HomeMy WebLinkAboutC2010-139 - 5/11/2010 - ApprovedSTARLIMS
c o r p o r a t i o n
2010 -139
M2010 -099
05/11/10
Stariims
STARLIIVV SOFTWARE LICENSE,
SUPPORT AND
SERVICES AGREEIVENT
(REVISED NOV. 2009)
(The "Agreement')
Dated /14 11 28 �d
(the "Effective Date ")
Between
STARLIMS CORPORATION
of 4000 Hollywood Blvd., Hollywood, Florida, 33021, USA,
("STARLIMS")
1 r� n I1 AND
e.,(41 dt Ceireik% rt5 +i 4 [ rpu5thrbtAkeas 4t.n4r Distrtd`
of U7 7V
( "LICENSEE"; 7g•116
Each a "Party' and, together, the "Parties ")
INDEXED
TABLE OF CONTENTS
THE AGREEMENT 1
SIGNATURE PAGE 14
APPENDIX A - PROGRAM SCHEDULE 15
APPENDIX B - ESCROW AGREEMENT 22
ADDENDUM A - PARTICIPATING USER AGREEMENT 27
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
THE AGREEMENT
THIS AGREEMENT CONCERNS THE PROGRAMS AND RELATED SERVICES DESCRIBED IN THE PROGRAM SCHEDULE.
The Program Schedule and any other appendix, exhibit, or document attached hereto, as well as this introduction, contain terms
and conditions that are hereby incorporated into and made part of this Agreement. Subject to the provisions of Section 19.2
hereof, the terms of this Agreement will be binding an any successor to LICENSEE or STARLIMS. This Agreement is entered
into under the General Services Administration Cooperative Purchasing Contract number GS- 35F- 0660P.
1. KEY DEFINITIONS
1.1. "Affiliate" means any entity controlled by, under common control with, w controlling a Party, and includes such
Party's subsidiaries, partnerships, joint ventures and other entities or operations for which such Party, either directly or indirectly,
has operational or management responsibility.
1.2. "Confidential Information" has the meaning imparted thereto in Section 9.1 hereof.
1.3. "Documentation" means the user instructions, manuals, or other materials or on -line help files regarding the use of
the Program provided by STARLIMS.
1.4. "Escrow Agreement" means the agreement, an unsigned, electronic copy of which is attached hereto as Appendix B,
between STARLIMS and its escrow agent governing the escrow of the Source Code Material.
1.5. "License" has the meaning ascribed thereto in Section 2 hereof.
1.6. "Maintenance" has the meaning ascribed thereto, and is further described, in Section 10 hereof.
1.7. Professional Services" has the meaning ascribed thereto, as is further described, in Section 11 hereof.
1.8. "Program" means the computer software, including any copy or modification thereof and, subject to any right of
LICENSEE to receive the same, any Update or Upgrade, described in the Program Schedule.
1.9. "Program Schedule" means the written quote attached hereto as Appendix A and listing the Program licenses and
Services that LICENSEE has purchased or ordered hereunder. Such term also includes any other such document listing
Program licenses and Services and attached hereto and sequentially numbered as Appendix A -1, Appendix A -2, etc.
1.10. "Services" means Maintenance and Professional Services.
1.11. "Source Code Material" means the source code underlying the Program, together with the Documentation.
1.12. "Update" and "Upgrade" have the meanings ascribed thereto in Section 6.2 hereof.
1.13. "Warranty Period" has the meaning ascribed thereto in Section 6.1 hereof.
2. LICENSE
Subject to the conditions hereof and in accordance with the License scope identified in the Program Schedule(s), STARLIMS
hereby grants LICENSEE, and LICENSEE accepts, the perpetual, irrevocable, royalty-free, fully paid -up and non - exclusive
licenses to use the Programs) as indicated in the Program Schedule(s) (such licenses, collectively, the "License"), and any
related Documentation. The License includes the right to configure the Program by employing the configuration and design tools
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STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
provided therewith. The License also includes the right to use, copy, and modify the Source Code Material, to the extent
obtained by LICENSEE under the terms of the Escrow Agreement, solely as necessary to maintain, enhance and support
LICENSEE's use of the Program as permitted herein, and to produce, through compilation or assembly, copies of the Program in
object code form for use for such permitted uses, and to hire third parties to do any of the foregoing solely on LICENSEE's
behalf. HOWEVER, LICENSEE MAY NOT USE, COPY, SUB - LICENSE, ALLOW THE USE BY OTHERS OF OR TRANSFER
THE PROGRAM, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. LICENSEE may
use the Program only at the geographic locations, and for the quantity of users that are specified in the Program Schedule(s).
The License includes a right of use by or for the benefit of LICENSEE's Affiliates. All use hereunder shall be solely for
LICENSEE's internal business purposes and in a manner consistent with the License. LICENSEE shall have the right, at no
additional cost, to change the central processing unit ( "CPU'), operating system, or geographic locations where the Program may
be used, provided that LICENSEE, within five business days following any change in geographic location, notifies STARLIMS in
writing and in detail of such change, and provided that the total number of users at any given time does not exceed the total
number of users licensed under the License. LICENSEE shall be responsible for the cost required for effecting such change. The
Program must be promptly deleted in its entirety from the CPU, system or location where it is no longer in use.
3. TERM AND TERMINATION:
3.1. Term. The Agreement will enter into force on the Effective Date and will remain in full force and effect unless
terminated in accordance with this Agreement.
3.2. Termination for Cause by the Parties. Either Party has the right to terminate, by registered mail, this Agreement, or
any of the licenses granted hereunder, by delivery of specific, written, termination notice if the other Party breaches or is in
default of any material obligation hereunder ("Cause " ). Termination for Cause will be Limited to cases where such breach or
default is (i) incapable of cure, or (ii) being capable of cure, has not been cured within sixty (60) days after receipt of written
notice from the other Party specifying the nature of breach or default (sent by registered mail) and attaching all confirming
documentation not already in the other Party's possession and identifiable by that Party with ease.
3.3. Termination for Convenience by LICENSEE. LICENSEE may terminate any or all of the licenses granted
hereunder at any time by destroying all copies of the Program, Media and Documentation that were the subject of such
terminated license(s), and by certifying such destruction in a writing provided by an authorized representative of LICENSEE.
3.4. Remedies upon Termination. In the event LICENSEE terminates, for Cause, this Agreement or any license
granted hereunder, STARLIMS shall retum to LICENSEE any payment STARLIMS received for any terminated license granted,
and for Maintenance rendered with respect thereto, during the twelve (12) months immediately preceding such termination. In
the event of termination hereof, or of any license granted hereunder, by LICENSEE under Section 3.3 above, or by STARLIMS
for Cause, all outstanding fees for such terminated license, and for Maintenance and Services performed with respect to such
license, will immediately become due and payable to STARLIMS. The remedies detailed herein will be in addition to any other
remedy or remedies which may be available under this Agreement, at law or in equity. Upon proper termination of any license
granted hereunder, whether by STARLIMS or by LICENSEE, LICENSEE shall return or certify the destruction of all copies of the
Program, Media and Documentation that were the subject of such terminated license.
3.5. Survival of Clauses. The expiration, termination or cancellation of this Agreement will not extinguish the rights of
either party that accrue prior to expiration, termination or cancellation or any obligations that extend beyond termination,
expiration or cancellation, either by their inherent nature or by their express terms.
4. RESPONSIBILITY FOR PAYMENT:
4.1. LICENSEE shall pay invoices for the License and Services in accordance with the fees and schedules set out in the
applicable Program Schedule.
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STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
4.2. LICENSEE shall be responsible for the timely payment of all amounts owed to STARLIMS for the License and all
other charges incurred under the terms of the Agreement and the Program Schedule(s). These charges are exclusive of federal,
state and local taxes. LICENSEE agrees to pay invoices for required federal, state and local sales and use taxes where
applicable and shall perform all required tax administration.
4.3. A late payment fee in an amount equal to the lesser of 1.5% per month and the maximum rate permitted by law will
be charged to LICENSEE on any delinquent amount accruing from the date due until the date actually paid.
5. THE PROGRAM SCHEDULE:
Each Program Schedule will constitute a separate and distinct contract between the Parties; it being understood and
agreed, however, that the terms and conditions of this Agreement will be deemed incorporated by reference in each such
Program Schedule and will take precedence over any contrary or inconsistent terms and conditions appearing or referred to in
any such Program Schedule, unless the Program Schedule explicitly states otherwise. No such contrary or inconsistent terms
and conditions in any Program Schedule or any other document issued by either party will become part of any such contract
unless accepted in writing by the parties.
6. WARRANTIES:
6.1. General. The warranties set out herein are provided for a period of one (1) year commencing on the date of
STARLIMS's first delivery of any Program or component thereof (the "Warranty Period'), subject to any stated exceptions.
Implied warranties on the Program or any component thereof and on Media (as defined below) are limited to the Warranty Period
to the extent such warranties cannot be disclaimed under Section 6.4 below. LICENSEE, following the expiration of the
Warranty Period, may extend the warranties set out herein by purchasing Maintenance. No delivery of Updates or Upgrades, or
of additional copies of the Program, will restart or otherwise affect the term of the Warranty Period.
6.2. Program Warranty. STARLIMS warrants that all Programs licensed hereunder will perform the functions described
in the Documentation materially error -free and uninterrupted. STARLIMS will provide LICENSEE, together with any relevant
Documentation, with any patch, fix, enhancement or other modification made to a current release of a Program (an "Update "),
and any new release of a Program (an "Upgrade "), to the extent such Update or Upgrade was made available to other
STARLIMS customers pursuant to the standard program warranty or subsequent Maintenance contract then in effect with such
customers. To clarify, the foregoing in no way constitutes any obligation or undertaking on the part of STARLIMS to release any
Update or Upgrade during the Warranty Period or at any time thereafter. Use by LICENSEE of any Update or Upgrade will be
governed by the terms of this Agreement. STARLIMS representatives will be available to answer questions by telephone
between the hours of 8:00 a.m. to 8:00 p.m. Eastern Time, U.S. excluding standard holidays. STARLIMS shall respond to
telephone inquiries from LICENSEE within four (4) business hours of a telephone inquiry. In the event a Program does not
operate, LICENSEE shall promptly notify STARLIMS and make available thereto all relevant information, such as dumps and
listings. In the event the defect has caused a critical application error, STARLIMS shall attempt to resolve the problem remotely
on a 24 -hour, seven-day -a -week basis. If necessary, STARLIMS shall move such support efforts on -site and escalate the issue
to STARLIMS's research and development team. STARLIMS will repair or replace any defective Program without further charge
to LICENSEE. LICENSEE promptly shall return to STARLIMS all copies of any replaced Program or portion thereof, and any
right of LICENSEE in such replaced Program or portion thereof will terminate immediately. In the event that STARLIMS
reasonably establishes that LICENSEE's own hardware, software or operation or use of the Program was responsible for the
Program not being operational, LICENSEE agrees to compensate STARLIMS at its billing rates, not to exceed the fees set out in
the applicable Program Schedule, for all time incurred by STARLIMS in locating and correcting the problem. Any work performed
by STARLIMS at a location other than STARLIMS's own offices will require prior written approval from LICENSEE and, if
approved, will entitle STARLIMS to compensation for any out -of- pocket expenses incurred in connection therewith. `Out -of-
pocket expenses' means the actual travel and living expenses, reasonably incurred, as supported by copies of receipts.
STARLIMS also warrants that, to the best of its knowledge, the Program does not include or contain any virus, clock, timer,
counter, or other disabling hardware device, code, design, or routine that causes the Program to be erased or become
inoperable or that will otherwise restrict LICENSEE's use thereof.
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STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
6.3. Media Warranty. STARLIMS warrants that the physical tapes, diskettes or other media ( "Media ") it uses for
distribution of Programs and the Documentation will be free of defects in materials and workmanship under normal use. Any
Media or Documentation found defective will be promptly replaced by STARLIMS, provided such Media are retumed to
STARLIMS with a copy of the invoice, or are certified in writing by LICENSEE has having been destroyed, and any right of
LICENSEE in such replaced Media will terminate immediately. The foregoing warranty does not extend to any Media that have
been damaged as a result of accident, misuse, abuse, or as a result of service or modification by anyone other than STARLIMS
or its authorized representative. Any replacement Media will be warranted for the remainder of the original Warranty Period.
6.4. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PROGRAM IS PROVIDED AS IS" AND NO OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, ARE
MADE WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, USE, APPLICATION, AND NON - INFRINGEMENT.
STARLIMS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAM WILL MEET LICENSEE'S
REQUIREMENTS OR THAT THE PROGRAM WILL BE UNINTERRUPTED OR ERROR -FREE. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY STARLIMS, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS WILL
INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW 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, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT
VARY FROM STATE TO STATE.
7. EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY:
7.1. Exclusive Remedy. For the breach of any warranty provided under Section 6, LICENSEE's exclusive remedy, and
the entire liability of STARLIMS, will be the correction of Program errors and/or replacement of Media and/or Documentation.
However, if STARLIMS is unable to make the Program operate as warranted, LICENSEE will be entitled to terminate this
Agreement for Cause (as defined above). STARLIMS's provision of such remedies shall be subject to receipt from LICENSEE of
written notice of breach within no more than forty five (45) days following LICENSEE' discovery thereof,.
7.2. Limitation of Liability. To the maximum extent permitted by law, none of STARLIMS or any employee,
subcontractor, representative or supplier thereof will be liable for any indirect, incidental, special or consequential damages
(including, but not limited to, loss of profits, revenue, data or use, or any other pecuniary loss) arising out of the use or inability to
use the Program or any other claim by any party, even if STARLIMS has been advised of the possibility of such damages. In any
case, the entire liability of STARLIMS and its suppliers, and LICENSEE'S sole remedy for any claims whatsoever, including but
not limited to, those based on warranty, contract, negligence or strict liability in tort, under any provision of this Agreement, will
not exceed the following:
7.2.1. For any claims for damage to real or tangible personal property, liability is limited to proven direct damages
caused solely by STARLIMS;
7.2.2. For any claims concerning breach of warranty or copyright infringements, the remedies and liabilities will be
as exclusively set forth in the respective sections of this agreement; and
7.2.3. For claims other than those described in this Section 7.2, liability will be limited to proven direct damages
caused solely by STARLIMS.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, IN WHICH CASE AND TO THE EXTENT SUCH EXCLUSION OR LIMITATION IS NOT ALLOWED, SOME OF THE
ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO LICENSEE.
8. INDEMNITY:
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STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
8.1. STARLIMS Infringement Indemnity. STARLIMS will indemnify and defend LICENSEE and its Affiliates and any
officer, director or employee thereof from and against any claim that use or distribution of the Program or Documentation
infringes a patent or copyright registered in the United States and/or member countries of the Berne Convention, and pay the 1)
resulting costs and damages awarded against LICENSEE by a court of competent jurisdiction or 2) settlement, if STARLIMS
should determine that a settlement is in its best interest; and any related costs and expenses, including reasonable attorneys'
fees, incurred by LICENSEE which are related to such claim or action.
8.2. In the event the Program may, or is held to, infringe any patent or copyright as provided above, STARLIMS will have
the option, at its expense, first to exercise all reasonable efforts to (a) modify the Program to be non - infringing, (b) obtain for
LICENSEE a license to continue using the Program, or (c) substitute the Program with another substantially similar one. If, after
exercise of such efforts, none of the foregoing remedies is commercially feasible in STARLIMS's determination, STARLIMS may
terminate this Agreement for Cause. This Section 8.2 states STARLIMS's entire liability for infringement.
8.3. Indemnification of LICENSEE hereunder will not apply if any claim of infringement is made by LICENSEE, or is
based on: (a) any intellectual property right owned or licensed by LICENSEE; (b) a design mandated by LICENSEE's technical
requirements and the possibility of such infringement was duly noted in STARLIMS's bid; (c) a copy of the Program that has
been modified by anyone other than STARLIMS; (c) use of any superseded or altered release of a Program if such infringement
would have been avoided by the use of a current unaltered release of the Program, or (d) the combination or use of the Program
with programs or data not furnished by STARLIMS, if such infringement would have been avoided by the use of the Program
without such programs or data.
8.4. General Indemnity. STARLIMS (the "Indemnifying Party) will indemnify, defend and hold harmless the other Party
(in such capacity, the "Indemnified Part') and its Affiliates and any officer, director or employee thereof from and against any
and all suits, actions, legal or administrative proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees,
penalties, fines, judgments, final judgments and expenses (including, without limitation reasonable attorneys' fees and expenses,
and costs of investigation, litigation, settlement, and judgment) (each, a "Loss ") resulting from, or in any way related to any: (i)
fault or negligence of the Indemnifying Party or any of its employees, subcontractors or licensees; (ii) the death or personal
injury of any person or loss of or damage to property of the Indemnified Party that is caused by fire, explosion, or any other
perils, in excess of the amount recoverable from any insurance policy procured by the Indemnifying Party, provided that such
fire, explosion, or other perils were not caused by any act or failure of the Indemnified Party.
8.5. General. Indemnification provided hereunder will require that (a) the Indemnified Party notifies the Indemnifying Party
in writing within thirty (30) days of the claim, (b) the Indemnifying Party has sole control of the defense, (c) the Indemnified Party
undertakes no action in response to any infringement or alleged infringement of the Program or the Documentation without the
prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed, (c) no term of a
settlement reached by the Indemnifying Party that purports to obligate the Indemnified Party shall bind such party without the
prior written consent of such party, and (d) the Indemnified Party provides the Indemnifying Party with the assistance, information
and authority reasonably necessary to perform the above.
9. CONFIDENTIAL INFORMATION:
9.1. "Confidential Information" means any non - public information a Party (the 'Disclosing Party" discloses to the other
Party (the 'Receiving Part') that (i) derives independent value from not being generally known to the public, or (ii) is of third
parties that the Disclosing Party is required to maintain as confidential, and (a) is designated in writing as confidential or
proprietary, or (b) designated orally as confidential or proprietary, and embodied by the Disclosing Party in written or other
tangible farm, including meeting minutes, diagrams, flow charts, and software. Any Confidential Information disclosed orally must
be summarized, appropriately labeled and provided in tangible form within two (2) weeks thereafter.
9.2. Confidential Information will not include any information that can be demonstrated by Receiving Party: (i) was or
subsequently becomes publicly available without Receiving Party's breach of any obligation owed to Disclosing Party under this
Agreement; (ii) was known to Receiving Party prior to the disclosure of such information by the Disclosing Party; (iii) was or
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STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
subsequently is obtained from a source other than the Disclosing Party, without, to the best knowledge of the Receiving Party,
breach of an obligation of confidentiality owed to the Disclosing Party; (iv) is independently developed by the Receiving Party
without reference to the Disclosing Party's Confidential Information; (v) is approved for release by the written authorization of the
Disclosing Party, or (vi) is trivial or obvious. Each Party agrees that, upon receipt of Confidential Information from the other Party
hereunder, the Receiving Party shall use the same means it uses to protect its own confidential and proprietary information, but
in any event not less than reasonable means, to prevent the disclosure thereof and to strictly protect the confidentiality thereof.
Upon termination of this Agreement, the Receiving Party shall promptly return or destroy all Confidential Information of the
Disclosing Party and certify to the Disclosing Party to such retum or destruction, except for copies thereof that are contained in
archival or backup media that is not readily separable from other information of the Receiving Party, and except as necessary to
comply with regulatory requirements for the retention of information.
9.3. Receiving Party shall not disclose, directly or indirectly, any of Disclosing Party's Confidential Information to any party
except (i) in accordance with Texas Public Information Act, any applicable judicial or other governmental order, provided
Receiving Party gives Disclosing Party reasonable notice prior to such disclosure in order to enable Disclosing Party to seek a
protective order, etc., and (ii) to Receiving Party's and its affiliates' officers, directors and employees on a need-to-know basis
solely for the pursuit of the transactions contemplated hereby, provided that (a) Receiving Party has informed such persons of
the confidential nature of and obligations and restrictions with respect to such Confidential Information; (b) such persons have
signed an agreement containing disclosure and use provisions similar to those set out herein, and (c) Receiving Party shall be
liable to Disclosing Party for any breach by any such person of the provisions of any non -disclosure agreement to which he/she
is a party.
9.4. During the term of this Agreement, LICENSEE may employ or engage third -party software engineers, for the purpose
of developing applications for LICENSEE, and other services providers, all as independent contractors (together, "Contractors ").
For clarification, all such software applications will be the property of LICENSEE. A Contractor will have the right to use and
access the Program during the performance of the Contractor's development of applications for, or provision of services to,
LICENSEE, all within the limitations of the License. LICENSEE represents that any Contractor's use of and access to the
Program will be in accordance with the following: (i) each Contractor shall respond affirmatively to nondisclosure requirements
protecting the Confidential Information of STARLIMS at least as restrictive as the requirements set forth in this Section 9; (ii) in
no circumstances may Contractors have access to the Source Code Material; (iii) in no circumstances will Contractors use the
Program to operate or manage the business thereof, (iv) such use will not constitute an unauthorized exporting of any
STARLIMS Confidential Information under U.S. government laws and regulations; (v) Contractors shall return to LICENSEE the
Program and all Documentation upon completion of application development or other termination of such Contractor's services,
and (vi) LICENSEE shall be responsible for its Contractors' compliance with the terms hereof in connection with their use of the
Program.
10. MAINTENANCE:
10.1. Following the expiration of the Warranty Period, annual plans ( "Maintenance ") are available that provide the same
level of support and provision of Updates and Upgrades as is provided during the Warranty Period. Maintenance and
corresponding fees are further described in the applicable Program Schedule. Use by LICENSEE of any Update or Upgrade will
be governed by the terms of this Agreement.
10.2. LICENSEE will have the option to order Maintenance for an additional one (1) year term for the fee shown on the
applicable Program Schedule. Thereafter, such fees may be increased each year by STARLIMS by up to five percent (5%).
STARLIMS shall notify LICENSEE of any such increase at least thirty (30) days prior to the end of any annual Maintenance
renewal term. LICENSEE may discontinue Maintenance at any time upon written notice to STARLIMS and continue to use the
Program without the benefit of Maintenance. STARLIMS, by request following the date of expiration or early termination of
Maintenance, shall ensure LICENSEE is provided any Update and Upgrade released prior to such date.
10.3. Should LICENSEE, following any discontinuation thereby of the Update /Upgrade portion of the Maintenance, opt to
reinstate the same, LICENSEE shall be required first to pay, at the standard rate multiplied by 120% (one hundred and twenty
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STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
percent), for the entire period during which it was not eligible to receive Updates and Upgrades. LICENSEE then will be eligible
to receive Updates and Upgrades at the standard rate.
10.4. LICENSEE will not be required to install any Update or Upgrade that LICENSEE deems may have an adverse effect
on the operation or functionality of the Programs or the operation of LICENSEE's business.
11. PROFESSIONAL SERVICES:
11.1. Professional Services related to the implementation of the Program at LICENSEE'S designated locations are
available from STARLIMS at the rates specified in the applicable Program Schedule. The Professional Services may include
project management, user requirement specification, solution design, configuration, integration, instrument interfacing, migration,
documentation and training. The scope of the Professional Services, timelines and other terms and conditions applying to the
provision by STARLIMS of the Professional Services are described in the applicable Program Schedule. Further description of
the Professional Services may be set out in a Statement of Work, if any, agreed upon by the Parties and attached hereto as
Appendix C. which may be amended from time to time by the Parties by mutual written agreement. It is agreed that the provision
of the Professional Services requires LICENSEE's active cooperation and in particular:
11.1.1. LICENSEE shall provide, maintain and make available to STARLIMS, at LICENSEE's expense and in a
timely manner, the resources described in Sections 11.1.2 and 11.1.3, below, and such other additional resources as STARLIMS
may from time to time reasonably request in connection with STARLIMS's performance of the Professional Services. Delays in
the provision of these resources may result in delays and/or additional cost in performing the Professional Services or delivering
the Program. Further, the Professional Services will be deemed completed if STARLIMS does not receive, within sixty (60) days
of the date of the last invoice issued for the same by STARLIMS, written notice from LICENSEE detailing any rejection thereof.
11.1.2. LICENSEE will (!) designate and make available to STARLIMS qualified LICENSEE representatives who will
consult with STARLIMS on a regular basis in connection with the Professional Services, and (ii) fumish such documentation,
use cases" or other information as is reasonably necessary to perform the Professional Services; and
11.1.3. LICENSEE shall furnish access to LICENSEE's premises, and appropriate workspace for STARLIMS
personnel performing those portions of the Professional Services to be performed at LICENSEE's premises.
11.2. Unless explicitly stated otherwise in a Program Schedule, the fees for Professional Services do not include travel
expenses, which will be reimbursed to STARLIMS by LICENSEE either on an agreed -upon, per -diem basis or on a reasonably
incurred, actual - travel- and - living- expenses basis, as supported by copies of receipt.
11.3. Services Warranty. STARLIMS agrees to provide all parts, labor and skills necessary to perform and deliver the
Professional Services. At all times during the performance thereof, the Professional Services will be free from significant errors
and from defects in workmanship and materials. In the event that defects are discovered, STARLIMS shall promptly supply
corrections as required to remedy such errors or defects at no expense to LICENSEE. STARLIMS warrants that the Professional
Services will be performed diligently and in a skillful, professional, and workmanlike manner by qualified, competent technicians
and will comply with industry standard specifications and standards. LICENSEE may make inspections to determine that the
Professional Services are properly performed. Such inspections may be held at any reasonable time and STARLIMS will assist
in carrying out the same. STARLIMS may hire independent, third -party sub - contractors for the provision of the Professional
Services, and the above warranties will extend to the performance of such sub - contractors. The foregoing states the entire
liability of STARLIMS for errors in the Professional Services.
12. USE:
12.1. Subject to the terms of the License provided hereunder, STARLIMS agrees that a Program may be used, and
Services received, not only by LICENSEE but also by or for the benefit of LICENSEE's Affiliates. To the extent that any Affiliate
of LICENSEE uses the Program or is provided any Services, the Parties agree that all of LICENSEE's rights, licenses, and other
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STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
benefits under this Agreement will extend to such Affiliate with respect to such Program and Services, and the term "LICENSEE"
will be deemed to include such Affiliate, as applicable, provided that LICENSEE shall remain responsible for the compliance of
such Affiliate with all the applicable terms and conditions of this Agreement.
12.2. In the event an entity ceases to be an Affiliate of LICENSEE, the Programs may continue to be used by or for the
benefit of the former Affiliate for an additional period not to exceed one (1) year from the effective date of such change in
ownership or control, for no fees or charges in excess of the agreed -upon fees. LICENSEE agrees to promptly notify STARLIMS
in writing of any such event. No additional copies of the Program will be provided nor additional users authorized, and any use of
the Program by such former Affiliate will be subject to provision by LICENSEE to STARLIMS of a written undertaking from such
party to become bound by the terms and conditions of this Agreement, mutatis mutandis. During such one (1) year period, the
new entity will have the right to establish a replacement software license, if needed, on terms and conditions comparable to this
Agreement.
12.3. Any software and documentation which is independently developed by LICENSEE utilizing the object code of a
Program licensed hereunder will be the property of LICENSEE and may be used by LICENSEE for whatever purpose it chooses
and at its sole discretion.
12.4. LICENSEE may continue to have unrestricted use of any Program, in accordance with the terms and conditions of
this Agreement, during any dispute between LICENSEE and STARLIMS provided LICENSEE is negotiating in good faith to
resolve any dispute and all undisputed fees due STARLIMS have been paid.
12.5. Any copy of the Program and Documentation maintained by LICENSEE in accordance with the terms hereof shall
contain the same proprietary notices as those appearing on and in those originally provided to LICENSEE by STARLIMS.
LICENSEE may make additional copies of the Program as follows:
12.5.1. for use at a disaster recovery site, in the event LICENSEE suffers a disaster during which LICENSEE cannot
operate the Program on its CPU and/or location identified on the applicable Program Schedule, or for testing preparedness at a
disaster recovery site, until such disaster or test (as the case may be) concludes:
12.5.2. for archival or back -up purposes, to enable restoration of the Program in the event of a Program failure or
LICENSEE's system failure;
12.6. LICENSEE shall maintain records of all the locations where copies of the Program are kept, and shall implement
reasonable controls to insure that the number of its users does not exceed the maximum number of users licensed hereunder.
Upon STARLIMS's request, LICENSEE promptly shall provide STARLIMS with a written statement certifying the extent of
LICENSEE's usage of the Program(s) identified by STARLIMS and /or allow STARLIMS or its designee to conduct a reasonable
audit of the applicable LICENSEE facilities and records to determine whether or not LICENSEE's usage of such Program is in
conformance with its paid -for License usage and in compliance with the terms of this section. In the event a usage deviation of
greater than 5% is discovered as a result of such audit, LICENSEE shall bear all the costs of such audit.
13. LICENSEE WARRANTIES
LICENSEE warrants and represents that it has full power and authority to enter into this Agreement and to meet all of its
obligations hereunder, and that the performance of its obligations under this Agreement will not conflict with any obligation or
duty owed to any third party.
14. INDEPENDENT CONTRACTORS
STARLIMS is and will remain an independent contractor with respect to the performance of the Services. Neither
STARLIMS nor its employees will be considered an employee or agent of LICENSEE for any purpose. STARLIMS's employees
will have no authority to bind or make commitments on behalf of LICENSEE for any purpose and will not represent themselves
Page 8
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
as having such authority. STARLIMS assumes full responsibility for the actions of its personnel in rendering performance
pursuant to this Agreement, and STARLIMS will have sole responsibility for the supervision, daily direction and control, payment
of salary (including withholding of income taxes and social security), worker's compensation, disability benefits and the like of its
personnel.
15. BETA TESTING AND OTHER EVALUATION:
15.1. STARLIMS may, from time to time, offer LICENSEE the opportunity to participate in the beta testing or other
evaluation of the latest Product modifications and corrections that STARLIMS, in its sole discretion, may make available (the
"Beta Products"). Subject to the following terms, STARLIMS hereby grants to LICENSEE a non -exclusive, non - transferable
license to serve as a "Beta Test site with respect to any Beta Product that LICENSEE agrees to so test or evaluate. In such a
case, LICENSEE shall notify STARLIMS and provide feedback thereto regarding all problems encountered in, or possible
enhancements of, the Beta Products during its beta testingfevaluation process. All such notifications should be reported on
STARLIMS's intranet site referred to below or as otherwise indicated by STARLIMS from time to time.
15.2. LICENSEE may not sublicense, distribute, or modify any Beta Product whatsoever. Beta Products may be used by
LICENSEE only and only at one location. No warranty is provided with respect to any Beta Product. All warranty exclusions set
out in Section 6.4 above will apply to LICENSEE's use of any Beta Product. In the event LICENSEE is in breach of any
provision of this Agreement, STARLIMS may immediately terminate the license granted under this section, in addition to any
other remedy or remedies which may be available thereto under this Agreement, at law or in equity.
15.3. The provisions of Section 7.2 (Limitation of Liability), Section 8.4 (LICENSEE Indemnity), Section 9 (Confidential
Information) and Sub - sections 19.4 (Governing Law), 19.17 (Export) and 19.18 (Copyright), mufafis mulandis, will apply to
LICENSEE's use of the Beta Products.
16. ACCESS TO STARLIMS'S CUSTOMER INTRANET SITE:
STARLIMS maintains, from time to time, one or more websites that contain information pertaining to STARLIMS products
and services ("information "). LICENSEE's access and use of the Information is subject to the following:
16.1. Scope and Grant of License. STARLIMS hereby grants LICENSEE a limited, non - exclusive and nontransferable
right to access STARLIMS's website and to use the Information solely for purposes of performing activities authorized by this
Agreement. Such right may not be sublicensed. All Information will remain the property of STARLIMS and its licensors. Except
as expressly stated herein, no other grant of right or license to use the Information, under any patent or any other intellectual
property rights is made from STARLIMS to LICENSEE under this Agreement.
16.2. Restriction on Usage. LICENSEE shall make no other use of the Information and shall use the same only for
purposes of performing activities authorized by this Agreement. LICENSEE shall not use the Information to engage in deceptive,
misleading or unethical practices that are or might be detrimental to STARLIMS or STARLIMS technology. Access to the
Information will be made available only to LICENSEE personnel that have a "need to know" such Information in order to carry out
LICENSEE's obligations and/or to exercise LICENSEE's rights under this Agreement, and that have been assigned the
necessary access and security codes to enable such personnel to use the website. STARLIMS may change the access and
security pritileges and codes from time to time and shall promptly notify LICENSEE of such changes. LICENSEE shall promptly
notify STARLIMS of the termination or reassignment of any LICENSEE personnel who have been granted access hereunder.
STARLIMS will have the right to deny LICENSEE or LICENSEE personnel access to the websites made available under this
Section. Upon termination of this Agreement or the license granted above, LICENSEE shall cease to use Information and shall
promptly return all tangible copies of the Information in its possession. LICENSEE shall be fully responsible to STARLIMS for
the full compliance of its personnel with its obligations under this section.
17. INSURANCE:
Page 9
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
17.1. During the term of this Agreement, STARLIMS shall maintain adequate insurance to cover the services performed
and liabilities assumed hereunder including, without limitation, the following minimum types and amounts of coverage:
17.1.1. Commercial General Liability insurance with bodily injury and property damage limits of Combined Single
Limit of $1,000,000 per occurrence. Such insurance will provide for product liability, contractual liability coverage, and completed
operations coverage and may be acquired in any combination of primary and excess coverage. Coverage must name City of
Corpus Christi and Nueces County as additionally insured.
17.1.2. Workers Compensation insurance as required by any applicable law or regulation; a waiver of subrogation in
favor of the City of Corpus Christi and Nueces County is required.
17.1.3. Automobile liability insurance covering any auto in the amount of $1,000,000 for bodily injury and property
damage per occurrence, to include non -owned and renewed vehicles.
17.2. At LICENSEE'S request, STARLIMS shall provide LICENSEE with evidence of such coverage in the form of a
certificate of insurance, and such insurance will not be cancelled or subject to non - renewal without providing written notice
thereof to LICENSEE at least thirty (30) days prior to such cancellation or non - renewal.
18. ESCROW AGREEMENT:
18.1. STARLIMS hereby warrants and represents that it shall use its best efforts to ensure that, throughout the Warranty
Period, or, if the same has expired, throughout the term of any Maintenance purchased hereunder, (i) a copy of the Source Code
Material remain deposited with the escrow agent referred to in the Escrow Agreement, or any other escrow agent under identical
or substantially similar terms as those contained in such agreement, and (ii) the Source Code Material will be released to
LICENSEE where applicable under the terms of the Escrow Agreement.
18.2. To the extent that, following the expiration of the Warranty Period or any subsequent Maintenance term, LICENSEE
has discontinued the Maintenance, STARLIMS will not be liable for the cost of maintaining the escrow of the Source Code
Material on behalf of LICENSEE, and such costs shall be borne solely by LICENSEE and settled directly with STARLIMS's
escrow agent.
18.3. No payment will be necessary for LICENSEE to exercise its rights to obtain the Source Code Material other than the
reasonable and incidental fees of the escrow agent in producing the copies of the Source Code Material to be provided to
LICENSEE.
19. GENERAL:
19.1. Entire Agreement/Amendment. The terms contained herein constitute the entire agreement between the parties
with respect to the subject matter hereof and supersede all prior communications and agreements, whether oral, written or
otherwise recorded in any manner. This Agreement cannot be amended, modified or changed except by a written instrument
signed by duly authorized representatives of each Party.
19.2. Assignment. Each Party will be entitled to assign this Agreement and its rights hereunder, without cost or consent,
to an Affiliate thereof, or to an entity with which that Party may merge or consolidate, or which purchases all or any substantial
portion of that Party's business or assets to which this Agreement relates. Each Party shall notify the other Party, in writing, of
any such assignment within a reasonable time after the same has occurred. Otherwise, no right or obligation hereunder is
assignable without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
Any authorized assignee of this Agreement shall agree in writing to assume all the rights and obligations of the assignor
hereunder.
Page 10
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
19.3. Compliance. STARLIMS hereby warrants that its provision of the Program and the Services hereunder will comply
with all applicable laws, rules and regulations, and STARLIMS will have obtained all permits required to comply with such laws
and regulations.
19.4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of
Texas, without regard to the conflict of laws provisions thereof. Venue is specifically set by agreement of the parties in a court of
comopetent jurisdiction in Nueces County, Texas.
19.5. Headings and Recitals. Headings used in this Agreement are for reference only and will not be deemed a part of
this Agreement.
19.6. Non- Waiver. No term or provision hereof will be deemed waived and no breach excused unless such waiver or
consent will be in writing and signed by the Party claimed to have waived or consented.
19.7. Notice. Each Program Schedule or the SOW may identify individuals who will serve as the Parties' representatives
as to technical and administrative matters. Except for quotes, orders, acknowledgments, invoices, payments and other usual
and routine communications, all other notices required or permitted hereunder, including but not limited to notices of default or
breach, shall be sent to such representatives at the addresses first set forth above and signed by an authorized representative of
the sender. If no individuals are so identified, or in the event of an emergency, all communications to STARLIMS shall be made
through the Chief Operations Officer. The address and contacts for either party may be changed by written notice to the other.
Such notices will be deemed to have been received (i) when hand delivered to such individuals by a representative of the
sender; (ii) three (3) days after having been sent postage prepaid, by registered or certified first class mail, return receipt
requested; (iii) when sent by electronic transmission, with written confirmation by the method of transmission; or (iv) one (1) day
after deposit with an overnight carrier, with written verification of delivery.
19.8. Records and Audit. STARLIMS shall maintain, and shall ensure that its subcontractors maintain, a true and correct
set of records pertaining to all activities relating to its performance of this Agreement and all transactions related thereto.
STARLIMS further agrees, and shall ensure that its subcontractors agree, to retain all such records for a period of not less than
two (2) years after completion of performance under this Agreement. Any representative(s) authorized by LICENSEE, following
provision of reasonable advance notice and during normal business hours, may audit any and all such records for accuracy and
to confirm compliance with this paragraph at any time during the term of this Agreement and during the two (2) year period after
termination hereof.
19.9. Conflict of interest. STARLIMS shall not, and shall ensure that their subcontractors do not, pay any commission,
fees or grant any rebates to any employee or officer of LICENSEE, favor any employee or officers of LICENSEE with gifts or
entertainment of significant cost or value, or enter any business arrangements with employees or officers of LICENSEE (other
than as a representative of LICENSEE) without the prior written approval of LICENSEE.
19.10. LICENSEE's Policy. STARLIMS agrees, when on LICENSEE's premises, to comply with LICENSEE's policies
regarding security, safety, smoking and substance abuse. Policies shall be made known to STARLIMS prior to travel to
LICENSEE's premises and when entering LICENSEE's premises. It is understood that LICENSEE may require the execution of
agreements acknowledging compliance with LICENSEE's policies prior to allowing STARLIMS employees or representatives
access to LICENSEE's facilities. Subject to the provisions of Section 8 of this Agreement, STARLIMS shall release and defend,
indemnify and hold harmless LICENSEE and its Affiliates and their respective officers, directors and employees with respect to
any claim arising from, or related to, the non - conformity of STARLIMS's personnel with LICENSEE's known policies.
19.11. Right to Defend. Each Party agrees to notify the other immediately upon the commencement of any actions brought
whose outcome may affect the rights of the other herein granted and such other Party will have the right at its own expense to
appear in and defend such actions.
Page 11
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
19.12. Publicity. No Party may use the name of the other Party in publicity releases or advertising or for other promotional
purposes, without securing the prior written approval of the other Party hereto. This commitment does not apply to any
correspondence, documents or publications utilized by either Party for distribution internally or to the addition of LICENSEE
name to STARLIMS's published customer lists.
19.13. Severability. In the event of invalidity of any provision of this Agreement, the Parties agree that such invalidity will
not affect the validity of the remaining portions of this Agreement.
19.14. Force Majeure. No Party will be liable for delay or failure in the performance of its contractual obligations arising
from any one or more events that are beyond its reasonable control. Upon such delay or failure affecting one Party, that Party
shall notify the other Party and use all reasonable endeavors to cure or alleviate the cause of such delay or failure with a view to
resuming performance of its contractual obligations as soon as practicable.
19.15. Inconsistencies between Agreement and other documents. This Agreement will prevail in the case of any
inconsistency between it and any other document issued by any Party. Any inconsistency or ambiguity in this Agreement and
Appendices will be resolved by giving precedence in the following descending order: (1) This Agreement, (2) The Program
Schedule(s), and (3) any appendix hereof. Notwithstanding the foregoing, provisions of this Agreement may be modified in a
Program Schedule, solely for the purposes of that Program Schedule, but only by an express statement specifically identifying
the provision(s) of this Agreement to be modified.
19.16. MEDIATION AND ARBITRATION OF DISPUTES
19.16.1. In the event any dispute or controversy arising out of or relating to this Agreement, the parties agree to
exercise their best efforts to resolve the dispute as soon as possible. If this is not possible, the parties shall attempt in good faith
to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority
to settle the controversy and who are at a higher level of management than the persons with direct responsibility for
administration of this agreement. Any person may give the other party written notice of any dispute not resolved in the normal
course of business. Within fifteen (15) days after delivery of the notice, the receiving party shall submit to the other a written
response.
19.16.2. The notice and response will include (a) a statement of that party's position and a summary of arguments
supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will
accompany the executive. Within thirty (30) days after delivery of the initial notice, the executives of both parties shall meet at a
mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the
dispute. All reasonable requests for information made by one party to the other shall be honored. All negotiations pursuant to this
clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of
evidence.
19.16.3. If the dispute has not been resolved by the means as provided herein within thirty (30) days of the initiation of
such procedure, they may pursue other legal remedies.
19.16.4.
19.17. Export. LICENSEE shall not export or re -export the Program or any merged portion of the Program without the
appropriate United States or foreign government license.
19.18. Copyright. The Program and Documentation are protected by U.S. and international copyright laws and treaties.
LICENSEE acknowledges that its possession, installation or use of the Program does not transfer to it any title to the intellectual
property in the Program and that LICENSEE will not acquire any rights in the Program or Documentation except as expressly
provided herein. LICENSEE acknowledges that title and full ownership rights to the Program and any Update or Upgrade,
including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein, will remain the
Page 12
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
exdusive property of STARLIMS or its suppliers, subject to the provisions set forth in the Escrow Agreement. Use of any third -
party software provided to LICENSEE on a standalone basis in the framework hereof will be subject to the terms of the end user
license agreement provided with such software. LICENSEE shall reproduce and include the copyright and other proprietary
notices of STARLIMS and any supplier thereof specified by STARLIMS on and in any copies, including but not limited to partial,
physical or electronic copies of the Program. STARLIMS reserves all rights not expressly granted herein. LICENSEE agrees it
shall not cause or permit any other to reverse compile, reverse engineer, enhance, supplement, translate or disassemble the
Program or otherwise reduce it, in whole or in part, to human readable form. LICENSEE shall promptly report any violation of this
clause and shall take such further steps as may be reasonably requested to remedy any such violation and to prevent future
violations. This section will survive any expiration, termination or cancellation of this Agreement.
19.19. Negotiated Terms. The Parties acknowledge that the terns and conditions of this Agreement are the result of
negotiations between the Parties and that this Agreement will not be construed in favor or against any party by reason of the
extent to which any Party or its professional advisors participated in the preparation of this Agreement.
19.20. Third Party Beneficiaries. LICENSEE Affitiates and any officer, director or employee of LICENSEE or a LICENSEE
Affiliate are third party beneficiaries of this Agreement in accordance with its terms. Any amendment hereof executed by the
Parties is binding upon such third party beneficiaries, and any action or consent taken by LICENSEE on its own behalf is binding
upon such third party beneficiaries for the purposes of this Agreement. This Agreement is not intended to, nor may it be deemed
to, create any rights of enforcement in any persons who are not STARLIMS, LICENSEE or the abovementioned third party
beneficiaries.
19.21. U.S. Government Restricted Rights. The Program, Documentation and any Beta Product are provided with
RESTRICTED RIGHTS. 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 CA 252.227 -7013 or subparagraphs (a) through (d) of
the Commercial Computer Software - Restrictive Rights clause CA 52.227 -19, as reserved under the copyright laws of the United
States. Manufacturer is STARLIMS CORPORATION, 4000 Hollywood Blvd, Suite 515, S. Hollywood, FL 33021.
Page 13
[remainder of page intentionally left blank]
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and do each hereby warrant and
represent that its signatory, whose signature appears below, has been and is on the date of this Agreement duly authorized
by all necessary and appropriate corporate action to execute this Agreement. This Agreement shall become effective on
the date first written above.
LICENSEE STARLIr.IS
S'
atu
4n eI 1q. eeobar
Nan
/0r
Title
O �� D AUTIHORII.ED
aY cOUNCI1..D5 It L
Page 14
SECRETARY ,7,b .
Signatu
Name
Title
01
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
APPENDIX A - PROGRAM SCHEDULE
Page 15
See next six pages.
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
STARLIMS
STARL1MS
c o r p o r a t i o n
Quotation # 20100421 -REL -A
LAI
f l eer f of etv040. skean
Presented to: City of Corpus Christi
Reference #: Nueces County Public Health
District
Contact Name: Susan Allen Prepared By: Richard Lane
LICENSEE Name: City of Corpus Christi STARLIMS Corporation
Address: 1702 Home Road Address: 4000 Hollywood Blvd., #515S
Corpus Christi Hollywood
Texas 78416 Florida 33021
USA USA
Phone: 361.826.2537 Phone: 610 -687 -1119
Fax: Fax: 954- 964 -8113
Email: SusanS@cctexas.com Email: richard.lane(o7starlims.corn
Dale: April 27, 2010 Approved By: Cat?
Expires: July 26, 2010 STARLIMS Version: v10.5
Quote Number: 20100421 -REL -A Reference # Nueces County Public Health District
These data shall not be disclosed outside of LICENSEE'S organization and shall not be duplicated. used. or disdosed in whole or in part For any purpose other than to
evaluate This proposal. This restriction does not limit the customer's right to use information contained in the data if it is obtained from another source without restriction.
The data subject to this restriction are contained in the following pages.
STARLIMS Corporation's Proposal 20700421 -REL -A (Corpus Christi - PH qua s 4/27/2010 1 OF 6
STARLIMS
Part Nu .. ..: .:...
..:... ;..� :::..... i'vre rr, ,
PROGRAM
gisantity:.:.> Unit Price =
LICENSES
.... •.Total"
SL•XFD
STARLIMS Designer Perpetual License
1 18,135.00
18,135 -00
The STARLIMS XFD Designer, built to allow authorized users to intuitively configure and make appropriate
enhancements and modifications as business requirements change. The Designer makes the underlying
complexities and inner workings of the system transparent to the user, and employs a set of easy-to-use design
tools to enable system administrators and designers to focus on business Hiles, rather than on basic system
functions such as GUIs and Internet protocols. Using drag & drop design tools, the STARLIMS XFD Designer
dynamically creates XML forms containing both layout tags, used in a declarative way for describing the user
interface, and JScript -NET code, used to programmatically handle these elements and corresponding events, as
well as make remote calls to business logic services located on the server. The integrated Designer is also used
for creating Web services made available to third -party client applications for seamless interoperability between
enterprise applications and STARUMS. The STARLIMS Designer exposes comprehensive reporting tools using
Business Objects Cryslal Reports, Microsoft Word and Excel.
SL -FCL
STARUMS Concurrent Full-User Perpetual License 1 61 8,160.75
48,964 -50
The STARLIMS Concurrent Full -User License provides an individual user full access to all STARLIMS functions
and wizards at the same lime as a permitted number of other users in the customer's organization that are
located in the same country a lime zone. Additional industry or platform specific software suites delailed below
are offered on a site- license basis.
SL•DCL
STARLIMS Concurrent Data•User Perpetual License L 21 2,72025
5,440.50
THIRD PARTY COMPONENTS
Often, laboratory data users do not work out of the main laboratory. STARLIMS's ability
data and sample information beyond the physical wags of the laboratory allows for
utility at a cost -effective price. The STARLIMS Concurrent Data -User License allows
consumer to view analytical services provided by the tab, view sample status, print
time as the permitted number of other users in the LICENSEE's organization.
NOT COVERED BY GSA SCHEDULE
to transmit and receive
enhanced efficiency and data
an individual lab -data
COAs or invoices at the same
2 500
1,000.00
NWQAX
STARLIMS NWA QAx Workstation Perpetual License
Powered by Northwest Anatytical's Quality Analyst SQC and charting technology. Includes NWA Quality Analyst
embedded controls providing SPC charting wilh a combination of power, flexibility, and ease of use. This license
DESIGNATED LOCATIONS
is limited for use b one s -: • ■ workstation.
FOR SITE LICENSE COMPONENTS
STARLIMS Site License components are limited for use in the designated location(s) specified herein, on one
server at each such location and allows access to the number of licensed STARLIMS concurrent users. Licensee
may transfer the Program to another substantially similar location within the Licensee's enterprise/organization.
Designated Location(1):1702 Horne Road, Corpus Christi, TX 78416
Total License Casts:
73,540.00
STARLIMS Corporation's Proposal 20100421 -REL -A (Corpus Christi - PHL).xls 4/27/2010 2 OF 6
STARUMS
r r � � �• r n
Pa umber •
- _ - .. �. Pi l -- , -. r • . -..
Quin � ..
PROFESSIONAL
k Price
SERVICES
, - -. . ,.Total =:. - ... .
SL-SOF
STARLIMS Per-Diem Off-Site LIMS Consultant Services
50
1,269.45
63,472.50
SL•SOH
STARLIMS Per-Diem On-Site LIMS Consultant Services
i5
1,36013
20,401 -95
This cost proposal is based on Time and Materials and the above per diem rates and quantilies are included in
order to provide support and mentoring to Corpus Christi — Nueces County Public Health District in the areas of
system prototyping, report wiling and template conllguration so that the knowledge gained from the Vaining
classes is enhanced and supplemented through on -site and off-site services available when and as-needed From
the STARLIMS Corporation's Professional Services Croup. Corpus Christi — Nueces County Public Health
District is responsible for managing the project, including the schedule, budget, scope, and deliverables. The
customer is expected to participate in all implementation activities, such as testing and entry of static data.
Corpus Christi — Nueces County Public Health District will only be invoiced for services that they use. Additional
days can be be purchased at the per diem rate if necessary-
STARLIMS Corporations Proposal 20100421 -REL -A (Corpus Christi - PHL).xds 4/27/2010 3 OF 6
STARL.JMS
Part Number
.. „. °, ?r7. W;on' - . - --
;, ,
...
TRAINING
• . ' . --War--
TH•101
STARLIMS V10 Application Training Course
1
2,946 -94
2,946.94
This course is recommended for anyone in position of System Manager or who fills a similar role- The STARLIMS
Application Training course is a 4.5 -day lecture program that provides a detailed introduction to the functionality
of the STARLIMS Laboratory Information Management Systems, giving attendees a full understanding of the
terms, concepts and functionality of the system within a controlled training environment, and includes a detailed
set of training notes and material. The course is a mix of lecture material and hands-on exercises, and is a
prerequisite for the Configuring STARLIMS V10 course - My LICENSEE representative responsible for
configuring the system is wet- advised to attend. The cost covers the participation of ONE LICENSEE
representative - Courses take place at a STARLIMS facility and the cost includes lunch and refreshments- For
more see wtiwr.stariims.cornlraining
TH -102
STARLIMS V10 Configuration Training Course 1 11 2,946 -94
2,946.94
The STARLIMS Configuration Training course is a 4.5-day lecture program that provides detailed instruction in
the use of the STARLIMS Laboratory Information Management System configuration tools, gving attendees a full
understanding of the use of the STARLIMS designer module for the configuration of the STARLIMS product
wihin a controlled training environment, and provide a detailed set of training notes and material. The course is a
mix of lecture material and hands -on exercises. St is a pre-requisite of the Configuration Training course that
attendees have participated in the STARLIMS Application Training course and have an understanding of, and
experience with, computer programming principles and techniques, ideally within an Object - Oriented
environment. The cost covers the participation of ONE LICENSEE representative. Courses take place at a
STARLIMS facility and cost includes lunch and refreshments. For more see wwwstarlims.conJtraining
Total Training and Professional Services Costs:
89,768.33
STARLIMS Corporations Proposal 20100421 -REL -A (Corpus Christi - PHL}xls 4/27/2010 4 OF 6
STARLIMS
Part Norther
OPTONAL SOFTWARE UPDATES AND SUPPORT ( "MAINTENANCE')
Total
. - -.
+ on
Madly' Unit Price
SL -AUP
STARLIMS Annual Update Plan
1 14%
10,295.60
The Annual Update Plan indudes the right to receive STARLIMS software updates, fixes. corrections,
workarounds, releases, versions, enhancements and Documentation updates ('Updates') that are issued by
STARLIMS Corp. during the applicable twelve -month period. The Updates may be issued from time to time as
required or as the Program is updated. Updates and related technical notes may be posted on the STARLIMS
restricted InVanet site, accessed through httpliwww.starlims.com. for downloading by LICENSEE. Updates for
third -party software. such as report writers. network operating systems and database software, are not included
in the Update Plan. The cost of the Update Plan is provided at no additional charge for the first twelve months
from date of first license purchase. The annual price for following years is calculated as 14% of aggregate price
for licenses purchased to date.
Escrow Account: This Annual Update Plan includes the cost of maintaining an annual escrow account as
further detailed in a separate escrow agreement.
SL•ASP
STARLIMS Annual Support Plan I 1 1 2,720.25
2,720.25
Unlimited telephone, FAX, modem, e-mail and Web site operational support for up to two customer points -of-
contact (POC). Phone support hours are from 9:00 am to 5:00 PM Eastem Standard Time, Monday through
Friday, other than on Federal holidays. STARLIMS shall return User's phone call within four business hours. In
the U.S., dial 1-954-964-8663. Support does not include the support and debugging of any SQL statement not
supplied by STARLIMS, such as those modified or developed by customer and/or SQL - based "User Actions'
modified or developed by customer. Support service does not include the configuration and support of network
hardware and software or database software. The cost of the Support Plan is provided at no additional charge for
the first twelve months from dale of first license purchase.
Total Annual Maintenance Costs (Optional):
13,015.85
Maintenance is included at no additional cost until (one -year anniversary cif fi rst license purchase):
27- Apr -11
STARLIMS Corporation's Proposal 20100421 -REL -A (Corpus Christi - PHL).>us 4127/2010 5 O
STARLIMS
QUOTATION SUMMARY
Total License Costs:
73,540.00
Total Professional Services and Training Costs:
89,768.33
Total Project Costs:
163,308,33
Total Annual Maintenance Costs (Optional):
13,015.85
NOTES & SIGNATURES
1 Prices are in US Dollars and do not include any lax that also may be applicable in place of use.
2 Prices am quoted based on US GSA Terms, Schedule GS.35F -0660P
3 Unless otherwise specified, costs do not include airfare expenses, meats, lodging and local transportation costs. These
monthly. based on actual expenses. or at a fixed, per -diem rate to be agreed upon -
4 Payment Terms:
a) 100% of License costs invoiced upon Program delivery.
b) Professional Services and related expenses invoiced monthly for actual days provided or in accordance with
ntilestones.
c) Cost of Maintenance Following first twelve -month period invoiced in advance for full one -year term.
d) Payments due Net 30 Rays From receipt of invoice.
5 Prices and associated discounts apply solely to this quotation. Unless otherwise specified herein, subsequent orders
licenses and services shall be based upon separate quotations.
6 When duly executed this Quotation shall Form the Program Schedule attached as Appendix A of the Software License
Agreement between the Parties dated the day of 2009 (Ihe'Agreement'). If any provision
will be charged either
predetermined
for additional STARLIMS
and Services
in this Program Schedule
All capitalized terms
confirmed if STARLIMS
achieve a minimum
cancelled will be
two weeks prior to the dale
a course for whatever
conflicts with the terms of the Agreement, the terms of the Agreement will controt, unless expressly determined herein.
not defined herein shall have the meaning imparted thereto in the Agreement-
7 Note on Training: Registration and confirmation will be on a first -come, first -served basis. Registrations will only be
has received a valid purchase order for the course. STARLIMS reserves the right to cancel any course Mal does not
number of registered and confirmed attendees. Any attendee registered and confirmed for a course that is subsequently
offered alternative course dates at no additional cost. Cancellation by LICENSEE of a confirmed reservation within
of the course will result in charge of 50% of the course fees. If a registered and confirmed trainee is unable to attend
reason, LICENSEE may register a substitute trainee at no additional cost.
LICENSEE Signature Oats:
Name:
Title:
STARLIMS Signature Date:
Name:
Title:
Upon exacWon, pleas. fax signed documents to the attention of Controller at 1- 9544444113 or email scanned documents to controller@starnms.com. , -
Please also mall two sels'of original documents to STARUMS Corporation. 4000 Hollywood Bird. ;15155, Hollywood, FL 33021; Attention: ConfroNer.-
STARtNtS will return one'countarslgnad cop yfaryourwords wWfhInl2 hours- --- -- - - - • - - -- -- • - ... - - . ... - --- _..
STARLIMS Corporation's Proposal 20100421 -REL -A (Corpus Christi - PHL)Jas 4/27/2010
6 OF 6
APPENDEB - ESCROWAGREENENT
(Electronic copy of original agreement on Tile)
RESTATED AND AMENDED ESCROW AGREEMENT FOR SOFTWARE PROGRAM
SOURCE CODE AND OTHER MATERIAL
This Escrow Agreement (the "Agreement ") is entered into and effective as of May 15, 2007 (the "Effective Date ") by and between
Lerner Greenberg Stemer LLP ( "Escrow Agent) located at 2445 Hollywood Boulevard, P.O. Box 2480, Hollywood, Florida 33020
and STARLIMS Corporation ( "STARLIMS ") located at 4000 Hollywood Boulevard, Suite 515 South, Hollywood, Florida 33021.
Recitals
WHEREAS, the parties to this Agreement desire to continue their relationship as Escrow Agent and STARLIMS and to amend
the previous Escrow Agreement dated January 15, 2004, as amended;
WHEREAS, STARLIMS wishes to continue to have Escrow Agent store certain materials deposited by it with Escrow Agent;
WHEREAS, Escrow Agent shall continue to store such materials and to make such materials accessible to licensees of
STARLIMS that have executed a Participating User Agreement, as specified below;
NOW THEREFORE, in consideration of the premises, mutual covenants and agreements herein and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged by Escrow Agent and STARLIMS, Escrow Agent and
STARLIMS agree as follows:
i. Explanation and intent. The foregoing recitals are true and correct and are incorporated herein by reference.
2. Definitions. For purposes of this Agreement, the following definitions shall apply:
(a) "Materials ". Shall refer to any source code, and notes, flow charts and explanations, instructional, and other materials, in
written or electronic medium, furnished by STARLIMS to Escrow Agent to be held under this Agreement and any copies of such
materials made by Escrow Agent. From time to time, Escrow Agent will provide STARLIMS with a list of Materials in its
possession.
Escrow Agent shall have the right but not the obligation to make copies of any Materials and will notify STARLIMS if it
determines that additional copies of Material islare required for purposes of this Agreement. STARLIMS shall identify in writing
any further Material being provided to Escrow Agent for purposes of the Agreement and any previously provided Material that
may be discarded or destroyed. Escrow Agent will notify STARLIMS of any Material that it destroys, discards, or retums to
STARLIMS.
(b) "Licensee ". Shall refer to a STARLIMS licensee that has executed a previous Participating User Agreement or a
Participating User Agreement in the form attached hereto as Addendum A or as otherwise agreed to in writing by Escrow Agent
and STARLIMS.
Page 22
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
3. Term and Renewal. This Agreement shall commence an the Effective Date and continue for a period of five (5) years unless
sooner terminated as provided for in Paragraph 9 herein below and may be renewed in writing as desired by both parties.
4. Purpose of the Agreement. This Agreement shall continue the existing arrangement, as amended herein, under which:
(a) Escrow Agent shall store certain Materials deposited with it by STARLIMS, and Escrow Agent may from time to time provide
STARLIMS with an inventory of Materials in its possession; and
(b) a Licensee shall be able to secure from Escrow Agent access to those Materials enumerated in its Participating User
Agreement, a copy of which shall be provided by STARLIMS, and stored under this Agreement, under the circumstances, and
subject to the terms and conditions specified below.
(c) Escrow Agent understands (i) that STARLIMS claims that Material contains information that is trade secrets of itself or
another person which STARLIMS is authorized to provided to Escrow Agent hereunder and (ii) that STARLIMS alleges that
Material is intended to constitute items useful to persons reasonably skilled in computer technology for providing maintenance
support for computer software programs STARLIMS has licensed to its Licensees, in the event that any of these Licensees
becomes entitled to receive it as provided for in this Agreement.
(d) From time to time during the term of this Agreement, STARLIMS shall furnish then- current Material to Escrow Agent that is
either new Material or in substitution for Material in Escrow Agents possession, and in so doing will expressly specify in writing
the Material that the new Material is being substituted for and whether or not the Material can be destroyed or discarded, and
STARLIMS, acting through persons designated in writing identified by STARLIMS, may remove any Material from Escrow
Agents possession that ceases to be so useful. Escrow Agent shall not remove any Material in its possession, unless
specifically requested in writing by STARLIMS to do so. Escrow Agent is not responsible for enforcing any obligation STARLIMS
may have undertaken with its Licensees to furnish then - current Material. Escrow Agent's sole responsibility shall be to store
materials and make materials available to Licensees in accordance with the terms of this Agreement.
(e) STARLIMS acknowledges that Escrow Agent does not intend, and is not expected, to open any package represented to
contain Material, except in the circumstances identified in paragraph 7, below, and hence, is not responsible for determining
whether the Material is so useful and has no obligation to enforce STARLIMS's duties under this Agreement.
(f) STARLIMS shall retain copies of Material held in Escrow Agents possession and shall furnish replacements of Material to
Escrow Agent promptly after each written request and without charge.
5. Termination of Licensee's Rights. A Licensee shall cease to be entitled to secure copies of Material from Escrow Agent
pursuant to the provisions of this Agreement, after both of the following have occurred:
(a) Escrow Agent receives a notice from STARLIMS that the license agreement between STARLIMS and Licensee has been
terminated. Such notice shall be given in writing pursuant to the terms of paragraph 11(a) of this Agreement: and
(b) Licensee either acknowtedges such termination to Escrow Agent in writing, or fails to notify Escrow Agent in writing that the
license agreement has not been terminated, within fifteen (15) calendar days after receipt by Licensee of a copy of STARLIMS's
notice to Escrow Agent of said termination (such notice to be sent by STARLIMS to Licensee by registered or certified mail,
postage prepaid, including proof of receipt by Licensee).
6. Treatment of Material.
(a) Escrow Agent shall not furnish Material to any person other than STARLIMS, a Licensee so -entitled, or another person that
is a party to an agreement similar to this Agreement, except pursuant to a final non - appealable arbitration decision or a final
non - appealable order of a court and in such event shall furnish Material only pursuant to the provisions of this Agreement, or to
such final non - appealable arbitration decision or court order.
Page 23
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
(b) Escrow Agent shall protect Material from transfer to unauthorized persons by the use of the same measures it uses to
protect its own documents of equivalent sensitivity from such transfer, and shall not make any use of the Materials without the
express written approval of STARLIMS as provided for in this Agreement.
7. Furnishing Material to Licensees.
Escrow Agent will furnish material to a Licensee in accordance with the following:
(a) Upon receipt of a copy of a fully executed Participating User Agreement accompanied by an affidavit of an officer of the
Licensee ("Licensee's Affidavit ") stating that STARLIMS Failed, without cause on the Licensee's part, to furnish the Licensee with
maintenance support to the extent provided for in an applicable license agreement with STARLIMS or to render other
performance under circumstances that entitle the Licensee, as provided for therein, to receive a copy of certain designated
Material, Escrow Agent shall send a copy of the Licensee's Affidavit to STARLIMS.
(b) (1) Unless, within fifteen (15) calendar days after STARLIMS's receipt of that copy (the "Fifteen -day Period "), Escrow Agent
receives an affidavit of STARLIMS or an authorized representative of STARLIMS ( "STARLIMS's Affidavit ") disputing the facts set
forth in the Licensee's Affidavit, promptly after the expiration of the Fifteen -day Period, Escrow Agent shall furnish copies of the
applicable Material in its possession, to the extent copies thereof are available, to the Licensee. STARLIMS shall promptly
provide a copy or additional copies of Materials as requested by Escrow Agent to enable Escrow Agent to fulfill its obligations
under this Agreement.
(ii) The Licensee shall use, and protect, the Material it so receives in accordance with the provisions of the license agreement
between it and STARLIMS. Escrow Agent shall not be in any way responsible to enforce authorized use and protection of such
Material by the Licensee.
(c) If, during the Fifteen -day Period, Escrow Agent receives STARLIMS's Affidavit disputing the Licensee's Affidavit, or setting
Forth additional facts (for example, the Licensee's breach of a material obligation under its license agreement with STARLIMS)
which, in STARLIMS's sole judgment, terminate the Licensee's right to receive Material, Escrow Agent shall fumish a copy of
STARLIMS's Affidavit to the Licensee and shall not furnish copies of any Material to the Licensee except pursuant to a final non -
appealable arbitration decision, or a certified copy of a final non - appealable court order, directing it to do so.
8. Compensation of Escrow Agent. All fees, expenses, and charges of Escrow Agent in connection with the services it performs
under the Agreement shall be paid on an annual basis or as otherwise agreed to in writing between the parties hereto. Escrow
Agent shall bill STARLIMS accordingly. STARLIMS and Escrow Agent acknowledge that such fees, expenses, and charges are
currently set forth in an Engagement Agreement between STARLIMS and Escrow Agent.
9. Discharge of Escrow Agent.
(a) Escrow Agent shall be deemed to be discharged in the event that STARLIMS removes all Material from its premises
hereunder or Escrow Agent no Longer has any Material in its possession.
(b) Escrow Agent may resign as such, acting entirely in its sole discretion, by giving STARLIMS and all Licensees previously
made known to Escrow Agent at least thirty (30) calendar days prior notice. Subject to the provisions of paragraph 7 above,
promptly after that resignation becomes effective, Escrow Agent shall furnish to STARLIMS all Materials in its possession.
(c) Whenever Escrow Agent ceases to be such, it shall send a notice to that effect promptly to all Licensees. In such event, this
Agreement shall be automatically terminated as of the date Escrow Agent sends such notice to Licensees.
10. indemnity and Liability of Escrow Agent.
(a) STARLIMS shall indemnify Escrow Agent for, and hold it harmless against, any loss, damages, cost, expense, or liability it
incurs or suffers in connection with, or as a result of, Escrow Agent's activities under this Agreement, except in the event as a
Page 24
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Restated and Amended Escrow Agreement For Software Program
Source Code And Other Material in duplicate originals as of the indicated date and year above.
STARL1MS
Corporation
4000 Hollywood Blvd.
Suite 515 South
Hollywood, Florida, 33021
Fax: 1-954-964-8113
(Signature)
Page 26
Lerner Greenberg Sterner LLP
Patent Attorneys and Attorneys At Law
Mailing Address:
Post Office Box 2480
Hollywood, FL 33022 -2480
Fax: 1 -954 -925 -1101
Managing Partner
(Signature)
STARIIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT
ADDENDUM A PARTICIPATING USER AGREEMENT
The undersigned (Licensee") acknowledges and agrees as follows:
1. Licensee acknowledges that it has received a copy of the Restated and Amended Escrow Agreement for Software Program
Source Code and Other Material ( "the Agreement ") entered into on May 15, 2007, between Lerner Greenberg Sterner LLP
{"Escrow Agenr) and STARLIMS Corporation ("STARLIMS"); that it has read the Agreement; and that it agrees to be bound by
and comply with all the applicable terms and conditions of that Agreement, as applicable, as if it were a party to it.
2. The Material to which Licensee can have access, pursuant to the Agreement, is the following to the extent that such Material
is in the possession of Escrow Agent:
this information]
(please complete
3. Licensee expressly acknowledges and agrees that Escrow Agent shall not be liable to it for any harm, loss or damage or
liability, including but not limited to consequential harm, loss and damage, that results, directly or indirectly, from any act or
omission of Escrow Agent in connection with its function as Escrow Agent, except if a result of Escrow Agent's willful misconduct
or gross negligence, as defined under the laws of the State of Florida without reference to its conflict of law rules.
Page 27
Licensee's COMPANY NAME
By:
Title:
Date:
Signature
STARLIMS SOFTWARE LICENSE, SUPPORT AND SERVICES AGREEMENT