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UPGRADE AMENDMENT TO SOFTWARE END USER LICENSE AND SERVICES AGREEMENT FOR EXTENDED CAPABILITIES gAl' UPGRADE AMENDMENT to SOFTWARE END USER LICENSE AND SERVICES AGREEMENT For EXTENDED ENTERPRISE CAPABILITIES This upgrade amendment ("Upgrade Amendment") to the Software End User License and Services Agreement dated October 31, 1995 and all applicable addenda, amendments and Schedules thereto (collectively the "License Agreement") is made and entered into as of December 9,2001 ("Upgrade Amendment Effective Date") by and between PeopleSoft USA, Incl. ("PeopleSoft") and the City of Clearwater ("Licensee"). 1. SOFTWARE/SERVICES Extended Enterprise Capabilities Mfr. Provided Copies Fee Human Resources for the Public Sector PeopleSoft, Inc. 1 Included Payroll for the Public Sector PeopleSoft, Inc. 1 Included First Year Annual SUDDort Services Fee $6,000.00 TOTAL FEES $36,000.00 2. License to De 10 and Use the Extended Ente rise Ca abilities. Territo Version (indicate the country specific global version or local version for each country within the Territory in which or for which the Software will be used) United States American English and Associated Functionality The Extended Enterprise License Upgrade Program enables customers to use the PeopleSoft Web Client, Web Self-Service transaction, and the PeopleSoft Internet Architecture and to use as many servers and workstations as needed to TUn currently available versions of the PeopleSoft Software within their enterprise. It also enables customers to deploy PeopleSoft applications through the Internet, intranets, and extranets to reach customers, suppliers, and em 10 ees through the use of self-service a lications. 2.1 PeopleSoft grants Licensee the right to deploy and use the Extended Enterprise Capabilities in the Software listed above for access by Employees and Designates on one or more servers and/or workstations located at facilities owned or leased by Licensee, in the Territory, subject to the limitations contained herein and in the License Agreement and solely to access Licensee's internal data for Licensee's business, as permitted herein. Licensee's use of the Software is restricted for the Size Metrics most recently specified in this Upgrade Amendment and thereafter, as re-established during annual certification as specified in the section entitled "Certification" below. 2.2 If Licensee desires to use the Software beyond the scope of the License Agreement or this Upgrade Amendment, Licensee shall obtain a license for the additional rights from PeopleS oft, which mayor may not be granted. 2.3 Licensee shall be responsible for acquiring and paying for any database providers' and/or external third party software license requirements, including any additional fees to any such third parties that may be affected by this Upgrade Amendment. 2.4 Licensee shall not use any functionality or any version of the Software not expressly licensed by Licensee, including any functionality of a version not applicable to the Territory. PeopleSoft reserves all rights not expressly granted herein. 1 PeopleS oft, Inc. assigned all United States licenses to its wholly owned subsidiary, PeopleSoft USA, Inc. on January 1, 1998 and as of such date, PeopleSoft USA, Inc. is the successor-in-interest to the License Agreement between the parties. 1 EEL-081000 ;fJ 3. Size Metrics. Licensee's use of the Software is limited to the following Size Metrics: I Employee Count 1,900 4. License Fee for Extended Enterprise Capabilities. Licensee shall pay PeopleSoft the fees as stated above for the rights set forth herein for Licensee's use of the Software modules listed above. This fee is based on Licensee total Employee Count of 1,900. 5. Payment Terms. 5.1 Licensee shall pay PeopleSoft the TOTAL FEES shown above in U.S. dollars within thirty (30) days from the date of PeopleS oft's invoice. Except as otherwise provided herein, all payment obligations are non-contingent, non-cancelable and non-refundable. Payments which are not received within thirty (30) days from the date of the invoice shall bear interest at the lesser of eighteen percent (18%) per annum or the maximum rate allowed under applicable law. 5.2 Licensee is liable for all taxes, duties and customs fees relating to the Software and Support Services provided hereunder. 5.3 PeopleSoft reserves the right to change its credit terms at any time on notice to Licensee. In addition, PeopleSoft reserves the right to withhold performance of any obligations, whether arising under this Upgrade Amendment or otherwise, in the event of Licensee's nonpayment when due of any amounts owed to PeopleS oft. This is in addition to any other remedies available to PeopleSoft. 5.4 Licensee represents and warrants that if its internal procedures require that a purchase order be issued as a prerequisite to payment of any amounts due to PeopleSoft, it will timely issue such purchase order and inform PeopleSoft of the number and amount thereof and that it will take all action necessary to effect payment to PeopleSoft on the date specified in Section 5.1 above. Licensee agrees that the absence of a purchase order, other ordering document or administrative procedure may not be raised as a defense to avoid or impair the performance of any of Licensee's obligations hereunder, including payment of amounts owed to PeopleSoft. 6. Support Services Terms. The six thousand ($6,000.00) dollar First Year Annual Support Services Fee as specified in Section 1 above for the Extended Enterprise Capabilities for the Software and capabilities listed herein for a period of one (1) year commencing on this Upgrade Amendment Effective Date is included in the above License price of thirty-six thousand dollars ($36,000.00). Licensee may elect to continue Support Services for the Extended Enterprise Capabilities for the Software by paying PeopleSoft the Support Services fee of seventeen 17% percent ($6120.00 six thousand one hundred and twenty dollars) of thirty-six thousand dollars ($36,000.00) for the second year. Thereafter, for the next four years, Licensee may elect to continue the Annual Support Service Fee for the Extended Enterprise License Capabilities that is the lower of: (i) the then-current Annual Support Services Fee for the Extended Enterprise License Capabilities; or (ii) an Annual Support Service Fee for the Extended Enterprise License Capabilities that shall not exceed an increase often percent (10%) over the prior year's Annual Support Service Fee paid by Licensee to Peoplesoft, or a total of fifteen percent (15%) over a rolling four year period, taking into account the Employee Count and any Incremental License Fees owed thereon, as of the date of renewal of the Support Services. Up-grades, updates and enhancements of the products licensed hereunder may be forthcoming in the future. The parties agree that the terms and conditions of this Software End User License and Service Agreement and related Schedules will govern the issuance and use of such future upgrades, updates and enhancements. 7. Incremental License Fee. Licensee's licensed use of the Software listed herein is based on Licensee's Size Metrics as shown in this Upgrade Amendment. Each year prior to the Anniversary Date, PeopleSoft will send Licensee a statement to verify Licensee's total Employee Count as of such date. Licensee shall pay PeopleSoft an additional non-refundable, non-cancelable license fee of $4,000 for each incremental increase of 190 in Licensee's Employee Count from one Anniversary Date to the next. Upon receipt of such license fees in the amount of $4,000, Licensee's Employee Count shall be modified to increase by 190 employees. 2 EEL-081000 FP 8. CertifIcation. On an annual basis, PeopleSoft shall send Licensee a statement in the form of a written request to verify Licensee's Size Metrics as of such Anniversary Date. Licensee shall promptly respond by providing PeopleSoft with a certification signed by an authorized representative of Licensee, either (a) verifying PeopleSoft's statement and confIrming the Size Metrics as set forth in such statement; or (b) providing PeopleSoft with Licensee's then-current Size Metrics. If Licensee's Size Metrics have expanded, Licensee shall pay PeopleSoft the applicable Incremental License Fees as set forth herein. 9. Audit: PeopleSoft reserves the right to audit the use of the Software by Licensee no more than once in any twelve (12) month period at PeopleSoft's expense. All audits shall be conducted during regular business hours. If any such audit discloses an underpayment of fees due for the period which the discrepancy has arisen, Licensee will pay the underpayment along with the interest accrued from the date of payment was originally due at the lesser of eighteen percent (18%) per annum or the maximum permitted by law. Licensee will also reimburse PeopleSoft for all reasonable costs and expenses associated with the audit if the audit shows that Licensee has underreported any Size Metrics. 10. General. The terms and conditions of this Upgrade Amendment apply only to the Software listed herein. In the event of conflict or inconsistency, this Upgrade Amendment shall take precedence over the License Agreement. The License Agreement and this Upgrade Amendment constitute the entire agreement between the parties concerning the Software listed herein. All amendments to this Upgrade Amendment must be in writing and signed by both parties authorized signatories. Transmitted Copies are considered documents equivalent to original documents. This Upgrade Amendment may be executed in counterparts. 11. Definitions. Unless otherwise defIned herein, capitalized terms used in this Upgrade Amendment shall have the same meaning as those used in the License Agreement. To the extent there is any conflict between the defInitions in the License Agreement and the definitions below, the definitions below will control and supercede the definitions in the License Agreement. "Anniversary Date" means the month and day of Licensee's annual maintenance renewal date as determined by this Upgrade Amendment. "Designates" means Licensee's customers, suppliers, vendors, benefits providers and other such external parties providing goods or services to Licensee that access the Software consistent with the tenns of this Upgrade Amendment. In no event shall a Designate have the right to (i) install the Software on a server, workstation or other computer, or (ii) access the source code for the Software. A breach by a Designate will be considered a breach by Licensee hereunder. "Employees" mean Licensee's and all related entities' full or part time employees from whom Licensee withholds payroll taxes. "Employee Count" shall mean the sum of all Employees and contractors who are or would be deemed employees under applicable laws. "Extended Enterprise Capabilities" means the new functionality and expanded use rights incorporated in the Software to enable Licensee's usage and deployment of the Software through the use of Licensee's fIre-waIl secured intranet, internet or extranet. "Size Metrics" means one or more of the following: Employee Count, Reported Revenues, Reported Budget or Reported Assets. "Software" means all or any portion of the applicable Version for the Territory of the binary computer software programs and related source code (except as otherwise provided in the applicable Schedule), listed on the applicable Schedule(s) to the License Agreement as being licensed by Licensee, available as of the Amendment Effective Date, which is delivered by PeopleSoft to Licensee. Software does not include Third Party Software or source code for Third Party Software or Tools. Unless specifically stated otherwise, all Software is delivered to Licensee only if and when generally commercially available. "Support Services" means PeopleSoft's standard services in effect at the time such services are rendered, which are designed to support the Software. 3 EEL-08l000 ,()O "Territory" means the geographic area set forth in the applicable Schedule in which Licensee may install and run the Software on servers or workstations located at its facilities for use by Employees and Designates who are regularly employed in such geographic area. "Third Party Software" means all or any portion of the then commercially available version of the binary computer software programs, but not source code, licensed by PeopleSoft from third parties and sublicensed to Licensee, as specifIed in the applicable Schedule, which are not embedded in the Software. "Tools" means the underlying architecture from which the Software is designed, and includes software application programming tools in object code form, including PeopleTools and PepperTools, but does not include source code, which is delivered by PeopleSoft to Licensee. "Transmitted Copies" means this Upgrade Amendment, and other ordering documents which are (i) copied or reproduced and transmitted via photocopy, facsimile or process that accurately transmits the original documents; and (ii) accepted by PeopleSoft. "Version" means the specific territorial functionality of the Software licensed by Licensee as listed herein. 12. Expiration of Pricing. All terms and conditions, including the fees referenced in this Upgrade Amendment shall expire on December 9, 2001 if this Upgrade Amendment is not executed by Licensee by such date. 13. Miscellaneous Information SHIPPING INFORMATION BILUNG INFORMATION SITE INFORMATION Dan Mayer, Director IT Same Same City of Clearwater 100 S. Myrtle Avenue Clearwater, FL 33756 Phone: 727/562-4662 Phone: Phone: Fax: Fax: Fax: The undersigned represent and warrant that they are authorized as representatives of the party on whose behalf they are signing to sign this Upgrade Amendment and to bind their respective party thereto. CITY OF CLEARWATER L 0 crttc.. c h. o~ - Authorized signature 2Z~FT USA, lNC. /~~ Authorized signature /JIJ/l L I? ~~, !lce #J/d-.;: k~ Printed name and title ./ - Printed name and title 4 EEL-081000 ;{) City Of Clearwater 112 South Osceola Avenue Clearwater, FL 33756 Countersigned: &/~ Brian J. Aung Mayor-Commissioner CITY OF CLEARWATER, FLORIDA By: ~.~-:I[ William B. Horne II City Manager Approved as to form: Attest: ~ r~..- ne C. Hayman Assistant City Attorney ,IJ