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HomeMy WebLinkAboutKittitas equivant SLA 12082017 Final EQ Signed Rev. 06022016 1 of 10 SOFTWARE LICENSE AGREEMENT This Software License Agreement ("Agreement") is entered into as of the _____ day of ____________, 20___ ("Effective Date”) by and between CourtView Justice Solutions Inc. d/b/a a Delaware corporation, with offices at 4825 Higbee Ave NW, Canton, OH 44718 (“”), and Kittitas County Prosecutor’s Office with offices at 205 West 5th Ave, Room 213, Ellensburg, WA 98926 (“CUSTOMER”), and describes the terms and conditions pursuant to which shall license to CUSTOMER certain Software (as defined below). 1. DEFINITIONS a. "Confidential Information" means this Agreement and all its exhibits, any amendment hereto signed by both parties, all software listings, Documentation , as defined herein below, information, data, drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Software, source code relating to the Software, and any other proprietary information supplied to CUSTOMER by , including all items defined as "confidential information" in any other agreement between CUSTOMER and whether executed prior to or after the date of this Agreement. b. "Documentation" means any instructions manuals or other materials, and on -line support files regarding the Use of the Software that is provided by . c. " Software" means the computer software programs specified in Exhibit A and licensed by hereunder. d. "Site" means the physical location of one or more CPUs at which CUSTOMER is entitled to Use the Software. e. “Software” means Software and Third Party Software provided by . f. "Software Maintenance", if purchased by CUSTOMER, means the services described in the separate Maintenance Agreement. g. “Third Party Software” means software licensed by a third party, other than , and is provided by subject to such the license of such third party. h. "Update" means error corrections or fixes to the version of the Software specified in Exhibit A. i. "Use" means utilization of the Software by CUSTOMER for its own internal information processing services and computing needs . 2. GRANT OF LICENSE a. Upon receipt by of the License Fee agreed to by the parties and subject to the terms and conditions of this Agreement, hereby grants to CUSTOMER a non- exclusive, perpetual, limited, non-transferable license for the number of users specified in Exhibit A (“Users”) to: (1) Use the Software in the CUSTOMER’s database Rev. 06022016 2 of 10 servers and application servers designated in Article XI (the database servers and application servers shall be referred to as the “Enterprise”), and (2) use the Documentation in connection with Use of the Software. The CUSTOMER may copy, in whole or in part, any printed material relative to the Software that may be provided by under this Agreement solely for its internal purposes in connection with its use of the Software. Additional copies provided by will be billed to CUSTOMER at ’s standard rates. CUSTOMER may replace any component of the Enterprise by giving prior written notice of the new servers . Additional fees will be assessed if the use of Software is in excess of limits defined in Exhibit A. CUSTOMER’s license is to use the Software in its own business. CUSTOMER has no right to use the Software in processing work for third parties. b. The CUSTOMER agrees to keep the original and any copies of that Software at the same location as the CUSTOMER’s designated servers, except that a machine- readable copy of the Software may be kept at another facility for archive or emergency restart purposes only. However, if any part of the Enterprise becomes temporarily inoperative the license may be extended to backup servers until such time as the Enterprise becomes operative again at which time all Software will be deleted from the backup servers and returned to the Enterprise. c. shall issue to CUSTOMER, as soon as practicable after the Effective Date, the number of machine-readable copy or copies of the Software set forth in Exhibit A for Use at the Sites only, along with the accompanying Documentation. d. CUSTOMER shall have the right to use only one copy or image of the Software for production purposes to manage up to the number of Users identified in the Product Schedule (Exhibit A) and shall not copy or use the Software for any other purpose except: (i) for archival purposes, (ii) in connection with a disaster recovery program, and (iii) for the purpose of testing the operation of the Software and/or training on the Software, provided such copies shall not be used in a live production environment. CUSTOMER may not otherwise copy the Software, except as permitted by this Agreement. All copies of the Software will be subject to all terms and conditions of this Agreement. Whenever CUSTOMER is permitted to copy or reproduce all or any part of the Software, all titles, trademark symbols, copyright symbols and legends, and other proprietary markings must be reproduced. e. CUSTOMER may increase the number of authorized Users by modification of this Agreement and paying in full the applicable fees. Upon signing the modification and paying in full the applicable fees, shall have the right to monitor the revised number of Users as set forth in that modification. f. All of CUSTOMER’s records with regard to the Software Use shall be made available to at all reasonable times at ’s request, and CUSTOMER shall certify to the truth and accuracy thereof. g. If any Third Party Software is provided to CUSTOMER pursuant to this Agreement, such license shall be in accordance with terms of that Third Party Software license, or such additional terms as set forth in Exhibit A. 3. ADDITIONAL SOFTWARE In the event the CUSTOMER decides to acquire Software in addition to that indicated in Exhibit A of this Agreement as of the Effective Date (the "Additional Software"), Rev. 06022016 3 of 10 the parties shall modify this Agreement to include the Additional Software on Exhibit A and associated license fee(s) and make any other changes necessary for coverage of the Additional Software hereunder . The terms and conditions of this Software License Agreement shall apply to the Additional Software upon execution of such modification. 4. LICENSE RESTRICTIONS CUSTOMER agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party: a) Sell, lease, license or sublicense the Software or the Documentation, except as authorized by ; b) Decompile, disassemble, or reverse engineer the Software, in whole or in part; c) Allow access to the Software by any User other than CUSTOMER’s employees for CUSTOMER’s internal purposes, except as authorized by ; d) Write or develop any derivative software of any other software program based upon the Software or any Confidential Information; e) Use the Software to provide processing services to third parties, or otherwise use the Software on a ‘service bureau’ basis; f) Provide, disclose, divulge or make available to, or permit use of the Software by any third party without ’s prior written consent; or g) Modify the Software. 5. FEES AND PAYMENTS a. In consideration of the license granted pursuant to Article II, CUSTOMER agrees to pay the fees specified in Exhibit A. All license fees are due and payable in full upon the Effective Date. b. CUSTOMER shall reimburse for all taxes and charges assessed or imposed with respect to amounts payable hereunder, including, without limitation, state and local, occupation, sales, VAT, GST, use or excise taxes paid or payable by , exclusive, however, of taxes imposed on ’s net income by the United States or any political subdivision thereof. c. reserves the right to apply a late payment charge of 1.5% per month to amounts outstanding more than thirty (30) days after the due date of the invoice. 6. NON-DISCLOSURE a. CUSTOMER acknowledges that the Confidential Information constitutes valuable trade secrets and CUSTOMER agrees that it shall use Confidential Information solely in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without ' prior written consent. CUSTOMER agrees to exercise due care in protecting the Confidential Rev. 06022016 4 of 10 Information from unauthorized use and disclosure . However, CUSTOMER bears no responsibility for safeguarding information that is publicly available, already in CUSTOMER’s possession and not subject to a confidentiality obligation, obtained by CUSTOMER from third parties without restrictions on disclosure, independently developed by CUSTOMER without reference to Confidential Information, or required to be disclosed by order of a court or other governmental entity. b. acknowledges that, in the course of its performance of the Agreement, it may become privy to certain information that CUSTOMER deems proprietary and confidential. agrees to treat all such information that is identified as proprietary and confidential in a confidential manner and will not disclose or permit to be disclosed the same, directly or indirectly, to any third party without CUSTOMER’s prior written consent. However, bears no responsibility for safeguarding information that is publicly available, already in ' possession and not subject to a confidentiality obligation, obtained by from third parties without restrictions on disclosure, independently developed by without reference to such information, or required to be disclosed by order of a court or other governmental entity. c. In the event of actual or threatened breach of provisions of A and B above, the parties acknowledge that the non-breaching party may have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief. 7. LIMITED WARRANTY AND LIMITATION OF LIABILITY a. Limited Warranty. warrants for a period of ninety (90) days following the date of delivery of the Software to CUSTOMER that the Software will substantially operate according to the specifications set forth in the Documentation . If it is determined by CUSTOMER that the Software does not substantially operate according to such specifications, may, at its option and expense, apply commercially reasonable efforts to designing, coding and implementing programming changes to the source code to correct reproducible errors or correcting misstatements and omissions in the User's Guide and code documentation . Licensee shall report all errors or other defects in the Software to immediately upon their discovery. It is acknowledged that the Software is inherently complex and may contain errors and cannot and does not guarantee to correct all such errors. The remedies set forth in this Article VII, paragraph A constitutes CUSTOMER’s sole and exclusive remedy for br each of this Warranty. does not warrant Third Party Software . will transfer any warranty provided by the licensor of the Third Party Software to CUSTOMER. b. NO OTHER WARRANTIES. EQUIVANT MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND SUPPORT . EQUIVANT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. c. LIMITATION ON LIABILITY. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, IN NO EVENT WILL EQUIVANT BE LIABLE FOR ANY LOSS OF Rev. 06022016 5 of 10 PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITUIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE EQUIVANT SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF EQUIVANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EQUIVANT WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SAID SERVICES. EQUIVANT’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEE PAID BY CUSTOMER TO EQUIVANT UNDER THIS AGREEMENT. THE PROVISIONS OF THIS ARTICLE VII ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND EQUIVANT. EQUIVANT’S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. NO ACTION ARISING OUT OF ANY BREACH OR CLAIMED BREACH OF THIS AGREEMENT OR TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN SIX (6) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS AGREEMENT, A CAUSE OF ACTION WILL BE DEEMED TO HAVE ACCRUED WHEN A PARTY KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE BREACH OR CLAIMED BREACH. NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF HAS AUTHORITY TO BIND EQUIVANT TO ANY ORAL REPRESENTATIONS OR WARRANTY CONCERNING THE SOFTWARE. ANY WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT WILL NOT BE ENFORCEABLE. 8. INDEMNIFICATION FOR INFRINGEMENT a. , at its own expense, shall defend or settle any claim, action or allegation brought against CUSTOMER that the Software infringes any copyright, trade secret or other similar proprietary right of any third party and shall pay any final judgments awar ded or settlements entered into, provided that CUSTOMER gives prompt written notice to of any such claim, action or allegation of infringement and gives the authority to proceed as contemplated herein . will have the exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion, and CUSTOMER may not settle or compromise such claim, action or allegation, except with prior written consent of . CUSTOMER shall give such assistance and information as may reasonably require to settle or oppose such claims . In the event any such infringement, claim, action, or allegation is brought or threatened, may, at its sole option and expense: 1. Procure for CUSTOMER the right to continue Use of the Software or infringing part thereof, or 2. Modify or amend the Software or infringing part thereof or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable, Rev. 06022016 6 of 10 3. Terminate this Agreement and repay to CUSTOMER the License Fee . and CUSTOMER will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination. b. The foregoing obligations shall not apply to the extent the infringement arises as a result of modifications to the Software made by any party other than or 's authorized representative or CUSTOMER’s unauthorized use or combinatio n of the Software with software or data not supplied by as part of the Software. c. The foregoing states the entire liability of with respect to infringement of any copyright, trade secret or other proprietary right. 9. TERMINATION a. This Agreement may be terminated by CUSTOMER upon thirty (30) days' prior written notice to , with or without cause, provided that no such termination will entitle CUSTOMER to a refund of any portion of the License Fee. b. may, by written notice to CUSTOMER, terminate this Agreement and the License granted, under Section 2 of the Agreement, if any of the following events ("Termination Events") occur: 1. CUSTOMER fails to pay any amount due within thirty (30) days after gives CUSTOMER written notice of such nonpayment, or 2. CUSTOMER is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after gives CUSTOMER written notice of such breach, or 3. CUSTOMER (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes. 4. If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination . Termination of this Agreement will not affect the provisions regarding CUSTOMER’s or ' treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming ' liability, which provisions will survive termination of this Agreement. c. Within thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, CUSTOMER shall return the Software and all copies, in whole or in part, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form. CUSTOMER shall furnish with a certificate signed by an executive officer of CUSTOMER verifying that the same has been done. Rev. 06022016 7 of 10 10. ASSIGNMENT Neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by either party, in whole or in part, whether voluntary or by operation of law, except by way of sale of assets, merger or consolidation, without the prior written consent of the other party, such consent will not be unreasonably withheld, and any attempted assignment without such consent shall be void . No assignment of this Agreement shall be valid until and unless consented to in writing by the non -assigning party and assumed by the assignee in writing . When duly assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assignees. 11. CUSTOMER’S ENTERPRISE CUSTOMER’s application server(s) and database server(s) are as follows: Server(s) Location(s) Application Server(s): Up to two Environments Customer Premise Database Server(s): Up to two Environments Customer Premise 12. ENTIRE AGREEMENT This Agreement and any schedules or exhibits attached thereto contain the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous proposals, discussions, agreements, CUSTOMER issued purchase order, or document of like intent or purpose, understandings, commitments, representations of any kind, whether oral or written, relating to the subject matter hereof, except as provided in Section 1a with respect to the definition of “Confidential Information.” It is expressly agreed that if CUSTOMER issues a purchase order or other document for the products provided under this Agreement, no terms, conditions or provisions contained therein shall have any effect on the rights, duties or obligations of the parties under, or in any way modify, this Agreement, regardless of any failure by to object to such terms, conditions or provisions . This Agreement sets forth the sole and entire understanding between and CUSTOMER with respect to the subject ma tter. No amendments to this Agreement, either at the execution or subsequently, shall be binding on or CUSTOMER unless agreed to in writing by both parties. 13. GENERAL TERMS a. All provisions of this Agreement, which by their nature should survive termination of this Agreement, will so survive. b. CUSTOMER may not export or re-export the Software without the prior written consent of and without the appropriate United States and foreign government licenses. c. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Delay or failure by either party to exercise any right hereunder, or to enforce any provision of this Agreement will not be considered a waiver thereof and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No single waiver will Rev. 06022016 8 of 10 constitute a continuing or subsequent waiver, nor shall a waiver of any one pr ovision of the Agreement be deemed to be a waiver of any other provision. d. If any term, condition or provision in this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, the parties shall work in good faith to agree such modification that will to the maximum extent possible preserve the original intention of said term, condition or provision. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, c onditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. e. This Agreement shall be governed by the laws of the State of Delaware, without regard to its laws relating to conflict or choice of laws. f. Any communication or notice permitted under the terms of this Agreement or required by law must be in writing, and will be deemed given and effective: (i) when delivered personally with proof of receipt, (ii) when sent by e -mail, (iii) when delivered by overnight express, or (iv) three (3) days after the postmark date when mailed by certified or registered mail, postage prepaid, return receipt requested and addressed to a party at its address for notices. Each party's address for notices is stated below. Such address may be changed by a notice delivered to the other party in accordance with the provisions of this Section. Customer Prosecuting Attorney General Manager Kittitas County Prosecuting Attorney’s Office 205 W, 5th Ave 4825 Higbee Avenue NW Ste. 213 Suite 101 Ellensburg, WA 98926 Canton, Ohio 44718 Tel. No. 509-962-7520 Tel. No. 330.470.4280 Fax No. 509-962-7022 Fax No. 330.494.2483 Copy to: Copy to: Elishia Harvill, Office Manager Contract Manager Kittitas County Prosecuting Attorney’s Office 205 W. 5th Ave 4825 Higbee Avenue NW Ste. 213 Suite 101 Ellensburg, WA 98926 Canton, Ohio 44718 g. The parties will seek a fair and prompt negotiated resolution within ten (10) days of the initial notice of the dispute (“Dispute”). If the Dispute has not been resolved after such time, the parties will escalate the issue to more senior levels . If the parties are unable to resolve any dispute at the senior management level, then any controversy, cla im, or Dispute arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Before commencing any such arbitration, the parties agree to enter into negotiations to resolve the Dispute . If the parties are unable to resolve the Dispute by good faith negotiation, either party may refer the matter to arbitration . The arbitrator(s) shall be bound to follow the provisions of this Agreement in resolving the Dispute, and may not award any damages excluded by this Agreement . The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction. The prevailing party will Rev. 06022016 9 of 10 be entitled to recover its reasonable attorneys' fees and costs, in addition to any other relief ordered by the arbitrator(s). Such fees and costs will include those incurred in connection with the enforcement of any resulting judgment or order, and any post judgment order will provide for the right to receive such attorneys' fees and costs. Any request for arbitration of a claim by either party against the other relating to this Agreement must be filed no later than six (6) months after the date on which concludes performance under this Agreement. Nothing herein shall prevent either party from seeking a preliminary or permanent injunction to preserve the status quo or prevent irreparable harm during the arbitration process. h. Neither party will incur any liability to the other party on account of any loss or damage resulting from any failure to perform or any delay in performing any of its obligations hereunder if such failure or delay is due, in whole or in part, to events, circumstances or causes beyond its reasonable control and without its fault (Force Majeure), including without limitation, any natural catastrophe, fire, war, riot, strike, or any general shortage or unavailability of materials, components or transportation facilities, or any governmental action or inaction, but the failure to meet financial obligations is expressly excluded. Upon the occurrence of such event of Force Majeure, the affected party will immediately give notice to the other party with relevant details, and will keep the other party informed of related developments. i. CUSTOMER acknowledges that may desire to use its name in press releases, product brochures and financial reports indicating that CUSTOMER is a customer of , and CUSTOMER agrees that may use its name in such a manner, subject to CUSTOMER’s consent, which consent shall not be unreasonably withheld. j. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have entered into this Software License Agreement as of the Effective Date. CUSTOMER By: _______________________________ By: _______________________________ Title: _____________________________ Title: ______________________________ Date: _____________________________ Date: ______________________________ Jeffrey Harmon General Manager January 19, 2018 Rev. 06022016 10 of 10 Exhibit A SOFTWARE LICENSE(S) AND FEE(S)