HomeMy WebLinkAbout02575 - FRA SERVICES SOFTWARE ESCROW BOND Cindy Berardi
From: Sharon Ainsworth
Sent: Tuesday, September 28, 2010 5:22 PM
To: Cindy Berardi
Subject: RE: A2575 FRA Services
Yes. I don't use the ADAM software for the assessment districts any longer.
Thanks!
Sharon V.Ainsworth, CCMT
Deputy City Treasurer
City of Palm Springs
(760)323-8223
(760)322-8320 FAX
mallto:sharona(c77,ci.pal m-springs.caSharon.Ainsworth@palmsprings-ca.gov
From: Cindy Berardi
Sent: Tuesday, September 28, 2010 5:20 PM
To: Sharon Ainsworth
Subject: A2575 FRA Services
Can the attached contract be closed out? (It's an old one.)
cc File: A2575 FRA Services.pdf»
Cindy berarJi
D,-put�i City Cleric
Qfl-ice of the City cleric
City of Palm Springs
P. O. Box 2743
Palm Springs, CA 92262
(760)322-8355
Cindy.Berard i@palmspringsca..gov
Please note the office hours for City Hall are Monday-Thursday 8am-6pm, and we are closed on
Fridays.
Please consider the environment prior to printing this a-mail. Thank you!
FRA Services inc. (ADAM)
.
p Software Es(crOw Assessment Bor
AGREEMENT #2575
1104181, 6-7-38
SOFTWARE ESCROW AGREEMENT
7 This software Escro7p,Agreement (this "Agreement") is made and entered into as of
,T_6.4 j J98' VY, and among FRA SERVICES, INC., ("ADAM"), a California
Corporation ("Licensor"), City of :Palm Springs, a Municipal Corporation ("Licensee"), and
Stradling, Yocca, Carlson & Rauth., (the "Escrow Holder").
WHEREAS, Licensor has agreed to deposit in escrow a copy of the source code
form of the Software covered by the Program Product License Agreement, as well as any
corrections or enhancements to such source code, to be held by Escrow Agent in
accordance with the terms and conditions of this Escrow Agreement.
WHEREAS, Licensee desires the Escrow Holder to maintain possession of a copy of
the Documentation (as hereinafter defined) of the Product to provide controlled retention
and access to Licensee;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEPOSIT OF DOCUMENTATION
A copy of the Program Product Documentation shall be deposited with the Escrow
Holder upon execution of this Agreement.
2. REVISIONS
Licensor shall whenever necessary deposit with the Escrow Holder either
supplemental or replacement Documentation. Such supplemental or replacement
Documentation shall be treated by the Escrow Holder in the same manner as the
Documentation.
3. OBLIGATIONS OF ESCROW HOLDER
3.1 The Escrow Holder accepts the deposit of the Documentation. The Escrow
Holder shall maintain the Documentation in a safe and secure place.
3.2 The Escrow Holder shall bear no obligation or responsibility whatsoever to
determine the existence, relevance, completeness, accuracy or any other aspect of the
Documentation. The Escrow Holder shall have no obligation or responsibility whatsoever
to determine whether what is deposited is or is not the Documentation.
4. TERM
4.1 The term of this Agreement shall be the same as that of the Program
Product License Agreement.
4.2 Any other provision of this Agreement notwithstanding, this Agreement
shall expire and have no further force or effect upon delivery of the Documentation to
Licensee as hereinafter provided or upon the mutual Agreement of Licensor and Licensee.
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4.3 The Escrow Holder may at any time after giving thirty (30) days written
notice to Licensor and Licensee elect to be relieved of any obligations under this
Agreement. In that event Licensor and Licensee shall jointly appoint a new escrow
holder.
4a. PRICE AND PAYMENT
Licensee shall pay to Escrow Holder a one-time fee in the amount of $500 upon the
deposit of the documentation and the source code form of the Software covered by the
Program Product License Agreement.
5. TERMINATION
Upon termination of this Agreement, all obligations of the Escrow Holder to
Licensor and Licensee under this Agreement shall terminate.
6. DELIVERY OF DOCUMENTATION
6.1 The term "Failure of Support" as used herein shall mean failure of Licensor
to continue to do business in the ordinary course; or Licensor has availed itself of, or
been subjected by any third party to, a proceeding in bankruptcy in which Licensor is the
named debtor, and assignment by Licensor, or any other proceeding involving insolvency
or the protection of, or from, creditors, and the same has not been discharged or
terminated without any prejudice to Licensee's rights or interests under the Program
Product License Agreement within thirty (30) days.
6.2 The term "Contrary Instructions" as used herein shall mean the filing with
the Escrow Holder by Licensor, with copy to Licensee, of an affidavit or declaration
executed by an officer of Licensor stating that a Failure of Support has not occurred or
been cured.
6.3 In the event that the Escrow Holder is notified by Licensee of the
occurrence of a Failure of Support, the Escrow Holder shall notify Licensor and shall
provide to Licensor a copy of the notice received from Licensee. Unless Licensor has
within ten (10) days thereafter provided the Escrow Holder with Contrary Instructions,
the Escrow Holder shall deliver the Documentation to the Licensee within the next five
(5) days. If the Escrow Holder has been provided with the Contrary Instructions by
Licensor, the Escrow Holder shall not deliver the Documentation to Licensee, but shall
continue to hold the Documentation until otherwise directed by Licensee and Licensor
jointly.
7. TESTS
Upon written notice to Licensor and Escrow Agent, Licensee shall have the right to
conduct tests of the Source Code held in escrow, under the supervision of Licensor, to
confirm that it is the current Source Code for the Software running on the Designated
Equipment specified in the Program Product License Agreement. After a minimum
notification period of five working days, such tests shall be conducted at the site of
Licensor, in the presence of the Escrow Holder and at a time which is mutually agreed
upon by the parties to this Agreement. Compensation for the services provided by the
Escrow Holder and the Licensor will be borne by the Licensee.
0
8. NON-DISCLOSURE
Except as provided in this Agreement, the Escrow Holder shall not divulge or
disclose or otherwise make available to third parties or make any use whatsoever of the
Documentation or any information provided by Licensor or Licensee in connection with
this Agreement without the prior express written consent of Licensor or Licensee, as the
case may be, in each instance, or unless directed to do so by a court of competent
jurisdiction.
9. INDEMNIFICATION
9.1 Licensor shall defend and indemnify the Escrow Holder and hold the
Escrow Holder harmless from and against any and all claims, actions and suits, and from
and against any and all liabilities, losses, damages, charges, penalties, costs and expenses
of any nature (including attorneys' fees) incurred by the Escrow Holder on account of
any act or omission of the Licensor in this transaction, except the failure of the Escrow
Holder to properly store and maintain the Documentation or failure of the Escrow Holder
to deliver the Documentation to Licensee.
9.2 Licensee shall defend and indemnify the Escrow Holder and hold the
Escrow Holder harmless from and against any and all claims, actions and suits, and from
and against any and all liabilities, losses, damages, charges, penalties, costs and expenses
of any nature (including attorneys' fees) incurred by the Escrow Holder on account of
any act or omission of the Licensee in this transaction.
10. RELIANCE
The Escrow Holder may act in reliance upon any instruction, instrument or
signature believed by the Escrow Holder to be genuine and may assume that any person
purporting to give any writing, notice, request, advice or instruction in connection with or
relating to this Agreement has been duly authorized to do so.
11. WAIVERS
All rights and remedies of the parties hereto are separate and cumulative, and no
one of them, whether exercised or not, shall be deemed to limit or exclude any other
rights or remedies which the parties hereto may have. Neither party hereto shall be
deemed to waive any of its rights or remedies under this Agreement unless such waiver be
in writing and signed by such party. No delay or omission on the part of either party
hereto in exercising any right or remedy shall operate as a waiver of such right or remedy
or any other rights or remedies. A waiver of any right or remedy on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on any future
occasion.
12. CALIFORNIA LAW
This Agreement, and all rights and duties hereunder, including matters of
construction, validity and performance, shall be governed by the laws of the State of
California.
13. NOTICE
Any notice required or permitted to be given under this Agreement shall be given
in writing as follows:
If to Licensor: FRA SERVICES, INC.
2100 S. E. Main St., Ste. 210
Irvine, CA 92714
If to Licensee: City of Palm Springs
3200 Tahquitz
Palm Springs, CA 92262
If to Escrow Holder: Stradling, Yocca, Carlson & Rauth
660 Newport Center Drive, Ste. 1600
P. O. Box 7680
Newport Beach, CA 92660
or such other address of which notice is so given, and shall be deemed to be received
upon delivery, if personally delivered, or two (2) days after mailing, if sent by certified
or registered mail, postage prepaid, to the appropriate address as aforesaid.
15. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties hereto with
respect to the specific subject matter hereof, and no change, amendment, modification or
alteration of this Agreement shall be valid except when it is made in writing and duly
signed by all of the parties hereto. This Agreement supersedes any and all previous
arrangements and agreements, written or oral, express or implied, which may have been
entered into by and between the parties hereto with respect to the specific subject matter
hereof, and any and all such previous arrangements and agreements, if any, are hereby
canceled and terminated in all respects.
16. SEVERABILITY
If any provision of this Agreement is held to be unenforceable or invalid, the
remaining provisions hereof shall nevertheless be carried into effect.
17. HEADINGS
Headings contained in this Agreement are for convenience only and are not part of
this Agreement and do not in any way limit or amplify any of the provisions of this
Agreement.
18. BINDING EFFECT
This Agreement shall be binding upon and shall insure to the benefit of the parties
hereto and their respective heirs, successors and assigns:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
FRA SERVICES, INC. (ADAM) CITY OF PALM SPRINGS
By:
Name: Michael McNamara Name:
Title: President Title:
Attest: l — L—
l/
STRADLING, YQCCA, CARLSON & RAUTH
l i q—j
Name: Fritz Stradling
Title: ��'
FRA Services, Inc. (ADAM)
Assess Distr Billing Softwre
Lic Agr & Mntce
AGREEMENT #2575 (part 1)
MO 4181 6-7-88
SOFTWARE MAINTENANCE AGREEMENT
THIS AGREEMENT is made by and between FRA Services, Inc. ("ADAM"), a
California Corporation, 2100 S. E. Main St., Suite 210, Irvine, California 92714
("Licensor") and The City of Palm Springs, 3200 Tahquitz-McCallum, Palm Springs,
California 92262 ("Licensee").
WHEREAS, Licensor has licensed to the Licensee certain systems as specified in
the Program Product License Agreement between the parties, and the Licensee wishes to
have Licensor perform Software maintenance services on the Software for an annual fee.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Software Systems Covered. The Software covered in this Agreement is the
Licensor's Software, as more fully described in the Program Product License Agreement,
and as updated with enhancements or modifications furnished to the Licensee under the
Program Product License Agreement. During the term of this Agreement, Licensor shall
supply the Licensee with any updates or revisions to the Software which are not charged
for as options.
1.1 Updates or revisions - Updates or revisions are any program changes
that improve the performance or enhance the legal or financial accuracy of installed
Software.
1.2 Options - Options are those programs which are not marketed as
standard with the installed ADAM software and are subject to separate purchase, license,
and maintenance terms and conditions.
1.3 New Producl - A Software program which is not covered as an
update or revision, or option is a new product and is subject to separate purchase, license,
and maintenance terms and conditions.
2.1 ADAM's normal working hours shall mean 8:30 a.m. to 5:00 p.m.,
Monday through Friday, Pacific Standard Time.
2.2 All maintenance service shall be performed in the following manner:
2.2.1 Licensor's Support Representative will contact Licensee within
four (4) hours of notification by customer.
3. Licensee Support. The Licensee agrees to provide Licensor with dumps, as
requested, and with sufficient support and test time on the Licensee's computer system to
duplicate the problem, certify that the problem is with Licenser's Software, and certify
that the problem has been corrected.
4. Licensee Responsibility. The Licensee shall inform Licensor in writing of
any modifications made by the Licensee to the Software. Licensor shall not be responsible
for maintaining Licensee modified portions of the Software or for maintaining portions
of the Software affected by Licensee modified portions of the Software. Corrections for
difficulties or defects traceable to the Licensee's errors or systems changes shall be billed
at Licensor's standard time and material charges.
5. Telecommunications. The Licensee shall install and maintain for the
duration of this Agreement, a modem and associated dial-up telephone line. The Licensee
shall pay for installation, maintenance and use of such equipment and associated
telephone line use charges. Licensor, at its option, shall use this modem and telephone
line in connection with error correction. Such access by Licensor shall be subject to prior
approval by the Licensee in each instance.
6. Term. The term of this Agreement shall commence automatically upon
acceptance of the software and shall continue for one (1) year from the commencement of
the term of this Agreement. Notwithstanding the foregoing, any termination is subject to
ninety (90) days written notice by either party.
7. Price and Payment. Licensee shall pay to Licensor the Annual maintenance
fee designated upon the terms provided therein. The maintenance fee shall be billable
annually, in advance, and be due and payable upon receipt.
8. Travel Expenses. The Licensee shall reimburse Licensor for any out-of-
pocket expenses incurred at the Licensee's request, including travel to and from the
Licensee site, lodging, meals, telephone and shipping, as may be necessary in connection
with the duties that are related to corrections or replacements. However, Licensor shall
not be entitled to reimbursement: for travel expenses in the event the problem which
prompted Licensee to summon Licensor to its premises is determined to be attributable to
Licensor. In the event Licensor is otherwise entitled to reimbursement for travel
expenses, such claims shall be submitted to Licensee with receipts within thirty (30) days
of the date such expenditures are incurred.
9. Adjustments to Terms and Conditions. At any time after the expiration of
the initial one year term, Licensor may change its Software maintenance fees, terms and
conditions upon ninety (90) days written notice to the Licensee. However, any such
increased charges of fees shall not exceed its published standard list prices for such
services charged to its customers.
10. Title to Software Systems and Confidentiality. Any changes, additions, and
enhancements in the form of new or partial programs or documentation as may be
provided under this Agreement shall remain proprietary to Licensor. The Program
Product License Agreement referred to above shall include under its proprietary
restrictions any such additional programming and documentation provided under this
Agreement. The Software or any improvements, modifications or changes to the Software
provided hereunder and all copies thereof are proprietary to Licensor and title thereto
remains in Licensor. All applicable rights to patents, copyrights, trademarks, and trade
secrets in the Software and the improvements, modifications and changes thereto are and
shall remain in Licensor. The Licensee shall not sell, transfer, publish, disclose, display or
otherwise make available the Software or improvements, modifications or changes thereto
or copies thereof to others. The Licensee agrees to secure and protect each program,
Software product and copies thereof in a manner consistent with the maintenance of
Licensor's rights therein and to take appropriate action by instruction or agreement with
its employees or consultants who are permitted access to each program or Software
product to satisfy its obligations hereunder. All copies of the Software, or improvements,
modifications or changes thereto made by the Licensee including translations,
compilations, partial copies with modifications and updated works are the property of
Licensor.
Violation of any provisions herein shall be the basis for immediate termination of
this Software Maintenance Agreement. Termination of this Agreement shall be in
addition to and not in lieu of any equitable remedies available to Licensor.
11. Exclusion of Liability. LICENSOR MAKES AND LICENSEE RECEIVES
NO WARRANTY EXPRESS OR IMPLIED AND THERE IS EXPRESSLY EXCLUDED
ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE NOT OTHERWISE STATED IN THE PROGRAM PRODUCT LICENSE
AGREEMENT BETWEEN THE PARTIES. LICENSOR SHALL HAVE NO LIABILITY
WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR
CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Termination. In the event of termination of the permanent Program
Product License Agreement referred to above, all maintenance fees or charges payable for
the term of this Agreement shall become due and payable and Licensor's obligations under
this Software Maintenance Agreement shall immediately end. Licensor may terminate this
Agreement in the event of default by the Licensee after ten (10) days written notice.
13, Taxes. Licensee shall, in addition to the other amounts payable under this
Agreement, pay all sales and other taxes, national, state, or otherwise, however designated,
which are levied or imposed by reason of the transactions contemplated by this
Agreement. Without limiting the foregoing, Licensee shall promptly pay to the Licensor
an amount equal to any such items actually paid, or required to be collected or paid by
Licensor.
14. General.
14.1 Each party acknowledges that it has read this Agreement,
understands it, and agrees to be bound by its terms and further agrees that it is the
complete and exclusive statement of the Agreement between the parties, which supersedes
and merges all prior proposals, understandings and all other agreements, oral and written,
between the parties relating to this Agreement. This Agreement may not be modified or
altered except by a written instrument duly executed by both parties.
14.2 This Agreement and performance hereunder shall be governed by
and construed in accordance with the laws of the State of California.
14.3 If any provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
14.4 Should any litigation be commenced between the parties hereto
concerning this Agreement or the rights and duties of either in relation thereto, the party
prevailing in such litigation shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum as and for its attorneys' fees and costs in such litigation
which shall be determined by the court in such litigation or in a separate action brought
for that purpose.
14.5 Any litigation proceedings will be conducted in Orange County,
California, or as mutually agreed upon by the parties hereto.
14.6 The headings used in this Agreement are for convenience only and
are not to be used in interpreting or construing any provision.
14.7 The Licensee may not assign without the prior written consent of
Licensor, its rights, duties or obligations under this Agreement to any person or entity, in
whole or in part. Licensor will provide prior written notification to Licensee of any
assignment or sub-licensing arrangements which may impact Licensee.
•
14.8 The waiver or failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further right hereunder.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of the
later of the dates set forth below.
LICENSOR: FRA SERVICES,QNC. (ADAM)
Date: ( 1 19 By: =��"�
Name/Titlee (.>
LICENSEE:
JUN 16 1991
Date: 19_ By: e
tau
Name/Title C;II-Y jVtANAGLR
ATTEST: f APPROVED AS TO FORM:
JUDITH SIIMICH
CITY CLERK
APPROVED GY THE C11"11'COUNCIL
BY No.
pl-lj �-
• • FRA Services, Inc. (ADAM)
FRA SERVICES, INC. Assess Di str Billing SOftwre
Lic Agr & Mntce
PROGRAM PRODUCT LICENSE AGREEMENT #2575 (part 2)
MO 4181 6-7-88
CUSTOMER: — - - —
CITY OF PALM SPRINGS
FRA SERVICES, INC. ("ADAM"), by its acceptance, agrees to and does hereby grant and
Customer ("CUSTOMER") accepts, on the following terms and conditions, a personal, non-
transferable and non-exclusive right and license to use the Licensed Program and Related
Materials identified hereunder in the following schedule, collectively referred to as
Program Product:
SCHEDULE
Computer System Designation: IBM Network
Designated Computer System Serial No.
(if available)
Program Product/ One-time (Optional)
Installation License/ Annual Estimated
Support/Training Consulting Maintenance Delivery
48 Identification Charge Charge Date
1 Review of 1915 Act Administration $ 5,000
1 Installation/Training/Testing (est.) $ 1,200
1 ADAM Base Program $ 4,900
1 Multi-District Option 1,500
1 County Interface Option 1,000
7 Additional Districts 6,000
8 Reports (Optional) 800
Total Software $14,200
Annual Maintenance Charge - ADAM $ 1,420
1 Review of 1911 Act Admnistration $ 3,000
1 Installation/Training/Testing (est.) $ 1,200
1 AMS:1911 $ 3,800
1 Multi-District Option 1,000
7 Additional Districts 2,700
1 Billing Package and Report 300
1 Report Capability 100
Total Software $ 7,900
Annual Maintenance Charge - AMS:1911 $ 790
• 0
CUSTOMER BY ITS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS
AGREEMENT, UNDERSTANDS IT AND THAT IT CONSTITUTES THE ENTIRE
AGREEMENT, UNDERSTANDING AND REPRESENTATIONS, EXPRESS OR IMPLIED,
BETWEEN THE CUSTOMER AND ADAM WITH RESPECT TO THE PROGRAM
PRODUCTS AND SERVICES TO BE FURNISHED HEREUNDER AND THAT THIS
AGREEMENT SUPERSEDES ALL PRIOR COMMUNICATIONS BETWEEN THE
PARTIES INCLUDING ALL ORAL OR WRITTEN PROPOSALS. THIS AGREEMENT
MAY BE MODIFIED OR AMENDED ONLY BY A WRITTEN INSTRUMENT SIGNED
BY DULY AUTHORIZED REPRESENTATIVES OF CUSTOMER AND ADAM.
ACCEPTED: FRA SERVICES, INC. CITY OF PALM SPRINGS
("ADAM")
-
By: ,& 'c
.-�:... . �..�._...__ ✓ , tea., �
Authorized Signature
,�F,� u2 1 M2FFJVN R. fbtNG
Title
Title r ��� ui'1 Y Ie7ANr4G1:17.
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Date batejuN 6 N
AP-R0VFf;,srTjjt� y tx ct�
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2
1. DEFINITIONS
1.1 Program Product shall collectively mean the Licensed Programs and Related
Materials, which Program Products are identified in the schedule on the face hereof and
those ordered from time to time by CUSTOMER subject to written acceptance by ADAM.
1.2 Licensed Program shall mean the program material in machine-readable or
interpreted form, and may include„ where appropriate, listings of either machine code.
1.3 Related Materials shall mean all material other than the Licensed Program
furnished by ADAM in conjunction with such Licensed program and including, for
example, operating instructions, input information or format specifications, instructional
and other documentation including all guides and manuals, and further shall include all
permitted copies of Program Product material made by CUSTOMER.
1.4 Designated Computer System shall mean the system configuration including a
processing unit designated by type and serial number.
1.5 Installation Support shall include hardware orientation services and application
Program Product services defined by ADAM current specification for such services, and
further shall include consultation and guidance support requested by CUSTOMER and
agreed to be supplied by ADAM at its then current rates.
1.6 Training shall include ADAM's current published training courses for hardware,
software, and system management at the then current rates, at time of request for such
training.
3
0 0
2. LICENSE AGREEMENT
2.1 ADAM grants to CUSTOMER and CUSTOMER hereby accepts, subject to
provisions in Paragraphs 7 and 8 of this License, a personal, nonexclusive, nontransferable
right and license to use the Program Product on the Designated System and to use the
Related Materials in conjunction therewith.
2.2 A separate license is required by each Designated System into which the Licensed
Program or any portion thereof is read in machine-readable form for operation on such
System; PROVIDED, HOWEVER, this License may be temporarily transferred to a back-
up system if the Designated System is inoperative because of conditions beyond
CUSTOMER'S control.
3. DELIVERY OF PROGRAMS
3.1 ADAM shall furnish CUSTOMER on or about the estimated delivery date specified
on the face hereof the then current version of the Program Product in a medium suitable
for use on the Designated System.
4
• •
4. CHARGES AND TAXES
4.1 CUSTOMER agrees to pay ADAM within thirty (30) days of receipt of an invoice
for the Program Product and related sales tax, Installation Support, Training, and for all
other charges listed on the face of this license and in accordance with the letter
agreement.
5. PROGRAMMING SERVICES
5.1 Any programming service or assistance requested by CUSTOMER will be provided,
if available, at ADAM's standard rates than in effect.
5.2 CUSTOMER agrees to advise ADAM in writing of the precise nature of any
suspected error or malfunction and provide ADAM with all relevant information upon
request in order to assist ADAM in rendering the services set forth herein. ADAM does
not represent or warrant the service results or that all errors or malfunctions will be
corrected.
5.3 CUSTOMER will provide ADAM with reasonable computer time and/ at ADAM's
request, run a tracer or monitor for the purpose of determining and correcting any error
or malfunction, or making other changes requested by CUSTOMER and agreed to by
ADAM.
5.4 In addition, CUSTOMER will provide ADAM with the "memory dump" and such
additional data as ADAM requests in machine-readable or interpreted form deemed
necessary or desirable by ADAM in order to reproduce the environment within which
5
such Licensed Program operated. If ADAM determines there was no error or malfunction
in the Licensed Program, CUSTOMER agrees to pay for all time and material spent by
ADAM in attempting to determine and correct CUSTOMER's problems.
5.5 ADAM has no obligation to maintain, support, or provide programming services for
any Licensed Program beyond the specification of the most current version of the
Program Product.
6. PERMISSION TO COPY, MODIFY AND USE
6.1 Any Program Product furnished by ADAM in machine-readable form may be
copied in whole or in part by CUSTOMER for use with the Designated Computer System,
PROVIDED, HOWEVER, that only the number of copies required to serve CUSTOMER's
actual need for the Designated Computer System shall be made. CUSTOMER agrees that
the original copy of all Program Product furnished by ADAM and all copies thereof made
by CUSTOMER are and shall remain the sole property of ADAM.
6.2 An original or a copy of the Program Product may be kept in storage at a location
separate from that of the Designated Computer System. CUSTOMER agrees to notify
ADAM immediately in writing of the location of such backup, original or a copy upon
request by ADAM.
6.3 CUSTOMER expressly agrees to include ADAM copyright notice and proprietary
notice on all copies, in whole or in part, in any form including machine language made by
CUSTOMER in accordance with this License.
6
7. PROTECTION AND SECURITY
CUSTOMER agrees not to disclose, publish, release, transfer or otherwise make
available any Program Product, in any form, to any person other than CUSTOMER's or
ADAM's employees without prior written consent from ADAM except during the period
any such person is on CUSTOMER's premises for purposes specifically related to
CUSTOMER's use of the Program Product. CUSTOMER also agrees to protect the
Program Product or any part thereof from unauthorized disclosure by its agents,
employees or customers.
8. WARRANTY
8.1 Each Licensed Program Product is warranted to conform to the design
specification for that release as designated in the Program Product specification or
similar applicable release issued by ADAM.
8.2 This warranty is applicable to each unaltered release of the Licensed Program
commencing on the date of its delivery to the CUSTOMER and terminating one year from
the date of such delivery, or thereafter ninety (90) days after the date on which ADAM
releases a revision thereof or upon termination of the license, whichever is earlier.
8.3 CUSTOMER agrees that its sole and exclusive remedy and ADAM's sole obligation,
is for ADAM to provide programming services to attempt to correct any defect in the
Licensed Program warranted hereunder if it fails to conform to the applicable design
specifications, and only if CUSTOMER advised ADAM of such failure in writing during
the term of the warranty. For purposes of this Agreement , non-conformance to design
7
specification and the term "defect" shall mean only significant deviations from the design
specifications for the Licensed Program.
8.4 Except as specifically provided herein, there are no other warranties, express or
implied, including, but not limited to, any implied warranties of merchantability or
fitness for a particular purpose
9. RESPONSIBILITY OF THE PARTIES
CUSTOMER shall be exclusively responsible for the supervision, management and
control of its use of the licensed Programs, including but not limited to: (1) assuring
proper machine configuration, program installation, audit controls and operating methods,
(2) establishing adequate backup plans, including, for example, alternate procedures and
(3) implementing sufficient procedures to satisfy its requirements for security and
accuracy of input and output as well as restart and recovery in the event of a
malfunction.
10. RISK OF LOSS
ADAM agrees to replace, without additional charge to CUSTOMER, any Licensed
Program or Related Material lost or damaged in shipment to CUSTOMER. If CUSTOMER
loses or damages any Licensed Program or Related Material, ADAM will replace them, if
available, at an additional charge.
8
0
11. SYSTEM SERIAL NUMBER
In the event the serial number of the system is not known at the time this License
is executed, the serial number will be inserted by ADAM on its copy of this License and
such serial number shall be the system serial number of the Designated System. If no
serial number is designated in this License at the time of execution, or as otherwise
provided herein, then the serial number of the system on which the Program Product is
first used shall be deemed to the the system serial number of the Designated System.
12. CANCELLATION OR DEFAULT
Each license granted hereunder may be cancelled by ADAM, if CUSTOMER is in
default in payment of any amount due under this Agreement for a period of two (2)
months or may be cancelled at any time upon default by CUSTOMER of any other
covenant of this License if such default is not corrected within two (2) months after
receipt of written notice thereof. Said written notice must set forth particulars of the
alleged default. CUSTOMER's obligation to pay charges which have accrued and any
damages arising from its breach of this License shall survive cancellation. The remedies
provided herein shall not be deemed exclusive but shall be cumulative and shall be in
addition to all other remedies provided by law and equity. No delay or omission in the
exercise of any remedy herein provided or otherwise available to ADAM shall impair or
affect ADAM's right to exercise the same. Any extension or indulgence (which must be in
writing) shall not otherwise alter or affect ADAM's rights or obligations or be deemed a
waiver thereof.
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13. TERMINATION
13.1 Within thirty (30) days after the termination or cancellation for any reason, of the
license granted hereunder, CUSTOMER shall deliver to ADAM the Licensed Program and
Related Materials related to such Licensed Program and all copies thereof in whichever
form, including partial copies which may have been modified by CUSTOMER or ADAM.
Upon prior written authorization from ADAM, CUSTOMER may be permitted for a
specific period thereafter to retain one copy of certain Materials for record purposes.
13.2 CUSTOMER understands and acknowledges that violation of CUSTOMER's
obligations pursuant to this Agreement may cause ADAM irreparable harm and damages
which may not be recovered at law, and Customer agrees that ADAM's remedies for
breach of this Agreement may be in equity by way of injunctive relief, as well as any
other relief available, whether in law or in equity.
14. LIMITATION OF LIABILITY
14.1 IN NO EVENT SHALL ADAM BE LIABLE TO CUSTOMER FOR LOSS OF
REVENUE, OR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT
OF ANY BREACH OF THIS AGREEMENT OR OF OBLIGATIONS UNDER THIS
AGREEMENT OR THE LICENSE GRANTED OR FOR ANY CLAIM MADE AGAINST
CUSTOMER BY ANY OTHER PARTY, EVEN IF ADAM HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH CLAIM.
14.2 ADAM SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN
DELIVERY, INSTALLATION OR FURNISHING OF THE PROGRAM PRODUCTS OR
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SERVICES UNDER THIS AGREEMENT.
14.3 IF A CHARGE IS PAYABLE WITH RESPECT TO ANY PROGRAM PRODUCTS
OR RELATED MATERIALS LICENSED HEREUNDER, OR IF A CHARGE HAS BEEN
ESTABLISHED IN THE REGULAR COURSE OF BUSINESS BY ADAM FOR
LICENSING THE SAME OR SIMILAR PROGRAM PRODUCTS, THE ADAM
LIABILITY, IF ANY, FOR LOSS OR DAMAGES RELATING TO OR ARISING OUT OF
THE LICENSE THEREFOR SHALL NOT EXCEED THE CHARGES ATTRIBUTABLE
TO SUCH PROGRAM PRODUCTS.
15. GENERAL
15.1 The License granted hereunder shall not he deemed to include or extend to any
other software or other licensed programs of ADAM or any part thereof, heretofore, or
hereafter released by ADAM.
15.2 NO ACTION ARISING OUT OF ANY CLAIMED BREACH OF THIS
AGREEMENT OR TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT
BY EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION
HAS ACCRUED.
15.3 The laws of the State of California shall govern as to the interpretation, validity
and effect of this Agreement.
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