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HomeMy WebLinkAboutContract CAG-15-111 Cityworks Azteca Systems,Inc 11075 South State,Suite 24•TEL 801.523.2751•FAX 801 523.3734 www citvworkg corn CITYWORKS' LICENSE AGREEMENT This Master Software License Agreement made by and between Azteca Systems, Inc.("Azteca Systems")a Utah corporation,with a place of business at 11075 South State, Suite 24, Sandy,Utah 84070 USA and the City of Renton, WA,using certain of Azteca Systems Licensed Products hereinafter referred to as"Licensee." The parties hereto acknowledge that this Agreement is intended to be a master agreement under which Licensee may license licensed Products from time to time. Pursuant to the terms of this Agreement,the Maintenance Addendum,and any additional addenda or amendments thereto,Azteca Systems or its Affiliates may license the Licensed Products and provide support and maintenance to Licensee or Affiliates of Licensee. This Agreement is effective immediately upon delivery of Licensed Products(the"Effective Date"). WHEREAS, Azteca Systems has developed and is the owner of an extensive platform of products(the Software, as defined below); WHEREAS, Licensee desires a non-exclusive license to use some of the products of the Software known as Cityworks® (as set forth herein);and WHEREAS.Azteca Systems is willing to grant such a license on the terms and conditions set forth below. NOW,THEREFORE, in consideration of the foregoing and of the mutual promises contained in this Agreement, Azteca Systems and Licensee agree as follows: ARTICLE 1—DEFINITIONS 1.1 Definitions.The terms used are defined as follows: a. "Agreement"means this Software License Agreement between Azteca Systems and Licensee, inclusive of all schedules,exhibits,attachments,addenda and other documents incorporated by reference b. "Authorization Code(s)"means any key,authorization number,enablement code,login credential, activation code, token,account user name and password,or other mechanism required for use of a Product. c. "Authorized User"or"User"shall mean:(i)a direct user of the Licensed Products, including but not limited to Licensee's employees;or(ii)Licensee's consultants who have agreed to maintain the Licensed Property in confidence and use it only for the benefit of Licensee. d. "Covered Software"shall mean the particular Cityworks Software,scripts. interfaces and custom code identified in Addendum I. e. "Custom Applications"shall mean any scripts, interfaces,reports or program code created by Azteca Systems, Licensee,Cityworks Partner,or other third-party,other than Program Modifications to the Cityworks applications,that provide specific functionality uniquely designed for the Licensee.Any Custom Applications delivered to Licensee shall NOT become part of the Licensed Software unless otherwise specified in Addendum 1. f. "Data" means any Azteca Systems or third-party digital dataset(s)including,but not limited to, geographic vector data,raster data reports,or associated tabular attributes,whether bundled with Software and Online Services or delivered independently. g. "Deployment Server License"means a license that,in addition to providing staging server License rights, authorizes Licensee to install and use the Software for deployment in Licensee's internal use. h. "Testing Server License"means a license that authorizes Licensee to install and use the Software on a server in Licensee's internal use to provide testing License rights prior to deployment. i. "Documentation"means all user reference documentation that is delivered with the Software and includes but is not limited to(a)all materials published,provided digitally,or otherwise made available to Licensee by Azteca Systems that relate to the functional,operational and/or performance capabilities of the Software;(h)all user,operator,system administration,technical,support and other manuals and all other materials published, provided digitally or otherwise made available to Licensee that describe the functional,operational and/or performance capabilities of the Software;(c)any Requests for Information and/or Responses for Proposals(or documents of similar effect) issued by Licensee,and the responses Master License&Maintenance Agreement Page 1 0114 1/1/15 ed. thereto from Azteca Systems,and any document which purports to update or revise any of the foregoing; and(d)the results of any"Proof of Concept"or similar type presentations or tests provided by Azteca Systems to Licensee. j. "Internal Use" means use of the Licensed Products by employees of Licensee in Licensee's internal operations but does not include access of the Licensed Products by,or use of the Licensed Products in the provisions of services to,Licensee's clients or customers. Internal Use also includes use of the Licensed Products by contractors of Licensee,including contractors providing outsourcing or hosting services,as long as Licensee assumes full responsibility for the compliance with this Agreement in such use. Use of the Licensed Products(or any part thereof)for the benefit of others,whether by means of a software as a service offering, service bureau application,application service provider,outsourcing or other means of providing service to any third party shall not be considered Internal Use. k. "Licensed Products"shall mean the portion of the Cityworks Software and the Documentation to which Licensee has purchased a License as identified as specified in Addendum I attached hereto. Licensed Products shall include any updates or upgrades to the Licensed Products that Azteca Systems may at its discretion deliver to Licensee. I. "Login" means a license that allows Licensee to permit a single authorized named end user to use the Software, Data,and Documentation installed on a server and accessed from a computer device. m. "Online Services"means any Internet-based system,including applications and associated APIs, hosted by Azteca Systems or its licensors,for storing,managing,publishing,and using Cityworks software and data,and other information. n. "Ordering Document(s)"means a sales quotation,purchase order,or other document identifying the Products that Licensee orders. o. "Preview"means any alpha,beta,or prerelease Product. p. "Product(s)"means Software, Data,Online Services,and Documentation licensed under the terms of this License Agreement. q. "Sample(s)"means sample code,sample applications,add-ons,or sample extensions of Products. r. "Server"means each single instance of an operating system, whether physically installed on a computer or within a virtualized environment. s. "Software"or"Cityworks Software"means all or any portion of Azteca Systems proprietary software technology accessed or downloaded from an Azteca Systems(Cityworks)-authorized website or delivered on any media in any format including backups,updates,service packs,patches,hot fixes.or permitted merged copies. t. "Maintenance Addendum"shall mean the Master Software Maintenance Addendum attached hereto. u. "Term License" means a license or access provided for use of a Product for a limited time period ("Term")or on a subscription or transaction basis. ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP Products are licensed,not sold.Azteca Systems and its licensors own Products and all copies,which are protected by United States and applicable international laws,treaties,and conventions regarding intellectual property and proprietary rights including trade secrets. Licensee agrees to use reasonable means to protect Products from unauthorized use,reproduction,distribution,or publication.Azteca Systems and its third-party licensors reserve all rights not specifically granted in this License Agreement including the right to change and improve Products. ARTICLE 3—GRANT OF LICENSE 3.1 Grant of License. Subject to the terms of this agreement,Azteca Systems grants to Licensee a personal, nonexclusive,nontransferable license solely to use the Products as set forth in the applicable Product Licensing Addendum (i)for which the applicable license fees have been paid;(ii)for Licensee's own internal use;(iii)in accordance with this License Agreement and the configuration ordered by Licensee or as authorized by Azteca Systems or its authorized distributor;and(iv)for perpetual use or for a term,if term is identified,until terminated in accordance with Article 5. License types may include,but are not limited to Login, Workgroup, Departmental, GLA (Enterprise License)or Term Licenses. In addition to the Scope of Use in Article 4,Addendum 1--Product Licensing and the Software Terms and Use which applies to specific Products,Addendum 2--Maintenance Agreement,Addendum 2.and Addendum 3–Online Agreement(if applicable)collectively,are incorporated in this Agreement. a. Sofiware. Use and License for specific Software products are set forth in Addendum I-Product Master License&Maintenance Agreement Page 2 of 14 1/1/15 ed. Licensing Addendum,which is incorporated by reference. b. Maintenance. Maintenance terms are set forth in Addendum 2,- Maintenance agreement which is incorporated by reference. c. Online Services. Terms of use for Online Services(if applicable)are set forth in Addendum 3,which is incorporated by reference. RESERVATION OF OWNERSHIP: Azteca Systems retains exclusive right,title, interest,and ownership of any copy of the Software Cityworks and Related Materials licensed under this License Agreement. This Agreement does not transfer ownership rights of any description in the Software or services to Licensee or any third party. Licensee agrees to use reasonable efforts to protect the Software Cityworks and Related Materials from unauthorized use,reproduction,distribution,or publication. 3.2 Preview Release Licenses.Products acquired under an evaluation license or under a Beta program are intended for evaluation and testing purposes only and not for commercial use.Any such use is at Licensee's own risk,and the Products do not qualify for Azteca or distributor maintenance. 3.3 Special Use Programs. If Licensee acquires Products under a special program for noncommercial,nonprofit, educational,or other limited-use license, Licensee's use of the Products is subject to the terms set forth in the applicable enrollment form or as described on Azteca's website in addition to the non-conflicting terms of this License Agreement.All such program terms are incorporated herein by reference. 3.4 Delivery. Unless otherwise requested by Licensee,Azteca Systems shall provide an electronic link to make available to Licensee the Licensed Property by electronic download and a license key to activate the Licensed Property. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses a. For Products delivered to Licensee. Licensee may: 1. Install and store Products on electronic storage device(s); 2. Make archival copies and routine computer backups; 3. install and use a Testing Server License of Software concurrently with the Deployment Server License to be replaced during a reasonable transition period not to exceed six(6)months,provided that the deployment of either version does not exceed Licensee's licensed quantity:thereafter, Licensee shall not use more Software in the aggregate than Licensee's total licensed quantity; 4. Move the Software in the licensed configuration to a replacement Server;and b. Licensee may use,copy,or prepare derivative works of Documentation supplied in digital format and thereafter reproduce.display,and redistribute the customized documentation only for Licensee's own internal use.Portions of Documentation supplied in digital format merged with other software and printed or digital documentation are subject to this License Agreement. Licensee shall include the following copyright attribution notice acknowledging the proprietary rights of Azteca and its licensors: "Portions of this document include intellectual property of Azteca and its licensors and are used herein under license.Copyright©[Licensee will insert the actual copyright dates)from the source materials] Azteca Systems, Inc. and its licensors.All rights reserved." c. Consultant or Contractor Access. Subject to Section 3.1,Azteca Systems may grant Licensee the right to permit Licensee's consultants or contractors to use the Products exclusively and solely for Licensee's benefit. Licensee must first obtain written permission from Azteca,which may include additional restrictions,prior to granting any rights to consultants or Contractors.Licensee shall be solely responsible for compliance by consultants and contractors with this License Agreement and shall ensure that the consultant or contractor discontinues Product use upon completion of work for Licensee. Access to or use of Products by consultants or contractors not exclusively for Licensee's benefit is prohibited. Master License&Maintenance Agreement Page 3 of 14 1/1/15 ed. 4.2 Uses Not Permitted.Except to the extent that applicable law prohibits or overrides these restrictions,or as provided herein, Licensee shall not a. Sell,rent,lease,sublicense,lend,assign,or time-share Products; b. permit persons other than Authorized Users to access or use the Licensed Products(or any part thereof); c. Act as a service bureau or Commercial ASP; d. Use Software,Data,or Documentation for a site or service and operate the site or service for profit or generate revenue through direct or indirect methods(e.g.,advertising or by charging for access to the site or service); e. Redistribute Software,Data,or Online Services to third parties,in whole or in part,including,but not limited to,extensions,components,or APIs;or f. Redistribute Authorization Codes; g. Reverse engineer,decompile,or disassemble Products; h. Make any attempt to circumvent the technological measure(s)that controls access to or use of Products; i. Upload or transmit content or otherwise use Products in violation of third-party rights,including intellectual property rights,privacy rights,nondiscrimination laws,or any other applicable law or government regulation; j. Remove or obscure any Azteca Systems(or its licensors')patent,copyright,trademark,proprietary rights notices,and/or legends contained in or affixed to any Product,Product output,metadata file,or online and/or hard-copy attribution page of any Data or Documentation delivered hereunder; k. Separate from the licensed use of APIs,Licensee may not unbundle or independently use individual or component parts of the Products,Software,Online Services,or Data; I. Incorporate any portion of the Software into a product or service that competes with the Software; m. Publish the results of benchmark tests run on Software without the prior written permission of Azteca Systems;or n. Use, incorporate,modify,distribute,provide access to,or combine any computer code provided with the Software in a manner that would subject such code or any part of the Software to open source license terms,which includes any license terms that require computer code to be(i)disclosed in source code form to third parties,(ii)licensed to third parties for the purpose of making derivative works,or(iii) redistributable to third parties at no charge. ARTICLE 5—TERM AND TERMiNATION 5.1. This License Agreement is effective upon acceptance. Licensee may terminate this License Agreement or any Product license at any time upon written notice to Azteca Systems.Either party may terminate this License Agreement or any license for a material breach that is not cured within ten(10)days of written notice to the breaching party,except that termination is immediate for a material breach that is impossible to cure.Upon termination of the License Agreement, all licenses granted hereunder terminate as well.Upon termination of a license or the License Agreement, Licensee will(i)stop accessing and using affected Product(s);(ii)clear any client-side data cache derived from Online Services;and(iii)uninstall,remove,and destroy all copies of affected Product(s)in Licensee's possession or control,including any modified or merged portions thereof',in any form,and execute and deliver evidence of such actions to Azteca Systems or its authorized distributor. If this Agreement is terminated under section 4 of the Maintenance Addendum,Licensee shall then return to Azteca Systems all of The Software Cityworks,related modules,related updates,and any whole or partial copies,codes. modifications,and merged portions in any form.Azteca will for no additional charge to Licensee and at Licensee's option either grant a license to the Licensee,for a period of one year,which will allow Licensee to retain the ability to access records and data contained in The Cityworks Software or allow Licensee to create digital copies of all files needed by the Licensee for the same period.The parties hereby agree that all provisions which operate to protect the intellectual rights of Azteca Systems shall remain in force should breach occur. 5.2. Termination of Maintenance. The Maintenance Addendum(Addendum#2)and the rights granted thereunder may be terminated independently of the Agreement in accordance with Section 4 of the Maintenance Addendum. Master License&Maintenance Agreement Page 4 of 14 1/1/15 ed. ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 6.1 Limited Warranties. Except as otherwise provided in this Article 6,Azteca Systems warrants for a period of ninety(90)days from the date Azteca Systems issues the Authorization Code enabling use of Software and Online Services that(1)the unmodified Software and Online Services will substantially conform to the published Documentation under normal use and service and(ii)media on which Software is provided will be free from defects in materials and workmanship. 6.2 Special Disclaimer. DATA,SAMPLES,HOT FIXES.PATCHES,UPGRADES,AND EVALUATION AND BETA SOFTWARE ARE DELIVERED"AS IS" WITHOUT WARRANTY OF ANY KIND. 6.3 Internet Disclaimer.THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS AND THAT(i)THE INTERNET IS NOT A SECURE INFRASTRUCTURE,(ii)THE PARTIES HAVE NO CONTROL OVER THE INTERNET,AND(iii)NONE OF THE PARTIES SHALL BE LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE PERFORMANCE OR DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF ONLINE SERVICES. 6.4 General Disclaimer.EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES,AZTECA SYSTEMS DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND,WHETHER EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO,WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,SYSTEM INTEGRATION,AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.AZTECA SYSTEMS DOES NOT WARRANT THAT PRODUCTS WILL MEET LICENSEE'S NEEDS;THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED,ERROR FREE,FAULT-TOLERANT,OR FAIL-SAFE;OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED.PRODUCTS ARE NOT DESIGNED. MANUFACTURED,OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH,PERSONAL INJURY,OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. 6.5 Exclusive Remedy. Licensee's exclusive remedy and Azteca Systems'entire liability for breach of the limited warranties set forth in this Article 6 shall be limited,at Azteca Systems'sole discretion,to(i)replacement of any defective media;(ii)repair,correction,or a workaround for Software or Online Services subject to the Azteca Systems Maintenance Program or Licensee's authorized distributor's maintenance program,as applicable; or(iii)return of the license fees paid by Licensee for Software or Online Services that do not meet Azteca Systems limited warranty,provided that Licensee uninstalls,removes,and destroys all copies of Software or Documentation;ceases using Online Services;and executes and delivers evidence of such actions to Azteca Systems. ARTICLE 7—LIMITATION OF LIABILITY 7.1 Disclaimer of Certain Types of Liability.AZTECA SYSTEMS,ITS AUTHORIZED DISTRIBUTOR(IF ANY).AND ITS LICENSORS SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS,LOST SALES,OR BUSINESS EXPENDITURES; INVESTMENTS;BUSINESS COMMITMENTS;LOSS OF ANY GOODWILL;OR ANY INDIRECT. SPECIAL.INCIDENTAL.OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF PRODUCTS,HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT AZTECA SYSTEMS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 7.2 General Limitation of Liability. EXCEPT AS PROVIDED IN ARTICLE 8—INFRINGEMENT INDEMNITY,THE TOTAL CUMULATIVE LIABILITY OF AZTECA SYSTEMS AND ITS AUTHORIZED DISTRIBUTOR HEREUNDER,FROM ALL CAUSES OF ACTION OF ANY KIND. INCLUDING,BUT NOT LIMITED TO,CONTRACT,TORT(INCLUDING NEGLIGENCE),STRICT LIABILITY,BREACH OF WARRANTY,MISREPRESENTATION.OR OTHERWISE. SHALL NOT EXCEED THE FEES ACTUALLY PAID BY LICENSEE DURING THE CURRENT SUPPORT PERIOD, Master License&Maintenance Agreement Page 5 of 14 1/1/15 ed. FOR THE PRODUCTS THAT GIVE RISE TO THE CAUSE OF ACTION. 7.3 Applicability of Disclaimers and Limitations. Licensee agrees that the limitations of liability and disclaimers set forth in this License Agreement will apply regardless of whether Licensee has accepted Products or any other product or service delivered by Azteca Systems.The parties agree that Azteca Systems has set its fees and entered into this License Agreement in reliance on the disclaimers and limitations set forth herein,that the same reflect an allocation of risk between the parties,and that the same form an essential basis of the bargain between the parties.THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING WARRANTIES,LIMITATIONS,AND EXCLUSIONS MAY NOT BE VALID IN SOME JURISDICTIONS AND APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION.LICENSEE MAY HAVE ADDITIONAL RIGHTS UNDER LAW THAT MAY NOT BE WAIVED OR DISCLAIMED. AZTECA SYSTEMS DOES NOT SEEK TO LIMIT LICENSEE'S WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. ARTICLE 8—INFRINGEMENT INDEMNITY 8.1 Azteca Systems shall defend,indemnify,and hold Licensee and its employees harmless from and against any loss,liability,cost,or expense,including reasonable attorneys'fees,that Licensee incurs as a result of any claims, actions,or demands by a third party legally asserting that Licensee's licensed use of Software or Online Services infringe a US patent,copyright,or trademark,provided: a. Licensee promptly notifies Azteca Systems in writing of the claim; b. Licensee provides documents describing the allegations of infringement; c. Azteca Systems has sole control of the defense of any action and negotiation related to the defense or settlement of any claim; d. Licensee reasonably cooperates in the defense of the claim at Azteca Systems'request and expense; and. e. Licensee and its employees are not in violation of the terms of this agreement. 8.2 If Software or Online Services are found to infringe a US patent,copyright,or trademark,Azteca Systems,at its own expense,may either(i)obtain rights for Licensee to continue using the Software or Online Services or(ii) modify the allegedly infringing elements of Software or Online Services while maintaining substantially similar functionality.If neither alternative is commercially reasonable,the license shall terminate,and Licensee shall cease accessing infringing Online Services and shall uninstall and return to Azteca Systems any infringing item(s). Azteca Systems entire liability shall then be to indemnify Licensee pursuant to Section 8.1and refund the unused portion of fees paid,prorated for the current maintenance period. 8.3 Azteca Systems shall have no obligation to defend Licensee or to pay any resultant costs,damages,or attorneys'fees for any claims or demands alleging direct or contributory infringement to the extent arising out of (i)the combination or integration of Software or Online Services with a product,process,or system not supplied by Azteca Systems or specified by Azteca Systems in its Documentation;(ii)material alteration of Software or Online Services by anyone other than Azteca Systems or its subcontractors;or(iii)use of Software or Online Services after modifications have been provided by Azteca Systems for avoiding infringement or use after a return is ordered by Azteca Systems under Section 8.2. 8.4 THE FOREGOING STATES THE ENTIRE OBLIGATION OF AZTECA SYSTEMS WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPER'L'Y RIGHTS OF ANY THIRD PARTY. ARTICLE 9—GENERAL PROVISIONS 9.1 Future Updates.New or updated Products and subscription renewals will be licensed under the then-current Azteca Systems license ten-ns and conditions included with the deliverable Products. 9.2 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export,re- export,import,transfer,or release Products,in whole or in part,to(i)any US embargoed country;(ii)any person ` on the US Treasury Department's list of Specially Designated Nationals;(iii)any person or entity on the US Master License&Maintenance Agreement Page 6 of 14 1/1/15 ed. Commerce Department's Denied Persons List,Entity List,or Unverified List;or(iv)any person or entity or into any country where such export,re-export,or import violates any US,local,or other applicable import/export control laws or regulations including,but not limited to,the terms of any import/export license or license exemption and any amendments and supplemental additions to those import/export laws as they may occur from time to time. 9.3 Taxes and Fees,Shipping Charges.License fees quoted to Licensee are exclusive of any and all taxes or fees, including,but not limited to,sales tax,use tax,value-added tax(VAT),customs,duties,or tariffs,and shipping and handling charges. • 9.4 No Implied Waivers.The failure of either party to enforce any provision of this License Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. 9.5 Severability.The parties agree that if any provision of this License Agreement is held to be unenforceable for any reason,the remaining terms and conditions of this License Agreement shall remain in full force and effect. The parties further agree that in such event,the affected provision(s)shall be reformed only to the extent necessary to make the intent of the language enforceable. 9.6 Successor and Assigns. Licensee shall not assign,sublicense,or transfer Licensee's rights or delegate Licensee's obligations under this License Agreement without Azteca Systems'prior written consent,and any attempt to do so without consent shall be void.This License Agreement shall be binding on the respective successors and assigns of the parties to this License Agreement. Notwithstanding.a government contractor under contract to the government to deliver Products may assign this License Agreement and Products acquired for delivery to its government customer upon written notice to Azteca Systems,provided the government customer assents to the terms of this License Agreement. 9.7 Survival of Terms.The provisions of Articles 2,5,6,7,8,and 9 of this License Agreement,and the provisions of section 5 of Addendum 2,shall survive the expiration or termination of this License Agreement. 9.8 Equitable Relief.Licensee agrees that any breach of this License Agreement by Licensee may cause irreparable damage and that,in the event of such breach,in addition to any and all remedies at law,Azteca Systems shall have the right to seek an injunction,specific performance,or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition for relief. 9.9 US Government Licensee.The Products are commercial items,developed at private expense,provided to Licensee under this License Agreement. if Licensee is a US government entity or US government contractor. Azteca Systems licenses Products to Licensee in accordance with this License Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202.Azteca Systems Data and Online Services are licensed under the same subpart 227.7202 policy as commercial computer software for acquisitions made under DFARS.The commercial license rights in this License Agreement strictly govern Licensee's use,reproduction,or disclosure of Products.Azteca Systems Software source code is unpublished,and all rights to Products are reserved by Azteca Systems and its licensors. Licensee may transfer Software to any licensed government procuring agency facility to which computer(s)on which Software is installed are transferred. If any court,arbitrator.or board holds that Licensee has greater rights to any portion of Products under applicable public procurement law,such rights shall extend only to the portions affected. 9.10 Governing Law,Arbitration a. Licensees in the United States of America, Its Territories, and Outlying Areas.This License Agreement shall be governed by and construed in accordance with the laws of the State of Washington without reference to conflict of laws principles.except that US federal law shall govern in matters of intellectual property. Except as provided in Section 9.8, any dispute arising out of or relating to this License Agreement or the breach thereof shall be resolved in the following order: • Consultation and negotiation in good faith and a spirit of mutual cooperation; • Mediation,by a mutually acceptable mediator chosen by the parties,which cost is shared equally: • If the matter cannot be settled through negotiation or mediation,then it shall he finally settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Master License&Maintenance Agreement Page 7 of 14 1/1/15 ed. Rules.Judgment on the award rendered by the arbitrator may be entered in a court of competent jurisdiction. If Licensee is a US government agency,this License Agreement is subject to the Contract Disputes Act of 1978,as amended(41 USC 601-613),in lieu of the arbitration provisions of this clause.This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods,the application of which is expressly excluded. b. All Other Licensees. Except as provided in Section 9.8,any dispute arising out of or relating to this License Agreement or the breach thereof that cannot be settled through negotiation shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one(1)arbitrator appointed in accordance with said rules.The language of the arbitration shall be English.The place of the arbitration shall be at an agreed-upon location.This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods,the application of which is expressly excluded. Either party shall,at the request of the other,make available documents or witnesses relevant to the major aspects of the dispute. 9.11 Maintenance. Maintenance for qualifying Software or Data consists of updates and other benefits,such as access to technical support,specified in Azteca Systems'or its distributor's current applicable maintenance policy,as specified in Addendum#2,Maintenance Agreement& Software Term of Use. 9.12 Feedback.Azteca Systems may freely use any feedback,suggestions,or requests for Product improvements that Licensee provides to Azteca Systems. Regardless of the source of any feedback or suggestions,any improvements to Cityworks Software or Products,and any related intellectual property,are owned by Azteca Systems. 9.13 Patents.Licensee may not seek,and may not permit any other user to seek,a patent or similar right worldwide that is based on or incorporates any Azteca Systems technology or services.This express prohibition on patenting shall not apply to Licensee's software and technology except to the extent that Azteca Systems technology or services,or any portion thereof,are a part of any claim or preferred embodiment in a patent application or a similar application. 9.14 Entire Agreement.This License Agreement,including its incorporated documents,addendums,and exhibits constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous license agreements,understandings,and arrangements between the parties relating to such subject matter.Additional or conflicting terms set forth in any purchase orders,invoices,or other standard form documents exchanged during the ordering process,other than product descriptions,quantities,pricing,and delivery instructions,are void and of no effect. Any modification(s)or amendment(s)to this License Agreement must be in writing and signed by each party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective authorized representatives. AZTECA SYSTEMS, INC. City of Renton,WA By: By: ter .. Name: George Mastakas Name: Denis Law .‘AE.NT0 Title: VP, Enterprise Solutions :' O Title: Mayor Date: 04/23/2015 =-U' e. / ti/ est: Jaso A. Set , City Clerk Master License&Maintenance Agreement p'ag'e'8 of 14 1/1/15 ed. ADDENDUM #1. PRODUCT LICENSING—SOFTWARE USE TO THE MASTER SOFTWARE LICENSE AND MAINTENANCE AGREEMENT Licensed Software: Cityworks Server AMS Standard Enterprise License: Unlimited licenses of Cityworks Server AMS,Local Government Templates (LGT), Storeroom,_Equipment Manager, Micropaver Interface, CCTV Interface, Contracts,Cityworks Analytics, the use of the API's for 3rd party Cityworks-centric applications, and Server AMS Mobile Apps for iOS and Android. Additional Software Licenses: Additional Software licenses may be licensed and amended to this License Agreement with acknowledgement of an official Cityworks quote signed by Licensee and additional fees,if necessary,paid. Additional Software Initial Master License& Maintenance Agreement Page 9 of 14 1/1/15 ed. ADDENDUM 2 MAINTENANCE AGREEMENT & SOFTWARE TERMS OF USE This Standard Maintenance Agreement is between the Licensee named below"Licensee"and Azteca, Systems. inc. Maintenance provided herein consists of technical support,new version software,hot fixes,patches,and software updates. Maintenance is provided subject to the terms and conditions of the signed License Agreement and which is incorporated by reference. 1. MAINTENANCE: Azteca Systems will provide update and maintenance support services to Licensee for the times and periods and amounts specified in section 7.3 below. Maintenance support services consists of updates to Software Cityworks and Related Materials,documentation updates and access to telephone support,email support,web support,and other benefits deemed appropriate by Azteca Systems as provided for in the Maintenance Agreement. Ll. The services to be provided during the Maintenance Period include Azteca Systems Product Updates to Azteca System's Cityworks applications including Program Fixes,Program Upgrades and Program Modifications(not Custom Applications). Azteca Systems will ensure upward compatibility for the Software applications within a reasonable timeframe for minor and major ESRI®ArcGIS and Cityworks supported databases revisions. If identified as"Covered Software,"Azteca Systems will ensure upward compatibility within a reasonable timeframe for Custom Applications when there are minor ArcGIS and Cityworks supported databases revisions(for example, from rev 10.1 to rev 10.2). Azteca Systems will not ensure upward compatibility for Custom Applications when there are major ESRI ArcGIS and Cityworks supported databases revisions(for example, from rev 10.x to rev 11.x), Azteca Systems will make all reasonable efforts to provide upward compatibility. 1 2. Azteca Systems shall,without additional charge(except as allowed for in paragraph 3.4,during the term of this Support Agreement: (a) Without limiting any other obligation hereunder,make all reasonable efforts to provide those Program Fixes,if any,that are necessary to assure the Covered Software is functioning properly; provided Licensee provides Azteca Systems with written notice specifying particularity in narrative,non-technical tents to the best of Licensees' staffs ability the apparent error in the system and the manner in which the Software is not functioning properly(as provided in Section 2 of this Addendum);and (b) Deliver to Licensee any Program Upgrades relating to the Covered Software made available to others. (c) Provide Telephone Support,Email Support, Web Support,during normal business hours, 8 AM to 5 PM Mountain Time. Monday through Friday(excepting Holidays)and after hour emergency support line, and other benefits deemed appropriate by Azteca Systems(as set forth in Section 2 below). (d) implement and maintain a means of secure,remote direct network access(VPN, Web-access,dial- up,etc.)to the Licensee's systems in order to perform thorough remote diagnostics and effect remote repairs,upgrades,and fixes. 1.3. The following items,among others,however,are specifically excluded as support services under this section of this Maintenance Agreement: (a) interpretation of program results, including but not limited to support for applying or installing upgrades and service packs; (b) Assistance with questions related to computer hardware and peripherals that are not related to the use of the Covered Software; (c) Assistance with computer operating system questions not directly pertinent to the Covered Software or Program Modifications; (d) Data debugging and/or correcting; (e) Services necessitated as a result of any cause other than authorized ordinary and proper use by Master License&Maintenance Agreement Page 10 of 14 1/1/15 ed. the Licensee of the Covered Software,including but not limited to neglect,abuse, unauthorized modification, unauthorized updates or electrical, fire,water or other damage;and (f) Consulting regarding Custom Applications created to function with the Covered Software unless the Custom Application is identified and listed as Covered Software in Addendum 1. 1.4. Support Periods are renewable unless terminated as provided in Section 4 below. The Maintenance Services consists of software and documentation updates and access to technical support via telephone. email, web-based(MyCityworks.com)and after hours support as set forth in Section 1 of this addendum.The Licensee will provide Azteca Systems in writing the names of the users or individuals who are authorized to contact Azteca Systems and request support services if necessary. 2. PROCEDURES FOR ACCESSING SUPPORT: 2.1. All problem categories from routine, non-critical and critical that occur during normal business hours shall procedurally occur as follows: 1) Licensee's system administration staff as first line of support,and then 2) Azteca Systems staff as the second line of support. Azteca Systems will make all reasonable efforts to acknowledge all requests for support during normal business hours within 4 hours. 2.2. Prior to calling Azteca Systems for support services,the Licensee will first attempt to isolate any problems that occur with the System.The Licensee will try to reduce the problem down to a specific software or system component. If it is determined that the problem is The Cityworks Software component, Licensee will first try and resolve the problem without Azteca Systems' involvement. If the Licensee cannot resolve the problem or isolate the problem, Licensee will call Azteca Systems directly. 23. For critical problems that occur outside of Azteca Systems' normal business hours(8 AM to 5 PM, Mountain Time)and cannot be isolated and resolved by the Licensee, Azteca Systems will provide an after- hours phone number or pager number that will forward the call or page to the currently assigned Azteca Systems support staff Azteca Systems will make all reasonable efforts to acknowledge and respond to the request for support for critical problems that occur outside of normal business hours within 4 hours of receipt of the call from a designated and authorized Licensee representative. Critical problems are defined as problems that cause several users to be unable to perform their duties. Depending upon the type of problem,Azteca Systems support staff may need to be sent from Azteca Systems offices to the Licensee location. Azteca Systems project management will confer with Licensee's representative or project management before making this decision. The speed at which remote Azteca Systems staff can respond may be limited by the driving,time or the airline flights that are available. The Licensee will reimburse Azteca Systems for all reasonable and customary travel expenses associated with resolving the problem(pursuant to the provisions of paragraph 3.4). For routine and non-critical problems Licensee will submit support requests during normal business hours. 2.4. For all problems involving The Cityworks Software component that are resolved without Azteca Systems' involvement,the Licensee will document the problem and the resolution and send a report to Azteca Systems so that it can be tracked,monitored,and historically recorded 3. CHARGES/FEES 3.1. For services hereunder, Licensee shall pay Azteca Systems an annual fee Maintenance Fees as set forth in paragraph 7.3 below. The annual fee for each period is set forth in paragraph 7.3,and shall be paid prior to the start for each Maintenance Period unless otherwise specified. The annual fee for successive Maintenance Periods(twelve-month periods)commencing upon the anniversary of the first maintenance period,shall become due prior to the end of the preceding paid-up Maintenance Period. 3./. Upon 90 days written notice, the fee for Maintenance Periods listed in section 7.3 subsequent to year three(3)of the Maintenance Period,may be adjusted by Azteca Systems to reflect increases in costs of providing the services;provided,however,that the fee shall not increase by more than the CPI from the Master License&Maintenance Agreement Page 11 of 14 1/1/15 ed. previous annual fee. Azteca Systems will notify Licensee of the new pricing no later than 90 days prior to the annual renewal date of the year preceding the year for which such adjusted pricing applies. 3.3. In addition to charges due under this Support Agreement, Licensee shall pay amounts equal to any sales tax,duties,or other consumption taxes,however designated,which are levied or based upon such charges, or upon this Maintenance Agreement. 3.4. Azteca will use all reasonable efforts to utilize remote support-type services. However, in the event Licensee and Azteca Systems agree it becomes necessary for Azteca Systems to be on-site to provide support for the Covered Software, Licensee will reimburse Azteca Systems for reasonable and customary travel expenses directly related to the on-site work. As the result of mutual negotiation by the parties,Azteca Systems shall provide a lump sum estimate and get the prior approval of Licensee before incurring any costs for which it shall seek reimbursement from Licensee under this Section. The speed at which remote Azteca Systems staff can respond may be limited by the driving time or the airline flights that are available. Licensee shall have the right to request an audit of any such cost related records of Azteca Systems to the extent reimbursement has been made by Licensee under the terms of this Section. 4. TERM AND TERMINATION: 4.1. The initial term of this Maintenance and Support Agreement will begin upon the effective date set forth in section 7.2 below,and continue for twelve(12)consecutive months at the rate of fee(s)as noted in section 7.3 below. Thereafter, Licensee may continue maintenance as set forth in the table below and beyond at the then-current amount. 4.2. Termination for convenience: Either party may terminate this maintenance agreement by giving the other party thirty(30)days' notice prior to the end of the current maintenance period. 4.3. In the event that either funding from Licensee or other sources is withdrawn,reduced,or limited,or the authority of Licensee to perform any of its duties is withdrawn,reduced,or limited in any way after the Effective Date of this Agreement and prior to normal completion,the parties shall have the authority to exercise the Termination for Convenience option to terminate this Agreement, in whole or in part. If a party to this Agreement chooses to terminate for convenience that party may do so by thirty(30)days' written notice to the other party. 4.4. If this Agreement is terminated for convenience,the Licensee is only liable for payment required by the terms of this Agreement for services rendered or software received and accepted prior to the Effective Date of termination. 5. WARRANTY,DISCLAIMER REMEDY,AND LIMITATION OF LIABILITY 5.1. Azteca Systems warrants that all technical support provided pursuant to this Maintenance Agreement shall be performed in a professional and workmanlike manner. Azteca Systems will use commercially reasonable efforts to provide corrections to a technical issue or provide a workaround,but Azteca Systems cannot guarantee that all technical issues can be fixed or resolved. 5.2. With respect to the services provided hereunder and to the extent permitted by applicable law,this warranty is in lieu of all other warranties,whether written or oral,express or implied, including without limiting the generality of the foregoing,any warranty of non-infringement,merchantability or fitness for a particular purpose. 5.3. EXCEPT FOR THE ABOVE EXPRESS LiMITED WARRANTY,AZTECA SYSTEMS DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND,EITHER EXPRESS OR IMPLIED, Master License&Maintenance Agreement Page 12 of 14 1/1/15 ed. INCLUDING, BUT NOT LIMITED TO,THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,NONINTERFERENCE,SYSTEM INTEGRATION,AND NON-INFRINGEMENT. AZTECA SYSTEMS DOES NOT WARRANT AND DISCLAIMS THAT MAINTENANCE OR ANY SERVICES PROVIDED HEREUNDER WILL MEET LICENSEE'S NEEDS' THAT LICENSEE'S OPERATION WILL BE UNINTERRUPTED,ERROR FREE, FAULT TOLERANT,OR FAILURE-SAFE;OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED. 5.4. Remedy. If Azteca Systems fails to fulfill its obligations under this maintenance addendum, Licensee's sole and exclusive remedy is the right to terminate this maintenance agreement immediately for the affected and listed Products and receive a refund of the unused portion of maintenance fees paid under this maintenance agreement,prorated for the current maintenance period. 5.5. Limitation of Liability. IN NO EVENT SHALL AZTECA SYSTEMS BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS;COMMITMENTS IN CONNECTION WITH ANY BUSINESS; LOSS OF ANY GOODWILL;OR FOR ANY INDIRECT, SPECIAL INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS STANDARD MAINTENANCE AGREEMENT OR USE OF QUALIFYING PRODUCTS, HOWEVER CAUSED,ON ANY THEORY OF LIABILITY,AND WHETHER OR NOT AZTECA SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. 6. MISCELLANEOUS 6.1. Azteca Systems shall not be in default under this Agreement for its failure to perform or its delay in performing any obligation under this Maintenance Agreement(other than the reimbursement of fees as set forth in section 8.2 of the License agreement,during any period of time during which such delay is due to fire, flood. earthquake,strike, labor trouble or other industrial disturbance,war(declared or undeclared),embargo. blockage, legal prohibition or governmental action,riot, insurrection,damage,destruction or any other cause beyond the control of Azteca Systems or any of its contractors preventing or delaying the performance of such obligation, provided that such obligation shall be performed immediately upon the termination of such cause preventing or delaying such performance;and provided further that the sole effect of any delay by Azteca Systems shall be a related delay in payment by the Licensee pursuant to the relevant schedule. 6.2. Notices: Until further written notice,all payments and notices relevant to this Agreement shall be sent to the following addresses: Azteca Systems: Azteca Systems, Inc. 11075 South State Street. Suite 24 Sandy, UT 84070 Licensee The address set forth in section 7.1 below. 6.3. Negotiated Agreement: This Agreement is intended to be a master agreement for licensing.This Agreement is a negotiated agreement between the parties and supersedes and replaces any and all other standard terms of either party set forth in any quote,purchase order, invoice or communication and applies so long as this Agreement remains in effect. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises,this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal,state, local,or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated there under, unless the context requires otherwise. Master License&Maintenance Agreement Page 13 of 14 1/1/15 ed. 6.4. Applicable Laws: This maintenance agreement is governed by and construed in accordance with the laws of the state identified in the License Agreement without reference to conflict-of-laws principles except that US federal law shall govern in matters of intellectual property. 6.5. Data Confidentiality Statement: Azteca Systems will take reasonable measures to ensure that any Licensee data and/or confidential information provided to Azteca Systems is not inappropriately accessed or distributed to any third-party. Data provided to Azteca Systems by the Licensee may be loaded onto Azteca Systems servers or employee computers for the purpose of testing The Software Cityworks,database structure, or database values,and related ESRIO software to resolve database or software performance issues,software enhancements and software defects. At no time will the data be distributed to individuals or organizations who are not Azteca Systems employees without first receiving written approval from Licensee. if requested by the Licensee,and once the testing has been completed,Azteca Systems will delete all data provided by the Licensee. 6.6. No Implied Waivers: No failure or delay by Azteca Systems or Licensee in enforcing any right or remedy under this Agreement shall be construed as a waiver of any future or other exercise of such right or remedy by Azteca Systems 7. IDENTIFICATION AND AMOUNTS 7.1. Licensee Information Licensee Name: City of Renton, WA License Contact: Tim Moore Number and Street 1055 South Grady Way City/State/Zip/Country Renton, WA 98057 Phone 425-430-6881 Email tmoore@rentonwa.gov 7.2. Delivery Date/Effective Date M.M/DD/YYYY 04/13/2015 7.3. Schedule of payments and Fees under Maintenance Agreement Payments Support Period Dates Amount From/To(mm/dd/yy) Pmt#1 04/13/2015-07/12/201.5 $10,000.00 (temporary license is granted upon authorization to invoice) Pmt#2 07/13/2015-04/12/2016 $30,000.00 (temporary license is converted to a standard license upon authorization to invoice) Pmt#3 04/13/2016-04/12/2017 $60,000.00 Pmt#4 04/13/2017-04/12/2018 $60,000.00 Pmt#5 04/13/2018-04/12/2019 $60,000.00 7.4. lAdditionall Master License&Maintenance Agreement Page 14 of 14 1/1/15 ed.