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HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9185788 (3)Software License Agreement Deccan International Page 1 of 12 DECCAN INTERNATIONAL SOFTWARE LICENSE AGREEMENT This Software License Agreement is made and entered into as of December 10th, 2018, (the “Effective Date”), by and between the Poudre Fire Authority with its principal place of business at 102 Remington Street, Fort Collins, CO, 80524 (the “Licensee”) and Deccan International, a California corporation, with its principal place of business at 5935 Cornerstone Court West, Suite 230, San Diego, California 92121 (“Deccan”). RECITALS WHEREAS, Deccan has developed certain software applications that will be installed on the Licensee’s automated computer system; and WHEREAS, the Licensee desires to obtain a license and right to use such software applications on such system in accordance with the terms, and subject to the conditions, set forth below; and NOW THEREFORE, in consideration of the mutual covenants contained herein this Agreement, the Licensee and Deccan hereby agree as follows: AGREEMENT 1. Definitions The following definitions apply to the terms used within this Agreement: 1.1. “Agreement” shall mean this Software License Agreement and its exhibits, as the same may from time to time be amended in accordance with the terms hereof. 1.2. “Derivative Works” shall mean, with respect to any Licensed Application, any translation, abridgement, revision, modification, or other form in which such Licensed Application may be recast, transformed, modified, adapted or approved after acceptance of the Licensed Application. 1.3. “Documentation” shall mean any written, electronic, or recorded work that describes the use, functions, features, or purpose of the System, or any component or subsystem thereof, and that is published or provided to the Licensee by Deccan, including, without limitation, all end user manuals, training manuals, guides, program listings, data models, flow charts, logic diagrams, and other materials related to or for use with the System. 1.4. “Enhancement” shall mean, with respect to any Licensed Application, a computer program modification or addition that alters the functionality of, or adds new functions to, such Licensed Application and that is integrated with such Licensed Application after acceptance of the Licensed Application, or that is related to a given Licensed Application but offered separately by Deccan after acceptance of the Licensed Application. 1.5. “Error” shall mean, with respect to any Licensed Application, a defect in the Source Code for such Licensed Application that prevents such Licensed Application from functioning in substantial conformity with the intended use of the Licensed Application. 1.6. “Licensed Application” shall mean each of the software applications set forth on Exhibit 1 attached hereto and incorporated herein by this reference, which software applications were developed by Deccan and furnished to the Licensee, together with all Derivative Works, and all Documentation with respect thereto; provided, however, that Licensed Applications shall consist of Object Code only and shall not include any Enhancements. DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 2 of 12 1.7. “Licensee Data” shall mean all data and analysis either entered by the Licensee into the Licensed Application or created by the Licensed Application. 1.8. “Object Code” shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering. 1.9. “Source Code” shall mean computer programs written in higher-level programming languages, sometimes accompanied by English language comments. Source Code is intelligible to trained programmers and may be translated to Object Code for operation on computer equipment through the process of compiling. 1.10. “System” shall mean the Licensee’s computer automated system consisting of the Licensed Applications combined with any of the authorized servers or computers, the operating systems installed on each of the authorized servers or computers, any database or other third party software products installed on any of the authorized servers or computers, any PC or other workstation equipment having access to any of the Licensed Applications, any communications interfaces installed on any of the authorized servers or computers, any network communications equipment and any other third party software, wiring, cabling and connections and other hardware relating to any such authorized servers or computers, workstation or network communications equipment located at any of the Authorized Sites. 2. Licenses and Restrictions Grant of Licenses. Subject to the conditions set forth in Section 2.2 hereof, Deccan hereby grants to the Licensee, pursuant to the terms and conditions hereof, an annual, nonexclusive, nontransferable license: to use each Licensed Application at the Authorized Sites subject to the terms and conditions of the Maintenance and Support Services Agreement. 2.1. Conditions to Grant of Licenses. No grant of any license or right pursuant to Section 2.1 hereof with respect to any Licensed Application shall be effective, and the Licensee shall have no license or right to use such Licensed Application, until such Licensed Application has been paid in full in accordance with the payment terms set forth in the applicable Maintenance and Support Services Agreement. 2.2. Restrictions on Use (a) The Licensee agrees to use the Licensed Applications only for the Licensee’s own use. The Licensee shall not allow use of any Licensed Application by any parent, subsidiaries, affiliated entities, or other third parties, or allow any Licensed Application to be used on other than on the authorized server at the Authorized Site with respect thereto. Notwithstanding, the Licensee shall not be restricted from utilizing the Licensed Application to process, analyze and share data and information with partner agencies including but not limited to Loveland Fire and Wellington Fire. (b) Except as otherwise specifically set forth in Section 2.1 hereof, the Licensee shall have no right to copy any Licensed Application. Any copy of any Licensed Application (whether or not such copy is permitted) shall be the exclusive property of Deccan. The Licensee shall not distribute or allow distribution of any Licensed Application or any Documentation or other materials relating thereto without Deccan’s prior written consent unless disclosure is required by the Colorado Open Records Act, C.R.S. §§ 24-72-200.1 (CORA). In such event, to the extent practicable, the Licensee will provide Deccan with prompt notice of such request and Deccan shall have two (2) business days to provide the Licensee with a redacted version and/or seek an appropriate protective order. DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 3 of 12 (c) The Licensee’s license and right to use the Licensed Applications is limited to a license and right to use only the Object Code relating thereto. The Licensee shall have no license or right with respect to the Source Code for any Licensed Application. (d) The Licensee shall not, and shall not permit any other party to, make any alteration, modification or enhancement to any Licensed Application unless, and only to the extent, specifically authorized by Deccan. The Licensee shall not, and shall not permit any other party to, disassemble, and de-compile or reverse-engineer any Licensed Application. 3. Ownership. 3.1 Except for the rights expressly granted therein pursuant to Section 2 hereof, Deccan shall at all times retain all right, title and interest in and to each Licensed Application and all copies thereof (whether or not permitted), including all Derivative Works, Enhancements and Documentation with respect thereto (whether or not developed by Deccan). By this Agreement, the Licensee hereby assigns to Deccan any and all rights it may have or later acquire to any and all Derivative Works (whether or not developed by Deccan). 3.2 The Licensee shall at all times retain all right, title and interest in and to all data entered by the Licensee and all data and analysis created by the Licensed Application (the “Licensee Data”). 4. Term and Termination 4.1. Effective Date. This Agreement shall take effect on the Effective Date after (i) it has been fully executed by duly authorized representatives of both parties, and (ii) Deccan's receipt of written notification from the Licensee that any certification or approval of this Agreement required by statute, ordinance, or established policy of the Licensee has been obtained. 4.2. Term. This Agreement shall continue in effect until terminated as set forth under Section 4.3 hereof. 4.3. Termination. The Licensee may terminate this Agreement by providing thirty (30) days prior written notice to Deccan of its intent to do so. Deccan may terminate this Agreement immediately if the Licensee breaches any material provision of this Agreement and does not cure such breach within thirty (30) days from the date of written notice. 4.4. Effect of Termination. (a) Upon termination of this Agreement, all licenses granted to the Licensee hereunder shall be revoked. Upon termination of this Agreement, (a) the Licensee shall return to Deccan, within ten (10) business days of such termination, all Deccan Confidential Information and all copies (b) the Licensee shall discontinue all use of the Licensed Applications; and (c) the Licensee shall certify in a written document signed by an authorized representative that the material specified in the preceding clause (a) has been returned to Deccan, that all copies of the Licensed Applications have been permanently deleted or destroyed, and that all use of the Licensed Applications has been discontinued. The expiration or termination of this Agreement will not relieve the Licensee of its obligations under Section 6 hereof regarding Deccan Confidential Information. (b) Upon termination of this Agreement, (a) Deccan shall return the Licensee, within ten (10) business days of such termination, all Licensee Confidential Information and all copies; (b) Deccan shall certify in a written document signed by an authorized representative the Licensee’s Confidential Information has been returned to Licensee. The DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 4 of 12 expiration or termination of this Agreement will not relieve Deccan of its obligations under Section 6 hereof regarding Licensee Confidential Information. (c) Deccan will assist the Licensee as reasonably required to promptly transfer all Licensee Data to the Licensee. 5. Limited Warranties, Liability and Indemnification 5.1. Warranty. THE LICENSED APPLICATIONS ARE LICENSED “AS IS”. NO EXPRESS OR IMPLIED WARRANTIES FOR THE LICENSED APPLICATIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE CREATED BY THIS SOFTWARE LICENSE AGREEMENT. 5.2. Limitation of Liability. NEITHER PARTY NOR ANY PERSON ASSOCIATED WITH DECCAN SHALL BE LIABLE TO ANY PARTY FOR ANY DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED BENEFITS OR PROFITS RESULTING FROM THE OPERATION OR FAILURE TO OPERATE OF THE LICENSED PROGRAMS. THIS CLAUSE SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY FOR BREACH OF WARRANTY OR ANY OTHER PROVISION OF THIS AGREEMENT. 5.3. Indemnification. Deccan agrees that it shall indemnify, defend and hold harmless the Licensee, its respective officials, directors, employees and agents (collectively, the "lndemnitees"), from and against any and all damages, claims, losses, expenses, costs, obligations and liabilities (including without limitation reasonable attorney's fees), suffered directly or indirectly by the Licensee to the extent of, or arising out of, (i) any breach of any covenant, representation or warranty made by Deccan in this Agreement, (ii) any failure by Deccan to perform or fulfill any of its obligations, covenants or agreements set forth in this Agreement, (iii) the negligence or intentional misconduct of Deccan, any subcontractor of Deccan, or any of their respective employees or agents, (iv) any failure of Deccan, its subcontractors, or their respective employees to comply with any applicable law, (v) any litigation, proceeding or claim by any third party relating in any way to the obligations of Deccan under this Agreement or Deccan's performance under this Agreement, (vi) any Employee Taxes or Unemployment Insurance, or (vii) any claim alleging that the Licensed Application or any part thereof infringe any third party's U.S. patent, copyright, trademark, trade secret or other intellectual property interest. Such obligation to indemnify shall not apply where the damage, claim, loss, expense, cost, obligation or liability is due to the breach of this Agreement by, or negligence or willful misconduct of, Licensee or its officials, directors, employees, agents or contractors. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph. The indemnity obligations of Deccan under this Article shall survive the expiration or termination of this Agreement for two years. 5.4. Insurance. During the term of this Agreement, Deccan shall maintain at its own cost and expense (and shall cause any subcontractor to maintain) insurance policies providing insurance in accordance with Exhibit 2. 6. Confidential Information 6.1. Confidential Information. Each party agrees to maintain the confidentiality of the other party’s Confidential Information (as defined below) and to treat such information with the same degree of care and security as it treats its own most confidential information. Neither party shall, without the other party’s prior written consent, disclose such information to any person or entity other than to its employees or consultants legally bound to abide by the terms hereof and having a need to know such information, or sell, license, publish, display, distribute or otherwise use such information except as authorized by this Agreement. The term “ Confidential Information” shall include the Licensee Data and all Licensed DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 5 of 12 Applications and any other Deccan software applications (whether or not licensed to the Licensee) and all Derivative Works, Enhancements and Documentation with respect thereto as well as any written information of a confidential nature clearly labeled by the other party as being confidential or otherwise indicated by the other party as being confidential. Each party agrees Confidential Information constitutes a valuable business asset to the respective party, the unauthorized use or disclosure of which may irreparably cause damage to the other party. In the event either party breach or threatened breach of any of the provisions in this Agreement, the other party shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining the other party from any unauthorized use or disclosure of any Confidential Information. 6.2. Exclusions. Notwithstanding Section 6.1 hereof, Confidential Information shall not include information which the other party can demonstrate by competent written proof (a) is now, or hereafter becomes, through no act or failure to act on the part of the other party, generally known or available or otherwise part of the public domain; (b) is rightfully known by the other party without restriction on use prior to its first receipt of such information from the other party as evidenced by its records; (c) is hereafter furnished to the other party by a third party authorized to furnish the information to the other party, as a matter of right and without restriction on disclosure; (d) is the subject of a written permission by the other party to disclose. 6.3. Exceptions. Notwithstanding Section 6.1 hereof, disclosure of Confidential Information shall not be precluded if: (a) such disclosure is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the party shall first have given notice to the other party ; (b) such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary for such purpose; or (c) the party received the prior written consent to such disclosure from the other party, but only to the extent permitted in such consent. (d) Such disclosure is required by applicable law, including but not limited to, the Colorado Open Records Act. 6.4. Survival. Unless mutually agreed otherwise in writing, the obligations hereunder with respect to each item of Deccan Confidential Information shall survive the termination or expiration of this Agreement. 7. Miscellaneous 7.1. Relationship. The relationship created hereby is that of Licensor and Licensee. Nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto. Neither party shall have any authority to enter into agreements of any kind on behalf of the other and shall have no power or authority to bind or obligate the other in any manner to any third party. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Each party hereto represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party. 7.2. No Rights in Third Parties. This Agreement is entered into for the sole benefit of the Deccan and the Licensee and, where permitted above, their permitted successors, executors, representatives, administrators and assigns. Nothing in this Agreement shall be construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other entity, including, without limitation, the general public or any member thereof, or to authorize anyone not a party to this Agreement to DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 6 of 12 maintain a suit for personal injuries, property damage, or any other relief in law or equity in connection with this Agreement. 7.3. Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding between Deccan and the Licensee relating to the subject matter hereof and supersedes all quotes, proposals understandings, representations, conditions, warranties, covenants, and all other communications between the parties (oral or written) relating to the subject matter hereof. Deccan shall not be bound by any terms or conditions contained in any purchase order or other form provided by the Licensee in connection with this Agreement and any such terms and conditions shall have force or effect. No affirmation, representation or warranty relating to the subject matter hereof by any employee, agent or other representative of Deccan shall bind Deccan or be enforceable by the Licensee unless specifically set forth in this Agreement. 7.4. Amendments. No amendment or other modification of this Agreement shall be valid unless pursuant to a written instrument referencing this Agreement signed by duly authorized representatives of each of the parties hereto. 7.5. Assignment. Neither party hereto may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement to its successor in connection with a sale of its business or by legal change in the Poudre Fire Authority’s status as an independent governmental entity without obtaining consent of any party. Subject to the foregoing, each and every covenant, term, provision and agreement contained in this Agreement shall be binding upon and inure to the benefit of the parties’ permitted successors, executors, representatives, administrators and assigns. Any assignment attempted in contravention of this section will be void. 7.6. Governing Law. All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement shall in all respects be governed by and determined in accordance with the laws of the State of Colorado without giving effect to the choice of law principles thereof. 7.7. Venue. All legal proceedings brought in connection with this Agreement may only be brought in a county court located in Larimer County Colorado or federal court located in Denver, Colorado. Each party hereby agrees to submit to the personal jurisdiction of those courts for any lawsuits filed there against such party arising under or in connection with this Agreement. 7.8. Waiver. In order to be effective, any waiver of any right, benefit or power hereunder must be in writing and must be signed by an authorized representative of the party against whom enforcement of such waiver would be sought, it being intended that the conduct or failure to act of either party shall imply no waiver. Neither party shall by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. No waiver of any right, benefit or power hereunder on a specific occasion shall be applicable to any facts or circumstances other than the facts and circumstances specifically addressed by such waiver or to any future events, even if such future events involve facts and circumstances substantially similar to those specifically addressed by such waiver. No waiver of any right, benefit or power hereunder shall constitute, or be deemed to constitute, a waiver of any other right, benefit or power hereunder. Unless otherwise specifically set forth herein, neither party shall be required to give notice to the other party, or to any other third party, to enforce strict adherence to all terms of this Agreement. 7.9. Severability. If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, such provision shall be construed so as to make it enforceable to the greatest extent permitted, such provision shall remain in effect to the greatest extent permitted and the remaining provisions DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 7 of 12 of this Agreement shall remain in full force and effect. 7.10. Survival of Provisions. All provisions of this Agreement that by their nature would reasonably be expected to continue after the termination of this Agreement, including but not limited to Section 6.1, will survive the termination of this Agreement. 7.11. Notices. All notices, requests, demands, or other communications required or permitted to be given hereunder must be in writing and must be addressed to the parties at their respective addresses set forth below and shall be deemed to have been duly given when (a) delivered in person; (b) sent by facsimile transmission indicating receipt at the facsimile number where sent; (c) upon signature receipt acknowledgment with a reputable overnight air courier service; or (d) upon signature receipt acknowledgement with the United States Postal Service, for delivery by certified or registered mail, postage pre-paid and return receipt requested. All notices and other communications regarding default or termination of this Agreement shall be delivered by hand or sent by certified mail, postage pre-paid and return receipt requested. Either party may from time to time change the notice address set forth below by delivering notice to the other party in accordance with this section setting forth the new address and the date on which it will become effective. To Deccan: Deccan, Inc. Attn: President & CEO 5935 Cornerstone Court West, Suite 230 San Diego, CA 92121 Phone: 858-764-8400 Fax: 858-764-8401 To Licensee: Poudre Fire Authority Attn: Ron Simms 102 Remington Street Fort Collins, CO 80524 Phone: 970-416-2405 Fax: 970-416-2809 7.12. Construction. The paragraph and section headings used in this Agreement or in any exhibit hereto are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement. Any term referencing time, days or period for performance shall be deemed calendar days and not business days, unless otherwise expressly provided herein. 7.13. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 8 of 12 IN WITNESS WHEREOF, the parties have hereunto set their hands as set forth below. Poudre Fire Authority Deccan International By: By: ________________________ Name: Tom DeMint Name: Latha Nagaraj Title: Fire Chief Title: President & CEO Date: ____________________ Date: ________________________ City of Fort Collins, Colorado By: Name: Gerry Paul Title: Purchasing Director Date: ____________________ Attest: __________________ City Clerk Approved As To Form: ____________________ Assistant City Attorney II DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 12/12/2018 12/11/2018 12/12/2018 Software License Agreement Deccan International Page 9 of 12 EXHIBIT 1 To Software License Agreement LICENSED APPLICATIONS AND AUTHORIZED ENVIRONMENTS This Exhibit is attached to, incorporated into and forms part of the Software License Agreement, dated December 10th, 2018, between the Licensee and Deccan (herein referred to as the “Agreement”). Capitalized terms used herein shall have the definitions set forth in the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. LICENSED APPLICATIONS The following software applications constitute Licensed Applications under the Agreement. The site locations corresponding to each Licensed Application shall constitute the Authorized Site with respect to such Licensed Application for purposes of the Agreement. Quantity Name of Application Address and Room Number of Authorized Site 6 (Per Seat)* ADAM * Includes up to 15 fire station locations. ** Pricing is in accordance with quote number 20181031-A-S dated 10/31/2018 attached hereto and incorporated herein by reference. DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 10 of 12 DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 11 of 12 DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515 Software License Agreement Deccan International Page 12 of 12 EXHIBIT 2 INSURANCE REQUIREMENTS 1. Deccan will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this Agreement, Deccan shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: “The insurance evidenced by this Certificate will not reduce coverage or limits and will not be cancelled, except after thirty (30) days written notice has been received by the City of Fort Collins.” In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of Deccan, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due Deccan under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on Deccan 's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. Deccan shall maintain during the life of this Agreement for all of Deccan's employees engaged in work performed under this agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. Deccan shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, Deccan shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. DocuSign Envelope ID: A86493EA-2F36-4AE3-9AB1-76327EC7E515