R04-090
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1 RESOLUTION NO. 04- cA 0 I
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3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AUTHORIZING AND APPROVING A MASTER
5 LICENSE AGREEMENT BETWEEN THE CITY OF
6 BOYNTON BEACH AND EXACT SOFTWARE NORTH
7 AMERICA, INC. AND AUTHORZING THE CITY
8 MANAGER AND CITY CLERK TO EXECUTE THE
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9 \ AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
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11 WHEREAS, Exact Software North America, Inc. will provide an application upgrade
12 nd migration to Windows 2000 in order to update the City's pension software and database;
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14 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
15 HE CITY OF BOYNTON BEACH, FLORIDA, THAT:
16 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
17 eing true and correct and are hereby made a specific part of this Resolution upon adoption
18 ereo f.
19 Section 2. The City Commission of the City of Boynton Beach, Florida does
20 ereby authorize and approve the Agreement between the City of Boynton Beach and Exact
21 oftware North America, Inc., said Agreement is attached hereto as Exhibit "A".
22 Section 3. The City Manager and City Clerk are authorized and directed to
23 xecute said Agreement.
24 Section 4. This Resolution shall become effective immediately upon passage.
25 I PASSED AND ADOPTED this I day of June, 2004.
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Exact Software North America, Inc.
Master License Agreement
License No. Proposal No.
Legal Name: Business Name: (if different)
Address; Telephone:
FAX No.
Check one: Corporation/ _ Partnership/ _ Proprietorship/ Other/
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State of Incorporation/Organization: Email Address:
This Agreement is entered into by and between Exact Software North America, Inc., an Ohio corporation, of 333
E. Center St., Marion, Ohio 43302, fax: 614-387-2983, email: ("Exact"), and the Customer identified
above ("Customer"). It sets forth the terms and conditions under which Customer will license and purchase from
Exact selected goods and services. When incorporated into this Agreement as provided herein, Order Documents
shall evidence the Product licenses granted. This Agreement is effective when executed by both parties (the
"Effective Date") and continues until terminated as hereinafter provided.
1. DEFINITIONS determined by Exact) in a Program. An Update is the
1.1 An Order Document means the Exact machine readable object code form of a Correction or a
proposal ("Proposal") or other Exact-authored subsequent release of a Program which incorporates
document attached hereto as Schedule 1 (or to which Exact-initiated improvements or enhancements in the
this Agreement is attached as Attachment B) and performance characteristics of the Program, designated
incorporated herein at signing and any Proposals by a change in release numbering solely to the right of
prepared by Exact and accepted by Customer in the first decimal point (e.g., X.2, X.3, etc.) or by a
writing or Invoices issued by Exact to Customer which change in batch number, which Exact determines at its
become part of this Agreement as provided in Section sole discretion (regarding the content and timing of
2.1. Schedule 1 (or the Proposal to which this release) to make available without additional charge to
Agreement is attached as Attachment B, if no its customers purchasing Maintenance. An Upgrade is
Schedule 1 exists) lists the Products and Services an Update, designated by a change in the release
agreed to by the parties as of the Effective Date. number to the left of the first decimal point (e.g., 7X,
1.2 Program means each computer software ax, etc.), or by a change in product name which Exact
determines at its sole discretion (regarding the content
product in object code form proprietary to Exact for and timing of release) to make available without
which Customer is granted a license pursuant to this additional charge to its customers purchasing
Agreement or which is otherwise identified as a Maintenance. Updates and Upgrades do not incfude
Program in any Order Document, all user new versions or releases of a Program which Exact
documentation (and applicable Modification determines at its sole discretion not to make available
specifications), printed materials and registration files without additional charge to its customers purchasing
for such module ("Documentation"), all Updates and
Upgrades provided to Customer or new releases Maintenance.
purchased by Customer, and all related materials 1.4 A Modification is the object code form of a
including Modifications (but excluding modifications custom modification (as specified in a Proposal or other
from the standard release of the Program effected by Order Document hereunder) to Standard Release
anyone other than Exact), which are furnished to Programs made by Exact specifically for Customer.
Customer by Exact under this Agreement. Standard Each set of changes reflected in a separately priced
Release Programs are Programs excluding Order Document is a separate Modification. If
Modifications. Customer's license (as specified in the Order
1.3 A Correction is a patch or other remedial Document) to use a Modification includes the source
measure in machine readable object code form code thereof, the term "Modification" includes both the
prepared by Exact to bypass or remedy an error (as object and source code forms for that module.
MLA v 04/02
"Modification Services" are services provided by The Named User Limit is the maximum number of
Exact to develop Modifications for Customer. specific employees or contractors which may be
1.5 Third Party Software means computer designated by Customer to use the Products on an
software proprietary to third parties more particularly Eligible Computer System, as established in a
identified in an Order Document or embedded in a registration file provided to Customer by Exact which
Program. has been copied onto that Eligible Computer System,
1.6 Products means Third Party Software and regardless of whether such individual may be actively
using the Products at any given time.
Programs. 2. ORDERS
1.7 Services means all forms of consulting, project 2.1 Exact will furnish to Customer and Customer
management, installation, implementation,
configuration, Modification Services, Maintenance, will accept and pay for Products and Services set forth
Support and other services provided by Exact to in Order Documents. Following the Effective Date,
Customer for or in connection with Products or Customer may place orders for Products and requests
otherwise. for Services with Exact. Exact's method of acceptance
1.8 Maintenance means the provision of Updates, of Customer orders for Products will be the issuance of
Order Documents to Customer listing those Services,
Upgrades and Corrections for Standard Release Products and licenses for Products Exact proposes to
Programs provided by Exact under the terms of offer to Customer. Exact's policies and charges in
Section 8.1 hereof. effect on the date of the issuance of an Order
1.9 Support means the provision by Exact of "help Document will apply. Invoices will be deemed accepted
desk" support services for Programs provided by Exact by Customer and will become part of this Agreement as
under the terms of Section 8.2 hereof. Order Documents upon the first to occur of (i) payment
1.10 Modification Maintenance means the by Customer of the license or other fees reflected
provision of services by Exact to reapply a Modification therein or (ii) Registration of the Products referenced
to Updates and to provide Corrections with respect to therein or Exact's performance of Services described
modified Programs associated with such Modification, therein. Proposals will be deemed accepted by
under the terms of Section 8.6 hereof. Customer and will become part of this Agreement as
1.11 The Modification Maintenance Period is a Order Documents when accepted by Customer in
period ending on the first to occur of (i) the expiration of writing.
one year following commencement of the period or (ii) 2.2 Except as expressly agreed in writing by both
Exact's reapplication. at Customer's request, of a parties, no purchase order or other document submitted
Modification to two Updates (within the same Upgrade by Customer, whether in connection with an order,
level) and delivery of the reapplied Modification to Order Document, a request for Services or otherwise,
Customer. shall be effective to vary the terms of this Agreement.
1.12 Proprietary Information means the Products 3. LICENSE
and all other information or programs marked as 3.1 Subject to the terms of this Agreement, Exact
confidential to Exact or suppliers to Exact. grants to Customer a non-exclusive, non-transferable
1.13 Registration means copying an Exact- license to use the Products listed as being licensed in
supplied registration file (containing encrypted Order Documents after they have been Registered, as
information identifying Customer, the Product(s) and follows:
the applicable Concurrent User Limit, Named User (a) To use the Products solely for Customer's
Limit or other license limit) onto a single Eligible internal information management and intemal data
Computer System on which the Products have been processing purposes and solely on a single Eligible
installed. Completing the registration process causes Computer System owned or controlled by Customer,
the Products on that Eligible Computer System to subject to any license limitation specified in an Order
become "Registered," or causes a change in the Document and/or any Concurrent User Limit or Named
applicable license limit to become "Registered" in User Limit. Customer may not install the Products on
connection with the Products. more than one server if the Eligible Computer System
1 .14 An Eligible Computer System means any is a multi-user computer system or network. Customer
single-user computer system or single mufti-user may not relicense the Products or use the Products for
computer system or network supported by Exact. third-party training, commercial time-sharing, rental or
1.15 The Concurrent User Limit is the maximum service bureau use;
number of concurrent logins to the Products on an (b) To use the Documentation provided with the
Eligible Computer System as established in a Products in support of Customer's authorized use of the
registration file provided to Customer by Exact which Products; and
has been copied onto that Eligible Computer System.
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(c) To make up to three copies of the Products Order Document and (d) if no terms are provided in an
for archival or backup purposes, provided Customer Order Document, then the amounts due thereunder will
keeps the copies in its possession. Each copy made as be payable upon receipt of invoice issued in connection
provided in this Section 3.1 shall contain the same therewith.
copyright and/or proprietary rights notices which appear 4.2 Exact may impose, and if imposed Customer
on or in the Product being copied. shall pay, a late payment charge on the unpaid balance
3.2 Customer acknowledges that Exact may of overdue invoices equal to the lesser of (a) one and
include within the Products logic or computer code one-half percent (1.5%) per month (eighteen percent
designed to restrict usage of the Products to that (18%) per annum) or (b) the maximum rate allowed by
permitted under this Agreement ("Security Code"). law.
Customer shall not take any action designed to 4.3 In addition to the charges due under this
circumvent a reproduction or use restriction or other Agreement, Customer agrees to pay amounts equal to
software protection scheme implemented by Exact, any taxes or fees resulting from this Agreement, or any
and will permit Exact to make reasonable inquiries and activities hereunder, exclusive of taxes based upon
to audit Customer concerning Customer's compliance Exact's net income. For anyon-site Services requested
with this Section and Sections 3.1 and 3.3. In the by Customer and agreed to by Exact, Customer shall
event of any malfunction of the Security Code, Exact reimburse Exact for actual, reasonable travel and out-
will, as its sole liability and Customer's sole remedy for of-pocket expenses incurred.
any such malfunction, provide a new registration file or
services to correct such code so that Customer may 4.4 Reinstatement of lapsed Maintenance, Support
use the Product as licensed hereunder. or Modification Maintenance is subject to Exact's
Customer shall not translate, adapt, modify, reinstatement fees in effect on the date of
3.3 reinstatement.
decompile or reverse assemble Products (including 5. CONFIDENTIAL INFORMATION
specifically any Security Code), nor shall Customer
analyze or otherwise examine any such software for 5.1 Exact represents that the Proprietary
reverse engineering purposes. Information contains confidential information and trade
3.4 Other Exact products may be delivered with the secrets of Exact or its suppliers. Customer shall hold all
Products licensed under this Agreement. Customer portions of the Proprietary Information in confidence for
may use such products, in a non-production Exact and shall not use such Proprietary Information
demonstration environment only, solely for the purposes except as provided in this Agreement. Customer
of determining the suitability of such products for further agrees that it shall not make any disclosure of
Customer's use. Otherwise, Customer shall have no any or all Proprietary Information to anyone, except to
right to use, copy, disclose, sell, license or otherwise employees and contractors of Customer to whom such
transfer any such products. disclosure is necessary to the use for which rights are
3.5 Exact or its suppliers shall retain all title, granted hereunder, provided that any such consultants
first agree in writing to be bound by the provisions of
copyright and other proprietary rights in or related to Sections 3, 5 and 11.5 of this Agreement.
the Products and in all copies of all or any portion
thereof. Customer does not acquire any rights, 5.2 Since unauthorized disclosure, use or transfer
express or implied, in the Products other than those of the Proprietary Information or Products may
specified in this Agreement. diminish substantially the value to Exact of the
4. PAYMENT PROVISIONS copyright, proprietary rights and/or trade secrets
interests that are subject of this Agreement, if
4.1 Customer agrees to pay Exact for Product Customer breaches or threatens to breach any of its
licenses, Services and other items as follows: obligations with respect to limited use (or, where
(a) charges for Services and license fees for Products applicable, confidentiality) of the Proprietary
listed on Schedule 1 and all other amounts payable Information or Products, Exact shall be entitled to
under this Agreement (including Invoices for additional equitable relief to protect its interest therein, including,
Services or Products) shall be payable as set forth in but not limited to injunctive relief as well as money
Schedule 1 or the applicable Order Document; damages.
(b) charges for Support and Maintenance will be 6. LIMITED WARRANTIES AND DISCLAIMERS
payable annually in advance, net thirty (30) days from 6.1 Exact warrants that, at the time of delivery and
the start or renewal date; such fees shall be those in
effect at the beginning of the period for which the fees for a period of ninety (90) days thereafter (the "Program
are paid; (c) unless the applicable Order Document Warranty Period"), each unmodified Program will
provides otherwise, charges for Modification operate in substantial conformity with applicable
Maintenance will be payable in advance of the Documentation when operated in a Exact-approved
applicable Modification Maintenance Period and such environment as specified in such Documentation.
charges will be those stated by Exact in the applicable
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6.2 Exact warrants that its Services will be PURPOSE, PARTICULAR, SPECIFIC OR
performed consistent with generally accepted industry OTHERWISE. EXACT DOES NOT WARRANT THAT
standards. This warranty shall be valid for ninety (90) THE FUNCTIONS CO NT AI NED IN THE PRODUCTS
days after the performance of such Services. WILL MEET CUSTOMER'S REQUIREMENTS OR
6.3 Exact warrants that, at the time of initial delivery THAT THE OPERATION OF THE PRODUCTS WILL
and for a period of ninety (90) days thereafter (the BE UNINTERRUPTED OR ERROR-FREE. Further,
"Modification Warranty Period"), Modifications Exact does not warrant that the Programs will appear
prepared by Exact under this Agreement will operate precisely as described in the Documentation or that all
substantially as described in the applicable Order errors will be corrected. The delivery of an Update
Document and that the unmodified Programs into which (with or without reapplied Modifications), Upgrade or
such Modifications are incorporated will substantially Correction does not extend any warranty for a
perform the functions or generally conform to applicable Program or a Modification. Exact is not responsible for
Documentation except as superseded by the Order problems caused by changes in the operating
Document, when both are operated in a Exact- characteristics of computer hardware or computer
approved environment. operating systems which are made after the release of
the Products nor for problems in the interaction of the
6.4 For any breach of the warranties set forth in Products with non-Exact-provided software. In the
Sections 6.1, 6.2 or 6.3, Customer's sole and exclusive event Programs, Corrections, Updates, Upgrades or
remedy and Exact's sole and exclusive liability, shall be: Modifications are delivered to Customer via the
a. For Programs or Modifications: So long as Internet, Exact shall not be responsible for any
Customer has provided written notice of breach of interception or interruption of any communications
warranty to Exact no later than ten (10) days after the through the Internet, or for changes to or losses of
end of the Program Warranty Period or Modification data through the Internet unless such interception or
Warranty Period, as applicable, for breaches of the interruption results from Exact's negligence or wil/ful
warranties set forth in Sections 6.1 or 6.3, to provide a misconduct. Exact shall in no event be responsible for
Correction for errors in such software which Exact can the consequences of changes or modifications to the
reproduce that cause breach of the warranty, or if Exact Programs or Modifications made by anyone other than
is unable to make Modifications or Programs operate as Exact.
warranted, Customer shall be entitled to recover the 6.6 Warranties made by the publisher of Third
fees paid to Exact for the non-conforming Modifications Party Software are solely those of the publisher. Exact
or Program(s), less depreciation based on a 5-year agrees that it will assign to Customer any and all
straight-line depreciation schedule which depreciation warranties made by the publisher in respect of Third
commences at the end of the applicable Warranty Party Software and which are assignable.
Period. 7. LIMITATION OF LIABILITY
b. For Services: So long as Customer has 7.1 UNLESS FURTHER LIMITED ELSEWHERE
provided written notice of breach of warranty to Exact
no later than ten (10) days after the end of the IN THIS AGREEMENT, EXACT'S AND ITS DIRECT
applicable warranty period, the re-performance of the AND INDIRECT SUPPLIERS' AGGREGATE LIABILITY
Services (including, at Exact's option, the re-delivery of FOR DAMAGES FOR ANY CAUSE RELATED TO OR
Updates, Upgrades or Corrections or the re-application ARISING OUT OF THIS AGREEMENT, WHETHER IN
of Modifications to Updates), or if Exact is unable to CONTRACT, NEGLIGENCE OR TORT, WILL NOT
perform the Services as warranted, Customer shall be EXCEED THE TOTAL FEES AND CHARGES PAID BY
entitled to recover the fee paid to Exact for the non- CUSTOMER TO EXACT FOR THE RELEVANT GOOD
conforming Services. OR SERVICE GIVING RISE TO THE LIABILITY
DURING THE TWELVE (12) MONTH PERIOD
6.5 EXCEPT AS EXPRESSLY STATED IN IMMEDIA TEL Y PRIOR TO THE DATE CUSTOMER'S
SECTIONS 6.1, 6.2 AND 6.3 ABOVE, THERE ARE CAUSE OF ACTION ACCRUED. IN NO EVENT
NO WARRANTIES OR CONDITIONS (EXPRESS OR SHALL EXACT OR ITS DIRECT OR INDIRECT
IMPLIED, ARISING BY STATUTE OR OTHERWISE IN SUPPLIERS BE LIABLE FOR (A) ANY SPECIAL,
LAW OR FROM A COURSE OF DEALING OR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
USAGE OF TRADE) FOR THE PROGRAMS, OTHER EVEN IF EXACT HAS BEEN ADVISED OF THE
PRODUCTS, SUPPORT, MAINTENANCE, POSSIBILITY THEREOF INCLUDING BUT NOT
MODIFICATION, MODIFICATION MAINTENANCE OR LIMITED TO LOSS OF DATA OR INFORMATION OF
OTHER SERVICES OR GOODS FURNISHED ANY KIND, LOST PROFITS, LOST BUSINESS
HEREUNDER OR IN CONNECTION HEREWITH. REVENUE OR FAILURE TO REALIZE EXPECTED
EXACT AND ITS DIRECT AND INDIRECT SAVINGS AND REGARDLESS OF WHETHER ANY
SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES CLAIM FOR SUCH RECOVERY IS BASED UPON
OR CONDITIONS OF MERCHANTABILITY, THEORIES OF CONTRACT, NEGLIGENCE OR TORT
MERCHANTABLE QUALITY OR FITNESS FOR ANY (INCLUDING STRICT LIABILITY), OR (B) ANY CLAIM
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AGAINST CUSTOMER BY ANY OTHER PERSON 8.3 If Customer purchases Modification Services,
(EXCEPT AS PROVIDED IN SECTION 9 BELOW). Customer acknowledges and agrees as follows:
CUSTOMER HEREBY WAIVES, FOR ITSELF AND a. Customer will pay the fees set forth in
ITS SUCCESSORS AND ASSIGNS, ANY AND ALL
CLAIMS FOR SPECIAL, INCIDENTAL OR applicable the Order Document;
CONSEQUENTIAL DAMAGES. Exact's direct and b. For the period commencing on the date of
indirect suppliers, induding but not limited to the acceptance of the Modifications and ending one (1)
publishers of Third Party Software, are intended year thereafter ("Initial Period"), Customer will
beneficiaries of this Section. purchase from Exact Support, Modification
7.2 All goods, software or services provided by Maintenance and Maintenance for the Program(s) for
Exact to Customer shall be provided subject to the which Modifications are ordered;
provisions of this Section 7 unless the parties expressly c. Following the Initial Period (or following the
agree in writing to the contrary, referencing this Section expiration of the initial Modification Maintenance
by number. Customer understands that Exact's Period), Customer acknowledges that a current
distributors and resellers are independent entities and Maintenance and Modification Maintenance
acknowledges that Exact is not liable for nor bound by subscription is required for Exact to reapply
any acts of such distributors or resellers. Modifications to Updates to the Program(s);
8. SERVICES d. Changes in the nature or scope of
8.1 Exact will provide Maintenance for Standard Modifications from those described in the Order
Release Programs identified in the applicable Order Document, if agreed to by Exact at its option, will be
Document for the period set forth in the Order effected through the Change Order process described
Document (or, if none is specified, then for a twelve- in Section 8.5 below, and unless otherwise specified will
month period calculated from the date the Order be billed at Exact's then-current time and materials rate.
Document is effective) at the rates set forth in such Services to correct any errors or discrepancies in
Order Document (or, if not set forth, at Exact's then- Programs or Modifications first reported to Exact
current maintenance rates). For Standard Release following the end of the applicable Warranty Period, if
Programs covered under Maintenance, Exact will provided by Exact at its option, will be provided at
provide Customer with any Updates and Upgrades Exact's then current time and materials rate, unless
released by Exact and, when notified of suspected covered under Maintenance;
errors in the Standard Release Programs, will provide e. Customer will cooperate with Exact by, among
Services to diagnose such errors and to attempt to other things, making available as reasonably requested
provide Corrections for such errors. Unless canceled by Exact management decisions, personnel,
by either party upon thirty (30) days prior written notice, information, access to Customer systems, approvals
Maintenance will automatically renew for additional 12- and acceptances in order that the Modification Services
month periods at Exact's then-current maintenance required of Exact may be accomplished. If requested
rates, due annually in advance. All Maintenance will be by Exact, Customer will provide test data to Exact to
provided, consistent with this Section 8.1, under Exact's assist Exact's internal testing of the Modifications;
then current Maintenance plan terms. f. Customer agrees to test all Modifications
8.2 If Customer orders Support, then during the period fo.llowing delivery by Exact to verify their accuracy, and
set forth in the Order Document (or, if none is specified, will not use the Modifications in a production
then for a twelve-month period calculated from the date environment until all testing has been successfully
the Order Document is effective), Exact will provide completed. Exact will notify Customer when a
Customer with reasonable support concerning the use, Modification has been delivered and is ready for testing.
implementation and operation of the Programs identified Customer must inform Exact within fifteen (15) days
in the applicable Order Document ("Help Desk following Exact's notification if Customer believes that a
Support") at the rates set forth in such Order Document Modification does not operate substantially as described
(or, if not set forth, at Exact's then-current support in the applicable Order Document, together with
rates). Help Desk Support will be provided remotely via reasonable detail as to the reasons for such belief. If
telephone, modem, fax or other electronic Exact does not receive written notice within such period,
communication during Exact's normal business hours. the Modification will be deemed accepted by Customer.
Unless canceled by either party upon thirty (30) days If Customer identifies a nonconformity to the Proposal,
prior written notice, Support will automatically renew for Exact will provide Services to correct the Modification to
additional 12-month periods at Exact's then-current cause it to conform to the Order Document, and will
Support rates, due annually in advance. All Support will resubmit the Modification to Customer for testing under
be provided, consistent with this Section 8.2, under this Section 8.3(f), except that on any retest Customer
Exact's then current Support service plan terms. will have five (5) days to notify Exact of nonconformities
or acceptance will be deemed to occur; and
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g. Customer acknowledges that it is responsible Maintenance. Modification Maintenance for each
for the content and maintenance of all data files, and Modification is priced separately, and a separate
agrees to provide adequate protection from accidental Modification Maintenance Period will apply.
loss or misuse of data and to back-up all data files and 8.7 Services other than Modification Services,
programs prior to installation of Modifications and from Maintenance, Support and Modification Maintenance
time to time thereafter during the Modification Warranty which are provided by Exact shall be billed weekly on a
Period. time and materials basis unless the parties expressly
8.4 For Modification Services purchased by agree otherwise in writing.
Customer, Exact will complete and deliver Modifications 8.8 Any ideas, concepts, know-how, data
as described in the Order Document. Exact will make processing techniques, software or documentation
Modifications to the current version of the Programs developed by Exact personnel (alone or jointly with
only. Unless expressly stated in a Order Document, Customer) in connection with Services provided to
Exact does not undertake to determine Customer's Customer will be the exclusive property of Exact.
needs or to improve Customer's business operations or
production environment. 9. PROPRIETARY RIGHTS INDEMNIFICATION
8.5 Either Exact or Customer may request a 9.1 Exact at its own expense shall defend any
change in the nature or scope of Modifications from action brought against Customer, to the extent that it is
those described in the Order Document. Any change to based on a claim that a Program used within the scope
an Order Document may result in a change to the of the license granted hereunder infringes a third-party
charges, schedule or other terms under this Agreement. patent valid and enforceable in the United States or a
Either party, if requested by the other, will submit its valid copyright or trade secret and shall hold Customer
change request in writing. All submitted change harmless from any liability for any costs and damages
requests will be accepted or rejected by mutual written ordered by a court as a result of such a claim or
agreement of the parties within thirty (30) days of resulting from the settlement thereof, provided
submission. Unless the parties agree to continue to Customer notifies Exact promptly in writing of the action
address the change request at the end of the thirty (30) (and all prior claims relating to such action) and Exact
days, it will be considered rejected. Exact will prepare a has sole control of the defense and all negotiations for
written amendment for signature by both parties which settlement or compromise of the claim.
will describe the requested change and set forth any 9.2 In the event that any Program module
modifications to the terms of the Order Document. Any becomes, or Exact is advised by legal counsel that it is
requested change in nature or scope of Modifications likely to become, the subject of an infringement claim,
proposed after delivery of the Modifications for testing Exact may at its option either secure Customer's right to
will be addressed in a separate Order Document, rather continue using such program, replace or modify it to
than through this change process. make it noninfringing (in ways not materially adversely
8.6 If Customer orders Modification Maintenance, affecting the utility of the program), or if none of the
then for the Modification Maintenance Period Exact will foregoing alternatives is reasonably available to Exact,
provide the following to Customer for each Modification discontinue the program upon one month's notice and
identified in the Order Document: (i) when notified of terminate Customer's license therefor. In the event of
suspected errors in the modified Programs associated such discontinuation by Exact, Customer shalf be
with the Modification, Services to diagnose such errors entitled to a prorata refund of the license fee paid for the
and to provide Corrections for such errors; and (ii) upon discontinued Program, calculated on the basis of
the request of Customer, Services to reapply a straight-line depreciation over a five-year useful life.
Modification to up to two Updates (within the same 9.3 Exact shall have no liability for any claim of
Upgrade level). Modification Maintenance does not infringement based on (1) use of other than the current
include the reapplication of a Modification to Upgrades. supported release of the Program unaltered by anyone
Any such reapplication, if offered by Exact, will be except Exact, if such infringement would have been
provided under the terms of a separate Order avoided by the use of such current supported unaltered
Document for such Services. Unless canceled by either release and Exact has provided or offers to provide
party upon th irty (30) days prior written notice, such release to Customer or (2) use or combination of
Modification Maintenance will automatically renew for the Program with programs or data not supplied or
additional Modification Maintenance Periods at the approved by Exact to the extent such use or
Modification Maintenance rate, due in advance, set forth combination caused the infringement. The remedies
in an Order Document issued to cover the additional set forth in this Section 9 constitute the sole remedies of
term. All Modification Maintenance will be provided, Customer and Exact's exclusive liability with respect to
consistent with this Section 8.6, under Exact's then claims for infringement of proprietary rights of third
current Modification Maintenance plan terms. parties.
Maintenance for the associated Standard Release
Programs is a prerequisite for Modification
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10. TERMINATION avoid or remove such cause and such party shall
10.1 Either party may terminate this Agreement by continue performance hereunder with the utmost
written notice to the other party in the event such other dispatch whenever such causes are removed. Upon
party neglects or fails to perform or observe any claiming any such excuse or delay for
material term or obligation and fails to remedy such non-performance, such party shall give prompt written
neglect or failure for a period of thirty (30) days after notice thereof to the other party.
written notice thereof from the non-defaulting party. In 11.3 Without the prior written consent of Exact,
addition, Exact may terminate this Agreement Customer may not assign or transfer (by operation of
immediately upon written notice to Customer in the law, in bankruptcy or otherwise) all or any part of its
event Customer breaches any of the terms of Section 3 rights or obligations under this Agreement, including,
hereof or in the event Customer purports to transfer or without limitation, any Program license, to any other
assign this Agreement or any of its rights hereunder person, firm or entity, and any purported assignment or
without Exact's prior written consent. transfer without such consent shall be null and void.
10.2 Notwithstanding anything to the contrary in this Further, any change in control of Customer, as defined
Agreement, termination of this Agreement or any in 17 CFR §230.405 (or any successor provision), shall
Product license, however occurring, shall neither relieve be deemed an attempt by Customer to assign or
Customer of any accrued obligations to pay money to transfer this Agreement. Exact will not unreasonably
Exact nor entitle Customer to any refund of fees for withhold such consent. Exact may assign this
Product licenses or other amounts paid hereunder. Agreement by notice to Customer.
10.3 The remedies set forth in this Agreement are 11.4 This Agreement may be modified only by a
not exclusive unless expressly so provided and, unless writing signed by a duly authorized representative of
exclusive, are in addition to all other remedies available each party.
under applicable law. The parties' rights and 11.5 Customer agrees to comply fully with all
obligations under Sections 3.3, 5, 6.5, 6.6, 7, 9, 10.2, relevant export laws and regulations of the United
10.4, 11 and 12 shall survive termination of this States ("Export Laws") to assure that neither the
Agreement or termination of any Product license. Products nor any direct product thereof are (1 )
10.4 Upon any termination of this Agreement or exported, directly or indirectly, in violation of the Export
license rights granted hereunder as provided in this Laws; or (2) are intended to be used for any purposes
Section 10, Customer shall immediately discontinue use prohibited by the Export Laws, including, without
of the applicable Product(s), shall purge such limitation, nuclear, chemical or biological weapons
Product(s) from its computer systems, storage media proliferation.
and other files, and shall destroy or return to Exact such 11.6 If any provision of this Agreement shall be
Product(s) and all copies thereof. Within ten (10) days found to be illegal or unenforceable, then,
of such termination, Customer shall certify in writing to notwithstanding such illegality or unenforceability, this
Exact that, prior to or upon termination, Customer has Agreement shall remain in full force and effect and such
returned to Exact or destroyed all copies of the affected provision shall be deemed to be deleted.
Product(s) in its possession or control, including any 11.7 Except as expressly provided in this
parts thereof which have been modified, merged or Agreement, any failure or delay by either party in
included with other software. exercising any right or remedy will not constitute a
11. MISCELLANEOUS PROVISIONS waiver.
11.1 All notices required to be given under this 11.8 This Agreement, including Exact's current
Agreement shall be given in writing and shall be Maintenance, Support and Modification Maintenance
deemed to have been given when (i) delivered by hand, Service plan terms, constitutes the final, complete and
(ii) mailed by prepaid registered or certified mail, return exclusive statement of the Agreement between the
receipt requested, (iii) sent by facsimile device, with a parties in respect of the subject matter hereof and
copy sent at the same time by registered or certified supersede all prior and contemporaneous written and
mail, (iv) sent by commercial courier with written oral negotiations, understandings and agreements
verification of the receipt, or (v) sent by email, with a between the parties in respect to the subject matter
copy sent at the same time by registered or certified hereof, including specifically any Exact advertising or
mail to each party at its addresses set forth herein or at sales materials or any Customer purchase order or
such other address as either party may designate to the other ordering document. This Agreement shall also
other by notice as required hereby. supersede the terms of any shrink-wrap or break-the-
11.2 A party shall be excused for failures and delays seal license agreement included in any Program
in performance of its respective obligations caused by package or "click-to-agree" license embedded in a
catastrophes or other occurrences beyond the control Program. No other writings may become a part of this
and without the fault of such party. This provision shall Agreement, unless signed by duly authorized
not release such party from using its best efforts to representatives of both parties. No other act,
7
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document, usage gr custom shall be deemed 10 amend
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12. 1"'.rNIIIJßf"'J'lON
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IN WtTNÐI6 WHEfW)F, ..,¡, perty hM C8UNd this Þereement to be 8X8CUtId by h8 duly authoItzBd
Md empow8_ ___ or l"epMi!JdMlw. to be etrllc:lw on.... efI'ecØve Data.
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document, usage or custom shall be deemed to amend fi t:lV\l; I ANU CU3T<)MI!R HEREB¥
or modify this Agreement. ~~~NT AND AGREE THA J JU~IS~lg~l~ ~ND
FOR ANY CLAIM OR CAUS IUN
12. LAW AND JURISDICTION ~~N\j UNDER OR RELATED TO THIS
1Z-1l'HIS AORLEMEtff :31 bllLL BI: el:l:""ED TO ~ ~$ ~ ~, _ ~ ~
HA¥C BI!E~ r.XI:l;U I E::IJ A1~O "I!~"O~MI!O II-t-AND EX SIV .
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OCft:RM"~!!D IN f\1."l;URDANCE WI IF I nE -mCAl RIßH"F8 \'t'~IICH TilEY WlNI I tA'JC OR IAI&.IIr.H MAY
j.Pw~ OJ;" TIIC STAT! 0.. ðMIß. HEREI...fcI"( AKISE TO CUN Ir.~'f THs PROPRlEJY
o~ueH CIIOl8E OF JURI!f)ICTtON Af~D VENUE.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized
and empowered officers or representatives to be effective on the Effective Date.
EXACT SOFlWARE NORTH AMERICA, INC. CUSTOMER:
By: BY:~
. . KURT BRESSNER
(Pnnted Name) (Pnnted Name) CITY MANAGER
Title: Title: BOYNTON BEACH, fl
Date: Date: Ct, -\ ç -f)"'"
¡.:~~i~~:I~~:t'i;~- .;'2; -Of\; ·i~Q:~;..~ ~
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~ CITY AnOiUU:V
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6111/2002 - 9038963