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HomeMy WebLinkAboutContracts & Agreements_96-1999_CCv0001.pdf 6 Environmental Systems Research Institute,Inc.,360 New York St.,Redlands,CA 92373-6100 USA•TEL 909-793-2853•FAX 909-793-5953 BETA SITE AGREEMENT Contract No. 9983823 This Beta Site Agreement (Agreement)describes the objectives, terms,conditions, and responsibilities for conducting beta testing of ESRI©Beta Software and Related Materials between Environmental Systems Research Institute,Inc. (ESRI), with its principal place of business at 380 New York Street, Redlands,California 92373-8100, and Civ of Redlands (Licensee), having its principal place of business at 39 Cain, S •rfa 15-A Redlands, CA 92373 1. DEFINITIONS As used herein, the following words, phrases,or terms in this Agreement shall have the following meanings: • 'Beta Software" means the actual copy of all or any portion of the prerelease version of ESRI computer programs delivered on any media, including, but not limited to,electronic delivery, inclusive of backups, updates,or merged copies permitted hereunder or subsequently supplied by ESRI, whether labeled alpha, beta, prerelease, preview,or otherwise. • 'Related Materials'_means all of the printed materials,Beta Testing Program materials, user documentation, training documentation, sample data, and confidential software activation code supplied by ESRI under this Agreement. 2. RESERVATION OF OWNERSHIP AND GRANT OF LICENSE ESRI and its third party licensors retain exclusive rights,title, and ownership of any beta copy of the Beta Software and Related Materials licensed under this Agreement. ESRI hereby grants a personal, nonexclusive, nontransferable,royalty- free license to Beta Site solely for the purpose of testing the Beta Software and Related Materials as delivered, in accordance with the Beta Testing Program and the terms and conditions herein. ESRI grants to Licensee the right to participate in the Beta License Program upon approval by ESRI for any specific Beta Software testing in accordance with the terms of this Agreement. This grant of license is effective from the date last signed below until terminated. With respect to any specific Beta Software to be tested under this Agreement,ESRI grants the right to use the specific Beta Software and Related Materials from the date of receipt of any prerelease version of the Beta Software and Related Materials until the date of the commercial release of the Software and Related Materials from ESRI Customer Service or the date of termination of the Beta Testing Program for the specific Beta Software, whichever is sooner. ESRI is authorized to redistribute and license third party software and data components delivered with the Beta Software and Related Materials. Such third party licensor(s) shall be deemed a third party beneficiary and shall have the right to enforce this Agreement to the extent permitted by applicable law. During the term of the Agreement,ESRI reserves the right to supplement and/or addend additional license provisions for new software releases as they become available. 3. PROPRIETARY RIGHTS AND RESTRICTIONS ON USE The Beta Software and Related Materials delivered are proprietary to ESRI and contain trade secrets, inclusive of unpublished specifications. In consideration of the rights granted herein,Licensee agrees to retain all Beta Software, Related Materials, and information delivered or provided to it in confidence. All rights, title, and ownership in patents. SSRI is a trademark of Environmental Systems Research Institute,Inc.,registered in the United States and certain other countries registration is pending in the European Community. G-375/Y" 1 9/16/99 trademarks,copyrights,trade secrets, know-how,or any other proprietary rights in the Beta Software and Related Materials t:� C, remains exclusively with ESRI. Licensee shall not sell.transfer,lease, lend, assian, time-share,sublicense,publish, disclose,display,or otherwise make available the Beta Software and Related Materials in any form, including but not limited to,flowcharts,logic diagrams, executable code,object code,source code,or technical documentation,to any other person or entity without the written permission of an authorized ESRI representative. Licensee shall secure and protect the Beta Software and Related Materials in the same manner and to the same degree itprotects its own proprietary information, using,no less than a reasonable standard of care. Licensee shall allow access to the Beta Software and Related Materials only for those persons within its organization who have a need to know for purposes of the beta test and agrees to instruct the employees of their obligations hereunder. Licensee shall not decompile or reverse engineer the Beta Software. Licensee shall not make any modifications or derivative works to the Beta Software and Related Materials. Unless the Beta Software is intended for Intranet or Internet use as described in the Related Materials or Beta Test Program,Licensee shall not install the Beta Software on any computer network or communication network(including any Intranet or Internet server) without the express written consent of ESRI. Licensee will maintain all results of testing in confidence and agrees not to disclose to any third party details pertaining to the Beta Software,Related Materials, test results,or Beta Software errors encountered. 4. COPYRIGHT The Beta Software and Related Materials are owned by ESRI and are protected by United States copyright laws and applicable international treaties and/or conventions. 5. BETA TESTING At the sole discretion of the Beta Test Coordinator,ESRI reserves the right to determine which Beta Software and Related Materials,subsequent interim beta release(s), and/or patch(es)will be made available to Licensee to test during the term of the Agreement. Licensee shall use the Beta Software and Related Materials only for evaluation and testing of the Beta Software's applicability,usability,performance, and design,and to enable Licensee to complete its evaluation and reporting activities as required by the Beta Testing Program. Licensee agrees to comply with the requirements of the Beta Testing Program and will complete and forward C� documentation of its testing program at the request of ESRI. Licensee shall advise ESRI immediately of any changes to the information contained in its Beta Site Application. The ESRI Beta Test Coordinator,identified upon receipt of the Beta Software and Related Materials,will be the contact for user support services. Standard user support service is not available until the Beta Software and Related Materials is commercially released. The beta testing for any specific Beta Software may be terminated as stated in Section 7. In such event,Licensee shall comply with the termination provision in Section 7 and provide to ESRI a summary of test results and Beta Software errors encountered. 6. WARRANTY AND LIMITATION OF LIABILITY THIS BETA SOFTWARE AND RELATED MATERIALS ARE PROVIDED TO LICENSEE "AS IS"AND WITHOUT WARRANTY OF ANY KIND,EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO, WARRANTIES OF PERFORNIANCE,MERCHANTABILITY,OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE BEARS ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE BETA SOFTWARE AND RELATED MATERIALS. No guarantee is made that the commercial release of this Beta Software and Related Materials will contain the same or similar functionality. ESRI reserves the right to make any change it deems necessary or desirable to the Beta Software and Related Materials,including,but not limited to,changes that make prior data storage methods unreadable or macro language routines inoperable. G-3755 MM 2 9/16/99 ESRI SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL,INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATED TO OR ARISING FROM LICENSEE'S USE OF THE BETA SOFTWARE AND RELATED MATERIALS,EVEN IF ESRI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 7. TERM AND TERIMINATION The term of the Agreement is from the last date signed by all parties to December 31. 2001, which may be extended as necessary by ESR1. Either party may terminate this Agreement by written notice to the other. The provisions of Sections 3, 4, 6, and 8 shall survive any termination of this Agreement. The beta test for any specific Beta Software may be discontinued at any time for any reason upon the receipt of written notice by either party. Upon notice by ESRI that the beta test for the identified Beta' Software and Related Materials is complete or terminated,Licensee shall delete all prerelease versions of the Beta Software and Related Materials provided under this Agreement from its computer system(s)or network(s), and either return or destroy all remaining Beta Software and Related Materials. When returning Beta Software and Related Materials,Licensee must contact their Customer Service Representative,to obtain a Return Merchandise Authorization (RMA) number. Licensee shall then certify in writing'- to ESRI that the above steps have been taken. The Beta Software may also time out preventing further use of the Beta Software,at which point the beta test shall be deemed terminated and Licensee shall comply with this provision. The Beta Site Agreement shall not apply to commercial release(s)of the ESRI Software and Related Materials. Licensee may license commercial release(s)of the ESRI Software and Related Materials under the applicable ESRI software license agreement. 8. GENERAL PROVISIONS 8.1 Assignment and Successors in Interest Licensee may not delegate or assign this Agreement or any of the rights, interests,or obligations of Licensee to any third party without the prior written consent of ESRI. Any unauthorized delegation or assignment shall be null and void. 8.2 Choice of Law This Agreement is governed by the laws of the United States of America and the State of California without reference to conflict of laws principles. 8.3 Waivers No failure or delay by ESRI or its licensor(s)in enforcing any right or remedy under this Agreement shall be construed as a waiver of any future or other exercise of such right or remedy bv'_ESRI or its iicensor(s). 8.4 Export Licensee acknowledges that this Agreement and performance thereof are subject to compliance with any and all applicable United States laws,regulations,or orders relating to the export of computer software or know-how relating thereto. ESRI software,data, and related materials have been determined to be Technical Data under United States export laws. Licensee agrees to comply with all laws,regulations,and orders of the United States in regard to any export of such Technical Data. Licensee agrees not to disclose or reexport any Technical Data received under this Agreement out of the country in which Licensee received the Technical Data. 9. ENTIRE AGREEMENT AND AMENDMENTS This Agreement,including the Beta Testing Program, and the Beta Site Application, which are incorporated by reference, constitute the sole and entire agreement of the parties as to the matter set forth herein and supersede any previous agreements, understandings.and arrangements between the parties relating hereto. Except as otherwise expressly provided herein, any amendments to this Agreement must be in writing and signed by an authorized representative of each party. G-375/KMM 3 9/16/99 IN WITNESS W-MREOF,the parties hereto have,executed this Agreement to be effective, valid,and binding upon the parties as of the date below as executed by their duly authorized representatives. Accepted and Agreed: ENVIRONMENTAL SYSTEMS CITY OF REDLANES, CALIFORNIA SFCHINSTITUTE,INC. (Licensee)t, (ESRD % r By: r By: _A�ujt orize Signature Authorized Sign tore Will E. Curinin , n Printed Name: Printed Name: —William R_ C u nniTi Fp,- an J_LjCY_Tjhj[jAJ_L_ Contract Specialist Title: _Mayor Title: Date: Date: SEP 2 71999 ATWEST: 13 Dell � ric��z Deputy City Cliprk G-375/K-M'Nl 4 9/16/99