Software License Agreement
NEXGEN Asset Management Software License Agreement
City of Cotati
This Agreement, effective as of July 1, 2023, ("Agreement") is between NEXGEN Asset Management ("NEXGEN"), and the City of Cotati, a municipal corporation ("LICENSEE"), with an office at 201 West Sierra Avenue, Cotati, California 94931.
RECITALS
Whereas, NEXGEN owns certain software programs, referred to collectively as the NEXGEN Asset Management® (NEXGEN AM) products; Whereas, Licensee desires to use those programs, while protecting the copyrights, trade secrets, confidential information, and other valuable intellectual property contained in the programs.
Now, therefore, NEXGEN and Licensee agree as follows:
1. Definitions
"Program(s)" means the object code version of the software programs and related documentation provided by NEXGEN to Licensee at any time under terms of this agreement. "Users" means the number of users (i.e., the number of users using the Program at one time) permitted to use a Program. “Domains” means the number of individual database setups that can be accessed by a Program.
2. LICENSE GRANT
License of Program(s). Subject to the terms and conditions of this Agreement NEXGEN grants Licensee a nonexclusive, nontransferable license to use the object code version of the Program(s) during the term of this Agreement.
Limited Grant. Except as expressly set forth in this Section 2, NEXGEN grants and Licensee receives no right, title or interest in or to the Program(s) or any other deliverables provided by NEXGEN in connection with this Agreement.
3. License Restrictions
No Reverse Engineering. Licensee will not disassemble, decompile, reverse analyze, or reverse engineer the Program(s).
No Modification. Licensee will not modify the Program(s).
No Copying. Licensee will not copy the Program(s), in whole or in part.
No Third Party Use. Licensee will not use the Program(s) in any manner to provide services to any third parties.
4. Proprietary Rights
NEXGEN Property. The Program(s), in whole and in part and all copies thereof, are and will remain the sole and exclusive property of NEXGEN.
Proprietary Notices. Licensee will not delete or alter any copyright, trademark, and other proprietary rights notices of NEXGEN and its licensors appearing on the Program(s). Licensee agrees to reproduce such notices on all copies it makes of the Program(s).
5. Confidential Information
Definition. "Confidential Information" refers to: (i) the Program(s), including, but not limited to their software source code, and any related documentation or technical or design information related to the Program(s); (ii) the business or technical information of NEXGEN, including but not limited to any information relating to NEXGEN's product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how, unless such information has been provided to Licensee and qualifies as a public record in accordance with the California Public Records Act; (iii) any information designated by NEXGEN as "confidential" or "proprietary" or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential.
Confidential Information will not include information that: (i) is a public record in accordance with the California Public Records Act; (ii) Licensee is legally obligated to release; (ii) is in or enters the public domain without Licensee's breach of this Agreement; (iii) Licensee receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iv) Licensee develops independently, which it can prove with clear and convincing written evidence.
Confidentiality Obligations. Licensee agrees to take all measures reasonably required in order to maintain the confidentiality of all Confidential Information in its possession or control, which will in no event be less than the measures Licensee uses to maintain the confidentiality of its own information of equal importance. NEXGEN agrees that Licensee will, at all times, be obligated to release requested records to the public in accordance with the California Public Records Act, and in accordance with any legally issued subpoenas and court orders.
Injunctive Relief. Licensee acknowledges that NEXGEN is a beneficiary of this Agreement and is specifically a beneficiary of this Section. Licensee further acknowledges that the Confidential Information of NEXGEN includes trade secrets of NEXGEN, the disclosure of which would cause substantial harm to NEXGEN that could not be remedied by the payment of damages alone. Accordingly, Licensee agrees that NEXGEN will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section.
6. Maintenance and Support
Maintenance or support is provided assuming the LICENSEE pays the annual maintenance and support fees in advance. Any new versions or modules of software provided to Licensee are automatically licensed according to provisions of this Agreement.
7. INDEMNIFICATION
To the fullest extent permitted by law, NEXGEN shall indemnify, defend (with counsel acceptable to Licensee), and hold harmless Licensee and its elected and appointed officers, officials, employees, agents, contractors and consultants (collectively, the “Licensee Indemnitees”) from and against any and all liability, loss, damage, claims, expenses and costs (including, without limitation, attorneys’ fees and costs of litigation) (collectively, “Liability”) of every nature arising out of or in connection with NEXGEN’s performance under this Agreement or NEXGEN’s failure to comply with this Agreement, except such Liability caused by the gross negligence or willful misconduct of the Licensee Indemnitees.
8. INSURANCE
Prior to providing Programs and services under this Agreement, continuing throughout the term of this Agreement, NEXGGEN shall, at NEXGEN’s sole cost and expense, furnish the City with certificates of insurance evidencing that NEXGEN has obtained and maintains insurance in the following amounts:
A. Workers’ Compensation that satisfies the minimum statutory limits.
B. Commercial General Liability and Property Damage Insurance in an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION DOLLARS ($2,000,000) annual aggregate, for bodily injury, property damage, products, completed operations and contractual liability coverage. The policy shall also include coverage for liability arising out of the use and operation of any City-owned or City-furnished equipment used or operated by the Contractor, its personnel, agents or subcontractors.
C. Comprehensive automobile insurance in an amount not less than ONE MILLION DOLLARS ($1,000,000) per occurrence for bodily injury and property damage including coverage for owned and non-owned vehicles.
All insurance policies shall be written on an occurrence basis and shall name Licensee Indemnitees as additional insureds. The certificates shall contain a statement of obligation on the part of the carrier to notify Licensee of any material change, cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation, termination or non-renewal. Further, if NEXGEN’s insurance policy includes a self-insured retention that must be paid by a named insured as a precondition of the insurer’s liability, or which has the effect of providing that payments of the self-insured retention by others, including additional insureds or insurers do not serve to satisfy the self-insured retention, such provisions must be modified by special endorsement so as to not apply to the additional insured coverage required by this agreement so as to not prevent any of the parties to this agreement from satisfying or paying the self-insured retention required to be paid as a precondition to the insurer’s liability. Additionally, the certificates of insurance must note whether the policy does or does not include any self-insured retention and also must disclose the deductible.
9. Limitations of Liability
Licensee agrees that, as material consideration for NEXGEN extending to Licensee the license rights provided herein, in no event will NEXGEN be liable to Licensee under this Agreement for any Indirect, Special, Incidental, or Consequential Damages, whether based on breach of contract, product liability, or otherwise, and whether or not NEXGEN has been advised of the possibility of such damage.
The parties have agreed that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. Compliance with All Applicable Laws
NEXGEN shall comply with all applicable local, state and federal laws, regulations and ordinances in the performance of this Agreement. Contractor shall not discriminate in the provision of service or in the employment of persons engaged in the performance of this Agreement on account of race, color, national origin, ancestry, religion, gender, marital status, sexual orientation, age, physical or mental disability in violation of any applicable local, state or federal laws or regulations.
11.. Term and Termination
Term. This Agreement shall be for the period of one year from the effective date above and shall automatically renew for one year periods. This Agreement may be terminated by NEXGEN at any time at its sole discretion for any reason including but not limited to: (i) Licensee breaches any material term or condition of this Agreement; (ii) Licensee becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) Licensee becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
The Agreement may be terminated by Licensee at any time in its sole discretion.
Effect of Termination. On termination of this Agreement, Licensee will immediately return to NEXGEN or (at NEXGEN's request) destroy all copies of the Program(s) in its possession or control, and an officer of Licensee will certify to NEXGEN in writing that it has done so.
Survival. The provisions of Sections 4 (Proprietary Rights) and 6 (Confidential Information) will survive termination of this Agreement for any reason.
Nonexclusive Remedy. The exercise by NEXGEN of any remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
12. General Provisions
Assignment. The parties shall not assign this Agreement, and any attempted assignment shall be void.
Modifications. This Agreement may only be modified, or any rights under it waived, by a written document executed by NEXGEN and Licensee.
Conflicting Terms. Purchase orders or similar documents relating to the Program(s) will have no effect on the terms of this Agreement.
Notices. All notices under this Agreement will be deemed given when delivered personally or sent by U.S. certified mail, return receipt requested, to the address shown below or as may otherwise be specified by either party to the other in accordance with this Section.
Severability. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.
Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.
Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements entered into, and to be performed entirely, within California, and shall be venued in Sonoma County.
Independent Contractor. It is understood and agreed that this Agreement is not a contract of employment and does not create an employer-employee relationship between Licensee and NEXGEN. At all times NEXGEN shall be an independent contractor and is not authorized to bind Licensee to any contracts or other obligations.
Non-Liability of Officials, Employees and Agents. No officer, official, employee or agent of Licensee shall be personally liable to NEXGEN in the event of any default or breach by LICENSEE or for any amount which may become due to NEXGEN pursuant to this Agreement.
Execution in Counterparts. This Agreement may be executed in counterparts and/or by facsimile or other electronic means, and when each Party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties.
13. software costs
The software will be hosted by Microsoft Azure. The following annual cost is for 2023. LICENSEE has 5 concurrent users, 1 TB of storage limit and 10 GB/month of data transfer limit. The costs include every module on the web and mobile applications. The 311 Service Request Portal and Contractor Portal are optional items for unlimited requesters. The annual maintenance and support fees include all the upgrades and technical support. NEXGEN has 2 major releases a year in April and October and potentially 2-4 additional mini releases to resolve bugs and improvements.
NEXGEN Cloud
Tier
Concurrent Users
Storage Limit
Data Transfer Limit
2023 Cost ($)
NEXGEN Cloud 110 (1TB/10GB)
5 1 TB
10 GB/Month
$15,000
NEXGEN Cloud 220 (2TB/20GB)
5 2 TB
20 GB/Month
$20,000
Note that the annual cost could increase no more than 5% a year 311 Service Request Portal & Contractor Portal (optional) Option
Users
2023 Cost ($)
NEXGEN 311 Service Request Portal
Unlimited
$5,000
NEXGEN Contractor Portal
Unlimited
$5,000
Note that the annual cost could increase no more than 5% a year.
14. Implementation services
The implementation services include the following. The implementation cost is a one time cost.
Core Implementation Services
Task 1. Project Management
Objectives
The purpose of this task is to manage the project within schedule, budget and delivery.
Assumptions
City will provide a project management/coordinator to work with City staff to coordinate meetings and tasks.
NEXGEN will provide and manage the project in zoho.com, a project management web tool.
Activities
NEXGEN’s project delivery approach will plan, schedule, and deliver a benchmark project on schedule and within budget.
Project work plan with scope, deliverables and schedule.
Project chartering and kickoff meeting.
Weekly communication with project team to track project delivery tasks, deliverables and schedules.
Deliverables
Project Kickoff Meeting.
Project work plan with tasks and schedules.
Project delivered within budget and schedule.
Meeting agendas, minutes and action items.
Task 2. User Requirements & Map Business Processes
Objectives
The purposes of this task are to assess City’s AM user requirements and map business processes to be used for configurations.
Assumptions
City will allocate time with Asset Management Team to meet to identify user requirements and develop business process maps.
Activities
We will meet with users (specific to AM functionalities) to identify functional requirements of AM, based on their user needs. Desired functionalities of AM will drive the configurations.
Document the City’s AM functional requirements & acquire validation from Asset Management Team.
Work with City staff to identify the business processes that are required to support the functional requirements for Asset Management Team.
Develop data standards including asset hierarchy, asset classification and attribute domain, service request and work order type, failure hierarchy (problem, cause, remedy), Review existing data and develop a data upload plan.
Deliverables
Technical memorandum summarizing the City’s AM user requirements and mapped business processes.
Task 3. Data Migration
Objectives
The purpose of this task is to migrate City’s asset data into NEXGEN AM.
Assumptions
City will provide vertical asset inventory data in a spreadsheet format arranged by locations and classes.
City to provide all preventative maintenance and job planning details and schedules.
Activities
Upload all vertical asset inventory into NEXGEN.
Upload the City warehouse inventory with inventory, details, counts, locations and categories.
City to sign off approving the completion of the data migrations.
Deliverables
Populated data into NEXGEN AM.
Task 4. Configure System
Objectives
The purposes of this task are to configure the NEXGEN AM to support City’s user needs, functional requirements and asset management best practices.
Assumptions
City will provide completed spreadsheets for configurations that will include the following:
Users and security groups with rights.
Employee names, user logins, billable rates, emails and mobile numbers Equipment numbers, names and billable rates
Notification requirements.
Departments and divisions.
Service request types and priorities organized by department and divisions.
Work order types, tasks, causes and resolutions by department and divisions.
Activities
Configure NEXGEN AM to support the user requirements and business processes.
Set up user logins and security rights. City will provide the list of employees, roles, emails, mobile phone numbers and security rights.
Configure resources such as employee, equipment, vendors, contractors, crews and training.
Configure all pull down menus such as Work Order Type, Tasks, Cause and Resolution. Configure cascade of service request types and work order tasks to departments and divisions. City will provide the necessary configurations in a spreadsheet template that may be provided to facilitate gathering and providing that data.
Setup notifications for City’s work flows and business processes. Set up notifications content for alerts, emails and text messages.
Deliverables
NEXGEN AM configured to fit the City’s requirements and business processes.
Task 5. Training & Post Support
Objectives
The purposes of this task are to provide pre deployment training and provide post deployment support.
Assumptions
City will provide training facilities.
City will coordinate and schedule training groups.
Activities
NEXGEN will be training the trainer for core users, administrative users, management users and warehouse inventory users, engineers, group foremen. 2 days of pre deployment training (16 hours) on-site training. 8 (1 hour/each) weekly web conference call “office hours” after deployment to provide users opportunities to ask questions, acquire additional training and support.
NEXGEN will provide a training environment, separate from the City’s production environment that replicates the production environment at the time of Go Live. The City will inform NEXGEN when to copy the production environment to the training environment. The training environment will remain live and available for 2 months after deployment.
Deliverables
2 days of pre deployment training (16 hours) on-site training sessions with City staff. 8 (1 hour) of post deployment weekly office hour support for 2 months after deployment.
Individual Production and Training Environments
Implementation Services Costs
Task
Cost ($)
Project Management
$11,440
User Requirements
$6,864
Data Migration
$10,560
Configuration
$13,420
Training
$13,216
Implementation Services Total =
$55,500
Total Costs
Task
Cost ($)
NEXGEN Cloud 110 (1TB/10GB) 5 Concurrent Users (Annual Subscription Fee) $15,000
NEXGEN 311 Service Request Portal (Annual Subscription Fee) $5,000
Implementation Services (One Time Fee)
$55,500
Total =
$75,500
In Witness Whereof, the parties have caused this Agreement to be executed by their duly authorized representatives.
NEXGEN Asset Management LICENSEE
By: _____________________________ By: ____________________________ Name: Vincent Yee, P.E. Name:
Title: President Title:
Date: ___________________________ Date: __________________________ 9 1
NEXGEN Asset Management Software License Agreement
City of Cotati