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HomeMy WebLinkAboutCAG2001-0443 - Other - Addendum #1 - Optio Software, Inc. - Purchase & License of Document Customization Server - 03/29/2001 OPTIO SOFTWARE,INC. ADDENDUM TO MASTER LICENSE AGREEMENT THIS ADDENDUM to the foregoing Master License Agreement (the "Agreement") is hereby made and entered into of even date with the Agreement by and between Optio Software and Licensee (as those terms are defined in the Agreement). Notwithstanding anything in the Agreement to the contrary, the Agreement is hereby amended and/or supplemented as hereinafter set forth: 1. DEFINITIONS. All terms as used herein shall have the same meaning as given thereto in the Agreement,unless otherwise defined herein. 2. SOFTWARE FEES. Notwithstanding anything in the Agreement to the contrary, the fees for professional services rendered hereunder will be invoiced after the services have been completed. The second and third sentences of Section 2.1 of Part One: Variable Terms are hereby deleted and replaced with new sentences,which shall read as follows: Licensee agrees to pay fifty percent(50%) of the license and maintenance fees, plus 1000/0 of the taxes upon execution of this Agreement and fifty percent (50%) of the license and maintenance fees sixty(60)days from the date of execution of this Agreement. Fees for professional services rendered hereunder will be due net forty-five (45) days of invoicing for said services. Fees for professional services rendered hereunder will be invoiced upon completion of the services. 3. LICENSED SOFTWARE. The third sentence of Section 2.1 of the Agreement is hereby deleted and replaced with a new sentence,which shall read as follows: The license granted hereunder for any Licensed Software shall terminate immediately in the event that any Licensed Software is installed or run on any other system or the Designated System for such Licensed Software ceases to be within the possession and control of the Licensee,provided, however, Licensee shall have the ability to transfer the Licensed Software to a different system or designate a new Designated System by providing notice to Optio of such change and by removing the Licensed Software from the original system or Designated System which it resided on. 4. COPYING. The first sentence of Section 2.3 of the Agreement is hereby deleted and replaced with a new sentence,which shall read as follows: 2.3 Copying. Except for purposes of creating a reasonable number of back-up copies of the server based software,the amount of which will be determined by Optio, Licensee shall not copy, duplicate,or print the Licensed Software, in whole or in party,without the prior written consent of Optio, which shall not be unreasonably withheld. Licensee may, at all times, maintain a copy of the server based software on a backup server to facilitate recovery from hardware failures. 5. MODIFICATION; DISASSEMBLY. The following is hereby added to the end of Section 2.4, and shall read as follows: "...and to the modified Licensed Software and corrections, enhancements, updates and new versions relating thereto if Optio approved those enhancements, provided Optio shall review such corrections, enhancements, and/or updates of Licensee at a mutually agreed upon rate. It is at Optio's sole discretion to approve such corrections,enhancements,and or updates." 6. TRANSFER. Section 2.7 of the Agreement is hereby deleted and replaced with a new section 2.7, which shall read as follows: 2.7 Transfer. In instances where a hardware failure has occurred, Licensee may submit a request for a replacement key. Optio will provide replacement keys upon such request from Licensee with valid paid maintenance contracts at no extra charge. In the event Optio receives a request by 12:00pm PST,a replacement key will be provided that same business day. In the event a request is received by Optio after 12:00pm PST,a replacement key will be provided by 12:00pm PST the following business day. 7. CONFIDENTIALITY AND MUTUAL NON-DISCLOSURE. The second sentence of Section 3.1 of the Agreement shall be amended to begin with the phrase"To the extent allowed by law". 8. LIMITED WARRANTY FOR THE LICENSED SOFTWARE. Section 4.1 of the Agreement is hereby deleted and replaced with a new Section 4.1,which shall read in its entirety as follows: 4.1 Limited Warranty for the Licensed Software. Optio warrants that it possesses all rights and interests in the Licensed Software necessary to enter into this Agreement. Further, for a period of one (1) year from the date of execution of this Agreement, Optio warrants that the Licensed Software (i)will conform with all material operational features and performance characteristics as described in the then current documentation supplied by Optio, and (ii) will be free of errors and defects that materially affect the performance of such functionality;provided,however,that(a)the Licensed Software is installed, implemented, and operated in accordance with all written instructions supplied by Optio, (b) Licensee notifies Optio in writing of any nonconformity, error, or defect within forty-five(45) days of the appearance thereof, and (c) Licensee has promptly and properly installed all corrections and updates made available by Optio to Licensee. Optio's sole liability, and Licensee's sole remedy regarding defective Software is, at Optio's sole election, to either: (i) replace or repair defective Software at no charge to Licensee, provided that Licensee notifies Optio in writing in accordance with this Section;or(ii)return to Licensee the Licensee Fee for the defective Software, which, for purposes of this provision, shall be deemed to be the amount set forth in the Sales Agreement, applicable to the defective Software as determined by Optio. Optio warrants that the Licensed Software will operate in the combinations which Licensee may select for use, that the operation of the Licensed Software will be substantially uninterrupted or error-free,and that all material Licensed Software errors will be corrected. 9. EXCLUSIONS OF IMPLIED WARRANTIES. Section 4.2 of the Agreement is hereby deleted and replaced with a new Section 4.2,which shall read in its entirety as follows: 4.2 Exclusions of Implied Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT, OPTIO MAKES AND LICENSEE RECEIVES NO FURTHER WARRANTY, EXPRESSED OR IMPLIED. OPTIO SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR EXEMPLARY DAMAGES. OPTIO SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO THE EXTENT THAT SUCH DAMAGES ARE CAUSED DIRECTLY OR INDIRECTLY BY LICENSEE'S FAILURE TO PERFORM ADEQUATE BACKUP OF DATA AND SYSTEMS OR LICENSEE'S INADEQUATE DISASTER RECOVERY PROCEDURES. THE ABOVE STATED LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF OPTIO FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE LICENSED PRODUCT(S). 10. WARRANTY EXCLUSIONS. Section 4.3 (b) and (c) of the Agreement are hereby deleted and replaced with new sections,which shall read as follows: (b)unauthorized modification of the Licensed Software,by a party other than Optio,(c)failure by Licensee to utilize computer and networking hardware and software not currently used by Licensee or not subsequently approved by Optio. 11. LIMITATION OF LIABILITY. Section 4.5 of the Agreement is hereby deleted and replaced with a new Section 4.5,which shall read as follows: 4.5. Limitation of Liability. OPTIO'S ENTIRE LIABILITY FOR ALL DAMAGES OTHER THAN INDEMNIFICATION ARISING OUT OF THIS AGREEMENT AND/OR THE LICENSING OF THE LICENSED SOFTWARE SHALL BE LIMITED TO TWO (2x) TIMES THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT.IN NO EVENT SHALL OPTIO BE LIABLE TO LICENSEE UNDER THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTED GOODS AND SERVICES,DAMAGES FOR LOST PROFITS,LOSS OF DATA,LOSS OF USE OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF BUSINESS OR COMPUTER HARDWARE MALFUNCTION,EVEN IF OPTIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,TO THE EXTENT THAT SUCH DAMAGES ARE CAUSED DIRECTLY OR INDIRECTLY BY LICENSEE'S FAILURE TO PERFORM ADEQUATE BACKUP OF DATA AND SYSTEMS OR LICENSEE'S INADEQUATE DISASTER RECOVERY PROCEDURES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIMITATION CONTAINED IN THIS SECTION DOES NOT APPLY TO CLAIMS FOR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW MAY PROHIBIT LIMITATION OF LIABILITY FOR PERSONAL INJURY. 12. LIMITATION ON ACTIONS. The tern "one (1) year" in section 4.6 of the Agreement is hereby deleted and replaced with the term"three(3)years". 13. MAINTENANCE AND SUPPORT. Section 5.1 (i) of the Agreement is hereby deleted and replaced with a new section(i),which shall read as follows: (i) enhancements and designated updates to the Licensed Software to correct the applicable release(s)of Licensed Software listed in the Sales Agreement and all new releases of the Licensed Software listed in the Sales Agreement. The following is hereby added to the end of Section 5.1 (c)and shall read as follows: "...unless Licensee has been otherwise directed or authorized by Optio." The last sentence of the second paragraph of Section 5.1 of the Agreement is hereby deleted and replaced with the following: Billing for annual maintenance/support services will automatically occur every twelve (12) months. Optio agrees not to increase its price for maintenance/support services more than ten percent (10%) over the last year's maintenance/support fees. Optio shall provide no less than twelve (12) months prior notice if Optio generally discontinues offering maintenance/support services to customer of its Licensed Software, discontinues maintenance/support services for the release of the software in use by Licensee or discontinues maintenance/support services of a previously approved hardware platform including operating system. 14. MAINTENANCE TERM. The last sentence of Section 5.2 of the Agreement is hereby deleted and replaced with a new sentence,which shall read as follows: Failure to pay the annual maintenance and support fee(s)within forty five(45)business days of the date it is due shall result in the termination of maintenance and support services by Optio and Licensee will be required to pay a reinitiation fee of back maintenance fees which accrue from the date of termination of the initial maintenance period,in addition to the then-current maintenance and support fee(s), in order to reestablish its maintenance and support services. Failure to pay annual maintenance/support fee(s) in no way terminates the Licensee's right to continue using the Licensed Software. 15. LICENSE KEY. The term"sixty(60)days"in the first sentence of Section 5.3 of the Agreement is hereby deleted and replaced with the term"one hundred twenty(120)days". 16. CONSULTING. Section 6.1 of the Agreement is hereby deleted and replaced with a new Section 6.1,which shall read in its entirety as follows: 6.1 Consulting. Licensee may purchase application training and professional technical services at Optio's current daily rates, or as outlined in the Sales Agreement. Sales Agreement rates will remain fixed for one (1)year from the date of this Agreement. Following the initial one (1) year period, then-current prices, terns, and conditions shall apply but shall never exceed ten percent (101/6)over the rates charged during the previous one(1)year period. The Licensee agrees to pay the charges for these services, (excluding travel time only), overtime and reasonable actual expenses, in accordance with Optio's travel and accommodation policies in effect on the date of the Agreement and attached hereto as Exhibit "B". Any overtime shall be pre-approved by the Licensee. Optio will perform such consulting services in a professional manner by capable and qualified implementers,trainers and technicians. 17. CHANGES TO SCHEDULE. Section 6.2 of the Agreement is hereby deleted and replaced with a new Section 6.2,which shall read in its entirety as follows: 6.2 Changes to Schedule. Licensee may move the scheduled service time if Licensee notifies Optio ten(10)business days prior to the scheduled service. Licensee may reschedule the time at a later date at the same rates. 19. DAILY RATE. The last sentence of Section 6.3 of the Agreement is hereby deleted and replaced with a new sentence,which shall read as follows: Overtime Rates for weekend and holiday work will be I '/2 times the Rate. 19. EFFECT of TERMINATION Section 7.3 of the Agreement is hereby deleted and replaced with a new section,which shall read as follows: 7.3 Effect of Termination. Upon termination of this Agreement by either party in accordance with Section 7.2, the license granted under this Agreement to use the Licensed Software is immediately revoked. Within six(6) months after the termination of this Agreement by Licensee in accordance with Section 7.2,Licensee shall return to Optio all Licensed Software including,but not limited to, all originals and copies of the Licensed Software, updates and user manuals in Licensee's possession. In the alternative, upon request by Optio, Licensee shall destroy all such copies of the Licensed Software,updates,and user manuals and supply Optio with documentation certifying destruction. TERMINATION SHALL NOT RELIEVE THE LICENSEE AND AUTHORIZED USERS OF THEIR OBLIGATIONS REGARDING THE CONFIDENTIALITY OF ANY ITEMS OUTLINED IN SECTION THREE(3)ABOVE.- 20. Applicable Law. Section 8.3 of the Agreement is hereby deleted in its entirety and replaced with a new section 8.3,which shall read in its entirety as follows: 8.3 Applicable Law. This agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue,rules and jurisdiction of the King County Superior Court located in Kent,King County, Washington,unless the parties agree in writing to an alternative venue or dispute resolution process. 21. ATTORNEY'S FEES. Section 8.4 of the Agreement is hereby deleted and replaced with a new Section 8.4,which shall read in its entirety as follows: 8.4 Attorney's Fees. In the event it shall become necessary to enforce this Agreement in a court of law,each party shall be responsible to pay all its attorney's fees and costs.