HomeMy WebLinkAbout2021CV60475 - CITY OF FORT COLLINS V. OPEN INTERNATIONAL, LLC AND OPEN INVESTMENTS, LLC – (STATE COURT) - 001B - EXHIBIT 2 - SOFTWARE LICENSE AGREEMENTExhibit 2
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SOFTWARE LICENSE AGREEMENT
ORDER FORM
Customer Name:
City of Fort Collins
215 N. Mason St.
Fort Collins, CO 80524
Customer
Primary Customer Contact
Name: Lori Clements
Title: Sr Mgr, Customer Support
Phone: 970-221-6396
Email: lclements@fcgov.com
Payment Administrator
Name: Mona Walder
Email:
mwalder@fcgov.com
License term: Perpetual, see Section 1.1
Software product: Open Smartflex
Payment terms: Net 30
Software Product Utility Services Maximum number of Customers/ End
Users
License Fee
Open Smartflex CIS Electric, Water,
Wastewater,
Stormwater
75,000 Utilities Customer End Users $337,500
($4.50/Utilities
Customer End
Users)
Open Smartflex Field
Services
Electric, Water,
Wastewater,
Stormwater
75,000 Customer End Users (Utilities
& Broadband)
$135,000
($1.80/Customer
End Users)
Open Smartflex
Telecom B/OSS
Broadband 10,000 Broadband Customer End
Users
$60,000
($6.00/Broadband
Customer End
Users)
Open Smartflex
Customer Self-Service
(CSS)
Electric, Water,
Wastewater,
Stormwater
75,000 Customer End Users (Utilities
& Broadband)
$37,500
($0.50/Customer
End Users)
Total 75,000 Customer End Users $570,000
Additional licenses for any product may be purchased at the per Customer End User price set forth in this
Agreement, as adjusted, in blocks of 5,000. Payment for such additional licenses shall be made in
accordance with Section 9 of this Licensing agreement.
This Order Form is governed by, and incorporates by reference, the Software License Terms and
Conditions attached to this Order Form (the Order Form and the Terms and Conditions, together, the
“Agreement”). The Agreement “Effective Date” is the date of last signature of this Order Form.
After year three from the execution of the Agreement, the Software Licenses Fee for additional unit
purchases may be increased at a rate of 2.5% per year . There will be no rate increase for years one
through three.
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AGREED AND ACCEPTED:
CITY OF FORT COLLINS, COLORADO OPEN INTERNATIONAL LLC.
By: _________________________ By: _____________________________
Name: Darin Atteberry Name: ___________________________
Title: City Manager Title: ____________________________
Date: _______________________ Date: ____________________________
Address for Notice: Attn: Address for Notice: Attn:
Darin Atteberry Hernando Parrott
City Hall West 600 California Street, 11th floor
300 LaPorte Ave. San Francisco, CA 94108
Fort Collins, CO 80521
CITY OF FORT COLLINS, COLORADO
By: _________________________
Name: Gerry Paul
Title: Purchasing Director
Date: _______________________
Address for Notice: Attn:
Gerry Paul
215 N. Mason
PO Box 580
Fort Collins, CO 80522
APPROVED AS TO FORM
_____________________
Assistant City Attorney II
ATTEST
____________________
Chief Deputy City Clerk
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President North America
8/7/2018
Hernando Parrott
8/9/2018
8/9/2018
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SOFTWARE LICENSE TERMS AND CONDITIONS
INTRODUCTION
These terms and conditions apply to Open International LLC a Florida limited liability company
(“Open”) and the customer identified on the Order Form (“Customer”).
Capitalized terms used in this Agreement which are not defined in the body of the Agreement or
in Exhibit A – Definitions have the definitions provided to such terms in the Master Professional
Services Agreement between Open and Customer dated the same date as this Agreement (the
“MPSA”).
SOFTWARE
1 LICENSE
1.1 Subject to the terms and conditions of this Agreement and timely payment of all applicable
License Fees, Open grants Customer a non-exclusive, non-transferable, license, without right to
sublicense, to: (a) install the Software on Customer Computers in production and non-production
environments; and (b) and Use the Software and Documentation solely to manage the Utility
Services. The term of the foregoing license shall be perpetual, subject to the provisions of Section
13 (Term and Termination) (the “License Term”) of the MPSA.
1.2 Customer may make a reasonable number of inactive copies of the Software exclusively for
inactive back-up or archival purposes and may make two (2) copies of the Documentation for its
internal use provided Customer also reproduces on such copies any copyright, trademark or other
proprietary markings and notices contained in the Software and Documentation and does not
remove any such marks from the original.
1.3 Customer agrees and acknowledges that its right to Use the Software and Documentation is
subject to timely payment of all License Fees.
2 INTELLECTUAL PROPERTY RIGHTS
2.1 The Software is licensed, not sold. The Software, including its operation, source and object
code, architecture and implementation, and the Documentation is Open’s valuable intellectual
property. Title to the Software and all associated Intellectual Property Rights are retained by
Open. Nothing in this Agreement gives Customer any Intellectual Property Rights in the Software
or Documentation, other than the limited license set out in Section 1 (License). Open reserves all
rights not expressly granted in this Agreement.
2.2 Customer shall not remove or destroy any proprietary, trademark or copyright markings or
notices placed upon or contained within any Software or Documentation. No right, title or interest
in or to any trademark, service mark, trade name, or logo of Open, its licensors , or the Customer
is granted under this Agreement.
3 RESTRICTIONS
3.1 Customer shall not infringe any of Open’s Intellectual Property Rights.
3.2 Customer shall not modify, enhance, translate, supplement, create Derivative Works from,
reverse engineer, reverse compile or otherwise reduce the Software to human-readable form.
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3.3 Customer shall not perform or permit benchmarking of the Software and shall not publish
the results from any benchmark tests except as required by the Colorado Open Records Act.
3.4 Customer shall not perform or permit the Use, evaluation or viewing of the Software or
Documentation for the purpose of designing or otherwise creating any software program, or any
portion thereof, that performs functions similar to the functions performed by the Software.
3.5 Except as expressly permitted in a writing signed by an authorized officer of Open,
Customer shall not cause or permit any of the following: (a) copying (except as set forth herein),
(b) sublicensing, (c) providing access or other dissemination of the Software, in whole or in part,
to any third party or (iv) the Use of the Software for the benefit of any third party, including any
Affiliate of Customer.
4 SOFTWARE WARRANTIES
4.1 Performance.
(a) Open warrants that the Software will perform in accordance with its Documentation for a
period of ninety (90) days from Acceptance Date. This warranty covers problems reported to Open
in writing during the warranty period. Customer’s exclusive remedy for breach warranty is that
Open will, at its option, repair or replace the Software to make the Software conform to the
foregoing warranty, subject to Section 13.2 of the MPSA.
(b) Following the warranty period, the performance of the Software will be addressed under
the Software Support Services program described in the MPSA, if applicable.
4.2 Open warrants that the Software will not contain any computer “viruses,” “worms” and
other illicit code, “back door,” “time bomb,” or comparable devices that would give Open or a third
party the ability intentionally to interrupt or disable the Software. Open will promptly notify
Customer of any computer viruses, worms or other illicit code subsequently discovered in the
Software. Notwithstanding the foregoing, Customer acknowledges that the Software utilizes a
license key mechanism which limits the scope of use of the Software to the Use during the License
Term. The license key is designed to expire automatically if Customer exceeds the permitted
scope of Use or to expire automatically at the end of the License Term, or both, at which point the
Software will no longer function.
4.3 The warranty in Section 4.1 of this Agreement shall not apply to non-conformities in the
Software due to one or more of the following causes: (a) modifications not made or approved by
Open; (b) negligence or intentional acts by Customer or any third party authorized by Customer;
(c) misuse or abuse of the Software, including the failure to use or install the Software in
accordance with the Documentation; (d) incorrect data, or incorrect data entry by Customer or
any third party authorized by Customer (e) third-party software, hardware or firmware not provided
or authorized by Open in writing; or (f) Force Majeure.
4.4 EXCEPT AS EXPRESSLY SPECIFIED IN THIS SECTION 4, OPEN MAKES NO
WARRANTY OR GUARANTY OF ANY KIND, EXCEPT AS STATED IN THE MASTER
PROFESSIONAL SERVICES AGREEMENT.
5 CUSTOMER WARRANTY
Customer represents and warrants to the best of Customer’s knowledge, that Customer and each
of its employees granted access to the Software is not: (a) a resident of any country subject to a
United States embargo or other similar United States export restrictions; (b) on the United States
Treasury Department’s list of Specifically Designated Nationals; (c) on the United States
Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States
export control list.
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6 AUDITS
6.1 Customer shall maintain records regarding the number of Customer End Users managed
with the Software and shall make such information available to Open upon request. In addition,
upon request Open shall have the right to audit Customer’s Use of the Software to verify
compliance with the terms of this Agreement, and Customer will promptly pay any underpayment
discovered in the course of such audit, based on the Parties’ mutually agreed upon price.
6.2 All amounts mutually agreed to be owed by Customer under this Section 6 shall be
payable within thirty (30) days after the date of invoice from Open.
7 EXPORT
The Software and related technology are subject to applicable United States export laws and
regulations. Customer shall comply with all applicable United States and international export laws
and regulations with respect to the Software and related technology. Without limitation, Customer
shall use reasonable efforts to avoid the download, export, re-export or other transfer of the
Software or related technology, without a United States government license: (a) to a resident of
any country subject to a United States embargo or other similar United States export restrictions;
(b) to any person on the United States Treasury Department’s list of Specifically Designated
Nationals; (c) to any person or entity on the United States Department of Commerce’s Denied
Persons List or Entity List; or (d) to any person or entity on any other United States export control
list.
GENERAL LEGAL TERMS
8 CONFIDENTIALITY
The Parties’ obligations shall be as set forth in the MPSA.
9 FEES AND PAYMENT
9.1 Open’s License Fee due under this Agreement is set forth on the Order Form.
9.2 Open will invoice for the License Fee in accordance with Section 8 of the MPSA.
9.3 All other payment terms shall be as set forth in Section 8 of the MPSA.
10 INFRINGMENT INDEMNIFICATION
10.1 Open (as the “Indemnitor”), at its own expense, shall defend, or at its option settle, any
third-party claim, suit or proceeding brought by a third party against Customer (as the
“Indemnitee”) alleging that the Software as delivered by Open and used within the scope of this
Agreement, infringes any United States patent or any trademark or copyright or misappropriates
any trade secret.
10.2 Open’s indemnification obligations under this Section 10 are conditioned upon Customer:
(a) promptly (not less than ten (10) business days after notice of claim) notifying Open in writing
of the claim, (b) granting Open sole control of the defense and settlement of the claim, and (c)
providing Open, at Open’s expense, with all assistance, information and authority reasonably
required for the defense and settlement of the claim.
10.3 Open shall have no obligation under this Section 10 for any claim, suit or proceeding to
the extent that it results from: (a)the combination, operation or use of the Software with equipment,
devices, software or data not specified by Open; (b)any modification to the Software not made by
Open; (c)failure to use updated or modified Software provided by Open, if Open notified Customer
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that the use of the updated or modified Software was necessary to avoid a claim of infringement;
or (d) use of the Software not in accordance with this Agreement and the Documentation.
10.4 Open shall have the right, at its sole option, to obtain the right for Customer to continue
use of the Software or to replace or modify the affected Software so that it is no longer alleged or
believed to infringe, provided that this can be done without material loss of functionality. If neither
of the foregoing options is available to Open on commercially reasonable terms, Open may
terminate Customer’s rights and Open’s obligations under this Agreement with respect to the
affected Software and refund to Customer the License Fees and implementation costs paid for
the affected Software. If Open selects this option it will be considered a triggering event for the
Financial Escrow stated in the MPSA.
10.5 THE PROVISIONS OF THIS SECTION 10 SET FORTH OPEN’S SOLE AND EXCLUSIVE
OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO
INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS.
11. SOFTWARE SOURCE CODE ESCROW
Subject to the terms of the Software Source Code Escrow incorporated into the MPSA, the terms
of the Software License in this Agreement shall become perpetual as to the versions of Software
released to Customer without additional obligation to pay License Fees and/or Support Fees
pursuant to such Escrow Agreement.
12. GENERAL
Entire Agreement; Precedence. This Agreement, including all exhibits thereto, constitutes the
final, complete and exclusive agreement between the Parties with respect to the subject matter
of the Agreement, and supersedes any prior or contemporaneous agreement, proposal,
warranties and representations. In the event of any conflict between this Agreement and the
MPSA, the MPSA shall govern and control.
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SOFTWARE LICENSE AGREEMENT
EXHIBIT A - DEFINITIONS
The following capitalized terms in the Agreement have the following meanings:
“Customer Computer” means a physical or virtual server which is: (a) owned or controlled by
Customer or (b) otherwise approved in writing by Open.
“Customer End User” means a natural person or entity which receives the type of Utility Services
listed on the Order Form, and is which is in the location listed on the Order Form.
“License Fee” means the one-time license fee listed on the Order Form.
“License Term” is defined in Section 1.1.
“Use” means the installation, accessing, displaying, and operation of the Software for the benefit
of Customer.
“Utility Services” has the meaning specified on the Order Form. Examples of Utility Services
include: electricity, gas, water, wastewater, stormwater, broadband, video and telecom services.
[END]
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