HomeMy WebLinkAboutNOVELL - CONTRACT - CONTRACT - 33070841d _
TO APPLY FOR THE MLA PROGRAM, PLEASE COMPLETE AND SIGN THIS FORM AND RETURN IT TO NOVELL.
Membership in the MLA Program is subject to all terms contained in this Application Form and the Master License Agreement ("MLA").
Novell's acceptance of Your application is conditioned upon Novell assigning a unique MLA number to You.
CUSTOMER INFORMATION:
CUSTOMER FULL LEGAL NAME:
..You..
-City-of Fort Collins - IT Department
Street Address:
215 N. Mason, 3rd
Floor
City:
Fort Col
State or Province,
Post Code:
CO
Country:
80521
1 Telephone:
970-221-6850
Fax:
970-472-3009
Web Site:
www.fcgov.com
Business Sector:
I
Type (Select One):
❑ Corporation ❑ Partnership
.'Government ❑ Education
❑ Other (Specify):
rnNTACT INFrIRMATIOW
Contract Coordinator:
Paul Batchelder
Position:
$ stems Administrator
Address:
Same
City:
State or Province,
Country:
Telephone:
Fax:
Email:
I pbatclelder@fcgov.com
CONTRACT RELATIONSHIP:
Are You the Prime Customer (i.e. the first applicant in your group/organization) or do You wish to apply to join as a Subsidiary/Affiliate
to an existing agreement?
Please check relevant box: ❑ Prime Customer [. We would like to join as a Subsidiary/Affiliate
If You are not the Prime Customer, please indicate Your relationship to, the Prime Customer below.
(See "Affiliate", Section 2.1 and "Subsidiary", Section 2.12 of the MLA.for details.)
Please check relevant box: ❑ Subsidiary W Affiliate []Parent of Prime Customer
If joining as a Subsidiary/Affiliate/Parent to an existing contract, please complete the following two rows:
Prime Customer's Name:
Prime Customer's MLA Contract Number:
I I2s{7 12 —Mtix kM3
As used in the MLA and this Application Form, "Novell" means the Novell entity named below depending on Your region/country of establishment:
Region/Country
Novell Entity
Americas, Asia -Pacific
Novell, Inc.
Japan
Novell Japan, Ltd.
Europe, the Middle -East and Africa:
Austria
Novell GmbH (Austria)
Belgium
Novell Belgium N.V.
Luxembourg
Novell Luxembourg s.a.r.l.
Denmark
Novell Danmark AS
Finland
Novell Finland OY
France
Novell S.A. R.L.
German
Novell GmbH (Germany)
Italy
Novell Italia srl
Netherlands
Novell Nederland B.V.
Norway
Novell Norge AS
Spain
Novell Spain SA
Sweden
Novell Svenska AB
Switzerland
Novell AG
United Kingdom
Novell UK Limited
Elsewhere in Europe, Middle -East or Africa
Novell Ireland Software Limited
Master License Agreement Page 1 of 2 Version 6.1a (October 2003)
Novell®
MLA A lication Form
By signing below, You confirm that:
• the Information You provide in this Application Form is true and accurate;
• You have received a copy of the MLA, have read and understood it, and agree to be bound by its terms;
• You are and will be subject to any changes or amendments of the MLA between Novell and Prime Customer (and You
certify that You will obtain a copy of any such amendments or changes); and
• the person signing below is an authorized representative of Your organization.
SIGNATURE
Customer
Print Name of
Signature:
Signatory:
Title:
2e-G-TvL OF •PQ'LC�" AS=)0 Date:
Please return this Application Form, along with a copy of your initial purchase order, to the address below.
Keep a copy of this Application Form and the MLA terms for Your records.
Americas & Asia -Pacific
Fax to:
1-801-861-2855
AND mail the original form to:
Novell Contract Management, 1800 South Novell Place, WS D231, Provo UT
84606 USA
Europe, Middle -East & Africa
Fax to:
00 353 1 6058089
AND mail the original form to:
Novell Ireland Contract Administration, Treasury Building, Lower Grand
Canal Street, Dublin 2, Republic of Ireland
The following applies to customers located In the European Union only:
Any personal information submitted to Novell will be stored in databases controlled by Novell or its affiliates (including in the U.S.A). Such information is required by
Novell and Novell -authorized resellers to fulfil their obligations under the MLA Program. Such personal data may be used by Novell entities and/or Novell partners to
provide general information on Novell products and services.
If You do not wish the data to be used outside of the Novell group to provide You with general information on Novell products and services, please check this box ❑
If You do not wish the data to be used by Novell entities to provide You with general information on Novell products and services, please check this box ❑.
Master License Agreement Page 2 of 2 Version 6.1a (October 2003)
Master License Agreement
1. INTRODUCTION. Novell has created three volume licensing
progrems: the Volume License Agreement ("VLA"), the Corporate
License Agreement ( CLA"), and the Master License Agreement
("MLA") programs. These programs allow Prime Customer and its
Subsidiaries and Affiliates to obtain software licenses and services
through volume purchasing, which includes discounts and other
benefits. This Master License Agreement ("Agreement") applies to the
MLA Program, which is referred to below as the "Program.'
2. DEFINITIONS. Capitalized terms used in this Agreement are defined
as follows:
2.1 Affili to means an entity that does not meet the definition of a
u si iary, but has an organizational relationship with Prime
Customer and is permitted by Novell to participate in the Program.
4. VOLUME LICENSING PROGRAM.
4.1
forms an integral part of this ,
between the terms and cone it
Guide, the terms and conch!
make the Program open for
modify the Program, with an
after Novell notifies You in w
apply only to purchases mad(
If any material change to the
participation in it, You will be
grvm written notice to Nove
from Novell of such a change.
may
days
r will
2.2 Annual Period means the period beginning on the first day of the 4.2 Parents and Subsidiaries. Prime Customer's parent company and
Mon
Tollowing to Effective Date and ending one year later, and u sr iarles may, receive Program benefits and privileges through
each consecutive one-year period thereafter during the Agreement Prime Customer (i.e., without completing a separate Application Form)
Term. if Prime Customer orders on their behalf using its own contract
number. In this situation, Prime Customer is responsible with such
2.3 Customer means Prime Customer or each of its parent company, Subsidiaries and parent company for compliance with this Agreement
uSms'ies, or Affiliates that participates in the Program. and the Program. If a Subsidiary or parent company wishes to
maintain a separate ordering location, it must submit Its own
2.4 Do a means any user, documentation and manuals Application Form.
- u Ing a eclronlc versions) nMvidnd by Nnvell with a Software
product.
2.5 Eff chi means the date Your Application Form (the Novell form
you comp, e, sign and submit to IJovell to join the Program) is
accepted by Novell and a contract number is issued to You.
4.3 Affiliates. An Affiliate may participate in the Program only by
su milting an Application Form to Novell. By submitting an Application
Form, an Affiliate confirms that it has the consent of Prime Customer
to join Prime Customer's Pr ram membership and that it has an
organizational relationship withlrime Customer.
2.6 Internal Use means use (a) for Your internal business, provided that 4.4 Unique Number and Acceptance. Upon entering the Program, each
parsons not employed by You do not have access to the Novell entity is assigns a unique contract number. The number assigned to
Software through input devices, and (b) by Your consultants and You is personal. and unique to You. You may not disclose or alrow this
contractors only while performing work for Your internal business. number to be disclosed to third parties (except Your Novell -authorized
Fulfillment Agent if You have appointed one) or allow it to be used by
2.7 Membershi Level means the Program level, which is determined by third parties. Novell's acceptance of Your participation in this
Prime ustome s purchase history during the most recent Term and Agreement is conditioned upon Novell assigning a unique number to
determines the discount range Novell will offer You for Software You under this Agreement.
purchases (licenses and Maintenance) under this Agreement.
4.5 Customer. By completing and signing an Application
2.8 Novell means the Novell entity that enters into this Agreement with Form for the Program and submitting it to Novell, You agree to be
ou, as defined on Your Application Form. bound by the terms of this Agreement. If You submit Your Application
Form electronically, You represent that the person signing the
2.9 Price List means the product availability and price list for the Program Application Form has authority to commit Customer to the Agreement
as p3lished by Novell from time to time. The then -current Price List provisions, and You agree that its electronic submission of the
can be downloaded at http://www.novell.com/licensing/prim.htmi or Application Form will have the same contractual effect as If You had
obtained from your local Novell office. signed a paper original by hand and submitted the paper original to
Novell.
2.10 Prime Customer means the first Customer entity that enters into this
greemA�en col —Novell. 5. OPTIONAL SERVICES.
2.11 Software means the Novell commercial software licensed to You 5.1
under this Agreement.
2.12 Subsidlaa means a company that is majority -owned by Prime
uC stomer or Prime Customer's parent company, only so long as such
control exists. For government customers, Subsidiary means any
organization under direct and full control or supervision of Prime
Customer.
2.13 Term means two consecutive Annual Periods as described in section
5.2 Olh r Seyi . Your optional purchase and Novell's delivery of
2.14 ate means a fix or compilation of fixes released by Novell to Services, suc as consulting or education ("Services") under the
correct operation defects (program bugs) in the Software. Agreement, are subject to the following terms, unless otherwise
agreed In a separate agreement specifically covering those Services.
2.15 same p means any new version version
Novell Software which bears the
same product name, Including version changes evidenced by a 5.2.1 Statement of Work. The parties may choose to enter into a mutually
number immediately to either the left or right of the decimal (e.g. for agreea—�lee—Statement of Work ("SOW") that describes the Services
GroupWise 5.5 to 6.0). If a question arises as to whether a product and may cover items such as project scope, code, documentation,
offering is an Upgrade or a new product, Novell's opinion will prevail, media and other objects ("Deliverables"). Any such SOW will be
provided that Novell treats the product offering the same for its end governed by this Agreement s terms.
user; generally.
5.2.2Ac Upon completion and delivery of the Services, You will
2.16 You (or Your) means, individually, each Customer that participates in have 30 days to notify Novell if the Services fail to comply with the
lie Program. relevant SOW. If Novell is not notified of an problems within this time
3. LICENSING.
contained in
Software is h(
Software in E
Agreement or
Novell Ireland
for the
copy
Subject to Your payment of the
vith this Agreement and the
e the Software (but not to make
perpetual, except as expressly
a products or products licensed
;ant of any conflict between the
nt and the EULA, the terms and
prevail. Ownership of Novell
r Its licensors. If You obtain the
or Africa, any license under this
Inted to You by, or on behalf of,
period, the Services shall be deemed accepted by You.
5.2.31-icense. Subject to payment of applicable fees for Services and
el5mverebles, Novell grants You a nonexclusive, nontransferable,
worldwide, perpetual, royalty -free license to use, reproduce, display
and distribute the Deliverables internally within Your organization. All
proprietary rights notices must be faithfully revroduced and included
on all copies. Except as expressly provided otherwise in this Section,
Novell (and/or its licensors) retains on an exclusive basis all right, title
and interest in and to any Intellectual property developed, delivered
and/or used by Novell in the performance of any Services.
5.2.4Term. If a SOW extends beyond the term of the Agreement, this
section 5:2 and sections 9, 10.4, 10.6, and 11 of this Agreement will
continue in effect solely with respect to such SOW.
MLA 6.1a (October 2003) 3/9
6. ORDER ING AND DELIVERABLES.
6.1 Orders. Except as otherwise provided, all orders must be submitted to
01,7 velr You must place an order for the appropriate number of
Software licenses (and associated Maintenance — see Section 13
below) within thirty (30) days after installation. A valid order is a
completed and signed Novell MLA Order Form coupled with Your
matching purchase order that is either signed by Your authorized
representative or generated by Your automated ordering system.
Novell's acceptance of an order does not sugggest Novell's agreement
in the ccuracyofthe quantities or other information set forth in the
order or otherwise waive Novell's rights to enforce its rights under this
Agreement. Novell reserves the right to invoice You in the absence of
receiving a purchase order for fees otherwise owing under this
Agreement. Novell may delay accepting orders, suspend technical
support and/or eliminate any volume or program discount if You fail to
satisfy Your obligations under this Agreement.
6.2 Price and Product Changes. Novell may revise the Price List at any
time to a change a list prices for Software, Maintenance, and other
services or deliverables, and (b) add or delete Software licenses or
other services or deliverables available for purchase. During an MLA
Tenn, however, Your list price for available licenses or Maintenance
shall remain at the price published by Novell the first month of such
term (or whenever the product first became published on the price list
during the term). This limited price protection will expire at the end of
each Term. Any decrease in list prices will apply to Your orders
received after publication of a new Price List. Novell'sobligation to
protect Your list prices will not apply to third -party products (branded
as such), special promotions, licenses and Maintenance invoiced in
non-U.S. currency, and does not guarantee product availability for the
full Term.
6.3 Master Software. Novell will make available Master Software for the
o arSiiww a pr ucts ordered from the Price List. "Master Software"
means master media available from Novell from which You may make
copies to install the Novell Software up to the number of licenses
purchased. Upon termination of this Agreement, Your right to use
Master Software ends and You must follow the termination procedures
as outlined in section 8.5.
7.2 Formal Audits. During the term of this Agreement and for two years
a erwar ou must keep complete and accurate records of the
information referred to above in Section 7.1. During this period, Novell
will have the right, at its expense and upon no fewer than 3 working
days prior written notice, to audit Your use of the Software and Yow
related records and Program payments. As part of such audit, Novell is
entitled to obtain physical and electronic data concerning all Software
usage at each of Your offices, reggardless of the countries or regions in
which Your offices are located. An audit may be conducted either by
Novell or by its authorized representative, will not interfere
unreasonably with Your business activities, and will be conducted rid
more often than once per calendar year, unless a previous audit
disclosed a material discrepancy. If such audit shows that You have
understated Your actual use of the Novell Software or have otherwise
underpaid amounts owing You must immediately purchase from Novell
sufficient licenses and Maintenance to support the actual use and
copying and pay all amounts owing. If such audit shows that You have
understated Your use of the Novell Software or underpaid amounts
owing by more than five percent, You will also pay the reasonable
expenses of the audit. Novell will use the information received during
the audit solely for the purposes of this Agreement and will otherwise
maintain the confidentiality of such information.
7.2.1You may request that the formal audit described above be carried oul
by an independent third party who must be an accountant or qualified
auditor appproved by Novell. Novell will not unreasonably withhold its
approval. In such a case, the expense of the audit will be home entirely
by You. Subject to the provisions of this section 7.2, Novell will have the
right to determine the audit scope and required audit testing and to
review the audit work prior to finalization of the audit.
8. TERM AND TERMINATION.
8.1 Term. This Agreement will begin on the Effective Date and will remain
in ef%ct for a Term, subject to earlier termination as stated below. If
You are participating under a Prime Customer's membership under the
Program, Your term is the same as the Tenn of the membership of
Prime Customer. At the end of each Term, this Agreement will renew
for an additional Term of two Annual Periods, unless either party gives
notice in writing at least 30 days prior to the end of the Term that it
does not wish to renew or unless this A reement terminated I'
6.4 Co�r'ing. During the term of this Agreement, You may make copies of
the Software from Master Software for Your Intemal Use, up to the
ear ier as
provided below. Your Membership Leve for any renewed Term will be
in the then Program
number of licenses You purchase. You must reproduce the Master
as stated -current Guide.
Soflware's serial numbers and all proprietary rights notices in any
copies You make.
8.2
T ,min tion for Cau e. Either party may terminate this Agreement
an our rogram membership) upon written notice for the
substantial breach by the other term, if
6.5 Pam. All fees will be due and payable in U.S. Dollars within 30
Pafrom the dale of invoice. However, for Customer orders
party of any material such
breach is not cured within 30 days following receipt of written notice of
breach from the non -breaching party.
requesting shipment and billing to a country whose currency is the
Euro, the fees may be paid in Euros for the amount set forth on
8.3
Effect of Termination on Other Membershi s. Any termination by You
Novell's invoice, provided Customer's MLA Order Form and purchase
order were issued in Euros.
or ova of Your membership will not terminate any other
memberships under the Program. Should a Prime Customer's
6.5.1L to Pa ants. Payments made later than the due date will accrue
Program membership become terminated, You agree that Novell may,
upon 30 days written notice, designate another Customer (ordinarily
int15 romthe date due to the date paid at the lesser of the rate of
12% per year or the highest rate allowed by applicable law. You agree
the one with the highest purchase history) to become the new Prime
Customer.
to pay reasonable costs and attorney's fees if Novell is required to
pursue collection against You.
8.4
Effect of Termination. Upon termination of this Agreement for any
6.6 Taxes. The MLA fees are exclusive of all applicable taxes. You will pay
—Bear the liability
reason, a ng s o copy the Software and to use or acquire Master
Software will immediately terminate, except as provided in section
an for taxes associated with MLA deliverables,
includingsales, use, excise, and added value taxes but excluding. (a))
taxes bsed upon Novell's net income, capital, or receipts, or
13.1.2 below. However, unless Your membership is terminated by
reason of Your violation of Novell's intellectual pro arty rights, Your
right to to
gross (b)
any withholding taxes imposed if such withholding tax is allowed as a
continue use any perpetual licenses will not be affected,
except as explained in Section 8.5 below.
credit against income taxes of Novell such as a withholding tax on a
royally pa ment made b You where such withholding is required by
law. In the event You are required to withhold taxes, You will furnish
8.5
Transition to Ste_ndard Licenses Upon termination of this Agreement,
Novell the
Novell all required receipts and documentation substantiating such
reserves rig to o replace any licenses obtained under this
Agreement with standard licenses (those available to Novell's non-
peyment. If Novell is required by law to remit any tax or duty on Your
behalf or for Your account u on delivery, You agree to reimburse
contract customers). Following termination, You will only be licensed
on the then -current, standard license model for that Software and for
Novell within 30 days after IJovell notifies You in writing of such
remittance. You will provide Novell with valid tax exemption certificates
In advance of any remittance otherwise re uired to be made by Novell
on Your behalf or for Your account
the number of licenses specified by Novell which provide You
equivalent functionalit . Such standard licenses will be governed by
the then -current standard EULA for that pproduct. You may continue to
where such certificates are
applicable.
use Master Software but must (for NetWare and other products
specified by Novell) install limited user license certificates to authorize
Your continued use of such products and thereafter remove from Your
7. RECORD -KEEPING AND AUDIT.
systems any unlimited user licenses obtained under the Program.
Your for this
7.7 elf -Audits. As part of the Program and to help You manage Your
Novell Software,
costs transition will be any reasonable media and
shipping costs incurred by Novell.
icenses o You agree to pertorm a self -audit at the
end of each Annual Period and at the end of Your in the
9.
INTELLECTUAL
participation
Program. The self -audit must identify (a) all Software coping and use
subject to a license, (b) the number of licenses of Software
9.1
PROPERTY INDEMNIFICATION.
Novell defend
and
Maintenance purchased, and (c) whether You have paid for all
Software licenses Maintenance
will any claim brought against You to the extent it is
based on an allegation that a Novell Software PProduct or service
copied or used and all due. The
report will be made in the on-line self -audit tool or on the self audit
deliverable infringes a thirdnrtRy ppatent or copyright of the country in
which You take delivery of the SDitwam or deliverable. Novell will pay
form made available by Novell and must be provided to Novell on the
last day of each Annual Period and within 30 days after termination of
any damages, costs, and expenses finally awarded or agreed to by
settlement) for any such claim. You must notify Novell the
this Agreement. If Your self -audit Information shows that You have
oopled or are using Software for You
promptly of
claim, ggive Novell control of the defense and related settlement
which are not licensed, You must
submit to Novell a purchase order for the licenses and Maintenance,
and provide a copy of the purchase order to Novell at the same time
negotiations, and provide Novell with the reasonable assistance (for
which Novell shall pay Your reasonable out-of-pocket costs) in
defending the claim. If You desire legal
You submit the self -audit information to Novell. It is Your responsibility
separate representation in any
such action, You will be responsible for the fees
to provide the report without notice from Novell. If You are late in
costs and of Your
separate counsel.
submitting a self -audit, Novell may data y accepting orders, suspend
technical support and/or eliminate any volume or discount
9.2
If Novell
program on
future orders until it receives the late report.
a Software product or service Deliverable is held to infringge
and its use is prohibited or if in Novell's reasonable opinion, is likely l0
become the subject of an infringement claim, You will permit Novell, at
MLA 6.1a (October 2003) 419
Novell's option and expense, to (a) procure for you the right to continue
to use the Software or deliverable, or (b) replace or modify it so that it
becomes non -infringing and has the same or additional functionality
and comparable or improved performance characteristics, or (c) upon
Your return of the infringing Software or deliverable, refund to You the
amount paid for the Software or deliverable.
9.3 Novell will not be liable for infringement to the extent the infringement
results from (a) Novell's compliance with Your designs, specifications
or instructions, (b) use of other than the Software's current release, if
the infringement would have been avoided by use of the current
release and if the infringement occurs more than 90 days after Novell
notifies You that a �rewous release may infringe, (c) a modification of
the Software or deliverable not requested or authorized in writing by
Novell, (d) its use or combination with non -Novell software, equipment,
or data, other than as specified in the Documentation or otherwise
approveI by Novell in writing, (e) the furnishing to You of any
information, service, or technical support b a third party, (f) third party
software provided under this Agreement, �g) open source technology
incorporated in or provided with Novell So are, or (h) non -licensed
use of the Software or deliverable.
9.4 Indemnification Limitation. To the extent allowed by applicable law,
Novell's liatrility under this section 9 is limited to the greater of three (3)
times the amount You pay for the license or service giving rise to the
claim, or US$200,000. This limit does not apply to expenses incurred
by Novell in defending a claim referred to in section 9.. This section 9
slates the exclusive obligation of Novell to Customer regarding any
claim of infringement or misappropriation of any third party's
intellectual property rights.
10. LIMITED WARRANTY,
10.1 Software. Novell warrants that the Software will conform substantially
of the specifcations in the Documentation, provided: (a) the Software
is not modified byy anyone other than Novell, unless authorized by
Novell in writing; (b) You notify Novell in writing of the nonconformity
within 90 days after license purchase; and (c) the Software is installed
in a cem atible environment. In this section, "conform substantially"
means tat the Software conforms to the vast majority of all
specificetions in the Documentation. Novell's only obligation under this
warranty, at its option, is to either cause the Software to conform
substantially with its specifications or to refund to You the amount paid
to license such Software upon Your return of all the Software. In the
event of a refund, Your license to use the Software will automatically
expire.
LOSS OF BUSINESS, LOSS OF PROFITS AND LOSS OF USE OF
DATA) RELATED TO OR ARISING OUT OF THIS AGREEMENT OR
THE PROVISION OR DEFAULT OF PROVISION OF ANY SERVICES
BY NOVELL OR ANY OTHER DELIVERABLE, EVEN IF NOVELL
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Dire t D ma e . Novell's liability for damages of any type arising out
0 or re ate o t is Agreement shall be limited to the greater of two (2)
times the actual amounts paid by You for the licenses or
service/deliverable in question, or US$100,000. This subsection 11.2
does not apply to Novell's liability for intellectual property
indemnification described in section 9, nor does it apply to any
damages for personal injury or tangible property caused by the
negligence or willful default of Novell.
11.3 Customer Liabilit . TO THE EXTENT ALLOWED BY APPLICABLE
NOT BE LIABLE TO NOVELL FOR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE
(INCLUDING LOSS OF PROFITS, BUSINESS, OR DATA),
WHETHER IN AN ACTION ARISING OUT OF BREACH OF
WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, THIS SECTION DOES NOT
APPLY TO VIOLATIONS BY YOU OF NOVELL'S INTELLECTUAL
PROPERTY RIGHTS.
12. GENERAL.
12.1 Choice of Law. The Agreement will be governed by the substantive
ws ao t e tate of Utah without regard to its choice of law provisions,
unless the laws of the state, province, or country of Your domicile
require otherwise, in which case the laws so required will govern.
12.1.1 However, as to a Customer that has its principal residence in (a) a
member state of the European Union or (b) a member state o the
European Free Trade Association or (c) the Republic of South
Africa or Poland, the governing law is that of the country of that
Customer's principal residence. For a Customer with principal
residence in any other country in Europe the applicable law will be
the law of the Federal Republic of Germany. For a Customer with
principal residence in the Middle -East or Africa (except South
Africa), the applicable law will be the law of England. To the extent
allowed by applicable law, the terms of the United Nations
Convention on the International Sale of Goods will not apply, even
where adopted as part of the domestic law of the country whose law
governs the relationship.
10.2 I nd Do mentation. Novell warrants that if either the media or 12.1.2 Each party will, at its own expense, comply with any applicable law,
t e ocumentation provided by Novell is in a damaged or physically statute, administrative order or regulation. An action at law under
defective i
condition at the time of delivery to You and if it s returned to this Agreement may only be brought before a court of appropriate
Novell (postage prepaid) within 90 days of delivery, Novell will provide jurisdiction in the state whose law governs this Agreement under
You replacements at no charge. the terms of this Section 12.1. If a party initiates legal proceedings
related to this Agreement, the prevailing party will be entitled o
10.3 Beta Software. Any beta Software is provided to You "AS IS" without recover reasonable attorney's fees.
any warranry—You acknowledge that such Software has not been fully
tested and may contain erors and bugs. You must determine the 12.2 AAssignm�ent. Neither party may transfer or assign any right or
suitability of the use of such Software for any purpose. Use of beta o ibl'ga0on set forth in this Agreement without the prior written consent
Software must be restricted to lest environments only. Novell does not of the other. Neither party will unreasonably withhold or delay its
guarantee that a commercial version of the Software or that associated consent to an assignment of the Agreement to the parent company or
products will be released. Novell will have no obligation to provide a subsidiary of the other ppartyy. Either party may, with written notice to
support for beta Software. the other party, assign theAgreement to the surviving entity in the
case of a merger or acquisition.
10.4 Services. Novell warrants that any optional services purchased under
sectonof the Agreement will be supplied in a professional manner in 12.3
accordance with generally accepted industry standards. As files may
be altered or damaged in the course of Novell providing technical
services, You agree io take appropriate measures to isolate and back
up Your systems. This warranty will be effective for 90 days following
acceptance of the services. Upon any breach of this warranty, Novell's
obliga0onr at Its option, is to either correct the services so that they
comply with this warranty or refund the amount You paid to Novell for
the services.
10.5 Non -Nov 11 Products. Novell does not warrant non -Novell products.
ny su pr u s are provided on an "AS IS" basis. Any technical or
warranty service for non -Novell products is provided by the product
manufacturer in accordance with any applicable manufacturer's
warranty.
10.6
11. LIABILITY LIMITATIONS.
11.1 Indirect Damages, TO THE EXTENT ALLOWED BY APPLICABLE
ILL NOT BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
WHETHER UNDER CONTRACT OR IN TORT (INCLUDING, BUT
NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS,
receiving party of
i care to protect an,
osure or use. The ri
lents by way of policy or agreement that they are bound by
mtiality obligations. "Confidential Information" means the terms
Agree,menf and any other information that (i) if disclosed in
s formis marked in writing as confidential, or (li) if disclosed
Drvisually, is designated orally at the lime of disclosure as
ential." Confidential Information will not include information (a
r in the receiving partys possession without obligation 0
1
ince; or (b) independently developed by the receiving party; or
: becomes available to the general publicwithout breach of this
nent; or (d) righffully received by the receiving pertfrom a third
without obligation of confidence; or (a) released for disclosure
disclosing party with its written consent; or (f) required to be
ad by law, regulation, or court order. These confidentiality
ions will survive three (3) years after expiration or termination
Agreement. Novell retains the right to use its knowledge and
:nce (including processes, ideas, and techniques) learned or
ped in the course of providing any services to You,
12.4 _P blilici�t . You agree that Novell may use Your participation in the
roP gram as a commercial reference and for direct marketing
purposes unless You otherwise inform Novell in writing.
12.5 Entire Agreement-, This Agreement sets forth the entire agreement
inn
n ud nderstanding between the parties as to its subject master. This
Agreement supersedes all prior and contemporaneous agreements,
proposals and statements on this subject matter. Except as otherwise
stated herein this Agreement may only be modified in a writing
signed by authorized representatives of each party. Purchase order
terms will not modify the Agreement unless the parties agree
otherwise in writing.
MLA 6.1a (October 2003) 5/9
12.6 Sevens ilitv/Waiver. If a provision is invalid or unenforceable, the
remaining provisions will remain in effect and the parties will amend 13.1.5 Customer Contacts. You must identify on the Application Form the
the Agreement to reflect the original agreement to the maximum contactcontact i�ion of each of Your Premium Services contacts.
extent possible. No waiver of any contreclual right will be effective
unless in writing by an authorized representative of the waiving party. 13.2 Inst Iled Bas Your installed base (Novell Software licenses
No waiver of a right arising from any breach or failure to perform will avai a e un Mr the Program which You purchased outside the
be deemed a waiver of any future right. Program) must be transitioned into the Program (be licensed under
this Agreement at the product's most current version and receive
12.7 Notices. Notices to a party must be in writing and sent to the party's Maintenance) through the purchase of Maintenance for the
sc r� on the Application Form or such other address as a party licenses, unless expressly allowed otherwise by Novell. You will pay
may provide in writing. This includes e-mail notices, which must be Maintenance fees for products so lransitioned for as long as this
sent to the e-mail address given in the Application Form or a Agreement remains in effect. To transition licenses that are not at
replacement address subsequently provided in writing. Notices may the current product version, You must upgrade, at the discounted
be delivered in a format reasonably chosen by the notifying party. Upgrade price, the licenses to the current version before purchasing
12.8 Force Me'eure. Neither party will be liable for delay or failure to
pe orm at arises out of causes beyond the reasonable control and 13.3
without the fault or negligence of such party. A party will give prompt
notice of any condition likely to cause any delay or default.
12.9 Survival. The provisions of this Agreement, which by their nature
ex—fendbeyond termination of the Agreement, will survive termination
of the Agreement.
12.101ntellectual looertv Riehts/Remedies. Nothing in this Agreement
wawes or limits extra -cow no a or remedies available to
Novell to protect its rights in the Software, including those available
under U.S. copyright law, international treaties, or national copyright 13.4
and intellectual property laws of the countries in which You may use
the Software.
12.11 Export Compliance. Any person or entity exporting or re-exporting
with the U.S. Wort Administ
countries. Novell assumes no
to obtain any necessary expc
upon an item's technical than
as o
v be
more information on exporting woven poi
copy from htt wv ://wwnovell.com/info/ex
Your local owe 07,
ice
13. MAINTENANCE SERVICES
13.1 A fundamental purpose of the Program is
to the most current Software revision and
Services. Accordingly, the Maintenance
section (the provision of Upgrades, Upd,
are a mandatory part of all Software li
under the Program, and discounted Maint
such services on all Software licenses fc
remains in effect. Unless otherwise porn
not permitted to cease paying Maintenanc
license, nor reduce the license count on
paid. During the period for which Maintc
Novell will provide You with the following 1
13.1.1 Upgrades and Updates. If Novell _ i
available to You within a reasoi
become commercially available. T
You will need to subscribe, at no
notification service
any means, including
)ing so in accordance
s and the laws of host
liability for Your failure
xovals are dependent
slination, end -use and
I user. Specifically, no
or otherwise restricted
ureau of Industry and
Orderin Maintenance. The discounted Maintenance fee will be
ca cu a e on an annual basis and paid annually in advance, each
Maintenance period expiring at the end of each Annual Period, no
matter when during such Annual Period the Maintenance was
ppurchased. The initial discounted Maintenance fee for a license will
be calculated from the first day of the month following the earlier of:
(a) submission of the order form, or (b) making of a Software copy,
through the end of the then -current Annual Period. If Maintenance is
not purchased upon renewal of this Agreement, Your discount will
be reduced to the level offered by Novell to non -MLA customers.
Ongoing Maintenance. Once the initial Maintenance is purchased
Tor a license, or each subsequent Annual Period during this
Agreement, You must order Maintenance on all product licenses by
the start of the new Annual Period and pay the applicable
discounted Maintenance fee. If You have not submitted an order for
the Maintenance within thirty (30) days after the beginning, of a new
Annual Period this Anreement will serve as Your authorization to
)f an order for Maintenance does not suggest No
i the accuracy of the quantity, of Maintenance set
or otherwise waive Novell's rights to enforce its i
other sources before 13.5 O tional Full -Term Pa ment. You may elect
amiliarize yourself with aintenance or a u arm, rather than on an an
orting Novell products. described above. In such event, Your discounted Mai
idier termination of this will be calculated through the end of the current Term.
for Novell products for
You can download a 13.6 Refunds. If this Aggreement is terminated because of
or obtain a copy from under section 8.2 above, Novell will refund a
Maintenance fees paid for the time period past the
month following the termination dale., Maintenance
refundable unless expressly stated otherwise.
Main
an
1 for a
a licens
raises
ered t
id/or I
me aft
and U
vell's f
be enl
the nu
s or uppates wni
such Upgrades or
13.1.2 Ri hts on Termin tion. Following termination of Your Agreement
r any reason excep termination by Novell for Your breach under
section 8.2 above), You may continue to install Upgrades and
Updates of Software to which You were entitled but did not actually
install during the period of Maintenance, up to the number of
licenses for which You purchased Maintenance.
13.1.3 1 rade Res ricti LLiis. Use of Upgrades is subject to the restrictions
TfFe provided with the Upgrade, which provides, among
other things, that an Upgrade license replaces the license on which
the Upgrade is based.
to purchase
nual basis as
fees
Novell's breach
discounted
first day of the
fees are not
14. DELIVERY
14.1 Delivery Terms.
14.1.1 For delivery from the U.S. to destinations within the U.S.A.,
delivery terms are FOB Novell's Dock (INCOTERMS 2000). Novell
will ship around only and prepay freight from Novell's Dock to
Customers forwarder or named destination. All other freight
arrangements will be billed to You.
14.1.2 For delivery from the U.S. to destinations outside the U.S.A.,
delivery terms are DDU-POE ((Delivery Duly Unpaid - Port of
Entry) as defined in INCOTERMS 2000. Novell will select a carrier
and will prepay shipping and handling charges. You will be
responsible for all applicable import duties and value added tax,
goods and services lax, or other similar taxes and fees.
14.1.3 For delivery within Europe, the Middle -East and Africa ("EMEA ),
delivery terms will be Camagge Paid To (C.P.T.) Destination, as
defined in INCOTERMS 200, . Novell will select a carrier, prepay
the freight and invoice You for freight and any handling costs.
Destinations for E.U. countries will be Your nominated delivery
point; for non-E.U. countries, destination will be the point of import
The term C.P.T. does not include the payment by Novell of taxes
or any applicable import duties.
14.2
13.1.4 Premium Services. Novell will provide to Customers Premium 14.3 Fulfillment A ant. At Novell's discretion, You may designate a
ervlces as escn ed in the then -current Premium Service Guide. u merit gent (up to a total of 5 for all Customers under the
The level of Premium Services to which Customers are entitled Agreement and no more than 1 per Customer ordering location that
during an Annual Period under this Agreement is determined on the has signed an Application Form) to assist You in fulfillment, by
basis of the accumulated discounted Maintenance fees paid by all executing the .then -current Fulfillment Agent Addendum with Novell
Customers for that Annual Period. You may upgrade that level of and a reseller accepted by Novell.
service to suit Your needs by purchasing optional technical support
services as provided in section 5.1 above.
MLA 6.1a (October 2003) 6/9
MLA Order Form (continued) MLA Customer: City of Fort Collins - IT Department Page _of_
If purchasing Maintenance for licenses acquired outside of the MLA, please list this purchase separately with an explanation on a different MLA Order From.
Please refer to the current month's MLA Price List for part numbers and pricing. Use additional pages if necessary. Price Lists and Order Forms are also available at
www.nuven.wumiuensm nw.nnn,. n
Product License and Services
Part Number
Quantity
List Price
Discounted Price
Extended License Price
Extended Maintenance Price
Maintenance Dates
Product Name:
License
LIC-002466-001
2,340
$142.00
$68.16
Example: $159, 494.40
Beginning End
Example Product
Maintenance'
MNT-002466-001
2,340
$29.80
$14.30
Example: $33,471.36
11/01/03 07/31/04
Product Name:
License
Beginning End
GroupWise 6.5
User Based Lic.
Maintenance
MNT-005584-
O1 165C
33.00
19.14
31,581.00
11/1/03 10/31/04
Product Name:
License
Beginning End
Maintenance'
Product Name:
License
Beginning End
Maintenance'
Product Name:
License
Beginning End
Maintenance'
Maintenance is required for all Licenses under the MLA.
Product Software Media and Services"
Part Number
Quantity
List Price
Discounted
Pden'�
Extended Price
Product:
Product:
Product:
Product:
Note: MLA discount does not apply to product media or optional Services. Dismounts on services vary. See price list for specific details.
Comments;
License Total:
Maintenance Total:
Media / Services Total:
Order Grand Total:
Order Summary
MLA Order Form (Product Licenses, Media, Maintenance, and Services)
(Required) Installation Location (required):
Customer Name on MLA:
MLA Contract #:
MLA Discount %:
Purchase Order # (required):_
Novell Sales Order # (completed by
This order is for (check appropriate boxes)
[ ] License and Maintenance Purchases [ ] Purchase and Shipment of Master Disks
[ ] Maintenance purchases for licenses purchased outside of the MLA
Ship To Information (required):
Street Addi
City, State,
Ordering Location (if different than Ship To address):
Street Addi
City, State,
Invoice To Information (required):
City, State,
E-mail:
E-mail:
Purchasing Agent Contact (required)
E-mail:
Local Novell Account Representative (required)
E-mail:
CUSTOMER SIGNATURE (required)
For MLA purchases: By signing below, Customer certifies that it has read and understands the
Master License Agreement ("MLA") to which this MLA Order Form applies, and agrees to be
bound by its terms. Customer is [ ] the party that signed the MLA, or a [ ] parent company [ ]
Subsidiary [ ] Affiliate (check applicable box) of the party that signed the MLA.
For Government GLA purchases: By signing below, Customer certifies that it has read and
understands the Government License Agreement ("GLA") to which this MLA Order Form
applies, and agrees to be bound by its terms. Customer is [ ] the party that signed the GLA, or [
] a department, agency, or organization (check applicable box) of such party.
Signature _
Print Name
Title
Dale
To order, send completed and signed MLA Order Form and/or purchase order to:
MLA Order Management, Novell, Inc. 1800 South Novell Place, M/S PRV-C-231
Provo, Utah 84606 USA., Fax: 801-861-5625
Please Note: Illegible or incomplete orders cannot be processed and will be returned
Premium Service Contacts (Required if ordering Premium Services)
Customer Information:
Customer Name on Contract: Contract
Address:
City, State, Zip:
Company Location is: [ ] Prime Customer [ j Subsidiary / Affiliate
Premium Service entitlement information can be found at htto://www.novell.com/services/premium/.
Support Contacts (Please identify the appropriate Support Contacts below. If additional space is required, attach
additional copies of this Schedule. Please Note: Customer's Contract Coordinator assumes the responsibility to coordinate
the allocation and distribution of contacts, incidents, and support kits among the participating Customer entities. The primary
contact may notify us of changes of contacts should your organization change. Premium Service will not accept support
calls from Individuals not named below.)
If you would like to speak to a Premium Service Representative, please call 800-453-1267 x19010.
Contact #1 "Primary Contact'
Premium Service Deliverables Recipient
Name
Title
Division
Address
City
State
ZIP
Phone Number
Fax Number
E-mail Address
Contact #3
Name
Title
Division
Address
City
State
ZIP
Phone Number
Fax Number
E-mail Address
Contact #2
Name
Title
Division
Address
City
State
ZIP
Phone Number
Fax Number
E-mail Address
Contact #4
Name
Title
Division
Address
City
State
ZIP
Phone Number
Fax Number
E-mail Address