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HomeMy WebLinkAboutTravis Systems, Inc-10/1/2012Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 END USER LICENSE AGREEMENT This End User License Agreement (the "Agreement") is entered into this 15 day of e , 2012 by and between the City of Waterloo, Iowa, acting by and through its Community Development Board ("Licensee"), and Travis Systems, Inc. ("Licensor"), an Iowa Corporation having its principal place of business at 3304 Rosewood Court NE, Cedar Rapids, IA 52402 (Licensee and Licensor are each a "Party" and shall collectively be referred to as the "Parties"). WHEREAS, Licensor develops and creates a product comprised of software programs and applications and supporting documents (the "Documents") related to the acquisition, management and repayment of funds for community and housing rehabilitation projects (hereinafter defined as the "Software"); and WHEREAS, Licensor desires to provide Licensee a non-exclusive license to use the Software on the terms set forth herein; NOW, THEREFORE, in exchange for the mutual promises and other valuable consideration recited herein, the Parties agree to the following terms and conditions: 1. Software License 1.1 Limitations on Use The non-exclusive license conveys Licensee a limited right to use the Software and Documents. Through the license, Licensor does not sell, transfer, or convey rights of ownership, reproduction, alteration, derivative work creation, or public display of or in the Software. Further, through this Agreement, Licensor does not sell, transfer, or convey rights to make, sell, offer to sell, import, export, reverse engineer, de -compile, sublicense or otherwise transfer the Software or rights in or to the Software. The Parties understand that if the Parties agree that Licensee is to receive any additional rights in the Software, or services related to customization, modification, support, maintenance, training, or other products or services beyond the limited, non-exclusive license to use the Software and the Documents, such rights, products, or services will be separately negotiated by the Parties and addressed in a separate writing. 1.2 Grant of License Licensor grants Licensee a non-exclusive, non -transferable license to (1) use the Software and Documentation solely for its internal operations at the physical Location(s), as defined below, by individuals physically present at the Location(s) who are using the Software on computer systems physically present at the Location(s) and on the environment designated for the Software, and (2) copy the Software and Documentation for Licensee's own archival or backup purposes only, provided that all titles, trademarks, and copyright, proprietary and Travis Systems, Inc. • 3304 Rosewood Ct NE, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 1 restricted rights notices shall be reproduced in all such copies, and that all such copies shall be subject to the terms of this Agreement. 1.3 Distribution Except as explicitly provided herein, Licensee shall not: (1) make available nor distribute all or part of the Software or Documentation to any third party by assignment, sublicense or by any other means; (2) copy, adapt, reverse engineer, de -compile, disassemble, or modify, in whole or in part, any of the Software or Documentation; or (3) use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow third party access to the Software. 1.4 Locations "Locations" include Licensee's offices at the following addresses, as those offices are staffed and utilized by Licensee as of the date of delivery: Community Development Office City of Waterloo, IA 620 Mulberry Street Waterloo, IA 50703 Locations do not include any location other than those listed above. In the event that Licensee substantially expands use, personnel, or the provision of services at said Location, or in the event that Licensee reorganizes, consolidates, or otherwise transfers use, personnel, or other provision of services to a separate site from the Locations, Licensee shall notify Licensor of such change in writing and Licensor shall, within thirty (30) days of receipt of such notice, notify Licensee if such change comprises a breach under Section 1 of this Agreement. 2. Installation and Acceptance Licensor shall use reasonable efforts to deliver the licensed copies of the Software and Documentation to the Location(s) on the target date. Licensee shall have thirty (30) days from the delivery date to perform acceptance testing. Licensee's acceptance of the Software shall occur at the earlier of Licensee's operational use of the Software, or the expiration of thirty (30) days from the delivery date without the provision of notice by Licensee to Licensor of any error(s). If Licensee provides notice to Licensor of any errors) and Licensor verifies the alleged error(s), the Software shall be accepted upon Licensor's correction of such error(s). 3. Price and Payment 3.1 Price Licensee shall pay the price in accordance with the payment plan set forth below: Total Initial Fee (due upon first day of Software installation): $10,350.00, which includes $8,700.00 for license fees and $1,650.00 for the initial maintenance term fee. Installation and Training Fees: $8,400.00 (7 days @ $1,200.00 per day) Interest Rate: 12% annual Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 2 Payment of the price shall be made by Licensee to Licensor in full without any right of set-off or deduction. 3.2 Tax Licensee shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to this Agreement and any Maintenance and/or Training Agreement between the Parties, or arising out of or in connection with such agreements, other than taxes levied or imposed based upon Licensor's income. In the event that Licensor pays any such taxes on behalf of Licensee, Licensor shall invoice Licensee for such taxes and Licensee agrees to pay such taxes in accordance with this Agreement. If Licensee has tax- exempt status, Licensee shall provide Licensor with proof thereof, and Licensor will be responsible for any applicable sales or use taxes. 3.3 Interest Failure by Licensee to pay any amounts invoiced under this Agreement in full in accordance with this Agreement shall make Licensee liable to pay Licensor interest at the rate of the lesser of one percent (1.0%) per month on the remaining amount due, or at the highest amount permitted by applicable law, such interest to accrue on a daily basis commencing thirty (30) days from the date said amount becomes due. 4. Proprietary Rights Licensee acknowledges and agrees that the copyright, patent, trade secret, and all other intellectual property rights of whatever nature in the Software and Documentation are and shall remain the property of Licensor, and nothing in this Agreement should be construed as transferring any aspects of such rights to Licensee or any third party. 5. Confidentiality 5.1 Confidential Information "Confidential Information", shall mean the Software, Documentation, and terms and conditions of this Agreement. Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity, other than Licensee's employees with a need to know such Confidential Information to perform employment responsibilities consistent with Licensee's rights under this Agreement. Licensee shall safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the protections Licensee uses to protect its own most confidential information. Licensee shall inform its employees of their obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by Licensor, to prevent any unauthorized disclosure, copying or use of the Confidential Information. Licensee acknowledges and agrees that in the event of the Licensee's breach of this Agreement, Licensor will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 3 Licensor shall be entitled to a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of these confidentiality obligations or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy Licensor may have. 5.2 Unauthorized Disclosure Licensee shall notify Licensor immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations by Licensee, and shall fully cooperate with Licensor to help Licensor regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information. 5.3 Exception to Confidentiality The parties acknowledge that Licensee is a public entity that is subject to "open meetings" requirements of Iowa law. Licensor agrees that Licensee may prepare a summary of the material terms of this Agreement for purposes of city council review and approval of same. Licensee agrees that it will not provide access to a copy of this Agreement to any party seeking same under the Iowa "open records" law, unless required by court order. 6. Warranty 6.1 Warranty Disclaimer The Warranty set forth in this Section 6 is a limited warranty and it is the only warranty made by Licensor. Licensor expressly disclaims, and Licensee hereby expressly waives, all other warranties express or implied, including warranties of merchant ability and fitness for a particular purpose. Licensor does not warrant that the Software will meet all of Licensee's requirements or that the operation of the Software will be uninterrupted or error -free. Licensor's limited warranty is in lieu of all liabilities or obligations of Licensor for damages arising out of or in connection with the installation, use or performance of the Software. Except for the above limited warranty, the entire risk of the Software's quality and performance is with the Licensee. 7. Limitation of Liability 7.1 Limitation Licensor shall have no liability with respect to its obligations under this Agreement or otherwise for consequential, exemplary, special, incidental or punitive damages even it has been advised of the possibility of such damages. In any event, the liability of Licensor to Licensee for any reason and upon any cause of action shall be limited to the amount actually paid to Licensor by Licensee under this Agreement. This limitation applies to all causes of action in the aggregate, including without limitation to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, infringement of intellectual property rights, and other torts. 7.2 Force Majeure Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 4 Neither Party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including, without limitation, industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, or any other cause beyond its reasonable control. 8. Term and Termination 8.1 Termination The license granted herein shall remain in effect throughout the term, which is defined as the active use of the Software, unless terminated as provided for in the following sections. 8.2 Breach Licensor may terminate this Agreement and the license, without prejudice to any other remedy Licensor may have, immediately without further obligation to Licensee, in the event of (1) any breach by Licensee of Sections 1, 4 or 5 of this Agreement which cannot be remedied within seven (7) days of Licensor's notice to Licensee of the breach and Licensor's notice of intent to terminate the License; (2) any material breach of this Agreement other than those sections set forth above which cannot be remedied within thirty (30) days of Licensor's notice to Licensee of the breach and Licensor's notice of intent to terminate the License; or (3) Licensee's making an assignment for the benefit of its creditors, the filing under any voluntary bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under the provisions of any law of like import in connection with Licensee, or the appointment of a trustee or receiver for Licensee or its property. 8.3 Remedy Licensee may terminate the License, without prejudice to any other remedy Licensee may have, in the event of any material breach of this Agreement which is not remedied within thirty (30) days of Licensee's notice to Licensor of the breach and Licensee's intent to terminate the License. Termination shall not relieve Licensee's obligation to pay all amounts which are due and payable or which Licensee has agreed to pay. 8.4 Cessation of Use Upon termination of this Agreement, Licensee shall cease using the Software and Documentation and promptly return all copies of the Software, Documentation and all other Confidential Information in its possession or control. Licensee shall delete all copies of such materials residing in on- or off-line computer memory, and destroy all copies of such materials which also incorporate Licensee's Confidential Information. Licensor shall be entitled to enter the Location(s) in Licensor's sole discretion during Licensee's regular business hours, to verify such deletion and destruction or to repossess and remove the Software, Documentation, and any other Confidential Information. Licensee shall, within five (5) days from the effective date of the termination, certify in writing by an officer or director of the Party that all copies of the Software and Documentation have been returned, deleted or destroyed. Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 5 9. Audit Licensor shall be granted reasonable access to the Location and the computer systems of Licensee to inspect and evaluate the files, records and use of the Software by Licensee. At Licensor's sole discretion, Licensor may conduct such audits through employees or through independent agents. If such audit reveals a material breach of Sections 1, 4 or 5 of this Agreement, Licensee shall reimburse Licensor for the reasonable costs associated with the audit. Reasonable access shall include physical access to the Location and electronic access from a remote location. 10. Training 10.1 Basic Training Licensor shall provide group training at the Location during installation of the Software. The cost of the basic training is included in the cost of installation and training. 10.2 Additional Training Additional training to be provided by Licensor, if any, shall be provided in response to a written request from Licensee for additional training, and such additional training shall be provided at a time and place and in a format to be determined at the sole discretion of Licensor. Licensee shall pay all reasonable expenses incurred by Licensor in the provision of additional training, including but not limited to travel, lodging, meals, training materials, and copying. 11. General 11.1 Headings The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation. 11.2 Validity If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected. 11.3 Binding This Agreement will be binding upon and inure to the benefit of the Parties hereto, their respective successors and assigns. Licensee may not assign its rights or obligations under this Agreement without the prior written consent of Licensor. 11.4 No Waiver Failure by either Party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. 11.5 Solicitation Licensee shall not solicit the employment of nor employ any Licensor personnel who has been directly involved in the development, sale, installation, or support of the Software for a period of two (2) years from the later of the termination of such individual's employment at Licensor or the last date of acceptance of any Software. 11.6 Notice Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 6 Unless otherwise agreed to by the Parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address set forth in this Agreement, and addressed to the attention of: LICENSOR: Travis Systems, Inc. 3304 Rosewood Court NE Cedar Rapids, IA 52402 LICENSEE: City of Waterloo, Iowa Community Development Office 620 Mulberry Street Waterloo, IA 50703 Notice shall be deemed to have been received by any Party, and shall be effective, (i) on the day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified or (ii) on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail. 11.7 Survival Sections 4, 5, 8 and 9 shall survive the termination of this Agreement for any reason. 11.8 Entire Agreement This Agreement and its attached schedules comprise the entire agreement between the parties regarding the subject matter hereof and supercedes and merges all prior proposals, understandings and all other agreements, oral and written between the parties relating to the Agreement. 11.9 Time of the Essence Time shall be of the essence in the performance of each Party's obligations under this Agreement. IN WITNESS WHEREOF, the Parties have executed this End User License Agreement by their duly authorized representatives as of the date first written above. LICE7 EE LICENS By. /44.1i By. Name: Ernest G. Clark Title: Mayor Date: Ih'(-ft' bY1g ,7'1( Name: Travis Remmert Title: President & CEO Date: (0 (.5 iz Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 7 Name: Suzy Schares Title: City Clerk Date: C * \9a 1 126 (9 - Schedule A (Maintenance Agreement) This Maintenance Agreement (the "Agreement") is entered into by and between Travis Systems, Inc. ("Licensor"), having its principal place of business at 3304 Rosewood Court NE, Cedar Rapids, IA 52402, and City of Waterloo, Iowa, acting by and through its Community Development Board ("Licensee"), having its principal place of business at 620 Mulberry Street, Waterloo, IA 50703. RECITALS WHEREAS, Licensor and Licensee entered into a certain License Agreement on �� '2.4),, pursuant to which agreement Licensor agreed to license to Licensee the Software as specified and in accordance with the terms of the License Agreement; and WHEREAS, Licensor desires to maintain, and Licensee desires to obtain the maintenance of, the Software on the terms and conditions hereinafter provided; NOW, THEREFORE, in exchange for the mutual promises and other valuable consideration recited herein, the parties agree to the following terms and conditions: TERMS AND CONDITIONS 1. Definitions Capitalized terms shall have the meanings assigned thereto under this Maintenance Agreement or under the accompanying License Agreement. If such meanings shall be in conflict, then for the purpose of this Maintenance Agreement, the meaning assigned herein shall control. 2. Basic Maintenance Services The maintenance services to be provided hereunder (the "Basic Maintenance Services") shall consist of: (a) technical or operational assistance provided by Licensor to Licensee relating to the Software or enhancements thereto, for a maximum of one (1) man-hours per Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 8 month on a non -cumulative basis; and (b) distribution by Licensor to Licensee, at no charge, minor enhancements to the Software which may be developed from time to time by Licensor ("Minor Enhancements"), which enhancements may comprise (i) technical enhancements that alter the operation of the Software or (ii) content enhancements responsive to changes in governmental programs. Basic Maintenance Services shall not include the distribution, support, or provision of subsequent releases of the Software. 3. Maintenance Term and Fees 3.1 Initial Maintenance Term and Fee During a term commencing on the date of delivery of the Software (the "Delivery Date", with each annual anniversary of the Delivery Date being referred to as the "Anniversary Date"), Licensor shall provide the Basic Maintenance Services to Licensee for an annual fee of One Thousand Six Hundred Fifty Dollars ($1,650.00), which fee shall be payable, for the first year, upon the signing of this Agreement. The parties agree that the fee for the first year of the term of this Agreement is included in the Total Initial Fee payable under the License Agreement. 3.2 Subsequent Maintenance Terms and Fees At least thirty (30) days prior to each Anniversary Date, Licensor shall notify Licensee of the annual maintenance fee to be charged by Licensor for the next succeeding year, whereupon, unless Licensee notifies Licensor in writing that this Agreement shall terminate on the Anniversary Date, this Agreement shall be extended and renewed for an additional period of one year at the annual fee so specified by Licensor. 4. Additional Maintenance Services At the request of Licensee, and with the consent of Licensor, Licensor may also provide technical, operational or other assistance or consulting to Licensee in excess of the scope of services included as the Basic Maintenance Services ("Additional Maintenance Services") at Licensor's standard hourly rates then in effect. Payment for Additional Maintenance Services shall be due and payable within thirty (30) days after Licensor invoices for such services. Failure to timely provide payment for Additional Maintenance Services shall constitute default under this Agreement by Licensee. 5. Miscellaneous Conditions The termination of the License Agreement, or of the license granted therein, shall automatically result in the termination of this Agreement. Licensor makes no warranty, express or implied, including the warranty of merchantability or warranty of fitness for a particular purpose, of any kind whatsoever, and all such warranties are hereby excluded by Licensor and waived by Licensee. Licensor shall have no liability with respect to its obligations under this Agreement or otherwise for consequential, exemplary, incidental or punitive damages even if it has been advised of the possibility of such damages. In any event Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 9 Licensors maximum liability to Licensee hereunder shall be limited to the amounts actually paid by Licensee to Licensor hereunder during the term of the License Agreement. 6. Licensee Support The Licensee agrees to provide Licensor with dumps, as requested, and with sufficient support and test time on the Licensee's computer system to duplicate any reported problem, certify that the problem is with the Software, and certify that the problem has been corrected. The Licensee shall inform Licensor in writing of any modifications made by the Licensee to the Software System. Licensor shall not be responsible for maintaining Licensee - modified portions of the Software System or for maintaining portions of the Software System affected by Licensee modified portions of the Software System. Corrections for difficulties or defects traceable to the Licensee's errors or systems changes shall be billed at Licensor's standard time and material charges. 7. Termination In the event of termination of the License Agreement Licensor's obligations under this Maintenance Agreement shall immediately end. Licensor may terminate this Agreement in the event of default by the Licensee. Within thirty (30) days following termination of this Agreement for any reason, other than expiration of the initial term or any renewal term, Licensor shall refund to Licensee a prorated portion of the annual fee for Basic Maintenance Services. 8. Taxes Licensee shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, national, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement. Without limiting the foregoing, Licensee shall promptly pay to Licensor an amount equal to any such items actually paid, or required to be collected or paid by Licensor. If Licensee has tax-exempt status, Licensee shall provide Licensor with proof of tax-exempt status, and Licensor will be responsible for any applicable sales or use taxes. 9. General 9.1 Severability If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. 9.2 Transferability The Licensee may not assign without the prior written consent of Licensor, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. 9.3 Binding Effect Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 10 This Agreement will be binding upon, and will inure to the benefit of, each of the parties hereto and the respective successors and assigns of each. 9.4 Waiver The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. The provision of any services on a gratis or discount basis shall not give rise to any additional obligations under this or any related agreements. 9.5 Time of the Essence Time shall be of the essence in the performance of each party's obligations under this Agreement. IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement by their duly authorized representatives as of the date first written above. LICENSOR Z By: Travis emmert Presi• ent & CEO C)r- Date Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 11 Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 END USER LICENSE AGREEMENT This End User License Agreement (the "Agreement") is entered into this day of 2012 by and between the City of Waterloo, Iowa, acting by and through its Community Development Board ("Licensee"), and Travis Systems, Inc. ("Licensor"), an Iowa Corporation having its principal place of business at 3304 Rosewood Court NE, Cedar Rapids, IA 52402 (Licensee and Licensor are each a "Party" and shall collectively be referred to as the "Parties"). WHEREAS, Licensor develops and creates a product comprised of software programs and applications and supporting documents (the "Documents") related to the acquisition, management and repayment of funds for community and housing rehabilitation projects (hereinafter defined as the "Software"); and WHEREAS, Licensor desires to provide Licensee a non-exclusive license to use the Software on the terms set forth herein; NOW, THEREFORE, in exchange for the mutual promises and other valuable consideration recited herein, the Parties agree to the following terms and conditions: 1. Software License 1.1 Limitations on Use The non-exclusive license conveys Licensee a limited right to use the Software and Documents. Through the license, Licensor does not sell, transfer, or convey rights of ownership, reproduction, alteration, derivative work creation, or public display of or in the Software. Further, through this Agreement, Licensor does not sell, transfer, or convey rights to make, sell, offer to sell, import, export, reverse engineer, de -compile, sublicense or otherwise transfer the Software or rights in or to the Software. The Parties understand that if the Parties agree that Licensee is to receive any additional rights in the Software, or services related to customization, modification, support, maintenance, training, or other products or services beyond the limited, non-exclusive license to use the Software and the Documents, such rights, products, or services will be separately negotiated by the Parties and addressed in a separate writing. 1.2 Grant of License Licensor grants Licensee a non-exclusive, non -transferable license to (1) use the Software and Documentation solely for its internal operations at the physical Location(s), as defined below, by individuals physically present at the Location(s) who are using the Software on computer systems physically present at the Location(s) and on the environment designated for the Software, and (2) copy the Software and Documentation for Licensee's own archival or backup purposes only, provided that all titles, trademarks, and copyright, proprietary and Travis Systems, Inc. • 3304 Rosewood Ct NE, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 1 restricted rights notices shall be reproduced in all such copies, and that all such copies shall be subject to the terms of this Agreement. 1.3 Distribution Except as explicitly provided herein, Licensee shall not: (1) make available nor distribute all or part of the Software or Documentation to any third party by assignment, sublicense or by any other means; (2) copy, adapt, reverse engineer, de -compile, disassemble, or modify, in whole or in part, any of the Software or Documentation; or (3) use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow third party access to the Software. 1.4 Locations "Locations" include Licensee's offices at the following addresses, as those offices are staffed and utilized by Licensee as of the date of delivery: Community Development Office City of Waterloo, IA 620 Mulberry Street Waterloo, IA 50703 Locations do not include any location other than those listed above. In the event that Licensee substantially expands use, personnel, or the provision of services at said Location, or in the event that Licensee reorganizes, consolidates, or otherwise transfers use, personnel, or other provision of services to a separate site from the Locations, Licensee shall notify Licensor of such change in writing and Licensor shall, within thirty (30) days of receipt of such notice, notify Licensee if such change comprises a breach under Section 1 of this Agreement. 2. Installation and Acceptance Licensor shall use reasonable efforts to deliver the licensed copies of the Software and Documentation to the Location(s) on the target date. Licensee shall have thirty (30) days from the delivery date to perform acceptance testing. Licensee's acceptance of the Software shall occur at the earlier of Licensee's operational use of the Software, or the expiration of thirty (30) days from the delivery date without the provision of notice by Licensee to Licensor of any error(s). If Licensee provides notice to Licensor of any error(s) and Licensor verifies the alleged error(s), the Software shall be accepted upon Licensor's correction of such error(s). 3. Price and Payment 3.1 Price Licensee shall pay the price in accordance with the payment plan set forth below: Total Initial Fee (due upon first day of Software installation): $10,350.00, which includes $8,700.00 for license fees and $1,650.00 for the initial maintenance term fee. Installation and Training Fees: $8,400.00 (7 days @ $1,200.00 per day) Interest Rate: 12% annual Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 2 Payment of the price shall be made by Licensee to Licensor in full without any right of set-off or deduction. 3.2 Tax Licensee shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to this Agreement and any Maintenance and/or Training Agreement between the Parties, or arising out of or in connection with such agreements, other than taxes levied or imposed based upon Licensor's income. In the event that Licensor pays any such taxes on behalf of Licensee, Licensor shall invoice Licensee for such taxes and Licensee agrees to pay such taxes in accordance with this Agreement. If Licensee has tax- exempt status, Licensee shall provide Licensor with proof thereof, and Licensor will be responsible for any applicable sales or use taxes. 3.3 Interest Failure by Licensee to pay any amounts invoiced under this Agreement in full in accordance with this Agreement shall make Licensee liable to pay Licensor interest at the rate of the lesser of one percent (1.0%) per month on the remaining amount due, or at the highest amount permitted by applicable law, such interest to accrue on a daily basis commencing thirty (30) days from the date said amount becomes due. 4. Proprietary Rights Licensee acknowledges and agrees that the copyright, patent, trade secret, and all other intellectual property rights of whatever nature in the Software and Documentation are and shall remain the property of Licensor, and nothing in this Agreement should be construed as transferring any aspects of such rights to Licensee or any third party. 5. Confidentiality 5.1 Confidential Information "Confidential Information", shall mean the Software, Documentation, and terms and conditions of this Agreement. Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity, other than Licensee's employees with a need to know such Confidential Information to perform employment responsibilities consistent with Licensee's rights under this Agreement. Licensee shall safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the protections Licensee uses to protect its own most confidential information. Licensee shall inform its employees of their obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by Licensor, to prevent any unauthorized disclosure, copying or use of the Confidential Information. Licensee acknowledges and agrees that in the event of the Licensee's breach of this Agreement, Licensor will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 3 Licensor shall be entitled to a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of these confidentiality obligations or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy Licensor may have. 5.2 Unauthorized Disclosure Licensee shall notify Licensor immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations by Licensee, and shall fully cooperate with Licensor to help Licensor regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information. 5.3 Exception to Confidentiality The parties acknowledge that Licensee is a public entity that is subject to "open meetings" requirements of Iowa law. Licensor agrees that Licensee may prepare a summary of the material terms of this Agreement for purposes of city council review and approval of same. Licensee agrees that it will not provide access to a copy of this Agreement to any party seeking same under the Iowa "open records" law, unless required by court order. 6. Warranty 6.1 Warranty Disclaimer The Warranty set forth in this Section 6 is a limited warranty and it is the only warranty made by Licensor. Licensor expressly disclaims, and Licensee hereby expressly waives, all other warranties express or implied, including warranties of merchant ability and fitness for a particular purpose. Licensor does not warrant that the Software will meet all of Licensee's requirements or that the operation of the Software will be uninterrupted or error -free. Licensor's limited warranty is in lieu of all liabilities or obligations of Licensor for damages arising out of or in connection with the installation, use or performance of the Software. Except for the above limited warranty, the entire risk of the Software's quality and performance is with the Licensee. 7. Limitation of Liability 7.1 Limitation Licensor shall have no liability with respect to its obligations under this Agreement or otherwise for consequential, exemplary, special, incidental or punitive damages even it has been advised of the possibility of such damages. In any event, the liability of Licensor to Licensee for any reason and upon any cause of action shall be limited to the amount actually paid to Licensor by Licensee under this Agreement. This limitation applies to all causes of action in the aggregate, including without limitation to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, infringement of intellectual property rights, and other torts. 7.2 Force Majeure Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 4 Neither Party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including, without limitation, industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, or any other cause beyond its reasonable control. 8. Term and Termination 8.1 Termination The license granted herein shall remain in effect throughout the term, which is defined as the active use of the Software, unless terminated as provided for in the following sections. 8.2 Breach Licensor may terminate this Agreement and the license, without prejudice to any other remedy Licensor may have, immediately without further obligation to Licensee, in the event of (1) any breach by Licensee of Sections 1, 4 or 5 of this Agreement which cannot be remedied within seven (7) days of Licensor's notice to Licensee of the breach and Licensor's notice of intent to terminate the License; (2) any material breach of this Agreement other than those sections set forth above which cannot be remedied within thirty (30) days of Licensor's notice to Licensee of the breach and Licensor's notice of intent to terminate the License; or (3) Licensee's making an assignment for the benefit of its creditors, the filing under any voluntary bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under the provisions of any law of like import in connection with Licensee, or the appointment of a trustee or receiver for Licensee or its property. 8.3 Remedy Licensee may terminate the License, without prejudice to any other remedy Licensee may have, in the event of any material breach of this Agreement which is not remedied within thirty (30) days of Licensee's notice to Licensor of the breach and Licensee's intent to terminate the License. Termination shall not relieve Licensee's obligation to pay all amounts which are due and payable or which Licensee has agreed to pay. 8.4 Cessation of Use Upon termination of this Agreement, Licensee shall cease using the Software and Documentation and promptly return all copies of the Software, Documentation and all other Confidential Information in its possession or control. Licensee shall delete all copies of such materials residing in on- or off-line computer memory, and destroy all copies of such materials which also incorporate Licensee's Confidential Information. Licensor shall be entitled to enter the Location(s) in Licensor's sole discretion during Licensee's regular business hours, to verify such deletion and destruction or to repossess and remove the Software, Documentation, and any other Confidential Information. Licensee shall, within five (5) days from the effective date of the termination, certify in writing by an officer or director of the Party that all copies of the Software and Documentation have been returned, deleted or destroyed. Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 5 9. Audit Licensor shall be granted reasonable access to the Location and the computer systems of Licensee to inspect and evaluate the files, records and use of the Software by Licensee. At Licensor's sole discretion, Licensor may conduct such audits through employees or through independent agents. If such audit reveals a material breach of Sections 1, 4 or 5 of this Agreement, Licensee shall reimburse Licensor for the reasonable costs associated with the audit. Reasonable access shall include physical access to the Location and electronic access from a remote location. 10. Training 10.1 Basic Training Licensor shall provide group training at the Location during installation of the Software. The cost of the basic training is included in the cost of installation and training. 10.2 Additional Training Additional training to be provided by Licensor, if any, shall be provided in response to a written request from Licensee for additional training, and such additional training shall be provided at a time and place and in a format to be determined at the sole discretion of Licensor. Licensee shall pay all reasonable expenses incurred by Licensor in the provision of additional training, including but not limited to travel, lodging, meals, training materials, and copying. 11. General 11.1 Headings The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation. 11.2 Validity If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected. 11.3 Binding This Agreement will be binding upon and inure to the benefit of the Parties hereto, their respective successors and assigns. Licensee may not assign its rights or obligations under this Agreement without the prior written consent of Licensor. 11.4 No Waiver Failure by either Party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. 11.5 Solicitation Licensee shall not solicit the employment of nor employ any Licensor personnel who has been directly involved in the development, sale, installation, or support of the Software for a period of two (2) years from the later of the termination of such individual's employment at Licensor or the last date of acceptance of any Software. 11.6 Notice Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 6 Unless otherwise agreed to by the Parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address set forth in this Agreement, and addressed to the attention of: LICENSOR: Travis Systems, Inc. 3304 Rosewood Court NE Cedar Rapids, IA 52402 LICENSEE: City of Waterloo, Iowa Community Development Office 620 Mulberry Street Waterloo, IA 50703 Notice shall be deemed to have been received by any Party, and shall be effective, (i) on the day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified or (ii) on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail. 11.7 Survival Sections 4, 5, 8 and 9 shall survive the termination of this Agreement for any reason. 11.8 Entire Agreement This Agreement and its attached schedules comprise the entire agreement between the parties regarding the subject matter hereof and supercedes and merges all prior proposals, understandings and all other agreements, oral and written between the parties relating to the Agreement. 11.9 Time of the Essence Time shall be of the essence in the performance of each Party's obligations under this Agreement. IN WITNESS WHEREOF, the Parties have executed this End User License Agreement by their duly authorized representatives as of the date first written above. LICE EE By. /61A1-41 (s Name: Ernest G. Clark Title: Mayor Date: C) (-z' 2i f 11 7Z11.; LICENSOR By: Name: Travis Remmert Title: President & CEO Date: Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 7 Name: Suzy Schares Title: City Clerk Date: OC ----61/402.--- 1 � 90 (9 Schedule A (Maintenance Agreement) This Maintenance Agreement (the "Agreement") is entered into by and between Travis Systems, Inc. ("Licensor"), having its principal place of business at 3304 Rosewood Court NE, Cedar Rapids, IA 52402, and City of Waterloo, Iowa, acting by and through its Community Development Board ("Licensee"), having its principal place of business at 620 Mulberry Street, Waterloo, IA 50703. RECITALS WHEREAS, Licensor and Licensee entered into a certain License Agreement on , pursuant to which agreement Licensor agreed to license to Licensee the Software as specified and in accordance with the terms of the License Agreement; and WHEREAS, Licensor desires to maintain, and Licensee desires to obtain the maintenance of, the Software on the terms and conditions hereinafter provided; NOW, THEREFORE, in exchange for the mutual promises and other valuable consideration recited herein, the parties agree to the following terms and conditions: PERMS AND CONDITIONS 1. Definitions Capitalized terms shall have the meanings assigned thereto under this Maintenance Agreement or under the accompanying License Agreement. If such meanings shall be in conflict, then for the purpose of this Maintenance Agreement, the meaning assigned herein shall control. 2. Basic Maintenance Services The maintenance services to be provided hereunder (the "Basic Maintenance Services") shall consist of: (a) technical or operational assistance provided by Licensor to Licensee relating to the Software or enhancements thereto, for a maximum of one (1) man-hours per Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 8 month on a non -cumulative basis; and (b) distribution by Licensor to Licensee, at no charge, minor enhancements to the Software which may be developed from time to time by Licensor ("Minor Enhancements"), which enhancements may comprise (i) technical enhancements that alter the operation of the Software or (ii) content enhancements responsive to changes in governmental programs. Basic Maintenance Services shall not include the distribution, support, or provision of subsequent releases of the Software. 3. Maintenance Term and Fees 3.1 Initial Maintenance Term and Fee During a term commencing on the date of delivery of the Software (the "Delivery Date", with each annual anniversary of the Delivery Date being referred to as the "Anniversary Date"), Licensor shall provide the Basic Maintenance Services to Licensee for an annual fee of One Thousand Six Hundred Fifty Dollars ($1,650.00), which fee shall be payable, for the first year, upon the signing of this Agreement. The parties agree that the fee for the first year of the term of this Agreement is included in the Total Initial Fee payable under the License Agreement. 3.2 Subsequent Maintenance Terms and Fees At least thirty (30) days prior to each Anniversary Date, Licensor shall notify Licensee of the annual maintenance fee to be charged by Licensor for the next succeeding year, whereupon, unless Licensee notifies Licensor in writing that this Agreement shall terminate on the Anniversary Date, this Agreement shall be extended and renewed for an additional period of one year at the annual fee so specified by Licensor. 4. Additional Maintenance Services At the request of Licensee, and with the consent of Licensor, Licensor may also provide technical, operational or other assistance or consulting to Licensee in excess of the scope of services included as the Basic Maintenance Services ("Additional Maintenance Services") at Licensor's standard hourly rates then in effect. Payment for Additional Maintenance Services shall be due and payable within thirty (30) days after Licensor invoices for such services. Failure to timely provide payment for Additional Maintenance Services shall constitute default under this Agreement by Licensee. 5. Miscellaneous Conditions The termination of the License Agreement, or of the license granted therein, shall automatically result in the termination of this Agreement. Licensor makes no warranty, express or implied, including the warranty of merchantability or warranty of fitness for a particular purpose, of any kind whatsoever, and all such warranties are hereby excluded by Licensor and waived by Licensee. Licensor shall have no liability with respect to its obligations under this Agreement or otherwise for consequential, exemplary, incidental or punitive damages even if it has been advised of the possibility of such damages. In any event Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 9 Licensor's maximum liability to Licensee hereunder shall be limited to the amounts actually paid by Licensee to Licensor hereunder during the term of the License Agreement. 6. Licensee Support The Licensee agrees to provide Licensor with dumps, as requested, and with sufficient support and test time on the Licensee's computer system to duplicate any reported problem, certify that the problem is with the Software, and certify that the problem has been corrected. The Licensee shall inform Licensor in writing of any modifications made by the Licensee to the Software System. Licensor shall not be responsible for maintaining Licensee - modified portions of the Software System or for maintaining portions of the Software System affected by Licensee modified portions of the Software System. Corrections for difficulties or defects traceable to the Licensee's errors or systems changes shall be billed at Licensor's standard time and material charges. 7. Termination In the event of termination of the License Agreement Licensor's obligations under this Maintenance Agreement shall immediately end. Licensor may terminate this Agreement in the event of default by the Licensee. Within thirty (30) days following termination of this Agreement for any reason, other than expiration of the initial term or any renewal term, Licensor shall refund to Licensee a prorated portion of the annual fee for Basic Maintenance Services. 8. Taxes Licensee shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, national, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement. Without limiting the foregoing, Licensee shall promptly pay to Licensor an amount equal to any such items actually paid, or required to be collected or paid by Licensor. If Licensee has tax-exempt status, Licensee shall provide Licensor with proof of tax-exempt status, and Licensor will be responsible for any applicable sales or use taxes. 9. General 9.1 Severability If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. 9.2 Transferability The Licensee may not assign without the prior written consent of Licensor, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. 9.3 Binding Effect Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 10 This Agreement will be binding upon, and will inure to the benefit of, each of the parties hereto and the respective successors and assigns of each. 9.4 Waiver The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. The provision of any services on a gratis or discount basis shall not give rise to any additional obligations under this or any related agreements. 9.5 Time of the Essence Time shall be of the essence in the performance of each party's obligations under this Agreement. IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement by their duly authorized representatives as of the date first written above. LICENSOR By: )C. Date Travis Remmert Date President & CEO Travis Systems, Inc. • 3304 Rosewood Ct, Cedar Rapids, IA 52402 • www.travissystems.com • 1-800-561-3527 11