TIDEMARK ADVANTAGE LICENSE AGREEMENT
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SOLUTIONS
TIDEMARK SOLUTIONS
TIDEMARK ADV ANTAGETM LICENSE AGREEMENT
1. Parties
TIDEMARK
Tidemark Solutions
506 Second Avenue, Suite 600
- . Seattle, Washington 98104
Attention: Contracts Manager
T: 206.287.1713
F: 206.287.1913
CUSTOMER
City of Clearwater, Florida
100 South Myrtle Avenue
Clearwater, 1<lonoa-33758-4748
Attention: Dan Mayer
T: 727.562.4662
F: 727.562.4696
This Agreement is intended for the exclusive benefit of the Parties; nothing herein shall
be construed to create any benefits, rights, or responsibilities in any third parties.
2. License Grant
2.1 Term and Termination This Agreement is effective as of the date of the last of the
signatures written below and continues until terminated. Either party may
terminate if the other party materially breaches this Agreement and, after
receiving a written notice describing the circumstances of the default, fails to
correct the breach within sixty (60) days. In the event of a material breach by
Tidemark which prompts cancellation of all or portions of the Services
Agreement between the Parties, Customer shall have an ongoing right to use, to
the extent such usability is established at the time of said cancellation, the object
code of the Tidemark software products described herein. Tidemark may
terminate this Agreement immediately should Customer materially breach either
the Intellectual Property or Nondisclosure provisions hereof. Upon termination,
all rights granted to Customer are cancelled and revert to Tidemark.
2.2 Intellectual Property License The Tidemark products ("Products") listed in
Exhibit A ("Deliverables and Fees") are protected under the laws of the United
States and the individual states and by international treaty provisions. Tidemark
retains full ownership in the Products and grants to Customer a nonexclusive
license to use the Products, subject to the following terms and conditions:
2.2.1 Customer may make backup copies of the Products; such copies are
owned by Tidemark. Customer may copy Tidemark's documentation for
internal use by Customer's employees.
2.2.2 Customer may not de-compile, disassemble, cross-compile, reverse-
engineer, otherwise translate, or make any other form of derivative work
from the Products.
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2.2.3 Customer may not obscure, alter, or remove any Tidemark confidentiality
or proprietary rights notices.
2.2.4 Customer is liable to Tidemark for any losses incurred as the result of
unauthorized reproduction or distribution of the Products which occur
while the Products are in Customer's possession or control.
2.2.5 Customer may use the Products only to process transactions relating to
properties within both its own geographical and political boundaries.
2.2.6 Customer may not sell, rent, assign, sublicense, lend, or share any of its
rights under this Agreement.
2.2.7 The software may be installed on one or more computers but may not be
used simultaneously by more than the number of users for which the
Customer has Concurrent User License~L5o:ftware_is deemed to be in use
when it is loaded into memory in a computer, regardless of whether a user
is actively working with the software.
2.2.8 All rights not expressly granted to Customer are retained by Tidemark.
3. Warranties and Maintenance Tidemark warrants that it has full power and authority to
grant this license and that, as of the effective date of this Agreement, the Products do not
infringe on any existing intellectual property rights of any third party. If a third party
claims that the Products do infringe, Tidemark may, at its sole option, secure for
Customer the right to continue using the Products or modify the Products so that they do
not infringe. Tidemark has no obligation for any claim based upon a modified version of
the Products or the combination or operation of the Products with any product, data, or
apparatus not provided by Tidemark; Tidemark provides no warranty whatsoever for any
third-party hardware or software. Except as provided above, Tidemark disclaims all
other representations, promises, and express or implied warranties with respect to the
character, function, capabilities, or appropriateness of the Products. In lieu of general
warranties, Tidemark offers a maintenance program specifically-tailored to the features
and capabilities of the Products; the terms and conditions of this program are described in
Exhibit B ("Basic Software Maintenance Service").
4. Other Terms and Conditions
4.1 Insurance Coverage and Limits on Liabilitv Tidemark will maintain insurance
coverage at its sole cost and expense and will provide certificates of insurance to
Customer if so requested. The insurance will not be cancelled or terminated
without thirty (30) days' advance written notice to Customer. To the extent not
offset by its insurance coverage and to the maximum extent permitted by
applicable laws, in no event will Tidemark's cumulative liability for any damages
whatsoever suffered by Customer due to the Products exceed the fees paid to
Tidemark by Customer, even if Tidemark has been advised of the possibility of
such damages.
4.2 Dispute Resolution This Agreement is governed by the laws of the State of
Florida. Any controversy or claim arising out of or relating to this contract, or the
breach thereof, shall be settled by arbitration administered by the American
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4.4 Force Maieure If either party is delayed in its performance of any obligation
under this Agreement due to causes or effects beyond its control, that party will
give timely notice to the other party and will act in good faith to resume
performance as soon as practicable; both parties will use their best efforts to
minimize losses incurred as described in this Subsection. Such a delay will be
deemed excused and the time for performance will be extended for a reasonable
time.
4.5 Assignment Tidemark may assign its rights and obligations hereunder for
purposes of financing or for corporate transactions involving the sale of all or
substantially all of Tidemark's stock or assets. Tidemark may assign to or
_____BIJhcontract with Tidemark-trained and qualifiedthird-partie~ to pro~ride portions
of the Services described herein.
4.6 Severability and Amendment If any particular provision of this Agreement is
determined to be invalid or unenforceable, that determination shall not affect the
other provisions of this Agreement, which shall be construed in all respects as if
the invalid or unenforceable provision were omitted. No extension, modification,
or amendment of this Agreement shall be effective unless it is described in a
written instrument signed by the Parties.
4.7 Integration This Agreement and the attached Exhibits A and B represent the
entire understanding between the Parties with respect to the subject matter
described herein, and supersedes all prior agreements, representations, or
promises, whether written or oral.
TIDEU~OLUTI~
By: A.
(Signature)
CUSTOMER:
/
See attached Signature Page
By:
(Signature)
to (...( N t<t. <AA.-t '1 et.. r
(Print Name)
(Print Name)
Dated: ~ l'1 I? "Lao I
(Day Month, Year) I
Dated:
(Day Month, Year)
Exhibits Follow.
END OF DOCUMENT
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Signature page for Tidemark Solutions Service Agreement
11...~~
Brian J. Auncf6t
Mayor-Commissioner
CITY OF C~ATER, FLORIDA
By: (!;):71
J~ Willi . orne, II
1) - Manager
Countersigned:
Approved as to form:
Attest:
~/H~l~ '
Assistant City Attorney
~ Z.
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EXHIBIT A
DELIVERABLES AND FEES
1. Deliverables and Fees
Tidemark Advantage™ 30 $0.00 $0.00
Work Flow Engine (WFE)
2.6.1 Foundation Series
Concurrent User Licenses
Tidemark Designer 2.6.1 1 $5,000.00 5,000.00
F oundation-SeriesSeat- . --~-,--~-----
License
Tidemark Advantage GIS 10 $650.00 6,500.00
Synergy Series Concurrent
User Licenses
Tidemark Advantage Field 10 $650.00 6,500.00
Inspector API Synergy
Series Concurrent User
Licenses
Tidemark Advantage IVR 20 $637.00 12,740.00
API Synergy Series
Concurrent User Licenses
First-Year Annual 1 $10,584.00 10,584.00
Maintenance for Tidemark
Advantage WFE 2.6.1 (30
Users
First-Year Annual 1 $900.00 900.00
Maintenance for Tidemark
Advantage Designer 2.6.1 (1
Seat
First-Year Annual 1 $1,170.00 1,170.00
Maintenance for Tidemark
Advanta eGIS 10 Users
First-Year Annual 1 $1,170.00 1,170.00
Maintenance for Tidemark
Advantage Field Inspector
API 10 Users
First-Year Annual 1 $2,293.00 2,293.00
Maintenance for Tidemark
Advantage IVR API (20
Users)
II
II
II
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2. Payment Terms
. Amounts are quoted in United States dollars and, unless otherwise indicated, do not
include applicable taxes. Said amounts reflect Tidemark's current pricing and are
valid until August 15,2001, and only for the quantities indicated.
. Customer will be responsible for payment of all federal, state (or provincial), and
local taxes and duties (except those based on Tidemark's income). If Customer is
exempt from certain taxes, Customer shall provide Tidemark with a certificate of
exemption issued by the applicable taxing authority.
. License and maintenance fees are payable fifty percent (50%) due upon execution of
this Agreement, twenty-five percent (25%) due upon commencement of installation,
and twenty-five percent (25%) dueat--the-Gompletion-of the services associated with
the respective license deliverables; all license and maintenance fees are payable net
thirty (30) days. With respect to amounts designated as payable net 30 days, any
payment not paid to Tidemark within 60 days of the billing date shall incur a late
payment fee equal to five percent (5%) of the amount past due and shall accrue
interest in an amount equal to one-and-a-halfpercent (1.5%) per month, compounded
monthly, on the outstanding balance from the billing date; Customer agrees that
Tidemark is not obligated to proceed until all such fees have been fully paid.
. Customer agrees that, with respect to any outstanding unpaid fees, these payment
terms will survive any termination of this Agreement.
END OF DOCUMENT
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EXHIBIT B
BASIC SOFTWARE MAINTENANCE SERVICE
1. Term
1.1 Initial Term The Basic Software Maintenance Service ("SMS") commences on
the effective date of the Agreement and continues for a term of one (1) year.
1.2 Renewal Terms Basic SMS will be automatically renewed on an annual basis
until either party delivers written notice of its intent not to renew to the other
party; said notice must be delivered not fewer than sixty (60) calendar days prior
to the conclusioaof the cnrrent term to be effective. The Basic SMS-Iee_for any
renewal term will be calculated as eighteen percent (18%) of the combined license
costs of all Tidemark Products owned by Customer; such costs will be designated
based upon pricing then-in-effect at the time of the renewal but will not increase
more than five percent (5%) from the prior year's SMS fee for the first five (5)
renewal terms. Tidemark will send an invoice to Customer for the next annual
term not less than ninety (90) days prior to the expiration of the then-current term.
2. Scope of Basic SMS
2.1 Designated Contacts Customer may appoint no more than three (3) Designated
Contacts amongst its employees. These Designated Contacts are entitled to
submit an unlimited number of service requests during the term of this Basic
SMS. Support is available to Customer only through its Designated Contacts.
2.2 Technical Support Technical Support encompasses both advisory and remedial
support to ensure that the operation of Customer's Tidemark software does not
materially differ from its documented specifications, and is available as follows:
2.2.1 Telephone Support Designated Contacts will receive a toll-free telephone
number and a support access number to contact technical support, which is
available Monday through Friday from 6:00 a.m. until 4:00 p.m. Pacific
Time, excluding Tidemark's observed holidays.
2.2.2 Electronic Support Designated Contacts may submit routine or non-
critical support requests via electronic mail. E-mailed requests are
addressed only during regular support hours and should not be used to
request assistance with critical problems. Software patches and other
technical product information may be found in Tidemark's electronic
technical databases, which are continuously available.
There is no charge for these support items beyond the annual fees referenced in
Subsection 1.2 above. All responses will be made in accordance with the terms of
Subsection 2.4.1 below.
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2.3 Revisions and Enhancements During the term of this Basic SMS, Customer is
entitled to receive revisions of and enhancements to the Products. Tidemark
employs an industry-standard software version numbering system wherein the
name of the software (e.g., "Tidemark Advantage™ a.bb.ccc") indicates:
· The first number ("a" above) indicates the Version of the software, which
is changed when a significant set of new features is added to the
application or when the database schema is changed from the previous
Version.
· The second number ("bb" above) indicates the Release of the software,
which is changed when a limited number of new features are added to the
- application or collections of "bug" fixes are-made.
· The third number ("ccc" above) indicates the Maintenance of the
software, which is changed whenever routine "bug" fixes are made.
Customer is entitled to receive new Version, Release, enhancements, and
Maintenance updates of the software at no cost. However, depending on the
nature of the update, implementation may require significant work (e.g., data
migration, personnel training, etc.); to the extent Customer elects to have
Tidemark perform implementation-related tasks, such additional services are
available at Tidemark's then-prevailing rates. Tidemark may release new and
additional applications or modules at the same time as it releases a new Version of
any of the Products. These applications or modules will not necessarily be made
available pursuant to this Basic SMS, but may instead be sold separately by
Tidemark; this determination will be made by Tidemark in its sole discretion.
As the term is used above, an application "bug" is deemed to be a feature or other
function of the software which does not operate as documented in the Tidemark
documentation or "Help" files or which does not conform to the business
practices defined by Tidemark and its advisory board of customers.
2.4 Incident Response and Resolution
2.4.1 Response "Response" means that an incident report will be assigned by
Tidemark for resolution. Response times are designated based upon the
severity of the incident, determined as follows:
Critical The failure causes a system crash or unrecoverable data loss.
Tidemark's response time is two (2) hours or less.
High The failure causes impairment of critical system functions
and no workaround solution exists. Tidemark's response
time is two (2) hours or less.
Medium The failure causes impairment of critical system functions
but a workaround solution exists. Tidemark's response time
is twelve (12) hours or less.
Low All other anomalies or action items. Tidemark's response
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I time is twenty-four (24) hours or less.
2.4.2 Resolution A support request is defined as resolved when Customer:
a) Receives information which resolves the request;
b) Learns how to obtain one or more software patches which will
resolve the request;
c) Is informed that the issue is caused by a product, condition, or
circumstance not supported under Basic SMS;
d) Is informed that the issue has been resolved in a subsequently-
released product; or
e) Is informed, afternotmcation-that the request has been referred to
an engineering group, of Tidemark's engineering response.
2.4.3 Unresolved Issues Because of the complexity of computer technology,
Tidemark cannot guarantee that the Products will be error-free or free of
material defects in all circumstances. Tidemark will employ its best
efforts to resolve errors or defects covered by Basic SMS once Customer
has provided Tidemark with sufficient information to reproduce the issue.
When an issue cannot be resolved as provided herein, Customer's
exclusive remedy is a refund of the license fees paid for the defective or
non-conforming software product(s).
3. Limitations and Exclusions
3.1 Eligibility Generally Customer must maintain its licensed status to remain
eligible for Basic SMS, and all Tidemark-supported Products licensed to
Customer must be covered by Basic SMS. The hardware and software operating
environments for the Products must meet the "Certified Environment" standards
specified in the "Hardware and Software Requirements" Exhibit to the Services
Agreement. Failure to maintain these environments may limit Basic SMS to no
more than a "Best Endeavor" level, as defined below.
3.2 Exclusions The following are not included in Basic SMS but may be separately
available at rates and on terms which may vary from those in this Agreement:
· Services required due to misuse of the Products;
· Services required due to attempts by unauthorized personnel to repair,
maintain, or modify the Products;
· Services required due to software corrections, customizations, or
modifications not developed or authorized by Tidemark;
· Services required due to external causes including, but not limited to,
Customer's use of software and hardware not authorized by Tidemark;
· Consulting services including, but not limited to, performance tuning,
development of code modifications for specific operating environments,
and network integration; and
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· Maintenance or support of Customer's computer hardware.
3.3 Legacy Versions As described in this Basic SMS, Tidemark offers support for the
Current Release of each of its software applications, as defmed in the published
"Tidemark Product Glossary", and for the Release immediately preceding the
Current Release; all other Releases are deemed "Legacy Versions". At
Tidemark's discretion, support for Legacy Versions of Tidemark software may be
provided on a "Best Endeavor" basis, which consists of responding to support
requests using currently-available database information. Support requiring
additional research, engineering-level support, or coding or programming by
Tidemark may be separately available at rates and on terms which may vary from
those in this Agreement
3.4 Continuity of Support Should Customer fail to renew its Basic SMS coverage,
Tidemark reserves the right to withhold support. If Customer resumes SMS
coverage after a period without such coverage ("Lapse Period"), Tidemark may
delay providing software updates (as described in Subsection 2.3 above) until
Customer has paid all SMS fees attributable to the Lapse Period, calculated based
upon license pricing then-in-effect at the time of the SMS resumption.
4. Other Terms and Conditions
4.1 Customer Responsibilities Customer will:
· notify Tidemark of any changes in Customer's hardware or software
operating environments which could affect the Products;
· provide Tidemark with the Tidemark-assigned request log number for
follow-up on previously-submitted support requests;
· maintain a current backup copy of the Products and of Customer's data;
· provide dial-in facilities, including a modem with a transmission speed of
not less than 56kbs and "PC Anywhere" software, to permit remote
communications between Customer and Tidemark; and
· allow Tidemark's personnel reasonable access to the Products. If security
restrictions affect such access, Customer may be required to assume
additional responsibilities for maintaining the Products.
4.2 Assignment Customer agrees that Tidemark may assign or subcontract any Basic
SMS functions or services to a Tidemark-trained and qualified third-party vendor.
END OF DOCUMENT
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EXHIBIT C
NONDISCLOSURE AGREEMENT
1. Confidential Information "Confidential Information" means all Tidemark-provided
information relating to the creation or adoption of trademarks or trade names, patent
applications, trade secrets, business plans, marketing plans, product development plans,
research and development efforts, product specifications and entity-relation diagrams,
code, pseudo-code, and computer-manipulable objects, whether or not such information
is humanly-readable. This list is not exclusive, and any information which is marked or
otherwise designated "Confidential" or "Proprietary" shall be deemed and treated as
Confidential Information.
2. Nondisclosure
2.1 Nondisclosure Generally Customer may use or disclose the Confidential
Information for evaluation only. No express or implied intellectual property right
or license is granted. For a period of two (2) years from the last date of disclosure
of Confidential Information to Customer by Tidemark, Customer will not disclose
or copy the Confidential Information except as permitted herein. Customer will
protect the confidentiality of the Confidential Information using the same degree
of care that it uses to protect its own information of similar importance, but will in
any case use no less than a reasonable degree of care to protect the Confidential
Information. Customer may disclose Confidential Information to its employees or
to agents under its control and direction in the normal course of its business and
only on a need-to-know basis.
2.2 Exclusions Customer is not restricted with respect to information which is in its
possession prior to disclosure by Tidemark, available to Customer from third
parties without violation of this Agreement or Tidemark's intellectual property
rights, in the public domain, subpoenaed by governmental or judicial authority, or
subject to disclosure pursuant to a state's public records laws. Customer will
cooperate with Tidemark, in a timely fashion and in a manner not inconsistent
with applicable laws, to protect Tidemark's Confidential Information to the fullest
extent possible.
3. Enforcement Customer agrees that the Confidential Information derives independent
economic value from not being generally known to or ascertainable by proper means by
third parties who might benefit from its disclosure. Customer further agrees that these
nondisclosure provisions may be enforced by temporary or permanent injunction without
necessity of a bond and/or by specific performance of the obligations herein. Such relief
shall be in addition to, and not in lieu of, any other remedies Tidemark may have.
4. Survival Customer agrees that these nondisclosure obligations will survive any
termination of this Agreement.
END OF DOCUMENT
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