HomeMy WebLinkAbout610826 DOBLE ENGINEERING COMPANY - CONTRACT - SOLE SOURCE - DOBLE ENGINEERING COMPANYv.1302018
END USER LICENSE AGREEMENT
DO NOT USE OR LOAD THIS SOFTWARE UNTIL YOU HAVE CAREFULLY READ
THE FOLLOWING TERMS AND CONDITIONS. BY LOADING OR USING THE
SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO
NOT WISH TO SO AGREE, DO NOT INSTALL OR USE THE SOFTWARE.
This End User License Agreement (hereinafter referred to as the “Agreement” or “EULA”) has
been presented to User in conjunction with User’s attempt to use, try out, or install a computer
program composed of a number of computer files, including but not limited to executables,
knowledge files, data, slave files, and other supporting files (collectively “Software.”) Doble
Engineering Company, its divisions, subsidiaries, and other affiliates (collectively referred to
herein as “Doble” or the "Licensor") is the developer of and the exclusive source and owner of
this Software. Licensor provides this Software and other products like it to be used exclusively
by authorized Licensees. Licensee herein has purchased or leased this Software directly from
Licensor. Licensee has been made aware of and offered an opportunity prior to purchase or
lease of the Software to review the terms of this Agreement. Licensee assumes all responsibility
for the selection of the Software to achieve the Licensee's intended results, and for the
installation, use, and results obtained from the Software.
1. DEFINITIONS
The following terms, when used in this Agreement, have the following meanings:
1.1 Authorized Facilities mean (a) Licensee’s primary location as identified in
Exhibit D where the Software may be located and operated (“Primary License
Facility”) and (b) Licensee’s back-up location, as identified in Appendix A in the
event of a failure of the Primary License Facility (“Emergency Back-up
Facility”).
1.2 Authorized Use means Licensee’s limited use of the Software or the outputs and
results derived therefrom in whatever form specified.
1.3 Business Days means any weekday other than a day designated as a federal
holiday.
1.4 Confidential Information means the, the Software and all of the software code
(including, but not limited to, any third party software licensed with the
Software), Documentation, and any trade secrets, concepts, ideas, improvements,
processes, plans, designs, specifications, architecture, database tables and
structures, prototypes, models, methods, processes, algorithms, data bases, and all
other business operational, financial and Licensee information, whether patentable
or not, that is (a) provided, developed, conceived or in any way disclosed by
either Party.
1.5 Content means any information, business data, and any other materials provided
by Licensee and entered into and processed by the licensed Software.
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1.6 Documentation means any and all manuals, written documents, or embedded
documentation, whether original, complete or partial copies, in electronic or paper
form, provided by Licensor related to the Software, including but not limited to
Product Manuals, training materials, requirements, specifications, release notes,
and any other correspondence related to the installation and implementation of the
Software.
1.7 EULA means this Doble End User License Agreement, and all attachments and
exhibits thereto.
1.8 Environment means the hardware, LAN, VPN and all third party operating and
database systems, as specified in Exhibit E that are required to run and utilize the
Software including network applications, database servers, and the computer
processor unit or workstation used to operate, gain access to or view the Software
or any outputs and results therefrom linked thereto.
1.9 Intellectual Property Rights means all patents, trademarks, service marks,
registered designs, applications for any of the foregoing, trade and business
names, unregistered trademarks and service marks, including goodwill in relation
to the foregoing, Know-how, copyright, database rights, rights in designs
(whether registerable or not), inventions, rights under licenses and consents in
relation to any such rights and rights of the same or similar effect or nature that
may be granted or recognized under United States, Canadian, or other foreign
legislation in any part of the world.
1.10 Know-how means the trade secrets, processes, techniques and methods of
working, all of a secret, confidential or proprietary nature which have been or are
being developed by either party and including without limitation all scientific,
engineering, information, expertise and manufacturing design and software
specifications designs or codes (whether object code or source code) in or to the
Materials.
1.11 Licensee means an entity that is granted a license to use the Software pursuant to
a transaction involving the purchase or lease of such Software from Licensor or
from a Licensor authorized dealer.
1.12 Licensor has the meaning assigned to it in the first paragraph of this Agreement.
1.13 Master Agreement means the document or set of documents which originate
from Licensor and which contain the material business terms upon which
Licensee purchases or leases the Software. The Master Agreement specifically
excludes any documents which do not originate from or are signed by Licensor
and specifically excludes any terms and conditions which may be attached to a
purchase order originating from Licensee.
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1.14 Materials means the Software and the Documentation.
1.15 Modifications includes any translation, abridgement, condensation, retrenchment,
revision, correction, improvement, enhancement, customization, expansion,
addition, update, upgrade, or other modification to the Materials.
1.16 MS means Morgan Schaffer.
1.17 Open Source Software or “OSS” means computer software components with its
source code made available and licensed with an open-source license in which the
copyright holder provides the rights to study, change, and distribute such software
components for free to anyone and for any purpose. To the extent not expressly
restricted or reserved by the applicable OSS license, OSS as used herein does not
include any derivate works developed by Licensor.
1.18 Permitted User shall be limited to Licensee’s employees and agents.
1.19 Product Manuals mean the user guides and manuals for use of the Software.
1.20 Significant Defect is any reproducible and verifiable material error, defect,
bug, virus, design flaw or other malfunction (taking into account the severity and
technical difficulty in fixing the same) in the Software, which result from causes
within Doble’s reasonable control and which have not resulted from the
inoperability, incompatibility, action or inaction when reasonably required under
the circumstances, of material supplied by Licensee
1.21 Software has the meaning assigned to it in the first paragraph of this Agreement,
and as further defined in the applicable Exhibit. Specifically with regard to
InsideView DGA Diagnostics
TM
, this excludes any OSS, but includes all
Modifications to such software which may be provided to the User by Doble at
any time.
1.22 Source Code means a copy of the source code version of all parts of the Software
in human-readable form and in machine-readable form on machine-readable
storage medium and which, when compiled, will produce the object code version
of the Software.
1.23 TAL means a license key provided by Doble to the User that enables the User to
activate and access certain functionalities of the Software for use with one
specific piece of equipment of the User. Solely with regard to TAL, Use means to
access, install, download, execute, copy, or otherwise benefit from using those
functionalities of the Software as set forth in the TAL.
1.24 Territory shall mean worldwide usage, subject to any restrictions on Territory
expressly stated on the face of the applicable purchase order, or in the applicable
software license agreement, as the case may be.
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1.25 Third Party Resource means a third party engaged by Licensee to integrate the
Software into the Licensee’s business.
1.26 User means any person who is authorized by Licensee to access or use the
Materials.
2. INTELLECTUAL PROPERTY RIGHTS.
2.1 ENOSERV RTS®, ENOSERV PowerBase® Series, DTAWeb, Protection Suite,
and Insideview DGA Diagnostics
TM
(herein collectively referred to as
“Software”) are proprietary products of Licensor and are protected by patent,
copyright, trademark, trade dress, trade secret, and/or other intellectual property
laws and international treaty. As between Licensee and Licensor, Licensee agrees
that Licensor is the sole and exclusive owner of the Software and Documentation
and the intellectual property represented thereby or contained therein.
2.2 Licensor or its suppliers retain ownership of the Materials, and any copies thereof,
and all related Intellectual Property Rights, including, without limitation, all rights
to any images, photographs, animations, videos, audio, text and "applets"
incorporated into the Materials.
2.3 Licensee and User are not permitted to create any modifications to or derivative
works based upon any portion of the Materials, unless such modification or
derivative work has been expressly authorized by the Licensor in writing.
2.4 The Materials, including without limitation, the structure, organization, user
interface, user experience, and code of the Software, contain information and
valuable trade secrets that are not generally known to the public. Licensee and
User will treat as confidential and preserve the confidentiality of the Materials and
will not disclose any portion of the Materials to any third party. The foregoing
obligation does not apply to any information that: (a) was already in Licensee’s
possession prior to acquiring any copy of the Materials, as shown by documentary
evidence; (b) is or becomes publicly available through no fault of Licensee; (c) is
obtained by Licensee from a third person who through no inducement by Licensee
and without breach by such third person of an obligation of confidence has
obtained and disclosed such to Licensee, or (d) materials identified or described
within the scope of an open-records request or regulatory audit (see Sec. 3.3)).
Information will not be deemed to be within the foregoing exceptions merely
because it is: (i) embraced by more general information in the public domain or in
the possession of the party receiving such information, or (ii) a combination of
individual items of information that could be pieced together to reconstruct such
combination from non-confidential information.
2.5 Licensee agrees to secure and protect the proprietary rights of Licensor in the
Materials and all copies thereof (in whatever form), and to take appropriate action
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to secure and protect same by instruction to, or agreement with its Users who are
permitted access to the Materials. Licensee will not take any action which
adversely affects Licensor’s Intellectual Property Rights or other proprietary
rights in the Materials.
2.6 If Licensee plans to utilize the services of a Third Party Resource in connection
with the implementation of the Materials in the Licensee’s business, prior to
disclosing the Materials or any portion thereof to such Third Party Resource,
Licensee will require that such Third Party Resource enter into a written non-
disclosure agreement containing terms at least as restrictive as those set forth in
this Agreement with regard to maintaining the confidentiality of the Materials.
2.7 Open Source Software. In the event that the Software contains any OSS, this
EULA is provided to the Licensee inclusive of the applicable OSS license(s),
which are incorporated herein by reference. Licensee’s use of such software shall
be additionally and expressly subject to the terms and conditions of the applicable
OSS. Licensee may view the terms of the OSS at
https://www.doble.com/privacy-policy-legal-disclosures/doble-software-
information-resources/, or contact Doble for additional information.
3. CONFIDENTIALITY.
3.1 Licensor and Licensee may have a proprietary interest in certain Confidential
Information furnished to each other pursuant to this Agreement. Licensee and
Licensor shall keep in confidence and shall not disclose, without prior written
consent of the other party, any such Confidential Information of the other party,
provided it is identifiable in writing as Confidential Information, or if as a written
follow-up to any oral disclosure by one party to the other that the subject matter
disclosed was Confidential.
3.2 Licensor and the Licensee shall protect each other’s Confidential Information
with at least the same degree of care and confidentiality, but not less than a
reasonable standard of care, which the receiving party utilizes for its own
confidential information.
3.3 No party bears a responsibility for safeguarding information that is a) publicly
available, b) demonstrably already in the receiving party’s possession prior such
receipt, c) obtained by either party from third parties not under a duty of
nondisclosure, d) independently developed by either party without reference to
the Confidential Information, or e) required to be disclosed by order of a court or
other governmental entity, or per applicable law, including public disclosure law.
If either party is so requested or required to disclose any Confidential
Information, the party receiving the request will provide the other party with
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prompt notice of such request. Under no circumstances will either party have any
responsibility or obligation whatsoever to initiate, defend against or otherwise
cooperate or participate in any such action, claim, suit, arbitration or proceeding
relating to the Confidential Information.
3.4 In the event either party knows or should reasonably know that any third party has
gained unauthorized access to the Software, Documentation, or other Confidential
Information hereunder, the knowing party shall immediately notify the other party
in writing of the full particulars of such access or disclosure.
3.5 Upon the written request of a party, and in any event upon termination of the
Agreement, each party, shall, at the request of the other, either return all of the
Confidential Information of the other party in its possession, including all
originals, copies and records thereof, or furnish to the requesting party an officer’s
certificate of destruction of the other party’s Confidential Information.
Notwithstanding the aforementioned, Licensor shall be allowed to retain certain
Licensee testing data solely for Licensor’s internal, anonymized, and aggregated
analysis purposes.
3.6 In the event that disclosure of a party’s Confidential Information occurs or is
threatened, the other party will be entitled (in addition to any and all other
remedies) to seek injunctive relief, specific performance and other equitable
remedies upon posting a bond or other security.
4. PRIVACY POLICY.
4.1 The Licensor continually seeks to improve its product offerings, and generally
improve the usage of the users of the Software. For that purpose, Licensor has
incorporated third party analytic tools (collectively referred to as “cookies”)
within the Software that tracks general user activities. These cookies are used to
store anonymous, non-personally identifiable information. The cookies are
utilized for the purpose of measuring general usage of the Software over time,
continuity of the Software, and anti-fraud and information security purposes.
4.2 Licensor does not share any information with third parties. Browser add-ons are
available to users who wish to opt-out of this data collection
(https://tools.google.com/dlpage/gaoptout), and users may also refer to the help
information in their browser software for instructions on how to disable the
cookies.
4.3 The internet protocol address of the electronic device accessing the software is
obfuscated in the communication sent to the server. In addition, the data collected
by the cookies is securely stored, remotely on a server in a secure warehouse.
The data is aggregated and presented meaningfully for use by the Licensor, and
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cannot be reverse engineered to access the identity of any one individual, entity,
product, and/or associated private data.
4.4 For the purposes of clarification and notwithstanding the provisions of this
section, Licensor’s Software, limited to ENOSERV RTS 7 and ENOSERV
PowerBase 7, does not utilize cookies.
5. U. S. GOVERNMENT END USERS.
5.1 The Materials are “commercial items” as that term is defined at 48 C.F.R. 2.101,
and if Software is licensed hereunder, the Software consists of “commercial
computer software” and “commercial computer software documentation” as such
terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire
the right to use and access the Materials with only those limited rights set forth
herein.
6. HIGH RISK ACTIVITY.
6.1 Licensee is solely responsible for the accuracy and adequacy of the Materials for
Licensee’s intended use. The Materials are not fault-tolerant and are not designed
or intended for use in hazardous environments requiring fail-safe performance,
including without limitation, in the direct operation of nuclear facilities, air or
space travel, power plant design or operation, communication systems, weapons
systems, life support or medical operations or machines, or any other application
in which the failure of the Materials could lead directly to death, personal injury,
or severe physical or property damage (collectively, "High Risk Activities").
Licensor expressly disclaims any express or implied warranty of fitness for High
Risk Activities and will have no liability for any such activities including, but not
limited to, not using ENOSERV-labeled RTS products in conjunction with testing
under load, which Licensor neither recommends nor condones.
7. EXPORT CONTROL.
7.1 The Materials are subject to the U.S. Export Administration Regulations,
Canadian export laws, as well as the comparable export laws of any and all other
nationality that may have jurisdiction over the transaction(s) contemplated by this
Agreement. Licensee and User may not export, import or transfer the Materials
contrary to U.S. or other applicable laws, whether directly or indirectly, and will
not cause, approve or otherwise facilitate others such as agents or any third parties
in doing so. Licensee and User agree not to use or transfer the Materials for end
use relating to any nuclear, chemical or biological weapons, or missile technology
unless authorized by the U.S. Government by regulation or specific license.
Additionally, Licensee and User acknowledge that the Materials are subject to
export control regulations in the European Union and Licensee and User hereby
declare and agree that the Materials will not be used for any other purpose than
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civil (non-military) purposes. The parties agree to cooperate with each other with
respect to any application for any required licenses and approvals, however,
Licensee acknowledges that it is its responsibility to comply with any and all
export and import laws and that Licensor has no responsibility within the original
country of sale. If the Software is identified as an export-controlled item under
the applicable export laws, Licensee represents and warrants that it is not a
citizen, or otherwise located within an embargoed nation, and that it is not
otherwise prohibited under the applicable export laws from receiving the
Software. All rights to use the Software are expressly contingent and conditioned
upon the previously stated representations and warranties, and a breach of the
same shall result in Licensee immediately forfeiting all such rights.
8. INDEMNIFICATION.
8.1 Infringement Claims. Licensor will indemnify and hold Licensee harmless and
will defend or settle any claim, suit or proceeding brought against Licensee that is
based upon a claim that the Software infringes the Intellectual Property Rights of
a third party ("Claim"), but only to the extent that such Claim arises directly out
of the use of the Software except for any infringement claim resulting from (a)
adherence to Licensee’s specifications, drawings or instructions; (b) a
combination of the Software with other equipment, software, or processes; (c)
modifications of the Software; or (d) Licensee’s willful, knowing or deliberate
infringement of any Intellectual Property Rights. In the excepted cases stated
above, Licensee will indemnify and hold Licensor harmless against any losses,
damages, liabilities, fines, penalties, and expenses (including reasonable
attorneys' fees), which may be incurred by Licensor as a result of such excepted
cases. Licensee must notify Licensor in writing of any Claim within ten (10)
business days after Licensee first receives notice of the Claim, and Licensee must
cooperate with Licensor as Licensor may reasonably request from time to time in
connection with the defense of the Claim. Licensor will have sole control over
any Claim (including, without limitation, the selection of counsel and the right to
settle on Licensee’s behalf on any terms Licensor deems desirable in the sole
exercise of its discretion). Licensee may, at Licensee’s sole cost, retain separate
counsel and participate in the defense or settlement negotiations. Licensor will
pay actual damages, costs, and legal fees awarded against Licensee (or payable by
Licensee pursuant to a settlement agreement) in connection with a Claim to the
extent such damages and costs are not reimbursed to Licensee by insurance or a
third party, to an aggregate maximum equal to 5 times Licensee’s purchase price
for the Software.
8.2 If the Software, any portion thereof, or the use thereof, becomes the subject of a
Claim or if use of the Software or any portion thereof is enjoined, or if in the
opinion of Licensor’s legal counsel the Software is likely to become the subject of
a Claim, Licensor may attempt to resolve the Claim by using commercially
reasonable efforts to modify the Software or obtain a license to continue using the
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Software. If in Licensor’s opinion the Claim, the injunction or potential Claim
cannot be resolved through reasonable modification or licensing, Licensor, at its
own election, may terminate this Agreement (including all rights granted
hereunder) without penalty, and refund to Licensee on a pro rata basis (calculated
over five years) any fees paid in advance by Licensee to Licensor. THE
FOREGOING OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2
CONSTITUTE LICENSOR’S SOLE AND EXCLUSIVE LIABILITY FOR
INTELLECTUAL PROPERTY INFRINGEMENT.
9. LIMITATION OF LIABILITY.
9.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT IS LICENSOR LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS)
ARISING OUT OF THE USE OF OR INABILITY TO USE THE MATERIALS
OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. LICENSOR’S ENTIRE LIABILITY UNDER ANY
PROVISION OF THIS AGREEMENT IS LIMITED TO FIVE TIMES THE
AMOUNT ACTUALLY PAID BY LICENSEE FOR THE MATERIALS.
Because some states and jurisdictions do not allow the exclusion or limitation of
liability, the above limitation may not apply to Licensee. In such states and
jurisdictions, Licensor’s liability is up to the maximum extent permitted by law.
10. FORCE MAJEURE.
10.1 Licensor will not be responsible for any failure in the performance of its
obligations under this Agreement to the extent that such failure is due to causes
beyond Licensor’s control including, but not limited to, acts of God, war, acts of
any government or agency thereof, fire, explosions, epidemics, quarantine
restrictions, strikes, delivery services, telecommunication providers, strikes, labor
difficulties, lockouts, embargoes, severe weather conditions, delay in
transportation, or delay of suppliers or subcontractors.
11. Contract Interpretation.
11.1 Captions; Section Number. Article, section and paragraph numbers and captions
are provided for convenience of reference and do not constitute a part of this
Agreement. Any reference to a particular Section of this Agreement shall be
deemed to include reference to any and all subsections thereof.
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11.2 Singular and Plural. The use herein of the singular number shall be deemed to
include the plural and vice versa, and the use hereof of the masculine shall be
deemed to mean the feminine or neuter and vice versa, wherever the sense of this
Agreement so requires.
12. Authority to Enter into Agreement. Each party warrants that it has all necessary
power and authority to enter into this Agreement.
13. Drafting. This Agreement shall be deemed to have been drafted by all parties, since
all parties have been assisted by their counsel in reviewing and agreeing thereto (or
have chosen not to be so assisted), and no ambiguity shall be resolved against any
party because of its participation in the drafting of this Agreement.
14. Notice. Any notice required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person, (b) sent by
first class certified mail, or air mail, as appropriate, (c) sent by overnight air courier,
in each case properly posted and fully prepaid to the appropriate address set forth
below, or (d) sent by email or similar electronic communication. Either party may
change its address for notice by notice to the other party given in accordance with this
section. Notices will be considered to have been given at the time of actual delivery
in person, certificate of confirmed receipt via mail as set forth above, one (1) day
after delivery to an overnight air courier service, or confirmed receipt of electronic
communication.
If to Licensor:
Doble Engineering Company
85 Walnut Street
Watertown, MA 02472
Attn: Jonathan O. Nilsen. Esq., Senior Counsel
If to Licensee:
City of Fort Collins
Attn: Glenn Travis .
PO Box 580
Fort Collins, CO 80522
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Copy to:
City of Fort Collins
Attn: Purchasing Dept
PO Box 580
Fort Collins, CO 80522
15. SEVERABILITY.
15.1 If any provision of this Agreement is found to be invalid or unenforceable by any
court, such provision will be ineffective only to the extent that it is in
contravention of applicable laws without invalidating the remaining provisions of
the Agreement.
16. ASSIGNMENT.
16.1 Neither this Agreement nor any interest in this Agreement may be assigned by
either party without the prior express written approval of the other party. Any
attempted assignment of rights in violation of this Agreement is void.
17. WAIVER.
17.1 All waivers under this Agreement must be in writing to be effective. No failure or
delay by a party to exercise any right it may have by reason of the default of the
other party will operate as a waiver of default or as a modification of this
Agreement or will prevent the exercise of any right of the non-defaulting party
under this Agreement.
18. GOVERNING LAW; DISPUTE RESOLUTION.
18.1 This Agreement and the privileges, responsibilities, obligations, and liabilities of
the parties shall be governed by laws of the state of Colorado, U.S.A. This
Agreement shall be deemed to have been entered into, wholly performed in, and
executed in the state of Colorado, without regard to any conflict of law principles.
The parties agree that the U.N. Convention for the Sale of Goods does not apply
to this Agreement. This Agreement must be interpreted solely in the English
language, and no translation into any foreign language will have any effect.
18.2 Upon any dispute, controversy or claim between the parties, either with respect to
the interpretation of any provisions of the Agreement, including, without
limitation, its formation, validity, binding effect, interpretation, performance,
breach or termination, or with respect to the performance of the parties under the
Agreement, as well as non-contractual claims related to this Agreement (a
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“Dispute”), at the request of either party, each of the parties will designate a
representative from its senior management who (to the extent practicable) does
not devote substantially all of his or her time to performance under the Agreement
to attempt to resolve such matter. The designated representatives will negotiate in
good faith in an effort to resolve the Dispute for a period of thirty (30) days after
the date of the notice of the Dispute. In the event that the parties’ designated
representatives are unable to resolve the Dispute within such thirty (30) day
period, or any additional extension of time that is mutually agreed upon by the
parties in writing, then either party may by written notice request arbitration in
accordance with the following provision.
18.3 Upon written notice from either party that a Dispute has not been settled
following the resolution process set forth above, then either Party may initiate
binding arbitration before the American Arbitration Association (“AAA”) in
accordance with AAA’s Commercial Arbitration Rules. The Parties will share
equally in the costs of the arbitration, including, but not limited to, the arbitrator’s
time charges and travel expenses. Each Party shall bear its own attorney’s fees
and costs related to the arbitration as well as any time charges or travel expenses
for its own personnel who attend the arbitration. The arbitrator(s) shall not award
any punitive, exemplary or consequential damages. The arbitration is to be
conducted in Denver, Colorado before one (1) arbitrator with at least ten years of
experience resolving international business disputes. The arbitrator shall provide
detailed written findings of fact and conclusions of law in support of any award.
Judgment upon any such award may be enforced in any court of competent
jurisdiction. Each party shall be limited to 5 depositions per side. Each party
shall only be allowed to advance a maximum of 5 witnesses in any such
proceeding. Upon initiating arbitration, the parties will enter into a scheduling
order with the arbitrator within one month. Thereafter discovery shall begin. The
arbitration will be concluded within 4 months. The arbitrator must agree to enter
the ruling within two months of the arbitration.
18.4 Notwithstanding the foregoing, Licensor may seek injunctive relief to enforce or
protect any of its intellectual property rights or any of its interests that may be
subject to irreparable harm in any court of competent jurisdiction without
reference to the arbitration proceedings set forth herein. Any such action or
proceeding arising from or relating to this Agreement may also be brought in a
federal court for the city of Denver, Colorado and each party irrevocably submits
and waives any objections to the jurisdiction and venue of any such court in any
such action or proceeding.
19. TAXES.
19.1 Prices do not include any federal, state, or local property, license, privilege, sales,
use, excise, import, export, transport, VAT, gross receipts, or other like taxes
which may now or hereafter be applicable (collectively referred to herein as
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“Taxes”). Customer shall be responsible for the payment of all such Taxes of any
nature whatsoever now or hereafter levied by any governmental authority
anywhere in the world. In the event that Customer and/or any of the Services are
considered tax-exempt, Customer shall provide to Doble a certificate of any such
tax-exempt status.
20. ENTIRE AGREEMENT.
20.1 This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof, and supersedes all other prior and contemporary
agreements, understandings, trade usage, courses of dealing, and commitments
between the parties regarding the subject matter of this Agreement. This
Agreement may not be modified or amended except by a written instrument
executed by the parties. In particular, any provisions, terms, or conditions
contained in Licensee-provided documents including without limitation any
purchase order issued by Licensee, that are in any way inconsistent with or in
addition to the terms and conditions of this Agreement will not be binding upon
Licensor.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth
above.
Doble Engineering Company Licensee
By
By
Name
Jonathan O. Nilsen, Esq.
Name Gerry Paul
Title
Senior Counsel and
Manager of Legal Affairs
Title Purchasing Director
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Exhibit A
ENOSERV RTS and ENOSERV Powerbase Software License Agreement
WHEREAS Doble is the developer of software related to system protection testing;
WHEREAS Licensee is desirous of licensing certain of Doble software according to the terms
set out herein and Doble is desirous of granting such license; and,
WHEREAS the parties agree that the license granted herein is perpetual, but subject to
cancellation as set out below, and allows Licensee to continue to use its then-current version of
the license software upon cessation of payment of Maintenance Service Fees, but that after such
cessation Licensee will no longer be entitled to upgrades or improvements.
NOW, THEREFORE, in consideration of the mutual promises and upon the terms and
conditions set forth below, the parties agree as follows:
1.0 DEFINITIONS
1.1 Capitalized terms used herein without definition shall have the meanings ascribed to
them in the body of the Agreement.
2.0 LICENSE GRANT
2.1 License. Subject to timely payment of the License Fees and for so long as Licensee
is not in material breach of the provisions contained herein, Licensor grants Licensee
a nonexclusive, perpetual (except as provided herein) right and license for the
Authorized use of the Software at the Authorized Facilities in the Territory in the
conduct of Licensee’s own internal business (the “License”, hereinafter).
2.1.1 The annual Maintenance Service Fee will be owed and due, on the
anniversary of the Effective Date (or on such other date as is mutually agreed
to by the parties) unless terminated before said date as is provided herein.
2.1.2 Subject to this Agreement, LICENSOR grants a limited license to use as many
copies of the Software as indicated on the attached LICENSOR invoice
(Number of licenses/Seats) on single-user computers or on
workstations/terminals of a local area network. Each copy of the Software on
a single-user computer or on a workstation/terminal of a local area network,
whether executing from memory or store on a hard disk or other storage
device, must be separately licensed. Any distribution to other persons or
companies outside Licensee is strictly forbidden. If the software package
contains more than one media type, Licensee is licensed to use only one of the
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media forms.
2.1.3 Licensee may not sub-license, rent, lease, or otherwise transfer the Software
to, or permit use by, a third party without prior written consent of
LICENSOR, such consent being granted in LICENSOR’s sole discretion.
Any attempted transfer in the absence of prior consent will be void ab initio
and will automatically terminate the license granted herein.
2.1.4 Subject to this Agreement, Licensee may copy the Software or parts thereof as
often as is reasonably necessary as part of a regularly scheduled incremental
or full system backup. Licensee may copy all or any part of the
Documentation as is reasonably necessary for its own internal use and in
furtherance of this Agreement, so long as all titles, trademark symbols,
copyright symbols and legends, and other proprietary markings are
reproduced exactly as they appear in the Documentation.
2.2 Restrictions. The rights granted in Section 2.1 are subject to the following
restrictions:
2.2.1 Licensee may not reverse engineer, disassemble, decompile, modify, translate
or otherwise attempt to derive any source code of the Software for any
purpose. Licensee may not disable, circumvent, or otherwise obscure any
notices that might be presented by the program during startup or otherwise.
Further, Licensee shall not commission, permit, or assist any other in doing
any of the foregoing.
2.2.2 Licensee may not sublicense or use the Software for commercial time-sharing,
rental, outsourcing, or service bureau use for the benefit of third parties. Use
by contractors is allowed only if the Software is installed and utilized on
computer equipment belonging to the Licensee for the sole benefit of Licensee
and is returned upon completion of said service.
2.2.3 Licensee may not make copies of the Software or Documentation except as
permitted by this agreement in Article 2.1.3.
2.2.4 Licensee may use the Software only on the operating system for which it was
designed. Use of the Software on an operating system other than that for
which the product was designed voids the product warranty set forth in this
agreement. Any use of the Software other than specified within this
Agreement is an unauthorized use, and such use voids the product warranty
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set forth in this agreement.
2.2.5 The License granted herein transfers neither title, nor any proprietary or
intellectual property rights to the Software, Documentation, or any copyrights,
patents, or trademarks, embodied or used in connection therewith.
2.2.6 Licensee is responsible for the acquisition, installation, configuration and
testing, at its own cost and expense; (a) of the Environment required to
operate the Software, and (b) any other third party software that may be
required for users to operate the Software, as set forth in Exhibit E.
2.3 Fees. Licensee shall pay the License Fees as set forth in Exhibit F in accordance with
the schedule set forth therein.
2.3.1 Failure to pay any License Fees or other fees required will result in
Termination of Support and updates and will result in the appearance of a
notice screen upon launch and intermittently throughout the program.
3.0 WARRANTIES
3.1 LICENSOR has all right, title, and interest in the Software and Documentation
necessary to make the grant of license to Licensee contemplated in this Agreement.
3.2 The Software furnished under the Agreement will perform in substantial compliance
with the written materials accompanying the Software.
3.3 LICENSOR will not be liable for any breach of the warranties set out herein if and to
the extent to which the relevant breach is attributable to:
3.3.1 use of the Software, in any manner or for any purpose which is not permitted
under this agreement;
3.3.2 modification of the Software without the prior written consent of LICENSOR;
3.3.3 the Software not being used in accordance with the Documentation;
3.3.4 any negligence on the part of the Licensee relating to the use of the Software;
3.3.5 any other event or circumstance beyond the reasonable control of
LICENSOR, or
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3.3.6 any failure of the Software to comply with the Software Warranty which is
caused by the Licensee’s data or systems.
3.4 If the Licensee reports, in writing, a Significant Defect to LICENSOR, and
LICENSOR is unable to correct it within ninety (90) business days of the date the
Licensee reports the defect, the Licensee may return the Software and accompanying
materials, and LICENSOR will credit the purchase price towards future purchases.
3.5 LICENSOR will replace, at no charge, defective media and product materials that are
returned within ninety (90) calendar days of the original shipping date.
3.6 THE FOREGOING, TOGETHER WITH ALL EXPRESS WARRANTIES
CONTAINED IN ANY STATEMENT OF WORK HEREUNDER OR OTHERWISE
INCORPORATED HEREIN, CONSTITUTES AND EXPRESSES THE ENTIRE
STATEMENT OF THE PARTIES WITH RESPECT TO WARRANTIES.
3.7 Specifically with regard to any OSS that may be included in the Software, the OSS is
provided “as is”, without warranty of any kind, express or implied, including but not
limited to the warranties of merchantability, fitness for a particular purpose and non-
infringement. In no event shall Licensor, or the authors or copyright holders of the
OSS, be liable for any claim, damages, or other liability, whether in an action of
contract, tort, or otherwise, arising from, out of or in connection with the OSS, or the
use or other dealings in the OSS.
4.0 TERM AND TERMINATION
4.1 Licensee Termination
4.1.1 Termination by Licensee for Any Reason. Licensee may terminate this
Agreement, with or without cause, by providing written notice to LICENSOR
of its intent not to renew its license to all or part of the Software at least sixty
(60) calendar days in advance of the renewal date of the associated
Maintenance Service Fees, provided that such termination will not entitle
Licensee to a refund of any portion of the associated Maintenance Fee.
4.1.2 Termination by Licensee For Cause. Licensee may terminate this
Agreement by written notice to LICENSOR, upon the occurrence of any of
the following events and the continuance thereof without cure, for thirty (30)
business Days after written notice of same has been delivered to LICENSOR
(any such termination being a “Licensee Termination for Cause”):
LICENSOR materially breaches a warranty hereunder.
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LICENSOR’s breaches its obligations under this Exhibit A, the EULA
Section 3 or breaches any other obligation herein that is incapable of cure.
4.2 Licensor Termination
LICENSOR may terminate this agreement for Cause if Licensee is in material breach
of the Confidentiality provisions of the EULA, Section 3 or if Licensee is otherwise
in material breach of this Agreement. If LICENSOR terminates for Cause as is
provided for herein, any license to the Software granted herein (including the Post
Termination License granted below, if any) will be terminated.
4.3 Effects of Termination.
4.3.1 Effective Date of Termination. If either LICENSOR or Licensee terminates
this agreement as provided herein, termination will become effective
immediately or on the date set forth in the written Notice of Termination.
4.3.2 Licensee’s Return or Destruction of Materials. No later than thirty (30)
calendar days after the date of termination or discontinuance of this
Agreement for any reason whatsoever, Licensee shall either (1) return to
LICENSOR any Confidential Information of LICENSOR in its possession
that is in tangible form or (2) destroy all such LICENSOR Confidential
Information in its possession in tangible form. Licensee shall furnish
LICENSOR with a certificate signed by an officer or director of Licensee
verifying that such has been done, upon Licensor’s written request.
4.3.3 LICENSOR’s Return or Destruction of Materials. No later than thirty (30)
calendar days after the date of termination or discontinuance of this
Agreement for any reason whatsoever, LICENSOR shall destroy or return all
Confidential Information of Licensee in its possession that is in tangible form.
LICENSOR shall furnish Licensee with a certificate signed by an officer or
director of LICENSOR verifying that such has been done, upon Licensee’s
written request.
4.3.4 Software License after Termination. If the instant Agreement is terminated
by Licensee pursuant to this Agreement, the License to the software granted
above shall continue uninterrupted in perpetuity subject to the additional
conditions that follow (the License together with the following additional
conditions comprising the “Post Termination License”, hereinafter).
(a) The number of copies of the Software for which a license is
granted pursuant to the Post Termination License shall be the same
as the number of licenses authorized to Licensee at the time of the
termination.
(b) The Post Termination License grants Licensee the right to continue
to use, pursuant to this Agreement, the last version of the Software
that was properly obtained from LICENSOR while the
Maintenance Service Fees were being paid.
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(c) Software that is utilized after termination of this Agreement may
contain one or more reminder screens that notify the user that such
use is pursuant to the Post Termination License. Licensee agrees,
as a condition of the granting of the Post Termination License, that
such notices shall not be modified, circumvented, disabled, or
removed.
(d) Breach of any of the foregoing shall result in cancellation of the
Post Termination License.
(e) After termination pursuant to this section, if Licensee reinstates
payments of Maintenance Service Fees or otherwise reacquires a
license to the then-current version of LICENSOR’s software or
any portion thereof, this Post Termination License will be
automatically terminated to be replaced by the license granted to
the then-current version of LICENSOR’s software.
(f) If the Post Termination License is terminated for any reason
whatsoever, Licensee hereby agrees to return or destroy the
Software and all copies and versions thereof, to return or destroy
the Documentation and all copies or versions thereof, and to return
or destroy all of LICENSOR’s Confidential Information and all
copies thereof. Licensee agrees to provide written assurances by
an officer of the company that this has been done within thirty (30)
calendar days of such termination, upon Licensor’s written request.
4.3.5 No Software License after Termination for Cause. If the Agreement is
terminated by LICENSOR for cause, no such Post Termination License will
be granted. In such a case, Licensee hereby agrees to return or destroy the
Software and all copies and versions thereof, to return or destroy the
Documentation and all copies or versions thereof, and to return or destroy all
of LICENSOR’s Confidential Information and all copies thereof. Licensee
agrees to provide written assurances by an officer of the company that this has
been done within thirty (30) calendar days of such termination for cause, upon
Licensor’s written request.
4.3.6 Remedies. In the event of a party’s Termination for Cause, the other party
shall be liable to the terminating party for any direct damages resulting from
the occurrence giving rise to termination.
5.0 Survival. The obligations and rights of the Parties pursuant Sections 1, 2, 3, and 4, of this
SLA, and Sections 1, 2, 3, 7, 8, 9, and 18 of the EULA shall survive termination of this
agreement for any reason.
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Exhibit B
Doble Software End User License Agreement
(RESERVED)
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Exhibit C
Morgan Schaffer Software License Agreement
(RESERVED)
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Exhibit D
Primary License Facility
(RESERVED FOR ENOSERV POWERBASE PURCHASES ONLY)
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Exhibit E
Environment
ENOSERV RTS7 SYSTEM REQUIREMENTS
ENOSERV RTS7 requires a PC compatible computer with these minimum specifications:
Pentium class processor.
32 MB of RAM memory (64meg or greater recommended).
180 MB of free disk space on the hard drive.
VGA compatible monitor with 1024x768 minimum resolution.
RTS 7 is designed to operate on Windows XP, XP (x64), Vista (x32), Vista (x64),
Windows 7 (x32), Windows 7 (x64), Windows 10
Initial Tests using Windows 8 have been successful.
Mouse or track ball (Windows compatible).
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Exhibit F
License Fees
DOBLE QUOTE Q-02826
QTY PRODUCT DESCRIPTION UNIT
PRICE
DISC
(%)
EXTENDED
PRICE
1 RTS7-SL ENOSERV RTS v.7 Software License
includes;
One (1) Pro Key
Steady State / Dynamic State / End-to-End
test operations
Manual Control Interface
Modbus Module
Comtrade file playback function
Transducer testing module
PowerBase Live Testing module
One (1) Test Set Driver of your choice
Complete list of 530+ ENOSERV-
written RTS test routines
One (1) year Software Maintenance &
Support
One (1) 2-day, onsite Essentials training
class for up to 8 attendees (travel
expense for training is additional and
will be billed at-cost)
$30,000.00 0 $30,000.00
1 RTS-ALB Relay Software, Basic Key $1,000.00 0 $1,000.00
1 F6150e-D F6150e-D Power System Simulator, 2V
2I
$33,950.00 15 $28,857.50
1 181-0088 North American Power Cord $0.00 0 $0.00
TOTAL $59,857.50
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