HomeMy WebLinkAboutC2006-059 - 2/28/2006 - Approved
SOFTWARE LICENSE
THI~ SOFTWARE lICENSE (the "Agreement") is entered on h: ~, ,;i ~ . .1C2 (" by and
between ADVANCED PlJBLlC SAFETY. INC. ("LICENSOR"), a Florida corporation,
with principal offices located at 500 Fairway Drive, Suite 204, Deerfield Beach, FL
3~441 and I ("LICENSEE"), located at
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ARTICLE I
RIGHT TO USE LICENSED SOFTWARE
i .1 Defined Terms. The terms in this Agreement are defined as follows:
(a) Effective Date means the date entered above.
(b) Licensed Software means the computer program relating to
LICENSOR's Virtual Partner software application.
(c) Host Software means the Virtual Partner family of products (QuickVoice,
QuickTicket. etc) and/or PocketSuite (PocketCitation, PocketParking, etc) software sold
b\, APS,
1.2 Grant of Right. Subject to the terms and conditions set forth herein and as of the
Effective Date, LICENSOR .b'Tants to LICENSEE, a personal, nontransferable,
nonexclusive right to install and use the Licensed Software during the Term (as defined
below) solely tor internal law ent()rcement purposes through its police department or
sheriffs office. Exccpt as expressly permitted under this Agreement, LICENSEE may
not permit any third party to use the Licensed Software nor may LICENSEE use the
L1I2ensed Software itself for the benefit of any third party.
!3 Copymg. liCENSEE may not decompile, disassemble, reverse engineer, or
translate the Licensed Software into another computer language or otherwise reduce the
Licensed Software to a human-perceivable form
.4 Ownership. The Licensed Software is LICENSOR's exclusive property.
LICENSOR shall ha\ e sole and exclusive ownership of all right, title, and interest in and
to the Licensed Software and all modifications and enhancements thereof (including
ownership of all patents, trade secrets and copyrights pertaining thereto), subject only to
the nghts and privileges expressly b'Tanted by LICENSOR. This Agreement does not
provide LICENSEE with title or ownership of the Licensed Software, but only a right of
limited use. LICENSEE must keep the Licensed Software free and clear of all claims,
liens. and encumbrances.
I 5 Transfer Prohibited. LICENSEE may not sell, lease, sublicense or otherwise
transfer or dispose of the Licensed Software, in whole or in part.
ARTICLE II
LICENSED SOFTWARE ACCEPTANCE
2 I Installation The Licensed Software shall be installed by LICENSEE upon
delivery by LICENSOR. The computer shall be the type of computer used by
LICENSEE'S intended users of the software and shall contain the same operating system
and software. The dale of this delivery will be referred to as the "Certified Date".
2006-059
02/28/06
M2006-059
Advanced Public Safet)
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.~.2 Performance. During the period commencing on the Certified Date and ending
ten ( I 0) days thereafter (the "Performance Period"). LICENSEE shall utilize the Licensed
Software and computer "ystem for its intended purpose (in-service use), testing all
operation modes and eqUIpment configuration. with the system fully loaded, in order to
detennine whether the Licensed Software operates successfully. "Successful operation"
is defined as the absence llf any major software failure in the application software, which
results in the dIsabling of a major item, resulting in the inability of the overall system to
perfl1nn. Minor f~lIlures. such as operational problems and adjustment normally
encountered dunng Implementation of a new system. shall not constitute a failure in
achieving successfultlperation.
2.3 Acceptance. If the Licensed Software does not successfully operate, LICENSEE
shall notify LICENSOR during the Performance Period with specific information
detmlll1g why LICENSEE believes the Licensed Software does not successfully operate.
If LICENSOR agree:-. with such mformation. LICENSOR shall have ninety (90) days to
make any revisions Ill' corrections. [f LICENSOR fails to make the corrections within
such ()O-day penod. both LICENSEE and LICENSOR shall each have the right to
termll1ate this Agreement and the License granted hereunder and LICENSEE shall
recent' a full refund of the Licensed Software Fees. If~ at any time during the
Performance Penod, the Licensed Software is altered by any party (except LICENSOR)
m any way. or If the media has been damaged by accident, abuse or misapplication, or if
the unsuccessful llperatioll arises out of use of the Licensed Software with other than a
recommended hardware configuration, the Licensed Software shall automatically deemed
to be accepted by LlCENSFE. [f no notice of unsuccessful operation is received by
LICENSOR pnor to the expiratIOn of the Performance Period, the Licensed Software
shall be deemed accepted by LICENSEE.
ARTICLE III
SUPPORT AND MAINTENANCE
;.1 Eligibility for Support. To be eligible for support, LICENSEE must have a valid
LIcensed Software Agreement for the application and be in compliance with the schedule
of pavrnents.
~.2 Scope of Support Services: Hours of Support. LICENSOR shall provide technical
SUPPl1rt to LICENSEE during the Initial Term and, provided all Annual Maintenance
Fees (as defined below) are paid by LICENSEE, during Renewal Terms. Additionally,
LICENSOR shall use reasonable diligence in correcting verifiable and reproducible bugs
when reported in accordance with LICENSOR's standard reporting procedures, which
may be modified from time to time at LICENSOR's discretion. If a bug exists,
LICENSEE must pwvide LICENSOR with information sufficient for LICENSOR to
duphcate the circumstances under which the bug in the Licensed Software became
apparent. Such techl1lcal support shall be provided to LICENSEE 24 hours a day, 7 days
a week.
~.3 Upgrades. L [CENSOR may, from time to time, issue new releases of the
Licensed Software. LICENSOR shall provide LICENSEE with one (1) copy of each new
release without additIOnal charge. LICENSOR shall provide reasonable assistance to
help LICENSEE install and operate each new release, provided that if such assistance is
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to be provided at LICENSEE's tacility, LICENSEE shall pay supplemental charges set
f()J1h in LICENSOR s then current rate schedule f()r such assistance. LICENSOR shall
use reasonable effor1s tn modify the Licensed Software to work with upgrades to
LlC], NSEE'S Host Software.
iA Maintenance. Dunng the Initial Term and, provided all Annual Maintenance Fees
(as defined below) are paid by LICENSEE, during Renewal Terms, LICENSOR shall use
reasonable efforts to ..:nsure that the Licensed Software continues to successfully operate
In the event of L1CI NSEE's upgrade of its Windows operating system, mobile client
upgrades or changes. changes to national, state and/or local queries and modifications to
law enforcement t()mlS used bv the Licensed Software.
i.5 Obligations of Customer. LICENSEE must provide new versions of its Host
Soft\.\ are to LICENSOR prior to any installation of the Licensed Software to determine
compatibility. LICENSOR will provide written confirmation of compatibility within ten
(10) business days (If the date of this Agreement. In the event the Host Software is
deemed to be incompatible by LICENSOR, LICENSOR shall make recommendations for
compatibility. If UCENSEE chooses not to tallow such recommendations, the
provISIons set f()rth in Article II shall not apply to LICENSEE and the Licensed Software
shall be deemed to be accepted by LICENSEE prior to installation.
ARTICLE IV
PAYMENTS
4.1 Fees. LICENSEE shall pay a one-time Licensed Software Fee and an Annual
Maintenance Fee (Exhibit "A")
4.2 Payment Tenns. 50%) of payment is due on receipt of Purchase Order.
Thereafter, 25% of payment is due on initial software delivery, 15% of payment is due on
hardware delivery and the remaining 10% is due on final acceptance. QuickData is
approved and billed separately since QuickData typically requires 3rd party involvement.
LICENSEE shall pay the Annual Maintenance Fee for the Initial Term when the
LIcensed Software is accepted as set forth in Article II. LICENSEE shall pay the Annual
Maintenance Fee within thirty (30) days of the expiration of any Term for succeeding
Renewal Terms. U( 'ENSEE shall pay all hardware costs within thirty (30) days from
delivery of hardware to LICENSEE. In the event that hardware is received in separate
deliVl~ries. partial payments shall be made by LICENSEE within thirty (30) days of each
delivery.
ARTICLE V
TERM AND TERMINATION
~ I Term. The Term of this Agreement and the License granted hereunder shall be
one ( 1) year (the "Inltial Term") commencing on the Effective Date. The Initial Term
shall automatically renew for subsequent terms (each, a "Renewal Term"; collectively,
the Initial Term and any Renewal Terms are the "Term") unless either party provides
written notice to the other of non-renewal no later than thirty (30) days prior to the
expiration of a Term. Notwithstanding the foregoing, a Term shall not be renewed unless
LICENSEE has paid the Annual Maintenance Fee prior to the commencement of the new
Term If LICENSEE fails to pay the Annual Maintenance Fee prior to the
commencement of (J ne\\/ Term. this Agreement and the Licensed Software shall
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term mate immediatel v.
'.2 Tennination lor Breach. LICENSEE may terminate this Agreement and the
License granted hereunder upon a material breach thereof, which such material breach
has not be cured within thirty (30) days of the date of notice of such material breach to
LICENSOR. If LICENSEE hreaches any of its ohligations under this Agreement,
LICENSOR may. in addition to any other remedies it may have, immediately terminate
this Agreement. \Jpon any termination of this Agreement, LICENSEE shall immediately
ceaSl' any and all use of the Licensed Software and must destroy all copies of the
Licensed Software t1 its possession (such destruction includes, without limitation,
deletmg all copies installed) and certify such destruction in writing to LICENSOR within
thlrt: (30) days from the date of termination. In the event of any termination of this
Agreement except such tenninations pursuant to Article II, LICENSOR has no obligation
to refund any amounts paid to It hereunder.
ARTICLE VI
W ARRANTIES~ LIMITATIONS ON LIABILITY
6. I Limited Warranties. LICENSOR warrants that the Licensed Software conforms in
all material respects to the specifications for the current release of the Licensed Software
as described 10 LICENSOR'", product specifications as of the date of this Agreement.
This warranty is expressly conditioned on LICENSEE's observance of proper operating,
secunty and data-control procedures set by LICENSOR.. LICENSOR is not responsible
for ohsolescence of the Licensed Software that may result from changes in LICENSEE'S
reqUlrements. mcIudmg ne\\ software packages and/or operating systems used by
LICENSEE The foregoing warranty shall apply only to the most current release of the
Licensed Software issued by LICENSOR trom time to time. LICENSOR assumes no
resp<lnsibility f()r the use of superseded, outdated, or uncorrected releases of the Licensed
Software. EXCEPT \S SET FORTH IN THE FOREGOING LIMITED WARRANTY,
LICENSOR DISCL\IMS ALL OTHER WARRANTIES EITHER EXPRESS OR
IMPI lED. INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS
FOR \ PARTIe\ ILAR PURPOSE. AND NONINFRINGEMENT. IF APPLICABLE
LA \\ IMPLIES ANY WARRANTIES WITH RESPECT TO THE LICENSED
SOFTWARE. ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO
\IINI-TY DAYS FR()M THE DELIVERY DATE OF THE LICENSED SOFTWARE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR
MAKES NO WARRANTY OR REPRESENTATION OF ANY NATURE THAT THE
LICF\JSEE'S liSE (IF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED,
ERROR FREE, OR SECURE. '\JO ORAL OR WRITTEN INFORMATION OR
AD\ ICE GIVEN BY LICENSOR, ITS DEALERS, DISTRIBUTORS, AGENTS OR
EMPLOYEES CREA rES ANY WARRANTIES OR IN ANY WAY INCREASES THE
SCOPE OF THIS LI\1ITED WARRANTY. SOME STATES DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY
NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC
LEGAL RIGHTS A'\lD LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS
THAT VARY FROM STATE TO STATE.
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h.2 Limitation 01 Damages. LICENSOR IS NOT LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQl'ENTIAL DAMAGES (INCLUDING
DAMAGES FOR lOSS OF Bl SINESS, LOSS OF PROFITS, OR THE LIKE),
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NECrlIGENCE). PRODUCT LIABILITY, OR OTHERWISE, EVEN IF LICENSOR
OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF
sue H DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO
HA \F FAILED OF ITS ESSENTIAL PURPOSE, LICENSOR'S TOTAL LIABILITY
TO lICENSEE FOR ACTUAL DAMAGES FROM ANY CAUSE WHATSOEVER IS
LIMITED 'ro THf~ AMOUNT PAID BY LICENSEE FOR THE LICENSED
selF I'WARE THAT CAUSED SUCH DAMAGE. SOME STATES DO NOT ALLOW
THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION
MA'1 NOT APPL Y TO LICENSEE. TO THE EXTENT PROHIBITED BY
APPliCABLE LA\\. THE FOREGOING LIMITATIONS OF DAMAGES DO NOT
APPI Y TO DAMAUES FOR PERSONAL INJURY TO LICENSEE, IF ANY. THE
CI[MULA TIVE LIABILITY OF LICENSOR TO LICENSEE FOR ALL CLAIMS
RELATED 1'0 1 HE LICENSED SOFTWARE AND THIS AGREEMENT,
INCII JDING A'-lY CAl SE OF ACTION SOUNDING IN CONTRACT, TORT, OR
STRICT LIABILIT) SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES
PAID TO LICENSOR HEREUNDER. Notwithstanding the foregoing, if the Licensed
Software is altered hy any party (except LICENSOR) in any way, or if the media has
been damaged by aCLident, abuse or misapplication, or if the Licensed Software is used
with hardware which is not recommended by LICENSOR. LICENSOR shall have no
liabiiJty hereunder of any nature whatsoever.
ARTICLE VII
MISCELLANEOUS PROVISIONS
-, I Escrow. Upon request by LICENSEE within ninety (90) days of the date of this
Agreement, LICENSOR shall establish an escrow agreement with an independent third
part) agent for the source code of the Licensed Software. Release of the source code from
escrow shall occur only when LICENSOR: (i) ceases doing business and its business is
not continued by another corporation or entity: (ii) becomes insolvent; (iii) makes a
general assignment for the benefit of creditors: (iv) suffers or permits the appointment of
a recelver for its busmess or assets: or (v) avails itself of: or becomes subject to, any
proceeding under Federal Bankruptcy Act or any other statute of any state relating to
insolvency or the protection of nghts of creditors or conditions outlined elsewhere
(collectively, the "Release Events"). Upon the occurrence of a Release Event,
LICF NSEE shall be entitled to receive a copy of the Source Code immediately from the
Escrow Agent upon JCENSEE's notification m writing to the Escrow Agent of any of
the CIrcumstances sef forth above. The source code will be released to the LICENSEE
on the condition and for the sole purpose of maintaining and supporting the Licensed
Software for the remainder of the Term and may not be otherwise used, transferred or
sold,
'~7 Confidentlalitv. Subject to any applicable public records laws, LICENSEE shall
hold all components of the Licensed Software in confidence for LICENSOR. Except to
such of LICENSEE'... employees to whom disclosure is necessary in order to use the
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licensed Software a~ contemplated under this Agreement, LICENSEE must not disclose
licensed Software (including methods or concepts utilized therein) to any third party.
LICENSEE must appropriately notIfy all employees to whom any such disclosure is
made that such discl(lsure is made in confidence and must be kept in confidence.
-'.3 Trademarks. Nothing contained in this Agreement grants LICENSEE any license
or nght to use any name. trade name, trademark. service mark, symbol or any other
identltication. Of an' colorable imitation thereof. belonging to or used or adopted by
LICENSOR.
-,4 Statements. On LICENSOR's request. but not more frequently than annually,
LICENSEE shall furnish to LICENSOR a statement, certified by an authorized
representative of LICENSEE. that LICENSEE's use of Licensed Software has been
reviewed and that it is being used only for LICENSEE's internal business purposes and
such use IS in full compliance with the provisions of this Agreement, and an itemized list
ot the computers mstalled with the software,
"'5 Nonassignability, The partIes have entered this Agreement contemplating
personal performance by LICENSEE. The rights granted LICENSEE hereunder do not
extend to entities or persons other than those expressly referred to herein. LICENSEE
may not assign thIS Agreement or the License granted herein,
"'.6 Entire Agreement. Except with respect to any Confidentiality or Non-Disclosure
agreement entered into by and between the parties, this Agreement represents the entire
understanding and agreement between the parties with respect to the subject matter
hereof: and supersedes all other negotiations, understandings and representations, if any,
made by and between the parties. No representations. inducements, promises or
agreements. oral or ltherwise, if any, not embodied herein is of any force and effect,
except with respect to any Confidentiality or Non-Disclosure agreement entered into by
and hetween the partIes.
- 7 SUf\'ival. ;\11 covenants. agreements. representations and warranties made in
thiS Agreement contlllue III full force and effect subsequent to and notwithstanding the
AbTfeement's terminatIon and until they are satistied or by their nature expire.
-',8 Binding Etfect. fhis Agreement, whether so expressed or not, is binding upon,
inure to the benetit Ilf, and are enforceable by the parties and their respective personal
representatives. legal representatives. heirs, successors and permitted assigns.
-,9 Notices, All notices. requests. demands, consents and other communications
reqUIred or permitted under this Agreement must be in writing and must be (as elected by
the person gIving such notice) hand delivered. delivered by a nationally recognized
couner sef\ice. or mailed by registered or certified mail (postage prepaid), return receipt
requested. addressed to the appropriate party at Its address set forth above or to such other
address as that party may designate by notice complying with the terms of this Section.
Each such notice is deemed delivered: (a) on the date delivered if by hand delivery or
couner service: or (b) on the date upon which the return receipt is signed or delivery is
refused or the noticL' is desib1J1ated by the postal authorities or courier service as not
deli \erable. as the case may be, if mailed or couriered.
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.lli Venue; Governing Law. This Agreement shall be governed by and construed in
accordance with the I dWS of the State of Texas. The venue for any action or proceeding
ansing out of or In Lonnection with this Agreement shall be in the applicable state or
federal court located lJ1 thc State of Texas, and LICENSEE hereby waives any objection
it may have to sucb venue, including, without limitation, an objection based on the
assertion that this venue is an inconvenient f()fum.
1'1 WITNESS WHEREOF. the parties have executed and delivered this Agreement on
the date set forth abo\ e.
LICENSOR:
ADV ANCED PUBLIC SAFETY. INC.
LICENSEE: ~ IT'--, c f C-)~ 1) ,) ( LH 1\ \',
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LisaAguilar (
Assistant City Attorney
For City Attorney
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