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HomeMy WebLinkAboutIT1997-0226 - Original - KIVA - Land and Permits Information System - 10/08/1997 C" KIVA SOFTWARE LICENSE AGREEMENT NAME AND ADDRESS OF CUSTOMER: City of Kent Agreement Date 220 4th Ave S Kent, WA 98032 Agreement Number 1. GRANT OF LICENSE. KIVA, a Utah corporation ("KIVA"), hereby grants to the CITY OF KENT, a Washington Municipal Corporation ("CUSTOMER") and CUSTOMER hereby accepts from KIVA, on the terms and conditions contained in this Agreement, a restricted, non-transferable and non-exclusive license personal to the CUSTOMER 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. DEFINITIONS. 2.1 "Additional Functions," means 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. 2.2 "Data," means the information to be supplied by the CUSTOMER. 2.3 "Database Structures, means 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 "Final Acceptance" means the date, as determined by CUSTOMER, that the Software Product and Software Documentation have been delivered, placed in operation, tested by the CUSTOMER, and have provided full functionality in the conduct of customary data processing and permitting activities for 60 days. 2.5 "Land and Permits Information Systems Bundle" means the Software Products and Software Documentation that formed the basis of KIVA's Response to RFP and the basis of this Agreement, including, at a minimum, the following system product functions, including any related subsystems: (a) Pre-Development Processing ORIGINAL (b) Permit Application and Issuance KIVA SOFTWARE LIC.AGREEWT.--Page 1 of 16,excluding exhibits 1 and 2 (c) Fee Tracking (d) Inspection Scheduling and Tracking (e) Certificate of Occupancy Issuance and Tracking (f) Parcel, Structure, Establishment Tracking, including, at a minimum, Address Tracking and Parcel Genealogy (g) Bond Tracking 2.6 "Operating Environment,"means the single designated central processing unit ("CPU") designated in Exhibit 2, in combination with the operating system, computers, machines, terminals and devices as also described in Exhibit 2. 2.7 "Request for Proposal" or "RFP" means the CUSTOMER's published document seeking proposals for a "Municipal PERMITTING System, Related Subsystems, and Support Services, issued on October 10, 1996. 2.8 "Response to RFP' means KIVA's response to CUSTOMER's RFP, dated November 5, 1996, together with KIVA's subsequent documentation submitted on December 11, 1996, and on January 16, 1997, and together with KIVA's two demonstrations presented at CUSTOMER's site on December 6, 1996 and January 16, 1997. 2.9 "Software Documentation," means, but will 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. 2.10 "Software Product," means 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. 2.11 "Software Support Agreement" means a separate agreement for additional monetary consideration entered into between KIVA and CUSTOMER providing for ongoing service, maintenance, update and telephone and onsite assistance for the Software Product and Software Documentation. 2.12 "Source Code" means all KIVA's source and object programs, including all corresponding documentation. 2.13 "Update(s)" means program corrections, enhancements or upgrades to licensed software within the scope of CUSTOMER's purchase of Software Product and Software Documentation. 3. TERM OF AGREEMENT. This license is granted for an initial term of fifteen (15) years from the effective 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. KIVA SOFTWARE LIC.AGREEWT.--Page 2 of 16, excluding exhibits 1 and 2 4. FINANCIAL PROVISIONS. 4.1 CUSTOMER shall pay KIVA for the Phase 1 license, products, documentation, structures, data and functions provided for in this Agreement according to the SCHEDULE attached as Exhibit 1, which exhibit is incorporated into this Agreement. The City may elect to obtain any or all of the products and services listed in Phase 2 of the SCHEDULE attached as Exhibit 1, at the City's option. The costs and terms of all items listed in the SCHEDULE attached as Exhibit 1 shall be in effect until October 1, 1998. 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 1.00% (12% annually), or fraction thereof, for failure to make a payment within thirty (30) days of the invoice date. 4.3 The fees shown on the attached SCHEDULE do not include any federal, state, municipal, or other government excise, sales, use, occupational, or like taxes, however designated, now in force or as may be enacted in the future; therefore, 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 the 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 KIVA is required to collect tax to be paid by CUSTOMER, the CUSTOMER shall pay the tax to KIVA on written demand. CUSTOMER agrees to pay a monthly charge of 1.00% (12% annually) on all taxes or other sums advanced by KIVA, if such sums are not paid by CUSTOMER to KIVA within thirty (30) days of the date of invoice or demand. 4.4 Provided KIVA complies with this Agreement and achieves final acceptance by the CUSTOMER as defined in Section 2.4 , there shall be no refund or credit due CUSTOMER for the Software Product and Software Documentation License fee in the event that the CUSTOMER terminates this Agreement for any reason other than KIVA's material breach prior to the end of its term. 5. RESPONSIBILITIES. 5.1 CUSTOMER stipulates that it has determined to accept the terms of the License of the Software Product and Software Documentation in reliance upon its own judgment and upon KIVA's Response to RFP. CUSTOMER has not relied, however, upon any representation by KIVA regarding (a) CUSTOMER's provision of the necessary diskettes, tapes and related supplies not required to be supplied by KIVA as part of this Agreement, all Data entered by CUSTOMER, necessary computer time made available by CUSTOMER, and CUSTOMER's selection of available hardware options; (b) CUSTOMER's determination of when to put KIVA software, products and documentation into use after KIVA's provision of Software Product and Documentation and all training provided for in this Agreement; and (c) the current level of training and proficiency of CUSTOMER's personnel. 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. KIVA SOFTWARE LIC.AGREEMT.--Page 3 of 16,excluding exhibits 1 and 2 6. OPERATING ENVIRONMENT DESIGNATION. The license granted under this Agreement authorizes CUSTOMER to use the Software Product on the CUSTOMER's Operating Environment. If the CPU 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 its designated operating environment at any time without incurring additional License Fees. However, if CUSTOMER requires additional training to adopt the Software Product and Documentation to the changed Designated Operating Environment, CUSTOMER will pay KIVA for that additional training time at KIVA's applicable rates at the time the training occurs. However, in no event will CUSTOMER be entitled to any refund of its initial License Fee payment. 8. ADDITIONAL LICENSES. CUSTOMER may obtain additional licenses to use the Software Product and Software Documentation listed in the SCHEDULE only upon execution of additional license agreements covering those installations and the payment of additional License Fees. If CUSTOMER increases the number of concurrent users during the warranty period, Customer will pay additional License Fees based on KIVA's pricing update, which forms part of KIVA's Response to RFP. After the expiration of the warranty period, CUSTOMER agrees to pay additional License Fees in accordance with the License Fees then charged by KIVA for a license to use the Software Product and Software Documentation for the increased number of concurrent users in CUSTOMER's total user group. 9. USER MANUALS. For each Software Product, KIVA will deliver to CUSTOMER certain Software Documentation, entitled "User Manual," that will provide CUSTOMER's product users complete and thorough written documentation on the KIVA products and systems that are the subject of this Agreement. The User Manual may be updated by KIVA from time to time, and these updates constitute a change in specifications. During the initial one-year warranty period, any updates issued by KIVA will be provided to CUSTOMER at no charge. 10. LIMITED WARRANTY. 10.1 KIVA represents and warrants that, for a period of one year from the date that the Software Products are fully installed and CUSTOMER has issued its Final Acceptance of the Software Product and Software Documentation, the Software Product and Software Documentation will be merchantable, will meet CUSTOMER's requirements as established in CUSTOMER's RFP and KIVA's response to CUSTOMER's RFP, and will further conform to the performance capabilities, specifications, functions, and other descriptions and standards applicable thereto, specifically including all specifications established in the User Manual and elsewhere by KIVA. KIVA further KIVA SOFTWARE LIC.AGREEWTT.--Page 4 of 16,excluding exhibits 1 and 2 warrants that it will maintain the software, including all updates, so that the software will operate in conformity with all improvements, additions, or modifications of the software installed at Customer's site or sites. 10.2 KIVA shall perform its services in a timely and professional manner by qualified maintenance technicians familiar with the software and its operation, and the services shall conform to the standards generally observed in the industry for similar services; however, KIVA will have an opportunity to make repeated efforts within a reasonable time to correct programming errors. 10.3 To the extent not inconsistent with the preceding Sections 10.1 and 10.2, KIVA does not represent or warrant that the Software Product and Software Documentation will operate in the combinations which may be selected for use by the CUSTOMER or that the operations of the Software Product and Software Documentation will be uninterrupted or error-free. During the one- year warranty period, KIVA will correct all defects to the extent those defects originate from the acts or omissions of KIVA's products or personnel. 10.4 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 substantially modified the Program Product or Software Documentation without KIVA's approval. 11. INDEMNIFICATION, LIMITATION OF REMEDIES AND DAMAGES. 11.1 KIVA agrees to defend, indemnify, and hold harmless the CUSTOMER, its officials, officers, employees, agents and volunteers from any and all claims, actions, judgments, losses, costs, (including personnel related costs, reasonable attorney's fees and all other claim related expenses) and damages whatsoever, including but not limited to claims made upon the CUSTOMER arising (a) by reason of accident, injury, or death to any person, to KIVA or to KIVA's agents, employees, servants and all subcontractors, or (b) by reason of injury to property arising out of or in connection with work performed under the Agreement, except upon a finding of a trier of fact that such loss was caused by the sole negligence of the CUSTOMER. This promise of indemnity shall specifically apply in the case of injuries to KIVA's own employees. 11.2 KIVA SHALL SPECIFICALLY AND EXPRESSLY WAIVE ANY IMMUNITY THAT MAY BE GRANTED IT UNDER THE WASHINGTON STATE INDUSTRIAL INSURANCE ACT, TITLE 51, RCW. Further, this indemnification obligation under this contract shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable to or for any third party under worker's compensation acts, disability benefits acts, or other employee benefit acts. KIVA SOFTWARE LIC.AGREEM"r--Page 5 of 16,excluding exhibits 1 and 2 11.3 To the extent not inconsistent with Sections 11.1 and 11.2, 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, or (2) if, after repeated efforts, KIVA is unable to make the Software Product and Software Documentation operate as warranted, for CUSTOMER's actual damages. 11.4 To the extent not inconsistent with Sections 11.1 through 11.3, 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 actual damages. 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 these copies may only be used in CUSTOMER's Operating Environment, or as needed by CUSTOMER. 12.2 All copies of Software Product and Software Documentation made by CUSTOMER for CUSTOMER'S own use, including 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 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 use its best efforts to insure, prior to disposing of any media, that any Software Product contained thereon has been erased or otherwise destroyed. 13. PROTECTION OF LICENSED SOFTWARE PRODUCTS AND SOFTWARE DOCUMENTATION. 13.1 CUSTOMER acknowledges and agrees that the Software Product and the Software Documentation, including all modifications, updates or replacements and all Additional Functions, constitute intellectual property, including trade secrets, and proprietary data of KIVA, and 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. To the extent allowed by law, 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. 13.2 As to all CUSTOMER'S employees, CUSTOMER shall take appropriate action by instruction, agreement or otherwise to fulfill CUSTOMER'S obligations under this Agreement. KIVA SOFTWARE LIC.AGREEKT.--Page 6 of 16, excluding exhibits 1 and 2 13.3 As to all CUSTOMER'S consultants, prior to disclosing the Software Product and Software Documentation to these consultants, CUSTOMER shall require the 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. 13.4 Neither this Agreement, nor any Software Product nor Software Documentation may be assigned, sublicensed, or otherwise transferred by either party without prior written consent from the other party. 13.5 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 and confidential information. 13.6 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. 13.4 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; however, if this Agreement is terminated by reason of KIVA's default, CUSTOMER or its agents may create or attempt to create source code, but only for CUSTOMER's sole use and purpose. 13.5 CUSTOMER agrees to notify KIVA immediately upon CUSTOMER's actual knowledge 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 that possession, use or knowledge to KIVA, will assist in preventing the recurrence of that 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. 14. 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 purpose connected with KIVA's business relationship with CUSTOMER, with the understanding that any release of CUSTOMER'S Data to other parties must be preauthorized by the CUSTOMER in writing. KIVA SOFTWARE LIC.AGREEMT.--Page 7 of 16,excluding exhibits 1 and 2 Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and Commercial General Liability insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and in the aggregate for personal injury, bodily injury, and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, and employer's liability. 17.2 Any payment of deductible or self insured retention shall be the sole responsibility of KIVA. 17.3 Prior to contract execution, the CUSTOMER, its officers, officials, employees, agents, and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of KIVA and a copy of the endorsement naming the CUSTOMER as additional insured shall be attached to the Certificate of Insurance. Copies of such documents shall be provided to the CUSTOMER prior to contract execution. 17.4 KIVA's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. 17.5 KIVA's insurance shall be primary insurance as respects the CUSTOMER, and the CUSTOMER shall be given thirty (30) calendar days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. 17.6 A failure to provide insurance coverage and written acceptance of the tendered policy shall be deemed to constitute a material breach of contract by KIVA. The CUSTOMER reserves the right to then award the contract to another bidder. In order to protect the public interest and notwithstanding any provisions herein to the contrary, KIVA's failure to comply with any provision in this Section 17 shall subject the contract to immediate termination without notice and without recourse by any person. 18. SOURCE CODE ESCROW. 18.1 KIVA agrees to place current copies of its source code in an escrow account with the CUSTOMER. The CUSTOMER will store current copies of the KIVA product source code and KIVA technical documentation. KIVA will update these copies within forty-five (45) calendar days of each major product release, which is estimated to occur once or twice each year. CUSTOMER will pay reasonable costs for creation and shipping of the electronic media containing the source code and technical documentation. CUSTOMER will not serve as an escrow agent for other KIVA clients. Source code for those KIVA modules will be made available to the CUSTOMER under the occurrence of any one of the following conditions: (a) KIVA defaults on any of the terms of its contract with the CUSTOMER; (b) KIVA ceases to do business; (c) KIVA stops maintenance support of the software module in question; (d) KIVA fails to perform the contract in a timely fashion; KIVA SOFTWARE LIC.AGREEMT.--Page 9 of 16,excluding exhibits 1 and 2 (e) KIVA suffers any act of insolvency identified in Section 24; (f) KIVA fails to maintain technical staff capable of supporting or modifying the software system. 18.2 In the event of the occurrence of any of the conditions listed in Section 18.1, subparagraphs (a) through (f) above, or upon the direct request from KIVA, the CUSTOMER shall have the unconditional right to immediately obtain and use its copies of the source code programs and technical documentation. 18.3 KIVA will provide CUSTOMER copies of current source code and technical documentation prior to the time CUSTOMER's system goes "live," currently estimated to occur in April or May of 1998 (see subsection 15.3). 19. INDEPENDENT CONTRACTOR. The parties intend that an independent contractor-employer relationship will be created by their relationship. The CUSTOMER is interested only in the results to be achieved, and conduct and control of the work will lie solely with KIVA. KIVA is not to be considered an agent or employee of the CUSTOMER for any purpose, and the employees of KIVA are not entitled to any of the benefits that the CUSTOMER provides for its employees. KIVA understands that the CUSTOMER does not intend to use the KIVA's services exclusively. KIVA is also free to contract for similar services to be performed for other parties while under contract with the CUSTOMER. KIVA will be solely and entirely responsible for its acts and the acts of its agents, employees, servants, and all subcontractors during the performance of this Agreement. 20. ROYALTIES AND PATENTS. KIVA shall pay royalties and license fees and defend all suits resulting from claims for same on all software and materials purchased outright from KIVA and installed according to the specifications of the CUSTOMER. 21. EQUAL EMPLOYMENT. KIVA shall comply with all federal, state, and local laws, rules, regulations and ordinances prohibiting discrimination in employment with regard to age, sex, race, color, creed, national origin, or mental handicap, unless based upon a bona fide occupational qualification. 22. SUPPORT AND MAINTENANCE. 22.1 Term for Sul2port and Maintenance and Commencement of KIVA Software Support Agreement. KIVA will provide the following support and maintenance services to CUSTOMER throughout the warranty period at no additional cost to CUSTOMER. KIVA's Software Support Agreement shall commence at the end of the warranty period at the cost established in that Agreement. KIVA SOFTWARE LIC.AGREEM'T.--Page 10 of 16,excluding exhibits 1 and 2 22.2 Support Personnel. The following person at KIVA will coordinate systems maintenance service: `Ter'YAAJC a �iu�ortI The following CUS OMER em loyee will b� the y contact and interface with KIVA for the CUSTOMER: ' Either party may change these designated persons from time to time, and each party will notify the other upon that change. 22.3 Response Procedures. CUSTOMER may notify KIVA of a problem, question or concern by means of voice telephone, facsimile, or e-mail sent to "support@kiva.com." All such communication is in KIVA's SAN (Software Action Notice) format. When CUSTOMER so notifies KIVA, CUSTOMER will at that time submit one of the following four priority levels: Level Code Description Critical C CUSTOMER is unable to process work due to a KIVA software problem High H CUSTOMER is unable to use a portion of the KIVA system but is still able to process work for the most part Medium M CUSTOMER is able to work, but is inconvenienced by the 'work-around' process Low L Appearance problem or pop up message problem but doesn't affect the processing of work KIVA will verify the Priority Level with the CUSTOMER. For Priority Level C, KIVA will respond immediately, but never later than the same day and by mutual agreement will be on-site by the next day, if necessary. CUSTOMER will pay for any travel related expenses to come on-site. For Priority Level H, KIVA will respond within three business days. For Priority Level M or L, KIVA will respond within seven business days. KIVA will work on a verified Priority Level C matter continuously, until it is resolved. The response for the other priority levels will be an expected delivery date for the solution. Issues and functions that are part of the standard product offering and their corresponding documentation will be corrected if they are not functioning properly. Issues and functions that go beyond the standard product offering will be quoted as system enhancements and will wait for CUSTOMER approval. CUSTOMER will maintain a person properly trained in the KIVA applications as the key contact and interface with KIVA, as shown in subsection 22.2, above. CUSTOMER will be objective and accurate in submitting Priority Levels. 22.4 Program Defect Support. When CUSTOMER determines that a defect exists in the Product Software or Product Documentation, CUSTOMER will provide KIVA's Technical Support Department with a written Software Advisory Notice ("SAN") that details the nature of the problem caused by the defect. KIVA will acknowledge the defect problem and provide an estimated procedure and time for correction of the SAN within the times established in this Section 22. KIVA will use its best KIVA SOFTWARE LIC.AGREEM'T.--Page 11 of 16,excluding exhibits 1 and 2 efforts and will dedicate sufficient personnel to issue defect correction information (i.e., corrected documentation, corrected code, notice of availability of corrected code, or a restriction or bypass) as soon as possible. KIVA may require the CUSTOMER to cover the cost of media, shipping, and handling charges in responding to CUSTOMER's SAN. CUSTOMER will provide KIVA, if necessary, with supplemental media acceptable by KIVA for these defects. KIVA will not accept telephone notification and/or submission of SAN's, but KIVA will accept delivery of SAN's by facsimile. KIVA will make reasonable efforts to detect errors, in part, by attempting to duplicate errors. 22.5 Telephone Consultation Support. KIVA will only provide Telephone Consultation Support to CUSTOMER operators who have successfully completed an approved KIVA product Applications Specialist training course. KIVA reserves the right to charge time and materials rates to CUSTOMER if KIVA is required to provide support to untrained operators. 22.5.1 The following Telephone Consultation Support services will be provided during business hours when the CUSTOMER calls KIVA's regular phone numbers: (a) Problem determination and/or preparation of documentation for program defect support; (b) Program maintenance, either via telephone consultation or maintenance distribution media at KIVA's option; (c) Program improvements or modifications. 22.5.2 In responding to each service call, KIVA will make a reasonable attempt to instruct the CUSTOMER in proper use of the licensed program(s), to engage in problem determination and resolution, and to keep the program(s) maintained and functioning. CUSTOMER will be responsible for all long distance telephone charges between CUSTOMER and KIVA incurred as result of CUSTOMER's call to KIVA. 22.6 Remote Site Support. Remote Site Support allows KIVA's Technical Support Personnel to perform support work on the CUSTOMER's computer using a modem and special software as though the technician were at the CUSTOMER's site. KIVA's Remote Site Support will be limited as follows: (a) CUSTOMER will obtain site communications software that will enable KIVA's Technical Support Personnel to communicate via telephone with the CUSTOMER's computer and allow on-line support help. (b) The determination of whether or not remote site communication will be used will be at the discretion of KIVA Technical Support Personnel. 22.7 Oracle Product Support. If the CUSTOMER acquires Oracle Run-Time Products from KIVA, then CUSTOMER may be eligible for Oracle Product Support from KIVA. It shall be the responsibility of the CUSTOMER to maintain versions of the Oracle Product(s) that KIVA Product(s) can compatibly serve. KIVA typically supports a given Oracle release for approximately one year after it is no longer available from Oracle. KIVA SOFTWARE LIC.AGREEM'T.--Page 12 of 16,excluding exhibits 1 and 2 22.8 Failure to Maintain Backups. When CUSTOMER's failure to create a proper Backup makes recovery substantially more difficult, regardless of whether the original problem occurred because of a program defect, a "bug," an operational reason or any other reason, KIVA may charge the CUSTOMER at KIVA's current time and materials rate for KIVA's attempt to repair or resolve CUSTOMER's problem. 23. ENHANCEMENTS AND UPDATES. 23.1 KIVA will provide software programs,training materials and reference manual updates through normal software releases at no extra charge. For the purposes of this Section 23, "normal software release" means periodic distribution of updates to the Software Product for enhancements, product inconsistencies, and "bug" fixes. 23.2 KIVA will provide additional software packages, add-on modules, applications, and custom programming at a rate to be negotiated at the time the product or service is required due to the complexities of working with that code outside of the KIVA core product line. KIVA will determine which enhancements will be part of an additional software package, add-on module, application or custom programming, and what materials will be included with those enhancements. 23.3 It is the sole responsibility of CUSTOMER to perform the installation of updates and program modifications. KIVA will provide sufficient instructions to allow CUSTOMER's employees to accomplish the installation of these updates and program modifications. However, should the update or program modification fail, cause failure of the Software Product to perform or cause failure elsewhere in CUSTOMER's system, KIVA will assist CUSTOMER with appropriate solutions on an emergency basis pursuant to subsection 22.3. 24. ACTS OF INSOLVENCY. The CUSTOMER may terminate this Agreement between KIVA and the CUSTOMER by written notice if KIVA makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has wound up or liquidated its business, voluntarily or otherwise. Without waiving any other rights granted to CUSTOMER in this Agreement, CUSTOMER would have immediate access to Source Code in the event of the occurrence of any of these above-mentioned acts of insolvency. 25. TERMINATION ON DEFAULT. 25.1 This Agreement and the license granted hereunder may be terminated by either party if the other party is in default or material breach of any provisions of this Agreement, so long as the default or material breach is not corrected within thirty (30) days of the receipt of written notice of the default from the non-defaulting party. This written notice must particularly describe the alleged default or material breach. However, 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 KIVA SOFTWARE LIC.AGREEKT.--Page 13 of 16,excluding exhibits 1 and 2 from breaching or continuing to breach the same, without showing or proving any actual damage, CUSTOMER hereby acknowledging that other remedies are inadequate. 25.2 Any claim for damages incurred by either party resulting from breach of this Agreement by the other party shall survive termination. The 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. 26. RETURN OR DESTRUCTION ON TERMINATION. Within one (1) month after the termination of this Agreement and the license granted hereunder for any reason other than KIVA's breach or default or CUSTOMER's purchase of Source Code, 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, except Database Structures and Data, received from KIVA or made in connection with that license have been returned to KIVA or destroyed. This requirement will apply to all copies in any farm, 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. 27. 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 written 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 any Additional Functions made by CUSTOMER. 28. 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. 29. SURVIVAL BEYOND TERMINATION. Any remedies for the breach of this Agreement and each party's duties, obligations, covenants and representations contained in this Agreement shall survive the termination of this Agreement. 30. 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, each party KIVA SOFTWARE LIC.AGREEKT.--Page 14 of 16,excluding exhibits 1 and 2 shall be responsible for all costs and expenses incident to such proceedings, including reasonable attorneys' fees. 31. 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. 32. 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. 33. GOVERNING LAW. The construction and performance of this Agreement shall be governed by the laws of the State of Washington without regard to the conflict of laws provisions thereof. CUSTOMER hereby consents to the venue, jurisdiction and rules of the Kent branch of the King County Superior Court, Kent, Washington with respect to any right of action arising under this Agreement. 34. ENTIRE AGREEMENT. This Agreement, together with CUSTOMER's RFP and KIVA's Response to RFP 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 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. If any conflict or inconsistency exists between this Agreement and CUSTOMER'S RFP or KIVA'S response to the RFP, the terms of this Agreement shall prevail; if any conflict or inconsistency exists between the CUSTOMERS' RFP and KIVA'S response to the RFP, the terms and obligations in the CUSTOMER'S RFP shall prevail. 35. 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 certified mail, postage prepaid, addressed to the other party at the address set forth at the beginning of this Agreement. CUSTOMER ACKNOWLEDGES THAT IT HAS READ 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. KIVA SOFTWARE LIC.AGREEMT.--Page 15 of 16,excluding exhibits 1 and 2 IN WITNESS, the parties have caused this Agreement to be executed and effective on the last date written below. CUSTOMER: LICENSOR: City of Kent KIVA 220 4th Ave S 5525 South 900 East, Suite 325 Kent, WA 98032 Salt Lake CUSTONJkR, UT 84117 t Signe Signed: �1Cic�trR�D by i Whi a Mayor Name & Title:.. Date: 10 Date: Signed: Signed: TAJ I o t by Mares Mulholland its Acting Information Services Name & Title: Director Date: Date: ORIGINAL KIVA SOFTWARE LIC.AGREEM'T.--Page 16 of 16,excluding exhibits 1 and 2 EXHIBIT 1 PAYMENT SCHEDULE PHASE 1 (October 1997-May 1998 Committed Purchases): Description Cc2st Terms Ex ep rases* s Software Product and $19200.00 3010 at Contract Execution; N/A List $19,200 less Software 50% upon delivery of 10% discount-- Documentation License software, installation, KIVA Land and Fee (Permitting/Land documentation, and user Permit Use Software): training; and Information 8 users 20% upon final acceptance Systems software by CUSTOMER, as defined bundle in Section 2.4. Special Services: $11200.00 Upon delivery $3808.00 Per diem ^1 day product install expenses 5 days project ($800.00 estimated at management per day) $272.00 per day; 5 days product walk- Reimbursement through to be made based 3 days to be arranged/ on satisfactory on-call as needed & evidence of as determined by actual cost; actual cost not to City. exceed $300.00 per day. Training: $17500.00 Upon delivery $3808.00 Per diem 2 days DBA training expenses 4 days Land Software ($1250.00 estimated at training per day) $272.00 per day; 8 days Permit reimbursement to training be made based on satisfactory evidence of actual cost; actual cost not to exceed $300.00 per day. PHASE 2--Additional Training/Special Services--OPTIONAL to CUSTOMER: Description cost Terms Expenses Notes Conversion Scripts $2400.00 Upon delivery and testing $816.00 Per diem expenses estimated at $272.00 per day; reimbursement to be made based on satisfactory evidence of actual cost; actual cost not to exceed $300.00 per day. Additional Conversion Not to Upon delivery and testing Work (if required) exceed $5000.00 Word Processing $4620.00 3 °o at Contract Execution; Interface-8 software 5006 upon delivery of users software, installation, documentation, and user training; and 20% upon final acceptance by CUSTOMER, as defined in Section 2.4. Word Processing $3850.00 Upon delivery $816.00 Per diem Interface—setup and ($800.00) expenses training per day-- estimated at setup; $272.00 per day; $1250.00 reimbursement to per day-- be made based training on satisfactory evidence of actual cost; actual cost not to exceed $300.00 per day. EXHIBIT 2 (TO KIVA SOFTWARE LICENSE AGREEMENT) CONSULTANT NON-DISCLOSURE AGREEMENT ("Consultant") acknowledges that ("Licensee") and KIVA, a Utah corporation ("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 of 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 represents and warrants as follows: 1. Consultant acknowledges that the Licensed Software constitutes intellectual property of KIVA and has tangible value, contains valuable trade secret, patent, copyright and confidential information of KIVA, and is the sole property of KIVA. 2. Consultant shall examine and use the Licensed Software solely for the purpose of assisting Licensee in the use of the Licensed Software and for no other purpose whatsoever. Consultant understands and agrees that the Licensed Software is protected by civil and criminal law, and by the law of patent and copyright and that Consultant shall hold, in strict confidence, all information and know-how, technical or otherwise related to the Licensed 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 herein. Consultant shall not in any manner or form reproduce, copy, disclose, 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 their employment, or to Consultant's employees, in the scope of their employment and who have signed this Consultant Nondisclosure Agreement. Such disclosure shall be in confidence for purposes specifically related to Consultant's work with the Licensed Software during the time such 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 of the proprietary, patent, copyright and trade secret rights of KIVA. Consultant shall have no 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 examine 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 termination of any agreement or relationship between KIVA, the Licensee, the Consultant, and/or any employee of such organizations. This Nondisclosure Agreement shall be interpreted in accordance with the laws of the State of Utah. ACKNOWLEDGED AND ACCEPTED: CONSULTANT FIRM: (CUSTOMER Name) Address 1 Address 2 CUSTOMER, State, Zip Signed: Signed: Name & Title: Name & Title: Date: Date: 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: 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 termination of any agreement or relationship between KIVA, the Licensee, the Consultant, and/or any employee of such organizations. This Nondisclosure Agreement shall be interpreted in accordance with the laws of the State of Utah. ACKNOWLEDGED AND ACCEPTED: CONSULTANT FIRM: (CUSTOMER Name) Address 1 Address 2 CUSTOMER, State, Zip Signed: Signed: Name & Title: Name & Title: Date: Date: 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 .......................:.:::::::::::::::::::::.rr:.r:.>:.r:.>:.r:.r:.r:.r:.>:.r::•:::::::::......:::: :;:::i::::::;::::::y:;:f:i::•:;:i::;r:::::::::i:::;;:::::s::::::; :: ::i:::::::::::;:::;::;:;:i`:;:;:;:i:::::;:.� :.......................................................................:..... •..:: ..r.:. ..:......r.';: >:;:::::::r::;:::::f::;:::::::;;:r;::;:::;::'S DATE AORD,� ::>: " ' ``......:.r:.rrr:.r:::»::>:<:>::r:.::::.:<.rr:::r:>:<:::<:::» . :.:::.:. .:.:: ..... . .... ..... PRODUCER....................... 2 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE TRUSTCO, INC. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 2063 E 3900 S Ste 100 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Salt Lake City, UT 84124 COMPANIES AFFORDING COVERAGE 801-278-5341 COMPANY A USF&G INSURED COMPANY Blake Limited: Kiva; Comstar Computer Sys B 5525 So. 9th East, #325 COMPANY Salt Lake City, UT 84117 COMPANY BLAK00 D X. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY P INDICATED, NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. POLICY EFFECTIVE POLICY EXPIRATION LIMITS CO TYPE OF INSURANCE POLICY NUMBER DATE(MM/DD/YY) DATE(MM/DD/YY) LTR A GENERAL LIABILITY TVP 700001280 00 02/25/97 02/25/98 GENERAL AGGREGATE $ 2000000 PRODUCTS-COMP/OP AGG $ 2000000 X COMMERCIAL GENERAL UABILITY CLAIMS MADE X❑OCCUR PERSONAL&ADV INJURY $ 1000000 EACH OCCURRENCE $ 1000000 OWNER'S&CONTRACTOR'S PROT X PREMISES/OPERATION FIRE DAMAGE(Any one fire) $ 50000 MED EXP(Any one person) $ 10000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANY AUTO ALL OWNED AUTOS BODILY INJURY $ (Per person) SCHEDULED AUTOS HIRED AUTOS BODILY INJURY $ (Per accldenq NON-OWNED AUTOS PROPERTY DAMAGE $ AUTO ONLY-EA ACCIDENT $ GARAGE LIABILITY OTHER THAN AUTO ONLY: ANY AUTO EACH ACCIDENT $ AGGREGATE $ EACH OCCURRENCE $ EXCESS LIABILITY AGGREGATE $ UMBRELLA FORM OTHER THAN UMBRELLA FORM WC STATU- OTH- WORKERS COMPENSATION AND _ TORY LIMI E EMPLOYERS'LIABILITY EL EACH ACCIDENT $ THE PROPRIETOR/ INCL EL DISEASE-EA LICY LIMIT $ PARTNERS/EXECUTIVE EL DISEASEMPLOYEE $ OFFICERS ARE: EXCL OTHER DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS KIVA SOFTWARE SYSTEM, CERTIFICATE HOLDER IS ADDITIONAL INSURED FOR GENERAL LIABILITY PURPOSES ONLY �'i� ..........::::.r:•r;•:�r::;•r:><::;;»::;;;<>srr:;•rr:�rr:.r:.>rrr:;.rrrr:.r:.r:.:r:.rr:.r:.rrrr:;•r::.r:.:;;•:;.;:.;;:•::.:;.;:;:: ;,:.;:;.>r:.;::;;: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF KENT, WASHINGTON EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 220 4TH AVE. S. 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, KENT, WA 98032 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIN N THE COMPAN , 1 OR REPRESENTATIVES. AUTHORIZED R FA CJW ...1..............................�:.::.:.:.:.:.:.:.:.:::r.r:.rrr:a:"rrr:.rrrrr:;•r:.r:.::.:::.rr:;::;;::::;::;::::::;:;::;:;:::t52:;::::i::::::;;:;;;:;:s ;:: '::;:;`j: ;t'i;S:rr"::: ;.i:;::::i:: °:3'::::+`•?,;;.,::•r:.::::::::::•r•::;::.r:.:.:::::.:::::::•:.r.;:;,r::::.::::: FROM :US-F & G 206 2S6 2349 1997,10-10 15:19 #GO9 P.02/02 Policy Number: xVP 700001260 00 Owners. lessees Or Contractors bnn M �/ U S F �ADDITIONALINSURED N c > THIS ENDORSEMW CHANGES THE POLICY. PLEAS READ IT CARRULM This endorsem rit modifies insurance provided under the following: umuw COVERAGE PART. Schedule Hamm of f mo or Organization: City of gent, Washington 220 4th Ave. S. Kent, Washington 98032 SECTION II -WHO IS AN INSURED is amended to include Schedule, but only vifith respect to liability arif,ing out of as an insured the person or organization shown in the 'your work'for that insured by or for you. CUBE 22 40 03 95 Ir ckda copKVmd materim of insurarrce Surrica Off ice.Im-with its panaissron. Pape 1 of 1 Cop friars,ir&Lnm&serAm Office.Inc..19"