HomeMy WebLinkAboutResolution - 2002-R0311 - Contract For Software For Parks And Recreation Dept. - Class Software Solutions - 08/29/2002Resolution No. 2002—RO311
August 29, 2002
Item No. 41
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, a Contract for software to
be used for the Parks and Recreation Department from Class Software Solutions Ltd.,
and all related documents. Said Contract 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 29th day of August , 2002.
zei� 41'1;�;*��--
ARC MC OU AL, MAYOR
ATTEST:
C��
Rebecca Garza
City Secretary
APPROVED AS TO CONTENT:
! l�t�Z C%tl!'I
Sharlett Chowning ---G
Information Technology Managing Director
APPROVED AS TO FORM:
4 � /- - �-_
William de Haas
Contract Manager/Attorney
gs/Ccdocs/Contract-Parks&Rec Dept .Software.res
August 20, 2002
AUTHORIZED SIGNATURES
EXECUTED this 29th
CI oftw e So s, L
BY:
TITLE: C- s�
�> L io-sz
Resolution No. 2002—R0311
August 29, 2002
Item No. 41
day of August 2002.
CITY OF LU CK:
4
Marc McDoug , M yor
ATTEST:
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
Sharlett Chowning
Information Technology Manager
APPROVED AS TO FORM:
T
44f"�- 4
William de Haas
Contracts Manager
software solutions
Shaping the future of communities
SOFTWARE LICENSE AGREEMENT
Class Software Solutions Ltd.
Suite 300, 6400 Roberts Street,
Burnaby, BC Canada V5G 4C9
t: 1.800.661.1196 f: 604.432.9708
class@classinfo.com
www.classinfo.com
This document (the "Agreement"), consisting of:
a) this cover page ("Cover Page"),
b) the attached table of licensed Software ("Software Table"); and
C) the attached Terms and Conditions of CSS Software License Agreement (`Terms and Conditions")
constitutes the entire agreement between the undersigned customer ("Customer") and Class Software Solutions Ltd. ("CSS")
whereby, and CSS and the Customer hereby agree that, CSS grants to the Customer the rights and licenses herein described
regarding the installation and use of certain computer software for the prices described in the Software Table, as modified from
time to time according to this Agreement. Any apparent contradiction among this Cover Page, the Software Table and/or the
Terms and Conditions is to be resolved by giving priority to the Terms and Conditions, followed by the Cover Page, and finally the
Software Table.
Payment Terms for Software Licenses
A) All prices are in the currency of the country of installation.
B) Sales and any other applicable tax(es), duties or any other charges in the nature of taxes and duties are not included
unless specifically identified as line items.
C) Prices shown include freight F.O.B. the Customer's offices.
D) No services (i.e. site preparation such as cabling and provision of electricity) are included in costs described herein.
E) The following installment payment schedule is applicable; figures are percentages of total fees and taxes and other
charges re: all Software licensed under this Agreement:
F) CSS will invoice the Customer for the amounts contemplated in paragraph E). All invoices are payable within 30 days
of receipt thereof, and such receipt is deemed to occur as though such invoices were notices sent pursuant to section
9.3 of the Terms and Conditions. Overdue invoices will bear interest at 1 % per month, 12.56% per annum.
The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement.
Full Legal Customer Name Authorized Signatory
Address
Class Software Solutions Ltd.
Authorized Signatory
Date
Date
CLASS Software Solutions Ltd. Software License Agreement 14SEP01 Form (Cover Page) Page 1 of 5
Upon delivery of the Software
25%
30 days after Initial Installation of any Module
65%
90 days after Initial Installation of any Module
10%
F) CSS will invoice the Customer for the amounts contemplated in paragraph E). All invoices are payable within 30 days
of receipt thereof, and such receipt is deemed to occur as though such invoices were notices sent pursuant to section
9.3 of the Terms and Conditions. Overdue invoices will bear interest at 1 % per month, 12.56% per annum.
The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement.
Full Legal Customer Name Authorized Signatory
Address
Class Software Solutions Ltd.
Authorized Signatory
Date
Date
CLASS Software Solutions Ltd. Software License Agreement 14SEP01 Form (Cover Page) Page 1 of 5
software solutions
Shaping the future of communities
SOFTWARE TABLE: Licensed CSS Software Modules
Class Software Solutions Ltd.
Suite 300, 6400 Roberts Street,
Burnaby, BC Canada V5G 4C9
t: 1.800.661.1196 f: 604.432.9708
dass@classinfo.com
www.classinfo.com
Module
Module Unit
Price
No. of Copies of
Module Licensed
Total Module
Cost
illi 12rati o u ` AS , . rT... arse to�
ea . f .. , . . ,5"H"".;:.
i. Program Registration
(Program Maintenance$1,500
10
$15,000
ii. FlexRe(automatically licensed if i is licensed
iii. Membership & Pass Management(Membership Pass Maintenance$1,500
1
$1,500
iv. Facility Booking
(Facili Maintenance$1,500
10
$15,000
V. QuickRez(automatically licensed if iv is licensed
vi. Point of Sale & Site-based Inventory
POS Maintenance$1,500
vii. Sport Scheduling
$1,500
5
$7,500
viii. Facility Viewer
$500
ix. IVR — Registration, QuickRez and Voice Info min. 4 lines
IVR Maintenance$1,500
sm
=F.
X. Randomization
$5,000
A. Affinity
xii. External Interfaces — Banner
$5,000
xiii. External Interfaces — Financial Accounts Payable and General Ledger) $1,500
1
$1,500
xiv. External Interfaces — Deskto Publishing
$1,500
xv. Multilingual Capability
$15,000
xvi. IVR - Registration & Voice Server
$5,000
xvii. IVR — QuickRez Booking & Voice Server
$5,000
xviii. Pa ment Processing Server Credit and, Debit and Electronic Funds Transfer $2,500
1
$2,500
„.
•ser'• 4$ Ys ,
xix. Credit Card and Debit Card Payment Processing
$500
AWN 1 a n- ase 21111111-M ..".. :
s
ul-
xx. Internet Program Registration
xxi. Internet QuickRez Bookings
$5,000
1
$5,000
xxii. Internet Lo in 25 Concurrent Users nrmitted Rer license
$5,000
3
$15,000
nfe�ne _ rakii, a o t sed 'i , 3'3 S
R. I�
xxiii. Internet Program Query
$5,000
1
$5,000
xxiv. Internet Facility Inventory Query and Availability
$5,000
1
$5,000
xxv. MAP
$5,000
,... N Mk
xxvi. System Utilities as defined in section 1.1 r of the Terms and Conditions ♦♦ R
Other
xxvii. Information Management
1 $500
1
$500
xxviii. Membership Pass Validation(automatically licensed if iii is licensed
Total Cost $73,500
CLASS Software Solutions Ltd. Software License Agreement 14SEP01 Form (Software Table) Page 2 of 5
TERMS AND CONDITIONS OF CSS SOFTWARE LICENSE AGREEMENT
1. INTERPRETATION
1.1 Definitions- For the purposes of interpreting this Agreement, the following
terms will have the following meanings:
a) "Agreement" means this Class Software License Agreement,
b) "Client Workstation" means a computer attached to a local- or wide -area
network (including an Intranet) which accesses the Software or Enterprise
Database.
c) "Concurrent Use" means use at the same moment in time to access a given
server computer (of any kind) owned or controlled by the Customer.
d) "Customer" means the legal entity other than CSS entering this Agreement.
e) "CSS" means Class Software Solutions Ltd.
f) "Database Server" means the single server computer upon which the
Enterprise Database is resident.
g) "Enterprise Database" means the MS SQL Server database files containing
customer data (which is owned by Customer) and which is accessed by the
Software.
h) "Initial Installation" means initial installation of any Module on any server
computer owned or controlled by the Customer.
1.2 "Line Items" —Any reference herein to a "line item" or "line items" is a
reference to the appropriate line item(s) of the Software Table.
1.3 Headings - The headings contained in this Agreement are inserted for
convenience and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
2. GRANT OF LICENSES AND LIMITATIONS THEREON
2.1 CSS hereby grants to the Customer a non-exclusive right and license, subject
to this Agreement, to install and/or use the Software as follows:
a) Operating Modules - For every Operating Module licensed pursuant to the
Software Table the Customer may:
i) install the Operating Module upon as many Client Workstations as the
Customer wishes, and
ii) permit Users to use such Operating Modules to access the Enterprise
Database on the Database Server provided that only the number of copies of
any particular Operating Module licensed pursuant to the appropriate line
items may be in Concurrent Use.
I) "Internet Client" means a remote device capable of using the Internet and b)
either Internet Explorer 4.0 or higher or Netscape Navigator 4.7 or higher to
access selected Software on the Internet Server or the Enterprise Database
on the Database Server via the Internet Server.
j) "Internet Server" means a single server computer used by the Customer
which enables access to the Software by individuals using an Intranet or the
Internet, having a minimum configuration as set out in hardware specifications
previously described to the Customer as applicable to the Software to be
installed and used upon it.
k)
q)
13
"IVR Server" means a single server computer used by the Customer for voice -
recognition and telephone -based, rather than computer-based, access to the
Enterprise Database by the Customer's clients, having a minimum
configuration as set out in hardware specifications previously described to the
Customer as applicable to the Software to be installed and used upon it.
"Maintenance Module" means any item of Software shown in the Software
Table in parentheses adjacent to a type of Operating Software.
"Module" means a single type of Software referred to in any particular line
item, such that each such line item refers to one, and only one, Module, with
respect to which one or more licenses may or may not be granted hereby,
except in line item xxvi to which r) applies.
"Operating Module" means any item of Software listed but not in parentheses
in line items i through ix.
"Payment Processing Server" means a single server computer used by the
Customer to process electronic payments from its clients, having a minimum
configuration as set out in hardware specifications previously described to the
Customers as applicable to the Software to be installed and used upon it.
"Software" means computer code and programs, in executable code form
only, including related data files, rules, parameters and documentation, which
have been created or licensed by CSS and are identified in the Software
Table as licensed (or sublicensed) to the Customer by CSS in connection with
this Agreement, and/or which are in the future provided to the Customer by
CSS under any circumstances unless provided under a separate licensing
agreement.
"Software Table" means the table of CSS Software Modules licensed
hereunder, shown on the page of this Agreement immediately following the
Cover Page.
"System Utilities" includes the following Modules: Accounting Processes,
Archive Class Database, Central Login, Class Oracle Database Creator,
Compact Class Database, Copy Class Database, Edit Class Database, Large
Settlement Processor, License Class Modules, Log Accounting Information,
Maintain Class Database, Reset Barcodes, System Maintenance, Upgrade
Class Cash 3.0 Database, Upgrade Class Database and View Components.
"User" means a person who accesses and uses any of the Software to
access, use or affect the Enterprise Database in any manner whatsoever.
C)
d)
e)
Maintenance Modules - For every Operating Module licensed pursuant to the
Software Table for which the Software Table shows a corresponding
Maintenance Module, the Customer may install and use such corresponding
Maintenance Module upon as many Client Workstations as the Customer
wishes, with no limits with respect to the number of units of such Maintenance
Modules which may be in Concurrent Use.
System Features (Server Based Licensing)— Subject to d), the Customer
may install one copy of each Module licensed pursuant to line items x through
xviii on each of as many Client Workstations as the Customer wishes , and
may use and permit use of such Modules by its clients, without limit as to the
number Users or transactions which simultaneously use any such Module.
Exceptions Regarding Unlimited System Feature (Server Based
Licensing)—Any Module licensed pursuant to:
line item xvi ("IVR — Registration & Voice Server) or line item xvii ("IVR —
QuickRez Booking & Voice Server") may be installed as to one copy, on one
IVR Server, per license acquired, and all such Modules together may be in
Concurrent Use by, at most, the number of lines of the "IVR Registration,
QuickRez and Voice Info" Module licensed pursuant to line item ix;
line item xviii ('Payment Processing Server') may be in Concurrent Use by,
at most, the number of lines of the Credit and Debit Card Payment
Processing Module, as applicable, licensed pursuant to line item xix,
System Features (User Based Licensing)— Payment Processing Modules
— For each Module licensed pursuant to line item xix the Customer may:
install such Module upon as many Client Workstations as the Customer
wishes, and
ii) permit Users to use such Modules to pay for products and/or services
available from the Customer through the use of other Modules provided that
only the number of copies of these Payment Processing Modules shown as
being licensed in line item xix may be in Concurrent Use.
f) Internet Access Licenses ( Login -Based) - For every Module licensed
pursuant to line items xx and xxi the Customer may:
I) install one copy of each such Module per license of such Module on one
Internet Server, and
ii) subject to h), permit Users to access and use such Modules to access the
Database Server via Internet Clients connecting via a licensed Internet
Server, provided that at any time, any or all such Modules may be in
Concurrent Use by, at most, the number of licenses of the "Internet Login"
Module licensed pursuant to line item xxii multiplied by twenty-five (25).
g) Internet Enabling Licenses (Non-InternetLogin-Based)— For each Module
licensed pursuant to line items xxiii, xxiv and xxv the Customer may:
I) install one copy of such Module per license of such Module upon an Internet
Server, and
CLASS Software Solutions Ltd. Software License Agreement 14SEP01 Form (Terms and Conditions) Page 3 of 5
ii) permit Users to use such Module to access the Database Server via Internet
Clients connecting via the Internet Server upon which such Module is
installed, without limit as to the number Users or transactions which
simultaneously use any such Module.
h) The Customer hereby acknowledges that the mechanism utilized by the
Software to control the number of Users or Internet Clients which can
simultaneously access and use Modules licensed per line items xx and xxi is
based upon the number of Users who have at any time logged in to the
Customer's computer network using their passwords, such that any User so
logged into that network in a manner that would enable the User to access
and use the Modules listed in those line items will in fact reduce by one the
number of Users able to simultaneously access those Modules, even if such
User is not in fact accessing or using any such Module. The Customer
hereby waives any claim, and releases CSS from any such claim and
from any losses or damages the Customer suffers in relation thereto, in
connection with the inability of the number of Users indicated in line
item xxii to simultaneously access the Modules licensed per line items
xx and xxi, where such inability is the result of Users not actually using
the Modules licensed per those line items absorbing available login
access in the manner described in this provision.
I) Other Licenses (Information Management) — For each Module licensed
pursuant to line item xxvii, the Customer may:
i) install one copy of such Module upon a single Client Workstation per license
of such Module, and
ii) permit Users using such licensed Client Workstation(s) to use such
Module(s), provided that only the number of copies of such Module licensed
pursuant to line item xxvii may be in Concurrent Use, and further only one
copy may be in Concurrent Use on any given licensed Client Workstation.
j) Other Licenses (Membership Pass Validation) — If the Customer has licensed
the "Membership and Pass Management" Module pursuant to line item iii, the
Customer may, at no additional cost, install on as many pass scanning
stations as the Customer wishes and use without limit as to the number of
copies in Concurrent Use the "Membership Pass Validation" Module described
in line item xxviii.
2.2 Backup Copies -Customer will not make any copies of the Software, except
as necessary for the installation permitted hereby and except for one copy of each
Module licensed hereunder for backup purposes, provided that all electronic copies
made include screen displays of CSS's proprietary or intellectual property notices
as recorded on the original copy provided by CSS, and the Customer affixes a label
to each disk, reel or other housing for the medium on which each physical copy is
recorded setting out the same proprietary and intellectual property notices as
appear on the unit of Software from which the copy is made in the same manner as
those notices appear on that original copy.
2.3 Incidental Installation of System Feature Software — CSS will not require any
payment by the Customer for, and hereby releases the Customer with respect to
any damages or claims to or by CSS relating to, unlicensed Modules listed in the
Software Table under "System Features" the Software for which is automatically
installed on any hardware of the Customer in the process of installation of any other
Module(s), provided that the Customer shall not use, and shall not permit any other
person to use, any such Modules.
3. CHARGES AND PAYMENTS
3.1 Software License Fees - The charges and payments applicable to the
installation and use of the Software by the Customer are set out on the Cover Page.
3.2 Taxes and Other Charges —The Customer will pay all shipping & handling
costs and all applicable sales, use, withholding and excise taxes, and any other
assessments against the Customer in the nature of taxes, duties or charges
however designated on the Software or its license or use, on or resulting from this
Agreement, exclusive of taxes based on the net income of CSS.
4. OWNERSHIP OF SOFTWARE
4.1 Warranty of Title - CSS warrants that it has all rights necessary to make the
grant of license herein by having all right, title and interest in and to the Software or
as licensee of all such rights from the owner thereof.
4.2 Retention of Rights by CSS and Customer's Obligations - All proprietary and
intellectual property rights, title and interest including copyright in and to the original
and all copies of the Software and the documentation or any changes or
modifications made to the Software or related documentation will be and remain
that of CSS, or its licensor as the case may be. Without limiting the foregoing, the
Customer will not any time whether before or after the termination of this
Agreement:
a) reverse engineer, disassemble or decompile any Software or prepare
derivative works thereof;
b) copy, transfer, display, or use the Software except as expressly authorized in
this Agreement;
c) disclose, furnish, or make accessible to anyone any confidential information
received from CSS or make any use thereof other than as expressly permitted
under this Agreement, which confidential information is deemed to include the
source and executable code of the Software and all related documentation;
d) contest or do or aid others in contesting or doing anything which impairs the
validity of any proprietary and intellectual property rights, title or interest of
CSS in and to any Software; or
e) obliterate, alter, or remove any proprietary or intellectual property notices from
the Software in its physical or electronic forms.
4.3 Intellectual Property Indemnity by CSS - CSS will defend or settle any claim
made or any suit or proceeding brought against the Customer insofar as such
claim, suit or proceeding is based on an allegation that any of the Software
supplied to the Customer pursuant to this Agreement infringes the proprietary and
intellectual property rights of any third party in or to any invention, patent, copyright
or any other rights, provided that the Customer will notify CSS in writing promptly
after the claim, suit or proceeding is known to the Customer and will give CSS
information and such assistance as is reasonable in the circumstances. CSS will
have sole authority to defend or settle any such claim at CSS's expense. CSS will
indemnify and hold the Customer harmless from and against any and all such
claims and will pay all damages and costs finally agreed to be paid in settlement of
such claim, suit or proceeding. This indemnity does not extend to any claim, suit or
proceeding based upon any infringement or alleged infringement of copyright by
the combination of the Software with other elements not under CSS's sole control
nor does it extend to any Software altered by the Customer either by enhancement
or by combination with product(s) of the Customer's design or formula. The
foregoing states the entire liability of CSS for proprietary and intellectual proprietary
rights infringement related to the Software. If the Software in any claim, suit or
proceeding is held to infringe any proprietary or intellectual property rights of any
third party and the use thereof is enjoined or, in the case of settlement as referred
to above, prohibited, CSS will have the option, at its own expense, to either (i)
obtain for the Customer the right to continue using the infringing item, or (ii) replace
the infringing item or modify it so that it becomes non -infringing, provided that no
such replacement or modification will diminish the performance of the Software.
4.4 Intellectual Property Indemnity by the Customer—The Customer will defend or
settle any claim made or any suit or proceeding brought against CSS insofar as
such claim, suit or proceeding is based on an allegation that any Software licensed
to Customer pursuant to line item xxvii ("Information Management) has been
installed, used or otherwise treated in a manner contrary to the terms of this
Agreement or the intellectual property rights of the provider of that Software,
provided that CSS will notify the Customer in writing promptly after the claim, suit or
proceeding is known to CSS and will give the Customer information and such
assistance as is reasonable in the circumstances. The Customer will have sole
authority to defend or settle any such claim at the Customer's expense. The
Customer will indemnify and hold CSS harmless from and against any and all such
claims and will pay all damages and costs finally agreed to be paid in settlement of
such claim, suit or proceeding.
5. WARRANTY
5.1 Limited Warranty of Software - CSS warrants that when utilized by the
Customer in a manner authorized hereunder, the Software will conform to the
functional specifications set out in the user documentation accompanying the
Software for ninety (90) days from Initial Installation. CSS's sole obligation and
liability hereunder with respect to any failure to so perform will be to use reasonable
efforts to remedy any non -conformity which is reported to CSS in writing by
Customer within that warranty period. In the event CSS is unable to remedy such
non -conformity within a reasonable time using reasonable efforts, CSS may refund
to Customer the license fee pertaining to the Software and this Agreement will be
CLASS Software Solutions Ltd. Software License Agreement 14SEP01 Form (Terms and Conditions) Page 4 of 5
automatically terminated. All warranty service will be performed at service locations
designated by CSS.
6. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
6.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE WARRANTIES
SET OUT IN SECTIONS 4.1 AND 5.1 ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND
WHATSOEVER APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW (IN
CONTRACT OR TORT) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO
THOSE REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION,
OR QUALITY. WITHOUT LIMITING THE ABOVE, CSS DOES NOT WARRANT
THAT ANY SOFTWARE PROVIDED HEREUNDER WILL MEET THE
REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF SOFTWARE
PROVIDED HEREUNDER WILL BE FREE FROM INTERRUPTION OR ERRORS.
6.2 RESTRICTIONS ON WARRANTY - CSS HAS NO OBLIGATION TO REPAIR
OR REPLACE SOFTWARE DAMAGED BY ACCIDENT OR OTHER EXTERNAL
CAUSE, OR THROUGH THE FAULT OR NEGLIGENCE OF ANY PARTY OTHER
THAN CSS.
6.3 NO INDIRECT DAMAGES — WITHOUT LIMITING THE GENERALITY OF
SECTIONS 6.1 AND 6.4, IN NO EVENT WILL CSS BE LIABLE TO THE
CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (IN CONTRACT OR TORT), INCLUDING BUT NOT LIMITED TO
DAMAGES FOR LOST PROFITS, LOST SAVINGS, OR INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES, EXCEPTING LOSS OR DAMAGE
FOR PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING
FROM THE SOLE NEGLIGENCE OF CSS, IN CONNECTION WITH SOFTWARE
PROVIDED HEREUNDER OR IN ANY OTHER RESPECT RELATING TO THIS
AGREEMENT.
6.4 LIMITS ON LIABILITY— DESPITE ANY OTHER PROVISION OF THIS
AGREEMENT, IF, FOR ANY REASON, CSS BECOMES LIABLE TO THE
CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER DAMAGES
FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM.OF
ACTION (IN CONTRACT OR TORT), EXCEPTING LIABILITY FOR PERSONAL
INJURY OR DAMAGE TO TANGIBLE PROPERTY, INCURRED IN CONNECTION
WITH THIS AGREEMENT, THEN:
A) THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES AND
LIABILITY INCURRED BY CUSTOMER AND ALL OTHER PARTIES IN
CONNECTION WITH THE SOFTWARE IN QUESTION WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID TO CSS
FOR THE LICENSE OF THE MODULE OR MODULES WHICH GAVE
RISE TO THE CLAIM FOR DAMAGES; AND
B) IN ANY CASE THE CUSTOMER MAY NOT BRING OR INITIATE ANY
ACTION OR PROCEEDING AGAINST CSS ARISING OUT OF THIS
AGREEMENT OR RELATING TO ANY SOFTWARE PROVIDED
HEREUNDER MORE THAN TWO YEARS AFTER THE RELEVANT
CAUSE OF ACTION HAS ARISEN.
6.5 SEPARATE ENFORCEABILITY - SECTIONS 6.1 THROUGH 6.4 ARE TO BE
CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE INDIVIDUALLY
ENFORCEABLE.
7. TERMINATION
7.1 Termination - This Agreement will terminate:
a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and fails to
remedy the default within 30 days after receiving written notice thereof; and
b) without limiting a), at the option of CSS if the Customer breaches section 3 of
this Agreement
provided that the right of termination will be in addition to all other rights and
remedies available to the parties for breach or default by the other.
7.2 Suspension of Obligations - If either party should default in the performance or
observance of any of its obligations hereunder, then, in addition to all other rights
and remedies available to the non -defaulting party, the non -defaulting party may
suspend performance and observance of any or all its obligations under this
Agreement, without liability, until the other party's default is remedied, but this
section will not permit the Customer to suspend its obligation to make payments
owing in respect of the Software.
7.3 Return of Software • In the event of termination of this Agreement for any
reason whatsoever, Customer will immediately return to CSS all physical copies of
Software delivered by CSS to the Customer or otherwise in the Customer's
possession or control, except as expressly permitted by CSS to destroy, destroy all
physical copies of the Software not returned to CSS, delete all electronic copies of
the Software from its systems, and certify in writing to CSS that such actions have
all been completed. However, despite the preceding sentence, in case of
termination of this Agreement by Customer under section 7.1(a) as a result of
material default by CSS, Customer shall have 180 days from the date of
termination to so return, destroy and/or delete the Software.
8. AUDIT AND MONITORING RIGHTS
8.1 CSS may, upon a minimum of 24 hours written notice to the Customer, attend
upon the Customer's premises and verify that the Software licensed pursuant to this
Agreement is installed and being used only as permitted hereby. Such inspections
may occur a maximum of twice per calendar year, and will be performed only during
the Customer's regular business hours and conducted in a manner so as minimize
to the extent reasonable any interference with the Customers business. Further,
CSS may, using automatic means which do not interfere with the use of the
Software by the Customer or Users other than as described in this provisions,
monitor at any time usage of the Software by the Customer and or its Users,
through monitoring of the number of copies of any particular Module(s) in
Concurrent Use.
9. GENERAL
9.1 Complete Agreement - This Agreement constitutes the complete and
exclusive statement of the agreement between CSS and the Customer relating to
the licensing of the Software, and supersedes all oral or written proposals, prior
agreements and other prior communications between the parties, concerning the
subject matter of this Agreement.
9.2 Force Majeure - Dates or times by which either party is required to perform
under this Agreement, excepting the payment of any fees or charges due
hereunder, will be postponed automatically to the extent that any party is prevented
from meeting them by causes (other than inability to pay) beyond its reasonable
control.
9.3 Notices -All notices and requests in connection with this Agreement will be
given to the respective parties in writing and will be deemed given as of the first
business day of the notified party following the day the notice is faxed or sent via
overnight courier, providing a hard copy acknowledgment of such successful faxed
notice transmission or evidence of such couriering, as applicable, is retained. Notice
may also be deposited in the Canadian or United States mails (depending upon the
location of the party sending such mail), postage pre -paid, certified or registered,
return receipt requested, and addressed to the other party at the address set out on
the face hereof, and receipt of any such notice will be deemed given as of the 3ro
business day of the notified party following such deposit.
9.4 Governing Law -This Agreement and performance hereunder will be
governed by the laws of the jurisdiction where the Database Server is situate
excepting in the case of Louisiana when the laws of California will apply, or in the
case of Quebec when the laws of Ontario will apply. The Customer agrees that the
Software shall be held in confidence by the Customer and shall not be disclosed to
others, except as required by the Texas Public Information Act.
9.5 Non -Assignability - This Agreement is not assignable by the Customer. Any
assignment, purported assignment or attempt to assign by the Customer will be a
material breach of this Agreement and will be void.
9.6 Survival - Sections 4, 6, 7.3 and 9 of this Agreement will survive termination
and expiration of this Agreement.
9.7 U.S. Government Restricted Rights - The Software and documentation are
provided with restricted rights. Use, duplication, or disclosure by the U.S.
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 52.227-19, as applicable. The Contractor/ Manufacturer is Class
Software Solutions Ltd., Suite 300, 6400 Roberts Street, Burnaby, British Columbia,
Canada, V5G 4C9.
w�oa aonware cownons Lia. Software License Agreement 14SEP01 Form (Terms and Conditions) Page 5 of 5