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END USER LICENSE AGREEMENTARCHIVE360 END USER LICENSE AGREEMENT RECITALS: WHEREAS, this LICENSE AGREEMENT ("Agreement') is made between (i) Planet Technologies, Inc. ("Licensor"), (ii) City of Clearwater, Florida ("Licensee"); and (iii) Archive360, Inc. (Archive360); WHEREAS, Archive360 is the owner of certain proprietary software known as FastCollect" (the "Software") that Licensor will utilize in connection with a separate contract with Licensee; WHEREAS, Archive360 has authorized Licensor to issue the license to use the Software pursuant to separate agreement and purchase order/quotation; NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS HEREIN AND PAYMENT TO ARCHIVE360 OF THE AMOUNT SET FORTH IN QUOTATION # Q -Q-00728 and Q- 00729 (hereinafter, collectively the "Quote"), THE PARTIES AGREE TO THE FOLLOWING: 1 License to Use Software; Ownership. This provision shall control in the event of any conflict between any other agreement among the Parties. 1.1 License. In consideration, Licensor grants to Licensee, and Licensee accepts from Licensor, a limited, non -transferable, non-sublicensable, non-exclusive license to use the Software in object code format only for Licensee's intemal business purposes. This license is granted for a limited period of time of one (1) year. This license is limited only to the extent of the amount of uncompressed terabytes (TBs) purchased by Licensor from Archive360. Licensor and Licensee shall not grant a sublicense for the use of the Software, disclose access codes or license keys to any other third party, or otherwise permit any third party to use the Software without written consent from Licensor. Licensor and Licensee shall not: (i) decompile, disassemble, or reverse engineer the Software; (ii) modify or create any derivative works (including, without limitation, translations, transformations, adaptations, or other recast or altered versions) based on the Software; (iii) merge the Software with any other software; (iv) copy, sell, publish, sublicense, lease, rent, loan, assign, convey, or otherwise transfer the Software or copies thereof; (v) distribute, disclose or allow use of the Software, in any format, through any timesharing service, service bureau, network or by any other means, to or by any third parties; or (vi) or permit or encourage any third party to do any of the foregoing. 1.2 Ownership. This license does not grant or transfer to Licensor or Licensee any ownership rights in the Software or any and all enhancements, modifications, and updates. Licensee agrees to secure and protect the Software including copies thereof. 1.3 Acknowledgment of Licensed Software and Archive Migration Services Provided. Licensor and Licensee acknowledge that it is aware of the following: (i) the amount of data to be migrated is limited to amount of uncompressed terabytes (TBs) purchased by Licensor; and (ii) Page 1 of 5 CONFIDENTIAL the product support for the Software by Archive360 ("Archive Migration Services") is limited in duration for one (1) year from issuance of a production software license key; (iii) Software and Archive Migration Services are conditioned upon payment to Archive360. Licensor and Licensee understand that the Software and Archive Migration Services provided by Archive360 may be renewed for additional ninety (90) day increments upon request at additional costs. Licensor acknowledges that the amount charged to Licensor by Archive360 is unaffected by any agreement between Licensor and Licensee or decision made by the Licensee to stop, delay, suspend or reduce the size of the migration project. Licensee and Licensor acknowledge that Archive360 has made NO representations that its entire environment will be migrated and/or that Archive360 Software and/or Archive Migration Services shall be provided indefinitely. Licensee acknowledges that the Software may not migrate data that is unable to be retrieved if it is corrupt, missing or otherwise unavailable. Reasonable efforts will be made to recover the data and generate a report as to the probable reasons for any data that may not be recovered. If it is possible to retrieve such unavailable data by way of writing new code, such services may be offered to Licensee at an additional cost for such services. 1.4 Licensor and Licensee acknowledge that Archive360 makes no representations as to how fast any particular migration will be conducted given how many variables are involved and makes no representations as to a particular date when any migration will be completed. Accordingly, Archive360 does not project, estimate or report as to completion dates. Archive360 does provide current throughput reports as to velocity and empirical migration stats. All parties acknowledge that there are many factors that impact performance beyond Archive360's control. All parties to this Agreement acknowledge that system access restrictions, throughput restrictions, batch limits, environment stability, other system operations, downtime, etc., are outside of Archive360's control that impact the completion date. 2 Limitation of Warranties; Limitations of Liability; Indemnity. This provision shall control in the event of any conflict between any other agreement among the Parties. 2.1 LIMITATIONS OF WARRANTIES. Archive360 does not make any warranty (express or implied), except as specifically stated herein. Archive360 does warrant the functionality of its FastCollect software and to use reasonable skill and care in providing services to perform the migration tasks identified in the accompanying Statement of Work (SOW). Archive further warrants its rightful possession, ownership, use and non -infringement of its software. Any further warranties of merchantability and fitness for a particular purpose are expressly excluded. Archive360 does not represent that the operation of the Software will be uninterrupted or error free. Archive360 does not represent that all data in licensee's environment is accessible or able to be migrated. 2.2 LIMITATION OF LIABILITY. Archive360 shall not have any liability to Licensor or Licensee for any direct, indirect, incidental, consequential or special damages, including, without limitation, loss of data, business interruption, or Toss of profit or goodwill. Archive360 shall not have any liability for any actions by any third parties in connection with any services provided or their use, misuse or performance of the Software even if the parties have been advised of the possibility of such damages. To the extent any liability is found on the part of Archive360, the maximum liability for any claim shall not exceed the amount of the purchase price and fees payable to Archive360. Similarly, in the event of any liability found on behalf of the City of Clearwater, such aggregate liability shall be limited to $200,000.00 (USD). 2.3 INDEMNIFICATION. Licensor and Licensee shall waive any direct claim and indemnify, defend, and hold harmless Archive360, Inc., and its officers, directors, employees, attorneys, and agents from and against any and all third party claims, penalties, costs, damages, Page 2 of 5 CONFIDENTIAL losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with the following: (a) Licensee's breach of this agreement or any applicable law; (b) The data migration project is incomplete or data is unable to be migrated as a result of or contributed by problems arising from end user's environment or because data is corrupted or otherwise unable to be migrated. (c) Handling of data that may violate any rule, regulation or standard of end user's industry. 3 Termination of License. If Licensee or Licensor breaches this Agreement, then in addition to any other remedies available, Archive360 may immediately terminate this Agreement and revoke the license granted hereunder upon written notice to the parties. Licensee acknowledges that Licensor has a payment obligation to Archive360 and that failure to pay such obligations can result in a termination of services, support or Software licenses provided to Licensee. In this event, Licensee shall have no claim against Archive360. The provisions of this Agreement shall survive termination of this Agreement. Upon such termination, Licensee shall immediately cease using the Software, delete all copies of the Software in Licensee's possession, and certify that it has deleted all copies of the Software. This termination provision shall control in the event of any conflict between any other agreement among the Parties. The City of Clearwater may terminate this Agreement in the event of a breach of this Agreement by Archive360 in addition to whatever other remedies at law it may have. 4 Export Control. Licensee agrees not to export or re-export the Software in any form in violation of the export control laws of the United States of America (including the Export Administration Regulations promulgated by the U.S. Commerce Department) and any other applicable country. 5 Use of Trademarks. Any reference to, or use of, the Archive360 trademarks must follow Archive360's trademark guidelines and contain appropriate trademark notices. Licensee shall not alter or modify the Archive360 trademarks in any way. Archive360 may identify Licensee as a customer on its marketing materials. This provision shall control in the event of any conflict between any other agreement among the Parties. 6 Term of Agreement. This Agreement commences on the date this Agreement is executed by all parties and the time for maintenance and support begins with issuance of software production license key and terminates as per the Quote. 7 Refund or Payment upon Termination. No refunds are available for Archive Migration Services or Software. 8 Fees & Payment. Payment is due as specified in the Quote. If any invoiced amount is not received by Archive360 by the due date, then without limiting Our rights or remedies, fees and charges will accrue late fees at the rate of 1.5% of the outstanding balance per month. 9 Payment Disputes. If Licensee disputes the applicable fees and charges reasonably and in good faith and are cooperating diligently to resolve the dispute, Archive360 will continue with the project. If the payment dispute is not resolved within two (2) weeks, Archive360 reserves the right to revoke the license production key issued and discontinue services until the dispute is resolved. Page 3 of 5 CONFIDENTIAL 10 Assignment. None of the parties may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns. 11 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. 12 Third -Party Beneficiaries. There are no third party beneficiaries under this Agreement. 13 No Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. 14 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. 15 Governing LawNenue. This Agreement shall be governed by, and interpreted in accordance with the laws of the State of New Jersey, United States of America, without reference to choice -of -law or conflict -of -law principles. Venue for any controversy or proceeding, judicial or otherwise, instituted by either party to this Agreement, shall be laid in the United States in the applicable state or federal courts located in or governing the county in which Licensor's principal place of business is then located. If Licensor has no such U.S. office, venue shall be laid in New Jersey, U.S.A. Each party hereby irrevocably accepts and submits to the exclusive in personam jurisdiction of such court with respect to any such action, suit, or proceeding. If any provision of this Agreement is held invalid by a court, the remaining provisions shall nonetheless be enforceable according to their terms. Licensee shall not assign this Agreement in whole or in part without the prior written consent of Licensor. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. This Agreement constitutes the entire agreement among the parties hereto and contains all the agreements among such parties with respect to the subject matter hereof and supersedes any and all other agreements, either oral or written, between such parties with respect to the subject matter hereof. This Agreement may be amended only with the written consent of each of the parties hereto. This provision shall control in the event of any conflict between any other agreement among the Parties. Page 4 of 5 CONFIDENTIAL SIGNATURES The individual signing this agreement represents that he/she has the requisite authority to sign on behalf of the Party named herein. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of date indicated below their signature. LICENSEE; CITY OF CLEARWATER, FLORIDA By: Littgrix- William B. Horne II City Manager Approved as to form: ePY Gem _:11 n ► -, 1 1--4'4 I I Assistant City Attorney Attest: Rosemarie Call City Clerk LICENSOR: PLANET TECHNOLOGIES, INC. By Name Steve Winter Title VP Date 2/12/18 ARCHIVE3 . IN By Name Robert, DeSteno, CEO Date c,2 /ADO( O( Page 5 of 5 CONFIDENTIAL