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HomeMy Public PortalAbout089-2019 - Fire - Zuercher - Renewing Software LicenseEnd User License Agreement This End User License Agreement ("EULA") sets forth the terms and conditions for license and use of Zuercher Technologies LLC ("Zuercher") software b the Customer(as defined belowy ) named herein. CUSTOMER'S SIGNATURE BELOW, OR CUSTOMEER' S FIRST USE OF THE LICENSED SOFTWARE, SHALL CONSTITUTE CUSTOMER'S ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. NO DIFFERENT OR ADDITIONAL TERMS CONTAINED IN ANY PURCHASE ORDER, CONFIRMATION OR OTHER WRITING SHALL HAVE ANY FORCE OR EFFECT UNLESS EXPRESSLY AGREED TO IN WRITING BY ZUERCIMR. 1. Definitions 1.1 "Customer" means Richmond Fire Department . 1.2 "Go Live" means the date of the Customer's first use of the Licensed Software as a live, non - test -bed system. This can be exhibited by events such as the completion by Customer of the first real -world booking, the taking of the first real --world call for service, the entry of the first real -world case report, or a similar event dealing with real -world use. 1.3 "Licensed Software" means the ,Zuercher software in object code format licensed to Customer as listed in Section S of this EULA, and any associated product documentation furnished by Zuercher for use therewith. 1.4 "Server Hardware" means the computer hardware provided by Zuercher on which the Licensed Software has been installed by ,Zuercher and which operates in a local area network that runs administrative software which controls access to all or part of the network and its resources and makes such resources available to computers acting as workstations on the network. 2. License 2.1 Grant of the License Subject to the terms and conditions set forth herein, Zuercher hereby grants to the Customer, and the Customer accepts, a fully paid -up, perpetual, royalty -free and non. -exclusive license to use the Licensed Software only for the Customer's own internal business purposes, subject to the terms and .limitations of this EULA. Customer may make a copy of the Licensed Software for backup purposes only. 2.2 Copies and Modifications Unless otherwise agreed to in writing by Zuercher, no identifying marks, copyright or proprietary right notices may be deleted from any.copies of the Licensed Software made by the Customer. The Customer shall not decompile, or create by reverse engineering or otherwise, the source codes from the object code supplied hereunder, or adapt the Licensed Software in any Way or use it to create a derivative work. Zuercher shall not be responsible in any way for the Licensed Software's performance if the Licensed Software has been modified, except as modified by Zuercher. A Confidential and Proprietary Zuercher Technologies, LLC I 1 Copyright 0 2016 All Rights Reserved Contract No. 8 9 -2 019 2.3 Restrictions on Usage The Customer shall not allow any party, other than Zuercher, to add, update, or delete database records or file system objects directly to or on the server on which the Licensed Software operates or the Zuercher database except as provided for in documentation of this Agreement. The Customer shall not access any Server Hardware on which the Licensed Software operates except as provided in documentation of this Agreement or cause any software except the Licensed Software provided under this EULA to be installed on or executed on the Server. Hardware. Customer acknowledges that the Licensed Software and its associated documentation furnished with the Licensed Software (the "Confidential Information") constitute the trade secrets and proprietary information of Zuercher. Customer shall hold the Confidential Information in strict confidence and shall not disclose it -to third parties except as necessary to exercise the licenses granted hereunder or as legally required. without limiting the generality of the foregoing, Customer shall use reasonable means, not less than those used to protect its own trade secret and proprietary information, to safeguard the Confidential Information. Customer shall not attempt, or authorize or permit others to attempt, to imitate the Licensed Software using the Confidential Information or any part thereof, or to reverse engineer the Licensed Software by any method, now known or later discovered. Nothing in this EULA shall be construed as granting to Customer any title to the Licensed Software, or Zuercher trademarks or tradenames. 3. Copyright and Trademark Infringement Zuercher represents and warrants that the Licensed Software does not infringe the copyrights, patents, trade secrets or trademarks (collectively "Intellectual Property Rights") of any third party. In the event of a claim, allegation, action or proceeding (collectively "Clain") brought against Customer alleging infringement by the Licensed Software of the Intellectual Property Rights of a third party, Zuercher will at its expense defend, indemnify and hold harmless Customer against such Claim, and damages, costs, liabilities and. expenses (including court costs and reasonable attorneys' fees) suffered or incurred in connection with such Claim, except for Customer's attorney's fees if Customer chooses to participate in the defense of such Claim), provided that Customer promptly notifies Zuercher of such Claim and cooperates fully with Zuercher and its legal counsel in the defense thereof. Zuercher may in its discretion (i) contest such Claim, (ii) settle such Claim, (iii) procure for Customer the right to continue using the Licensed Software, and/or (iv) modify or replace the Licensed Software so that it no longer infringes (while maintaining substantially equivalent functionality and performance to that described in the user documentation). Customer may participate in the defense of such Claim at its own expense. If Zuercher concludes in its sole judgment that none of the foregoing options are commercially reasonable, or Customer's use of the Licensed Software is permanently enjoined as a result of a judgment of a court of competent jurisdiction in respect of such Claim, or any temporary injunction restricting Customer's use of the Licensed Software is in effect and has not been lifted within 90 days, the license granted in this EULA shall terminate upon the earlier of written notice from Zuercher to Customer, the date when the permanent injunction issues, or written notice from Customer to .Zuercher terminating the license due to the continued application of the temporary injunction for 90 days or more. In the event of termination of this EULA due to an uncured Claim, Zuercher shall refund to Customer the license fees paid for the Licensed Software, less a prorated portion of such fees for the Customer's use of the Licensed Software, calculated by multiplying the ratio of the number of -months of actual use in a live operational environment to thirty-six (36) months times the license fees paid. Any refund Confidential and Proprietary Zuercher Technologies, LLC 12 Copyright @ 2016 All Rights Reserved shall be conditioned upon Customer executing and delivering a release and waiver, in form and substance satisfactory to Zuercher, releasing Zuercher and its authorized reseller from any and all further liability and claims in respect to the Licensed Software. This Section 3 states the entire obligation of Zuercher, and Customer's sole redress, regarding infringement by the Licensed Software of Intellectual Property Rights, and it will survive the termination of this EULA. Notwithstanding the above, Zuercher shall have no duty under this Section 3 with respect to, and Customer shall not bring an action against Zuercher for indemnification or other causes of action with respect to, any Claim to the extent arising from or related to infringements (i) by third -party equipment or third -party operating system software upon or ,with which the Licensed Software operates, (ii) arising out of modifications to the Licensed Software not made by or under the direction or authorization of Zuercher, (M) resulting from use of the Licensed Software to practice any method or process which does not occur wholly within the Licensed Software, •unless designed by Zuercher to do so, or (iv) resulting from modifications to the Licensed Software prepared pursuant to specifications or other material furnished by or ❑n behalf of Customer. 4. Termand Termination Provided that the terms and conditions of this EULA are complied with at all times, and subject to the termination provisions below, the licenses provided hereunder are perpetual. Customer may surrender the licenses granted hereunder at any time by giving written notice to Zuercher and ceasing use of the Licensed Software. Zuercher may terminate the licenses granted hereunder for cause if Customer materially breaches the terms of this EULA or otherwise infringes Zuercher's intellectual property rights in the -Licensed Software, which breach is not remedied within thirty (30) days after the date of written notice to Customer of such breach. Upon termination of the licenses granted hereunder, Customer shall permanently remove any Licensed Software from Customer's equipment, back --up media, or other storage locations and. either (i) return all copies thereof to Zuercher or (ii) destroy such copies, as Zuercher directs. The provisions of Sections 2.2, 2.3, 3, 4, 6 and 7 shall survive the termination of the licenses granted herein. 4.1 Additional Agency Term Customer will be part of the Wayne CountyMchmond Public Safety system (hereinafter the "host agency"). Zuercher may immediately terminate this HULA if the Software License and Service Agreement is not in full force and effect between Zuercher and the host agency. If termination of this EULA occurs for this reason, Zuercher will work in good faith with Customer to develop and negotiate a new contract. 5. Licensed Software and Support Please refer to Exhibit B -- Pricing Detail for the list of software licenses being acquired by Customer as part of the host agency's system. The license terms for the host agency are set forth in the separate Software License and Service Agreement between the host agency and Zuercher. Confidential and Proprietary Zuercher Technologies, LLC 13 Copyright 0 2016 All Rights Reserved For all software licensed under this EULA and residing on the host agency's servers)/system, implementation and support of such software will be in accordance with the provisions of the host agency's Software License and Service Agreement. 6. Limitation offB.fiabHlifly The total liability of Zuercher for any claim or damage arising under this EULA, whether in contract, tort, by way of indemnification or under statute shall be limited to (i) direct damages which shall not exceed the license fees paid for the Licensed Software or (ii) in the case of bodily injury or property damage for which defense and indemnity coverage is provided by Zuercher's insurance carrier(s), the coverage limits of such insurance. IN NO EVENT SHALL ZUERCHER BE LIABLE, WHETHER IN CONTRACT OR IN TORT, FOR LOST PROFITS, LOST SAVINGS, LOST DATA, LOST OR DAMAGED SOFTWARE, OR .ANY OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR NON --USE OF THE LICENSED SOFTWARE, OR OTHERWISE RELATED TO THIS EULA, REGARDLESS OF WHETB ER ZUERCHER HAD KNOWLEDGE OF THE P O S SIB ILITY OF ANY SUCH LOSS OR DAMAGE. Zuercher, and not its authorized reseller from whom Customer may have purchased the Licensed Software, is responsible for honoring all Customer infringement and warranty claims and service issues associated with the Licensed Software. All Customer claims, for infringement, warranty or service issues, shall be addressed to Zuercher in writing at the address set forth below (or such other principal business address of Zuercher as .Zuercher shall post on -Zuercher's website, at www.zuerchertech.com). Customer acknowledges and agrees that Zuercher's authorized reseller bears no liability, and Customer shall not bring a claim against such authorized reseller, for infringement, warranty or service issues in respect to the Licensed. Software or any other service or product furnished by Zuercher. 7. Warranty Zuercher warrants that it owns or otherwise has all necessary rights in the Licensed Software to lawfully permit it to license the Licensed Software as described in this Agreement. ,Zuercher further warrants that the Licensed Software (including any ordered custom programming, enhancements and updates to such Licensed Software furnished by Zuercher to Customer) will operate in conformity with Zuercher's applicable product specifications and documentation (including the applicable user guide(s)) for a period of twelve (12) months from the date of Go Live. In the event a warranty defect or breach is reported by Customer to .Zuercher, Zuercher will, at its discretion, either correct or replace the defective Licensed Software with fully functioning replacement Licensed Software. Upon notice of a warranty defect or breach, Zuercher shall correct or replace the Licensed Software within a reasonable timeframe. Warranties for third party equipment or third party software supplied by Zuercher (or its authorized reseller) will be provided by the applicable vendor and passed through to the Customer by Zuercher, provided, for purposes of clarification, the foregoing does not limit the warranty made by Zuercher on the Licensed Software in this EULA. Zuercher will reasonably cooperate with Customer in Customer's pursuit of such third party warranty claims. Confidential and Proprietary Zuercher Technologies, LLC J 4 Copyright (D 2016 All Rights Reserved ZUERCHER MAKES AND CUSTOMER RECEIVES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT TO THE LICENSED SOFTWARE. S. General Terms This EULA represents the entire agreement between the parties hereto and a final expression of their agreements with respect to the Licensed Software, and supersedes all prior written agreements, oral agreements, representations, descriptions, understandings or negotiations with respect to the matters covered by this EULA. If any term, provision, condition or covenant of this EULA is held to be invalid, void or unenforceable, the rest of the HULA shall remain in full force and effect and shall in no way be affected, impaired or invalidated. No amendment to this EULA shall be effective unless it is in writing and signed by Customer and an authorized officer of Zuercher. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to or waiver of a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. Neither this EULA nor any rights or obligations hereunder shall be assigned or otherwise transferred by Customer without the prior written consent of Zuercher, which consent shall not be unreasonably withheld, conditioned or delayed. This EULA shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this paragraph shall be construed as a consent to any assignment of this EULA except as provided hereinabove. A facsimile of this EULA and its exhibit(s) may be used as an original. Except to the extent that this EULA is governed by the laws of the United States, this EULA shall be governed, interpreted and enforced in accordance with the laws of the State of Indiana, USA, without regard to its conflict of laws provisions or the United Nations Convention for the International Sale of Goods. All notices required to be given under this EULA shall be made in writing by (i) first-class mail, postage prepaid, certified, return receipt, (ii) by overnight delivery using a nationally recognized express carrier (e.g., UPS, FedEx, or USPS), (iii) by facsimile or email followed immediately by first-class mail or overnight delivery, or (iv) by personal delivery, to the address set. forth herein, or such other address as provided in writing. Such notices shall be deemed given three (3) days after mailing pursuant to (i) above, or one (1) business day after full compliance with (ii), (iii) or (iv) above. As used herein, a "business day" shall mean a weekday other than a U.S. federal holiday. Confidential and Proprietary Zuercher Technologies, LLC 15 Copyright 0 2016 All Rights Reserved RICHMOND FIRE DEPARTMENT ZUERCHER TECHNOLOGIES, LLC (A subsidiary of TriTech Software Systems) Richmond Fire Department 4509 West 58th Street 50 North 5"I Street Sioux Falls, South Dakota 57108 Richmond, >(47374 Attention: Attn: E-mail: Fax: Accepted by (signature): Accepted by (signature): f 1 R /I ?, 401 � Printed Name: Vicki Robinson Printed Name: Title: President Title: Date.: ---IR Date: Accepted by (signature) : { Printed Name: David M. Snow Title: Mayo Date: �J Confidential and Proprietary Zuercher Technologies, LLC 6 Copyright 0 2016 All Rights Reserved Exhibit A: Statement of Work Zuercher will provide Software, Hardware and Services substantially similar to those outlined below, in the quantities specified in Exhibit B: Pricing Detail. Successful implementation and use of the software, hardware and services outlined herein are dependent upon the following: 1) the Zuercher "`SOFTWARE LICENSE AND SERVICE AGREEMENT" remaining in good standing with Wayne County {hereinafter referred to as "Primary Agency"}; and 2) Customer maintaining access and permission to use the Zuercher System purchased by Primary Agency. 1.0 Software The software detailed in the following sections includes, but is not limited to, the listed functionality. Mobile Core • Grants access to the Zuercher Mobile application Mobile AVL , Vehicles shown on map . Call for service integration Mobile CAD Q User -configurable layouts . Silent dispatch 0 Day/Night mode • Bulletins/BOLOS • Instant messaging Mobile Mapping • Active calls for service • User configurable map layers 0 Map Markers • Route from current location to o Visual status alerts CFS location Personnel (Cone) 0 Personnel Log • Full audit trail Personnel --Agency Site Licenses a Allows Customer to access and use Primary Agency's Zuercher Personnel system Note: Many items are configurable by agency. All other configuration must be agreed upon between Customer and Primary Agency. Confidential and Proprietary Zuercher Technologies, LLC 17 Copyright 0 2016 All Rights Reserved 2.0 Customer Hardware, Network and Power requirements Zuercher is not responsible for physical installation of the computer hardware required for operating Zuercher Software. Zuercher is not responsible for networking any hardware. Unless otherwise specified, Customer will be responsible for providing the following to meet the hardware, network and power requirements for the System. 2.1 Server Hardware . I. Servers located at Primary Agency will be upgraded to accommodate Customer. 3.0 Services 3.1 Project Management 3.1.1 Customer Project Manager Customer shall provide one primary Project Manager to be the main point of contact for Zuercher. A single, dedicated Project Manager will be assigned to manage the project for all Customers included in this installation. Customer will identify a Zuercher Build Team. with assistance from Zuercher Implementation Analysts, Customer's Build Team is responsible for the configuration of Zuercher software. The Build Team should expect to devote 10-- 20% of each week of implementation to Zuercher configuration work. Customer's Project Manager and Build Team will work within standard business hours (7:00 AM CST to 6:00 PM CST, Monday through Friday) to enable mutual availability to work with Zuercher on configuration and project activities. Customer's Dedicated Project Manager 3.1.1.1 Customer's Dedicated Project Manager Responsibilities 1. Have the authority to speak for Customer from a project perspective. Z. Designate people responsible for specific roles as needed, examples below: (a) Module Subject Matter Experts (SMEs) (b) Hardware Project Manager (c) Zuercher Build Team Members 3. Involve Customer decision makers when needed 4. Escalate issues to the Zuercher project manager 5. Eliminate roadblocks for completing project on schedule 6. Sign various project documents and ensuring signoff documents and deliverables are .provided to Zuercher project manager in a timely manner 7. organize training schedules, training rooms, and training equipment 8. Provide real world scenarios for testing and review 3.1.2 Zuercher Project Manager and Project Team From the start of the project, a Zuercher project manager will work with Customer as the single point of contact Confidential and Proprietary Zuercher Technologies, LLC 18 Copyright @ 2016 All Rights Reserved for implementation of the Zuercher Suite system. The project manager will develop and manage the implementation schedule and will coordinate with Customer to keep the project on track and on schedule. The project manager will conduct weekly status meetings to provide Customer with project updates. The Zuercher project team, under the direction of the project manager, will visit pertinent areas of Customer and will meet with key Customer personnel to understand Customer's operational needs and business rules. Team members will observe Customer's daily operations first --hand and use that information to identify how the Zuercher Suite system would best be configured to match and enhance Customer's workflows. The project team will train Customer system administrators on configuration options and code table setup. 3.2 ' Implementation Process Overview Zuercher uses a multi -phase approach to ensure a successful implementation for each Customer. Trained and experienced members of the Zuercher implementation team move through the process with Customers to ensure successful outcomes. Timelines will be discussed with Customer's project manager and will be mutually agreed upon to ensure a successful Go Live. 3.2.1 Kickoff Meeting Upon contract signature, a kickoff meeting is scheduled to initiate the implementation process, setting up a statement of work, server installations and scheduling the Business Practice Review (BPR). 3.2.2 Business Practice Review During this meeting, the Zuercher project team works with Customer's build team and will demo Zuercher Suite modules and guide the agency on their configuration tasks. 3.2.2.1 Configuration Customer plays a large part in the configuration and setup of the final system. Configuration of Zuercher software is guided by Business Analysts, via in -person or remote online sessions, but is considered a Customer responsibility to complete. 3.2.3 Final System Review Throughout the project, implementation analysts from Zuercher will schedule sessions with Customer's Build Team and end users to review any questions or concerns. 3.2.4 Train -the -Trainer and/or End User Training Zuercher offers several options for end user training. All of the training options provide hands --on use of the software with real --world examples. Class sizes are limited to ensure that each individual has sufficient time to practice using the system. When the go live date arrives, users are well -prepared to begin using the new software. 3.2.5 Go Live Zuercher provides on -site and/or remote support the day that the new system goes live. Any questions that arise are addressed immediately by the team, ensuring that the first day(s) using the new system goes smoothly. 3.3 Training and Go Live Support 3.3.1 Training Zuercher staff will provide for on -site or remote training. The number of days specified for'on-site' services herein may include travel days in addition to actual days on site at Customer's location(s). Zuercher will make a good faith effort to minimize the travel time which is necessary for a project by working with Customer to most efficiently plan and schedule the delivery of on -site services. Confidential and Proprietary Zuercher Technologies, LLC 19 Copyright O 2016 All Rights Reserved 3.3.1.1 System Configuration and Training The first portion of training will be performed by the Zuercher project team. Team members will train and guide Customer's Build Team in configuringthe ZuercherSuite system, setting up and maintaining code tables, managing users and user rights, among other options. Through Zuercher-guided configuratio n'of the system, the Build Team becomes well versed in the Zuercher software system administration. 3.3.1.2 Train -the -Trainer and/or End User Training Trainers will conduct detailed courses for each of Customer's user groups (such as dispatchers or officers). The content of each course will be tailored to the features and functionality in Zuercher software that each group needs to know and use. 3.3.1.3 Refresher Training Zuercher will provide follow-up training (after successful implementation) to refresh existing personnel on best practices with regard to using Zuercher Suite. 3.3.2 Training Resources Training will be scheduled within standard business hours (7:00 AM CST to 6:00 PM CST, Monday through Friday). The training facilities and equipment will be provided by Customer based on the following: 3.3.2.1 Trainer Resources 1. one (1) computer with a network connection 2. Most recent Zuercher Suite version installed and tested (includes login) 3. Two (2) projectors and two (2) screens setup and tested 4. One (1) podium or desk for trainer 3.3.2.2 Trainee Resources 1. Five (5) to ten (10) computers with network connections two (2) monitors required (three (3) monitors are suggested) 2. one (1) supervisor will attend every class to address policy questions 3. No more than ten (10) trainees in each class 4. Most recent Zuercher Suite version installed and tested (includes login) S. All third -party devices (i.e., printers, scanners, barcode reader, mugshot camera) connected and tested 3.3.3 Co Live Support Zuercher staff will assist users with questions that arise during Go Live and will reinforce skills learned during the training sessions. Zuercher staff will be on site or remote for Go Live. Confidential and Proprietary Zuercher Technologies, LLC 110 Copyright cD 2016 All Rights Reserved Exhibit S : Pricing S oftwa re a n d, 5erve rs Detail Comments Unit Qty Price Total Zuercher Suite Server Upgrade 1 1 $ 5,500 $ 5,500 Mobile AVL Richmond Fire Department Per Unit 25 $ 200 $ 5,000 Mobile CAD Richmond Fire Department .Per Unit 25 $ 450 $ 11,250 Mobile Mapping (Richmond Fire Department 'per Unit 25 $ 550 $ 13,750 Personnel Core (Agency Site License) Richmond Fire Department •Per AgencV 1 included included Software and Servers Total � - $ 35,500 Services Comments Unit Qty Price Total Project Manager Per Project 1 $ 2,840 $ 2,840 Configuration - -__-- = Per Project 1 $ 398 $ 398 - Mobile (Train the Trainer) ....._� _. _.._.. _.. _ .... .._ ... ___ . __.. _ • • -Per Project 1 $ 795 $ 795 Go lave Support { Services Total $ 4,431 Software and Servers Total '• $ 35,500 Services Total $ 4,431 TOTAL $ 39,931 Recurring ' E Maintenance & Support (Year 1) I 1 Included Maintenance & Support (Year 2) 1 $ 70663 Maintenance & Support (Year 3) 1 $ 8,046 Maintenance & Support (Year 4) $ 8,448 Maintenance & Support (Year 5) �. $ 8,870 `Taxes are not included in the pricing.* Confidential and Proprietary Zuercher Technologies, LLC 111 Copyright 0 2016 All Rights Reserved Exhibit C: Payment Schedule The total amount of this contract is $39,931. The amounts due under this contract are as follows: Upon contract execution 50% $19,965.50 Completion of BPR 30 $11,979.30 Go Live 20% $7,986.2❑ Commencing one year after the System reaches "Go Live," an annual maintenance fee of $7,663 will be due. Thereafter, the annual maintenance fee shall increase by an amount not to exceed 5% from the prior year. These amounts do not include any taxes. See Agreement section 8.13 Taxes for more information. Confidential and Proprietary 2uercher Technologies, LLC 112 Copyright ® 2016 All Rights Reserved