(1) ZE PowerGroup Inc.
-and-
(2) Silicon Valley Power
Software License Agreement-Subscription Model
Table of Contents
Definitions................................................................................................................................................................4 Part 1 - License Agreement.................................................................................................................................... 6
1. Grant of Rights............................................................................................................................................ 6
2. Charges and Payments...............................................................................................................................6
3. Proprietary Rights....................................................................................................................................... 7
4. Proper Usage............................................................................................................................................. 7
5. Confidentiality..............................................................................................................................................8
6. Termination..................................................................................................................................................8
7. Representations, Undertakings and Warranties.........................................................................................8
8. Indemnity.....................................................................................................................................................9
9. Liability........................................................................................................................................................ 9
10. Assignment............................................................................................................................................10
11. Governing Law and Jurisdiction............................................................................................................10 Part 2 - Schedules.................................................................................................................................................13 Schedule A - Software License.........................................................................................................................13 Schedule B - Additional Licensing Options.......................................................................................................14 Schedule C - Schedule of Support Fees.......................................................................................................... 15 Schedule D - Training Details............................................................................................................................ 16 Schedule E - Support Agreement..................................................................................................................... 17
1. Support Services.......................................................................................................................................17
2. Service Level Agreement..........................................................................................................................17
Software Agreement-Subscription Model
Effective Date: October__, 2016
THIS SOFTWARE AGREEMENT (the "Agreement") is made and entered into as of the Effective Date written above BETWEEN:
Introduction:
(A) Licensor wishes to grant Licensee with the following for Licensee's business purposes and as provided for in the Agreement:
(1) Subscription-based access to use the software
(B) This Agreement is divided into the following parts:
(1) Definitions: contains definitions for words and phrases that are applicable throughout all parts of the Agreement below
(2) Part 1: "License Agreement" contains the terms and conditions relating to software license (3) Part 2: "Schedules" contains additional terms relating to the use of and fees for the software license Software Agreement - Subscription Model
Definitions
In this Agreement, each word or phrase listed below has the meaning designated. All definitions below apply throughout the Agreement.
Anniversary Date means the anniversary of the first day of the Annual Year Annual Year means each consecutive 12-month period commencing on the subscription access to the Software Application means each module within the Software
Authorized User(s) means regular and contract employee(s) of Licensee that have a business need to use the Software for the business purposes of Licensee
Bug means a defect or an unintended property of the Software that gives rise to the program failing to function pursuant to the Software's then-stated documentation and functionality Confidential Information means all information of a confidential or proprietary nature relating to the business, prospects or activities of the party in question, including, but not limited to, trade secrets, intellectual property, customer and prospect lists, trade names, or other proprietary information, which is given to, generated by, or otherwise comes into the possession of the other party in the course of negotiation or performance of the Agreement and the terms of the Agreement
Data means any and all data inputted or imported into or generated from the ZEMA Database and the Software that is collected or generated on behalf of Licensee
Data Processor or Processor means the collection of a single electronic source file that is then imported to a target destination in the ZEMA Database
Dispute means any difference of interpretation or legal dispute arising out of or in connection with the Agreement or services provided
Index means the inflation rate most recently published by Statistics Canada (CPI) Law means all laws (including the common law), statutes, and regulations which are legally-binding and which are applicable to the Agreement and to any activities of the parties undertaken pursuant or in relation to the Agreement
License Agreement means the agreement outlining the terms and conditions for licensing the Software and is included as Part 1 - License Agreement of the Agreement License Fee means the fee associated with the subscription-based access to use the Software, as provided for in Part 2 - Schedules of the Agreement; the License Fee listed is in United States dollars Resolution means a remediation of the Software (inclusive of changing the underlying Source Code if required) Definitions
Schedule means a schedule that is included in the Agreement Software is the subject of the Agreement and commercially referred to as ZEMA which is defined in Schedule A - Software License of Part 2 - Schedules of the Agreement, plus any and all Updates provided through Schedule E - Support Agreement
Source Code means human readable computer programming code ZEMA Database means the targeted database in which the licensed Data Processors input Data into Definitions
Part 1 - License Agreement
THIS LICENSE AGREEMENT is made on and entered into as of the Effective Date, as defined on page 3 of this Agreement;
WHEREAS Licensee and Licensor enter into this License Agreement pursuant to which Licensee acquires from Licensor the right to use the Software described herein;
IN CONSIDERATION of the mutual covenants and undertakings contained herein, and intending to be legally bound, the parties agree as follows:
1. Grant of Rights
1.1 License Rights: Pursuant to the payment terms provided in this License Agreement, and subject to the terms and conditions of the Agreement, Licensor shall provide Licensee with subscription access to use the Software: (i) entitling Licensee to use the Software in the furtherance of its business purpose, and (ii) entitling Authorized User(s) to access and use the Software. Licensee shall pay the applicable License Fee and comply with any use restrictions set forth in the Agreement. Licensee acknowledges that Licensor has the right to license, lease or sell the Software to other users.
1.2 Initial Term: The term of this License Agreement shall begin on the effective date, subject to the provisions for termination set forth herein, shall be for an "Initial Term" of One (1) Year. Thereafter, it is at Licensee's option each Annual Year whether to subscribe to the Software.
1.3 Renewal: After the Initial Term, this License Agreement shall automatically terminate unless renewed by mutual agreement based on written notification received at least 10 days in advance of the termination date for additional terms by the Licensee.
2. Charges and Payments
2.1 License Fee payment terms: The annual License Fee payable by Licensee to Licensor for the non exclusive right to a subscription based access to use the Software is set forth in Schedule A - Software License of Part 2 - Schedules.
2.2 Customization or increased functionality: If Licensee licenses Applications, Authorized Users, Data Processors, or makes customizations over and above Schedule A - Software License of Part 2 - Schedules, the applicable license fees shall be invoiced separately in accordance with Schedules B and C of Part 2 - Schedules.
2.3 Interest on late payment: Licensee shall pay interest on any undisputed overdue amount, if such late payment is not cured within 30-days' notice from Licensor of late payment, from due date until payment is made in full at one point five percent (1.5%) per annum over the Bank of Canada rate.
2.4 Disputed invoices: If Licensee disputes any sum included in a valid invoice issued by Licensor, it shall notify Licensor of the Dispute and the amount to which it relates. Licensee shall be obliged to pay any undisputed balance of the invoice in accordance with the terms herein. If resolution of any Dispute results in Licensee agreeing to make payment to Licensor, Licensor shall invoice the agreed amount to Licensee and Licensee shall be obliged to pay the invoice in accordance with the terms herein.
(1) License Agreement
2.5 Payment of invoices: Subject to clause 2.4, Licensor shall pay all invoices within thirty (30) days of receiving a correct invoice.
2.6 Taxes and duties: Licensee shall pay all applicable taxes and duties arising out of the Agreement with the exception of any taxes levied on Licensor's personal property, net income or gross income.
2.7 Non-Refundable: All fees are non-refundable except as provided in the Agreement.
3. Proprietary Rights
3.1 Proprietary rights to the Software: Licensor is deemed to own the intellectual property rights in or to the Software; and nothing in the Agreement is construed to convey to Licensee any intellectual property rights in or to the Software other than the rights set forth in the Agreement and the applicable Schedules. Modifications and customizations: All modifications and customizations to the Software made by Licensor are the sole property of Licensor and Licensor maintains full proprietary rights over such modifications and customizations.
4. Proper Usage
4.1 Software usage: Licensee agrees that it shall only use the Software in the form in which it was supplied and/or updated by Licensor in accordance with the terms and conditions of the Agreement. Usage of the Software that can result in competition with Licensor's development activities is not intended or permitted.
4.2 Data providers: Licensee shall be responsible for ensuring that Licensor, acting on behalf of Licensee, has the right to set up and configure Data Processors to access and collect Data from any non-public data source sites requiring a separate subscription with Licensee, with indemnity protection to Licensor from any third party claim to the contrary. Licensee acknowledges that it bears the full cost of acquiring data that is paid by Licensee directly to the data providers. Licensor's role is to provide software to house and manage data; it is not a reseller of data. Licensee shall be fully responsible for any violations of its data licensing agreements and must maintain licenses to the same extent to which Licensee is using the data through Licensor.
4.3 Proof of subscription: Licensee may be required to provide Licensor with login information for access to data providers. Licensor shall keep the information confidential and only use it to download data on Licensee's behalf in accordance with the terms of agreement between Licensee and the respective third party.
4.4 Continuity: The failure of either party in one or more instances to insist on strict adherence to any of the provisions in the Agreement shall not be construed as a waiver or relinquishment of the right to assert or rely upon such term or provision on any occasion. The headings are for convenience only and shall not affect the meaning of the Agreement.
4.5 Authorized User(s): Licensee shall provide Licensor with the name(s) of the Authorized User(s) in advance. Licensee shall notify Licensor in writing should Licensee wishes to change the Authorized User(s) or of any departure(s) of the Authorized User(s) in order for Licensor to grant access to other users. Each Authorized User(s) must agree and abide to the terms and conditions of the Agreement.
4.6 Unauthorized access: Licensee shall use all reasonable measures to ensure that it does not allow unauthorized access to the Software.
(1) License Agreement
5. Confidentiality
5.1 Duty to preserve confidentiality: Each party shall keep confidential all Confidential Information of the other party which comes into its possession or control or is learned, shall not copy or disclose the Confidential Information in whole or in party to any third party, nor permit access to it by any third party, in each case without prior written consent of the other party except as permitted by clause
5.2. 5.2 Rights of disclosure: Each party shall be permitted to divulge the Confidential Information of the other party if required by law, regulation or judicial order provided that the disclosing party provides the other party reasonable notice and opportunity to protect its interest
5.3 Exceptions to Confidential Information: Notwithstanding the above, the term Confidential Information does not include information that: (i) is in the public domain at the time of disclosure; (ii) was in the possession of or demonstrably known by a party prior to its receipt from the other; (iii) is independently developed by a party without the use of any Confidential Information provided by the other; or (iv) becomes known to a party from a source other than the other party without breach of the first party's obligations under the Agreement.
5.4 Internal distribution: Except as otherwise stated in the Agreement, Licensee shall not permit any of its employees, contractors or consultants to communicate (orally, in writing, electronically, or otherwise), redistribute, or furnish all or any portion of the Software to any person for any reason except the Authorized User(s). Licensee shall be permitted to reasonably distribute outputs from the Software per the terms of the Agreement.
6. Termination
6.1 Termination for material breach: Either party, by written notice, may terminate this License Agreement upon material breach, such as failure to abide by the terms set forth in Section 7, failure to develop data processors in a reasonable amount of time, or breaking confidentiality terms as outlined in Section 5 herein, whereby the breach has remained uncured after thirty (30) days' written notice by the non-breaching party.
6.2 Licensee termination on notice: After the Initial Term as set forth in clause 1.2 of this License Agreement, Licensee may terminate the License Agreement by providing three (3) months' written notice prior to the next Anniversary Date.
6.3 Effect of termination: Termination of the License Agreement shall terminate the subscription-based access to the Software.
6.4 Confidentiality upon termination: Upon termination of this License Agreement, all confidentiality provisions within this License Agreement shall survive such termination and both parties shall keep confidential the terms of the Agreement and all matter relating to the Software except as otherwise provided herein. The parties may only by mutual written consent relax the confidentiality requirements. Licensee shall have the right to provide copies of the Agreement to its attorneys, accountants and regulators and in response to any subpoenas or other judicial requests.
7. Representations, Undertakings and Warranties
7.1 Mutual representation and warranty: Each party represents and warrants to the other that it has full power and capacity to execute, deliver, and perform its obligations under the Agreement. (1) License Agreement
7.2 Additional Licensor representations, warranties and undertakings: In addition to clause 7.1, Licensor warrants, represents and undertakes to Licensee that:
(i) it owns the copyright and all other intellectual proprietary rights in and to the Software; (ii) it has the right to develop the Software and to license the Software to Licensee; (iii) the Software does not infringe any copyright or other intellectual proprietary right of any person; and
(iv) the Software shall be in good working order, developed in accordance with industry standards and capable of performing the intended functions.
7.3 Exclusion of statutory warranties: Except as expressly stated in the Agreement, all warranties implied by statute, common law or otherwise are excluded to the extent permitted by Law.
7.4 Other representations or warranties: Except as specifically provided in the Agreement, Licensee acknowledges that there are no other representations or warranties relating to the Software or the Agreement, whether expressed or implied.
8. Indemnity
8.1 Licensor indemnity: Licensor shall at all times defend, indemnify and hold harmless Licensee and Licensee's directors, officers, and employees from and against any and all claims, causes of action, damages, expenses, and costs (including but not limited to reasonable attorney and expert fees) arising from any and all claims or allegations that the Software infringes a third party intellectual property rights, including, but not limited to, patents, copyrights, and trade secrets.
8.2 Hold Harmless/lndemnification: To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including ail costs and reasonable attorney's fees in providing a defense to any claim arising therefrom, for which City shall become liable arising from Contractor's negligent, reckless or wrongful acts, errors, or omissions with respect to or in any way connected with the Services performed by Contractor pursuant to this Agreement.
9. Liability
9.1 Limitation of liability: EXCEPT FOR CLAIMS OF INFRINGEMENT PURSUANT TO CLAUSE 8 - INDEMITY AND TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS CLAUSE 9 - LIABILITY, NEITHER PARTY
IS LIABLE UNDER THE AGREEMENT TO THE OTHER PARTY (INCLUDING ANY PERSON OR ENTITY
CLAIMING THROUGH THE OTHER PARTY) FOR THE OTHER PARTY'S LOST PROFITS OR SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY
MANNER IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, REGARDLESS OF THE
FORM OF ACTION AND WHETHER OR NOT THE NON-CLAIMING PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS CLAUSE 9.1 OR ELSEWHERE IN THE AGREEMENT DO NOT APPLY TO OR TAKE INTO ACCOUNT DAMAGES RESULTING FROM:
9.1.1 FOR PERSONAL INJURY, DEATH OR DAMAGE TO PHYSICAL PROPERTY CAUSED BY ITS NEGLIGENCE OR WILLFUL MISCONDUCT;
9.1.2 FOR BREACH OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS; (1) License Agreement
9.1.3 FOR BREACH OF CLAUSE 5 - CONFIDENTIALITY
9.2 Licensor's aggregate liability: Except for clause 8 - Indemnity and damages resulting from clauses
9.1.1, 9.1.2, and 9.1.3 above, Licensor's maximum aggregate liability to Licensee in any event shall be limited to the sum of then current term's License Fee of the Software as set out in the Agreement.
9.3 Effects from output of Software: Licensor shall not be liable for any outcomes resulting from decisions made based on outputs from the Software.
9.4 Data integrity: Licensor shall not be responsible for the integrity of the Data provided by the data providers. Licensor serves to provide software to download, house and make Data available to Licensee.
10. Assignment
10.1 Binding nature: The Agreement shall be binding on Licensor and Licensee and their respective successors and permitted assigns.
10.2 Rights to Assign: Both parties acknowledge that the other party may assign its rights hereunder to any other company controlled by the other party or its principals, subject to the assigned party honoring the terms of the Agreement and providing equivalent support.
11. Governing Law and Jurisdiction
This Agreement, and any disputes arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed and construed at all times in accordance with the laws of California and, all disputes arising hereunder shall be heard in a court of California.
12. Insurance Requirements
During the term of this Agreement, Contractor shall provide and maintain in full force and effect, at no cost to City insurance policies with respect to employees and vehicles assigned to this Software Agreement under this Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage verification as defined below.
A. Commercial General Liability (CGL), with policy limits not less than $1,000,000 for each occurrence covering bodily injury and property damage;
1. CGL Primary Insurance Endorsement; and
2. This CGL policy shall include an endorsement which adds the City of Santa Clara, its Council, employees, and officers as additional insureds. (1) License Agreement
B. Business Automotive Liability (BAL), with policy limits not less than $1,000,000; and C. Workers' Compensation and Employers' Liability with policy limits of California statutory limits.
All insurance certificates, endorsements, coverage verifications and other items required pursuant to this Agreement shall be mailed directly to the City's insurance compliance representative as follows:
EBIX Inc.
City of Santa Clara Electric Department
P. O. Box 100085 - S2 or 1 Ebix Way
Duluth, GA 30096 John's Creek, GA 30097
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: ctsantaclara@ebix. com
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument; and, the Parties agree that signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to bind the Parties.
IN WITNESS WHEREOF, the parties hereto, each by a duly authorized representative, have executed this License Agreement as of the Effective Date.
ZE PowerGroup Inc. City of Santa Clara dba Silicon Valley Power (1) License Agreement
(1) License Agreement
Part 2 - Schedules
Schedule A - Software License
License Fee
The following table sets forth the License Fee for the Applications licensed in this Agreement:
Additional Terms and Conditions:
*Commencing on the first Anniversary Date, the License Fee above is subject to annual escalation at a rate of 3% with each renewal as long as the Index is below 5%. Should the Index equal or exceed 5%, the escalation rate shall be equal to that of the Index. *The Software licensed under this Agreement has been bundled together and contains package discounts. Therefore, any disaggregation may not be possible or the cost after disaggregation shall be recalculated based on fees prevailing at time of disaggregation.
License Fee Payment Schedule
The License Fee shall be payable as stated below:
1. Upon the Effective Date of the Agreement, Licensee shall be invoiced to pay 100% of the License Fee ($80,000.00). (2) Schedules
Schedule B - Additional Licensing Options
Below are fees for additional licensing options listed in United States dollars. The fees stated herein, commencing on the first Anniversary Date, are subject to annual escalation of 3% if the Index is below 5% and that of the Index otherwise. For any additional options below licensed, Licensee shall be obligated to license that additional option for the remainder of the Initial Term, payable each Annual Year. The first Annual Year of licensing shall be pro rata for the remainder of the Annual Year in which the option was licensed.
Additional Applications
The table below outlines the annual License Fee for the following optional Applications not licensed as part of the Agreement:
Additional Authorized Users
The table outlines the annual License Fee for additional Authorized Users:
Additional Data Processors
The fee for each additional Data Processor is $1,000.00, which includes both access to the data and all implementation set-up. Licensor reserves the right to exclude sources of significant complexity or data volume. (2) Schedules
Schedule C - Schedule of Support Fees
1AII fees listed are in USD and, commencing on the first Anniversary Date, subject to annual escalation of 3% with each renewal if the Index is below 5% and that of the Index otherwise.
(2) Schedules
Schedule D - Training Details
The following outlines the initial training provided as part of this Agreement. Additional training, if required, shall be charged in accordance with Schedule C - Schedule of Support Fees.
Duration
4 x 2-hour live, teacher hosted, web-based training
Training Overview
• Basic ZEMA training for business end-users
Training Coverage
ZEMA Overview
• Provide background to end-users on how ZEMA is getting data from the market to them and how the Market Analyzer and Data Direct Excel applications are interdependent Market Analyzer
• Licensor shall provide training to end-users on how to:
Find and retrieve data
Create, save, and retrieve data queries
Use formulas and series options for simple/complex queries Use table formatting and graphing options
Share analysis with colleagues
Get data from ZEMA to Excel
Data Direct Excel
• Licensor shall provide training to end-users on how to:
Ensure the add-in is configured correctly
Retrieve raw reports and saved queries
Configure output settings and refresh rates
Additional Note:
1. Web-based training shall be provided over several sessions to accommodate availabilities of attendees
2. The trainer shall be available by phone or email for further consultation outside of training sessions
3. User manuals are provided within the Applications
4. Training curriculum may be customized for the Licensee's different user groups (2) Schedules
Schedule E - Support Agreement
THIS SUPPORT AGREEMENT is incorporated into and made part of the License Agreement WHEREAS Licensee and Licensor have entered into a License Agreement pursuant to which Licensee has acquired from Licensor the right to use the Software described therein; IN CONSIDERATION of the mutual covenants and undertakings contained herein, and intending to be legally bound, the parties agree as follows.
1. Support Services
1.1 Support: Licensor shall provide advice and guidance on the use of the Software, and assist with problem resolution. Support staff shall be available by telephone or help desk system on a 24-hour basis.
1.2 Updates: Licensor may from time to time provide the following "Updates" to the Software:
i. Updates to application functionality/usability
ii. Updates to data interfaces/source data to accommodate common format changes made by data source providers;
iii. Enhancements to improve performance and/or speed
iv. General enhancements, corrections, updates, releases, patches, upgrades, new versions, new features, new documentation, etc.
1.3 Processors: In addition to all other Support Services listed herein, for clarity, Licensor's standard Support Services includes support and Updates to the Data Processors' functionality and if an Update is needed to a Data Processor's code/functionality based on changes to the source site so that the Data Processor will remain up to date to continuously pull updated data from the source site.
2. Service Level Agreement
2.1 Bug: Should Licensee encounter a problem or Bug with the Software that requires help from Licensor, Licensee must provide detailed reporting to Licensor describing the circumstances surrounding the problem, effects of the problem, sample data, system and program messages, and screen, file or history print-outs where appropriate.
2.2 System Uptime: Licensor warrants that is shall meet 99% availability uptime, excluding planned outages due to system maintenance, of the Subscription Services on an annual basis.
2.3 Time Frames: Licensor shall provide a response and/or Resolution within the following time frames after the receipt of a reported Bug. The time commences once Licensor has received a reported Bug.
Licensor, in its reasonably exercised discretion, shall determine the severity of the Bug based on the information provided by and in consultation with Licensee. (2) Schedules
1A workaround may reduce the criticality level of the ticket where appropriate
2.4 Misuse or tampering: Should the Bug be demonstrated to be caused by the misuse of or tampering with the Software by Licensee or by other software, Licensor's obligation to remedy the Bug shall be limited.
(2) Schedules