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2 3 4 6 8 CITY SECRETARY
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"NR 26 201a SOFTWARE LICENCE AGREEMENT
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IMPORTANT-READ CAREFULLY: This Software Licence Agreement ("Licence") is
.�� a legal agreement between you (either an individual or a single legal entity, who
will be referred to in this License as ("the Licensee"), and the Institute of
Environmental Science and Research Limited of New Zealand ("the Licensor") for
the STRmixT"" software ("the Software") that accompanies this License, which 4
includes computer software and may include associated media, printed materials,
and "online" or electronic documentation. The Software also includes any
software updates, add-on components, templates, images, symbols, web services
and/or supplementary documentation that the Licensor may provide or make
available to the Licensee, or that the Licensee obtains from the use of features or
functionality of the Software, after the date the Licensee obtains the initial copy of
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the Software (whether by delivery of a CD, permitted downloading from the
Internet or a dedicated web site, or otherwise) to the extent that such items are
not accompanied by a separate license agreement or terms of use. By installing,
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copying, downloading, accessing or otherwise using the Software, the Licensee
agrees to be bound by the terms of this Agreement. The terms of this Agreement
may be changed from time to time by the Licensor publishing additional or
replacement terms on the Licensor's website.
RECITALS:
A. The Licensor is the owner of and has the right to license the Software and the
Materials.
B. The Licensee wishes to use the Software and the Materials.
C. The Licensor has agreed to license the Software and the Materials to the Licensee
and the Licensee accepts the licence on the following terms and conditions.
1. LICENCE
1.1. Subject to the provisions of this Agreement, the Licensor grants a non-exclusive,
non-transferable, non-revocable Object Code licence to the Licensee to Use the
Software and Materials.
1.2. The Licensee may not assign the Licence. .,.
1.3. The Licensee may not sublicense the Licence. LOFF,10AIL RECORD
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1.4. The Licensee is not permitted to modify the Object Code.
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1.5. The Licensee is not permitted to reverse engineer, reverse assemble or reverse
compile or otherwise endeavour to obtain the Source Code from the Object Code.
1.6. The Licensee is limited to Use of the Software on the number of computers for
which the Licence Fee has been paid. If the Licensee wishes to Use the Software
over this limit, the Licensee agrees to purchase additional licences from the
Licensor or its Authorised Distributor.
1.7. The Licensee shall limit the use of the Software to its authorised employees or
other authorised persons who have been appropriately trained.
1.8. The Licensor or its Authorised Distributor will make training for the Software
available to Licensee pursuant to its standard training procedures. Training in use
of the Software is not included in the Licence Fee.
1.9. The Licensor agrees to use reasonable commercial endeavours to provide support
and maintenance services for the Software. Support and maintenance services
for the Software are not included in the Licence Fee.
2. TERM OF LICENCE
2.1. The parties acknowledge that the Licence is perpetual as set out in Clause 1.1.
3. LICENCE FEE
3.1. The Licensee must pay the Licence Fee to the Licensor or its Authorised Distributor
prior to using the Software.
3.2. The Licensee is not obliged to pay any fee due unless it has received an Invoice
from the Licensor or its Authorised Distributor.
3.3. The License Fee is exclusive of all taxes.
4. INTELLECTUAL PROPERTY
4.1. The Licensee acknowledges and agrees that the Licensor is and will remain the
owner of all Intellectual Property Rights in the Software and the Materials.
4.2. The Licensee must not alter, remove or obscure any trade mark or copyright
symbol or legend or other proprietary mark on the Software and the Materials.
5. CONFIDENTIAL INFORMATION
5.1. The Licensee acknowledges and agrees that the Software and the Materials
contain Confidential Information belonging to the Licensor.
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5.2. The Licensee agrees to disclose the Software and Materials only to its employees
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and contractors who need to access such information so that the Licensee can a
exercise its rights and obligations under this Agreement.
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5.3. The Licensee undertakes to obtain signed deeds of confidentiality from any
contractor who needs access to the Software and Materials.
6. LICENSOR REPRESENTATIONS AND WARRANTIES
6.1. The Licensor represents and warrants that it has the right to license the Software x
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and the Materials to the Licensee.
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6.2. The Licensor represents and warrants that the Licensee's Use of the Software and
the Materials, in accordance with this Agreement, will not infringe the rights
including Intellectual Property Rights of any third party.
6.3. To the fullest extent permitted by law, the Licensor expressly disclaims all implied
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warranties and conditions including without limitation implied warranties as to
merchantability and fitness for purpose of the Software and Materials.
6.4. Notwithstanding the foregoing the Licensor has used its best endeavours to ensure
the Software and Materials, when used correctly, will produce accurate, reliable
results and measurements and generate consistent results accepted generally as
reliable within the relevant scientific community.
7. LICENSEE OBLIGATIONS AND ACKNOWLEDGEMENTS
7.1. The Licensee acknowledges that it has not relied upon any representation made
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by the Licensor other than as set out in this Agreement.
7.2. The Licensee is not permitted to sell, charge, mortgage or otherwise encumber the
Software and/or the Materials in any way.
7.3. The Licensee is solely responsible for the use, supervision, management and
control of the Software and the Materials.
7.4. The Licensee acknowledges it is responsible for checking outputs from the
Software and if any issue is identified, undertakes to notify the Licensor of the issue
as soon as reasonably practicable.
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7.5. The Licensee agrees to use the Software only in accordance with the terms set
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out in the Agreement.
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7.6. The Licensee will ensure that the Software and Materials are at all times protected
from access, use or misuse and damage and destruction by any person not
authorised by either the Licensor or the Licensee, and the Licensee will notify the
Licensor immediately if it becomes aware of any unauthorised use of the Software
and/or Materials.
7.7. The Licensee acknowledges that it has no Intellectual Property Rights in the
Software and/or the Materials.
7.8. The Licensee acknowledges that the Licensor gives no guarantee as to the
accuracy or completeness of the Software and the Materials or that they are free
from error.
7.9. The Licensee agrees to install updates to the Software as soon as reasonably
practicable after they are made available by the Licensor.
7.10. The Licensee acknowledges that the Licensor is not contracted under this
Agreement to install or provide acceptance testing of the Software.
8. LIMITATION OF LIABILITY
8.1. To the extent that under applicable law any liability of the Licensor cannot be
excluded, the Licensor's liability is limited to replacing the Software and/or
Materials.
8.2. To the fullest extent permitted by law, the Licensor excludes all liability for (a)
indirect and consequential loss; and (b) the loss or corruption of the Software, loss
of revenue, loss of profits, failure to realise expected profits or savings and any
other commercial or economic loss of any kind arising from this Agreement.
9. INDEMNITY
9.1. The Licensor indemnifies and holds harmless the Licensee from and against any
loss, liability, cost or expense that the Licensee suffers directly or indirectly
because of an Intellectual Property Rights and/or moral rights claim in the Software
and/or the Materials.
9.2. To the extent permitted by Texas law, Licensee indemnifies and holds harmless
the Licensor and promises to keep the Licensor indemnified against any loss,
claim, action, settlement, award,judgment, expense or damage of whatsoever kind
or nature and howsoever arising that the Licensor suffers as a result of any
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unauthorized use or use that is inconsistent with training and user manuals =
provided to the Licensee of the Software and/or Materials by the Licensee, without,
however, waiving any governmental immunity or other defenses available to the
parties under Texas Law. Nothing herein shall be construed as to require the
Licensee to establish a sinking fund.
10. SOURCE CODE IN ESCROW
10.1. The parties agree that source code is not required to be placed in escrow.
11. TERMINATION
11.1. Where the Licensee fails to perform any of its obligations set out in this Agreement,
the Licensor reserves the right to immediately terminate the Licence with Notice to
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the Licensee.
11.2. Subject to the following clause, on termination the parties agree that all rights
granted to the Licensee under this Agreement will cease immediately and the K
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Licensee will return all Software and Materials provided under this Agreement. If r
requested by the Licensor, the Licensee will provide Notice to the Licensor stating K
that the Confidential Information, Software and Materials have been returned,
destroyed or otherwise dealt with as the case may be as directed by the Licensor.
11.3. Following termination, the parties agree that the relevant provisions set out in
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Clauses 5 (Confidential Information), 6 (Licensor Representations and
Warranties), 7 (Licensee Obligations and Acknowledgements), 8 (Limitation of
Liability) and 9 (Indemnity) will continue to be binding.
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12. NOTICES
12.1. Any notice given pursuant to this Agreement must be in writing in English, signed
by an officer of the sender, addressed to the recipient's place of business or email
address.
13. DISPUTE ARBITRATION AND RESOLUTION
13.1. If any dispute or difference arises in connection with this Agreement, then each
party will negotiate in good faith, using their best endeavours to resolve the dispute
or difference in accordance with this clause before starting arbitration or court
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proceedings (except proceedings for interlocutory or injunctive relief). g
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14. GENERAL PROVISIONS
14.1. (Law and Jurisdiction) This Agreement will be governed in all respects, by and
construed in accordance with the laws of New Zealand.
14.2. If the laws of New Zealand are expressly determined not to be applicable to this
Agreement by a court of competent jurisdiction, then the applicable law will be the
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law of the jurisdiction of where the Licensee purchased the licence and the I
jurisdiction of such court shall be non-exclusive.
14.3. Notwithstanding the above, either party shall have the right to commence and
prosecute any legal or equitable action or proceeding before any court of
competent jurisdiction to obtain injunctive or other relief against the other party in
the event that such action is necessary or desirable.
14.4. (Relationship) Nothing in this Agreement will constitute or be deemed to
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constitute a partnership, joint venture or agency between the parties.
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14.5. (Entire Agreement) The terms of this Agreement constitute the entire terms of
this Agreement and all understandings, prior representations, arrangements or
commitments that are not contained in this Agreement have no effect whatsoever
and do not bind the parties.
14.6. (Waiver): No waiver of any right or remedy will be effective unless in writing and
shall not operate as a waiver of that right or remedy or any other right or remedy
on a future occasion.
14.7. (Implied Terms): Any implied term under law that can be excluded is hereby
expressly excluded and no term is to be implied as being a term of this Agreement r
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unless by law it cannot be excluded.
15. INTERPRETATION
15.1. Definitions }
"Agreement" means this software licence agreement and any amendments in writing.
"Authorised Distributor" means an organisation or person appointed by the Licensor
to market, sell, distribute, install and provide technical support for the Software.
"Confidential Information" means all information in whatsoever form that is:
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(a) marked or identified as "Confidential", "Secret", "Not to be Disclosed" or"Private"; l
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(b) is designated, described or referred to by the discloser in any document or
correspondence as confidential, secret or private or not to be disclosed;
(c) the receiving party knows or ought to know is confidential;
but does not include any information which prior to the date of this Agreement was lawfully
in the public domain or which the discloser has published, circulated or announced
publicly.
"Invoice" means an invoice that is compliant with the laws of the jurisdiction in which it is
issued and includes all goods and services, sales and other taxes, federal, state, or
otherwise, however designated.
"Intellectual Property Rights" means all rights in copyright, circuit layout, designs,
trademarks, patents and all other rights in intellectual property as defined in Article 2 of
the World Intellectual Property Organisation (WIPO) Convention whether registrable,
registered, patentable or not.
"Licence" means the software licence granted by the Licensor to the Licensee in Clause
1.
"Licence Fee" means the fee payable under Clause 3.1.
"Materials" means the documentation provided by the Licensor to the Licensee including
the operating manuals and other material relating to the Software and includes updates
to those materials.
"Object Code" means the code produced by a compiler from the Source Code in
machine readable form that a computer can execute directly.
"Software" means the computer program/s provided by the Licensor or its Authorised
Distributor and includes any updates provided by the Licensor during the term of this
Agreement.
"Source Code" means the collection of computer instructions written using a human-
readable computer language that is subsequently converted into Object Code.
"Use" means use/load, run.
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ADDENDUM TO SOFTWARE LICENSE AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
INSTITUTE OF ENVIRONMENTAL SCIENCE AND RESEARCH LIMITED OF NEW
ZEALAND
This Addendum to Software License Agreement ("Addendum") is entered into by and
between the Institute of Environmental Science and Research Limited of New Zealand
("Licensor") and the City of Fort Worth ("City"), collectively the "parties", for a purchase
of licenses.
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The Contract documents shall include the following:
1. The Software License Agreement; and
2. This Addendum.
Notwithstanding any language to the contrary in the attached Software License
Agreement (the "Agreement"), the Parties hereby stipulate by evidence of execution of
this Addendum below by a representative of each party duly authorized to bind the
parties hereto, that the parties hereby agree that the provisions in this Addendum below
shall be applicable to the Agreement as follows:
1. Term. The Agreement shall commence upon the signing of the Agreement and
shall expire three years after signing the Agreement, unless terminated earlier in
accordance with the provisions of the Agreement or otherwise extended by the parties.
The Agreement may be renewed for number of renewals at City's option, each a
"Renewal Term." City shall provide Licensor with written notice of its intent to renew at
least thirty (30) days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Licensor may terminate the Agreement at any time
and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the non-
breaching Party must give written notice to the breaching party that describes the r
breach in reasonable detail. The breaching party must cure the breach ten (10) calendar
days after receipt of notice from the non-breaching party, or other time frame as agreed
to by the parties. If the breaching party fails to cure the breach within the stated period
of time, the non-breaching party may, in its sole discretion, and without prejudice to any
other right under the Agreement, law, or equity, immediately terminate this Agreement r
by giving written notice to the breaching party.
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C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated
by City in any fiscal period for any payments due hereunder, City will notify Licensor of
such occurrence and the Agreement shall terminate on the last day of the fiscal period
for which appropriations were received without penalty or expense to the City of any
kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Licensor for services actually
rendered up to the effective date of termination and Licensor shall continue to provide
City with services requested by City and in accordance with the Agreement up to the
effective date of termination. Upon termination of the Agreement for any reason, I
Licensor shall provide City with copies of all completed or partially completed
documents prepared under the Agreement. In the event Licensor has received access
to City information or data as a requirement to perform services hereunder, Licensor
shall return all City provided data to City in a machine readable format or other format
deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or
penalties or liquidated damages in any amount, City objects to these terms and any
such terms are hereby deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed in accordance with the laws of the United
States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit
brought under the Agreement shall be in a court of competent jurisdiction in Tarrant
County, Texas. To the extent the Agreement is required to be governed by any state
law other than Texas or venue in Tarrant County, City objects to such terms and any
such terms are hereby deleted from the Agreement and shall have no force or effect.
5. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as
a government entity; such provisions are hereby deleted and shall have no force or
effect.
6. OMITTED
7. OMITTED.
8. OMITTED
9. Data Security. The Parties acknowledge and agree that City's use of firewalls,
individual user ID's and passwords and other computer security measures constitute
an acceptable level of security" and "adequate security measures."
10. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the
availability of funds. If such funds are not appropriated or become unavailable, City shall
have the right to terminate the Agreement except for those portions of funds which have
been appropriated prior to termination.
11. Confidential Information. City is a government entity under the laws of the State
of Texas and all documents held or maintained by City are subject to disclosure under
the Texas Public Information Act. To the extent the Agreement requires that City
maintain records in violation of the Act, City hereby objects to such provisions and such
provisions are hereby deleted from the Agreement and shall have no force or effect. In
the event there is a request for information marked Confidential or Proprietary, City shall
promptly notify Licensor. It will be the responsibility of Licensor to submit reasons
objecting to disclosure. A determination on whether such reasons are sufficient will not
be decided by City, but by the Office of the Attorney General of the State of Texas or by
a court of competent jurisdiction.
12. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule,
regulation or ordinance of City, the terms in this Addendum shall control.
13. OMITTED
14. OMITTED
15. Right to Audit. Licensor agrees that City shall, until the expiration of three (3)
years after final payment under the Agreement, have access to and the right to examine
any directly pertinent books, documents, papers and records of Licensor involving
transactions relating to the Agreement. Licensor agrees that City shall have access
during normal working hours to all necessary Licensor facilities and shall be provided
adequate and appropriate workspace in order to conduct audits in compliance with the
provisions of this section. City shall give Licensor reasonable advance notice of
intended audits.
(signature page follows)
ACCEPTED AND AGREED:
CITY OF FORT WORTH: INSTITUTE OF ENVIRONMENTAL
SCIENCE AND RESEARCH LIMITED OF
NEW ZEALAN .
By: By:
Name: Jay Chapa Name: L/c
Assistant City Manager Title: ,ewe A, A.,,-R.
CoAlo-li-RbAc -L7N aDZVA77OV4L.
Date: �'�� � Date: 23,tn N/AkCH 2018
APPROVAL RECOMMENDED: ATTEST:
By:� By:
I Nam : Joel Fitzgerald, PhD
Title: Chief of Police Title: S jnrl� r lYlf}jUt �-��
ATTEST: F FOR
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By:
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CONTRACT COMPLIANC R'.'' '♦ '~
By signing I acknowledge that
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
By:
Name: Michael Ward
Title: Forensic Division Manager
APPROVED AS TO FORM AND LEGALITY:
By:
N 94 e: JoB. ro
Assistant City orney
CONTRACT AUTHORIZATION:
M&C: N/A OFFICIA
FL.
11�CRRTARY
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