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HomeMy WebLinkAbout2006-087 7t 45 02066 - a? 7 NC4 PUBLIC SECTOR LLC SOFTWARE LICENSE, MAINTENANCE, AND SERVICES AGREEMENT This Software License, Maintenance, and Services Agreement ("Agreement") is entered into as of the Effective Date, by and between NC4 Public Sector LLC, a Delaware limited liability company, with an office located at 28202 Cabot Road, Suite 300, Laguna Niguel, CA 92677 USA ("NC4"), and Licensee Name: Indian River County Office of Emergency Management ("Licensee") Address: 1840 25th Street Vero Beach , FL 32960 RECITALS A. NC4 is the owner of certain computer software programs, including the E Team incident management software application, and also provides services related to emergency management and other functions related to such Software. B. In or around August, 2005, the Sheriff of Orange County, Florida, issued a Request for Proposal for Disaster Management Information System (DMIS), RFP# 126-05, on behalf of the Orlando UASI Region, to establish a Disaster Management Information System for six beneficiaries in the central Florida region listed under that grant. NC4 was awarded the contract to supply certain equipment, software and services to the beneficiaries under that grant. C. In or around January, 2006, Brevard County, Florida, as grant administrator ("Grant Administrator") received funding to add four additional participants in the central Florida region to the DMIS system. By Purchase Order Number 4500037673, dated January 30, 2006 ("Purchase Order"), the Grant Administrator awarded NC4 a contract to add the four additional participating counties to the regional system ("Project"). D. Licensee is one of the four beneficiaries and participants under the add-on Project. E. NC4 now desires to provide, and Licensee, as one of the Project participants, desires to obtain, the equipment, Software licenses and Services defined in the Proposal set forth at Exhibit "A" and resulting Purchase Order to be provided to Licensee on the terms and conditions set forth in this Agreement. NOW, THEREFORE, based on the foregoing premises and the promises set forth below, the parties agree as follows: AGREEMENT 1 . Definitions. 1 . 1 "ASP" means the Optional Web Hosting Services as defined in section 4. 1 .2 "Confidential Information" will have the meaning set forth in section 8. 1 . 1 .3 "Dual Processor Site License" means an unlimited-user license to run the E Team application on one dual- processor server. Extensions of this license to additional CPUs or servers requires the purchase of additional licenses. 1 .4 "Effective Date" shall be the date of the last signature on the signature page of this Agreement. NC4 Public Sector LLC 1 Standard License Agreement ( 10.05) ' 1 .5 "Fees" means, collectively, the license fees for the Software, the Maintenance Fee and any other fees payable by Licensee or the Grant Administrator to NC4 pursuant to this Agreement. 1 .6 "Maintenance Fee" means the fees payable for the Support. 1 .7 "Order Form" means a service order form issued by NC4 when additional services or products are requested by Licensee and quoted by NC4. The Order Form is merely one manner in which additional services and products may be quoted. 1 .8 "Redundancy" means the Optional Web Hosting Services as described in section 4 . 1 .9 "Services" means work performed by NC4 for Licensee pursuant to a Statement of Work, or an alternative ordering document acceptable to NC4, agreed to by the parties in writing. The schedule for Services will be mutually agreed upon by the parties and stated in the Statement of Work. 1 . 10 "Software" means the E Team incident management software application described in the Proposal or applicable Order form in object code form only. 1 . 11 "Specifications" means the functional specifications described in the user manuals or other specification documents delivered by NC4 to Licensee. 1 . 12 "Statement of Work" means the document provided to Licensee by NC4, and signed by both paries, that describes any future Optional Services and/or Additional Services agreed to be performed by NC4 and authorized in writing by Licensee, as the case may be. Each Statement of Work shall be governed by this Agreement and shall reference the Effective Date. In the event that the parties agree to forego a separate Statement of Work, the Order Form shall operate as the Statement of Work. 1 . 13 "Support" shall have the meaning set forth in Section 3 . 1 . 1 . 14 "User" shall mean any end user authorized by Licensee to access the Software including, but not necessarily limited to: Licensee' s employees, agents or representatives; any emergency staff or agency, including police, fire, paramedic, public health, hospital(s), or other emergency personnel or entity necessary to use the Software for emergency management purposes; or any community organization involved in the emergency management or corresponding recovery effort. It prohibits any use of the License by any private "for profit" company, agency or corporation. Use of the Software by an authorized User shall not be deemed to be a sublicense. 2. Software License. 2. 1 License Grant. Subject to the terms and conditions of this Agreement, NC4 hereby grants to Licensee a non-exclusive, nontransferable (except as otherwise stated herein), non-assignable license, without the right to grant sublicenses, to use the object code of the Software. The license granted in this Section 2. 1 shall also include modifications to the Software that NC4 may make pursuant to Services that Licensee purchases from NC4. Until such time that the Grant Administrator has fully paid all license and other fees as specified in the Purchase Order, the term of the licenses granted hereunder shall be temporary and subject to termination by NC4. Upon the Grant Administrator's payment in full of the sums under the Purchase Order, the Software license issued to Licensee under the Project shall be perpetual Dual Processor Site License. 2.2 Use Restrictions. Licensee shall not, either directly or indirectly: (a) install the Software on any server or at any site other than those designated by Licensee to NC4; (b) exceed the number of permitted Users of the Software (if any) set forth in the Proposal; NC4 Public Sector LLC 2 Standard License Agreement ( 10.05) (c) use the Software in a service bureau or time-sharing arrangement; (d) distribute, rent, lease, assign or transfer the Software to any third party, without NC4's prior written consent; or (e) modify, customize, reverse engineer, reverse assemble or reverse compile the Software or any part thereof. 2.3 Conies. Licensee shall not copy the Software. Notwithstanding the foregoing, Licensee may make a single copy of the Software only as needed for reasonable ordinary backup or disaster recovery procedures. All copies shall be subject to the terms and conditions of this Agreement and applicable copyright law, and all proprietary rights notices contained on the original Software shall be reproduced on or in any copies. 2.4 Ownership. Licensee acknowledges and agrees that it is acquiring only the right to use the Software licensed under this Agreement. NC4 shall retain ownership of the Software, all modifications to the Software (including derivative works based on the Software), and changes to the Software made by NC4 pursuant to the Proposal, Purchase Order or this Agreement, and all of the intellectual property rights in and to all of the foregoing. In no event shall title to all or any part of the Software pass to Licensee. Licensee agrees that, as between the parties, the Software and all copies (in whole or part) shall remain the exclusive property of NC4 and may not be copied or used except as expressly authorized by this Agreement. Any rights not expressly granted to the Licensee under this Agreement are retained by NC4. 2.5 Third-Party Software. Licensee shall not use any third-party software embedded in the Software on a stand-alone basis or in any way other than as embedded in the Software. 3 . Maintenance, Upgrades and Sunoort. 3 . 1 General. The first two years annual Maintenance Fee for Licensee is included in the Purchase Order. Prior to the expiration of the initial two-year maintenance and support period, NC4 will invoice on-going annual maintenance and support to Licensee. NC4 may, in its sole discretion, discontinue maintenance and support services to Licensee if the Maintenance Fees are not renewed and kept in current status. NC4 reserves the right to change the renewal Maintenance Fee at the end of the then-current renewal term, upon thirty (30) days prior written notice to Licensee. 3 .2 Maintenance. So long as the Maintenance and Support Fees are kept current, NC4 will provide Licensee with upgrades to the Software when and if NC4 makes such upgrades available. NC4 will perform these upgrades via the ASP backup server, which will then replicate the changes down to the Licensee's self-hosted server. NC4 will provide downloads and/or CD's with instructions for performing any onsite upgrade tasks that may be required. If NC4 is requested to travel onsite to perform an upgrade, NC4's hourly professional services rate, plus travel expenses at Licensee approved rates, will apply on a time and material basis. 3 .3 Support. So long as the Maintenance and Support Fees are kept current, NC4 shall provide Licensee with 24 x 7 technical support for the E Team application. Telephone support shall be available to not more than three (3) named callers. Support shall not include installation of upgrades or modification or customization of upgrades, problems not attributable to the Software, or problems arising from Licensee' s actions to cause an error in the Software, which shall be billed at NC4's then-current professional services rates, plus any travel expenses incurred. On-site installation of upgrades or modification or customization of upgrades is available by special arrangement, and will be billed at NC4's then-current rates, plus travel expenses. Licensee grants to NC4 the right to remote access Licensee's server to enable NC4 to provide telephone support services. If Licensee requests on site support services, Licensee agrees to grant NC4 access to its facilities and personnel to provide such support services, and reimburse NC4 for travel and related expenses. 3 .4 Domino Maintenance and Support Renewals Not Included. Renewals of Lotus Domino maintenance and support are not included in NC4's quote for maintenance and support. If Licensee has purchased the Domino NC4 Public Sector LLC 3 Standard License Agreement (10.05) platform of the NC4 product, Licensee will be responsible for all renewals of Domino maintenance and support necessary to receive Lotus Domino updates, etc. 4. Optional Services. 4. 1 Web Hostine. Services. The initial Purchase Order includes annual Web Hosting backup ("Web Hosted Services") which shall be used for backup purposes only. For purposes of this section, "backup purposes" means reasonable and ordinary backup or archival copy of the data or primary use for a limited period if the Software is nonfunctional or for disaster recovery purposes. While Web Hosted Services are purchased, and subject to the terms and conditions in this Agreement, NC4 grants to Licensee a limited, nontransferable, nonexclusive license for the term of this Agreement to access over the Internet and use the Web Hosted Services solely as a to backup Licensee's use of the Software in the normal course of business. 4.2 Web Hosted Services Fee. The initial purchase price under the Purchase Order includes one ( 1 ) year of the annual Web Hosted backup to Licensee, which will be paid by the Grant Administrator in accordance with the Purchase Order. Thereafter, NC4 will invoice Licensee directly for on-going web-hosted backup services. NC4 may, in its sole discretion, discontinue backup services to Licensee if the annual fees are not renewed and kept in current status. NC4 reserves the right to change the renewal fee for web-hosted backup at the end of the then- current renewal term, upon thirty (30) days prior written notice to Licensee (which may be given via email). 4.3 Restrictions on Use. Licensee shall not, directly or indirectly, (i) license, sell, lease or otherwise transfer the Web Hosted Services, (ii) alter, modify, translate or create derivative works based on the Software, or permit a third party to do any of the foregoing; (iii) process or permit to be processed the data of any third party; (iv) use or permit the use of the Web Hosted Services in the operation of a service bureau, timesharing arrangement or otherwise for the benefit of a third party; or (v) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Web Hosted Services. 4.4 Use of Data. Licensee shall be solely responsible for collecting, inputting and updating all Data related to Licensee's use of the Web Hosted Services. Licensee shall ensure that the Data does not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party; contains anything that is obscene, defamatory, harassing, offensive, malicious or which constitutes child pornography; or otherwise violates any other right of any third party. 4.5 Termination. Either party may terminate the Web Hosted Services in accordance with Section 12.2 . Upon termination, NC4 shall cease all Web Hosted Services, and Licensee shall pay NC4 for Web Hosted Services performed prior to the date of termination. 5. Additional Services. In the event Licensee desires to purchase Additional Services under this Agreement, NC4 will provide Licensee with a written Order From or Statement of Work reflecting the Additional Services and charges for such Additional Services. When such Additional Services are requested, this Section 5 shall apply. 5. 1 Statements of Work. By entering into a Statement of Work with NC4, Licensee may retain NC4 to modify, customize or enhance the Software or to provide implementation, training, and other services relating to the Software. Licensee shall complete an order form in substantially the same form as the Order Form, or an alternative ordering document acceptable to NC4, requesting the Services before commencement of Services under a mutually agreed upon Statement of Work. 5.2 Payment for Services. Unless otherwise expressly specified in the applicable Statement of Work, NC4 shall provide the Services to Licensee on a "time and materials basis" at rates set by NC4 at the time the Services are provided. For the purposes of this Agreement, "time and materials basis" means that Licensee shall pay NC4 for time spent performing the Services, and shall reimburse NC4 for expenses as set forth in Section 5 .3 . Any monetary amount stated in the applicable Statement of Work for Services shall be an estimate only for Licensee's budgeting NC4 Public Sector LLC 4 Standard License Agreement ( 10.05) and NC4's resources scheduling purposes and not a binding quote by NC4. Licensee shall additionally reimburse NC4 for costs and expenses incurred as a result of Licensee's failure to cooperate as required in Section 5.7. 5.3 Reserved. 5.4 Effect of Termination During Services. Upon termination of this Agreement, NC4 shall cease all Services, the Statement(s) of Work for all Services shall terminate, and Licensee shall pay NC4 for Services performed prior to the date of termination. 5.5 Termination of Statement of Work. Either party may terminate only the Statement of Work if the other party is in breach of the terms contained in the Statement of Work and has not cured the breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period for breaches other than for nonpayment of fees shall not be unreasonably withheld, so long as the breaching party has commenced cure during the thirty (30) day notice period and pursues cure of the breach in good faith. 5.6 Change Requests. Licensee may request changes to a Statement of Work including but not limited to requests for changes in project plans, scope, specifications, schedule, designs, or requirements. Any such request must be in writing. NC4 shall not be obligated to perform tasks described in Licensee's request unless and until both parties agree in writing to the proposed changes. 5.7 Cooperation. Licensee acknowledges and agrees that its cooperation with NC4 is essential to performance of any Services by NC4. Among other things, Licensee shall cooperate with NC4 by providing timely access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitable configured computer products. NC4 shall not be liable for any deficiency in performing Services resulting from Licensee's failure to do so. 6. Future Orders. NC4 may offer additional software products and services from time to time. Licensee may request such products or services from NC4. In the event that NC4, in its sole discretion, decides to license such products or provide such services, such products and services shall be subject to the terms and conditions of this Agreement, unless NC4 specifies otherwise. 7. Fees and Payment Terms. 7. 1 Payment Terms. The terms of payment associated with the Purchase Order are set forth therein, and the Purchase Order hereunder will be paid by the Grant Administrator. Licensee shall pay to NC4 any other Fees that may become due and payable based on Additional Services or Optional Services requested by Licensee, within thirty (30) days of the NC4 invoice date. 7.2 Expenses. NC4 shall be reimbursed for reasonable travel, administrative, equipment, and out-of-pocket expenses incurred while performing Services hereunder, unless otherwise agreed to in writing. Such expenses are not included in any estimate in a Statement of Work or Order Form unless expressly itemized. Invoices for travel and related expenses shall be paid within thirty (30) days of the NC4 invoice date. 7.3 Taxes. All fees and charges set forth in the Order Form or in any Statement of Work are exclusive of any sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the Software. Any such taxes (except taxes based on NC4 's income), duties, or fees shall be paid directly by Licensee or reimbursed by Licensee to NC4. 8. Confidentiality and Publicity. 8. 1 Confidentiality Obligation. "Confidential Information" means all written or oral information designated as confidential at the time of disclosure that is disclosed in connection with this Agreement including, without limitation, computer programs, software, formulas, data, inventions, techniques, strategies, trade secrets, plans for products or services, marketing plans, financial documents or data, processes and designs, and the terms, but not the existence of, this Agreement. Written Confidential Information must be marked as "confidential" or "proprietary." NC4 Public Sector LLC 5 Standard License Agreement ( 10.05) Oral Confidential Information must be designated as confidential at the time of disclosure and reduced to a written summary and marked "confidential" or "proprietary" within 10 days of the oral disclosure. Each party shall use the Confidential Information of the other party solely in the performance of its obligations under this Agreement, treat as confidential all Confidential Information of the other party, and not disclose such Confidential Information, except to authorized employees of the receiving party or its affiliates, its legal counsel and accountants (provided that the receiving party contractually obligates them to a duty of confidentiality no less restrictive that the duty imposed by this Section 8. 1 and that the receiving party shall remain jointly and severally liable for any breach of confidentiality by such parties). Without limiting the foregoing, each of the parties shall treat the other party 's Confidential Information with at least the same degree of care it uses to prevent the disclosure of its own Confidential Information, but in no event less than reasonable care. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information. Upon expiration or termination of this Agreement, each party shall return all tangible copies of any Confidential Information received from the other party. 8.2 Exclusions. As used in this Agreement, the term, "Confidential Information," shall not include the following information: (a) information, disclosure of which by Licensee is required under the Florida Public Records Act, Chapter 119, Fla. Stat; provided, however, Licensee shall promptly notify NC4 of a required disclosure, and provided, further, that any such information shall retain trademark and copyright protection afforded by federal law; (b) information that the recipient can prove: (i) was generally available to the public at the time the recipient received the information from the disclosing parry, (ii) was known to the recipient, without restriction, at the time of disclosure by the disclosing party, (iii) is disclosed with the prior written approval of the disclosing party, (iv) was independently developed by the recipient without any use of the Confidential Information, (v) becomes known to the recipient, without restriction, from a source other than the disclosing party without a duty of confidentiality to the disclosing party, or (vi) is disclosed in response to an order or requirement of a court, administrative agency, or other governmental body, a subpoena, or by the rules of a securities market or exchange on which the disclosing party's securities are traded; provided, however, that the receiving party provide prompt notice of the proposed disclosure to the disclosing party, and any Confidential Information so disclosed shall otherwise remain subject to the provisions of this Section 8. The burden of proof in establishing that any Confidential Information is subject to the exceptions listed in this Subsection 8.2(b) shall be home by the receiving party. 8.3 Trademark License. NC4 grants Licensee a limited, nonexclusive, worldwide right and license during the Term to use those name(s), logo(s) and trademarks of NC4, solely to publicize the existence of the business relationship established by this Agreement Notwithstanding the foregoing, Licensee may not publish or distribute any material bearing the name, logo(s) or trademark(s) of NC4 without NC4 's prior written consent. Licensee's use of NC4's name, logo(s) and trademarks must comply with the NC4 's policies in effect at the time of use, including, without limitation, trademark use, quality control and cooperative advertising policies, if any. Licensee will include appropriate trademark notices in all written and electronic materials bearing NC4' s trademarks. 9. Limited Warranty. 9. 1 Software Warranties (a) NC4 warrants for a term of one ( 1 ) year from the date of receipt of the Software that the Software will materially conform to the functional specifications described in NC4 's published Documentation and User Manuals. (b) NC4's sole obligation under this warranty shall be, at NC4's discretion, to repair or replace any defective Software media to enable the Software to materially conform to the Specifications and User Manuals. If NC4 is unable to repair or replace the Software so that it materially conforms to the Specifications, then NC4 shall, upon Licensee's written request for termination of this Agreement, refund the license fee paid by Licensee to NC4. NC4 Public Sector LLC 6 Standard License Agreement (10.05) (c) NC4 shall have no obligation under this warranty if the Software has been (i) used other than in accordance with this Agreement or the Specifications and User Manuals; (ii) modified by a party other than NC4, or (iii) combined with hardware or software not identified in the Specifications as being compatible with the Software. (d) THE REMEDIES SET FORTH IN THIS SECTION 9. 1 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE WARRANTIES GIVEN BY NC4 UNDER THIS SECTION 9. 1 . (e) NC4 AND ITS SUPPLIERS MAKE NO WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE (OTHER THAN THOSE SET FORTH IN THIS SECTION 9. 1 ) OR ANY DERIVATIVES THEREOF AND DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEM INTEGRATION, ENJOYMENT AND NON-INFRINGEMENT. 9.2 Services Warranties. (a) NC4 warrants to Licensee that the Services for a particular Statement of Work will be performed in manner consistent with generally accepted industry practices. Licensee must report any deficiencies in the Services to NC4 in writing within ninety (90) days of completion of the Services for that particular Statement of Work in order to receive the warranty remedy set forth in this Section 9.2. (b) NC4 MAKES NO WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE SERVICES (OTHER THAN THOSE SET FORTH IN THIS SECTION 9.2) AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FOR ANY BREACH OF THE WARRANTY IN THIS SECTION 9.2, LICENSEE' S EXCLUSIVE REMEDY, AND NC41S ENTIRE LIABILITY, SHALL BE THE RE-PERFORMANCE OF THE SERVICES AND IF NC4 FAILS TO RE- PERFORM THE SERVICES AS WARRANTED, LICENSEE SHALL BE ENTITLED TO RECOVER THE FEES PAID TO NC4 FOR THE DEFICIENT SERVICES. 10. Indemnification 10. 1 Each Party Responsible for Own Acts and Omissions. Each party shall be responsible for any and all claims, and to pay any and all costs, damages, and expenses, resulting from or arising out of any claim resulting from its own acts or omissions or any act or omissions of its employees or agents. Licensee shall be responsible for its and its Users' use, misuse or failure to use the Software. 10.2 Defense of Infringement Suits. NC4 shall indemnify, defend and hold harmless Licensee against any and all claims that the Software infringes any U.S. copyrights of any third party. NC4 shall pay any and all costs, damages, and expenses, including, without limitation, reasonable attorneys' fees and costs awarded against or otherwise incurred by the other party in connection with or arising from any such claim, suit, action, or proceeding. Licensee shall be entitled to indemnification only if (a) within thirty (30) days of its discovery of a potential claim it notifies NC4 in writing of such claim in sufficient detail to enable the NC4 to evaluate the claim, (b) Licensee cooperates in all reasonable respects, at NC4's cost and expense, with the investigation, trial and defense of such claim and any appeal arising therefrom, and (c) NC4 has sole control of the defense and settlement of such claim. Licensee shall not compromise any claim or enter into any settlement without the written consent of NC4. 10.3 Infringement Alternatives. If the Software is, or in NC4' s opinion is likely to become, the subject of a claim, suit or proceeding for infringement, NC4 may (a) procure, at no cost to Licensee, the right to continue use of the Software, (b) replace or modify the Software, at no cost to Licensee, with alternative software that has essentially the same functionality, or (c) if the right to continue use cannot be reasonably procured for Licensee or cannot be replaced or modified to make it non-infringing, NC4 may terminate the License for such Software, remove the Software and grant Licensee a refund credit thereon based on the time remaining in the then-current license term. NC4 shall have no liability with respect to infringement of any proprietary right, except as set forth in this Section 10.3 and Section 10.2 . NC4 Public Sector LLC 7 Standard License Agreement ( 10.05) 1 I . Limitation of Liability. IN NO EVENT SHALL NC4 OR ITS LICENSORS OR SUBCONTRACTORS OR ANY OF THEIR SUBSIDIARIES BE LIABLE FOR LOSS OF DATA OR SYSTEM USE, DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, LOSS OR INACCURACY OF DATA, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH LICENSEE' S USE OF THE SOFTWARE, NC4'S PROVISION OF THE SERVICES, OR THIS AGREEMENT, UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. THIS LIMITATION SHALL APPLY EVEN IF NC4 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN NO EVENT SHALL THE TOTAL LIABILITY OF NC4 AND ITS SUBSIDIARIES, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, EXCEED THE FEES PAID BY, OR ON BEHALF OF, LICENSEE FOR THE APPLICABLE SOFTWARE OR SERVICES, ON A PER-ORDER BASIS, WHICH ARE THE DIRECT CAUSE OF THE DAMAGES OR LIABILITY CLAIMED. IN NO EVENT SHALL NC4 HAVE ANY LIABILITY FOR LICENSEE'S OR ANY AUTHORIZED END-USERS' USE, MISUSE, OR FAILURE TO USE THE SOFTWARE. 12. Term and Termination. 12. 1 Term. This Agreement shall commence as of the Effective Date and continue in full force and effect unless terminated in accordance with Section 12.2. Termination or expiration of the Support under this Agreement shall not terminate, modify, or otherwise legally affect the license granted in Section 2. 1 hereof. 12.2 Termination. This Agreement may be terminated as follows: (a) Licensee Termination upon Notice. Licensee may terminate this Agreement in its entirety, or only Support under this Agreement, at any time by sending a written notice of termination. Upon any such termination by Licensee, all Fees owed by Licensee and unpaid as of the date of termination shall become due and payable to NC4, upon presentation of an invoice for such Fees to Licensee. (b) Licensee Termination for Material Breach. Licensee may terminate this Agreement if NC4 breaches any of the material terms of this Agreement and fails to cure such material breach within thirty (30) days after receipt of written notice of such material breach. (c) NC4 Termination for Material Breach. NC4 may terminate Support, Optional Services, or any Additional Services under this Agreement if Licensee breaches any of the material terms of this Agreement and fails to cure such material breach within thirty (30) days, after receipt of written notice of such material breach. Nothwithstanding anything herein to the contrary, NC4 may terminate this Agreement and the license granted in Section 2. 1 hereof if Licensee materially breaches any of the confidentiality provisions set forth in section 8. (d) Either party may terminate this Agreement if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such party shall only be in breach if such petition or proceeding has not been dismissed within ninety (90) days. 12.3 Effect of Termination. To the extent allowed by law, upon termination, Licensee shall de-install the Software and, at NC4's sole discretion, either destroy or return all Software copies and documentation. Licensee shall certify to NC4 in writing within five (5) business days of the termination notice that Licensee has complied with this Subsection 12.2 and that no Software is being used or retained on any computer or storage device. Upon termination, NC4 shall have the right, at any time, to terminate the license and take immediate possession of the Software and all copies wherever located, without demand or notice. NC4 Public Sector LLC 8 Standard License Agreement ( 10.05) 12.4 Survival. The provisions of Sections 2.4, 4.3, 4.4, 5 .2, 5 .3, 7, 8, 9, 10, 11 , 12 and 13 shall survive the termination of this Agreement. 13 . General 13 . 1 Audit Rights. During normal business hours and at any time the Software or Service is being used, NC4 or its authorized representative will have the right to audit and inspect Licensee's use of the Software and Service or compliance with the terns of this Agreement. NC4 may audit Licensee use of the Software and Service or compliance with the terms of this Agreement by remote access of Licensee's Equipment with or without notice at any time. NC4 shall give Licensee reasonable advance notice if it intends to conduct an on-site audit and inspection. 13 .2 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns, provided that neither this Agreement nor any license hereunder may be assigned by Licensee (whether by operation of law or otherwise) without NC4's prior written consent. NC4 may assign all or any part of its rights and obligations under this Agreement without consent to (a) any entity resulting from any merger, consolidation or other reorganization of NC4, (b) any operating entity controlling NC4, or owned or controlled, directly or indirectly, by NC4, (c) any affiliate of NC4, or (d) any purchaser of all or substantially all of the assets of NC4. 13 .3 Non-Solicitation of Employees. Each Party agrees that during the term of this Agreement and for a period of two years after its expiration or termination, neither party will solicit or encourage any employee or consultant to discontinue their employment or engagement with the other Party. This Section 13 .3 shall not apply to employment opportunities of either party advertised to the general public (e.g., newspaper advertisement, internet advertisement or listing, etc.) to which an employee of either party may respond. 13 .4 Facsimile. A facsimile of a signed copy of this Agreement received from Licensee may be relied upon as an original and if there is any inconsistency between such facsimile and a subsequently received hard copy, the facsimile shall prevail. 13 .5 Force Majeure. Neither party shall be held liable for any damages or penalty for delay in the performance of its obligations hereunder (other than Licensee's obligation to make payments under this Agreement) when such delay is due to the elements, acts of God or other causes beyond its reasonable control. 13 .6 Compliance With Regulations. Licensee agrees to comply fully with all relevant export and import laws and regulations of the United States and the country or territory, to assure that neither the Software, nor any direct product thereof, are exported or imported, directly or indirectly, in violation of such laws. 13 .7 Governing Law/Jurisdiction. This Agreement shall be governed by and construed in accordance with the substantive laws of the United States and the State of Florida, without regard to or application of Florida' s conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which are expressly excluded. All disputes arising out of or relating to this Agreement shall take place exclusively in the appropriate federal or state court in Orange County, Florida, and each party irrevocably consents to the jurisdiction of such courts. 13 .8 Third-Party Beneficiaries. Any person licensing a third-party software to NC4 or its subsidiaries is hereby specified as a third-party beneficiary of this Agreement. NC4 will be responsible for all third-party beneficiary reporting. Except as expressly set forth in this Section, there shall be no third-party beneficiaries under this Agreement. 13 .9 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 13. 10 Waiver and Modification. Waiver of any breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. Any waiver, amendment, NC4 Public Sector LLC 9 Standard License Agreement ( 10.05) supplementation or other modification or supplementation of any provision of this Agreement shall be effective only if in writing and signed by both parties. 13 . 11 Notices. All notices required or permitted under this Agreement shall be in writing, shall reference this Agreement and will be deemed given : (i) when sent by facsimile with confirmation page; (ii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one ( 1 ) working day after deposit with a commercial overnight carrier, with written verification of receipt. To be effective, a confirmation copy of a notice must be sent contemporaneously via U.S. mail. All communications shall be sent to the contact information set forth below or to such other contact information as may be designated by a party by giving written notice to the other party pursuant to this Section 13 . 11 : To NC4: NC4 Public Sector LLC 28202 Cabot Road, Suite 300 Laguna Niguel, CA 92677 Attn: Contracts Department Phone: 949-365-5790 Fax : 949-365-5791 With copy to: Vicki L. Hamilton Phone: 760-471 -9120 Fax: 949-365-5791 Email : vicki.hamilton@nc4.us To Licensee: Indian River County Office of Emergency Management Attn: Nathan McCollum 1840 25th Street Vero Beach , FL 32960 Phone: 772 - 226 - 12Aq Fax: 772 - 567 - 9323 Email: nmccollum@ircgov . com 13 . 13 Relationship of Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of legal association between the parties and each party is an independent contractor. 13 . 14 Referenceability. Licensee agrees that NC4 shall be entitled to: (i) publicly announce the signing of the software license agreement, (ii) include Licensee's name as a customer on NC4 ' s web site, collateral materials and/or presentations, and (iii) provide Licensee's name as a reference for media, analysts, prospects or other groups. 13 . 15 Entire Agreement. This Agreement, including the Attachments hereto, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior or contemporaneous statements, understandings or agreements, written or oral, regarding such subject matter. 13 . 16 Order of Precedence: Governing Documents. If a purchase order or similar ordering document is issued for the Software and/or Services referenced in this Agreement, the parties hereby agree that the terns and conditions of this Agreement shall govern and take precedence over any general terms and conditions of such purchase order or NC4 Public Sector LLC 10 Standard License Agreement ( 10.05) similar document. If there is any conflict between the terms and conditions of this Agreement and any purchase order or similar document, the terms and conditions of this Agreement shall govern. 13 . 17 Authority to Bind Licensee. The individual signing below on behalf of Licensee hereby certifies that he or she has such authority to sign this Agreement on behalf of Licensee and bind Licensee accordingly. NC4 PUBLIC SECTOR LLC LICENSEE BY N fI. T14II / PJ NAME Arthur Neuberger TITLE UTp TITLE Chairman , BCC DATE 3 -a DATE March 21 , 2006 :R s t'+)sltt �a+fre APPROVED Attest: J . K. Barton; 91 . '4 tuntyA ministrator PR ED S TO FORM A D G _ SUFIC C ARIA E . F ASSISTANT COUNTY ATTORNEY NC4 Public Sector LLC 11 Standard License Agreement (10.05)