HomeMy WebLinkAboutSELECTRON TECHNOLOGIES INC - CONTRACT - AGREEMENT MISC - SELECTRON TECHNOLOGIES INC (2)Software License Agreement
This Software License Agreement (“SLA” or this “Agreement”) is entered into by and between Selectron Technologies, Inc. an Oregon
corporation and its successors and assigns (collectively, “Company”), and the City of Fort Collins, Colorado (“Customer”). Company
agrees to allow Customer to use Company’s computer software and associated media and printed materials, which may or may not
include electronic documentation and documentation available via the Internet (collectively, the “Software”), under the terms and
conditions of this SLA. By signing below, and/or by installing or otherwise using the Software with Company’s permission, Customer
agrees to be bound by the terms of this SLA.
1. Grant of License.
Subject to the terms and conditions of this SLA, Company
grants to Customer a non-exclusive, non-sublicensable, non-
transferable and non-assignable (except as specifically set
forth herein), and limited license to install and use the
Software solely during the Term of this Agreement (the
“License”). The License entitles Customer to install and use
the Software at its principal place of business solely on a
single computer (unless Customer is authorized to install and
use the Software on more than one computer, as set forth in
that certain Professional Services Agreement between the
parties), and solely for Customer’s internal business use. A
license for each active server, test server, or fail-over server
must be expressly purchased for the specific use of the
Software on each server. Except as otherwise notified by
Company, the Software may not be used in connection with
any software not acquired from Company or recommended
in writing by Company specifically for use with the Software.
Except as expressly set forth in this Section 1, no other right
or license is granted to Customer with respect to the
Software.
Use of the Software requires that Customer use, as part of
the Software, certain third-party Runtime-Restricted Use
Software. By agreeing to this Agreement and installing and
using the Software, Customer agrees to all terms and
conditions set forth in the End User License Agreement(s)
including those attached in Exhibit A.
2. License Fee.
Customer agrees to pay a license fee for the above-granted
license, as set forth in accordance with the terms of that
certain Professional Services Agreement between Company
and Customer (the “License Fee”). The Professional Services
Agreement sets forth a payment schedule and payment
terms for the License Fee, which are incorporated into and
made a part of this Agreement by this reference.
3. Other Rights and Limitations.
3.1 Transfer of Software. Customer may not rent, lease,
distribute, sell, assign, pledge, sublicense, loan, timeshare,
otherwise transfer, or otherwise use the Software for the
commercial or other benefit of third parties, but Customer
may transfer the use of the Software from Customer to a
third party on a permanent basis, provided that (i) Customer
notifies Company of the transfer in advance of the transfer;
(ii) Customer ceases all use of the Software and retains no
copies of the Software after the transfer; and (iii) the third-
party recipient expressly agrees in writing to the terms of this
SLA and provides the signed SLA to Company. In the event of
such a transfer, Customer agrees to pay any additional
installation, set-up, or training fees arising out of the transfer
of the Software to the third party (to the extent that the third
party refuses or fails to pay such fees). Customer further
agrees to allow Company or its representatives onto
Customer’s premises to ensure that Customer has ceased all
3.4 Notice to Users.
Customer shall inform all Customer employees who use the
Software under the License of all terms and conditions of the
SLA, and Customer acknowledges and agrees that it is
responsible for all such employee usage of the Software.
In the event of any violation of this Section 3, Licensor may
immediately terminate this Agreement in accordance with
Section 12, and shall be entitled to injunctive relief in
accordance with Section 13.9.
4. Copyright.
The Software is licensed, not sold. Customer acknowledges
and agrees that Company or its suppliers own title to the
Software and all present and future copyrights, trade secret
rights, patent rights, trademark rights, and all other
intellectual property and proprietary rights in and to the
Software (including without limitation, all source and object
code, algorithms, techniques, methods, images, “applets,”
photographs, animations, video, audio, music, text, and other
content comprising and/or incorporated into the Software),
accompanying printed materials, the copy of the Software
that Customer is permitted to make under Section 3.4, and
all updates and upgrades to and versions and derivative
works of the foregoing. Customer may not copy or transfer
the Software, except as expressly provided in Section 3 of this
Agreement. Customer may not copy the printed materials
accompanying the Software without Company’s prior written
approval in each instance of such proposed copying.
5. Dual-Media Software.
Customer may receive the Software in more than one
medium. Regardless of the type or size of media Customer
receives, Customer may use only the single medium that is
appropriate for Customer’s single computer. Customer may
not use or install the other media on another computer.
Customer may not loan, rent, lease, distribute, sell, assign,
pledge, sublicense, timeshare, or otherwise transfer the
media to another user or use the media for the commercial
or other benefit of any third party, except as part of the
permanent transfer of the Software under Section 3.1 of this
Agreement.
6. Export Restrictions.
The Software is subject to the export control laws of the
United States and other countries. Customer may not export
or re-export the Software, unless Customer has first obtained
Company’s prior written permission and the appropriate
United States and foreign government licenses, at
Customer’s sole expense. Customer must otherwise comply
with, and contractually require that all of its employees
comply with, all applicable export control laws and
regulations in the use of the Software. The Software may not
be downloaded or otherwise exported or re-exported (a) into
any country for which the United States has a trade embargo,
or (b) to anyone on the U.S. Treasury Department’s list of
Specially Designated Nationals or the U.S. Commerce
Department’s Denied Persons List. Customer represents and
warrants that it is not located in, under the control of, or a
national or resident of any such country or on any such list.
Customer shall defend, indemnify and hold Company and all
successors, assigns, affiliates, suppliers, and each of their
officers, directors, employees, and agents harmless for, from,
and against any and all claims, allegations, damages,
available,” and does not warrant that the Software will be
uninterrupted or error free, and hereby disclaims any and
all liability in connection therewith. This warranty disclaimer
is made regardless of whether Company knows or had a
reason to know of Customer’s particular needs. No
employee, agent, dealer or distributor of Company is
authorized to modify this limited warranty, or make any
additional warranties, whether orally, in writing, or
otherwise. This Section 7.4 shall be enforceable to the fullest
extent permitted by applicable law.
8. Customer Remedies; Limitation of Liability.
8.1 If Customer finds what it reasonably believes to be a
failure of the Software to substantially conform to the
functional specifications in the Scope of Work, and provides
Company with a written report that describes such failure in
sufficient detail to enable Company to reproduce such
failure, Company’s and its suppliers’ entire liability and
Customer’s exclusive remedy is for Company to use
commercially-reasonable efforts to correct or provide a
workaround for such failure at no additional charge to
Customer. If, in Company’s sole discretion, it provides
Customer with replacement Software, the replacement
Software will be warranted in accordance with the provisions
of this Agreement for the remainder of the original warranty
period or thirty (30) days, whichever is longer. Outside the
United States, neither these remedies nor any product
support services offered by Company are available without
proof of purchase from an authorized non-U.S. source.
8.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE,
SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING BUT NOT
LIMITED TO ANY LOST DATA AND LOST PROFITS, ARISING
FROM OR RELATING TO THIS SLA, THE SOFTWARE, AND
RELATED DOCUMENTATION. COMPANY’S TOTAL
CUMULATIVE LIABILITY IN CONNECTION WITH THIS SLA, THE
SOFTWARE, AND RELATED DOCUMENTATION, WHETHER IN
CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE
AMOUNT OF THE LICENSE FEE ACTUALLY PAID TO COMPANY
HEREUNDER IN THE TWELVE- (12-) MONTH PERIOD
IMMEDIATELY PRECEDING THE ACTION THAT GAVE RISE TO
THE CLAIM. CUSTOMER ACKNOWLEDGES THAT THE LICENSE
FEE REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS
SLA AND THAT COMPANY WOULD NOT ENTER INTO THIS SLA
WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
9. Network Security Disclaimer
9.1 Internet Security.
Company’s Software may have the ability to connect to the
Internet. The Software is designed to operate within
Customer’s secure network environment, and the Software
does not provide any mechanism for security or privacy.
Specifically, the Software relies fully on Customer’s security
measures and implements no further security infrastructure.
Company makes no representations or warranties to
Customer regarding (i) the security or privacy of Customer’s
network environment; or (ii) any third-party technologies’ or
services’ ability to meet Customer’s security or privacy needs.
These third-party technologies and services may include, but
are not limited to, operating systems, database management
systems, web servers, and payment processing services.
10.1 The Software is a “commercial item”, as that term is
defined at 48 C.F.R. 2.101, consisting of “commercial
computer software” and “commercial computer software
documentation”, as such terms are used in 48 C.F.R. 12.212
or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R.
12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, the
Software is licensed to any U.S. Government end users (i) only
as a commercial end item and (ii) with only those rights as are
granted to all other end users pursuant to the terms and
conditions herein. Company and licensor of the Software is
Selectron Technologies, Inc., 12323 SW 66th Avenue,
Portland, Oregon 97223, USA. This Section 10.1, consistent
with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202 is in lieu of,
and supersedes, any other Federal Acquisition Regulation,
Defense Federal Acquisition Regulation Supplement, or other
clause or provision that addresses United States Government
rights in computer software, technical data, or computer
software documentation.
10.2 Company advises that, to the extent allowed by law, the
resultant contract terms and pricing may be extended to
other State of Colorado jurisdictions, public entities, political
subdivisions and government cooperative purchasing
group(s) whose processing requirements, applications,
specifications and standards coincide with the processing
requirements, applications, specifications and standards
herewith. The extension of this contract to any entity is at
the sole discretion of Company. A qualified entity choosing
to join this contract shall execute a separate contract with the
specifications, pricing, terms and rights provided herewith,
directly between the entity and Company, and shall commit
a separate purchase order and pay for supplies and services
by means of their individual accounting and purchasing
departments. Any processing requirements, applications,
specifications and/or standards not covered herewith will be
developed and priced separately, based on the entity’s
additional requirements and specifications, and appended to
the new resultant contract. The entity shall deal directly
with Company concerning the placement of orders, invoicing,
contractual disputes and all other matters. Failure to extend
this contract to any entity shall have no effect on the
consideration of Company’s current bids or agreements.
11. Support and Maintenance.
Customer may purchase support for and maintenance of the
Software from Company by entering into a separate
PremierPro Support and Maintenance Agreement with
Company.
12. Term and Termination.
12.1 This SLA shall continue indefinitely, unless terminated
earlier in accordance with this Section 12 (the “Term”).
12.2 Customer may terminate this SLA at any time by
returning or deleting all copies of the Software in Customer’s
possession and providing Company written notice that
Customer has done so. Under no circumstances will
Company provide a refund of paid fees to Customer.
12.3 Company may terminate this SLA, all other agreements
between the parties, if any, and Customer’s right to continue
to use the Software hereunder, immediately upon written
notice if Customer breaches a material term or condition of
this SLA, including Customer’s failure to pay the License Fee
when due, and fails to cure such breach within sixty (60) days
for any reason, please contact us at: Selectron Technologies,
Inc., 12323 SW 66th Avenue, Portland, Oregon 97223, USA;
www.stigov.com.
13.5 Notice.
All notices, consents, and other communications under this
Agreement must be delivered in writing by courier, by
electronic facsimile (fax), or by certified or registered mail
(postage prepaid and return receipt requested) to the other
party at the address set forth in Section 13.4 or beneath such
party’s signature, and will be effective upon receipt or three
(3) business days after being deposited in the mail as required
above, whichever is sooner. Either party may change its
address by giving notice of the new address to the other
party.
13.6 Public Announcements.
Customer shall cooperate with Company so that Company
may issue a press release concerning this Agreement;
provided, however, Company may not release any such press
release without the prior approval of Customer (which shall
not be unreasonably withheld, delayed, or conditioned).
However, without seeking prior approval in each instance,
Company shall have the right to use Customer’s name as a
customer reference, and to use Customer’s trade name on
Company’s customer lists.
13.7 Attorneys’ Fees.
In the event of a dispute between Customer and Company
concerning the Software or this SLA, the prevailing party in
the litigation shall be entitled to recover its reasonable
attorneys’ fees and expenses from the other party.
13.8 Confidentiality.
The Software and all related documentation and materials
provided to Customer under this Agreement contain valuable
trade secrets, copyrights, proprietary know-how,
information, algorithms, techniques, methods, processes,
and content (collectively for purposes of this Section 13.8,
“Proprietary Information and Materials”) that belong to
Company or its suppliers, and the Proprietary Information
and Materials are being made available to Customer in strict
confidence. ANY USE OR DISCLOSURE OF THE
PROPRIETARY INFORMATION AND
MATERIALS, OTHER THAN IN STRICT
ACCORDANCE WITH THIS SLA OR EXCEPT AS
PROVIDED BY LAW OR BY THE COLORADO
OPEN RECORDS ACT, IS STRICTLY
PROHIBITED AND IS ACTIONABLE AS A VIOLATION OF
COMPANY’S AND/OR ITS SUPPLIERS’ TRADE SECRETS,
COPYRIGHTS, AND OTHER INTELLECTUAL PROPERTY AND
PROPRIETARY RIGHTS, AS WELL AS A MATERIAL BREACH OF
THIS AGREEMENT.
13.9 Injunctive Relief.
In the event that Customer breaches any provision of Section
3, Section 4, Section 13.8, or any other material provision of
this Agreement, Customer acknowledges and agrees that
there can be no adequate remedy at law to compensate
Company for such breach; that any such breach will allow
Customer or third parties to compete unfairly with Company
resulting in irreparable harm to Company that would be
difficult to measure; and, therefore, that upon any such
breach or threat thereof, Company shall be entitled to
injunctive and other appropriate equitable relief (without the
In Witness Whereof, the parties have caused this Agreement to be executed by their duly authorized representative.
Selectron Technologies, Inc. Customer:
By: Todd A. Johnston By:
Signed: Signed:
Title: President Title:
Date: Date:
Address: 12323 66th Avenue Address:
Portland, OR 97223
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11/30/2015 11/30/2015
Director of Purchasing & Risk Management
Gerry Paul
Fort Collins, CO 80522
215 North Mason
necessity of proving actual damages or of posting a bond or
other security), in addition to whatever remedies Company
may have at law, in equity, under this Agreement, or
otherwise.
13.10 Waiver.
All waivers must be in writing. Any waiver or failure to enforce
any provision of this Agreement on one occasion will not be
deemed a waiver of any other provision or of such provision on
any other occasion.
13.11 Authority.
Any person executing this Agreement in a representative
capacity in so signing this Agreement acknowledges his or her
authority to do so and his or her authority to bind the entity
on whose behalf the Agreement is signed.
13.12 Entire Agreement.
This SLA constitutes the entire agreement between the
parties regarding the subject hereof and supersedes all prior
or contemporaneous agreements, understandings, and
communication, whether written or oral. This SLA may be
amended only by a written document signed by both parties.
The terms on any purchase order or similar document
submitted by Customer to Company will not modify the
terms and conditions of this Agreement or have any force or
effect.
13.13 Counterparts.
This Agreement may be signed in one or more counterparts,
each of which will be deemed to be an original copy of this
Agreement, and, when taken together, shall be deemed to
constitute one and the same agreement. Each party agrees
that the delivery of this Agreement by facsimile transmission
or by PDF attachment to an e-mail transmission will be
deemed to be an original of the Agreement so transmitted
and, at the request of either party, the other party will
confirm facsimile or e-mail transmitted signatures by
providing the original document.
[Signature Page Follows]
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of being notified of the breach by Company. Upon such
termination, Customer shall immediately cease all use of the
Software, and Company may terminate Customer’s access to
the Software. Further, upon such termination, Customer
must promptly return all copies of the Software and related
documentation in its possession or under its control to
Company and provide Company with written notice that it
has done so.
12.4 Sections 4, 7.4, 8.2, 9, 12, 13 and the rights and
obligations therein shall survive any termination of this SLA.
13. General Provisions.
13.1 Independent Contractor Relationship.
Company’s relationship with Customer will be that of an
independent Contractor and nothing in this Agreement should
be construed to create a partnership, joint venture, or
employer-employee relationship. Customer is not an agent of
Company and is not authorized to make any representation,
contract, or commitment on behalf of Company, or to bind
Company in any way. Company is not an agent of Customer
and is not authorized to make any representation, contract, or
commitment on behalf of Customer, or to bind Customer in
any way. Company will not be entitled to any of the benefits,
which Customer may make available to its employees, such as
group insurance, profit sharing or retirement benefits.
13.2 Governing Law; Jurisdiction.
This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado, without
reference to its conflict of law provisions. The United Nations
Convention on Contracts for the International Sale of Goods
does not apply to and shall not be used to interpret this
Agreement. Any action or proceeding arising from or relating
to this Agreement must be brought in the federal or state
court located in Larimer County, Colorado.
13.3 Severability.
If any provision of this SLA is unenforceable, such provision
will be changed and interpreted to accomplish the objectives
of such provision to the greatest extent possible under
applicable law, and the remaining provisions will continue in
full force and effect. Without limiting the generality of the
foregoing, Customer agrees that Section 8 will remain in
effect notwithstanding the unenforceability of any provision
in Section 7.
13.4 Contact Information.
Should Customer have any questions concerning this SLA, or
if Customer desires to contact Selectron Technologies, Inc.
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Customer is solely responsible for ensuring a secure network
environment.
9.2 Remote Access Security.
In order to enable code development, and Customer support
and maintenance of the Software (if purchased by Customer
pursuant to a separate support and maintenance
agreement), Company requires remote access capability.
Remote access is normally provided by installing PC-
Anywhere, ControlIT, or other industry standard remote
access software. It may also be provided through a Customer
solution such as VPN access. Regardless of what method is
used to provide remote access, or which party provides
remote access software, it is Customer’s responsibility to
ensure that the remote access method meets Customer’s
security requirements. Company makes no representations
or warranties to Customer regarding the remote access
software’s ability to meet Customer’s security or privacy
needs. Company also makes no recommendation for any
specific package or approach with regard to security.
Customer is solely responsible for ensuring a secure network
environment.
9.3 Outbound Services Disclaimer.
Outbound services are intended to create additional
methods of communication to Customer’s employees who
use the Software in support of existing processes. These
services are not intended to replace all interaction with
Customer’s employees or become critical path. While the
outbound services have been created with the best available
tools and practices, they are dependent on infrastructure
that is inherently not fail-proof, including but not limited to
infrastructure such as software, computer hardware,
network services, telephone services, and e-mail. Examples
of situations that could cause failure include but are not
limited to: down phone lines, all lines busy, equipment
failure, email address changes, internet service disruptions.
For this reason, while outbound services are valuable in
providing enhanced communication, they are specifically not
designed to be used as the sole method to deliver critical
messages. Customer acknowledges that it is aware of the
potential hazards associated with relying on an automated
outbound service feature, when using the Software, and
Customer acknowledges and agrees that it is giving up in
advance any right to sue or make any claim against Company,
and that Customer forever releases Company from any and
all liability, if Customer, or Customer’s employees, suffer
injury or damage due to the failure of outbound services to
operate, even though Customer does not know what or how
extensive those injuries or damages might be.
10. U.S. Government End Users.
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liabilities, and costs and expenses (including without
limitation attorneys’ fees and costs) arising out of Customer’s
violation of such export control laws. Customer further
agrees to comply with the United States Foreign Corrupt
Practices Act, as amended.
7. Representations and Warranties; Warranty Disclaimer
7.1 Customer represents and warrants that (a) it has full right
and power to enter into and perform its obligations under
this Agreement, and (b) it will take all reasonable precautions
to prevent injury to any persons (including employees of
Company) or damage to Company’s property during the Term
of this Agreement.
7.2 Company represents and warrants that (a) it has full right
and power to enter into and perform its obligations under
this Agreement, and (b) it will take all reasonable precautions
to prevent injury to any persons (including employees of
Customer) or damage to Customer’s property during the
Term of this Agreement.
7.3 Company warrants that the Software will perform
substantially in accordance with the specifications set forth
in the Scope of Work to the Professional Services Agreement,
for a period of one (1) year from the date of the Contract
Execution, as that term is defined in the PremierPro Support
and Maintenance Agreement, Exhibit A. Any changes or
modifications to the Software by any person other than
Company, or any combination of the Software with any other
materials by any person other than Company, voids this
limited warranty. This limited warranty is also void if failure
of the Software results from transportation, neglect, misuse,
or misapplication of the Software by any person other than
Company; from any accident beyond Company’s control;
from use of the Software not in accordance with this
Agreement or documentation provided in connection with
the Software; or from Customer’s failure to provide a suitable
installation or use environment for the Software.
7.4 The express warranties in Section 7.2 and 7.3 set forth
above are in lieu of all other warranties, express, implied or
statutory, arising from or related to this agreement and the
Software provided to customer hereunder, including, but
not limited to, any implied warranties of merchantability,
fitness for a particular purpose, title, and non-infringement
of third party rights. Customer acknowledges that it has
relied on no warranties other than the express warranties
in Section 7.2 and 7.3 of this agreement. Except for the
express warranty in Section 7.3 of this Agreement, Company
provides the software to customer “as is” and “as
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use of the Software and not retained any copies of the
Software.
3.2 Limitation on Reverse Engineering, Decompilation, and
Disassembly. Customer may not, and may not permit any
employee or third party to, reverse engineer, decompile,
translate, or disassemble the Software, or otherwise
determine or attempt to determine any source code,
algorithms, methods, or techniques used or embodied in the
Software, except and only to the extent that applicable law,
notwithstanding this limitation, expressly permits such
activity.
3.3 Other Use Restrictions. Customer may not use the
Software for any purpose other than for use on Customer’s
own internal computer networks, as set forth in this SLA.
Customer agrees to comply with all applicable laws, rules,
and regulations in its use of the Software. Customer may not,
and may not permit is employees or any third party to, (i)
modify, translate, or create derivative works based on or
derived from the Software; (ii) remove or alter any copyright,
trademark, or other proprietary notices, legends, symbols, or
labels appearing on or in the Software; (iii) perform, or
release the results of, benchmark tests or other comparisons
of the Software with other software, media, or materials;
(iv) permit the Software to be used for or in connection with
processing data or other information on behalf of any third
party; or (v) incorporate the Software or any portion thereof
into any other materials, products, or services.
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