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HomeMy WebLinkAboutC03-145 ESRICod-r~~~~l ^' E, <~ 3 ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 IMPLEMENTATION SERVICES TERMS AND CONDITIONS AGREEMENT WARRANTY: ESRI warrants that for a period of thirty (30) days after acceptance of a deliverable that the deliverable will conform, in a manner consistent with professional and technical standards in the software industry, with applicable written specifications included in the corresponding task or delivered to Licensee pursuant to this Agreement. Disclaimer THE WARRANTY SET FORTH IS IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (a) ANY WARRANTY THAT DELIVERABLES ARE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR ARE COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; AND (b) ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, OR SYSTEM INTEGRATION. 2. IN ADDITION TO AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, ESRI DOES NOT WARRANT IN ANY WAY MAP DATA, WHETHER SUPPLIED BY LICENSEE OR ESRI OR THE VENDORS OF EITHER OF THEM. IF SUPPLIED BY ESRI OR ITS VENDORS, ESRI BELIEVES SUCH MAP DATA IS RELIABLE, BUT IT MAY NOT BE FREE OF NONCONFORMITIES, DEFECTS, ERRORS, OR OMISSIONS; BE AVAILABLE WITHOUT INTERRUPTION; BE CORRECTED IF ERRORS ARE DISCOVERED; OR MEET LICENSEE'S NEEDS OR EXPECTATIONS. ESRI IS NOT INVITING RELIANCE ON MAP DATA, AND LICENSEE SHOULD ALWAYS VERIFY ACTUAL DATA FROM DOCUMENTS OF RECORD, FIELD MEASUREMENT, OR OBSERVATION. LIMITATION OF LIABILITY: In no event shall ESRI be liable to Licensee for any indirect, special, exemplary, consequential, or incidental damages or lost profits arising out of, or related to, this Agreement, even if it has been advised of the possibility of such damages. ESRI's liability for direct damages shall in no event exceed the amount actually paid by the Licensee for the portion of the professional services involved. NONAIRE OF CONTRACTOR PERSONNEL: It is hereby mutually agreed that Licensee will not solicit for hire any employee(s) of ESRI's technical staff, who is (are) associated with efforts called for under this effort, for a period of one (1) year thereafter. In the event the foregoing provision is breached, liquidated damages equal to twelve (12) months of the employee's compensation plus any legal expenses associated with the enforcement of this provision shall be paid by the Licensee to ESRI. COMPENSATION: Services are provided and invoiced on a time and materials basis in accordance with the not-to-exceed total cost. Labor is invoiced based on actual hours provided. For services provided beyond the date the quote is effective or delivered in a new calendaz year, ESRI reserves the right to increase the labor rates up to seven and one-half percent (7.5%) per year. Other direct costs included in the quote, such as travel, will be invoiced at actual cost plus a standard burden. Meals are invoiced on a per diem basis. The client will be invoiced on a monthly basis for work provided in the previous month. Payment terms aze thirty (30) days from receipt of an invoice. Payment shall be made to the address identified on original ESRI invoices. TAXES: Services provided aze quoted exclusive of all state; local; value-added or other taxes, customs, or duties; or other charges (other than income taxes payable by ESRI). In the event such taxes and/or charges become applicable to ESRI's services, applications, or data, Licensee shall pay any such applicable tax upon receipt of written notice that such tax(es) is/are due. UCC INAPPLICABILITY: Services and/or cusbm programs provided under an order will not be governed by the Uniform Commercial Code (UCC) and will not be deemed "goods" within the definition of the UCC. G-363-B/SB 1 10/15/O1 • LICENSE GRANT: Subject to the terms and conditions set forth in this Agreement, ESRI hereby grants to Licensee a nonexclusive, royalty-free, worldwide license in the deliverables to use and reproduce the deliverables in connection with Licensee's authorized use of the ESRI® softwaze for support of which the deliverables were supplied. PATENTS AND INVENTIONS: During performance of Implementation Services, the parties anticipate that inventions, innovations, and improvements ("Inventions") relating to the subject matter of such Implementation Services maybe conceived solely or jointly by principals, employees, consultants, or independent contractors (hereinafter called "Inventors") of the parties hereto. The parties agree that, as of the effective date of this Agreement, ESRI or its licensors own all intellectual property rights in the Software, Data, and preexisting deliverables. During the term of this Agreement, Licensee shall promptly notify ESRI if Licensee becomes awaze of any known or suspected infringement or violation of these rights. Each party shall retain title to any Inventions made or conceived solely by its Inventors during the term of this Agreement, including, but not limited to, such Inventions as ESRI's Inventors solely conceive while providing technical assistance pursuant to this Agreement. The parties shall jointly own any Invention made jointly by Inventors from both parties. With respect to such Inventions of Licensee relating to the Softwaze, Licensee hereby grants and agrees to grant to ESRI an irrevocable, royalty-free, nonexclusive, worldwide right and license, with right to sublicense, use, make, sell, offer to sell, or import such Inventions for any purpose, whether or not patented in the country of such past or intended use. Licensee agrees to disclose promptly to ESRI (i) each Invention relating to the Software and made or conceived by Licensee's Inventors during the term of this Agreement and (ii) of any decision to file a patent application with respect to such Invention and the country or countries in which such application will be filed. Where only one (1) party has title to an Invention, that party, at its sole discretion, shall have the right, but not the obligation, at its expense to (i) decide on whether or not to seek or maintain, or to continue to seek or maintain, patent protection in any country on such Invention; (ii) decide the extent and scope of such protection; and (iii) protect and enforce in any country any patents issued on such Invention. Except as provided in the next paragraph, where an Invention is jointly owned, each party shall shaze equallythe costs of acquiring protection for the Invention and furnish the other joint owner with assistance reasonably required for acquiring protection. The acquisition or maintenance of protection shall not be abandoned by a joint owner (the "Assigning Owner")without giving the other joint owner (the "Beneficial Owner") an opportunity to intervene and acquire or maintain protection at the Beneficial Owner's expense. The Assigning Owner electing not to acquire or maintain protection on any Inventions in any country or countries shall assign such of its rights in such Inventions to the Beneficial Owner as is necessary to enable the Beneficial Owner to protect such Inventions in such country or countries at its expense and for its exclusive benefit. In such event, the Assigning Owner shall make available to the Beneficial Owner the Assigning Owner's Inventors and shall otherwise cooperate with the Beneficial Owner in order to assist the Beneficial Owner in protecting such Inventions. The Beneficial Owner shall reimburse the Assigning Owner for all reasonable out-of-pocket expenses incurred in rendering such assistance. If any such Inventions are so protected by the Beneficial Owner, then the Assigning Owner shall have a license with respect to the subject matter of such protected Inventions in such country or countries. All Inventions made by Inventors during performance of tasks and activities ordered under this Agreement will be presumed, absent clear and convincing evidence to the contrary, to have resulted from the performance of such order. Neither party may license, transfer, sell, or otherwise alienate or encumber its interest in jointly owned Inventions without the written consent of the other party, which shall not be unreasonably withheld. CONFIDENTIALITY AND EXPORT CONTROLS: Unless otherwise agreed to in writing, the deliverables aze ESRI confidential and Licensee shall preserve and protect their confidentiality. Licensee shall have met its obligations if disclosure of deliverables is limited to deliverables in object code or executable code format; provided that the means for reverse engineering, decompiling, or disassembling the code is withheld from such disclosure, and the person or entity in receipt of such code agrees not to perform such acts, or allow others to do so, except to the extent permitted by law. ESRI is a trademark of ESRI, registered in the United States and certain other countries; registration is pending in the European Community. Cr363-B/SB 2 10/15/O1 ...~ ~ ~ Except as provided in the preceding pazagraph, Licensee shall not disclose the deliverables to employees or third parties without the advanced written consent of ESRI. However, Licensee may, without such consent, make such disclosures to employees as aze reasonably required to allow Licensee to use the Software or Data as authorized by this Agreement, provided that such disclosure is strictly limited to the portions of the deliverables needed for that purpose. The disclosures permitted under the preceding paragraph shall not relieve Licensee of its obligation to maintain the deliverables in confidence and comply with all applicable laws and regulations of the United States, including, without limitation, its export control laws. Furthermore, before disclosing all or any portion of the deliverables to employees or third parties as permitted in the preceding paragraph, Licensee shall inform such employees or third parties of the obligations in this clause and obtain their agreement to be bound by them. Licensee shall not have any obligation to protect any part of a deliverable that it can prove (a) was in Licensee's possession before receipt from ESRI; (b) is or becomes a matter of public knowledge through no fault of Licensee; (c) is rightfully disclosed by a third party without a duty of confidentiality; (d) is disclosed by ESRI to a third party without a duty of confidentiality; (e) is independently developed by Licensee; or (f) is required to be disclosed under operation of law_ ORDER OF PRECEDENCE: These terms and conditions supersede those outlined in any Licensee ordering or authorizing documents such as purchase orders. Any additional terms or conditions in Licensee ordering or authorizing documents must be incorporated into the Agreement via written amendment to be binding. ACKNOWLEDGMENT: The undersigned hereby ackni to these terms and conditions and further acknowledges and conditions. By: ~° Print Name: he/she has the authority to bind his/her organization and conditions supersede all purchase order terms -~-c>~ -- f970~ 3~g- $6os Organization ("Licensee"): ~ a~ ~ ~- CA ~n.-'F~/ Go ~~ ~ h. ~+e ti f Address: ~• ~• B d k ~ sro ~ S 4 0 B `' O 4d w a Y City E a-4 ~ ~- State: ~- p ZIP Code: ~6 31- D E.t-p G-363-B/SB 3 10/15/O1