HomeMy WebLinkAboutInfor Public Sector Inc; 2002-10-07;LIMITED SOFTWARE LICENSE AGREEMENT
Between
City of Carlsbad, California
And
Hansen Information Technologies Inc.
day of OC7bBB R This Limited Software License Agreement (“Agreement”) is made and entered into as of the 7 714
1635 Faraday Avenue, Carlsbad, CA 92008, and Hansen Information Technologies Inc. (“Hansen”) located at
2330 Glendale Lane, Sacramento, California 95825, on the following terms and conditions:
Hansen owns the rights and possesses the intellectual property to certain computer Software products and related
services from which Hansen derives substantial independent economic value; and Hansen 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 defmed computer Software products and access to related
services covered under the Hansen-owned copyrights, trademarks, trade names, patents and intellectual property
rights;
Therefore, in consideration of mutual promises set forth, the parties agree as follows:
1. License Granted. Hansen grants to Carlsbad and Carlsbad agrees to accept on the following terms and
conditions 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”). Said Software, and
the costs therefore, is described on the attached Exhibit “A” incorporated in and made a part of this
Agreement and such other Software, documentation or materials as Hansen provides to Carlsbad.
,2002 by the City of Carlsbad, CA (“Carlsbad”) located at,
2. Carlsbad recognizes that Hansen 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
Hansen.
3. The license granted under this Agreement authorizes Carlsbad to use the Software subject to the terms and
restrictions 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.
4. Definitions.
a) Ameement means this Agreement, together with all appendices, exhibits, schedules, attachments, and
addenda as the same may be amended, modified or supplemented.
b) Software means the computer programs, in object or executable form, which Hansen offers for license to
its customers, and related user documentation and source materials. Products covered by this Agreement
include Hansen’s product library of Microsoft Windows-based clientherver asset management, billing,
tax and permit systems including; but not limited to, the software described in Exhibit “A”, attached
this Agreement or as part of any future addenda. For the purposes of this Agreement, the term “products”
hereto and made a part hereof, and other associated products and related services as may be included in
includes any improvements, enhancements, changes, alterations, modifications, or amendments to the
products provided by Hansen.
c) Obiect 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.
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d) 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.
e) Source Materials means a computer program’s source code; printed copies (listings) of the source code;
all related written materials, comments, and documentation; database schemas, and any and all other
materials used by Hansen in the development, maintenance, and support of the products.
f) Price Ouote means the listing of Hansen products and associated prices to be provided under this
Agreement, attached to this Agreement as Exhibit “A”.
g) Software Tools means a set of auxiliary programs supplied by Hansen to service, maintain or otherwise
modify the Software.
h) Acceutance 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.
5. Term. The license granted by this Agreement is for perpetuity, unless violated by the licensee or otherwise
canceled by Carlsbad. If Carlsbad fails to comply with a material provision of this Agreement related to
Hansen’s intellectual property, this Agreement will terminate two weeks following notice of the violation,
unless the violation is cured prior to the expiration of the two week period. Carlsbad shall return to Hansen 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 Hansen shall remain in force should
breach occur, and shall survive the expiration or termination of this Agreement.
6. Pavment. Payment shall be made by Carlsbad to Hansen in the amount and for the Software stated on
Exhibit “A”. Payments shall be made as follows:
Software
75 percent of software costs upon delivery of software at Carlsbad.
15 percent of software costs upon the software being placed into production
10 percent of software costs thirty days following the satisfactory completion of all acceptance testing or
thirty (30) days following the software being placed into production, whichever occurs first. Carlsbad’s
Information Technology Director or designee will send Hansen a notice when the first of these events
occur. When the first of these events occur, Hansen may invoice Carlsbad for the final software payment.
The first of these events will be considered “acceptance” of the software. The first of these events will
hundred and fifty (1 50) days of the delivery of the software at Carlsbad due to the actions or inactions of
also trigger the commencement of the warranty period. If neither of “these events” occurs within one
Carlsbad, and not due to Hansen’s failure to place the project in a position to be tested or put into
production, the final software acceptance will be deemed and the final payment may be invoiced.
City may cancel any item listed in Exhibit “A”, without charge or obligation to Hansen, up to thirty (30)
days in advance of the item’s delivery and installation.
Hardware (If any)
Upon delivery and installation.
Professional Services and other items excluding Service and Maintenance
Billed monthly as accrued
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Thirty days following the satisfactory completion of all testing of any module or upon any module being
Service and Maintenance
placed into production, whichever occurs fust.
Invoices
Hansen will separately invoice for Software, Professional Services, Service and Maintenance, and
Hardware. Incremental payments, if applicable, should be made as outlined in attached Exhibit “A“.
7. Riehts Upon Termination. Upon termination of this Agreement, for any reason, Carlsbad shall return to
Hansen 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 Hansen’s request to do so,
Carlsbad shall certify to Hansen that, through its best efforts and to the best of its knowledge, it has complied
with the requirements of this paragraph.
8. m. Carlsbad shall not copy the Software except as expressly authorized herein; provided that Carlsbad
may make no more than reasonably necessary for Carlsbad’s internal archival and back-up purposes. All
trademark, copyright and proprietary rights notices must be faithfully reproduced by Carlsbad and included on
such authorized copies. Carlsbad, with Hansen’s permission, may copy limited documentation for its internal
training, management, and process control purposes. Hansen shall not unreasonably deny permission for
limited copying.
9. Derivative Works and Trade Secrets. Carlsbad shall not create or allow any other person or entity to
create any derivative work or product based on or derived from the Software, data model or documentation or
modify any Software, data model, or documentation without the prior written consent of Hansen. In the event
of a breach of this provision (and without limiting Hansen’s remedies) said modification, derivative work or
product based on the Software or documentation is hereby deemed assigned to Hansen. Carlsbad
acknowledges that the Software and related output (including procedures, printed output, screen displays,
formats, menus, graphics, audio output, etc.) are trade secrets of, and proprietary to, Hansen. Except as
required by law or with Hansen’s permission, Carlsbad agrees not to: (i) use any of the Software and related
output except in accordance with the terms of this Agreement, (ii) disclose any of the Software and related
output to any other person, except as required by law or court order, or (iii) allow any other person to inspect,
use or copy any of the Software and related output, except as required by law or court order. This section
shall also protect and be applicable to these trade secrets even if they are modified or changed by Carlsbad.
10. Source Code and Reverse Eneineerinp. This Agreement does not entitle Carlsbad to any source code,
Escrow Agreement is available through DSI if Carlsbad so desires for as long as Carlsbad has an active
source materials or other confidential information that Hansen elects to withhold. A standard Source Code
Service and Maintenance Agreement. The cost of the Source Code Escrow will be paid by Carlsbad and is
presently $200 per year. Carlsbad will not decompile, disassemble or reverse engineer the Software or create
any derivative work based on or derived from the Software, data model, or documentation.
11. Iniunctive Relief. Carlsbad acknowledges that any breach by Carlsbad of any of the covenants or provisions
contained in this Agreement will give rise to irreparable injury to Hansen, inadequately compensable in
damages alone. Accordingly, Hansen may seek and obtain preliminary and permanent injunctive relief
against the breach or threatened breach of said covenants or provisions. Such relief shall be in addition to any
other legal or equitable remedies that may be available to Hansen.
12. Trademarks. Trade Secrets and Intellectual Propertv.
a) Carlsbad acknowledges and recognizes that the Software; including, but not limited to Object and Source
that Hansen holds the copyright interests therein, the Programs and Documentation being treated as
Codes, and Source Materials, and all associated intellectual propem rights are the property of Hansen and
unpublished works. Carlsbad also recognizes and acknowledges the trademarks, trade names, copyrights,
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patents, intellectual property and trade secrets of any proprietary software utilized within or in connection
with the Software (e.g. Oracle). Carlsbad and its employees agree to cooperate in good faith to secure and
preserve Hansen’s right and title to the trademarks, trade names, copyrights, patents, intellectual property
and trade secrets. Carlsbad and its employees understand: (1) that Hansen’s trademarks, trade names,
copyrights, patents, trade secrets and intellectual property have independent economic value, (2) that the
independent economic value derives from the fact that Hansen’s information is not generally known to
the public nor known to Hansen’s competitors or others in the public works Software field, (3) that this
Agreement to maintain Hansen information secrecy is reasonable, and (4) that they owe a duty to Hansen
to take reasonable steps to maintain and protect secrecy.
b) Except when otherwise required by law or with Hansen’s permission, Carlsbad and its employees
techniques, processes, ideas and concepts imparted by Hansen regarding the trade secrets of Hansen,
expressly agree to retain in confidence all information, formula, compilations, programs, methods,
including but not limited to, Hansen’s data element dictionary, data definition language, data model,
technical and instructional manuals, documentation, descriptions, computer screens, reports, table codes,
forms, schema, flow diagrams, instructions and any other information provided by Hansen to Carlsbad.
c) Carlsbad agrees to limit its use of any knowledge obtained from Hansen to those activities covered under
the terms of this Agreement. Specifically, Carlsbad and its employees are explicitly prohibited from the
design, development, or reverse engineering of any product. Carlsbad also is explicitly prohibited from
modifying, changing, customizing, improving, or enhancing Hansen’s products. Furthermore, Carlsbad
understands that any individual characteristic or component supplied by Hansen, each of which, by itself,
may be in the public domain, but is contained in the unified Hansen process, design and operation of its
products, represents a unique combination and affords a competitive advantage and is a protectable secret.
d) Hansen’s products are copyrighted by Hansen. Except as provided for herein, Carlsbad agrees not to
remove any copyright notices or confidential or proprietary legends from the Software, incorporated
products or Software tools without Hansen’s prior written consent. Except as provided for herein, neither
Hansen nor Carlsbad shall use the other’s trademarks or trade names on products or other materials
without the prior written consent of the other.
e) Carlsbad shall require that the Hansen Software and associated materials be maintained in a manner so as
to reasonably preclude unauthorized persons from having access thereto. Carlsbad shall use reasonable
efforts to assist Hansen in identifying any unauthorized use, copying, or disclosure of any portion of the
Hansen Software by any present or former staff member, upon being provided reasonable evidence that
such unauthorized disclosure, use, or copying may have occurred.
13. Confidentiality. Hansen 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
Hansen 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.
14. Public Records Aet Reauests. In the event Carlsbad receives a request under the California Public Records
Act for Hansen’s confidential information, Carlsbad will promptly notify Hansen. Within five (5) days after
receiving the notice, Hansen will inform Carlsbad whether Hansen objects to disclosure of the requested
information. If Hansen does not object to disclosure or if Hansen 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 Hansen does object to disclosure, then Carlsbad will decline to produce the requested information and
Hansen will indemnify, defend, and hold Carlsbad harmless from and against all claims, damages, judgments,
awards, costs of litigation and attorney fees arising out of the declination.
15. SUDDOI-~ Services. Carlsbad agrees to pay Hansen for annual service and maintenance, if so contracted, in
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the amount and in the manner stated in the separate Service and Maintenance Agreement. Service and
Maintenance is required for the fvst year of licensed use.
16. Other Professional Services and Fees. Hansen 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. Any cancellation of professional services by Carlsbad with two weeks
notice or less prior to the date scheduled for the services will be subject to a $250 fee plus any non-refundable
travel expense.
17. Indemnification. Hansen agrees to and does hereby indemnify, defend and hold harmless from liability
Carlsbad against any and all claims that the Software infringes any rights of third parties in patent, copyright
claim or action, Hansen shall have the option to either; 1) modify the Software so as to render it non-
or trade secrets in the United States and any and all actions arising out of such claims. In the event of any such
Carlsbad the right to continue using the Software. Any such indemnification under this Section shall be
infringing so long as it continues to conform to the specifications and warranties herein; or 2) procure for
contingent upon Carlsbad's 1) promptly notifying Hansen 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 Hansen sole control of the defense or settlement of any such claim or action.
18. Performance Standards. Provided Carlsbad's network and hardware are appropriate and properly
functioning for the application, the System shall (i) complete 80% of all on-line single SQL database
transactions in an average of three seconds or less. "Completion time" shall be measured from the moment
when the user requests an action to the moment when the System's complete response to that action has been
displayed; and the System shall (ii) complete 99% of all on-line single SQL database transactions in an
average of six seconds or less. "Completion time" shall be measured from the moment when the user requests
an action to the moment when the System's complete response to that action has been displayed. Transactions
for the purposes of this section shall be measured based on mutually agreed upon scripts.
19. Limited Warrantv - Software. Hansen 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 Hansen within one hundred twenty (120) days after
the warranty period commences then Hansen 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 Hansen. 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 the software is placed into
production. . Hansen warrants that the professional services will be performed using generally accepted
industry standards and practices.
20. Disclaimer of Warranties. HANSEN MAKES NO WARRANTY, REPRESENTATION OR PROMISE
EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. HANSEN DISCLAIMS AND
EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A
PARTICULAR PURPOSE. HANSEN DOES NOT WARRANT THAT THE SOFTWARE OR
DOCUMENTATION WILL SATISFY CARLSBAD'S REQUIREMENTS OR THAT THE SOFTWARE
OR DOCUMENTATION ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
21. Limitation on Liability. TO THE MAXI= EXTENT PERMITTED BY APPLICABLE LAW, THE
AGGREGATE LIABILITY OF HANSEN ARISING FROM OR RELATING TO THIS AGREEMENT,
THE FORM OF ACTION OR CLAIM - E.G. CONTRACT, WARRANTY, TORT, MALPRACTICE,
AND/OR OTHERWISE) IS LIMITED TO THE TOTAL FEES PAID BY CARLSBAD UNDER THIS
AGREEMENT. HANSEN SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL,
THE SOFTWARE, THE DOCUMENTATION, OR PROFESSIONAL SERVICES (REGARDLESS OF
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INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF THEY HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HANSEN IS NOT RESPONSIBLE FOR
CREATING LOST DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM. THIS
LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF RE-
PROVISION DOES NOT APPLY TO INDEMNIFICATION CLAIMS SUBJECT TO PARAGRAPH 17.
THERE IS NO LIMIT ON ACTIONS OR CLAIMS FROM PERSONAL INJURY OR PROPERTY
DAMAGE DUE TO HANSEN’S NEGLIGENCE.
22. Sole Remedv and Allocation of Risk. CARLSBAD’S SOLE AND EXCLUSIVE REMEDY AND
HANSEN’S SOLE AND EXCLUSIVE LIABILITY IS SET FORTH IN THIS AGREEMENT. THIS
AGREEMENT DEFINES A MUTUALLY AGREED-UPON ALLOCATION OF RISKS AND THE
AMOUNT PAYABLE TO HANSEN BY CARLSBAD REFLECTS SUCH ALLOCATION OF RISK.
23. Foree Maieure.
a) Neither party shall be liable for any costs or damages due to nonperformance under this Agreement arising
out of any cause or event not within the reasonable control of such Party and without its fault or
negligence.
b) Each of the Parties hereto agrees to give notice forthwith to the other upon becoming aware of an event of
Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force
Majeure.
c) If a default due to an Event of Force Majeure shall continue for more than three (3) months then the party
not in default shall be entitled to terminate this Agreement as a result of an Event of Force Majeure.
24. 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.
25. 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, illegal 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.
26. Relationships of the Parties. Hansen and Carlsbad are independent of each other. This Agreement does not
and is not intended to create in any way or manner or for any purpose an employee-employer relationship or a
principal-agent relationship. Neither party is authorized to enter into Agreements for or on behalf of the
other, to create any obligation or responsibility, express or implied, for or on behalf of the other, to accept
payment of any obligations due or owed the other, or to accept service of process for the other. Under no
circumstance or interpretation will this Agreement be construed as a work for hire.
27. Conflict of Interest. Hansen certifies and warrants that neither Hansen, nor any of its agents, representatives
or employees which will participate in any way in the performance of Hansen’s obligations hereunder has or
will have any conflict of interest, direct or indirect, with Carlsbad.
28. 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, and the Service and
Maintenance Agreement, constitute the entire Agreement between the parties and supersedes all previous
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Agreements including promises and representations, whether written or oral, between the parties with respect
to the subject matter hereof.
29. CounterpartdFacsimiles. This Agreement may be executed in one or more counterparts, each of which
when executed and delivered shall be deemed to be an original, and all of which shall together constitute one
and the same instrument. The parties agree that transmission to the other party of this Agreement with
facsimile signatures shall suffice to bind the party transmitting same in the same manner as if this Agreement
with such party’s original signature had been delivered. Without limiting the foregoing, each party who
transmits this Agreement with its facsimile signature covenants to deliver the original thereof to the party as
soon as possible thereafter.
30. Effect of Conflictine 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.
(Remainder of Page Intentionally Left Blank)
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3 1. 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 by 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.
The parties, each acting under due and proper authority, have executed this Agreement as of the day, month and
year first above written.
HANSEN
~~ (print namekitle)
City Clebk
If required by City, proper notarial acknowledgment of execution by contractor must be attached. Ib
Cornoration, Agreement must be signed by one corporate officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-president
**Group B.
Assistant Secretary,
Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation 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, City Attorney
By: M&%&Vv
Deputy City Attorney
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EXHIBIT "A"
SOFTWARE
Number of
Product # Software Module Description Unit Price Seats cost
AE-01 Hansen's Version 7.5 for Street 4,000 4 16,000
AT-01 Hansen's Version 7.5 for Storm 4,000 4 16,000
cs-01 Hansen's Version 7.5 for Customer Service 1,000 4 4,000
NAG Hansen's Nag System 10,000 1 I0,OOO
GIS-AV Hansen's Version 7.5 GIS Interface 2,500 1 2,500
TAB Hansen's Custom Tab Editor 10,000
CRY-01 Report Writer (Crystal Reports) per PC 1,500 1 1,500
Software Total $60,000
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
} SS.
E-personally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person@) whose name@) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in hidherltheir authorized
capacity(ies), and that by his/her/their
the entity upon behalf of which the person(s)
signature@) on the instrument the person@), or
acted, executed the instrument.
@SS my hand and official seal
Though the rnlomatlDn below is not required by law, it may prove valuable to perrons relying on the documen1 and could prevent
lrauduleni removal and reattachment 01 this form to another document.
Description of Attached Document
Signer@) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
D Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conselvator
0 Other:
Signer Is Representing: u