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LICENSE AGREEMENT l SFG T ECHNOloqlES INC. t ," I I , I , SFG ~,,. liCENSE AGREEMENT LICENSE AGREEMENT by and between SFG Technologies (U.S.) Inc. (USFG"), having offices at 990 Hammond Drive, Suite 360, Atlanta. GA 30328 and the City of CIll9rwa~ustome('I. having offices at 100 S. Myrtle Ave, Clearwater, FL 3375' is made and entered into as of the~Jaay of 998. 1, LICENSE. long as Customer is current on maintenance and is in compliance with 1.1. For each Program listed on a Supplement, SFG grants to Customer the provision of its agreements with SFG, in the event SFG ceases to a perpetual, non.exclusive, non.transferable license to Use and allow its maintain the Program(s), Customer shall have a right to obtain access to Affiliates (for so long as they are Affiliates) to Use, the Program solely such escrowed source code from the escrow agent. for its and its Affiliates internal purposes on the Hardware and Operating System Software at the Site. In this Agreement, (a) "Documentation" means user guides, operating manuals, and specifications, whether in print or machine readable media, in effect as of the date of shipment, (b) "Use" means to load, execute, employ, utilize, store or display the Program, (c) "Affiliates" means any entity controlling, controlled by, or under common control with Customer, and (d) "Server" means one or more interconnected computer hardware systems configured to run the Program(s); Customer shall ensure that its Affiliates comply with the terms of this Agreement and will be liable for any breach by any Affiliate. Customer may delegate authority to execute Supplements to any Affiliate. 1.2, The Program may be transferred temporarily to a backup computer. The Program may also be transferred to computer hardware or used with an operating system, other than the specified Hardware or Operating System Software, subject to SFG's transfer policies and fees then in effect. Customer may make a reasonable number of copies of the Program exclusively for testing, disaster recovery, inactive back.up or archival purposes, Copying or Use of the Program or Documentation other than as expressly authorized by this Agreement is not permitted. 1.3 As soon as practicable after signing the Agreement but not later than specified in the Statement of Work, SFG shall deliver the Program and Documentation to the Site. One (1) copy of each Program per Server and one (1) copy of Documentation shall be delivered to Customer. Customer may make and Use additional copies of Programs and machine readable Documentation for the number of users specified on the applicable Supplement. 2, SUPPORT AND MAINTENANCE. 2.1. Maintenance entitles Customer to have access to SFG's electronic support facilities and to receive federal tax and regulatory updates and all error correction releases and/or performance enhancement releases of the Programs not separately marketed by SFG. The license granted to Customer under Section 1 shall extend to each update, correction and enhancement release received from SFG. Support entitles Customer's employees to telephone SFG's Helpline and to have access to SFG's electronic support facilities, 2.2, SFG shall have no obligation to Support or Maintain the Program for Use on any computer system other than the Hardware and Operating System Software or in the event Customer modifies the Program or data generated by the Program other than as provided in the Documentation. SFG shall use commercially reasonable efforts to modify any version of the Program to run with new versions or releases of the Operating System Software or Hardware. If Customer purchases Maintenance from SFG for any Programs for Use on specific Hardware or in a specific network, Customer must purchase Maintenance from SFG for all functionally related Programs licensed from SFG for Use on such hardware or network. 2.3, Upon completion of each major release of the Program(s) but not less often than annually, SFG shall deliver one copy of any SFG source code for the Program to City Clerk of Clearwater, Florida. After five (5) years from the date of this agreement, SFG may request a change in the escrow agent at no cost to customer. Invoices for maintenance will include the name and address of the then current escrow agent. So 20 - t 115; - ( 3. CONFIDENTIALITY AND PROPRIETARY RIGHTS. 3.1. To the extent allowed by FL. Public Records Law, each party shall hold Confidential Information of the other in confidence. "Confidential Information" includes without limitation, the Program(s) and all Documentation, and all methods or concepts utilized therein, plus all information identified by the disclosing party as proprietary or confidential. All Confidential Information shall remain the sole property of the disclosing party. Upon execution of a non.disclosure agreement satisfactory to SFG, third parties may have access to Confidential Information solely for the purpose of providing services to Customer. Information will not be considered to be Confidential Information if (i) available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by a party without access to Confidential Information of the other; (iv) known to the recipient at the time of disclosure; (v) produced in compliance with applicable law or a court order, provided the other party is given notice and opportunity to intervene; or (vi) it does not constitute a trade secret and more than five (5) years have elapsed from the date of disclosure. 3.2. All Programs and Documentation, and any modifications or copies thereof, are proprietary and protected by copyright and/or trade secret law and no ownership rights are transferred by this Agreement. All proprietary notices incorporated in, marked on, or affixed to a Program or other Confidential Information by SFG or its suppliers shall be duplicated by Customer on all copies of all or any part of the Program and shall not be altered, removed or obliterated. Customer shall not reverse engineer, reverse assemble or reverse compile any Program or part thereof. Customer may modify the Programs to the extent and in the manner described in the Documentation for the Program(s). 3.3. If Customer has obligations under law to make certain documents and records open to inspection by the public, nothing in this Agreement will prevent compliance with that law. However, as provided in Section 3.2., Programs and Documentation shall be considered to be a trade secret and treated as exempt from such disclosure, Customer will notify SFG before making publiC any document or information which SFG has marked confidential and/or as proprietary, with the exception of this License Agreement and any Addenda and License Supplements thereto, giving SFG opportunity to oppose that release in a proper legal proceeding. 4. WARRANTY, 4.1 SFG warrants that for those programs licensed to customer in the License Supplement will operate substantially in conformance with the documentation for such program for a period of one (1) year from the date of completion of Acceptance Testing. SFG warrants the media on which the Program is delivered to be free of defects in material and workmanship for a period of ninety (90) calendar days following the date of shipment. 4.2. Customer's sole and exclusive remedies for breach of either of the foregoing warranties shall be either replacement of the defective materials or a refund of the license fee paid for the Program. Such remedies are available, only if SFG is notified within the applicable 1//;1 U/ Warranty Period and is provided a reasonable oplortunity to cure such b~a~. . 4,3. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE PROGRAM, DOCUMENTATION OR SERVICES TO BE SUPPLIED BY SFG, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. INFRINGEMENT INDEMNITY. SFG shall indemnify, defend, or, at its option, settle any claim or suit against Customer on the basis of infringement of any patent, trademark, copyright or trade secret by the Program or Use thereof and pay any final judgment entered against Customer on such issue in any such proceeding; provided SFG has sole control of such defense and/or settlement and Customer promptly notifies SFG and gives SFG all related information known to Customer. If any part of the Program is, or may become, the subject of any such proceeding, SFG may, and in the event of any adjudication that any part of a Program does so infringe or if the licensing or Use of the Program or any part thereof is enjoined, SFG shall, at its expense and option, do one of the following things: procure for Customer the right to Use the Program or the affected part thereof; replace the Program or affected part thereof with other suitable programs; modify the Program or affected part thereof to make it non- infringing; or if none of the foregoing remedies are commercially feasible, refund the aggregate payments paid by Customer for the Program or the affected part thereof, less reasonable amortization for Use. SFG shall have no obligations under this Section 5 with respect to any claim to the extent it is based upon (i) the Use of any version of the Program other than a current, unaltered release of the Program, if such infringement would have been avoided by the Use of a current, unaltered release; (ii) the combination, operation, or Use of the Program with software or hardware other than as specified by SFG, if such infringement would have been avoided in the absence of such combination, operation or Use; or (iii) the Use of the Program on or in connection with a computer system other than the Hardware and the Operating System Software. 6. LIMITATION OF LIABILITY. Except as provided in Section 5, in the event of death or personal injury, and in the event of damage to tangible personal property, the total liability, if any, of SFG, including but not limited to liability arising out of, resulting from or in any way related to contract, tort, breach of warranty, infringement or otherwise, shall not in any event exceed the license fees paid by Customer with respect to the affected Program. Neither SFG nor its licensors shall be liable for loss of profits, or indirect, special, incidental, or consequential damages. 7, GENERAL. 7.1. Neither this Agreement nor any license hereunder may be assigned (whether by operation of law or otherwise) by either party without the other party's prior written consent. In the event that Customer and/or one or more Affiliates, if any, is reorganized such that the Affiliate(s) and/or a portion of the Customer is no longer qualified for Use, Customer may request assignment, which shall not be un~asonably withheld. Any fees for additional users or accounts shall be paid to SFG. 7,2. From time to time, SFG may request Customer to provide a certification to the effect that actual Use of the Program is in compliance with the terms of this Agreement and any Supplement. In addition, SFG may, upon reasonable notice, perform an audit to determine compliance with the terms of this Agreement. If the number of accounts, copies or users is found to be greater than that specified in the License Supplement or the computer system on which the Program is in use differs from the Hardware ~d Operating System Software specified on any Agreement, SFG sh.' have the right to charge Customer the applicable current list prices therefore, 7.3. On termination of any license granted pursuant to the Agreement, Customer shall cease Using the Program and Documentation, and Customer shall certify in writing to SFG that all copies of the Program and Documentation, whether or not modified or incorporated into other materials, have been destroyed or returned to SFG. Termination of this Agreement or any license shall not relieve Customer's obligation to pay all fees incurred prior to such termination and shall not limit either party from pursuing any other remedies available to it. Each party's obligations under Section 3 hereof shall survive termination of any license or this Agreement. 7.4. Each party's obligations under Section 3 hereof are of a unique character and each agrees that any breach may result in irreparable and continuing damage to the other party for which there will be no adequate remedy in damages. In the event of such a breach, the damaged party will be entitled to injunctive relief and/or a decree for specific performance and such further relief as may be proper. 7.5. This Agreement is subject to any governmental laws, orders or other restrictions on the export of Programs and related information and Documentation that may be imposed by governmental authorities. 7,6. If either party materially b~aches any of its obligations hereunder and fails to remedy such breach (if such breach can be remedied) within thirty (30) days of written notice of such breach, the other party may terminate any license or this Agreement. Waiver of any breach or condition of this Agreement shall not be deemed a waiver of any prior or subsequent breach. No terms or conditions of this Agreement shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. All such instruments shall be delivered by overnight delivery service or certified mail, return receipt requested, to the address specified above. Either party may change its address by providing notice in accordance with this Section. 7.7. Any provision of this Agreement which is prohibited by law or is unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions he~of. 7.8. Subject to the limitations herein before exp~ssed, this Agreement will enure to the benefit of and be binding upon the parties and their respective successors and assigns. 7.9. This Agreement, together with SFG's response to Customer's RFP along with the exhibits and addenda hereto, and Supplements issued hereunder, constitutes the entire agreement of the parties and supersedes all previous and contemporaneous communication, ~presentations, understandings or agreements ~Iated to the subject matter hereof. This Agreement may be modified only in a writing signed by both parties. Customer may issue a purchase order in lieu of a Supplement, if confirmed by an SFG invoice or other SFG confirming document. P~-printed terms and conditions on or attached to any such purchase order shall be of no force or effect. In the event of inconsistencies or conflicts in the terms and conditions of any portions of the entire agreement the order of priority shall be; (i) this License Agreement, (ii) License Supplement(s) to this Agreement and any addendums thereto, (iii) Services Supplement(s) and associated Statement(s) of Work, when approved, and Change Orders (if any) and any addendums thereto, (iv) the Project Plan when approved, (v) the Scope Report when approved, and (vi) SFG's response to Customer's RFP (if any). 2 I I 8. INDEMNITIES, INSURANCE, AND REQUIRED LICENSES 8.1 SFG agrees that it will at all times indemnify and hold Customer, its officers and employees, harmless and free and clear of any and all liability arising from any act, negligence, or omission on the part of SFG, its agents, servants, employees and subcontractors with respect to this Agreement and any of the terms, provisions and conditions thereof. In case any action, in court or proceeding before an administrative agency, is brought against Customer or any of its officers, agents or employees for the failure, omission, or neglect of SFG to perform any of the covenants, acts, matters or things by this Agreement undertaken, or for injury or damage caused by the alleged negligence of SFG, its officers, agents or employees, SFG shall indemnify and save harmless Customer and its officers, agents and employees from all losses, damages, costs, attorneys' fees, expenses, judgments or decrees arising out of such negligent action. SFG shall tender the defense of any claim or action at law or in equity to SFG's insurer to defend such claim or action without cost or expense to Customer or its officers, agents and employees. SFG shall defend, indemnify and save harmless Customer from and against any liabilities, claims and causes of action for injury or death to persons or damage to property which Customer may incur or suffer as a result of the acts, negligence, errors, omissions or willful misconduct on the part of SFG and its agents, employees, or contractors in the performance of this Agreement, within the term thereof and for any periOd within the statute of limitations beyond the term of this Agreement. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either Customer or SFG. 8,2 General. Before starting work and until acceptance of the work by Customer, SFG shall procure and maintain insurance of the types and to the limits specified in paragraphs (1) through (3) inclusive below, and shall furnish certificates of such coverage to Customer. SFG shall require each of its subcontractors to procure and maintain, until completion of the subcontractor's work, insurance of types and to the limits specified in paragraphs (1) through (3) inclusive below. It shall be SFG's responsibility to ensure that all such subcontractors comply with all of the insurance requirements contained herein relating to such subcontractors. 8.3 Coverage - Except as otherwise stated, the amounts and types of insurance shall conform to the follOWing minimum requirements: 1. Workers' Compensation - coverage to apply to all employees for Statutory Limits in compliance with the applicable state and federal laws. In addition, the policy must include: a. Employer's Liability with a limit of $100,000 each accident and disease. b. Notice of Cancellation and/or Restriction - The policy must be endorsed to provide Customer with thirty (30) days notice of cancellation and/or restriction. c, If any operations are to be undertaken on or about navigable waters, coverage must be included for the U. S. Longshoremen & Harbor Workers Act and Jones Act. 2. Commercial General Liability - Coverage must be afforded on a form no more restrictive than the latest edition of the Commercial General Liability Policy, on an occurrence basis, filed by the Insurance Services Office and must include: a, Minimum limits of $1 ,000,000 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. b. Premises and Operations c. Independent Contractors d. Products and Completed Operations - SFG shall maintain in force until at least three (3) years after completion of all services required under this Agreement, coverage for products and completed operations, including Broad Form Property Damage. e. Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement. f. Additional Named Insured . Customer is to be specifically included as an additional named insured (including Products and Completed Operations) for the liability of Customer resulting from operations performed by or on behalf of SFG in performance of this Agreement. SFG's insurance including that applicable to Customer as an Additional Named Insured shall apply on a primary basis and any other insurance maintained by Customer shall be in excess of and shall not contribute with SFG's insurance. SFG's insurance shall contain a severability of interest provision, providing that, except with respect to the total limits of liability, the insurance shall apply to each Insured or Additional Named Insured in the same manner as if separate policies had been issued to each. g. Notice of Cancellation and/or Restriction - The policy must be endorsed to provide Customer with thirty (30) days notice of cancellation and/or restriction. 3. Business Auto Policy - Coverage must be afforded on a form no more restrictive than the latest edition of the Business Auto Policy filed by the Insurance Services Office and must include: a. Minimum Limits of $1,000,000 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. b. Owned Vehicles. c. Hired and Non-Owned Vehicles. d. Notice of Cancellation and/or Restriction - The Policy must be endorsed to provide Customer with thirty (30) days notice of cancellation and/or restriction. e. Additional Named Insured - Customer is to be specifically included as an additional named insured. SFG's insurance including that applicable to Customer as an Additional Named Insured shall apply on a primary basis and any other insurance maintained by Customer 3 IIIII shall be in excess of and shall not e<<J,tribute with SFG's insurance. SFG's insurance sha' contain a severability of interest provision, providing that, except with respect to ttIJ total limits of liability, the insurance shall apply to eacllnsured or Additional Named Insured in the same manner as if separate policies had been issued to each, 4. Certificates of Insurance. Certificates of insurance evidencing the insurance coverage specified in the previous paragraphs (1) through (3) inclusive shall be filed with Customer before work covered by this Agreement is begun. The required certificates of insurance not only shall name the types of policies provided, but also shall refer specifically to this contract and section and the above paragraphs in accordance with which insurance is being furnished, and shall state that such insurance is required by such paragraphs of this contract. If the initial insurance expires prior to the completion of the work, renewal certificates of insurance and required copies of policies shall be furnished thirty (3D) days prior to the date of their expiration. 8.4 Required Licenses - SFG shall secure and take out all necessary licenses, certificates and permits from any municipality or other public authority, which may be required in connection with the work contemplated by this Agreement, or any part thereof, and shall give all notices required by any statute, law, ordinance, rule or regulation. Customer shall notify SFG of any known requirements. 9, GOVERNING LAW This Agreement shall be governed by the laws of the State of Florida. 10. INDEPENDENT CONTRACTORNENDOR The relationship of SFG to Customer will be that of an independent contractor, and no principal/agent or employer/employee relationship will be created by this Agreement. SFG is an independent vendor and shall have no authority, expressed or implied, to act for or bind Customer by virtue of anything contained in this Agreement. Nothing contained within the Agreement shall be deemed or construed by SFG or Customer or by any third party to create the relationship of a partnership or a joint venture, SFG agrees that it, its agents, servants, employees, and subcontractors, are and at all times shall be deemed to be independent contractors, and shall not, in any manner whatsoever, by their actions or deeds commit Customer to any obligation irrespective of the nature thereof, and shall not at any time or for any purpose be deemed employees of Customer. 11, EQUAL EMPLOYMENT OPPORTUNITY SFG hereby agrees that in the hiring of employees for the performance of work under this Agreement, it and its contractors shall not, by reason of race, color, religion, sex, age, handicap, national origin or ancestry, discriminate against any citizen of Florida in the employment of a person qualified and available to perform the work to which the Agreement relates, and that no contractor or other person acting on behalf of SFG shall, in any manner, discriminate against, intimidate, or retaliate against any employee hired for the performance of work under this Agreement on account of race, color, religion, sex, age, handicap, national origin or ancestry, 12, WORK PRODUCT; OWNERSHIP OF DATA All documents and other work products prepared by SFG under this Agreement exclusively for the use of Customer shall be the property of Customer with the exception of SFG proprietary materials. SFG shall be authorized to use all reports, data, or other material prepared by it for Customer under this Agreement, but shall not disclose, nor permit disclosure of, any information designated by Customer as confidential, except to its employees and other consultants who need such information in order to properly provide the services under this Agreement. SFG shall not sell or barter any documents or work products under this Agreement without the expressed written consent of Customer. Data collected on tape or hard copy form, supplied by Customer to be utilized by SFG in the computer system database contemplated herein, will remain property of Customer, and no use will be made thereof beyond that listed in the Agreement without written permission of Customer, which permission shall not be unreasonably withheld. 13, BOOKS AND RECORDS Each party shall maintain full and complete books and records of its accounts evidencing and relating to charges and payments for any programs and services delivered under this Agreement in accordance with generally accepted accounting practices, Such books and records shall be retained pursuant to the Florida Public Records Laws by each party and shall at all reasonable times be available for audit and inspection during normal business hours by party or party's designated representative. Customer shall provide to SFG a copy of the Florida Public Records Laws and will notify SFG of any changes thereto. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the ... By: Bruce Countersigned: :~ OF cerATER. FLORI~ Michael J. Roberto City M.llnagei - Approved as to form: Attest: ~~ John Carassas Assistant City Attorney ~ynthia E. G'OUde;u' ~ lJ - - City Clerk 4 SFG T EC~NOloG\ES INC. liCENSE SUpplEMENT /} ''TI-f Il This Supplement is made a part of the License Agreement dated as of 0< 'tf day of (it ..b?1p....:I998, by and between SFG Technologies Inc. ("SFG") and the City of Clearwater ("Customer). ,f' '1' , , , G ~,,. Program Users Services Accounts License Total Maintenance Fee Fees & Support Utility Management System V6,x Water, Sewer, 25,700 $5.00 $128,500 $25,700 Solid Waste, Stormwater Utility Management System V6,x Gas, Propane 13,300 $7.00 $93,100 $18,620 Utility Management System V6,x Water, Sewer, 21,000 nlc nlc $1.40 per Solid Waste, account as Stormwater, incurred. Gas, Propane SFG General Ledger V4.x 1 SFG Distributed Report Server TOTALS $44,320 Maintenance & Support LBM Print Q I Job Q Manager $0 $0 10 Objects Personal Edition 89 $125 $11,125 $2,114 10 Objects Administrator 2 $995 $1,990 $378 10 Objects Enterprise Edition 8 $645 $5,160 $980 IQ Server - HP class K series (420) 1 $7,000 $7,000 $1,330 Uniface Runtime UMS nlc $0 $0 AcuCobol Unix class/Acu4g1 runtime/CV2 1 $2,650 $2,650 $504 Oracle 7.x runtime 100 $1,200 $120,000 $24,000 TOTALS $147,925 $29,306 DATABASE SERVER OPERATING SYSTEM HP-UX SERVER MODEL & MANUFACTURER K420 NETWORK ENVIRONMENT Oracle 7.x SITE: The server portion of the Program(s) will be installed at City of Clearwater. SUPPORT AND MAINTENANCE: For six (6) months from Acceptance Test completion, except for Programs that are being relicensed, Support for SFG Programs shall be provided as a billable activity described in a Services Supplement, and Maintenance is provided at no additional charge to the Customer. Thereafter, Customer, by payment of the then current Support and Maintenance Fee, may renew Support and Maintenance so long as SFG makes Support and Maintenance for the Program(s) available to its customers in general and so long as Customer remains current on Support and Maintenance. The Support and Maintenance Fee percentage calculation (20%) will not increase for a period of five (5) years from the date of this agreement. Subsequent changes to Support and Maintenance Fees thereafter will conform to the prevailing Support and Maintenance Fee charges as published in the SFG price guide. PAYMENT TERMS: All fees shall be paid within Forty.five (45) days after the invoice date in accordance with the Florida Prompt Payment Laws. SFG shall pay all applicable SFG shipping charges. Customer shall pay applicable taxes, except for SFG's income and corporate franchise taxes. Customer shall pay 10% of the Total Fees for SFG Programs upon Customer's execution of this Supplement. Customer shall pay 30% of the Total Fees for SFG Programs upon delivery of the Program(s) by SFG. Customer shall pay 30% upon first live use of the program(s). Customer shall pay the remainder of the Total Fees for SFG Programs upon completion of Acceptance Testing, but not later than the end of the Warranty period. The payment 5 of License Fees for Third Party Programs, (if any), )hall be 10% upon Customer's execution of this Supple(lent and 90% u~on delivery and accep~ance that third party programs work according to specifilations when installed with SFG's Program(s). Custo.r agrees to notify SFG of any defect In the third party program within ten (10) working days of installation. The payment of Support and Maintenance fee, (if any), shall be 100% due upon delivery of the Program(s). All payments shall be in U.S. dollars, ACCEPTANCE TESTING: Customer shall have Forty-five (45) days from the date of first use in live operation (the initial testing period) to perform reasonable tests to verify that there are no material deficiencies in the Program(s). In the event that a Program is found to contain material deficiencies, Customer shall notify SFG in writing, specifying the nature of the deficiencies. SFG shall have thirty (30) days to correct the deficiencies. SFG shall notify Customer in writing, when the deficiencies have been corrected, and the provisions of this paragraph shall again apply. A Program shall be deemed to be accepted upon the expiry of the initial testing period or of any repeat testing period, if no notice of a material deficiency has been delivered by Customer to SFG during such period(s). The repeat testing period will be Forty-five (45) days or the remainder of the testing period, whichever is longer. If, after two retests, the Program is found to continue to possess material deficiencies, Customer may invoke the penalties provided in the Warranty for the failing Program. PROBLEM DIAGNOSIS: So long as Customer remains current on maintenance, SFG will provide problem diagnosis for a Program and, where possible, will supply corrections for problems that SFG diagnoses as defects in the Program. Upon receipt of notice from Customer of nonconformance between the Program and Documentation, SFG shall use reasonable efforts to correct or circumvent the problem. Any corrections to the Program will be made only to the most current, generally available release of the Program. SFG will perform these services in a timely manner consistent with the urgency of the situation. The following general guidelines will be followed: a) Severity 1: A critical problem has been encountered such that the Program is inoperable, SFG will respond immediately to diagnose the problem. SFG and Customer personnel will work diligently and use all reasonable efforts to correct the problem. b) Severity 2: A problem has been encountered that does not prevent use of the Program, but both SFG and Customer agree that the Program is not operating correctly. SFG will diagnose the problem and advise Customer of a work.around as quickly as possible, and SFG will correct the problem in a subsequent release. Customer may request SFG to provide a patch to the Program outside the normal release and quality assurance processes. c) Severity 3: A minor problem has been encountered. The Program is usable but could be improved by correction of a minor defect or usability enhancement. SFG will assess the problem and, depending on priorities, schedule a fix in a subsequent release, advise Customer that this will not be corrected, or offer this change to Customer as a chargeable modification. GEOGRAPHIC TERRITORIES: Use of the Programs licensed hereunder shall not extend beyond the boundaries of the United States and Canada. GOVERNING LAW: The Agreement shall be governed by and construed under the laws of the Florida. HOURS OF SUPPORT: Support will be provided seven days a week, twenty fours hours per day. SFG offers other hours of support which require payment of a different fee rate. THIRD PARTY PRODUCTS: The Use of any third.party product delivered to Customer by SFG that is not in a sealed package containing a "shrink wrap" license shall be governed by the terms of the License Agreement. The Use of any third-party product delivered to Customer by SFG in a sealed package containing a "shrink wrap" license shall be governed by the terms of the license agreement contained within the sealed package, Notwithstanding any terms and conditions set forth in the License Agreement, SFG shall have no responsibility for such Programs, and all problem resolution and support for such Programs shall be obtained by Customer from the applicable vendor. Unless specified otherwise herein, Customer's Use of any third-party product is intended to be run-time and is not a fuII.use license. USE OF DATABASE: The embedded development and run-time version of the Database, if any, is limited to Use with, and modification of, licensed SFG Programs and tools only. Customer's right to Use the embedded development and run-time version of the Database is limited to Use in conjunction with licensed SFG Programs, unless Use is required for purposes of systems administration. In the event Customer desires to Use the Database for any other purpose, Customer shall obtain a full-use license. ACCOUNTS AND SERVICES DEFINED: The term "Accounts" applies only to Programs which are part of the Utility Management System. For purposes of this Supplement, "Accounts" shall mean each billing unit as determined by Customer. Use of the Programs is authorized for the accounts using the following types of services: Water, Sewer, Gas, Solid Waste, Propane, Stormwater. USERS DEFINED: For purposes of this Supplement, unless specified as "Named Users", users shall be the number of users allowed to Use the Program(s) concurrently. TERM AND TERMINATION: This Supplement shall be effective from the date set forth above. For clarity, unless specified otherwise herein, the license granted for the Program(s) will be perpetual, unless terminated earlier as provided in the License Agreement or this Supplement. If either SFG or the Customer ceases to conduct business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets or avails itself of or becomes subject to any proceeding under the bankruptcy or insolvency laws, or any other laws relating to insolvency or the protection of rights of creditors of any jurisdiction, then, at the option of the other party and on five (5) days prior written notice, the license granted by this Supplement will terminate. Payment of and Support and Maintenance Fee: Six (6) months after the completion of Acceptance Testing, the Customer will be billed by SFG for the Support and Maintenance fee in advance for the following twelve (12) months. The Customer shall reimburse SFG for those charges in twelve (12) equal monthly payments. Failure to make a required payment within ninety (90) days would cause the full balance for that year to become due. Remaining years of the agreement would continue on a monthly payment schedule with the same ninety (90) day payment requirement as stated above. Support and Maintenance fees have been calculated at 20% based on the number of accounts as of the date of the Agreement at the rate defined in the License fee. The account numbers used for calculations are 25,700 for water sewer, stormwater, and solid waste and 13,300 for gas and propane. SFG grants the right to use the Programs for up to 60,000 accounts in all the named services without an increase in the License fee. However, the Customer will pay to SFG any increase in Support and Maintenance fee associated with the increase in the number of accounts from the 25,700 and 13,300 named accounts respectively. SFG may perform an audit at is own cost and expense of the number of accounts as deemed appropriate. 6 Definition: Material Deficiency: A material deficierl:y is a condition in which the Program(s) will not perfot' in accordance with the documentation, and as such the Customer is unable to perform a farticular job task that is considered a critical operation hich is mutually agreed upon by both parties. License Option: SFG grants to Customer the option of licensing the Financial applications (MMIS) marketed by SFG to Customer-for a period of two (2) years from the date of this Addendum, at no cost to Customer. Professional services to implement the Financial applications will be contracted on a time and material basis as agreed to between SFG and Customer. IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be duly executed as of as of the '< By: Countersigned: CITY OF CLEARWATER, FLORIDA By: ~ , Michael J, R<>berto City Man~er ~ Approved as to form: - ~ John Carassas Assistant City Attorney ~ 7 I SFG T ECHNOloqiES INC. SOfTwARE EsCROW AddENduM TO T~E liCENSE SUpplEMENT I This Software Escrow Supplement is made part of the License Supplement dated as of th cay o~~ , 1998, by and between SFG Technologies (US) Inc. ("SFG"), having offices at 990 Hammond Drive; Suite 360, Atl' , Georgia 30328 and Cityof~~!Wate~f\L/~~c,~~tomer"), having offices at 100 S. Mrytle Ave., Clearwater, FL 33756, is made and entered into as the ,~ay Of~998. PREAMBLE WHEREAS: a) SFG owns or has the right to license certain Software ("Programs"); and b) SFG provides software escrow services ("Escrow Services") to its licensees in addition to those specified in the License Supplement, and is willing to provide such services to Customer on the terms and conditions specified in this Addendum; and c) Customer has licensed the Software ("Programs") specified in the License Supplement; and d) The initial Support and Maintenance period specified in the License Supplement has not expired or the Customer has made timely renewal payments; THEREFORE in consideration of the premises and of the mutual covenants herein set forth, the parties agree as follows: SECTION 1: PROGRAMS Programs means the current version of the Program(s) licensed by SFG to Customer in the License Supplement and any subsequent releases or updates of the Programs which may be supplied from time to time to Customer by SFG. SECTION 2: ESCROW SERVICES Term: Escrow Services will commence on the date of execution of this addendum and will continue as long as the Customer is covered by Support and Maintenance and has paid the Escrow Fees. Escrow Services will terminate automatically upon the termination of the License Agreement, upon non- payment of Support and Maintenance fees, or upon non-payment of Escrow Services fees. Source Escrow Ootion: So long as Customer maintains Support and Maintenance in good standing, SFG will deliver to Customer, on the events specified below, a sealed package containing a copy of the Program's source code on SFG supported electronic medium in the format and system environment used by SFG and Customer in its own operation to generate object code, together with a copy of the existing systems documentation developed for the Programs and the specifications for the operating environment and software tools required to make effective use of the source materials. This package will hereafter be referred to as the "Escrow Materials". Deliverv of Escrow Materials: An initial delivery of the Escrow Materials will be shipped within ten (10) days of the date of this Agreement. Subsequently, the existing Escrow Materials will be exchanged for a replacement set comprising the then-current source and documentation simultaneously with the shipment of a new release of the Programs, An update containing material changes or modifications, including any software developed in the course of a project which modifies or enhances the software in use at Customer, will be delivered as a supplement to the Escrow Materials upon the request of Customer, Event of Default: An "Event of Default" means the occurrence of anyone or more of the following: a) SFG is unwilling or unable to complete modifications to the programs which are required to allow Customer to comply with regulatory or legal requirements which are beyond the control of Customer; or b) SFG takes advantage of the insolvency laws of any jurisdiction; or c) SFG makes an assignment in bankruptcy or is adjudicated as bankrupt; or d) SFG makes a general assignment for the benefit of its creditors; or e) SFG has a receiver, administrator or manager of its property, assets or undertakings appointed in such circumstances as would adversely affect the continuing use by Customer of the Software specified in the License Supplement; or f) SFG is ordered by any Court or competent jurisdiction to be wound up; or g) SFG becomes insolvent; or h) SFG ceases doing business as a going concern. 8 Notice of Default: If Customer determines that al Event of Default has occurred, written noti,fication ofrhe Event of Default with !~II particulars (~he "Notice of Default") will be delivered to SFG. In tilt event SFG is in default, SFG shall have thIrty (3D) d~s from the date of the mailing of such notice (the "Notice Period") in which to exercise its rights as set out below under Release to Customer. Release to Customer: Upon the occurrence of an Event of Default and failure by SFG to remedy, the Escrow Materials currently in Customer's possession will be released from the escrow restrictions forthwith and Customer may use the material for the purposes described below. Use of Source Code Restricted: After release of the Escrow Materials to Customer, Customer may use the source code and documentation in the same manner in which Customer is permitted to use the object code of the Programs as specified in the License, with the additional license to modify the source code and convert it to executable object code. In particular, without restricting the generality of the foregoing, release of the Escrow Materials does not alter the property rights in the Programs. Verification of Escrow Materials: Customer is entitled, as often as considered necessary and at its sole expense, to verify that the Escrow Materials or any replacement Escrow Materials in its possession are complete, accurately reflect the most current version of the source code of the Programs currently used by Customer, incorporate all changes made to the Programs or the source code thereof from the previous time the Escrow Materials were delivered under this Addendum and contain no passwords or other devices that would prevent or prohibit the use of the Escrow Materials at any time.SFG is entitled to receive notice from Customer of the date, time and location of any such verification at least 10 days prior to that date and to be present while the verifications are being made. Customer is entitled to carry out such tests and procedures on the Escrow Materials as it may consider necessary to properly make those verifications. Warranties of SFG: Provided Customer maintains Support and Maintenance in good standing, SFG will, to the extent that it is still supplying such services to other customers, warrant that the Escrow Materials and replacement Escrow Materials delivered under this Addendum will: a) be complete; and b} accurately reflect the most current version of the source code of the Programs used by Customer; and c) incorporate all changes made to the Programs or the source code thereof from the previous time the Escrow Materials were delivered to Customer under this Addendum; and d) contain no passwords or other devices that would prevent or prohibit the use of the Escrow Materials at any time. Warranties of Customer: Customer warrants that the Escrow Materials and replacement Escrow Materials delivered under this Addendum will: a} be protected and secured from unauthorized access; and b) not used in any manner to modify or enhance the Programs, Termination of Source Escrow: At Customer's option, the Source Escrow arrangement may be terminated by providing notice in writing to SFG at least thirty (30) days prior to an annual Escrow Services renewal date. Upon termination, Customer will return the Escrow Materials to SFG. SECTION 3: TERMINA nON AND DEFAULT Termination by Either PartY For Failure To Perform: This Addendum may be terminated by either party if the other fails to perform or comply with any provision of this Addendum or any other agreement or supplement related to the Programs, provided that a party intending to terminate under this provision will provide written notice of the applicable default to the defaulting party, and termination based thereon will only be effected if the defaulting party fails to rectify the specified default within thirty (30) days after receipt of such notice. Default by SFG: In the event SFG is in default of its obligations under this Addendum, including, without limitation, its obligation to deliver the Escrow Materials pursuant to Section 2, and such default has not been remedied as provided above, Customer may terminate this Addendum. SFG specifically acknowledges and agrees that Customer would suffer hardship if it is prevented access to Escrow Materials upon the occurrence of an Event of Default under this Addendum, Customer's right to injunctive relief shall be in addition to such other rights it may have at law, in equity (including specific performance) and under this Addendum. Default by Customer: In the event Customer is in default of its obligations under this Addendum, including, without limitation, its obligation to refrain from modifying SFG Programs in any manner using the Escrow Materials, and such default has not been remedied as provided above, SFG may terminate this Addendum. Customer specifically acknowledges and agrees that SFG could suffer damages if it allows unauthorized access to Escrow Materials. SFG's right to injunctive relief shall be in addition to such other rights it may have at law, in equity (including specific performance) and under this Addendum, 9 11- IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly executed as of the date set forth above. I I SFG TECHNOLO " By: Countersigned: By: CITY OF CLEARWATER, FLORIDA ~ IWberto City Manager '.' . Approved as to form: Attest: ~~~ John Carassas Assistant City Attorney '- - - 10 I I SFG T EC~NOloGiES INC. SERVicE SUpplEMENT ," , , . . · SFG t,~ This Supplement is made a part of the License Agreement dated as ofL day of ~1998 by and between SFG Technologies (U.S.) Inc. ("SFG") and City of Clearwater ("Customer). ~. PROGRAM DAYS OF PREP DAYS OF TRAINING NO. OF TRAINEES FEES SFG-Utility Management System Systems Administration Train The Trainer Follow Up Training TOTALS 25 $ 28,750 EDUCATION: SFG shall provide or cause to be provided the education courses, including any materials (collectively referred to as "Education Materials"), listed above. Customer agrees that the Education Materials have tangible value, contain valuable trade secrets, copyrights and confidential and proprietary information of SFG or of any named third party, PROGRAM(S) TO BE INSTALLED AND TUNED Installation of SFG Utility Management System and related SFG and 3rt! Party products, first client and single server components, (5 days) FEES $ 5,750 TOTALS $ 5,750 INSTALLATION: The Program(s) is deemed to be installed, when the Program has been loaded onto the system hardware and is turned over to Customer as ready for testing and implementation, or as provided in the Statement of Work, whichever comes first. Unless otherwise provided in the Statement of Work, SFG is responsible for the first installation and Customer is responsible for each installation thereafter, along with file and data conversion, changes in systems administration or operational procedures, changes in operating system setup and user access, changes in user procedures, changes in internal support and cutover to operational use. Off-Site Implementation, Acceptance & Cutover Support FEES $ 20,000 TOTALS $ 20,000 SUPPORT: Customer will direct all support calls to the Project Manager, Technical Specialist and/or Application Consultant assigned to Customer, otherwise following the procedures outlined in the License Supplement. Each incident during this time will be charged by the number of hours of a day required to resolve the issue. In the event that a Severity 1 problem occurs and none of the abovementioned project personnel are available, Customer may telephone the SFG Helpline. The fees for Support services are summarized above. Allowance for Modifications*: 300 hours at $100 per hour * Listing of modifications to be determined, $ 30,000 11 MODI FICA TIONS: After carefully reviewing the relu, irements of Customer, SFG will prepare an estimate t'the cost necessary to provide the additional functionality required by Customer. The listing of rl>difications to be provided is to be determined. Project Management, Application Consulting, and Technical Consulting activities to complete deliverables as described in the Statement of Work, FEES $ 290,500 TOTALS $ 290,500 STATEMENT OF WORK: The Statement of Work shall be mutually agreed upon by both parties and shall include all the services that are available, including the fees for those services listed in the Statement of Work and in this Service Supplement. No changes or revisions to the Statement of Work or obligation for payment of additional fees will be made except in writing, SFG will perform all services in a manner and according to the standards observed by a competent practitioner of the profession in which SFG is engaged. All deliverables will be prepared in a workmanlike manner and will conform to the standards of quality normally observed by a person in SFG's profession. GRAND TOTAL $345,000 (servs) $30,000 (mods) FEES FOR SERVICES: The basis of the fees for services provided under this Supplement are defined in the Service Category and Rates table in the Statement of Work, unless specified elsewhere in this supplement or the Statement of Work, Fees are normally quoted for a normal work day. If less than a day of work is performed, billing will be prorated based on the number of hours. FORCE MAJEURE: Neither party will be responsible for any failure to perform hereunder due to unforeseen circumstances or due to causes beyond the non-performing party's reasonable control, including, without limiting the generality of the foregoing, acts of God, war, riot, embargoes, acts of government, catastrophe, fire, flood, accidents, strikes, shortages of transportation, fuel, energy, labor or material acts of a public enemy. FACILITIES AND EQUIPMENT: Customer will provide SFG the following documents, access, facilities, services and site information: a) Access to files and documents which are a product of the system to be replaced or generated by the Program(s). b) Information relative to Customer's hardware and software on which the Program must run or with which the Program must interact. c) Access to Customer's computer facilities, related ,software, work areas and equipment at times and on days approved by Customer. Customer agrees to enable SFG remote access to Customer's system for the purposes of problem diagnosis and file transfer, d) Personnel, facilities, equipment and time for training, installation and other services to be performed by SFG, e) Ongoing access to the system via high speed modem (28.8kbps or faster) to a PC running 32 bit version of PCAnywhere or via an Internet connection acceptable to SFG. f) A representative with authority to approve the plans and deliverables described in the Statement of Work. PAYMENT TERMS: All fees shall be paid within forty-five (45) days after receipt of invoice in accordance with the Florida Prompt Payment Laws. SFG shall pay all applicable SFG shipping charges. Customer shall pay applicable taxes, except for SFG's income and corporate franchise taxes. In addition to the fees for services separately listed above, Customer shall reimburse SFG for all reasonable travel and living expenses and reproduction costs of handouts incurred by SFG in rendering all services. All travel will be in accordance with SFG's published travel policy in force as of the date of this Agreement, which is incorporated by reference into this Agreement. Travel and living expenses billed to Customer shall not exceed $100,000 total. Customer shall reimburse SFG for all reasonable costs incurred (including reasonable attorneys' fees) in collecting past due amounts owed by Customer. Fees for Education Services are due upon performance. Fees for Installation Services are due upon installation. Fifty percent of the fees for Modifications shall be due upon authorization to proceed, thirty percent of the fee for modification will be due upon delivery of the modification and twenty percent will be due upon the acceptance of the modification. Customer shall pay 10% of the total fees for services described in the Services Supplement upon Customer's execution of this Supplement. Customer shall pay for the actual services requested and provided consistent with the agreed upon Statement of Work or as part of Support, but in no event to exceed $345,000. All payments shall be in U.S. Currency. Year 2000 Project: Customer shall be protected by SFG from bearing the cost of modifying the existing NCC utility billing system to incorporate Year 2000 changes. If the project completion date of October 15, 1999 is in jeopardy, Customer may notify SFG in writing to request these changes. SFG will at that time begin the process of modifying the NCC utility billing system to ensure that it is Year 2000 compliant, and will assist in the implementation into the Customer's production environment no later than six (6) months after the date requested or October 15, 1999, which ever is sooner. SFG will insure that the year 2000 changes are working in Customer's production environment according to all specifications. In the event that these Year 2000 changes are pursued, Customer shall supply data, test scripts and personnel required to ensure that programs and databases have been accurately modified. Should SFG not be willing or able to implement these Year 2000 changes to the NCC system, SFG will be obligated to pay whatever charges are incurred by the Customer to secure resources for a Year 2000 remediation effort. Personnel: SFG shall use best efforts to hire Mark Livingston to be trained as an Application Consultant to work primarily on Customers site. Mr. Livingston shall then work from October 12, 1998 until October 11, 1999 and SFG shall reimburse City for 50% of salary. On October 1,1999 he shall be released to work on a full-time basis for the City of Clearwater. SFG shall not subsequently solicit employment of said employee. 12 Approval and Dismissal of Project Personnel: I I Customer shall retain the right to review the qualifications of all SFG personnel assigned to provide services to Customer under terms of this Agreement, and to refuse to accept any SFG employees proposed to or assigned to Customer for reasonable cause. Customer expressly reserves the right to revoke any prior approval given by Customer to the assignment of any SFG employee upon written notice to SFG providing reasonable cause. Availability of Funds This Agreement is subject to and contingent upon sufficient funds being appropriated, budgeted or otherwise made available to Customer for purposes of meeting all or any portion of its obligations hereunder. In the event sufficient funds are not appropriated, budgeted or made available for Customer to meet its obligations under this Agreement, Customer may unilaterally terminate this Agreement by giving thirty (30) days written notice to SFG, provided, however, that such non-appropriations shall not relieve Customer's obligation to pay fees that have been incurred. In the event of termination due to non.appropriation, Customer shall return all Programs, Documentation and other materials provided to it by SFG in performance of this Agreement, and SFG shall not be required to refund to Customer any amounts paid to SFG prior to termination except as specifically provided in this Agreement. In all other respects, Customer's obligations under termination shall be as set forth elsewhere in this Agreement. Any obligation for payment under the Agreement shall be made solely from appropriated funds, SFG recognizes that this Agreement is with the current City Council, and is not the obligation of any other City official, employee, or any other political subdivision or entity. SFG's Travel Policy: General · Colleagues will be reimbursed for expenses incurred while traveling on business for the company. Reimbursement will be in accordance with the guidelines outlined in this document or, when the expense is to be reimbursed by a customer, with those poliCies of the customer which have been established as controlling the reimbursability of SFG expenses. · All expenses must be supported with credit card receipts, unless credit cards are not accepted. Taxi receipts should be completed by the taxi driver. · SFG will obtain corporate credit cards for colleagues who travel regularly and who prefer not to use their personal credit cards. Colleagues are responsible for all expenses charged on corporate cards issued to them. It is their responsibility to submit expense reports to Accounting and to pay any outstanding balances using the expense report check issued when their expense reports are processed. · SFG will commit to processing expense reports and reimbursing colleagues on a monthly basis. · Only expenses claimed within sixty days will be reimbursed. · Colleagues are expected to use a travel agency approved by SFG. · If a colleague agrees to stay over a weekend, resulting in a more favorable airfare for SFG, the colleague may be reimbursed for weekend accommodations/car rental/meals expenses up to the documented savings. The savings over the most favorable other fare must be documented by SFG's travel agency. Airfare · All air fares should be for coach/economy class on the least costly, safe carrier who offers a reasonable schedule, · When international travel is required, a colleague may request permission from the CEO or the President of North American Operations to book business class. In granting permission for business class, discounts that may be available, the level of discomfort and stress from current and recent travel, and the level of performance expected immediately upon arrival at the colleague's destination will be considered. Approval will rarely be given. · Colleagues are expected to plan their flights as far in advance as is practical, permitting the use of discounted fares. · Although frequent flyer program points can be accumulated for personal use, colleagues are required to place economy of travel ahead of maximizing travel points in making decisions. Accommodations · Colleagues should arrange the least costly hotel capable of providing safe and convenient housing. In most cases, a Holiday Inn or comparable hotel should be selected. · Colleagues may select a more costly, yet reasonable hotel, when justified by special conditions such as the ability to forego car rental, the provision of free meals, or participation in a conference headquartered at the hotel. · Expenses for actual meal costs will be reimbursed when supported by receipts to a maximum of $30 per day. Managers may approve higher levels of reimbursement in consideration of the prevailing meal costs in the destination city. Phone · The cost of long distance calls incurred for business will be reimbursed by SFG. · In respect for the disruption of domestic life occasioned by travel, colleagues will be reimbursed for one phone call to their home city each day they must travel on company business. 13 I I Ground Transportation . Colleagues should choose the least costly ground transportation that will allow them to successfully perform their duties (car rental, shuttle, taxi or public transit), . Colleagues should rent a compact car from the officially designated car rental agency. An appropriate, larger vehicle can be rented when the number of persons to be transported requires it. . Gasoline costs associated with the use of rental cars will be reimbursed. Colleagues are urged to refuel rented cars prior to returning them to the rental company. . When renting, decline the collision damage insurance. . Colleagues should refrain from drinking alcoholic beverages when operating a vehicle in connection with their duties. . Parking costs and tolls incurred while traveling on business are reimbursable. . Travel to and from a colleague's regular place of work cannot be claimed. . Colleagues can claim $0.275 per kilometer ($0.44 per mile) for the use of their personal vehicle for business travel. No claim can be made if the colleague is receiving an auto allowance or if the colleague's vehicle is leased or owned by SFG. Long Term Travel . When a colleague is required to be away from home for extended periods, the colleague and his/her manager should arrange for a less costly method of housing and travel including the possibility of apartment style accommodations and reversing the destinations so that airline tickets would include weekend stays. . Other expenses that arise as a result of an extended absence but are not covered by these policies should be reviewed with the colleague's manager to determine if these should be reimbursed by SFG. .... By: Countersigned: CITY OF CLEARWATER, FLORIDA By ~obe~ :~:. City MS~ei - '- -- ''- Approved as to form: Attest: 1 ~~ - John Carassas Assistant City Attorney ~ Cynthia E. Goudeau V City Clerk 14