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HomeMy WebLinkAboutExhibit 12EXHIBIT G SOFTWARE LICENSE AGREEMENT Professional Services A.-reement — Foray Technologies —RFP 127103, Law Enforcement Digital Photo Lab System FORAY- ., i., TECHNOLOGIES SOFTWARE LICENSE AGREEMENT THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made by and between Foray LLC dba Foray Technologies ("Licensor"), with offices at 3911 5th Ave, Ste 300, San Diego, CA 92103, and , situated in the city of , state of ("Client"). The software packages covered by this Agreement include ADAMS Digital WorkplaceTM, ADAMS Digital AcquireTM, ADAMS Viewefrm, ADAMS Audit Trail ServerTM, ADAMS Audit Trail Workstation TM, ADAMS Advanced User Rights Management ServerTM, and ADAMS Advanced User Rights Management Workstation TM, and is licensed by Licensor to Client for use only on the terms set forth herein, and Client shall not use such Software except in strict compliance herewith. Grant of License. Subject to the terms and conditions of this Agreement, Licensor grants to Client a non -transferable, non-exclusive perpetual license to use the Software: a. Single User License. Client may use and install the Software only on a single terminal connected to a single computer (i.e. single CPU) or to a network server. If Client installs the Software on a network server, Client must purchase a separate copy of the Software for each computer terminal that will be used to operate the Software as required pursuant to subparagraph b. below. Network License. If Client is acquiring a version of the Software for network use, Licensor grants to Client the right to use the Software on a licensed computer network as provided below. A computer network is any combination of two or more terminals that are electronically linked and capable of sharing the use of a single software program. A "licensed computer network" is a computer network for which Client has acquired and dedicated at least one standard single user license of the Software (which single user licensed Software can run stand alone or on a network server). For additional users to use the Software on the network, Client must acquire LAN NODES for each such additional terminal that is electronically linked to the network server. If the documentation accompanying the Software expressly so permits, you may convert a standard licensed copy of the Software to operate as a LAN NODE, provided that no other use is made of that copy (i.e. is not used as a stand alone or network server copy). Client may have only as many copies of the Software in simultaneous use on the network as the Client has properly licensed LAN NODES and single user licenses. For example, a network with five terminals shall have one single user/network server license and five LAN NODES licenses. , 20 Page 1 Contract Number 2. Other Restrictions. Client shall not (i) sell, lease or transfer the Software, (ii) use the Software to provide services under any other name than that of Client; (iii) use the Software to process the data of third parties without Licensor's prior written consent; (iv) modify, adopt or change the Software; or (v) reverse engineer, decompile, disassemble, translate or create derivative works of the Software. Client agrees that the number of installations of the Software shall not exceed the number of licenses purchased by and issued to Client. Additional LAN NODE licenses for additional installations may be purchased by Client at Licensor's then current rates, which Licensor may change from time to time without notice. Copyright and Copies. The Software is owned by Licensor or its suppliers and is protected by the United States copyright laws and international treaty provisions. The Software and hardware associated therewith are valuable property of the Licensor and its suppliers and Client shall not make or have made, or permit to be made, any copies or duplications of the Software, documentation, hardware configuration, or any portions thereof, except that CIient may retain one (1) copy of the Software solely for backup or archival purposes, provided Client also reproduces all copyright and other proprietary notices that are on the original copy of the Software. Client may also transfer each licensed copy of the Software to a single hard disk provided Client maintains the original copy solely as the backup or archival copy. 4. Termination of License. All of Client's Iicenses hereunder shall automatically terminate in the event Client either (i) fails to fully pay to Licensor for any license or right granted hereby or (ii) Client violates or breaches any term, covenant or condition contained herein and does not cure the failure to pay or breach within sixty (60) days of being notified by Licensor of the failure or breach in writing. Upon any such termination, Client shall either destroy or return to Licensor the original and all copies of the Software and related documentation and cease all use of the Software and trademarks. Confidentiality. Client agrees that neither the Client, its agents nor its employees shall in any manner use, make available, make known, divulge or communicate any information with respect to the Software which might enable copying all or any portion of the Software or the development of a similar computer program or system. Client agrees to take all appropriate action to protect the confidential and proprietary information included in the Software, including appropriate instruction and agreement with its employees. Title to and all proprietary rights in the Software, including all modifications, documentation and related written and electronic materials, shall remain vested exclusively in Licensor. 6. Limited Warranty. Licensor warrants that it has clear title to the Software. Licensor further warrants that for a period of twelve (12) months after installation and for as long as the County is paying for software support and maintenance, the Software, if used by Client in accordance with applicable documentation and not modified by Client in any way, will substantially perform the functions outlined in the user documentation. Client's sole remedy under the preceding limited warranty is that Licensor will undertake to correct within a reasonable period of time any reported "Software Error" (failure of the Software to perform substantially the functions described in the documentation), correct errors in the documentation, and replace any magnetic media which proves defective in materials or workmanship on an exchange basis without charge. In order to make a claim under this limited warranty, Client must return the defective item to the Licensor, postage prepaid, within ten (10) days following the expiration of the limited warranty period. If Licensor is unable to replace the defective media or if Licensor is unable to provide corrected software or corrected documentation within a reasonable time, Licensor will, at its sole and exclusive option, either replace the Software with a functionally equivalent program at no 20 Page 2 Contract Number charge to Client or refund the license fee of the Software. The aforementioned remedy is the Client's sole remedy for any breach of warranty by Licensor. THE ABOVE LIMITED WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, AND LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, NO WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE, NOR ANY WARRANTIES WITH REGARD TO VALUE ADDED ENHANCEMENTS, INTEGRATIONS OR MODIFICATIONS ADDED TO OR COUPLED WITH THE PRODUCT BY OTHERS, OR WITH REGARD TO OTHER SERVICES OR TECHNICAL SUPPORT TO BE PROVIDED BY OTHERS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE LIMITED WARRANTIES OR CREATE ANY NEW WARRANTIES. IN THE EVENT THE EXCLUSION OF IMPLIED WARRANTIES ARE PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE. 7. Government Client. If Client is acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply: a. The government acknowledges Licensor's representation that the Software and its documentation were developed at private expense and no part of them is in the public domain. b. The government acknowledges Licensor's representation that the Software is "Restricted Computer Software" as that term is defined in clause 52.227-19 of the Federal Acquisition Regulations (FAR) and is "Commercial Computer Software" as that term is defined in Subpart 227.471 of the Department of Defense Federal Acquisition Regulation Supplement (DFARS). c. The government agrees that: i. If the Software is supplied to the Department of Defense, the Software is classified as "Commercial Computer Software" and the government is acquiring only "Restricted Rights" in the Software and its documentation as that term is defined in Clause 252.227-7013(c)(1) of the DFARS, and ii. If the Software supplied to any unit or agency of the United States government other than the Department of Defense, the government's rights in the Software and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR. iii. Any change, supplement or addition of any of the foregoing referenced regulations shall be incorporated into the foregoing by this reference. 8. RESTRICTED RIGHTS LEGEND. The use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. 3911 5th Ave, Ste 300, San Diego, CA 92103. 20 Page 3 Contract Number 9. General Provisions. a. Assignability. This Agreement, and all rights and obligations shall not be assignable by Client without the prior written consent of Licensor which consent may be withheld for any reason. A change in control or ownership of the Client shall be deemed an assignment subject to this paragraph. This Agreement shall be binding upon each party's successors and assigns. Limitation of Liability. Licensor's liability shall be limited to direct monetary damages which shall not exceed the initial Software purchase price. For purposes of the foregoing, the Software purchase price shall be limited to the price paid for only that Software provided by Licensor either directly or through its distributor, which shall exclude, but not be limited to, the cost of third party provided software, hardware, enhancements, services, or training other integrated systems including the distributor's value added enhancements, freight charges, sales, use and other taxes, installation, maintenance and service charges, and other associated costs not paid directly for products provided by Licensor. REGARDLESS OF WHETHER ANY REMEDIES SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL LICENSOR BE LIABLE FOR (1) ANY LOSS OR INJURY CAUSED BY OR ARISING FROM THIS AGREEMENT OR ANY SOFTWARE FAILURE OR MALFUNCTION, (2) ANY LOSS OR COST RELATING TO CLIENT'S LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH EVEN IF LICENSOR OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (3) ANY CLAIM BY ANY OTHER PARTY, OR (4) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. NO ACTION OR CLAIM RELATING TO THIS AGREEMENT OR THE SOFTWARE MAY BE INSTITUTED MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH ACTION OR CLAIM. Entire Agreement. Each party acknowledges that this Agreement is the complete and exclusive agreement of the parties and supersedes all other communications, oral or written, between the parties relating to the Agreement's subject matter. Any change to this Agreement shall not be valid unless it is in writing signed by both parties. This Agreement will inure to the benefit of Licensor and its successors and assigns. d. Governing Law. This Agreement (including any attachments), its subject matter and the parties' respective rights and obligations hereunder is made, entered into, and shall be performed in the County of Henrico, Virginia, and shall be governed by the applicable laws of the Commonwealth of Virginia. Any dispute arising out of the contract resulting from this Agreement, its interpretations, or its performance shall be litigated only in the Henrico County General District Court or the Circuit Court of the County of Henrico, Virginia. e. Default. In the event of any default of any obligation under this Agreement which remains uncured sixty (60) days after receipt of written notice of such default, the non -defaulting party may terminate this Agreement. If this Agreement is terminated, Client shall return the Software and all user documentation to Licensor. f. Waiver. Except as otherwise provided herein, neither the failure nor any delay to exercise a right, remedy or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of a right, remedy or privilege preclude any further exercise of the same. 20 Page 4 Contract Number g. Severability. A determination that any provision of this Agreement is invalid, illegal or unenforceable shall not affect the enforceability of any other provision. h. Notices. All notices and other communications required under this Agreement shall be in writing and shall be deemed to have been received when personally delivered or when deposited in the United State mail, first class postage prepaid, addressed as set forth on page one of this Agreement. i. Forms, Reports and Interfaces. Licensor shall receive a copy of all forms, custom reports and interfaces developed by Client for or to be used with the Software and shall have the unrestricted right to use, copy and incorporate in its Software the format of such forms, custom reports and interfaces. Authority. The Client has full power- and authority to enter into and perform this Agreement, and the persons accepting this Agreement on behalf of the Client has been properly authorized and empowered to enter into this Agreement on behalf of the Client. THE CLIENT AND THEIR AUTHORIZED REPRESENTATIVE EACH FURTHER ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. THIS AGREEMENT is dated and effective on the date or dates as set forth above. Foray. LLC dba Foray Technologies: 3911 5'h Avenue, Suite 300 San Diego, CA 92103 Signature: Printed Name: David L. Witzke Title: Vice President, Program Management 20 Page 5 Signature: Printed Name: Title: Contract Number L01"Flym EXHIBIT H SOFTWARE SUPPORT AND SERVICE AGREEMENT Professional Services Agreement — Foray Technolosies — RFP 127103, Law Enforcement Digital Photo Lab System .31 FORAY - TECHNOLOGIES SOFTWARE SUPPORT AND SERVICE AGREEMENT This Software Support and Service Agreement is based on Contract Number , dated this day of, 20 between Foray LLC dba Foray Technologies, with its primary office located at 3911 5th Ave, Ste 300, San Diego, CA 92103, and , situated in the city of state of ("Client") and includes: • First User unlimited access to the Foray Technologies Support Desk, M -F 7:00 AM — 5:00 PM Eastern Time and off -hour support by leaving a message with the on-call support engineers (which is listed on our voice mail), excluding statutory and local holidays. .• Free ADAMS software updates and upgrades Remote diagnostics and troubleshooting of ADAMS software. Customer must provide dial up and/or Internet access to the ADAMS system. ,• On-site emergency dispatch if necessary COVERAGE Foray Technologies (or its designated service representative) will, during its normal working hours (which are, 7:00 a.m. to 5:00 p.m. Eastern time, Monday through Friday, except for statutory and local holidays), provide standard support services to Client for the ADAMSTM ("SOFTWARE") product line as outlined within this agreement. Support Services to include: A. "STANDARD SUPPORT SERVICES", which consist of assistance and similar SUPPORT SERVICES by telephone in connection with the use and operation of the Foray product line software. B. "ON SITE SUPPORT SERVICES", which provide that Foray Technologies will make all adjustments, repairs and replacement to the Software as, in the opinion of Foray Technologies, are required as a result of normal use of the Software by the client and to maintain the Software in good working order. C. SOFTWARE UPDATES, which provide that client will receive updates to the Software. 20 Page 1 Contract Number 2. COVERAGE EXCLUSIONS A. SOFTWARE SUPPORT, which provides that Foray Technologies shall have no obligation to support: a. Altered, damaged or modified software or any portion of the software incorporated with or into other software; b. Use of third party software other than as specified, installed, supplied or approved in writing by Foray Technologies; C. Software problems caused by Client's negligence, abuse or mis- application, or other causes beyond the control of Foray Technologies; d. Software installed on any hardware than does not meet the minimum specifications as provided by Foray Technologies; e. Hardware -related problems; f. Sites without remote support software and modem access. Services not covered under this agreement but required by client after Foray Technologies' working hours as identified above may be performed by Foray Technologies at the request of the client and if so performed, will be charged to the client in accordance with Foray Technologies' time and materials rates then in effect, including overtime rates if applicable. 3. CONDITIONS OF MAINTENANCE As conditions to Foray Technologies' obligation to provide service or maintenance, the client shall: A. Use and maintain the Software in strict compliance with the instructions specified in the Software user manual(s); B. Make or permit no alterations to the Software without Foray Technologies' prior written approval; C. The client will provide Foray Technologies such access to the Software as is required to allow Foray Technologies to perform maintenance as and when required by Foray Technologies, including remote support connection if applicable. If additional costs are incurred by Foray Technologies as a result of the client's denial of access to the Software during normal working hours, the client will bear such costs. D. The client shall be responsible for registering with all manufacturers applicable warranty cards for third party software and equipment, if applicable, as provided by Foray Technologies. 20 Page 2 Contract Number 4. CHARGES AND PAYMENT All charges due are payable by the client on delivery to the client of the invoice for such charge within 30 days of receipt of invoice. Interest charges on late payments will be levied by Foray Technologies at the lesser of: (1) the rate of 2% per annum above the prime commercial lending rate charged by Wells Fargo Bank or (2) the highest rate permissible by law. The client shall bear all taxes arising from transactions contemplated including, but not limited to, state and local sales and use taxes, irrespective of designation as excise, gross receipts or privilege taxes. Client shall either: (a) pay to Foray Technologies the amounts of the foregoing taxes; or (b) timely provide Foray Technologies with evidence necessary to sustain an exemption therefrom. In the event that client fails to make payments pursuant to this Section 4, and such payment is not received within thirty (30) days of such payment date, Foray Technologies may, at its option, cancel or suspend the provision of any services or products to client, whether pursuant to this or any other agreement between Foray Technologies and client, until such charges have been paid. If Foray Technologies decides, at its option, to reinstate this agreement, client must first pay Foray Technologies any fees due and, at Foray Technologies option, Foray Technologies' current reinstatement charge. 5. RENEWAL This agreement shall commence on the date of coverage specified in this agreement and shall continue for a one year term. Client will have the option to renew agreement on an annual basis, terms and conditions may be subject to change upon renewal, provided that Foray Technologies provides the client with written notice of such change or changes at least 90 days prior to the Renewal Date of this agreement. All other price schedules of Foray Technologies not a part of this agreement may be changed by Foray Technologies without notice. 7. LIMITATION OF WARRANTIES AND SERVICES The use of the Software will be under the client's exclusive management and control. The client will be responsible for assuring the proper use, management and supervision of the Software, audit controls, operating methods and office procedures, for establishing the necessary control over access to data, and for establishing all proper check points and procedures necessary for the client's intended use of the Software and the security of the Software and the data stored thereby. THE SERVICES AND WARRANTIES EXPRESSED HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY OTHER SERVICE CONTRACTS AND WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FORAY TECHNOLOGIES SHALL NOT BE LIABLE FOR SPECIAL, DIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT OR EQUIPMENT PROVIDED FOR HEREUNDER. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE OF ALL OTHER REMEDIES. FORAY TECHNOLOGIES LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER RELATING TO FORAY TECHNOLOGIES' AGREEMENT TO PROVIDE SERVICES HEREUNDER SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR SUCH SERVICES. 20 Page 3 Contract Number B. DATA LOSS It is the client's sole responsibility to perform and verify complete system program and data file backups and under no circumstances will Foray Technologies thereof be responsible or liable for any real or calculated losses the client may suffer due to drive or media failure. Should it become necessary to reconstruct data to failed equipment, Foray Technologies shall do so at client's request and will charge the client in accordance with Foray Technologies' time and materials rates then in effect, including overtime rates if applicable. 9. ATTORNEYS' FEES, LAW, VENUE The client shall pay all costs and expenses relating to the enforcement or preservation of Foray Technologies' rights including attorneys' fees. These terms shall be construed and enforced in accordance with the laws of the State of California. The parties agree that all disputes or other matters pertaining to the enforcement or interpretation of any provision or arising from any other aspect created hereby shall be submitted for resolution to the California State Superior Court in San Diego County, California. 10. GENERAL These terms will become effective only after execution by the client and acceptance by Foray Technologies. No other form of acceptance, verbal or written, will be valid or binding on Foray Technologies. This constitutes the entire agreement between the client and Foray Technologies with respect to the provisions of these terms. Only an officer or director of Foray Technologies by written agreement has the power and authority to amend the terms in which Foray Technologies will supply coverage. 11. NOTICES All notices required under this agreement will be in writing and mailed or delivered to the client at the client's billing address shown in this agreement and to Foray Technologies at its office address indicated on the invoices submitted by Foray Technologies to the client. 12. DELAYS Foray Technologies shall not be liable for delays in performance or failures to perform its obligations under this agreement caused by circumstances beyond its control including, but not limited to, delays or failure to perform caused by work stoppages, delays or losses in shipping, bad weather, import and other governmental restrictions, accidents, and delays or failure to perform by its suppliers. 13. ENTIRE AGREEMENT This agreement shall constitute the entire agreement between the client and Foray Technologies for the subject matter hereof, irrespective of inconsistent or additional terms and conditions in the client's purchase orders or other documents submitted to Foray Technologies. Accept as otherwise provided herein, this agreement may be amended only by written instrument executed by both parties. 20 Page 4 Contract Number THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. THE SOFTWARE AND ALL MATERIALS RELATED TO THE SOFTWARE ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE SOFTWARE LICENSE AGREEMENT. THIS AGREEMENT IS A PART OF THE SOFTWARE LICENSE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE LICENSE AGREEMENT. THIS AGREEMENT is dated and effective on the date or dates as set forth above. Foray, LLC dba Forgy Technologies: 3911 5"' Avenue, Suite 300 San Diego, CA 92103 Signature: Signature: Printed Name: David L. Witzke Printed Name: Title: Vice President, Program Management Title: Remit Address: Foray Technologies 3911 5th Ave, Suite 300 San Diego, CA 92103 (619)858-1360 (619)858-1366 (Fax) 20 Page 5 Contract Number