HomeMy WebLinkAboutGIS Technology Inc; 2004-07-30; (2)LIMITED SOFTWARE LICENSE AGREEMENT
IDM for ESRI GIS Software License Agreement
Between
City of Carlsbad, California
And
GIS Technology Inc.
This Li ited Software is made and entered into as of the
,2004 - by the City of Carlsbad, CA
(“Carlsbad“) located 92008, and GIS Technology Inc. (“GTI”)
&
located at 535 W. State Street, Redlands, California 92373, on the following terms and conditions:
This Agreement is between Carlsbad and GTI, and gives Carlsbad certain rights to use the proprietary
GTI software product suite. IDM for ESRI GIs, including server software (IDM for ArcIMS), and
desktop software (IDM for ArcGIS, IDM for ArcView, and IDM for GTI View), software updates,
sample data, and online user guides, as applicable (hereinafter referred to as “Software, Data, and Related
Materials”). All rights not specifically granted in this Agreement are reserved to GTI.
GTI owns the rights and possesses the intellectual property to certain computer Software products and
related services from which GTI derives substantial independent economic value; and GTI desires to
supply Carlsbad with Software licensing and related services under the terms and conditions set forth,
and;
Carlsbad desires to obtain licensing for the use of the defined computer Software products and access to
related services covered under the GTI-owned copyrights, trademarks, trade names, patents and
intellectual property rights;
Therefol.e, in consideration of mutual promises set forth, the parties agree as follows:
1. Definitions
Agreement means this Agreement, together with all appendices, exhibits, schedules, attachments,
and addenda as the same may be amended, modified or supplemented.
Software means the computer programs, in object or executable form, which GTI offers for
license to its customers, and related user documentation and source materials. For the purposes of
this Agreement, the term ”products” includes any improvements, enhancements, changes,
alterations. modifications, or amendments to the products provided by GTI.
- Server Sofiw~e means IDM for ArcIMS.
Desktop Softwyr means IDM for ArcGIS, IDM for ArcVew GIs, IDM for GTI View residing on
C 1 ient Workstations.
Servers mean computers and related devices that are primarily intended for execution of software
and/or data storage for access by multiple users.
____ CI ient Workstatioi1.S are personal cotriputers, minicomputers, mainframes, and terminal devices
that are intended for ordinarq use by a single user at a time. The facts that, in some cases, a
Client Workstatiov might contain data that is accessible to other users via the network or might
allow renwte login for purposes of system administration are not withstanding.
foncurrent User Licenses pennit installation of Desktop Software on more Client Workstations
than the number of licenses purchased. Concurrent User Licenses also permit the use of Server
Software by more users than the number of licenses purchased. However, the combined total
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number of active users of Desktop and Server Software may not exceed the total number of
Concurrent User Licenses at any given moment.
Object Code means a collection of statements making up a Software program, whether in written
form or in magnetic or other machine-readable form, and characterized by the fact that, in written
form. it consists solely of numbers or other symbols and is not intelligible without deciphering or
translation.
Source Code means a collection of statements making up a Software program, whether in written
form or in magnetic or other machine-readable form, and characterized by the fact that it is
intelligible in written form.
Source Materials means a computer program’s source code; printed copies (listings) of the source
code: all related \c ritten materials, comments, and documentation; database schemas, and any and
all other materials used by GTI in the development, maintenance, and support of the products.
’3oftware Tools means a set of auxiliary programs supplied by GTI to service, maintain or
otherwise modify the Software.
Software. Data, and Related Materials means the computer programs in executable form, sample
data that is included. and related materials such as documentation.
Acceptance means the Software and customizations substantially conform to the specifications in
the Software documentation or to any other Software specifications in the Agreement and meet
the Performance standards set forth in the documentation and Agreement.
2. License Granted
GTI grants to Carlsbad and Carlsbad agrees to accept the following terms and conditions for a
non-exclusive and non-transferable license to use the Software and other associated written
materials and documentation (referred to separately and collectively as “the Software”).
Carlsbad recognizes that GTI is and shall continue to be the owner of the Software and that the
Software is not rented, loaned, or sold to Carlsbad. All rights not specifically granted in this
Agreement are reserved to GTI.
The Software, Data: and Related Materials are owned by GTI and its third party licensor(s) and
are protected by United States copyright laws and applicable international laws, treaties, and/or
conventions. Carlsbad agrees not to export the Software, Data, and Related Materials into a
country that does not have copyright laws that will protect GTI’s proprietary rights.
The license granted under this Agreement authorizes Carlsbad to use the Software subject to the
terms and conditions set forth in this Agreement. Neither this license Agreement, the license
provided for herein, nor the Software may be assigned, sublicensed, or otherwise transferred to
any person or entity by Carlsbad.
Server Software may be installed on one or more servers that are accessible from Carlsbad’s
intranet. Installation of Server Software on any server that is accessible via the Internet will be
permitted upon payment of an additional license fee.
Any of the Desktop Software products may be installed on Carlsbad’s client workstations for
Carlsbad‘s own, internal use.
Concurrent User Licenses are required for both Server Software and Desktop Software. A single
Concurrent User License provides multiple users access to all of the Software. Carlsbad agrees to
make a good faith effort to maintain a five to one (5: 1) ratio between the numbers of potential
users expected to access the Software on a regular basis and of Concurrent User Licenses.
Carlsbad may copy the Software, Data, and Related Materials for solely for archival and back-up
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purposes provided that Carlsbad makes no more copies than reasonably necessary. All
trademark, copy-right and proprietary rights notices must be faithfully reproduced by Carlsbad and
included on such authorized copies.
Carlsbad may use, copy, alter, modify, merge, reproduce, and/or create derivative works of the
online documentation for Licensee’s own internal use.
Carlsbad may use the Sample Data that are provided under license from GTI and its third party
licensor(s) as described in the online Data Help files.
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3. Uses Not Permitted
a) Unless espressl!., provided otherwise in this Agreement, Licensee shall not sell, rent, lease, sublicense, lend. assign, time-share, or transfer, in whole or in part, or provide unlicensed third
parties access to prior or present versions of the Software, Data, and Related Materials, any
updates. or Licensee’s rights under this Agreement.
b) Licensee shall not reverse engineer, decompile, or disassemble the Software, or make any attempt
to use the Software as the basis for another, separate commercial software product or as the basis
for another wJeb site implementation separate from the one for which this license is granted.
c) Licensee shall not make additional copies of the Software, Data, and/or Related Materials beyond
that described in the Permitted uses section above.
d) Licensee shall not remove or obscure any GTI copyright or trademark notices.
4. Term
The license granted r;y this Agreement is for perpetuity, unless violated by Carlsbad or otherwise
canceled by Carlsbacl. If Carlsbad fails to comply with a material provision of this Agreement related
to GTl‘s intellectual property, this Agreement will terminate thirty (30) days following notice of the
violation, unless the violation is cured within that period. Carlsbad shall return to GTI all of the
Software, updates. and any whole or partial copies, codes, modifications, and merged portions in any
form excepting data upon termination or cancellation of this Agreement. The parties hereby agree
that all provisions which operate to protect the intellectual property rights of GTI shall remain in
force should breach occur, and shall survive the expiration or termination of this Agreement.
5. Rights Upon Termination
Upon termination of this Agreement, Carlsbad shall return to GTI the original of the Software, related
user documentation, Source Materials and Software Tools, and destroy all copies, except those
provided for below, in any form made there from whether in whole or in part, including partial copies
or modifications. Within thirty (30) days after receipt of GTI’s request to do so, Carlsbad shall certify
to GTI that, through its best efforts and to the best of its knowledge, it has complied with the
requirements of this paragraph.
6. Injunctive Relief
Carlsbad acknowledges that unauthorized reproduction, use, or disclosure of the Software of any part
thereof is likely to cause irreparable injury to GTI and/or its licensors, who shall therefore be entitled
to iiijunctive relief to enforce these license restrictions, in addition to any other remedies available at
law or in equity.
7. Confidentiality
GTI and Carlsbad will regard and preserve as confidential all information related to each other’s
business and their clients that is obtained from any source as a result of this Agreement. Neither GTI
nor Carlsbad will. without first obtaining the other’s written consent, disclose to any person, firm or
enterprise any such information, that is not related to the normal business activities involved herein.
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8.
9.
Public Records Act Requests
In the event Carlsbad receives a request under the California Public Records Act for GTI's
confidential information, Carlsbad will promptly notify GTI. Within five (5) days after receiving the
notice, GTI will inform Carlsbad whether GTI objects to disclosure ofthe requested information. If
GTI does not object to disclosure or if GTI fails to respond to Carlsbad within five (5) calendar days
Carlsbad will be relieved of its confidentiality obligation with respect to the requested information
and may release the requested information.
If GTl does object to disclosure, then Carlsbad will decline to produce the requested information. GTI
will indemnifq.. defend. and hold Carlsbad harmless from and against all claims, damages, judgments,
awards, costs of litigation and attorney fees arising out of the declination.
Support Services
Carlsbad agrees to pay GTI for annual service and maintenance, if so contracted, in the amount and in
the manner stated in the separate Service and Maintenance Agreement.
10. Other Professional Services and Fees
GTI maintains a list of standard professional services and fees to facilitate the support and
administration of Carlsbad's work. Prices quoted will be subject to change, with no more than one
price change per year.
1 1. Indemnification
GTI agrees to and does hereby indemnify, defend and hold harmless from liability Carlsbad against
all claims that the Sofhare infringes any rights of third parties in patent, copyright or trade secrets in
the L'nited States and all actions arising out of such claims. In the event of any such claim or action,
GTI shall have the option to either; 1) modify the Software so as to render it non-infringing so long as
it continues to conform to the specifications and warranties herein; or 2) procure for Carlsbad the
right to continue using the Software. Any such indemnification under this Section shall be contingent
upon Carlsbad's 1 ) promptly notifying GTI in writing of any claim or action of which indemnification
is sought; 2) immediately ceasing use of the Software upon notice of any such claim or action; and 3)
affording to GTI sole control of the defense or settlement of any such claim or action.
12. Pet ,brmance Standards
The GTI software shall not impose overhead resulting in an appreciable increase in the response times
for queries made in the CIS or SQL database(s). This will be verified through mutually agreed upon
tests.
13. Limited Warranty
GTI warrants that the media upon which the Software, Data and Related Materials are provided will
be free from defects in materials and workmanship under normal use and service for a period of sixty
(60) days from the date of receipt. GTI warrants that if Software fails to substantially conform to the
specifications in the Software documentation or to any other Software specifications in the
documentation and the nonconformity is reported in writing by Carlsbad to GTI within one hundred
twenty (1 20) days after the warranty period commences then GTI shall, at its option, either correct the
nonconformity or offer to terminate this Agreement and refund the licensing fees previously paid by
Carlsbad upon return of all copies of the Software and documentation to GTI. In the event of such a
refund, the license conveyed by this Agreement shall terminate. This Limited Warranty is solely for
the benefit of Carlsbad. The Warranty period shall commence upon satisfactory completion of all
acceptance testing. The satisfactory completion of all acceptance testing will be deemed to have
occurred thirty (30) days after successful continuous use in production.
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14. Disclaimer of Warranties
GTI MAKES NO WARRANTY, REPRESENTATION OR PROMISE EXCEPT FOR THE ABOVE
EXPRESS LIMITED WARRANTIES, THE SOFTWARE, DATA AND RELATED MATERIALS
EITHER EXPRESS OR IMPLIED, INCLUDMG, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
CONTAINED THEREIN ARE PROVIDED “AS IS,,, WITHOUT WARRANTY OF ANY KIND,
15. Exclusive Remedy and Limitation of Liability
During the warrant> period, GTI’s entire liability and Licensee’s exclusive remedy shall be the return
of the Carlsbad fee paid for the Software, Data, and Related Materials in accordance with the GTI
Customer Assurance program for the Software, Data, and Related materials that do not meet GTI’s
Limited Warranty and that are returned to GTI or its dealers with a copy of Licensee’s proof of
payme tit.
GTI shall not be liable for indirect, special, incidental, or consequential damages related to Licensee’s
use of the Software, Data, and Related Materials. This provision does not apply to indemnification
claims subject to paragraph 1 1. There is no limit on action or claims from personal injury or property
damage due to GTI‘s negligence.
16. Modification, Amendment, Supplement or Waiver
No modification. amendment, supplement to or waiver of this Agreement or any of its provisions
shall be binding upon the parties unless made in writing and duly signed by authorized representatives
of both parties. A failure or delay of either party to this Agreement to enforce any of the provisions
of this Agreement, or to exercise any option herein provided, or to require performance of any of the
provisions hereof, shall not be construed as a waiver of such provision of this Agreement.
17. Severability
In the event any one or more of the provisions of this Agreement is for any reason held to be invalid,
illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the
invalid. i I legal or unenforceable provision shall be replaced by a mutually acceptable provision which
comes closest to the intention of the parties underlying the illegal, invalid or unenforceable provision.
18. Entirety of Agreement
The terms and conditions of any and all appendices, exhibits, schedules, and attachments to this
Agreement are incorporated herein,by this reference and shall constitute part of this Agreement as if
fully set forth herein. Article and paragraph headings used herein are for reference purposes only and
shall not be deemed a part of this Agreement. This Agreement, together will all appendices, exhibits,
schedules and attachments hereto, the Professional Services Agreement, the Support and Maintenance
Agreement, the Software License Agreement, and GTI’s response to the City’s Request for Proposal
constitute the entire Agreement between the parties and supersedes all previous Agreements including
promises and representations, whether written or oral, between the parties with respect to the subject
matter hereof. Neither this Agreement nor any of its provisions may be amended, modified, waived or
disuarged except in a writing signed by both parties.
19. Effect of Conflicting Documents
In the event any conflict between this Agreement and any term or condition found within any other
document; including. but not limited to a purchase order, a service and maintenance agreement, or a
similar document pursuant to which Carlsbad acquired the license granted by this Agreement, the
terms and conditions of this Agreement shall control.
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20. Notices
The name of the persons who are authorized to give written notices or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City: For Contractor:
Name Karl von Schlieder Name Jeff Hecht
Title CIS Manager Title Project Manager
Dept Geographic Information Systems
ALJress 1635 Faraday Avenue Address 535 West State Street, Suite 670
Phone No. ~ (769) .- 602-2434 Phone No. (909) 798-8030
Carlsbad, CA 92008 Redlands, CA 92373
Each party will notify the other immediately of any changes of address that would require any notice
or delivery to be directed to another address.
21. Jurisdiction and Venue
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or
rights provided for bq this Agreement will be tried in a court of competent jurisdiction in the County
of San Diego, State of California, and the parties waive all provisions of law providing for a change
of venue in these proceedings to any other county.
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22. Authority
The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor
each represent and warrant that they have the legal power, right and actual authority to bind
Contractor to the terms and conditions of this Agreement.
Tht parties. each acting under due and proper authority, have executed this Agreement as of the day,
month and year first above written.
GTI TECHNOLOGY, INC.,
a California corporation
CITY OF CARLSBAD, a municipal
corporation of the State - of California
City Manager or Mayor
(print hatne/titIe>
ATTEST :
City Clerk
If required by City. proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
"Group A.
C hai rm a ti,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, CSAttorney
By:
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EXHIBIT “A”
SOFTWARE
1 Software Product/Service Description Cost
IDM for ESRl GIS Base Cost Base cost for integration deployment $3,495.00
IDM for ESRl GIS Intranet Deployment
IDM for ESRl GIS concurrent user license for 5
Base cost for intranet deployment
10 concurrent user licenses $10,345.00
$3,495 .OO
users
TOTAL SOFTWARE
8
$17,335.00
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
} SS.
State of California
County of 5nrl aenAcl01fla
On Jc~(ci 6 , %tP! beforeme, JEFF LEuri3, #br &V 3uJOll'C ,
date Name and Title of Office? (e.g.. "Jane Doe, Notety Public')
personally appeared LbbeLP)! 4l' CC tCl+ en L ,\cGre-f +i .e*
Name@) of Signer@)
O personally known to me @ proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) $/are
subscribed to the within instrument and
acknowledged to me that h&s#e/they executed
the same in M/h$r/their authorized
capacity(ies), and that by hjs/h&their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could pfevenf fraudulent removal and reattachment of this form io another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
0 Corporate Officer - Title(s):
0 Partner - 13 Limited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
0 1999 National Notary Association * 9350 De Sot0 Ave , PO Box 2402 - Chatsworth. CA 913152402 - www natlondnotary Oq Prod No 5907 Reorder Call Toll-Free 1-800-876-6827