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HomeMy WebLinkAbout2012-382 Planning - CTS Software - Software and Training $7,500 T1T E FY ORANGE COUNTY CONTRACT UNDER$109, 00 NORTH CAROLINA THIS AGREEM M, made and entered into this 1 S day of Oct , 20 12 ("Effective Late') by and between Orange County,North Carolina,a body politic and corporate organized under the laws of the State of North Carolina,(tire"County"),party of the first part;and (the"Provider"),party of the second part; W ITNESSETH: For the purpose and subject to the terms and conditions hereinafter set forth,the Coun:my contracts for the services of the Provider,and the Provider agrees to provide the following servi County in accordance with the terms ofthis Agreement,time being of the essence: The services and/or materials (hex inai�er referred to collective as " to be under this Agreement are as folbws: t�v x r t T��1 rrA c� c r�lc /Wy, 12 R,--t. Aye P f-RoC rN The term of this agreement rendered shall be frown to Provider represents and agues that Provider is qualified to perform and fully capable of performing and providing the service required or necessary under the Agreement in a fiullly competeK professional and timely manner to the satisfixtion,of the County.Provider shall be responsible for of errors or omissions,in the performance of the Aged. Provider shell correct any and all errors, omissions, discrepancies, ambiguities,mistakes or conflicts at no additional cost to the County. Provider agrees that Provider shall not subcontract any of the services to be provided in this Agent, nor shall Provider assign any rigout or responsibility granted or required by this Agreement without the pricer written approval of the County. SaMQW TERMS 1. Tle County agrees to pay at the rates specified for Services satisik torily performed in accord with this Agreement. The amount to be paid by the County shall not exceed , ($ ). Payment shall be made within thirty(30)days of an invoice properly submitted to County.Should Provider fail to perform its duties under the terms of this Agreement,County may,without fault or penalty, withhold any payment associated with the work to be performed until such time as said work is completed. 2. Non-waiver: Failuaee by County at any time to require the performance by Provider of any of the provisions hereof shall in no way waive or affect the Co"y's right hereunder to enforce the same,nor shall any waiver by the County of any breach be held to be a waiver of any succeeding breach or a waiver of this Noun-Waiver Clause. 3. Dent CRyk@9 : The Provider shall operate as an independent Provrderr, and the County shall not be nsponnsibe for any of the Provider's acts or omissions. The Provider shall not be treated as an employee with respect to the Services performed hereunder for federal or state tax,unemphoyment or workers`compensation on purposerti The Provuer uncerA ndis that neither federal,nor stair,nor payroll tax of any kind shall be withheld or paid by the County on behalf of the Provider or the employees of the Provider. 4. Insurance: The Provider shall obtain,at its sole expense,all insurance needed to adequately insure itself during the performance of tbese services as required by the County's Risk Management Policy. 5. Indow : The Provider agrees to defend, indemnify, and hold harmless (range County from all losses, liabilities, claims, demands, suits, costs, damages or expenses ('including reasonable Ravind J*2010 attorney's fees) arising from bodily injury, including death, to any person or persons or damage to or destruction of any property caused in whole or in part by any negligent or intentional act or omission on the part of the Provider. 6. Termination:This Agreement may be terminated at any time by mutual written agreement of the parties or by the County upon written notice to the Provider. 7. Entire Agreement:The parties have read this Agreement and agree to be bound by all of its terms, and fiuther agree that it constitutes the complete and exclusive statement of the Agreement between the parties unless and until modified in writing and signed by the parties. Modifications may be evidenced by telefacsimile signature. 8. Governing Law: Both parties agree that this Agreement shall be governed by the laws of the State of North Carolina. Should either party initiate litigation to settle any dispute involving the terms of this Agreement such litigation shall be initiated in the General Court of Justice of North Carolina seated in Orange County,North Carolina. 9. Non Appropriation: Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate.In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement,then this Agreement shall automatically expire ' out penalty to County immediately upon written notice to Provider of the unavailability and non-appropri 'o of public funds. IN WITNESS WHEREOF,Orange County and th Pro�tider ave signed is Agreement,effective as of the day fast written above. ORANG OUNTY PR VID By: By:_ Coun alter Title:�(Da- 200 S.Cameron St. P.O.Box 8181 Hillsborough,NC 27278 This Ina-Rent has been approved as to technical content. D ent Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. 1/( WI.�--tom✓ ,�, Office of the Finance Director This iq0trument has been approved as to form and legal sufficiency. Office of the unty Attorney Revised July 2010 2 e 1f Non-Exclusive Software License Agreement This AGREEMENT entered into October 1. 2012,by and between CTS Software,Inc.,Cedar Point,N.C.28594(Licensor)and Orange County.Hillsborough,NC,27278(Licensee). WHEREAS,Licensor is the owner of certain software and related manuals and materials for use in the Public/Private Transportation Industry(herein collectively referred to as"Licensoes Product(s)");and WHEREAS,Licensor has license agreements,which include confidentiality and non-disclosure covenants,with third parties, including but not limited to Mentor Engineering,U.S.Computing,Inc.,Unified Dispatch,LLC[sometimes hereinafter referred to individually,as a"Third Party",or"provider of a Licensed Product(s),and collectively as"Third Parties"or"providers of Licensed Product(s)],who own other proprietary software,documentation,data and related manuals and materials,[herein individually and collectively referred to as the"Licensed Product(s)"]which may or may not be specifically described in this Agreement );and WHEREAS,Licensee desires to acquire the non-exclusive,non-transferable right to use the Licensor's Product and Licensed Product(s)in the operation of its Public/Private Transportation activities;and WHEREAS,Licensor is willing to grant Licensee the non-exclusive,non-transferable right to use the Licensor's Product and Licensed Product(s)under the terms and conditions hereinafter set forth. NOW THEREFORE,in consideration of the premises,and for other good and valuable consideration,paid by the parties each to the other,the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows: 1. Grant of License 1.1 Licensor hereby grants to Licensee a non-exclusive,nontransferable license to use the Licensoes Product and Licensed Product(s) described herein during the term of this Agreement, 1.2 The Licensor's Product and Licensed Product(s)as mentioned in this contract may consists of,but not be limited to:2LTrip Master Enterprise Edition;Automated Scheduling interface;Mobile Data Terminal Interface;Interactive Voice Response System;-Medicaid Billing Interface;Vehicle Maintenance Module;X Mapping. 1.3 Licensor has granted web-based access to the Licensee for the Trip Master Enterprise Edition software product through 5 seats/user Id/s. 1.4 Licensee shall not use,or cause to be used the Licensor's Product or Licensed Product(s),or any part of thereof;in the development of other like transportation management scheduling software. 2. License Fees 2.1 The Licensee agrees to pay the Licensor a onetime fee of JZ&QQ.00 for the agreed licensed product set forth in section 1.2. detailed in Schedule A,when applicable.Payment for said services will be due and payable within thirty(30)days after receipt of a properly submitted invoice in coordination with Schedule B,if applicable,CTS Software,Inc.Payment Plan. In the event Licensee disputes its obligation to pay any invoice,Licensee shall notify Licensor of the basis for its objection,in writing,within ten(10)days of receipt of same and may withhold payment until resolution of the dispute,without penalties or late fees applied. 2.2 Beginning with the effective date of this Agreement,Licensee shall pay to Licensor the annual lump sum of S7.7-00.00,or the monthly sum of 60 00 for software license,maintenance and support detailed in Schedule A,CTS Software,Inc.Pricing Form.20 Vehicle Fleet, 5 seats/user Ids.Payment for said services will be due and payable within thirty(30)clays after receipt of invoice in coordination with Schedule B,if applicable,CTS Software,Inc.Payment Plan,or on or before the 25*of each month if paying monthly to avoid penalties and late fees. In the event Licensee disputes its obligation to pay any invoice,Licensee shall notify Licensor of the basis for its objection,in writing,within ten(10)days of receipt of same and may withhold payment until resolution of the dispute,without penalties or late fees applied. 2.3.Terms of this contract will apply an additional$10.00 per vehicle annual fee in the situation of vehicle fleet growth of Licensee beyond the vehicles currently accounted for in section 2.2. 2.4.Licensor will grant web-based access to the Licensee for the Trip Master Enterprise Edition software product through 5 seats/user Id's.Additional seats/user Id's requesting access by the Licensee will require a onetime fee of beyond currently accounted for seats/user Id's in section 2.2 plus per month each. 3. Installation,Training,&Support 3.1 Licensor shall provide installation,training and support services to Licensee accordance with the Installation and Training Outline. These services may be provided at Licensors facility,Licensee's facility,or remotely.On-site services shall be billed separately at the rate of$500.00 per day for 1 day(s)plus expenses for travel,lodging,meals and related expenses.Payment for said services will be due and payable within thirty(30)days after receipt of a properly submitted invoice.Reimbursements for travel,lodging,meals and related expenses must be mutually agreed to in advance by the parties and documented in writing by the authorized representative for the parties,and subject to budgeted funds. 3.2 Licensor shall provide to licensee a toll free support line 24 hours a day 7 days a week. 3.3 Retraining of Licensee's employees after the initial first six(6)months shall be charged at Licensor's training rate(currently $250.00 per hour)one hour minimum,plus expenses incurred by Licensor.Such charges shall be billed separately,and in addition to the monthly license fee. 4. Software Maintenance,Backups&Upgrades 4.1 Licensor will provide maintenance to correct any software problems within the Trip Master Enterprise Edition Product found by Licensee at no cost. Critical fixes will be addressed and provided in a timely fashion with an expected average turn around time of 24 to 48 hours. 4.2 Standard upgrades,deemed by Licensor as product enhancements,to make the software more serviceable and marketable shall be provided to Licensee at no cost. 4.3 Complimentary upgrades required by legislative or other regulatory acts of the federal,state,or local authorities shall be provided to Licensee at no cost.Licensee sball furnish Licensor with necessary documentation from such authority(s)mandating the change when requesting this type of upgrade.Licensee shalt also furnish Licensor with the name and phone number of the relevant authority. I I 4.4 Custom upgrades requested by Licensee will be quoted by Licensor upon receipt of a written request from Licensee.A written quote with estimated time of completion shall be furnished to Licensee by Licensor.No work will be performed on such request(s) until Licensor receives a signed written authorization from Licensee for the work to be performed.Payment for work performed in connection with custom upgrades shall be billed separately and shall be in addition to the license fee. 4.5 Licensee shall be advised of any add-on feature(s)made available by Licensor.If Licensee,chooses to acquire the right to use these add-ons,the cost shall be negotiated and added to the monthly license fee. 4.6 Backup routines will be managed and controlled by the licensor and provided to the licensee at no cost. Format is SQL And Licensor will take a full backup every night and incremental every 30 minutes. Data will be restorable to any 30 minute increment over the most current 7 days... 5. Confidentiality 5.1 Licensee recognizes that the Licensed Product and all components thereof are Licensors property and are considered valuable trade secrets of Licensor,and that disclosure of information about the Licensed Product or any component would cause irreparable harm to the Licensor.Licensee agrees to hold information about the Licensed Product and its components in the strictest of confidence,and not to disclose information relating thereto to third parties without express written permission of Licensor and such permission not to be unreasonably withheld,conditioned or delayed. 5.2 Licensee acknowledges that it is impossible to place and absolute value on the economic loss incurred to Licensor that would result from the breach of confidentiality.Accordingly,Licensee agrees to pay the Licensor the sum of fifty thousand dollars ($50,000.00)as liquidated damages in the event of a breach of Licensee of paragraph 5.1 hereof,subject to Licensee's obligations pursuant to the North Carolina Public Records Act. No section of this Agreement shall be deemed a waiver of Licensee's right and privileges as a sovereign entity. 5.3 Licensor acknowledges that Licensee is a North Carolina local governmental entity and as such is subject to North Carolina Public Records Laws and the Licensed Product or any component or any information,records,documents,or things("Propreitary Information")created for,used in,or related to the performance of this Agreement may be deemed a public record. Should a public records request be made for Proprietary Information Licensee will,within a reasonable time,notify Licensor of such public records request. Licensor shall,within five(5)business days of said notification provide notice that it does or does not object to the Licensee disclosing the requested information pursuant to the subject public records request. i If Licensor objects to the disclosure of the requested information,Licensor agrees that it shall be solely responsible for the defense of and the cost of defending any claim or complaint against the Licensee based upon the Licenses n"s refusal to disclose the Proprietary Information.Licensor agrees that if any such complaint or claim is filed it will indemnify Licensee and will reimburse Licensee for any and all damages awarded against Licensee for its refusal to disclose the Proprietary Information. Licensor agrees that it releases Licensee from all loss,liability,claims or expense,including attorney's fees,arising out of or related to the release or disclosure or failure by the Licensee to release or disclose the Proprietary Information subject to a public records request.Licensor further agrees that it waives the right to file any court action for any such release,disclosure,or failure to release or disclose Proprietary Information. 5.4 Licensor will defend,indemnify and hold harmless the Licensee from all loss,liability,claims or expense,including attorney's fees,arising out of or related to the infringement of third party intellectual property rights by the Licensor. 6. Warranties 6.1 If the software fails to perform to Licensee's satisfaction at any time during the term of this Agreement following the initial installation,and/or corrections cannot be made by Licensor so that the software performs satisfactorily,this Agreement may be terminated,and no further license fee will be due from Licensee beginning the month in which the Agreement was terminated. 6.2 Other than the obligation set forth in this Paragraph 6,Licensor shall not be liable for any other payments to Licensee,and specifically shall not be liable for any special,incidental,consequential,indirect or actual loss incurred by Licensee. 7. Term and Termination 7.1 This Agreement shall be effective as of the date first stated above,and shall continue until terminated in accordance with its i provision. 7.2 This Agreement may be terminated on 24 hr.written notice by either party upon a breach by the.other party of a material aspect of this A e gre em rrt. ;. 7.3 Upon termination,Licensee shall pay to Licensor all amounts due prior to termination,and remove all software from hardware and storage devices.Licensee and any of their applicable employees and agents,who had not completed form prior to termination,shall promptly return to Licensor a signed and notarized copy of CTS Form 101. 7.4 Notwithstanding the provisions of Paragraph 7.4,Licensee may retain one hard copy printout of current database master(s)stoned in Licensors software,and all printed material produced by Licensoe's software prior to termination. 7.5 In the event of termination of this contract,Licensee agrees to sign and have notarized a software destruction document stating that all materials and product sources provided to Licensee under this agrees have been destroyed and or returned to the Licensor. 7.6 Non-Appropriation. Licensor acknowledges that Licensee is a governmental entity,and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event public funds are unavailable and not appropriated for the performance of Licensee's obligations under this Agreement,then this Agreement shall automatically expire without penalty to immediately upon written notice to Licensor of the unavailability and non-appropriation of public funds. It is. expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement,but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority,mandate and/or mandated functions,by state and/or federal legislative or regulatory action,which adversely affects County's authority to continue its obligations under this Agreement,then this Agreement shall automatically terminate without penalty to County upon written notice to Licensor of such limitation or change in County's legal authority. & Miscellaneous 8.1 This Agreement and all terms and conditions hereof and all questions arising there under shall be construed according to the laws of the State of North Carolina. Any and all suits or actions to enforce,interpret or seek damages with respect to any provision of,or the performance or non-performance of,this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County,North Carolina. 8.2 Any notice hereunder must be in writing addressed to the receiving party at the address given above,or such other address as is notified,in writing,to the other party from time to time. I 8.3 This instrument contains the entire Agreement between the parties and no modification hereof shall be binding on the parties unless it is in writing and signed by a duly authorized officer of the parties to be bound. 8.4 Nothing herein shall be construed as granting Licensee any rights under any patents,trademarks,copyrights,trade secrets,or other intellectual property rights owned and controlled by Licensor and not specifically licensed herein. 8.5 If any provision of this Agreement is declared invalid by a court of competent jurisdiction,such determination shall not affect the remaining provisions of this Agreement. 8.6 This Agreement shall supersede and replace any and all prior agreements between the parties hereto relating to the subject matter hereof,and any such prior agreements are hereby canceled. 8.7 Failure of Licensor to enforce at any time any of the provisions of this Agreement shall in no way be considered a waiver of such provisions or of any provisions or any other provisions or in any way affect the validity of this Agreement. 9. CTS Software Inc.Online Liability 9.1 CTS Software Inc.is financially responsible for protecting all confidential data that is maintained on our servers that are being accessed remotely by our Licensee from outside attacks. 9.2 It is the Licensees responsibility to maintain control over whom they provide the username and password information required to access Trip Master Enterprise Edition.If the Licensee needs to change passwords it is their responsibility to notify CTS Software for these changes to be made. 9.3 Should any confidential data be stolen using the usernames and passwords provided to the Licensee,as stated in section 9.2,the Licensor will not be held responsible. IN WITNESS WIIEREOF,the p hereto have affixed their names and seals,by the executive officers thereto duly authorized,as effective as of the day and year ve written. CTS Soft".lc. Orange County Print By: l`� L- Print By: Sign By: sign By: Date: �� '� �t y Date: When signed this document constitutes an order and delivered by facsimile,email attachment,etc.and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to both parties. This inst `ent h4g4cqn approvejv to technical content. 1 t—r,1_gT3t0K,Department ector This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. 1 4. 2"� O ice of the Finance Director This irournent has been approved as to form and legal sufficiency. Office of the C my Attorney I CTS FORM 101 STATE OF NORTH CAROLINA COUNTY OF ORANGE Re: Software License and Use Agreement entered into by CTS Software,Inc.("Licensor")and Orange County, North Carolina,a body politic("Licensee"),dated October 1,2012(the Agreement). The undersigned Affiant,first being duly sworn,deposes and says: 1. That I am an employee of Licensee under the referenced Agreement. 2. That as an employee of Licensee,I have,or will have,access to and/or use the software product of CTS Software,Inc.Licensor under the Agreement. 3. That I have reviewed the Software License and Use Agreement(the"Agreement")entered into by CTS Software, Inc.("Licensor")and Orange County,North Carolina(Licensee"),specifically paragraphs contained in Agreement, concerning the Ownership and Confidentiality of the Software and the prohibition against disclosure of Information. 4. That I have not committed,nor will I commit,any acts in violation of the provisions concerning the confidentiality of the CTS Software proprietary information. Except when lawfully required by appropriate legal process,or applicable law(i.e.subpoena,court order,etc.)that I have not allowed,nor will I allow,any of such proprietary information to be shared with any person,which would constitute a violation of the Agreement. 5. That I understand that a breach of the confidentiality provisions of the Agreement will subject my employer to a claim for liquidated damages and an injunction against the future use of the CTS Software proprietary documents and software. This day of , Affiant Sworn to and subscribed before me,this day of , Notary Public My Commission Expires: (Affix Notary Seal Here): To be completed by each employee and agent both current and future that has access or use of software and products covered under this Agreement.