HomeMy WebLinkAboutCAG2003-0413 - Other - Environmental Systems Research Institute, Inc. - Addendum to Accela GIS Extension ARCIMS - 01/24/2003 ADDENDUM TO ESRI/ACCELA GIS EXTENSION ARCIMS
LIMITED USE LICENSE AGREEMENT
THIS ADDENDUM ONE between CITY OF KENT ("Licensee") and
ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. ("ESRI") amends
that certain Limited Use License Agreement entered into between Licensee and ESRI on
or about the 8th day of January, 2003 (the "Agreement"), which is attached as Exhibit
"A" and incorporated by this reference.
The parties agree and covenant as follows:
1. Amendment. Article 7.1 —Limited Warranties is amended as follows:
For a period of ninety (90) one hundred eighty G 80) days from the later of the
date of keycode issuance or date of delivery of the Software, Data, or Documentation to
Licensee, ESRI represents and warrants that (I) the unmodified Software will
substantially conform to the published Documentation and (ii) the media upon which the
Software, Data, and Documentation is provided will be free from defects in materials and
workmanship under normal use and service.
2. Revocation/Amendment. Article 8.1 — Disclaimer of Certain Types of
Liability and Article 8.2 — General Limitation of Liability are revoked and replaced with
the following revised articles:
8.1 Disclaimer of Certain Types of Liability
EXCEPT AS PROVIDED IN SECTION 8.2(b) AND ARTICLE 9.0, IN NO
EVENT SHALL ESRI OR ITS LICENSOR(S) BE LIABLE TO LICENSEE FOR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST
PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; OR
COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY
GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR USE OF THE SOFTWARE, DATA, OR DOCUMENTATION,
HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR
NOT ESRI OR ITS LICENSOR(S)HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ADDENDUM TO LIMITED USE LICENSE AGREEMENT—Page 1 of 4
(between City of Kent and ESRI)
8.2 General Limitation of Liability
(a) EXCEPT AS PROVIDED IN SECTION 8.2(b) AND ARTICLE
9.0, IN NO EVENT WILL ESRI'S TOTAL CUMULATIVE LIABILITY
HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY,
MISREPRESENTATION, OR OTHERWISE, EXCEED THE AMOUNTS PAID
TO ESRI BY LICENSEE FOR SOFTWARE, DATA, OR DOCUMENTATION
PURSUANT TO THIS AGREEMENT.
(b) If ESRI performs work on Licensee's premises pursuant to this
Agreement, ESRI shall take all precautions reasonably necessary for the safety of
and prevention of damage to property on the premises, and for the safety of and
prevention of injury to persons, including Licensee's employees, ESRI's
employees, and third persons, on the premises. To the extent ESRI fails to fulfill
this obligation,the limitation set forth in Sections 8.1 and 8.2(a) shall not apply to
any directly resulting death,personal injury, or property damage.
HOWEVER, IN NO EVENT SHALL ESRI BE RESPONSIBLE FOR LOSS OF
DATABASE DATA OWNED OR CONTROLLED BY LICENSEE OR ITS
AGENTS TO THE EXTENT SUCH DATABASE DATA WAS NOT SUBJECT
TO A REASONABLE BACKUP PROGRAM.
3. Amendment. Article 10, Section 10.9 — Governing Law, Arbitration, is
revoked and amended as follow:
10.9. Controlling Jurisdiction.
The construction and performance of this agreement shall be governed by the
Washington State Uniform Commercial Code, Title 62A Revised Code of Washington,
and other laws of the State of Washington without regard to the conflict of laws
provisions thereof. ESRI hereby consents to the venue,jurisdiction and rules of the King
County Superior Court, located in the King County Regional Justice Center in Kent,
Washington, with respect to any right of action arising under this agreement.
4. Certification. Licensee and ESRI certify that the Agreement is in full
force and effect; that there are no uncured defaults on the part of the Licensee under the
Agreement.
ADDENDUM TO LIMITED USE LICENSE AGREEMENT—Page 2 of 4
(between City of Kent and ESRI)
5. Entire Agreement. Except as amended by this addendum, all provisions of
the Limited Use License Agreement shall remain in full force and effect except as
specifically modified by this Addendum.
IN WITNESS WHEREOF,the parties hereto have executed this Addendum
One, which shall take effect on the last date signed below.
LICENSEE: ESRI:
CITY OF KENT
By: �,t � I� �l �.� B .
Print Name:illlor—e-±C'
t ( ( ckP-0 Pri t Name: LA IRA nAN[:FR �
Its: �� -FC/r Its:.._ Vice President
Date: t-2`1 -�ov3 Date: ,BAN - 8 2003
(Notary Acknowledgements Appear on Next Page)
P:\Civil\FM ES\OpmFiles\0074\ESRI-Addendum.doc
ADDENDUM TO LIMITED USE LICENSE AGREEMENT—Page 3 off
(between City of Kent and ESRI)
STATE OF WASHINGTON )
ss.
COUNTY OF KING )
On this 42�r day of , 2003, I hereby certify that I know
or have satisfactory evidence Aat is the person
who appeared before me, and said person ack66wledged that he/she signed this instrument,
on oath stated that he/sh is authorized to execute the instrument on behalf of the City of
Kent as its / , and such execution to be the free and voluntary act of
such party for the uses and purposes mentioned in the foregoing instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF,I have hereunto set my hand and official seal the day and year first
above mtt&+ 241"
iCE n/i
A
w �' c
r ,gyp �= NOTA P C,in an for the State of Washington
I's �'�.••'��*"� '+b residing at
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MAlN� .`� My appointment xpires -/ ••O
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STATE OF WASHINGTON )
ss.
COUNTY OF KING )
On this day of , 2003, I hereby certify that I know or
have satisfactory evidence that is the person who appeared
before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he/she is authorized to execute the instrument on behalf of ENVIRONMENTAL
SYSTEMS RESEARCH INSTITUTE, INC. as its
and such execution to be the free and voluntary act of such party for the uses and purposes
mentioned in the foregoing instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF,I have hereunto set my hand and official seal the day and year first
above written.
NOTARY PUBLIC,in and for the State of Washington
residing at
My appointment expires
ADDENDUM TO LIMITED USE LICENSE AGREEMENT-Page 4 of 4
(between City of Kent and ESRI)