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HomeMy WebLinkAboutContracts & Agreements_254-2006_CCv0001.pdf INDIRECT CHANNEL CUSTOMER AGREEMENT#06-WBC]106 Thank you for purchasing Hitachi Data Systems("HDS"}products(meaning Equipment and licenses of Software)and Services{meaning E Maintenance Service,Hi-TrackaD Service, Professional Services and any additional service performed for Customer by HDS}, if you have questions regarding this Agreement or any of our Products or Services please contact your HDS representative. any Agreement(the"Agreement")governs Your use of Products and Services. This indirect Channel Customer By signing below the parties have caused this Agreement to be duly executed by their respective authorized representatives. Hitachi Data Systems Corporation Customer Agreed to: Agreed to: Hitachi Data Systems Corporation 750 Central pressway City of Redlands Santa Clara A 95050-2627 30 Cajon St Redlands, CA 92373 - ---------- ------ - J N HARRISOh , -MAYOR------------------- Printed Name: ScOft ATTEST; Gavin Date: (0 s- Date: LO IE POYZEP,-; "I Y CLERK g 1'. Section 1. Software (Licensed Software and Other Software) November 21, 2006 Licenses applicable to Programs and payment of the then standard license fees. A. Generally: All Equipment shatl include a fully paid-up D. Termination: Any Licensed Software license granted Personal and non-exclusive license to use the Equipment Software and Programs {collective) hereunder will terminate upon: (1) the licensing to Customer by accompanying or installed on any Equipment.LiCensedsucSof eases HDS of an upgrade,pgradre revision or replacement for that Licensed are granted subject to the terms and conditions hereunder. The Software, (2) the receipt of one month's written notice of license to use the Equipment Software is solely to enable the termination for the licensed Software by HDS from Customer, or Equipment to function according to its specifications and for Upon(3) when Customer is no longer in possession of the Equipment. Customer's internal business purposes. Customer may use the and such termination, Customer shall purge all original versions Programs only for its internal business and back-up copies of the affected software. data processing, purposes and internal E. Back-up Copies: Customer may make a reasonable number B. Other Software: Customer's use of Other Software shall be of back-up copies of any Licensed Software to be used only as a governed by the related license including any restraint on necessary replacement of an original version so long as all transferability. Customer's recourse against HDS shall be limited proprietary and other notices are reproduced on the back-up to Other Software for which HDS is the licensor and to the extent copy as they exist on the original version. Customer shall provided for in the applicable license. maintain accurate records detailing the location of all original versions and back-up copies of Licensed Software. C. Transferability: Customer may transfer possession of Licensed Software to a third-party provided that: (1) Customer purges all Section 2. Services and Work Product copies of Licensed Software remaining in its possession after such transfer, and (2) the third-party transferee is furnished with a A. Maintenance Services: HDS or its Contractors shall provide legible and complete copy of this Agreement. HDS will provide the Maintenance Services to Customer during the Warranty Period. third-party transferee with a license for Equipment Software upon Any parts removed from the Equipment in the course of any p its acceptance of the terms of this Agreement applicableto Maintenance Services belong to HDS. Equipment Software by its initial use of the Equipment Software. � HDS will B. Hi-Track' Services: Hi-Track Services, defined as remote provide the third-party transferee with a license for diagnostic and monitoring services on an eligible item of Programs upon its acceptance of the terms of this Agreement Equipment, may be included as part of the Maintenance Service. As a condition to HDS providing Hi-Track Services, Customer HDS Confidential Page T LGL-80(Rev.07108104) h shall provide and maintain, at its expense, telecommunications the Products as specified by HDS; (2) performance of any electrical Ime(s) and access as specified by NDS. Hi-Track Services will not work external to an item of Equipment; (3) maintenance of access Customer's data and NDS will maintain a Customer accessories, attachments, and equipment; ( provided password as confidential information. Hi-Track Materia( refinishing, or other refurbishment aEquipment; {5} epaitrnof shall remain with the Equipment. damage resulting from accident, transportation, non-HDS C. Professional Services: installed software or firmware, neglect, improper environmental conditions or any causes other than ordinary use; (6) movement (1} HDS or its or rearrangement of Equipment or cables, additional wiring, or Professional Services will be provided b Contractors as described in and pursuant to the terms of the opereprational; previously prepared site or station to make it p relevant Statement of Work. t7) installation or removal of accessories, attachments or other devices, or the furnishing of supplies; (8) providing its , fe, and safe access to (2) Each Statement of Work shall include: (a) a detailed Customer's Dtesrand notifyingrHDS ofwithlany unsafe conditions or description of HDS' and Customer's respective responsibilities; (b) hazardous materials to which HDS personnel would or could be an estimated completion schedule including milestones if exposed to at Customer's site; and (9) obtaining certification of applicable to the Professional Services; (c) specific completion maintenance eligibility from the equipment manufacturer or criteria that HDS is required to meet to fulfill its obligations under authorized service agent if required by HDS. Upon Customer's the Statement of Work; (d) payment terms; and (e) Identification of request, HDS may elect to perform any of Customer's HDS and Customer contacts. The commencement date for responsibilities at HDS'then current time and expense rate. Professional Services under any Statement of Work shall be specified in the applicable Statement of Work or, if no such date is set forth, the date on which HDS begins to perform Professional Section 3. Confidential and Proprietary Information Services under the applicable Statement of Work. Any Statements A. of Work attached hereto or hereafter executed which are related to Generally: this Agreement are incorporated into and made a part of this Agreement. (1) Customer hereby agrees that all information furnished by HDS hereunder in written, other tangible or electronic form and clearly marked as being confidential, or if orally or visually (3) To the extent that any provisions of this Agreement and furnished, identified as being confidential in a writing submitted the Statement of Work conflict, the terms of the Statement of Work shall control unless the Statement of Work is a Customer to Customer within thirty (30} days after such oral or visual disclosure, purchase order (or other business form furnished by Customer), onfdential information. C�tomerbfurther agreestto meaintDn in which case, regardless of when executed, accepted and such HDS confidential information received hereunder in delivered, this Agreement shall control. None of the provisions confidence utilizing the same degree of care it uses to protect of a Customer purchase order(or other business form furnished its own confidential information of a similar nature and to not by Customer), regardless of when executed and delivered, shall disclose such HDS confidential information to any third party or be binding on the parties other than the description of the to employees of the receivin Professional Services, the schedule of rates or fees and the 9 party without a need to know. location where the Professional Services are to be performed. (2) Hitachi IP constitutes work protected by state, federal and international laws applicable to proprietary rights and intellectual D. Work Product: Customer acknowledges and agrees that property rights. Customer agrees all such property is owned HDS, its licensors, or its Contractors own all Work Product, except exclusively by MDS or its licensors and not to take any action that any Work Product identified in a Statement of Work as owned by mayjeopardize any right, title or interest that HDS or its licensors Customer. To the extent that Customer and HDS own any Work may have in the property including, but not limited to, the Product, each hereby grants to the other a personal, nonexclusive removal or defacing of any notice, statement or legend that and paid-up license to: (a) use the Work Product; (b) modify and appears on any Hitachi IP. Except as expressly provided in this prepare derivative works of the Work Product; and (c) reproduce, Agreement, Customer shall not acquire any right, title or interest copy and display the Work Product; however, the Customer's in or to any Hitachi IP and shall, upon request, promptly return license shall be limited to intra-company uses, modifications, any Diagnostic and Service Related Material pias any copies. derivations, distributions, reproductions, copying and displays for the sole benefit of Customer, its employees and B. Restrictions: Except as expressly representatives and solely for purposes of the Professional without the prior written consent of rHDSeCustomerr shallin thisnentnot Services. permit or engage in any activity related to the transfer(whether in whole or in part) or transformation including, but not limited to, E. Customer's Responsibilities: Customer shall be responsible decoding, reverse engineering, decompiling, translating, for the following items which are not included as Maintenance Services: {1} providing and maintaining a suitable environment for mirroring or creation of derivative works based on, developed from,or that incorporate portions of any Hitachi IP. HDS Confidential Page 2 LGL-80(Rev.07/08!04) ~ / C. Equitable Remedies: Customer acknowledges that any beach Shoulda»y Hitachi IP, Services or Equipment become or, oD5' byit»fthe Pro«skmsofthis Sechon3o,any mherconAdenMa||ty «Pm|o»' Uke�bec»memhesuWa�ofanyinfnng�mentd�m. *DS or use restriction herein willcause irreparable damage to HDS or u'm/ at /o sole option and expense either procure for Customer its licensors and �h�u a remedy a� law will be ina�equse the right to continue us/»g or receiving the item, replace or HDS and i— modify it so it becomes non-infringing, or grant Customer a Therefore, in addition 'oany and aU �herremedies, wch breach.o credit for the Hitachi IP, Services »'Equipment as depreciated, on licensors will be entitled to injunctive relief for sa five-year double declining balance schedule with no salvage Customer shall immediately notify HDS of such breach �ak steps reasonably available to cum and / take all «»/ue' and accept its return. This Section 5 states HDS' entire violation. liability,and Customer's sole and exclusive remedy for intellectual property rights claims relating murarising out ufany Hitachi /P Section 4. Warranties Services orEquipment. ' B. Limitations: � HDS shall also have no obligation to Customer if A. General: HDS warrants to Customer that: (l) unless otherwise the alleged infringement is based on: (l) any modification madastated, the Equipment and the related licensed internal code will be to the subject Hitachi /p' Services or Equipment (ocher than byfree from defects in materials and workmanship and conform to HDS »rits Contractor); (2) the integration, application, operation HDS' published specifications for twelve (12) months; (2) it or use of the Hitachi |P' Services or Equipment with any otherwill provide all Services in a workmanlike manner; and (3) the equipment' services or software not furnished by HDS or itsL|censed Software will perform according to its written Contractor; or(]) aviolation byCustomer ofSection /. 2o. nr3of specifications for ninety(9O)days from the date ufinstallation.The this Agreement.may include used or re-manufactured components'wh/charewaronedasnew. Should any nfthe above not conform Section 6. Agreement Termination to their warranty, HDS will, provided that HDS is notified during the applicable Warranty Period, at its option and at no charge to A. Default: For the purposes of this Agreement, ' Defau|t'Cu^,vncr either repair or replace the Equipment o/ Licensed means: (l) abea h by Customer of any of its obligations in Software, re-perform the Services. Section l. 28. o, ]; (2) the failure ufone party tocure a default under this Agreement (other than a default described in Section8' Limitations: HDS warranties do not cover any Licensed uAM' 6A(2) or b«(])) within 30 calendar days after delivery ofSoftware or Equipment that has been damaged by accident, notice nrdeta«/t (3) the insolvency of[ustomecor(4)any acdonne9/ect. misuse, abuse or natural disaster,�, sub8acce� to an by Customer to wind-up, liquidate or otherwise cease doingunsui/a /e physical operating envi."""""t. not properly hugness maintained inaccordance with the procedures recommended hyits supplier, ormodified without HDS'prior written consent. U. Remedies Upon Default: |nthe event ofaDefault, the nen- THE R}KEC0/NC WARRANTIES ARE |N LIEU OF ALL OTHER deta»|U»g party shall have the immediate right ,o terminate this HDS Agreement including any license granted hereunder; refuse to WARRANTIES WITH RESPECT TO PRODUCTS OR SERVICES. 0��L^|�5. �ND[U5TO�ERHEREBv�x/yBPm«ideo' suspend any Semice; and exen|oeany other rights o/ EXPRESS OR IMPLIED WARRANTIES INCL 'ANY OTHER remedies provided hereunder and/or available at law or in equity WARRANTIES 0F FITNESS FOR A pARTl—'`D|wG THE IMPLIED H[R consistent with this Agreement. In the event of termination,UL^n PURPOSE0K Customer shall promptly purge ordestroy all applicable Hitachi (p MERCHANTABILITY. HDS. ITS LICENSORS, VENDORSOR and updates,and retumall other pnope�ybelonging tuHDS urits OPERATE UNINTERRUPTED OR EKROR FRm«r PRODUCTS WILL licensors in Customer's Possession or control (other than any DR�\[H 0F WARRANTY |N TN|5 �E�~mN` EE. EACH REMEDY FOR licensed internal cnde). / SHALL BE CUSTOMER'S S0LELAND EXCLUSIVE REMEDY AND HDS' SOLE AND EXCLUSIVE C. Survival: The provisions of this Agreement which by their LIABInature would survive termination of this Agreement shall so Section S. Infringement Indemnification survive. A. General: If Customer notifies HDS promptly in writing of any Section 7^ General action, HDS will defend that acUon, at its own pxpense,and pay the A. Assignment: This Agreement shall obligate and benefit the costs .... ..'.."y=" "wu,oro against Customer in the action to the parties and their permitted successors and assigns;Section ] shall also benefit the licensors of HDS. Except for aServices or Hitachi |p infringes a valid US patent or copyright Service transaction or software license (which may not beprovided that HDS has sole control over the defense of any such assigned by Customer), Customer may assign this Agreementaction and all negotiations for its settlement or compromise and only with the prior written consent o/ HDS, which consent shall provides all reasonable assistance requested by HDS. not be unreasonably withheld. Any attempt by Customer to HDS Confidential Page LGL-80(Rmv.070804) . . . � assign, transfer or delegate this Agreement or any rights o, |. Governing Law: This Agreement |� interpretation d obligations under this Agreement in violation of this Section shall enforcement will be governed by the laws` - of the State of be void. York,without regard to its conflicts oflaw principles. B. Limitation of Liability: Should Customer be entitled to recover Miscellaneous: This Agreement is the entire agreement of | *,mages from n05 based on one or more claims for beach of the parUea, and supersedes all prior agreements and cmruuu, negligence, misrepresentation, or othercontracthe, contract or tort communications between the parties with respect to the subject"claim, "^n shall be liable only for: (l) its obligations in Section 5; matter of this Agreement, and represents the complete (^) damages for bodily injury(including death) and damage toreal integration ufthe pare�' ag�emen� ~ — � any prnvdunof this or tangible personal property; and (3) the amount of any Agreement shall be no/d invalid, illegal »runenforceable, the other actual direct damages urloss. |nthe case ofclause (3)' the remaining provisions shall �� be affected or impaired, Thisma»|mumaggnegee ||abi||'yofHDSsha|| nocexceedthe |essrof Agreement may = modified only by a written agreement(a) the total amount paid to HDS byCustomer for the Product or executed by authorized officers of bum MDSand Customer. NoService subject to the claim, or (b) five hundred thousand dollars delay u,omission coexercise any right»rremedy accruing to HDS($50O^OVO)' Neither HDS nor its licensors or Contractors shall be upon any breach or default of Customer shall impair that right or liable for any special, indirect, incidental or consequential loss or remedy' or vun^t'vry to be awaiver o* any breach or default. damage of any kind or nature whatsoever, regardless of whether Awmwaiver by HQ5 of any breach or default under this Agreementarising from breach of contract, warranty, tort, strict liability, or must be in writing and executed by an authorized officer of HDS. otherwise, even if advised of the possibility uf the loss urdamage n,|fthe loss ordamage could have been reasonably foreseen. Section B. Glossary mfTerms C. Limitation on Claims: No action arising hereunder may be Contractor means an individual or organization under c � t brought more than one year after the cause nfaction has accmed. with nDSthat may pmvideSemices. o» »ac D. Access: Upon request by HDS. Customer shall promptly Customer means the person orentity |denUMad th i prowdeH[8or xsContractor access to the location where any page hereto as Customer and each of |n pm�onede scg»anue ~~ ^~~^~" Hitachi. | � " , ., located and m all relevant Uooks, records, officers, and assigns. - - employees and representatives of Customer for the purpose of verifying compliance byCustomer with this Agreement. Diagnostic and Service Related Material means software, E. Equipment Relocation: to give HD� a� | hardware, manuals and other documentation ofHoS used or held ] - : Customer agrees notice of any change |n location or r for use by Hn5 or Contractor to pedbrmdiagnosdcSemices or 0 days' Prior written arrangemen�of�he [qu|pmen� v Maintenance Services, n|agnnsUcand Ien,iceRelated Mamha| � does not include any Licensed Software, Other Software or Hi- Track Material. F. Notices: Any notice under this Agreement must be in writing and is deemed given and effective three business da ft ma|||ngMrs� dass' postage prepaid, whensen� byfacysae' E«u|pnnentmeans any one»'more ofdata p,ocesgngequipment, confirmed by first class mail, or when delivered facsimile and features, and accessories (excluding Hitachi IP) purchased ' . " b y overnight through anHDSauthorized reseller. express o, other express delivery semice, in each case to the parties atthe address listed above. Equipment Software means computer software including licensed internal code, included as standard with an item of Equipment G. U.S. Export po||qCustomer acknowledges that U.S. laws, (other than any Other Software, Hi-Track. or Diagnostic andregulations and requirements regulate the export of U.S. origin Service Related Material) and the related licensed materials products and prohibit use, sale or re-export if (including, without limitation, documentation in any form) and all[untomer knmwa, or has reason to knmw, that such copies. products/technology are for use in connection with the design, dewek`pmenc, producUnn, stockpiling or use of nuclear, chemical Hitachi |P means H|-Track Material, Licensed Software, and mweapons ' Diagnostic and Service Related Material. H. Suspension ofObligations: The obligations hereunder shall be Hi-Track Material means hardware, softwareand/or microcode""suspended tvthe exmnrm��apany|s hmde,ednrpeven»ed from installed or operating with an eligible m of Equ/pme t performing em by acts of God, or any cause whatsoever not necessary for ni-Tr��k Services. '`" n within its reasonable control, Maintenance Service includes: (a) the cnotm} and installation of engineering changes that HD5determ|nes cubeapplicable tothe Equipment; (b) preventive maintenance including necessary HDSConfidenVa| Page LGL'80(Rmv.07/08o04) lubrication, adjustment, or replacement of unserviceable parts; and (c) unscheduled maintenance including repair, adjustment, or replacement of unserviceable parts as deemed necessary by HDS. Other Software means computer software included with an item of Equipment, whether or not separately ordered, which is separately licensed (including licensed via shrink-wrap or click- wrap). Professional Services means specific assistance services for technical tasks, consulting and systems integration as described in and provided by HDS or one of its Contractors pursuant to a Statement of Work. Program means separately ordered computer software, except Other Software, included with an item of Equipment and the related licensed materials (including, without limitation, documentation in any form)and all copies. Statement of Work means sequentially numbered documents which document and constitute the description of Professional Services NDS will render to Customer. A Statement of Work shall include the information described in Section 2.C. Work Product means works of authorship, programs, program listings, programming tools, documentation, reports, drawings and similar works that NDS or a Contractor may deliver or cause to be delivered to Customer in connection with the performance of Professional Services. The term Work Product does not include any licensed internal code, computer software licensed by HDS, shrink-wrap or click-wrap software, diagnostic or service related materials or any Hi-Track® material of HDS. HDS Confidential Page 5 LGL-so{Rev.ozrosr©a}