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HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9185864 (2)ReportsNow Software License Agreement Data Access Studio Software License Agreement Page 1 of 7 General Terms and Conditions VH17 This AGREEMENT is made on January 1, 2019 (“Effective Date”) by and between Reports Now, Inc., 5299 DTC Boulevard #760, Greenwood Village, CO 80111, USA, hereinafter referred to as “LICENSOR” and City of Fort Collins, Colorado, a municipal corporation 300 LaPorte Ave, Fort Collins, CO 80521, USA Hereinafter referred to as “LICENSEE”. The above companies can also individually be referred to as “Party” or together as “Parties.” General Terms and Conditions ARTICLE 1 – SCOPE This Software License Agreement (hereinafter “AGREEMENT”) together with any PRODUCT SCHEDULES that reference this Agreement establish the general terms and conditions to which the Parties have agreed in order to facilitate the licensing of all LICENSOR’s products (collectively “PRODUCT SUITE”) including but not limited to: 1) Data Access Studio (DAS) software, and the provision of services and documentation relating thereto; 2) Data Access Studio Automator; 3) Data Access Studio Templates; 4) ReportsNow Academy: 5) mobie® ; 6) Data Access Studio Archive. LICENSEE may purchase the LICENSE rights (as defined below) to all or parts of the PRODUCT SUITE. Specific LICENSES are listed in the PRODUCT SCHEDULE as defined below. This AGREEMENT contemplates the future execution by the Parties of one or more PRODUCT SCHEDULE(S) (defined below) although LICENSOR shall be under no obligation to issue or accept any PRODUCT SCHEDULE under this AGREEMENT. PRODUCT SCHEDULES are the ordering documents, which shall be attached hereto and incorporated herein by reference. Each PRODUCT SCHEDULE granted pursuant to this AGREEMENT shall be considered separate License(s), which confer upon LICENSEE permission to use the PRODUCT specified therein. No PRODUCT shall be furnished to LICENSEE by the virtue of this AGREEMENT alone but shall require the issuance of an accepted PRODUCT SCHEDULE. Each PRODUCT SCHEDULE shall specifically reference this AGREEMENT and contain the: (1) PRODUCT name: (2) License Fee; (3) Support, Maintenance and Enhancement Plan (hereafter “the PLAN”) Fee; (4) the maximum number of users with access rights to the software for the JDE Deployment server (the “DESIGNATED SERVER”); (5) JDE Deployment Server location; (6) signatures of authorized representative of both Parties. The DESIGNATED SERVER is a server to which the PRODUCT’s license is tied and represents a server that is unique to the environment for which PRODUCT SUITE is being used to process data. DESIGNATED SERVER is not the server on which PRODUCT is physically installed. ARTICLE 2 – GRANT LICENSOR hereby grants to LICENSEE a non-exclusive and non-transferable License for the use of the PRODUCT. Each License authorizes LICENSEE the right to use the PRODUCT for the number of Users associated with the DESIGNATED SERVER referenced in the PRODUCT SCHEDULE(S). LICENSEE shall use the PRODUCT solely for internal business purposes. The LICENSEE may not provide the use of the PRODUCT to process data for any entity that the LICENSEE does not control. Control is defined to be ownership by the LICENSEE of 50% or greater of another entity. ARTICLE 3 – TERM This AGREEMENT shall become effective upon the Effective Date above. “Effective Date" means (a) with respect to the Software License and Services Agreement, the date designated as such in the opening paragraph of the terms and conditions; or (b) with respect to an individual Product Schedule, the effective date specified therein. The Parties agree and understand that the Effective Date above may be different then the executed dates that follow on the signature page. ReportsNow Software License Agreement Data Access Studio Software License Agreement Page 2 of 7 General Terms and Conditions VH17 Each PRODUCT SCHEDULE indicating a separate License conferred under the terms of this AGREEMENT shall become effective upon signature by LICENSOR. Upon payment of the fees specified in the PRODUCT SCHEDULES, LICENSEE maintains a right to use PRODUCT tied to the DESIGNATED SERVER subject, however, to the termination provisions set forth in Article 4 below. ARTICLE 4 – TERMINATION LICENSOR may terminate this AGREEMENT and/or any or all licenses hereunder without further obligation or liability (a) if LICENSEE fails to pay a correctly invoiced amount due hereunder and continues to be delinquent for a period of thirty (30) days after the last day on which such payment is due; or (b) if LICENSEE commits any material breach of this AGREEMENT and fails to remedy such breach within thirty (30) days after written notice by LICENSOR of such breach; or (c) immediately, if LICENSEE violates Article 6 TITLE AND PROPRIETARY INFORMATION. LICENSEE may terminate a license by providing LICENSOR written notice of its intent to terminate a license sixty (60) days prior to the effective date of termination. The termination of any license shall not affect: (1) the obligations of either Party pursuant to any other accepted License, which shall continue in effect as if no termination had occurred; or (2) the survival of representations contained herein. Upon any such termination of a license, LICENSEE shall discontinue the use of PRODUCT and return to LICENSOR all related documentation, but may retain all other licensed PRODUCTS not terminated. Upon request LICENSEE shall certify in writing to LICENSOR that any and all copies of the PRODUCT have been removed from each server upon which the PRODUCT may have been installed, and that any copies (if applicable) have been returned or have been destroyed. Termination of this AGREEMENT or any License granted hereunder shall not release the obligations of either Party to this AGREEMENT relating to the treatment of confidential or proprietary information. ARTICLE 5 – CHANGE IN DESIGNATED SERVER LICENSEE may use the PRODUCT installed only on the DESIGNATED SERVER; provided, however, that the PRODUCT license may be transferred temporarily to associate with another computer if the DESIGNATED SERVER is inoperable due to malfunction, initiation of a disaster recovery program or for routine maintenance. In the event of such a failure or necessary maintenance, LICENSEE may request a temporary license key that will be provided by LICENSOR for a period that will reasonably allow LICENSOR to recover from the failure or perform the necessary maintenance. Upon written notification from LICENSEE, LICENSEE may permanently associate PRODUCT with another DESIGNATED server in the event that LICENSEE ceases usage of PRODUCT with the originally assigned DESIGNATED SERVER free of charge. In this event, LICENSOR will provide a new license key to LICENSEE for the new server and all references to DESIGNATED SERVER will apply to the new server in replacement of the original server. ARTICLE 6 – TITLE AND PROPRIETARY INFORMATION LICENSEE has licensed from the LICENSOR PRODUCT covered by this AGREEMENT. Title and full ownership rights in PRODUCT remain with LICENSOR, whether modified or not. The LICENSEE acknowledges that it has been advised by LICENSOR that the PRODUCT and related documentation have been developed by LICENSOR as valuable trade secrets. The LICENSEE agrees that the execution of this AGREEMENT establishes a confidential relationship between the Parties. The LICENSEE agrees, therefore, subject to applicable law, to preserve the confidential nature of the proprietary and trade secret information by retaining and using the PRODUCT in trust and confidence and agrees not to disassemble, reverse compile, or reverse engineer the PRODUCT, nor permit the use of the PRODUCT by, or disclosure of information relating to the PRODUCT to, unauthorized persons. LICENSOR agrees to take the same action regarding any information which it receives from LICENSEE which has been previously designated in writing by LICENSEE as being proprietary to LICENSEE. LICENSEE shall not itself make, cause or permit any third party to copy the PRODUCT or the accompanying documentation, in whole or in part, without the prior written consent of LICENSOR, except for a reasonable number of copies for internal back-up or archival purposes to ensure use in conjunction with the DESIGNATED SERVER. Any copies of the PRODUCT made by LICENSEE (except those made by mass backup/archival utilities) shall bear all copyright, trade secret, trademark and any other intellectual property right notices in the same form as were affixed on the original PRODUCT. LICENSOR shall have the right to seek a preliminary and permanent injunction against unauthorized copying or use of the PRODUCT and related documentation, in addition to any other rights and remedies to which it may be entitled. ReportsNow Software License Agreement Data Access Studio Software License Agreement Page 3 of 7 General Terms and Conditions VH17 ARTICLE 7 – LIMITED WARRANTY LICENSOR warrants that the media on which the PRODUCT is furnished will be, under normal use, free from defects in materials and workmanship. LICENSOR also warrants the PRODUCT licensed hereunder will perform in substantial accordance with the specifications and descriptions contained in the PRODUCT documentation. LICENSOR’S entire liability and LICENSEE’S exclusive remedy under this provision will be for LICENSOR to use commercially reasonable best efforts to remedy defects covered by this warranty, without charge to the LICENSEE, within a reasonable period of time. LICENSOR AND ITS SUPPLIERS DO NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL SOFTWARE DEFECTS CAN BE CORRECTED. This warranty shall not apply: (1) if the PRODUCT is not used in accordance with the LICENSOR’S documentation; (2) to portions of the PRODUCT that have been modified by LICENSOR (at the LICENSEE’S request) or LICENSEE where such modifications are not part of the standard PRODUCT; (3) if a defect in the PRODUCT has been caused by any of LICENSEE’S malfunctioning system and/or equipment; (4) for non-JD Edwards based uses of the PRODUCT; (5) if any other use within the control of LICENSEE results in the PRODUCT becoming inoperative; or (6) for any inappropriate or unauthorised use. No employee, agent or representative of LICENSOR has authority to bind LICENSOR to any oral representation, warranties or conditions concerning the PRODUCT. Any written representation, warranty or condition not expressly contained in this AGREEMENT shall not be enforceable. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. LICENSOR AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THIS AGREEMENT, ANY LICENSE OR ANY PRODUCT PROVIDED HEREUNDER. ARTICLE 8 – PAYMENT Upon the execution of this Agreement, LICENSOR shall invoice LICENSEE for all charges as designated in corresponding Product Schedule(s). LICENSEE shall pay within 30 days of the date of the invoice. Unpaid balances shall be subject to an interest charge of 1.5% per month after 30 days from the date of the invoice. All payments made hereunder are non-refundable except as specifically provided otherwise in this AGREEMENT. All hourly consulting services outlined in Article 11 (Additional Services) shall be invoiced monthly for services performed. LICENSEE shall pay within 30 days of the date of the invoice. Undisputed balances due and unpaid shall be subject to an interest charge of 1.5% per month after 30 days from the date of the invoice. ARTICLE 9 – TAXES All taxes imposed by government either based upon the PRODUCT under this AGREEMENT, its use, or this AGREEMENT are the obligation of the LICENSEE to extent provided by law, whether such taxes are now or hereafter imposed. ARTICLE 10 – SUPPORT, MAINTENANCE AND ENHANCEMENTS PLAN LICENSOR has established a Support, Maintenance and Enhancement Plan (the “PLAN”). Under the PLAN LICENSOR shall: a). Supply code corrections to LICENSEE to correct PRODUCT malfunctions in order to bring such PRODUCT into conformity with the operating specifications for the most current version of the standard PRODUCT unless such malfunctions have been caused by the LICENSEE’S modifications of the PRODUCT or unless LICENSEE’S modifications prohibit or hamper such corrections. b). Supply prompt email support to LICENSEE in order to help LICENSEE locate and correct problems with the PRODUCT. If the LIMITED WARRANTY section herein covers the reported problem, there will be no charge to the services provided. c). Supply, as long as it is technically feasible, updated PRODUCTS as required to operate under new releases of the operating system and other system software designed for the PRODUCT. d). Supply all extensions, enhancements, other changes and related documentation which LICENSOR, at its sole discretion, deems logical improvements or extensions to the PRODUCT and which LICENSOR furnishes, without charge, to all other LICENSEES of the PRODUCT who are entitled to such. LIMITED SCOPE OF THE PLAN – Under certain circumstances LICENSEE might attempt to use the PRODUCT to connect ReportsNow Software License Agreement Data Access Studio Software License Agreement Page 4 of 7 General Terms and Conditions VH17 and report over non-JD Edwards based data sources. LICENSOR’s standard Support, Maintenance and Enhancement Plan (the above referenced PLAN) does not include costs and expenses incurred for technical support requested or required by LICENSEE as a result of non-JD Edwards based uses of the PRODUCT, and shall be at LICENSEE’S additional expense. Prior to contacting LICENSOR, LICENSEE must use commercially reasonable efforts (“Screening Efforts”) to ensure that the issue is not attributed to hardware failures, third party software, LICENSEE’s actions or other causes not within the direction or control of the LICENSOR. Repeated failures by LICENSEE to engage in reasonable Screening Efforts before contacting LICENSOR may entitle LICENSOR to terminate this Agreement under Article 4 at its sole discretion. Software changes not incorporated into the LICENSOR’S standard PRODUCT (hereinafter “Modifications”) created for and at the direction of the LICENSEE by the LICENSOR are not covered under the PLAN. LICENSOR shall own the technological rights to Modifications. LICENSEE agrees that the LICENSOR may use and market Modifications, and LICENSEE reserves no royalty or any other revenue interest in the Modifications, other than the right to use said Modifications. LICENSEE is automatically enrolled in the PLAN for the first year after the Effective Date of the AGREEMENT. LICENSOR shall, on the annual anniversary of the Effective Date, invoice LICENSEE the amount stated in each attached PRODUCT SCHEDULE(s) for the PLAN. After the first year, LICENSEE shall have the right to terminate the PLAN at any time upon sixty (60) days written notice to LICENSOR. LICENSEE shall not be entitled to any PLAN refund. Any change shall only come into effect as of the next following anniversary date of the Effective Date of the AGREEMENT. If LICENCEE terminates the PLAN, LICENSEE shall be entitled to continue using any PRODUCT for which LICENSEE has paid a license fee in accordance with the respective PRODUCT SCHEDULE(s). In the case of PLAN termination, LICENSEE is no longer entitled to support and will no longer be licensed to apply any PRODUCT updates following the PLAN termination effective date. Subsequent to any PLAN termination, LICENSEE may reinstate the PLAN by providing notice to the LICENSOR and making payment of the PLAN fees for the upcoming maintenance period as well as for each year during which PLAN services were not purchased. Fees for the PLAN are documented on PRODUCT SCHEDULES and shall be due according to the provisions of Article 8 – Payments. LICENSOR reserves the right to increase its charge for the PLAN and all other annual re-occurring fees to account for inflation as determined by the Consumer Price Index as published by the US Department of Labor, Bureau of Labor Statistics (www.bls.gov/cpi/). The annual maintenance fee will be waived under the following circumstances: a). LICENSEE terminates the AGREEMENT and completely uninstalls PRODUCT(s) from all machines within LICENSEE’s enterprise pursuant to the terms in Article 4. b). LICENSEE upgrades to higher release (FUTURE RELEASE) of JD Edwards Enterprise One (a.k.a. OneWorld, ERP8) and LICENSOR fails to produce a compatible release with FUTURE RELEASE within 120 days of LICENSEE going live on FUTURE RELEASE. ARTICLE 11 – ADDITIONAL SERVICES Upon mutual written agreement of the parties and at an additional cost to be determined, LICENSEE may utilize LICENSOR for training, report writing and other services that fall outside the scope of the PLAN. These services include, but are not limited to, training, report writing, assessing reporting needs, collecting reporting specifications, project management and report development for JDE. Upon mutual written consent of the Parties, LICENSOR may provide services of limited scope and duration (such as report writing) to LICENSEE (“AGREED UPON SERVICES”). The parties will agree to the scope of these services, and the compensation due to LICENSOR, on a case by case basis, and this AGREEMENT will govern the delivery of those services. If the services anticipated to be delivered are of a substantial and/or ongoing nature (in LICENSOR’S sole judgment) then such ancillary services shall be delivered pursuant to a separate Professional Services Agreement to be executed between the Parties. Additional services will be charged separately at the LICENSOR’S then current billing rates and invoiced monthly. LICENSEE shall reimburse the LICENSOR for all costs incurred in connection with the AGREED UPON SERVICES rendered. Reimbursable costs include, but are not limited to, travel costs, subcontractors, materials, computer costs, telephone, copies, delivery, etc. that are attributable to a project or services ("REIMBURSABLE COSTS"). Travel costs are defined as air travel, lodging, meals and incidentals, ground transportation, tools, and all costs associated with travel. LICENSOR shall provide to LICENSEE substantiation of REIMBURSABLE COSTS incurred in connection with delivering said services and LICENSEE shall pay monthly invoices in accordance with Article 8 above. ReportsNow Software License Agreement Data Access Studio Software License Agreement Page 5 of 7 General Terms and Conditions VH17 ARTICLE 12 – SERVICE PROVISIONS All services provided under this AGREEMENT shall be delivered in English from Monday through Friday, excluding official US holidays, and shall commence at 08:00 and end at 18:00 (US Mountain Time). ARTICLE 13 – LIMITATION OF LIABILITY LICENSOR and its suppliers shall in no event be liable for any damages caused solely by LICENSEE’S failure to perform its responsibilities under this AGREEMENT. LICENSEE shall in no event be liable for any damages caused solely by LICENSOR’s or its suppliers’ failure to perform their responsibilities under this AGREEMENT. Neither party shall be liable to the other party for damages for loss of profits, goodwill, lost computer time, destruction, damage or loss of data, or any other special, indirect, incidental or consequential damages from any cause whatsoever, and regardless of the form of action (law or equity), whether in contract or in tort, arising out of or in any way connected with the design, manufacture, license, handling, repair, maintenance, delivery, performance or use of the PRODUCT or PRODUCT SUITE. Either party’s liability shall not exceed the amount paid by the LICENSEE to license the use of any of the PRODUCTs, except in cases of either party’s willful misconduct, fraud, gross negligence, misuse of confidential information, or LICENSOR’s indemnification for infringement. ARTICLE 14 – INDEMNIFICATION FOR INFRINGEMENT LICENSOR warrants that the PRODUCT furnished by LICENSOR will not infringe upon or violate any patent, copyright, trademark, trade secret or proprietary right which concerns any PRODUCT, when used within the scope of the License acquired by LICENSEE hereunder. LICENSOR shall indemnify LICENSEE for any claim asserting or involving a patent, copyright, trademark, trade secret or propriety right violation which concerns any PRODUCT used within the scope of the license acquired by LICENSEE hereunder. LICENSOR shall indemnify LICENSEE against any loss, cost, expense or liability from any damages finally awarded against LICENSEE for the same. LICENSOR shall also indemnify LICENSEE against any settlement costs which are attributable to any claim by a third party against LICENSEE asserting or involving a patent, copyright, trademark, trade secret or proprietary right violation which concerns any PRODUCT used within the scope of the license acquired by LICENSEE hereunder. However, LICENSEE must notify LICENSOR in writing within a reasonable time after LICENSEE first receives written notice of any such claim, action or allegation of infringement. Related to INDEMNIFICATION FOR INFRINGEMENT proceedings, the LICENSOR reserves the right to exercise full control, including choice of counsel, and settlements. In the event an injunction or order shall be obtained against the LICENSEE’S use of any PRODUCT by reason of the allegations, or if in LICENSOR’S opinion the PRODUCT is likely to become the subject of a claim of infringement or violation of a patent, copyright, trademark, trade secret or other property right of a third party, LICENSOR shall at its expense: (a) Procure for LICENSEE the right to continue using the PRODUCT, or (b) Replace or modify the PRODUCT so that it becomes non-infringing but only if the modification or replacement does not adversely affect the specifications for the PRODUCT, or (c) If neither (a) nor (b) above is practical, remove the PRODUCT from LICENSEE’S SERVER. In the event of Clause (c) LICENSOR shall issue to LICENSEE a credit for the unamortized portion (using a three (3) year life) of the License Fee, and thereafter, termination shall proceed in accordance with the terms of Article 4 TERMINATION. ARTICLE 15 – EXPORT RESTRICTIONS LICENSEE shall not export or re-export the PRODUCT without the written consent of LICENSOR. LICENSEE shall comply with all United States and/or foreign government export laws and regulations as may be required for all PRODUCT. ARTICLE 16 – ASSIGNMENTS AND TRANSFERS LICENSEE’S rights in and to PRODUCT, as a result of any granted license, may not be assigned, sub-licensed, or otherwise transferred, voluntarily, by operation of law, or otherwise, without prior written approval of LICENSOR. ReportsNow Software License Agreement Data Access Studio Software License Agreement Page 6 of 7 General Terms and Conditions VH17 LICENSEE shall have the right to assign the license to use any PRODUCT covered hereunder to a parent with majority ownership or a controlled subsidiary of LICENSEE without additional fee. Any assignee or transferee must agree in writing to be bound to by the terms and conditions of this AGREEMENT or otherwise must enter into a new license AGREEMENT with the LICENSOR. ARTICLE 17 – DISPUTE RESOLUTION MEDIATION & ARBITRATION The Parties agree that every dispute or difference between them, arising under this AGREEMENT, shall be settled first by a meeting of the Parties attempting to confer and resolve the dispute in a good faith manner. ARTICLE 18 – OTHER TERMS AND CONDITIONS These Terms and Conditions shall be an integral part of all proposals, Product Schedules and quotations between Parties. Unless otherwise agreed in writing, all provisions of these General Terms and Conditions shall remain in full force and effect as between the Parties. These Terms and Conditions shall govern delivery of all PRODUCT SCHEDULES irrespective of whether the delivery is performed by the LICENSOR or by a third party. ARTICLE 19 – CUSTOMER LIST LICENSEE does NOT consent to the use of its name and logo. ARTICLE 20 – OTHER PROVISIONS Each Party in default of this Agreement (the Defaulting Party) agrees that any remedy at law for any breach of this AGREEMENT may be inadequate and that the non-defaulting party may be entitled to seek injunctive relief occasioned by any such breach pursuant to applicable law. No representatives of LICENSOR, other than the President, and in writing, have any authority to make any modifications or amendments to this AGREEMENT. The AGREEMENT consisting of the General Terms and Conditions and the Product Schedule(s) and any action or other proceeding hereunder shall be governed by the laws of the State of Colorado, USA, both as to interpretation and performance. Venue for any action or other proceeding arising under this Agreement shall be in a court of proper jurisdiction in Colorado. This AGREEMENT contains all the terms and conditions agreed upon by the parties hereto, and no other AGREEMENTs, oral or otherwise, regarding the subject matter of this AGREEMENT shall be deemed to exist or to bind any of the Parties hereto. All previous communications, representations, warranties, promises, conditions, or AGREEMENTs of any kind or nature whatsoever shall not be binding upon the parties unless incorporated into this AGREEMENT directly or by reference. In case any one or more of the provisions contained in this AGREEMENT shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions thereof. Notice to either Party shall be in writing to the address indicated in this AGREEMENT (or as later amended) and deemed effective when received, if sent by prepaid certified mail, return receipt requested. ReportsNow Software License Agreement Data Access Studio Software License Agreement Page 7 of 7 General Terms and Conditions VH17 This AGREEMENT, shall be binding on the heirs, personal representatives, successors, executors, administrators or assignees of the parties hereto: City of Fort Collins_________ ReportsNow, Inc. LICENSEE LICENSOR __________________________ Chris Bruce___________ Name (Type or Print) Name (Type or Print) __________________________ President_____________ Title Title __________________________ _________________________ Authorized Signature Date Authorized Signature Date Gerry Paul Purchasing Director 12/18/18