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HomeMy WebLinkAboutContracts & Agreements_55-2010_CCv0001.pdf SOFTWARE LICENSE AGREEMENT Contract No C1316908 This is a license agreement and not an agreement for sale This license agreement ("Agreement") is made this 20"'day of April, 2010 ("Effective Date") by and between the City of Redlands, and Azteca Systems, Inc (Azteca Systems), a Utah corporation, with its principal 'place of business at 11075 South State Street, Suite#24 Sandy, Utah, 84070, and gives Licensee certain limited rights to use the proprietary software The Software Cityworks and Related Materials All rights not specifically granted in this Agreement are reserved to Azteca Systems I Definitions As used herein, the following words, phrases, or terms in this Agreement shall have the following meanings I I "The Software Cityworks" means the actual copy of all or any portion of the computer programs delivered as listed in paragraph 5 1 Licensed Software, inclusive of backups, updates, or merged copies permitted hereunder or subsequently supplied by Azteca Systems 1.2 "Related Materials"means all of the printed materials, user documentation, training documentation, and confidential activation code for The Software Cityworks supplied by Azteca Systems under this Agreement 1 3 "Effective Date" shall mean the date on which Licensee receives the Software Cityworks and Related Material from Azteca Systems 2 Term This Agreement shall become effective on the Effective Date and shall be valid for as long as Licensee complies with the Permitted Uses and Uses Not Permitted provisions of this Agreement Azteca Systems may terminate this Agreement by 30 calendar days' prior written notice to Licensee if Licensee falls to comply with the Permitted Uses and Uses Not Permitted provisions of this Agreement Unless otherwise agreed in writing. Licensee shall have 60 days after receiving notice of such failed compliance from Azteca Systems to cure the default If this Agreement is terminated either under Section 8 or Section 17 below Licensee shall then return to Azteca Systems all of The Software Cityworks. related modules, related updates, and any whole or partial copies, codes, modifications, and merged portions in any form Azteca will for no additional charge to Licensee and at Licensee's option eithei grant a perpetual license to the Licensee which will allow Licensee to retain the ability to access records and data contained in The Cityworks Software or will provide hard copies of all files needed by the Licensee The parties hereby agree that all provisions which operate to protect the intellectual rights of Azteca Systems shall remain in force should breach occur 3 Reservation of Ownership and Grant of License Azteca Systems retains exclusive title and ownership of any copy of The Software Cityworks and Related Material licensed under this Agreement and grants to Licensee a personal, nonexclusive. nontransferable license to use The Software Citvworks and Related Materials pursuant to the t I erms and conditions of this Agreement From the Effective Date Licensee agrees to use reasonable effort to protect The 1,ca d.jm Agreements Azteca Lic(136908 Revised.doc Software Cityworks and Related Materials from unauthorized use, reproduction, distribution, or publication 4 Copyright- The Software CityAvorks and Related Material are owned by Azteca Systems and are protected by United States copyright laws and applicable international treaties and/or conventions Licensee agrees not to export The Software Cityworks into a country which does not have copyright laws that will protect Azteca. System's proprietary rights 5 Licensing and/or Royalty Pees In consideration of the License fees ("License pees") paid under Purchase Order No P007563, dated 3/28/08 (see attachment A), Azteca Systems grants to Licensee a nonexclusive, nontransferable license to use the Licenses obtained under this Agreement as follows 5 1. Cityworks Anywhere, Desktop, Server MMS, and Permitting Citywide Site Licenses 5 2 Permitted Uses • Licensee may use the number of copies of The Software Cityworks specified in paragraph 5 1 for which License Fees have been paid on the computer systems(s) and,or specific computer networks(s) for Licensee's own internal use • Licensee may install the number of copies and modules of The Software Cityworks specified in paragraph 5 1 for which License Fees have been paid onto the permanent storage device(s) on the computer system(s) and'for specific computer network(s) • Licensee may maintain one (1) copy of The Software Citvworks to a CD or DID type medium for archival purposes during the term of this Agreement unless the right to make additional copies is granted to Licensee in writing by Azteca Systems Regularly scheduled full system and partial system archival backups are allocable and specifically exempted from this provision, • Licensee may use, copy, alter, modify, merge,reproduce, and create derivative works of the on-line documentation accessible on MyCity works com for Licensee's own internal use The portions of the on-line documentation merged with other software, hard copy, and digital materials shall continue to be subject to the terms and conditions of this Agreement and shall provide the following copyright attribution notice acknowledging Azteca Systems proprietary rights in the on-line documentation "Portions of this document include intellectual property of Azteca Systems and are used herein by permission. Copyright C, 2008 Azteca Systems, Inc All Rights Reserved " 5.3 Uses Not Pennitted- • Licensee shall not sell, rent, lease, sub-license, lend, assign, time-share, transfer or export, in whole or in part to unlicensed third parties, or provide access to prior or present versions of The Software Cityworks, any updates, or Licensee's rights under this Agreement Nothing in this Section shall prevent use of and access to The Software Cityworks by Licensee's employees, agents or others performing work for or on behalf of the Licensee. 1 ea'dp Agreement,' zteta Lie C'116908 Revi,edAOL • Licensee shall not reverse engineer, decompile, or disassemble The Software Cityworks or make any attempt to unlock or bypass The Software Cityworks keycode, as applicable, subject to local law • Licensee shall not make additional copies of The Software Cityworks and Related Materials beyond that described in the Permitted Uses section above • Licensee shall not remove or obscure any Azteca Systems copyright or trademark notices 6 Limited Warranty Limited Warranty Azteca Systems warrants that it owns or has the full right and authority and all associated intellectual property rights necessary to grant Licensee rights and licenses set forth in this Agreement to The Software Cityworks and Related Materials Azteca Systems warrants that The Software Cityworks, unaltered, will substantially conform to the Related Materials for a period of one (1) year from the Effective Date ("Warranty Period") Azteca Systems warrants that the media upon which. The Software Cityworks is provided will be free from defects in materials and workmanship under normal use and seri,ice during the Warranty Period AZTECA SYSTEMS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE CITYWORKS AZTECA SYSTEMS DOES NOT WARRANT THAT THE OPERATIONS OF ITS RESPECTIVE SOFTWARE AND RELATED MATERIALS WILL BE UNINTERRUPTED AND/OR ERROR FREE 7 Exclusive Remedy and Limitation of Liability Exclusive Remedy and Limitation of Liability One(1) year from the Effective Date and during the Warranty Period, Azteca System's entire liability and Licensee's exclusive remedy for breach of the warranties against defects) in materials and workmanship shall be to request Azteca Systems correct the defect(s) by whatever means reasonably available to Azteca Systems such as remedy the defect(s), or provide a suitable work around, or replace The Software Cityworks in accordance with the Cityworks Update and Support Agreement(if then in effect with Licensee) If Azteca Systems exhausts available remedies and is unable to remedy the defect(s) Licensee may by written notice of its election to Azteca Systems, terminate this Agreement for its convenience and have Azteca Systems return 100% of the License Fees paid upon the Licensee's return of The Software Cityworks to Azteca Systems Azteca Systems shall not be liable for indirect, special, incidental, or consequential damages related to Licensee's use of The Software Cityworks, unless such damage is caused by Azteca System's actual negligence IN NO EVENT SHALL AZTECA SYSTEMS BE LIABLE TO THE LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT 1:,ca dini x,rreements'lzt:ca Lic CL)6908 Keka,cd.doc- 3 OF THIS AGREEMENT OR USE OF THE SOFTWARE AND RELATED MATERIALS, UNLESS SUCH LOSS OR DAMAGE IS CAUSED BY AZTECA SYSTEM'S ACTUAL NEGLIGENCE 8 Indemnity- Indemnity Azteca Systems, at its own expense, will hold harmless, defend and indemnify Licensee from all claims that The Software Citylvorks or Related Materials furnished under this Agreement infringes a U S Copyright or other intellectual property rights of a third party, provided that Licensee gives Azteca Systems prompt written notice of such claims and permits Azteca Systems the sole right to control the defense of such claims and provides Azteca Systems all reasonable cooperation As to The Software Cityworks which are or in the opinion of Azteca Systems may become subject to a claim of infringement, Azteca Systems, at its option, will obtain the right for Licensee to continue using The Software Cityworks or replace or modify The Software Cityworks so as to make them non-infringing It none of the alternatives is a-vailable on commercially reasonable terms, then Licensee agrees to, upon Azteca Systems' written request, terminate for convenience the Agreement upon the Licensee returning The Software Cityworks to Azteca Systems and Azteca Systems will refund to the Licensee 100% of the License Fees paid Azteca Systems will not indemnify or defend Licensee from any infringement claim resulting from Licensee's unauthorized modification or alteration of The Software Cityworks or Related Materials This section states Azteca System's entire obligation to Licensee and Licensee's sole and exclusive remedy for infringement 9 Additional Software Licenses, Additional copies and modules of The Software Cit-vAvorks licenses may be ordered without signed amendments provided the following I language is incorporated in the signed Purchase Order "By accepting this order both parties agree to amend the Plaster Softivare License Agreement Contract iVo C136908 bem.,een City ofRedlands, CA and Azteea System s, Inc , dated,4pril 20, 2010, which is incorporated herein by reference, to include the above soffi-tare licenses, vthich are hereby licensed under the same terms and conditions " 10 Export Regulations Licensee acknowledges that this Agreement and the 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 The Software Cityworks are 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 re- export any Technical Data received under this Agreement in or to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer. unless Licensee has obtained prior written authorization from Azteca Systems and the U.S Office of Export Control c&dpi Agreements Azteia Lic C I 3690S Revised.doc 4 I 1 Force Majeure Neither party shall be liable to the other for failure or delay in the performance of required obligation during any period where such failure or delay is caused by strike, riot, fire, flood, natural disaster, or other similar cause beyond such party's control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible 12 Severability If any provision(s) of this Agreement shall be held to be invalid, illegal, or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby The provisions of this Agreement shall be enforceable to the extent permissible under the laws of the State of California 1.3 No Implied Waivers No failure or delay by Azteca Systems or Licensee 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 by Azteca Systems 14 Order of Precedence Any conflict between the terms of this License Agreement and any Purchase Order or other terms shall be resolved in favor of the terms of this License Agreement 15 Governing Law This Agreement shall be construed and enforced in accordance with, and be governed by. the laws of the State of California without reference to conflict of laws principles. The parties hereby consent to the personal jurisdiction of the courts of this county and waive their rights to change venue 16 Termination for Convenience In the event that either funding from the Licensee or other sources is withdrawn, reduced, or limited, or the authority of the Licensee to perform any of its duties is withdrawn, reduced, or limited in any AN ay after the Effective Date of this Agreement and prior to normal completion, the parties shall have the authority to exercise the Termination for Convenience option to terminate this Agreement, in whole or in part If a party to this Agreement chooses to terminate for convenience that party may do so by thirty(3(}) days written notice to the other party If this Agreement is terminated for convenience, the Licensee is only liable for payment required by the terms of this Agreement for services rendered or sof—1vare received and accepted prior to the Effective Date of termination. Also, set forth elsewhere in this Agreement are specific provisions which allow the parties to terminate this Agreement for convenience (see Exclusive Remedy and Limitation of Liability provision) 17. Mediation Clause Azteca Systems and Licensee will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation If those attempts fail then the dispute will be mediated by a mutually acceptable mediator to be chosen by Azteca Systems and the Licensee within thirty (30) days after written notice by one of the parties demanding:non- [•ca dim Agreements,Azteca Lig C 136908 Revised.doc 5 binding mediation Neither party may unreasonably withhold consent to the selection of a mediator Azteca Systems and the Licensee will share the cost of the mediation equally. By mutual agreement, however, Azteca Systems and Licensee may postpone mediation until both parties have completed some specified limited discovery about the dispute The parties may also agree to replace mediation with some other form of non-binding alternate dispute resolution procedure ("ADR") Any dispute which cannot be resolved between the parties through negotiation or mediation within two (2) months of the date of the initial demand for it by one of the parties may then be submitted to a court of competent jurisdiction in the County of San Bernardino, CA Both Azteca Systems and Licensee consent to jurisdiction by such a court The use of any ADR procedures will not be considered under the doctrine of latches, waiver or estoppel to affect adversely the rights of either party Nothing shall prevent either of the parties fi-om resorting to the judicial proceedings mentioned in this parag=raph if(a) good faith efforts to attempt resolution of the dispute under these procedures have been unsuccessful, or (b) interim relief from the court is necessary to pre-vent serious and irreparable injury to one of the parties or others 18 Entire Agreement This Agreement constitutes the sole and entire agreement of the parties as to the matter set forth herein and supersedes 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 I.crr,dim Agreements A/teca iic(:136008 Ret ised.doc 6 IN WITNESS WHEREOF, 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 The City of Redlands, CA Azteca Systems, Inc By By Pat Gilbreath Authorized Signature /*" Mayor, City of Redlands ATTEST V City Clerk, City f Redlands Attachment A—Purchase Order I\CwdjmtAgreements!Azteca he C 136908 Revised.doc 7