HomeMy WebLinkAboutKiva Software License Agreement - 2001 03 10
I
, KIVA
SOFTWARE UCENSE AGREEMENT
NAME AND ADDRESS OF CUSTOMER:
I I Agreement Date I
Agreement Number
1. GRANT OF LICENSE.
KIVA, a Utah corporation ("KIVA"), hereby grants to Customer ("CUSTOMER") and CUSTOMER hereby accepts from KIVA,.on the terms and conditions
contained in this Agreement, a restricted, personal, non-transferable and non-exclusive license for the use of Software Product and related Software
Documentation proprietary to KIVA and identified in the Schedule ("SCHEDULE") attached hereto as Exhibit 1, for the license fees set forth in the
SCHEDULE.
2. DEFINmONS.
2.1 "Software Product," as used herein, shall mean the computer software provided by KIVA hereunder, (including, but not limited to, programs and
Database Structures) and comprises all proprietary intelligence, however recorded, contained, duplicated, referenced, or stored.
2.2 "Software Documentation/, as used herein, shall mean and comprise, but not be limited to, all media, machine readable or otherwise, including
tapes, disks, diskettes, recordings, memories, chips, photos, printed or written documents, manuals of any type, and any other media containing
recorded or stored information.
2.3 "Database Structures/' as used herein, shall mean and comprise the definitions and structure of the database including data element layouts, views,
indexes and associated programs to create, maintain or modify these definitions and structures.
2.4 "Data," as used herein, shall mean and comprise the information to be supplied by the CUSTOMER.
2.5 "Additional Functions," as used herein, shall mean and comprise additional programs and related documentation which interface with the Software
Product and/or Software Documentation and/or Database Structures, including any ideas, concepts, know-how or techniques relating thereto, and
additions to the Software Product or Software Documentation made by CUSTOMER or consultants.
2.6 "Operating Environment/, as used herein, shall mean the single designated central processing unit ("CPU") designated in Exhibit 2, in combinatidn
with the operating system, computers, machines, terminals and devices as also described in Exhibit 2.
3. TERM OF AGREEMENT.
This license is granted for an initial term of fifteen (15) years from the date of this Agreement and is renewable for an additional fifteen (15) year term
upon written election by CUSTOMER, delivered to KIVA at any time during the initial term of this Agreement .and upon payment of the established
License Fee for a license to use the Software Product and the Software Documentation then in effect.
4. FINANCIAL PROVISIONS.
4.1 The License Fee shall be paid as set forth in the SCHEDULE.
4.2 All payments shall be made in U.S. Dollars within forty-five (45) days of invoice unless otherwise specifically provided. If partial deliveries are
authorized, each shipment shall be invoiced and paid for when due without regard to other scheduled deliveries. CUSTOMER agrees to pay a monthly
charge of 1.5% (18% annually), or fraction thereof, for failure to make a payment within forty-five (45) days of the invoice date.
4.3 The License Fee due under this Agreement is exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or
like taxes, however designated, now in force or enacted in the future and, therefore, in addition to the License Fee due under this Agreement, as set
forth above in the SCHEDULE, CUSTOMER agrees to pay any tax KIVA may be required to collect or pay now or at any time in the future (including
interest and penalties imposed by any governmental authority) which are imposed, levied or based on such License Fee, or on the existence or
operation of this Agreement or on the Software Product, and/or Software Documentation or the use, lease, license or delivery thereof. If a certificate
of exemption or similar document or proceeding can be obtained in order to exempt the license from and any tax liability, CUSTOMER will obtain and
pursue such certificate, documents or proceeding. If KIVA is required to collect tax to be paid by CUSTOMER, the CUSTOMER shall pay such tax to
KIVA on demand. If KIVA is required to obtain a performance bond, CUSTOMER shall pay such amount to KIVA as the bond may cost. CUSTOMER
agrees to pay a monthly charge of 1.5% (18% annually) on all taxes, performance bond premiums or other sums advanced by KIVA, if such sums are
not paid by CUSTOMER to KIVA within forty-five (45) days of the date of invoice.
4.4 There shalf be no refund or credit due CUSTOMER in the event of the termination of this Agreement for any reason prior to the end of the initial
or any subsequent term.
S. RESPONSIBILmES.
5.1 CUSTOMER stipulates that it has determined to accept the terms of the license of the Software Product and Software Documentation in sole
reliance upon .its own judgment and not in reliance upon any representation by KIVA regarding the Software Product and Software Documentation,
including but not limited to (a) their selection to achieve CUSTOMER'S intended results; (b) their installation and use, including provisions of necessary
diskettes, tapes and related supplies, all Data entry, all necessary computer time, and selection of available hardware options; (c) the selection of
available program options; (d) determination of when to place them into productive use; (e) the training and proficiency of CUSTOMER'S personnel;
and (f) the results obtained therefrom.
5.2 KIVA will provide (a) the Software Product and (b) the applicable Software Documentation which shall include program specifications and describe
the program operation.
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KVSFTLIC 2/15/90 Rev 6/4/91 Page 1
6,' OPERATING ENVIRONMENT DESIGNATION.
The licenSe granted under this Agreement authorizes CUSTOMER to use the Software Product solely on the Operating Environment described in Exhibit
2. If the CPU described in Exhibit 2 is inoperative due to malfunctions, the license granted under this Agreement may be temporarily extended,
authorizing CUSTOMER to use the Software Product on another CPU using the same operating system until the designated CPU is returned to operation.
7. CHANGE IN DESIGNATED OPERATING ENVIRONMENT.
CUSTOMER may change the CPU and/or operating system herein designated, or the maximum number of terminals herein authorized by sending KIVA
written notification of the effective date, the model, serial. number, location, and operating system name and version of the newly designated CPU
and/or operating system and/or the new desired maximum number of terminals. In such event, CUstOMER agrees to pay additional License Fees
in an amount equal to the difference, if any, between the License Fee previously paid hereunder and the License Fee then charged by KIVA for a license
to use the Software Product and Software Documentation on the new CPU and/or new operating system, or for the increased maximum number of
terminals. In no event, however, will CUSTOMER be entitled to any refund of License Fees paid hereunder.
8. ADDmONAL LICENSES. .
CUSTOMER may obtain additional licenses to use the Software Product and Software Documentation listed in the SCHEDULE on Operating Environments
other than that specified in Section 6 entitled "OPERATING ENVIRONMENT DESIGNATION," only upon execution of additional license agreements
covering such installations and the payment of additional License Fees.
9. USER MANUALS.
For each Software Product, KIVA will deliver to CUSTOMER certain Software Documentation entitled "User Manual". The User Manual may be updated
by KIVA from time to time, and such updates constitute a change in specifications.
10. LIMITED WARRANTY.
10.1 KIVA warrants that for a period of 90 days from the installation of the Software Products, KIVA will, upon written notice from CUSTOMER, use
reasonable efforts to correct any error present at the time CUSTOMER installs the system and which prevents the Software Product and Software
Documentation from operating in substantial conformity with the User Manual provided by KIVA with the Software Product and Software
Documentation. The above warranty is contingent upon the CUSTOMER'S proper use of the Software Product or Software Documentation and does
not apply if the Software Product or Software Documentation fails to perform due to accident, neglect, misuse, failure of electrical power, air
conditioning humidity control, transportation, or any cause other than ordinary use. The above warranty does not apply if the CUSTOMER has modified
the program'product or Software Documentation.
10.2 KIVA does not represent or warrant that the Software Product and Software Documentation will meet CUSTOMER'S requirements or will operate
in the combinations which may be selected for use by the CUSTOMER, that the operations of the Software Product and Software Documentation will
be uninterrupted or error-free or that all defects will be corrected.
10.3 CUSTOMER agrees to allow KIVA the opportunity to make repeated efforts within a reasonable time to correct programming errors. KIVA'S
undertaking to make corrections in accordance with the foregoing warranty shall be the extent of KIVA'S warranty obligation in all situations involving
performance or non-performance of the Software Product and Software Documentation furnished or to be furnished under this Agreement.
10.4 THE WARRANTY STATED ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EACH OF
WHICH IS EXPRESSLY DISCLAIMED. SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, SO THEUMITATION IN THIS SECTION MAY NOT BE
APPLICABLE. SUCH A WARRANTY, IF APPLICABLE, PROVIDES SPECIFIC LEGAL RIGHTS, AND OTHER RIGHTS MAY EXIST DEPENDING
ON THE STATE OR JURISDICTION.
11. LIMITATION OF REMEDIES AND DAMAGES.
11.1 CUSTOMER'S exclusive remedy for any claim whatsoever against KIVA, regardless of form, shall be either (1) the correction by KIVA of errors
in the Software Product and Software Documentation as provided in Paragraph 10.1, or (2) if, after repeated efforts, KIVA is unable to make the
Software Product and Software Documentation operate as warranted, for actual damages to the limits hereinafter set forth.
11.2 KIVA'S liability for damages to the CUSTOMER for any cause whatsoever, and regardless of the form of action, whether in contract or in tort,
including negligence, shall be limited to the actual damages, not to exceed the License Fee actually paid by the CUSTOMER for the Software Product
and Software Documentation as set forth in the SCHEDULE and if the damages relate to only a particular Software product or Software documentation
such damages shall be limited to the License Fee actually paid with respect to such Software Product or Software Documentation.
11.3 IN NO EVENT SHALL KIVA BE LIABLE TO CUSTOMER FOR ANY CLAIM OF ANY NATURE WHATSOEVER MADE AGAINST CUSTOMER
BY ANY THIRD PARTY AS A CONSEQUENCE OF TlfE CUSTOMER'S USE OF THE SOFTWARE PRODUCT AND SOFTWARE DOCUMENTATION
OR FOR ANY CLAIM BY CUSTOMER OR ANY THIRD PARTY FOR LOST BUSINESS, REVENUES, OR PROFITS, LOSS OF DATA, COSTS OF
SUBSTITUTE SOFTWARE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, PUNmVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES
WHETHER SUCH CLAIM ARISES OUT OF THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE PRODUCT OR SOFTWARE
DOCUMENTATION, OR OTHERWISE IN CONNECTION, WITH .THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT OR OF
OBLIGATIONS UNDER TlfIS AGREEMENT OR THE LICENSE GRANTED, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT BASED
ON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL THEORY EVEN IF KIVA
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
11.4 KIVA shall not be liable for any damages caused by delay in delivery, installation or furnishing of the Software Product or Software Documentation.
11.5 No action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action
has accrued, except that an action for non-payment of any License Fee due ,under this Agreement may be brought within one (1) year after the date
of last payment.
11.6 Some states and other jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental.dam.ages, so the above
limitation may not be applicable.
KVSFTLIC 2/15/90 Rev 6/4/91 Page 2
12. PERMISSION TO COpy
12.1 CUSTOMER may copy in whole or in part any Software Product or Software Documentation; provided, however, that only the number of copies
required to serve CUSTOMER'S actual need shall be made, and provided, further, that such copies may only be used in the designated Operating
Environment specified in Exhibit 2.
12.2 All copies of Software Product and Software Documentation made by CUSTOMER for CUSTOMER'S own use, induding translations, compilations,
partial copies within Modifications or Updated works shall at all times continue to be the property of KIVA. CUSTOMER will maintain records of the
number and location of the original and all copies of the Software Product and Software Documentation and will make these records available to KIVA
at any time if the original or any copy of such materials will be kept at any location other than that of the designated CPU. CUSTOMER will insure,
prior to disposing of any media, that any Software Product contained thereon has been erased or otherwise destroyed and that similar destruction has
occurred as to the Software Documentation.
13. PERMISSION TO MODIFY AND UPDATE. ADDmONAL FUNCTIONS.
13.1 CUSTOMER may make such modifications to the Software Product or updates or replacements of the Software Documentation as CUSTOMER
may desire for CUSTOMER'S own use, and may merge them into other programs or documentation. CUSTOMER may also make such Additional
Functions as CUSTOMER may desire for CUSTOMER'S own use. CUSTOMER acknowledges and agrees that such modifications and such updated or
replacement Software Documentation, and such Additional Functions, when made or developed, shall belong to and be owned solely by KIVA, shall
constitute the intellectual property, including trade secrets, of KIVA, and shall be used by CUSTOMER only for its own internal use, and subject to the
restrictions contained in this Agreement, including, but not limited to, the provisions of Section 13.
13.2 CUSTOMER shall, within 30 days thereof, notify and provide KIVA with each and every modification or addition it may make to the Software
Product or Software Documentation; and in any event, CUSJ:OMER shall allow KIVA the right, upon reasonable notification and during normal business
hours, to discover and identify the existence of any modifications to the Software Product, updates or replacements to or of the Software
Documentation and Additional Functions.
13.3 KIVA shall have the right, at its sole discretion, to market or otherwise commercialize or exploit the modifications, updates or replacements and
Additional Functions made or created by CUSTOMER to or of the Software Product and Software Documentation, induding, but not limited to the right
to determine the pricing, terms and conditions for such marketing, commercializing or exploitation. In the event that KIVA determines to market,
commercialize or exploit the modifications, updates or replacements and Additional Functions, KIVA will notify CUSTOMER of the initial price determined
by KIVA for the marketing of such modifications, updates or replacements and Additional Function, and KIVA shall pay to CUSTOMER a sum equal to
twenty percent (20%) of such license fee upon the licensing by KIVA of said modifications, updates or replacements and Additional Function to a
Licensee, but only when such license fee is collected from said Licensee. KIVA shall make such payments only until the cumulative amount paid to .
CUSTOMER equals three (3) times the initial license fee established by KIVA for the licensing of said mOdifications,updates or replacements and
Additional Function. No additional payments will thereafter be made to CUSTOMER.
13.4 Upon termination of this Agreement, for any reason, CUSTOMER'S use of the modified programs of the Software Products, updates or
replacements to or of the Software Documentation and Additional Functions shall d.iscontinue as if permission to modify, update, replace, merge or
make Additional Functions had never been granted, and no license, implied or otherwise, to use the modified programs, updates or replacements or
Additional Functions shall extend beyond such termination.
13.5 CUSTOMER hereby assigns to KIVA the sole and exclusive right, title and interest in and to all such modified Software Products, all updates or
replacements to or of the Software Documentation and all Additional Functions, and all copies of such, without further consideration. CUSTOMER
agrees to assist KIVA in.every proper way to obtain and from time to time enforce patents or copyrights on said items in any and all countries. To
that end CUSTOMER agrees to execute all documents for use in applying for and obtaining and enforcing such patents and copyrights as KIVA may
desire, together with any assignments of patents and copyrights to KIVA or persons designated by it. CUSTOMER'S obligation to assist KIVA in
obtaining and enforcing patents or copyrights for such items in any and all countries shall continue beyond the termination of this Agreement. KIVA
shall, however, compensate CUSTOMER at a reasonable rate for time actually spent by CUSTOMER at KIVA'S request on such assiStance. In the event
that KIVA is unable for any reason whatsoever to secure CUSTOMER'S signature to any lawful and necessary document required to apply for or execute
any patent or other application with respect to such an item (including renewals, extensions, continuations, divisions, in part of the item), CUSTOMER
hereby irrevocably designates and appoints KIVA and its duly authorized officers and agents as CUSTOMER'S agents and attorneys-in-fact to act for
and in CUSTOMER'S behalf and to execute and file any such application and to do all other lawfully permitted acts to further the prosecution of the
application with the same legal force and effect as if executed by CUSTOMER. In the event (and to the extent) that the items contain any items or
elements which may be proprietary to CUSTOMER, CUSTOMER hereby grants to KIVA an irrevocable, perpetual, non-exclusive, royalty-free, world-wide
license to use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based on such pre-existing rights and authorize
others to do any of the foregoing.
14. PROTECTION OF LICENSED SOFTWARE PRODUCTS AND SOFTWARE DOCUMENTATION.
14.1 CUSTOMER acknowledges and agrees that the Software Product and the Software Documentation, including all modifications, updates or
replacements thereof and all Additional Functions thereto, constitute intellectual property, including trade secrets, and proprietary data of KIVA, are
protected by civil and criminal law, and by the law of patent and copyright, that they are secret, confidential, valuable, special and unique assets of
KIVA, and that they are, and shall at all times remain, the sole and exclusive property of KIVA and that KIVA has all right, title and interest therein.
CUSTOMER agrees that their use and disclosure must be carefully and continuously controlled. CUSTOMER agrees to hold in strict confidence all
information and know-how, technical or otherwise, related to the Software Product and Software Documentation. CUSTOMER shall not divulge, furnish,
use for the benefit of any third person, or make accessible any Software. Product or Software Documentation in any form without KIVA's prior written
permission, except to CUSTOMER'S employees or consultants when on CUSTOMER'S premises for purposes specifically related to CUSTOMER'S use
of the Software Product and Software Documentation. As to all CUSTOMER'S employees, CUSTOMER shall take appropriate action by instruction,
agreement or otherwise, keeping complete documentation of all of the same as to identities, addresses, and dates, so as to enable CUSTOMER to satisfy
CUSTOMER'S obligations under this Agreement. As to all CUSTOMER'S consultants, prior to disclosing the Software Product and Software
Documentation to such consultants, CUSTOMER shall require such consultants to execute a Non-Disclosure Agreement in the form attached hereto.
as Exhibit "3", and take such other appropriate action as is reasonably necessary, so as to enable CUSTOMER to satisfy CUSTOMER'S obligations under
this Agreement. The execution by a consultant of CUSTOMER of such a non-disclosure agreement shall not operate to relieve Cl:JSTOMER from liability
for acts of such consultant resulting from the breach of this AGREEMENT. Neither this Agreement, nor any Software Product nor Software
Documentation may be assigned, sublicensed, or otherwise transferred by CUSTOMER without prior written consent from KIVA.
14.2 CUSTOMER understands that the Software Product and Software Documentation are subject to the Copyright Act of the United States.
CUSTOMER further agrees that the placement of a copyright notice on any portion of the Software Product or Software Documentation will not be
construed to mean that such portion has been published and will not derogate from any claim that such portion is a trade secret or contains proprietary
KVSFTLIC 2/15/90 Rev 6/4/91 Page 3
and confidential information.
14.3 CUSTOMER agrees with respect to any copyrighted Software Product or Software Documentation to reproduce and include the copyright notice
of KIVA in the same form as contained on the Software Product and Software Documentation supplied by KIVA hereunder on any copies made by
CUSTOMER, whether such copies are of the whole or part, in any form, including modifications of the Software Product and Software Documentation
made in accordance with this Agreement.
14.4 If CUSTOMER has not licensed source code, CUSTOMER shall not create or attempt to create, or permit others to create or attempt to create
source code, by reverse engineering or otherwise.
14.5 CUSTOMER agrees to notify KIVA immediately of the unauthorized possession, use or knowledge of any item supplied under this license and of
other information made available to the CUSTOMER under this Agreement, by any person or organization not authorized by this Agreement to have
such possession, use or knowledge. CUSTOMER will promptly furnish full details of such possession, use or knowledge to KIVA, will assist in preventing
the recurrence of such possession, use or knowledge, and will cooperate with KIVA in any litigation against third parties deemed necessary by KIVA
to protect its proprietary rights. CUSTOMER'S compliance with this paragraph shall not be construed in any way as a waiver of KIVA'S right to recover
damages or obtain other relief against CUSTOMER for its negligent or intentional harm to KIVA'S proprietary rights, or for breach of contractual rights.
15. RIGHTS IN DATA.
" CUSTOMER shall retain rights in the Data stored in the Database Structures. Notwithstanding the foregoing, CUSTOMER grants KIVA the right to use
the Data for any business purposes with the understanding that any release of CUSTOMER'S Data to other parties must be preauthorized by the
CUSTOMER in writing.
16. TERMINATION ON DEFAULT.
This Agreement and the license granted hereunder may be terminated by KIVA if CUSTOMER is in default or breach of any proviSions of this Agreement
if such default or breach is not corrected within thirty (30) days of the receipt of written notice thereof. Said written notice must set forth particulars
of the alleged default or breach. Provided, however, that if CUSTOMER has breached its duties of confidentiality and non-disclosure as set forth in
this Agreement, this Agreement and the license may be terminated immediately upon written notice, and KIVA shall be entitled to an injunction
restraining CUSTOMER from breaching or continuing to breach the same, without showing or proving any actual damage, CUSTOMER hereby
acknowledging that other remedies are inadequate. CUSTOMER'S obligations and any damages arising from CUSTOMER'S breach of this Agreement
shall survive termination. KIVA's remedies provided herein shall not be deemed exclusive but shall be cumulative and shall be in addition to all other
remedies provided by law and equity. No delay or omission in the exercise of any remedy herein provided or otherwise available to KIVA shall impair
or affect its right to exercise the same.
17. RETURN OR DESTRUCTION ON TERMINATION.
Within one (1) month after the termination for any reason of this Agreement and the license granted hereunder, CUSTOMER will furnish written
notification to KIVA certifying that through CUSTOMER'S best efforts and to the best of CUSTOMER'S knowledge, the.original and all copies of the
Software Product and the Software Documentation received from KIVA or made in connection with such license has been returned to KIVA or destroyed.
This requirement will apply to all copies in any form, including translations, whether partial or complete, and whether or not modified or merged into
other programs as authorized herein. However, upon prior written authorization from KIVA, CUSTOMER may retain a copy for archive purposes only.
18. RIGHT TO PERFORM SYSTEM AUDIT
To insure compliance with the terms of this Agreement and to assist KIVA in the protection of its proprietary rights, CUSTOMER shall permit
representatives of KIVA the right, upon reasonable notification and during normal business hours, to perform a systems audit of the subject Software
Product and any modifications, updates.or replacements of the Software Product and Software Documentation and any Additional Functions made by
CUSTOMER.
19. PERSONAL AGREEMENT.
This Agreement shall be considered a personal agreement with CUSTOMER. CUSTOMER shall not sell, transfer, assign or subcontract any right or
obligation hereunder without the prior written consent of KIVA nor shall this Agreement or any rights herein conferred be pledged or hypothecated
in any manner whatsoever. Any attempted act in derogation of the foregoing shall be null and void.
20. SURVIVAL BEYOND TERMINATION.
Any remedies for the breach of this Agreement and the duties, obligations, covenants and representations of CUSTOMER contained in this Agreement
shall survive the termination of this Agreement.
21. ATTORNEYS' FEES.
Subject to the limitation of KIVA's liability as set forth in Paragraph 11.2 of this Agreement, if any action or suit is brought with respect to a matter
or matters covered by this Agreement, all"costs and expenses of the prevailing party incident to such proceedings, including reasonable attorneys' fees,
shall be paid by the nonprevailing party.
22. SECTION HEADINGS.
The section headings used in this Agreement are inserted only for convenience and are in no way to be construed as part of such sections or as a
limitation on the scope of the particular section to which they refer.
23. USE OF PRONOUNS.
Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter form, and the singular
form of nouns, pronouns and verbs shall include the plural and vice-versa.
24. GOVERNING LAW.
- The construction and performance of this Agreement shall be governed by the laws of the State of Utah without regard to the conflict of laws provisions
th.ereof. CUSTOMER hereby consents to the jurisdiction of the Courts of the State of Utah with respect to any right of action arising under this
Agreement.
25. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between KIVA and CUSTOMER and shall not be modified or rescinded except in writing signed by
both parties. If any of the provisions or portions thereof of this Agreement are invalid under any applicable statute or rule of law, they are to that
extent to be deemed omitted and the remaining proviSions shall not in any way be affected or impaired thereby.
KVSFTLIC 2/15/90 Rev 6/4/91 Page 4
26; NOTICE.
Any notice required or permitted to be made or given pursuant to this Agreement shall be sufficiently made or given on the date of mailing if sent to
a party by ~ertified mail, postage prepaid, addressed to the other party at the address set forth at the beginning of this Agreement.
27. ACCEPTANCE.
This Agreement is only effective upon final acceptance by KIVA at its corporate office in the State of Utah by the execution thereof by the President
of KIVA.
CUSTOMER ACKNOWLEDGES THAT IT HAS R!=AD THIS AGREEMENT, INCLUDING ALL PRINTED AND INSERTED LANGUAGE,
UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. CUSTOMER
FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT SUPERSEDES ALL PROPOSALS, BIDS, RESPONSES TO BIDS AND
THE LIKE, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.
CUSTOMER: LICENSOR:
KIVA
9662 South 700 East
Sandy, Utah, 84070
.
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed:
Name & Title:
Date:
Signed:
Name & Title:
Date:
Signed:
Name & Title:
Date:
KVSFrLIC 2/15/90. Rev 6/4/91 Page 5
. EXHIBIT 1 - SCHEDULE(TO KIVA SOFTWARE LICENSE AGREEMENT)
Software
Product
Code Description User Level Price
U;) "IVd Lana 1I11UI mdllon ;)Y:'lt:11I .
t'(lU;) "IVd t't:11I1I1.:> Olln~IJt:l.lIUns ;)Y~lt:1I1
"IVdWorU "Ivawuru IVIIl.roSOrl vvoru Inlt:lldl.t:
. KemUle "Iva nspeuor ;)YSlem
ell..
Total Software Licenses $0.00
. The undersigned employees of Consultant have read the foregoing and agree to comply with this Nondisclosure Agreement and be bound thereby.
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date:
Signed: Signed:
Name & Title: Name & Title:
Date: Date
KIVA Form NONDISCL.WP5 10/23/90
FEE 26 '01 02 : 58P~1 P.l/!
.
Exhibit "3"
(TO KIVA SOFTWARE LICENSE AGREEMENT)
CONSULTANT NON-DISCLOSURE AGREEMENT
Ameritel< Orlando. inc. ("Consultant") acknowledge~ that cm OF WINTER SPRINGS ("Licensee") and KIVA, a Utah corpol<ltion ("KIVA") have entered
into a certain Software license Agreement by the terms of which Licensee acquired the right to use certain computer software and its related
documentation (hereInafter collectively "Licensed Software"), which Licensed Software is proprietary to KIVA. Consultant further acknowledges that
Licensee is required under the terms or said Agreement to protect the secrecy and confidentiality of the Licensed Software by, among other things,
obtaining a confidentiality agreement from persons having access to the Licensed Software.
In consideration of Licensee's retainIng Consultant, and other good and valuable conSideratiOn, the sufficiency of which is acknowledged, Consultant
rcprcscntl: ;lnd warrants as follOWS:
1. ConS\JIr."nt acknowledges that the Ucensed Software constitutes intellectual property of KJVA and has tangible value, Cllntains valuable trade secret,
patent, copyrlght and confldential information of KIVA, and is the sole property of KIVA.
2. Consultant shall examine and use the licenSEd Software solcly for the purpose of assisting Licensee in the use of the Licensed Software and for
no other purpose whatsoever. Consultant understands and agrecs that the Licensed Software is protected by civil and criminal law, and by the law
of patent ilnd copyright and that Consultant shall hold, in strict confidence, all information and know-how, technical or otherwise related to the Ucensed
Software, and shall not use such Information and know-how, technical or otherwise, for its own use, nor divulge, furnish or use It for the benefit of
any third person, except as authorized here.in. Consultant shall not in any manner or form reproduce, copy, dlsdose, provide or otherwise make
available, In whole or In part, the licensed Software or any related material, except to KIVA'S employees, or to Licensee's employees In the scope of
the.lr employment, or to Consultant's employees, in the. scope of their employment and who hilVe signed this Consultant Nondisclosure Agreement.
Such disclosure shall be In confldence for purposes specifically related to Consultant's work with the Licensed Software during the tlme sucl1 employees
are on Licensee's premises with Licensee's permiSSion and are subject to Licensee's seCUritY and control.
3. Consultant shall ensure that any copy, in whole or in part, of the LIcensed Software made by it shall have affixed thereto KIVA'S proprietary,
copyright and trade secret notice in such manner and location as to give reasonable notice 9f the proprietary,'. patent, copyright and trade secret rights
of KIVA. Consultant shall ti~veno right to print or copy the Licensed Software; In whole or in part,except as authorized herein. All such copies shall
be and shall remain the property of KIVA, to be returned to Licensee by Consultant upon written request and/or termination of Consultant's right to
elCamlne and use the Licensed Software.
4. Consultant shall take all appropriate action, whether by instruction, agreement or otherwise, to ensure the protection, confidentiality and security
of the Licensed Software or any related materials and to satisfy its obligations under this Nondisclosure Agreement Consultant agrees that Consultant's
obligations with respect to the confidentiality and securitY of all information disclosed to Consultant survive the termlnaUon of any agreement or
relationship between KIVA, the Licensee, the Consultant, andlor any employee of such. organizations. This Nondisclosure Agreement shall be
interpreted in accordance With the laws of the State of Florida.
ACKNOWLEDGED AND ACCEPTED:
CONSULTANT FIRI"': LICENSEE:
AMERITEK ORLANDO, lNC. cm OF WINTER SPRINGS
P.O. BOX 160608 1126 E. STATE ROAD 434
ALTAMONTE SPRINGS, FL 32716 WINTER SPRiNGS, .FL 32708
Signed: ~~ ~ Signed: /I ~ tz) 1/11- ,;-
Name & Title: l.:JI.Jf FrD'l..Jer /I~~I- tt;,..- Name &. Title: Ronald W. McLemore
City Manager
Date: 4? 3 - (D - (/) I Date: 3/2/01
The undersigned employees of Consultant have read the foregoing and agree to comply with this Nondisclosure Agreement and be bound thereby.
Signed: Signed;
Name & Title: Name &. Title:
Date: Date:
KIVA Form NONDISCL.WP5 10/23/90
CCO_""JC._""JQG\1 1C:::C\C, 98X P.01