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HTE Inc (1998) H.T.E., INC. SOFTWARE LICENSE AND SERVICES AGREEMENT This Agreement for Licensed Program(s)and related Support Services,subject to the limitations and conditions set forth in this Agreement, as more specifically described in the attached Supplement and Schedule(s), is entered into by and between: H.T.E., Inc. (HTE), a Florida Corporation, with its principal place of business at: 1000 Business Center Drive, Lake Mary, Florida 32746; AND CITY OF RANCHO PALOS VERDES "CUSTOMER", with its principal place of business at 30940 Hawthorne Blvd. Rancho Palos Verdes,CA 90275 HTE and Customer agree that when this Agreement is signed by both parties, all terms and conditions contained in this Agreement will apply to any Licensed Program(s) and/or service(s) offered under this Agreement. HTE will furnish to the Customer by this Agreement: 1. The HTE CitySoftTM Licensed Program(s) listed in the Supplements to this Agreement. 2. Grant of a nonexclusive, nontransferable license to use the Licensed Programs on HTE supplied or approved equipment. 3. Support service(s)as described herein. 4. Modifications, training, conversion and project management services as described herein and listed in the Supplement(s)to this Agreement. 5. The installation of the Licensed Program(s). With respect to the Licensed Program(s),the Customer agrees to accept responsibility for: 1. The installation of any enhancements and/or updates to the Licensed Program(s). 2. Use of the programs to achieve the Customer's intended results. I. DEFINITIONS "Licensed Program(s)" shall mean a licensed data program or set of programs, or routines and subroutines, consisting of a series of instructions or statements in machine readable form and any related licensed program materials provided for use in connection with the program. Unless otherwise provided herein, the term "Licensed Program(s)" shall refer solely to HTE CitySoftTM Licensed Program(s). "Machine"or "CPU" or"Hardware" shall mean computer hardware designated, supplied or approved by HTE for operation of any Licensed Program(s). CitySoft License Agreement 1 RPVD-con-10-7 ver. 5/1/98 10/7/98 1f • i "Source Code" shall mean a copy of the computer programming code in human-readable form and related system documentation,including updates,applicable enhancements,and all pertinent commentary as well as any procedural code such as job control language. "Installation Date"shall mean the date that the Licensed Program(s)is installed/loaded on a designated machine. "Delivery Date" shall mean the date that the Licensed Program(s), is received by the Customer, or no later than ten (10) calendar days after shipment by HTE. For services,the"Delivery Date"refers to the date services are performed. "Acceptance" shall mean that the installed/loaded Licensed Program(s)has gone through the program testing and acceptance period as described in Section VI. "Support Services" shall mean the maintenance and support call services provided to Customer for the HTE Licensed Program(s). II. LICENSE The license granted under this Agreement permits the Customer, subject to the provisions of Sections VIII, IX, X and XII of this Agreement to: a. Use the Licensed Program(s)on the designated Machine(s). b. Copy or translate the Licensed Program(s) in machine readable or printed form to provide sufficient copies to support the Customer's use of the Licensed Program(s)as authorized under this Agreement. c. Transfer the Licensed Program(s) to a back-up CPU to be used when the designated CPU is temporarily inoperable. d. Modify any Licensed Program(s)to form an updated work for the Customer's use, provided that: 1. The Customer supplies HTE with written notification of the modification. 2. The modification is made according to the HTE conventions of the HTE Modification Library and not to the base system. The Licensed Program(s)should not be reverse assembled or reverse compiled in whole or in part. Failure to modify the programs in the manner prescribed may negate the ability to maintain the Licensed Program(s) by HTE and will relieve HTE of any responsibility to provide support services. Any updated work using portions of the Licensed Program(s)that meets the above criteria will continue to be subject to all terms of this Agreement. e. Have access to a copy of the Licensed Program(s)source code. III. TERM This Agreement is effective from the date on which it is signed by both parties and will remain in effect until terminated by the Customer upon one(1)month written notice or by HTE as stated in this section. This Agreement may be terminated by the Customer only when all Licensed Program(s)have been returned to HTE or destroyed. An authorized representative of HTE, upon request,shall be afforded sufficient access to Customer's premises to verify that all use of Licensed Program(s)have been discontinued. Notice of discontinuance of any or all licenses shall not be considered notice of termination of this Agreement unless specifically stated. License(s) granted under this Agreement may be discontinued by the Customer upon written notice, effective immediately, during the testing period described in Section VI. Either party shall be deemed to be in default hereunder thirty(30)days after written notice by a party of the other party's failure to comply in any material respect with any material terms and conditions of this Agreement and such party's failure to cure such breach within such thirty(30)day period or diligently pursue such cure to the extent it is not reasonably feasible to effect a cure within such thirty(30)day period. CitySoft License Agreement 2 RPVD-con-10-7 ver. 5/1/98 10/7/98 w ' Notwithstanding the above, Customer shall be in default hereunder upon written notice immediately if the Customer fails to comply with the proprietary obligations of Section VIII hereof, and within ten (10) days after written notice of breach in the event the breach is due to non-payment by the Customer and Customer fails to cure such breach due to non-payment within such ten(10)day period. Any responsibility of either HTE or the Customer provided under this Agreement that reasonably survives the termination of this Agreement shall not be invalidated due to the expiration, termination or cancellation of this Agreement. Surviving obligations include the obligation to pay for goods or services actually provided,the proprietary obligation of Section VIII,and warranties. IV. HTE SUPPLIED PRODUCT(S)AND/OR SERVICES HTE shall supply the Licensed Program(s) specified in the Supplement(s) in a machine readable form with instructions for installation any enhancements and/or updates to the Licensed Program(s) by the Customer. Standard form options, if applicable, will be provided by HTE. In addition, HTE shall supply related services and/or maintenance, and may supply specialized hardware or other third party products necessary for the performance of certain special features or functions. These services and deliverables, if any, shall be identified and more specifically described in the Supplement(s), and shall constitute the complete list of deliverables provided by HTE. HTE assumes no liability for any hardware or other third party products beyond manufacturers' warranty specified in the Supplement(s). Customer acknowledges that these products are acquired to support the Licensed Program(s)that are included in the Agreement solely for that purpose. V. PRICING AND PAYMENT TERMS All pricing and terms associated with the HTE CitySoftTM Licensed Program(s) and any other HTE products and services are specified in the Supplement(s)to this Agreement. Unless specified to the contrary, prices quoted in the Supplement(s)to this Agreement are valid for ninety (90) days from the date of HTE's acceptance of the applicable Supplement(s). HTE may increase its prices without notice on items not provided for in the Supplement(s). Fees for HTE CitySoftTM Support Services are payable prior to the commencement of such Support Services. Should Customer require Support Services prior to receipt of payment and the contractual start date of such Service, Customer will be billed at the then prevailing hourly rate until payment is received. Fees for support services for any third party products provided for under this Agreement shall be payable to and in accordance with the provisions of the third party Vendor unless otherwise specified in the Supplement(s). Any taxes resulting from this Agreement or activities resulting from this Agreement, including but not limited to sales and/or use tax, will be the responsibility of the Customer. HTE will accept an exemption certificate from the Customer in lieu of taxes if the Customer qualifies for exempt status. Such exemption certificate will need to be provided to HTE upon contract execution. VI. LICENSED PROGRAM TESTING AND ACCEPTANCE Beginning on the date ten (10) days after delivery of the Licensed Program(s) by HTE, the Licensed Program(s) will be available for non-productive use for testing for a period of thirty (30) days. This testing period is to determine whether the Licensed Program(s) functions operate together and whether the Licensed Program(s) meet the Customer's specifications and/or requirements. At any time during the testing period,upon written notice,the Customer may discontinue the Licensed Program(s)and receive full credit or refund for the amount of the license fee. If written notice of discontinuance is not received by HTE prior to the end of the testing period, or if the Customer uses the Licensed Program(s)for other than non-productive use during the testing period,the Licensed Program(s)shall be deemed to be accepted under the provisions of this Agreement. CitySoft License Agreement 3 RPVD-con-10-7 ver. 5/1/98 10/7/98 e . a ' VII. LICENSED PROGRAM SERVICES Training on HTE CitySoftTM Licensed Program(s), if necessary,will be provided for in the Supplement(s)and will be invoiced as incurred at the completion of each training session at the rate specified in the applicable Supplement(s). The Customer understands that the number of training sessions and the number of hours of training vary per application, and are estimated based on HTE's experience in the training of other Customers for the same applications. Additional training can be provided upon request of the Customer at the then prevailing rate per hour. Any training sessions canceled by the Customer after scheduling by HTE may be subject to penalty charges. Such charges would be as provided for in the Supplement(s). Conversion,if necessary,will be provided for in the Supplement(s)and will be invoiced as incurred at the rate specified in the applicable Supplement(s)or at HTE's then prevailing rate per hour. Data must be given to HTE in an IBM compatible format on a specified magnetic media. Data must match data field definition. Input data file clean up shall be the responsibility of the Customer. Additional conversion, if necessary, will be invoiced at the prevailing rate per hour. It is understood that no two systems and file structures are exactly alike and there may be a need for some manual conversion efforts to take place along with the electronic conversion. Modifications, if any, will be provided for in the Supplement(s) and will be controlled by the HTE System Change Request form ("SCR")which will be prepared for the Customer by the HTE Project Manager responsible for that module. HTE will proceed on the SCR when the signed SCR is returned with the Customer's authorization along with appropriate payment as provided for in the Supplement(s). Project Management is strongly recommended by HTE, and will be provided for in the Supplement(s)and will be invoiced as incurred. HTE will provide the Customer with the Support Services listed in a. through e. below for the HTE Licensed Program(s) for such period as may be listed in the Supplement(s), and commencing one hundred twenty (120) days after delivery of the Licensed Program(s). Thereafter the Services will be provided on a year-to-year basis provided the Customer exercises the option and pays HTE's annual support fee. a. Toll free telephone support line;twenty-four(24)hours a day,seven(7)days per week. b. Electronic support. c. Product updates and new releases of the covered Licensed Program(s). d. Response time to calls within approximately two(2)hours of call. e. Error corrections as made. Support requests for the first one hundred twenty(120)days after delivery of the Licensed Program(s) shall be directed to the appropriate HTE project manager or trainer. Upon commencement of the HTE Support Services, telephone support will be provided using a dedicated support telephone number, and the Customer must have Electronic Customer Support installed. Support requests relating, if applicable,to third party hardware or software will be directed to the Vendor of such products unless otherwise provided for in the Supplement(s). Unless otherwise stated herein or in the Supplement(s), HTE shall assume no responsibility for the pricing of, payment to, or provision for support services of any third party Vendors. HTE shall not supply any support services nor be liable for any damages in the event that any portion of the Licensed Program(s)is used on equipment or with software products or software systems other than those supplied or approved by HTE. Customer shall receive written authorization from HTE before attaching to the computer system any equipment not supplied or approved by HTE. Authorization shall not be withheld unless said equipment will cause operational damage to the system, or require undue system support from HTE. Customer acknowledges that the systems supplied by HTE have unique operating properties and are a matched system of components which must not be altered, modified, or tampered with without specific assistance from HTE designated personnel. HTE shall not be liable for any damage or loss of function which results from violating the approved operating environment by personnel not approved by HTE. CitySoft License Agreement 4 RPVD-con-10-7 ver. 5/1/98 10/7/98 • In the event of the failure of any hardware component or other third party product supplied under this Agreement to function or operate in conformance with specifications,HTE shall have no obligation for warranty beyond that of the hardware or other third party manufacturer or that specified in the Supplement(s). VIII. PROTECTION AND SECURITY OF PROPRIETARY MATERIALS The Customer acknowledges that the Licensed Program(s), including the source code, design specifications and associated documentation of the Licensed Program(s), (the "HTE Proprietary Information") constitute proprietary information and trade secrets of HTE and will remain the sole property of HTE. The Customer agrees that it shall not at any time sell, assign, transfer or otherwise make available to, or allow use by, a third party any of the HTE Proprietary Information. The Customer shall hold in confidence the HTE Proprietary Information for its benefit and internal use only by its employees. The Customer further acknowledges that, in the event of a breach or threatened breach by the Customer of the provisions of this paragraph, HTE has no adequate remedy in money or damages, and, accordingly, shall be entitled,without bond,to an injunction against such breach or threatened breach. IX. WARRANTY HTE warrants that for a period of ninety(90)days after acceptance, as provided for in Section VI,the HTE CitySoftTM(and, if applicable the HTE)Licensed Program(s)listed in the Supplement(s)will perform in substantial compliance with the reference documentation supplied by HTE,provided the Licensed Program(s) are used in the proper operating environment. HTE does not warrant that the functions contained in the Licensed Program(s)will meet the Customer's requirement or will operate in the combinations which may be selected for use by the Customer after the ninety (90) day period after the completion of the Licensed Program testing described in Section VI. Any other utility or incidental software distributed by HTE will be on an "AS IS"and"WITH ALL FAULTS"basis without warranty of any kind either expressed or implied. HTE shall be responsible only for the Licensed Program(s)and products as originally supplied and accepted by Customer, and for changes made to the Licensed Program(s) by HTE's authorized representatives. HTE will not be responsible for the consequences of attempts at changes or modifications to the products and Licensed Program(s)made by the Customer or any other unauthorized party. HTE warrants that it has the right to license the HTE Licensed Program(s) listed in the Supplement(s) and that the HTE Licensed Program(s)does not infringe any intellectual property of any third party. HTE agrees to indemnify Customer against expenses, including reasonable attorneys' fees, and liability arising from any claim of infringement related to HTE Licensed Program(s) provided HTE shall have the right to control the defense or settlement of any such claim. If use of the HTE Licensed Program(s) by the Customer is enjoined by any infringement proceeding, HTE shall, if possible, obtain without unreasonable expense the right of License for the Customer to use the HTE Licensed Program(s)or if that is not possible,HTE shall refund to the Customer the license fee(s) paid under this Agreement for the particular Licensed Program(s) that is determined to be infringing. HTE does not make any representations or warranties with respect to intellectual property rights of any third party products. Any such representations or warranties are made solely by the Vendor of such products, and shall not be construed as a warranty with respect to infringement and the like by HTE. HTE MAKES NO WARRANTIES,OTHER THAN AS STATED HEREIN,WITH RESPECT TO THE PARTICULAR LICENSED PROGRAM(S), EITHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. X. COPY AND USE Customer shall have the right to use the Licensed Program(s)in equipment or systems supplied or approved by HTE while this Agreement is in effect. Customer shall have the right to make copies of the Licensed Program(s)and the associated reference documentation for archival and/or backup purposes only.Any copies made by Customer shall be the property of HTE. XI. LIMITATION OF LIABILITY AND REMEDIES To the extent permitted by law, and to the extent provided for under this Agreement, for claims related to bodily injury, death and damage to real property and tangible personal property, HTE shall indemnify and hold harmless the Customer from and against all direct damages and costs of any kind, including but not limited to reasonable attorney fees, arising out of or resulting fromrny ne ligent acts,or negligent omissions of HTE,regardless of whether such claims are caused in part by any Ct o License Agreement 11411's . 5 RPVD-con-10- 7 ver. 5/1/98 _+ 10/7/98 • party indemnified hereunder,but not to the extent that the Customer is legally liable for such damages and costs. In no event, however, will HTE be liable for any consequential damages, including lost profits, savings or reprocurement costs, even if HTE has been advised of their possibility. Except for HTE's obligations to indemnify the Customer under infringement actions, as noted in Sections IX and XII of this Agreement, and claims for personal injury or damages to real or tangible personal property caused by HTE's negligence as noted above, HTE's liability for damages to the Customer for any cause whatsoever under this Agreement, regardless of the form of action,is limited to the total amount of fees paid by Customer under this Agreement for HTE Licensed Program(s)and services,not including any fees associated with HTE project management and related out-of-pocket expenses. In situations involving performance or nonperformance of Licensed Program(s) furnished under this Agreement, the Customer's remedy is(1)the correction by HTE of Licensed Program defects, or(2)if,after repeated efforts,HTE is unable to make the Licensed Program(s)operate as warranted,the Customer shall be entitled to recover damages to the limits set forth in this section. XII. PATENT AND COPYRIGHT INDEMNITY HTE will, at its expense, defend the Customer against any claim that the HTE Licensed Program(s) supplied hereunder infringe a patent or copyright in the United States,Puerto Rico,or Canada,and HTE will pay all costs,damages and attorney's fees that a court finally awards as a result of such claim. To qualify for such defense and payment,the Customer must: a. Give HTE prompt written notice of any such claim,and b. Allow HTE to control,and fully cooperate with HTE in the defense and all related settlement negotiations. The Customer agrees to allow HTE, at HTE's option and expense, if such claim has occurred or in HTE's judgment is likely to occur,to procure the right for the Customer to continue using the Licensed Program(s)or to replace or to modify them so that they become non-infringing. If neither of the foregoing alternatives is available on terms which are reasonable in HTE's judgment, upon written request, the Customer will return the Licensed Program(s) to HTE, and HTE shall refund to the Customer the license fee(s) paid under this Agreement for the particular Licensed Program(s) that is determined to be infringing. HTE shall have no obligation with respect to any such claim based upon the Customer's modification of the Licensed Program(s) or their combination, operation or use with data or programs not furnished by HTE or in other than the specified operating environment. This section states HTE's entire obligation to the Customer regarding infringement. XIII. COPYRIGHT PROTECTION The software and any written documentation associated therewith are protected under the Copyright Laws of the United States. HTE warrants and Customer acknowledges that HTE has the following exclusive rights with regard to the Licensed Program(s): a. To reproduce the Licensed Program(s)in any or all forms. b. To adapt,transform or rearrange the Licensed Program(s). c. To prepare other products derivative of the Licensed Program(s). d. To control the distribution of the Licensed Program(s). Customer agrees not to violate any of HTE's rights or to assist or aid others in doing so. Customer agrees to preserve all copyright and other notices in the Licensed Program(s)and written documentation. XIV. MISCELLANEOUS AGREEMENT PROVISIONS Applicable Law. This Agreement shall be governed by the laws of the State of California. Binding Agreement. The individual signing this Agreement and any Supplement(s) to this Agreement for the Customer warrants that they have been duly authorized to bind their respective principals to all rights, duties, remedies, obligations and responsibilities incurred by way of this Agreement and that the Agreement and any Supplement to the Agreement are a valid and binding obligation of the Customer. CitySoft License Agreement 6 RPVD-con-10-7 ver. 5/1/98 10/7/98 Assignment. This Agreement and the rights,title,and interest may not be assigned or transferred by the Customer without the prior written consent of HTE,which consent may not be unreasonably withheld by HTE. HTE may assign its rights, title and interest by providing prior written notice to the Customer. Successors Bound. The terms and conditions of this Agreement shall extend and inure to the benefit and be binding on the respective successors and assigns of Customer and HTE. Force Majeure. Neither party shall be responsible for failure to have fulfilled its obligations under this Agreement due to causes beyond its control. Severability. If any term or provision of this Agreement or the application thereof to any entity,person or circumstance shall, to any extent be held invalid or unenforceable,the remainder of this Agreement, or the application of such term or provision to entities,persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each remaining term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Notices. Any notice provided for herein shall be in writing and sent by registered or certified mail,postage prepaid,addressed to the party for which it is intended at the address set forth on the first page of the Agreement or to such other address as either party shall from time to time indicate in writing. Any such notice to be deemed to be effective upon receipt or five (5) days from the date of the mailing,whichever occurs first. Headings. Numbered topical headings, articles, paragraphs, subparagraphs or titles in this Agreement are inserted for the convenience of organization and reference and are not intended to affect the interpretation or construction of the terms thereof. Non-Hiring Statement. During the term of this Agreement and for a period of twenty-four(24)months after the termination of this Agreement, the Customer may not offer to hire or in any way employ or compensate any of the employees of HTE or persons who have been employed by HTE within the immediate past twenty-four(24)months without prior consent of HTE Non-waiver. Waiver of any breach or default hereunder shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or of another provision of this Agreement. Arbitration. In the event of a dispute arising under this Agreement,the party raising the issue, within forty-five (45)days of becoming aware of the dispute, shall notify the other, in writing, of the nature of the dispute, and the parties shall attempt to resolve the issue under dispute. It is hereby agreed between the parties that if no such resolution is found then such dispute shall be submitted by the objecting party to binding arbitration in accordance with the provisions of the American Arbitration Association. Any such arbitration shall be conducted by a panel of three(3)arbitrators in a mutually agreeable location under the laws of the State of California. The parties shall endeavor to ensure that the arbitrators are knowledgeable in business information and data processing systems. One (1) arbitrator shall be chosen by each party involved, and the third arbitrator will be mutually agreed upon by both parties. If the parties cannot agree on the selection of a third arbitrator, the two (2) arbitrators previously chosen will select the third arbitrator. The decision and award of the arbitrators will be final and binding and may be registered in any court of competent jurisdiction. Any disputes submitted for arbitration must be submitted within two(2)years from the date of the occurrence or from the date on which the injured party learns of the occurrence,whichever is later. Entire Agreement. This Agreement and any Supplement(s) and/or Amendments to this Agreement constitute the entire Agreement between the parties,and there are no representatives, conditions,warranties, or collateral agreements, expressed or implied, statutory or otherwise, with respect to this Agreement other than as contained herein, and this Agreement shall supersede all previous communications, representations or agreements, either written or oral, between the parties to this Agreement. This Agreement may not be modified, omitted or changed in any way except by written agreement signed by persons authorized to sign agreements on behalf of the Customer and of HTE. CitySoft License Agreement 7 RPVD-con-10-7 ver. 5/1/98 10/7/98 Both parties acknowledge that they have read this Agreement and agree to be bound by the terms and conditions herein. CITY OF RANCHO PALOS VERDES H.T.E.,INC. By: t - _ By: ATTEST � � teI ` r Name: Jacl .Hayward CIT CLERK 11/18/98 Executive Vice President Title Date Title Date IBM and AS/400 are registered trademarks of International Business Machines Corporation. CitySoft License Agreement 8 RPVD-con-10-7 ver. 5/1/98 10/7/98