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HomeMy WebLinkAboutSafe Software Inc; 2023-05-15;Local Government Subscription - SLA Addendum Contract Number: LGS2022-2721 Page 1 of 3 LOCAL GOVERNMENT SUBSCRIPTION Addendum to the FME Software License Agreement In addition to the terms and conditions of the FME Software License Agreement attached as Schedule A (the "SLA") between Safe Software Inc. (“Safe Software”), with offices located at Suite 1200 – 9639 137A Street, Surrey, British Columbia, Canada V3T 0M1, and you, City of Carlsbad with offices located at 1635 Faraday Ave, Carlsbad, CA, USA 92008, the following terms will also apply: 1. You are purchasing a Local Government Subscription (the “Subscription”) that includes the right to use an unlimited number of new, term-based FME Desktop and FME Server licenses (collectively, “New Inventory”) and Maintenance during the Subscription Term(s). 2. A “Term” is a one-year period. The initial Term will start on May 15, 2023. Under this Addendum, your Subscription may be extended for additional Terms by issuing additional orders. 3. Your Population Tier is: 100,000+ 4. The Subscription price for the initial Term is $20,000. Thereafter, Safe Software may adjust the annual Subscription price with written notice to you. 5. Upgrades and technical support (collectively, “Maintenance”) for New Inventory will be included during the Subscription at no additional cost. 6. All New Inventory, and Maintenance shall expire at the end of the Subscription. 7. The Subscription does not include access to Extra-Cost Plugins or FME Cloud. 8. All pricing is in United States dollars and does not include any applicable taxes. 9. In the event of a conflict between this Addendum and any provision in the SLA, the terms in this Addendum shall apply. 10. This Addendum will be interpreted in accordance with the laws of the State of California. Any action at law or in equity brought by either party for the purpose of enforcing a right or rights provided for this in Addendum, or in the SLA, 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. 11. Safe Software acknowledges and agrees that the City of Carlsbad is a public entity subject to the California Public Records Act (CA Government Code § 6250 et seq.) and the California Civil Discovery Act (California Code of Civil Procedure § 2016.010 et seq.). DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A Local Government Subscription - SLA Addendum Contract Number: LGS2022-2721 Page 2 of 3 12. Cyber Liability Insurance. At all times during the performance of work under this Addendum, and the SLA, and for sixty (60) months following the date of agreement termination, Safe Software will carry and maintain, at its own expense, Cyber Liability insurance with limits of not less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate. 13. Safe Software does not have any operations nor provide any services in the United States. Safe Software will comply with all applicable Canadian human rights and accessibility legislation. Safe Software will provide an Accessibility Conformance Report, based on VPAT version 2.3, for its Software upon request. 14. City may terminate this Addendum, and the SLA by tendering thirty (30) days written notice to Safe Software. No refunds will be issued for any termination prior to expiry of an active Term. 15. This Addendum may be executed and delivered electronically or in two or more counterparts, each of which when so executed shall be deemed an original, but all of which together shall constitute the same instrument. The undersigned represent that they are authorized to sign on behalf of, and bind, their respective party. DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A Local Government Subscription - SLA Addendum Contract Number: LGS2022-2721 Page 3 of 3 ACCEPTED AND AGREED: For SAFE SOFTWARE INC.: For CITY OF CARLSBAD: Signature: Signature: Name: Name: Title: Title: Date: Date: Attest: SHERRY FREISINGER City Clerk APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney BY: _____________________________ Deputy City Attorney DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A 5/17/2023 Angela McGeachan General Counsel Director of Information Technology Maria Callander 5/17/2023 forJ~ R.. "'M.!,, ~ 1 Schedule A FME Software License Agreement IMPORTANT- READ CAREFULLY: This FME Software License Agreement ("Agreement") is a legal agreement between you (either an individual or a single legal entity) and Safe Software Inc. ("Safe Software") for the Software and Related Materials with which this Agreement is delivered. By installing, downloading, copying, accessing, or otherwise using the Software and Related Materials, you agree to be bound by the terms and conditions of this Agreement. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, THEN DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND RELATED MATERIALS. This Agreement is a license from Safe Software and not a sale of goods. This Agreement gives you certain limited rights to use Safe Software's proprietary Software and Related Materials. All rights not specifically granted in this Agreement are reserved to Safe Software. 1. Definitions: As used in this Agreement, the following words, phrases, or terms shall have the following meanings: "Concurrencies" mean the maximum number of machines, virtual or otherwise, that may use the Software at the same time. "Engines" mean the proprietary processing cores linked to a license of the Software. "Environment" means the combination of Software with hardware, third party applications, and other computing elements for one of the following purposes: disaster recovery (which may include failover), development, staging (which may include testing, pre-production, quality assurance, or other non- production use), and production. "Software" means the actual copy of all or any portion of Safe Software's proprietary software technology, including FME Desktop, FME Server, Engines, and software development kits ("SOK"), on any media and in any format and includes backups, patches, service packs, updates, extensions, or permitted merged copies. "Related Materials" mean all of the user, reference, operating, training, or related information supplied by Safe Software in printed or electronic form including new, revised, and corrected documents. 2. Permitted Uses: Pursuant to the terms and conditions of this Agreement and any ordering document, Safe Software hereby grants to you a limited, non-exclusive, non-transferable license to install and use the Software and Related Materials as follows: A. If you acquire a fixed license, you are authorized to install and use one copy of the Software on a single designated physical or virtual machine in such a way that the Software is only accessible to a single user. B. If you acquire a floating license authorizing a specified number of Concurrencies, you may install the Software on multiple machines, provided that the number of users using the Software at any one time is not greater than the authorized number of Concurrencies. C. If you acquire a server license, you may install the Software without restriction to the number of users. A server license may be associated with standard Engines, dynamic Engines, or both. You may use no more than the authorized number of standard Engines associated with your server license. You may use an unlimited number of dynamic Engines up to the authorized amount of CPU processing hours associated with your server license. A Software license may only be used in a single Environment. For example, you must acquire three separate licenses to set up a development Environment, a staging Environment, and a production Environment. Licenses for different Environments cannot be combined onto a single license file. You may provide access to and use of the Software to any affiliate, consultant, or contractor solely for your benefit. You may make additional copies of the Software and Related Materials (but not the license) only as DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A 2 reasonably required for internal backup protection. Any other use must be approved in writing by Safe Software. FME Server Software may be used as part of a cloud-based application or web service offered to the public. When used as part of a cloud-based application or web service, FME Server may be used to process your own data or third-party data for the benefit of third parties. However, there must be added functionality or value to your cloud-based application or web service and the FME Server functionality cannot be offered to third parties in a standalone configuration. 3. Uses Not Permitted: Except as expressly provided in this Agreement, you may not use the Software to provide paid consulting services to third parties where the primary purpose of such consulting services is to provide data management, translation, or transformation unless the third party also owns a license of FME software. You shall not act as a service bureau or application service provider that allows third parties direct access to the Software. You shall not sell, rent, host, lease, sub-license, lend, timeshare, transfer, or otherwise provide unlicensed third parties direct access to the Software. You shall not reverse engineer, decompile, disassemble, alter, modify, or create any derivative works of the Software and Related Materials except to the extent permitted in this Agreement or by law. Other than as part of a cloud-based application or web service that uses FME Server, you may not use the Software to process third party data solely for the use and benefit of third parties. You may not use FME Desktop to provide any stand-alone data translation system or web service for third parties unless a separate written agreement is obtained from Safe Software. If you want to purchase rights beyond those granted by this Agreement, you may do so by contacting Safe Software at sales@safe.com. 4. Third Party Components: The Software may include software components licensed by third parties ("3rd Party Components"). Copyright notices and/or licenses for 3rd Party Components are available in the Legal Notices file located in the "About" box of the Software or may be requested by contacting legal@safe.com. All 3rd Party Components' license terms work in conjunction with this Agreement and together are complete statements of your rights and restrictions with respect to the Software. Where there is a conflict between a 3rd Party Components' license terms and this Agreement, the 3rd Party Components' license terms will prevail. 5. Sample Data & Authorization Credentials: You may use the sample data provided with the Software to test, evaluate, and demonstrate features of the Software, and for no other purpose. As well, the Software may contain pre-installed authorization credentials (the "Credentials") to permit connectivity with various web services. These Credentials are provided for testing, evaluation, and demonstration purposes. You may only use these Credentials in connection with the Software. These Credentials are provided by third party licensors, are not within the control of Safe Software, and may be disabled at any time without notice. If you use the Software for production purposes, then you should obtain your own account and authorization credentials for the web service(s) you plan to use. Instructions for obtaining your own authorization credentials will be available in the Related Materials. 6. Statistics Collection: Upon Software activation, you will have the option to permit the Software to collect anonymous usage statistics. The information collection process is anonymous and Safe Software does not collect personally identifiable information. Your results will be automatically combined with results from other users, and the resulting statistics will be used to identify trends and usage patterns which will help focus development efforts for future versions of the Software and allow us to provide configuration and usage recommendations on our website and in-product. You may disable usage statistics tracking at any time by going to the Tools tab -> FME Options -> Workbench tab. 7. License Exchange: If you upgrade the Software from one license type to another (for example, from fixed to floating), move the Software to a new machine, or upgrade to a new version or to an edition with additional functionality (for example, from Professional Edition to Database Edition), then you agree to uninstall the old Software license upon installation of the new Software license. All upgrades and replacement licenses are provided to you on a license exchange basis. By using any upgraded Software, you voluntarily terminate your rights to use any previous version of the Software, except to the extent that the previous version is required to transition to the upgraded Software. 8. Ownership & Copyright: Safe Software and its 3rd Party Component licensors retain exclusive title to and ownership of any copy of the Software and Related Materials licensed under this Agreement. The DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A 3 Software and Related Materials are protected by United States, European, and Canadian copyright laws and applicable international treaties and/or conventions. The structure, organization, and code are the valuable trade secrets of Safe Software and its licensors. You shall not remove, obscure, or deface any logo, notice, trademarks, or legend of copyright from the Software or any Related Materials. You have no right to use any of Safe Software's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. You agree not to export the Software and Related Materials into a country that does not have copyright laws that will protect Safe Software's proprietary rights. From the date of receipt, you agree to use reasonable efforts to protect the Software and Related Materials from unauthorized use, reproduction, distribution, or publication. 9. Third Party Applications for the Software: If you use the Software in conjunction with applications developed by you or third parties, you agree that Safe Software is not responsible for those applications and is not liable for any loss or damage resulting from the use of such third-party applicant io ns. You must ensure that any license terms for such third-party applications do not: (a) create, or purport to create, obligations for Safe Software or its 3rd Party Component licensors with respect to the Software; (b) grant, or purport to grant, any rights to Safe Software's or its 3rd Party Component licensors' intellectual property; or (c) grant, or purport to grant, any immunities under this Agreement. 10. Export Controls: You acknowledge and understand that the export or re-export of certain goods or technical data from Canada, the United States, or your applicable jurisdiction may be controlled by export control laws. The Software may be subject to such export restrictions. To the extent that it is, the Software may not be shipped, transferred, licensed, exported, or re- exported into any country or used in any manner prohibited by any applicable export laws, restrictions, or regulations. You are responsible for obtaining any and all appropriate permissions prior to exporting or re-exporting products incorporating, encompassing, or relying upon the Software. 11. Assignment: You shall not assign any of your rights under this Agreement without the prior written consent of Safe Software. Any purported assignment without such consent shall be null and void. 12. Term: The Software is licensed in perpetuity unless specified elsewhere in this Agreement, in a separate written agreement signed by both parties, or as otherwise described in the ordering documents for the Software. Notwithstanding the above, any Software acquired under a subscription plan will expire at the end of the subscription term. As well, Engines acquired under a "Dynamic Engine" plan will expire when you have used all CPU processing hours permitted in the ordering documents. You understand that under a Dynamic Engine plan, the Software will track the number of CPU processing hours used and the Engines will be disabled when all ordered CPU processing hours have been consumed. Any related support and maintenance services may be ordered in annual increments and may require additional payments. 13. Termination: This Agreement and the corresponding right to use the Software will terminate automatically if you breach this Agreement and fail to cure the breach within thirty (30) days after receipt of written notice from Safe Software. If the Software license was granted to you for evaluation purposes, then it automatically terminates on the earlier of: (1) the expiration of 30 days from the original installation of the Software or (2) when the Software ceases to function as a result of timing out, unless you have subsequently purchased a license from Safe Software, in which case the terms of this Agreement shall be deemed to have continued in full force and effect. On termination or expiration, you shall uninstall the Software, Related Materials, and any whole or partial copies, modifications, and merged portions in any form. The parties hereby agree that all provisions that operate to protect the rights of Safe Software shall remain in force should termination occur. 14. Limited Warranty: THE SOFTWARE IS PROVIDED "AS IS" AND WITH ALL DEFECTS AND ERRORS. Safe Software warrants that the media upon which the Software and Related Materials are provided will be free from defects in materials and workmanship, under normal use and service, for a period of ninety (90) days from the date of receipt. Safe Software warrants that it has the power to grant the license rights described in this Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAFE SOFTWARE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, USE OF REASONABLE SKILL AND CARE, OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SAFE SOFTWARE ASSUMES NO LIABILITY FOR DAMAGE TO ANY SYSTEM ON WHICH THIS SOFTWARE IS INSTALLED, FOR CORRUPTION OF ANY DATA TRANSLATED BY THE SOFTWARE, OR FOR LOSSES ARISING IN THE EVENT THIRD PARTIES ARE ABLE, FOR ANY REASON, TO USE OR ACCESS THE SOFTWARE OR YOUR DATA OR SERVICES WITHOUT CHARGE. DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A 4 Your exclusive remedy during the warranty period and Safe Software's entire liability under this Agreement shall be: (i) to replace the media containing the Software and Related Materials; or (ii) to refund the initial Software purchase price. 15. Infringement Indemnity: Safe Software will defend and indemnify you from any action brought against you, to the extent that it is based on a claim that the Software or Related Materials infringe a copyright, patent, trademark, or other intellectual property right of any third party, provided that: (a) Safe Software is promptly notified in writing of the claim; (b) you provide Safe Software with reasonable assistance, information, and authority necessary to negotiate and settle the claim; (c) such claim does not arise from the use of a superseded or modified release of the Software if such infringement would have been avoided by the use of the current or unmodified release of the Software; and (d) such a claim does not arise from the use, operation, or combination of the Software with programs, data, equipment, or materials not provided by Safe Software if such infringement would have been avoided by use of the Software without such programs, data, equipment, or materials. Should the Software become, or in Safe Software's opinion be likely to become, the subject of any such claim of infringement, then you will permit Safe Software, at Safe Software's option and expense, either to: (a) procure for you the right to continue using the Software; or (b) replace or modify all or a portion of the Software so that it is non-infringing. In the event neither of these remedies is available or practical, Safe Software may terminate this Agreement and return to you the initial Software purchase price, reduced on a pro -rat ed basis by 20% for each year since delivery, as well as a pro-rated refund of any pre-paid support fees for the then-current support term. This section states Safe Software's entire obligation for infringement. 16. LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFIT, REVENUE, DATA, OR BUSINESS OPPORTUNITY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE AND RELATED MATERIALS, WHETHER OR NOT SUCH LOSS OR DAMAGE IS REASONABLY FORESEEABLE. IN NO EVENT WILL SAFE SOFTWARE BE LIABLE FOR ANY AMOUNT, IN DAMAGES OR OTHERWISE, IN EXCESS OF THE AMOUNT INITIALLY PAID BY YOU FOR THE SOFTWARE. The parties agree that Safe Software has set its fees and entered into this Agreement in reliance on the disclaimers and limitations set forth herein and that they reflect an allocation of risk between the parties and form an essential basis of the bargain between the parties. 17. No Implied Waivers: Any failure or delay by Safe Software in enforcing any right or remedy under this Agreement shall not be a waiver of any term or condition of this Agreement nor any subsequent breach thereof. 18. Order of Precedence: The terms of this Agreement supersede the terms in any purchase order or other document you give to Safe Software. This Agreement may only be modified by a written amendment signed by both parties. 19. Applicable Law: The laws of the province of British Columbia, Canada, govern this Agreement. Any and all disputes shall be resolved in a court of competent jurisdiction in British Columbia, Canada. 20. Miscellaneous: If any provision of this Agreement is found to be unenforceable or invalid by a court of competent jurisdiction, such provision will be interpreted so as to best accomplish its objectives and the remainder of this Agreement will remain valid. Neither this Agreement, nor any terms and conditions contained in it, shall be construed as creating or constituting a partnership, joint venture, agency, or other similar relationship between the parties. Except as expressly provided, no other right or license is granted under this Agreement. I. ADDITIONAL TERMS: The following Additional Terms may apply to certain license scenarios. In the event of a conflict between these Additional Terms and any previous terms in this Agreement, these Additional Terms will apply. IF YOU ELECT “YES” TO INSTALL THE SDK DURING SETUP, this paragraph also applies to your use of the Software and Related Materials. You may use the SDK solely for the purpose of designing, developing, and testing applications that interface with the Software, and for no other purpose. You agree that you are solely responsible for any applications created using the SDK. DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A 5 IF THE SOFTWARE IS LICENSED UNDER A FREE TRIAL LICENSE, this paragraph also applies to your use of the Software and Related Materials. The term for these licenses may be limited. Software under a trial or evaluation license cannot be used for any production purposes and must be used solely for the purposes of evaluations, demonstrations, proof of concepts, prototypes, and self-learning. IF THE SOFTWARE IS LICENSED UNDER A HOME USE LICENSE, this paragraph also applies to your use of the Software and Related Materials. The term for these licenses may be limited. Software under a home use license is for personal, non-commercial use only. IF THE SOFTWARE IS LICENSED UNDER A RESEARCH OR NON-PROFIT GRANT LICENSE, this paragraph also applies to your use of the Software and Related Materials. The term for these licenses may be limited. Software under these licenses cannot be used for any commercial purpose and must be used solely for the project(s) approved by Safe Software during the application process. IF THE SOFTWARE IS LICENSED UNDER A STUDENT, INSTRUCTOR, TRAINING, OR OTHER EDUCATIONAL LICENSE, this paragraph also applies to your use of the Software and Related Materials. The term for these licenses may be limited. Software under these licenses cannot be used for any production or commercial purposes and must be used solely for the purposes of training, demonstrations, and education. IF THE SOFTWARE IS LICENSED UNDER A RECENT GRADUATE LICENSE ("Grad License"), this paragraph also applies to your use of the Software and Related Materials. The term for Grad Licenses may be limited. Software under a Grad License is to be used solely by you as the named user. Grad Licenses may be used at your place of employment for production or commercial use for the benefit of your employer. However, Grad Licenses cannot be transferred or sold to your employer, a co-worker, or another third party without express consent from Safe Software. IF THE SOFTWARE IS LICENSED UNDER A DEVELOPMENT PROGRAM LICENSE, this paragraph also applies to your use of the Software and Related Materials. The term for development program licenses may be limited. Software under a development program license cannot be used for any production purposes. Development program licenses are to be used solely for the purpose of developing and testing applications so that they interface with the Software and for no other purpose. IF THE SOFTWARE IS LICENSED UNDER A DEMO LICENSE, this paragraph also applies to your use of the Software and Related Materials. The term for demo licenses may be limited. Software under a demo license cannot be used for any production purposes or to provide paid services to third parties. Demo licenses are to be used solely for the purposes of demonstrations, evaluations, training, internal learning, proof of concepts, and prototypes. Additional usage rights may be agreed upon between the parties as part of a signed agreement. IF THIS SOFTWARE, OR A COMPONENT OF THE SOFTWARE, IS LABELED AS "BETA", "TECHNICAL PREVIEW" OR "RELEASE CANDIDATE", this paragraph also applies to your use of the Software and Related Materials. Beta, Technical Preview, and Release Candidate versions of the Software, or components within the Software, are considered pre-release software and so may contain defects and errors. You accept all risks of using these versions of the Software whether or not the risks are foreseeable or reasonable. IF YOU DOWNLOAD AND INSTALL CONTENT FROM THE FME HUB FOR USE WITH THE SOFTWARE, this paragraph also applies. Third parties may provide FME Hub content and such third-party content is not tested, verified, or supported by Safe Software. You agree to accept all risks of downloading and using FME Hub content whether or not the risks are foreseeable or reasonable. U.S. GOVERNMENT RESTRICTED RIGHTS: If the Software and Related Materials are acquired directly or indirectly on behalf of a unit or agency of the United States Government, this paragraph applies. The Software and Related Materials are commercial items, developed at private expense and are the trade secrets of Safe Software. You agree that the Software and Related Materials are licensed with restricted rights pursuant to the terms of this Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202, or any successor provisions. DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A 6 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. SAFE SOFTWARE INC. CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) IT Director ATTEST: By: (sign here) SHERRY FREISINGER 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 Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President 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: CINDIE K. McMAHON, City Attorney BY: _____________________________ Deputy City Attorney DocuSign Envelope ID: 72FA4B5B-7D0F-4BA5-89AC-9735395ED33A forJ~ R.. "'M1,, ~