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HomeMy WebLinkAbout2021CV60475 - CITY OF FORT COLLINS V. OPEN INTERNATIONAL, LLC AND OPEN INVESTMENTS, LLC – (STATE COURT) - 001B - EXHIBIT 2 - SOFTWARE LICENSE AGREEMENTExhibit 2 Page 1 of 7 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. DocuSign Envelope ID: 60F68C41-DAAD-4744-BEF4-FB67EDDBAC8C Page 2 of 7 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 DocuSign Envelope ID: 60F68C41-DAAD-4744-BEF4-FB67EDDBAC8C President North America 8/7/2018 Hernando Parrott 8/9/2018 8/9/2018 Page 3 of 7 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. DocuSign Envelope ID: 60F68C41-DAAD-4744-BEF4-FB67EDDBAC8C Page 4 of 7 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. DocuSign Envelope ID: 60F68C41-DAAD-4744-BEF4-FB67EDDBAC8C Page 5 of 7 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 DocuSign Envelope ID: 60F68C41-DAAD-4744-BEF4-FB67EDDBAC8C Page 6 of 7 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. DocuSign Envelope ID: 60F68C41-DAAD-4744-BEF4-FB67EDDBAC8C Page 7 of 7 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] DocuSign Envelope ID: 60F68C41-DAAD-4744-BEF4-FB67EDDBAC8C