R95-106RESOLUTION NO. R95-/~
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING
AND DIRECTING THE MAYOR AND CITY CLERK TO
EXECUTE AN END USER LICENSE AND WARRANTY
AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH
AND ITRON, INC., PROVIDING FOR ELECTRONIC
AND COMPUTER PRODUCTS; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Commission, upon recommendation of staff,
deems it to be in the best interests of the citizens and
residents of the City to enter into an agreement with Itron,
Inc., for electronic and computer products to assist and enhance
meter reading.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
~ The City Commission of the City of Boynton
Beach, Florida does hereby authorize and direct the Mayor and
City Clerk to execute an End User License and Warranty Agreement
between the City of Boynton Beach and Itron, Inc., which
agreement is attached hereto as Exhibit "A".
~ That this Resolution shall become effective
immediately upon passage.
PAggED AND ADOPTED this /~ day of July, 1995.
ATTEST:
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayo~~
U~ Mayc o Tem
~ C~m~ssioner
/
(Corporate Seal)
A~thsig.doc
6/30/95 - Finance.
ITRON, INC.
END USER LICENSE AND WARRANTY AGREEMENT
Th s Agreement, is ma~e this day_of Hay
corpor~tk)n, here~3~e~ ~ron",end uit~ o~ ~o,ynton ~each, ~orid~t
_j 19 95 j by and belween Itron, Inc., a Washington
., hereinafter'End User',
by ~o~%ware _Lns~;a-LJ-~
W EREAS D striout0r. int? . !o. pro.vide, to o, compoter p ucts to
WHEREAS, Itron requires EnO user to execute this Eno user ucense a~u .-,,,,~,,z ~,~.~ ......~.. ..... ,
End User.
NOW, THEREFORE, in con. ration of the mutual covenants and agreements herein~fler set forth, Itron and End User hereby agree as follows:
SECTION 1, DEFINITION~ User's confidential relationship with Itron. The proprietary
,When used herein, the following terms, whether plural or singu~', shall informatiOnuser will notiS consideredprovide or otherw~sebY' Itr°9 to bem~eF tra~" 'e~:r' etavala:Y*e any°flt'rgn'LlcenseoEnd,
have the meaning set torth below: Software or Related Documentation, in any form, except as
1.1 'Eouiom~nt'. The components and devices manufactured and/or required by taw or judicial or governmental order, without Itron's
prior written consent, e.xce, pt, to e~..plo~/ees or cons.uitant~,of ~n_d~
1.2 User whose access to the inmrma~on ~s necessary to enable
1.3
1.4
?rketed by Itron and provided to End User by Distributor.
Functional Soecificat~on Oocument~. This document is produced
by Won and contains a narrative and chart of the Licensed
Software flow functional description of Licensed Software, a
definition of input and output file structures and record layouts
i,n, ctuding the data definitions.
~. The program products in machine-readable
form and all otherprograms re~3rded on the media to be licensed
to End User inducing, but not limited to:
(a) any [orm of Itron written programming language source code
and machine-readab e c~le derived from the source c~ or
o(herwise licensed to End User ~ .
~) any subsequ?nt m. edilicatbns_, co.~,.ecti°.ns,°r re~ons to the
pr~ram pr~:lucts li?nsed to ~-n~ user ~y ~tron. ..
"ReI~ted ~)ocumentation, Any human-readable program ~is~mgs,
flow charts, input and output torres manuals, specifications,
instructions, ar[d other materials, and any co~ies of any of the
foregoing, in any medium, related t_o the Equipment and/or
LicensedSoftw~e and dalivered tc the End User.
SECTION 2. THE LICENSED SOFTWARE
2.1 ~. ltron hereby grants to End User a nonexclusive,
nontransferable, perpetual license to use the Licensed Software,
includ n.~the Re~ed Documentation. . .
2.2 ]Iron ~ "pr(~oert~, The Licensed Software, including without
limitation, programs Related Documentation and methods of
processing sh~l remain the sole and exdusiveproporty of Itron
and shal'[ not be sold, revealed, disclosed or otherwise
commt , or indirectly, by End User to any.person,
corn as set forth herein,
2.3 End User may use the Licensed Software on
t User. The Licensed Software
of End User's own business,
records on behalf of
not: .(a) permit any third paty to
the Licensed Software !n the
or (c) reverse engineer,
derivative works or otherwise alter
2.4
2.5
Ecopy all or ~ of the Related
nd User shall reproduce and
)r trade secret notices on any .such.copi.as.
The Licensed Software ~s written in a
language for use with operating system
be res~cx~sible for the perl,ormance ol ~
any other programming mnguage ano
~ati¢ n not approved by ltron.
· In addition to the rights and obligations
5,4 herein, End User acknowledges and
contained in the Licensed Software and
or confidential information
another party who has licensed to
nformation is being made available
and solely on the ~sis ot End
User to exercise its rights under this License.
~ECTION 3. PAYMEN~
End User acknowledges thai D stributor wilt provide payment to Itron on
End User's behalf to provide consideration of thi.s A~m ,ent ar? !.hat
End User is the beneficiary of such payment. ~no user ~unner
understands that End User is reimbursing Distributor for such paymen!
as part of End User's agreement for obtaining the Equipment and
[~ Software.
,~ECTION 4, WARRANTy AND WARRANTY I~XCLUSlONS_
4.1 WarrantY. Itron wan'ants tha~ each item of Equipme, t will be free
from delects in material and workmanship and the Licensed
Software shal ~florm substantially in accordance with the
Functional Specification Document for a period ot fourteen (14)
months from date d shipment from Itron. .
ttron sha~l repair or provide an equivalent replacement ot any item
of Equipment and Licensed Software deemed defective at no
charge to End User during th s warranty period after properly
pack~,ged and returned prepaid to Itron's designated service
center. End User agrees to ~umish Itron reasonable access to said
Equipment and Licensed So.rare.
End User agrees that the above remedies are End User's
exclusive rem~ies in the event ol breach of warranty.
THIS WARRANTY IS IN UEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES
OF MERCHARTABILIT¥ AND FITNESS FOR A PARTICULAR
PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE.
42 W~'rantv Exclusions. The warranties provided by itron under this
Agreement do not include the followin~ services, but if such
s~wicas a'e avall,_able,,., they ~ b
Agreemen~ at Itron s then applicable t~rne aha maena
travel expenses. ·
(a) Repair of dama~ or increase in service time caused by
failure to continually provide a suitable installation
environment.
~) Repair of damage or in.ease in service time caused by.the
~ of the Eqwpmant or Licensed Software tot other than
data processing purposes tor which designed; or neglect or
misuse.
(c) Repair ol damage caused by accident or disa. ste. r, wh!ch
includes, but is not limited to hre, flood, submermon m wa~er,
wind, lightning, transportation subsequent to delivery, or
torce majeure.
(d} Inspecti~)n of altered Equipment, repair of damage or
in,ease in service time caused by alterations not authorized
by itron, which ~erat_!ons include, but are not limited to, any
deviation from tron s physical, mechanical or electrical
Equipment design.
1
5/19/94
(e) Repair of damage or increase in service time caused by the
conversion from one Itron model to another or the installation
or removal of an Itron feature whenever any of the foregoing
was performed by other than itron or its authorized agents.
(I) Service time and materials associated with the'
rean'angement or rebcation of Equipment.
SECTION 5, RIGHTS AND OBLIGATIONS
5.1 IRIrir~eement IndeMrlity. Itron will defend End User against a claim
thai Equipment or Licensed Software supplied hereunder infringes
a U.S. patent copyright t.r,a, de secret or other proprietary property
right or that the .E. guipment s operation .pursuant to a current Itron
release and modification level of any Licensed Software supplied
by Itron infringes a U.S. patent, copyright, trade secret or other
proprietary property right, and ltron will pay resulting costs,
damages and attorney fees finally awarded, provided that:
(a) End User promptly notifies Itron in writing of the claim; and
(b) Itron has sole control of the defense and all related
settlement negotiations.
Lmder this Section is conditioned on End User's
or the
to
~n's
to~
rep
Equipr
shall
return
Itron
become noninfringing;
~hall be functionally
~oftwa~e; and if the
not available on terms which are
User will return the
ftron
of such
combination,
or
5.2
5.3
5.4
The
D~
LIAB]
Agreen
under this
Itron with resp~'t to
secrets or other
ITRON'S TOTAL LIABILITY FOR
USER SHALL NOT EXCEED THE
IPMENT AND
ON BE
4TRACT, NEGL GENCE, TORT,
COVER OR FOR
INCLUDING LOSS OF
OR EXEMPLARY
CTION WITH
FAILURE
ON OF THE
Equipment and
itron's standard
Itron's then
~reement may
y period
law or judicial or
in strictest
is related to either
as proprietary and
)rmance, by the
Procrietary and
imited to the terms of
to research, development,
or business affairs
padies' obligations of
J[ survive termination of
5/19/94
5.5 E(3uioment or Licensed Software Modification. Itron's obligations
hereunder may be adversely affected in the event End User
modifies the Equipment or Licensed Software or uses any
attachment, feature, or device on the Equipment, without first
obtaining Itron's written approval
5.6 ~. ltron shaJl COml:4y with provisions of the Federal Fair
Labor Standards Act in the manufacture of the Equipment and
Licensed Software, including sll laws prohibiting discrimination in
emp4oyment, to the extent that such taws pert~n to ttron.
5.7 Term and Terminstion.
(a) Termination. This End User License and Warranty
Agreement shall become effective upon execution by Itron
and End User and may terminae:
(1) Thirty (30) days after a party gives the other party
written notice of that party's material breach of this
Agreement, unless the other party has made progress
in curing the breach to an extent satisfactory to the
nonbreaching :[?ty;
(2) At a pa~.y's option, upon ten (10) days written notice of
terrnma¢on, ~on any attempt by a party to aSsign,
delegate, sublicense or other:wise transfer this
Agreement, the Licensed Softwarel the Related
~ D<7~cumentation, or any of its rights or obligations under
this Agreement without the prior written consent of the
other party; or
(3) At a patio's option, upon ten (10) days written notice of
termination, if the other party becomes insolvent,
executes an assignment for the bene~t of creditors, or
becomes subject to bankruptcy or receivership
proceedings.
(b) Riahts and Cblf(~ations U~n Termination.
Upon termination of this Agreement:
(1) End User's obligatio,n,s under paragraph 2.5
('Proprietary Information ) and the parties' obligations
under paragraph 5.4 ('Confidentiality') shall survive the
termination
(2) End User's Software License rights under Section 2
shall'immediately cease; End User shall delete the
Licensed Software from all other software into which it
has been merged and End User shall immediately
deliver to Itron or destroy ail copies of the Licensed
Software and Related Documentation; however End
User may Upon Itron's prior written consent, retain one
(1) cop'~ of the Licensed Software and Related
Documeh~ion for archive purposes only; and
(3) End, User shall, within one (1) month after the
term~natlon of this Agreement, certify in writing to Itron
that, tot he best of End User's knowledge, all copies of
the Licensed Software and Related Documentation
have been returned or destroyed, except for any archive
,.,L 5.7(b)(2).
(c} ~ner r~ants..Earth part)rs right to terminate aS expressed in
this A~lr~ment shall he in addition to any other rights, legal
or equitable, provided by law.
SECTION 6. GENER/U.
6.1 Force Maieure. Neither party hereto shall be responsible for any
failure or delay in the performance of any obligation hereunder if
such failure or del.ay is due to a cause beyond the party's control,
including, but not limited to acts of God, flood, fire, volcano, war,
third-party suppliers labor disputes or governmental acts.
6.2 Stjblease and'Assionment. Neither party may sublease or assign
_,.....,its rights or obligations under this Agreement without the ~rit!en
~/~ ~nsent of the ot~r parc/, r..¢._4~,7'''
( 6.3 ¢overnino Law. This Agreement and performance he~uf~di~r
k-.-----/shall be goverrted ,b,~,a_n~d, constru~ed'ip~.a .c,~_grdance with
aws of the State of ,~,;s,,,r,,.3tc, n. 7'-..~u-u,.¢,~. ._~
6.4 Enforceability and Attorney Fees. If any provision in this
Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall in no Wa~ be affected or impaired thereby. In the event of
litigation to enforce the terms of this Agreement, the prevailing
6.5
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o~S~l be entitled to reasonable anon'my fees, both at the time
and on appeal.
ncurrent Remedies. No right or remedy herein cc~ferred upon or
reserved to either party' is exclusive of any other righl or remedy
herein or by law or equity provided or permitted; but each shall be
cumulative of every other right or remedy given hereunder or now
or hereafter existing at law or in equity orby statute or otherwise
and may be enforced concurrently therewith or from time to time.
Notices and Reauests. Notices hereunder shall be in wrffing and
sMall be given by either party to the other by delivery or by mailing
the same by prepaid registered mail addre<.~sed as specifi~ herein
or to such other address as may be substituted by written notice
by either party to the other:
End Usa': Notices to End User at
address provided below.
Itron: 1TRON, INC.
2818 N. Sullivan Road
Spokane, WA 99216
Attn: Contrad Administralor
Any such notice so given shall be deemed to have been reneived
b,.,v the ,party to whom addressed on. the _day of delivery thereof.
6.7 :nfire ^areement. Each party acknowledges that it has read this
Agr. egmgnt, understands it, and agrees to be bound by its terms
and further agrees that it is the complete and exclusive statement
of the agreement between the par~.ies. Any terms and conditions
.appearing on Egd User's authorizations shall not apply to or
become a part o! this Agreement this Agreernent may be modified
or altered only by a written instrument ~ refers to tbs Agreement
and is duly executed by an authorized representative of each
6.8 ~ee~ings Not Controlling. Headings used in this Agreement are
intended for convenience or reference only and small not comrol or
affect the meaning or construotlon of'any provision of this
Agreement.
IN WITNESS WHEREOF the par~ies hereto have signed this Agreement the day and year fi~ above wfitlen by their duly authorized representative.
END USER: CITY OF BOYNTON BEACH
Name:.' ........ GERALD ~AYLO~
T,le:...--' ' g6R ' /J
Address: ~P. O. BOX.-310
--- ~BOYNTON BEACH, FL 33425
If a corporalion, nm'ne tbe-Stat~ in which incorporated FLORIDA
ITRON, INC.
By:
Name:
Title:
Dunn and Bradatreel Number
APPROVED AS TO FORM:
A~sr CITY ATTORNEY
Distributor:
SoftWare Installed
c/o Ted Price
15924 Country Farm Place
Tampa, Florida 33624