Loading...
HomeMy WebLinkAboutGranicus - Software Product License AgreementSOFTWARE PRODUCT LICENSE AGREEMENT This Agreement, effective as of this 1 st day of November, 2007, between Granicus, (hereinafter referred to as "Licensor ") and City of Gilroy, (hereinafter referred to as "Licensee "). RECITALS WHEREAS, Licensor has prepared and will prepare certain computer software programs; and holds proprietary rights in certain computer software programs; and WHEREAS, Licensee is desirous of using said computer software programs, subject to the restrictions and limitations set forth herein, NOW, THEREFORE, in consideration of the covenants and conditions set forth below, the parties hereto agree as follows: 1) GRANT OF LICENSE a) Licensor, and/or third party supplier, owns the copyright and /or certain proprietary information protectable by law in the Software Product. b) Use. Licensor agrees to provide Licensee with a Revocable, non - transferable and non - exclusive account to access the Media Management Software; and grants Licensee a Revocable, non - sublicensable, non - transferable and non - exclusive right to use the Media Management Software. The Media Management Software is proprietary to Licensor, and protected by intellectual property laws and international intellectual property treaties. Licensee's access to, and use of the Media Management Software is licensed and not sold. Licensee is responsible for any applicable costs and taxes associated with Licensee's use of the Services, or use of the Services through Licensee's account. 2) MANAGED SERVICES Licensor agrees to provide the Licensee the hosting, storage, and bandwidth necessary for the Licensee to broadcast its content to the Internet for at least three (3) years in accordance with the Granicus Managed Services defined below: All managed services plans are billed on a monthly basis. All plans include full Managed Services, complete monitoring and maintenance of Licensee's on -site hardware and 24/7 technical and user support for Licensee's complete solution. Managed Services also includes all software upgrades and bug fixes for all of the Licensee's Granicus software components. The goal of Licensor's Managed Services program is to help the Licensee realize the highest level of value and satisfaction from its Granicus solution, without incurring additional or unexpected costs. Licensor's Managed Services include the following: Technical and User Support Licensor offers continuous customer support and is dedicated to ensuring that the Licensee is completely satisfied with Granicus products and services. Licensor staff is available to the Licensee 24 hours a day, 365 days a year, via the contact info below. Direct (8:OOam to 6:OOpm Pacific time): 415- 357 -3618 Toll Free (8:OOam to 6:OOpm Pacific time): 877 - 889 -5495 Site: www .granicus.com Email: support@granicus.com Monitorinp- As part of the Licensee's Managed Services, Licensor will continually monitor, on a 24/7 basis, all the software and hardware included in Licensee's solution. Should any malfunction appear, Licensor will immediately notify the Licensee and proceed to resolve the issue. Licensor is committed to repair or replace any non - functioning hardware, provided directly from Licensor, for up to three (3) years. Software Upgrades All software upgrades are included as part of Licensee's Managed Services program. This includes both the rights to use the upgraded software and any services required as part of the upgrade process. Bandwidth and Storay-e Through Licensor Managed Services, Licensor will provide all of the bandwidth and storage necessary to utilize Licensee solution. The Granicus Managed Services plan includes "Unlimited Bandwidth" for streaming the Licensee's live and on- demand content over the Internet through the Granicus Media CenterTM. The Granicus Managed Services base plan also includes twelve (12) months of archiving for all public meetings and 50 hours or seven (7) Gigabytes of storage for additional content at the Granicus Media CenterTM. 3) TERM OF AGREEMENT The term of this Agreement shall commence upon the execution of this Agreement and shall terminate upon the Licensor's prior written notice, or default by Licensor or Licensee as may be set forth in other provisions of this Agreement. Upon termination, Licensee shall immediately return the Software Product and all copies thereof to Licensor, and within thirty (30) days of termination, Licensee shall deliver a written certification to Licensor certifying that it no longer has custody of any copies of the Software Product. In no event shall any action or inaction by Licensor or Licensee constitute a waiver of any rights or remedies provided by law. Cancellation of Licensee's Managed Services will also result in the immediate termination of Licensee's Media Management Software license as described in Section 1.0. 4) SECURITY Except as may be provided otherwise in this Agreement, Licensee shall not, without the express written consent of Licensor, provide, disclose, or otherwise make available the Software Product, or copies thereof, to any third party. Licensee shall take appropriate action by instruction, agreement, or otherwise with those of its employees and third party agents having access to the Software Product to restrict and control the use, copying, modification, disclosure, transfer, protection, and security of such Software Product in accordance with the provisions of this Agreement. 5) CONFIDENTIALITY Licensee shall keep the Software Product confidential within its own organization. The confidentiality provisions of this Agreement shall continue in effect between the parties regardless of whether or not licensee has returned the Software Product to Licensor. Provided, however, that Licensee's obligations hereunder shall not apply to any Software Product if: a. Such Software Product is already in or falls into the public domain through no act or omission on the part of the Licensee, its Directors, Officers, Employees, or Agents; or b. Such Software Product shall have been published or hereafter otherwise made available to the public generally by Licensor; or C. Licensee obtains such Software Product from a third party in a manner which does not violate any obligations to Licensor. 6) PATENT, COPYRIGHT AND TRADE SECRET INFRINGEMENT Licensor shall defend, at its expense, any claim or suit brought against Licensee alleging that the Software Product furnished hereunder infringes a United States Patent, Copyright or Trade Secret, and shall pay all damages and attorney fees finally awarded, provided that Licensor is given prompt written notice of such claim, sole authority to defend or settle the claim, and full cooperation by Licensee. In the defense or settlement of the claim, Licensor may obtain for Licensee, at Licensor's expense, the right to continue using the Software, Product, replace or modify the Software Product so that it becomes non - infringing, or if such remedies are not reasonably available, accept return of the Software Product for a refund on a three -year amortized schedule, providing return of two thirds (2/3) of the license Fee during the first year, and one third (1/3) of the License Fee during the second year, with no monies being returned during the third year. Licensor shall not have any liability if the alleged infringement is based upon the modification of the Software Product or the use or sale of the Software Product in combination with other software of devices where infringement would not have occurred from the normal use of the Software Product. 7) WARRANTY Licensor warrants that the Software Product delivered pursuant to this Agreement shall conform to Licensor's written specifications. Licensor's obligations under this warranty are limited to making the revisions of replacements in a reasonable period of time to correct deficiencies identified in writing by Licensee within ninety days from the effective date of this Agreement. EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, LICENSOR GRANTS NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GRANICUS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THIS GRANICUS PRODUCT, EVEN IF GRANICUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES /JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 8) RESTRICTIONS ON USE Licensee may utilize the Software Product to perform its own work and work of is customers. However, Licensee is not granted the right to utilize the Software Product in the capacity of a service bureau. Licensee agrees not to reverse engineer, decompile or otherwise attempt to derive source code from the Software Product. 9) SEVERABILITY In the event any term, condition or provision of this Agreement is determined to be void, invalid, illegal or unenforceable, it shall, only to that extent, be deemed stricken, However, all other provisions shall remain and constitute the Agreement between the parties. 10) ASSIGNMENT Except as set forth hereinafter and in Article 4, this Agreement may not be assigned, sublicensed, or otherwise transferred without the prior written consent of Licensor, which consent shall not be unreasonably withheld. This Agreement shall be binding upon any assignee of Licensee. 11) LIMITATION OF REMEDY Licensee agrees that the Licensor's sole liability in contract, tort or otherwise arising out of or in any way connected with each software Product hereunder for damages shall not exceed the License fee paid by Licensee for the particular software Product. In no event shall either party be liable to the other for any indirect or consequential damages. 12) CHOICE OF LAW /CHOICE OF FORUM Both parties hereby agree that, irrespective of the place of making or place of performance of this Agreement, this Agreement shall be exclusively governed and interpreted according to Nevada Law, both Statutory and Decisional, and further, no action, suit, or proceeding shall be commenced, maintained, or prosecuted other than in Nevada in a court of competent jurisdiction 13) EXPORT RESTRICTIONS Licensee agrees not to transmit the Software Product outside the country of purchase without the prior written approval of Licensor. This Agreement is subject to any laws, regulations, orders. Or other restrictions on the export of the Software from the United States or agencies thereof (including the United States Department of Commerce). 14) NOTICES All written notices to be given hereunder whether pursuant to this Agreement or a provision of law, shall be either delivered in person, by prepaid telegraphic means, or by the United States mail, postage prepaid, Notices shall be addressed as follows: TO LICENSOR: Granicus 568 Howard Street, Suite 300 San Francisco, CA 94105 ATTENTION: Tom Spengler TO LICENSEE: City of Gilroy ATTENTION: ATTN: IT Division 7351 Rosanna Street, Gilroy, CA 95020 or at such other place as may be designated from time to time in writing. GENERAL a. Licensee and Licensor agree to take reasonable steps to comply with all applicable Local, State and Federal laws and Executive Orders and regulations issued pursuant to thereto. b. This agreement must not be deemed or construed to be modified, amended, rescinded, cancelled or waived in whole or in part, except by written Amendment signed by the parties hereto. c. Licensor shall not be liable for delays in any of its performance hereunder due to causes beyond its reasonable control, including, but not limited to acts of God or strikes. d. No waiver of any rights caused by breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof and no waiver shall be effective unless made in writing. Licensee and Licensor acknowledge that they have read the terms and conditions of this Agreement they understand all such terms and conditions and that they agree to be bound thereby. GRANICUS: By: (signature) Thomas A. Spengler (Please Print) Chief Executive Officer (Title) LICENSEE: (Please Print) City Administrator (Title)