HomeMy WebLinkAboutGE Intelligent Platforms, Inc. End User License Agreement incl. Sooftware Key Master Agreement - 2011 09 02 G EULA with Software Key — 1
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End User License Agreement including Software Key pr.- .r-• -e 3
Master Agreement
Between
GE Intelligent Platforms, Inc. and City of Winter Springs
THIS AGREEMENT Is made thls 30th day of August, 2011 by and between GE Intelligent Platforms, Inc., a Delaware
company with principal offices at 2500 Austin Drive, Charlottesville, Virginia 22911 (hereinafter "GE ") and City of
Winter Springs a Florida municipal corporation with principal offices at 1126 East State Road 434 Winter Springs,
FL 32708 (hereinafter "Customer").
WHEREAS, Customer desires to license software with Software Keys (as defined in Exhibit A) from GE; and
WHEREAS, GE desires to license software with Software Keys to Customer;
NOW, THEREFORE, GE and the Customer agree as follows:
1. GE hereby licenses to Customer the software listed below, for use at the Customer site(s) listed
below, pursuant to the terms and conditions attached as Exhibit A.
GE Catalog Number GE Software Program /Component Maximum Number of
Copies Licensed
200096633 IC6471FGLBLSRVRM -IFIX WebSpace Server including (Client Dev and 2 1
Web Users
OC647IFGLBLCLNOO1M4FIX Webspace: Additional lUeer
OC6471FGL8LCLN001M -)FIX Webspace: Additional lUser
Customer site(s) (address of specific building(s) or complex(es)):
126 East State Road 434
Winter Springs, FL 32708
2. The terms and conditions attached as Exhibit A shall govern any future license by GE to Customer
of software that includes a Software Key unless otherwise agreed In writing by the parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly
authorized representative.
CUSTOMER GE INTELLIGENT PLATFORMS, INC.
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Name: Kevin L. Smith • Name: _O `�j
Title: City Manager Title: ! J � 7 �
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Date: _ August 30, 2011 Date: /2 /I...e, .'
GEIP- EULA with Software Key - 110309
Exhibit A
End User License Agreement including Software Key
Terms and Conditions
1. DEFINMONS
L1 'Application Software" shall mean those portions of the Ucensed Software, In object code form only, created by GE.
1.2 "Application Templates" shall mean the part numbered software components created by GE for a specific application, which can include forms, displays, workflows, reports, user
activities, device configuration, and system configuration.
1.3 "Designated Computer(s)" shall mean the one (1) computer per copy of the software licensed upon which Customer shall run the Ucensed Software.
1.4 "Third Party Software" shall mean software, including but not limited to operating systems, owned or licensed by a third party that Is supplied to Customer by GE.
1.S "Ucensed Software" shall mean the Application Software plus any other software (Including Third Party Software), in object code form only, and any Application Templates
supplied by GE pursuant to this Agreement. N no operating system software Is included M the software provided under this Agreement, Customer must make provision for any required
operating system software licenses.
1.6 "Software Key" shall mean the portion of the Application Software that enables the Customer to run the quantity of Ucensed Software that has been licensed by the Customer,
2. UCENSE
2.1 Customer Is granted only a personal, non - transferable, nonexclusive license to install and use, only on the Designated Computer(s), the number of copies of the Licensed
Software that Is spedfled on the Master Agreement or a purchase order accepted by GE ( "Purchase Order"). Customer's use of such Ucensed Software is limited to only the Customer slte(s)
( "Customer SRe(s)") listed on the Master Agreement or Purchase Order. Customer may also print out up to the same number of each user manual included with the Ucensed Software for
use at Customer Site(s). Customer may make one copy of the Ucensed Software In machine readable form for backup purposes In support of Customers use of the Ucensed Software. No
other copies shag be made unless authorized in writing by GE. Customer may not reverse engineer, decompile or reverse compile or disassemble, re- engineer or otherwise modify the
software. The Ucensed Software, comprising proprietary trade secret Information of GE and /or its licensors, shall be held In confidence by Customer and protected from copying or
disclosure to third parties. No title to the Intellectual property Is transferred. Customer must reproduce and always Include all applicable copyright notices and proprietary markings on any
copy. Customer hereby acknowledges and agrees that any Ucensed Software that is embedded within GE hardware, shall be used, redistributed and/or resold only to the extent permissible
under this Agreement and only embedded within the GE hardware with which it was provided.
2.2 All rights and benefits afforded to GE under this Agreement shall apply equally to the owner of the Third Party Software and Its licensors (collectively, the 'Third Parties ") with
respect to the Third Party Software. The Third Parties are intended third party beneflclarles of this Agreement. The provisions of this Agreement relating to the Ucensed Software, as the
same Incorporate Third Party Software, are made expressly for the benefit of, and are enforceable by, the Third Parties. The Third Parties retain tide to the Third Party Software. Unless
the Third Parties extends pass - through warranty covering the Third Party Software to Customer, all Third Party Software is provided *AS I5 without warranty of any Idnd, and the Third
Parties disclaim aflwarranties, either express or implied, Including but not linked to the implied warranties of merMantablllty, title, non - infringement or fitness for particular purpose
with regard to the Third Party Software. The Third Parties shall not have any liability for spacial, Indirect, punitive, inddentel or consequential damages.
2.3 Customer shall at all times maintain current records of the number of copies of the Ucensed Software In use and the precise location of the computers upon which the copies
are used. Upon request of GE, but no more than once each calendar quarter, Customer shall provide such Information In wilting to GE. GE shall have the right to Inspect, at its own expense,
but not more than once each calendar year, the computers and computer stations upon which the copies are used to ensure that Customer is wing the Ucensed Software only as provided in
this Agreement.
2.4 The Customer acknowledges GE's representation that the Ucensed Software Is comprised of Intellectual properly of GE and /or Its licensors and is protected by copyright law.
No title to the Intellectual property is transferred to Customer. The Customer further acknowledges that the Ucensed Software comprises valuable confidential Information of GE and /or its
licensors, the development of which required the expenditure of considerable time and money. The Customer agrees that neither the Ucensed Software, nor any postlon or version thereof,
nor the direct product thereof, Including printed commercial and technical data or information supplied by GE relating thereto, may be licensed, resold, distributed, exported, or used In any
manner other than the speclfk internal use by the Customer at the Customer Site(s) as net forth above. Customer will keep all copies of the Ucensed Software (except for those installed or
those user manuals printed out es provided in this Agreement) Inc secured safe or cabinet, which shall be opened only as necessary for Customers use in accordance with the terms of thls
Agreement. CUSTOMER ACKNOWLEDGES THAT ANY USE OR DISCLOSURE OF THE SOFTWARE KEY IN ANY MANNER INCONSISTENT WITH 1116 PROVISIONS OF THIS AGREEMENT MAY CAUSE
SEVERE AND IRREPARABLE HARM TO GE, WHICH MAY SUBJECT THE CUSTOMER TO SIGNIFICANT DAMAGES AND /OR PENALTIES. CUSTOMER CONSENTS TO ANY REQUEST BY GE IN A COURT
OF COMPETENT JURISDICTION FOR INJUNCTIVE OR OTHER EQUITABLE REUEF SEEKING TO RESTRAIN SUCH USE OR DISCLOSURE. THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER IS
UABLE TO GE FOR ANY LOST REVENUES OF GE ANYWHERE IN THE WORLD RESULTING FROM UNAUTHORIZED COPYING, DISCLOSURE, OR TRANSFER OF THE SOFTWARE KEY OR ANY PART
•
THEREOF BY THE CUSTOMER. The provisions of this section shag survive termination of this Agreement for any reason.
2.5 IF CUSTOMER TRANSFERS POSSESSION OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER PARTY WITHOUT WRITTEN CONSENT OF GE, THIS LICENSE IS AUTOMATICALLY
TERMINATED. Any attempt otherwise to sublicense, assign or transfer any of the right, duties or obligations hereunder is void.
2.6 H the Licensed Software or assodated documentation Is provided to any U.S. Government entity, unit, or agency, the restrictions set forth at section 52.227 -19(c) rCommerclai
computer software - restricted rights') of the Federal Acquisition Regulations (FARs) shall apply. If the Ucensed Software or associated documentation is provided to the U.S. Government,
Department of Defense (DOD), or any entity, unit, or agency thereof, the restrictions set forth at section 252.227.7015 ("Technical Data - Commercial Items ") and section 252.227- 7013(c)(1)
('Technical Data . Restricted Rights ") of the DOD FAR Supplement (DFARS) shall also apply.
3. WARRANTY
3.1 GE warrants that the Application Software will be In substantial conformance with the manual pertaining thereto as of the date of shipment by GE. if, within ninety (90) days of
date of shipment It Is shown that the Application Software does not meet this warranty, GE will, at Its option, either correct the defect or error In the Application Software, free etchers', or
make available to Customer satisfactory substitute software, or, H none of the foregoing Is reasonably available, return to Customer all payments made as license fees and terminate the
license with respect to the Application Software affected. GE does not warrant that operation of the Application Software wilt be uninterrupted or error free or that R will meet Customer's
needs. All other portions of the Licensed Software are provided an Is" without warranty of any kind.
3.2 GE warrants that the media on which the Application Software Is delNered wlN be free from defects In material or workmanship under normal use and service for a period of
ninety (90) days from the date of delivery. H any defects are discovered in the media and reported by Customer within ninety (90) days after delNery, GE shall, at no cost to Customer, upon
return of media to GE, replace the media and deliver to Customer a new and complete copy of the Application Software,
3.3 Any modification to the Licensed Software by the Customer without the express written consent of GE shall void the warranty.
3.4 WiTH RESPECT TO THE SOFTWARE WHICH IS THE SUBJECT OF THIS AGREEMENT, THE FOREGOING WARRANTIES ARE EXCWSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES
WITH RESPECT TO THE UCENS® SOFTWARE WHETHER WRITTEN, ORAL, IMPLED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE of TRADE SHALL APPLY.
4. LIMITATION OF LIABILITY
4,1 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT UABILITY, OR OTHERWISE SHALL GE OR ITS SUPPUERS BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT UMITED TO, LOSS OF PROFIT OR REVENUE, LOSS OF USE OF
THE LICENSED SOFTWARE OR ANY PART THEREOF OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES,
SERVICES OR REPLACEMENT POWER, DOWN TiME COSTS, OR CLAIMS OF CUSTOMER'S CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF GE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
4.2 EXCEPT AS PROVIDED IN SECTION 5, INDEMNITY, IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT UABILITY OR
OTHERWISE, SHALL GE's LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM
THE LICENSED SOFTWARE OR ANY PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER, EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSED SOFTWARE. AU SUCH
LIABILITY SHALL TERMINATE UPON THE TERMINATION OF THE WARRANTY PERIOD AS SET FORTH IN SECTION 3.
4.3 N GE furnishes Customer with advice or other assistance which concerns Licensed Software or any portion thereof supplied hereunder or any system or equipment on which any
such software may be Installed and which is not required pursuant to this Agreement, the furnishing of such advice or assistance will not subject GE to any liability, whether In contract,
Indemnity, warranty, tort, (including negligence), strict liability, or otherwise.
4.4 The products to be licensed or sold hereunder are not intended for use In any nuclear or weapons production facility or activity, or other activity where failure of the products
could lead directly to death, personal Injury or severe physical or environmental damage, If so used, GE disclaims all liability for any damages arising as a result of the hazardous nature of
the business In question, Including but not limited to nudear, chemical or environmental damage, Injury or contamination, and Customer shall indemnify, hold harmless and defend GE, Its
officers, directors, employees and agents against all such liability, whether based on contract, indemnity, warranty, tort (Including negligence), strict liability, or otherwise, regardless of
whether GE had knowledge of the possibility of such damages.
5. INDEMNITY
5.1 GE warrants that the Application Software shall be delivered free of any rightful claim for infringement of any United States patent, copyright, trademark or trade secret. M
notified promptly In writing and given authority, information and assistance, GE shall defend, or may settle, at its expense, any suit or proceeding against Customer so far as based on a
claimed infringement whldl would result in a breach of this warranty and GE shall pay all damages and costs awarded therein against Customer due to such breach. In case the Application
Software is In such suit held to constitute such an infringement and its use is enjoined, GE shall, at its expense and option, either procure for Customer the right to continued use, or replace
same with a non - infringing product or part, or modify the Application Software so that it becomes non-infringing, or remove the software and refund the license charge pertaining thereto
(less reasonable depredation for any period of use) and any transportation costs separately pald by Customer. The foregoing states the entire liability of GE for patent, copyright, trademark
and trade secret infringement by the Licensed Software or any part thereof.
5.2 The Indemnity under the preceding paragraph shall not apply to any use of Application Software In conjunction with any other product in a combination not furnished by GE as a
part of this transaction. As to any such use in such combination, or any Improper or unauthorized use, Installation, or operation of the Application Software, GE assumes no liability
whatsoever for patent, copyright, trademark or trade secret Infringement and Customer will hold GE harmless against any infringement claims arising therefrom (including, but not limited to
reasonable attorney's fees).
6. TERM AND TERMINATION
6.1 This Agreement is effective when signed by both parties and shall remain in effect unless terminated as set forth herein.
6.2 Customer may terminate the license granted hereunder at any time by destroying the licensed Software together with all copies thereof and notifying GE in writing that all use
of the Ucensed Software has ceased and that the Licensed Software has been destroyed.
6.3 GE, upon thirty (30) days notice, may terminate thls Agreement and /or any Ikense hereunder if Customer faits to perform any obligation or undertaking to be performed by It
under this Agreement or if Customer attempts to assign this Agreement without the prior written consent of GE. Within twenty (20) days after any such termination of this Agreement,
Customer shall certify In writing to GE that ail use of the Ucensed Software or the affected portion thereof has ceased, and that the Ucensed Software or portion thereof has been returned
or destroyed, in accordance with GE's instructions.
6.4 Sections 2.4, 4, 6 and 7 of this Agreement shall survive any expiration or termination and remain in effect. Termination of this Agreement or any Manse hereunder shall not
relieve Customer of its obligation to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges previously paid.
7. EXPORT
0 Customer intends to export (or reexport), directly or indirectly, the software products or technical data relating thereto supplied hereunder or any portion thereof, it 4 Customar's
responsibility to assure compliance with U.S. and any other applicable governmental export control laws and, if appropriate, to secure any required export licenses or approvals In
Customer's own name. Customer is also responsible for the accuracy and completeness of any Information or certification Customer provides for purposes of export control compliance.
8. PAYMENT TERMS
All quoted charges arising pursuant to this Agreement are due upon delivery of the Licensed Software or any hardware delivered as part of the same Customer order (whichever Is
earner) to which such charges pertain and shall be paid within thirty (30) days of the date of Invoice therefor. Prices quoted are exclusive of all sales, use, and excise taxes (and any other
assessments In the nature of taxes however designated). Customer shall pay all import duties and registration fees and all sales, use and excise taxes (and any other assessments in the
nature of taxes however designated) arising from the Ncensing of the Licensed Software hereunder, exclusNe of taxes based on GE's net income.
9. FORCE MAJEURE
GE shall not be responsible for failures to fulfill its obligations under this Agreement due to causes beyond its control.
10. GOVERNING LAW; VENUE
This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of few provisions. The provisions of the United Nations Convention on the
International Sale of Goods shell not apply to this Agreement. In any legal proceeding arising out of or related to this Agreement, venue shall be exclusively In Seminole County, Florida for
state court actions and In Orlando, Florida for federal court actions.
11. U.S. GOVERNMENT CONTRACTING
If Customer Is a U.S. Government entity or elects to sell products or services provided hereunder to the U.S. Government or to a contractor selling to the U.S. Government, the
following provisions apply: (e) Customer agrees that all products and services provided by GE meet the definition of "commercial -off- the -shelf (COTS) or 'commercial item* as defined in
FAR 2.101, and that the subparagraph terms of FAR 52.212 -5(e) or FAR 52.244-6 (or, for orders from the U.S Government, FAR 52.212 -5 and FAR 52.212-4 with tailoring to the extent
permitted by FAR 12.302 by replacing ail paragraphs except those listed In FAR 12.302(h) with these Conditions of Sale), and (subject to subsection (el below) DFARS 252.212.7001(c) or
DFARS 252.2447000, whichever are applicable, apply only to the extent applicable to COTS or commerclal Items and only as appropriate for the dollar value of this order, (b) with regard to
any terms related to Buy American Act or Trade Agreements, the country of origin of products is unknown unless otherwise specifically stated In writing by GE; (c) Customer agrees t any
services offered by GE are exempt from the Service Contract Act of 1965 (FAR 52.222 -41); (d) Customer agrees that this sale Is not funded, in whole or In part, by the American Recovery and
Reinvestment Act unless otherwise set forth In a written agreement of the parties; and (e) Customer is solely and exclusively responsible for compliance with any other applicable statutes or
regulations governing sales to the U.S. Government, and GE makes no representations, certifications or warranties whatsoever with respect to the ability of its goods, services or prices to
satisfy any such statutes and regulations other than those contained herein.
12. ENTIRE AGREEME NT
This Agreement constitutes the entire Agreement with respect to the subject matter hereof and supersedes all proposals, oral or written, all previous negotiations and all other
communications between the parties with respect to the subject matter hereof. These terms and conditions shall prevail, notwithstanding any different, conflicting, or additional terms and
conditions that may appear on any purchase order or other Instrument submitted by Customer. Deviation from these terms and conditions are not valid unless confirmed In writing by an
authorized representative of GE. The invalidity of any portion of this Agreement shell not affect the remainder of this Agreement.
1N WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized representative.
CUSTOMER GE INTELLIGENT PLATFORMS, INC. / jpr-
Name: _Kevin L Smit Name: G
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Title: City Manager Title: t Li
Date: August 30, 2011 Date: