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SOFTWARE LICENSE AGREEMENT . ' I I CONFIDENTIAL Identitech, Inc. Software License Agreement Licensor: Identitech, Inc. (hereinafter "Licensor") Licensee: City of Clearwater Address: 100 S. Myrtle Ave Clearwater, FL 33756 Phone: 727-562-4097 Fax: Email: Sstephen@clearwater-fl.com (P/19/~ / / Effective Date: This Agreement, together with any Product Schedules, appendices, exhibits, or other attachments hereto, are hereby individually incorporated into and collectively made part of the Agreement. The terms of the Agreement shall be binding on any successor to Licensor or Licensee. LICENSE: Licensor agrees to grant hereby and Licensee agrees to accept a fully paid, non- exclusive and perpetual license to use the software program(s) ("the "Products"), enumerated in the associated Annual Software Support Agreement (the "Support Agreement"), on the Central Processing Unites) ("CPU(s)") and the operating system(s) at the geographic location(s) and for the quantity of users described in the product purchase documentation on the terms and conditions hereunder. All products licensed under this Agreement are proprietary to Licensor and may not be sublicensed by Licensee for lease or resale. Identitech software may also include some third party software products for which Identitech is an authorized reseller. All terms and conditions of this Software License Agreement also pertain to any such third party software products. 1. TERM: The license term shall begin on the date a Product is delivered to the Licensee's installation location(s) and continue in perpetuity. The license granted herein with regard to the Product shall remain in force until either party, with written notice, terminates the license hereunder in accordance with the terms hereof. 2. PAYMENT: Upon execution of this Agreement, Licensor shall invoice Licensee for the initial Products ordered. Licensee shall pay said invoice as follows: 30% upon execution of this Agreement; 30% upon Product installation; 40% upon Product acceptance. Rev 03/07/00 ""Void if not executed within 30 calendar days from: 06107100**" /)2 ~ /-/ . / s:.-.""--". 1) C/ f.:7 U (./J (3) " I t For any subsequent Product orders, Licensee shall pay Identitech within forty-five (45) days of the date of invoice. Identitech can accrue interest in the amount of 1 percent monthly on all overdue accounts up to the limits set forth in Florida Statutes Chapter 218; however, no interest will be charged on any disputed amounts. Licensee shall pay all applicable freight and insurance charges. Licensee shall have the right to download the Products from Licensor's FTP server. All payments will be made in U.S. dollars. Non-payment or late payment can result in termination of the Agreement. Payment for all Identitech billable services and training shall be due upon receipt of invoice. 3. ACCEPTANCE: Licensee shall have the right to examine the Product in confidence for a period not to exceed forty-five (45) days from installation. If Licensee does not terminate the Product license and the Support Agreement within forty-five (45) days from installation of the Product, Licensee shall be deemed to have accepted the Product. In the event Licensee experiences a Critical Error within forty-five (45) days from installation, the acceptance period shall be extended to end forty-five (45) days after the Critical Error has been corrected. For purposes of the foregoing, "Critical Error" shall mean any error which causes the Product(s) to become totally inoperable or non- functional, causes ongoing corruption, or substantially impairs the user's ability to use one or more critical functions of the Product(s). 4. TERMINATION AND REMEDY: (c) Rev 03/07/00 (a) Early Termination. Each party has the right to terminate a Product license and pursue injunctive relief if the other party breaches or is in default of any material obligation hereunder where such a breach or default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of notice of breach or default. (b) Insolvency. Either party may terminate this Agreement by written notice in the event the other makes any assignment for the benefit of creditors, admits its insolvency, is adjudicated bankrupt or insolvent by any court of competent jurisdiction, any trustee or receiver is appointed for the other or for any of the other's property, or the other files any involuntary petition under any bankruptcy or similar law providing for the other's reorganization, dissolution, liquidation or winding up. Remedy. In the event Licensee terminates this Agreement or a Product license for the reason of (a)or (b) above, Licensor shall return to Licensee any prepaid advance payments it received for the terminated Product license and provided to Licensee hereunder prorated from the effect date of termination calculated as if the term was five (5) years. Licensee shall destroy or return all terminated Product(s). 2 ."Void ifnot executed within 30 calendar days/rom: 06/07/00... I I 5. WARRANTIES: (a) Product Warranty, Licensor warrants that all Products licensed hereunder will reasonably perform the functions described in the representations, documentation and specifications provided by Licensor for a period of ninety (90) days from expiration of the acceptance period of the Product, except to the extent the Product was modified by Licensee and where such modification was the cause of nonperformance. In the event a Product does not operate, Licensee shall promptly notify Licensor and make available relevant information, such as dumps and listings, to the Licensor, Licensor will repair or replace the defective Product during the warranted period without further charge to Licensee, In the event Licensee's hardware or software was responsible for the Product not being operational, Licensee agrees to compensate Licensor at its billing rates, not to exceed a normal and customary amount, for all time incurred by Licensor in locating and correcting the problem. Any work performed by Licensor at a place designated by Licensee other than the place of business of Licensor requires prior written approval from Licensee and shall entitle Licensor to compensation of any out-of-pocket expenses incurred. 'Out-of-pocket expenses means the reasonable and customary charges for the actual travel and living expenses incurred, as supported by copies of receipts. Licensor also warrants that to the best of its knowledge, the Product does not include or contain any virus, clock, timer, counter, or other disabling hardware device, code, design or routine which causes the Product to be erased, become inoperable or will otherwise restrict Licensee's use ofthe Product. (b) Media Warranty. Licensor warrants the physical tapes, diskettes or other media ("Media") it uses for distribution of Products, and the physical documentation to be free of defects in materials and workmanship under normal use for a period of ninety (90) days from the date of Licensee's installation of the Product. Any Media or documentation found defective will be promptly replaced by Licensor. (c) Non-Infringement Warranty. Licensor warrants and represents that it owns the Product or has the right to grant a license and that the Product hereby licensed does not infringe upon or violate any copyright, trade secret or any other proprietary right of any third party. (d) Limitations on Warranties. EXCEPT AS PROVIDED IN THIS SECTION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. IN PARTICULAR, WITH RESPECT TO ANY PARTICULAR APPLICATION, USE, OR PURPOSE, LICENSOR DOES NOT WARRANT THAT THE PRODUCTS WILL MEET THE LICENSEE'S REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE IN THE COMBINATIONS WHICH LICENSEE MAY SELECT TO USE, OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. 6. EXCLUSIVE REMEDY FOR BREACH OF WARRANTY AND LIMITATION OF LIABILITY: (a) Exclusive Remedies, Except as expressly provided otherwise herein, for any breach of the warranties specified herein, Licensee's exclusive remedy, and Rev 03/07/00 3 ".Void ifnot executed within 30 calendar days from: 06/07/00". I I Licensor's entire liability shall be the correction of Product errors and/or replacement of Product Media and/or physical documentation. However, if Licensor is unable to make the Product operate as warranted, Licensee shall be entitled to terminate the Product license and recover all license fees paid to Licensor for the terminated Product. Licensee shall destroy or return all terminated Product(s) and no further license and service fees shall be due or payable for the terminated Product. (b) Limitation of Liability, In no event shall either party be liable for any actual, indirect, incidental, special or consequential damages resulting from a claim, demand or cause of action, including loss profits, revenue, data or use, incurred by either party or any third party, except where caused by fraud, negligence, or the willful misconduct of an employee, subcontractor, or representative of the party which caused the damages. Where personal injury, death or loss of or damage to property is the result of the joint negligence or willful misconduct of Licensee and Licensor, each party's liability shall be in proportion to its allocable share of such joint negligence or willful misconduct. Licensor's liability for damages hereunder shall in no event exceed the amount of the license fees paid by Licensee under this Agreement except for the Licensor's liability for damages resulting from an action in tort or the infringement of the copyright of a third party . 7. INDEMNITY: Licensor hereby agrees to defend, indemnify and hold harmless Licensee and any employee or agent thereof from any loss, liability, claim, suit, action, cost, judgment, final judgment, expense, or damages (including reasonable attorney fees) resulting from a claim that the Product, information, documentation, diagnostics and any other material furnished by Licensor to Licensee for use under the Agreement infringe, or are allowed to infringe the trade secrets, proprietary information, trademark, copyright, patent right, or confidential proprietary information of any third party. The foregoing indemnity obligations shall be contingent upon the following: (a) Licensee shall give prompt written notice to Licensor of any claim, demand or action for which indemnity is sought; (b) Both parties shall fully cooperate in the defense or settlement of any such claim, demand or action. Licensee has the right to representation by its own counsel at its own expense. If the terms of the Agreement are enforced by litigation the prevailing party is entitled to collect its reasonable attorney's fees and other costs incurred from the non-prevailing party; and (c) The parties to the Agreement shall obtain the prior written agreement of the other party concerning any settlement or proposal of settlement, such agreement shall not be unreasonably withheld. 8. CONFIDENTIAL INFORMATION: Each party agrees that, upon receipt of confidential information or proprietary data from the other party hereunder, such party shall use the same means it uses to protect its own confidential and proprietary information, but in any event not less than reasonable means, to prevent disclosure Rev 03/07/00 4 ."Void if not executed within 30 calendar days from: 06107/00... . . I I and to protect confidentiality. Restrictions on disclosure or use of confidential information or proprietary data shall apply to any information other than that which: (l) is or becomes a part of the public knowledge or literature through no act or omission of Licensee, (2) was in Licensee's lawful possession prior to the disclosure under this Agreement, (3) is lawfully disclosed hereafter to Licensee by a third party who, to Licensee's best information, did not acquire the information directly or indirectly from Licensor under an obligation of confidentiality, or (4) was independently developed by Licensee without the use of information disclosed under this Agreement. During the term ofthe Agreement, Licensee may employ or contract with software development vendors other than Licensor ("Contractors") to develop applications solely for Licensee. All such applications shall be the property of Licensee. A Contractor shall have the right to use the Products licensed in the performance of Contractor's development of applications for the benefit of Licensee, provided Contractor has executed an agreement binding him to abide by the terms of the Agreement during Contractor's performance of services for Licensee and Contractor shall agree that Contractor shall prevent the disclosure and protect the confidentiality of the Product and all written information received from Licensee, and Contractor shall return the Product and all written information to Licensee upon completion of application development. Nothing herein shall be construed as preventing disclosure pursuant to the public records disclosure laws in Florida Statute 119. 9. MAINTENANCE SERVICES: A Support Agreement for Products is a requirement ofthis license agreement. The Support Agreement provides access to Licensee to all the latest revisions, error corrections, support and enhancements available from Licensor. 10. USE: Licensor agrees that a Product (as well as any services which are provided in connection with this Agreement) may be used not only by Licensee for itself but also by or for its Subsidiaries, and may be used by Licensee's agent or Contractor for the exclusive benefit of Licensee and its Subsidiaries, without restriction. A Licensee's subsidiary ("Subsidiary") means any organization in which the Licensee has 51 % or more ownership. Licensee may continue to have unrestricted use of any Product, in accordance with the terms and conditions of the Agreement, during any dispute between Licensee and Licensor provided all fees due Licensor are paid and Licensee is proceeding in good faith to resolve any dispute. Licensee may copy and use any Product at a disaster recovery site in the event Licensee suffers a disaster during which Licensee cannot operate the Product on its CPU and/or location identified on the applicable Product Schedule or for testing preparedness at a disaster recovery site, for as long as a disaster is continuing or a test is in progress. Licensee may copy the Product and related documentation solely for Licensee's use as an archival copy or for back-up purposes to restore the Product in the event of a Product failure or Licensee's system failure. Rev 03/07/00 5 *"Void if not ~cuted within 30 calendar days from: 06107/00*** . , I I 11. SOURCE CODE: If requested by Licensee, Licensor shall place a current copy of the source code of the most current release and version of the Product licensed under the Agreement in the possession of Licensor's escrow agent ("Agent") under its current multi-user plan, in machine readable form with all media, documentation and related materials, Licensor shall promptly provide Agent with a new, replacement, or modified copy ofthe source code each time the Licensor provides a new release or Licensee acquires a new version, or update to the Product. Agent may compile and run the source code at any time as a test to ensure such source code is operational. Licensor shall pay all fees charged by Agent in connection with the placement and maintenance of the source code in the escrow account. Licensee shall pay all other fees. Licensor shall fix, repair, or replace any source code found to be non-operational. Agent shall hold all source code as confidential and proprietary information. Licensor shall identify all compilers, assemblers, or other computer programs necessary to create an executable version of the Products, together with all related documentation and other necessary materials. To become effective only upon Licensor's declaration of bankruptcy, where bankruptcy proceedings are not terminated within thirty (30) days, or Licensor's discontinuance of Maintenance Service, or any breach or default by Licensor under this Agreement not remedied within thirty (30) days after receipt of written notice, Licensor hereby grants Agent the right to release the source code and other material necessary to maintain and improve the Products to Licensee. In the event the bankruptcy proceedings are reorganization proceedings, Licensee shall have use of source code only for the purpose of providing maintenance and improvements while a closing of Licensor's business due to bankruptcy shall entitle Licensee to an unlimited, world- wide, paid up license thereto to use such source code in the operation of its business for as long as it deems necessary IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and do each hereby warrant and represent that their respective signatory whose signature appears below has been and is duly authorized by all necessary and appropriate corporate action to execute this A reement. C YOFCLEARWATER ~ Sign ure SIgnature Michael J. Roberto Nicholas L. Lewis Printed Name of Signature Party City Manager Title SVP Operations Title to /7 Jot) Date Date ~ Bri ungst M y -Commi~ Identilech Internal Review~ Rev 03/07/00 6 ".Void if not executed within 30 calendar days from: 06107/00... I 'I Approved as to form: Attest: ~2 o n Carassas Assistant City Attorney Rev 03/07/00 7 ".Void ifnot executed within 30 calendar days/rom: 06107/00."