HomeMy WebLinkAboutC97-266 Urban Analysis GroupC V 26 'R R '0 LICENSE AGREEMENT This License Agreement (hereinafter "Agreement") is made this 28 day of July, 1997 between The Urban Analysis Group, Inc., a California corporation having a place of business at 50 Oak Court, Suite 110, Danville, California 94526-4048 (hereinafter "UAG") and Eagle County Engineering having a place of business at 500 Broadway, P.O. Box 850 Eagle, Colorado, 81631 (hereinafter "Licensee"). WHEREAS, UAG is owner of certain software and documentation packages and UAG has the right to combine selected components and operating system versions of such software and documentation into a comprehensive system, and to license and sublicense the system; 2. NOW THEREFORE, IT IS AGREED AS FOLLOWS: License. 1.1 The specifications for the system which is the subject of this Agreement; including licensed software components, operating system versions and sites; (hereinafter referred to as "System"); are attached hereto as Exhibit A and incorporated herein. 1.2 The type of license granted herein is (check all which apply and strike out those not applicable): x standard academic non-profit lead agency related agency temporary source code 1.3 UAG grants and Licensee accepts upon the terms and conditions hereinafter set forth a non- transferrable, non-exclusive and perpetual license to use the System until this Agreement is terminated as set forth below. 1.4 This Agreement may not be assigned, sublicensed, or otherwise transferred by Licensee without prior written consent from UAG, which consent may be granted or denied in the sole discretion of UAG. 1.5 Training and installation support, if required, may be agreed upon between the parties and will be billed to Licensee at UAG's then -current billing rates. Use of the Svstem. 2.1 Except as provided herein, the license granted under this Agreement limits installation of the System binary code to those sites specified in Exhibit A. In addition, Licensee may authorize an employee of Licensee to install the System binary code on a computer owned or leased by Licensee or Licensee's employee provided that 1) Licensee and Licensee's employee enter into a written agreement in which Licensee's employee agrees to be bound by the terms of this Agreement and agrees to use the System for the purpose of processing Licensee's data or Licensee's client data only; and 2) Licensee hereby agrees to assume all liability for any employee violation of the terms of this Agreement. Installation at any site, other than those listed in Exhibit A or those meeting the terms of an employee installaiton as set forth above, must be authorized by another agreement or an amendment to this one. 2.2 Licensee agrees not to sell, access and/or use the System as a service bureau or to make the System available for use by any company, agency or person other than Licensee, except as provided herein. Licensee's employees, agents, or independent contractors are hereby authorized to use the System via remote access or local area network for the purpose of processing Licensee's data or Licensee's client data only. 2.3 If it is indicated in Section 1.2 that the type of license granted herein is "academic" or "non-profit", Licensee agrees to use the System only as a teaching tool or for non-profit research projects, and agrees not to allow the System to be used in a consulting or "for a profit" capacity. Page 1 3. Copies or Modifications o`f the Svstem. 3.1 Licensee may copy the System, in whole or in part, in printed or machine readable form, only for authorized installation and use by Licensee, for archive or emergency restart purposes, or to replace a worn copy. Licensee shall keep the original and all copies at licensed sites specified in Exhibit A, or at an off-site location for the sole purpose of emergency storage. Licensee must reproduce all copyright notices and claims of confidentiality or trade secret rights on all copies. No right to print or copy the System, in whole or in part, is granted hereby except as expressly provided herein. The original and any copies of the System, in whole or in part, shall be the property of UAG. 3.2 If it is indicated in Section 1.2 that the type of license granted herein is "lead agency", Licensee agrees to provide any non -Federal public agency within Licensee's jurisdiction (hereinafter "Related Agency") with the System binary code and documentation, once the following conditions have been met for each public agency: A. Licensee has provided UAG with a written request to license the Related Agency, including the Related Agency's street address; B. UAG has subsequently provided Licensee with written notification that the Related Agency has returned an executed license agreement to UAG; and C. UAG has received payment of the current related agency registration fee from either Licensee or the Related Agency. 3.3 If it is indicated in Section 1.2 that the type of license granted herein is "related agency", shall obtain System binary code and documentation from (hereinafter "Lead Agency") once the following conditions have been met: Licensee A. Licensee executes and returns this Agreement to UAG, and UAG notifies the Lead Agency of said execution; and B. UAG has received payment of the current related agency registration fee from either Licensee or the Lead Agency. 3.4 If Licensee modifies the System for its own use or merges it into other program material to form an updated work, such merged or updated work shall remain the property of UAG and subject to the terms of this Agreement. UAG agrees, however, that while this Agreement is in effect, UAG will not market Licensee's modifications without Licensee's written consent, unless such modifications were developed by UAG independently. UAG WILL NEITHER BE RESPONSIBLE FOR NOR WARRANT, INDEMNIFY AGAINST, OR HOLD HARMLESS FOR ANY MODIFICATIONS WHICH ARE MADE TO THE SYSTEM AT THE REQUEST OF LICENSEE (WHETHER MADE BY UAG, LICENSEE, OR A THIRD PARTY) OR THE IMPACT OF SUCH MODIFICATIONS ON THE ORIGINAL SYSTEM; PROVIDED HOWEVER, THAT CHANGES MADE BY UAG, WHETHER OR NOT AT THE REQUEST OF LICENSEE, SHALL BE COVERED BY UAG'S WARRANTY AGAINST THE COPYRIGHT INFRINGEMENT CLAIMS OF OTHERS. During the warranty period, Licensee agrees to give UAG a list of all modifications to the original System which Licensee has made. If Licensee requests UAG to do any warranty work, Licensee shall provide UAG with a current list of all such modifications as of that time. 3.5 Licensee shall not reverse engineer the System, nor remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed on or embedded in any part of the System. 3.6 Any additions or modifications to the System which Licensee obtains from UAG now or at any time in the future shall be subject to the terms of this Agreement. Page 2 4. Protection and Security. 4.1 Title to the System, and all rights therein, including all rights in patents and copyrights which are or would be applicable thereto, shall remain vested in UAG, and the System is understood to be a trade secret of UAG. Licensee acknowledges that UAG has a proprietary interest in the System and will hold it in confidence and agrees that the System is made available to Licensee on a non-exclusive and non-transferrable basis. Except as provided herein or as provided by governing law as defined in Section 12.5 or by court order, Licensee agrees that it will not sell, disclose, or otherwise make the System available to others, and further, that it will neither knowingly nor negligently allow its employees, agents, or independent contractors to sell, disclose, or otherwise make the System available to others. If Licensee becomes aware of any such sale, disclosure or any other unauthorized availability of the System, Licensee shall immediately notify UAG by telephone and in writing. 4.2 Licensee further agrees to take all reasonable steps to ensure that the System is not disclosed or duplicated in whole or in part for the use of others except as provided herein, including, but not limited to: (1) providing physical security for copies of the System; and (2) taking all steps Licensee takes to protect information, data, or other tangible and intangible property of its own that it regards as proprietary or confidential. 4.3 If it is indicated in Section 1.2 that the type of license granted herein is "source code", installation of source code shall be limited to a single processing unit at the Licensee address specified on page one of this Agreement. 4.4 If it is indicated in Section 1.2 that the type of license granted herein is "source code" and it becomes necessary for Licensee to employ third party programmers and/or service personnel in order to ensure the continued usefulness of the System, Licensee may disclose or otherwise make the System software and/or documentation available to said third party programmers and/or service personnel, provided, however, that before doing so Licensee must obtain from such third party a signed copy of a Confidentiality Agreement attached hereto as Exhibit B. A copy of said Confidentiality Agreement shall be sent to UAG within ten (10) days after it is signed by the third party. 4.5 The parties hereto recognize that UAG earns money by licensing the System to licensees, and that if a potential licensee obtains a copy of the System from any other source, UAG will be deprived of that sale and of the revenue therefrom. Therefore, if Licensee makes or knowingly or negligently allows any unauthorized use of the System, including, but not limited to, unauthorized disclosure to third parties, UAG shall have all rights provided by law and/or equity and under this Agreement, including, but not limited to, the right to recover from Licensee the amount of any lost revenue which UAG would have received if the recipient and any subsequent recipients of such unauthorized use had licensed the System from UAG. 4.6 Licensee acknowledges and agrees for all purposes that damages for any violation or threatened violation of Section 4 are inadequate and that any violation or threatened violation of Section 4 shall constitute an irreparable injury to UAG and agrees that, in addition to all other rights provided by law to which UAG shall hereby be entitled, UAG shall have the right to have an injunction issued against Licensee to prevent Licensee from any violations or further violations of Section 4. 5. Payment and Shipping. 5.1 Licensee's right to the license of the System under this Agreement becomes effective only after full payment and this executed Agreement have been received by UAG. Full payment is due within thirty (30) days of Licensee's receipt of invoice. UAG has the right to withhold shipment of the System until both full payment and this executed Agreement are received. UAG will ship the System, at UAG's expense, within one week of receipt of both full payment and this executed Agreement. 5.2 If it is indicated in Section 1.2 that this license is "temporary", Licensee shall be invoiced quarterly, in advance, for a lease fee of USD (S ) per quarter. Page 3 6. Termination of License. 6.1 UAG may terminate the license(s) granted herein if: A. Licensee, or a third party designated by Licensee as responsible for making payments on Licensee's behalf, fails to make payments hereunder when due and continues to fail to make payments within thirty (30) days after UAG has made a demand in writing that such payments be made; or B. Licensee violates Sections 2, 3, 4 or 5 hereof; or C. Licensee has dissolved, liquidated, or permanently terminated its operations; or D. it is indicated in Section 1.2 that this license is "temporary", in which case, this license shall automatically terminate no later than 6.2 Licensee may terminate this license at any time. 6.3 Upon termination by either party, for any reason, Licensee shall immediately cease to have any rights to the use of the System and shall return to UAG all copies of the System including, but not limited to, all modified copies and all documentation of any sort given to Licensee by UAG and all copies thereof. LICENSEE'S OBLIGATIONS AS TO THE CONFIDENTIALITY OF THE SYSTEM SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 7. Warranty. 7.1 Subject to the provisions of Section 3.4, UAG warrants that the System software will conform to that portion of the user documentation provided by UAG that specifically applies to the System as defined in Exhibit A, and that any programming error which prevents the System from so conforming, and for which correction is requested within ninety (90) days after the date on which the System is provided to Licensee will be corrected, provided that (1) the System is kept up to current standards by Licensee's application of all appropriate fixes in a timely fashion, (2) the hardware on which the System is being run is functioning properly, and (3) that Licensee is operating the System according to instructions given by UAG. 7.2 THE FOREGOING STATES THE EXCLUSIVE WARRANTIES OF UAG WITH RESPECT TO ALL ASPECTS OF THIS AGREEMENT, EXCEPT COPYRIGHT AND PATENT INFRINGEMENT, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8. Patent and Copyright. UAG owns all rights to the System and UAG will defend, at its expense, any action brought against the Licensee to the extent that it is based on a claim that the System, used within the scope of this Agreement, infringes a copyright in the United States or a United States patent. UAG will pay any costs and damages finally awarded against the Licensee in such action which are attributable to such claim, provided that the Licensee notifies UAG promptly, in writing, of the claim and permits UAG to conduct the defense of such claim on behalf of Licensee and to agree to any settlement of such claim. If the use of the System furnished hereunder is enjoined as a result of such suit, UAG, at its option and at no expense of the Licensee, shall either (1) obtain for Licensee the right to use the System; (2) shall substitute an equivalent system reasonably acceptable to Licensee and extend this indemnity thereto; or (3) modify the System so that it becomes non -infringing. Should the foregoing alternatives be deemed by both parties to this Agreement to be not reasonably available or satisfactory, Licensee may, at its option, return the System to UAG for a full refund of all sums paid under this Agreement. Page 4 9. Limitation on Liability. 9.1 UAG LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SYSTEM. UAG WILL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL DAMAGES, EVEN IF UAG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY ARISING OUT OF LICENSEE'S USE OR INABILITY TO USE THE SYSTEM, EXCEPT AS PROVIDED UNDER SECTION 8 HEREOF. NOTWITHSTANDING ANYTHING SET FORTH ABOVE, UAG WILL NOT HAVE ANY LIABILITY FOR ANY MODIFICATIONS WHICH ARE MADE TO THE SYSTEM AT THE REQUEST OF LICENSEE (WHETHER MADE BY UAG, LICENSEE, OR A THIRD PARTY) OR THE IMPACT OF SUCH MODIFICATIONS ON THE ORIGINAL SYSTEM. 9.2 No action, regardless of form, arising out of the transactions under this Agreement may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within one (1) year after the date of last payment. 10. Arbitration and Attorneys Fees. Except as set forth in Section 4.6 herein, in the event that any dispute arises between the parties hereto with regard to any of the provisions of this Agreement or the performance of the terms and conditions hereof by either of the parties hereto, such dispute shall be settled by arbitration to be conducted in the City of Oakland, State of California, under the Commercial Rules of the American Arbitration Association, specifically incorporating Section 1283.05 of the California Code of Civil Procedure, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The prevailing party in any such action or arbitration, including any action under Section 4.6, shall recover all of its costs, including reasonable attorneys' fees. 11. Licensee's Remedies Exclusive. Licensee's sole remedies are those specified in this Agreement. 12. Miscellaneous. 12.1 Headings. All headings used throughout this Agreement are for reference only and shall not be considered a substantive part of the Agreement. 12.2 Exclusive Agreement. This Agreement is the exclusive agreement between the parties with respect to its subject matter and as of its date supersedes all prior agreements, negotiations, representations, and proposals, written or oral, related to its subject matter. Its terms cannot be modified, supplemented, or rescinded except by an agreement in writing signed by both parties. Neither party shall be bound by or liable to the other party for any representation, promise, or inducement made by any of such party's agents or employees which is not embodied in this Agreement. In the event of any discrepancy or inconsistency between this Agreement and any other form used by either party in connection herewith, the terms of this Agreement shall govern. 12.3 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions shall in no way be affected or impaired thereby. 12.4 Waiver. No waiver of any breach of this Agreement shall constitute a waiver of any other breach, whether of the same or any other covenant, term, or condition. The subsequent performance of any of the terms, covenants or conditions of this Agreement shall not constitute a waiver of any preceding breach, regardless of the other party's knowledge of the preceding breach at the time of subsequent performance, nor shall any delay or omission of either party's exercise of any right arising from any such default affect or impair the parties' rights as to the same or future default. Page 5 12.5 Governing Law. i , is Agreement shall be governed by the laws of the State of California. The parties specifically decline to be governed by the United Nations Convention on the International Sale of Goods. 12.6 Binding on Heirs and Assigns. This Agreement shall inure to the benefit of and be binding upon the heirs, successors, and assigns of each of the parties hereto. 12.7 Notices. All notices to be given pursuant to this Agreement must be given in writing, personally or by mail, return receipt requested, and addressed to UAG or Licensee at their respective addresses on Page One of this Agreement, or such other address of which the other party has been previously notified in writing. All such notices shall become effective on the date of mailing. UAG and Licensee acknowledge that each has read and understood this Agreement and consents to be bound by its terms. THE URBAN ANALYSIS GROUP, INC. LICENSEE By. o By: James W. Fennessv (Print Name) Title: Date: President 4- S 'L -e -\ Page 6 (Print Name) Date: 7� 9-17 EXHIBIT A SYSTEM SPECIFICATIONS AND LICENSED SITE(S) OPERATING SITE ADDRESS SOFTWARE COMPONENTS SYSTEM VERSIONS Eagle County Engineering TRANPLAN/NIS Windows 500 Broadway P.O. Box 850 Eagle, CO 81631