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SOFTWARE END USER LICENSE & SERVICES AGREEMENT .-- I I 9'& SOFTWARE END USER LICENSE AND SERVICES AGREEMENT This agreement ("Agreement") is made as of October31, 1995 ("Effective Date") by and between.PeopleSoft, Inc. ("PeopleSoft"), a Delaware corporation having its principal place of business at 1331 North California Boulevard, Walnut Creek, California 94596 and Name: City of Clearwater ("Licensee") Address: This Agreement and the Schedules constitute the entire agreement between the parties concerning Licensee's use of the Software. This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations. No purchase order or other ordering document which purports to modify or supplement the printed text of this Agreement or any Schedule shall add to or vary the tenns of this Agreement. All such proposed variations or additions (whether submitted by PeopleSoft or Licensee) are objected to and deemed material. THE TERMS AND CONDITIONS HEREIN ARE ACCEPTED AS PART OF THIS AGREEMENT. By: A,M~ Eliz~ M. Dept a/City Manager :OPL~ Phillip II. Fauver Vice President and General Manager CIlY OF CLEARWATER, FLORIDA ~ ? fL. D.e. Cyn a E. Goudeau/City Clerk Appr0ved As To ~\ii~~ 1!!Ldl i)c31e TERMS AND CONDITIONS 1. License 1.1 PeopleSoft grants Licensee a perpetual, non-exclusive, nontransferable license to use the licensed number of copies of the Software, solely for internal data processing operations, on each Server at the Site up to the licensed number of workstations specified in the applicable Schedule. Any third party software products or modules provided by PeopleSoft to Licensee shall be used solely with PeopleSoft Software. Licensee may use the Software temporarily on a machine other than the Server in the.eventthat the Server is inoperable. Licensee may make four (4) full system backup copies of the Software solely for archive or emergency back-up purposes and/or disaster recovery testing purposes. Licensee may modify or merge the Software with other software with the understanding that any modifications, however extensive, shall not diminish PeopleSoft's title or interest in the Software. 1.2 PeopleSoft shall provide Licensee with the licensed number of copies of the Software and Documentation as specified in the applicable Schedule. Licensee may make a reasonable number of copies of Documentation solely for Licensee's internal use with the Software provided all copyright notices are reproduced. 2. License Exclusions 2.1 Except as expressly authorized herein, Licensee shall not: c. Copy the Software; Cause or permit reverse compilation or reverse assembly of all or any portion of the Software; Distribute, disclose, market, rent, lease or transfer to any third party any portion of the Software (including PeopleTools) or the Documentation, or use the Software or Documentation in any service bureau arrangement, facility management, or third party training; Disclose the results of Software performance benchmarks to any third party without PeopleSoft's prior written consent; a. b. ti!,.~d. Revised January 1995 Page 1 of 4 PIS ... I I (>>\s e. Transfer the Software to a different database platform without the prior written consent of PeopleSoft (such consent not unreasonably withheld) and payment of any additional fees which may be due; f. Transfer the Software to a different Site without prior written notice to PeopleSo-ft; g. Export the Software in violation of U. S. Department of Commerce export administration regulations; h. Invoke support libraries other than through documented API calls; and i. Use PeopleTools except in conjunction with the licensed PeopleS oft applications. 2.2 No license, right, or interest in any PeopleSoft trademark, trade name, or service mark is granted hereunder. 3. Fees and Payment Terms 3.1 Licensee shall pay PeopleSoft the fees as specified in each applicable Schedule. All shipments shall be FOB Clearwater, Florida. 3.2 Unless Licensee provides PeopleSoft with a valid tax exemption or direct pay certificate, Licensee is responsible for all taxes, duties and customs fees concerning the Software and/or services, excluding taxes based on PeopleS oft's income. Overdue payments shall bear interest at the lesser of twelve percent (12%) per annum or the maximum rate allowed under applicable law. 4. Title and Protection 4.1 PeopleSoft (or its third-party providers) retains title to all portions of the Software, any modifications to the Software developed with PeopleTools, and any copies thereof. Title to the physical media for the Software vests in Licensee upon delivery. PeopleSoft represents that the Software contains valuable proprietary information, and Licensee shall not disclose the Software to anyone other than those of its employees or consultants under nondisclosure obligations who have a need to know for purposes consistent with this Agreement and Licensee, to the extent permitted by Florida law, shall not disclose the Software to anyone. Licensee shall affix, to each full or partial copy of the Software made by Licensee, all copyright and proprietary information notices as affIxed to the original. The obligations set forth in this paragraph shall survive termination of this Agreement. 4.2 The Software may be transferred to the U.S. government only with the separate prior written consent of PeopleSoft and solely with "Restricted Rights" as that term is defIned in FAR 52.227-19(c)(2) (or DFAR 252.227-7013(c)(l) if the transfer is to a defense-related agency) or subsequent citation. 5. Patent and Copyright Indemnity PeopleS oft shall indemnify and defend Licensee against any claims that the Software infringes any United States or Canadian patent or copyrigh~ provided that PeopleSoft is given prompt notice of such claim and is given information, reasonable assistance, and sole authority to defend or settle the claim. In the defense or settlement of the claim, PeopleSoft may obtain for Licensee the right to continue using the Software, replace or modify the Software so that it becomes noninfringing while giving equivalent performance. PeopleSoft shall have no liability to indemnify or defend Licensee if the alleged infringement is based on: (i) a modification of the Software by anyone other than PeopleSofi, or (ii) the use of the Software other than in accordance with the Documentation. 6. Default and Termination 6.1 Any of the following shall constitute an event of default: a. Licensee fails to perform any of its obligations under the sections entitled "License Exclusions" or "Title and Protection"; or b. Either party fails to perform any other material obligation under this Agreement and such failure remains uncured for more than thirty (30) days after receipt of written notice thereof. 6.2 If an event of default occurs, the nondefaulting party, in addition to any other rights available to it under law or equity, may terminate this Agreement and all licenses granted hereunder by written notice to the defaulting party. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. Revised January 1995 Page 2 of4 !l!; I I <q\S 6.3 Within ftfteen (15) days after termination of this Agreement, Licensee shall certify in writing to PeopleS oft that all copies of the Software in any fonn, including partial copies within modified versions, have been destroyed or returned to PeopleS oft. 7. Limited Warranty PeopleSoft warrants that it has title to the Software and the authority to grant licenses to use the Software. PeopleSoft warrants that the Software will perform substantially in accordance with the Documentation for a period of one (1) year from the date of installation. PeopleSoft's sole obligation is limited to repair or replacement of the defective Software, provided Licensee notifIes PeopleSoft of the deficiency within the one-year period and provided Licensee has installed all Software updates provided by PeopleSoft's Software Support Services. PEOPLESOFr DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8. Limitation of Liability PEOPLES OFT WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING DAMAGES INCURRED UNDER THE ARTICLE ENTITLED "PATENT AND COPYRIGHT INDEMNITY", PEOPLESOFTS LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR TORT) SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY LICENSEE TO PEOPLESOFT FOR THE SOFTWARE OR THE SERVICES FROM WHICH THE CLAIM AROSE. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK WHICH IS SET FORTH IN THIS SECTION. 9. Software Support Services Terms and Conditions On the Schedule Effective Date, PeopleSoft shall provide Licensee with one (1) year of software support services as described in PeopleSoft's standard Software Support Services Terms and Conditions (receipt of which is hereby acknowledged). After the fIrst year, Licensee may elect to acquire Software Support Services by paying PeopleSoft the then current applicable fees. 10. On-Site Support Days PeopleSoft shall provide Licensee with support at the Site for the Software as set forth in the Schedule. For a period of six (6) months from the Schedule Effective Date, support days not used during the installation phase may be used for other implementation support. Licensee shall reimburse PeopleSoft for all reasonable travel and living e>.:penses associated with any installation and support in accordance with Licensee's then-current expense reimbursement policy. As of the Effective Date, the expense reimbursement policy is calculated by the following formula: Hotel/motel @ $80.00 per night, meals @ $35.00 per day, carrentaI @ $45.00 per day and airfare @ coach airfare. 11. Training PeopleS oft shall provide Licensee with the number of training units set forth in the Schedule for use at a PeopleSoft Training Facility. Licensee may use training units for Site training as the parties mutually agree in writing. Licensee must use these training units within one (1) year from the Schedule Effective Date. 12. Notices All notices shall be in writing and sent by fIrst class mail, overnight mail, courier, or transmitted by facsimile (if confIrmed by such mailing), to the addresses indicated on the fIrst page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to PeopleSoft shall be sent to the Legal Department. 13. Assignment Licensee may not assign this Agreement (by operation of I~w or otherwise) or sublicense the Software without the prior written consent of PeopleSoft, and any prohibited assignment or sublicense shall be null and void. Except in Revised January 1995 Page 3 of 4 v~ - I I ~ \'0 the event of a merger, acquisition or the like, PeopleSoft may not assign this Agreement (by operation of law or otherwise) the Software without the prior written consent of Licensee, and any prohibited assignment shall be null and void. IfPeopleSoft assigns this Agreement as provided in this Section 13, the assignee shall acquire all rights and obligations as specified in this Agreement. 14. Nondisclosure Obligation 14.1 To the extent permitted by Florida law, the tenns, conditions, pricing and any other information clearly marked "confIdential" under this Agreement are confIdential and shall not be disclosed, orally or in writing by Licensee to any third party without the prior written consent of PeopleSoft. 14.2 To the extent permitted by Florida law, Licensee shall protect the Software with at least the same degree of care and confIdentiality which Licensee utilizes for similar Licensee information which it does not wish disclosed to the public. Licensee may provide access to and use of the Software only to those third parties, (undertaking similar nondisclosure obligations), providing services concerning Licensee's use of the Software. 15. General This Agreement is made in and shall be governed by the laws of the State of Florida, excluding choice of law principles. Venue shall be in Florida. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. Except for Licensee's obligation to pay PeopleS oft, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. Except for actions for nonpayment or breach of PeopleSoft's proprietary rights in the Software, no action regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. This Agreement may be executed in counterparts. To expedite order processing, Transmitted Copies are considered documents equivalent to original documents. 16. Definitions "Documentation" means only teclmical publications relating to the use of the Software, such as reference, user, installation, systems administrator and teclmicaI guides, delivered by PeopleSoft to Licensee. "PeopleTools" means the underlying architecture from which the Software is designed, and includes software application programming tools and code. "Schedules" means the product schedules which specifIcally reference this Agreement and which have been executed by the parties. "Server" means a single database or me server which may be accessed by a network of personal computers as set forth in the applicable Schedule. "Site" means a specific, physical location of Licensee's Server as set forth in the applicable Schedule or such other location that Licensee may move to, provided Licensee gives PeopleSoft written notice of such relocation as specified in Section 2.1(f). "Software" means all or any portion of the United States version of the binary computer software programs (including corresponding source code) provided by PeopleSoft or made by Licensee with PeopleSoft's prior written consent, in machine-readable form and including all listed in the applicable Schedule and all corrections or updates thereto. Software includes the third-party software as identifIed in the Schedule. Software does not include source code to PeopleTools. "Transmitted Copies" means this Agreement, Schedules and other ordering documents which (i) contain no modifications or amendments to this Agreemen~ (ii) are copied or reproduced and transmitted via photocopy, facsimile or process that accurately transmits the original documents; and (ill) are accepted by PeopleSoft. Revised January 1995 Page 4 of 4 ~lS ""'- I I SCHEDULE ONE TO THE SOFTWARE END USER LICENSE AND SERVICE AGREEMENT (peopleS oft HRMS) <l\~ This independent Schedule is made as of October 31, 1995 ("Schedule Effective Date") by and between PeopleSoft, Inc. ("PeopleSofttt) and City of Clearwater ("Licensee"). This Schedule is part of the Software End User License and Service Agreement between the parties dated October 21, 1995 ("Agreement"). Peop1eSoft's standard Support Services Terms and Conditions shall be a part of this Schedule only in the event Licensee elects to purchase Support Services. Capitalized terms used herein shall have the same meaning ascribed to them in the Agreement. Handwritten or typewritten text (other than information which is specifically called for in the spaces provided) which purports to modify or supplement the printed text of this Schedule shall have no effect and shall not add to or vary the terms of the Agreement. All such additions (whether submitted by Licensee or PeopleS oft) are objectionable and deemed material. ACCEPTED BY: ::np~ Phillip H. Fauver Vice President and General Manager Approved As To l~~~rml (113)CJ5 1~IDate CIlY OF CLEARWATER, FLORIDA By: r;;w~ Elizab!9'M. Dep 3/City Manager Approved as to form and legal sufficiency: Attest: Per CODY License Fee Production Qwks HRMS Software applications Human Resources Payroll Pricing is based on #_ of Licensee's employee records. I Database Version: Oracle I Operating System: L -Qee. Tcst& Development ~ 1 1 1 1 Subtotal from Page 1: Subtotal from Page 2: TOTAL FEES: I Hardware Model: Depending on the Database Version licensed, Licensee receives the applicable items listed below: Database PeopleTools - Restricted Development2 Training Units Support Days3 Documentation Qll:. 1 1 .2Q 1 2 DBl N/A included included included included SOLBase included included included included included SQL Server N/A included included included included ~ License Fee $66.500 $66.500 $133.000 $22.400 $155.400 All Other N/A included included included included 1 This Schedule includes, at no additional license fee, a perpetual, non-exclusive license to run the PeopleS oft Software on a separate stand alone server for testing, development and training only. As of the Schedule Effective Date, PeopleSoft's standard license fee for such copy is $60,000. 2 PeopleTools for Restricted Development shall be used by Licensee to develop add-on applications only to the licensed PeopleSoft Software application modules. 30ne (1) Support Day is equivalent to an eight (8) hour work day. Revised January 1995 Page lof2 PeopleSoft HRMS \,IS I I <l \f::o ADDITIONAL SOFTWARE / SERVICES Softwa re/Service Workstation Access (includes base application access, Workstation SQR, QueryLink, PS/nVision, Crystal). Server SQR Manufacturer PeopleSoft, Inc. Sybase, Inc./MITI Crystal Computer Services Per Item Fee lli.QQQ Quantity unlimited ~ ll4.QQQ Sybase, Inc./MITI woo 1 woo Subtotal of Page 2: IDA.Q.Q 1. Payment terms: Licensee shall pay PeopleSoft fIfty percent (50%) of license fees on the Schedule Effective Date and fifty percent (50%) upon the earlier of the Software installation date or sixty (60) days from the Schedule Effective Date. Unless otherwise stated in this Schedule, the fees specifIed herein are non-cancelable and non- refundable. All fees are payable in U.S. dollars and sent to the attention of PeopleS oft's Accounts Receivable Department. 2. Software Support Services Renewal Terms: One (1) year after the Schedule Effective Date, Licensee may elect to continue Software Support Services for the following year by paying PeopleSoft an annual Support Services fee of seventeen (17%) percent of the then current license fee for the Software listed on this Schedule. Thereafter, Licensee may elect to continue Software Support Services for the following year by paying PeopleSoft an annual Support Services fee that is the lower of (i) the then-current Support Services fee or (ii) a Support Services fee that shall not exceed an increase of ten percent (10%) over the prior year's Support Services fee paid by Licensee to PeopleSoft or a total increase of fifteen percent (15%) over a rolling three year period. 3. Source Code Escrow: Licensee shall have the right to become a beneficiary to the Software Source Code Escrow Agreement between PeopleSoft and FileSafe, Inc. (SourceFiIe) dated November 23, 1993, a copy of which is attached and incorporated as Exhibit A. 4. Incorporation of Documents: PeopleSoft's Documentation and revisions thereto; PeopleSoft's Clarifications to its Response to Licensee's RFP #230-94, dated as of October 20, 1995; PeopleSoft's Response to Licensee's RFP #230-94; and Licensee's RFP #230-94 are incorporated into this Agreement by reference for the purpose of describing the functionality of the Software as initially delivered by PeopleSoft. In the event of any conflict, inconsistency or ambiguity among the respective documents, the documents shall prevail in the following order: . PeopleSoft's Documentation and revisions thereto; . PeopleSoft's Clarifications to its Response to Licensee's RFP #230-94, dated as of October 20, 1995; . PeopleSoft's Response to Licensee's RFP #230-94; and . Licensee's RFP #230-94. LICENSEE SITE ADDRESS BILL-TO ADDRESS SHll'-TO ADDRESS Contact Name: Phone No. Fax No. Contact Name: Phone No. Fax No. P.O. Box No: Contact Name: Phone No. Fax No. LICENSEE lRAINING ADMINISlRA TOR Contact Name: Phone No. Fax No. RevisedJanuary 1995 Page 2 of2 PeopleS oft HRMS fJS \<- - I I ~f.> Software Support Services Terms and Conditions Software Support Services Terms and Conditions ("Support Services") are referenced in and incorporated into the License Agreement between PeopleSoft and Licensee. Upon reasonable notice, PeopleSoft reserves the right to modify the terms and conditions of Support Services on an annual basis to reflect current market conditions. 1. Coverage PeopleSoft provides Licensee with Support Services for the Software in consideration for Licensee's payment of the applicable fees to PeopleS oft. 2. Software Maintenance The following technical and functional improvements will be issued periodically by PeopleSoft to improve Software operations: a. Fixes to Errors; b. Updates; and c. Enhancements contained within new releases. 3. Priority Level of Errors PeopleSoft shall reasonably determine the priority level of Error. PeopleSoft uses the following protocols: Priority A Errors: PeopleSoft promptly initiates the following procedures: (1) assign PeopleSoft specialists to correct the Error; (2) provide ongoing communication on the status of the corrections; and (3) immediately commence to provide a Workaround or a Fix. Priority B Errors: (1) PeopleSoft assigns a PeopleSoft specialist to commence correction of Error and (2) Provide escalation procedures as reasonably determined by PeopleSoft support staff. PeopleSoft exercises all commercially reasonable efforts to include the Fix for the Error in the next Software maintenance release. Priority C Errors: PeopleSoft may include the Fix for the Error in the ne>..1 major Software release. 4. Telephone Support PeopleSoft provides telephone technical support concerning installation and use of the Software. Except for designated holidays, standard telephone support hours are Monday through Friday, 6:00 a.m. to 6:30 p.m. PacifIc Time. Telephone Support is available 24-hour, 7-days a week for in-production customers who need to resolve critical production problems outside of normal support hours. 5. Account Manager PeopleSoft assigns an account manager to assist the on-going support relationship. A reasonable amount of account manager on-Site time is included in the annual Support Services fee. Licensee will reimburse PeopleSoft for the reasonable travel and living expenses of the account manager for on-Site activity. 6. PEOPLESOFT FORUM a. PeopleSoft Forum on-line bulletin board system features postings by PeopleSoft and PeopleSoft Software users regarding technical and non-technical topics of interest. Licensee shall access PeopleSoft Forum solely through Licensee's CompuServe services account. At Licensee's own expense, Licensee shall acquire the CompuServe service and a license to use Lotus Notes. Revised January 1995 Page 1 of3 pJS I I <If.J ' b. All maintenance releases and program fIxes to the Software may be delivered to Licensee through PeopleSoft Forum. All information specified in PeopleSoft Forum by PeopleSoft is confIdential and proprietary to PeopleSoft and shall only be used in connection with Licensee's use of the Software and informational communications with other PeopleSoft Forum participants. PeopleSoft reserves the right to modify information posted to PeopleSoft Forum. PeopleSoft shall have the right to publish and distribute only through PeopleSoft Forum in all languages and in association with Licensee's name any material or software programs provided by Licensee to PeopleSoft Forum. Licensee shall not use PeopleSoft Forum for advertising or public relations purposes and shall only submit information to PeopleSoft Forum which is owned by Licensee or which Licensee has third party permission to submit to PeopleSoft Forum for use by all other PeopleSoft Forum users. c. In the interest of diminishing exposure to software viruses, PeopleSoft tests and scans for software viruses all information entered by PeopleS oft prior to submission of information to PeopleSoft Forum. Licensee shall also use a reliable virus detection system on any software or information posted to PeopleSoft Forum, utilize back-up procedures, monitor access to PeopleSoft Forum, promptly notify PeopleSoft of any virus detected within Licensee's systems associated with PeopleSoft Forum and generally exercise a reasonable degree of caution when utilizing information from PeopleSoft Forum. PeopleSoft does not warrant that PeopleS oft Forum will operate without interruption or without errors. PeopleSoft reserves the right to modify or suspend PeopleSoft Forum service in connection with PeopleSoft's provision for Support Services. 7. Fees The :fIrst year of Support Services is included in the Software license fees, thereafter, in the event Licensee elects to continue to receive Support Services, Licensee shall pay PeopleSoft the annual Support Services fee as set forth in the applicable Schedule. Support Services are billed on an annual basis, payable in advance. Unless Licensee provides PeopleSoft with a valid tax exemption or direct pay certificate, Licensee shall be responsible for all taxes associated with Support Services, other than taxes based on PeopleSoft's income. Licensee's payment shall be due within thirty (30) days of receipt of the PeopleSoft invoice. Should Licensee elect not to renew Support Services and subsequently request Support Services, PeopleSoft shall reinstate Support Services only after Licensee pays PeopleSoft the annual then current fee plus all cumulative fees that would have been payable had Licensee not suspended Support Services. 8. Term and Termination Unless a shorter term is agreed to in writing by both parties, Support Services shall be provided for one (1) year from the Schedule Effective Date and shall be extended each additional year unless terminated by either party. Each one (1) year term shall commence on the anniversary of the Schedule Effective Date. Either party may terminate the Support Services provisions at the end of the original term or at the end of any renewal term by giving the other party written notice at least ninety (90) days prior to the end of any term. In the event Licensee fails to make payment pursuant to the section titled "Fees", or in the event Licensee breaches the Support Services provisions and such breach has not been cured within thirty (30) days of written receipt of notice of breach, PeopleSoft may suspend or cancel Support Services. 9. Exclusions PeopleSoft shall have no obligation to support: a. Altered, damaged or substantially modifIed Software; b. Software that is not the then-current or Previous Sequential Release; c. Errors caused by Licensee's negligence, hardware maIfunction or other causes beyond the reasonable control of PeopleSoft; d. Software installed in a hardware or operating environment not supported by PeopleSoft; and e. Third party software not licensed through PeopleSoft. Revised January 1995 Page 2 of3 ~jS \0- 1 I qf.J 10. General All Updates provided to Licensee are subject to the tenns and conditions of the Agreement. PeopleSoft shall not be liable for any failure or delay in performance of the Support Services due to causes beyond its reasonable control. Any illegal or unenforceable provision shall be severed from these Tenns and Conditions. Licensee agrees that any information received pursuant to these Terms and Conditions shall be deemed subject to the non-disclosure obligations set forth in the Agreement. The Support Services Terms and Conditions states the entire agreement of PeopleSoft's provision of Support Services to Licensee and may only be amended by a written amendment executed by both parties. 11. Definitions Unless otherwise defmed herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement and applicable Schedule. "Enhancement" means technical or functional additions to the Software to improve software functionality and/or operations. Enhancements are delivered with new releases of the Software. "Error" means a malfunction in the Software which degrades the use of the Software. "Fix" means the repair or replacement of source or object or executable code versions of the Software to remedy an Error. "Previous Sequential Release" means the release of Software for use in a particular operating environment which has been replaced by a subsequent release of the Software in the same operating environment. A Previous Sequential Release will be supported by PeopleSoft for a period of fifteen (15) months after release of the subsequent release. "Priority A" means an Error that: (1) renders the Software inoperative; or (2) causes the Software to fail catastrophically. "Priority B" means an Error that affects performance of the Software, but does not prohibit Licensee's use of the Software. "Priority e" means an Error that causes only a minor impact of the use of the Software. "Update" means all published revisions to the printed documentation and one (1) copy of the new release of the Software which are not designated by PeopleSoft as new products for which it charges separately. "W orkaround" means a change in the procedures followed or data supplied to avoid an Error without signifIcantly impairing performance of the Software. Revised January 1995 Page 3 of3 ilS ,"-- 1 I qfJ AMENDMENT ONE TO THE SOFTWARE END USER LICENSE AND SERVICES AGREEME~T BETWEEN PEOPLES OFT, INC. AND CITY OF CLEARWATER 3/~ THIS AMENDMENT is made and entered into as of the .At day of October 1995 ("Amendment Effective Date"), by and between PeopleSoft, Inc. ("PeopleS oft") and City of Clearwater ("Licensee"). " WITNESSETH: THAT, for and in consideration of the mutual promises herein contained, and other good and valuable consideration, the suffIciency of which is hereby acknowledged, the parties to this Amendment One, intending to be legally bound, hereby agree that the Software End User License and Services Agreement between the parties, dated as of October 3l, 1995 (hereinafter referred to as "Agreement"), is amended to provide as follows: 1. DefInitions Unless otherwise defmed, capitalized terms used in this Amendment shall have the same meaning as those referenced in the Agreement. "Oracle Runtime Program" means the Oracle database binary software, updates and a softcopy of documentation for use on Licensee's designated hardware. "Agreement" means the original License Agreement and any Schedules, Addenda and/or Amendments thereto executed by the parties 2. Use of Oracle Runtime Program Licensee shall use the Oracle Runtime Program: a) solely with the PeopleSoft Software; b) to create new tables or alter tables only to the extent necessary to implement Software functions; and c) only for Licensee's internal use in the U.S. or Canada on a single designated CPU limited to 75 Concurrent Users Oracle Runtime Program Users. Licensee shall not: a) use the Software to modify Oracle SQL *Fonns or generate new Oracle SQL *Forrns; b) use the Oracle Runtime Program for general database management purposes; c) export or transfer the Oracle Runtime Program outside of the United States or Canada; d) use the Oracle Runtime Program in any nuclear, aviation, mass transit or medical application or in any inherently dangerous application environment; and e) use the Oracle Runtime Program "create" or "alter" commands or other commands to create tables or alter tables outside the scope of operation of the Software. Rev. 6/28/94 Page 1 of2 November 3,1995 v~s I I ~:f:J ~ 3. Oracle Runtime Program License Fees: Licensee agrees to pay the license fe~ as listed below for the license of the Oracle Runtime Program. Such fees shall be due thirty (30) days from receipt of invoice. ORACLE PRODUCT (Run-time only version) Oracle7 RDBMS (includes protocol, SQL *Net for all users and a copy of SQL *Plus First Year Database Maintenance .EEES. $26..040 TOTAL FEES $1 0 065 $36.105 Hardware/ModeI#: Protocol: Operating System: Media: 4. Installation and Tecbnical Support Service As part of the Total License Fee, installation of the Oracle Runtime Program shall be furnished by PeopleSoft. The Oracle Runtime Program License Fee does not include any Technical Support Service. The first year of Technical Support Service of the Oracle Runtime Program shall be supplied directly by Oracle Corporation and billed through PeopleS oft. The annual fee for the IlTSt year of Technical Support Service is listed above and shall be billed on the same invoice as the License Fee. Thereafter, Licensee may elect to acquire Technical Support Services directly from Oracle and payable to Oracle. Licensee shall be required to sign a standard Oracle Technical Support agreement in order to receive Technical Support Service from Oracle. 5. General In the event of conflict, this Amendment shall take precedence over the Agreement The Agreement, any previous amendment and this Amendment are the entire agreement between the parties and all amendments to this Amendment must be in writing and signed by the parties' authorized signatories ACCEPTED BY: CIlY OF CLEARWATER, FLORIDA ~i~abe~~I~anager PE07i:Jj By: Phi((ip H. Fauver Vice President and General ::... Manager Approved as to form and legal sufficiency: ~-g; Pame a K. AkinlCity A 0 ey Attest: r. ~Lfi~ ,(J. <<. ~udeau/City Clerk Approved As To l.r~'t5 ::~~, 'i,!te --- Rev. 6/28/94 Page 2 of2 November 3, 1995 t>lS ... I EXHIBIT A. SOURCECODEAGRE~MENT , q~/ vi' PeoplcSoft Propric1ary and Confidential "" hgc 11 February II, 1994 ":L- I - I ~fJ;. SOURCEFLEX SOFIWARE SOURCE CODE ESCROW AGREEMENT SOURCEFaE ESCROW NUMBER: ~~ .. This Software Source Code Escrow Agreement, dated as of November 23.1993, by and between FileSafe, Inc., a California co~ration, do~ business as SourceFile rSourceFile") and PeopleSoft. I~ located at 1 North California Boulevard. Walmu Creek. California 94596("Depositor"), and each Beneficiary identified by Depositor to SourceFile as provided for in Paragraph 3 hereof (each a -&nefic:iary", collectively the -&nefidaries"). RECITALS: A Pursuant to certain and annual technical sUpport software licxnse agreements (each a "License Agreement", collectively the "License Agreements")) Depositor licenses to certain licensees certain software in object code form (the "Software"). A d~tion of each Software effective as of the date hereof, is attached hereto as Exhibit "A". B. The Software is the proprietary and confidential information of Depositor, and Depositor desires to protect such ownership and confidentiality. C Depositor desires to ensure the availability to its Beneficiaries of a license to the source code and all neces~ry proprietary information related to the Software (the .Source Material") for the use by BenefiClaI)' solely for teehnical support of the Software licensed by the Beneficiary in the event certam conditions set forth in Paragraph 4 of this Agreement should occur. AGREEMENT: 1. Deliveno or Source Code to SourceFIle. Depositor shall deliver to SourceFile a parcel (the "Parcel") sealed by Depositor, which Depositor represents and warrants is one (1) copy. of the Source Material. SourceFile has no knowledge of, and m~1-es DO representations with respect to, the contents or substance of the Parcel, the Software or the Source Material. Depositer shall deliver updated Source Material to SourceFile thirty (30) days after each new release of the Source Material. 2. Acknowled~ement of ReceiDt bv SourceFiJe. Promptly after receipt of the Parcel and of any supplements to the Source Material, SourceFile shall notify in vmting such Beneficiaries for which Depositor has paid SourceFile the fee ( included as part of the Annual Maintenance Fee) for such notice.. Depositor shall provide supplements to the Source Material for each updated or new major release version of the Software as reasonably determined by Depositor. Depositor shall send to SourceFile a duplicate of the Source Material within three (3) days after receiving written notice from SourceFile that the Source Material has been destroyed or damaged. All supplements shall be subject to the terms and provisions of this Agreement SourceFile will notify BeneficiaIy and Depositor of each update to the Source Material. Such notification wi1I be sent via certified mail, return receipt required I 3. Acknowled~ment by Beneficiaries. For purposes of this Agreement, a licensee of the Software shall be a Beneficiary hereunder with such rights of 8 Beneficiary as set ..,. J. , ~ forth herein, ~ . -(i) such licensee is identified on ti!e current schedule of Software ., lia:nsees delivered to SourceFile by Depositor from time to time Jru1 (H) such licensee has sent to SourceFile a fuDy executed copy of the form of acknowledgement attached hereto as ExhJbtt -U-, in which such licensee accepts the terms of this Agreement and agrees to pay the then current SourceFile annual Beneficiary mainte~ fee directly to SourceFile. The name and addresses of the Beneficiaries shall be described in one or more schedules of. Beneficiaries to be presented to SourceFile from time to time by Depositor. An other licensees of the Software shall have no rights hereunder and SourceFile shall have no duties to such .licensees. . 4. Terms and CondJtlons or the Source Material Escrow. The Parcel shall be held by SourceFile upon the following terms and conditions: (i) In the event that (1) SourceFile is notified by Beneficiary that Depositor is unwilliDg or unable to pI'OYlde technical support for the then curient version of the Software in material breach of its License Agreement with BeneficiaIy and that the Beneficiary has given Depositor wrinen notice of such material breach specifying in reasonable detail the facts of the alleged material breach (the "Release Condition') and (2) BeneficiaIy has paid to SourceFile all fees and charges then due and ~ SourceFile shall follow the following procedures set forth in this Section 4, parts Cn}, (ill), (iv) and (v). (ii) SourceFile shall promptly notify Depositor of the occurrence of the Release Condition and shall provide to Depositor a copy of Beneficiary's notice to SourceFile. (Ui) If SourceFile does not receive Contrary Instructions, as defined below, from Depositor within thirty (30) days following SourceFile's delivery of 8 cop>: of such notlce to Depositor, SourceFile shall deliver 8 copy of the Source Material to Beneficiary. "Contrary Instructions" for the purposes of this Section 3 shall mean the filing of written notice with SourceFile by Depositor, with 8 copy to the BeneficiaIy demanding delivery, stating that the Release Condition has not occurred or has been cured. (iv) If SourceFile rea:ives Contrary Instructions from Depositor within thirty (30) days of the giving of such notice to Depositor, SourceFile shall not deliver a copy of the Source Material to the Beneficiary, but shall continue to store the Parcel until: (1) otherwise directed by the Depositor and Beneficiary jointly; (2) SourceFile has received a copy of an order of 8 court of competent jurisdiction difeding SourceFile as to the disposition of the Source Material; or (3) SourceFile has deposited the Parcel with a court of competent jurisdiction or a Trustee or receiver selected by such court pursuant to this Section 3, part (v) below. (v) Upon receipt of Contrary Instructions from Depositor. SourceFile shaD have the absolute right, at SourceFile's election to file an action in interpleader requiring the Depositor and Beneficiary to answer and litigate or arbitrate their several claims and rights amongst themselves. SourceFile is hereby authorized to comply with the applicable interpleader statutes of the State of California in this regard.. SOUl'lC:!:l'U &cor.. N--= 8OUACf7UX ~ ~ ,-.a 2.. s. Term If A2ree~t. This Agreement shaD1have In initial tenD of ~ (3) qf>) years. The term shall be automatically renewed on . yearly basis thereafter, unless Depositor or SourceFile notifies the other party in wri~ at least ninety (90) days prior to the end of the then current term of its intention to. termmate this Agreement 6. ComDensatlon or SourceF11e. Depositor agrees to pay SourceFile reasonable compensation for the services to be rendered hereunder in accordance with SourceFile', then current schedule of fees, and will payor reimburse SourceFile upon request for all reasonable expenses, disbursements and advances., including software duplication charges and reasonable attorneys' fees, incurred or made by it in connection with canying out its duties hereunder. SourceFile's schedule of fees for the initial term of this Agreement is attached to this Agreement as Exhibit "1)-. In the event Depositor fails to pay an annual maintenance fee to SourceFilC; Beneficiary shall have the option to pay such fees to avoid SourceFile terminating this agreement 7. UmJtatlon or Duties of SourceFJle. Soti.rceFile undertakes to perform only such duties as are expressly set forth herem. 8. LlmJtatJon or lJabllftv of Sou.rceFIle. SourceFile may rely on and shall suffer no liability as a result of acting or refraining from acting upon any written notice, instruction or request furnished to SourceFile hereunaer which is reasonably believed by SoUI'CeFile to be genuine and to have been signed or presented by a person re8SOfl9.h}y believed by SourceFile to be authorized to act on behalf of the parties hereto. SourceFife shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the rights or powers conferred upon it by this Agreement SourccFile may consult with counsel of its own choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in acco~ with the opinion of such counsel . 9. Indemnification of SourceFlle. Depositor and Beneficiary agree to indemnify and defend SourccFlle and to hold it harmless from and against, any loss, liability or expense incurred by SourccFile, arising out of or in connection with this Agreement, ~ out its duties hereunder, any other claim of liability with respect to the Source Material. In the event suit is brought by any party to this Agreement, or any other party, as.against any other party, including SourceFile, claiming any right they may have as against each other or against SourceFile, then in that event the parties hereto, agree to FY to SourceFile any attorney's fees and cost incurred by SourceFiIe in connection therewith. 10. Record KeeDfn2 aDd Inspection of Software. SourceFiJe shaI1 maintain complete wrinen records of all the materials deposited by Depositor pursuant to this Agreement. During the term of this Agreement, Depositor shall be entitled at reasonable times during nonnal business hours and upon reasonable notice to SourceFile to inspect the r~ords of SourccFile main'tained pursuant to this Agreement and to inspect the facilities of SourceFile and the physical condition of the Source Material. 11. Technical VerincatloD. Beneficiary reserves the option to request SourceFile to verify the Source Material for completeness and accuracy at Bene~s cost ~or agrees to cooperate with SourceFile m the verification process by providing its facilities and computer syst~ms and by permitting SourccFile and at least one employee of BeneficiaIy to ~U! r.c... -......: ~ &c:r-Ae<-..t 3. be present during J Verificati~n cl Source Material I ~f:J1 .,,' 12 ~~tri~oD on Acms to Software. Except as required to carry out its duties hereunder, SourceFile shall not permit any SourceFile employee, Beneficiary or any other person access to the Software except as provided herem, unless consented to in wnting by Depositor. SourceFile shall use its best efforts to avoid unauthorized ~ to the Source Material by its employees or any other person. 13. ~anknmtc:!. Depositor and Beneficiary acknowl~ that this Agrument is an .agreement supplementary to" the I...io:nse Agreement as pI'OVlded in Section 36S (n) of Title 11, United State Code (the "Bankruptcy Code"). Depositor acknowledges that if Depositor, as a debtor in possession or a trustee in Bankruptcy in a case under the ~nbuptcy Code, rejects the License Agreement or this Agreement, Beneficia.ty may elect to retain its rights under the License Agreement and this Agreement as provided in Section 365 (n) of the Bankruptcy Code. Upon written request of Beneficiary to Depositor or the R::ln 1crup~ Trustee, Depositor or such Bankruptcy Trustee shall not intenere with the ri~ts of BenefiClary as provided in the License Agreement and this Agreement, including the nght to obtain the Source Material from SourceFile. 14. Notl~. A.Irt notice or other communication required or permitted under this Agreement shall be in wnting and shall be deemed to have been duly given on the date seIVice is served personally, sent by overnight courier, or five (5) days after the date of mailing if sent registered mail, postage prepaid, return receipt required, and addressed as follows or to such other address or facsimile number as either party may, from time to time, designate in a written notice given in like manner. TO DEPOSITOR: PeopleSoft. Inc. 1331 North California Boulevard Walnut Creek. California 94596 TeJephone:(51 0)-946-9460 Facsimil e:(51 0)-946-9461 Attn:Le~al Department TO SOURCEFILE: SourceFile 50 Crisp Plaza Suite 700 San Francisco, California 94124 Ann: Director of SourceFiJe Telephone: (415) 715-2733 Facsimile: (415) 822-4302 TO BENEFICIARY: As set forth in Exhtbit "C" Schedule of Beneficiaries. 15. Miscellaneous Provisions. (a) Waive!::. Any term of this Agreement may be waived by the party entitled to the benefits thereof, provided that any such waiver must be in writing and SIgned by the party ~ whom the enforcement of the waiver is sought No waiver of any ~ &.o.ww "'-Mr: ~ &.o.ww Aeo ....... 4. - ~~/ di . of the I . of .. of this A___A I . . "" con non, or Iteach any provwon ..~ -..ment, m ~ one or more lIlStAncti, shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy. (b) ModificatIon or Amendmel1j. Any modification or amendment of any provision of this Agreement or termination of this Agreement must be in writing, signed by the parties hereto and dated 5Ubsequent to the date hereof with notification provided to ~re~~~e~. . (e) Govem'l1e Law. This Agreement shaD be governed by and construed in accordance with the laws of the State of California. {d) HeadJn25: Sever8bflitI. Tbe h~ti;ngs ~ at the beginning of the sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used to determine the Construction or interpretation of this Agreement If any provision of this Agreement is held to be invalid, illegal or unenforceableJ the validityJ legality and enforceability of the remaining provisions shaD not in any way be affected or impaired thereby. (e) Further AsSW'8n~. The parties agree to peIform all acts and execute all supplementary instruments or documents which may be reasonably necesscuy to cany out the provisions of this Agreement (f) Entire AJ!reement. This Agreemen~ including the attachments heret~ contains the entire understanding between the parties' and supersedes all previow communicatio~ representations and con~ oral or written, between the parties, with respect to the subject matter thereof. It is agreed and understood that this document and agreement shan be the whole and only agreement between the parties hereto with regard to these escrow instructions and the obligations of SourceFile herein in connection with this Source Code escrow, and shall supersede and ~l any prior instructions. SourccFile specifically directed to follow these instructions only and SourceFile shal1 have no responsibility to follow the terms of any prior agreements or oral understandings. IN WITNEss WHEREOF, the parties have executed this Agreement as of the date first above written. DEPOSITOR SOURCEFll..E FJJeSafe, IDe., 8 ~OrnJa corporatJor \ B 7 r; ('''. . (/ I. . Y:~~-\:.....u.)J....- Name:DL. rV\ ')"tZ..C \+:.iJ~C Title: ;.\.'J:~ \,:\\r Br.~ 1 N~e:RBt.cr ]) h,;~J Tj~ CvnuP. ISO lJaCI:.n.xJ ""-- 'OM v...... 0..: ..... u, Ut3 n.... _ Prfal Due ~ n. Ut3 SOORc:mu '-- ~ ~ '--. ....A 5. '? I - I ~O/ '*' EXHIBIT -A. DESCRIPTION OF SOURCE MATERIAL Source Material Depostts: 1. The current and updated release of PeopleTools 2. WebNet Rev. 4.03 3. E-Notes Rev. For Windows 4. Station Manager for DOS 5. Windows Station Manager S. WEB Parallel Port Driver 6. ... I I q.~) ., EXHIBtT 1r' FORM OF ACKNOWlEDGEMFNT BY BENEFJcaARY The undersigned hereby ~, accepts and agrees to be bound by the tMns of the attached SourceRex Software Soln:e Code Escrow AQreement by and betw8en ScuoeFlIe. Inc., . CaBfornla ~ as Escrow Agent and PeooJeSoft me.. as 0ep0s1t0r. dated November 10. 1993. . Beneficiary agrees to pay SourceFue the then current annual Beneficiarv fees. In the event Beneficiary does not pay the annual Beneficiary fee to SourceFfJe In a timely manner, SourceAJe IhaJJ remove ~ from the 1st of Bene1iciaries under the AQreement and the Beneficiary may only participate in this &greement by ~ all past fees due and 8n)' reasonable adm1nistr8iive ASSessed charge by SourCeflIe. BENEFlCtARy: Signature: . Name: l1tie : Address: TeJephone: FacsimIle: DEPOSITOR: PeooleSott Inc. 1331 North Caftfomia BouJevard Watnut Creek. CA 94596 T eJephone: {51 0)-946-9460 FacsimUe:f51 0)-946-9400 Please send CERTlFlED OR REGISTERED MAIL to: SOURCEFlLE: SOURCERLE 50 Crisp Plaza Suite 700 San Francisco, Cafifomia 94124 Attn: Director of SourceFiIe TeJephone (415) 715-2733 FacsimiJe (415) 822-4302 The following is 8 fist of the Source Material Deposits placed in escrow wtth SourceFHe for Bene1iciary:the current and uodated f"E!lease of PeopleToo~ ~ -....- "-er. ~ -....- '- I A 7. I - I q~) EXHIBIT -C- SCHEDULE OF BENEFICIARIES OF THE SOFnVARE This ExhJbft Intentionally blank as of Effective Date and will be updated from time to time in accordance with section 3 entitled -Acknowledgement of Beneficlaries-, ~ &or..-......: ~ e...-,.. J 8. ." J . I EXHIBIT -0- SOURCEFILE COMPENSATION SCHEDULE ~~/ ~ All fees are paid by PeopleSoft to SourceFile except where noted. . ESCROW SERVICES Initial set-up (paId by PeopleSoft on Novemeber 23, 1993) Rate per Beneficiary (to be paid by Beneficiary to SourceFile) Annual Maintenance Oncludes 2 deposits updates) Includes cfimate controlled storage, certified letters of notification, an-d customized agreements. . . $1000.00 . $200.00/year $1000.00/year AoomONAL SERVICES . . Deposit Updates in excess of two per year Escrow Release Beneficiary Request (to be paid by Beneficiary to Source File) Escrow Release Developer Request Pick-Up and Defivery per product per year $150:00 $600.00 $200.00 $200.00 . . TECHNICAl REVIEWNERIFICATlON (to be paid by Beneficiary to SourceFile) ON-LINE SERVICE Please call for an estimate Please call for an estimate =~=~~ 9. . ..... - ~ N2 38 B 41 12 42 22 42 23 43 D 54 1 59 City of Cleanvater RFP ClarifIcations October 20, 1995 Item Benefits Information Pension Eligibility Date Hazardous duty date Vesting date Adjusted pension eligibility date Pension physical date Pension physical status (pass/fail) Ability to record if veteran's points have been used Ability to administer QUADRO pensions pay to multiple people. QUADRO Alternate Payee Information ~ ~ This functionality is standard in the PeopleSoft Pension Module, or the ' . dates can be added using PeopleTools. i, I 1 I,' fl! ~ The PeopleSoft Federalized version will provide this function. We anticipate some of these features will be rolled into the baseline as needed in the future, however currently will require a modifIcation. Requires PeopleSoft Pension or PeoplcTools modifications. Requires PeopleSoft Pension or PeopleTools modifIcations. If yes (Veterans Preference), track whether specifIc forms Require addition ofY/N field with PeopleTools. are on file (Y/N) Position control number 10, 11, 12 Discipline action points 63 Awards Sent for analysis or rejected Send to department/division/section Sent to name As delivered, position control number is 10 characters. This can easily be expanded to 20 characters if needed once position job and organization function is reviewed. The point scale will need to be added with PeopleTools if the point scale is other than a 1 to 1 ratio of points to action. Additional fIelds will need to be added to track this data. Sent to date Sent to date Rejection reason Rejection date Qualifying award Grand annual award Date for qualifying award Date for annual reward 68 Government regulated (pension Plan) 2 ..... 80 24 UCT-6 Report 100 17 FLSA schedules 103 16 Ability to prevent use of sick leave if hours unavailable. 110 12, 13, 14 FLSA 111 15 FLSA for public safety ~.. " i,1 Requires Pension or PeopleTools mofication. I I..' I, ~ Report can be created with report writer. PcopleSoft agrees to provide the modifIcations required to capture schedule data. PeopleSoft tracks hours, but will allow defIcit as delivered. PeopleTools change will be required to prevent. PeopleSoft 6 will calculate the overtime rates as specifIed, or PeopleS oft Time and Labor will provide functionality and will automate the calculation based on totals. In the meantime, PeopleSoft agrees to provide the PeopleTools modifIcation. Requires PeopleTools changes, which may be handled by the PeopleTools modifIcations provided.