HomeMy WebLinkAboutENGENUITY - CONTRACT - CONTRACT - SOURCE CODE LICENSE AGREEMENTPJ en enu�ty®
TECHNOLOGIES INC.
Fax:
4700 De la Savane, Suite 300,
Montreal, Quebec, Canada
Tel.; (514) 341-3874zrFax: (514) 341
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RE: Purchase Order for LOOX Source Code
Mr. Opal,
We thank you for your recent purchase of LOOX Source Code unffer PO#7701849.
Shipment of this item requires the signature of a Source Code LftnktA.greement
attached).
Once you have reviewed and signed this document, please fax back a complete copy to
my attention so that we can proceed with shipping the related software.
If this document should go the attention of someone else, please forward it or let us
know so it can be re -sent accordingly.
Should you have any questions, please do not hesitate to contact Isabelle Lafleche at
ext. 210 or myself at the number above.
Regards,
Isabelle Segri
Order Processing Coordinator
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This facsimile is intended for the use of the person to which it is addressed. It may contain privileged,
confidential or subject to copyright information and should not be disclosed, copied, forwarded or otherwise
provided to anyone other than the addressee. If you have received this facsimile in error, please destroy it
without forwarding or otherwise reproducing it, and notify the sander of the error in a reply email or by calling
eNGENUITY Technologies at (514) 841-8874 to allow us to correct our records. Thank you.
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BETWEEN: Engenu'rty Technologies Inc., a company duly
incorporated under the laws of Canada having its principal
place of business at 4700, de la Savane, Suite 300, in the
City of Montreal, Province of Quebec, Canada, 1-114P 1 T7
(hereinafter referred to as "ETI")
AND: City of Fort Collins, a company duly incorporated under
the laws of Colorado, having its principal place of business
at 3030 East Drake Road, Fort Collins, CO, USA 60526
(hereinafter. ref erred to as "Licensee")
WHEREAS ETI and Licensee have entered into a licence agreement (the "License Agreement"),
covering the use by Licensee of LOOX software ("the Licensed Software") and ETI has agreed to
provide maintenance and support to Licensee for Licensed Software.
WHEREAS ETI agrees to provide, and Licensee agrees to receive, those Source Code Materials
in order that Licensee may provide for Its own internal requirements to maintain and support the
Licensed Software.
NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration (the 'receipt and adequacy of which are hereby
acknowledged), ETI and Licensee agree as follows:
1. Definitions.
In this source code license agreement (the "Agreement'), except where the context or subject
matter is inconsistent therewith, the following terms shall have the following meanings:
1.1 "Business Day" means any day, other than a Saturday, Sunday, statutory or Civic holiday
in Montreal, Province of Quebec;
1.2 "Delhmry" means either the Initial Delivery or Subsequent Delivery;
1.3 "Initial Delivery" has the meaning attributed to it in paragraph 2.1;
1.4 "Intellectual Property Rights" includes patents, trade marks, service marks, registered
designs, integrated circuits topography, including applications for any of the foregoing, as
well as copyright, design right, know-how, confidential information, trade secrets and any
other similar rights in any country.
1.5 "License Agreement' means the licence agreement in which ETI licensed the use of the
Licensed Software to the Licensee, as amended from time to time in accordance with its
terms;
1.6 'licensed Software" means, at any time, that version of the computer software then
licensed to the Licensee under the License Agreement, including that version of any
associated complier programs, utility programs and library functions, including all
corrections, changes, improvements and enhancements thereto.
Source Code License Agreement
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1.7 "Modification" shall mean any modification, changes, corrections, additions or
enhancements to the Source Code Material performed by Licensee or (subject to
restrictions provided for herein) by a third party for Licensee.
1.8 "Source Code Materials" means a complete copy of
1.8.1 the source code version of the Licensed Software in machine-readable form on
machine-readable storage medium suitable for long term storage and compatible
with the computer system being used by Licensee and which, when compiled, Will
produce the object code version of the Licensed Software, and in human -readable
form with annotations on bond paper; and
1.8.2 all applicable documentatioh and other explanatory materials, If any, in ETI's
possession, including any programmer's notes, technical or otherwise, for the
Licensed Software as may be reasonably required by Licensee, using a competent
computer programmer possessing ordinary skills and experience, to further
develop, maintain and operate the Licensed Software without further recourse to
ETI including, but not necessarily limited to, general flow -charts, input and output
layouts, field descriptions, volumes and sort sequence, data dictionary, file layouts,
processing requirements and calculation formula and the details of all algorithms.
1.9 "Subsequent Delivery" has the meaning attributed to it in paragraph 2.2;
2. Delivery of Source Code Materials.
2.1 Within ten (10) Business Days of the reception, by ETI, of a duly signed Source Code
License Agreement from Licensee to this effect, ETI shall provide the Source Code
Materials to the Licensee (or to Licensee's agent) at ETI's office in Montreal (the "Initial
Delivery"). Machine-readable materials will be on a medium suitable for long-term
storage, which Is compatible with the computer system being used by Licensee. Source
code materials in human -readable form will be on bond paper.
2.2 In addition to the Initial Delivery, from time to time, and at FTI's discretion, ETI shall
provide Licensee (or Licensee's agent) at ETI's office in Montreal with a complete updated
set of the then -current Source Code Materials (the "Subsequent Delivery").
2.3 The cost of transport of the Source Code Materials to Licensee's offices shall be at
Licensee's sole expense.
3. Grant of License.
3.1 ETI hereby grants to Licensee a perpetual, personal, non-exclusive and non -transferable
licence to use the Source Code Materials to maintain and support the object code version
of the Licensed Software and to port the Licensed Software. This licence shall be
restricted to allowing Licensee to:
3.1.1 make only those copies of the Source Code Materials that are necessary In order
to allow Licensee to maintain, update, and port the Licensed Software;
Source Code License Agreement
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3.1.2 make revisions to the Source Code Materials; such revisions shall not be
supported by ETI;
3.1.3 recompile versions of the Licensed Software from the Source Code Materials,
which recompiled versions shall be deemed to be Licensed Software and subject
to the terms hereof and of the Licence Agreement; and
3.1.4 subject to paragraph 3.2, disclose the Source Code Materials, or any part thereof,
only to full-time employees, agents or independent contractors of Licensee to
whom such disclosure is necessary in order to use, maintain, implement, correct or
update the Licensed Software.
3.1.5 deploy applications incorporating the Licensed Software in any form after payment
to ETI of the appropriate right -to -use royalty or project buy-out amount. For the
purposes of this section, project is defined as an engineering project resulting in a
well defined set of displays and graphical behaviour. A project usually relates to a
specific or group of products, weapon systems, or brands of vehicle, for example.
3.2 Licensee agrees to use the Source Code Materials only for its own use and only for the
purposes expressly contemplated in paragraph 3.1. Licensee shall not disclose or give
access to the Source Code Material to any third parties (other than Licensee's full-time
employees) except upon prior written authorization from ETI to this effect which
authorization shall not be retained unduly, it being further agreed that Licensee shall obtain
from any third party to whom disclosure of this information is made pursuant to
subparagraph 3.1.4 or to this paragraph, and prior to a such disclosure, a written covenant
naming ETI as direct beneficiary of a such covenant, not to further disclose or make use of
the Source Code Materials in any manner whatsoever except as provided in this Section.
The Licensee agrees not to use, or allow the use of, the Source Code Material in any way
that will lead to the development of a software product which (i) may be offered for sale
commercially and, (ii) has functionality substantially similar to that of the Licensed
Software from Engenuity Technologies Inc.
3.3 Upon written request by ETI, Licensee shall set out in writing the number of, and location
of, all copies of the Source Code Materials.
4. Representations and Warranties
4.1 ETI acknowledges that the purpose of this Agreement is to provide Licensee with the
Source Code Materials so that Licensee may develop and deploy graphical display
systems on a target platform. Accordingly, ETI represents and warrants that:
4.1.1 to the best of ETI's knowledge and belief, the Source Code Materials are complete
and otherwise accurately reflect the most current version of the Licensed Software
as used by Licensee;
4.1.2 any Subsequent Delivery of the Source Code Material shall incorporate all changes
to the Source Code Material made by ETI since the last Delivery to the Licensee
under this Agreement;
4.1.3 the Source Code Materials, including the Source Code, do not contain any clock,
timer, counter, or other limiting or disabling code, design or routine that would
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Cause the Licensed Software to be erased, made inoperable or would prevent or
prohibit or otherwise diminish the use of the Source Code Materials by Licensee
for the purpose of providing for its own maintenance and support or otherwise limit
or restrict Licensee's ability to use or copy the Licensed Software after a specific or
random number of uses or copies, or after the lapse or occurrence of any similar
triggering prompt; and
4.1.4 the title to the Source Code Materials is free of all liens, charges and other
encumbrances.
4.2 Each of the Parties represent and warrant that it has the legal right to enter into this
Agreement and to fulfill its obligations hereunder.
5. Ownership and CopvripLt
5.1 Licensee acknowledges that ETI is the owner of all Intellectual Property Rights in and to
the Source Code Materials. No title to the Intellectual Property Rights In the Source Code
Materials is transferred to Licensee by this Agreement.
5.2 ETI shall be assigned all Intellectual Property Rights in and to any Modifications to the
Source Code Material from their inception and for all the duration of such Intellectual
Property Rights and throughout the world.
5.3 In consideration of the licence granted to Licensee by ETI hereunder and in consideration
of the assignment contemplated in this paragraph, Licensee shall be granted a'non-
exclusive licence in and to the Modifications assigned to ETI by Licensee hereunder,
which licence shall be governed and be subject to the same terms and conditions as those
provided for in the Licence Agreement.
5.4 For more certainty, and without limiting the scope of the assignment provided for in
paragraph 5.2 hereinabove, Licensee understands and agrees that ETI shall be entitled to
use, exploit, grant licences with or without rights to sub -licence the Modifications, to make
derivative works from the Modifications, to publish the Modifications, to combine the
Modifications with any other works or products owned by ETI or any third party, or
otherwise make use of the Modifications with any software or other products incorporating
the Modifications as if such Modifications were ETI's own without accounting to Licensee,
with the only restriction that ETI may not, thereby, affect the licence granted by ETI to
Licensee in paragraph 3.1 hereof.
6. Limitation of Warra
6.1 Notwithstanding any provision to the contrary in the License Agreement, ETI shall have no
liability or responsibility whatsoever toward the Licensee under the License Agreement
with respect to any error, problem or defect to the Licensed Software or to the Source
Code Material directly or Indirectly arising from any Modification to the Source Code
Material unless Licensee can positively demonstrate that,any such error, problem or defect
would have arisen even if such Modification or part thereof would not have been made to
the Licensed Software or to the Source Code Material.
6.2 Source Code Materials are provided with a twelve (12) month warranty. ETI reserves the
right to modify the scope and extent of maintenance services upon ninety (90) days notice.
Source Code License Agreement
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7. Termination.
7.1 This Agreement is effective from the date it is executed by each of the Parties until
terminated in accordance with its terms.
7.2 Licensee may terminate this Agreement at any time by destroying all copies of the Source
Code Materials and providing written confirmation to ETI. ETI may terminate this
Agreement on notice to Licensee if Licensee fails to perform any of its material obligations
as set forth in this Agreement or the License Agreement,
7.3 Upon termination by ETI, Licensee shall immediately:
7.3.1 cease any use of the Source Code Materials authorized hereunder;
7.3.2 return to ETI all copies of the Source Code Materials, (or destroy all copies thereof
in Licensee's possession); and
7.3.3 within thirty (30) days thereafter, provide to ETI, in such form as is satisfactory to
ETI, a sworn statement confirming that Licenses has complied with the foregoing.
8. Furtffgr Assurances.
Each parry agrees that upon the written request of the other party, it will do all such acts
and execute all such further documents, conveyances, deeds, assignments, transfers and
the like, and will cause the doing of all such acts and will cause the 'execution of all such
further documents as are within its power to cause the doing or execution of, as any other
Party hereto may from time to time reasonably request be done and/or executed as may
be necessary or desirable to give effect to this Agreement.
9. Misc lia sous.
9.1 Any. notice, demand or other communication (in this paragraph, a "notice") required or
permitted to be given or made hereunder shall be in writing and shall be sufficiently given
or made if:
9.1.1 delivered in person during normal business hours on a Business Day and left with
a receptionist or other responsible employee of the relevant party at the applicable
address set forth below;
9.1.2 sent by prepaid first class mail; or
9.1.3 sent by any electronic means of sending messages, including telex or facsimile
transmission, which produces a paper record ("Electronic Transmission") during
normal business hours on a Business Day charges prepaid and confirmed by
prepaid first class mail;
in the case of a notice to ETI, addressed to it at:
Attention: Ms. Isabelle L.afleche
Source Code License Agreement
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Director, Legal Services
Telephone: 514/341-3874 ext.210
Telecopier: 514/341-3232
and in the case of a notice to the Licensee, addressed to it at:
Attention:
Telephone:
Telecapier:
9.2 Each notice sent in accordance with this paragraph shall be deemed to have been
received:
9.2.1 on the day it was delivered;
9.2.2 on the third Business Day after it was mailed (excluding each Business Day during
which there existed any general interruption of postal services due to strike,
lookout or other cause); or
9.2.3 on the same day that It was sent by Electronic Transmission, or at the start of
business on the first Business Day thereafter if the day on which it was sent by
Electronic Transmission was not a Business Day.
Any party may change its address for notice by giving notice to the other party as provided
in this paragraph.
9.3 The Was of the articles and paragraphs of this Agreement are inserted solely for
convenience, are not a part of this Agreement, and do not in any way limit or amplify the
terms of this Agreement.
9.4 Any legal proceeding taken by a party (the "Claimant") against the other (the
"Respondent") and which is based on this Agreement shall take place and be brought by
the Claimant before the courts having jurisdiction over such proceeding in the judicial
district of the address of the Respondent. Parties expressly agree that such venue is
proper and voluntarily submit to the jurisdiction of the courts within the same.
9.5 This Agreement and the corresponding relationship of the parties shall be governed by,
and interpreted in accordance with the laws in force in the Province of Quebec (Canada)
(excluding any conflict of laws rule or principle which might refer such construction to the
laws of another jurisdiction) and shall be treated in all respects as a Quebec contract.
9.6 This Agreement, together with the schedules attached hereto, constitutes the entire
agreement between the parties pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions between the parties,
whether oral or written. No supplement, modification or termination of this Agreement
shall be binding, unless executed in writing by the parties.
9.7 If any term of this Agreement or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable or shall terminate in the normal course, the
Source Code License Agreement
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remainder of this Agreement or the apolication of such term to persons or circumstances
other than those to which it is held invalid or unenforceable shall not be affected thereby
and each term of this Agreement shall be separately valid and enforceable to the fullest
extent permitted by law.
9.8 No provisions of this Agreement shall be deemed waived and no breach excused, unless
such waiver or consent excusing the breach shall be in writing and signed by the party to
be charged with such waiver or consent. A waiver by a party of any provision of this
Agreement shall not be construed as a waiver of a further breach of the same covenantor
condition.
9.9 Each party shall take (or cause to be taken) all reasonable steps, including the execution
of all further documents as the other party may, in writing from time to time request be
done in order to consummate the transactions contemplated hereby or as may be
necessary or desirable to give effect to this Agreement or any document, agreement or
instrument delivered pursuant hereto.
9.10 Except as expressly provided otherwise in this Agreement, neither this Agreement nor any
rights or benefits hereunder may be assigned by Licensee without the prior written consent
of ETI.
9.11 Subject to paragraph 9.10, this Agreement shall endure to the benefit of and be binding
upon the Parties and their respective successors (including any successor by reason of
amalgamation or statutory arrangement of any party) and permitted assigns.
9.12 Except as expressly provided otherwise in this Agreement, dates and times by which any
Party is required to perform any obligation under this Agreement shall be postponed
automatically to the extent, and for the period of time, that that party is prevented from
doing so by circumstances beyond its reasonable control. Such circumstances shall
include acts of nature, strikes, lockouts, riots, acts of war, epidemics, government
regulations imposed after the fact, fire, communications line failures, power failures,
earthquakes or other disasters. The party prevented from rendering performance must
notify the other party immediately and in detail of the commencement and nature of such
circumstance and the probable consequences of it. Each party whose performance is
delayed must use reasonable efforts to perform Its obligations in a timely manner, must
employ all resources reasonably required in the circumstances and must obtain supplies
or services from other sources if reasonably available.
9.13 This Agreement does not create a partnership or a joint venture between the parties. No
party shall have the right to enter into contracts or pledge the credit of or incur expenses or
liabilities on behalf of any other.
9.14 The parties hereto acknowledge that time is of the essence in fulfilling their obligations
under this Agreement. .
9.15 The Parties expressly exclude the application of the United Nations Convention for the
International Sale of Goods.
10. LANGUAGE OF AGREEMENT AND CORRESPONDENCE
Source Code License Agreement
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