HomeMy WebLinkAboutCC Resolution 10827 (EDEN Software)RESOLUTION NO. 10827
RESOLUTION AWARDING CONTRACT FOR FINANCIAL
APPLICATIONS SYSTEMS SOFTWARE AND SERVICES,
PROJECT NO. 019-1430-104-8000, TO EDEN SYSTEMS, INC., IN
THE AMOUNT OF $399,340.00 AND ALLOCATE AN ADDITIONAL
$279,000.00 IN FUNDING OUT OF THE GENERAL FUND.
WHEREAS, on the 12th day of December, 2000, pursuant to due and legal notice published
in the manner provided by law, inviting sealed bids for proposals for the work hereinafter
mentioned, as more fully appears from the Affidavit of Publication thereof on file in the office of
the City Clerk of the City of San Rafael, California, the City Clerk of said City did publicly open,
examine and declare all sealed bids or proposals for financial systems software application
and services in accordance with the cost proposal request (CPR) on file in the office of said
City Clerk; and
WHEREAS, the bid of Eden Systems Inc. was and is the lowest and best bid for said work
and said bidder is the lowest responsible bidder therefore;
NOW, THEREFORE, IT IS HEREBY ORDERED AND RESOLVED that the bid of Eden
Systems, Inc., is hereby accepted and included as part of the Agreement attached to and
made part of this resolution.
IT IS FURTHER ORDERED AND RESOLVED that the City Manager of said City be
authorized and directed to execute the Agreement with Eden Systems Inc. for said work as
attached hereto and made a part of this resolution.
BE IT FURTHER RESOLVED that the Assistant City Manager is hereby authorized to take
any and all such actions and make changes as may be necessary to accomplish the purpose
of this resolution., including approval of modification of scope as provided in the agreement in
a total amount not to exceed $20,000.
BE IT FURTHER RESOLVED
General Fund toward this project.
that an additional $279,000.00 is hereby allocated out of the
I, JEANNE M. LEONCINI, City Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the
Council of said City held on the 7th day of May, 2001, by the following vote, to wit:
AYES: COUNCIL MEMBERS: Cohen, Miller, Phillips and Mayor Boro
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS Heller
JEAN M. LECONCINI, CITY CLERK
WAManagement Services- WorkFile\Finance- WorkFile\Council Material\Resolutions\2001\Eden Systems.doc
COMPUTER SYSTEM SOFTWARE LICENSE AND USE AGREEMENT
by and between
City of San Rafael
and
Eden Systems, Inc.
pursuant to
Integrated Financial Information System
Cost Proposal Request
dated
12/12/00
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
THIS PAGE INTENTIONALLY LEFT BLANK
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/ JSE AGREEMENT
TABLE OF CONTENTS
PREAMBLE...................................................................................................................................1
1.00 DEFINITIONS...................................................................................................................1
1.01 DEFINITION OF TERMS......................................................................................................................1
1.02 TERM........................................................................................................................................................3
1.03 INCLUDED DOCUMENTS....................................................................................................................3
1.04 SUBCONTRACTORS..............................................................................................................................4
1.05 BACKGROUND.......................................................................................................................................4
1.06 DATE OF THE AGREEMENT..............................................................................................................5
2.00 PROPERTY RIGHTS.......................................................................................................5
2.01 WARRANTY OF OWNERSHIP/RIGHT TO SELL SOFTWARE....................................................5
2.02 HOLD HARMLESS AND INDEMNIFICATION-SOFTWARE.........................................................5
2.03 COPYRIGHT NOTICE...........................................................................................................................5
3.00 PROPRIETARY AND TRADE SECRET INFORMATION........................................5
3.01 CUSTOMER'S PROTECTION OF LICENSED PROGRAMS..........................................................5
3.02 DESIGNATION OF CONFIDENTIALITY..........................................................................................6
3.03 CUSTOMER'S RIGHTS TO COPY LICENSED PROGRAMS.........................................................6
4.00 LICENSE GRANT.............................................................................................................6
4.01 SCOPE OF LICENSE..............................................................................................................................6
4.02 LICENSED MATERIALS.......................................................................................................................7
4.03 SCOPE OF SERVICES............................................................................................................................7
4.04 SITE OF SERVICES................................................................................................................................7
4.05 MODIFICATION OF SCOPE................................................................................................................7
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City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
4.06 Minimum Hardware and Software Requirements................................................................................8
4.07 Necessity for Third -party Software.........................................................................................................9
5.00 PROGRAM SUPPORT SERVICES................................................................................9
5.01 ON-GOING SUPPORT FOR LICENSED PROGRAMS.....................................................................9
5.02 DATA CONVERSION.............................................................................................................................9
5.03 TRAINING................................................................................................................................................9
5.04 SYSTEM SUPPORT SERVICES.........................................................................................................10
5.05 Scope of Support Services......................................................................................................................10
5.06 Fees and Charges for support services..................................................................................................11
5.07 Customer Responsibilities......................................................................................................................11
5.08 Proprietary Rights..................................................................................................................................11
5.09 Termination of Support.........................................................................................................................12
5.10 PLATFORM PROTECTION.................................................................................................................12
6.00 INSTALLATION, DELIVERY, AND ACCEPTANCE..............................................13
6.01 DELIVERY And Installation................................................................................................................13
6.02 ACCEPTANCE AND PAYMENT........................................................................................................13
6.02.1 ACCEPTANCE TESTING..................................................................................................................14
6.02.2 RELIABILITY TESTING...................................................................................................................15
6.02.3 PAYMENT SCHEDULE....................................................................................................................15
7.00 CUSTOMER RESPONSIBILITIES..............................................................................16
7.01 CUSTOMER SUPPORT OF VENDOR...............................................................................................16
8.00 WARRANTY OF PERFORMANCE............................................................................17
8.01 COMPLIANCE WITH STATE AND FEDERAL AUDIT REQUIREMENTS..................................17
8.02 WARRANTY OF PERFORMANCE...................................................................................................17
8.03 YEAR 2000 COMPATIBILITY............................................................................................................17
8.04 LIQUIDATED DAMAGES...................................................................................................................18
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City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
8.05 CORRECTION OF ERRORS UNDER THE WARRANTY.............................................................18
8.06 ORAL REPRESENTATIONS...............................................................................................................19
8.07 PROGRESS REPORTS.........................................................................................................................19
8.08 TERMINATION.....................................................................................................................................19
8.09 NO DISABLING CODE........................................................................................................................19
9.00 LIABILITY, INDEMNIFICATION AND DEFAULT................................................19
9.01 LIABILITY, INDEMNIFICATION AND DEFAULT........................................................................19
9.02 BANKRUPTCY/SUPPORT CESSATION...........................................................................................20
9.03 INSURANCE...........................................................................................................................................20
9.04 LIMITATION OF LIABILITY.............................................................................................................21
9.05 DEFAULT...............................................................................................................................................21
10.00 GENERAL PROVISIONS..............................................................................................21
10.01 ASSIGNMENT.......................................................................................................................................21
10.02 GOVERNING LAW...............................................................................................................................21
10.03 ENTIRE AGREEMENT/AMENDMENTS..........................................................................................21
10.04 CONSTRUCTION..................................................................................................................................22
10.05 SERVICE OF NOTICE.........................................................................................................................22
10.06 TAXES.....................................................................................................................................................22
10.07 COSTS AND ATTORNEY'S FEES......................................................................................................23
SIGNATURES:............................................................................................................................23
EDEN SW LICENSE AGREEMENT FINAL DAnc ui
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
_' 9_Dr.1,101:
This Agreement entered into this 7th day of May 2001 by and between City of San Rafael, a
California municipal corporation located at:
1400 Fifth Avenue
San Rafael, CA 94901
hereinafter sometimes referred to as `Customer' and Eden Systems, Inc., a Washington
corporation with offices located at:
507 Industry Drive
Seattle, WA 98188
hereinafter sometimes referred to as `Vendor;'
WITNESSETH:
1.00 DEFINITIONS
1.01 DEFINITION OF TERMS
It is the Customer's understanding that within the limits of common usage, a word in a
contract means what the contract says it means.
For purposes of this Agreement, the following are defined terms:
A. The term "System" shall mean the Licensed Programs and Materials, and software
licensed specifically under this Agreement to be delivered by the Vendor in
response to the Project Definition detailed herein.
B. The term "Project System" shall include any and all computer code in both printed
and machine readable form developed or modified under the scope of this
Agreement, its translated or compiled version, and all specifications and other
written documentation (in printed or machine readable form) relating thereto as
well as any additional hardware, hardware component, or peripheral device directly
associated with the items covered by this Agreement.
C. The term "Licensed Programs" shall mean a licensed information processing
program or programs consisting of a series of instructions or statements which is
machine readable commonly referred to as "application software" which is
purchased from a third party and is required in conjunction with the items covered
by this Agreement.
D. The term "Licensed Materials" shall mean any materials related to the Licensed
Programs including, without limitations, user's guides, technical guides, training
EDEN SW LICENSE AGREEMENT FINAL PAGE 1
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
materials, Vendor guidelines and customer support instructions provided for use in
connection with the Licensed Programs. (It is the Customer's understanding that
the term "Materials" is intended to be broader in scope than "documentation" which
is often employed in computer agreements as the term "documentation" is deemed
to be too limiting in scope).
E. The term "Licensed Programs and Materials" shall mean both the Licensed
Programs and Licensed Materials as defined above.
F. The term "System Software" shall mean hardware manufacturer -supplied or other
third -party licensed programs and materials that control hardware functions,
commonly referred to as "operating systems", and file management utilities,
compilers and programming languages, etc.
G. The term "Functional Specifications" shall mean a written description of the
Customer's procedures that are to be automated by virtue of the Licensed Programs
proposed by the Vendor in response to the Technical Specifications detailed herein.
H. The term "Technical Specifications" shall mean the written description of the
systems to be purchased, leased or licensed as included in the Customer's CPR
(Integrated Financial Information System CPR, submitted 12/20/00), any amend-
ments and the Vendor's entire proposal. The technical specifications and the
Vendor's proposal regarding the technical specifications are deemed included as
part of the Agreement as is the entire CPR. In addition, any written descriptions,
reports, or examples of Customer systems made available to Vendors during the
CPR process for review are deemed included as part of the Agreement.
I. The term "Enhancement" shall mean any program, any part thereof, or any
materials not included in the Licensed Programs and Materials at the time of
execution of this Agreement that add significant new functions or substantially
improved performance thereto by changes in system design or coding.
J. The term "Use" shall include, but not be limited to, copying any portion of the
Licensed Programs or Licensed Materials into a computer or transmitting them to a
computer for processing of the instructions or statements contained in the Licensed
Programs or Materials.
K. The term "Updates" shall mean program logic and documentation changes and
improvements to correct known defects and maintain the operational quality of the
Licensed Program and changes required to keep it current with current versions of
the System Software or other environmental software, firmware, or hardware as
specified by the hardware manufacturer.
L. The term "Project Definition" shall include the Customer's Functional
Specifications, Technical Specifications, and the Vendor's proposal for scope and
content of work, including cost and timelines. Such documents shall become a part
of this Agreement by reference and shall be signed by both Vendor and Customer
before work shall begin.
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City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
M. The term "Source Code" shall mean all of the instructions, in both printed and
machine-readable form, needed to compile, link, and execute any or all of the
software covered by this Agreement. It must include, by definition, all of the code
necessary to take the raw instructions that are convertible and convert them into
usable, executable Object Code on the hardware environment(s) at the Customer's
site(s). It must also include all of the history and documentation for a reasonably
trained technician to take over the on-going support of the systems involved. Any
third party development software utilities not directly available from Vendor would
be commercially available to Customer. The Customer is responsible for acquiring
said development software utilities either through Vendor, if available, or directly
from company who developed and has rights to said utilities.
N. The term "Object Code" shall mean the machine-readable, executable form of the
software covered by this Agreement that enables the hardware environment at the
Customer's site(s) to perform the functions as defined by the Project Definition.
O. The term "Module" shall mean a subset of the packaged License Programs that
relate to a specific set of functions as defined in the Cost Proposal Request
document and assigned a specific paragraph number. In the Vendor's CPR
response form RF4, some modules were cross-referenced as included with other
modules for which as specified license fee was quoted.
1.02 TERM
Except as provided for termination for cause in sections 6.02, 8.08 and 9.01, this
Agreement shall continue for a term ending ten (10) years from the effective date of this
Agreement as provided in section 1.06, after which date of the agreement shall
automatically extend for successive one-year periods unless a written notice of
termination has been given by either party to the other party at least six (6) months prior
to the end of such a one-year extension period. The obligations set forth in sections 2.01,
2.02, 3.01, 3.02, 3.03, 8.02 and 9.01 shall survive termination of this Agreement.
1.03 INCLUDED DOCUMENTS
This Agreement is inclusive of the following documents in order of precedence:
A. Project Schedule - Exhibit A
B. Initial Award - Exhibit B
1) Modified Software Cost Proposal Price Form (RF4-Eden-Awd) -
Application/Module/Component section
2) Modified Hardware/System Software Cost Proposal Price form (RF5-Eden-
Awd) — Component/System Software section
C. Project Work Specifications — Exhibit C
1) Modified Software Cost Proposal Price (RF4-Eden-Awd) - Support section
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City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
2) Modified Hardware/System Software Cost Proposal Price form (RF5-Eden-
Awd) — Support section
3) City Developed Crystal Reports projects
4) Eden Developed Crystal Reports projects
5) Modifications Projects
D. Training -Exhibit D
1) Modified Software Cost Proposal Price Form (RF4-Eden-Awd)-Training section
2) Modified Hardware/System Software Cost Proposal Price form (RF5-Eden-
Awd) — Training section
E. Data Conversion Specifications — Exhibit E
1) Specifications for Importing InForum Journal Entry Transactions -Exhibit E (1)
2) Specifications for Importing InForum Gold Payroll Activity - Exhibit E (2)
F. Vendor Insurance Certificate(s) - Exhibit F
G. Vendor's Response to Customer's CPR (included by reference)
H. Customer's Cost Proposal Request (included by reference)
1.04 SUBCONTRACTORS
Vendor hereby accepts full responsibility for the obligations outlined by this Agreement.
The Customer agrees that Vendor may sub -contract some or all of the performance of its
duties provided for herein, provided that the Customer approves of the sub -contractor.
Nothing in this paragraph shall be interpreted as authorizing the assignment of this
Agreement by Vendor. Vendor has fully disclosed the names of all individuals and
organizations to be used as subcontractors in conjunction with this Agreement. Vendor
further agrees that changes or additions to the list of subcontractors will not be made
without prior written consent of the Customer, which shall not be unreasonably withheld.
1.05 BACKGROUND
This Agreement is issued as the result of Customer's CPR (Integrated Financial Information
System CPR). Other contracts and products related to this Agreement which the Vendor
hereby acknowledges are as follows:
1. Quadrant Systems, Inc. (Cash Receipts)
2. HdL Software, LLC (Business Licenses)
3. ESCOM Software Services, LTD (Recreation)
4. CRW Associates (Building Permits)
5. Principal Decisions Systems, International/Telestaff (Time
Entry/Scheduling)
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City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
1.06 DATE OF THE AGREEMENT
The effective date of the Agreement will be the date on which the last party signed the
contract if both parties did not sign on the same date. The Customer requires that the
successful Vendor supply Vendor -signed completed documents for Customer and Counsel
review and approval. Therefore, the effective date is anticipated to be the date the
Customer signs the Agreement after review and approval by the Customer.
2.00 PROPERTY RIGHTS
2.01 WARRANTY OF OWNERSHIP/RIGHT TO SELL SOFTWARE
Vendor hereby stipulates that it is the sole owner of all Licensed Programs and
Materials, or that it has the right to sell, lease, or grant and support such Licensed
Programs and materials, free and clear of any liens and encumbrances. Any and all legal
actions regarding the Licensed Programs and licensed materials, or any previous version of
them under any name, in the past fifteen years has been fully disclosed to the Customer.
2.02 HOLD HARMLESS AND INDEMNIFICATION -SOFTWARE
In the event of a claim that the Licensed Programs constitute an infringement of a copyright
or patent, Vendor shall hold harmless and indemnify Customer and its officers, employees
and agents from every claim or demand resulting therefrom. Vendor shall, at its own cost,
risk and expenses, defend any claim on behalf of Customer and its officers, employees and
agents and satisfy any judgment rendered against any of them Customer shall promptly
notify Vendor of any such claim. Vendor may select its own counsel to defend such claim
after giving Customer an opportunity for advice and input of the selection of counsel.
2.03 COPYRIGHT NOTICE
It is the Customer's understanding that under the Copyright Act of 1978, immediate and
automatic copyright protection occurs upon completion of a work in a tangible form.
Vendor has actionable right to claim infringement of his copyright of the Licensed
Programs and Materials and/or System Software for up to two (2) years after any
infringement thereof regardless of notice or lack thereof. Vendor will mark all copies of
the Licensed Programs and Materials with a copyright notice indicating Vendor's
ownership. Placing of such copyright notice shall not be deemed a publication or
placement in the public domain.
3.00 PROPRIETARY AND TRADE SECRET INFORMATION
3.01 CUSTOMER'S PROTECTION OF LICENSED PROGRAMS
It is the Customer's understanding that Licensed Programs and Materials, which the
Vendor considers to be proprietary and a trade secret, will be treated by the courts as a
EDEN SW LICENSE AGREEMENT FINAL PAGE 5
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
trade secret if the Vendor's behavior toward the Licensed Programs and Materials show an
effort to preserve the secret. .
Customer will make reasonable effort by giving instruction to its employees to protect the
confidential nature of the Licensed Programs and Materials and System Software by
establishing written procedures for its employees and other persons permitted access to the
Licensed Programs and Materials and System Software to follow in order to protect the
Licensed Program and Materials and System Software from being acquired by
unauthorized persons.
3.02 DESIGNATION OF CONFIDENTIALITY
Confidential information shall mean all matters relating to the Customer's business which
are clearly designated in writing as confidential by the Customer and which are disclosed
by Customer to Vendor pursuant to the Agreement. All confidential information will be
safeguarded and kept confidential by Vendor during the term of the Agreement to the same
extent that Vendor safeguards confidential information relating to its own business.
Vendor will instruct its employees to use the same care and discretion with respect to the
Customer's confidential information that they use with respect to the Vendor's confidential
information.
Customer acknowledges that the Licensed Programs and Materials contain proprietary and
confidential information. Vendor's corporate financial statements are considered to be
confidential. Information received by Customer under the Agreement will not be
considered confidential if:
(a) The information was in Customer's possession prior to the execution of the
Agreement and not designated as confidential in the Customer's CPR response;
(b) The information was legally acquired from third parties and did not originate with
Vendor or was in the public domain at the time it was disclosed;
(c) The information was independently developed by Customer;
(d) The information was disclosed to Customer by a third party with Vendor's approval.
3.03 CUSTOMER'S RIGHTS TO COPY LICENSED PROGRAMS
Customer shall not, without prior consent of Vendor, copy in whole or in part, the Licensed
Programs and Materials provided by Vendor under the Agreement for other than the
Customer's need for a copy of the Licensed Programs and Materials for back-up purposes
or installation of System under the provisions of this Agreement.
4.00 LICENSE GRANT
4.01 SCOPE OF LICENSE
Vendor hereby grants to Customer, for the term of the Agreement, a non-exclusive,
nontransferable license (without the right of sublicense), to:
EDEN SW LICENSE AGREEMENT FINAL PAGE 6
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
• Install, use, and execute the Licensed Program on computers owned or leased and
used by Customer at its facilities, for up to the number of concurrent users
specified in this Agreement in Exhibits B(1) and B(2), for the sole and express
purpose of supporting the internal business activities of Customer; and
• Use the Licensed Materials only in conjunction with installation and use of the
Licensed Program.
Customer shall pay software license fees as provided in Exhibit B(1) and B(2) and in
accordance with the payment terms identified in Section 6.02.3 of this Agreement.
4.02 LICENSED MATERIALS
The Vendor shall furnish the Customer upon execution of the Agreement, one (1) copy (on
CD-ROM) of the Licensed Materials, which materials shall describe the Vendor's
recommended use and application of the Licensed Programs.
4.03 SCOPE OF SERVICES
Vendor shall provide the training and implementation consulting services as defined in the
Project Work Specifications attached and made a part hereof as Exhibit C.
4.04 SITE OF SERVICES
Vendor's services are to be performed at location(s) within Customer's city unless specific
work assignment calls for services to be performed at Vendor location(s). If services are
provided at Vendor's location(s), Vendor shall provide office space and facilities to
Customer staff commensurate with that provided its own employees engaged in similar
activities. If services are provided at Customer's location(s), Customer shall provide office
space and facilities to Vendor's staff commensurate with that provided to its own
employees engaged in similar activities.
4.05 MODIFICATION OF SCOPE
Services specified in any future Project Work Specifications may be agreed to between the
parties. Such services may include special studies; database and program conversion; data
conversion; implementation planning, procedures and programs; installation evaluation;
technical and user training; and specification preparation. Customer shall request such
services in writing on a Vendor -developed, Customer -approved form and shall specify:
1) Nature of work to be performed;
2) Number of individuals required;
3) Category of experience of each;
4) Date on which assignment is to begin;
5) Location of assignment;
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City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSEIUSE AGREEMENT
4.06
6)
7)
8)
Length of assignment, including due date;
Source of funds (Account Number and authorized approval); and
Individual who will coordinate for Customer and Vendor.
Vendor shall use its best efforts to provide a quotation for each service request and will
provide a written quote within thirty (30) working days following receipt by the Vendor of
the Customer's request. Acceptance by Customer of Vendor quotation for each service
request shall be in writing. Upon acceptance by Customer and Vendor, such request shall
be called the "work assignment".
Each work assignment shall be governed by the terms and conditions of the Agreement, the
terms and conditions of the work assignment, and by such supplementary written
amendments of the Agreement or the work assignment as may be, from time to time,
executed between the parties.
In the event of a conflict between the terms and conditions of the Agreement and the terms
and conditions of any work assignment, the terms and conditions of the work assignment
shall govern.
No oral request for modification of services shall be binding on either party
Further, the Vendor agrees that its responsibilities under the Agreement will not be
assigned or licensed by the Vendor without the prior written consent of the Customer.
Vendor is willing to provide modifications of service at the same rates outlined in the CPR
response and included as Exhibits in this Agreement for a period of one year from the date
of this Agreement (Section 1.06). After one year has lapsed, rates for service will be based
upon Vendor's then current rates (for similar agencies and similar services).
M1 IMUM HARDWARE AND SOFTWARE REQUIREMENTS
Customer acknowledges that in order to be executed, Customer's computers must meet or
exceed the hardware and System Software specifications defined in Exhibit B(2) attached
hereto and included in Section 5 of the Vendor's CPR Response. The acquisition of
necessary hardware and software meeting the requirements then in effect shall be the sole
responsibility of Customer. Vendor agrees to inspect the hardware and System Software
environment and advise Customer of potential incompatibilities upon initial installation of
the Licensed Programs and Materials and thereafter upon request for Updates or changes to
System Software and/or hardware. Customer acknowledges that Vendor software support
does not cover third party software unless otherwise specified.
Customer agrees such requirements are subject to change, and that future versions of the
Licensed Programs may have different hardware and System Software requirements than
those presently in effect. The acquisition of necessary hardware and System Software
meeting the Vendor requirements then in effect shall be the sole responsibility of the
Customer. Vendor shall provide Customer with a list of the hardware and System Software
items and a reasonable amount of time in which to acquire said items.
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City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSEIUSE AGREEMENT
4.07 NECESSITY FOR THIRD -PARTY SOFTWARE
Customer acknowledges that in order to be executed, the Licensed Program requires certain
third -party software not provided by Vendor that is specified in Exhibit B (2). The
acquisition of necessary licenses and support for this software shall be the sole
responsibility of Customer. As part of the on-going support services defined herein,
Vendor agrees to keep all Licensed Programs and Materials current with then current
actively supported versions of the third party system software defined in Exhibit B (2).
Customer acknowledges that Vendor software support does not cover third party software
unless otherwise specified.
5.00 PROGRAM SUPPORT SERVICES
5.01 ON-GOING SUPPORT FOR LICENSED PROGRAMS
Vendor shall provide continuing on-going support services necessary to repair systematic
program bugs or identified logic and operational problems and to keep the Licensed
Programs compatible with then -current supported versions of the platform (third party
operating systems, database engines, and utilities) software specified in this Agreement.
5.02 DATA CONVERSION
Vendor shall be responsible for conversion of Customer's current data in machine-readable
form, if any, to the format required by the Licensed Programs as defined in Exhibit E
attached hereto for the price(s) indicated therein. Customer shall provide all requested data
for conversion using formats specified by Vendor (as presented in Exhibits E (1) and E (2).
5.03 TRAINING
Vendor shall provide installation training as specified in Exhibit D (1) directly to the
various user -groups for the application Modules at Customer facilities. Additional training
at Customer request will be available at Vendor's then current rates (for similar agencies
and similar services). Trainers shall be experienced and knowledgeable in the specific
Modules they are teaching and familiar with the procedures in similar municipal
environments to the Customer's. Customer will provide two types of training areas: 1)
small group area with 2 networked workstations, desk and chairs where a trainer and two
people can be trained on the operation and use of specific Modules; and 2) a large group
area with 10 networked workstations, tables, chairs, white board, projector, and other
supplies such as paper, pencils, easel, etc. Vendor will provide necessary training materials
and have session outlines and agendas for all training sessions, provided to Customer at
least five days in advance of the scheduled sessions.
Customer may request a replacement trainer if there is demonstrable evidence that the
trainer initially scheduled has been ineffective in conducting specific training sessions. If
Vendor has been notified that a particular training session was ineffective because of the
qualifications or techniques of the trainer and uses the same trainer in a subsequent session
which also turns out to be ineffective (with documented evidence provided by Customer),
EDEN SW LICENSE AGREEMENT FINAL PAGE 9
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
Customer will be entitled to withhold payment for the subsequent session until a makeup
session with a qualified trainer can be completed.
The training dates identified in the Project Schedule (Exhibit A) may be modified only by
mutual agreement of the Customer and Vendor. In the event the Customer cancels
scheduled training dates (excluding events beyond Customer's reasonable control), with
less than one weeks notice to Vendor, Vendor shall be compensated for all out of pocket
expenses incurred for said training. In addition, Customer shall pay vendor 50% of the
total cost of the training rates for the days that were cancelled.
5.04 SYSTEM SUPPORT SERVICES
In addition to training services, Vendor will provide system support services which shall
include, but not be limited to, cooperating with Customer staff in configuring Customer
acquired hardware and System Software as defined in Vendor's CPR response to support
the Vendor's Licensed Programs, setting up tables and parameters for Customer's unique
installation, preparing backup scripts to back up the databases for the applications, and
training Customer's technical staff how to perform these tasks as well as diagnostic
troubleshooting techniques for the Vendor's Licensed Programs. These system support
services are initially defined and described in Exhibit C(1) and C(2). Should additional
system support services be required, Vendor will respond to Customer request as outlined
in Section 4.05 (Modification of Scope).
5.05 SCOPE OF SUPPORT SERVICES
Vendor shall render support and services during Normal Working Hours (8:OOAM to
5:OOPM PST/PDT, Monday through Friday, excluding federal holidays and the day after
the Thanksgiving holiday) for the following:
• Telephone Support - Calls for assistance related to operation of the Licensed
Program, reporting of a potential error condition or abnormal termination of a
program, or request for minor assistance related to the Licensed Program;
• Support Enhancements - Selected Enhancements, the nature and type of which
shall be determined solely by the Vendor. Such provision shall not preclude
Vendor from providing other Enhancements of the Licensed Program for license
fees, training charges, and other related service fees and charges.
• Source Code Maintenance - Library of Licensed Program maintained by
Vendor for Customer complete with modifications authorized by Customer and
performed by Vendor. A current copy of Customer's Source Code, including all
Updates, Enhancements and modifications, can be received annually from the
Vendor based upon a written request by Customer.
• Software Warranty — Since Customer is obtaining Software Support from
Vendor, and such Software Support is in effect without interruption from
inception of this Agreement, Vendor will warrant the Licensed Program to be free
of errors for the life of this Agreement.
EDEN SW LICENSE AGREEMENT FINAL PAGE 10
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
• Error Correction - Any substantive, replicable problem, which causes
interruptions to the Customer's business operations, and is caused by incorrect
operation of the computer code of the Licensed Program or an incorrect statement
or diagram in Licensed Documentation that produces incorrect results or causes
incorrect actions to occur that Customer identifies and documents to Vendor will
be corrected by Vendor with either a software modification or addition that, when
made or added to the Licensed Program, establishes material conformity of the
Licensed Program to the Licensed Documentation, or a procedure or routine that,
when observed in the regular operation of the Licensed Program, eliminates the
practical adverse effect on Licensee of such non -conformity.
• Maintenance Modifications — When any errors in the Licensed Programs and
Materials are identified by Customer or other licensed user of Vendor's Licensed
Programs, Vendor will make modifications or revisions to the Licensed Program
or Licensed Documentation that correct these errors and promptly distribute
thoroughly tested patches, Updates, or new versions of the Licensed Programs
along with detailed instructions as to how to apply the modifications to the
installed version of the Licensed Programs.
5.06 FEES AND CHARGES FOR SUPPORT SERVICES
Customer shall pay Vendor annual support charges based on the annual rate specified in
Exhibit B(1) and B(2) commencing upon the successful completion of Acceptance Testing
on a Module by Module basis. The first year's support charges shall be pro -rated and paid
to the end of the then -current calendar year (i.e. December). The annual rate may be
increased, with at least 30 days prior written notice before the end of Customer's calendar
year (December 31), by the local Consumer Price Index percentage increase in the cost of
living as published by the Bureau of Labor Statistics (www.bls.eov) for the Seattle —
Tacoma -Bremerton area (All Items, CPI -U), plus two (2) percent for the 12 month period
ending October of the calendar year prior to the calendar year in which the increase will
occur, provided that written notice of the increase shall be made by December 1 for the
following calendar year, beginning January 1. The increase in the support services rate for
the upcoming year shall be no greater than 10% or the rate currently in effect.
5.07 CUSTOMER RESPONSIBILITIES.
Customer shall be responsible for the procuring, installing, and maintaining all computer
equipment, telephone lines, communications interfaces, and other hardware necessary to
operate the Licensed Program per Hardware and System Configuration Specification in
Exhibit H or as modified pursuant to paragraphs 4.06 and 4.07 above.
5.08 PROPRIETARY RIGHTS.
To the extent that Vendor may provide Customer with any Error Corrections or
Enhancements or any other software, including any new software programs or components,
or any compilations or derivative works of the Licensed Programs prepared by Vendor,
EDEN SW LICENSE AGREEMENT FINAL PAGE 11
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
Customer may (1) install copies of the Licensed Programs adequate to serve the concurrent
users specified in this Agreement in Exhibits B (1) and B(2), in the most current form
provided by Vendor, in Customer's own facility; and (2) use such Licensed Programs in a
manner consistent with the requirements of the Agreement, for purposes of serving
Customer's internal business needs. Customer may not use, copy, or modify the Licensed
Program, or make any copy, adaptation, transcription, or merged portion thereof, except as
expressly authorized by Vendor. The Licensed Programs are and shall remain the sole
property of Vendor, regardless of whether Customer, its employees, or contractors may
have contributed to the conception of such work, joined in the effort of its development, or
paid Vendor for the use of the work product. Customer shall from time to time take any
further action and execute and deliver any further instrument, including documents of
assignment or acknowledgment that Vendor may reasonably request in order to establish
and perfect its exclusive ownership rights in such works. Customer shall not assert any
right, title, or interest in such works, except for the non-exclusive right of use granted to
Customer at the time of its delivery or on-site development.
5.09 TERMINATION OF SUPPORT.
Support may be terminated as follows:
Upon 90 days prior written notification by Customer to the Vendor, before the
end of any calendar year;
Upon 60 days' prior written notice if the other party has materially breached the
provisions of this Agreement and has not cured such breach within such notice
period.
• Since annual support charges are paid annually in advance, termination before the
end of a calendar year shall require a pro -rated refund for the fees paid to the end
of the calendar year.
Termination of support as provided herein shall not be deemed a termination of this
Agreement.
5.10 PLATFORM PROTECTION
As long as the Customer maintains continuous software support with the Vendor for each
of the Modules included herein, Customer shall have the right to transfer the licenses
(defined as the Project System acquired under this Agreement) for any and all Modules to
any new hardware/platform environment (hardware and System Software as defined
herein) then currently marketed and supported by the vendor. Transferring of Licensed
Programs and Materials shall be done with no charge for licensing fees to the Customer by
the Vendor. Customer agrees to pay for any installation, data conversion and retraining
costs which shall not exceed the lesser of the hours required pursuant to this Agreement for
initial installation, data conversion and training or those charged to similar customers for
similar tasks.
EDEN SW LICENSE AGREEMENT FINAL PAGE 12
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
6.00 INSTALLATION, DELIVERY, AND ACCEPTANCE
6.01 DELIVERY AND INSTALLATION
Delivery of the Licensed Programs and converted data shall be complete when all Modules
are copied onto the hardware environment proposed and is fully operational and
appropriately labeled media and documentation is presented to Customer as a complete
system backup of all software Modules and data. The documentation shall include, but is
not limited to, instructions as to how to completely re -install the contents of the media onto
the hardware proposed.
6.02 ACCEPTANCE AND PAYMENT
Acceptance will be based on two factors: 1) That the Vendor has delivered and configured
all of the software proposed, and 2) that the system performs at a functional level consistent
with what was demonstrated by the vendor during the evaluations and site visits. Payment
will be structured so that the vendor receives partial payment when Acceptance Testing is
satisfactorily completed and final payment when Reliability Testing has been performed on
all Modules so that concurrent productive use of all Modules is demonstrated to function as
proposed and demonstrated by the Vendor.
The Customer may terminate the Agreement, upon written notice effective immediately,
at any time during the Acceptance Period per the Evaluation Criteria and Technical
Specifications as specified in the CPR. Additional mutually agreed upon, written
acceptance criteria may be added by the Customer prior to the end of the Acceptance
Period. The Customer shall accept the system at the close of the testing period by
providing Vendor with written notification of acceptance unless Vendor fails to meet
acceptance criteria.
If the Customer identifies any irregularities in the performance of the application software
(not related to a Customer network, hardware or System Utility software malfunction) from
what was specified by the Customer in its CPR (unless explicitly excluded in the Vendor's
proposal), the Customer shall require the following:
(a) The Vendor shall be given the opportunity to extend the
Acceptance Testing Period for up to thirty (30) calendar days during which to bring
such irregularities into compliance.
If the Acceptance Period extension in Section 6.02 (a) does not produce a satisfactory remedy for
the irregularity, Customer may choose, at its' sole option, from either of the following alternatives:
(b) At the Customer's sole option, notwithstanding (a) above, relegate
the non-compliant component as a Project to be completed at a mutually
agreeable date. As a bond to ensure timely completion of a Project so -
designated, the Vendor shall provide a cashier's check for the non-compliant,
incomplete, unacceptable, or non -delivered items in the amount equal to or
greater than the value of the non -delivered items. This value of this bond is
calculated as $325 per point based upon the price per point calculation
determined in the Vendor's CPR response. The maximum bond value for a
EDEN SW LICENSE AGREEMENT FINAL PAGE 13
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
non-compliant component is the license fee of the application Module in which
the non-compliant component is contained. The aggregate sum of non-
compliant components (Projects) shall not exceed $75,000 for the System.
Specifications for the delivery and acceptance for each such item will be the
same as the acceptance provisions stated above and shall include appropriate
due dates. Customer may then close the initial Acceptance Period for items
delivered and functioning in accordance with their specifications, pay for
accepted items only, and open new testing periods for non -delivered items
backed by guarantees of performance in the form of cashier's checks. The
Customer shall then retain the cashier's checks, until the items are delivered and
accepted and have passed a 30 -day Reliability Test. As each item is accepted,
the cashier's check will be returned and payment for the item processed. If the
agreed upon delivery dates are not met, or the item fails the acceptance
provisions, the Customer may cash the cashier's check and find an alternate
solution. This procedure shall continue until all undelivered items are delivered
and accepted or all cashiers' checks returned or retained. Final Reliability
Testing will not be complete until all such Projects are delivered and accepted
by the Customer.
(c) The Customer shall have the right to terminate the Agreement with
a refund of any License Fees paid to that point.
In the event the Vendor is rejected during the Acceptance Period, the Customer will agree
to pay only those delivery, installation, configuration, conversion, and training costs as
specified in the Vendor's proposal. Costs for system removal, additional labor, insurance,
etc. will not be paid by the Customer.
6.02.1 ACCEPTANCE TESTING
Once the hardware and System/Utility Software has been delivered, installed, and
configured, and the Vendor has converted any relevant CUSTOMER data and
trained the designated CUSTOMER System Manager and one backup person to
operate the basic components of the proposed Licensed Programs, the Acceptance
Period can begin. During the Acceptance Period, Customer will test all delivered
subsystems by executing any or all of the features contained in the Feature/Function
Checklist. During this time, the Vendor will provide access (at no additional
charge) to a qualified technician either on-site or via telephone and dial -in modem
to assist City in the testing of the applications. Failure by the Customer to report
any failures within 30 days of the start of Acceptance Testing shall mean tacit
acceptance and will be treated as if the Customer has accepted the Module(s) in its
entirety.
If any part of the awarded subsystems should fail (i.e. not perform according to the
Vendor's Compliance score), City may designate that portion as a Project for
delivery at a later date or apply other remedies as specified in 6.02 above.
EDEN SW LICENSE AGREEMENT FINAL PAGE 14
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
6.02.2 RELIABILITY TESTING
Once the Licensed Programs and Projects have passed the Acceptance Tests, the
implementation into productive use will begin. This includes training of all primary
users and final conversion of all relevant data. Once the vendor has designated a
subsystem as available for productive use (in writing), a 30 -day Reliability Test will
begin. During this period all of the data, workstations, software, and peripherals
must be available to all designated users at least 90% of the time. This will be
determined by determining that any workstation or device that is not available
because of any malfunction of the Licensed Programs for more than 30 minutes
during any 24 hour period shall be deemed unavailable. (Problems caused by the
City's network or computer hardware shall not be included). If the total number of
unavailable devices divided by the total number of devices is more than .10, the
Reliability Test will be deemed to have failed. Functional performance of the
overall system will be measured, in a mutually agreed to benchmark, such that
during this period any user will experience the same or better performance as
demonstrated in vendor presentations.
6.02.3 PAYMENT SCHEDULE
Payment will be authorized and processed by the Customer according to the
following schedule:
• Installation support and training services (including technical
configuration, process consulting, project management and training)
will be processed upon completion of the designated tasks and
presentation to the Customer of an itemized invoice showing the
specific tasks completed and the resources involved in each.
• Travel expenses (actual airfare and per diem expenses as identified
in Exhibits Cl, C2, D1 and D2) will be processed upon presentation
of actual receipts and documented completed travel.
• Data Conversion fees as provided in RF4-Eden-Awd, Exhibit E will
be authorized and processed for payment on a Module by Module
basis according to the following schedule:
• 50% of Data Conversion fees upon Vendor verification of
delivery/installation of each Module in preparation for
Acceptance Testing;
• 40% of Data Conversion fees upon Vendor verification of
re -installation in preparation for Reliability Testing
• 10% of Data Conversion fees upon Vendor verification of
successful completion of the Reliability Test.
EDEN SW LICENSE AGREEMENT FINAL PAGE 15
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE%USE AGREEMENT
■ License fees for delivered software Modules in Exhibits B (1) and
B(2), excluding Budget Preparation and Position Budgeting, will be
paid for as follows:
• 25% of the Software license fees upon installation and
Vendor verification of the software on Customer hardware
platform(s) as configured per Vendor specifications;
• 55% upon successful completion of Acceptance Testing by
Customer
• 10% upon successful completion of the Reliability test;
• 10% upon successful completion of the Reliability tests for
all proposed software Modules as specified in Exhibit BI
and B2.
• License fees for the Budget Preparation and Position Budgeting
software Modules in Exhibits B (1) will be paid for as follows:
• 25% of the Software license fees upon installation and
Vendor verification of the software on Customer hardware
platform(s) as configured per Vendor specifications;
• 55% upon successful completion of Acceptance Testing by
Customer
• 20% upon successful completion of the Reliability test;
7.00 CUSTOMER RESPONSIBILITIES
7.01 CUSTOMER SUPPORT OF VENDOR
Customer shall furnish to the Vendor priority access to the Customer's system for the
period of time required by the Vendor for installation, testing, training, diagnostics, etc.
Customer shall provide the following resources for Vendor's use in fulfillment of the
Agreement:
A. One qualified Customer staff coordinator assigned to work with the Vendor's
representative on the installation of the Licensed Programs, acceptance, training,
conversion and maintenance. Customer representative shall have sufficient
authority to make decisions for Customer consistent with City Council direction.
Customer understands that Vendor will rely upon a staff member having such
authority.
B. The availability of Customer's personnel upon reasonable request of Vendor to
answer questions and advise Vendor on Customer's facilities, operations and
requirements.
C. Adequate office space at Customer's premises for Vendor personnel.
D. Customer shall provide input data in accordance with the agreed upon test and
acceptance plan and procedures for use by the Vendor in acceptance testing.
EDEN SW LICENSE AGREEMENT FINAL PAGE 16
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
E. The Customer shall provide all requested data for conversion using formats
specified by Vendor.
F. Upon completion of installation and training, and once final acceptance is signed
off by the Customer, Customer shall be solely responsible for the operation and
management of the Licensed Programs and Projects.
8.00 WARRANTY OF PERFORMANCE
8.01 COMPLIANCE WITH STATE AND FEDERAL AUDIT REQUIREMENTS
As long as Customer maintains continuous support for the Modules included herein,
Vendor shall ensure that all software Modules will comply with any and all then current
State and Federal audit requirements, such that Customer will not be liable for program
flaws which may violate any such requirements.
8.02 WARRANTY OF PERFORMANCE
As long as Customer maintains continuous support for the Modules included herein, the
Vendor shall warrant for a period equal to the term of the Agreement, commencing with
the Customer's acceptance of the Licensed Programs, that the Licensed Programs will
perform in accordance with its specifications as set forth in the Licensed Materials, if
properly used in the operating environment specified in the Vendor's CPR response.
Licensed Materials. The vendor warrants that all components are interoperable and the
configuration is complete and suitable for the purpose specified by the Customer in the
CPR except as may have been specifically excluded in the Vendor's proposal response to
the CPR. The Vendor's warranty of performance shall be based on the specifications,
terms and conditions contained in the Agreement as a whole, including Customer's Request
for Proposals (CPR) and Vendor's CPR Response.
Customer shall promptly provide to Vendor such computer time and services as Vendor
may require to permit investigation and, if necessary, correction and verification of error(s).
8.03 YEAR 2000 COMPATIBILITY
The Software will "operate accurately" (as defined below), and will not abruptly end or
provide invalid or incorrect results, before, on, and after January 1, 2000. For purposes
hereof, a failure to "operate accurately" exists if any one or more of the following
properties or capabilities is lacking: (i) execution of calculations using dates with a four -
digit year; (ii) functionality (both on-line and batch) including, but not limited to, entry,
inquiry, maintenance, and update, to support four -digit year processing; (iii) interfaces and
reports that support four -digit year processing; (iv) successful transition, without human
intervention, into the year 2000 using the correct system date (e.g. 01/04/2000); (v) after
transition to the year 2000, continued processing with a four -digit year without human
intervention; (vi) correct calculation of leap year•, and (vii) provision of correct results in
forward and backward data calculation spanning century boundaries, including the
conversion of previous years currently scored as two digits.
EDEN SW LICENSE AGREEMENT FINAL PAGE 17
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
8.04 LIQUIDATED DAMAGES
Time is of the essence in the Agreement. It is the understanding of the parties hereto that
because damages from delay are difficult, if not impossible, to predict in data processing
installations, the Vendor agrees to pay Customer five hundred dollars ($500.00) per
working day as reasonable charges for each working day that the Systems are not
operational sixty (60) calendar days after the specified dates in the Project Schedule
(Exhibit A). This amount shall apply to all reliability/go live due dates established in the
final Agreement unless waived by the Customer at its sole option. The Project Schedule
(Exhibit A) may be modified only by mutual agreement of the Customer and Vendor. In
no event shall the total damages exceed the total cost of the license fee of the application
Module in delay.
Customer and Vendor are not responsible for failure to fulfill their obligation under the
Agreement due to causes beyond their reasonable control without the fault or negligence of
such party. In the event that failure to meet the established deadline(s) is outside the
control of both parties, the deadline(s) will be extended to mutually agreeable date(s) as
soon as possible. Such dates shall be attached, as amendment(s), to the final Agreement.
Customer and Vendor shall mutually and reasonably agree forthwith on which causes are
out of the Vendor's control.
Liquidated damages may be deducted from unpaid License Fees as identified in Section
6.02.3. If delays cause the Liquidated Damages period to begin, the daily amount shall
accrue and accumulate for the period of time required for the Vendor to deliver remedies to
the non-functioning Systems and end when the Customer has received satisfactory
remedies from the vendor.
In lieu of liquidated damages, at the Customer's sole option, Vendor may provide
performance bonds or cashier's checks for each of the non-compliant, incomplete,
unacceptable, or non -delivered items, with appropriate specifications and due dates.
Customer may then close the initial testing and acceptance period for items delivered and
functioning in accordance with their specifications, pay for accepted items only, and open
new testing periods for non -delivered items backed by performance bonds. The Customer
may then retain the performance bond if the agreed upon delivery dates are not met.
Should the Vendor meet the delivery dates, Customer will test the delivered items for
another thirty (30) calendar days and accept these items if they are compliant with their
specifications and return the performance bond for those items and pay the agreed upon
price. This procedure can continue until all performance bonds are satisfied.
8.05 CORRECTION OF ERRORS UNDER THE WARRANTY
At no charge to the Customer, the Vendor will promptly correct technical errors or defects
(as defined in Section 5.05 - Error Correction) in the Licensed Programs according to the
terms of this Agreement so that the Licensed Programs will perform as described in the
Licensed Materials and Vendor's CPR response proposal.
EDEN SW LICENSE AGREEMENT FINAL PAGE 18
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
8.06 ORAL REPRESENTATIONS
No Customer or Vendor employee has the authority to bind either party to any oral
representation or warranty.
8.07 PROGRESS REPORTS
The Vendor will design a progress report form that itemizes the activities accomplished to
date, the activities planned and any problems which have occurred or are anticipated from
the point of contract signing until Final Acceptance. The forms' design and adequacy will
be subject to Customer approval. Progress reports will be prepared weekly prior to
Acceptance and monthly thereafter by the Vendor and either mailed or e-mailed to the
Customer. Progress reports will be discontinued when the Customer, in its sole judgment,
deems the system to be complete and in conformance with Vendor's Proposal and any
subsequently agreed upon necessary modifications, and deems Vendor's commitments to
be completed.
8.08 TERMINATION
The Vendor shall have the right to terminate this Agreement when Customer fails to pay
charges due within forty-five (45) days of notice and demand. The Vendor shall thereafter
reinstate services under this Agreement only upon payment of all past due charges plus any
additional late fees (as defined as I% per month on uncontested invoices).
The Vendor shall have the right to terminate this Agreement if Customer fails to implement
all changes, corrections, and Updates to the Licensed Programs within 90 days of the
release of said corrections or Updates or twelve (12) months from notification of
upcoming, but not released, Updates.
In the event the Vendor ceases to provide maintenance and support for the Licensed
Program(s) (including any Vendor supplied Updates), a current copy of the Source Code
(as defined in Section 1.01 and limited to internal use only) with complete system
documentation will be provided to Customer in order to ensure continued maintenance.
Any Source Code shall be provided subject to the restrictions in this Agreement.
8.09 NO DISABLING CODE
Vendor warrants that all Licensed Programs contain no disabling or corrupting code which
would either prevent productive use of the software during the term of this agreement or
that would damage or destroy Customer's data.
9.00 LIABILITY, INDEMNIFICATION AND DEFAULT
9.01 LIABILITY, INDEMNIFICATION AND DEFAULT
Customer shall in no event be liable to the Vendor or other person claiming damages as a
result of the use of the Licensed Programs and Materials, for any damages whether direct
or indirect, special or general, consequential, or incidental or arising from loss of profits.
EDEN SW LICENSE AGREEMENT FINAL PAGE 19
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
Vendor shall indemnify, defend, and hold harmless from any demands, claims or suits by a
third party for loss, damages, expenses, liability, legal costs, and attorney's fees arising out
of the Customer's use of the Licensed Program and Materials.
After the successful completion of the acceptance period, failure by Customer or Vendor to
comply with any term or condition under this Agreement shall entitle the other party to
give the party in default written notice requiring it to make good such default. Failure to
make good such notified default within thirty (30) calendar days of such notice shall
constitute breach of contract by the defaulting party and grounds for termination of this
Agreement.
9.02 BANKRUPTCY/SUPPORT CESSATION
The term "default" as used in this Agreement shall include the institution of proceedings by
or against Vendor under federal or state bankruptcy laws and assignment or receivership
for the benefit of creditors. Customer rights to a complete and documented copy of all
related Source Code corresponding to the then current released version of the
System/Utility Software (for internal use and not for resale) shall precede any bankruptcy
proceedings and stand before any trustee's claims for the benefit of creditors. In the event
that the Vendor ceases to provide support for the System/Utility Software, the Customer
shall have the same rights as if the Vendor had declared bankruptcy.
9.03 INSURANCE
Vendor, at its own cost and expense, shall purchase and maintain during the life of this
Agreement a comprehensive liability policy that shall protect Vendor from claims for
property damage and injuries to persons, including accidental death, and name the
Customer as an additional insured under said policy in not less than the following amounts:
• General Liability including personal injury and property damage in the amount of
$1,000,000.
• Errors and Omissions in the amount of $1,000,000.
Automobile Liability, all automobiles, in the amount of $1,000,000 for combined
single limit.
In addition, City shall be named as additional insured on such policies and shall be notified
by the insurance carrier of any change in or cancellation of coverage. Vendor further
agrees during the life of this Agreement to maintain, at vendor's expense, all necessary
insurance for its employees, including, but not limited to, Workman's Compensation,
disability, and unemployment insurance.
Vendor shall furnish a certificate of insurance countersigned by an authorized agent of the
insurance carrier on a form of the insurance carrier setting forth the general provisions of
the insurance coverage. The countersigned certificate shall name the Customer as an
additional insured under the policy. The certificate shall contain a statement of obligation
on the part of the insurance carrier to notify Customer of any material change, cancellation
or termination of the coverage at least thirty (30) days in advance of the effective date of
EDEN SW LICENSE AGREEMENT FINAL PAGE 20
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
any such material change. The certificate shall be furnished by Vendor to Customer prior
to execution of this Agreement by Customer.
9.04 LIMITATION OF LIABILITY
The Vendor's liability for direct damages to Customer or others resulting from the
performance of services under this Agreement shall not exceed the amount of the total of
Licensed Programs and Materials charges paid to the Vendor under this Agreement and all
related agreements, and the total fees paid for training or other related payments paid to the
Vendor.
9.05 DEFAULT
Customer shall be in default of this Agreement if it fails to pay any amount due, within 45
days after the Vendor written notice that Customer is delinquent or if it is in material
breach of this Agreement and fails to cure such breach within 30 days after the Vendor's
written notice of material breach.
10.00 GENERAL PROVISIONS
10.01 ASSIGNMENT
This Agreement may be assigned by Vendor to another person or organization that acquires
all or substantially all of the assets of Vendor as long as all contractual provisions and
responsibilities are assumed by the acquiring person or organization. Any other assignment
by Vendor shall be made only with the prior written consent of Customer which consent
shall not be unreasonably withheld provided that in the event of such assignment the
proposed assignee has agreed to be fully responsible for Vendor obligations under this
Agreement.
10.02 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
10.03 ENTIRE AGREEMENT/AMENDMENTS
This Agreement constitutes the entire understanding of the parties with respect to the
matter contained herein. There are no promises, covenants or undertakings other than those
expressly set forth herein.
This Agreement may not be amended except by writing signed by authorized
representatives of Customer and Vendor and approved by Customer's City Council.
If any of the provisions of the Agreement are declared to be invalid, such provisions shall
be severed from the Agreement and the other provisions hereof shall remain in full force
and effect.
EDEN SW LICENSE AGREEMENT FINAL PAGE 21
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
10.04 CONSTRUCTION
A term or condition of the Agreement can be waived only by written consent of both
parties.
Title and paragraph headings contained in the Agreement are for convenient reference and
do not constitute part of the Agreement and shall not affect the interpretation of the
Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties to the
Agreement and their respective successors and assigns.
10.05 SERVICE OF NOTICE
Any notice required or permitted to be sent under the Agreement shall be delivered by hand
or mailed by registered mail, return receipt requested, to the addresses of the parties first set
forth below.
Vendor: Ed Torkelson, President
Eden Systems, Inc.
507 Industry Drive
Seattle, WA 98188
E-mail - ed(n,edeninc.com
Customer: Ken Nordhoff, Assistant City Manager
City of San Rafael
1400 Fifth Avenue, Room 203
San Rafael, CA 94901
E-mail - ken.nordhoff@ci.san-rafael.ca.us
10.06 TAXES
The purchase and/or lease/purchase price specified in the Vendor's proposal (Price Forms--
RF4, RF5) shall indicate all items subject to applicable local, state or federal sales, use,
excise, personal property or other similar taxes or duties. The Customer will pay Vendor
for taxes on only those items so indicated at the rates prescribed by law at the time of
payment. Taxes based upon net income or any other tax normally paid by the Vendor shall
be the sole responsibility of the Vendor. Items subject to taxes not indicated in the
proposal response as taxable which may subsequently be charged to the Vendor by any
taxing agency with reference to the purchase, lease/purchase or license included in the
Agreement shall be the sole responsibility of the Vendor and will not be paid by Customer.
Vendor shall obtain and maintain during the duration of this Agreement, a San Rafael City
Business License as required by the San Rafael Municipal Code. Vendor shall pay any and
all state and federal taxes.
EDEN SW LICENSE AGREEMENT FINAL PAGE 22
City of San Rafael Eden Systems, Inc.
MAY 7, 2001 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
10.07 COSTS AND ATTORNEY'S FEES
The prevailing party in any action brought to enforce the terms and conditions of this
Agreement, or arising out of the performance of this Agreement, may recover its
reasonable costs (including claims administration) and attorney's fees expended in
connection with such action.
SIGNATURES:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year first above written.
CITY OF SAN RAFAEL
City Manager
ATTEST:
Xtylerk h'
APPROVED AS TO FORM:
L ,.
City Attorney
CONTRACTOR
Name: E; -"N TO ZV.-LS Q rJ
Title: ' Z -F S t -L-'> '� T
EDEN SW LICENSE AGREEMENT FINAL PAGE 23