The terminatioo notice sball specify wbether the termination is for failure to
make prompt payment or for failure to fulfill its responsibilities;
(iii) The termination notice sball provide detail of the claimed deficiencies;
(iv) If the cited reason for termination is CUSTOMER's failure to make prompt
payment, CUSTOMER sball have ten (10) days from receipt of said notice to
make payment in full for all outstanding invoiced payments due;
(v) 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
AGREEMENT;
(vi) At the end of the applicable cure period, unless the termination has been
revoked in writing by NWS, the AGREEMENT terminates.
13.3 In the event of termination by either party, NWS sball continue to provide its services, as
previously scbeduled, through the termination date and the CUSTOMER shall continue to pay all
fees and charges incurred through the termination date as provided in Exhibits A, B, and C.
13.4 In the event neither party formally terminates this AGREEMENT, it naturally terminates wben
tbe obligations and responsibilities of both parties have been satisfactorily fulfilled.
13.5 Upon termination, for eacb application of LICENSED SOFTWARE provided hereunder and
unless CUSTOMER bas fully paid the Exhibit A license fees for the application of LICENSED
SOFTWARE in question, CUSTOMER sball return to NWS all copies of the applicable
LICENSED PRODUCTS provided to CUSTOMER under this AGREEMENT.
13.6 Nothing in tbis paragrapb on termination is intended to infer that either party bas or does not have
a claim for damages.
13.7 The Terms and Conditions relating to non-disclosure, confidentiality and other ongoing rights and
remedies survive termination, including without limitation, paragraphs 1.1, 1.2,7.1, 8.1, 8.2, 8.3,
11.1, 11.2, 11.3, 11.4, 14.1, 17.1, 17.2, 17.3, 17.4, 17.5, 19.1, 19.2,20.1,20.2,20.3,20.4
and 20.5 of the GENERAL TERMS AND CONDITIONS.
14.0 /NTEGRATION WIlli U.S. COPYRIGHT ACT.
14.1 In addition to all other provisions provided under this AGREEMENT, CUSTOMER agrees to be
bound by and to comply with any and all provisions of the U.S. Copyright Act (The Copyright
Act of /976, U.S.c. Sections /0/--810 (/976) as amended by 17 U.S. C. Sections /0/-8/0(/982)).
If a provision of the U.S. Copyright Act and this AGREEMENT conflict, the more restrictive of
the two applies. If it cannot be determined whicb is the more restrictive, then the provision within
tbis AGREEMENT sball apply.
CONFIDENTIAL
Page 11 of 14
TO. .. '--~--,--------
15.0 NWS AS INDEPENDENT CONTRACTOR
15.1 NWS is an independent contractor. The 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.
15.2 Each party shall be responsible for Workers' Compensation coverage for its own personnel. Each
party shall indemnify and hold the other harmless with respect to any claims or liabilities for
personal injury arising out of its own acts or omissions or those of its officers, employees, and/or
agents.
16.0 INSURANCE REQUIREMENTS
16.1 NWS shall not commence work under this AGREEMENT until it has obtained the insurance
required under this paragraph.
(i) Workers' Compensation Insurance: NWS shall procure and maintain during
the life of this AGREEMENT, Workers' Compensation Insurance for all of its
employees who engage in the work to be performed; and, in case any such work
is sublet, NWS shall require the subcontractor to provide similar insurance for
all of the latter's employees who engage in the work.
(ii) Liability and Property Insurance-Comprehensive Fonn: NWS shall procure
and maintain during the life of this AGREEMENT, Liability and Property
Damage Insurance in an amount not less than $1,000,000 on account of each
accident; and in an amount not less than $1,000,000 for each accident for
damage to property.
(iii) Automobile Liability Insurance: NWS will procure and maintain during the
life of this AGREEMENT, Hired and Non-Ownership Motor Vehicle Bodily
Injury and Property Damage Insurance in an amount not less than $500,000 for
injuries, including accidental death, to eacb person; and, subject to the same
limit for each person, in an amount not less than $500,000 for each accident;
and in an amount not less than $500,000 on account for each accident for
damage to property.
17.0 ARBITRATION.
17.1 Except for mailers in which the only dispute relates to unpaid fees or software charges, or which
are enforceable by injunction and/or other equitable remedies, including personnel recruiting
(paragraph 7.1), employee non-disclosure, confidentiality and/or the confidentiality paragraphs
(paragraphs 8.1 through 8.3 of GENERAL TERMS AND CONDITIONS), any controversy or
claim arising out of or relating to this AGREEMENT, or breach thereof, shall be settled in
arbitration in accordance with the rules then prevailing of the American Arbitration Association.
Judgment upon any award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
CONFIDENTIAL
Page 12 of 14
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17.2 As a condition precedent to arbitration, the parties agree that before beginning an arbitration
proceeding, the management of both parties shall have met at least two times in face-to-face
meetings in an effort to resolve any dispute or controversy through normal business management
practices. A minimum of one meeting shall take place at each party's offices or other mutually
agreeable location.
17.3 The arbitrators shall have no power or authority to add to or detract from this agreement of the
parties. The arbitrators shall have no authority to award damages over and above those provided
for in this Agreement and in any event shall not exceed the limitations set forth in paragraph 11.2,
even if the warranty and/or limitatioo of liability provisions set forth in this Agreement shall for
any reason whatsoever be held unenforceahle or inapplicable.
17.4 Neither party nor the arbitrators may disclose the existence or results of any arbitration hereunder,
except if the arbitration results in a Court imposed, judgment, the non-disclosure restriction is not
effective, but only to the extent the matter becomes a public record.
17.5 Each party shall bear its own costs in preparing for and during arbitration, except that the joint
costs of the actual arbitration proceeding shall be shared equally by the parties.
18.0 PATENT AND TRADEMARK INDEMNIFICATION.
18.1 NWS agrees to indemnify and save the CUSTOMER harmless from and against any and all
judgments, suits, costs, and expenses resulting from any alleged infringement of any patent or
copyright arising from the licensing of LICENSED SOFTWARE pursuant to this AGREEMENT.
18.2 CUSTOMER shall notify NWS in writing of such allegation within thirty (30) days of the date
upon which the CUSTOMER first receives notice thereof. Failure of the CUSTOMER to give
such notice shall relieve NWS of all obligations to indemnify CUSTOMER under Paragraph 18.1.
19.0 NOTICES.
19.1 Notices to CUSTOMER shall be deemed effective when sent by Registered or Certified U.S. Mail
to the business address of the CUSTOMER.
19.2 Notices to NWS shall be deemed effective when sent by Registered or Certified U.S. Mail to the
following address (or to any other address so specified by NWS):
New World Systems Corporation
3270 West Big Beaver, Suite 300
Troy, Michigan 48084
Attention: President
20.0 GENERAL.
20.1 This AGREEMENT is the entire agreement between the parties superseding all other communica-
tions, written or oral, between the parties relating to the subject matter of this AGREEMENT.
This AGREEMENT may be amended or modified only in writing signed hy both parties.
CONFIDENTIAL
Page 13 of 14
20.2 This AGREEMENT shall be governed by the laws of the State of Michigan and it shall be binding
on the successors and assigns of the parties.
20.3 Failure of NWS to enforce any provision of this AGREEMENT shall not be deemed a waiver of
that provision or any other provision of this AGREEMENT.
20.4 No action, regardless of form, arising out of the services performed or LICENSED PRODUCTS
delivered hereunder, may be brought by either party more than one (1) year after the cause of
action has accrued, exceptlhat an action for non-payment may be brought within two (2) years
of the date of the last payment.
20.5 The paragraph headings which appear herein are included solely for convenience and shall not be
used in the interpretation of this AGREEMENT.
20.6 Customer affirms that it has not relied on any oral promises or assurances or other statements by
the Sales and/or Marketing Representatives in selecting New World Systems Licensed Products,
and has independently made its evaluation by viewing the software and/or reading the User
Documentation.
CONFIDENTIAL
Page 14 of 14
--r- ... --....
,
EXIllBIT A
LICENSED STANDARD SOFTWARE PACKAGES
A. Cost of LICENSED ST ANDARD SOFTWARE Packaees selected bv CUSTOMER:
APPLICATION PACKAGE
COST
MONTH/YEAR REOUESTED
1. Police/Fire/EMS CAD - Base Package
(multi-jurisdiction)
Unit Status Monitors
Gee-File Verification
- House and Location Watch
- Interface to New World Records
$ 28,000
When equipment available
2. Interface Software
- E-911 Interface Module
When equipment available
5,000
Cost of Standard Software:
$ 33,000
Less: Demonstration Site Discount:
(3,300)
$ 29.700
TOTAL SOFTWARE COST:
B. Pavment Schedule for LICENSED STANDARD SOFTWARE
1. DOWN PAYMENT
(40% of the tolal Exhibit A Cost -- Invoiced
upon receipt of signed SOF1WARE LICENSE
AND SERVICES AGREEMEN1)
$ 11.880
2. INSTALLATION PAYMENT
(50 % of each package Exhibit A Cost -- Invoiced
as each LICENSED ST ANDARD SOFTWARE package is
installed on your computer, normally within
15 days from equipment availability)
$ 14.850
3. FINAL PAYMENT
(10% of each package Exhibit A Cost --
Invoiced 90 days after installation of each
LICENSED STANDARD SOFTWARE package)
$ 2.970
TOTAL LICENSED STANDARD SOFTWARE PAYMENTS DUE
$29.700
ALL PAYMENTS ARE DUE WITHIN TEN (10) DAYS FROM RECEIPT OF INVOICE
THE ABOVE PACKAGE COSTS ARE VALID THROUGH OCTOBER 30.1991
CONFIDENTIAL
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EXHIBIT B
SUPPORT SERVICES AND FEES AUTHORIZATION
I. Hours of Assistance Reouired
Allocating adequate support hours for each
LICENSED STANDARD SOFlWARE package
ordered on Exhibit A is not only recommended but
also may be critical for a successful installation of
each package. Support services also are needed to
assist CUSTOMER in the use of the ordered
packages. Therefore, the recommended support
hours include:
(i) Installation of each package of LICENSED
STANDARD SOFTWARE, and
(ii) CUSTOMER education and training on each
package of LICENSED STANDARD
SOFlW ARE.
Based on the LICENSED STANDARD SOFlW ARE
ordered on Exhibit A, we suggest that at least
350 hours of NWS support services be scheduled.
Actual usage may be higher or lower based on
CUSTOMER's use of the support services. Avoiding
or minimizing custom or modified features will aid in
keeping the support costs to the scheduled minimum.
2. Additional Services Available
Other technical assistance may be required for the
following:
(i) Modifications to the LICENSED
STANDARD SOFlWARE;
(ii) Custom designing, custom programming
and/or Custom Software;
(iii) File conversion assistance;
(iv) Maintenance of modified LICENSED
STANDARD SOFTWARE andlor Custom
Software; and/or
(v) Consultation of NWS technical staff.
...".".-- ."" .-." " <,.,_'u_'__,~__.~.... ..,..'_____..__".' ..~______
These additional services may be requested in writing
by CUSTOMER through NWS's Request For Service
(RFS) procedure or other appropriate procedure
implemented by NWS.
3. Service Fees Estimate
The recommended hours cited above and any
additional support services are available at the rate of
$ 60.00 per hour. This rate is protected for one year
from the date NWS signs this Agreement. After one
year, CUSTOMER shall pay the then-current hourly
rate for all Exhibit B support services rendered.
Based on the hours listed above, the support service
cost is estimated at $ 21.000. *
*Plus all expenses for travel at the actual cost
incurred by NWS divided proportionately between all
NWS Customers visited on a single trip.
4. Use of Time
The recommended hours cited above will be largely
spent on CUSTOMER's premises and does not
include travel time in excess of 4 hours per
CUSTOMER visitation. If substantial modifications,
custom software, or file conversion work is
requested, NWS may schedule employees to perform
this type of work at NWS facilities. This is to
enhance employee productivity and to save travel
time and cost. CUSTOMER shall be notified in
advance should this occur.
5. Pavrnents for Services and Travel Costs
All hours for services and travel costs will be billed
weekly for the previous calendar week. Payments
are due within thirty (30) days from receipt of
invoice.
CONFIDENTIAL
EXlDBIT C
STANDARD SOFTWARE MAINTENANCE AGREEMENT
This Standard Software Maintenance Agreement
(SSMA) between New World Systems Corporation
(NWS) and CITY OF WOODBURN. OREGON
(CUSTOMER) sets forth the standard software
maintenance and other support services provided by
NWS.
1. Service Period
This SSMA shall remain in effect for a period of five
(5) years beginning on tbe 91st day after the
installation of the LICENSED STANDARD
SOFTWARE package (the start date) and ending on
the same calendar date five (5) years after the start
date.
2. Services Included
The following services or features are included or are
available under this SSMA:
(a)
New releases of the UPGRADES to the
LICENSED STANDARD SOFfW ARE;
(previous releases of UPGRADES are
supported no longer than nine (9) months
after a new release is announced by NWS);
(b)
UPDATES to LICENSED STANDARD
SOFfW ARE including temporary fixes;
(c)
Revised versions to LICENSED
ST ANDARD SOFTWARE user
documentation;
(d)
Reasonable telephone support for
LICENSED STANDARD SOFfWARE on
Monday through Friday from 8:00 a.m. to
7:00 p.m. (Eastern Time Zone);
(e)
Invitation to and participation in user group
meetings; and
(I) Additional support services are available as
requested by CUSTOMER using the then-
current hourly rates. Exhibit B has a
description of support services available.
'1' ... '-"'~-'l'-"-'-'
Items (a), (b) and (c) above will be distributed to
CUSTOMER on magnetic media as appropriate.
After installation, CUSTOMER shall return the
magnetic media to NWS.
3. Maintenance for Modified Licensed Standard
Software and Custom Software
CUSTOMER is advised that if it has requested
changes or modifications to the LICENSED
STANDARD SOFTWARE, these changes or
modifications (no matter who makes them) mav
make the modified LICENSED STANDARD
SOFTWARE more difficult to maintain. If NWS
agrees to support CUSTOM SOFfW ARE or
LICENSED STANDARD SOFfWARE modified at
CUSTOMER's request, then the NWS maintenance
services provided shall use Exhibit B hourly fees for
the additional support services required.
4. BiIIilll!
Maintenance costs will be billed annually, beginning
on the 9Ist day after installation and on the same day
each year thereafter for the term of the SSMA. This
cost includes the services listed in paragraphs 2a, 2b,
2c, 2d, and 2e of Exhibit C.
If used for maintenance, Exhibit B support service
hours and travel costs will be billed weekly for the
previous calendar week.
5. Additions of Software to Maintenance
Al!reement
Additional LICENSED STANDARD SOFTWARE
licensed from NWS will be added to the SSMA as it
is installed. Costs for the additional maintenance will
be billed to CUSTOMER on a prorata basis for the
remainder of the maintenance year and on a full year
basis thereafter.
CONFIDENTIAL
Exhibit CIST ANDARD SOFTWARE MAINTENANCE AGREEMENT
Page 2
6. Maintenance Costs for LICENSED STANDARD SOFTWARE Packa2es Covered for IBM AS/400 Model 10
NWS agrees to provide software maintenance at the costs listed below for the following NWS LICENSED
STANDARD SOFTWARE packages installed at CUSTOMER's location:
Aoolication Packlll!e
Nwnber or Modules
1. Combined Police/Fire/EMS CAD Software
(multi-jurisdiction)
2. Interface Software
4
1
TOTAL LIST COST: $ 33.000
ANNUAL
MAINTENANCE COST: $ 4.950*
(5-Year Plan)
ALL INVOICES ARE DUE TEN (10) DAYS FROM RECEIPT OF INVOICE.
*
The SSMA costs are based on a 5 year plan. Customer will have the option to discontinue the SSMA at the
end of year 1. If Customer does not notify NWS in writing of its option to discontinue the SSMA 90 days
prior to the end of year one of the SSMA, years 2 - 5 will be billed annually at the above rate.
CONFIDENTIAL
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EXHffiIT D
NEW WORLD SYSTEMS CORPORATION
NON.DlSCLOSURE AND SECURITY AGREEMENT FOR THIRD PARTIES
For pennission to use and/or have access to New World Systems Corporation (NWS) proprietary and/or
confidential infonnation, including without limitation, software programs and/or docwnentation
Installed at CITY OF WOODBURN. OREGON
Customer Name
Customer Liaison Authorizing Access:
EOWftf<j) Ke-c.rr;(Z
Name (Please Print or Type)
Located at:
270 MONTGOMERY ST
WOODBURN. OR 97071
L [Lf,/
Signature
As part of the request to evaluate, use or have access
to NWS proprietary and/or confidential information,
including without limitation NWS software and/or
documentation, the organization and individual whose
names appear below, agree to the following:
1. No copies in any form will be made of NWS
proprietary or confidential information without the
expressed written consent of NWS's President,
including without limitation, the following:
.Program Libraries, whether source code or object
code;
eOperating Control Language;
eTest or Sample Files;
. Program Listings;
e Record Layouts;
e All written confidential or proprietary information
originating from NWS including without
limitation, documentation, such as user manuals
and/or system manuals; and/or
eAIl NWS Product Bulletins and/or other NWS
Product related materials.
2. NWS software, NWS documentation, or other
proprietary or confidential information shall not be
used for any purpose other than processing the
records of the Customer identified above as permitted
in the Customer's SOF1WARE LICENSE AND
SERVICES AGREEMENT with NWS.
3. NWS may seek enforcement of the above
restrictions by injunction in addition to any other
appropriate enforcement action. In the event it is
detennined that the money damages caused by the
undersigned's failure to comply with the foregoing
terms are difficult to ascertain, they are hereby
estimated at liquidated damages of no less than three
times the sum of the Exhibit A software costs, the
estimated Exhibit B support fees and the Exhibit C
maintenance costs provided for in the SOFTWARE
LICENSE AND SERVICES AGREEMENT between
the Customer and New World Systems Corporation.
ACCEPTED BY THIRD PARTY
ORGANIZATION
Organization:
By:
Title:
Date:
ACCEPfED BY INDIVIDUAL (EMPLOYEE,
CONSULTANT, CONTRACTOR, ETC.)
Individual:
By:
Title:
Date:
CONFIDENTIAL
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Intemationel Business Machines Corpor'lltion
Complementary Marketing Letter of Understanding
Dear Customer:
We have signed agreements with certain organizations who work as IBM Authorized Appli-
cation Specialists (called "IBM Business Partners") to promote. market. and support some of
our Products and Services. We have chosen these organizations because of their skills and
experience in a particular field.
When you order our Products or Services (marketed to you by these organizations) under the
IBM Customer Agreement (or any equivalent agreement signed by both of us). we confirm that
we are responsible for providing ,them to you under the warranties and other terms of that
agreement. We are not responsible for 1) the actions of these organizations, 2) any additional
obligations they may have to you, or 3) any products or services that they (and not us) may
supply to you.
Your signature indicates to us that you accept the IBM Business Partner named below and
that you understand its relationship with IBM and you. Your signature revokes any previous
acceptance of an IBM Business Partner you made for the application identified below.
We will acknowledge receipt of this letter to you. Signing below does not obligate you to ac-
cept IBM Products or Services.
Sincerely,
Customer
International Business Machines Corporation
North Marion County 9-1-1 Communicatio~reedlo:
Customer Name Center
By ~ jJ....c.Jr'y"'-./~-;WAj'1 By
Authorll.~ Slormur-. ~t. Aulhor1zed SlonatuN
Oat.
9-/-/
Department
/)/REcrott
Combined CAD (Public Safety)
Application Beino Considered
New World Systems Corporation
IBM Authorized Application Specialist
ZI25.9072-04 (2191)
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