99-23013 RESO
RESOLUTION NO.
99-23013
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AUTHORIZING A WAIVER, BY 517THS VOTE, OF
THE COMPETITIVE BIDDING PROCESS AND APPROVING A CONTRACT
WITH AQUILIUM SOFTWARE CORPORATION, IN THE AMOUNT OF $151,450,
FOR A UTILITY BILLING SYSTEM, UPON RECOMMENDATION OF THE
ADMINISTRATION, FOLLOWING A THOROUGH INVESTIGATION OF THE
AVAILABLE APPLICABLE SOFTWARE, THAT TillS SYSTEM PROVIDES THE
OPTIMAL SOLUTION FOR YEAR 2000 COMPLIANT UTILITY BILLING
COMPUTERIZED PROCESSING.
WHEREAS, the City issued Request for Proposal No.1-97 /98 on October 17, 1997 to solicit
, proposals from responsible vendors to provide an integrated, Year 2000 compliant, hardware and
software solution for financial management, utility billing and payroll/Hwnan Resources systems;
and
and
WHEREAS, one-hundred ten (110) RFP notices were issued resulting in eight responses;
WHEREAS, an Evaluation Committee, appointed by the City Manager and approved by the
Mayor and City Commission met in April, 1998, and in May, 1998, and recommended that all
proposals be rejected; recommending instead on upgrading the City's current financial management
software because of its excellent price, and trying to find State of Florida governmental agencies
with contracts for payroll/Hwnan Resources and utility billing on which to "piggy-back"; and
WHEREAS, because each government body is unique in terms of the nwnber of employees,
the number of users, the hardware platform, the amount of training required, etc., it has been
impossible to find a contract on which to "piggy-back"; and
WHEREAS, the following vendors demonstrated their utility billing software to the City:
Dynasty; Census; HTE; and Aquilium and, by August 31, 1998, an informal committee, made up
of managers and staff of the Information Technology, Finance and Public Works Departments,
overwhelmingly chose Aquilium because it was the optimal solution; and
WHEREAS, as a formal bid or RFP process is no longer possible due to Year 2000 time
constraints, the Administration would recommend that the Mayor and City Commission accept its
recommendation herein, and authorize, by Sl7ths vote, a waive ofthe competitive bidding process,
finding such waiver to be in the best interest of the City.
NOW, THEREFORE, BE IT DULY RESOL YED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby authorize a waiver, by 517ths vote, the competitive bidding process and approve
a contract with Aquilium Software Corporation, in the amount of $151,450, for a utility billing
system, upon recommendation of the Administration, following a thorough investigation of the
available applicable software, that this system provides the optimal solution for Year 2000 compliant
utility billing computerized processing.
PASSED and ADOPTED this 6th day of January, 1999.
Yf)/YJ
MAYOR
~d FtUdtM
CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
1iI~ - /"6:JiM
~ITY OF MIAMI BEACH
ITV HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
,tp:\\ci,miam i-beach, fJ, us
COMMISSION MEMORANDUM NO. 10 - ~
TO:
Mayor Neisen O. Kasdin and
Members of the City Commission
DATE: January 6, 1999
FROM:
Sergio Rodriguez
City Manager
,..
SUBJECT:
A Resolution of the Mayo and City Commission of the City of Miami Beach, Florida,
Authorizing the Administration to Waive, by 5/7ths Vote, the Formal Bid Process and
Negotiate a Contract with Aquilium Software Corporation in the Negotiated Amount
of $151,450 for a Utility Billing System, Pursuant to an Agreement among the
Finance, and Information Technology Departments, following a thorough
Investigation of the Available Applicable Software, that this System Provides the
Optimal Solution for Year 2000 Compliant Utility Billing Computerized Processing.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
FUNDING
Funding is available from the Information Technology Internal Services Fund (550.0630.000674).
BACKGROUND
Since 1986, The Utility Billing Division of the Finance Department has used a computer system called the
Utility Billing System (UTB) to process the City's utility (water, sewer, waste, storm water) billing and
work orders for maintenance of the utility infrastructure, It is an essential system necessary to the daily
functions of the City. Although this system was developed by a consultant hired by the City, it has been
heavily modified by-the Information Technology Department (IT) in order to accommodate the City's
special needs, These changes have been so prevalent that the system currently bears no resemblance to
the original system, and has not been supported by the consultant for at least ten years. More importantly,
the system is not Year 2000 (Y2K) compliant. This is true of all of the City's major computer systems,
In mid 1997 it was decided that the only viable solution to the Y2K problem was to replace all of the
legacy systems.
In September, 1997 IT, in cooperation with all affected departments, wrote an RFP seeking a replacement
for the following systems: Financial Management System (FMS), Payroll/Personnel System (PPS), and
Utility Billing System (UTB), The RFP was issued in October, 1997 with a December, 1997 deadline for
the responses to the RFP, It was specified that a vendor could propose an integrated solution (covering
all systems) or a single system solution,
FU I APPROVED
I i
AGENDA ITEM~
DATE \ -L,-qc:L
Four vendors proposed integrated systems; they were: HTE Systems, BITECH Systems, SCI Systems, and
KPMG, our external auditors, who would acquire software from Software For Government (SFG). Two
other vendors made partial proposals: Oracle-Harris proposed a solution for Financial Management and
Payroll/Human Resources and Harris that proposed a solution for Utility Billing only. Mitchell Humphrey
(MH), our current FMS vendor, did not submit a proposal because the Procurement Department had ruled
that there was no need for MH to make a proposal since they were proposing an upgrade of their software
and not a new system. Cyborg Systems, Inc, submitted a proposal but it was ruled non-responsive because
they failed to include their pricing,
An Evaluation Committee was appointed by the City Manager and approved by the City Commission. The
members of the committee were given copies of the responses for perusal. The Committee first met in
April, 1998 and agreed that the following vendors would be given further consideration: HTE, BITECH,
and SCI. The other three proposals were deemed too expensive,
The Evaluation Committee met for a second time in May, 1998 and recommended:
· the RFP be rejected
· upgrading our current Financial Management System because of its features, functionality and
excellent price
· fmding State of Florida governmental agencies with contracts for Payroll/Human Resources and
Utility Billing on which the City of Miami Beach could "piggy-back",
The City began negotiations with Mitchell Humphrey for the upgrading of the Financial Management
System. The upgrade involved the conversion of historical data and training on the new appearance and
functionality of the system. Mitchell Humphrey and the City came to an agreement in July, 1998. The City
Commission approved the upgrading of the current Financial Management System and the rejection of all
RFP proposals, Commission Memorandum no, 418-98,
IT contacted Utility Billing software vendors with State of Florida governmental agency contracts. The
following vendors demonstrated their Utility Billing software: Dynasty, Census, HTE, and Aquilium. By
August 31, 1998 an informal committee, consisting of managers and staff of the IT, Finance and Public
Works departments, had decided to eliminate HTE because of its high price (over $270,000). Dynasty
was rejected because-it was not liked by the City's Utility Billing users, and Census was rejected because
it was not yet fully operational anywhere in the State of Florida. Aquilium was overwhelmingly chosen
because it was the best, the most user friendly, and the cheapest of all demonstrated systems, A copy of
the contract between Aquilium and the City of New Smyrna Beach was sent to Procurement for approval
for "piggy-backing". It was ruled that the City could not "piggy-back" because the New Smyrna Beach
contract was not awarded through the bid process.
The City hired a new Assistant Finance Director in mid July, 1998 and at a meeting between IT, Finance,
and Procurement it was decided that we might consider an integrated solution for the replacement of our
legacy systems, This meant that HTE might be considered again for the complete solution (Financial
Management, Payroll/Human Resources, Utility Billing) in addition to the Land Management System, The
Assistant Finance Director (AFD) would review the HTE financial system and compare it to the Mitchell
Humphrey's. The AFD attended a Mitchell Humphrey users group in September to see its upgraded
system.
On October 22, 1998 City staff who had been members of the committee met again and recommended the
following:
· purchasing Utility Billing software from Aquilium pending a site visit to New Smyrna Beach, FI
· purchasing the Financial Management upgrade from Mitchell Humphrey
purchasing PPS software from Cyborg pending a site visit to the-City of Melbourne, Fl.
On November 6, 1998 a second in-house demonstration by Aquilium replaced a site visit. Managers and
staff oflT, Utility Billing and Public Works attended this demonstration, There was a unanimous opinion
among the City staff that the Aquilium software will provide a Y2K compliant Utility Billing system
which meets the City's requirements. It was agreed by City staff that the Aquilium software presents the
optimal solution considering functionality and price, among all of the systems considered,
Aquilium has two contracts with State of Florida governmental agencies: the cities of New Smyrna Beach
and Bonita Springs, These contracts were issued via the RFP process. Because each government body is
unique in terms of the number of employees, the number of users, the hardware platform, the amount of
training required, etc., it has been impossible to find a contract identical to the one that will meet the City's
requirements.
CONCLUSION
The Administration feels that the RFP process is the proper method to use, however, because of the year
2000 time constraints, it is felt that the RFP process, even an expedited RFP process, will not allow
sufficient time to implement the Utility Billing Systemt. Therefore, the Administration recommends the
City Commission waive the formal bid process and authorize the Administration to issue a contract to
Aquilium Corporation for a Utility Billing System.
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AQUILIUM SOFTW ARE CORPORATION
SOFTWARE COMPLIANCE AGREEMENT
On behalf of Aquilium Software Corporation, I hereby represent and warrant
that Aquilium Customer Service Management Software is Year 2000
compliant and that it is operational prior, during, and after the Year 2000 AD.
Aquilium Customer Service Management Software provides for a four-digit
year format for all date recognition, date sorting and processing. The software
package will correctly recognize and process the date of February 29, and any
related data during Leap years,
Frank McFadden, Central Region Sales Manager
Print name and position of authorized signing agent
Aquilium Software Corporation
Company Name
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1-25-99
Signature of authorize(
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Aquilium Source Code Escrow Program
AQ111llUM
Escrow Program
Aquilium Software Corporation has established a source code es<:row program for all
of its Customer Service Management customers. Under the progrclm, Data Securities
International, a well-known third-party escrow agent, currentlv hQrR! the source code
for the Customer Service Management modules purchased by glRlna Aaulllum
customers in escrow, New Aauillum customers mav oartlciJJlltl' In this oDt/onal
Drotection DroDram if desired. Aquilium will update the source code deposits from
time to time to ensure the latest version of the source code is held by 051,
Participation
Every new customer will automatically become a beneficiary as. soon as they sign
the Aquilium Software License Agreement and as long as they remain enrolled in
the Aquilium software maintenance plan. Existing customers may become
beneficiaries as long as they are enrolled in the software maintemmce plan with
Aquilium and sign an addendum to their license agreement.
Participation in the plan requires a one time $50 registration fee with automatic no-
charge annual renewals as long as customers remain enrolled in Aquilium's software
maintenance program. Upon enrollment, OSI will send each beneficiary information
relating to the escrow program,
If a customer elects to discontinue their enhancement plan. they will automatically be
removed as beneficiary under the escrow program.
Source Code Release .
. , I
OSI will release to a beneficiary the source code for their modules in the event anyone
or more of the following exist uncorrected for more than 30 days:
1, The making by Aquilium of a general assignment to the benefit of creditors;
2. The appointment of a general receiver or trustee in bankruptcy or Aquilium
business or property; or
3, Any action by Aquilium under any insolvency or similar law for the purpose of its
bankruptcy or liquidation.
In the event the source code is released, it is released to a beneficiary solely for their
internal use. The source code may not be disclosed or transferred to any third party
and must be held strictly confidential. A beneficiary may only use the source code for
the purpose of maintaining the software and may not develop additional products or
applications based on the source code,
Other Tenns and Conditions
Aquilium reserves the right to discontinue the escrow program or change the terms of
the program at any time upon 3O-day written notice to a beneficiary.
Frank McFadden,
Regional Sales Manager
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1-28-98
Name & position of
Authorized signing agent
Signature of authorized
signing agent
Date
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Jan-28-99 03:28P Me Fadden
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AQUILIUM SOFIW ARE CORPORATION
SOFTWARE COMPLIANCE AGREEMENT and
WARRANTY
On behalf of Aquilium Software Corporation, I hereby represent and warrant
that Aquilium Customer Service Management Software is Year 2000
compliant and that it is operational prior, during, and after the Year 2000 A.D,
Aquilium Customer Service Management Software provides for a four-digit
year format for all date recognition, date sorting and processing, The software
package will correctly recognize and process the date of February 29, and any
related data during Leap years,
Frank McFadden, Regional Sales Manager
Print name and position of authorized signing agent
Aquilium Software Corporation
Company Name
':dJOQ<~~
1-28-99
Date
Signature of authorized signing agent
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AQUILIUM SOFTWARE CORPORATION
SOFTWARE LICENSE AGREEMENT
AOJ) ILIUM'
This Software License Agreement ("Agreement") is entered into by and between Aquilium
Software Corporation ("Aquilium") and the undersigned licensee ("Licensee").
1. DEFINITION
a. "Computer" means a machine or system that uses logical
devices ("central processing units") to process information,
such as a multi-processor computer system.
b, "Designated Computer" means the specific Computer on
which the Software, as defined in this Agreement, is
permitted to be compiled or installed and executed, and
which Licensee in Appendix A designates,
c, "Client Computer(s)" means the Computer(s) owned or
exclusively used by Licensee that are connected to the
Designated Computer on which the Client Software, as
defined in this Agreement, is permitted to be compiled or
installed and executed,
d. "Server Software" means the Microsoft SQL Server i!::l
application software and the server-specific portions of the
Aquilium application software, both listed and marked in
Appendix A that may be amended by Aquilium from time
to time,
e, "Client Software" means binary executable forms of the
modules of the Aquilium computer software listed and
marked in Appendix A that may be amended by Aquilium
from time to time,
f, "Software", when not preceded by "Client" or "Server",
means both the designated Client Software and Server
Software,
g, "Documentation" means any user and technical
documentation for the Software provided by Aquilium,
h. "User" means one Client Computer with Client Software
logged in to communicate with the Server Software.
2. LICENSES
a. Grant of License. Aquilium grants the Licensee the
non-exclusive right, subject to the terms and conditions of
this agreement, to:
i. execute the Server Software on the single Designated
Server Computer, and
ii. have the licensed number of Users, as set forth in
Appendix A, concurrently execute the Client Software on
Client Computer(s) accessing the Server Software on the
Designated Server Computer, and
iii. use the associated Documentation,
AQQ Software License Agreement
Page 1 of6
Aquilium (or its licensor, in the case of any incorporated third
party software) retains ownership in the Software and
Documentation (including all copies thereot) and all rights not
specifically granted to Licensee in this Agreement. Licensee
may use the Software only with the Designated Client
Operating System(s) marked in Appendix A.
This grant of license does not include any customization of the
Software and/or Documentation to Licensee's specific needs,
Aquilium may undertake customization of the Software and/or
Documentation at the request of Licensee, at Aquilium's
standard rates for such service, The terms and conditions of
this Agreement shall apply to any such customized Software
and/or Documentation,
b, Rights of Licensee, Licensee may access the Server Software
lawfully licensed to Licensee under this Agreement on any
configuration of the Client Computers or display devices
connected to the Designated Server Computers, provided that
the Software is installed or executes only on the one (1)
Designated Server Computer, Licensee may only permit the
licensed number of Users at anyone time, Licensee shall notify
Aquilium in advance in the event it intends to relocate or
change the manufacturer, model, operating system or version of
the Designated Server Computer from the type of Designated
Computer site listed in Appendix A. Licensee may transfer the
Software to any electronic storage device connected to the
Designated Server Computer provided the Licensee maintains
the original copy for backup or archival purposes,
Licensee shall enter Aquilium's standard software Maintenance
Plan with respect to the Software, and shall maintain such
Maintenance Plan in force annually during the term of this
Agreement. Failure by Licensee to maintain the Maintenance
Plan in force shall entitle Aquilium to terminate this Agreement
immediately,
In the event the Licensee does not renew the annual
Enhancement Plan, Aquilium shall have no liability or
obligation to provide Licensee any maintenance or support
services related to the Software,
The rights of Licensee shall not include the right to grant
sublicenses or transfer (including transfer by rental) the
Software or Documentation or the right to use these to benefit
any third party, Any attempt to grant sublicenses or transfer
any rights shall be considered a breach of this Agreement by
Licensee.
01/18/99
LIMIT A nON ON LICENSEE'S RIGHTS
The Licensee may not
(a) make copies of the Software, except as specifically
authorized in this Agreement;
(b) rent, lease, lend, sublicense, time share or otherwise
permit any other party to use the Software, copies of the
Software or Documentation, or to exercise Licensee's
rights under this Agreement except as otherwise
provided herein;
(e) alter, modify, translate, decompile, disassemble or
reverse-engineer the Software, or make any attempt to
undo or bypass the inscription of the software code, or
create any derivation work based upon the Software; or
(f) remove or obscure any copyright or trademark notices.
c. Backup Copy, Licensee may make a reasonable
number of backup copies of the Software. All such
backup copies shall also be subject to the terms and
conditions of this Agreement. Licensee must maintain
an accurate record of the location of such backup
copies at ail times, Such record may be inspected and
verified by Aquilium during normal business hours.
Licensee may make a reasonable number of copies of
the Documentation or parts thereof for internal use at
Licensee's place of business,
d. Restriction on Use, Unless otherwise authorized by
Aquilium, Licensee may not install, electronically transfer,
network or otherwise execute (a) the Server Software on
any Computer other than the Designated Server Computer;
or (b) the Client Software on any Computer other than a
Client Computer, Only one Computer can be specified as
the Designated Server Computer in a network unless
Licensee purchases additional licenses. More specifically,
no function, such as database administration, or feature,
such as the database schema, of the Server Software may be
performed or used on a Computer other than the Designated
Server Computer,
Licensee may use the Software and Documentation only in
the conduct of its own business and shall not directly or
indirectly use the Software to process the work of any third
party or for any personal uses, Licensee may use the
Software to process accounting data for other companies, as
defined in this Section. "Company" shall mean one or
more corporations, partnerships, sole proprietorships or
other accounting entities, each of which is controlled to
whom this licensee is granted and each of which has its
own set of accounting records. "Control" of any entity
means that ownership of at least 50% of the shares entitled
to elect the board of directors or other management
relationship sufficient to control the entity's business
policies and activities, The Software may not be used to
process the accounting data of any entity that is not one of
the Companies so defined,
3. PROPRIETARY RIGHTS AND
CONFIDENTIALITY
Page 2 af6
a, Ownership, All title and rights of ownership in the
Software and Documentation remain with Aquilium and/or
its suppliers or licensors and are protected by applicable
copyright, patent, trademark, or trade secret laws, Licensee
agrees to take use its best efforts to protect the proprietary
rights of Aquilium and its suppliers or licensors in the
Software and Documentation, including, but not limited to,
the proper display of copyright, trademark, trade secret and
other proprietary notices of any copies of the Software or
Documentation, Licensee must reproduce and include any
such notices, other legends and logos on the backup copies,
Licensee will, at Licensee's own cost and expense, protect
and defend the ownership of Aquilium and ils suppliers or
licensors in the software and documentation and everything
from suppliers from ail claims, leins, and its claims, liens,
and legal processes of third parties, including creditors of
Licensee, and must keep the Software free and clear of any
such claims, liens and licenses,
b, Confidentiality, Licensee shall use its be:;t efforts not to
disclose or publish the Software to others, and will use its
best efforts to keep it confidential.
4. U.S. GOVERNMENT RESTRICTED RIGHTS.
a, If Licensee is acting on behalf of any unit or agency of
the United States Government ("Government"),
the following provisions shall apply: i. The
software and documentation are provided to the
Government with RESTRICTED RIGHTS; Use,
duplication or disclosure by the Government is
subject to restrictions as set forth in
subparagraph (c)(I)(ii) of the Rights in
Technical Data and Computer Software clause
at DFARS 252.227-7013 and subparagraph (c)
(2) of Commercial Computer Software
Restricted Rights Clause at FAR 52.227-19.
5. TERM AND TERMINA nON
a, Term. The licenses granted under this Agreement shall
commence at the time both Aquilium and Licensee have caused
this Agreement to be signed by their respective representatives
and shall continue until terminated in accordance with the
provisions of this Agreement.
b. Termination, Licensee may terminate this Agreement by
destroying or returning to Aquilium the Software and the
Documentation and all copies thereof. Aquilium may
immediately terminate this Agreement if Licensee breaches any
material representation, warranty, obligation, or provision of
this Agreement and fail to cure such breach within 30 days of
written notice from Aquilium of such breach. Upon
termination, Licensee, at the option of Aquilium, shall either
promptly return to Aquilium ail copies of the Software and
Documentation in Licensee's possession or destroy ail such
copies, and shall certify in writing that all copies have been
returned or destroyed.
6. LIMITED WARRANTY
a. Limited Warranty. For a period of Ninety (90) days from
the date the Software is delivered to Licensee, Aquilium
warrants that the Program when properly used shall perform
substantially in accordance with the Documentation, provided
that it is properly used on the computer hardware and with the
operating system for which it was designed, Aquilium does not
warrant or represent that Licensee's use of the Software will be
uninterrupted or effort free. If Licensee reports to Aquilium in
writing within such Ninety (90) day period a nonconformity
between the Documentation and the Software, and if Aquilium
is able to replicate and verifY that such nonconformity exists,
Aquilium shall make commercially reasonable efforts to correct
such nonconformity and, if successful, shall supply Licensee
with such correction, Aquilium also warrants that the Software
will be properly copied onto diskettes or other media ("Media")
and that the diskettes and the Media on which the Software is
recorded will be free from defects in materials and
workmanship for a period of ninety (90) days from the date the
Software is delivered to the Licensee, If Licensee has properly
registered the Software with Aquilium, Aquilium will, at its
option, replace defective diskettes or Media or Documentation
or correct substantial non-conformities in the Software at no
charge provided that Licensee returns the claimed defective
item and a copy of the purchase receipt to Aquilium or an
authorized dealer within ninety (90) days after delivery,
Registration occurs when the Licensee obtains in writing the
Registration Keys that allow access to the program and its
features,
b, Remedies, Aquilium's entire liability and Licensee's
exclusive remedy relative to the Software shall be for Aquilium,
at its option, to either: a) replace the Software that does not
meet the limited warranty described above and that is returned
to Aquilium on the original distribution media; or b) promptly
attempt to correct any error which Licensee finds in the
Software during the warranty period and which prevent the
Software from substantially performing as described in the
Documentation, Any replacement Software will be warranted
for the remainder of the original warranty period or for thirty
(30) days, whichever is longer,
c. Rights to Licensee, Aquilium warrants that it is the owner
ofthe Software or has the rights to license the Software to
Licensee,
d. Limitations, The above warranty is null and void if
Licensee or any third party modifies or changes its copy of the
Software in any way beyond the scope of the Aquilium
Modifier or the customization options contained in the
Software, or iffailure of the Software has resulted from
accident, abuse or misapplication, In order to receive and
maintain this warranty, Licensee must (i) use the Software in
accordance with the Documentation; (ii) use the Software on
the hardware and with the operating system for which it was
designed; and (iii) use only qualified personnel to operate the
system and the hardware, Qualified Personnel would include
those who have received training and demonstrate capabilities
on the operating system, the network, and the Aquilium and
Great Plains Dynamics applications software. Aquilium will not
be required to maintain compatibility between the Software and
software not specified in this Agreement, including, but not
limited to, versions of Software other than those listed in this
Agreement. Aquilium does not warrant that the functions
contained in the Software will meet Licensee's requirements or
that the operation of the Software will be uninterrupted or
Page 3 of 6
error-free or that all defects will be corrected,
e, This warranty does not apply to errors or malfunctions
caused by (i) machine malfunction; (ii) equipment or software
not licensed in this Agreement; (iii) use of incorrect procedures
or data by Licensee; or (iv) any other cause not attributable to
Aquilium,
f. If the Licensee believes that the Software is not substantially
performing in accordance with the Documentation, Licensee
will immediately notifY Aquilium in writing regarding any such
non-performance and will provide a listing of output and such
other data as may be required by Aquilium to reproduce
operating conditions as existed when the non-performance
occurred,
7. DISCLAIMER OF WARRANTY
a. EXCEPT AS STATED ABOVE, AQUlLIUM MAKES
NO OTHER WARRANTIES REGARDING THE
SOFTWARE OR DOCUMENTATION, INCLUDING,
WITHOUT LIMITATION, EXPRESS OR IMPLIED
WARRANTIES, AND EXPRESSLY DISCLAIMS THE
WARRANTIES OF FITNESS AND A PARTICULAR
PURPOSE OR MERCHANTABILITY, AND ANY
OTHER WARRANTY, EXPRESS OR IMPLIED.
b. Any statements made by a dealer or any other third party
other than Aquilium are not warranties and cannot be relied on
by Licensee.
c, Aquilium shall not be liable for any claimed non-
conformance of the Software under Article 35(2) of the United
Nations Convention on Contracts for the International Sale of
Goods, even if that Convention were to be determined
applicable to this Agreement and the underlying transactions,
8. IN NO EVENT SHALL AQUlLIUM OR ANYONE
ELSE WHO HAS BEEN INVOLVED IN THE
CREATION, PRODUCTION OR DELIVERY OF
THE SOFTWARE OR THE DOCUMENTATION BE
LIABLE FOR ANY INCIDENTAL, SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES,
LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF
GOODWILL OR TORTIOUS CONDUCT
RESULTING FROM ANY DEFECT IN THE
SOFTW ARE, DOCUMENTATION OR DISKETTES,
EVEN IF AQUlLIUM HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SOME
JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OR LIABILITY
FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES SO THE ABOVE LIMITATION MAY
NOT APPLY TO LICENSEE. ANY DAMAGES
THAT AQUlLIUM IS REQUIRED TO PAY FOR
ANY AND ALL CASES, WHETHER FOR
NEGLIGENCE, BREACH OF CONTRA,CT OR
OTHERWISE, REGARDLESS OF THE FORM OF
ACTION, SHALL, IN THE AGGREGATE, BE
LIMITED TO THE LICENSE FEE ACTUALLY
PAID TO AQUILIUM FOR LICENSEE'S COPY OF
THE SOFTWARE.
9. ARBITRATION
a, Disputes, Any dispute, controversy or claim arising out of
or relating to this contract, or breach, termination, or invalidity
thereof, shall be finally settled by arbitration in accordance with
the Arbitration Rules of the American Arbitration Association
in effect on the date of this Agreement by one (I) arbitrator
appointed in accordance with such Rules, The place of
arbitration shall be Toronto, Ontario, Canada, Judgment upon
the award of the arbitrators may be entered in any court having
jurisdiction thereof.
b, Governing Law, This Agreement shall be governed by and
construed in accordance with the laws of the Province of
Ontario, Canada. The United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this
Agreement.
10. GENERAL TERMS AND CONDITIONS
a, Relationship, This Agreement does not make either party
hereto the employee, agent or legal representative or the other
party for any purpose whatsoever, Neither party hereto is
granted any right or authority to assume or to create any
obligation or responsibility, expressed or implied, on behalf of
or in the name of the other party, In fulfilling its obligation
pursuant to this Agreement, each party shall act as an
independent contractor,
b, Assignment, Neither party may assign or otherwise transfer
any of its rights or obligations under this Agreement without
the prior written consent of the other party. This Agreement
shall inure to the benefit of and shall be binding on the
successors of the parties, This Agreement and the rights and
obligation arising hereunder shall not be affected by any change
in the corporate structure or ownership of the parties,
c, Notices, All notices permitted or required to be given
hereunder shall be delivered personally or sent by fax or
registered or certified mail, postage prepaid, return receipt
requested, addressed to the addresses of the parties hereto as set
forth above or to such other addresses as the parties may
designate by like notice from time to time. Notice so given
shall be effective (a) upon the date of personal delivery, (b) if
sent by telecopy, concurrently with the transmission thereof if
the sender's machine produces a transmission report without
notice ofa communication fault, (c) on the third (3rd) business
day following the date on which such notice is mailed by
registered or certified mail.
d. Entire Agreement, This Agreement, including Appendix A
attached hereto and by this reference made an integral part
hereof, constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes all
previous proposals, oral or written, express or implied, and all
negotiations, conversations or discussions heretofore had
between the parties hereto related to the subject matter of this
Agreement. This Agreement expressly supersedes any other
license agreement that may be part of or incorporated into any
Software or Documentation provided by Aquilium,
e, Amendment, This Agreement shall not be deemed or
construed to be modified, amended, rescinded, canceled or
Page 4 of 6
waived, in whole or in part, except by a writing signed by both
parties hereto,
f Severability, In the event that any of the terms of this
Agreement are in conflict with any rule of law or statutory
provision or otherwise unenforceable under the laws or
regulations of any government or subdivision thereof, such
terms shall be deemed stricken from this Agreement, but such
invalidity or enforceability shall not invalidate any or the other
terms of this Agreement, and this Agreement shall continue in
force, unless the invalidity or enforceability of any such
provision hereof does substantial violence to, or where the
invalid or unenforceable provision comprise an integral part of,
or are otherwise inseparable from this Agreement.
g. Waiver. No failure by either party hereto to take or assert
any right hereunder shall be deemed to be a waiver of such
right in the event of the continuation or repetition of the
circumstances giving rise to the right.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT
TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE
LAST DATE INDICATED BELOW.
Aquiliu rporation
Signature:
Name: Stephe
Title: President & CEO
Date: January 18, 1999
Licensee's Place of Business:
Tel:
~ity of Miami Bfv/
SIgnature:
Name: Neisen Kasdin, Mayor
Attest: ~4; e~
Ro ert archer, Clty CLerk
Date: ~I \of ~
Fax:
APPROVED AS TO
FORM & LANGUAGE
& fOR EXECUTION
1li~~L-!. ~
Page 5 of6
APPENDIX A
LICENSED SOFTWARE AND DESIGNATED COMPUTER(S)
LICENSED SERVER SOFTWARE: CLIENT SERVER FOR MICROSOFT SQL SERVER
Licence by number of concurrent system users:
OR
Number of customers:
LICENSED CLIENT SOFTWARE:
Customer Service Management
o Billing
o Service Orders
o Meter Reading Integration
o Collections
o Electronic Funds Transfer
Revenue Management
o Cashiering with Misc. Invoicing
o Parking Ticket
o Licenses & Permits Invoicing
o Facilities Invoicing
o Property Taxation
DESIGNATED CLIENT COMPUTER OPERATING SYSTEM(S) (mark applicable):
o Windows 95
o Windows NT
DESIGNATED SERVER COMPUTER:
Manufacturer:
Operating System:
Address of Designated Computer Site:
Contact:
Tel:
Model #:
Version:
Fax:
Page 6 of 6
-
AQUILlUM SOFTWARE LICENSE AGREEMENT ADDENDUM
AQ!J1L1UM'
This Addendum is entered into between the City of Miami Beach, and AQUILIUM SOFTWARE
CORPORATION, this 18th day of January, 1999.
WHEREAS, simultaneous with the execution hereof, the parties have entered into a
Software License Agreement;
WHEREAS, the parties desire to modify the terms of the above-referenced Agreement by this
Addendum.
NOW, THEREFORE, for good and valuable consideration between the parties, the receipt and
sufficiency of which is hereby acknowledged, the parties agree to modify the term, of the above-
referenced Agreement by this Modification as follows:
Software License Agreement:
I, Section 2: Licenses, sub-section b. Limitation of Licensee's rights:
Delete:
(b) make copies of the Documentation,
In Subsection c, Backup Copy - delete:
"Licensee must include the following copyright notice on any such backup copy and any media
containing the Software or any part thereof:
This computer software is the confidential and proprietary property of Aquilium Software
Corporation, Great Plains Software and/or Microsoft Corporation. Any unauthorized use,
reproduction or transfer of the computer software is strictly prohibited. Copyright 1994
Aquilium Software Corporation. Portions Copyright 1994, Great Plains Software, Inc.
This is an unpublished work and is subject to limited distribution and restricted disclosure
only. All rights reserved."
2, Section 6 - Limited Warranty, sub-section a, Limited Warranty:
Delete all references of "Ninety (90)" days and replace with "One Hundred Eighty (180) days
throughout entire paragraph,
3, Section 9 - Reads "Governing Law" is deleted in its entirety and replaced by the following;
Governing Law, This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida, USA, The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this 18th day
of January 1999.
WARE CORPORATION
I BEACH, INC.
By:
Stephen
Its: President & CEO
Dated: January 18, 1999.
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City At~ornay
Dofe
2
..
;,'..
'i~
-
AQYI LlUM'
AQUILIUM SOFTWARE CORPORATION
MAINTENANCE AGREEMENT
Between
Aquilium Software Corp.
4950 Y onge Street, Suite 800
Toronto, Ontario M2N 6Kl
Canada
And
City of Miami Beach
1100 Washington Avenue
Miami Beach, FL 33139
This agreement is made between Aquilium Software Corp., Toronto, ON, referred to as "We" or
the first person plural and "customer name" referred to as "You" or the second person.
CONTRACT PERIOD:
From January 22, 1999 to & including January 21,2000
Total Maintenance Agreement Fee plus GST $ 6,500.00.
AQQ Maintenance Agreement
Page 1 of 4
01/18/99
1. DEFINITIONS
Software Maintenance
For Great Plains Dynamics and Aquilium software you
will receive:
. Periodic software releases which incorporate minor
refinements and significant product features;
. Payroll tax maintenance releases when applicable;
. Quarterly technical bulletins.
Telephone Support
We will respond to your telephone call for software
support within one hour or we will offer you a $25
purchase credit,
Guaranteed response times are available during published
support department hours. We do not guarantee response
times during holidays, weekly departmental meetings or
storm closures. We do not guarantee resolutions to
questions within the guarantee period, only responses to
initial calls,
Software-computer applications programs installed on
your systems.
2. SERVICES PROVIDED
We agree to provide you with services for the software
detailed in Schedule A during the term of the contract or
renewal,
Software Support
We will provide telephone support for the software listed
in Schedule A according to the Support option specified.
Programming Support
We will provide telephone and modem support for the
custom software listed in Schedule A. Upon notification
of a program error in the program, we will provide the
customer with program modifications or work arounds
until modifications are available,
Program errors are commonly referred to as bugs, They
do not include new features or new processes.
3. HOURS OF SERVICE
We agree to provide services during normal working
hours (9:00 a.m. to 5:00 p.m" Monday through Friday,
except legal holidays) - Eastern Standard Time.
For services outside normal working hours see Schedule
B.
Page 2 of 4
4. EXCUSED PERFORMANCE
We will not be in default of this Agreement or liable for
any delay, failure of performance or interruption of
service resulting from:
. Acts of God;
. Transportation delays;
. Or any other force beyond our reasonable control.
5. SERVICES NOT INCLUDED
You have specific warranties and rights under the
manufacturer's warranties and under law that are not
governed by the Agreement.
You may incur additional charges for labor if your system
needs maintenance due to:
. System failure due to environmental conditions;
. Loss of power, or power fluctuations;
. Software malfunction including operating systems
and applications programs not covered by this
Agreement;
6. ADDITIONAL CHARGES
Additional charges will be billed according to the rates in
Schedule B for the following:
. Services not covered under this Agreement
. Services outside of normal working hours,
7. LIMITATIONS OF LIABILITY
We are not liable for special, incidental or consequential
damages that may occur in connection with services or
your use of the system. Such damages include, but are
not limited to, loss of profits or revenue, or other
downtime costs, even if we have been advised of the
possibility of such damages.
Data and applications software are your responsibility
and we accept no responsibility for data and software.
We do not make any express or implied warranties,
including, but not limited to, the implied warranties of
merchantability and fitness for a particular purpose,
In any event, our liability under this Agreement is limited
in the annual agreement fee,
8. SOFfW ARE ADDITIONS
This Agreement will apply to any additional software
purchased from us. The charge will be pro-rated to the
end of the term of this Agreement.
9. RENEWAL
This Agreement may be renewed for another term upon
receipt of the Agreement Fee in effect at the renewal date,
We will give you notice in writing of any changes in fees
or coverage 30 days prior to the renewal of the contract,
10. EARLY TERMINATION
If you wish to terminate this Agreement early, you are not
entitled to a refund or a credit for fees paid.
11. MISCELLANEOUS TERMS
Service fees do not include PST or GST,
You will grant us access to the system during normal
working hours,
You will take appropriate safeguards to protect against
data destruction and to insure your
ability to recreate the data as necessary, This generally
means performing regular backups and maintaining safe
storage of the backup media.
This Agreement may not be assigned without prior
notification,
This Agreement constitutes the entire agreement between
the parties. No representations, inducements, promises,
negotiations or agreements, oral or otherwise, not
contained herein, will be of any force or effect.
This Agreement is governed by the Laws of the State of
Florida. ,
Titles and subheadings are for convenience only and shall
not be construed as part of this Agreement.
delivered at Toronto this 18th day of January, 1999.
~ity of Miami ~l!!!JJ
SIgnature: '1!l!.f-
oration
Name: Stephen Pate
Title: President & CEO
Date: January 18, 1999
Page 3 of 4
Name: Neisen Kasdin, Mayor
Attest: ~r f~
Ro ert archer, City Clerk
Date: ?--j tt I q 'i
Tel: (305) 673-7010
Fax.: (305) 673-7782
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
;{f~
it)' Attorney
\(~ rj
Maintenance Agreement Schedule A - Additional Charges
SOFTWARE PROGRAM RESPONSE LEVEL
Dynamics System Manager 1 Hour
Aquilium Customer Service 1 Hour
Maintenance Agreement Schedule B - Additional Charges
Hourly Fees -- $125 to $200 per hour
Overtime and Weekends - time and a half
Holidays - double time
Page 4 of 4
AQUILIUM SOFTWARE CORPORATION
SOFTWARE & CONSULTING AGREEMENT
AQYILlUM'
City of Miami Beach
11 00 Washington Avenue
Miami Beach, FL 33139
(Hereinafter referred to as the "CUSTOMER")
Will purchase
And
Aquilium Software Corporation
4950 Y onge Street
Toronto, ON, Canada
(Hereinafter referred to as "ASC")
Shall sell and deliver the following software and services:
Description of Software
ASC Customer Service Management: 10,000 Customers
Billing
Advanced Collections
Service Orders
Meter Reader Integration
Electronic Funds Transfer
8 additional concurrent users
Screen Modifier with Visual Basic (3 users)
Total Software License (with 8 more users for 10 total)
Additional users @ $645 each
Annual Maintenance Contract: Req'd. First Year
Estimated Implementation/Consulting Services
Three (3) weeks on site training
Next 5 years Annual Maint. per year rate
Price
$ 32,500
Included
Included
Included
Included
Included
$4,360
$5,000
$ 41,860
$6,500
$56,875
$18,150
$8,100
CUSTOMER agrees to remit software and maintenance as follows-
Software Licences
Software Maintenance
$ 41,860
$ 6,500
$ 48,360
On-signing
Maintenance $ 6,500
Software License $ 14,232
Sub-Total on Signing $ 20,732
On-installation $ 13,814
60 Days from Installation $ 13,814
The customer will install the necessary workstation operating systems, either Windows NT 4.0 or
Windows 95, and install Windows NT 4.0 and Microsoft SQL Server 6.5 on the server. All
operating systems will be installed at the latest service pack level. Software installation occurs
1
AQUILIUM SOFTWARE CORPORATION
SOFTWARE & CONSULTING AGREEMENT
when ASC has installed the Dynamics and Aquilium application software on the Customer's
server and up to five workstations. Aquilium will ensure the software will function but is not
required to demonstrate complete application functionality as part of software installation. These
services are part of the implementation services.
Implementation Service Rates
Project Management $ 150 Hour
Partial Data Conversion and System Set-up $ 125 Hour
Intermediate CIS Consultant $ 100 Hour
Business Consultant $ 125 Hour
TOTAL ESTIMATED FEES FOR THIS
AGREEMENT - $ 56,875
CUSTOMER understands that this is an estimate and that additional hours may be necessary for
project completion for variables not under the control of ASC. Billing for actual services will be
done on a time and material basis and may result in a total fee billings of less or more than
$56,875.
The time allocated to data conversion assumes that the CUSTOMER's existing vendor or
their own staff will provide existing system data to be imported in a format provided in
advance by ASC. ASC will expect that the CUSTOMER assign one of their employees as a
project leader. This person will need to allocate 50% to 75% of his/her time to this
implementation. In addition, data conversion will require one CUSTOMER employee to
work with ASC staff during the conversion process.
CUSTOMER agrees to remit the total services fees as follows (check one):
[ ] --'percent of the total fee in advance, balance upon completion of delivery of
services.
[ ] Billed twice monthly and due in 30 days.
CUSTOMER understands that these implementation services constitute an estimate only, and that
the actual performance of the aforementioned services may differ, based on variables not within
the control of ASC. In the case that the service(s) require additional time, and with CUSTOMER's
approval as provided above, additional fees will be invoiced at a rate equal to the rate quoted for
that service. CUSTOMER has the right to request that the estimated hours not be exceeded, in
which case the CUSTOMER shall pay for all services rendered to date and ASC will be obligated
to cease billable activities and deliver material then completed. CUSTOMER agrees to pay all
ASC's reasonable out-of-pocket travel and living expenses associated with the fulfillment of this
engagement by ASC upon invoicing by ASC. These out-of-pocket expenses are estimated to
consist of airline flights, economy rental car ground transportation and accommodations in a mid-
2
AQUILIUM SOFTWARE CORPORATION
SOFTWARE & CONSULTING AGREEMENT
range hotel. A maximum per diem rate for living expenses such as lodging and meals is
established as $135.00 per day. To the maximum extent possible, ASC agrees to book
transportation in the time and manner to provide the greatest economy for the CUSTOMER.
Additional Terms and Conditions are included on the preceding and following pages of this
Agreement and are incorporated in this Agreement by reference. The terms govern the rights of
the CUSTOMER in any software developed in connection with services identified above. Upon
execution of this Agreement, both CUSTOMER and ASC are bound to all of the terms and
conditions set forth herein, and ASC will schedule consulting resources in a timeframe mutually
agreeable to CUSTOMER and ASC.
Signature
APPROVED
CUSTOMER
Title:
n Pate
Chief Executive Officer
Robert Parcher, City Clerk
Company:
Date:
Aquilium Software Corporation
January 18, 1999
City of Miami Beach
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
/JtI~ 112.0,\/aa
c orn&)' ~
3
AQ!JILIUM"
AQUILIUM SOFTWARE CORPORATION
SOFTWARE & CONSULTING AGREEMENT
ATTACHMENT A: Terms and Conditions
1. Definitions
a. "Deliverable" means any ASC tangible product (including software) written,
developed or prepared in whole or in part for CUSTOMER under the terms of the
Engagement Letter or Consulting Agreement to which these Terms and Conditions
are attached and incorporated by reference ("the Agreement").
b. "Advice" means any technical assistance or know-how communicated to
CUSTOMER by ASC under the terms of this Agreement other than in a Deliverable.
2. Terms and Conditions
a. Warrantv: Disclaimer of Duties After Acceptance.
ASC warrants that at the time of its receipt by CUSTOMER and for a period of one
(1) year thereafter each Deliverable will substantially conform to the documentation,
Except as provided by the purchase of annual software maintenance and telephone
support, ASC has no duty to maintain, modify or enhance any Deliverable after
acceptance of the Deliverable by CUSTOMER.
b. Acceptance: Sole Remedy.
Each Deliverable shall be deemed accepted by CUSTOMER unless written notice of
non-conformity is received by ASC within one year of CUSTOMER's receipt of the
Deliverable. In the event of discovery by CUSTOMER of a non-conforming
Deliverable, CUSTOMER shall allow ASC to cure the defect. If ASC is unable to
cure the non-conformity within a reasonable time, CUSTOMER is entitled to return
the Deliverable and receive a refund of the amount paid for the Deliverable. The
preceding is customer's sole remedy for non-conformance or breach of warranty.
c. Disclaimer of Warranty.
ASC expressly disclaims all warranties, express or implied, not specifically stated
herein, including any implied warranties of merchantability and fitness for a
particular purpose or warranties regarding infringements of third party rights, whether
arising in law, custom, conduct or otherwise.
d. Limitation of Liability.
Notwithstanding any other provision of this agreement, ASC's liability to customer
and customer's liability to ASC shall be limited to the amounts paid to ASC at the
time the claim of liability is asserted. This limitation shall not apply to liability for
personal injury caused solely by ASC's or customer's negligence. Neither party shall
be responsible to the other for any special, incidental, punitive or consequential
damages, regardless of the nature of the claim made and even if the party had
knowledge of the potential loss or damage.
4
AQUILIUM SOFTWARE CORPORATION
SOFTWARE & CONSULTING AGREEMENT
AQ!JILIUM"
e. Rights to Use and Disclose.
The customer shall have the right to use all Deliverables and Advice in connection
with its internal accounting operations but not in connection with or for the benefit of
the business of any other party, whether in a service bureau relationship or otherwise.
During the term of this Agreement and thereafter, CUSTOMER agrees not to disclose
to any third party (1) any Deliverable or the information contained therein; (2) any
Advice; and (3) the terms of the Agreement. Nothing in this Agreement shall be
construed as assigning to CUSTOMER or barring ASC from using any ideas,
concepts, methods or techniques used by ASC in providing the Deliverables or
Advice.
f. Governing Law
This Agreement shall be governed by the laws of the state of Florida. Any disputes
which may arise out of this agreement shall be litigated in a state court of general
jurisdiction located in Florida.
5
~GRFATPlAINS~
{F[)SOFIWARE
Great Plains Dynamics C/S+
Master Software license Agreement
Business Solutions
for Your Wond
r---.' DO NOT ALTER OR AMEND THIS AGREEMENT IN ANY MANNER WITHOUT CONSENT OF GREAT PLAINS.
LA~ALTERATIONS OR AMENDMENTS WITHOUT SUCH CONSENT WILL VOID THIS AGREEMENT AND YOUR LICENSE TO USE THE SOFTWARE.
This Software License AgreelTl!nt ("Agreement") is entered into by and between Great Plains Software O,C" Inc, ("Great Plains") and the undersi!P1ed licensee ("Licensee"),
1. DEFINITIONS
a. "Application Software" or "Software" includes both the Client Software
and the Process Server Software.
b. "Client Software" means an instance of the current or future Dynamics
C/S+ modules for which Licensee has purchased a license from Great
Plains configured to run with a user-interface allowing a user to initiate
a task and not including software developed by a party other than
Great Plains.
c. "Process Server Software" means an instance of the current or future
Dynamics CIS + modules for which Licensee has purchased a license
from Great Plains configured to perform tasks requested by the Client
Software and not including software developed by a party other than
Great Plains.
d. "Database" means a set of databases (for SQL) or directory structure (for
ISAM) referenced by the Application Software instance that describes a set
of Users, companies and related transactions.
e. "Database Server Software" means the software used to respond to
Database requests made by the Application Software.
f. "Documentation" means any user and technical documentation for the
Software provided by Great Plains in electronic or printed format.
2. LICENSES
a, Grant of license, Great Plains grants Licensee the non-exclusive and
non-transferable right, subject to the terms and conditions of this
Agreement to:
i. copy the Application Software onto an unlimited number of
computers. and use the Appl ication Software, provided that
(1) all Application Software instances reference a single Database
on the Designated Server Computer; and
(2) the number of Client Software instances running concurrently
is limited to the number of users specified in Appendix A; and
ii. use the associated Documentation.
b, Database Server Software. Licensee is required to license the
appropriate Database Server Software from the corresponding third party
provider. The number of Application Server instances running
concurrently may be limited by the Database Server Software license. In
the event Licensee licenses the FairCom or Btrieve database server
software, if marked in Appendix A. the term "Software" includes the
FairCom or Btrieve database server software.
c. Ownership. Great Plains (or its licensor, in the case of any incorporated
third party software) retains ownership in the Software and
Documentation (including all copies thereof) and all rights not
specifically granted to Licensee in this Agreement.
d. Designated Server Computer. Licensee may only execute the Database
Server Software on the computer designated in Appendix A ("Designated
Server Computer") or in a "cluster" which includes the Designated
Server Computer. Use in a cluster is only permitted if there is only one
cumulative installation of the Software actively in use at any one time.
Licensee shall notify Great Plains in advance in the event it intends to
relocate or change the Designated Server Computer. Licensee may
maintain a separate disaster recovery site provided that the installation is
June 1998
used solely for the purposes of backup and emergency use. Licensee may
transfer the Software to any electronic storage device connected to the
Designated Server Computer provided Licensee maintains the original
copy for backup or archival purposes. Licensee may not have more than
one active installation of the Software on the Designated Server Computer
or a cluster unless Licensee purchases additional Software licenses, More
specificallJ no function, such as database administration, or feature, such
as the database schema, of the Software may be performed or used on a
Computer other than the Designated Server Computer.
e Sublicensing/Transfer. The rights of licensee shall not include the right to
grant sublicenses or transfer (including transfer by rental) the Software or
Documentation or the right to use these to benefit any third party. Any
attempt to !rant sublicenses or transfer any rights shall be considered a
breach of this Agreement by Licensee.
f. Backup Copy. Licensee may make a reasonable number of backup
copies of the Software. All such backup copies shall also be subject to the
terms and conditions of this Agreement. Licensee must maintain an
accurate record of the location of such backup copies at all times. Such
record may be inspected and verified by Great Plains at any time.
Licensee may make a reasonable number of copies of the Documentation
or parts thereof for internal use at licensee's place of business.
g. Restrictions on Use. licensee may use the Software and Documentation
only in the conduct of its own business and shall not directly or indirectly
use the Software to process the work of any third party or for any personal
uses. Licensee may use the Software to process accounting data for other
Companies, as defined in this Section. "Company" shall mean one or
more corporations, pannerships, sole proprietorships or other accounting
entities, each of which is controlled by or under common control with
the company to whom this license is granted and each of which has its
own set of accounting records. "Control" of any entity means ownership
of at least 50% of the shares entitled to elect the board of directors or
other management relationship sufficient to control the entity's business
policies and activities. The Software may not be used to process the
accounting data of any entity that is not one of the Companies so defined
and may not be used to operate a service bureau. Any unauthorized use
of the Software will not only automatically void this license but also
subject Licensee and others to legal claims by Grea~ Plains for copyright
infringement and unauthorized use, including claims for injunctive relief
and monetary damages.
h. Enhancement Program. Licensee also purchased a one-year subscription
to the Dynamics C/S+ Enhancement Program. Under this program,
Great Plains will provide Licensee all refinements and added features to
the Software which are released during the one-year subscription period.
Enhancement plans for any future years, if purchased by Licensee, are
based on the then current Great Plains list price for the Software.
i, Decompilation. Licensee shall not disassemble, decompile or otherwise
reverse engineer the Software except and only to the extent that such
activity is expressly permitted by applicable law notwithstanding
this limitation,
j. Export Controls, licensee agrees and certifies that no technical data
received from Great Plains, nor the direct product thereof, will be
shipped, transferred or exported, directly or indirectly, to any country in
violation of any. applicable la\'4 including the United States Export
Administration Act and the regulations thereunder.
k. Reference. Licensee agrees to be listed in the Great Plains' public
customer list.
3. PROPRIETARY RIGHTS AND CONFIDENTIALITY
Ownership, All title and rights of ownership in the Software and
Documentation remain with Great Plains and/or its suppliers or licensors
and are protected by applicable copyright patent. trademark or trade
secret laws. Licensee agrees to take any reasonable step necessary to
protect the proprietary rights of Great Plains and its suppliers or licensors
in the Software and Documentation. including. but not limited to. the
proper display of copyright, trademark. trade secret and other proprietary
notices on any copies of the Software or Documentation. Licensee must
reproduce and include any such notices. other legends and logos on the
backup copies. Licensee must keep the Software free and clear of any
such claims, liens and licenses by third parties.
4. U.s. Gowernment Restricted Rights
If licensee is acting on behalf of any lDlit or agency of the United States
Government ("Government"), the following provisions apply: (i) The
Software and documentation are provided to the Government with
RESTRICTED RIGHTS; (ii) Use, duplication or disclosure by the
Gowemment is subject to restrictions as set forth in subparagraph
(c)(1)(li) of the Rights in Technical Data and Computer Software
clause at DFARS 252.227-7013 and subparagraph (c)(2) of
Commercial Computer Software-Restricted Rights clause at
FAR 52.227-19.
5. TERM AND TERMINATION
a, Term, The licenses granted under this Agreement shall commence at the
time both parties have caused this Agreement to be signed by their
representatives and shall continue until terminated in accordance with
the provisions of this Agreement.
b, Termination. Licensee may terminate this Agreement by destroying or
returning to Great Plains the Software and the Documentation and all
copies thereof. Great Plains may immediately terminate this Agreement if
Licensee breaches any material representation. warranty, obligation or
provision of this Agreement and does not cure such breach within 30 days
of Great Plains' written notification to Licensee of such breach. Upon
termination. Licensee, at the option of Great Plains, shall either promptly
return to Great Plains all copies of the Software and Documentation in
Licensee's possession or destroy all such copies. and shall certify in
writing that all such copies have been destroyed.
6. LIMITED WARRANTIES
a. limited Warranties.
(i) Product Warranty. Great Plains warrants that, for a period of ninety
(90) days from the date the Software is delivered to Licensee, the Software
will substantially conform to the Documentation, provided that it is
properly used on the computer hardware and with the operating system
for which is was designed.
(ii) Media Warranty. Great Plains also warrants that the Software will be
properly copied onto diskettes or other media ("Media") and that the
diskettes and Media on which the Software is recorded will be free from
defects in materials and workmanship under normal use and services for
a period of ninety (90) days from the date the Software is delivered
to Licensee.
(iii) Title Warranty. Great Plains warrants that it is the owner or
authorized licensee of the Software or has the rights to license the
Software to Licensee.
(iv) Year 2000 Warranty. Great Plains warrants that all date-related
flDlctions of the Software will accurately reflect the change from the year
1999 to the year 2000 and beyond, including leap year calculations.
provided that the hardware, third party software and operating system
JIIll! 1998
used with the Software accurately reflect the change and do not affect
the Software.
b. Remedies. Great Plains' entire liability and Licensee's exclusive remedy
relative to the Software shall be for Great Plains, at its option, to either: a)
replace the Software that does not meet the limited warranty described
above and that is returned to Great Plains on the original distribution
media; or b) attempt to correct any errors which Licensee finds in the
Software during the warranty period and which prevent the Software from
substantially performing as described in the Documentation. Any
replacement Software will be warranted for a period of ninety (90) days
from the date such replacement Software is delivered to Licensee.
c. Limitations. The above warranties are null and void if Licensee or any
third party modifies or changes its copy of the Software in any way beyond
the scope of the Dynamics CIS + Modifier or the customization options
contained in the Software, or if failure of the Software has resulted from
accident. abuse or misapplication. In order to receive and maintain the
warranties. Licensee must (i) use the Software in accordance with the
Documentation; (ii) use the Software on the hardware and with the
operating system for which it was designed; and (iii) use only qualified
personnel to operate the system and the hardware. Great Plains will not
be required to maintain compatibility between the Software and software
not specified in this Agreement including. but not limited to. versions of
Software other than those listed in this Agreement. Great Plains does not
warrant that the functions contained in the Software will meet Licensee's
requirements or that the operation of the Software will be uninterrupted.
d. Exceptions. These warranties do not apply to errors or malfunctions
caused by (i) machine malfunction; (ii) equipment or software not
licensed in this Agreement; (iii) use of incorrect procedures or data by
Licensee; or (iv) any other cause not attributable to Great Plains.
e. Duty to inform, If Licensee believes that the Software is not substantially
performing in accordance with the Documentation. Licensee will
immediately notify Great Plains in writing regarding any such non-
performance and will provide a listing of output and such other data as
may be required by Great Plains to reproduce operating conditions as
existed when the non-performance occurred.
l Infringement/Indemnification. Great Plains shall defend or otherwise
dispose of, at its sole cost and expense, any claim, suit or proceeding
brought against Licensee which alleges that the Software, as delivered and
used in accordance with the terms of this Agreement. infringes any patent
or copyright, and to pay the amount of any judgment or settlement,
provided that Licensee gives Great Plains prompt written notice of such
claim. suit or proceeding and gives Great Plains full information and
reasonable assistance in its defense or settlement. Great Plains shall be
entitled to direct such defense and to settle or otherwise dispose of such
claim. suit or proceeding as it sees fit If an injunction is obtained in
such action against Licensee's use of the Software, Great Plains shall, at
its option and expense, either (1) obtain for Licensee the right to
continue to use the Software; or (2) replace the Software with a product
with substantially equivalent functionality; or (3) modify the Software so
that it becomes non-infringing. while maintaining substantially equivalent
functionality; or, if (1). (2) or (3) above are not practical, terminate this
Agreement and reimburse Licensee for the Software license fees actually
paid by Licensee to Great Plains. less an allowance for amortization over a
48-month period, straight-line method. beginning with the date the
Software is delivered to Licensee. Licensee's cooperation with Great
Plains at Great Plains' request. in accordance with this Section, shall be at
Great Plains' expense. which shall include the reasonable costs of
Licensee's initial consultation with its attorney. No other costs or
expenses shall be incurred for the account of Great Plains without Great
Plains' prior written consent. Licensee may participate with Great Plains
in Licensee's own defense in such claim, suit or proceeding. at Licensee's
option and at Licensee's sole expense.
Licensee agrees. to def~nd -and hold harmless Great Plains and its officers
and employees against any loss, cost or expenses inCll"red as a result of a
claim based on modifications to the Software made by or for Licensee
without Great Plains' prior written approval.
7. DISCLAIMER OF WARRANTY
a. EXCEP"fAS STATm ABOVE, GREAT PLAINS MAKES NO OTHER
WARRANTIES REGARDING THE SOFTWARE OR DOCUMENTATION,
INCWDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED
WARRANTIES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY,
AND ANY OTHER \WUWfI'Y, EXPRESS OR IMPLlm.
b. Any statements made by a dealer or any other third party other than
Great Plains are not warranties and cannot be relied on by Licensee.
c. Great Plains shall not be liable for any claimed non-conformance of the
Software under Article 35(2) of the United Nations Convention on
Contracts for the International Sale of Goods, even if that Convention
were to be determined applicable to this Agreement and the
underlying transactions.
8. LIMITATION OF LIABILITY
IN NO EVENT SHAll GREAT PlAINS OR ANYONE ELSE WHO HAS
BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF
THE SOFTMRE OR THE DOCUMENTATION BE LIABLE FOR ANY
INCIDENTAL. SPECIAL. INDIRECT OR CONSEQUENTIAL DAMAGES,
LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR
TORTIOUS CONDUCT RELATING TO. CAUSED BY OR ARISING OUT
OF ANY BREACH OF OBLIGATIONS OR DELAY IN DELIVERY OF
SOFlWARE OR DOCUMENTATION UNDER THIS AGREEMENT OR
FROM LICENSEE'S USE OR INABILITY TO USE THE SOFTYMRE,
EVEN IF GREAT PLAINS HAS BEEN ADVISm OF THE POSSIBILITY
OF SUCH LOSS OR DAMAGES.
SOME STATES DO NOT AllOW THE EXCWSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES SO
THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
ANY DAMAGES THAT GREAT PLAINS IS REQUIRED TO PAY FOR ANY
AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH OF
CONTRACT OR OTHERWISE, REGARDLESS OF THE FORM OF
ACTION, SHALL, IN THE AGGREGATE, BE LIMITED TO THE PRICE
PAID BY LICENSEE TO GREAT PLAINS FOR THE SOFTWARE.
9. ARBITRATION
a. Disputes, Any dispute, controverSJ cause of action, or claim, of any kind
or nature whatsoever, whether legal or equitable, including, but not
limited to, claims sounding in contract, torts or products liability and
claims based upon alleged violations of consumer protection laws, which
arise out of or relate to (1) the Agreement, or the breach, termination or
invalidity of this Agreement, (2) the sale, installation, modification or use
of the Software sold, or (3) any services rendered in connection with the
sale, installation, modification or use of the Software shall be finally and
exclusively settled by arbitration in accordance with the Arbitration Rules
of the American Arbitration Association in effect on the date of this
Agreement by one (1) arbitrator appointed in accordance with such
Rules. The place of arbitration shall be Fargo, North Dakota. Judgment
upon the award of the arbitrators may be entered in any court having
jurisdiction thereof.
b. Governing law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota without regard to the
choice of law or conflict of law principles. The United Nations
Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement.
10. SOURCE CODE ESCROW
Licensee will automatically be enrolled as a beneficiary in Great Plains'
Source Code Escrow Program. To maintain beneficiary status, Licensee
JlIllll998
must comply with the terms and conditions of the Escrow Program. In
the event Licensee is a beneficiary under Great Plains' lo1aildard source
code escrow program for the Software and the source code has been
released to Licensee pursuant to the terms of the escrow program,
Licensee may only use such source code for the purpose of maintaining
the Software licensed to Licensee under this Agreement. In no event shall
licensee be permitted to develop additional products or applications
based on the source code or disclose, transfer or resell the same to
any pa~
11. GENERAL TERMS AND CONDITIONS
a. Relationship. This Agreement does not make either party hereto the
employee, agent or legal representative of the other party for any purpose
whatsoever. Neither party hereto is granted any right or authority to
assume or to create any obligation or responsibilitJ express or implied,
on behalf of or in the name of the other pa~ In fulfilling its obligations
pursuant to this Agreement, each party hereto shall act as an
independent contractor.
b. Assignment, Licensee shall not assign or otherwise transfer any of its
rights or obligations under this Agreement without the prior written
consent of Great Plains. This Agreement shall inure to the benefit of and
shall be binding on the successors of the parties. This Agreement and the
rights and obligation arising hereunder shall not be affected by any
change in the corporate structure or ownership of the parties.
c. Notices, All notices permitted or required to be given hereunder shall be
delivered personally or sent by telecopy or registered or certified mail,
postage prepaid. return receipt requested, addressed to the addresses of
the parties hereto as set forth above or to such other addresses as the
parties may designate by like notice from time to time. Notices so given
shall be effective (a) upon the date of personal delivery, (b) if sent by
teleco~ concurrently with the transmission thereof if the sender's
machine produces a transmission report without notice of a
communication fault, (c) on the third (3rd) business day following the
date on which such notice is mailed by registered or certified mail.
d. Entire Agreement. This Agreement, including Appendix A attached hereto
and by this reference made an integral part hereof, constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof
and supersedes all previous proposals. oral or written, express or implied,
and all negotiations, conversations or discussions heretofore had between
the parties hereto related to the subject matter of this Agreement.
e, Amendment. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part,
except by a writing signed by both parties hereto.
[ Severability. In the event that any of the terms of this Agreement are in
conflict with any rule of law or statutory provision or otherwise
unenforceable under the laws or regulations of any government or
subdivision thereof, such terms shall be deemed stricken from this
Agreement, but such invalidity or ooenforceability shall not invalidate any
of the other terms of this Agreement, and this Agreement shall continue
in force, unless the irwalidity or unenforceability of any such provisions
hereof does substantial violence to, or where the invalid or unenforceable
provisions comprise an integral part of, or are otherwise inseparable
from, the remainder of this Agreement
g. Waiver. No failure by either party hereto to take any action or assert any
right hereunder shall be deemed to be a waiver of such right in the event
of the continuation or repetition of the circumstances giving rise to
such right.
h. Pervasive Rights. Pervasive Software, Inc. shall have the right to enforce
the terms of this A,.eement against Licensee with respect to the Database
Server Software in the event Licensee has selected the Btrieve
Client/Server Database Engine.
12. NO AGENCY OR PARTNERSHIP RELATIONSHIP
Licensee recognizes and acknowledges that any distributor or authorized
reseller of Great Plains, through which Licensee has acquired Great
Plains' Software or obtained services related to Great Plains' Software, is
not the agent or the partner of Great Plains. Rather, any such distributor
or authorized reseller is an independent company, person, or entity with
no authority to bind Great Plains or to make representations or
warranties on behalf of Great Plains. In this regard, as stated in
paragraphs 6, 7, and 11 of this Agreement, Great Plains makes no
representation or warranties regarding its software except as expressly set
forth in this Agreement.
13. EXCWSIVE AGREEMENT
Licensee agrees that the terms and provisions of this Agreement shall
solely and exclusively govern the relationship between Licensee and Great
Plains. To the extent that the terms and conditions of this Agreement
conflict with any other written or oral statements or representations
made by Great Plains including, but not limited to, any statements and
representations set forth in the License Agreement contained in
shrink-wrapped packages of the Software or in electronic on-line
license alreements, the terms and provisions of this Agreement shall
be controlling.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE EXECUTED
BY THEIR DULY AUTHORIIED REPRESENTATIVES AS OF THE LAST DATE INDICATED BELOW
By ~_==-:isen Kasdin, VJf!f/;1
. Robert Parcher, City Clerk
-~=__~.LCA~ f~
Date: 2-14{tt4
Licensee's Place of Business:
(licensee)
GREAT PLAINS SOFTWARE O.C., INC.
By:
Title:
Date:
Tel:
Please be sure that the enclosed Customer Registration Form is completed and returned with this signed agreement.
Fax:
APPROVED AS TO
FORM & lANGUAGE
& FOR EXECUTION
APPENDIX A
LICENSED SOFTWARE AND DESIGNATED COMPUTER(S)
LICENSED SERVER SOFTWARE:
o FairCom Server@
o Btrieve Technologies, Inc. Client/Server Database Engine
o Microsoft SQL Server Database Engine
NUMBER OF CONCURRENT SYSTEM USERS:
DESIGNATED SERVER COMPUTER:
Manufacturer:
Operating System:
Address of Desi"ated Computer Site:
14..
.~
Model #:
Version:
Contact:
Telephone:
FAX:
Jooe 1998
MSAG -OOOO-OUOO (6/98)
~GRFATPlAINse
(USOJ.1WARE
Customer Registration Form
This form must be completed and returned along with the signed License Agreement before
Great Plains will provide registration keys for your Dynamics CIS + modules,
Business Solutions
for Your Wend
1. Company Name
2. Telephone Number
4. Bill To:
Contact
E-mail Address
Address
City
State/Province
Zip/Postal Code
Country
3. Fax Number
5. Ship To:
Contact
E-mail Address
Address
City
State/Province
ZiplPostal Code
Country
6. Who in your organization is the primary day-to-day accounting system user/problem solver (name, title and e-mail)?
7. Who in your organization is responsible for the future direction of your accounting processes and systems (name, title and e-mail address)?
8. MIS Manager/Network Administrator (name and e-mail address)
/f you are running multiple companies, for questions 9-15 please provide information on your largest company.
9. I n what month is your fiscal year end?
10. Is your company:
a subsidiary?
operating subsidiaries?
LI Yes
LI Yes
LlNo
LlNo
13. Transaction Volume: (please indicate volume number)
LI GL Accounts LI Vendors
LI Customers LI Monthly Checks
LI Monthly Invoices Lllnventory Items
11. Number of Employees
LI 0-4 LI 50-99
LI 5-9 Ll100-249
Ll10-24 Ll250-499
Ll25-49 Ll500-749
12. Annual Revenue
LI $O-$499.9K LI $10M-$24.9M
t:J $500K-$999.9K t:J $25M-$49.9M
LI $1M-$4.9M LI $5OM-$74.9M
LI $5M-$9.9M LI $75M-$99.9M
LI $100M-$249.9M
LI $250M-$500M
LJ $500M +
14. General Business Classification (SIC Category)
LI Agriculture, Forestry, Fishing LI Public Administration
LI Construction LI Retail Trade
LI Finance, Insurance & Real Estate LI Services
LI Mining LI Wholesale Trade/Distribution
LI Manufacturing LI Transportation. Communication
& Utilities Administration
Ll750-999
Ll1000-2500
LI 2500+
Your 4-digit SIC code #is:
JIIlI! 1998
15. Company Desc:ription
Please tell us a little about the products and services you provide to your customers.
What does your company do?lWhat is your product and/or service?
Who is your customer?
How does your product(s) and/or service(s) get to the marketplace? (Reseller, Direct, Salespeople, Store Front, etc.)
16. Indicate the brand(s) and quantity of servers you will use to roo
Dynamics C/S+:
o Compaq
o Data General Aviion
o Digital Alpha
o Digital Intel
o HP9000
o HP NetServer
o IBM Intel
o IBM RS6000
o Other (specify)
18. If you are using Microsoft SQL Server as your financial database,
what version are you running?
o Version 6.0 0 Version 6.5
19. Are you using the product WinFrame™ from Citrix Systems?
o Yes LJ No
17. Indicate the brand(s) and quantity of workstations you will use to
run Dynamics CIS + :
o ker
o Apple
o Compaq
ODell
20. Does your company use the Internet?
o Yes ONo
o Digital
o Gateway
o IBM
o Other (specify)
21. Does your company have a web site?
o Yes 0 No
If Yes, please list URL address:
~GRFATPlAINS~
(VSOFIWARE
Business Solutions
for Your World
J1I1ll1998
Great Plains Software
Dynali~ics C/S+ License Agreement Addendum
This Addendum is entered by and between Great Plains Software O.C., Inc. ("Great Plainsll) and
the undersigned licensee ("Licensee") to amend the Dynamics ClS+ Master Software License
Agreement ("Agreement") between the parties as tallows:
Section 9 is deleted in its entirety and replaced by the following:
Governing Law, This Agreement shall be governed by and construed in. accordance with the
laws of the State of Florida without regard to the choice of law or conflict of law principles,
The United Nations Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement,
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed by their
duly authorized representatives as of the date set forth below.
By:
(Licensee)
1ts:
J. MeMert-Mellnd, Esq.
Coq)Mda t'W..
Gt'Ht PIIIns Software O.c..1nD.
By:
~K'f~
Robert Parcher, City Clerk
Date: 1114/99
l1mn: Miami Beach
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
1ti. VJ-,hrl
Attorney ~