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HomeMy WebLinkAboutExhibitB&! ASSOCIATES 220 Reservoir Road (suite 15) Needham, MA 02494 (781) 444-1404 LICENSE AGREEMENT FOR PROPRIETARY SOFTWARE PRODUCTS 7N This Agreement ( 42010-48264) is made on the 9 day of h -Fc Ax, V 2010 between r I) B&L Associates, Inc. 220 Reservoir Road; Needham, MA 02494 (`B&U') 2) City of Miami 400 NW 2nd Avenue Miami, FL 33128 ("Customer"). Whereas A) B&L is the owner and licensor of the Software as hereinafter described. B) Customer is desirous of using the Software owned and licensed by B&L. Now it is hereby agreed as follows: 1, DEFINITIONS. "Acceptance Period" means the first 30 days after the Effective Date. "Documentation" means the documentation provided by B&L to Customer for the installation, use and support of the Software. Accepted for B&L by: Name LeonarDi /ar� Signature � % Title Treasurer Date -dill C7 k12 - f 2- `�� / .Accepted for Customer by: Name Signature Title Date Accepted as to form and correctness: Name Signature Title Date Accepted as to insurance requirement: Name Signature Title Date Agreement: #42010-48264 Page. 2 "Effective Date" means October 1.2009, "Processor" means the processor(s) described in Schedule 1. "Product Support" means the work done by B&L to keep the Software current, provide Updates, provide bug fixes, provide telephone support, and make sure the Software runs on the three most current versions of the Unisys operating system (MCP), "Product Support Date" means October 1, 2009, and each anniversary thereafter. "Site" means any Customer location. "Software" means the licensed software as described in Schedule 1 and the Documentation. "Subsidiary" means a corporation or other entity more than fifty percent (50%) of whose outstanding voting shares or securities are, now or hereafter, owned or controlled, directly, or indirectly, by Customer. "Update" means a release of a Software product, subsequent to the initial delivery, which incorporates (a) accumulated corrections, or (b) enhancements together with revisions to, or revised, Documentation which properly describes the updated Software. 2. GRANT OF LICENSE 2.1 B&L hereby grants to Customer a permanent non-exclusive right and license to install and use the Software at the Site on the Processor described in Schedule 1. 2.2 Upon prior written notice to B&L Customer may change the Site. 2.3 Upon prior written notice to B&L Customer may operate the Software on a smaller processor than the one described in Schedule I provided that b) the Processor described in Schedule 1 is still present at the Site, and b) the Software will only run on one processor in total 2,4 Customer agrees to refrain from using the Software for other entities or Subsidiaries on a service basis without the written permission of B&L. 3. CUSTOMER CERTIFICATIONS 3.1 Customer agrees that the Software will always be licensed for the largest MCP based Processor at the Site. 4. LICENSE FEES 4.1 The license fees are shown in Schedule 1. 5 UPGRADE CREDITS 5.1 Credits will be issued toward a new license should Customer upgrade to a larger Processor on which the Software operates within five years of the Effective Date of this Agreement. The amount of the credit will be the license fees shown in Schedule 1 prorated over a three year period. 6. TAXES AND DUTIES 6.1 Customer shall be responsible for remitting to federal and/or state and local tax authorities any applicable taxes and duties due by Customer to such authorities based on payments made to B&L pursuant to Schedule 1 and 2 and shall hold B&L harmless and indemnify it for any liabilities, cost and expenses, including Accepted for B&L by Accepted for Customer by: Initials •� Initials v i Date �� le Date Agreement: ##2010-48264 Page. 3 attorneys' fees, to any tax authority relating in any way to the tax treatment of the payments made pursuant to this agreement. 7. TERM AND TERMINATION 7.1 The license offered under this agreement is for the Software on the Processor with the power rating (MIPS or RPMs) described in Schedule 1. 7.2 The:term of this Agreement is for one (1) yearfrom the Eff ctive.Date with-anoptiomto extend.under.the same_terms and -conditions `for one(1).additional year. 7.3 The Customer shall have the right at any time within the Acceptance Period to return the Software for any reason whatsoever. Should Customer return the Software during the Acceptance Period, all license fees paid by Customer for the Software being returned will be refunded. 7.4 Notwithstanding paragraph 7.2, this Agreement may be terminated a) by either party for material breach of this Agreement by the other party provided that if the breach is capable of remedy, the innocent party has first given written notice to the party in breach identifying the breach concerned and calling for it to be remedied, and the breach has not been remedied within 45 days of service of such notice, b) by Customer for unappropriation of funds, or C) by Customer's thirty day notice of termination of the Agreement 7.5 In the event of termination, Customer shall return the Software unencumbered and certify to B&L that all copies or partial copies have been destroyed. S. TRANSFER OF SOFTWARE 8.1 The rights and license granted Customer hereunder to hold and use the Software are restricted solely and exclusively to Customer and may not be assigned, subleased, sublicensed, sold, offered for sale, disposed of encumbered or mortgaged. 9.0 PROPRIETARY RIGHTS 9.1 The ownership and all right, title and interest in and to any trademark tradename, patent„ copyright, technology, know-how or other proprietary interest relating to the Software is and will remain vested solely in B&L. Customer will use all reasonable efforts to protect all such proprietary rights of B&L, and, upon request by B&L, will assist B&L at the expense of B&L, to prevent or halt any unauthorized use of B&L proprietary rights related to the Software. Unless otherwise agreed in writing, copyrighted materials will not be copied except for archival purposes or as otherwise expressly authorized in this Agreement. Customer shall not remove or modify any B&.L copyright notice or other proprietary notice contained in the Software or the Documentation. 9.2 Customer agrees to take reasonable steps to protect the confidentiality of the Software. Customer agrees 9.2.1 not to disclose or transfer the Software to any third parties; 9.2.2 not to decompile, reverse engineer, modify, reproduce, rent or lease, or otherwise dispose of the Software; and Accepted for B&L by: 4 Initials i Dated/�y Accepted for Customer by: Initials Date Agreement: ##2010-48264 Page. 4 9.2.3 not to duplicate the Software except as required for Customer's use at the Authorized Site or for providing backup of the Software. 10.0 WAIVERS: 10.1 No delay or failure of B&L or Customer in exercising any right hereunder and no partial or single exercise thereof, shall be deemed of itself to constitute a waiver of such right. 10.2 B&L may accept any payments from any person tendering the same without thereby accepting such person as Customer hereunder or waiving any breach of covenant or provision against ass �anment or transfer by Customer. 11.0 WARRANTIES 11.1 B&L represents and warrants that: a) the Software, when delivered and installed, will operate on the Processor specified on Schedule 1 of this Agreement; and b) any service rendered by B&L will be performed in a professional manner by qualified personnel. 11.2 B&L warrants that it will not withdraw the availability of Product Support for three years from the Effective Date of this Agreement. 11.3 During the time that the Software is under B&L Product Support, B&L will correct or replace it and/or provide services necessary to remedy any programming error which is attributable to B&L. Such correction, replacement or services will usually be accomplished within 30 days from the date that Customer has identified and notified B&L of any such error in accordance with B&L's prescribed reporting procedures. As a pre -condition to any action on any warrantee arising out of this Agreement, notice of any defects in any materials, equipment or services must be given to BB:L within thirty (30) days of the discovery of such defects. 12. DEFAULT 12.1 Default is defined to include Customer's failure to pay any amount within 10 days after notice to Customer that the same is 45 days or more delinquent; if an assignment, sale, mortgage, sublease or sublicense of the Software is made or attempted, if any distress, execution, or attachment is levied hereon or upon the Software or such action is attempted; if Customer shall become insolvent; upon initiation of bankruptcy or receivership proceedings; upon the execution by Customer of a Deed of Trust or Assignment for the Benefit of Creditors or any other transfer or assignment of a similar nature; or upon Customer's breach of any of the other terns or conditions hereof 12.2 In the event of default on the part of the Customer, B&L has the right to terminate this Agreement and to enforce all its rights and remedies under paragraph 7.4. 13. FORCE MAJEURE 13.1 Neither party shall be liable to the other for delays or failure of performance due to causes beyond its j control, Such causes include (without limitation) strikes, riots, wars, government regulations, acts of God, fire, or shortage of materials; provided, however, if such delay or failure continues beyond sixty (60) days, the other parry shall have the option, exercisable by written notice, to terminate the Agreement pursuant to paragraph 7.4 Accepted for B&L b�, Accepted for Customer by: Initials Initials Date___2 f �// Ci Date Agreement: ##2010-48264 14. LIMITATION OF LIABILITY Page. 5 14.1 IN NO EVENT WILL B&.L BE LIABLE TO CUSTOMER OR AN TY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES'"rHATSOEVER 15.0 PRODUCT SUPPORT 15.1 Product Support will be charged for on a monthly basis starting on the Product Support Date. The product support fees for the Software for the term of the Agreement are shown in Schedule 2. 15.2 B&L will use its best endeavors to correct as promptly as possible errors in the Software notified to B&L by Customer. Code corrections or instructions on work arounds supplied shall be accompanied by adequate documentation to enable the code correction to be installed and to advise Customer of any operational differences known to B&L resulting from the code correction or work around, together with any resulting changes to the Documentation. 15.3 B&L will maintain and as necessary modify the Software so as to be compatible with later releases of the system software of the Customer computer systems on which the Software is designed to run. Copies of each new version of the Software (including revised Documentation) in replacement of copies installed with Customer will be supplied as soon as practicable after the notification by Customer of a new, release of the relevant system software. 15.4 B&L will make available staff knowledgeable in the Software to respond to telephone or telefax queries by Customer during the hours of 9 am to 5 PM USA Eastern Standard Time, Mondays to Fridays (statutory or customary holidays in the USA excepted). B&L will use its best endeavors to provide a responsive service outside those hours. The service to be provided under this paragraph includes responding to queries on the operational use of the Software, assistance in identifying or verifying the causes of suspected errors or malfunctions in the Software, advice on work arounds to avoid the effects of identified errors or malfunctions where possible, information on errors previously reported to B&L, and advice on the features and capabilities of the Software. 15.5 At the request of Customer, B&L will provide on-site assistance by qualified staff as soon as possible after the Customer's request in case of emergency, and otherwise at mutually convenient times, to overcome any problems experienced in the installation and use of the Software which Customer is unable to resolve locally. For this service Customer shall pay B&L its prevailing day rate for a support person, plus reasonable travel and hotel expenses provided that all rates and expenses are approved by Customer. 15.6 B&L shall ensure responses to errors or defects in the Software reported by Customer and documented in accordance with reasonable fault reporting procedures to be provided by B&L, and complete the correction or operational avoidance of the error or defect (i.e, where the Software is demonstrated not to work in accordance with B&L's specifications) in accordance with the following schedule Error Prioritv (1) Response(2) Closure (3) Emergency (A) 4 hours 5 days Critical (B) 1 day 20 days Non -Critical (C) 20 days Next update Time starts to run from receipt by B&L of documentation of the fault, including a description of the event that caused the fault, and the Software involved, . However, if documentation received by B&L is incomplete, B&L must promptly identify errors or omissions in the documentation to the Agent Accepted for B&L b Initials Date/ l Accepted for Customer by: Initials Date Agreement: ##201 Q-48264 Page. 6 (1) Priority Codes A Catastrophic system or module failures which prevent user processing and which do not have a viable detour or work around available B Problems that have been substantiated as a serious inconvenience to the user, including Priority A problems for which a temporary detour or work around is available C. Problems which the user can easily avoid or detour for which there is no urgency in resolution (2) Response Response consists of providing the following, in the following order of priority: an existing correction; a new correction against reported product level only; a viable work around; a reasonable request for more information to complete analysis of the problem, provided that for Priority A problems, B&L shall use its best endeavors to provide at least a viable work around within 24 hours. (3) Closure Closure consists of providing a final correction, including by way of update or maintenance release and revised or new Documentation as appropriate, or establishing that such closure is not practically possible. 16. MISCELLANEOUS 16.1 No modification or amendment to this Agreement shall be valid unless in writing signed by authorized representatives of the parties. y 16.2 If any provision of this Agreement is held or determined to be invalid or unenforceable, the remaining provisions shall continue in full force and effect. 16.3 The captions of the articles and sections of this Agreement are for the convenience of the parties only and shall not be considered in any interpretation of this Agreement. 16.4 In addition to the rights and obligations which survive as expressly provided for elsewhere in this Agreement, the provisions which by their nature should survive, shall survive and continue after any termination or cancellation of this Agreement and shall bind the parties, their successors, their permitted assigns and their legal representatives. 16.5 This Agreement constitutes the complete and final expression of the parties' agreement as to the subject matter hereof, and shall supersede all prior agreements, expressed or implied, whether oral or written, It may not be released/discharged, changed or modified except by an instrument in writing signed by a duly authorized representative of each of the parties. 16.6 This Agreement shall be governed by, and subject to, and construed in accordance with the laws of the State of Florida in the United States of America. 16.7 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall be one and the same instrument. Accepted for B&L by Initials Date Accepted for Customer by: Initials Date Agreement: ##2010-45264 SCHEDULE] SCHEDULE2 Product Support License Fees LIBRA 400 LIBRA 400 Monthly Product Processor License Fee BL/LIB with label 40 MIPS6 .3 BL/ROBO 40 MIPS 450 BL/VIEWER 40 MIPS 164 BL/PACK 40 MIPS 676 BL/SCBED 40 MIPS 741 BL/DIST 40 MIPS 740 Total Monthly License Fees 3,414 SCHEDULE2 Product Support LIBRA 400 Monthly Product Processor Support BL/LIB with label 40 MIPS 672 BL/ROBO 40 MIPS 470 BL/VIEWER 40 MIPS 171 BL/PACK 40 MIPS 705 BL/SCI-1BD 40 MIPS 773 BL/DIST 40 MIPS 773 Total Monthly Product Support 3.564 Accepted for B&L by Initials Date Jy Accepted for Customer by: Initials Date Page. 7