HomeMy WebLinkAboutResolution - 2000-R0103 - Agreement - Firstlogic Inc - Softwate Licensing - 04/06/2000Resolution No. 2000-RO103
April 6, 2000
Item No. 29
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, by and between the City of
Lubbock and FirstLogic, Inc., a software licensing agreement, and related documents.
Said agreement is attached hereto and incorporated in this resolution as if fully set forth
herein and shall be included in the minutes of the City Council.
Passed by the City Council this 6th day of April 2000.
TO CONTENT:
Kevin Walker
Business Li ison Officer
APPROVED AS TO FORM:
illiam de Haas
Competition and Contracts Manager/Attorney
Ccdocs/FirstLogic Licensing Agreement.Res
April 6, 2000
FIRSTLOGIC SOFTWARE LICENSE AGREEMENT
1. PARTIES
Agreement made effective as of the Effective Date last set forth
on the signature page, by and between:
FIRSTLOGIC: Firstlogic, Inc.
Harborview Plaza
La Crosse, Wisconsin 546014071
(608) 782-5000 Fax: (608) 788-1188
Attention: Legal Department
LICENSEE: City of Lubbock
Address: 916 Texas Ave.
Lubbock, TX 79401
Phone/Fax: 806-775-2373/806-775-2373
Attention: Don Lewis
2. GRANT OF LICENSE
Firstlogic hereby grants to Licensee a United States (defined as
the fifty states and the District of Columbia), non-exclusive
license to use, copy and install the Licensed Software subject to
the limitations, terms and conditions of this agreement. As used
herein, the Licensed Software is defined as the computer
programs(s) and documentation related thereto set forth and
specifically listed on Attachment A hereto.
3. LIMITATIONS ON INSTALLATION AND USE
(a) Operating System and Central Processing Unit(s). The
Licensee shall install and use the Licensed Software only upon
the Operating System and Central Processing Unit(s) specified in
Attachment A (hereinafter the Designated CPU) unless the
Designated CPU is temporarily inoperative due to malfunction,
maintenance or modification, in which case the Licensed
Software may be installed and used on a backup or replacement
CPU while the Designated CPU is inoperative. If the Designated
CPU becomes permanently disabled and inoperable, Licensee
will notify Firstlogic in writing of such condition. Firstlogic may
permit by written consent, which consent shall not be
unreasonably withheld, that the Licensed Software remain
installed on the backup or replacement CPU and become the new
Designated CPU.
(b) Uses Authorized. Use of the Licensed Software shall be
limited to use by Licensee in connection with the operation of its
business on any Designated CPU.
(c) Number of Users/Volume Limits. Use of the Licensed
Software shall be limited to either the number of concurrent
interactive users, the volume of annuals records, or database size
as set forth on Attachment A.
(d) Internet Use. Licensee is not authorized to use or install the
Licensed Software on the Internet for any purpose, including but
not limited to, service bureau operations, renting or leasing the
Licensed Software to third parties.
Firstlogic, Inc. January 2000
Resolution No. 2000-ROI03
April 6 ?000, Item �9
(e) Operating System Policy. Firstlogic maintains an Aerating
System Policy which states that Firstlogic will support products
only on operating systems for which the commercial vendor
exists to support it. Firstlogic supports general releases on a set
of specific operating system versions. Firstlogic will inform
licensees of Firstlogic's intent to upgrade an operating system at
least ninety (90) days prior to the actual upgrade. An operating
system will be considered as a candidate for upgrade only after it
has been commercially available a minimum of six (6) months.
Licensees are expected to remain current on the logical upgrade
path of their selected operating system.
Firstlogic reserves the right to decide whether or not it will
support an operating system that falls outside the set of officially
supported operating systems. This decision is solely at
Firstlogic's discretion and the additional cost of support, if any,
will be added to the licensee's Extended Service Plan ("ESP").
In the event an operating system vendor ceases producing new
versions of an operating system, or support for an operating
system becomes commercially unfeasible, Firstlogic reserves the
right to discontinue support for that operating system. In the
event this occurs, Firstlogic will provide the licensee with written
notice of this decision, and a minimum of six (6) months to
transition to the logical substitute for the discontinued operating
system. The licensee will be given the option of amending its
license to reflect the affected portion of the Licensed Software or
terminating that portion of the license. In the event licensee
decides to terminate that portion of the license, no refund of
license or ESP fees will be given by Firstlogic.
(f) Product Life Cycle Policy. Firstlogic maintains a Product
Life Cycle Policy which states that Firstlogic reserves the right to
discontinue any product which becomes commercially unfeasible
to maintain. Firstlogic will inform licensee in writing of
Firstlogic's intent to discontinue an existing product offering at
least six (6) months prior to the actual discontinuation.
In the event Firstlogic discontinues support for a product,
Firstlogic reserves the right to decide on a product -by product
basis how all licensees of the affected product will be expected
to transition to a logical or equivalent substitute. If no logical or
substitute product is available, licensees will have the option of
amending or terminating the portion of their licenses affected by
the discontinuation notice. If licensee terminates the affected
portion of the license, no refund of license fees will be provided;
however, Firstlogic will credit the pro -rated portion of prepaid
ESP fees remaining on the discontinued product.
(g) Audit. Firstlogic shall have the right, during Licensee's
normal business hours and upon reasonable notice, to audit all of
Licensee's relevant computer hardware to determine whether
Licensee has properly accounted its Licensed Software usage to
Firstlogic. Such an audit will be performed by qualified
Firstlogic employees. Licensee shall immediately pay to
Firstlogic any additional license and ESP fees due as determined
by the results of any such audit.
4. OWNERSHIP, REPRODUCTION AND DISCLOSURE
(a) No Transfer of Title. The Licensed Software is licensed, not
sold and remains the property of Firstlogic. Licensee obtains no
rights other than those granted under this Agreement.
(b) Backup Copies. Licensee shall not duplicate the Licensed
Software on any media, except for the purpose of making a
reasonable number of backup copies consistent with Licensee's
regular archive policies. Each and every such copy of the
Licensed Software shall be prominently labeled with all notices
appearing on the original of the Licensed Software, including the
copyright notice "Copyright Firstlogic, Inc. [DATE]." A
reasonable number of user manuals and other documentation
may be made by Licensee.
(c) Reverse Engineering and Modification. Licensee shall not
reverse engineer, disassemble or decompile the Licensed
Software.
5. CONFIDENTIALITY AND PUBLICITY
(a) Definition. Confidential Information shall include the
Licensed Software and any other information which is
designated by label or written notice. Confidential Information
for purposes of this Agreement shall not include: a) any
information which was known to the recipient or its employees
prior to. disclosure; b) any information which comes into
possession of recipient without breach of this Agreement from a
third party who is under no obligation to discloser to maintain
the confidentiality of the information; c) any information which
becomes generally known and available to the public other than
through the fault of recipient, its agents or employees; d) any
information independently developed by the recipient's
employees; or, e) hereinafter disclosed by discloser to a third
party without restriction on disclosure.
(b) Disclosure. Except as expressly permitted by this
Agreement, neither party shall use nor publish nor disclose to
any third party any proprietary or Confidential Information
received from the other party. Disclosure of Confidential
Information is permitted on a need -to -know basis to employees
or independent contractors retained to perform specific computer
services who are subject to a written non -disclosure agreement.
Each party agrees to use the same reasonable precautions to
prevent the unauthorized use or disclosure of confidential
information of the other party's information that it would use to
protect its own similar information. The parties agree that any
violation of Section 5 shall constitute a breach of this License.
The obligation of confidentiality shall survive the termination of
this Agreement.
(c) Publici . Licensee consents to the use of its name as a user
of Firstlogic software in Firstlogic promotional material. This
consent does not include the right to use Licensee's name as a
Firstlogic, Inc. January 2000 2
reference to prospective Firstlogic customers, or to reveal
confidential information with regard to the Licensee's use of the
Licensed Software.
6. TERMINATION OF LICENSE
(a) By Licensee. Licensee may terminate the license at any
time by written notice. If such termination occurs within thirty
(30) days of shipment, Licensee shall receive a full refund of all
license and unearned ESP fees paid.
(b) By Firstlogic. Firstlogic may terminate the license if
Licensee breaches this Agreement and fails to cure such breach
within thirty (30) days after receipt of written notice from
Firstlogic. In the alternative, if Licensee's breach results from its
having exceeded the limitations as to CPU(s), users or volume as
described in Attachment A, then, at Firstlogic's sole discretion,
the parties may negotiate such other terms and conditions as may
adequately compensate Firstlogic for such breach and Licensee's
proposed future use. Nothing in this sub -section 6(b) is intended
to preclude Firstlogic from seeking immediate appropriate
injunctive relief in the event of any violation of Firstlogic's
intellectual property rights.
(c) Return or Destruction of Software. Upon termination of the
license for any portion of the Licensed Software, Licensee shall
immediately cease use of such software and shall, within ten (10)
days following termination, return or destroy the original
Licensed Software and associated documentation to Firstlogic
and shall certify in writing to Firstlogic that all copies of such
software and documentation have been returned or destroyed.
7. WARRANTY AND LIMITATIONS
(a) Limited Warranty. Firstlogic warrants that for ninety (90)
days from the date of shipment the Licensed Software conforms
in all material respects to the specifications set forth in the User's
Manual for the current version of the Licensed Software. This
warranty is expressly conditioned on Licensee's proper
observance of the installation, operation, security and data -
control procedures set forth in the user's documentation included
with the Licensed Software.
EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, FIRSTLOGIC, ON BEHALF OF ITSELF AND
ANY OF ITS SUPPLIERS, DISCLAIMS ANY AND ALL
REPRESENTATIONS, WARRANTIES AND PROMISES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE
LICENSED SOFTWARE, INCLUDING ITS CONDITION, ITS
CONFORMITY TO ANY REPRESENTATION OR
DESCRIPTION, THE EXISTENCE OF ANY LATENT OR
PATENT DEFECTS, AND ITS MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE.
(b) Correction of Defects. As Licensee's exclusive remedy for
any nonconformity or defect in the Licensed Software for which
Firstlogic is responsible, Firstlogic shall attempt, through
reasonable efforts which in no event will be more than sixty (60)
days, to correct or cure such nonconformity or defect. However,
Firstlogic shall not be obligated to correct, cure or otherwise
remedy any nonconformity or defect in the Licensed Software if
Licensee has made any changes whatsoever to the Licensed
Software, if the Licensed Software has been misused or damaged
in any respect, or if Licensee has not reported to Firstlogic the
existence and nature of such nonconformity or defect promptly
upon the discovery thereof.
(c) Limitation of Liability. The cumulative liability of
Firstlogic or its Suppliers to Licensee for all claims related to the
Licensed Software and this Agreement shall not exceed the total
amount of the license fees paid to Firstlogic hereunder. This
limitation of liability is intended to apply without regard to
whether other provisions of this Agreement have been breached
or have proven ineffective.
(d) Consequential Damages. In no event shall either party be
liable to the other for any loss of profits; any incidental, special,
exemplary, or consequential damages; even if the party has been
advised of the possibility of such claims or demands. This
limitation of liability is intended to apply without regard to
whether other provisions of this Agreement have been breached
or have proven ineffective.
(e) Indemnification. Firstlogic warrants that it has the full right
to license the Licensed Software and will defend and indemnify
Licensee against any action brought against Licensee based on
allegations that the Licensed Software' infringes the intellectual
property rights of third parties, including, but not limited to, a
United States trademark, copyright, patent or trade secret. This
warranty is expressly conditioned on Licensee notifying
Firstlogic in writing of any such action or claim within a
reasonable time of learning of same. In the event of such an
action or claim, Firstlogic shall have the following options at its
sole discretion or expense: (i) procure for Licensee the right to
continue to use the software; or (ii) replace or modify the
Licensed Software so that it becomes non -infringing; or (iii)
terminate this license agreement and refund to Licensee any
unearned license or ESP fees on a pro -rata basis, based on a three
(3) year useful life of the software.
Firstlogic shall have no liability under this section (e) for any
infringement or allegation thereof which is primarily based upon
modifications of the Licensed Software made by the Licensee, or
upon a combination of the Licensed Software with other
products not provided by Firstlogic, or Licensee's continued use
of the Licensed Software after being notified of modifications
which would have avoided any claimed infringement.
(f) If suit is brought or an attorney retained by either party to
enforce their terms of, collect any monies due under, or collect
damages for breach of, this License or any contemporaneously
executed agreement related hereto, the prevailing party shall be
entitled to recover, in addition to any other remedy,
Firstlogic, Inc. January 2000
reimbursement for reasonable attorney fees, court costs and other
related expenses incurred in connection therewith.
8. LICENSE FEES
Licensee agrees to pay the license fees set forth on Attachment
A. Firstlogic shall issue its invoice to Licensee upon shipment of
the Licensed Software. Such invoices shall be due and payable
within thirty (30) days.of receipt. All undisputed fees not paid
.within thirty (30) days shall accrue 'interest at the rate of 1-''/z%
per month assessed against the unpaid balance.
9. DELIVERY
Firstlogic shall ship the Licensed Software which is available for
general release at time of order within five (5) business days of
receipt of Licensee's purchase order. The purchase order shall
refer to this Agreement. Licensee shall pay all freight and
shipping costs.
10. SOFTWARE MAINTENANCE
Licensee has the option of obtaining Extended Service Plan
("ESP") services after the first year of ESP service. ESP shall be
provided pursuant to the following terns and conditions. As
used in this Agreement, ESP refers to Firstlogic's software
maintenance and support services.
(a) Services Provided. During any ESP Period, Firstlogic shall
provide the following support services:
(l) Error Correction. (i) Firstlogic shall attempt to correct
documented errors in the Licensed Software. Errors must be
reported to Firstlogic within a reasonable time and must be
repeatable by Firstlogic. Firstlogic shall, as expeditiously as
possible, use its best efforts to correct such errors, or to
provide a software patch or bypass around such error. No
warranty is made that all errors can or will be corrected. (ii)
Licensee shall provide Firstlogic with reasonable direct and/or
remote access to Licensee's equipment, the Licensed Software
and all relevant documentation and records, and shall provide
such reasonable assistance as Firstlogic may request,
including, but not limited to, providing sample output and
other diagnostic information.
(2) Updates. Firstlogic shall provide error corrections,
modifications or minor enhancements (herein called
"Updates") for the Licensed Software when such Updates are
developed or published by Firstlogic and made generally
available to other licensees of the Licensed Software. All
Updates shall become part of the Licensed Software and shall
be subject to the terms of this Agreement between the parties.
Any new products developed or published by Firstlogic will be
offered to Licensee at Firstlogic's then current published rates.
Determination of whether specific software programs are
Updates or new products shall be made solely and exclusively
by Firstlogic.
(3) Telephone Support Service. Firstlogic will be available
weekdays, 8 AM to 6 PM CST, to discuss technical and
operational issues.
(4) Installation. Modifications and Special Support Services.
If Licensee requests modifications to and/or assistance in
installing the Licensed Software, training of personnel, or
other assistance or support not specifically identified above,
Firstlogic may provide such assistance or support at its
standard time, material and expense rates then in effect.
(b) Term of ESP.
(1) Commencement. Firstlogic will begin ESP upon the
Effective Date of this Agreement.
(2) Continuation. Firstlogic will continue to furnish ESP for a
period of one (1) year from the Effective Date. Subject to
termination or notice of non -renewal as set forth below, the
ESP shall thereafter automatically renew for successive one (1)
year terms, provided that the fees for each successive ESP
Period have been pre -paid as provided in Section 10(d).
Licensee understands that no support services shall be
provided in any ESP Period for which the applicable fees and
charges have not been paid. In the event Licensee chooses not
to renew ESP prior to the expiration date of its ESP, the ESP
lapses, and Licensee determines at a later date that it wishes to
renew ESP, Licensee will pay either (a) the then current
license fee or (b) the current ESP fees plus the lapsed period
ESP fees.
(3) Non -Renewal. Either party may elect not to renew for
any subsequent ESP period by giving written notice of its
intent not to renew to the other party not less than thirty (30)
days prior to the end of the current ESP Period.
(4) Default. Either party may terminate ESP at any time if the
other party fails to cure any default in performance of any of
its obligations within thirty (30) days of written notice of any
such default.
(5) License Expiration. ESP Services shall terminate
automatically when Licensee is no longer licensed to use the
Licensed Software.
(c) Licensee Responsibilities.
(1) Installation and Operation. Licensee shall install the
Licensed Software. Licensee is responsible for properly
managing and operating the Licensed Software. Installation,
training and other services are available from Firsdogic under
a separate agreement.
(2) Interface. Licensee is responsible for the interface
between the Licensed Software for which support service is
available and all other software used by Licensee.
(3) Software License Limitations. All software and
documentation provided to Licensee pursuant to ESP services
Firstlogic, Inc. January 2000 4
shall be subject to the same limitation on use, ownership and
disclosure as set forth in Section 4.
(4) Modifications by Licensee. In no event shall Firstlogic be
responsible to correct any errors or damages resulting from
Licensee's unauthorized changes or modifications of the
Licensed Software.
(5) Uninstalled Updates. Support services shall only be
offered with the most current version of the Licensed
Software. Firstlogic shall not be responsible for correcting any
alleged error if the Licensee has failed to incorporate any
Update which has been made available by Firstlogic.
(d) Charges for Maintenance and Support.
(1) Payment. Licensee agrees to pay Firstlogic the charges
for ESP Services as set forth in Attachment A pursuant to
payment terms set forth in section 8 of this Agreement.
Annual ESP Service Fees must be pre -paid before service for
that year shall commence.
(2) Increases. Firstlogic reserves the right to increase the ESP
fees a maximum of ten percent (101/6) for any ESP Period
following the fust ESP Period. Licensee shall be advised of
the proposed increase by written notice given not later than
thirty (30) days prior to the end of the then current ESP Period.
11. TAXES
Licensee shall be responsible for the payment of all applicable
service taxes, sales taxes, and all other taxes, with the exception
of income taxes due from Firstlogic, which may be incurred due
to the licenses, products or services provided pursuant to this
Agreement.
12. SUPERVENING CAUSES
Neither party shall be in default of the terms of this Agreement if
such default is due to a natural calamity, act of government, or
similar causes beyond the control of such party.
13. GENERAL PROVISIONS
(a) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the United States and
the state of the principal place of business of the Licensee,
without regard to its choice of law provisions.
(b) Assi ent. This Agreement shall be binding upon the
parties and their respective successors in interest and assigns,
provided, however, that this Agreement may not be assigned,
without the prior written consent of the other party, by either
party other than to affiliates under the same ownership and
control as the assignor.
(c) Notices. Any notice or consent required to be given
hereunder shall be in writing and will be deemed to have been
properly given if delivered by first class, registered or certified
mail, postage prepaid or courier service to the respective
addresses of the parties as set forth in Section 1 of this
Agreement. Either party may from time to time by written
notice to the other change its address for notification purposes.
(d) No Waiver. Failure by either party to enforce any
provisions of this Agreement will not be deemed a waiver of
future enforcement of that or any other provision of this
Agreement.
(e) Severability. If for any reason a court of competent
jurisdiction finds any provision of this Agreement, or portion
thereof, to be unenforceable, that portion of the Agreement will
be enforced to the maximum extent permissible so as to effect
the intent of the parties, and the remainder of the Agreement will
continue in full force and effect.
(f) Counterparts. This Agreement may be executed in separate
counterparts, each of which so executed and delivered shall
constitute an original, but all such counterparts shall together
constitute one and the same instrument.
(g) Independent Parties. The parties are independent parties and
no partnership, joint -venture, employment or agency relationship
is created.
(h) Modification. No modification or amendment to this
Agreement will be valid or binding unless in writing and duly
executed by the parties.
(i) Licensee Information. Licensee is responsible for providing
Firstlogic with accurate and current information, including, but
not limited to, Licensee's shipping information, points of contact,
password authorization, and any other Licensee information.
Firstlogic shall have no liability for Licensee's failure to provide
such information within a reasonable time of any change.
0) Entire Agreement. This Agreement, including the
Attachments hereto, constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements, oral or written, and all other
communications relating to the subject matter hereof.
14. U.S. GOVERNMENT RESTRICTED RIGHTS
The Licensed Software and documentation are provided with
RESTRICTED RIGHTS. Use, duplication or disclosure by the
Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of The Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs
(c)(1) and (2) of the Commercial Computer Software -Restricted
Rights at 48 CFR 52.227, as applicable, or the current
equivalents of the cited paragraphs. Manufacturer is Firstlogic,
Inc., 100 Harborview Plaza, La Crosse, Wisconsin 54601-4071.
Firstlogic, Inc. January 2000
5
15. EXPORTING RESTRICTIONS
Licensee acknowledges that the Firstlogic products and services,
Proprietary Information and all related technical documents and
materials are subject to export controls under the United States
Export Administration Regulations and related United States
laws. Licensee will (1) comply strictly with all legal
requirements established under these controls; (2) cooperate fully
with Firstlogic in any official or unofficial audit or inspection
that relates to these controls; and, (3) not export, re-export,
divert, transfer, or disclose, directly or indirectly, any Firstlogic
products or services, Proprietary Information or related technical
documents or materials or any direct product thereof to any
country (or any national or resident thereof) which the United
States Government determines from time to time is a country (or
end-user) to which such export, re-export, diversion, transfer or
disclosure is restricted, without obtaining the prior written
authorization of Firstlogic and the applicable United States
Government agencies.
This Software License Agreement was executed to be effective
as of the last date written below. Each person signing below
represents that he or she has read this Agreement in its entirety
including any and all Attachments; understands its terms; is duly
authorized to execute this Agreement on behalf of the party
indicated below by his or her name�atitj agrees on behalf of such
party that such party IX.Me bo 5 d by a terms hereof.
rr}��%/�M��
Print Name:
Title:
Effective Date:
LICE S E: ity f Lubb k
By:
Print Name: WINDY SITTON
Title: Mayor
Effective Date: April 6, 2000
APPROVED BY
FIRSTLOGIC LEGAL
BY., _...
DATE:
APPROVED AST ONTENT:
D'
Kevin Walker, Business Liaison Officer
APPROVED AS TO FORM:
illiam de Haas, Competition and Contracts Manager
Firstlogic, Inc. January 2000 6
ATTACEMENT A
Licensee's Purchase Order Number is for the following Firstlogic
Licensed Software including one copy of the accompanying software documentation:
QTY DESCRIPTION PRICE
1 ACE Library
1 ACE Plus
TOTAL LICENSE FEES $17,618.00
Licensee will install the Licensed Software at the following site(s):
916 Texas Avenue, Lubbock, TX 79401
Licensee has agreed to purchase the following Extended Service Program (ESP) and
Directories:
YEARS DESCRIPTION PRICE
1 ACE Library
1 ACE Plus
1 National Directory
TOTAL ESP FEES $5,524.00
The above listed Licensed Software will be used in the following Operating System
Environment: RS/6000 AIX
utilizing the following Central Processing Unit (CPU): RISC
Licensee is authorized to operate the Licensed Software for:
Database Size: 100,000 Records
Sale is based on: Database Size
Firstlogic, Inc.
January 2000 Version