HomeMy WebLinkAboutReportsNow, Inc. - 2014-09-30 ReportsNo w
Software License Agreement
1. General Terms and Conditions
This AGREEMENT is made on &II 3LI .2019 ("Effective Date") by and between
ReportsNow, Inc., 5299 DTC Boulevard #760, Greenwood Village, CO 80111, USA,
hereinafter referred to as "LICENSOR" and
City of Huntington Beach
2000 Main Street, Huntington Beach, CA 92648, USA,
Hereinafter referred to as "LICENSEE".
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ARTICLE%1..._SCaPE _. d '". ry. . ... Pi Yi!P..... .
This Master AGREEMENT(hereinafter"AGREEMENT'S establishes the general terms and conditions to which the Parties
have agreed in order to facilitate the licensing of Data Access Studio (DAS) software, and the provision of services
and documentation relating thereto (collectively, hereinafter called PRODUCT (whether singular or plural)). This
AGREEMENT contemplates the future execution by the Parties of one or more PRODUCT SCHEDULE(S) (defined below)
although LICENSOR or LICENSEE shall be under no obligation to issue or accept or purchase any PRODUCT SCHEDULE
under this AGREEMENT. PRODUCT SCHEDULES are the ordering documents, which shall be attached hereto and
incorporated herein by reference. Each PRODUCT SCHEDULE granted pursuant to this AGREEMENT shall be
considered as a separate License, which confers upon LICENSEE permission to use the PRODUCT specified therein.
No PRODUCT shall be furnished to LICENSEE by virtue of this AGREEMENT alone but shall require the issuance of an
accepted PRODUCT SCHEDULE. Each PRODUCT SCHEDULE shall specifically reference this AGREEMENT and contain
the: (1) PRODUCT name: (2) License Fee; (3) Support, Maintenance and Enhancement Plan (hereafter"the PLAN")
Fee; (4)the maximum number of users with access rights to the software on the designated server(the"DESIGNATED
SERVER"); (5) model and location of the DESIGNATED SERVER; (6) signatures of authorized representative of both
Parties.
PARTICLE 2—t,RANT = ", „ ,
LICENSOR hereby grants to LICENSEE a non-exclusive and non-transferable License for the use of the PRODUCT.
Each License authorizes LICENSEE the right to use the PRODUCT for the number of Users on the DESIGNATED SERVER
referenced in the PRODUCT SCHEDULE(S). LICENSEE shall use the PRODUCT solely for internal business purposes.
The LICENSEE may not provide the use of the PRODUCT to process data for any entity that the LICENSEE does not
control through ownership. Control is defined to be ownership by the LICENSEE of 50%or greater of another entity.
The charge for the License shall be payable subject to the terms in Article 8 PAYMENT.
ARTICL'E'3_TERWI '
This AGREEMENT shall become effective upon mutual acceptance by LICENSOR and LICENSEE on the latest date signed
on page 7. Each PRODUCT SCHEDULE indicating a separate License conferred under the terms of this AGREEMENT shall
become effective upon acceptance by LICENSOR. Upon payment of the fees specified in the PRODUCT SCHEDULES,
LICENSEE maintains a right to use PRODUCT on the DESIGNATED SERVER subject, however, to the termination
provisions set forth in Article 4 below.
ARTICLE tl ,r-.,_ ql 1 1i 911111111
': —TERMINA
TIONe .. _ _... i. . �.
LICENSOR may terminate this AGREEMENT and any or all licenses hereunder without further obligation or liability (a) if
LICENSEE fails to pay a correctly invoiced amount due hereunder and continues to be delinquent for a period of thirty
(30) days after the last day on which such payment is due; or (b) if LICENSEE commits any material breach of this
AGREEMENT and fails to remedy such breach within thirty (30) days after written notice by LICENSOR of such breach;
or(c) immediately, if LICENSEE violates Article 6 TITLE AND PROPRIETARY INFORMATION. LICENSEE may terminate
this AGREEMENT or a license by providing LICENSOR written notice of its intent to terminate a license sixty (60) days
prior to the effective date of termination.
The termination of any license shall not affect: (1)the obligations of either Party pursuant to any other accepted License,
which shall continue in effect as if no termination had occurred; or(2)the survival of representations contained herein.
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Upon any such termination of a license, LICENSEE shall discontinue the use of PRODUCT and return to LICENSOR the
terminated PRODUCT and all related documentation, but may retain all other licensed PRODUCTS not terminated.
LICENSEE shall certify in writing to LICENSOR that any and all copies of the PRODUCT have been removed from each
DESIGNATED SERVER upon which the PRODUCT may have been installed, and that any copies that have not been
returned have been destroyed. Termination of this AGREEMENT or any License granted hereunder shall not release the
obligations of either Party to this AGREEMENT relating to the treatment of confidential or proprietary information.
- -
kLE`5 CFIANGE'IN DESIGNATED SERVERw,,, :.. .,,_ _ � . _. . 'ii. _'RTIC .I'IV
The LICENSEE may use the PRODUCT only on the DESIGNATED SERVER; provided, however, that the PRODUCT may
be transferred temporarily to another computer if the DESIGNATED SERVER is inoperable due to malfunction, initiation
of a disaster recovery program or for routine maintenance.
LICENSEE may remove product from one DESIGNATED SERVER and install to new DESIGNATED SERVER free of charge.
In this event, LICENSOR will provide a new license key to LICENSEE for the new DESIGNATED SERVER.
ARTICLE 5.—i'TITLE AND PROPRIETARY INFORPAATIAW 'i
LICENSEE has licensed from the LICENSOR the software covered by this AGREEMENT. Title and full ownership rights in
PRODUCT remain with REPORTSNOW, whether modified or not. The LICENSEE acknowledges that it has been advised
by LICENSOR that the PRODUCT and related documentation have been developed by REPORTSNOW as valuable trade
secrets. The LICENSEE agrees that the execution of this AGREEMENT establishes a confidential relationship between the
Parties. The LICENSEE agrees, therefore, to preserve the confidential nature of the proprietary and trade secret
information by retaining and using the PRODUCT in trust and confidence and agrees not to disassemble,reverse compile,
or reverse engineer the PRODUCT, nor permit the use of the PRODUCT by, or disclosure of information relating to the
PRODUCT to, unauthorized persons. LICENSOR agrees to take the same action regarding any information which it
receives from LICENSEE which has been previously designated in writing by LICENSEE as being proprietary to LICENSEE.
LICENSEE shall not itself make, cause or permit any third party to copy the PRODUCT or the accompanying
documentation, in whole or in part, without the prior written consent of LICENSOR, except for a reasonable number of
copies for internal back-up or archival purposes to ensure use on the DESIGNATED SERVER.Any copies of the PRODUCT
made by LICENSEE (except those made by mass backup/archival utilities) shall bear all copyright, trade secret,
trademark and any other intellectual property right notices in the same form as were affixed on the original PRODUCT.
LICENSOR shall have the right to seek a preliminary and permanent injunction against unauthorized copying or use of
the PRODUCT and related documentation, in addition to any other rights and remedies to which it may be entitled.
LICENSOR warrants that the media on which the PRODUCT is furnished will be, under normal use, free from defects in
materials and workmanship. LICENSOR also warrants the PRODUCT licensed hereunder will perform in substantial
accordance with the specifications and descriptions contained in the PRODUCT documentation.
LICENSOR'S entire liability and LICENSEE'S exclusive remedy under this provision will be for LICENSOR to use
commercially reasonable best efforts to remedy defects covered by this warranty, without charge to the LICENSEE,
within a reasonable period of time. LICENSOR AND ITS SUPPLIERS DO NOT WARRANT THAT THE OPERATION OF THE
PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL SOFTWARE DEFECTS CAN BE CORRECTED.
This warranty shall not apply: (1) if the PRODUCT is not used in accordance with the LICENSER'S instructions; (2) to
portions of the PRODUCT that have been modified by LICENSOR(at the LICENSEE'S request) or LICENSEE where such
modifications are not part of the standard PRODUCT; (3) if a defect in the PRODUCT has been caused by any of
LICENSEE'S malfunctioning equipment; or(4) if any other use within the control of LICENSEE results in the PRODUCT
becoming inoperative.
No employee, agent or representative of LICENSOR has authority to bind LICENSOR to any oral representation,
warranties or conditions concerning the PRODUCT. Any written representation, warranty or condition not expressly
contained in this AGREEMENT shall not be enforceable.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS.LICENSOR AND ITS SUPPLIERS
SPECIFICALLY DISCLAIM ANY OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED
WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THIS
AGREEMENT, ANY LICENSE OR ANY PRODUCT PROVIDED HEREUNDER.
ARTICLE 8—PAYMElI
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Upon the execution of this AGREEMENT, LICENSEE shall pay to LICENSOR the charges as designated in the individual
PRODUCT SCHEDULES. Invoice terms are payment in full upon receipt of a correct, uncontested invoice. Balances
due and unpaid after the 30th day from the receipt of the said correct, uncontested invoice are subject to an interest
charge of 1.5%per month.All payments made hereunder are non-refundable except as specifically provided otherwise
in this AGREEMENT.
- i -., ililil vii i P"'^,'ram ihi
All taxes imposed by government either based upon the PRODUCT under this AGREEMENT, its use, or this AGREEMENT
are the obligation of the LICENSEE, whether such taxes are now or hereafter imposed.
gRTICLE 10=SUPPORT. MATNTEN/►PICE ARID AIHANGEMENt PLAN "r! - '
LICENSOR has established a Support, Maintenance and Enhancement Plan (the"PLAN'J. Under the PLAN LICENSOR
shall:
A. Supply code corrections to LICENSEE to correct PRODUCT malfunctions in order to bring such PRODUCT into
conformity with the operating specifications for the most current version of the standard PRODUCT unless such
malfunctions have been caused by the LICENSEE'S modifications of the PRODUCT or unless LICENSEE'S modifications
prohibit or hamper such corrections. Code corrections for PRODUCT developed by LICENSER'S suppliers will be provided
to LICENSOR by the supplier in order to correct PRODUCT malfunctions.
B. Supply prompt email support to LICENSEE in order to help LICENSEE locate and correct problems with the PRODUCT.
If the LIMITED WARRANTY section herein covers the reported problem,there will be no charge to the services provided.
C. Supply, updated PRODUCTS as required to operate under new releases of the operating system and other system
software designed for the PRODUCT.
D. Supply all extensions, enhancements, other changes and related documentation which LICENSOR, at its sole
discretion,deems logical improvements or extensions to the PRODUCT and which LICENSOR furnishes, without charge,
to all other LICENSEES of the PRODUCT who are entitled to such.
Software changes not incorporated into the LICENSER'S standard PRODUCT(hereinafter"Modifications')created for and
at the direction of the LICENSEE by the LICENSOR are not covered under the PLAN. LICENSOR shall own the
technological rights to Modifications.
LICENSEE agrees that the LICENSOR may use and market Modifications,and LICENSEE reserves no royalty or any other
revenue interest in the Modifications, other than the right to use said Modifications.
Fees for the PLAN are documented on PRODUCT SCHEDULES and shall be due according to the provisions of Article 8 -
Payments.
LICENSEE is automatically enrolled in the PLAN for the first year after the Effective Date of the AGREEMENT. After the
first year, 60 days prior to the yearly anniversary of the Effective Date, LICENSOR shall invoice LICENSEE the amount
stated in each attached PRODUCT SCHEDULE for the yearly cost of the PLAN. Each year this contract is in effect,at least
10 days prior to the yearly anniversary, LICENSEE shall provide written acceptance or rejection of the yearly Plan.
Following the first year,LICENSEE has no obligation to purchase the PLAN or any renewal thereto.
LICENSEE shall be entitled to a prorated refund of the PLAN for the year in which termination occurs. LICENSOR reserves
the right to increase its charge for the PLAN to account for inflation as determined by the Consumer Price Index as
published by the US Department of Labor, Bureau of Labor Statistics (www.bls.gov/cpi/). For any increase in PLAN cost
other than inflation, LICENSOR must get written acceptance from LICENSEE 30 days in advance of proposed increase.
LICENSEE may terminate the PLAN at its sole discretion.
The annual maintenance fee will be waived under the following circumstances:
A. LICENSEE terminates software contract and completely uninstalls PRODUCT from all machines within LICENSEE'
enterprise pursuant to the terms in Article 4.
B. LICENSEE upgrades to higher release(FUTURE RELEASE)of JD Edwards Enterprise One(a.k.a. OneWorld,ERP8)and
REPORTSNOW fails to produce a compatible release with FUTURE RELEASE within 120 days of LICENSEE going live on
FUTURE RELEASE.
MCLIE 11-ADDITIONAL-SERNrGES -
LICENSEE may utilize LICENSOR for ongoing consulting services in support of the PRODUCT. These services include,
but are not limited to, staging the DESIGNATED SERVER and installing PRODUCT, training, and ongoing support for
licensed PRODUCTS.
Additional services will be charged separately at the LICENSER'S then current billing rates and invoiced monthly.
RTICLE I 2-J§ERYICE'PROVIS ^
All services provided under this AGREEMENT shall be delivered from Monday through Friday, excluding official
holidays, in accordance with LICENSEE'working hours policy, but shall not commence prior to 08:00 and/or end
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after 18:00 GMT-7:00 (US Mountain Time). In the event LICENSEE and LICENSOR mutually agree in writing and in
advance, work, performed outside regular business hours may be billed at a 25% premium at the option of the
LICENSOR. Changes to the above working schedule shall only be effective after mutual AGREEMENT between
LICENSEE and LICENSOR.
LICENSEE shall reimburse LICENSOR for all pre-approved reasonable travel and living expenses incurred for
delivery of services outside of Denver, Colorado, USA, provided such expenses are consistent with Licensee's Travel
and Expense Policy, which will be provided to Licensor upon request.
ARTICLE 1 —`LIMITATIONADF iLIAB_T�_rry
LICENSOR and its suppliers shall in no event be liable to any person for any damages caused by LICENSEE'S failure to
perform its responsibilities under this AGREEMENT. Nor shall LICENSOR be liable to any person for loss of profits,
goodwill, lost computer time, destruction, damage or loss of data, or any other indirect, incidental or consequential
damages from any cause whatsoever,and regardless of the form of action(law or equity), whether in contract or in tort,
arising out of or in any way connected with the design, manufacture, license, handling, repair, maintenance or use of
the PRODUCTS. In no event shall LICENSOR'S liability exceed the amount paid by the LICENSEE to license the use of
the PRODUCT. LICENSOR shall not be liable for any damages suffered or incurred by LICENSEE, including but not limited
to general, special, indirect, incidental or consequential damages arising from or in connection with the delivery, use or
performance of the PRODUCT.
ARTICLE 1�- INDEMNIFICATION FEAR INFRINGEMENT = 4�- :�
LICENSOR warrants that it has proper authority from REPORTS NOW tog rant this License for the PRODUCT. LICENSOR
warrants that the PRODUCT furnished by LICENSOR will not infringe upon or violate any patent, copyright,trademark,
trade secret or proprietary right which concerns any PRODUCT, when used within the scope of the License acquired by
LICENSEE hereunder. LICENSOR shall indemnify LICENSEE for any claim asserting or involving a patent, copyright,
trademark, trade secret or propriety right violation which concerns any PRODUCT used within the scope of the license
acquired by LICENSEE hereunder. LICENSOR shall indemnify LICENSEE against any loss,cost,expense or liability from
any damages finally awarded against LICENSEE. LICENSOR shall also indemnify LICENSEE against any settlement costs
which are attributable to any claim by a third party against LICENSEE asserting or involving a patent, copyright,
trademark,trade secret or proprietary right violation which concerns any PRODUCT used within the scope of the license
acquired by LICENSEE hereunder. However, LICENSEE must notify LICENSOR in writing within a reasonable time after
LICENSEE first receives written notice of any such claim, action or allegation of infringement. Related to
INDEMNIFICATION FOR INFRINGEMENT proceedings,the LICENSOR reserves the right to exercise full control, including
choice of counsel, and settlements.
In the event an injunction or order shall be obtained against the LICENSEE'S use of any PRODUCT by reason of the
allegations, or if in LICENSER'S opinion the PRODUCT is likely to become the subject of a claim of infringement or
violation of a patent, copyright,trademark, trade secret or other property right of a third party, LICENSOR shall at its
expense:
(a) Procure for LICENSEE the right to continue using the PRODUCT, or (b) Replace or modify the PRODUCT so that it
becomes non infringing but only if the modification or replacement does not adversely affect the specifications for the
PRODUCT, or(c)If neither(a) nor(b)above is practical, remove the PRODUCT from LICENSEE'S SERVER. In the event
of Clause (c) LICENSOR shall issue to LICENSEE a credit for the unamortized portion(using a three(3) year life) of the
License Fee,and thereafter,termination shall proceed in accordance with the terms of Article 4 TERMINATION.
ARTICLE 1S-EXPORT RESTRICTIONS . ..._.._
LICENSEE shall not export or re-export the PRODUCT without the written consent of LICENSOR and/or without the
appropriate United States and/or foreign government license(s).
�ARTCLE 16 ASSIGNMENTS AND TRANSFERS
LICENSEE'S rights in and to PRODUCT, as a result of this license, may not be assigned, sub-licensed, or otherwise
transferred, voluntarily, by operation of law, or otherwise, without prior written approval of LICENSOR. However,
LICENSEE shall have the right to assign the License to use any PRODUCT covered hereunder to a parent with majority
ownership or a Controlled subsidiary of LICENSEE without fee. Any assignee or transferee must agree in writing to be
bound to this AGREEMENT or enter into a new license AGREEMENT with the LICENSOR, before receiving any PRODUCT.
iA"RTICLE`17—pLSPIJTE;RESOLIiTION,MEDIATION''&ARifit►TZbkN
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The Parties agree that every dispute or difference between them, arising under this AGREEMENT, shall be settled first
by a meeting of the Parties attempting to confer and resolve the dispute in a good faith manner. If the Parties cannot
resolve their dispute after conferring, any Party may require the other Parties to submit the matter to non-binding
mediation, utilizing the services of an impartial professional mediator approved by all Parties. If the Parties cannot come
to an AGREEMENT following mediation,the Parties agree to submit the matter to binding arbitration at a location mutually
agreeable to the Parties.The arbitration shall be conducted on a confidential basis. Any decision or award as a result of
any such arbitration proceeding shall NOT include the assessment of costs,expenses and reasonable attorney's fees and
shall include a written record of the proceedings and a written determination of the arbitrators. The Parties reserve the
right to object to any individual who shall be employed by or affiliated with a competing organization or entity. In the
event of any such dispute or difference,either Party may give to the other notice requiring that the matter be settled by
a professional mediator.An award of arbitration shall be final and binding on the Parties and may be confirmed in a court
of competent jurisdiction.
Upon explicit rejection of any other Terms and Conditions,these Terms and Conditions shall be an integral part of all
proposals, AGREEMENTs, or quotations between Parties. Unless otherwise agreed in writing, all provisions of these
General Terms and Conditions shall remain in full force and effect as between the Parties.
These Terms and Conditions shall also apply to all AGREEMENTs with LICENSOR for the delivery of services, in which
third parties are involved.
ARTICCLE- g—Ct:lSibmi 13ST:L .rr, .
LICENSEE consents to the use of its name and logo.
ARTICLIaO--O HEtt ROItISIOFIS ;
LICENSEE agrees that any remedy at law for any breach of this AGREEMENT may be inadequate and that LICENSOR
shall be entitled to injunctive relief NOT including attorneys'fees occasioned by any such breach.
Neither party may assign its rights or obligations under this AGREEMENT except to a subsidiary or affiliate which a party
controls.
No representatives of LICENSOR, other than the President,and in writing, have any authority to make any AGREEMENT
contrary to the terms of this AGREEMENT.
The AGREEMENT consisting of the General Terms and Conditions and the Product Schedule shall be governed by the
laws of the State of California, both as to interpretation and performance. This AGREEMENT contains all the terms and
conditions agreed upon by the parties hereto,and no other AGREEMENTs,oral or otherwise,regarding the subject matter
of this AGREEMENT shall be deemed to exist or to bind any of the parties hereto. All previous communications,
representations,warranties,promises,conditions,or AGREEMENTs of any kind or nature whatsoever shall not be binding
upon the parties unless incorporated into this AGREEMENT directly or by reference.
In case any one or more of the provisions contained in this AGREEMENT shall for any reason be held to be invalid,illegal
or unenforceable in any respect,such invalidity,illegality or unenforceability shall not affect any other provisions thereof
and said AGREEMENT shall be construed as if such invalid, illegal or unenforceable provision had never been contained
herein.
Notice to either Party shall be in writing to the address indicated in this AGREEMENT(or as later amended)and deemed
effective when received, if sent by prepaid certified mail, return receipt requested.
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This AGREEMENT, shall be binding on the heirs, personal representatives, successors,
executors, administrators or assigns of the parties hereto:
City of Huntington Reach RePortsNow, Inc.
LIICENSEE LICENSOR
6,y' Ani.- F- Chris Bruce
Name (Type or Print) Name (Type or Print)
��,�.— President
Title a Title
4
Authorized Signature Date uthorize Signature Date
APPROVED AS TO FORM
8y:
i
dennifor Mm ret ,City Att®mey
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General Terms and Conditions VF14
ReportsNow
Product Schedule
Product Schedule
This AGREEMENT made on t, 30 d ("Effective Date")by and between:
1. ReportsNow,Inc.,S299 DTC Boulevard#760,Greenwood Village,CO 80111,USA
2. City Of Huntington Beach,2000 Main Street,Huntington Beach,CA 92648,USA
In accordance with the General Terms and Conditions of the Software License AGREEMENT("AGREEMENT")
between LICENSOR and LICENSEE entered into on J PlJ�/ .20 i q ,LICENSOR agrees to furnish to LICENSEE
r—
the items listed below:
Product Description Data Access Studio
License Fee(Purchase Price) $12,000.00 USD
Number of Full Users 4
Number of Limited Users 2
Support and Maintenance Plan(Annual Price)* $2,400.00 USD
Product Description„,
Automator
License Fee(Annual Price)** $2,160.00 USD
Product Description
_ �I.,.11. I _ _ _i...,.� .v � �_a_.,,. ,—
Templates
License Fee(Annual Price)** Not Selected
Product Description ReportsNow Academy
Online University(Annual Subscription)** $2,000.00 USD
Deployment Server Name JDEDEP01
Installation Location USA
Authorized Reseller N/A
*20%of gross License Fee.The price includes on-going maintenance and upgrades.Maintenance is prorated the
first year based on annual amount due in concurrence with the billing anniversary date.
**The LICENSOR reserves the right to adjust the annual fees and subscriptions to correspond with up-to-date
purchases. All first year fees are prorated to coincide with the annual software maintenance billing cycle.
***Training must be used within one year of the date of this agreement;subject to cancellation penalties.
This AGREEMENT shall be binding on the heirs,personal representatives,successors,executors,administrators
or assigns of the parties hereto:
City Of Huntington Beach ReportsNow,Inc.
LICENSEE LICENSOR
It,' /ye.•w+ f�uc�tt _ Chris Bruce
Name(Type or Print) Name(Type or Print)
,..4V-C_e7 IAZ=7'DQ. President
Title Title
by
Authorized Signature Date Authorized S natur jDa
PJPR
VIED AS TO FORM
By:
Nsr M ravl City Attomey