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C 4132
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT is made and entered into this 24th Day
of February, 2005, by and between MOSTWANTEDSOFTWARE, LLC, a California limited liability
company ( "Licensor "), and Arcadia Police Department ( "Licensee ").
A. Licensor has developed a software product entitled "The Law Enforcement
Administrative Database (LEAD.)" to be used by law enforcement agencies for the purposes of
organizing and operating various administrative functions for law enforcement agencies from a
single database (the "Software ").
B. Licensee now desires to license the Software from Licensor, and Licensor
desires to license the Software to Licensee, pursuant to the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
Licensee and Licensor hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Acceptance" of Software means completion of the acceptance testing
process set forth in Section 3 of this Agreement.
1.2 'Agreement" includes this agreement and its Schedules and Riders.
1.3 "Designated Environment" means the computer equipment and software
operating system described on Schedule B.
1.4 "Documentation" means the user, system and installation documentation
for the Software.
1.5 "Error" means a material failure of the Software to function in conformity
with the Specifications.
1.6 "License" means the license granted by Licensor to Licensee to use the
Software and Documentation in accordance with the terms and conditions of this Agreement.
1.7 "Licensed Copies" means the number of copies of the Software and
Documentation being licensed to the Licensee.
1.8 "Location(s)" means Licensee's offices at the location(s) specified in
Schedule B.
1.g "Maintenance Agreement" means the Software Maintenance Agreement
between the parties effective as of the date of this Agreement.
1.10 "Price" means the License Fees Licensee shall pay as specified in
Schedule A.
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1.11 'Rider" refers to any riders attached to this Agreement, or any
subsequently prepared document which the parties agree in writing to be considered a Rider.
1.12 "Schedule" refers to any schedule attached to this Agreement, or any
subsequently prepared document which the parties agree in writing to be considered a Schedule.
1.13 "Specifications" means Licensor's specifications for the Software as set
forth on Schedule A.
1.14 "Target Date" means 4/10/2005, the date by which both parties anticipate
delivery of the Software.
1.15 "Warranty Period" means the one (1) year period commencing on the date
of Acceptance.
ARTICLE II
SOFTWARE LICENSE
2.1 License. Licensor hereby grants Licensee a non - exclusive, non-
transferable license to (i) use the Software and Documentation solely for Licensee's internal
operations at the Location(s) and on the Designated Environment, and (ii) copy the Software and
Documentation for archival or backup purposes only, provided that all titles, trademarks, and
copyright, proprietary and restricted rights notices shall be reproduced in all such copies, and that
all such copies shall be subject to the terms of this Agreement.
2.2 Distribution. Except as explicitly provided herein, Licensee shall not: (i)
make available nor distribute all or part of the Software or Documentation to any third party by
assignment, sublicense or by any other means; (ii) copy, adapt, reverse engineer, decompile,
disassemble, or modify, in whole or in part, any of the Software or Documentation; or (iii) use the
Software to operate in or as a time - sharing, outsourcing, or service bureau environment, or in any
way allow third party access to the Software.
ARTICLE III
INSTALLATION AND ACCEPTANCE
3.1 Installation and Acceptance. Licensor shall use reasonable efforts to
deliver the Licensed Copies of the Software and Documentation to the Location(s) on or about
the Target Date. Licensee shall have sixty (60) days from the Delivery Date to perform
acceptance testing. Licensee's Acceptance of the Software shall occur at the earlier of Licensee's
operational use of the Software, or the expiration of sixty (60) days from the Delivery Date without
the provision of notice by Licensee to Licensor of any Error(s). If Licensee provides notice to
Licensor of any Error(s) and Licensor verifies the alleged Error(s), the Software shall be accepted
upon Licensor's correction of such Error(s).
ARTICLE IV
PRICE AND PAYMENT
4.1 Price. Licensee shall pay the Price in accordance with the payment plan
set forth in Schedule A. Licensor shall invoice any additional costs reasonably incurred by
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Licensor in the delivery of the Software as they are incurred. Payment of the Price and additional
costs shall be made by Licensee to Licensor in full without any right of set -off or deduction, and
Licensee shall pay the Price and such costs within Thirty (30) days from the date of invoice.
4.2 Tax. Licensee shall be responsible for any applicable sales or use taxes
or any value added or similar taxes payable with respect to the licensing of the Software, or
arising out of or in connection with this Agreement, other than taxes levied or imposed based
upon Licensor's income. In the event that Licensor pays any such taxes on behalf of Licensee,
Licensor shall invoice Licensee for such taxes and Licensee agrees to pay such taxes in
accordance with this Agreement.
4.3 Interest. Failure by Licensee to pay any amounts invoiced under this
Agreement in full in accordance with this Agreement shall make Licensee liable to pay Licensor
interest at the rate of one and a half percent (1.5 %) per month on the remaining amount due, or
at the highest amount permitted by applicable law such interest to accrue on a daily basis after as
well as before any judgment relating to collection of the amount due.
ARTICLE V
PROPRIETARY RIGHTS
5.1 Proprietary Rights. Licensee acknowledges and agrees that the
copyright, patent, trade secret, and all other intellectual property rights of whatever nature in the
Software, Documentation and Specifications are and shall remain the property of Licensor, and
nothing in this Agreement should be construed as transferring any aspects of such rights to
Licensee or any third party.
ARTICLE VI
CONFIDENTIALITY
6.1 Confidential Information. The term "Confidential Information" shall refer
to the Software, Documentation, Specifications, and terms and conditions of this Agreement.
Licensee acknowledges the confidential and proprietary nature of the Confidential Information
and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any
other person, firm, corporation or other entity, other than Licensee's employees with a need to
know such Confidential Information to perform employment responsibilities consistent with
Licensee's rights under this Agreement. Licensee shall safeguard and protect the Confidential
Information from theft, piracy or unauthorized access in a manner at least consistent with the
protections Licensee uses to protect its own most confidential information. Licensee shall inform
its employees of their obligations under this Agreement, and shall take such steps as may be
reasonable in the circumstances, or as may be reasonably requested by Licensor, to prevent any
unauthorized disclosure, copying or use of the Confidential Information. Licensee acknowledges
and agrees that in the event of the Licensee's breach of this Agreement, Licensor will suffer
irreparable injuries not compensated by money damages and therefore shall not have an
adequate remedy at law. Accordingly, Licensor shall be entitled to a preliminary and final
injunction without the necessity of posting any bond or undertaking in connection therewith to
prevent any further breach of these confidentiality obligations or further unauthorized use of
Confidential Information. This remedy is separate and apart from any other remedy Licensor may
have.
6.2 Unauthorized Disclosure. Licensee shall notify Licensor immediately
upon discovery of any prohibited use or disclosure of the Confidential Information, or any other
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breach of these confidentiality obligations by Licensee, and shall fully cooperate with Licensor to
help Licensor regain possession of the Confidential Information and prevent the further prohibited
use or disclosure of the Confidential Information.
ARTICLE VII
WARRANTY
7.1 Operation. Licensor represents to Licensee that: (i) during the Warranty
Period, the Software shall operate without any Errors; and (ii) upon notification to Licensor during
the Warranty Period of any Errors, Licensor will, during its normal business hours and at no cost
to Licensee, use reasonable efforts to correct such Errors which are reproducible and verifiable
by Licensor, excluding any Errors caused by uses of the Software which were not in accordance
with the Specifications.
7.2 Remedy. Licensee agrees and acknowledges that Errors may occur in
the Software. Licensee is responsible for establishing a 48 -hour backup of all data and other
procedures and controls reasonably appropriate to maintain Licensee's data and the integrity and
continuity of Licensee's operations. In the event that Licensee notifies Licensor of an Error during
the Warranty Period, Licensor's sole liability, and Licensee's sole remedy, will be Licensor's use
of reasonable efforts to correct such Errors.
7.3 Warranty Disclaimer. THE WARRANTY SET FORTH IN THIS
SECTION 7 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY
LICENSOR. LICENSOR EXPRESSLY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY
WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT
WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR -FREE, OR THAT
ERRORS IN THE SOFTWARE WILL BE CORRECTED. LICENSOR'S LIMITED WARRANTY IS
IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE OR PERFORMANCE OF THE
SOFTWARE. THE PARTIES AGREE THAT THE SOFTWARE'S FAILURE TO PERFORM IN
ACCORDANCE WITH THE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF
THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED HEREIN. EXCEPT FOR THE
ABOVE LIMITED WARRANTY, THE ENTIRE RISK OF THE SOFTWARE'S QUALITY AND
PERFORMANCE IS WITH LICENSEE.
ARTICLE VIII
INDEMNITY
8.1 Indemnification. Licensor hereby indemnifies Licensee against any
claim that the Software, furnished and used within the scope of this Agreement, infringes any
U.S. registered copyright or patent, provided that: (i) Licensor is given prompt notice of the claim;
(ii) Licensor is given immediate and complete control over the defense and/or settlement of the
claim, and Licensee fully cooperates with Licensor in such defense and /or settlement; (iii)
Licensee does not prejudice in any manner Licensor's conduct of such claim; and (iv) the alleged
infringement is not based upon the use of the Software in a manner prohibited under this
Agreement, in a manner for which the Software was not designed, or in a manner not in
accordance with the Specifications.
8.2 Altered Version. Licensor shall have no liability for any claim of
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infringement based on (i) the use of a superseded or altered version of the Software if
infringement would have been avoided by the use of a current or unaltered version of the
Software which Licensor made available to Licensee; or (ii) the combination, operation or use of
the Software with software, hardware or other materials not furnished or approved by Licensor.
8.3 Injunction. If a final injunction is obtained against the use of any part of
the Software by reason of infringement of a U.S. registered copyright or patent, Licensor will, at
its option and expense, either (1) procure for Licensee the right to continue to use the Software; or
(ii) modify the Software so that it becomes non- infringing. The foregoing states Licensor's entire
obligation and liability with respect to the infringement of any property right relating to Licensee's
use of the Software.
8.4 Infringement. Licensee hereby indemnifies Licensor against any claim
for (i) alleged infringement of any U.S. registered copyright or patent, arising out of the use of the
Software by Licensee in any manner prohibited by this Agreement and (ii) any claim related to or
arising out of a transaction brought by any third party based on the use of the Software.
ARTICLE IX
LIMITATION OF LIABILITY
9.1 Limitation. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT
TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF
LICENSOR TO LICENSEE FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL
BE LIMITED TO THE LESSER OF THE AMOUNT PAID TO LICENSOR BY LICENSEE UNDER
THIS AGREEMENT OR $100.00. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN
THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND
OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND
LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE
NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM
COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT,
AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF
CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT.
9.2 Force Maieure. Neither party shall be under any liability for any loss or
for any failure to perform any obligation hereunder due to causes beyond its control including
without limitation industrial disputes of whatever nature, power loss, telecommunications failure,
acts of God, or any other cause beyond its reasonable control.
ARTICLE X
TERM AND TERMINATION
10.1 Termination. The License granted herein shall remain in effect
perpetually unless terminated as provided for in Sections 10.2 or 10.3 herein.
10.2 Breach. Licensor may terminate this Agreement and the License,
without prejudice to any other remedy Licensor may have, immediately without further obligation
to Licensee, in the event of (i) any breach by Licensee of Articles 2, 5 or 6 of this Agreement
which cannot be remedied within ten (10) days of Licensor's notice to Licensee of the breach and
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Licensor's intent to terminate the License; (ii) any material breach of Sections other than those
set forth above which cannot be remedied within thirty (30) days of Licensor's notice to Licensee
of the breach and Licensor's intent to terminate the License; or (iii) Licensee's making an
assignment for the benefit of its creditors, the filing under any voluntary bankruptcy or insolvency
law, under the reorganization or arrangement provisions of the United States Bankruptcy Code,
or under the provisions of any law of like import in connection with Licensee, or the appointment
of a trustee or receiver for Licensee or its property.
10.3 Remedv. Licensee may terminate the License, without prejudice to any
other remedy Licensee may have, in the event of any material breach of this Agreement which is
not remedied within thirty (30) days of Licensee's notice to Licensor of the breach and Licensee's
intent to terminate the License. Termination shall not relieve Licensee's obligation to pay all
amounts which are due and payable or which Licensee has agreed to pay.
10.4 Cessation of Use. Upon termination of this Agreement, Licensee shall
cease using the Software and Documentation and promptly return all copies of the Software,
Documentation and all other Confidential Information in its possession or control. Licensee shall
delete all copies of such materials residing in on or off -line computer memory, and destroy all
copies of such materials which also incorporate Licensee's Confidential Information. Licensor
shall be entitled to enter the Location(s) to repossess and remove the Software, Documentation,
and any other Confidential Information. Licensee shall, within five (5) days from the effective date
of the termination, certify in writing by an officer or director of the party that all copies of the
Software and Documentation have been returned, deleted and destroyed.
ARTICLE XI
ESCROW ARRANGEMENT
11.1 Escrow Arrangement. Following Licensee's Acceptance of the
Software, at Licensee's sole cost and expense, Licensee may elect to have the source code for
the Software (the "Source Code ") deposited with an escrow agent mutually acceptable to both
Licensee and Licensor (the "Escrow Agent ").
11.2 Revisions. In the event Licensor makes any material changes to the
Software during the term of this Agreement, Licensor agrees to place a copy of the revised
Source Code with the Escrow Agent.
11.3 Insolvencv. The Escrow Agent shall be directed by Licensor to only
deliver the Source Code to Licensee, at no additional charge to Licensee, in the event that
Licensor enters into any voluntary or involuntary receivership arrangement or other insolvency
procedures.
11.4 Ownership. Licensee hereby agrees and acknowledges that ownership
of the Source Code at all times belongs solely to Licensor, and that any release to Licensee of
the Source Code is only made as an accommodation to Licensee and nothing thereby shall be
deemed to vest any ownership of the Source Code or the Software to Licensee.
11.5 Termination of Insolvency Proceedings. In the event that Licensor's
receivership or insolvency procedures are terminated, Licensee, within five (5) days of receiving
notice thereof, shall return the Source Code and all copies thereof to the Escrow Agent.
11.6 Restrictions. During any period of time in which the Source Code is in
the possession of Licensee, it is agreed that the Source Code shall be used only by Licensee at
the Location(s) and or the Designated Environment set forth in this Agreement and shall not be
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duplicated, sold or licensed to any third parties or marketed to any third parties in any manner
whatsoever.
11.7 Indemnification. Licensee hereby agrees to indemnify and hold
harmless the Escrow Agent against any and all loss, damages, costs and expenses that may be
incurred by the Escrow Agent by reason of the Escrow Agent's compliance in good faith with the
terms of this Article XI.
11.8 Payment of Escrow Anent. Licensee agrees to pay all of the charges
and costs of the Escrow Agent for the Escrow Agent's services in holding the Source Code and
otherwise complying with the terms of this Article XI.
ARTICLE XII
GENERAL
12.1 Headings. The headings used in this Agreement are for convenience
only and are not intended to be used as an aid to interpretation.
12.2 Validity. If any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or any remaining
provisions of this Agreement.
12.3 Binding. This Agreement will be binding upon the inure to the benefit of
the parties hereto, their respective successors and assigns. Licensee may not assign its rights or
obligations under this Agreement without the prior written consent of Licensor.
12.4 No Waiver. Failure by either party to exercise any right or remedy
under this Agreement does not signify acceptance of the event giving rise to such right or
remedy.
12.5 Solicitation. Licensee shall not solicit the employment of nor employ
any Licensor personnel who has been directly involved in the development, sale, installation, or
support of the Software for a period of two (2) years from the later of the termination of such
individual's employment at Licensor or the last date of Acceptance of any Software.
12.6 Governing Law and Venue. This Agreement and the rights and
obligations of the parties hereto shall be governed by and construed under the laws of the State
of California. The parties to this Agreement agree that venue for any litigation arising under this
Agreement shall be in the County of Los Angeles, State of California, if instituted in the State
courts, or the Central District of California (Los Angeles), if instituted in the Federal Courts.
12.7 Counterpart s. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute one and
the same Agreement.
12.8 Modifications. Any changes in this Agreement shall be embodied in a
written amendment to this Agreement, signed by both parties, and shall be effective from the date
specified in the amendment.
12.9 Notice. Unless otherwise agreed to by the parties, any notice required
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or permitted to be given or delivered under this Agreement shall be delivered to the address set
forth in this Agreement, and addressed to the attention of:
Licensor: MostWantedSoftware, LLC
7816 N. Sanders Avenue
Clovis, CA 93619
Facsimile No.: (559) 323 -9485
Attention: Mark Gerlach
Licensee: Arcadia Police Department
250 West Huntington Drive
Arcadia, CA 91066 -6021
Facsimile No.: (626) 447 -6581
Attention: Captain Bob Sanderson
Notice shall be deemed to have been received by any party, and shall be effective, (i) on the day
given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified or (ii)
on the third day after which such notice is deposited, if mailed by certified, first class, postage
prepaid, return receipt requested mail.
12.10 Attorney's Fees. In the event of any controversy, claim, or dispute
between the parties arising out of or relating to this Agreement or the breach thereof, the
prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys'
and other professionals' fees, and costs.
12.11 Survival. Articles 5,6,8,9 and 11 shall survive the termination of this
Agreement for any reason.
12.12 Entire Agreement. This Agreement and its Riders and Schedules
comprise the entire agreement between the parties regarding the subject matter hereof and
supercedes and merges all prior proposals, understandings and all other agreements, oral and
written between the parties relating to the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
the date first written above.
"Licensee"
City of Arcadia
"Licensor"
MOSTWANTED SOFTWARE, LLC a
California limited liability company
By:
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By:
—�
Name:
William R. Kelly
Name:
Mark Gerlach
Title:
City Manager
Title:
CEO
Date:
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Date:
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Approved as to Form:
City Att rney, City of Arcadia
Concurrence:
Department Head
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SCHEDULE A
Price and Specifications
LE.AD. program (30 authorized users) $ 0.00
Sales tax @ 8.25% $ 0.00
Total $ 0.00
(Per Article IV, section 4.1 of this Agreement, payment is due 30 days from the date of
invoice.)
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Arcadia Police Department
250 West Huntington Drive
Arcadia, CA 91066 -6021
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SCHEDULE B
Designated Environment and Locations
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