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HomeMy WebLinkAboutEPM; 1988-08-17;T (E a 0 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 a1tp of aarlsbab INFORMATlON SYSTEMS DEPARTMENT August 17, 1988 Ms. Pamela T. Ellis Engineering Planning and Management, Inc. 959 Concord Street Framingham, MA 01701 "FLEETSITE" VEHICLE MAINTENANCE SOFTWARE The Carlsbad City Council, at their meeting of August 9, 1988, approve the license agreement with EPM for the purchase and implementation of the subject software. Enclosed are two original License Agreements which have been executed the City. Once they have been executed by your firm, please return on of the originals to us for our files. As you indicated, the Maintenance Agreement could not be completed nor signed yet. Therefore, a copy of that agreement is attached to the or License Agreement. As we get closer to that time, we will then executt the Maintenance Agreements and forward them for signature processing. Also enclosed is the original purchase order for the software license, including source code and installation and training. Upon receipt of your invoice and a signed agreement, we will process the first payment due in accordance with the terms of the agreement. We look forward to working with you in this successful installation. 4AR9 LEE RAUTENKRANZ Information Systems Director Enc. 1 e 0 * * . .% .- Engineering Planning and Management, Inc. SOFTWARE LICENSE AGREEMENT Declarations Agreement Number: F-S/88-100 Agreement Date Sa%yc&Q~x 19 8 LICENSED PROGRAM: August 9, FLEETSITETM VEHICLE MAINTENANCE SOFTWARE LICENSOR: ENGINEERING PLANNING AND MANAGEMENT, INC. 959 Concord Street, Framingham, MA 01701 Pamela T. Ellis Telephone (508) 875-2121 (Contact Person) LICENSEE : City of Carlsbad, California (Full Legal Name of Licensee) 1200 Elm Avenue (Street Address) (City, State, Zip) Carlsbad, CA 92008 Lee Rautenkranz (619) 434-2808 (Contact Person) (Telephone) Designated Central Processor: (CPU) Hewlett Packard Series 70 2706803259 (Manufacturer) (Model ) (Serial Number) 1200 Elm Avenue (CPU Location - Street Address) Carlsbad, CA 92008 (City, State, Zip) The exhibits checked below are attached and made a part of this agreement: [X] EPM Software Maintenance Agreement Doc # SPO/8501-2 [X] EPM Fee Schedule, Doc # SPO/8501-2 Revision No. 5 [ ] Addendum #1 to EPM Standard Software License and Maintenan [X] EPM Software License Agreement DOC # SP0/8501-2 Revision No. 5 Revision No. 5 Agreement SPO/8501-2 EPM Document SPO/8501-1, Revision 2 Page 1 - 0 0 I. Engineering Planning and Management, Inc. SOFTWARE LICENSE AGREEMENT 1. Software License. LICENSOR (EPM) grants and LICENSEE accepts, upon the terms and conditions contained herein, a persc non-exclusive, non-transferable perpetual right to use the LICE1 PROGRAM and DOCUMENTATION (together, the LICENSED SYSTEM) solel: LICENSEE'S own internal business purposes. LICENSEE is authori: to use the LICENSED PROGRAM in machine readable form on one DESIGNATED CPU, or temporarily on a backup CPU while the DESIGN, CPU is inoperative. 2. Documentation. DOCUMENTATION shall consist of (a) two copies of the Reference Manual, containing instructions for use overviews, file specifications, record layouts, report layouts ( module interfaces, where required, for the LICENSED PROGRAM; an( one (I) copy of the object and source code for the LICENSED PRO( said copy to be on magnetic tape in machine readable form compa with the DESIGNATED CPU. 3. Maintenance. (a) EPM shall provide maintenance for the LICENSED PRO( said maintenance to include (i) telephonic consultation in the of the LICENSED SYSTEM; (ii) diagnosis and remediation of error the then-current, unmodified LICENSED SYSTEM; and (iii) updates the LICENSED PROGRAM which, at EPM's sole discretion, are gener made available to other licensees. (b) As a condition for receiving maintenance, LICENSEE make available digital, 1200 baud dial-up telephone access to t DESIGNATED CPU to facilitate on-line diagnosis by EPM of errors the LICENSED PROGRAM. (c) The maintenance described in Subsection (3a) shal provided by EPM at no charge to LICENSEE during the three (3) calendar months beginning the day following acceptance of the LICENSED PROGRAM on the DESIGNATED CPU. Extension of the maint period for one (1) year intervals following the initial three-m period shall be provided by EPM upon execution of and payment f then-current Extended Maintenance Agreement and Fee for the LIC PROGRAM by the LICENSEE. LICENSEE shall reimburse EPM at EPM's then-current stan consulting rates for expenses incurred by EPM in the diagnosis error determined by EPM not to exist in the as-installed versio the LICENSED SYSTEM. EPM Document SPO/8501-2, Revision 5 Page 1 ., 0 0 b. .. Installation is defined as the end of the week of training incl? with this license. Acceptance is defined as a period of fiftee: calendar days from the date of installation, under which the so shall operate as reasonably expected by the LICENSEE. The LICE: shall make all reasonable attempts to accept this software with this period. If no written notification is received on or befo. sixteenth calendar day following installation, then it shall be deemed to have met the LICENSEE'S acceptance. 4. Installation. EPM shall provide the Installation Servic designated in this Agreement for the installation of, and train a reasonable number of LICENSEE'S management and data processinl personnel in the use of the LICENSED PROGRAM. 5. Fees, Charqes and Taxes. LICENSEE agrees to pay the lic fees and charges for the LICENSED PROGRAM and for the services provided by EPM in accordance with the Fee Schedule in this Agreement. Fees and charges are exclusive of any taxes, excise other governmental levies on the licensing, delivery, or use of LICENSED PROGRAM, all of which shall be borne by LICENSEE. follows: thirty percent (30%) upon execution of this agreement thirty percent (30%) upon installation, and the remaining forty percent (40%) upon acceptance. All other charges are due and payable within thirty (30 7. Intellectual Property Riqhts, Non-Disclosure, and Owner! licenses, trademarks, trade names, inventions, trade secrets, ai other intellectual and proprietary rights therein ("Intellectua: Property Rights") relating to the origin, design, manufacture, programming, application, operation or service of the LICENSED PROGRAM are and shall remain the valuable property of EPM. (b) LICENSEE shall include and shall not alter, remove conceal any copyright, trade secret or other proprietary notice! the LICENSED SYSTEM as delivered by EPM or in copies of the LICl PROGRAM made by LICENSEE under Subsection 8(a). LICENSED PROGRAM and the Intellectual Property Rights, and LICE1 agrees to preserve and protect EPM's interest therein. The LICl PROGRAM and all information relating to the LICENSED PROGRAM prc to LICENSEE or those claiming under it shall be retained in higl confidence and shall not be used, disclosed or copied except as 6. Payment. Payment for the License Fee shall be made as of EPM's invoice date. (a) The LICENSED PROGRAM, and all copyrights, patents, (c) LICENSEE recognizes the proprietary nature of the -I EPM Document SP0/8501-2, Revision 5 Page 2 c 0 0 .. . ". provided by this Agreement. LICENSEE agrees to take such steps protect EPM's interest in the LICENSED PROGRAM and Intellectual Property Rights as LICENSEE does its own proprietary informatic trade secrets and in no event to take less than reasonable caut (d) LICENSEE may not cause or permit disclosure of, ac to, or use of the LICENSED SYSTEM in whole or in part or in anp or way, by any other party without the prior written consent of Intellectual Property Rights is not hereby nor in any other wap transferred to LICENSEE. LICENSEE acknowledges that EPM retair exclusive right to sell, lease, license, assign, or otherwise transfer the LICENSED SYSTEM and that EPM may enter into similz identical conveyances of similar or identical rights to others. (e) Title or ownership to the LICENSED SYSTEM and (f) The provisions of Section 7 shall survive any termination of this Agreement. 8. Copyinq the Licensed System and Backup CPU (a) EPM agrees that LICENSEE'S use of the Licensed Sys may involve preparation of a reasonable number of machine reade copies of the LICENSED PROGRAM at any one time for LICENSEE'S c the computer site for archive or emergency restart purposes, bc such copies shall be the property of EPM. (b) LICENSEE may request redesignation of the DESIGNAli provided that such redesignated CPU is compatible with the rep1 CPU. (c) When LICENSEE receives replacement DOCUMENTATION c the provisions of Section 3 or Subsection 10(a) LICENSEE shall full responsibility for the installation and distribution of tk DOCUMENTATION. 9. Warranty (a) EPM warrants for a period of three (3) months fron acceptance that the LICENSED PROGRAM shall be free of software defects in material and workmanship and shall perform the funct contained in the most recent version of the LICENSED PROGRAM Reference Manual issued upon delivery. EPM shall exert its be: efforts to correct such software defects and to supply Licensee corrected portions of the LICENSED SYSTEM within a reasonable t after LICENSEE notifies EPM in writing of any defect, provided notification is postmarked prior to the expiration of such war1 period. EPM Document SPO/8501-2, Revision 5 Page 3 0 0 .- (b) LICENSEE ACKNOWLEDGES THAT ANY (i) MODIFICATION, CHANGE, ADDITION OR SUBSTITUTION TO THE LICENSED PROGRAM MADE B' LICENSEE, (ii) ANY INTERFACING OF THE LICENSED PROGRAM WITH ANY OTHER PROGRAM OR PROGRAMS, WITH THE SOLE EXCEPTION BEING THOSE PROGRAMS PROVIDED WITH THE LICENSED SYSTEM FOR INTERFACING TO T GASBOY AUTOMATED FUEL SYSTEM OR (iii) ANY CHANGE IN THE OPERATI, ENVIRONMENT OF THE LICENSED PROGRAM MAY DEGRADE THE PERFORMANCE OF THE LICENSED PROGRAM. LICENSEE ACKNOWLEDGES THAT ANY SUCH MODIFICATION, INTERFACING, OR CHANGE SHALL BE MADE AT THE SOLE RISK AND EXPENSE OF LICENSEE AND THAT EPM SHALL HAVE NO RESPONSIBILITY FOR ANY CONSEQUENCES THEREOF. LICENSEE AGREES THAT UPON ANY SUCH MODIFICATION, INTERFACING OR CHANGE (EXCEPT FOR MODIFICATIONS MADE BY EPM PURSUANT TO SUBSECTION 3(a)), AT EPM'S ELECTION, ANY OF EPM'S DUTIES AND LIABILITIES UNDER THIS AGREEMENT WITH RESPECT TO WARRANTY, IMPLEMENTATION SUPPORT, TRAINING, DEBUGGING AND MAINTENANCE SHALL IMMEDIATELY TERMINATE WITHOUT AFFECTING ANY DUTY OR LIABILITY OF LICENSEE HEREUNDER. THE WARRANTY PROVIDED BY THE LICENSOR APPLIES SOLELY TO THE GASBOY INTERFACE PROGRAMS WITHIN THE LICENSED SYSTEM. THE LICENSOR ASSUMES NO RESPONSIBILITY FOR THE QUALITY AND PROPER FUNCTIONING OF ANY OUTSIDE SYSTEMS. 10. Exclusion of Warranties. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, EPM MAKES NO REPRESENTATION OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE LICENSED SYSTEM OR ANY SERVICE PROVIDED BY EPM HEREUNDER. EPM DISCLAIMS, AMONG ALL OTHER REPRESENTATIONS AND WARRANTIES, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11. Limitation of Liability. LICENSEE AND EPM AGREE THAT LICENSEE'S SOLE REMEDY FOR ANY FAILURE OF THE LICENSED SYSTEM OR FOR ANY ERROR, MALFUNCTION, OR DEFECT OF THE LICENSED SYSTEM SHALL BE TO CAUSE EPM TO PERFORM THE SERVICES DESCRIBED IN SUBSECTION 9(a) FOR THE PERIOD OF TIME SET FORTH THEREIN. IN NO EVENT SHALL EPM HAVE ANY LIABILITY FOR COMPENSATORY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFIT, OR FOR ANY CLAIMS AGAINST LICENSEE BY THIRD PARTIES, EVEN IF EPM HAS BEEN INFORMED OF THE POSSIBILITIES THEREOF. LICENSEE AGREES THAT EPM'S LIABILITY FOR DAMAGES, IF ANY, INCLUDING BUT NOT LIMITED TO LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY OR PATENT OR COPYRIGHT INFRINGEMENT SHALL NOT EXCEED ANY AMOUNTS PAID BY LICENSEE FOR THE PARTICULAR LICENSED PROGRAM INVOLVED, UNLESS LICENSEE PROVIDES DOCUMENTED EVIDENCE THAT ANY DAMAGE LEADING TO SUCH LIABILITY IS DIRECTLY ATTRIBUTABLE TO THE LICENSED SYSTEM'S PERFORMANCE AS DOCUMENTED BY THE LICENSOR TO THE LICENSEE. EPM Document SPO/8501-2, Revision 5 Page 4 o! 0 0 /. . ~. 12. Termination. In the event LICENSEE OR LICENSOR shall fail to keep, observe, or perform any covenant or condition set forth herein, EITHER may, at its option, terminate this Agreeme] on THIRTY (30) days written notice to THE OTHER. Within thirty (30) days after termination and/or discontinued use, LICENSEE shall either destroy or erase or return to EPM, by certified mail, all components of the LICENSED SYSTEM including original (or updated) DOCUMENTATION and copies thereof which may have bec made by LICENSEE, in any form whatsoever, whether or not modific or merged into other software, and shall certify said destruction, erasure or return in writing to EPM. Termination ( this license shall automatically terminate any related software maintenance agreements between the license and the licensor. Termination of the software maintenance agreement shall in no wi affect this license. 13. Indemnification. EPM shall, at its own expense, defenc any action brought against LICENSEE to the extent that it is based upon a claim that the LICENSED SYSTEM, in whole or in pari used within the scope of the license granted under this Agreement, infringes a United States patent or copyright, provided LICENSEE notifies EPM promptly in writing of the actio] (and all prior claims relating to such action) and EPM has sole control of the defense and all negotiations for settlement or compromise of the action. SYSTEM becomes, or in EPM's opinion is likely to become, the subject of a claim of United States patent or copyright infringement, EPM may at its option either secure LICENSEE'S right to continue using the LICENSED SYSTEM or replace or modif! it to make it noninfringing. alternatives is reasonably available to EPM, EPM shall have the right to terminate the license for the LICENSED SYSTEM (or any part thereof) upon one month's written notice, and to refund to the LICENSEE the amount agreed upon by the two parties. EPM shall have no liability for any claim of patent or copyright infringement for the use of combination of the LICENSED SYSTEM (or any part thereof) with programs, data or devices not supplic by EPM. THE FOREGOING STATES THE ENTIRE LIABILITY OF EPM AND TI EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO INFRINGEMENT OF ANI PATENTS OR COPYRIGHTS BY THE LICENSED SYSTEM OR ANY PARTS THEREOF. In the event any of the LICENSED If neither of the foregoing 14. Assiqnment. LICENSEE may not assign, sublicense, sell, give away, lease, transfer, distribute or otherwise make available to any third party the LICENSED SYSTEM, in whole or ir part, without the prior written approval of EPM, including any such transfer by operation of law. EPM Document SPO/8501-2, Revision 5 Page 5 c e a .- ~ *. 15. Injunctive Relief. In addition to remedies specifical: provided herein, EPM shall be entitled to injunctive relief restraining any breach or threatened breach of the provisions hereof by the licensee. shall be deemed to create a partnership or joint venture. Neither party shall incur any debts or make commitments or representations for the other party. construed under the laws of the STATE OF CALIFORNIA. 16. No Partnership. Nothing contained in this Agreement 17. Applicable Law. This Agreement shall be governed and 18. Modification. No modification or variation of this Agreement shall be valid unless in writing, and signed by both parties. 19. Severabilitv. If any provision of this Agreement shal be construed to be illegal or invalid, the legality or validity of any other provision hereof shall not be affected thereby. h illegal or invalid provisions of this Agreement shall be construed by a court of competent jurisdiction to have the broadest scope permissible under the law of said jurisdiction, and if no validating construction is possible, shall be severable, and all other provisions hereof shall remain in full force and effect. 20. Waiver. A waiver of any Provision hereof shall not be valid unless in writing and signed by the waiving party. No waiver by any party of any of its rights under this Agreement will be deemed to be a waiver of any other prior or future righ under this Agreement. 21. Entire Aqreement. The parties hereto hereby acknowled that this Agreement supersedes any and all other agreements either oral or in writing, and constitutes the entire agreement between the parties hereto, with respect to the subject matter hereof, and no other prior agreement, statement or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. Each exhibit attached hereto is incorporated in full in this Agreement and made a part hereof by this reference. 22. Headinqs. Headings are for convenience only and shall not be deemed to be part sf this Agreement. EPM Document SPO/8501-2, Revision 5 Page 6 ( e e 7. 23. Notice. All notices, requests, demands or other communications required or permitted under this Agreement shall be in writing and shall be given by prepaid registered or certified mail, return receipt requested, to the respective addresses set forth in the Declaration. All notices, requests, demands and other communications hereunder shall be effective upon the earlier of the date (i) when received or (ii) five (5) business days after being deposited in the mails. Any party may change its address by notice to the other party in the manner provided herein. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the date written in the Declarations. AND MANAGEMENT, INC. its pve b &-& (Tit e) (Print Name) .4!$2&& (Title) + CLAUDE A. LEWIS (Print Name) EPM Document SPO/8501-2, Revision 5 Page 7 (