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HomeMy WebLinkAboutResolution - 6235 - Agreement - JD Edwards World Solutions Company - Software License, Etc. - 03/25/1999Resolution. No. 6235 Item No_ 18 March 25, 1999 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 Software License, Services and Maintenance Agreement and all related documents between the City of Lubbock and J.D. Edwards World Solutions Company. 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 Council. Passed by the City Council this 25th day of March , 1999 . ATTEST: 1, City Secretary AS TO CONTENT: Sharlett Chowning Information Technology Manager APPROVED AS TO FORM: Linda Chamales Supervising Attorney/Office Practice gs:ccdocsll.D. Edwards World Solutions Cores March 17, 1999 Resolution No. 6235 JDEdwards" Item No. 18 March 25, 1999 ADDENDUM B TO THE One Technology Way SOFTWARE LICENSE, SERVICES Denver, Colorado 80237 AND MAINTENANCE AGREEMENT Customer City of Lubbock AB# 900236 Address 916 Texas Avenue Lubbock, TX 77777 This Addendum B is made by and between J.D. Edwards Worid Solutions Company ("J -D. Edwards") and Customer, a municipal corporation of the State of Texas, in consideration of their mutual promises and subject to its Terms and Conditions. RECITAL: WHEREAS, J.D. Edwards owns certain software; and WHEREAS, J.D. Edwards and Customer have concluded a Software License, Services and Maintenance Agreement of even date herewith as amended ("Agreement"); and WHEREAS, it is necessary to make certain amendments to the Agreement; and WHEREAS, both parties hereto deem the amendments herein to be necessary; NOW, THEREFORE, the parties agree to this Addendum by its Terms and Conditions amends the terms and conditions of the Agreement. THIS ADDENDUM, INCLUDING THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between the terms and conditions of this Addendum and those contained within the Agreement, the terms and conditions of this Addendum shall prevail. All other terms and conditions remain unchanged and are ratified hereby. THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF J.D. EDWARDS AT ITS PLACE OF BUSINESS. Accepted by J.D. Edwards Wor o!-Aions Company and effective as oil'' ti 1'919 19 ,. J.D. E S WO SOLU: ONS CO. By _ � {Authorized Signature) Pale Vvindwxr (Print or Type Name) Vice President & General Manager (Title) By execution, signer certifies that signer is authorized to execute this Addendum on behalf of Customer OMER �� (Aut rized Signature) WINDY (Print or Type Name) S`_TTY OF_LUBBL)CK:,^J4AY3R — (Title) THIS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BYTHEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW. Attorney for J.D. ED}f0''RR�S WORLD SOLUTIONS CO By f/'�~ (Signature Hca ATTEST City of Lubbock Katt, le Darnell. APPROVED AS TO FORM Attorney for CUSTOMER By (Signewre) Linda Ch les, Assistant City Attorney OVER AS NTENTr: ia3 Sharlett C'howning, IT Man er Article V, Section 14(D) of the Software License, Services and Maintenance Agreement, GENERAL, is amended by the following: Replace flie phrase "one (1) year" with the phrase "two (2) years". Article V, Section 14(L) of the Software License, Services and Maintenance Agreement, GENERAL, is amended by the addition of the following new language at the end of the Paragraph: "J.D. Edwards and Customer acknowledge that Customer is a public entity and may be required to disclose the contents of this Agreement as a result of a Public Records Request. Customer may disclose the contents of this Agreement in response to any such request which strictly follows the statutory requirements and procedures governing such request." THIS ADDENDUM, INCLUDING THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between the terms and conditions of this Addendum and those contained within the Agreement, the terms and conditions of this Addendum shall prevail. All other terms and conditions remain unchanged and are ratified hereby. THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED AND EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF J.D. EDWARDS. By execution, signer certifies that signer is authorized to accept and execute this Agreement on behalf of J.D. Edwards. Accepted by J.D. Edwards and effective as of MAR 0 2 19 01999, r J.D. EDW By, Alli6n Winder j (Print or Type name Vice President & General Manager (Tilde) NA ST• Kayt i Darnell, City Secreta y APPROVED AS TO FORM: By execution, signer certifies that signer is authorized to execute this Agreement on behalf of Customer. CUSTOMER (Authorized 5ignat ) WINDY SITTON, MAYOR (Print or Type Name) City of Lubbock — Mayor (Title) APPROVED AS TO CONTENT: Sbarlett Chowning, Information Technology Manager �i.;,oureM;h ant City At- i€1ey CopyhgkwA� J.D. Edwards Confidential 12198 Addendum1298 JDEdmards® ADDENDUM One Technology Denver, Colorado S Customer Cily of Lubbock A/B# 900236 Address 916 Texas Avenue Lubbock TX 77777 This Addendum amends the Software License Services and Maintenance Agreement, {"Agreement') dated Y1 _ , by and between J.D. Edwards ("J.D. Edwards" shall have the meaning set forth in such Agreement) and Customer in consideration of their mutual promises and subject to its Terms and Conditions as follows;. Article II, Section 2 of the Software License, Services and Maintenance Agreement, LICENSE USE, is amended by the addition of the following: "(D) JD Edwards further grants Customer the right to process the data of other governmental agencies resident in the boundaries of Lubbock County." Article II, Section 2 of the Software License, Services and Maintenance Agreement, LICENSE USE, is amended by the addition of the following: "(E) Customer may provide for disaster recovery services on a computer system provided for such purpose by a third party organization. The Software loaded upon a disaster recovery system will only be operational, other than for disaster recovery test purposes, in case of disaster conditions and inoperability of the Customer System(s). Customer agrees to cease using the Software on the disaster recovery system immediately upon restoration of the Customer System(s) to proper operating condition. Customer agrees to provide J.D. Edwards an original of the J.D. Edwards Non -disclosure Agreement executed by the third party organization and notice of the location, computer type, and model and serial number (if applicable) of the cpu(s) on which the Licensed Products will be installed. Customer agrees to be fully responsible to J.D. Edwards for all damages for any unauthorized use, disclosure, or duplication of the Software resulting from its possession by the third parry organization." Article V, Section 4(A) of the Software License, Services and Maintenance Agreement, WARRANTIES, is amended by the following: Replace the phrase "six (6) months" with the phrase "nine (9) months". Article V, Section 9 of the Software License, Services and Maintenance Agreement, ARBITRATI©N, fourth sentence, shall be deleted in its entirety and amended as follows: "The location of the arbitration hearing will be in Lubbock, Texas." Copyright 1998 3.1D. Edwards World Source Company Page 1/2 12/98 Addendum1298 J.D. Edwards Confidential ADDENDUM E TO SOFTWARE LICENSE, SERVICES AND MAINTENANCE AGREEMENT Terms and Conditions Article V, Section 9 of the Software License, Services and Maintenance Agreement, ARBITRATION, shall be deleted in its entirety and replaced with the following: "J.D. Edwards acknowledges that Customer is a municipality of the State of Texas and that this agreement and all other documents, agreements and contracts existing between the parties hereto, shall be governed by the laws of the State of Texas and construed accordingly. In accordance with the provisions of Section 171 of the Texas Civil Practice and Remedies Code, J.D. Edwards and Customer agree to submit any controversy, except actions arising under the copyright provisions of Title 17 of the U.S. Code, current, or hereinafter arising, as a result of the existing contracts or documents executed by the parties hereto, to arbitration and the award of such arbitrators shall be final subject to the limited right of appeal as set forth in Section 171.054 of the Texas Civil Practice and Remedies Code. The place of arbitration shall be Lubbock, Texas, and each party hereto shall appoint one arbitrator and the two, so appointed, shall select a third arbitrator. Each arbitrator shall be familiar with the software industry and no arbitrator shall be or have been employed by or a consultant to either party. The procedural rules of the American Arbitration Association shall apply to any arbitration had between the parties hereto." Article V, Section 14(D) of the Software License, Services and Maintenance Agreement, GENERAL, second sentence, shall be deleted in its entirety and replaced with the following: "J.D. Edwards acknowledges that limitations do not run against the Customer according to Texas statutes Civil Practice and Remedies section 16.061, and for this reason among others, J.D. Edwards and Customer have agreed to address differences arising by and through their business relationship through arbitration as above set forth." Article V, Section 14 of the Software License, Services and Maintenance Agreement, GENERAL, shall be amended by the addition of the following: "(0) THIS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BY THEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW." Article V, Section 14 of the Software License, Services and Maintenance Agreement, GENERAL, shall be amended by the addition of the following: "(P) Customer waives its rights under the Deceptive Trade Practices - Consumer Protection Act, Section 17.41 et seq., Business & Commerce Code, a law that gives consumers special rights and protections. After consultation with an attorney of Customer's own selection, Customer voluntarily consents to this waiver, Customer acknowledges that it enjoys an equal bargaining power to that of J.D. Edwards in this transaction and that it is represented by legal counsel in acquiring any materials or services under this Agreement." City of Lubbock Page 2 of 1 Confidential jDEdmards' Software License, Services and Maintenance One Technology Way Agreement ("AGREEMENT") Denver, Colorado 80237 Customer City of Lubbock AIB# 900236 Address 916 Texas Avenue Lubbock,TX 77777 Customer is a O corporation or I17 municipal aoverrment having its principal place of business at 916 Texas Avenue Lubbock, TX ("Customer'); J.D. Edwards World Solutions Company, ("1.D. Edwards"), a Colorado corporation, markets, and supports certain software applications licensed hereunder as "Licensed Products' The Licensed Products are licensed by J.D. Edwards from J.D. Edwards World Source Company, a Colorado corporation, having its place of business at the above address ("J.D. Edwards Source"); J.D. Edwards and J.D. Edwards Source are owned by J.D. Edwards & Company, a Colorado corporation, having its place of business at the above address ("J.D. Edwards Company"). ARTICLE i. DEFINITIONS The following terms shall mean'. Afftliate(s) Those entities under common control and ownership of the entity first identified as the Customer above, such common control and ownership being defined as the direct or beneficial ownership of a voting interest of at least fifty percent (50%) or the right or power, directly or indirectly, to elect a majority of the Board of Directors, or the right or power to control management. Confidential Information Information when presented in printed, written, graphic or photographic or other tangible form marked as "Confidential", "Proprietary" or "Discloser Private" by the Discloser, and, when presented in oral form, recorded as written minutes or notes of such oral presentations, which minutes or notes must be so marked. Customer The entity first identified as the Customer above and its Affiliates. Developed Software Custom modifications to the Licensed Products developed by J.D. Edwards for Customer under Article III of this Agreement. Any source and object code for such Developed Software, the media in which the programs are delivered and related documentation is included. Designated Processor The computer processing unit(s) (CPUs) identified in an Attachment to this Agreement or a written notification as described in Article II, Section 2(C). Discloser The party disclosing Confidential Information. License Fee The fee defined in Article V, Section I2(A). Licensed Product(s) The computer programming code, including source and object code, for the software programs identified as Licensed Products in each Attachment to this Agreement, any Software Updates, the media in which the programs are delivered, and the associated documentation (including Published Product Specifications). Certain operations control and utility programs may be provided in object code only. Period of Coverage The time period during which the Maintenance services shall be available under this Agreement. The initial Period of Coverage begins upon shipment of the Licensed Products to the first designated site. Published Product Specifications All on-line help material included within the Licensed Products and all of the user, technical, and training guides (in whatever media) associated with the Licensed Products, as they may exist from time to time. Recipient The party receiving Confidential Information. Software Updates Program updates (including cumulative releases containing corrections to the Licensed Products) and new system versions and releases provided during the Period of Coverage. Support Line includes unlimited telephone support during normal Support Line hours, including research time performed by the Support Line staff. It does not cover training, set-up of hardware or software, and programming consultation. ARTICLE It. SOFTWARE LICENSE (-LICENSE-) I. LICENSE GRANT In consideration Of Customer's promises contained in this Agreement, J.D. Edwards grants to Customer, and Customer accepts, subject to the terms and conditions set out in this Agreement, a non-exclusive and non -transferable perpetual limited license to use the Licensed Products indicated in the Attachments which may be executed from time to time by the parties and which shall then be attached to this Agreement and shall become a part hereof. J.D. Edwards represents that it possesses all rights and interests in the Licensed Products necessary to enter into this Agreement. 2. LICENSE USE (A) Customer shall use the Licensed Products only on the Designated Processor(s) identified in Attachments attendant to this Agreement or identified in writing as provided pursuant to subsection (C) of this section. Customer shall not copy the Licensed Products or allow their use by others without the written permission of J.D. Edwards except for Customers production, backup, archival, and in-house disaster recovery purposes. Customer will reproduce and include the copyright, trade secret or other restrictive and proprietary legends from the original on all copies. All copies will be subject to the terms of this Agreement. The Licensed Products may be used only by Customer, and not for the benefit of any third party, including but not limited to, commercial timesharing or service bureau or other rental or sharing arrangements. The Licensed Products may be used only in the country in which they are first installed and may only be moved to another country with the prior written permission of J.D. Edwards. (B) Customer shall not: (i) reverse engineer any part of the Licensed Products, provided, however, that if the Licensed Products are located in a Member State of the European Community such activities shall be permitted solely to the extent, if any, permitted by Article 6 of the Council Directive of 14 May 1991 on the Legal Protection of Computer Programs and any implementing legislation therefor; (ii) distribute, sell or otherwise transfer any part of the Licensed Products; and (iii) remove the patent, copyright, trade secret or other proprietary protection legends or notices that appear on or in the Licensed Products. (C) Customer shall notify J.D. Edwards in writing of any model change to or change in location of a Designated Processor. 3. CUSTOMER'S CHOICE OF DESIGNATED PROCESSOR Sizing is the process of estimating the amount of computer equipment and types of hardware and software features needed to execute the Licensed Products on the Designated Processor under particular circumstances and to achieve certain performance goals. J.D. Edwards will perform a sizing only upon Customer's request and using the Customers own data and estimates. Customer shall have all responsibility for the choice of the Designated Processor, its features, and the use of the Licensed Products to achieve any performance goals, WiTH RESPECT TO THIS SECTION, J.D. EDWARDS MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTA131LITY OR FITNESS FOR A PARTICULAR PURPOSE. J.D. EDWARDS ALSO MAKES NO WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE DESIGNATED PROCESSOR OR AS TO THE PERFORMANCE OF THE LICENSED PRODUCTS ON THE DESIGNATED PROCESSOR TO THE EXTENT SUCH PERFORMANCE IS RELATED TO THE ADEQUACY OR CAPACITY OF THE DESIGNATED PROCESSOR. ARTICLE Ill. SOFTWARE SERVICES ("SERVICES") J.D. Edwards provides Services on the following terms and conditions: I. SERVICE PROVISION (A) J.D. Edwards will provide Services, at Customer's request as specified on Attachment S, or as outlined in a engagement letter, scope of work, or exhibit, attached hereto or mutually agreed to after execution of this Agreement. (B) J.D. Edwards' estimates and time schedules are realistic but not absolute. J.D. Edwards will use reasonable efforts to perform the Services according to its estimates and time schedules but causes beyond J.D. Edwards' control may cause delays in implementing the Services. Changes to Customer's business plans or practices or alterations made to specifications may cause delays in completing the Services. (C) In developing estimates and time schedules, J.D. Edwards considers all its available consultants, regardless of location and including J.D. Edwards' subcontractors. J.D. Edwards also plans that its consultants will work as much as possible at J.D. Edwards' locations; therefore, J.D. Edwards' consultants may perform billable work for Customer even though they are not at Customers locations. (D) J.D. Edwards grants to Customer a non-exclusive, perpetual license to use any Developed Software developed under this Article subject to the same terms and conditions of Article lI ofthis Agreement. Customer and J.D. Edwards agree that Developed Software provided to Customer shall not be a "work made for hire". (E) Customer acknowledges that the Services can be obtained from vendors Other than J.D. Edwards and that Customers decision to purchase such Services from J.D. Edwards was made independently of Customers decision to license J.D. Edwards' Licensed Products. 2. MANAGEMENT CONTROL AND RELATIONSHIP OF PARTIES (A)Customer and J.D. Edwards may mutually agree upon the key personnel to be assigned by each party to perform the Services under an engagement letter, scope of work, exhibit or other written amendment. (B) Each party shall give written notice to the other party of the persons it shall assign from time to time to perform the Services hereunder. Although each party agrees to minimize the turnover of its personnel assigned to the project, it is agreed that each party shall give written notice to the other party of any changes in personnel assigned to perform the service hereunder. (C) Either parry may request at any time the removal of any individual performing Services if that party: (i) believes that individual is not qualified to perform the Services or does not meet appropriate professional standards; and (ii) previously provided the other party with written notice of the problem and a reasonable opportunity to remedy the situation, considering the gravity and nature of the problem, Replacement personnel, if any, must have sufficient qualifications. Page 614 7197 LCMST732 AGREEMENT (D) Customer's project team will provide the decision making and direction required to implement the J.D. Edwards software. This includes, but is not limited to, the creation of detailed project plan and the scheduling of internal and external resources. J.D. Edwards consultants will work with Customer to implement such plan under the project team's direction. 3. J.D. EDWARDS PERSONNEL AND OBLIGATIONS (A) J.D. Edwards does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer's business or operations. J.D. Edwards has the sole tight and obligation to supervise, manage, contract, direct, Procure, perform or cause to be performed all work to be performed by J.D. Edwards, except as otherwise provided in this Agreement. (B) Customer will inform and J.D. Edwards will comply with all reasonable workplace standards and policies, applicable to Customer's employees, while J.D. Edwards personnel are physically located at Customer's premises. (C) J.D. Edwards may subcontract the performance of any of the Services or Training. J.D. Edwards shall be responsible for all performances under this Agreement by its subcontractors as if they were J.D. Edwards' employees. For the purposes of this Agreement, references to '7.D. Edwards' personnel" or similar words shall be deemed to include any subcontractor or any subcontractor's personnel. ARTICLE IV. SOFTWARE UPDATES/SUPPORT LINE (-MAINTENANCE-) I. MAINTENANCE SERVICES (A) Maintenance includes the Software Updates and Support Line services. Maintenance is offered by J.D. Edwards for only the Licensed Products under the Software License Agreement and its Attachments licensed for use on the Designated Processor(s) for which J.D. Edwards has expressly agreed to offer a warranty under Article V, Section 4(A) of this Agreement. Customer may not elect to exclude any of the Licensed Products from the Maintenance services during the Period of Coverage. If the Licensed Products are being used in a client/server or Configurable Network Computing environment, Customer agrees to make a reasonable effort to establish and maintain an internal competency center or help desk to assist in coordinating the Maintenance provided under this Agreement by providing a central point of contact with the J.D. Edwards Support Line.(B) Unless canceled by either party by written notice no less than thirty (30) days prior to the end of the Period of Coverage, the Period of Coverage for Maintenance shall automatically extend for one (1) year at J.D. Edwards' then current prices. (C) Support Line and Software Update services shall be provided in accordance with J.D. Edwards' policies in effect at the beginning of each annual renewal of the Period of Coverage. Fees for reinstatement of lapsed Maintenance services shall be charged in accordance with J.D. Edwards' policy for reinstatement fees in effect on the date of such reinstatement. (D) All software or data delivered by the Support Line shall become part of the Licensed Products. (E) Customer is responsible for the installation of upgrades from one release or version to the next of the Licensed Products. ARTICLE V. GENERAL 1. PROPRIETARY RIGHTS (A) The Licensed Products and Developed Software provided under this Agreement have substantial monetary value and are proprietary to J.D. Edwards Source, The Licensed Products may include copyrighted works and trade secrets, and may include Licensed Products for which a patent has been applied for or issued. The Licensed Products may also include copyrighted and proprietary material of third parties for which J.D. Edwards and J.D. Edwards Source has been granted a right to use and distribute, J.D. Edwards Source and any third party suppliers shall retain ownership of all rights, title and interest to its Licensed Products and all versions thereof. All enhancements and modifications made by J.D. Edwards which are provided under the warranty or Software Update provisions of this Agreement will remain proprietary to J.D. Edwards Source and are considered a part of the Licensed Products under this Agreement. The Licensed Products and Developed Software bear a copyright legend that in no way reduces the trade secret, proprietary, and/or confidential nature of the Licensed Products or Developed Software. (B) Upon knowledge of any unauthorized possession or use of, or access to, any Licensed Products and Developed Software, Customer shall notify J.D. Edwards immediately. Customer shall promptly furnish J.D. Edwards with full details of such situation and assist in preventing any recurrence thereof and cooperate at J.D. Edwards' expense in any litigation or other proceedings reasonably necessary to protect the rights of J. D. Edwards' and J.D. Edwards Source. (C) THE LICENSED PRODUCTS CONTAIN SOFTWARE PROTECTION PROCEDURES. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH SOFTWARE PROTECTION PROCEDURES WILL LIMIT ACCESS TO THE LICENSED PRODUCTS AND ANY DEVELOPED SOFTWARE OR COMPLEMENTARY PRODUCTS. The function of the software protection procedures is documented in J.D. Edwards Source's Published Product Specifications. J.D. Edwards represents that all software protection procedures will only limit access to the Licensed Products and will not destroy any of Customers programs or data. Further, if the software protection procedures have been enabled when there is no unauthorized use by Customer, J.D. Edwards will, on a highest priority basis, assist Customer in returning to normal operations at no charge to Customer. 2, RIGHT TO MODIFY Customer has the right to modify the Licensed Products and the Developed Software without the consent of J.D. Edwards. Modifications to the Licensed Products made by Customer, its employees or third party agents (and not made by J.D. Edwards) shall be the property of Customer. J.D. EDWARDS MAKES NO WARRANTY, EXPRESSED OR IMPLIED, REGARDING ANY MODIFIED PORTIONS OF THE LICENSED PRODUCTS AND THE DEVELOPED SOFTWARE and that no modifications, including the Developed Software, shall reduce J.D. Edwards Source's ownership of the Licensed Products or the Developed Software. 3. MUTUAL NONDISCLOSURE Pursuant to this Agreement, each Party may, from time to time, furnish the other party to this Agreement with certain Confidential Information which includes, but is not limited to, the Licensed Products and Developed Software. Recipient will use the same care to avoid disclosure, publication or dissemination of such Confidential Information as it uses with its own similar confidential information which it does not wish to disclose, publish or disseminate but such standard of care shall in no event be less than a reasonable standard of care. The Confidential Information, including any TRADE SECRET, CONFIDENTIAL and/or PROPRIETARY information contained therein is not to be disclosed to any persons other than the employees of Recipient, and consultants or agents of the Recipient (if any) who have a need to know and who have executed a nondisclosure agreement substantially in the form of this Section of the Agreement Prior to such disclosure. A copy of such executed nondisclosure agreement shall be supplied to either party to this Agreement upon request. The disclosure of Discloser's Confidential Information does not grant to the Recipient any license or rights to any trade secrets or under any patents or copyrights, except as expressly provided by the licenses granted in this Agreement. The obligations of Recipient with respect to any particular portion of Confidential Information shall tenninate or shall not attach, as the case may be, when any of the following occurs: (i) It was in the public domain at the time of Disclosers communication thereof to Recipient. (ii) It entered the public domain through no fault of Recipient subsequent to the time of Disclosers communication thereof to Recipient. (iii) It was in Recipient's possession free of any obligation of confidence at the time of Disclosers communication thereof to Recipient, (iv) It was independently developed by Recipient. (v) Its disclosure is required by court or government order and Discloser has been given notice of such order. Discloser understands that Recipient may develop information internally, or receive information from other parties, that may be similar to Discloser's information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that Recipient will not independently develop products, for itself or for others, that compete with the products or systems contemplated by Discloser's information. The parties agree that a breach of the confidentiality obligations by Recipient shall cause immediate and irreparable monetary damage to Discloser and shall entitle Discloser to injunctive relief in addition to all other remedies. 4. WARRANTIES (A) Licensed Products: J.D. Edwards warrants that for a period of six (5) months following the date of delivery of the Licensed Products to Customer's first designated site, the Licensed Products will perform in all material respects in accordance with the J.D. Edwards Source Published Product Specifications in effect at the date of this Agreement. J.D. Edwards further warrants that the J.Q. Edwards Source Published Product Specifications are accurate in all material respects, However, J.U. Edwards makes no warranties regarding any third party products licensed on Attachment C hereunder except as otherwise provided on that Attachment. J.D. Edwards shall have no responsibility for problems in the Licensed Products caused by alterations or modifications made by Customer or a third party, or arising out of the malfunction of Customers equipment or other software products not supplied by J.D. Edwards. (B) Services: (i) J.D. Edwards warrants to Customer that the Services supplied hereunder in Article 11 shall be performed in a professional and workmanlike manner. (ii) J.D. Edwards warrants to Customer that the unmodified Developed Software shall operate in all material respects in accordance with the written, mutually agreed upon specification for such Developed Software from the date of completion of such Developed Software for a period of ninety (90) days. However, J.D. Edwards shall have no responsibility for problems in the Developed Software caused by alterations or modifications made by Customer or a third party, or arising out of the malfunction of Customers equipment or other software products not supplied by J.Q. Edwards. (C) Maintenance: During the Period of Coverage, J.D. Edwards warrants that the Licensed Products will perform in all material respects in accordance with the J.D. Edwards Source Published Product Specifications as they may exist during the Period of Coverage. Such Published Product Specifications shall be accurate in all material respects but shall be subject to amendment from time to time to conform with functionality contained in new releases of the Licensed Products. Page 214 5. WARRANTY EXCLUSION (A) THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF GOODS. 7/97 LCMST732 AGREEMENT (B) EXCEPT AS EXPRESSLY SET FORTH IN THiS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LiMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 6, EXCLUSIVE REMEDIES For any breach of warranties contained in Section 4 of this Article, Customer's exclusive remedy shall be as fir I lows: (A) Licensed Products: Customer shall have six (6) months following delivery of the Licensed Products to Customer's first designated site to verify that the Licensed Products conform in all material respects with J.D. Edwards Source Published Product Specifications. Customer shall provide written notice of any material nonconformance to J.D. Edwards within this six (6) month period. Such notice shall be in sufficient detail to allow J.D. Edwards to duplicate the nonconformance. J.D. Edwards shall, at no additional charge, correct such nonconformance or provide a mutually acceptable plan for correction by sixty (60) days following the receipt of Customer's notice by J.D. Edwards. Should J.D. Edwards fail to provide such correction or mutually acceptable plan by such date, Customer's sole and exclusive remedy shall be to terminate this Agreement as a default incapable of cure by written notice in accordance with the termination provisions hereof. Notwithstanding the payment provisions hereof, Customer shall be entitled to receive a refund of the License Fees paid. Such notice of termination must be received by J.D. Edwards within ten (W) days following the date for correction or plan for correction. (B) Services: (i) Customer is entitled to re -performance of the Services, or if J.D. Edwards cannot perform the Services as warranted, Customer is entitled to a refund of the fees paid to J.D. Edwards for the Services not in conformance with the warranty. (ii) J.D. Edwards agrees to correct, at no charge, all material nonconformances in the Developed Software of which J.D. Edwards receives written notification during the ninety (90) day warranty period. If a material nonconformance is incapable of correction, it shall be considered a breach of warranty and Customer shall be entitled to return the nonconforming Developed Software and receive a refund of fees paid for the nonconforming Developed Software. (C) Maintenance: J.D. Edwards agrees to correct any material nonconformance of the unmodified portion of the Licensed Product(s) to J.D. Edwards Source Published Products Specifications at no additional charge subject to the following conditions. J.D. Edwards' obligation to provide corrections under this provision shall apply only to i) the most current version of the Licensed Products, and ii) the next preceding version of the Licensed Products but only during the six (6) months after formal release of the most current version. However, corrections generally made available to all Customers in the ordinary course as a part of Software Updates (through the issuance of cumulative releases) are not governed by and are in addition to this provision. Customer shall provide notice to J.D. Edwards in sufficient detail to allow J.D. Edwards to duplicate the nonconformance. Should J.D. Edwards fail to provide such correction, Customer's sole and exclusive remedy shall receive a refund of Maintenance fees paid for the nonconforming Licensed Product(s) for the Period of Coverage during which the nonconformance occurred. 7. INDEMNITIES (A) J.D. Edwards agrees to indemnify, defend and hold Customer harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Customer in connection with any patent, copyright or other infringement claim by any third parry, provided, however, that Customer permits J.D. Edwards to defend, compromise or settle said claim of infringement and provides J.D. Edwards all available information, assistance and authority to enable J.D. Edwards to do so. However, J.D. Edwards shall have no liability for any claims of infringement that depend upon the use of the Licensed Products in conjunction with non- J.D. Edwards software or other non-J.D. Edwards products or upon a use of the Licensed Products in a manner not contemplated within the Published Product Specifications. (B) J.D. Edwards further agrees that if Customer is prevented from using the Licensed Product(s) due to an actual or claimed infringement of any patent, copyright or other intellectual property right, then at J.D. Edwards' option, J.D. Edwards shall promptly either: (i) procure for Customer, at J.D. Edwards' expense, the right to continue to use the Licensed Product(s); (ii) replace or modify the Licensed Product(s), at J.Q. Edwards' expense, so that the Licensed Product(s) become non -infringing; or (iii) terminate the Agreement and return Customer's license fees for the infringing Licensed Product(s) in the event that neither (i) or (ii) are reasonably feasible. (C) Subsections (A) and (B) of this Section shall constitute J.D. Edwards' entire obligation to Customer with respect to any claim of infringement. (D) (i) J.D. Edwards agrees to indemnify Customer from and against all costs and liabilities, including reasonable legal fees, which Customer may be required to pay for claims due to injuries to persons or damage to property pertaining to the furnishing of services or software by J.D. Edwards under this Agreement. However, this subsection shall not apply where such injury or damage is caused by the negligence or willful misconduct of Customer, its agents, or employees. (ii) Customer agrees to indemnify J.D. Edwards from and against all costs and liabilities, including reasonable legal fees, which J.D. Edwards may be required to pay for claims due to injuries to persons or damage to property caused by Customer during the conducting of training or Services under this Agreement. However, this subsection shall not apply where such injury or damage is caused by the negligence or willful misconduct of J.D, Edwards, its agents, or employees. S. LIMITED LIABILITY EXCEPT FOR a)FAILURE TO COMPLY WITH THE PROPRIETARY RIGHTS OR b)THE INFRINGEMENT INDEMNITY PROVISIONS CONTAINED HEREIN: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR A MONETARY AMOUNT GREATER THAN THE AMOUNTS PAiD OR DUE PURSUANT TO THIS AGREEMENT. (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (C) THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. 9, ARBITRATION All disputes involving this Agreement, except actions arising under the patent and copyright provisions of the U.S. Code, shall be submitted to a panel of three (3) arbitrators appointed and operating under the Uniform Arbitration Act and the procedural rules of the American Arbitration Association. Such panel shall include only persons with experience in the areas of information technology or computer software licensing, installation or implementation.. Each party shall choose one (l) arbitrator, and the third arbitrator shall be chosen by the two (2) arbitrators thus selected by the parties. The location of the arbitration hearing will be chosen by the party not initiating the arbitration or action. The written decision of the arbitrators shall be final, binding and convertible to a court judgment in any appropriate jurisdiction. 10. TERMINATION (A) If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. 1f such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate. Upon termination, the License to use the Licensed Products shall be immediately revoked and all Licensed Products and supporting materials will be returned to J.D. Edwards or destroyed and an affidavit supplied to J.D. Edwards certifying destruction. Confidentiality obligations shall survive this Agreement. (B) In the event an Affiliate ceases to comply with the definition of Affiliate herein, J.D. Edwards' may, at its option, terminate this Agreement between J.D. Edwards and the former Affiliate according to the termination provisions hereof. Il. EMPLOYEE RECRUITING Each party acknowledges that the other party's employees are critical to the servicing of its customers. Each party agrees not to employ or otherwise engage the other party's employees for a period of six (6) months following any employee's last involvement in the performance of this Agreement. Should a party violate this provision, the hiring party will pay the other party fifty percent (50%) of the former employee's annual salary. Such payment shall be the other party's sole remedy with respect to the hiring patty. However, such payment does not restrict the other party's rights or remedies as they relate to such former employee. 12. PAYMENT (A) in consideration for the License granted in Article 11, Customer will pay to J.D. Edwards the License Fee listed on any Attachment attendant to this Agreement. Customer agrees to pay seventy-five percent (75%) of the License Fees upon the execution of this Agreement and any Attachment attendant to this Agreement, and the remaining twenty-five percent (25%) within thirty (30) days after delivery of the Licensed Products. (B) As compensation for performing Services under Article III, Customer agrees to pay J.D. Edwards on a per hour basis for the actual hours expended or, in the case of training and Solution Assurance, at J.D. Edwards' list price. J.D. Edwards' standard hourly rates vary, depending on the individual required. Schedule changes for Services must be made by Customer two (2) weeks in advance, otherwise, J.D. Edwards may charge for time it cannot reschedule. Customer agrees to reimburse J.D. Edwards for all out-of-pocket expenses J.D. Edwards incurs in providing Services hereunder including, but not limited to, transportation costs, airfare, rental vehicles, lodging, meals, and incidental charges, which are reimbursable expenses and not par[ of J.D. Edwards' total estimate for the Services. If uncontested amounts remain unpaid for thirty (30) days or more, J.D. Edwards may, at its option, refuse to perform additional services under this Agreement until such amounts are paid. (C) Customer shall pay Maintenance fees in accordance with any Maintenance Attachment attendant to this Agreement and subsequently as an annual charge. The first payment shall be due upon execution of this Agreement. If Customer fails to remit Maintenance fees, J.D. Edwards will have no duty to provide the Maintenance services specified under Article IV. (D) 1n addition to the charges due under this Agreement, and even if Customer shall provide a tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes including sales, use, property, excise, value added and gross receipts levied on this Page 314 7197 LCMST732 AGREEMENT Agreement or the Licensed Products or the Developed Software, except taxes based on J.D. Edwards' net income. Customer agrees that if any of the foregoing is paid by J.D. Edwards, Customer shall immediately reimburse J.D. Edwards for the amount paid plus any expenses incurred in connection therewith and interest thereon. J.D. Edwards accepts full and exclusive liability for the payment of all employer contributions and taxes measured by any payments to J.D. Edwards' employees. In the event that Customer is required by any applicable law to deduct any amount from the amounts to be paid to J.D. Edwards under this Agreement on account of withholding taxes or any other taxes or levies of any kind, Customer agrees that it shall pay all such additional amounts so that the net amounts received by J.D. Edwards are the amounts specified herein. (E) Customer agrees to pay for all uncontested amounts due under this Agreement within thirty (30) days after the date of invoice. Customer shall have thirty (30) days after the invoice date to contest in good faith the amounts and items charged. Past due uncontested amounts will bear interest of one and one-half percent (l'/2%a) per month from the due date or the highest rate pennitted by law if less. (F) All payments made hereunder are nonrefundable except as Specifically provided otherwise in this Agreement. 13, EXPORT CONTROLS Customer agrees that it will not ship any Licensed Products to a country until it has completed all necessary government formalities in such country and, upon reasonable request by J.D. Edwards, Customer will provide evidence of completion of such formalities to J.D. Edwards. Customer acknowledges that the Licensed Products may be subject to export controls imposed by U.S. laws and regulations. Customer will indemnify J.D. Edwards for any losses, costs, liability, and damages, including reasonable legal fees incurred by J.D. Edwards as a result of failure by customer to comply with this section. J.D. Edwards may, from time to time, deny Customer the right to license in certain countries in order to protect J.D. Edwards' interests. 14. GENERAL (A) The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. (B) All notices shall he in writing and sent by certified mail, Postage prepaid, return receipt requested to the address written above or such other address as notified to the other party and such notice shall be deemed to be made on the fifth (5th) day after such mailing, (C) This Agreement shall be the most basic enumeration of the terms and conditions under which the contemplated transactions will be governed. An Attachment to this Agreement shall modify this Agreement to the extent of any conflict in terns. An Addendum shall modify this Agreement and any Attachment hereto to the extent of any conflict in terns. No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by the parties. (D) All disputes involving this Agreement, except actions arising under the patent and copyright provision of the U.S. Code, shall be determined under the law of the State of Colorado. No action, regardless of form arising out of this Agreement, may be brought by either party more than one (I) year after the claiming party knew or should have known of the cause of arbitration or action. (E) Customer understands that J.D. Edwards' business partners, except where they are acting as subcontractors pursuant to Article 111, Section 3(C) of this Agreement, are independent entities and J.D. Edwards is not liable for nor bound by any acts of such business partner. (F) All future licenses of additional Licensed Products or Developed Software, or the provision of other Services and Maintenance shall come under the terms and conditions set forth herein subject to the then current prices and each party shall have the same rights, duties and privileges with respect to such subsequent transaction as is established by the terms of this Agreement, (G) if any provision of this Agreement is held to be invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions. (H) Except as provided in this subsection, this Agreement may not be assigned by either party and any attempted assignment which does not adhere to these provisions shall be void. However, either party may, upon written notice to the other party, assign this Agreement to any Affiliate. J.D. Edwards may assign this Agreement in the event of the sale of all or substantially all of its assets or equity, (1) This Agreement shall be prepared in two identical and original counterparts. If a counterpart shall be prepared in a language other than English, then English shall be the language of this Agreement and the English language counterpart shall govern all disputes, performance and interpretations, and the counterpart in another language shall be for convenience only and shall not affect the performance or interpretation of this Agreement. (J) All amounts stated in and payable under this Agreement shall be denominated in United States Dollars and shall be payable in ready funds in United States Dollars to payee's account at payee's designated United States bank. Unless notified otherwise in writing by Customer, J.D. Edwards will invoice all amounts to Customer's address as it appears an Page One of this Agreement. (K) The parties hereto are independent contractors and neither party nor its employees, directors, agents, or consultants shall hold itself out to be or allow itself to be considered as an agent or employee of the other party. (L) Neither party shall publicly announce or disclose the terms and conditions of this Agreement except that J.D. Edwards may use Customer's name as a reference in J.D. Edwards' sales calls and in lists of J.D. Edwards' customers. This provision shall survive the termination of this Agreement. (M) The parties agree that this Agreement is not subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. (N) Any Attachment to this Agreement may be accompanied by Customer's purchase order or other instrument covering the subject matter of this Agreement. Such purchase order or other instrument is for Customer's internal use and shall not affect this Agreement. This Agreement, including its terns and conditions and its attachments and Amendments, is a complete and exclusive statement of the agreement between the parties, which supersedes a]I prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement. This Agreement shall not be effective until executed by Customer and accepted by an authorized representative of J.D. Edwards. Accepted by J.D. Edwarls Wort as of C1Ai( J.D. EDW p (Auth Sw attue)`"— Alleninder and effective 'ANY (Print or Type Name) Vice President & General Manager ("title) By execution, signer certifies that signer is duly authorized to execute this Agreement o behalf of Customer C O By (A orized Signature) WINDY SITTOVN, MAYOR (Print or Type Name) CITY OF LUBBOCK - MAYOR (Title) APRROVED AS TO FORM: APPROVED AS CONTENT: 41-1 Linda Chamales, Assistant City Attorney Shari lett Chownng, IT Ma ger A T; . ffu�! Kaktll Darnell, City Secretary Page 4/4 7/97 LCMST732 r,