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SOFTWARE LICENSE AGREEMENT I I SOFTWARE LICENSE AGREEMENT BETWEEN Network Computing Corporation And City of Clearwater Th i s Agr-eement entered into th i s ;2'17Yf day of ~ ,1990, by and between City of Clearwater (hereinafter called ~lientll) and Network Computing Corporation, a North Carolina corporation, with principal offices at 5301 77 Center Drive, Charlotte, North Carolina 28217, (hereinafter called IINCCII) for and in cons i derat i on of the payments, covenants, and mutual undertak i ngs, hereinafter set forth the parties do hereby agree and contract with each other, as follows: ARTICLE 1: PURPOSE: Client hereby agrees to utilize and protect the proprietary computer software provided to the Client as specified in this Agreement. NCC hereby agrees to provide the computer software hereinafter specified including all appropriate documentation. ARTICLE 2: EXHIBITS: Attached hereto and made a part hereof for all purposes are the following Exhibits: Exhibit A: Licensed Software Listing Schedule Exhibit B: Designated Equipment Schedule Exhibit C: Schedule of Charges In the event of any conflict between the provisions of this Agreement and the provisions of any Exhibit, the provisions of this Agreement shall govern. ARTICLE 3: DEFINITIONS: The following terms are defined for the purpose of this Agreement as follows: (A) ilL icensed Software II - shall mean the design, technology, conventions, source code, object code, flow charts, file layouts, printed forms design, sample runs, operational description, user manuals, sales literature, and other documentation for the software set forth in Exhibit A, and any subsequent version of the above created by Client or NCC. "Licensed Software II shall not include operating system software, as listed in Exhibit A, which is the proprietary product of Digital Equipment Corporation, and a sub-license may be issued by NCC to the Client. (B) 1I0esignated Equipmentll - shall mean the equipment enumerated in Exhibit B. (C) "Use" _ shall mean copying or otherwise utilizing any portion of any Licensed Software from storage unit(s) or media or otherwise into equipment for processing, or using any Licensed Software in the course of operation of any Designated Equipment or using documentation in the support of any use of any Licensed Software. (0) 1I0ocumentation" - shall mean any applicable users manuals, systems manuals, operating manuals and summary literature. All such documentation as provided by 1 DC. "-')... I C-:-:.:7 - t',) : :0 . f(;,C ,..' '-) EX' , ~ -r.... ~lZJ Y't1, IITL I I NCC is subject to copyright and shall be treated by Client as confidential proprietary material. (E) "DECII - shall mean Digital Equipment Corporation. (F) IIUpgradesll - shall mean improvements to the Licensed Software which relates to operating performance but does not change the basic function of the Licensed Software. ARTICLE 4: LICENSE: The license granted under this Agreement authorizes Client to use any Licensed Software described in Exhibit A and any Upgrade thereof created by NCC, in any machine readable form, only on the particular Designated Equipment set forth in Exhibit B. A separate license is required for use of each Licensed Software element on equipment other than the Oesignated Equipment. Client shall have the license to use the Licensed Software solely for its own internal operations. ARTICLE 5: INSPECTION AND WARRANTY: (A) In the event NCC provides installation services with respect to the Licensed Software, acceptance of the Licensed Software will occur following. NCC's successful completion of any such installation services. Nothing contained herein shall obligate NCC to perform installation services. Successful completion shall mean that all software is performing in accordance with contract specifications. Installation services are available pursuant to a separate agreement with NCC. In the event installation services are not provided in conjunction with the Licensed Software, Client shall be deemed to have accepted the Licensed Software upon their initial inspection or after a period of Five (5) days following the date of physical delivery to Client's facilities, whichever occurs earlier. (B) It is stipulated and acknowledged by the parties hereto that the Licensed Software is licensed as a part of a packaged software system licensed by NCC. Except as may have been specifically provided in the RFP, the Licensed Software have not been customized by NCC to specially accommodate the Client's particular business. NCC warrants that at the time of delivery of the Licensed Software their performance shall be in substantial accordance with the description provided in the applicable user's manual furnished by NCC to Client. In the event any Licensed Software are determined to be defective, client's sole remedy shall be the correction or replacement, as determined by NCC, of the Licensed Software as soon as reasonable practicable, at NeC's cost and expense. Alternatively, the client maintains the option to exercise the software only performance bond during the bonding period in which case such exercise shall be client's sole remedy. (C) EXCEPT AS EXPRESSLY SET FORTH HEREIN, NCC DISCLAIMS ALL WARRANTIES ON LICENSED SOFTWARE, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL NCC BE LIABLE FOR ANY SPECIAL CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED. 2 ... I I ARTICLE 6: TITLE; NONDISCLOSURE: (A) Client acknowledges and agrees that NCC has certain proprietary, confidential, and intellectual property rights in the Licensed Software, and that Cl ient' s rights to use the Licensed Software are subject to the terms and conditions of this Software License Agreement. No title to, or ownership of, any Licensed software or any parts thereof is transferred to Client pursuant to this Software License Agreement. (B) Client agrees not to provide or otherwise make available any Licensed Software in any form to any person other than Client's employees, without NCC's prior written consent except when any such person is on Client's premises with Client's permission for purposes specifically related to Client's use of the Licensed Software. Client agrees to take appropriate action by instruction, agreement or otherwise with Client's employees or other persons permitted access to licensed Software to satisfy its obligations under this Agreement with respect to the use, copying, confidentiality and security of Licensed Software. ARTICLE 7: INFRINGEMENT WARRANTY: NCC warrants that the Licensed Software is the exclusive property of NCC and that neither the Licensed Software nor any element nor the use thereof does, as of the date hereof, violate or infringe upon any patent, copyright, trade secret, or other property rights of any person and NCC will indemnify, defend and hold Client harmless from and against any loss, cost and liability arising out of any breach of this warranty. ARTICLE 8: TERM OF LICENSE: (A) Client's right to use the Licensed Software provided shall consist of a perpetual non-exclusive license, subject to the restrictions and the provisions for early termination provided herein. (B) In the event that client fails to comply with any of the terms and conditions of this Software License Agreement, or in the event that Client attempts to assign, sublicense or otherwise transfer any of its rights under this Agreement without prior written consent of NCC, and any such default shall continue for thirty (30) days following written notice by NCC to Client, NeC in addition to its other rights at law and in equity, may immediately terminate this Agreement and all licenses granted hereunder upon notifying Client of this termination. (C) In the event Client abandons its use of the Licensed Software, or in the event any Licensed Software has been licensed in conjunction with related Designated Equipment purchased from NCC and Client abandons its use of this Hardware, the license granted herein for the respective Licensed Software shall immediately terminate. ARTICLE 9: DESTRUCTION OR TERMINATION: Upon expiration or termination of this Agreement, Client will either return all copies of the Licensed Software and its elements, or will submit evidence satisfactory to NCC that all copies have been destroyed. 3 I I ARTICLE 10: SECURITY OF SOFTWARE: Client shall be solely responsible for the supervision, management, and control of its use of the Licensed Software, and/or optional materials on the Designated Equipment configuration including but not limited to assuring proper audit controls and operating methods, and implementing sufficient procedures and checkpoints to meet the requirements of this Agreement. ARTICLE 11: INDEMNIFICATION: Client hereby indemnifies and holds NCC harmless of and from any and all claims, liabilities, demands, costs, causes of action, expenses, and attorney's fees arising out of the unauthorized disclosure or dissemination of any of the proprietary and confidential information regarding the Licensed Software resulting from the act or omission of Client, its agents, employees, successors or assigns, except as limited by Article 22 of the Contract for Computer Hardware and Software. ARTICLE 12: CHARGES AND PAYMENT TERMS: The charges set forth in Exhibit C hereof are for licensing and are the total of all charges to be made under this Contract. Unless specifically to the contrary provided elsewhere herein, no additional charges shall be made by NCC for the licensing of the Licensed Software provided hereunder. ARTICLE 13: AVAILABILITY OF DOCUMENTATION AND FUTURE RIGHTS: If the documentation provided for the Licensed Software subject hereto is revised at any time or if additional documentation is developed by NCC with respect to the Licensed Software, NCC shall, as soon as possible after publication, deliver to Client one (1) copy of such revised or additional documentation at the then prevailing charge for documentation. ARTICLE 14: RIGHTS TO REPRODUCE DOCUMENTATION: (A) NCC shall provide one (1) copy of all applicable printed documentation for the Licensed Software. Client is hereby authorized to reproduce up to fifty (50) additional copies of the printed documentation for solely internal use by Client's personnel. (B) Client shall not reproduce, in whole or part, any electronic or other form of the Licensed Software without the prior written consent of NCC. The client has the right to produce copies of the licensed software for archiving and backup purposes only. Client agrees to assure proper audit controls over all backup copies. ARTICLE 15: RIGHTS TO FUTURE PACKAGE OPTIONS: In the event NCC shall produce any enhancements or functional changes in the Licensed software after delivery of the Software hereunder, Client shall have the right to obtain such enhancement providing the client has executed and maintained a valid software maintenance agreement with NCC, at the cost of reproduction, installation, and training (if requested), at the prevailing NeC labor and overhead rates. ARTICLE 16: UPGRADES: All Upgrades made to the Licensed Software by NCC and generally furnished to its commercial licensees shall be furnished to Client. Charges for upgrades are set forth in the Software Maintenance Agreement. ARTICLE 17: SOURCE AVAILABILITY AND ACCESS: NCC agrees to furnish to Client 4 I I without charge, a single copy of the source code used in preparation of the Licensed Software. Upon taking possession thereof, Client agrees that the source code shall be subject to the restrictions of the Licensed Software set forth in th i s Agreement. ARTICLE 18: APPLICABLE LAW: The laws of the State of Florida shall govern interpretation of this Contract. ARTICLE 19: ENTIRE AGREEMENT: (A) This Contract and the Exhibits embodies the whole agreement of the parties with respect to the licensing of the Licensed Software. There are no promises, terms, conditions, or obligations referring to the subject matter hereof other than contained herein. . (B) No amendment or modification of this Contract shall be valid or binding on any party unless such amendment or modification is in writing and signed by the duly authorized representatives of both parties. ARTICLE 20: COMPLIANCE: If any term or provision of this agreement shall be found to be illegal or unenforceable, then it shall be stricken. This agreement whereupon as so amended shall remain in full force and effect. ARTICLE 21: HEADINGS NOT CONTROLLING: Headings used in this Contract are for convenience only and shall not be used in construing or interpreting any provision. ARTICLE 22: CONSENT TO BREACH NOT WAIVER: No term or provlslon hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented to such breach. The consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. ARTICLE 23: NOTICES: All notices under this Contract shall be in writing and shall be deemed duly given; upon delivery, if delivered by hand (against receipt); or three days after posting if sent by registered mail (receipt requested); to a party hereto at the address hereinabove set forth or to such other address as a party may designate by notice pursuant hereto. ARTICLE 24: AUTHORITY: Each party has full power and authority to enter into and perform this Contract, and the person signing this Contract on behalf of each party has been properly authorized and empowered to enter into this Contract. ARTICLE 25: NO ASSIGNMENT: Neither this Contract, nor any right or interest hereunder, shall be assigned by Client without the prior written consent of NCC. Any assignment of attempted assignment, whether by operation of laws or otherwise without the written consent of NCC shall at the option of NCC, be null and void. ARTICLE 26: BINDING EFFECT: This Contract shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. 5 I I IN WITNESS WHEREOF, the Client and NCC have executed this Agreement as of the date first above written. Countersigned: .~d~ V..u--Mayor-Commi ss ione Approved as to form and correctness: '. Y'Yv1J\ lk.() (~~I\,e9. 1\ 0\ my' Attorney A~jQq~t- CITY OF CLEARWATER By: ~ --;;q-: ~ City Manager Attest: ~ ~ - - . .. By-1~ f-. A-~ :AJ~. ~- ~- ty Clerk ~- ---: - - - - - -- - "- ~~ ..::~ ,,' - :::WO:7~t1&<~:~~ ." Title ~ ~/.2>er~r- --'-- 6 I I EXHIBIT IIAII Attached and made a part of that certain License Agreement dated, 1990, between Network Computing Corporation and City of Clearwater. LICENSED SOFTWARE LISTING SCHEDULE The following Licensed Software applications are to be licensed under this Contract: NCC APPLICATIONS: Utility Billing and Cash Receipts 3RD PARTY APPLICATIONS: IQ Intelligent Query OIGITAL APPLICATIONS: VMS Operating System Cobol Development RDB Development Vaxcluster License I I EXHIBIT "B" Attached and made a part of that certain License Agreement dated between Network Computing Corporation and City of Clearwater. DESIGNATED EQUIPMENT SCHEDULE The Designated Equipment for this Contract includes the following: One (1) Digital VAX 4000 Central Processing Unit. , 1990, "' I I EXHIBIT "C" Attached and made a part of that certain License Agreement dated between Network Computing Corporation and City of Clearwater. , 1990, SCHEDULE OF CHARGES The following subsystem license fees are applicable under this Contract: NCC APPLICATIONS: PRICE $50,000 Utility Billing and Cash Receipts 3RD PARTY APPLICATIONS: IQIntelligent Query $15,000 DIGITAL APPLICATIONS: Subtotal $ 9,668 21,064 2,056 $32,788 Cobol Development RDB Development Vaxcluster License Note: License Fees include 1st year maintenance fees. I I EXHIBIT "G" Attached and made a part of that certain Agreement for Computer Hardware and Software dated , 1990, between Network Computing Corporation and City of Clearwater. Vendor (NCC) Performance Bond Performance Bond No. 8300-81-56 Effective Date: June 11, 1990 Expiration Date/Duration: This performance bond will be in effect, consistent with the final payment terms of Exhibit "C", until a 90-day trial period has elapsed, measured forward from the system live date. At the end of the successful trial period and at the time of the final ten percent (10%) payment to NCC, the bond will be returned to NCC and will be terminated.