NC4 Public Sector LLC Software License Agreement
NC4 PUBLIC SECTOR LLC
SOFTWARE LICENSE, MAINTENANCE, AND SERVICES AGREEMENT
This Software License, Maintenance, and Services Agreement ("Agreement") is entered into as of the
Effective Date, by and between NC4 Public Sector LLC, a Delaware limited liability company, with an office
located at 28202 Cabot Road, Suite 300, Laguna Niguel, CA 92677 USA ("NC4"), and
Licensee Name: Miami Beach Emergency Management Office ("Licensee")
Address: 2300 Pinetree Drive
Miami Beach, FL 33104
RECITALS
A. NC4 is the owner of certain computer software programs, including the E Team and R6 Lite
emergency management software applications, and also provides services related to emergency
management and other functions related to such software applications.
H. NC4 desires to provide, and Licensee desires to obtain, a license to use the Software and/or NC4
Services described on the attached NC4 Order/Quote Form on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, based on the foregoing premises and the promises set forth below, the parties agree
as follows:
AGREEMENT
1. Definitions.
1.1 "ASP" means the Optional Web Hosting Services as defined in section 4.
1.2 "Confidential Information" will have the meaning set forth in section 8.1.
1.3 "Effective Date" shall be the date of the last signature, as set forth at the signature page of this Agreement.
1.4 "Fees" means, collectively, the license fees for the Software, the Maintenance Fee and any other fees
payable by Licensee to NC4 pursuant to this Agreement.
1.5 "Maintenance Fee" means the fees, set forth in the Order Form, payable for the Support.
1.6 "Order Form" means the NC4 Order/Quote Form attached to this Agreement as Attachment A, and
incorporated herein by this reference.
1.7 "Redundancy" means the Optional Web Hosting Services as described in section 4.
1.8 "Services" means work performed by NC4 for Licensee as set forth in the Order Form or pursuant to a
Statement of Work, or an alternative ordering document acceptable to NC4, agreed to by the parties in writing. The
schedule for Services will be agreed upon by the parties, subject to the availability of NC4 personnel.
l .9 "Software" means the NC4 software programs and/or applications described in the Order Form in object
code form only.
NC4 Public Scctor LLC
1
Miami $each (06.08.07)
(B. Jackson)
I.10 "Specifications" means the funetiotsal specifications described in the user manuals or other specifecation
documents delivered by NC4 to Licensee.
1,11 "Statement of Work" means the document provided to Licensee by NC4, and signed by both parties, that
specifies the Services to be provided by NC4 and the applicable fees for the Services. Each Statement of Work shall
be governed by this Agreement and shall reference the Effective Date. In the event that NC4 does not provide
Licensee with a separate Statement of Work, the Order Form shall operate as the Statement of Work.
1.12 "Support" shall have the meaning set forth in Section 3.1.
1.13 "User" shall mean any employee, agent or representative of Licensee authorized to use the Software, or any
emergency staff or agency, including any police, fire, paramedic or other emergency personnel or entity, necessary
to use the Software for emergency management purposes.
2. Software License.
2.1 License Grant. Subject to the terms and conditions ofthis Agreement, NC4 hereby grants to Licensee a
non-exclusive, nontransferable, non-assignable license, without the right to grant sublicenses, to use the object code
of the Software application{s} listed in the Order Form attached hereto as Exhibit "A". The license granted in this
Section 2.1 shall also include modifications to the Software that NC4 may make pursuant to Services that Licensee
purchases from NC4.
Until such time that Licensee has fully paid all license fees as specified in the Order Form and such other
fees as described in section 5 of this Agreement and specified in the Order Form, the term of the license shall be
temporary and subject to termination by NC4 in accordance with section 12 of this Agreement.
2.2 Use Restrictions. Licensee shall not, and shall not permit others to:
(a) install the Software on any server or at any site other than those designated by Licensee to NC4;
(b) exceed the number of permitted Users, or install the Software on more servers/cpu's, than set forth
in the Order Form;
(c} use the Software in a service bureau ortime-sharing arrangement;
(d) distribute, rent, lease, assign or transfer the Software to any third party, without NC4's prior
written consent; or
(e) modify, customize, reverse engineer, reverse assemble or reverse compile the Software or any part
thereof.
2.3 Copies. Licensee shall not copy the Software. Notwithstanding the foregoing, Licensee may make a single
copy of the Software only as needed for reasonable ordinary backup or disaster recovery procedures. All copies
shall be subject to the terms and conditions ofthis Agreement and applicable copyright law, and all proprietary
rights notices contained on the original Software shall be reproduced on or in any copies.
2.4 Ownership. Licensee acknowledges and agrees that it is acquiring only the right to use the Software
licensed under this Agreement. NC4 shall retain ownership of the Software, all modifications to ttte Software
(including derivative works based on the Software}, and changes to the Software tnade by NC4 pursuant to Section
5, and all of the intellectual property rights in and to all of the foregoing. In no event shall title to all or any part of
the Software pass to Licensee. Licensee agrees that, as between the parties, the Software and all copies (in whole or
part) shall remain the exclusive property of NC4 and may not be copied or used except as expressly authorized by
this Agreement. Any rights not expressly granted to the Licensee under this Agreement are retained by NC4.
NC4 Public Sector LLC 2
Miami Beach (Ob.O$.07}
(B. Jackson)
2.5 Third-Party Software. Licensee shall not use any third-party software embedded in the Software on a
stand-alone basis or in any way other than as embedded tit the Software.
3. Maintenance, S
3. l Maintenance. So long as the Maintenance and Support Fees are kept current, NC4 will provide Licensee
with upgrades to the Software by Licensee request, within 90 days of the date of the request and in accordance with
the parties' schedules and availability. NC4 will perform such upgrades remotely. NC4 will provide downloads
and/or CD's with instructions for performing any onsite upgrade tasks that may be required. If NC4 is requested to
trove} onsite to perform an upgrade, NC4's hourly professional services rate, plus travel expenses at Licensee
approved rates, will apply on a time and material basis.
3.2 Customer Support. 50 long as the Maintenance and Support Fees are kept current, NC4 shall provide
Licensee with 24 x 7 technical support for the E Team application. Telephone support shall be available to not more
than three (3) named callers. Support shall not include installation of upgrades ar modification or customization of
upgrades, problems not attributable to the Software, or problems arising from Licensee's actions to cause an error in
the Software, which shall be billed at NC4's then-current professional services rates, plus any travel expenses
incurred. On-site installation of upgrades or modification or customization of upgrades is available by special
arrangement, and will be billed at NC4's then-current rates, plus travel expenses. Licensee agrees to provide remote
access to NC4 as needed to enable NC4 to provide telephone support services. To the extent practical, NC4 shall
provide Licensee 24 hours notice if remote access is required. If Licensee requests on site support services,
Licensee agrees to grant NC4 access to its facilities and personnel to provide such support services, and reimburse
NC4 for travel and related expenses.
3.3 Maintenance Fees. Licensee shall pay NC4 for the initial annual Maintenance Fee (or prorated amount
thereof), in accordance with section 7, upon delivery of the Software. Thereafter, Licensee shall pay for the annual
Maintenance Fee during the normal billing period nearest the anniversary of the delivery date. NC4 may, in its sole
discretion, discontinue Support if Licensee fails to promptly pay the Maintenance Fee. NC4 reserves the right to
change the Maintenance Fee at the end of the initial term or then-current renewal term, upon thirty (30) days prior
notice to Licensee (which may be sent by email).
3.4 Domino Annual Maintenance and Support Fees and Map Updates Not Included. If Licensee procures the
Lotus Domino version of the E Team Software, renewals of Lotus Domino maintenance and support are not
included in NC4's quote for maintenance and support. Licensee will be responsible for all renewals of Domino
maintenance and support necessary to receive Lotus Domino updates, etc., only if running the Lotus Domino
platform of the E Team Software. Similarly, periodic updates for map data provided by NC4 are not included in
NC4's annual maintenance and support fee. Additional fees apply to receive periodic map updates.
4. Web Hosting Services. If NC4's web hosted backup services are procured and listed in the Order Form,
the terms of this Section 4 shall apply.
4.1 Web Hosting Services. Subject to Licensee's prompt payment of the annual Web Hosting Services Fee in
Section 4.2, NC4 will provide Licensee web-hosted application services ("Web Hosted Services"). Except as
specifically set forth in Section 4.2, below, Licensee will use the Web Hosted Services for backup purposes only.
For purposes of this section, "backup purposes" means reasonable and ordinary backup or archival copy of the data
or primary use for a limited period if the Software is nonfunctional or for disaster recovery purposes. If NC4
provides such Web Hosted Services, and subject to the terms and conditions in this Agreement, NC4 grants to
Licensee a limited, nontransferable, nonexclusive license for the term of this Agreement to access over the Internet
and use the Web Hosted Services solely as a to backup Licensee's use of the Software in the normal course of
business.
4.2 Access to NC4's Web Hc~sled Services for Production Purposes. in addition to using the Web Hosted
Services for backup purposes, Licensee is hereby authorized to direct its external Users to the Web Hosted Services
to access and use the Web Hosted Service for production use when such Users are working remotely and access to
the Software is necessary.
NC4 Public Scctor I..I.C 3
Miami 13each (Ob.08.07)
(d. Jackson)
4.3 Web Hosted Services Fee. If NCaprovides Licensee Web Hosted Services for backup purposes, Licensee
will pay NC4 for the initial Web Hosted Services Fee (or prorated amount thereof), in accordance with Section 7,
upon the signing ofthis Agreement. Thereafter, Licensee shall pay for the annual Web Hosting Services Fee during
its normal billing period nearest the anniversary of the Installation Date. NC4 reserves the right to change the fees or
applicable charges at the end of the initial term or then-current renewal term, upon thirty (30) days prior notice to
Licensee (which may be sent by email).
4.4 Restrictions on Use. Licensee shall not, directly or indirectly, (i) license, sell, lease or otherwise transfer the
Web Hosted Services, (ii) alter, modify, translate or create derivative works based on the Software, or permit a third
party to do any of the foregoing; (iii) process or permit to be processed the data of any third party; (iv) use or permit
the use of the Web Hosted Services in the operation of a service bureau, timesharing arrangement or otherwise for
the benefit of a third party; or (v) disassemble, decompile, reverse engineer or otherwise attempt to derive source
code or other trade secrets from the Web Hosted Services.
4.5 Use of Data. Licensee shall be solely responsible for collecting, inputting and updating all Data related to
Licensee's use of the Web Hosted Services. Licensee shall ensure that the Data does not include anything that
actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual
property right of any third party; contains anything that is obscene, defamatory, harassing, offensive, malicious or
which constitutes child pornography; or otherwise violates any other right of any third party.
4.6 Termination. Either parry may terminate the Web Hosted Services in accordance with Section 12.2. Upon
termination, NC4 shall cease all Web Hosted Services, and Licensee shall pay NC4 for Web Hosted Services
performed prior to the date of termination.
5. Additional Services. [f Services requiring a Statement of Work are requested/procured, the terms ofthis
Section 5 shall apply.
5.1 Statements of Work. ay entering into a Statement of Work with NC4, Licensee may retain NC4 to modify,
customize or enhance the Software or to provide implementation, training, and other services relating to the
Software. Licensee shall complete an order form in substantially the same form as the Order Form, or an alternative
ordering document acceptable to NC4, requesting the Services before commencement of Services under a mutually
agreed upon Statement of Work.
5.2 Payment for Services. Unless otherwise expressly specified in the applicable Statement of Work, NC4 shall
provide the Services to Licensee on a "time and materials basis" at rates set by NC4 at the time the Services are
provided. For the purposes ofthis Agreement, "time and materials basis" means that Licensee shall pay NC4 for
time spent performing the Services, and shall reimburse NC4 for expenses as set forth in Section 5.3. Any monetary
amount stated in the applicable Statement of Work for Services shall be an estimate only for Licensee's budgeting
and NC4's resources scheduling purposes and not a binding quote by NC4. Licensee shall additionally reimburse
NC4 for costs and expenses incurred as a result of Licensee's failure to cooperate as required in Section 5.7.
5.3 Effect of Termination During Services. Upon termination ofthis Agreement, NC4 shall cease all Services,
the Statement(s) of Work for all Services shall terminate, and Licensee shall pay NC4 for Services performed prior
to the date of termination.
5.4 Termination of Statement of Work. Either party may terminate only the Statement of Work if the other
party is in breach of the terms contained in the Statement of Work and has not cured the breach within thirty (30)
days of written notice specifying the breach. Consent to extend the cure period for breaches other than for
nonpayment of fees shall not be unreasonably withheld, so long as the breaching party has commenced cure during
the thirty (30) day notice period and pursues cure of the breach in good faith.
5.5 Chan a Requests. Licensee may request changes to a Statement of Work including but not limited to
requests for changes in project plans, scope, specifications, schedule, designs, or requirements. Any such request
must be in writing. NC4 shall not be obligated to perform tasks described in Licensee's request unless and until both
parties agree in writing to the proposed changes.
NC4 Yublic 5cctor I,LC
Miami Beach (06.08.07)
(B. Jackson}
6. Cooperation; Future Orders.
6. I Cooperation. Licensee acknowledges and agrees that its cooperation with NG4 is essential to performance
of any Services by NC4. Among other things, Licensee shall cooperate with NC4 by providing timely access to
office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data
from its officers, agents, and employees, and suitable configured computer products. NC4 shall not be liable for any
deficiency in performing Services resulting from Licensee's failure to do so.
6.2 Future Orders. NC4 may offer additional software products and services from time to time. If Licensee
procures such additional software or services from NC4, such products and services shall be subject to the terms and
conditions of this Agreement, unless NC4 specifies otherwise.
Fees and Pa,Lment Terms.
7.1 Pavment Terms. Licensee shall pay to NC4 the Fees set forth in the Order Form. Licensee agrees to pay
all NC4 invoices within thirty (30) days of the NC4 invoice date. NC4 may apply any Fee paid by Licensee to any
other unpaid license fees, or other Fees or expenses if such Fees and expenses remain unpaid after thirty (30) days of
the invoice date. Unless otherwise instructed by Licensee in writing, NC4 shall send all invoices to the address
specified on the caption ofthis Agreement.
7.2 Expenses, Provided Licensee has approved same (which approval shall not be unreasonably withheld prior
to NC4's incurring same), Licensee shall reimburse NC4 for reasonable travel, administrative, equiptent, and out-
of-pocket expenses incurred while performing Services hereunder. Such expenses are not included in any estimate
in a Statement of Work or Order Form unless expressly itemized.
7.3 Interest. NC4 may charge a service Fee on late payments of the lesser of 2% per month or the highest rate
allowable under Florida law.
7.4 Taxes. All fees and charges set forth in the Order Form or in any Statement of Work are exclusive of any
sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the
Software. Any such taxes (except taxes based on NC4's income), duties, or fees shall be paid directly by Licensee
or reimbursed by Licensee to NC4.
8. Confidentiality and Publici
8.1 Confidentiality Obligation. "Confidential Information" means all written or oral information designated as
confidential at the time of disclosure that is disclosed in connection with this Agreement including, without
limitation, computer programs, software, formulas, data, inventions, techniques, strategies, trade secrets, plans for
products or services, marketing plans, financial documents or data, processes and designs, and the terms, but not the
existence of, this Agreement. Written Confidential Information must be mazked as "confidential" or "proprietary."
Oral Confidential Information must be designated as confidential at the time of disclosure and reduced to a written
summary and marked "confidential" or "proprietary" within 10 days of the oral disclosure. Each party shall use the
Confidential Information of the other party solely in the performance of its obligations under this Agreement, treat
as confidential all Confidential Information of the other party, and not disclose such Confidential Information,
except to authorized employees ofthe receiving party or its affiliates, its legal counsel and accountants {provided
that the receiving party contractually obligates them to a duty of confidentiality no less restrictive that the duty
imposed by this Section 8. l and that the receiving party shall remain jointly and severally liable for any breach of
confidentiality by such parties). Without limiting the foregoing, each of the parties shall treat the other party's
Confidential Information with at least the same degree of care it uses to prevent the disclosure of its own
Confidential Information, but in no event less than reasonable care. Each party shall promptly notify the other party
of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information. Upon
expiration or termination of this Agreement, each party shall return all tangible copies of any Confidential
]nformation received from the other party.
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Miami Beach (06.08.0'))
{I3, Jackson}
8.2 Exclusions. Confidential information shall not include information that the recipient can prove: (i) was
generally available to the public at the time the recipient received the information from the disclosing party, (ii) was
known to the recipient, without restriction, at the time of disclosure by the disclosing party, (iii) is disclosed with the
prior written approval of the disclosing party, (iv) was independently developed by the recipient without any use of
the Confidential Information, (v) becomes known to the recipient, without restriction, from a source other than the
disclosing party without a duty of confidentiality to the disclosing party, or (vi) is disclosed in response to a request
properly made under Florida Public Records Law (where the information and/or document(s) requested is not
otherwise statutorily exempt from disclosure under said Florida law), or an order or requirement of a court,
administrative agency, or other governmental body, a subpoena, or by the rules of a securities market or exchange
on which the disclosing party's securities are traded; provided, however, that (a} the receiving party must provide
prompt advance notice of the proposed disclosure to the disclosing party, and {b) any Confidential Information so
disclosed shall otherwise remain subject to the provisions of this Section 8. The burden of proof in establishing that
any Confidential information is subject to any ofthe foregoing exceptions shall be borne by the receiving party.
8.3 Trademark License. NC4 grants Customer a limited, nonexclusive, worldwide right and license during the
Term to use those name(s), logos) and trademarks of NC4, solely to publicize the existence of the business
relationship established by this Agreement. Customer grants NC4 a limited, nonexclusive, worldwide right and
license during the Term to use the name{s), logo(s) and trademarks of Customer solely to publicize the existence of
the business relationship established by this Agreement. Notwithstanding the foregoing, neither party may publish or
distribute any material bearing the name, logo{s) or trademark(s) of that party without prior written consent. Each
party's use of the other's name, logo(s) and trademarks must comply with the other party's policies in effect at the
time of use, including, without limitation, trademark use, quality control and cooperative advertising policies, if any.
Each party will include appropriate trademark notices in all written and electronic materials bearing the other party's
marks.
9. Limited Warranty
9.1 Software Warranties
{a) NC4 warrants for a term of ninety (90) days from the date of installation of the Software (which
may be performed via download) ("Software Warranty Period") that the Software will materially conform to the
functional specifications described in NC4's published Documentation ("Specifications"). Licensee must report any
defects in the Software to Reseiler and NC4 in writing within the Software Warranty Period for that particular order
or Statement of Work in order to receive the warranty remedy set forth in this Section 9.1.
(b) NC4's sole ob]igation under this Software warranty shall be, at NC4's discretion, to provide a
work around or correction for, or replace, any defective Software so as to enable the Software to materially conform
to the Specifications. If NC4 is unable to provide a work around or correction for, or replace, the Software so that it
materially conforms to the Specifications, then NC4 will, upon Reselter's written request for cancellation of the
order, refund the license fee that was paid by Reseiler to NC4 for the order. Licensee agrees to look only to Reseiler
for refund of any fees to Licensee.
(c) NC4 shall have no obligation under this warranty if the Software has been (i) used other than in
accordance with this Agreement or the Specifications and Documentation; (ii) modified by a party other than NC4,
or (iii) combined with hardware or software not identified in the Specifications as being compatible with the
Software,
(d) THE REMEDIES SET FORTH IN THiS SECTION 9.l ARE THE SOLE AND EXCLUSIVE
REMEDIES FOR BREACH OF THE WARRANTIES GIVEN BY NC4 UNDER THIS SECTION 9.1.
9.2 Services Warranties.
(a) NC4 warrants to Licensee that the Services for a particular Statement of Work will be performed
in manner consistent with generally accepted industry practices. Licensee must report any deficiencies in the
~~~~+ ruonc ~ec[or [.Lt,
Miami Beach (06.08.07)
(B, Jackson)
Services to NC4 in writing within ninety (~0) days of completion of the Services for that particular Statement of
Work in order to receive the warranty remedy set forth in this Section 9.2.
(b) If the Services are not performed in a manner consistent with generally accepted industry
practices, then NC4's sole obligation under this service warranty shall be to re-perform the defective Services. For
any breach of the Services Warranty set forth in this Section 9.2, Licensee's exclusive remedy, and NC4's entire
liability, shall be the re-performance of the Services, and if NC4 fails to re-perform the Services as warranted,
Reseller shall be entitled to a refund of the Fees paid by Reseller to NC4 for the deficient Services. Licensee agrees
to look only to Reseller for refund of any fees to Licensee.
9.3 Disclaimer ofother Warranties. NC4 AND tTS SUPPLIERS AND SUBCONTRACTORS MAKE NO
WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE OR SERVICES
(OTHER THAN THOSE SET FORTH IN THIS SECTION 9) OR ANY DERIVATIVES THEREOF AND
DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEM
INTEGRATION AND ENJOYMENT.
] 0. Indemnification
10.1 Defense of Infringement Suits. NC4 shall indemnify, defend and hold harmless Licensee against
any and all claims that the Software infringes any U.S. copyrights of any third party that are issued as of the
Effective Date. NC4 shall pay any and all costs, damages, and expenses, including, without limitation, reasonable
attorneys' fees and costs awarded against or otherwise incurred by the other party in connection with or arising from
any such claim, suit, action, or proceeding. Licensee shall be entitled to indemnification only if (a) within 15 days of
its discovery of a potential claim it notifies NC4 in writing of such claim in sufficient detail to enable the NC4 to
evaluate the claim, (b) Licensee cooperates in all reasonable respects, at NC4's cost and expense, with the
investigation, trial and defense of such claim and any appeal arising therefrom, and {c) NC4 has sole control of the
defense and settlement of such claim. Licensee shall not compromise any claim or enter into any settlement without
the written consent of NC4.
10.3 Infringement Alternatives. If the Software is, or in NC4's opinion is likely to become, the subject
of a claim, suitor proceeding for infringement, NC4 may (a) procure, at no cost to Licensee, the right to continue
use of the Software, {b) replace or modify the Software, at no cost to Licensee, with alternative software that has
essentially the same functionality, or {c) if the right to continue use cannot be reasonably procured for Licensee or
cannot be replaced or modified to make it non-infringing, NC4 may terminate the License for such Software,
remove the Software and grant Licensee a refund credit thereon based on the time remaining in the then-current
license term. NC4 shall have no liability with respect to infringement of any proprietary right, except as set forth in
this Section I0.3 and Section 10.2.
Limitation of Liabili
IN NO EVENT SHALL NC4 OR ITS LICENSORS OR SUBCONTRACTORS OR ANY OF TFIEIR
SUBSIDIARIES BE LIABLE FOR LOSS OF DATA OR SYSTEM USE, DOWNTIME, GOODWILL, PROFITS
OR OTHER BUSINESS LOSS, LOSS OR INACCURACY OF DATA, OR ANY OTHER INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES !N CONNECTION WITH LICENSEE'S USE OF
THE SOFTWARE, NC4'S PROVISION OF THE SERVICES, OR THIS AGREEMENT, UNDER CONTRACT,
TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. THIS LIMITATION SHALL
APPLY EVEN IF NC4 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED
H$REIN. IN NO EVENT SHALL THE TOTAL LIABILITY OF NC4 AND ITS SUBSIDIARIES, INCLUDING
BUT NOT LIMITED TO DAMAGES OR LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF
WARRANTY, INFRINGEMENT OR OTHERWISE, EXCEED THE FEES PAID BY LICENSEE FOR THE
SOFTWARE OR SERVICES, ON A PER-ORDER BASIS, WHICH ARE THE DIRECT CAUSE OF THE
DAMAGES OR LIABILITY CLAIMED. IN NO EVENT SHALL NC4 HAVE ANY LIABILITY FOR
LICENSEE'S USE, MISUSE OR FAILURE TO USE THE SOFTWARE.
NC4 Public Sector [.[.C ~
Miami Bcach (06.08.07)
(B. Jackson)
12. Term and Termination.
12.1 Term. This Agreement shall commence as of the Effective Date and continue until terminated in
accordance with Section 12.2.
12.2 Termination. This Agreement may be terminated as follows:
(a) Licensee may terminate this Agreement at any time by sending a written notice of termination along with a
payment for ail Fees owed to NC4.
(b) Either party may terminate this Agreement if the other party breaches any of the material terms of this
Agreement and fails to cure such breach within (i} l S days in the case of nonpayment of monies due, or (ii) 30 days
in the case of all other breaches, after receipt of written notice of such breach.
(c) Either party may terminate this Agreement if the other party (i) becomes insolvent, (ii) makes an assignment for
the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a
receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in
the case any of the foregoing is involuntary, such party shall only be in breach if such petition or proceeding has not
been dismissed within 90 days.
12.3 Effect of Termination. Upon termination, Licensee shall deinstall the Software and, at NC4's sole
discretion, either destroy or return all Software copies and documentation. Licensee shall certify to NC4 in writing
within five (S) business days of the termination notice that Licensee has complied with this Subsection 12.2 and that
no Software is being used or retained on any computer or storage device. Upon termination, NC4 shall have the
right, at any time, to terminate the license and take immediate possession of the Software and all copies wherever
located, without demand or notice.
12.4 Survival. The provisions of Sections 2.4, 4.3, 4.4, 5.2, 5.3, 7, 8, 4, 10, 11, 12 and l3 shall survive the
termination ofthis Agreement.
13. General
13.1 Audit R~hts. During normal business hours and at any time the Software or Service is being used, NC4 or
its authorized representative will have the right to audit and inspect Licensee's use of the Software and Service or
compliance with the terms ofthis Agreement. NC4 may audit Licensee use of the Software and Service or
compliance with the terms ofthis Agreement by remote access of Licensee's Equipment with or without notice at
any time. NC4 shall give Licensee reasonable advance notice if it intends to conduct an on-site audit and inspection.
13.2 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement
and their respective successors and permitted assigns, provided that neither this Agreement nor any license
hereunder may be assigned by Licensee (whether by operation of law or otherwise) without NC4's prior written
consent. NC4 may assign all or any part of its rights and obligations under this Agreement without consent to (a)
any entity resulting from any merger, consolidation or other reorganization of NC4, (b} any operating entity
controlling NC4, or owned or controlled, directly or indirectly, by NC4, (c) any affiliate of NC4, or (d) any
purchaser of all or substantially all of the assets of NC4.
13.3 Non-Solicitation of Employees. Each Party agrees that during the term ofthis Agreement and for a period
of two years after its expiration or termination, neither party will solicit or encourage any employee or consultant to
discontinue their employment or engagement with the other Party. This Section 13.3 shall not apply to employment
opportunities of either party advertised to the general public (e.g., newspaper advertisement, Internet advertisement
or listing, etc.) to which an employee of either party may respond.
NC4 Public Sector LLC
Miami Aeach (06.08.07) 8
(A. Jackson)
13.4 Facsimile. A facsimile of a signed copy of this Agreement received from Licensee may be retied upon as
an original and if there is any inconsistency between such facsimile and a subsequently received hard copy, the
facsimile shall prevail.
13.5 Force Majeure. Neither party shall be held liable for any damages or penalty for delay in the performance
of its obligations hereunder (other than Licensee's obligation to make payments under this Agreement) when such
delay is due to the elements, acts of God or other causes beyond its reasonable control.
13.6 Compliance With Regulations. Licensee agrees to comply fully with all relevant export and import laws
and regulations of the United States and the country or territory, to assure that neither the Software, nor any direct
product thereof, are exported or imported, directly or indirectly, in violation of such laws.
13.7 Arbitration. All disputes arising out of or relating to the formation, terms, or alleged breach of this
Agreement shall be determined and settled by binding arbitration to take place exclusively in Los Angeles County,
California, in accordance with the commercial rules of the American Arbitration Association. Any award rendered
by the arbitrator shall be final and binding on the parties, and may be entered as a judgment by any court of
competent jurisdiction. Costs, of arbitration (including reasonable attorneys' fees} shall be made a part of the
arbitrator's award. Notwithstanding the foregoing, in the event irreparable injury can be shown, either party may
obtain injunctive relief exclusively in the appropriate federal or state court in Miami- Dade County, Florida. Any
litigation arising out of or relating to this Agreement shall take place exclusively in the appropriate state or federal
court in Miami-Dade County, Florida and each party irrevocably consents to the jurisdiction of such courts.
13.8 Third-Party Beneficiaries. Any person licensing athird-party software to NC4 or its subsidiaries is hereby
specified as a third-party beneficiary of this Agreement. NC4 will be responsible for all third-party beneficiary
reporting. Except as expressly set forth in this Section, there shall be no third-party beneficiaries under this
Agreement.
13.9 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid or unenforceable, such determination shall not affect the validity or enforceability ofany other part or
provision of this Agreement.
13.10 Waiver and Modification. Waiver ofany breach or failure to enforce any term of this Agreement shall not
be deemed a waiver of any breach or right to enforce which -nay thereafter occur. Any waiver, amendment,
supplementation or other modification or supplementation ofany provision of this Agreement shall be effective only
if in writing and signed by both parties.
i 3. I I Governing Law. This Agreement shall be governed by and construed in accordance with the substantive
laws of the United States and the State of Florida, without regard to or application of Florida's conflicts of law
principles. This Agreement shall not be governed by the United Nations Convention on the [ntemational Sale of
Goods or the Uniform Computer Information Transactions Act, the application of which are expressly excluded.
13.12 Notices. All notices required or permitted under this Agreement shall be in writing, shall reference this
Agreement and will be deemed given: (i) when sent by facsimile with confirmation page; (ii) five (5) business days
after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (I)
working day after deposit with a commercial overnight carrier, with written verification of receipt. To be effective, a
confirmation copy of a notice must be sent contemporaneously via U.S. mail. All communications shall be sent to
the contact information set forth below or to such other contact information as may be designated by a party by
giving written notice to the other party pursuant to this Section 13.12:
To NC4: NC4 Public Sector LLC
28202 Cabot Road, Suite 300
Laguna Niguel, CA 92677
Attn: Contracts Department
Phone: 949-365-5790
Fax: 949-365-5791
NC4 Public Sector I,LC 9
Miami 13cach (06.08.07)
(B. Jackson)
With copy to: Vicki L, Hamilton
Phone: 760-471-9120
Email: vicki.hamilton@nc4.us
To Licenses: Don Druitt, Emergency Coordinator
Miami Beach Emergency Management Office
2300 Pinetree Drive
Miami Beach, FL 33104
Phone: 305-673-7120
Email: donalddruitt cr miamibeachfl.gov
13.13 Relationship of Parties. This Agreement shall not be construed as creating an agency, partnership, joint
venture or any other form of legal association between the parties and each party is an independent contractor.
13.14 Referenceability. Licensee agrees that NC4 shall be entitled to: (i) publicly announce the signing'of the
software license agreement, (ii} include Licensee's name as a customer on NC4's web site, collateral materials
and/or presentations, and (iii) provide Licensee's name as a reference for media, analysts, prospects or other groups.
13.1 S Attorneys Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party
will be entitled to recover costs and attorney's fens.
13.16 Entire Agreement. This Agreement, including the Attachments hereto, constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior or
contemporaneous statements, understandings or agreements, written or oral, regarding such subject matter.
13. ] 7 Order of Precedence; Governing Documents. If a purchase order or similar ordering document is issued
for the Software and/or Services referenced in this Agreement, the parties hereby agree that the terms and conditions
of this Agreement shall govern and have precedence over any general terms and conditions of such purchase order
or similar document. If there is any conflict between the terms and conditions of this Agreement and any purchase
order or similar document, the terms and conditions of this Agreement shall govern.
13.18 Authority to Bind Licensee. The individual signing below on
she has such authority to sign this Agreement on behalf of Licensee any
NC4 PUBLIC SECTOR LLC
___,~
._
~~
NAME: David K. Weir
TITLE: V/ic'e President TITLE:
DATE: `° /~'~/Q ~ DATE:
--~
hereby certifies that he or
David Dermer
Mayor
June 21, 2007
Attest : ~~~~/(~,~
Robert Parcher, City Clerk
APPROVED AS TO
FORM & LANQUAC3E
~ FOR EXECI~TION
NC4 Public Scctor LLC
Miami I3each (06.08.07)
(B. Jackson}
~!'C~Q~EC~E~ ~i't"' NC4Contract'sDept.;
y L.1 I tyi i'~' Phone: 310-606A444
100 N Sepulveda Blvd, SuIte200 Fax: 310-606-0309
EI Segundo, CA 90245 Email: ;..c:--;;, in!'.ir,;: _,..-.._
Send purchase order to C6nbacf Dept. at NC4, Public Sector at the above address.
Contact Namertitle: Don Druitt, Emer enc Coordinator
Company Name: Miami Beach Emer enc Mana ement Offic
Addreie: 2300 Pinetree Drive
Chy: Miami Beach
State: Florida Zi 33104
Email Address: r rl'S1ly
Phone: 305-673-7120
Fax:
Issue Date 0311907
Quote valid for 90
days from Issue date
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