Loading...
Reverse 911 License Agmt . , , f REVERSE 911 ~ INTERACTIVE COMMUNITY NOTIFICATION SYSTEM END USER LICENSE AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND SIGMA COMMUNICATIONS INC. J , . , f REVERSE 911@ END USER LICENSE AGREEMENT TillS AGREEMENT (the "Agreement") is between City of Miami Beach (the "Licensee" or "end user") and Sigma Communications, Inc., an Indiana corporation ("Sigma") having its home office at 6720 Parkdale Place, Indianapolis, Indiana 46254-4668. WHEREAS, the Licensee wishes to implement an automated telephone calling system to be used to enhance the public health and safety; and WHEREAS, Sigma is engaged in the business of selling, developing, distributing and licensing computer hardware and software for automated telephone calling systems having said public health and safety application, NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Licensee and Sigma agree as follows: SECTION A DUTIES OF SIGMA A 1.0 Grant of REVERSE 91I@ Software License 1.1 Sigma hereby grants to the Licensee and the Licensee accepts a non-transferable and non-exclusive license to use the software materials (the "REVERSE 9II@ Software") on the Equipment to provide an automated telephone calling system for distributing health, safety and other public information to individuals in accordance with the terms and conditions contained herein. Sigma shall provide the Licensee one (1) compiled master copy of the REVERSE 911 @ Software to Licensee pursuant to this Agreement. 1.2 This Agreement is a license only, and the Licensee shall have the rights of a Licensee only. The Licensee acknowledges Sigma's ownership of the REVERSE 911@ Software, and agrees that all right, title and interest in and to the REVERSE 911@ Software, except as specifically and expressly set forth in this Agreement, shall remain in and exclusively with Sigma. 1.3 The term "REVERSE 911 @ Software" as used in this Agreement does not include the source code to the REVERSE 91I@ Software (the "Source Code") and no license is provided in this Agreement for the Source Code. Source Code includes the software statements produced by Sigma that contain the MS Access TM (Microsoft Corporation) source statements and logic used to write, amend, modify, and customize the REVERSE 9Il@ Software. 1.4 Licensee's use of the REVERSE 911@ Software is subject to the non-exclusive license granted in this Agreement. A2.0 Third Party Software This Agreement may include the license of software not developed or licensed by Sigma (the "Third Party Software"). The Third Party Software is licensed to the Licensee under an agreement provided by the manufacturer(s). Licensee agrees to abide by all terms and conditions of the Third Party Software Agreement(s), including but not limited to the following: 2 , . ESRI CORPORATION SUBLICENSE AGREEMENT a. MapObjects components may not be separated from use of the base executable application. b. The licensed user shall not reverse engineer by any method, except and only to the extent such activity is expressly permitted by applicable law, copy for commercial use, transfer, or assign its rights under the license grant; and c. ESRI or its suppliers may enforce their intellectual property rights through injunctive relief as well as all other remedies available at law or equity. A 3.0 REVERSE 911@ Configuration The REVERSE 911 @ Software covered by this Agreement shall be used on the equipment provided by Sigma (the "REVERSE 911@ Configuration") or identical equipment provided by end user. Sigma is providing the REVERSE 911 @ Configuration as part of this Agreement and all items will become the property of the Licensee upon final payment to Sigma. The REVERSE 911@ Software and REVERSE 911 @ Configuration are collectively referred to herein as the "REVERSE 911 @ System." A 4.0 Calling Database 4.1 Sigma may provide and load onto Licensee's REVERSE 911@ System the initial calling database. The database (the "REVERSE 911@ Database") will be derived from certain commercial source(s) and will only be as accurate as such source( s) of the database. Use of the REVERSE 911 @ Database is restricted to use on the REVERSE 911@ Configuration. It will consist of all listed phone numbers that can be commercially acquired with addresses for both residences and businesses. The database will be provided, and installed along with longitude and latitude positions. The REVERSE 911 @ Database may be provided by a third party and is subject to any restrictions placed on it by the third party provider, if applicable. The data provided by the third party provider will remain the property of that third party. 4.2 The data included in the REVERSE 911@ Database, if provided by Sigma, includes the location (including geographic coordinates) of each telephone subscriber's address. The data concerning any geographic coordinates is confidential information of Sigma, remains the property of Sigma, and may not be used for any other purpose. 4.3 Sigma will take reasonable care to protect the confidentiality of the REVERSE 911@ Database according to the provisions of Section C, 12.0. A 5.0 Delivery Terms The REVERSE 911 @ Software and REVERSE 911 @ Configuration (if applicable) covered by this license will be prepared and delivered to the Licensee. A 6.0 REVERSE 911@ Installation Sigma will configure, test and install the REVERSE 911 @ System in accordance with the specifications listed herein. Installation for purposes of this Agreement shall be the date( s) on which the REVERSE 911 @ Configuration is installed by Sigma at the customer's site (if applicable), and/or a test call is performed using the REVERSE 911 CII Software on the REVERSE 911 @ Configuration. A 7.0 Training , .J , . One 8 (eight) hour training session, is included in this Agreement. Additional training is available under separate agreement. SECTION B DUTIES OF LICENSEE B 1.0 Purchase Price, Payment, and Other Charges 1.1 Payment is due in full upon receipt of invoice. 1.2 Licensee will pay any applicable sales tax or use tax imposed by governmental authorities on the sales of any equipment and/or the software and/or other services pursuant to this Agreement. The prices set forth in this Agreement do not include any excise, sales, use or other taxes and therefore are subject to increase in the amount of any such taxes that Sigma may be required to collect or pay for lease of the REVERSE 911 ~ Software or Third Party Software (whether at the time of delivery or some later date). B 2.0 Site Preparation Licensee will prepare the installation site to accommodate the REVERSE 911@ Configuration m accordance with the following guidelines: 2.1 The console and CPU used in the REVERSE 911 ~ System may be located at the Licensees discretion provided that the telephone company interface to the phone lines to be used is located in the same building and within 100 feet of the console. All phone lines to be connected to the REVERSE 911 ~ System will be installed at the direction and cost of the Licensee. 2.2 The Licensee agrees to install all necessary power supplies for the CPU and all peripherals. 2.3 The Licensee will be responsible for obtaining all consents necessary to connect any equipment included in the REVERSE 911 @ Configuration and/or its peripherals to telecommunication lines. Such consents shall be obtained prior to the scheduled installation date. 2.4 The Licensee represents and warrants to Sigma that: a) adequate electrical power shall be provided to the CPU and the peripherals, b) the electrical system of the Licensee is adequate to safely operate the REVERSE 911 @ Configuration and all contemplated peripherals, and meets with all applicable codes, regulations, laws, standards and guidelines. The Licensee will be responsible for providing the following environment for the REVERSE 911 ~ Configuration. REVERSE 911@ Configuration required the following operating environment: Temperature Range: 60-90oF, Humidity Range: 20-80%, Electrical Requirements: 120-125V, 15A dedicated circuit plug is NEMA WD. All other peripherals 120-125V, 15A plug is NEMA WD-l. Failure to provide such an environment may delay the installation of the items in this Agreement, and Sigma will be excused from any installation obligations under this Agreement until such an environment is provided. B 3.0 Authorized Use 3.1 The Licensee may authorize end users, defmed for purposes of this Agreement as its employees, volunteers, and officials ("Authorized End Users") to utilize the REVERSE 911~ Software subject to the following: 4 3. 1.1 Licensee shall cause each Authorized End User to read the following statement and acknowledge that he or she will abide by the terms and conditions of the statement: This REVERSE 911 @ Software and all related tapes, diskettes and manuals are copyrighted property of Sigma, and use thereof is strictly limited by United States Copyright law and the terms of a non-exclusive license Agreement (the "License Agreement") between Sigma and the end user. Unauthorized use or disclosure of such software and related tapes, diskettes or manuals constitutes infringement of Sigma's copyright and a violation of Title 17 of the United States Code and shall subject the infringing party to civil liability. Willful infringement shall also subject the infringing party to criminal liability (17 USC 5506). Your use of this program and all related tapes and documentation is limited as follows: (a) you may not modify and/or change REVERSE 911@ Software into another program without the prior written consent of Sigma, which consent may be denied for any or no reason; (b) you may not transfer any copy of REVERSE 911 @ Software and/or the right to use the same without prior written consent of Sigma, which consent may be denied for any or no reason; (c) all copies of REVERSE 911 @ Software, and its supporting documentation and the codes, data and information contained therein are, proprietary to Sigma, constitute trade secrets of Sigma, and are the proprietary property of Sigma, and must be returned to Sigma upon termination of the license Agreement; (d) you may not use, copy, modify, reverse engineer, decompile, or transfer this program or any copy, modification, or merged portion, in whole or in part, except as expressly provided in the License Agreement; ( e) if you transfer possession of any copy, modification or merged portion of REVERSE 911 @ Software to another party, your right to use it shall automatically be terminated. 3.1.2 The Licensee may make one (1) copy of the REVERSE 911 ~ Software to be used solely for backup and archival purposes. Any other copying of the software is strictly prohibited and any backup copies are subject to all the terms of this Agreement. 3.1.3 The Licensee acknowledges that the REVERSE 911 ~ Software and its supporting documentation is proprietary information of Sigma and that it constitutes trade secrets of Sigma, and the Licensee may not use, copy, modify, or transfer the software or any copy, or modification thereof, in whole or in part, except as may otherwise be expressly provided for in this Agreement. 3.1.4 The non-exclusive license granted herein will automatically terminate upon the breach of any provision contained in Section B, 3.0. B 4.0 Unauthorized Use The Licensee shall not permit any person who is not an authorized end-user of the Licensee to access any of the REVERSE 911 @ Software or any other compiled software licensed hereunder. The Licensee will not allow the REVERSE 911 ~ Software to be used in any manner that is a violation of State or Federal law, in particular but not limited to, laws restricting the use of Automated Calling. B 5.0 Copyright The Licensee shall include the appropriate copyright notice (e.g., @ 2001, Sigma Communications, Inc.) on each display or other copy of the REVERSE 911 ~ Software and each copy of documentation used by its authorized end users. All documentation, software, and related materials provided by Sigma will contain the appropriate copyright notice. Those copyright notices shall not be removed or diminished by the Licensee. B 6.0 No Assignment and/or Sublicense 5 The Licensee may not sublicense, assign or transfer this Agreement or the non-exclusive license granted or any portion thereof except as expressly provided in Section C 16 below. B 7.0 Unauthorized Acts The Licensee agrees to notify Sigma immediately should it become aware of the unauthorized possession or use of the REVERSE 911 @ Software or any other item supplied under this Agreement or other information made available to the Licensee under this Agreement, by any person or entity not authorized by this Agreement to have such possession or use. The Licensee agrees to promptly furnish full details of such possession or use to Sigma, and will cooperate with Sigma (at Sigma's sole expense, provided the Licensee is not at fault) in any litigation against third parties deemed necessary by Sigma to protect Sigma's proprietary rights. SECTION C GENERAL PROVISIONS C 1.0 Inspection To enable Sigma to take such steps as may be reasonable to protect its proprietary rights, the Licensee shall permit representatives of Sigma to inspect during reasonable hours any location where the REVERSE 9ll@ Software and/or its supporting documentation is being used by the Licensee and authorized end users. C 2.0 Maintenance During the Warranty Period, as defmed in Section C7.0, Sigma will provide service to the Licensee pursuant to the terms of the Warranty provided in Section C7.0. Additionally, Sigma will provide during the Warranty Period 800 phone support during normal business hours of 8:30 a.m. to 5:00 p.m. EST Mondays through Fridays (Excluding holidays). Emergency after hours support is available for a charge of 1.5 times current hourly rate. After the Warranty Period has expired, additional services and support are available under separate Agreement. C 3.0 Acceptance 3.1 The Licensee shall have a period ofthirty (30) days (the "Acceptance Period") after the Invoice Date to test the REVERSE 911 @ Software before acceptance. The Licensee is responsible for testing the REVERSE 911 @ Software during the Acceptance Period. 3.2 The Licensee will be deemed to have accepted the REVERSE 911 @ Software unless the Licensee notifies Sigma in writing prior to the expiration of the Acceptance Period of all material defects and failures. Sigma shall have three (3) weeks from receipt of such notice (the "Cure Period") to remedy such defects or failures. Within such Cure Period, Sigma shall remedy such defects or failures and notify the Licensee that such defects have been remedied. In the event that Sigma does not notify the Licensee within the Cure Period that the material defects and/or failures have been remedied, the Licensee shall have the right to terminate this Agreement at any time within two (2) weeks after the expiration of such Cure Period. However, if Sigma does notify the Licensee within the Cure Period that the material defects and/or failures have been remedied, the Licensee shall have three (3) weeks following Sigma's notification (the "Second Acceptance Period") to confirm that all the defects and failures have been remedied. Unless the Licensee notifies Sigma in writing that there are still material defects or failures during the Second Acceptance Period, it shall be deemed that the Licensee has accepted the REVERSE 9l1@Software. Conversely, in the event that the Licensee notifies Sigma in writing during the Second Acceptance Period that there are still material defects and/or failures, the Licensee may at the end of the Second Acceptance Period, terminate this Agreement. In the event of termination, under this Section C, 3.0, the Licensee shall return the 6 REVERSE 911@ Software to Sigma, Sigma shall promptly reimburse the Licensee for any portions of the purchase price therefore paid by the Licensee, and neither party shall have any further obligation to the other. 3.3 Licensee is solely responsible for testing the REVERSE 911@ Software as set forth herein and reporting any failure revealed by these tests or discovered during normal use. C 7.0 Limited Warranty 7.1 IF THE REVERSE 911 ~ SYSTEM IS USED IN EMERGENCY SITUATIONS, THEN THE REVERSE 911@ SYSTEM IS INTENDED TO ONLY INCREASE THE NOTICE WHICH WILL BE GWEN. THERE IS AND CAN NOT BE ANY GUARANTEE THAT ALL PERSONS INTENDED TO BE CONTACTED WILL BE CONTACTED. SIGMA ACCEPTS NO RESPONSffiILITY FOR ANY FAILURE OF THE REVERSE 911 SYSTEM TO CONTACT ANY PERSON OR PERSONS AND IS NOT RESPONSffiLE FOR ANY DAMAGE OR INJURY WHICH RESULTS FROM ANY FAILURE TO CONTACT ANYONE. 7,2 SIGMA WILL REPAIR THE REVERSE 911@ SYSTEM TO CORRECT ANY DEFECTS IN THE REVERSE 911@ SYSTEM AS NECESSARY FOR A PERIOD OF 365 DAYS FROM THE DATE OF INSTALLATION. IT IS THE LICENSEE'S RESPONSffiILITY TO TEST THE REVERSE 911~ SYSTEM AND MAKE CLAIM WITH RESPECT TO THE DEFECT DURING THE WARRANTY PERIOD FOR THE DEFECT TO BE FIXED FREE OF CHARGE BY SIGMA. ON DEFECfS FOUND AFfER THE WARRANTY PERIOD EXPIRES, SIGMA WILL REPAIR ON A TIME AND MATERIALS BASIS OR UNDER THE TERMS A SEPARATE MAINTENANCE AGREEMENT. NOTWITHSTANDING THE FOREGOING, IF SIGMA DOES NOT PROVIDE THE EQUIPMENT, SIGMA SHALL NOT BE RESPONSffiLE TO CORRECT ANY DEFECTS IN THE REVERSE 911~ SYSTEM RESULTING FROM DEFECTS IN THE EQUIPMENT INCLUDED IN THE REVERSE 911~ CONFIGURATION. LICENSEE'S SOLE WARRANTY WITH RESPECT TO SUCH EQUIPMENT SHALL BE THE WARRANTY PROVIDED FROM THE MANUFACTURER. 7.3 EXCEPT FOR THE ABOVE WARRANTY, SIGMA PROVIDES NO OTHER WARRANTY OF ANY KIND; EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SIGMA'S WARRANTY OBLIGATION HEREIN IS STRICTLY LIMITED TO THE REVERSE 911 ~ SYSTEMS AS DELIVERED TO THE LICENSEE. ANY MODIFICATION OR CHANGE MADE TO THE REVERSE 911@ SYSTEM BY ANYONE OTHER THAN SIGMA SHALL AUTOMATICALLY CAUSE THIS WARRANTY TO BECOME NULL AND VOID FOR ALL PURPOSES AND SIGMA SHALL HAVE NO FURTHER W ARRANTY OBLIGATIONS HEREUNDER. 7.4 WARRANTIES (IF ANY) FOR ANY THIRD P ARTY SOFTWARE INCLUDED ALONG wrrn THE REVERSE 911 @ SOFTWARE ARE PROVIDED EXCLUSWEL Y BY THE MANUFACTURER OF THE THIRD PARTY SOFTWARE. SIGMA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE REGARDING MERCHANTABILITY, FTINESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE FOR THE THIRD PARTY SOFTWARE. C 8.0 Limitation on Liability 8.1 SIGMA SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER RESULTING FROM THE LICENSEE'S FAILURE TO TIMELY SUPPLY SIGMA WITH NECESSARY DATA, INFORMATION OR SPECIFICATIONS OR ANY CHANGES IN SUCH DATA, INFORMATION OR SPECIFICATIONS. 8.2 SIGMA SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE REVERSE 911 <!il SYSTEM, EVEN IF SIGMA HAS BEEN ADVISED OF THE POSSffiILITY OF SUCH DAMAGES. SIGMA WILL NOT BE RESPONSffiLE FOR ANY PERSONAL INJURY, DEATH OR DAMAGE DUE TO THE USE, MISUSE OR FAILURE OF THE REVERSE 9110 SYSTEM. 8.3 SIGMA'S SOLE OBLIGATION FOR ANY DEFECTS OR FAILURE OF THE REVERSE 9110 SYSTEM IS TO FIX THE REVERSE 9110 SYSTEM AS PROVIDED IN THIS AGREEMENT, DURING THE WARRANTY PERIOD. IN NO EVENT SHALL SIGMA'S TOTAL LIABLITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY LICENSEE FOR THE REVERSE 9110 SYSTEM. C 9.0 Excused Performance With the exception of Licensee's obligation concerning the Payment Terms, each party to this Agreement will be excused for any delay in its performance resulting from causes beyond its control and not attributable to its fault or negligence, including, but not limited to, delays in the performance by the other party, due to acts of God or of the public enemy, acts of terrorism, war, riot, civil disorder, embargo, fire, flood or strikes. C 10.0 Termination of Agreement This Agreement shall continue in full force and effect indefinitely from the date of execution, unless earlier terminated by written Agreement of the parties. However, if either party is in default in the performance of its obligation hereunder, and such default shall have continued for thirty (30) days after written notice thereof shall have been given to such defaulting party by the other party, such other party shall have the right to terminate this Agreement by giving seven (7) additional days written notice to the defaulting party; provided, however, that in the event the Licensee is the defaulting party, the total amount set forth in Section B, 1.0 not yet paid shall immediately become due and payable so long as Sigma has fulfilled its obligation of delivery as set forth in Section A, 5.0. In the event Sigma is the defaulting party, and has not complied with the Delivery Schedule of Section A, 5.0, the Licensee shall have no further obligation for payments and shall, upon request, be entitled to reimbursement of any monies paid; and, having been so reimbursed, be obligated to return any and all copies of REVERSE 9110 Software, REVERSE 9110 Database and any equipment and supplies delivered to it or its representatives by or through Sigma. The Licensee agrees upon termination for any reason whatsoever to return all copies and modifications of the REVERSE 9110 Software in any form, whether in the possession of the Licensee and/or its authorized end users, or, in the alternative, to certify that all such modifications and copies have been destroyed. ClI.O Breach and Waiver of Agreement 11.1 In the event of a breach or a threatened breach of this Agreement by either party, the other party shall be entitled to an injunction restraining the party that is about to commit, or who has committed, the breach, without showing or proving any actual damage sustained or about to be sustained. 11.2 No waiver, change, amendment or disclosure of any term or condition hereof or consent hereWlder, shall be binding upon a party hereto unless made in writing and signed by the party to be bound. A waiver of any 8 . . breach of a provision of this Agreement shall not be deemed to be a waiver of any subsequent breach of said provision nor a waiver of any breach of any other provisions. C 12.0 Confidentiality 12.1 Both parties agree to keep confidential during the term of this Agreement and thereafter any proprietary data or information obtained by it concerning the other party hereto; provided, however, there shall be no restriction concerning confidentiality or disclosure with respect to: (i) information or data required to be disclosed by government requirements (to the extent of the disclosure required); (ii) information or data which at the time of disclosure is already lawfully in the possession of the receiving party; (iii) information or data which at the time of disclosure was lawfully or properly in the public domain; (iv) information or data which is the subject of independent development by the party receiving the information; or (v) information or data which is rightfully received from a third party and was in rightful possession of the third party. C 13,0 Entire Agreement This Agreement supersedes any and all other Agreements, oral or written, between the parties hereto and is the complete Agreement between the parties with respect to the subject matter hereof. No other Agreements, statement, promise or proposal relating to the subject matter of this Agreement which is not contained herein, or in documents expressly incorporated into this Agreement by reference herein, shall be valid or binding. In the event of any inconsistencies between this Agreement and documents expressly incorporated into this Agreement, the terms of this Agreement shall prevail. C 14.0 Amendments This Agreement may be amended by the mutual Agreement of the parties hereto, expressed in writing, to be attached to and incorporated into this Agreement. C 15.0 Invalid Provisions In the event that any provision contained in this Agreement shall for any reason be held invalid or unenforceable, such invalidity or non-enforceability shall not invalidate this Agreement in its entirety, it being the intent of the parties that a court of competent jurisdiction shall reform the provision to reproduce its nearest enforceable economic equivalent. C 16.0 Assignment Neither this Agreement nor any obligation or duties hereunder shall be assigned by either party hereto, except as expressly provided herein, without the prior written consent of the other party hereto. Notwithstanding the immediately foregoing, either party may assign this Agreement to any licensee with which it is affiliated or to a successor by purchase of substantially all of the assets or successor by merger or consolidation, provided, however that the assigning party shall continue to be responsible for its obligations hereunder unless written consent to the contrary is given by the other party hereto. C 17.0 Successors This Agreement shall inure to and bind the parties hereto and their respective heirs, devisees, legatees, successors, assigns, and legal representatives. .9 C 18.0 Notice Any written notices required of either party by any provision of this Agreement shall be deemed effective on the date received by the other party by any reasonable written means at the respective home offices of each as set forth herein above. For the purposes of this Agreement, written correspondence received by mail, courier, facsimile or electronic transmission shall all be considered reasonable written means. C 19.0 Governing Law This Agreement, and any disputes arising out of or in connection with this Agreement, shall be governed by ~ and construed in accordance with the laws of the State of Florida, USA, excluding its rules governing ~ conflicts oflaws. In any action relating to the subject matter of this Agreement or the breach thereof, the parties hereby stipulate to exclusive jurisdiction of a court of competent jurisdiction located in ~€te of V- Florida, U.S.A., expressly waive any objection to jurisdiction or venue, and shall not seek alterna .ve ,,,,v~ ) jurisdiction or venue. ~~ ~ SIGMA COMMUNICATIONS, INe. BEACH, FLORIDA (5 ,~~~ Signature- /}/krr IJ. tdn~&/1k~~ Printed Name c/ C#O Title g-Zc(-CJ? Ovl~ Mayor &0 b~ 5--, :2-f)tJ.3 ate Date INDY 1l70042vl APPROVED /IS TO FORM & LANGUAGE & FOR EXECUnON 10