MINER AND MINER SOFTWARE LICENSE AGREEMENT
Contract No. 2005-204
This is a License Agreement and not an Agreement for Sale. This License Agreement (Agreement) is between the City of Santa Clara, California (Licensee) whose address is given in Exhibit 1, Registered Licensee Information annexed hereto, and Miner and Miner, Consulting Engineers, Inc. (M&M), a Colorado corporation, and gives Licensee certain limited rights to use the proprietary M&M Software and Related Materials (Software and Related Materials). All rights not specifically granted in this Agreement are reserved to M&M.
ARTICLE 1
DEFINITIONS
As used herein, the following words, phrases or terms in this Agreement shall have the following meanings:
"Software" means the actual copy of all or any portion of the computer programs delivered, inclusive of backups, updates or merged copies permitted hereunder or subsequently supplied by M&M.
"Related Materials" means all of the printed materials, user and specification documentation, training documentation, and other material, if any, specifically identified in the Scope of Work for use in conjunction with the confidential Software supplied by M&M under this Agreement.
"Hardware Key/License Manager" means the device and/or software program that administers the distribution of the licensed number of Software copies of requesting end users.
"Licensed Configuration" means the Licensee's specific computer networks and/or computer systems which are licensed to use the Software, as designated through the internet website url: www.miner.com/licenses.html.
ARTICLE 2
RESERVATION OF OWNERSHIP AND GRANT OF LICENSE
a. Retention of Rights. M&M retains exclusive title and ownership of any copy of the Software and Related Materials licensed under this Agreement, with the exception of any Related Materials specifically and exclusively prepared for Licensee. Based on Licensee's making full payment of any required amounts, M&M hereby grants to Licensee a personal, non-exclusive, nontransferable license to use the Software and Related Materials pursuant to the terms and conditions of this Agreement. From the date of receipt, Licensee agrees to use reasonable effort to protect the Software and Related Materials from unauthorized use, reproduction, distribution or publication. M&M recognizes that Licensee is a public agency, and may be subject to disclosure requirements under federal and state law.
b. License Management. M&M employs a License Manager to limit use of the licensed Software to specific computer networks and/or computer systems. As each configuration of computer networks and/or computer systems may be unique, Licensee agrees to conform its use of the Software to the Licensed Configuration. The Licensed Configuration is incorporated herein by this reference, inclusive of any written modifications approved by M&M. Licensee is required to update its Licensed Configuration to reflect current use of Software for license management purposes.
ARTICLE 3
COPYRIGHT
The Software and Related Materials are owned by M&M and are protected by United States copyright laws and applicable international treaties and/or conventions. Licensee agrees not to export the Software and Related Materials into a country that does not have copyright laws that will protect M&M's proprietary rights.
ARTICLE 4
SCOPE OF USE
a. Permitted Uses. The license grant permits the Licensee to do only each of the following:
• Licensee may install the Software onto the computer systems designated by the Licensed Configuration.
• Licensee may use the Software and Related Materials for its internal business and commercial operations only.
• Licensee may access and use any secure M&M Web site resources made available to Licensee for Licensee's internal use only, provided that Licensee follows M&M's terms of use policy specified therein. All password or controlled access information provided by M&M shall be treated as M&M confidential information. • Licensee may make only one copy of the Software for archival purposes unless the right to make additional copies is granted to Licensee in writing by M&M. b. Uses Not Permitted. The Licensee has no rights to:
• Licensee may not sell, rent, lease, sublicense, lend, time-share or transfer, in whole or in part, or provide unlicensed Third Parties access to prior or present versions of the Software and Related Materials, any updates, or Licensee's rights under this Agreement. • Licensee may not reverse engineer, decompile or disassemble the Software, or make any attempt to unlock or bypass the License Manager software program used. • Licensee may not alter, modify or create any derivative works of the Software and Related Materials.
• Licensee may not make additional copies of the Software and Related Materials. • Licensee may not remove or obscure any copyright or trademark notices from the Software or Related Materials.
c. Use By Contractors: A contractor of Licensee ("Contractor"), may be permitted to use one or more of the licenses for the Software under the following terms and conditions. • The term Contractor refers to a person, not an employee of Licensee, which is contracted by Licensee and authorized to perform construction or other work on Licensee's behalf.
No Contractor shall be an organization engaged in the development, licensing or implementation of a GIS design tool software product unless express written consent is obtained in advance from M&M.
• No licensing rights will be provided to the Contractor. The license will remain licensed to the Licensee. When its Contractors use the Software, Licensee will be responsible for ensuring the use of the Software in accordance with the terms of this Agreement. • Any Contractor permitted to use the Software by Licensee will use the Software only to perform work on behalf of Licensee. The Software may not be used by the Contractor to perform work for any other Licensee.
• Licensee will advise each Contractor in writing of the terms of use of Software. Each Contractor will acknowledge in writing that it understands and will abide by those terms. • Licensee will require each Contractor to execute a nondisclosure agreement with Licensee in which the Contractor agrees to protect the Software from disclosure to third parties other than the Contractor and its employees.
• Licensee will keep a written record of which Contractors are using the Software. M&M may audit these records upon request, provided that such audits may not unreasonably interfere with Licensee's business and shall occur only during Licensee's normal hours of operation.
If a Contractor that is using the Software ceases to perform work for Licensee, then Licensee will ensure that either (a) the Software and any Related Materials that have been provided to the Contractor are returned to Licensee, or (b) the Contractor certifies in writing that it has destroyed all copies of the Software and any Related Materials that have been provided to the Contractor.
Such limits shall apply to use of either a portion of or the entire Software or Related Materials.
ARTICLE 5
TERM
The license granted by this Agreement is for a term of three (3) years, which will be automatically renewed for subsequent three (3) year terms at no additional cost to Licensee, subject to M&M's then current licensing policies. The right to use the Software and Related Materials may be automatically terminated by M&M without notice and without refund if Licensee fails to comply with any provision of this Agreement or contributes to any infringement of any proprietary rights in the Software or Related Materials. Licensee will upon any termination uninstall and return to M&M the Software, Related Materials, and any whole or partial copies, codes, modifications, and merged portions in any form. The parties hereby agree that all provisions, which operate to protect the rights of M&M, shall remain in force should any termination occur.
ARTICLE 6
ASSIGNMENT
Licensee shall not assign this contract or Licensee's rights hereunder without the prior written consent of M&M. Any purported assignment without such consent shall be null and void.
ARTICLE 7
MERGER OR ACQUISITION
Should Licensee acquire, be acquired by, or merge with another business entity after the date of execution of this License, Licensee shall notify M&M in writing within a reasonable time.
Successor shall be subject to the terms of this License or must stop use and return all Software and Related Materials. A separate License (or an Addendum to this License) may be required covering any additional licenses required because of the merger or acquisition. Licensee will be responsible to update its Licensed Configuration to reflect current use of Software for license management purposes.
ARTICLE 8
LIMITED WARRANTY AND DISCLAIMER
a. Limited Warranty. M&M warrants that the unaltered Software and media will substantially conform to the Related Materials and will be free from defects in materials and workmanship for a period of three (3) months from the date of installation under normal use. b. General Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY ABOVE,
M&M DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND RELATED MATERIALS.
c. Exclusive Remedy. During the warranty period, M&M's entire liability and Licensee's exclusive remedy shall be, at M&M's option, to attempt to correct or work around errors, to replace the Software and Related Materials in accordance with the M&M Maintenance and Support Policy, or to return the license fees paid and terminate the Agreement upon the Licensee uninstalling and returning the Software and Related Materials to M&M with a copy of Licensee's receipt.
ARTICLE 9
SOFTWARE MAINTENANCE
M&M offers a one-year complimentary maintenance period that begins seven days from the date of product shipment. Software maintenance and support beyond the complimentary period is available at the option of Licensee as specified in M&M's Software Maintenance and Support Policy (please see www.miner.com/support/index.shtml for specific terms of reference.) Software maintenance and support, whether during the complimentary maintenance period or during another time period covered under a paid maintenance period, consists of Software, and/or Related Materials updates and access to technical support and other benefits specified in the most current applicable M&M Maintenance Support Services Policy.
ARTICLE 10
LIMITATION OF LIABILITY
a. Disclaimer of Certain Types of General Liability. M&M SHALL IN NO EVENT BE
LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; BUSINESS EXPENDITURES; INVESTMENTS; OR COMMITMENTS IN
CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR USE OF THE SOFTWARE, OR RELATED
MATERIALS, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT M&M HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. b. Limitation of Liability. IN NO EVENT SHALL M&M'S TOTAL CUMULATIVE
LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR
OTHERWISE, EXCEED THE AMOUNTS PAID TO M&M BY LICENSEE FOR SOFTWARE AND/OR RELATED MATERIALS PURSUANT TO THIS AGREEMENT.
ARTICLE 11
INDEMNITY AGAINST INFRINGEMENT
a. Indemnification. M&M, at its own expense, shall defend and indemnify Licensee from all claims that the Software and Related Materials furnished under this Agreement infringe a U. S.
Copyright, provided that Licensee gives M&M prompt written notice of such claims and permits M&M the sole right to control the defense of all such claims and provides M&M all reasonable cooperation.
b. Remedies. As to any Software and Related Materials that are or in the opinion of M&M may become subject to a claim of infringement, M&M, at its option, will obtain the right for Licensee to continue using the Software and Related Materials or replace or modify the Software and Related Materials so as to make them non-infringing. If neither of such alternatives is commercially practical, the infringing items shall be returned to M&M and M&M's sole liability shall be to refund license fees paid by Licensee prorated over a five (5) year period. c. Alterations by Licensee. If Licensee extends, alters, modifies, or creates any derivative works of the Software and Related Materials or breaches this Agreement in any way, M&M will not indemnify nor defend Licensee from any infringement claim resulting from any of these modifications or alterations. Licensee, at its own expense, shall defend and indemnify M&M from all claims, damages, legal fees, and costs of whatsoever kind or nature arising out of any infringement in connection with Licensees performance of such modification or alteration to the Software and Related Materials.
THIS SECTION STATES M&M'S ENTIRE OBLIGATION TO LICENSEE AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR COPYRIGHT INFRINGEMENT.
ARTICLE 12
GENERAL PROVISIONS
a. Export Regulations: Licensee acknowledges that this Agreement and the performance thereof are subject to compliance with any and all applicable United States laws, regulations, or orders relating to the export of computer software or know-how relating thereto. M&M Software and Related Materials may be Technical Data under United States export laws. Licensee agrees to comply with all laws, regulations, and orders of the United States in regard to any export of such Technical Data. Licensee agrees not to disclose or re-export any Technical Data received under this Agreement in or to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Licensee has obtained prior written authorization from M&M and the U. S. Office of Export Control.
b. Additional Software Licenses: Additional M&M software licenses will be governed by this Agreement and may be ordered without signed amendments to this Agreement. c. Severability: If any provision or portion of a provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall not be affected, and the remaining terms will continue in effect and be binding on the Parties, provided that such holding of invalidity or unenforceability does not materially affect the essence of the Agreement. d. No Implied Waivers: No failure or delay by M&M in enforcing any right or remedy under this Agreement shall be construed as a waiver of any future or other exercise of such right or remedy by M&M.
e. Order of Precedence: Any conflict between the terms of this License Agreement and any Purchase Order or other terms shall be resolved in favor of the terms of this License Agreement. f. Governing Law: This Agreement, entered into in the County of Weld, shall be construed and enforced in accordance with, and be governed by, the laws of the State of Colorado without reference to conflict of laws principles. The parties hereby consent to the personal jurisdiction of the courts of this county and waive their rights to change venue. g. Entire Agreement and Amendments: This Agreement and the Attachments, which are incorporated by reference, constitute the sole and entire agreement of the parties as to the matter set forth herein and supersede any previous agreements, understandings, and arrangements between the parties relating hereto. Except as otherwise expressly provided herein, any Amendments to this Agreement must be in writing and signed by an authorized representative of each party. The attachments are as follows:
Exhibit 1 — Registered Client Information
Exhibit 2 - Reserved for Future Use
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective, valid, and binding upon the parties as of the date below as executed by their duly authorized representatives.