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Home My WebLink AboutC2005-691 - 12/14/2005 - NA software' MAXIMO" SOFTW ARE LICENSE AND MAINTENANCE AGREEMENT Number MX-0602400-SL6 And ("Customer") Between MRO Software, Inc. ("MROr') 1 00 Crosby Drive Bedford, MA 0 1730 Telephone: 781/280-2000 FAX: 781/280-2210 City Of Corpus Christi PO Box 9277, Corpus Christi, TX 78469-9277 Telephone: (3" t V ')ol? u - ~7 fa FAX: (~l,\l ~~o -374 I Effective Date: December 16, 2002 Attn: DIY~<,'tuv d M ( S This Maximo@ Software License and Maintenance Agreement (this "Agreement") consisting ofthis and the following five (5) pages. provides for the licensing by MROI to Customer of the Licensed Software and Documentation. So Agreed By The Parties: MRO SOFTW ~rNC. ~. - By: ~<.l _---+- Date: f)l .~ i.. . ;.?) , v" ~_~ ------';__=-~_~ CUSTOMERh By: ~ I Ir" ^ .1 Name: t./C:O~~ fL- "- I.J v-e/ J Title: C I ti) h (i...nt~ Date: / J-0<- ( Y I }fP ." Namtf. LarryMize Title: Director, Contracts 2005-691 12/14/05 Copvnght @ 2005 MRO Software. Inc \'IRO Software TERMS AND CONDITIONS OF THE \1AXIMO@ SOI<TW ARE LICENSE AND MAINTENANCE AGREEMENT Delinitions.'\s used In thh Agreement "A( Sf" "I 'Annual ('us/orner Support Pia,," means the customer support plan d~cflhed in Section' " II 'SP "" means the annual fee payable f()f AC"I' "( 'dnfidenrw/ Itiforma/lon IS defined in Section 5 "llJscovered System" means a device wIth a ('PU and permanent storage that can host an agent. typIcallY a personal computer or a server "! Jocunu:nla/um' means lhe end-user timcllonal guide mstallatlOn gUide, system administration guide and any other standard. human-readable informatJt)n that is proVided in tangible or electronic lorm by MROI to ( ustomer with the Licensed Software. Fnhancements and New Releases "!:ITeCTm ,Ja/e" means the date written on the firsl page olthis Agreement ,. ;o"hancunen/s" IS delined 10 Section J 2 below. "uceme "detined 111 Set'tJ(!n 2. i,ceme !,,'p" means the lee charged lilr the license: '-;,lcemeJ )oftware" means the software marketed by MROI. each as more particular" Identified in a separate Schedule A, attached hereto and incorporated herem by reference, and includes all Enhancements and New Releases provided by MR()I to Customer I'or each new Licensed Software purcha~ed hy the Customer. the correspond 109 SCll!ldule,'\ shall be numhered i\.l ...\-; ~'lL I.,cens".! i .'ser' means any person who (II USt> or accesses the l.lcensed Software components or 1111 accesses the Licensed Software's busmess rules \ 13 any Kind or user Interface, meluding but not Itmited to desktop exeeutables. web browsers or handheld (wireless) devices, or (iiil enters or manipulates data or information within the database or database tahles which the server portion of the I -ieensed Software organizes and manipulate. each "Licensed User" must be designated as a Registered User a Fixed User or a l.lex I JSl'f defined as 101l0w, 'Regis/ered User means a Licensed User who is licensed onlv to use or access Maximo@or Maximo@ Enterprise"" and multIple log-ins under the same or a single user name shall be prohibited. 'Fixed '..ser means a Registered User whn IS Ii~ensed nnl\ III use Maxim\,<Il' ServIce CenterfM . Fie> sa" means a I Icensed User who IS licensed only to use Maxlmo@ Service Center™ with multiple log-ms bemg permitted under the same or a single user name, but provided that the total number of Flex Users logged into nr using the Software at the same time shall not exceed the total nUnlO4...'r tlfFlex Users lICensed Yew He/ease' and 'Superseded Re/ease are ddined in Section 13 below; "ncE 1'1 means MR( >l's then-currenl local country pnce list. ,,'chedu/e lJfecllve Date means the date on wh,ch a particular Schedule A has been executed bv both parties; lh/rd I'art)' Software" means any software pro\lded by MRUI as part of the Licensed Software under license from a third party, a list and description of which is available in the ('ustomer Support section ofMROI's website 'Warranty PerIOd' means a penod of nmety (90) days from the date of initial shipment of the LIcensed Software to Customer 2. Grant of License. Subject to the terms and conditions of this Agreement and subJect to full and timely payment of all license Fees owed hereunder, MROI hereby grants to Customer and Customer hereby aceepts. a limited, non-exclUSive, non-transferable. license to use the Licensed Software as set !i)rth herem (the "License", 2.1 Scope and Restrictions. al Customer may access and use the Licensed Software only within the scope of the License, which is determined by (A) the number of Licensed Users listed in the corresponding Schedule A, or (B) the number of Discovered Systems where not licensed on a Licensed User Basis, and (e) any other restrictions, terms or conditions of use described in Schedule A Any person who is considered within the definition of Licensed User must be duly licensed as a Licensed User in order to access or use or manipulate the Licensed Software components, husiness rules or database tables. All Licensed Users shall be listed in the security application of the Licensed Software, b) Subject to the restrictions of this Agreement (including (c) below), Customer is not restricted in any way from merely extracting data or running reports using tools of its choice, MROI offers interoperability to the database that is organized by the Licensed Software by means of the Maximo Enterprise Adapter (MEA) which may be licensed under the terms of the applicable Schedule A c) Customer may use the Licensed Software for its own internal business purposes only, and may not use the Licensed Software to process data on behalf of third parties or otherwise time-share the Licensed Software with others or act as a service bureau, except and solely to the extent expressly authorized by MROI on Schedule A The foregoing notwithstanding, the Licensed Software is not transferable under Section 8.9 below, and may not be sublicensed for any purpose. d) Customer may not use any Third Party Software independently from the remainder of the Licensed Software, or on a standalone basis, Without limitation, the Third Party Software included with the Licensed Software is licensed for use solely in conjunction with Maximo, and may not be used on a standalone basis or with software or data not incorporated into or integrated with Maximo by MROI as part of its standard product offering. 2.2 Environment. Customer shall notifY MROI upon changing its operating system or databa,e environment Migration fees, if applicable may be due if a di fterent version of the Licensed Software is required. 2.3 Term. This Agreement and the License granted hereunder shall take effect as of the Effective Date, and shall remain in force unless terminated in accordance with the terms of this Agreement Each License granted hereunder shall be effective as of the Schedule Effective Date of its corresponding Schedule A, and shall continue for the term specified in such Schedule. unless earlier terminated in accordance with the terms of this Agreement, 2.4 Documentation. For each Schedule A executed by the parties, MROI shall provide one set of the Documentation in electronic form, current as of the corresponding Schedule Effective Date, Customer is licensed to use the Documentation as necessary in connection with the Licensed Software within the scope of the License and under the terms of this Agreement. The Documentation will be shipped with the Licensed Software as provided in Section 8.11 2.5 Additional Software. Additional licenses of the Licensed Software or licenses of other software may be requested by Customer after the Effective Date upon issuance by Customer of a purchase order, provided, however, that acceptance of such purchase order by MROI is subject to MROI's sole discretion and all additional licenses shall be provided at MROl's then- current License Fees or as otherwise agreed to by the parties in writing, and on the terms and conditions set forth in this Agreement For future software license purchases under this Agreement, MROI reserves the right to update the terms herein by way of a written addendum executed by both parties. All orders are subject to cnedit approval and no order shall be deemed accepted by MROI until the earlier of the date on which MROI (i) has accepted the purchase order in writing, or (ii) has shipped the Licensed Software to Customer. Any provision of Customer's purchase order (whether issued prior to. on or after the date of this Agreement) which is inconsistent with or in (!-{e". (klllh~, 18, :005 ( "pvnght @ 2005 MRU Software. Inc 2 addition In Ihe tenns and conditions of this \greement shall not be hmdmg upon MR()I 2.6 Quotations. A.JJY quotatHlIl issued hy MROI is ,ubjeet to the tenns and conditions "f this Agreement. No quotation ,hall be valid unless III writmg, and any quotation shall expire sixty r601 days after 'ssuance, unkss otherWise specified '" writing b\ \.fRI )! 2- l.Irensf ~ees, Customer ,hall pay to MROI the II~ense i'ee. and the annual fee for MROls Annual Customer Support Plan (",\C'SP" and' ACSP Fee') if purchased hereunder, 10 the amounts set forth in \.fRO!' s then-current Pnce I.IS\ or as I.therwise agreed to by the partie, in writing, without set-otT or deductinn whatsoever wlthm thlrt\ (30) days cd the later ,,1' the date of invoice or the date of shipment. Customer's obligatIOn to pay the License Fee " unconditIOnal and absolute. MROI reserves ttw righl to modify Its liS Price I.ISI al any time Without notice to Customcr. [n addition, Customer shall pay It' MROI mteres! on the amount payable to MROI at a rate equal to the lowel ,,) [II one and one-half percent (I 12%) "fthe amount due lor '-'ach month pavment remams delinquent or (ii) the maximum rate "I' mterest allowabk under applicabk law, calculated from the dUl' datl' All fees are accountahk and payahle in I! S dollars 2.!l Installation. Customer shall be responsible lor installing the Licensed Software Installation services mav he purchased from MROI under a separate agreement 2.<) Third Party System Access. Customer may proVide access to the licensed Software and to MRO!'s lonfidential Infonnation to a thlfd party with which Custornel has contracted to perfonn IInplementation "r infornlation processing services using the Licensed Software 1(lr the benetit of Customer. provided, however, that I') the License. thiS Agreement and the licensed Softwarc may not he transferred or sublicensed to the thIrd party. (ii) Customer shall first eonfinn with MROI that such third part\ IS not deemed by MROI to be a competitor, and (Iii) Customer will lirst obtain a written agreement by such party protecting MROrs Licensed Software, intellectual property and Confidential Information to substantially the same degree as the protections contained In this Agreement. and which otherwise enables Customer to comply with this Agreement. MROl will have no warranty, support or other obligation to such third party. Customer will use its best efforts to ensure that each third party complies With the tenns and conditions ()f this Agreement. In the event a third party commits a breach or takes any action which if taken by Customer would c()nstitute a breach of this '\greemenl, Customer shall notifY MROI and assIst MROI m mitigating of any such breach, and 111 pursuing ,uch legal actions as MROI deems appropriate in connection therewith, Customer will indemmfY, delend and hold MROI harmless from and against any and all claims, damages, costs, liabilities, expenses (including reasonable attorney,' fees) or losses sutTered or Incurred by MROI or its Third Party Software licensors in connection with the hreach h, Customer of thIS provision, <l\ the breach by any such third party of lhe tenns of this Agreement \nnual Customer Support Plan (~i\CSP~). If Customer subscribes for .\C'SP I' ustomer shall he entitled 10 receive the maintenance and support ,-crviccs described in thi~ Section J for a period of one year commencing on the datc the Licensed Software is mltially shipped to Customer (or In a ease where shipment IS not required, ACSP shall commence on the Schedule UTectlvc Date), If Customer does not subscribe for ACSP or fails to make limely payment of any ACSP Fee due_ MROI ,hall have no ohligation to provide Customer With any maintenance or support services In connection With the i .Icensed Software MROI may adJust the tern1 of any ACSP period ti'r administrative reasons to hecome coterntinous with the ACSP appllcahle w all l"censed Software ACSP renewal years shall he increased by the Cllnsumer Price Index fm the greater Boston, Massachusetts area. Customer has the light at the end llf each annual ACSP period t(l cancel its ACSP for the subsequent year hy giving MROI written notice not less than 60 days prior \() the expiration llf it>. then-current ACSp year, and without affecting Customer's License or thc other provisions of this Agreement 3.1 Error' Keporting Procedure. For so Illng as Customer has subscribed and paid fOT ,-\CSp, Customer may report suspected errors In the Licensed Sllftwarc to MROI by telephone. fax. mail lH MROJ's Internet website \.fROI offers a twenty-timr by seven 1,24x7l "Follow the Sun" support policy provided by various MROI worldwide support ccnters. MROI may change its ( ustomcr Support hours from time to time upon notice to Customer. MROrs support hotline can he reached at (866) 669-6764 (phone) or (781) 280-2203 (fax) Upon MROr, request. Customel shall provide complete documentation of and fully cooperate with MROI in its effort to investigate any suspected error reported by Customer. Upon verification by MROI of a reported error, MROJ's sole obligation shall be to use reasonable efforts to provide, at MROI' s sole discretion, a software update or workaround to correct or address such error. Customer shall pay MROl at its then-current rates for any ACSP services provided by MROI in correcting errors or addressing issues caused by Customer's entry, modification or manipulation ,,1' data Via any means other than the Maximo User Interface or the Maximo Enterprise Adaptor. even if authorized hereunder. 3.2 Enhancements. For so long as Customer has subscribed and paid for ACSP, MROI shall provide Customer with Enhancements to the Licensed Software. I'he tenn "Enhancements" means such updates, improvements or revisions to lhe Licensed Software, if any, that MROI may provide from time to time to its li.S customers who have subscribed and paid for ACSP, If MROI issues an l;nhancement to Customer, Customer shall install and begin using the Enhancement within sixty (60) days of receipt thereof MROI shall not in any event be required to provide maintenance and support services to Customer t(lr that portion of the Licensed Software replaced by a particular I':nhancement, at any time after twelve (12) months from the U,S. release date of such Enhancement. 3.3 New Versions. From time to time, MROI may in its discretion issue a new version or release of the Licensed Software at no additional charge aside from the ACSP fee (a "New Release") that supersede the prior release (the "Superseded Release"), If MROI issues a New Release to Customer, Customer shall install and begin using the New Release within sixty (60) days of receipt thereof MROI shall not in any event be required to provide maintenance and support services for any Superseded Release at any time after twelve (12) months from the U.S, release date of the New Release or such later date as may be specified in the Customer Support section of MROl's website a~ the date on which engineering support for the Superseded Release expires 3.4 ACSP Lapse. If Customer has not subscribed or paid for ACSp and at some future date wishes to subscribe or re-subscribe for ACSP or to obtain an Enhancement or New Release, such ACSp may only be provided and such Enhancement or New Release shall only be licensed to Customer if Customer pays to MROI the lesser of (i) the then-current ACSp Fee and all ACSp Fees lor the period elapsed since the date of shipment of the Licensed Software or since the expiration of the last ACSP period for which Customer paid the ACSP Fee, whichever is less, or (ii) the then-current applicable License Fee for the New Release, plus MROl's then-current ACSp Fee. 4, Ownership of the Licensed Software. 4.\ Ownership. Subject only to the License expressly granted in Section 2 hereof, MROl and its licensors of Third Party Software own and shall retain all rights, title and interest, including all copyrights, patents, trade secrets, moral rights and all intellectual or industrial property rights of every kind and description, in and to (i) the Licensed Software and Documentation, (ii) all portions, modules, class files, extracts, database data models, data definitions, data or meta-data or content provided by MROI, variable definitions, methods, inherited characteristics of the Licensed Software and Documentation, and (iii) all inventions, works of authorship, ideas, trade secrets, documents, software, data, information and all tangible and intangible property contamed or embodied in the Licensed Software or the Documentation, or otherwise licensed or delivered hereunder, and (iv) all compilations, selections, arrangements and derivatives of any of the foregoing (il. (il) or (iiil Customer acknowledges and agrees that the Licensed Software constitutes a valuable trade secret and asset of MROL 4.2 Indemnification. MROI shall defend or, at its option, settle any claim, action or proceeding brought against Customer that the Licensed Software infringes any l is, patent, copyright or trade secret, and shall indemnify Customer against all damages and costs finally awarded against Customer in any such action or proceeding which results from any such claim, MROI shall have no liability under this Section 4.2 unless Customer (a) notifies MROI in writing of the claim, action or proceeding within ten (10) days after its commencement, (b) gives MROI full authority, information and assistance to defend such claim, action or proceeding and (c) gives MROI sole control of the defense of such claim, action or proceeding and all negotiations for the compromise or settlement thereof If the Licensed Software or any part thereof becomes, or in MROl's opinion is likely to become, the subject of a valid claim of mfringement, MROI shall have the right, at its option and expense, either (i) to obtain for Customer a license permitting the continued i He'" j )c!ober 18. !OO"-; , l 'opvnght @ 2005 MRO Software, Inc 3 use of the Licensed Software or such mlringing part, (ii) to replace or modify it sa that Jt becomes non-infringing, or (iii) to terminate the License and rcfund the depreciated value of the License Fee paid. MROI shall have no liability hereunder for any costs mcurred by Customer or lor any settlement entered mto without MR()j's prior written -:onsent. MROI shall have no liability hereunder with respect to any claim based upon: ia) the combmallon 01 the licensed Software WIth other products not furnished by MR()I. (b) any addItion I" "r modification to the Licensed Software other than as speedieally dehned ," the Maxlmo" System Adminlstrah'ls (jUlde, (e) use of a Superseded Release 01 the Licensed Software. or i d) the eXistence 01 u"~ of (lpen S,)ur,c 10 the LlCen"d Software (see Section >\.18 below 43 Sole Remedy. The provhlons of paragraph~.2 ahove arc set tijrth In lieu of all other ,)blIgations. mcluding without lImitation any Implied warranty of noninfrmgement. and states the sole, exelusive and entire liability of MROI. and the sole. exclusive and entire remedv 1)1' Cuslomer. with respect 10 any claIm of mfrmgemenl 4.4 No Copying. Customer may not copy or dlstributc the l.lcensed Software or am other Confidential Information of MROI. or any portion thereof. "'xcept that Customer may make ,me copy of the 1.lcensed Software lilr archival or backup purposes only I ustomer shall not remove any patent. trademark. copyright. restricted rights. limited rights. proprietary rights or confidentiality notIce mcluded in or affixed to the Licensed Software. the Documentation or am other Confidential Inlormation of MROI and shall reproduce all such notices In i)r on all caples made b\ Customer in accordance with this /\greenK"1l1 4.5 No ModificationslReverse Engineering/Licensing Circumvention. Except as specifically recommended by MROI in writing or in the Maximo$ System AdmiDlstrator's Guide or In MRO\'s on-line Developer Center. and except as specifically required under applicable law Without the possibility of contractual waiver, Customer shall not (i) alter, modiry. enhance, adapt, re- arrange, reverse engineer decompile. make works derived /Tom the l.icensed Software llf attempt to generate or access the source code for the I.1censed Software. whether by converting, translating, decompiling, dIsassembling or otherwise. or (ii) enter or manipulate data or information within the database underlying the Licensed Software other than via the Licensed Software Any such actIOn on the part of Customer shall Violate Customer's license and void the Performance Warrant) under Section 7. I below and MROt's obligations to provide ACSP at iL~ then-current rates lor any ACSP services required in order to address errors (Ir issues caused by Customer's disregard of this restrict. ion Customer shall not attempt to aggregate users or circumvent M ROt ~ licensing restnetions vIa techmcal means, including without I imitatIOn the use of any IIlterface between the Licensed Software and another program that performs functionality substantially similar to that contained in any product offered by MROI at the time Schedule A is executed. Except by means of a licensed MEA, Customer shall not interface or synchronize any other sottware or database to the databa~e that underlies the Licensed S"ftwarl , IJrotel'tiou and Securi~ :;.1 C'onfidential [nformation. In connection with this Agreement. each party may havc access to inforrnation of the other that" confidential <"Confidential InformatIOn"). Confidential Information shall include but not be limited to (i) the Licensed Software and; (ii) the designs, architecture. database data models. processes, syntax. features, drawings. dlagranJs. user guides, object and source codes. data definitions. variable definitions, methods, models. templates. technical and timctional spectfications. the generalized features of lhe structure, sequence and organizatIon, and thc user IIltertaces and screen designs ~ontained or embodied III the l.lcensed Software or the Documentation: (iil) all elements of the Software Development KIt (or Developer Center) i I' licensed (or accessed) by Customer; and (iv) all other mformatlon clearly marked as confidential. A party's ('onfidential Information shall not include information which (a) IS or becomes a part of the public domain through no act or omission of the other party: (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly /Tom the disclosing party: (c I is lawfully disclosed to the other party by a third party who was not ,ubject to restriction on disclosure; or (d) is independently developed by the other party 5.2 Nondisclosure. The parties agree, both during the term of this Agreement and for a period of live (5) years after termination of this Agreement, to hold each other's Confidential Information in confidence The parties each agree not to make the other party's.Confidential Information available in any form to any third party or to use the other party's Confidential Information for any purpose other than as contemplated under this Agreement. Each party shall limit access to the other party's Confidential Information to its employees whose responsibility require such access, and each party shall take all rea~onable steps to ensure that Confidential Information is not disclosed or distributed by its employees in violation of the provisions of this Agreement. Each party shall protect the confidentiality of the other party's Confidential I nformation using at least the same degree of care as it takes to protect its own Conlldential Information, but in any event not less than a reasonable degree of care A party shall not be in breach of this Section 5.2 to the extent that disclosure is compelled via lega] or regulatory process provided that the disclosing party shall give the other party adequate notice in advance of the disclosure and opportunity to protect its interests. 5.3 Reports of 'VIisappropriation. Each party shall immediately (i) report to the other knowledge of (A) any unauthorized attempt to access, use or disclose the Conlldential Information of the other; or (B) breach or potential breach of this Section 5 and (ii) provide the other party with all reasonable assistance in the IIlvestigation, mitigation and action sought or taken by the other party in connection therewith. Customer shall indemniry MROI and its officers, directors, employees and agents, from and against any and all damages and costs incurred by MROI in any claim, action or proceeding brought by any licensor of Third Party Software against MROI, arising from or relating to Customer's failure to comply with its obligations under this Section 5. 6. Default and Termination. 6. I Termination by MROI. MROI may terminate this Agreement immediately upon notice to Customer if: 0) Customer fails to pay any License Fee as and when due, or fails to comply with any of the provisions of Sections 2, 4.4, 4.5 or 5 of this Agreement; (ii) Customer fails to comply with any term or condition of this Agreement (other than terms specified in 0) above) and such non-compliance is not corrected to MROl's satisfaction within thirty (30) days after written notice of the non-compliance is given by MROI to Customer; or (iii) Customer is liquidated or dissolved, or becomes insolvent, or suffers a receiver or trustee to be appointed for it, or makes an assignment for the benefit of creditors or institutes or has instituted against it any proceeding under any law relating to bankruptcy or insolvency or the reorganization or relief of debtors. 6.2 Termination by Customer. Customer may terminate this Agreement at any time upon notice to MRO], subject to Customer's post-termination obligations hereunder and the provisions of Section 6.3 below. 6.3 Consequences of Termination. ]n the event that this Agreement is terminated by either party for any reason: a) Customer shall immediately cease using all Licensed Software and shall eIther return to MROI or destroy all copies of the Licensed Software, the Documentation and Confidential Information of MROI under Customer's control, including without limitation, all copies that are resident or running in machines or networks controlled by Customer. Within ten (10) days after any termination, Customer shall provide MROI with a written statement signed by a duly authorized officer of ('ustomer certifYing that Customer has complied with the foregoing sentence b) All sums owed to MROI (including all outstanding License and Support Fees) shalt become immediately due and payable without further notice or demand: in no event will MROl be obligated to refund to Customer any fees paid by Customer to MROI hereunder. c) Sections 4 I, 4.4,4.5, 5, 6.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9 and 8 shall survive termination of this Agreement. 7. Limited Warranty and Limitation of Liability. 7.] Performance Warranty. MROI warrants that during the Warranty Period, the Licensed Software will perform substantially in accordance with the end- user Functional Guide for the Licensed Software which is included as part of the Documentation. Customer acknowledges that MRO] does not warrant that the Licensed Software will be error free or meet Customer's requirements or that all errors in the Licensed Software will be corrected, MROl's sole obligation under this warranty, and Customer's sole remedy for problems with the Licensed Software or non-conformance with this warranty shall be, at (\{ev(killher 18.2005 (npvnghl @ 2005 MR( l Software. In, 4 MROLs option in each ca<;c. either (a) to use reasonable elforts to correct any suhstantiai non-conformih In accordance with the procedure set f()rth in Section 3 "r thIS Agreement. or (h) upon return o! the non-conforming copy oj the Llc.:nsed Software, 10 refund the License Fe,' paid hv Customer f(lr the COPY of the Licensed Software and terminak the License therefl)r NOlwithstandmg the tirst,entence of thiS Se(:\ion - I, anv replacement copy ot ,'r corn:cllon to the Licensed Software provided by MROI II) pert(lrmanCe ot Ihis warranly WIll be warranted for the remamdet of the Warranty Period or thmy (3(1 days from the datt' of shipmen 1 \(l ( ustnmer. whichever IS kln~er i2 Media \\ arranty. MR( II warrants that lOt the JuratIon 01 the Warranty Period. th.: CDs, diskettes ,Jr other media on which the Llcen,ed Software is delivered Will he tree "I' defects m materials and workmanship under normal USt DUflng the Warrant\ Period. Customer ma\ return defective media to MROI and It will be replae'ed without charge Replacemento! mcdla ,hall be ( lhtomel . ,ole remedy in the event of a media dekct '73 A(SP "erv,re. MR( II warrants that the support ,ervlces mcluded a; part of A( SP,hall he provided 'hlng reasonahle sk ill and care commensuratt' with thtn-cUITent industry standards i.4 Limitation on Warranties. MRUI shall have no lIahillty undcr the foregoing warranties to anyone other than Customer. MROI shall have no Iiahility hereunder to the extent that (a) Customer ha, failed to report in v.'TIting to MROI any claimed non-conformance With the warranty wnhm the Warrantv Penod, or (b) a non-conformance with the v.arranty has resulted from: t i I accident mISU,t. or neglect of or modifications to, the I jcensed Softwart (ill acts ,lr ,'miSSions hy mmeone other than MROL (Iii) eombinatmn of the Licensed Software WIth products, matenal or software which are not standard products proVided hy MROI or not certified (as mdicated on the Documentation) as compatlhle With the Licensed Software: (" I failure by Customer to Install and use any Enhancement or New Release: (v) use 01 a Superseded Release of the Licensed Software, or (vi) Customer's entry, modification or manipulation of data via any means other than the Maxima User Interface or the Maximo Enterprise Adaptor 7.5 Disclaimer. THE I:XPRESS WARRANTIES SET FORTH IN THIS SECTION 7 ARE THE ONLY WARRANTIES MADE WITH RESPECT TO TilE L1tTNSED SOFTWARE AND ACSP Fl'RNISHED HEREUNDER: MROI MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISIN( i BY CUSTOM OR TRADE l'SAGE, AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND !.ITNESS FOR A PARTICULAR PURPOSE OR I rSE. WHICH ARE HEREBY OVERRIDDEN AND EXCLUDED .,,(, Limitations of Liability.. MROLs liability, v. hether In contract, tort, or otherwisL arising out of or In connection With the Licensed Software furnished hereunder or otherwise under this Agreement shall not exceed the depreciated value of the Ixense Fees paid to MRt II by Customer lor the copy ,.,1 the Licensed Software giving rise to the liability The depreciated value of the License Fees shall he determined by the straight-line method, for a live (5) <-ear life applied to thr l.icense Fees actually paid hy Customer lor the relevant; ,censed Software' Subje<:l ,0 and nol III addition to the loregolng, MROI', liability, whether in eontracl. lOft, or othe", ISe, arising out of or III connection with ACSP furnished hereunder shall not exceed the amount paid by Customer m the rreceding lWelve (12) months in respect of the maintenance and support ,ervlce~ whIch are the suhlect matter of such claim, iN NU ! VENT SHALL MROI OR ITS LlCLNS( IRS m LIABLE FOR ANY !NDIRHI. SPECIAL INCIDENTAL PI iNlTIVE, EXEMPLARY, CONSH.,lUENTIAL OR TORT DAMA<iES. INCLlIDIN(j WITHOlfl LlMIl A nON ANY DAMAGES RESULTING FROM LOSS OF IJSE, LOSS OF DA '\. LOSS OF PROFITS OR LOSS OF !JUSINESS ARISING OUI OF tW IN CONNECTION WITH ANY LICENSED SOFTWARE FURNISHED BY MROI OR THE PERFORMANCE OF THE LICENSED SOFTWARE, EVEN IF MROI HAS BEFN ADVISED OF THE POSSIHILlTY OF SUCH DAMAGES 7.8 .\lIocation of Risk. The provisions of this Section 7 allocate the nsks under this Agreement hetween MROI and Customer. MROl's pricing reflects this allocation oftisk and the limitation of liability specified herein. (iustomer Responsibility for l'se of Software: Error Detection Procedures. Customer is solely responsible for selecting the I.icensed Software and other elements of its information technology environment appropnate to Customer', needs, proper use of the I icensed Software by qualified personnel, measures to prevent loss of data, and all other matters under its control. Customer understands and agrees that MROI is not responsible for the use or operation of the Licensed Software and that the I.icensed Software and MROl's services are not to be independently relied upon in connection with adherence to Customer's business practices or governmental or other health environmental or safety standards or regulatory procedures. Customer remains solely responsible for the health and safety of Customer's employees and others who may be present in Customer's facilities or come Into contact with Customer's plant or equipment, compliance with laws. regulations. and insurance procedures. Customer agrees that, with respect to use of the Licensed Software and any modification, customization, implementation or configuration of the Licensed Software, whether done by C'ustomer or by MROl at Customer's request, in connection with any application relating to health, safety, environmental compliance, hazardous material management or any other application that poses health or safety risks, (a) MROI does not purport to have particular expertise in health, safety, envmmmental compliance, hazardous material management or any other application that poses health or safety risks; and (b) Customer will bear complete responslhility for ascertaining that the Licensed Software and any modification, custornization or formatting of the Licensed Software is appropriate for use in such applications. In order to assist Customer in minimizing, detecting, and preventing errors and defects in the Licensed Software and potential problems in the use thereof MROL, user manual includes extensive maintenance and error detection procedures. CUSTOMER AGREES THAT IT WILL CAUSE ALL USERS OF THE LICENSED SOFTWARE TO READ AND FOLLOW THE PROCEDURES SET FORTH IN THE MANUAL. FAILURE TO FOLLOW THE PROCEDURES COULD RESULT IN SERIOUS MISUSE OF THE LICENSED SOFTWARE AND FAILURE TO DETECT POTENTIAL DATA FRRORS. 7.9 Third Party Claims. MROI shall under no circumstances be liable for any claim or demand by any third party based on or related to Customer's use of the Licensed Software or errors or alleged errors in the Licensed Software, 8. Miscellaneous. 8.1 Entire Agreement. This Agreement, together with all exhibits and schedules hereto, sets forth the complete and exclusive statement of the agreement hetween the parties relating to the Licensed Software. All other terms, conditions. purchase orders, statements, proposals, promises, representations, warranties and/or agreements, whether written or oral, and all other communications in effect or contemplated between the parties relating to the I.icensed Software, are hereby superceded and extinguished in their entirety. 8.2 Notices. Any notices required or permitted under this Agreement shall be in writing and shall be deemed properly given if personally delivered or sent by tirst class or certified mail (return receipt requested) postage prepaid or by express courier. All notices shall he addressed as set forth on the cover page or to such other address as the addressee shall have furnished to the addressor in accordance with this Section 8.2. Any notices given hereunder shall be deemed to have heen received on the earlier of actual receipt or three (3) days after depositing in the mail or with the courier service. 8.3 Severability. If any of the provisions or portions thereof of this Agreement are determined to he invalid, illegal or unenforceable by a court of competent jurisdiction, such provisions or portions thereof shall be severed from this Agreement and the remaining provisions shall remain in full force and effect 8.4 Independent Contractor. The relationship between MROI and Customer shall he that of independent contractors, Nothing contained in this Agreement shall be construed to create a partnership, joint venture or agency relationship, and, notwithstanding anything else herein, neither party shall have the right to incur any obligation or liability, or to waive any right or remedy on hehal I' of the other. 85 No Waiver/Modification. No waiver, alteration, modification or cancellation of any of the provisions of this Agreement shall be binding on MROI unless made in writing and signed by an authorized representative of MROL MROl's failure at any time to require performance by Customer of any provision hereof shall not affect in any way MROl's right to require such performance at any time thereafter. Remedies. Except as expressly stated herein, no remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law, in equity or otherwise. 8.6 Rev l ktober 18. 200) Copvnght @ 2005 MRO Software, Ine 8.7 Governing Law. rhls Agreement shall be governed b\ and construcd and enforced in accordance with the laws of thc Stale of \exas I JSA. without regard 1(. 'IS principles of conflicts of laws. 8.1'1 Jurisdiction. I"he parties agree that am action with respect 10 this Agreemclll may only be brought In a court ot competent subjcct matter jUrisdiction located lfI Ncuces CountJ. f'cxas. i SA and Customer hereby irrcvocabl\ consents to thc CXclUSIVl' .JUrISdiction and vcnuc of such c<'urts tor thl' purpo,,' of such actioI' 8.'. Assignment. ThIS Agreement shall be binding upon. and inure to the henefit of MR( II and Its legal representatIves. succcssors and assigns This Agreement. the Licensed Software. and the Liccnse may not be assigned. sublicenscd or otherwise transferred by Customer (in connection WIth third party access or use authori7.ed on ~chedule j\. or otherwIse) without 'V1ROrs prIor WrItten consent 8.10 Force Majeure. MROl shall not be liable hlf an\ delays in the performance of any lof its obligations hereunder due to causes beyond ItS reasonable control. Including. but not limited to fire. strike. war, riots. acts of any civil or military authority. acts of God. judicial action. unavailability or shortages of lahor. materials or equipment, failurc or delay in deliverv or performance by suppliers or delays in transportation 11.11 Equitable Relief. rhe covenants and agreements of ( ustomer In 2 I 2.9. 41. 4.4 45. 52 and 63. of this Agreement are of a special and unique character. and Customer acknowledges that money damages alone will not reasonably ur adequately compensate MROI for any breach of such covenants and agreements. Therefore. MROI and Customer expressly agree that in the cvent of the hreaeh or threatened breach of any such covenants or agreements. m addItion 10 other rights or remedies which MROI may have. at law. in eqUity or otherwIse. MROI shall be entitled to equitable or other appropriate rellet~ including without lImitation IllJunction(s) and/or order(s) lor specific performance preventing further breaches of or wmpelling compliancc with. Ihe term' nfsuch Section, >l.12 "axes. I he License Fee, and any other tees duc hereunder are exclusive of all felleraL state. muniCIpal and other governmental excise. ,ales. use. custom;,. value added or other taxes, fCe;, or dutie, now In fi)fce or enacted in lhe future Including without limitatIOn. all taxes In connect inn WIth the use. '.lwnershIP and licenSing \,1' software. hut cxcludIng taxes based on 'V1ROl's Income. ('ustomer shall pay on or bef()!e thcir due dates all such taxes. lees. duties and charges which arise out nf or In connection with this Agreement or any license granted herein. If MROI is required at any time to pay any such tax. fee. duty or charge. Customer will prompth reimburse MROI therefor. ,\t MRI )1' s discretion. any such taxes. tees and duties may be added to the price Ii" any licensed Software provided hereundcr or ma, be hilled 'eparale" 11.13 Shipping. "1.11 Licensed Software delivered to I ustomer hcreunder ;,hall bc ,hipped F () 13.. nr I CA as applicable outside \lfthe IS. MRC)!'s faCility 10 the address set forth on the front of this Agreement The Licensed Software shall he deemed delivered once it pa%es from MROI to the freight carrier. to Customer nr to Customer's agent lor delivery, whIchever first occurs In the event that the Licensed Software is not receIved hy Customer within ten (10) days of receipt of an order by MROL MROI shall re-ship at no charge within live (5) days of written notice of lack of receipt from Customer. Electronic dclive" "available Upoll request. In aCCllrdance with MROl's procedures ~.14 Compliance with Laws and l'.S. Export Restrktions. Custnmer acknowledges Ihat the licensed Software and all related technical information. documents and materials, "Controlled Items") are subject to exporl controls under the 1 J S Export \dminislratJon Regulatinns and ma, als" be subject to cxport '" import regulatIOns in other countries. Customer will (i) comply strictly With all legal requircments establishcd under thcsc controls ,md regulations. (ii) 0(;()perate fully with MROI in any official nr unofficial audit or inspectIon that relates to these controls and regulations. (iii) not export. re-export. divert or transter. dIrectly 'If Indirectly. any Controlled Item or direct nroducts thereofhl ,j (uba Iran, Llhya, North Korea (Democratic Republic of Korea), Sudan. Syria or any country that is embargoed by Executive order. unless ('ustomer has obtained the prior written authorization of MROI and the I :S. Commerce Department (upon notice to Customer. MROl may modify this list to conform to ~hanges in thc l.S. Export Administration Regulations. and such list shall be deemed amended to confonn .11' the list at: found to \\ Irl<L"~I.I\ ~'JJjL~~ l...'lit(,~fl"L'Jlll;;-,-Jt llLli..:_"'~lJjLJi.~llh): or ii I to any person or firm listed on any United States Government restricted parties list (e.g., the U.S. Commerce Department's Denied Parties List; the US Commerce Department's B1S Entities List; and the U.S. Treasury Department's list of specially designated nationals and blocked persons); or Iii) to(i) any nuclear facility except as authorized under the U.S. Export Administration Regulations; or (ii) to any person or firm that is engaged in any activities relating to the proliferation of nuclear. chemical or biological weapons or missiles. 8.IS U.S. Restricted Rights. If Customer is a government agency, Customer acknowledges and agrees that the Licensed Software is provided with RESTRICTED RIGHTS. Subparagraph (c) of The Rights in Technical Data and Computer Software clause at 252.227-7013 of the Department of Defense FAR Supplement and FAR clause 52.227-19 entitled Commercial Computer Software Restricted Rights, apply and use, duplication or disclosure by the Government is subject to restrictions as set forth in this Agreement. The aforementioned restrictions shall prevail over any similar "Rights" provisions under the laws of any country. Contractor/Manufacturer: MRO Software. Inc.. 100 Crosby Drive. Bedford. MA 01730. 8.16 Records Inspection. Customer shall maintain adequate books and records regarding its activities under this Agreement, and regarding its use and deployment of the Licensed Software. Such records shall include at a minimum the type and number of assets being managed with the Licensed Software. and each location where the Licensed Software or any portion thereof exists. MROI may, at its expense, audit the records of Customer to ensure compliance with the terms of this Agreement. Any such audit shall be conducted during regular business hours at Customer's offices and shall not unreasonably interfere with Customer's activities. If any audit reveals that Customer has underpaid License and/or ACSP Fees to MROI, Customer shall hc invoiced for such underpaid fees based on MROl's Price List in effect at the time the audIt is conducted. If the underpaid fees are in excess of five percent (5%) of the total amount due to MROI, then Customer shall pay MROl's reasonable costs of conducting the audit plus interest at the rate provided in Section 2.7. Audits shall be conducted no more than twice per calendar year II.P Publicity and Marketing. Customer acknowledges and agrees that MROI may. at its discretion, use Customer's name in financial reports or in connection with marketing activities (including but not limited to media mterviews. press releases, product brochures and white papers) indicating that Customer is a customer of MROI, describing Customer's implementation of the Licensed Software or quoting a director or officer of the Customer, provided that such intormation is true and accurate. Open Source. Customer acknowledges that the Licensed Software contains computer software obtained from the public domain know as "Open Source". A complete listing of all Open Source contained in the Licensed Software and the terms under which such software is licensed to MROI may be viewed at: httpllwww.mro.wmflegal. The terms of this License Agreement extend to and fully cover all Open Source contained in the Licensed Software, including MR()I's warranty and support obligations. and the various limitations of liability and disclaimers of implied warranties. However. MROJ's obligations under section 4.2 (Indemnification for Infringement) do not apply to claims that any Open Source infringes the rights of any third party, and the author(s) of Open Source make no warranty and shall have no liability or obligation under this Agreement whatsoever This License Agreement does not alter or limit any rights or obligations you may have under such open source licenses, and MROI reserves the right to change the terms of this Agreement related to Open Source as may be necessary for MROI to comply with the terms of an Open Source license: see httpl/www.mro.com/legal. 8.18 8.19 Counterparts. This Agreement may be executed in multiple counterparts, each of which may be an original or facsimile signature and all of which shall constitute together but one and the same document. 8.20 Headings. The headings and subheadings of the sections of this Agreement have been included solely for ease of reference and do not form part of this Agreement. [End of Document] (Rev (ktl1hcr 18. JO()~ i ( opvnght @ 2005 MR() Software. Inc 6 software SCHEDLLE A-I TO fHE \'IAXIMO' SOFTWARE LICENSE AGREEMENT 1,lcensee ( U~o I: ( Oillll '~JlJi'lU "; N :'iQ2 n:'i Fffecti\ e Date: l~1I1llilll -' I, 211'Jl 1,leemed Software: '1\\1~!i l":,> 1 I iceme Ivpe: Re'!JSlcred U',-r-Based I I\TI1Sel ,hall re,Tlle tile 1'0110\\ IJ1g license el'!1VCrSIOI1 at no chargc, for ever) one (I) Concurrent User that Licensee is currently authorized to utilize I ic:el1sel shall receive the number of Registered Users set forth in the table bekm Licensee may access and use the Licensed Software by not more than the ilumber of Reghtered Users authorized hereunder and 111<1\ increase its number of Registered Users upon written notice to MROI and pa\l11\::n' 1>I'an) applicable fees LXN502735 Re istered Users* - ___n'________ .'. 25 Pri mar Re istered Users -~--------_.... 7~' Seeond~r Registered Users 10 Concurrc'nt I ,ers hc' I,' IdIIO!1> "" th" l\pe, oi'Rc,,:s1C!ed i LeI', <lIe PI' Ih,' 1()III)\\ing pagc' LICENSE TERM c><;J !'erpltual ANNll\L CUSTOMER SUPPORT PLAN ("ACSP") c><;J Vel, PlTeenlagl' Ilf Lil'ellse I\~e, I :'i", Towl Yearh Cost: $7,500,00 SCOPE OF LICENSE: I '.pc' () r" t scrs Sub-Total c><;J ()ud Reportlllg I is','' ~llll $50,000 filial Ine lime IlCelhe Cost for perpetual use of 30() quiCK reporting user licenses :\Ild Ii' the lirst year pi \(SP' $57,'00 (111* he ali '-"ints 'late" hnc',n have heYI' Pllld al -I arc 11,,)t lhlc' ai 1111' 111111', ;\(SP shall n:nell al the rate above and may increase as stated in the A~','eel'L " DEFINITIONS - TYPES OF REGISTERED llSERS :'VL\X Irvlll k proVides acccss to di Ilerenl tvpes of Regl,tered I; sers, Lach type of Registered User IS licensed for a defined set of access and capabilitlL's hy which to II1teraet mth the \arip\ls module, ofM;\XIMO@, There arc three possible Interactions: Create ("C"), Edit ("E") and View 1'\ ..) 'k table helllw 'ets out the access and capabilit\ of each I\pe of Registered l'seL SeconGaJ" Registered I 'ers are delined ,1'. thl''': per'IHls duthllfl/ed to enter data dgainst or access data from the database which the server portion of the L,ecl'sed Sot1wale 1)lganizes and mantpula;es, \\hether or not that person is utllizing the desktop executables, web browser or from handheld (\\ 'rele" jevices only, \ny person who USe, or aecesse.' the Licensed Sothvare components or accesses the Licensed Software's business rules (lllcludillL \ la any kind ,If user Interfacc) is cOllsidered a Primary Registered User Accessing MAXIMO via a handheld device constitutes a Seconds: \ Registered L>er and is prohihited \\ tthollt the appropriate license fees being paid. All Primary and Secondary Registered Users shall be listc:d ill the security application of Ihe Licensed Sot1warc Multiple log-ins under the same or a single user name is prohibited. MAXIMO Mobile SiPle ani' i-cation, arc liL,'nsed on a pC!' handhl'id de\ Ice baSiS ,I! c 'i; COPYrlt!ht '(.' _~ \1RI lj software r-\V~~kQ;:cjeri - ------ --- ~Vork Order l'rackil1l'__ Quick Rcportll~_ ,labor Rcport1l1.&_um i _ .. Work Rcquests _ [Preventative Maintenance 1--- . Prevcntative \.faintenancc ---~-- [nve~_~_ I n!~nl()r: Item Master Storerooms -------- lssues & rWlIsfers 1-- '-- - ---.--------.----- l_ ~qu~men~__ ___ ______ . !q0p111.ent I OCatIOIb ._~--.-_...- hulure l ode'- ~_ _ C~iit;;.)nMonitonng L~urchasing _______ Eu~h~c Reyulsitions R~e2!I~()uotation Purchase Orders -----_...~ R~~lvln~_ InVOices - ...-..-----.-....-- ~._-..._----_._--- Plans --~....~_._- - lob Plan' Routes 'i',fet~ Xb'2.' Safel\ ILlI:ards --.--.-.....- Safetvir-cc:.<1ill iOIlS [ ock-OUl- ra>':-flut j---- --~~._-------~..._----- ! Resources ,_ o~parl1cs lools 'iervlcc l ontracts ! ! _ i abor j Craft" I ------- ~~ep~~:orGItl=,~=~=~=~~=-- I R <:Q.Cl rt s i KPls ~------- -------- ~.s2th~---- i .\llu<)le Rcponpcsigner \lRO SOFIWARE. INC. 1\\ ~AMf- 1 .;tJl~U/S llTI I I )iIcctol~ .~~)lJ.1racts 1);\11 1\.: __-L- c'V.E ---- eYE _._--~._---- lYE ----------- I.V.L l.VY ( .V.L l.V.I. \. _V.L ----- tv ( .V.E -------- C.V e.V.E l l.V.E eV.L ( '.VY " v.r ( V.I' ( VY V.E ( VT (V.E -~_.- (V.E (V.E ----- ( V.E -------- ( .V.E ('.V.E C.V.E 'VT Cupynglll _+-___ c. V. E I C.V.E +-~----- , C.V.E eV.E C,V.E L___..__..__~__ 1----- I I , l-- - I v ----~--- \' Cit~, of Corpus Christi 11) \ ,\ \11 IITLE 1)/\ I Ie \-1ROI