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HomeMy WebLinkAboutC-4580 - Software License & PSA for Barcode Tracking ApplicationSOFTWARE LICENSE AND PROFESSIONAL SERVICES AGREEMENT WITH TRACKER PRODUCTS LLC FOR BARCODE TRACKING APPLICATION THIS SOFTWARE LICENSE and PROFESSIONAL SERVICES AGREEMENT (the "AGREEMENT") dated this 1-"day of June, 2010 (the "Execution Date ") is entered BETWEEN: Tracker Products LLC (the "VENDOR ") OF THE FIRST PART And City of Newport Beach, a California Municipal Corporation and Charter City (the "LICENSEE" or "CITY ") OF THE SECOND PART. BACKGROUND: The VENDOR wishes to LICENSE computer SOFTWARE to the LICENSEE and the LICENSEE desires to purchase the SOFTWARE LICENSE under the terms and conditions stated below. IN CONSIDERATION OF the provisions contained in this AGREEMENT and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows: A. LICENSE Under this AGREEMENT the VENDOR grants to the LICENSEE a non- exclusive and non - transferable LICENSE (the "LICENSE ") to use Tracker barcode tracking application (the "SOFTWARE "). 2. This LICENSE AGREEMENT will allow five (5) concurrent desktop connections. (Concurrent Connection = the number of authenticated "handshakes" between a client and/ or server during any given time before all communications have been disconnected whether by force or by refusal.) 3. SOFTWARE includes the executable computer programs and any related printed, electronic and online documentation and any other files that may accompany the product. 11831050.1 4. Title, copyright, intellectual property rights and distribution rights of the SOFTWARE remain exclusively with the VENDOR. Intellectual property rights include the look and feel of the SOFTWARE. This AGREEMENT constitutes a LICENSE for use only and is not in any way a transfer of ownership rights to the SOFTWARE. 5. This AGREEMENT grants a single server LICENSE to the LICENSEE. The LICENSEE is allowed to install one live site and one test site on the server, as further specified in the Proposal, attached hereto as Exhibit "A" and incorporated herein by reference. 6. The rights and obligations of this AGREEMENT are rights granted to the LICENSEE only. The LICENSEE may not transfer or assign any of the rights or obligations granted under this AGREEMENT to any other person or legal entity. The LICENSEE may not make available the SOFTWARE for use by one or more third parties. 7. The SOFTWARE may not be modified, reverse - engineered, or de- compiled in any manner through current or future available technologies. 8. Failure to comply with any of the terms under the LICENSE section will be considered a material breach of this AGREEMENT. B. COMPENSATION LICENSEE shall pay VENDOR for the Software, hardware and services provide ( "Project ") in accordance with the provisions of this Section, Section C and the Proposal attached hereto as Exhibit "A ". VENDOR's compensation for all products and work performed in accordance with this AGREEMENT, including all reimbursable items and applicable sales tax, shall not exceed Thirty Thousand Dollars and 00 /100 ($30,000.00) without prior written authorization from LICENSEE. No rate changes shall be made during the term of this AGREEMENT without the prior written approval of LICENSEE. 1. LICENSE FEE. The LICENSE fee for the SOFTWARE described in this AGREEMENT will consist of the initial purchase price of Twenty Thousand Eight Hundred Dollars and no /100 ($20,800.00) plus applicable sales tax. The LICENSE fee shall include the first year of software support and maintenance service. 2. MAINTENANCE AND SUPPORT. Thereafter, an optional annual maintenance and support AGREEMENT is available to the LICENSEE for the sum of Three Thousand One Hundred Twenty Dollars and no /100 ($3,120.00), annually, subject to an increase in cost no more than 5% in any given year. Since the annual maintenance and support AGREEMENT is optional it will not render the SOFTWARE useless if not renewed. LICENSEE may enter a written Amendment to this AGREEMENT for these services at any time during the Term of 11831050.1 the AGREEMENT for Services. 3. HARDWARE. Initial Hardware purchase as further described in the Proposal attached hereto as Exhibit "A" for the purchase price of Three Thousand Four Hundred Thirty Four Dollars and 60/100 ($3,434.60) plus applicable sales tax. 4. ON -SITE SETUP AND TRAINING. On -site system setup and user training for a date to be mutual agreed upon for the sum of One Thousand Nine Hundred Ninety -Five Dollars and 00/100 ($1,995.00). Compensation for any authorized additional on -site training services shall be paid in accordance with the Proposal as set forth in Exhibit "A ". C. PAYMENT TERMS 1. SOFTWARE. Within three (3) business days of this signed LICENSE AGREEMENT SOFTWARE will be made available for use. LICENSEE will receive download instructions for FTP download. Full payment is due within thirty (30) days of access information being provided. SOFTWARE costs may be invoiced separate from hardware, training and miscellaneous costs (See line item 7a of Proposal, Exhibit "A "). 2. HARDWARE. — Payment for all hardware is due within thirty (30) days of receipt of Hardware. Hardware costs may be invoiced separate from training, SOFTWARE and miscellaneous item costs (See line item 7b of Proposal, Exhibit "A "). 3. TRAINING. Payment for training is due within thirty (30) days of on -site training completion. Training costs may be invoiced separate from hardware, software and miscellaneous item costs. (See line item 7c of Proposal, Exhibit "A "). 4. ACCOUNTS PAYABLE. Invoices shall be provided in writing as specified in the section entitled "Notices." D. INDEMNIFICATION 1. To the fullest extent permitted by law, VENDOR shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim "; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this AGREEMENT, or any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or VENDOR's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of 11831050.1 VENDOR, its principals, officers, agents, employees, vendors, suppliers, VENDORs, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require VENDOR to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this AGREEMENT. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the VENDOR. E. WARRANTS AND REPRESENTATIONS The VENDOR warrants and represents that it is the copyright holder of the SOFTWARE. The VENDOR warrants and represents that granting the LICENSE to use this SOFTWARE is not in violation of any other AGREEMENT, copyright or applicable statute. F. ACCEPTANCE All terms, conditions and obligations of this AGREEMENT will be deemed to be accepted by the LICENSEE ( "Acceptance ") upon execution of this AGREEMENT by all parties. G. USER SUPPORT SERVICES 1. The LICENSEE shall be entitled to one year of phone support available 8:00 AM EST to 5:00 PM EST or 24 hours, 7 days a week when pre - arranged by an annual maintenance and support agreement, at no additional cost. Refer to Section B(2) for optional annual maintenance and support agreement. 2. The LICENSEE shall be entitled to maintenance upgrades and bug fixes, at no additional cost, for a period of one year from the date of Acceptance. 3. At anytime the LICENSEE can request a full copy of all data and it will be provided in database or excel format. The LICENSEE is the owner of all data inputted to the system and Tracker will in no way view or modify that data unless requested by the LICENSEE. H. TERM 1. The term of this SOFTWARE LICENSEE shall commence upon acceptance and is perpetual in existence. 2. The term of the AGREEMENT for Services shall commence upon acceptance and shall terminate on the 31st day of August, 2011, unless terminated earlier as set forth herein. 11831050.1 I. TERMINATION 1. For One Hundred and Twenty (120) days following Vendor's completion of the "On -site Setup and Training," as referenced in Section B(4), LICENSEE shall be allowed to terminate this AGREEMENT, with or without cause and at LICENSSEE'S sole and absolute discretion. Should LICENSEE elect to terminate this AGREEMENT as provided for in this paragraph, VENDOR shall within fifteen days of notice by LICENSEE refund any and all compensation previously paid to VENDOR under this AGREEMENT. Furthermore, VENDOR expressly agrees that should LICENSEE elect to terminate this AGREEMENT as provided for in this paragraph, LICENSEE shall owe VENDOR no compensation, costs or damages shall be owed. Should LICENSEE elect to terminate this AGREEMENT as provided for in this paragraph, LICENSEE shall within 30 days of termination destroy all SOFTWARE or return the SOFTWARE to the VENDOR. 2. This AGREEMENT will be terminated and the LICENSE forfeited where the LICENSEE has failed to comply with any of the terms of this AGREEMENT or is in material breach of this AGREEMENT. On termination of this AGREEMENT for any reason, the LICENSEE will promptly destroy the SOFTWARE or return the SOFTWARE to the VENDOR. J. FORCE MAJEURE The VENDOR will be free of liability to the LICENSEE where the VENDOR is prevented from executing its obligations under this AGREEMENT in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the VENDOR has taken any and all appropriate action to mitigate such an event. K. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in the Superior Court of the State of California in and for the County of Orange. L. MISCELLANEOUS 1. This AGREEMENT can only be modified in writing signed by both the VENDOR and the LICENSEE. 2. Except as provided for in Section (I)(1) above, changes to this AGREEMENT within fifteen (15) business days of the Execution Date that result in a change in hardware and /or SOFTWARE purchased and/or licensed will be subject to a restocking fee equal to twenty percent (20 %) of the total hardware and SOFTWARE cost. Changes to this AGREEMENT after fifteen (15) business days may be made upon mutual written agreement of VENDOR and LICENSEE. No full or partial refunds will be expressed or guaranteed after fifteen (15) business days after the Execution Date. Sales of special 11831050.1 order hardware items will not be restocked. 3. This AGREEMENT does not create or imply any relationship in agency or partnership between the VENDOR and the LICENSEE. 4. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this AGREEMENT. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa. 5. If any term, covenant, condition or provision of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable. The remainder of the provisions of this AGREEMENT shall in no way be affected, impaired or invalidated as a result. 6. This AGREEMENT contains the entire AGREEMENT between the parties. All understandings have been included in this AGREEMENT. Representations which may have been made by any party to this AGREEMENT may in some way be inconsistent with this final written AGREEMENT. All such statements are declared to be of no value in this AGREEMENT. Only the written terms of this AGREEMENT will bind the parties. 7. This AGREEMENT and the terms and conditions contained in this AGREEMENT apply to and are binding upon the VENDOR's successors and assigns. M. NOTICES All notices, demands, requests or approvals to be given under the terms of this AGREEMENT shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from VENDOR to LICENSEE shall be addressed to LICENSEE at: Attn: Support Services Division Commander Newport Beach Police Department 870 Santa Barbara Drive PO Box 7000 Newport Beach, CA 92658 -7000 Phone: (949) 644 -3660 All notices, demands, requests or approvals from LICENSEE to VENDOR shall be addressed to VENDOR at: 11831050.1 Attn: Benjamin Townsend Tracker Products LLC PO Box 1026 Florence, KY 41022 N. INSURANCE Without limiting VENDOR's indemnification of City, and prior to commencement of work, VENDOR shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Proof of Insurance. VENDOR shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. VENDOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by VENDOR, his agents, representatives, employees or subconsultant. The cost of such insurance shall be included in VENDOR's bid. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. a. Workers' Compensation Coverage. VENDOR shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) for VENDOR's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, VENDOR shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 11831050.1 calendar days written notice of non - payment of premium) prior to such change. VENDOR shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. b. General Liability Coverage. VENDOR shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. 4. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: a. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow VENDOR or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. VENDOR hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subVENDORs. b. Enforcement of Contract Provisions. VENDOR acknowledges and agrees that any actual or alleged failure on the part of the City to inform VENDOR of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. C. Requirements not Limiting_ Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. d. Notice of Cancellation. VENDOR agrees to oblige its insurance agent or broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage. 5. Timely Notice of Claims. VENDOR shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from VENDOR's performance under this Agreement. 11831050.1 6. Additional Insurance. VENDOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: yne e . BeaJa Assistant City A ✓� �r ATTEST. 0 Leilani I. Brown, City Clerk Attachments: 11831050.1 LICENSEE: CITY OF NEWPORT BEACH, A California Municipal Corporation By: C'9�d i f of P ice VENDOR: TRACKER PRODUCTS, LLC, A Kentucky Limited Liability Company Benjamin D. Townsend, Managing Member NEWPORT BEACH POLICE DEPARTMENT ELECTRONIC SUPPLY REQUEST Employee Requesting ID # Division Lt. Hartford 702 SS Date Requesting 5/19/2010 Div. Cmdr. Approving Vendor's Name Address City Tracker Products PO Box 1026 Florence, KY Phone No. 866 - 438 -6565 Party Talked To Michael Zobath Subtotal 1 $26,229.60 Tax Rate: 8.75% 1 $2,295.09 Total Amount Requested $28,524.69 Quantity Description of Item(s) Requested Form, Stock, Model No., etc. Tax? Unit Price Extended Price Item Filled? 1 Evidence Tracking System Y $26,229.60 $26,229.60 Support Services Commander's Signature Employee Filling Order Date Filled NBPD Form 2.17.2 (Rev. 5 -09) trackerwww.trackerproducts.com R Q .� sale s @trackerproducts.ccrn (866)438 -6565 (859)746- 9700 (866)381 4160 PRICE QUOTE This quote is a formal proposal for use of Tracker Products software by Newport Beach Police Department *Pricing is valid for a period of 90 days. Date: 04/05/2010 software First year t tal* S20,800 cost" Annual renewal 1 *First year software total includes initial software purchase and the first full year ofsupport and upgrades. *Annual renewal cost includes support and upgrades far the years following the initial purchase year Annual renewal cost is required for hosted version customers but optional for purchased version customers. s4 , P iA M'Qi2TJCUST ©i#�7Y1 SION / ISCE# 11I Data de System Customization not included Miscellaneous Total $0.00 tracker -.- PRODUCTS Number of users Unlimited Number of desktops Unlimited Number of simultaneous connections 5 Number of field modules Unlimited Number of items (first year) Unlimited Number of items (per subsequent calendar years) Unlimited Version (hosted or purchased) Purchased Number of locations Unlimited software First year t tal* S20,800 cost" Annual renewal 1 *First year software total includes initial software purchase and the first full year ofsupport and upgrades. *Annual renewal cost includes support and upgrades far the years following the initial purchase year Annual renewal cost is required for hosted version customers but optional for purchased version customers. s4 , P iA M'Qi2TJCUST ©i#�7Y1 SION / ISCE# 11I Data de System Customization not included Miscellaneous Total $0.00 tracker -.- PRODUCTS $0.00 Shipping Hardware Total $3,434.60 NN a. Software total $20,800.00 b. Hardware total $3,434.60 c. On -site setup and training total $1,995.00 d. Data import /System configuration/Misc. total $0.00 e. Grand total $26,229.60 ® !° • ❑ My organization is satisfied with the pricing as detailed in this form and would like to proceed with a purchase of Tracker Products software. Signed: Date: tracker G PO DU CTS PDA Scanner- Symbol MC5590 scanner and signature capture tool $1,499.00 1 $1,499.00 Refurbished PDA Scanner - $1,499.00 $0.00 Warranty - $299.00 $0.00 Desktop Scanner- Symbol LS4208 USB handheld scanner device. $299.00 1 $299.00 Desktop Signature Pad -Topaz Systems 5460 USB 4 "x5" digital signature pad. $299.00 1 $299.00 Zebra GK420T - Thermal desktop printer (Holds 500 4 "0" ]abets). $599.00 2 $1,198.00 Zebra TLP 2824 - Thermal slim desktop printer (Holds up to 2.25' wide labels). $599.00 $0.00 Zebra S4M - Large volume thermal desktop printer (Holds 2,000 4'x3" labels). $1,299.00 $0.00 Zebra RW420 - Mobile printer with rechargeable battery (Holds up to 4" wide labels). $899.00. $0.00 Wireless option - Add -on 10bpm NIC, wireless Bluetooth for Zebra RW420. $600.00. $0.00 11'ri.1_ Zebra 4 "x3" - For use with GK420T (500 labels per roll). $19.95 4 $79.80 Zebra 4 "x3" For use with S4M (2,000 labels per roll). $24.95 $0.00 Zebra 6 "x4" - For use with GK420T (475 labels per roll). $19.95 $0.00 Zebra 2.25 "x 1.25" - For use with GK420T or TLP 2824. $14.95 $0.00 Zebra 2.25 "x4" - For use with GK420T or TLP 2824. $14.95 $0.00 Zebra 3"x1.75' -For use with RW420. $9.95 $0.00 Wax resin roll - Tnk)For use with GK420T. $14.95 4 $59.80 Wax resin roll - (Ink)For use with S4M. $14.95 $0.00 Wax resin roll - (Ink)For use with TLP 2824. $14.95 $0.00 $0.00 Shipping Hardware Total $3,434.60 NN a. Software total $20,800.00 b. Hardware total $3,434.60 c. On -site setup and training total $1,995.00 d. Data import /System configuration/Misc. total $0.00 e. Grand total $26,229.60 ® !° • ❑ My organization is satisfied with the pricing as detailed in this form and would like to proceed with a purchase of Tracker Products software. Signed: Date: tracker G PO DU CTS