Ordinance No. 8,93020000608 -10
ORDINANCE NO. 8930
AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER
AND THE CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND
ATTEST TO A SOFTWARE LICENSING AGREEMENT AND A SOFTWARE
MAINTENANCE AGREEMENT WITH SPINDLEMEDIA, INC., FOR A
PROPERTY TAX APPLICATION; AUTHORIZING PAYMENT BY THE CITY
OF BAYTOWN, THE SUM OF FORTY -TWO THOUSAND FIFTEEN AND
NO /100 DOLLARS ($42,015.00); MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager and the City Clerk of the City of Baytown to execute and attest to a
Software Licensing Agreement with Spindlemedia, Inc., in the amount of TWENTY -NINE
THOUSAND NINE HUNDRED AND NINETY -FIVE DOLLARS ($29,995.00). A copy of said
agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and
purposes.
Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager and the City Clerk of the City of Baytown to execute and attest to a
Software Maintenance Agreement with Spindlemedia, Inc., in the amount of TWELVE
THOUSAND TWENTY AND NO /100 DOLLARS ($12,020.00). A copy of said agreement is
attached hereto, marked Exhibit "B," and made a part hereof for all intents and purposes.
Section 3: That the City Council of the City of Baytown, Texas, authorizes payment to
Spindlemedia, Inc., for the Property Tax Application the sum of FORTY -TWO THOUSAND
FIFTEEN AND NO/ 100 DOLLARS ($42,015.00) pursuant to the agreement.
Section 4: That pursuant to the provisions of Texas Local Government Code Annotated
§ 252.048, the City Manager is hereby granted general authority to approve any change order
involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100
DOLLARS ($25,000.00) or less, subject to the provision that the original contract price may not be
increased by more than twenty -five percent (25 %) or decreased by more than twenty -five percent
(25 %) without the consent of the contractor to such decrease.
Section 5: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
20000608 -10a
® INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 8`h day of June, 2000.
PETE C. ALFAR , Mayor
ATTEST:
G Y W SMITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, §RXity Attorney
10 c: \MyDocuments\ Council\ 99- OOUune \SoftwareLicenseAgreements
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SOFTWARE LICENSING AGREEMENT
THIS AGREEMENT ( "Agreement ") is hereby entered into between City of Ba own
whose offices are located in Baytown, Texas ( "Licensee ") and Spindlemedia, Inc., a Texas
.corporation, whose offices are located at 307 W. 7th St., Suite 902 -C, Fort Worth, Texas
( "Licensor ") on the following terms and conditions:
1. Software License. Licensor hereby grants to Licensee 5 complete user licenses of Tax
Offtce2000 software (the "Licensed Software "), for the City of Baytown and 1 complete
user license Tax Office2000 software for the City of Baytown Delinquent Tax Attomey.
These licenses are granted upon. payment of the license fee set forth in this Agreement.
Payment of the license fee is solely for the right to use. the Licensed Software pursuant to
the terms and conditions of this Agreement and does not constitute the purchase of the
Licensed Software or of any right or title therein.
2. Limitations. Use of the Licensed Software is restricted to Licensee. Licensee shall not
copy the Licensed Software onto any other computer hardware of Licensee without
Licensor's consent, nor shall Licensee permit a third party to copy the Licensed Software -
Licensee shall not have the right to further sub - license the Licensed Software or any part
thereof.. Licensee shall not assign or otherwise transfer, or cause to be transferred, the
Licensed Software or any part thereof, by operation of law or otherwise, directly or
indirectly, including, but not limited to, through any joint venture or in combination with
any other person or entity. Licensee shall not modify or cause to be modified by any
third party the Licensed Software or any part thereof.
3. Proprietary Rights.
(a) Covered Software. Licensee acknowledges and agrees that the Licensed Software,
including the original and all copies thereof, in whole or in part, including all copyright,
patent, trade secret and all other intellectual and proprietary rights therein, are and remain
the sole and exclusive property of the Licensor. Licensee shall take all necessary and
reasonable steps to keep the Licensed Software under adequate, security to reasonably
ensure that no unauthorized copies or uses are made thereof and to protect the
confidentiality of the Licensed Software. Licensee agrees to notify Licensor when it
becomes aware of the existence of any circumstances surrounding any unauthorized
knowledge, possession or use of the Licensed Software or any part thereof by any person
or entity. Licensee _understands and agrees that all aspects of the Licensed Software are
the trade secrets of Licensor, including, but not limited to, the following: systems design,
modular program structure, system logic flow, file content, video and report formats,
coding techniques and routines, file handling, and report and/or forms generation.
(b) License to Custom Work Product. Licensor shall own all right, title and interest in and to
all improvements, enhancements and all customized work product independently created
by Licensor., independently or on behalf of Licensee pursuant to this Agreement
EXHIBIT A
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(liereinafler the "Custom Work Product "). Licensee is granted a paid -up, perpetual, non -
exclusive license to use the Custom Work Product in object code form.
4_ Fees and Payments.
(a) License Fee. in consideration for the License granted hereunder, Licensee agrees to pay
to Licensor the license fee in the amount of $20,000 for TaxOffice2000 and $9,995 for e-
Solution: Tax Web which is due and payable under the terms and conditions set forth in
tivs Agreement. Such fees are to be paid to Licensor at Fort Worth, Tarrant County,
Texas, within 30 days of receipt of the Licensed Software by the Licensee.
(b) Invoices & Payment. Licensee shall pay the license fee, and any applicable surcharge or
out -of- pocket costs authorized under the terms of this Agreement, within thirty (30) days
after date of invoice or upon delivery of the licensed Software whichever is later.
Licensee may not withhold or "setoff' any amounts due hereunder.. Licensor reserves the
right to stop work without prejudice until all amounts due hereunder are paid in full. Any
late payment shall be subject to any costs of collection (including reasonable legal fees)
and shall bear interest at the rate of ten (10) percent per annum until paid.
5. Term and Termination. The term of this Agreement and the duration of the License
granted hereunder shall be perpetual, subject to the payment of the Licensee set forth in
Section 4 hereof. and Licensee's. compliance with the terms and conditions of this
Agreement. This Agreement shall immediately terminate and all rights of Licensee under
the License shall immediately expire. in the event Licensee fails to pay when due the
license fee set forth in Section 4 hereof, or in the event Licensee or Licensor should
breach the terms of this Agreement and fail to cure or commence to cure such. breach
within ten (10) days of receipt of written notice thereof. In the event of the termination of
this Agreement, Licensee's right to use the Licensed Software shall immediately cease,
Licensee shall return immediately to Licensor the Licensed Software, and any and all
copies thereof, whether authorized. or unauthorized, including the user manual and all
written materials. provided to Licensee by Licensor hereunder. Termination of this
Agreement shall be without prejudice to any remedy or cause of action which Licensor or
Licensee may have or the recovery of the Licensed Software, or any monies due
Licensor or Licensee hereunder, and the provisions contained in Sections 3 and 7 shall
specifically survive sut;h termination.
6. Confidential Information.
(a) Acknowledgment..of Confidentiality. Each party hereby acknowledges that it may be
exposed to confidential and proprietary information of the other party, including, without
® limitation, technical information (including functional and technical specifications,
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® designs, drawings, analysis, research, processes, computer programs, methods, ideas,
"know how" and the; like), business information (sales and marketing research, materials,
plans, accounting and financial information, personnel records and the like) and other
information designated as .confidential expressly or by the circumstances in which it is
provided ( "Confidential Information "). Confidential Information does not include (i)
information already known or independently developed by the recipient; (ii) information
in the public domain through no wrongful act of the recipient, or (iii) information
received by the recipient from a third party who, at the time of disclosure, was under no.
legal duty not to disclose such information.
(b) Covenant Not tg Disclose. Both parties hereto expressly waive any right to claim
confidential, privileged or proprietary rights to any and all information exchanged in
furtherance of this Agreement, unless (i) such confidential rights are determined to be
confidential by law or by practices of federal or state agencies and (2) the information is
marked "CONFIDENTIAL" on each page containing alleged confidential information.
Each party shall use at least the same degree of care in safeguarding the other party's
Confidential Information as it uses in safeguarding; its own confidential information.
Licensor, however, understands and acknowledges that should the Licensee receive a
public information request for any information deemed confidential and so marked by the
Licensor, Licensee shall submit the requested documents to the Texas Attorney General
and notify Licensor that it has or will be doing so. Licensee will have no further
responsibility regarding the determination of whether the information contains public
information, for Licensor. agrees that it will be solely responsible and obligated to prove
to the Texas Attorney General that the documents submitted are not subject to disclosure
to the public. Both parties agree that it will comply with the decision of the Texas
Attorney General regarding the release of the requested information.
7. Warranties.
(a) Limited Warranty on Services. So long as this License remains in effect, Licensor shall
ensure that the Licensed Software operates in accordance with the written specifications
contained in the user manual provided to Licensee. Licensor shall provide Licensee with
copies. of bug fixes and interim releases of the Licensed. Software which it generally
distributes as maintenance releases. Licensor does not warrant that Licensee's use of the
Licensed Software will be uninterrupted or error free.
(b) Certain Licensee Assurances. The Licensed Software accurately records, stores,
recognizes, interprets, processes and presents both twentieth (20th) and twenty -first (21 st)
century dates.
(c) Warranty,_Disclai.mer. EXCEPT AS STATED IN THIS SECTION ( "WARRANTIES "),
LICENSOR DISCLAIMS WITH RESPECT TO ALL SERVICES, CUSTOM WORK
PRODUCT, FIXES, ENHANCEMENTS OR OTHER DELIVERABLES
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® HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES, INCLtDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A
PARTICULAR PURPOSE.
8. Limitation of Remedies & Liabilities. The parties acknowledge that the following
provisions have been negotiated by them and reflect a fair allocation of risk:
(a) Remedies.. Licensee's sole and exclusive remedies for Licensors default
hereunder. shall be (i) to obtain the repair, replacement or correction of the
defective services or deliverables to the extent warranted under Section 7 or, if
Licensor reasonably determines that such remedy is not economically or
technically feasible, (ii) to obtain an equitable partial or full refund of amounts
paid with respect to the defective services or deliverables.
(b) Liabilities. LICENSOR SHALI, NOT BE LIABLE FOR ANY AMOUNT
EXCEEDING THE TOTAL AMOUNT OF THE CONTRACT PRICE
ACTUALLY PAID BY LICENSEE. IN NO EVENT SHALL LICENSOR BE
LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, PROFIT OR
BUSTNESS INTERRUPTION EVEN IF LICENSOR 1S NOTIFIED IN
ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING
TO THE SUBJECT MATTER OF THIS AGREEMENT.
9. Notices. Legal notices sent to either party shall be effective when delivered in person or
transmitted by telecopier machine, one (1) day after being sent by overnight courier, or
three (3) days after being sent by first class mail postage prepaid to the address set forth
above, or at such other address as the parties may from time to time give written notice.
This Agreement may be executed in one or more counterparts, each of which when taken
.together shall constitute an original document.
10. Choice of Law: Venue. This Agreement will be governed by the laws of the State of
Texas, and the place of making and the place of performance for all purposes shall be
Baytown, Harris County, Texas.
11. Independent Licensor Status. Licensor is an independent contractor with respect to all
matters arising under this Agreement. Nothing herein shall be deemed to establish a
partnership, joint venture, association or employment relationship between the parties.
Licensor shall remain responsible, and shall indemnify and hold harmless Licensee, for
the withholding and payment of all federal, state and local personal income, wage,
earnings, occupation, social security, unemployment, sickness and disability insurance
taxes, payroll levies or employee benefit requirements (under ER1SA, state law or
otherwise) now existing or hereafter enacted and attributable to Licensor, its employees,
agents and subcontractors.
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® 12. Security, No Conflicts. Each party agrees to inform the other of any information made
available to the other that is classified or restricted data, agrees to comply with the
security requirements imposed by any state or local govemment, or by the United. States
Government, and shall return all such material upon request. Each party warrants that its
participation in this Agreement does not create any conflict of interest prohibited by the
United States government or any other domestic or foreign government and shall
promptly notify the other party if any such conflict arises during the term hereof.
v
13. INSURANCE, INDEMNITY. LICENSOR SHALL MAINTAIN ADEQUATE
INSURANCE PROTECTION COVERING ITS ACTIVITIES HEREUNDER,
INCLUDING COVERAGE FOR STATUTORY WORKERS' COMPENSATION,
COMPREHENSIVE GENERAL LIABILITY FOR BODILY INJURY AND
PROPERTY DAMAGE, AS WELL AS ADEQUATE COVERAGE FOR
VEHICLES. LICENSOR SHALL INDEMNIFY AND HOLD LICENSEE, ITS
OFFICERS, AND EMPLOYEES (COLLECTIVELY REFERRED TO IN TATS
SECTION AS "INDEMNITEES'j HARMLESS FROM ANY AND ALL CLAIMS,
DEMANDS, LAWSUITS, LIABILITIES, COSTS AND EXPENSES FOR BODILY
INJURY, DEATH, TANGIBLE PROPERTY DAMAGE, OR OTHER HARM AND
RELATED COSTS. AND EXPENSES (INCLUDING, BUT NOT LIMI'T'ED TO,
AT'T'ORNEYS' FEES AND DEFENSE COSTS), FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT (COLLECTIVELY "CLAIMS") ARISING OUT OF OR
OCCASIONED IN ANY WAY BY THIS AGREEMENT OR THE SERVICES OR
USE OF THE SERVICES PROVIDED HEREUNDER, WHERE SUCH INJURIES,
DEATH OR DAMAGES ARE CAUSED BY TIME JOINT NEGLIGENCE OF THE
INDEMNITEES AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF
LICENSOR, ITS OFFICERS, AGENTS, AND /OR EMPLOYEES
(HEREINAFTER COLLECTIVELY REFERRED TO AS "INDEMNITORS"). IT
IS THE EXPRESSED. INTENTION OF THE PARTIES, HERETO THAT THE
INDEMNITY PROVIDED FOR IN THIS SECTION IS INDEMNITY BY
LICENSOR TO INDEMNIFY, PROTECT, AND DEFEND THE INDEMNITEES
FROM THE CONSEQUENCES OF (I) THE INDEMNITEES' OWN
NEGLIGENCE WHERE. THAT NEGLIGENCE IS A CONCURRING CAUSE OF
THE INJURY, DEATH OR DAMAGE WITH THAT OF ANY OTHER PERSON
OR ENTITY AND /OR (II) INDEMNITORS' JOINT AND SOLE NEGLIGENCE.
FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS SECTION
SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE
OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR
DAMAGE. RESULTS FROM THE SOLE NEGLIGENCE OF THE
INDEMNITEES UNMIXED WITH THE FAULT ANY OTHER PERSON OR
EN'T'I'T'Y.
THE PROVISIONS OF THIS INDEMNITY SHALL APPLY
NOTWITHSTANDING ANY IMMUNITY PROVIDED LICENSOR UNDER THE
WORKERS' COMPENSATION LAWS OF THE STATE OF TEXAS.
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IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT.
AGAINST THE INDEMNITEES BY REASON OF ANY OF T7HE
PROVISIONS CONTAINED. IN THIS SECTION, LICENSOR FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING
BY LEGAL COUNSEL ACCEPTABLE TO THE LICENSEES,. SUCH
ACCEPTANCE NOT TO BE UNREASONABLY WITHHELD.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION
OR EARLIER TERMINATION OF THIS AGREEMENT.
14. Legal Authority- Each party hereto represents and warrants that it has full legal power
and authority to execute this Agreement and to perform the duties and obligations of such
party contained herein. The individual executing this Agreement on behalf of Licensee
has received all requisite authority to execute this Agreement on behalf of Licensee_
15. Miscellaneous. This Agreement, the Software Maintenance Agreement between the
parties to be executed contemporaneous herewith, and the accompanying Exhibits to such
agreements constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other communications, whether written or oral. This
Agreement may be modified or amended only by a writing signed by both parties.
Except as specifically permitted herein, neither this Agreement nor any rights or
obligations hereunder may be transferred or assigned without the other party's prior
written' consent and any attempt to the contrary shall be void. Neither party shall be
liable for delays caused by events beyond its reasonable control. Waiver of any provision
hereof in one instance shall not preclude enforcement thereof on future occasions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date indicated by.their signatures
below.
LICENSEE:
CITY OF BAYTOWN
By:
Printed Name:
Title:
Date:
LICENSOR:
SPINDLEMEDIA, INC.
B:
y
Name: Steven D. Johnson
Title: President
Date.
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SOFTWARE MAINTENANCE AGREEMENT
THIS AGREEMENT ( "Agreement ") is hereby entered into between City of Baytown
whose offices are located in Baytown, Texas ( "Customer ") and Spindlemedia, Inc, whose offices
are located at 307.W 7th St, Suite 902 -C, Fort Worth, Texas ( "Contractor ") on the following
terms and conditions:
1. Software Maintenance Services.
(a) Scope of Coverage. During the term of this Agreement (the "Term "), Contractor
agrees to provide Customer with. software support services for the Tax Office2000 software (the
"Licensed Software ") licensed by Contractor to Customer pursuant to the Software Licensing
Agreement between the parties. Contractor shall provide Customer with copies of bug fixes and
interim releases of the Licensed Software which it generally distributes as maintenance releases.
In addition, Contractor shall during the Term develop functional enhancements to the Licensed
Software at its prevailing rates or as otherwise agreed in writing. For these purposes, a
"functional enhancement" is a change to the Licensed Software that Contractor believes
materially exceeds or is different from the current version but is not necessary to comply with the
ad valorem tax laws of the State of Texas or any other law, rule or regulation affecting or
pertaining in anyway to such laws ( "Tax Laws "). This may, if feasible,. include workarounds or
accommodations required to make the Licensed Software operate with other technology that
does not comply with Year 2000 Standards. Unless clearly erroneous, Contractor's
characterization of requested service as a "functional enhancement" (rather than. a maintenance
release) shall be diapositive.
As a precondition to Contractor's responsibilities, the Customer shall ensure that:
(i) the Licensed Software, any associated third party software and all equipment is installed and
operated according to applicable specifications; (ii) Customer has installed all updates to
associated third party software and equipment required and has maintained all environmental
conditions according to applicable specifications and industry standards; (iii) Customer has not
introduced other equipment or software having an adverse impact on the Licensed Software; (iv)
any specifications supplied to Contractor by Customer are accurate and complete and (v)
Customer has made no changes to the Licensed Software after the effective date of this
Agreement, nor permitted any changes to be made, other than by or with the express approval of
Contractor or the applicable vendor.
(b) Annual Load. Contractor shall load and balance the certified Appraisal District
Tax Roll on an annual basis, no later than 45 days following Contractor's receipt thereof,
provided that the.magnetic media is free of defects.
(c) Telephone Sunnort. Telephone support of the Licensed Software is available for
the Customer's trained personnel during the lime period from 8:00 a.m. until 5:00 p.m., Texas
time, Monday through Friday, excluding nationally - recognized holidays.
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(d) Errors and Alarms. For purposes of this Agreement, an "Error" in the Licensed
Software is one that prevents the Licensed Software from operating substantially in accordance
with the Tax Uaws or Year 2000 specifications and standards. A "Major Alarm" shall mean a
bona fide error in the Licensed Software that is causing an immediate and significant disruption
of an important business operation of Customer and which could not reasonably be avoided
through minor operational adjustments. A "Minor Alarm" is any Error in the Licensed Software
other than a Major Alarm.
(e) Trouble Reports. Response Times. Customer shall supply Contractor with
verifiable and reproducible evidence of Errors in accordance with the Contractor's "Trouble
Report" procedures. Upon receipt of a Trouble Report, Contractor shall respond by telephone to
acknowledge receipt of the Trouble Report within twenty -four (24) hours.
(1) Major Alarms. To the extent a Trouble Report identifies one or more
Major Alarms, the Contractor shall, with the cooperation of Customer immediately
commence diagnosis of the Error. Once the cause of the Error is known, Contractor shall
provide a temporary fix or workaround to the Error at the earliest opportunity, but in no
event beyond forty -eight (48) hours. Contractor shall thereafter provide a permanent,
correction as soon as practicable.
(2) Minor Alarms. In the ease of Minor Alarms, the Contractor shall, within
reasonable time after receiving a Trouble Report, initiate diagnosis and error correction
efforts. Minor Alarms shall be corrected by Contractor within a reasonable time through
telephone support or through the issuance of periodic updates.
(f) Services. Excluded. The following items are not included under this
Agreement, and will incur additional charges to the Customer at Contractor's hourly rate
set forth on Exhibit "A" attached hereto and incorporated herein for all intents and
purposes, if requested by Customer.
(1) Mortgage company tape processing. including request tapes, billing
tapes and payment tapes,
(2) Conversion of delinquent tax roll tapes and payment tapes for Customer's
attorney,
(3) All support of untrained personnel, which is further defused as all personal
who have not received training from Spindlemedia, Inc .
(4) Custom software corrections, changes or modifications,
(5) Programming for custom reports and document creation with utility
software such as report .writers, word processors and spreadsheets,
(ti) Programming, training or support required as a result of changes in forms,
changes in hardware, or for operator errors which were not the fault of the software, and
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(7) Updates and installation of third party software and, operating system
software products supplied by vendors that charge a separate fee for their support and
update services.
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2. Fees and Payment.
(a) Maintenance Fee. In consideration for the software maintenance services
provided by Contractor to Customer pursuant to this Agreement, Customer . agrees to pay to
Contractor the Maintenance Fee in the amount of $ 6,000 for TaxOffiec2000. The Contractor
may not adjust the Maintenance Fee more frequently than annually, upon each renewal of the
Term, the increase will not exceed 10% (ten percent) of the previous annual fee.
(b) Training Fee. Spindlemedia, Inc will provide training for the 6 (six)
TaxOffice 2000 licensed users for a fee $ 3,000.00. Training to be performed at the City. of
Baytown.
(c) Installation Fee Software installation and setup $ 1,500.00
(d) Data Conversion Fee Data conversion fee $ 1,520.00
(e) Opt -of- Pocket Costs & Taxes. Except as otherwise set forth in Exhibit "A,"
prices quoted do not include, and Customer shall reimburse Contractor for, Contractor's
reasonable, documented out -of- pocket costs incurred by Contractor in the perfornmce of its
duties hereunder and preapproved by the customer in writing including, but not limited to, travel
costs, cab fare, lodging, auto rental, gas, postage, courier fees, long distance telephone and other
similar out -of- pocket expenses not to exceed to the daily allowable per diem limit of the entity.
(f) Invoices _ & Payment. Customer shall pay the Maintenance Fee, and any
applicable surcharge or out -of- pocket costs authorized under the terms of this Agreement, within
thirty (30) days after receipt of the .invoice or receipt of service, whichever is later. Customer
may not withhold or "setoff' any amounts due hereunder. Contractor reserves the right to stop
work without prejudice until all amounts due hereunder are paid in full.. Any late payment shall
be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the
rate of ten (10) percent per atinu m until paid.
3. Term, Termination. The team of this Agreement ( "Terms ") shall continence thirty
days after the installation date and shall continue in full force and effect for a period of one (1)
year, unless terminated earlier as provided herein. The Term shall be automatically renewed for
successive like periods, unless Customer notifies Contractor at least ten (10) days prior to the
expiration of the Term (or renewal Term, as the case may be) that the Term shall not be renewed,
in which case this Agreement shall terminate upon the expiration of the then current Term_ This
Agreement may be terminated earlier on account of either parry's default which remains uncured
upon compliance with the procedures set forth in Section 6 hereof. This Agreement will
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terminate should the Software Licensing Agreement for TaxOffice 2000 termintate for whatever
reason.
4. Warranties.
(a) Limited Warranty on Services. During the Term, Contractor shall ensure that the
Licensed Software operates in accordance with the.written specifications contained in the user
manual provided to Customer. Contractor does not wan-ant that Customer's use of the Licensed
Software will be uninterrupted or error free. Contractor represents and warrants that none of the
Custom Work Product (as defined in the License Agreement) will contain any timer, counter,
lock or similar device (other than security features specifically approved by Customer in such
specifications) that. inhibits or in any way limits its ability to operate.
(b) Certain Customer Assurances. The Licensed Software accurately records, stores
recognizes, interprets, processes and presents both twentieth and twenty -first century dates.
(c) Warranty Disclaimer. EXCEPT AS STATED IN THIS SECTION,
CONTRACTOR. DISCLAIMS WITH RESPECT TO ALL SERVICES, CUSTOM WORK
PRODUCT, FIXES, ENHANCEMENTS OR OTHER DELIVERABLES HEREUNDER, ALL
EXPRESS AND IMPLIED WARRANTIES; INCLUDING ANY TMPLTED WARRANTIES OF
MERCHANTABILITY, TITLE.
5- Limitation of .Remedies. & Liabilities. The parties acknowledge that the following
provisions have been negotiated by them and reflect a fair allocation of risk:
(a) Remedies. Customer's sole and exclusive remedies for Contractor's default
hereunder shall be (i) to obtain the repair, replacement or correction of the defective services or
deliverables to the extent warranted under Section 4 or, if Contractor reasonably determines that
such remedy is not economically or technically feasible, (ii) to obtain an equitable partial or full
refund of amounts paid with respect to the defective services or deliverables.
(b) Liabilities. CONTRACTOR SHALL NOT BE LIABLE FOR ANY AMOUNT
EXCEEDING THE TOTAL AMOUNT OF THE CONTRACT PRICE ACTUALLY PAID BY
CUSTOMER DURING THE TERM. IN NO EVENT SHALL CONTRACTOR BE LIABLE,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR
ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
SAVINGS, PROFIT OR BUSINESS INTERRUPTION EVEN IF CONTRACTOR IS
NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING
TO THE SUBJECT MATTER OF THIS AGREEMENT. .
6. Default. Either party may be declared in default of this Agreement if it breaches
any provision hereof and fails within thirty (30) days after receipt of notice of default to correct
such default or to commence corrective action reasonably acceptable to the other party and
proceed with due diligence to completion. Either party shall be in default hereof if it becomes
insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a
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petition in bankruptcy is filed with respect to the party and is not dismissed within thirty (30)
days.
7. Choice of Law, Venue. This Agreement will be governed by the laws of the Slate:
of Texas, and place of making and the place of performance for all purposes shall be Baytown,
Harris County, Texas.
8. INSURANCE INDEMNITY. CONTRACTOR SHALL MAINTAIN
ADEQUATE INSURANCE PROTECTION COVERING ITS RESPECTIVE
ACTIVITIES HEREUNDER, INCLUDING COVERAGE FOR S'T'ATUTORY
WORKERS' COMPENSATION, COMPREHENSIVE GENERAL LIABILITY FOR
BODILY INJURY AND PROPERTY DAMAGE, AS WELL AS ADEQUATE
COVERAGE FOR VEHICLES. CONTRACTOR SHALL INDEMNIFY AND
CUSTOMER, ITS OFFICERS, AND EMPLOYEES (COLLEC'T'IVELY REFERRED TO
IN THIS SECTION AS "INDEMNITEES") HARMLESS FROM ALL AND ALL
CLAIMS, DEMANDS, LAWSUITS,. LIABILITIES, COSTS AND EXPENSES FOR
BODILY INJURY, DEATH, TANGIBLE PROPERTY DAMAGE, OR OTHER HARM
AND RELATED COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES AND DEFENSE COST), FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT (COLLECTIVELY "CLAIMS ") ARISING OUT OF OR
OCCASIONED IN ANY WAY BV THIS AGREEMENT OR THE SERVICES OR USE
OF THE SERVICES PROVIDED HEREUNDER, WHERE SUCH INJURIES, DEATH
OR DAMAGES ARE CAUSED BY THE JOINT. NEGLIGENCE OF. THE
INDEMNITEES AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF
CONTRACTOR, ITS OFFICERS, AGENTS, AND /OR EMPLOYEES (HEREINAFTER
REFERRED TO AS "INDEMNITORS "). IT IS THE EXPRESSED INTENTION OF THE
PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION
INDEMNITY BY CONTRACTOR TO INDEMNIFY, PROTECT, AND DEFEND THE
INDEMNITEES FROM THE CONSEQUENCES OF (1) THE INDEMNITEES' OWN
NEGLIGENCE WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE
INJURY, DEATH OR DAMAGE WITH THAT OF ANY OTHER PERSON OR ENTITY
AND /OR (I1) INDEMNITORS' JOINT AND SOLE NEGLIGENCE. FURTHERMORE,
THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALT. HAVE NO
APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND
LIABILITY WHERE TIR E INJURY, DEATH , OR DAMAGE RESULTS FROM THE
SOLE NEGLIGENCE OF THE E* DEMNITEES UNMIXED WITH THE FAULT ANY
OTHER PERSON OR ENTITY.
THE PROVISIONS OF THIS INDEMNITY SHALL APPLY NOTWITHSTANDING
ANY IMMUNITY PROVIDED CONTRACTOR UNDER THE WORKERS'
COMPENSATION LAWS OF THE STATE OF TEXAS. IN THE EVENT THAT ANY
ACTION OR PROCEEDING IS BROUGHT AGAINST THE INDEMNITEES BY
REASON OF ANY OF THE PROVISIONS CONTAINED IN THIS SECTION,
CONTRACTOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION
OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CUSTOMER,
SUCH ACCEPTANCE NOT TO BE REASONABLY WITHHELD.
MIN
Sent By: Spindlemedia Inc; 817 332 Jun -8 -00 6:08PM; Page 14/15
T IE PROVISION OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR
EARLIER TERMINATION OF THIS AGREEMENT.
9. Miscellaneous. This document and the accompanying Schedules constitute the
entire agreement between the parties with respect to the subject matter hereof and supersedes. all
other communications, whether written or oral. This Agreement may be modified or amended
only by a writing signed by both parties. Except as specifically permitted herein, neither this
Agreement nor any rights or obligations hereunder may be transferred or assigned without the
other party's prior written consent and any attempt to the contrary shall be. void. Neither party
shall be liable for delays caused by events beyond its reasonable control. Waiver of any
provision hereof in one instance shall not preclude enforcement thereof on future occasions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the dates indicated below.
CUSTOMER:
CITE'' OF BAYTOWN
By:
Printed. Name:
Title:
Date:
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CONTRACTOR:
SPINDLEMEDIA INC.
B.
Y _Q
Name: Steven D. Johnson
Title: President
Date:
In the event that additional services are needed Custo»:er agrees to pay and understands that the
hourly rate will he S 90.00 per hour.
-6-