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HomeMy WebLinkAboutCoplogic Inc; 2014-02-20; (3)DeskOfficer Online Reporting System (DORS) SETUP AND SUBSCRIPTION LICENSE AGREEMENT THIS SETUP AND SUBSCRIPTION LICENSE AGREEMENT is made on this 20th day of Febmary, 2014, by and between the City of Carlsbad located at 1200 Carlsbad Village Drive, Carlsbad, CA 92008, a municipal corporation under the laws of the State of Califomia and hereafter referred to as "Licensee" and Coplogic Inc., an existing Califomia corporation with a principal place of business at 231 Market Place, Suite #520, San Ramon, CA 94583 and hereafter referred to as "Licensor". NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS IDENTIFIED HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. DEFINITIONS (a) "Documentation" means technical manuals, training manuals, user guides, and workbooks, as updated and amended from time to time, provided by Licensor to assist Licensee with the use of Software. (b) "Software" means all or any portion of the global version of the binary computer software programs and updates and enhancements thereto, and Documentation hosted by Licensor on behalf of Licensee or delivered by Licensor to Licensee. Software includes any third-party software delivered by Licensor and modifications made to the Software. Software does not include source code to third party software. Unless specifically stated otherwise, all Software is delivered to Customer only if and when generally commercially available. (c) "Install" means placing the Software on a computer's hard disk. (d) "Use" means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes. 2. GRANT OF RIGHTS AND SCOPE OF SERVICES Licensor hereby grants to Licensee a nonexclusive, nontransferable license to use the Software on Licensor's servers for the term of this Agreement. Licensor also agrees to provide the services listed in the Scope of Services attached hereto as Exhibit "A" and made a part hereof All requests by the Licensee for additional features or functionality that fall outside of Exhibit "A" Scope of Services shall be addressed following the "go-live" date of the Software and shall be quoted separately. 3. LICENSE TERM This Agreement and this license are effective when the Agreement is executed by both parties and the license granted to the Software remains in force until terminated in accordance with paragraph 5 of this Agreement. Coplogic - DORS Setup and Subscription License Agreement 4. COST AND FEES Licensee agrees to pay Licensor the following one time setup and implementation fee of USD$7,000.00 (for a "print-only" implementation), plus license and maintenance fees for the first year of USD$7,000.00, as outlined in the Subscription, Support and Maintenance Agreement, for a total of USDS 14,000.00. USD$7,000.00 is due upon the execution of this agreement and the remaining USD$7,000.00 is due at the earlier of 1) conclusion of set up and implementation ("go live") to Licensee's satisfaction or 2) April 1, 2014. The Subscription, Support and Maintenance period shall commence at the earlier of 1) the "go- live" date of the Software or 2) April 1, 2014. All payments shall be made within thirty (30) days from the date of invoice by electronic funds transfer to the Licensor's account specified in writing, or by check made payable to "Coplogic, Inc." and delivered to 231 Market Place, Suite #520, San Ramon, CA 94583. 4.1. Taxes. In addition to other amoimts payable under this Agreement, Licensee shall pay any and all federal, state, mimicipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Licensee's use of the Software or the payment of the License Fee to Licensor, other than taxes assessed against Licensor's net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Licensee or Licensee shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Licensor is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Licensor from Licensee pursuant to this Agreement, Licensee shall promptly reimburse Licensor any such amounts. 5. TERMINATION Licensee may terminate this Agreement at any time on thirty (30) days written notice to Licensor. Licensor shall have the right to terminate this License on thirty (30) days written notice to Licensee if Licensee fails to pay any amount due to Licensor under this Agreement or the Subscription, Support and Maintenance Agreement, or if Licensee fails to perform any obligation required of Licensee under this License or if Licensee becomes bankmpt or insolvent. 6. RIGHTS UPON TERMINATION Licensor has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawfiil or unauthorized use of Software or Documentation. Upon termination of this License, all rights granted to Licensee under this Agreement cease and Licensee will promptly cease all use and reproduction of the Software and Documentation, and Licensee shall retum to Licensor or destroy the original and all copies of the Software and Documentation including partial copies and modifications. Sections 9, 10, 11, and 12 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default. 7. TITLE TO SOFTWARE Licensor retains title to and ownership of the Software and Documentation and all Coplogic - DORS Setup and Subscription License Agreement 2 enhancements, modifications and updates of the Software or Documentation. Licensee shall not distribute the Software to any persons or entities other than Licensee's employees as designated solely by Licensee. Licensee may not sell the Software to any person or make any other commercial use of the software. Licensee shall retain all copyright and trademark notices on the Software and Documentation and shall take other necessary steps to protect Licensor's intellectual property rights. 8. MODIFICATION AND ENHANCEMENTS Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements or derivative works based on the Software without Licensor's express written consent. 9. WARRANTY Licensor warrants that from the date of this License, the Software will fimction given the original configuration is not replaced or changed by Licensee. Licensor warrants that to the best of its knowledge, information, and belief, the Software does not contain any known vimses, back-doors or time bombs, (or similar malicious code), or undocumented security codes that could prevent Licensee's use of the Software. THE WARRANTY GRANTED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Licensor's entire liability and Licensee's sole and exclusive remedy for breach of the foregoing warranty shall be, at Licensor's option, to: • Retum to Licensee the maintenance fee for the period in which the Software did not perform according to this warranty, or • Repair the defects or • Replace the Software. 10. INDEMNITY Licensor shall indemnify, hold harmless, and defend, with counsel acceptable to Licensee, the Licensee (including its elected officials, officers, agents and employees) from and against any and all claims (including all litigation, demands, damages, liabilities, costs, and expenses, and including court costs and attomey's fees) resulting or arising from performance, or failure to perform, under this Agreement. Claims which trigger Licensor's responsibility under this Section 10 shall include any claims that the Software resulting from the provision of Services pursuant to the attached Exhibit A Scope of Services infringes any patent, trademark, service mark, copyright, or accidental or intentional violation of a trade secret or other intellectual property of a third party not included in this Agreement. Licensor shall, in its reasonable judgment and at its option and expense: (i) obtain for the Licensee the right to continue using the Software; or (ii) replace or modify the Software so that it becomes non-infringing while giving equivalent perfonnance. Licensor shall not have any liability for a claim alleging that any Software infringes a patent or copyright if the alleged infringement was developed based on information fumished by the Licensee or if the alleged infringement is the result of a modification made by the Licensor, Coplogic - DORS Setup and Subscription License Agreement 3 at the direction of the Licensee or with Licensee approval. Licensee shall be responsible for maintaining appropriate licenses for software not provided by Licensor. Licensee shall indemnify, hold harmless, and defend, with counsel acceptable to Licensor, the Licensor (including its officers, agents and employees) from and against any and all claims (including all litigation, demands, damages, liabilities, costs, and expenses, and including court costs and attomey's fees) resulting or arising from or incurred in connection with, Licensee's use of the Software pursuant to this Agreement. Should any claim subject to indemnity be made against Licensor or Licensee, the party against whom the claim is made agrees to provide the other party with prompt written notice of the claim. The indemnifying party will control the defense and settlement of any claim with respect to which it has a duty to indemnify under this section 10. The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise. 11. CONFIDENTIAL INFORMATION (a) The term "Confidential Information" shall mean any and all information, which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form, which either is identified to be confidential or proprietary. Confidential Information includes, but is not limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, customer lists, employee information, financial infonnation, confidential information conceming Licensor's business, as Licensor has conducted it or as it may conduct itself in the future, confidential information conceming any of Licensor's past, cmrent, or possible future products or manufacturing or operational methods, including information about Licensor's research, development, engineering, purchasing, manufacturing, accounting, marketing, selling or leasing, and any software (including third party software) provided by Licensor. Licensor's Confidential Information shall be treated as strictly confidential by Licensee and shall not be disclosed by Licensee except to those third parties with a need to know and that are operating under a confidentiality agreement with non-disclosure provisions no less restrictive than those set forth herein. This Agreement imposes no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (i) was in the possession of, or was rightfully known by the Licensor without an obligation to maintain its confidentiality prior to receipt from other party; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by Licensee in good faith from a third party having the right to disclose it without an obligation of confidentiality; (iv) is independently developed by Licensee without the participation of individuals who have had access to the Confidential Information or (v) is required to be disclosed by court order or applicable law, provided that Licensee promptly notifies Licensor in order for the disclosing party to have an opportunity to seek an appropriate protective order. The Licensee shall not obtain, by virtue of this Agreement, any rights title or interest in any Confidential Information of the Licensor. Within fourteen (14) days after termination of this Agreement, each party shall certify in writing to Licensor that all copies of Licensor's Confidential Information in any form, including partial copies, have been destroyed or retumed to Licensor. Coplogic - DORS Setup and Subscription License Agreement 4 (b) Licensor acknowledges that the Licensee is a govemmental agency and may be required to disclose certain information under requests made according to provisions of the Public Records Act. Licensee shall give notice to Licensor of any request for the disclosure of any information set apart and marked "confidential," "proprietary" or "trade secret" by Licensor. Licensor shall then have five (5) days from the date it receives such notice to enter into an agreement with Licensee providing for the defense of, and complete indemnification and reimbursement for all costs (including plaintiffs attomey's fees) incuned by Licensee in any legal action to compel the disclosure of such information under the Public Records Act. Licensor shall have the sole responsibility for the defense of the actual proprietary or trade secret designation of such information. The parties understand and agree that any failure by Licensor to respond to the notice provided by Licensee and/or to enter into an agreement with Licensee, as set forth above, shall constitute a complete waiver by Licensor of any nondisclosure or confidentiality rights hereunder with respect to such information, and such information shall be disclosed by Licensee pursuant to applicable procedures required by the Public Records Act. (c) Licensee shall protect the deliverables resulting from Services with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Licensee utilizes for Licensee's Confidential Information. (d) The terms of this Section 12 shall survive termination of this Agreement. Licensor and Licensee acknowledge that any breach of this Section 12 by Licensee will ineparably harm Licensor. Accordingly, in the event of a breach, Licensor is entitled to promptly seek injunctive relief in addition to any other remedies that the disclosing party may have at law or in equity. 12. RELATIONSHIP BETWEEN THE PARTIES Licensor is, and at all times shall remain, an independent contractor solely responsible for all acts of its employees, agents, or sub consultants, including any negligent acts or omissions. Licensor is not Licensee's agent, and shall have no authority to act on behalf of the Licensee, or to bind the Licensee to any obligation whatsoever, unless the Licensee provides prior written authorization to Licensor. Licensor is not an officer or employee of Licensee and Licensor shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. 13. CONFLICTS OF INTEREST PROHIBITED Licensor (including its employees, agents, and sub Licensors) shall not maintain or acquire any direct or indirect interest that confiicts with the performance of this Agreement. 14. COMPLIANCE WITH LAW AND STANDARD OF CARE Licensor shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. Licensor shall perform services under this Agreement using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Licensor, performing under circumstances similar to those required by this Agreement. Licensor certifies that its employees have the training and experience to perform and complete all services mentioned herein and outlined in Exhibit A. Coplogic - DORS Setup and Subscription License Agreement 5 15. INSURANCE Licensor shall, throughout the duration of this Agreement, maintain insurance to cover Licensor (including its agents, representatives, sub-consultants, and employees) in connection with the performance of services under this Agreement. This Agreement identifies the minimum insurance levels with which Licensor shall comply; however, the minimum insurance levels shall not relieve Licensor of any other performance responsibilities under this Agreement (including the indemnity requirements), and Licensor may carry, at its own expense, any additional insurance it deems necessary or pmdent. Concurrently with the execution of this Agreement by the Licensor, and prior to the commencement of any services, the Licensor shall fumish written proof of insurance (certificates and endorsements), in a form acceptable to the Licensee. Licensor shall provide substitute written proof of insurance no later than 30 days prior to the expiration date of any insurance policy required by this Agreement. 16.1. Minimum Insurance Levels. Licensor shall maintain insurance at the following minimum levels: (a) Commercial General Liability coverage in an amount not less than USDS 1,000,000 general aggregate and USD$ 1,000,000 per occurrence for general liability, bodily injury, personal injury, and property damage. (b) Workers' Compensation insurance as required by the State of Califomia and Employer's Liability Insurance. (c) Errors and Omissions Liability Insurance appropriate to the Licensor's profession. Architects' and engineers' coverage is to be endorsed to include contractual liability. 16.2. Endorsements. The insurance policies shall be endorsed as follows: (a) For the commercial general liability insurance, the Licensee (including its elected officials, employees, and agents) shall be named as additional insured. (b) Licensor's insurance is primary to any other insurance available to the Licensee with respect to any claim arising out of this Agreement. Any insurance maintained by the Licensee shall be excess of the Licensor's insurance and shall not contribute with it. 16.3. Qualifications of Insurers. All insurance companies providing coverage to Licensor shall be insurance organizations authorized by the Insurance Commissioner of the State of Califomia to transact the business of insurance in the State of Califomia, and shall have an A.M Best's rating of not less than "A:VII." 16. REPORTING DAMAGES If any damage (including death, personal injury or property damage) occurs in connection with the performance of this Agreement, Licensor shall immediately notify the Licensee Risk Manager's office and Licensor shall promptly submit to the Licensee's Risk Manager and the Licensee's Authorized Representative, a written report (in a form acceptable to the Licensee) with the following information: (a) name and address of the injured or deceased person(s), (b) name and address of witnesses, (c) name and address of Licensor's insurance company, and (d) a detailed description of the damage and whether any Licensee property Coplogic - DORS Setup and Subscription License Agreement 6 was involved. 17. GENERAL PROVISIONS (a) Complete Agreement. This License together with Exhibit "A", which is incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter, except for the concunently executed Software Subscription, Support and Maintenance Agreement. (b) Modifications to License. Modifications and amendments to this License, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties. (c) Applicable Law. This License will be govemed by the laws of the State of Califomia. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in either the County of Contra Costa or San Diego. (d) Notices. All notices and other communications given in connection with this License shall be in writing and shall be deemed given as follows: • When delivered personally to the recipient's address as appearing in the introductory paragraph to this License; • Tiiree days after being deposited in the United States mails, postage prepaid to the recipient's address as appearing in the introductory paragraph to this License; or • When sent by fax or telex to the last fax, telex number or E-Mail address of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail or the recipient delivers a written confirmation of receipt. Any party may change its address appearing in the introductory paragraph to this License by giving notice of the change in accordance with this paragraph. (e) No Agency. Nothing contained herein will be constmed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. (f) Assignment. The rights conferred by this License shall not be assignable by the Licensee without Licensor's prior written consent. Licensor may impose a reasonable license fee on any such assignment (g) Modifications. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. (h) Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. (i) Headings. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. (j) Severability. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be constmed as not containing that term, and the remainder of this Coplogic - DORS Setup and Subscription License Agreement 7 Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties' intent under this Agreement. 18. SIGNATURES The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Licensor and the Licensee. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 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 instmment. Any such counterpart may comprise one or more duplicates or duplicate signature pages, any of which may be executed by less than all of the parties provided that each party executes at least one such duplicate or duplicate signature page. The parties stipulate that a photocopy of an executed original will be admissible in evidence for all purposes in any proceeding as between the parties IN WITNESS WHEREOF, the Licensee and Licensor do hereby agree to the full performance of the terms set forth herein. Coplogic, Inc. (LICENSOR) City of Carlsbad, a Municipal CoiwatimiiLICENSEE) (Signature) James Lee Chief Operating Officer (Typed or Printed Name and Titfe) 0%. (Date) Coplogic - DORS Setup and Subscription License Agreement Exhibit A; Scope of Services Licensor has designed and built an Online Reporting System for Police Departments that provides data to a specified database stmcture. The Online Reporting System uses the J2EE standard. The system is designed to gather information on crimes from a member of the general public (user) via an SSL connection. The application will issue a temporary report number to the user and place the temporary report into an administrative holding area for review and modification by appropriate administrator. An email is generated to the user that the report has been submitted. The administrator logs in via an SSL connection and approves, rejects, edits or prints reports as appropriate. Rejecting a report deletes it from the system and sends an appropriate email to the user. Approving the report issues a number, places it in a queue to be exported, and sends an appropriate email to the user. The administrator can print the report out. A. SETUP AND CUSTOMIZATION Licensee Responsibilities: 1. Coordinate with Licensor to establish schedule for deployment. 2. Provide website header image and one small image for temporary citizen report and one small image for final printed PDF report, which is automatically emailed to citizen after report approval. 3. Load provided HTML pages onto City server which links to Licensor's servers for the application. 4. Provide timely responses to Licensor's questions, which may arise during the setup and customization process. Licensor's Responsibilities: 1. Coordinate with Licensee to establish schedule for deployment. 2. Load provided images onto the Licensor's secure, redund£int network and register Licensee within the network. 3. Provide Licensee with Administrator password and credentials for the program. 4. Provide sample operational directives, deployment strategies and sample press release. a. Licensor will provide contact personnel at other cities cunently using the system as well as provide suggestions for the deployment of the system. b. Licensor will provide instructions on the easy setup of a kiosk for City Police Department Headquarters lobby, etc. Completion Criteria: This task is considered complete after Licensor has delivered listed materials and the software is active and accessible on the Licensee's website. B. SOFTWARE CONFIGURATION Licensee's Responsibilities: 1. Coordinate with Licensor for web training session on administering the program, using the dynamic creation tools, "Triple Lock" login features, user account including Coplogic - DORS Setup and Subscription License Agreement 9 deploying the "Secure side filing feature". 2. Using the administrator account, login in and configure the code tables, crime types, user account, and dynamic content for Licensee. 3. Review resulting files with Licensor, document any problems, and collaborate with Licensor on a plan for corrective action(s). Licensor's Responsibilities: 1. Coordinate with Licensee for web training session on administering the program, using the dynamic creation tools, "Triple Lock" login features, user account including deploying the "Secure side filing feature". 2. Review resulting files with Licensee, document any problems, and collaborate with Licensee on a plan for conective action(s). Completion Criteria: This task is considered complete when the DeskOfficer Online Reporting System is accessible on the web server and reports can be filed. C. CONTINUING MAINTENANCE. Licensee's Responsibilities: During the term of this Agreement and subject to approval by Licensee, Licensee agrees to serve as a reference for the Software. Such references may include activities such as (i) reference calls with mutually acceptable prospects; (ii) a published "success story" describing the partnership with Licensor; (iii) the use of Licensee's name in Licensor marketing activities; or (iv) a favorable reference of Licensor to an industry analyst or at an industry conference. Licensor's Responsibilities: Licensor will provide remote application support and updates in accordance with the Subscription, Support and Maintenance Agreement. Coplogic - DORS Setup and Subscription License Agreement 10