HomeMy WebLinkAboutIT18-053 - Extension - Idera, Inc - SQL Compliance manager Subscription Renewal - 01/25/2023 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr: ILS/SP
Agreement Routing Form Dir Asst:
• For Approvals,Signatures and Records Management Dir/Dep: MC
KEN T This form combines&replaces the Request for Mayor's Signature and Contract Cover (optional)
WASHINGTON Sheet forms.
Originator: Department:
Daniel Blincoe IT
Date Sent: Date Required:
c01/10/2023
01/13/2023
p. Authorized to Sign: Date of Council Approval:
QDirector or Designee N/A
Budqet Account Number: Grant? Yes 17No
52001730.64160.1800
Budget? Yes:No Type: N/A
Vendor Name: Category:
Idera, Inc Contract
Vendor Number: Sub-Category:
1697545 Other
0
Project Name: SQL Compliance Manager
E
0 Project Details: Renewal of SQL Compliance Manager under Software License
Agreement (IT18-053).
c
a�
Agreement Amount: $1,378.83 Basis for Selection of Contractor: Direct Negotiation
4) *Memo to Mayor must be attached
i Start Date: 01/25/2023 Termination Date: 01/24/2024
Q Local Business'El YesFv-]No* If meets requirements per KCC3.70.700,please complete'Vendor Purchose-LocalExceptions"form onCityspace.
Business License Verification:Yes ElIn-Process Exempt(KCC 5.01.045)
Notice required prior to disclosure? Contract Number:
ElYesF7No IT18-053
Comments:
CM
C `
a+
3
3 Mike Carrington, irector
GJ y
Date. 01-11-2023
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in
Date Routed to the City Clerk's Office:
ad,V�7i__C Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20210513
INVOICE 1511440-R
I ID K A Date 10/28/2I
Pa e 1 of 1
Billing Address Shipping Address
Lynnette Smith Lynnette Smith
City Of Kent City Of Kent
220 4Th Ave South Kent,Washington 98032 220 4Th Ave South Kent,Washington 98032
United States United States
Item Name Item ID QTY Renewal Period Unit Price Total Price
SQL Compliance Manager-RM ICM-OOR 1 01/25/2023 - 1/24/2024 $834.90 $834.90
SQL Compliance Manager-RM-Test& ICM-OOR-
Dev DEV 1 01/25/2023 1/24/2024 $417.45 $417.45
36 Month Renewal Option $ 4,136.49
For ACH Delivery For Wire Transfers 24 Month Renewal Option $ 2,757.66
Bank Routing Number:111000614 Bank Routing and Transit Number:021000021 12 Month Renewal Option $ 1,378.83
Account Number:597980371 SWIFT Code:CHASUS33 Total Include sales tax
Account Name:Idera,Inc Address:JP Morgan Chase New York,New York If you have any questions please email:
Account Number:597980371 Renewals(cldera.com
FED ID:76-0662481 Account Name:Idera,Inc
Remit to:Idera,Inc P.O.Box 735184 Dallas,TX 75373-4753
"PLEASE NOTE INVOICE NUMBER ON ALL PAYMENTS"
Purchase Options:
(1)Net 30 Billing
Customer Signature: Idera Signature:
Title: Date:
Date:
PO Number(if applicable):
`On June 21,2018,the Supreme Court of the United States ruled in favor of the state in South Dakota v.Wayfair,Inc.The decision allows states to tax remote sales.
it mean for out-of-state sellers?It used to be that states could only tax sales by businesses with a physical presence in the state.Now economic activity in a state—
economic nexus—can trigger a sales tax collection obligation.Economic nexus is based entirely on sales revenue,transaction volume,or a combination of both.Each
has set their own effective date on which this new law will take place and begin collecting taxes. For our purpose,the tax amount on your invoice should be considered
estimate"as the tax rate calculating your invoice may or may not change depending on the date this order is processed.
Idera, Inc.
10801 N Mopac Expressway Building 1,Suite 100 Austin,TX 78759 Fax 512.226.8441
SOFTWARE LICENSE AGREEMENT
Idera,Inc.
10801 North Mopac Expressway
Building 1,Suite 100
Austin,TX,78759
Phone:(713)862-5250
BY PROCEEDING TO DOWNLOAD,INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY
OBTAINING A LICENSE KEY FOR THIS SOFTWARE,YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS
AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS,THEN CLICK"DO NOT ACCEPT."DO NOT INSTALL OR
USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE SOFTWARE OR BY
CLICKING ON"ACCEPT"YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THIS
SOFTWARE LICENSE AGREEMENT CAREFULLY,THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THAT
IF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLE
TO YOU. THIS AGREEMENT, SHALL GOVERN YOUR INSTALLATION AND USE OF THE SOFTWARE IN WHICH THIS AGREEMENT IS
ELECTRONICALLY EMBEDDED. IDERA URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE SOFTWARE
PRIOR TO INSTALLING OR USING THE SOFTWARE OR MAKING ANY DECISION TO USE OR PURCHASE IT.
THIS SOFTWARE LICENSE AGREEMENT,is dated as of the date of,in the case of any Evaluation Software(as defined in Section 16 below),the date
of Customer's acquisition of a License Key,or in the case of any purchase of a license for use of the Licensed Software(as defined below),the date of
the Purchase Order(as defined below)pursuant to which such license is purchased,is between Idera,Inc.,a Texas corporation("Idera"),and,in the case
of any Evaluation Software, the customer to whom temporary Licenses Keys are delivered or, in the case of any purchase of a license for use of the
Licensed Software,the customer set forth on the purchase order pursuant to which such license is purchased(in each case,herein"Customer"),and sets
forth the terms and conditions whereby Idera agrees to provide to Customer and Customer agrees to acquire from Idera one or more licenses to use
certain software and documentation and maintenance services related thereto, owned or licensed by Idera or a subsidiary of Idera, as set forth on the
Purchase Order delivered in connection with this Agreement. To the extent any terms or conditions contained in the Purchase Order conflict with the
terms or conditions contained in this Agreement,the terms and conditions of the Purchase Order shall supersede only those conflicting terms or conditions
contained in this Agreement and only to the minimum extent necessary to harmonize the terms in such Purchase Order with the terms contained herein.
The Purchase Order together with the terms and conditions of this Agreement(as defined below),shall constitute and be construed as a single agreement
consisting of the terms and conditions contained in the Purchase Order together with the terms of this Agreement. This Agreement specifically supersedes
and replaces the terms and conditions of all prior agreements between Idera and Customer relating to the software licensed hereunder,including,but not
limited to, any shrink-wrap agreements, click-wrap agreements or any demo or trial agreements which may accompany or are embedded in Idera's
products or which have been previously in force between the parties. If Customer is evaluating Evaluation Software,then only the terms and conditions
of Section 16 below (including those Sections of this Agreement incorporated therein by reference) will govern Customer's temporary use of such
Evaluation Software(and no other terms of this Agreement shall apply to Customer or govern Customer's use of Evaluation Software)and upon purchase
of a commercial license for such Evaluation Software,this entire Agreement,exclusive of Section 16, shall apply to Customer and govern all use of the
Licensed Material(as defined below). In consideration of the mutual promises and agreements contained herein,the parties hereto also agree as follows:
GENERAL TERMS AND CONDITIONS
confidence or secrecy to the disclosing party at the time such
1. Definitions— third party discloses the information to the recipient or (iv) to
have been compelled to be produced by a court of competent
(a) "Agreement" means this software license agreement, together jurisdiction, provided that the recipient shall first give notice to
with all exhibits, schedules, annexes and Purchase Orders the disclosing party of any such request or order of the court to
made a part hereof in accordance with the terms of this give the disclosing party an opportunity to contest or limit said
Agreement and all amendments, modifications, supplements request or order of the court.
and alterations thereto effected in accordance with the terms of
this Agreement. (f) "CPU"means the logic circuitry that responds to and processes
the instructions that run a computer and/or that access or runs
(b) "Americas Territory" means those geographical areas found the Licensed Software and each CPU may be comprised of
within the boundaries of North America and South America(but multiple processing cores, each of which may be configured to
excluding Cuba). independently act as an individual CPU and shall, when so
configured,be deemed a separate CPU under this definition for
(c) "Asia Pacific Territory" or "AsiaPac Territory" means those purposes of this Agreement.
geographical areas found within the boundaries of Asia and
Australia/Pacific(but excluding North Korea). (g) "Error"means any error,defect or omission that(i)is discovered
in the Licensed Software,(ii)is reproducible and(iii)prevents its
(d) "CLU" means (i)with respect to non-virtual environments, one operation substantially in accordance with the Licensed
(1) physical CPU Unit as calculated pursuant to Section 2(c) Documentation.
below;and(ii)with respect to virtual environments,up to four(4)
virtual CPUs allocated to a virtual machine as calculated (h) "Europe, Middle East and Africa Territory" or"EMEA Territory"
pursuant to Section 2(c)below. means those geographical areas found within the boundaries of
Europe,Middle East and Africa,including countries in the former
(e) "Confidential Information"means all technical and non-technical Soviet Union(but excluding Syria, Iran and Sudan).
information in both tangible and intangible form, including, but
not limited to, product design information, software code, (i) "Licensed Country" means, with respect to any Single Seat
technical information, customer information, discounting, cost License, Workstation License, Concurrent Users License,
and pricing information, financial information and the results Network Named User License, Named User License or CPU
derived from or methodology employed by Customer in License, the country designated in the applicable Purchase
conducting any benchmark testing of the Licensed Software; Order or, in the absence of such designation,the country listed
provided that the term "Confidential Information" shall not in such Purchase Order as the"ship to"address; provided that
include information which the recipient can show by reasonable in the case of a country within the European Union, the
proof(i)to have been known by the recipient prior to the time of "Licensed Country"shall be the European Union.
disclosure by the disclosing party,(ii)to have become part of the
public domain through no fault or breach of this Agreement by (j) "Licensed Documentation" means the published user manuals
the recipient,(iii)to have been disclosed to the recipient in good that Idera makes generally available for the Licensed Software.
faith by a third party who is not under any obligation of
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and agrees that the licenses granted hereunder and the
(k) "Licensed Material" means the Licensed Software and the restrictions applicable to Customer's installation and use of the
Licensed Documentation. License Software will vary according to the type of Licensed
Software purchased by Customer and the type of license
(1) "Licensed Software" means the machine-readable object code purchased by Customer.One or more of the restrictions set forth
version of(i) the software specified on each Purchase Order, in this Section 2 may apply to the Licensed Software depending
whether embedded on disc,tape,internet download site or other upon the type of licensed purchased and the terms contained in
media and (ii) all Updates for the Licensed Software that the applicable Purchase Order relating to the Licensed Software.
Customer is entitled to receive in connection with its receipt of Customer is encouraged to carefully review all terms and
Maintenance Services pursuant to Section 4 of this Agreement. restrictions contained in this Section 2 and each Purchase
Order. Customer hereby agrees to the following license
(m) "Maintenance Services" means the technical support services restrictions and conditions applicable to the Licensed Software
provided by Idera pursuant to Section 4 hereof. as set forth in the Purchase Orders delivered by Customer under
this Agreement:
(n) "Maintenance Term" means the period of time for which
Customer has purchased Maintenance Services, as evidenced (i) For all Licensed Software made generally available by
by the Purchase Order delivered by Customer in connection Idera on a "per-instance" basis and licensed
therewith,together with all renewals effected in accordance with hereunder by Customer on a "per-instance" basis,
Section 4 of this Agreement. Customer may install,operate and use such Licensed
Software on one (1) instance per license purchased
(o) "Monitored Element" or "Monitored Device" means a physical by Customer;
server, virtual server, network device or any system or device
with an IP address. (ii) For all Licensed Software made generally available by
Idera on a "per-database" basis and licensed
(p) "Purchase Order' means (i) Idera's standard price quote, hereunder by Customer on a "per-database" basis,
purchase order, order form or purchase confirmation, as such Customer may install,operate and use such Licensed
document may be amended, supplemented or modified from Software on one(1)database per license purchased
time to time in accordance with this Agreement or(ii)any other by Customer;
non-Idera price quote, purchase order, order form or purchase
confirmation delivered by Customer to Idera but solely to the (iii) For all Licensed Software made generally available by
extent permitted by and delivered in accordance with Section 15. Idera on a"per-server"basis and licensed hereunder
by Customer on a "per-server" basis, Customer may
(q) "Territory" means, with respect to a Concurrent User License, install, operate and use such Licensed Software on
the geographical area in which the Licensed Software may be one (1) physical or one (1)virtual server per license
accessed and used,which geographical area may be any one, purchased by Customer;
and only one,of the following three geographic areas:Americas
Territory, the EMEA Territory or the AsiaPac Territory, as (iv) For all Licensed Software made generally available by
specified pursuant to Section 2(a)below. Idera on a"per-user'or"per-seat"basis and licensed
hereunder by Customer on a"per-user'or"per-seat"
(r) "Update" means any revision, enhancement, improvement or basis, Customer may install and operate such
modification to or programming fix for the Licensed Software or Licensed Software on any number of physical servers
Licensed Documentation which Idera makes generally available, or virtual servers or install and use any number of
incorporates into and makes a part of the Licensed Software or instances of the Licensed Software but Customer
Licensed Documentation and does not separately price or shall not access and use such Licensed Software by
market. more than one (1) user per license purchased by
Customer;
2. LICENSE—
(a) Use—Subject to the terms and conditions of this Agreement, (v) For all Licensed Software made generally available by
including, but not limited to the applicable licensing restrictions Idera on a"per-Monitored Element"or"per-Monitored
set forth in Section 2(b)below,and subject further to Customer's Device"basis and licensed hereunder by Customer on
full compliance herewith and according to the scope,time period a"per-Monitored Element"or"per-Monitored Device"
and other terms indicated on the applicable Purchase Order basis, Customer may install, operate and use such
delivered in connection with this Agreement,Idera hereby grants Licensed Software to monitor one (1) Monitored
Customer and Customer hereby accepts from Idera,a perpetual, Element or Monitored Device per license purchased
non-exclusive and non-transferable right and license to install by Customer;
the Licensed Software on computer hardware that is owned or
operated by or on behalf of Customer, to access and use the (vi) For all Licensed Software expressly specified in a
Licensed Material in accordance with the applicable restrictions Purchase Order as a "Site-License," Customer may
and conditions contained in this Agreement and to copy the install,operate and use the Licensed Software on any
Licensed Material as permitted by this Agreement. Customer's number of instances, CPUs, seats, workstations,
right to use the Licensed Material shall extend to use by third physical servers or virtual servers physically located
parties under a written agreement with Customer to provide at the building or computing facilities specified in the
outsourcing services for Customer's own internal business Purchase Order by address as the site and may do so
operations; provided, that(i)such third parties have agreed to with any number of users or seats;
abide by the terms of this Agreement and (ii) Customer shall
remain primarily liable for all acts and omissions by such third (vii) For all Licensed Software expressly specified in a
parties. Purchase Order as an "Enterprise-License,"
Customer may install, operate and use the Licensed
(b) License Usage and Restrictions — Customer acknowledges Software on any number of instances,CPUs,physical
and agrees that, as between Customer and Idera, Idera or its servers or virtual servers and may do so with any
subsidiaries owns and shall continue to own all right, title, and number of users or seats; provided, that periodically
interest in and to the License Material, including associated upon Idera's written request Customer shall provide
intellectual property rights under copyright,trade secret, patent, Idera with a written report evidencing actual
or trademark laws.This Agreement does not grant Customer any installation and usage of the License Software and
ownership interest in or to the Licensed Material, but only a pay for all excess license usage in accordance with
limited right and license to use the Licensed Materials in the terms of Idera's standard true-up addendum (the
accordance with the terms of this Agreement and each terms of which are incorporated herein by reference
applicable Purchase Order. Customer further acknowledges upon Customer purchasing such enterprise license);
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usage does not exceed thirty (30) days in any twelve-month
(viii) For all Licensed Software made generally available by period. In no event shall Customer install, operate, use or
Idera on a"per-CLU"basis and licensed hereunder by access the Licensed Software in contravention of the foregoing
Customer on a "per-CLU" basis (each, a "CLU restrictions applicable to the Licensed Software or any other
License"), Customer may install, operate and use restrictions contained in this Agreement.
such Licensed Software on one (1) CLU per license
purchased by Customer and the additional terms and (c) Additional Terms Governing CLU Licenses—The following
conditions set forth in Section 2(c)below shall apply; additional terms and conditions contained in this Section 2(c)
shall apply to all Licensed Software licensed to Customer by
(ix) For all Licensed Software made generally available by Idera on a per-CLU basis.
Idera on a "single seat" or "workstation" basis and
licensed hereunder by Customer on a"single seat"or (i) In non-virtual environments, the total physical CPUs each
"workstation" basis (a "Single Seat License" or requiring an individual CLU License is calculated as the sum of
"Workstation License"), Customer may install and (A)the number of licensed physical CPU sockets on the system
operate such Licensed Software on one(1)computer motherboard that are populated with physical CPUs, each of
for use by one (1) end user within the Licensed which may have up to four (4) cores without requiring an
Country; additional CLU License in respect of Excess Cores(as defined
below)as provided in clause(B)below(such initial four cores,
(x) For all Licensed Software made generally available by the "Base Cores"), and (B) the sum of all Excess Cores
Idera on a "concurrent users" basis (each, a calculated in accordance with this Section 2(c)(i). The term
"Concurrent License") and licensed hereunder by "Excess Cores" means, with respect to each physical CPU
Customer as a Concurrent License, Customer may populated in a socket,the quotient of the aggregate number of
install and operate such Licensed Software on a all additional cores in excess of the Base Cores for such CPU
network within the Licensed Country to be used divided by four(4)and rounded up to the nearest whole number.
concurrently on different computers by up to the For example, if there is a two-socket server with each physical
authorized number of users for which Customer has CPU socket populated with an eight-core processor, four (4)
purchased a license, provided that the Licensed Physical CPU Units are counted (two in respect of the physical
Software is accessed and used only in the Territory; CPUs and two in respect of the cores in excess of the Base
Cores per CPU) and four (4) CLU Licenses for the Licensed
(xi) For all Licensed Software made generally available by Software are required. If there is a two-socket server with each
Idera on a "network named user" or "named user" physical CPU socket populated with a six-core processor, four
basis and licensed hereunder by Customer on a (4) Physical CPU Units are counted (two in respect of the
"network named user" or "named user" basis (a physical CPUs and two in respect of the cores in excess of the
"Network Named User License" or "Named User Base Cores per CPU) and four (4) CLU Licenses for the
License"), Customer may install and operate such Licensed Software are required.
Licensed Software on one or more computers and
designate one(1) person in Customer's organization (ii) In virtual environments, a virtual CPU requiring an
(the"Named User")who shall have the right to use the individual CLU License is defined as up to four(4)virtual CPUs
Licensed Software within the Licensed Country, allocated to a virtual machine. For example, if four (4) virtual
provided that only the Named User uses the Licensed CPUs are allocated to a virtual machine, four (4)Virtual CPU
Software; Units are counted and one (1) CLU License for the Licensed
Software is required.If seven(7)virtual CPUs are allocated to a
(xii) For all Licensed Software made generally available by virtual machine,seven(7)virtual CPUs are counted and two(2)
Idera on a "CPU" basis and licensed hereunder by CLU Licenses for the Licensed Software are required.
Customer on a "CPU" basis (a "CPU License"),
Customer may install and operate such Licensed (d) Copies & Disaster Recovery — Customer may make a
Software on any number of computers within the reasonable number of back-up archival copies of the Licensed
Licensed Country, provided that at no time may the Software.In the event of any outage that results in the complete
Licensed Software be used to monitor more than the failure of the computer system upon which Customer has
authorized number of CPUs for which Customer has installed the Licensed Software, Customer's right to use the
purchased a license; Licensed Software shall include, during the pendency of such
outage, the temporary right to use the Licensed Software in a
(xiii) If Customer has purchased a license for ER/Studio replacement computing environment substantially similar to the
Team Server or ER/Studio Portal, such license is an original computing environment upon which the Licensed
exclusive connection license and may only be Software was installed immediately prior to such outage.
installed on Customer's computers up to the total Customer shall reproduce all confidentiality and proprietary
number of licenses purchased to connect to a single notices on each of the copies permitted hereunder and maintain
server; provided, that such licenses may be an accurate record of the location of each of the copies.
reapportioned to different users up to the total number Customer shall not otherwise copy or duplicate the Licensed
of license purchased; Material. Customer shall not reverse engineer, disassemble,
translate, modify, adapt, or decompile the Licensed Material or
(xiv) Customer may not mix and match or use ER/Studio apply any procedure or process to the Licensed Material in order
Team Edition licenses with ER/Studio Enterprise to ascertain, derive, and/or appropriate the source code or
licenses or other ER/Studio editions which can source listings for the Licensed Software or any trade secret or
connect to the repository applicable to ER/Studio;and other proprietary information contained in the Licensed
Software.
(xv) Customer shall not connect non-Team Edition of
ER/Studio,such as ER/Studio Enterprise,to the Team (e) Maintenance Optional—Customer's right to use the Licensed
Edition repository applicable to ER/Studio and if Software shall survive any election by Customer to terminate or
Customer has purchased a license for ER/Studio not renew Maintenance Services from Idera.
Team Edition, Customer must upgrade all existing
ER/Studio licenses having repository connectivity to (f) Other Services — All licenses and Maintenance Services
ER/Studio Team Edition. purchased by Customer in respect of the Licensed Material shall
be governed by this Agreement, together with the applicable
For any Licensed Software that is restricted by a Licensed Purchase Orders delivered hereunder. Unless otherwise agreed
Country or Territory, temporary usage of such Licensed by the parties in writing, all other services purchased by
Software by a user outside the Licensed Country or Territory is Customer in respect of the Licensed Software, if any, including
permitted while such user is traveling provided that all such implementation services, training services and professional
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services (collectively, "Ancillary Services"), shall be governed Customer not terminated or elected not to renew Maintenance
solely by a separate written mutually acceptable services Services.
agreement entered into by the parties or,in the absence of such
agreement, Idera's standard professional services agreement, 5. PROPRIETARY RIGHTS—Customer shall not acquire,by virtue of
and acceptance of the Licensed Material shall not be contingent this Agreement, any right or license other than as expressly provided
upon Customer's acceptance of any such Ancillary Services. herein. Customer shall not reproduce the Licensed Material or other
confidential or proprietary information of Idera, except as provided in this
3. DELIVERY AND PAYMENT TERMS— Agreement. All proprietary rights in and to the Licensed Material and all
(a) Delivery—All Licensed Material shall be delivered by Idera to Evaluation Software (as defined in Section 16 below), all derivatives,
Customer via electronic delivery using a secure internet translations, modifications, adaptations, improvements,enhancements or
download site. Ownership of all licenses purchased hereunder developments thereof and all confidential or proprietary information of
and risk of loss for the related Licensed Materials shall be Idera, including without limitation, all rights under and with respect to
deemed to have passed to Customer once Idera has made the patents, copyrights,trademarks and rights under the trade secret laws of
Licensed Material available for download by Customer, notified any jurisdiction shall remain the sole property of Idera or its applicable
Customer of the availability of the Licensed Material for licensor, whether recognized by or perfected under applicable local law.
download and provided Customer with License Keys necessary Customer shall promptly notify Idera of any infringement of Idera's
for the installation and operation of the Licensed Software. proprietary rights of which it becomes aware.
(b) Payment— Upon delivery of a Purchase Order by Customer, 6. LIMITED WARRANTIES
Idera shall deliver an invoice to Customer specifying the license
fees and Maintenance Services fees payable pursuant to such (a) Warranty—Idera warrants to Customer that during the first thirty
Purchase Order. Customer shall pay all license fees and (30) days after purchase of the Licensed Software (the
Maintenance Services fees specified therein within thirty (30) "Warranty Period") such Licensed Software will perform
days of Customer's receipt of such invoice. All fees payable by substantially as described in the accompanying Licensed
Customer in respect of such Ancillary Services may be Documentation. Idera does not warrant that (i) the Licensed
separately invoiced. Customer's payment obligation with Software will satisfy or may be customized to satisfy any of
respect to all license fees and Maintenance Services fees owing Customer's requirements or any other particular use or(ii)the
hereunder shall be independent of the provision of Ancillary use of the Licensed Software will be uninterrupted or error-free.
Services,whether or not such Ancillary Services are separately Laws from time to time in force may imply warranties that cannot
invoiced. Any late payment of any amount owing hereunder be excluded or can only be excluded to a limited extent. This
shall accrue interest at a rate equal to the lesser of(i) 15% per Agreement shall be read and construed subject to any such
annum and(ii)the maximum rate permitted by law. statutory provisions.
(c) Taxes—All payments referred to in this Agreement are exclusive (b) Remedies—If(i)at any time during a Maintenance Term, the
of value added tax, sales tax and any other applicable taxes, Licensed Software contains Errors which make the Licensed
duties or imposts which(with the exception only of those based Software unable to perform substantially as described in the
on Idera's income) shall also be payable by Customer in accompanying Licensed Documentation or (ii) during the
accordance with applicable law. Warranty Period,Idera breaches the warranty set forth in clause
(a) above, then Customer shall promptly notify Idera of such
4. MAINTENANCE — Idera does not warrant that the Licensed Error or breach and Idera shall (A) use all commercially
Software will operate error-free or may be used error-free. Upon reasonable efforts to correct such Error or breach within thirty
Customer's payment of the Maintenance Services fees associated with the (30)days of notification or(B)provide Customer within thirty(30)
Maintenance Term purchased by Customer for the Licensed Software days of notification with a plan acceptable to Customer for
specified in a Purchase Order, Idera shall provide Maintenance Services correcting such Error or breach. If such Error or breach is not
in accordance with this Section 4 and in accordance with any additional corrected or if an acceptable plan for correcting such Error or
Maintenance Services terms specified in such Purchase Order. breach is not established within such thirty(30)day period,Idera
shall replace the defective Licensed Software or, if not
(a) Maintenance Agreement — Idera or its authorized practicable,accept the return of the defective Licensed Software
representative will provide Maintenance Services for the and refund to Customer the amount paid for the defective
Licensed Software during each Maintenance Term. Licensed Software,less depreciation based on a 3-year straight
Maintenance Services includes problem determinations, line schedule.Idera's obligations under this Section 6(b)shall be
reasonable problem resolutions, provisioning of software waived in the event such Error or breach is due to(I)any defect
program temporary fixes and new releases. Maintenance in or misconfiguration of the computer hardware upon which the
Services shall also include the additional Maintenance Service Licensed Software is installed, (II)improper handling or use of
terms expressly set forth in writing in the Purchase Order the software media by Customer, or (III) an unauthorized
delivered by Customer,which are hereby incorporated herein by alteration, revision or configuration of the Licensed Software or
reference. Maintenance Services shall entitle Customer to to Customer's computer system by Customer or its employees.
receive,at no additional cost,all Updates. Customer acknowledges that this Section 6(b) sets forth
Customer's sole and exclusive remedy, and Idera's and its
(b) Additional Maintenance Term — Upon expiration of each authorized representatives' sole and exclusive liability, for any
Maintenance Term, Maintenance Services shall automatically breach of warranty, Error or failure of the Licensed Software to
renew for an additional 12-month Maintenance Term and Idera function properly.
will invoice Customer unless Idera or its authorized
representative is notified by Customer in writing at least sixty (c) Disclaimer— EXCEPT AS EXPRESSLY PROVIDED IN THIS
(60)days prior to the expiration of the current Maintenance Term AGREEMENT, ALL WARRANTIES, REPRESENTATIONS,
that Customer will not purchase Maintenance Services for INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
another Maintenance Term. LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN
(c) Reinstatement—If Customer terminates Maintenance Services STATEMENTS BY IDERA OR ITS AUTHORIZED
or elects not to renew Maintenance Services,Customer may,at REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT
its option, purchase Maintenance Services within one year of NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
such termination or non-renewal by providing notice to Idera and OR FITNESS FOR PARTICULAR PURPOSE)ARE HEREBY
making payment of Idera's then-current list maintenance fees for OVERRIDDEN AND DISCLAIMED.
the upcoming 365-day period plus an amount equal to 1.5 times
the Maintenance Services fees that would have accrued during 7. INDEMNITY
the period subsequent to such termination or non-renewal, had (a) Indemnity—Subject to this Section 7 and Section 8 below,Idera
agrees to indemnify,defend and hold harmless Customer from
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and against all claims,damages,losses,liabilities and expenses those contained in this Agreement and each of which have a
(including,but not limited to, reasonable attorneys'fees)arising "need to know"in order to carry out the purposes set forth in this
out of any claim by a third party asserting that the Licensed Agreement. Each party shall take all reasonable precautions
Material or any of Customer's use thereof, infringes upon any necessary to safeguard the confidentiality of all Confidential
third party's patent, copyright or trademark, provided that (i) Information disclosed by the other party, including those
Customer promptly notifies Idera in writing no later than thirty precautions(A)taken by the disclosing party to protect its own
(30) days after Customer's notice of any potential claim, (ii) Confidential Information and(B)which the disclosing party or its
Customer permits Idera to defend, compromise or settle the authorized representative may reasonably request from time to
claim, and provided further that no settlement intended to bind time.Neither party shall allow the removal or defacement of any
Customer shall be made without Customer's prior written confidentiality or proprietary notice placed on the Confidential
authorization and (iii) Customer gives Idera all available Information disclosed by the disclosing party.The placement of
information, reasonable assistance, and authority to enable copyright notices on Confidential Information shall not constitute
Idera to do so. publication or otherwise impair their confidential nature of such
information.
(b) Alternative Remedy— If a claim described in Paragraph 7(a)
may or has been asserted,Customer will permit Idera,at Idera's (b) Disclosure — If an unauthorized use or disclosure of the
option and expense,to(i)procure the right to continue using the disclosing party's Confidential Information occurs within the
Licensed Material,(ii)replace or modify the Licensed Material to recipient parry's enterprise, the recipient party will immediately
eliminate the infringement while providing functionally equivalent notify the disclosing party or its authorized representative and
performance or(iii) accept the return of the Licensed Material take, at recipient party's expense, all steps which may be
and refund to Customer the amount actually paid to Idera or its available to recover such Confidential Information and to prevent
authorized representative for such Licensed Material, less its subsequent unauthorized use or dissemination.
depreciation based on a 3-year straight-line depreciation
schedule. 10. TERMINATION—Upon prior written notice to Idera,Customer may
terminate this Agreement without any right to refund,except as otherwise
(c) Limitation — Idera shall have no indemnity obligation to expressly set forth in this Agreement. If Customer or any of Customer's
Customer hereunder if the violation or infringement claim results employees, consultants, authorized representatives or permitted third
from(i)a correction or modification of the Licensed Material not parties breach any term or condition of this Agreement, Idera may
provided by Idera or its authorized representative,(ii)the failure terminate this Agreement, without judicial or administrative resolution or
to promptly install an Update, (iii) the combination of the obligation to refund. This Agreement will terminate automatically if
Licensed Software with other non-Idera software and (iv) Customer ceases to do business, becomes insolvent, goes or is put into
continuing the allegedly infringing activity after receiving written receivership or liquidation, passes a resolution for its winding up (other
notice of such infringement claim from Idera. than for the purpose of reconstruction or amalgamation)or for any of the
foregoing,makes an arrangement for the benefit of its creditors,enters into
8. NO CONSEQUENTIAL DAMAGES — UNDER NO bankruptcy, suspension of payments, moratorium, reorganization or any
CIRCUMSTANCES WILL IDERA OR ITS AUTHORIZED other proceeding that relates to insolvency or protection of creditors'rights
REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, or takes or suffers any similar action in consequence of debt. Upon the
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL termination of this Agreement for any reason, all rights granted to
DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, Customer hereunder will cease, and Customer will promptly(i)purge the
BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY Licensed Software and any related Updates from all of Customer's
(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, computer systems,storage media and other files,(ii)destroy the Licensed
GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED Material and all copies thereof and(iii)deliver to Idera an affidavit certifying
MATERIALS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, that Customer has complied with these termination obligations. The
STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), provision of Sections 1, 3, 8 through 12, 14, 15 and 17 shall survive the
ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, termination of this Agreement.
BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL
PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICT 11. U.S.EXPORT RESTRICTIONS—Customer acknowledges that the
LIABILITY IN TORT OR OTHERWISE,EXCEPT ONLY IN THE CASE OF Licensed Materials and all related technical information, documents and
PERSONAL INJURY WHERE AND TO THE EXTENT THAT materials are subject to export controls under the U.S. Export
APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL Administration Regulations. Customer covenants and agrees to comply
THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR with all import and export control regulations of the United States with
PROCEEDING BY IDERA OR ITS AUTHORIZED REPRESENTATIVE respect to the Licensed Material. Customer acknowledges that it may not
EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR re-export or divert the Licensed Material or any related technical
THE SPECIFIC LICENSED SOFTWARE THAT DIRECTLY CAUSED information, document or material, or direct derivatives thereof, to any
THE DAMAGE. country set forth on the U.S. Department of Commerce's list of State
Sponsors of Terrorism (currently, Cuba, Iran, North Korea, and Syria),
9. CONFIDENTIALITY including any future changes to the government's list of State Sponsors of
Terrorism.
(a) Confidentiality. — Customer acknowledges that the Licensed
Materials incorporate confidential and proprietary information 12. EQUITABLE RELIEF—The parties recognize that Sections 5,9,11
developed or acquired by or licensed to Idera and that all results and 13 are necessary for the protection of the business and goodwill of the
of testing of the Licensed Software, whether performed by parties and are considered by the parties to be reasonable for such
Customer or another third party,are confidential. In no event will purpose. The parties agree that any breach of such Sections would cause
Customer publish or disclose the results of any testing or the other party substantial and irreparable damage and therefore, in the
performance specifications of the Licensed Software without event of any such breach, in addition to other remedies which may be
Idera's express prior written consent. A party that receives available, the non-breaching party shall have the right to seek specific
Confidential Information (the "Receiving Party")from the other performance and other injunctive and equitable relief in a court of law.
party (the "Disclosing Party") shall not: (i) export or re-export
(within the meaning of US laws or other export control laws or 13. LICENSE KEY&USE REPORTING—Customer acknowledges that
regulations) any Confidential Information, except in strict a security code owned and controlled by Idera or its subsidiaries (the
compliance with US laws;(ii)reverse engineer any Confidential "License Key")is required to render the Licensed Software operational on
Information; or (iii) disclose or make available the Disclosing Customer's computer hardware.Upon use of a permanent License Key to
Party's Confidential Information to any of the Receiving Party's install the Licensed Software on Customer's computer hardware,no other
employees, agents, contractors or consultants or to any third security code will be required for the Licensed Material to operate on such
parties,except those that have agreed in writing to be bound by computer hardware in accordance with the terms and restrictions
terms and conditions substantially similar to, and no less contained in this Agreement.Customer shall not attempt to crack,alter or
restrictive with respect to limitations on use and disclosure,than otherwise derive the License Key. Idera shall promptly provide Customer
-5- SLA Ver.090122ns
with all necessary License Keys upon purchase of the Licensed Software Section 16 by reference)will govern Customer's temporary use
or upon any authorized transfer of the Licensed Software to any other of such Evaluation Software (and no other terms of this
hardware equipment permitted under Section 2 of this Agreement. Idera Agreement shall apply to Customer or govern Customer's use of
reserves the right to gather data on license usage by Customer for each Evaluation Software) and upon purchase of a commercial
item of Licensed Software, including License Key numbers, server IP license for such Evaluation Software, this entire Agreement,
addresses,email addresses of users,domain counts and other information exclusive of this Section 16,shall apply to Customer and govern
deemed relevant, to ensure that the Licensed Software is being used in all use of the Licensed Material.
accordance with the terms of this Agreement. Idera expressly prohibits
domain count overrides without prior written approval. Customer hereby (b) Idera is the owner and provider of certain proprietary software
consents to Idera gathering and processing such usage information and and documentation that Customer may request to use,from time
agrees not to block, electronically or otherwise, the transmission of data to time,on a temporary basis for the sole purpose of testing and
required for compliance with this Agreement. Any unauthorized use of the evaluating such software prior to purchasing a commercial
Licensed Software by Customer or other use by Customer in violation of license for such software("Evaluation Software").All installation
the restrictions contained herein shall be deemed a material breach of this and usage of Evaluation Software by Customer requires a
Agreement. In addition to the foregoing, within ten (10) business days of temporary License Key or trial License Key to be issued by Idera
Customer's receipt of Idera's written request, Customer shall provide to and Customer is only permitted to use Evaluation Software
Idera a written report certifying to Idera the number of licenses for Licensed during the term of the temporary License Key or trial License Key
Software installed, used or accessed by Customer, the identity of the issued by Idera.
applicable servers, hardware or computers upon which such licenses are
installed and,to the extent applicable,the installation location and location
and number of users accessing such licenses, together with such other (c) Evaluation Software is provided to Customer solely for
information as may be requested by Idera and necessary to confirm evaluation purposes for Customer's own testing and evaluation
Customer's compliance with the terms of this Agreement. The auditing, purposes (an "Evaluation") and upon delivering a temporary
reporting and certification rights and obligations set forth in this Section 13 License Key or trial License Key to Customer, Idera hereby
shall survive termination of this Agreement for a period of eighteen months. grants Customer a non-transferable, nonexclusive, limited
license to operate and use the Evaluation Software for such
Evaluation during the period commencing on the date Customer
14. ENFORCEABILITY — If for any reason a court of competent downloads the Evaluation Software and ending on the expiration
jurisdiction finds any provision of this Agreement, or portion thereof,to be of the temporary License Key or trial License Key(including any
unenforceable, void, invalid or illegal, that provision shall be enforced to extensions thereof authorized by Idera,the"Evaluation Period").
the maximum extent permissible so as to effect the intent of the parties, Customer agrees not to cause or permit the reverse engineering,
and the remainder of this Agreement shall continue in full force and effect. disassembly, modification, translation or decompilation of any
Evaluation Software. Customer shall not copy the Evaluation
15. ENTIRE AGREEMENT Software, or create or develop any derivative software based
upon the Evaluation Software.
(a) Customer acknowledges that it has read this Agreement,
understands it and agrees to be bound by its terms. Customer (d) Customer acknowledges that all Evaluation Software incor-
and Idera further agree that, subject to clause (b) below, this porates confidential and proprietary information developed or
Agreement, together with all Purchase Orders delivered in acquired by or licensed to Idera and that all results of testing of
connection herewith and all exhibits, schedules and annexes the Evaluation Software, whether performed by Customer or
hereto, is the complete and exclusive statement of the another third party, are confidential. In no event will Customer
agreement between Customer and Idera and supersedes all publish or disclose the results of any testing or performance
proposals,oral or written,and all other communications between specifications of the Evaluation Software without Idera's express
the parties relating to the subject matter of this Agreement, prior written consent. Customer shall not remove or deface of
including any shrink-wrap agreements, click-wrap agreements any confidentiality or proprietary notice placed on the Evaluation
or demo or trial agreements which may accompany the Licensed Software. The placement of copyright notices on Evaluation
Material or which may have been previously in force between Software shall not constitute publication or otherwise impair their
the parties.Subject to clause(b)below,this Agreement may not confidential nature of such information.
be amended, modified, supplemented or altered except by a
written agreement that is signed by both parties. (e) ALL EVALUATION SOFTWARE PROVIDED BY IDERA IS
DELIVERED"AS IS,WHERE IS"AND IDERA SPECIFICALLY
(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND
AGREEMENT OR ANY IDERA PURCHASE ORDER BE INCLUDING WARRANTIES OF MERCHANTABILITY AND
AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, FITNESS FOR A PARTICULAR PURPOSE. IDERA DOES
SUPERSEDED OR REPLACED BY ANY NON-IDERA NOT WARRANT THAT THE EVALUATION SOFTWARE WILL
INVOICE OR NON-IDERA PURCHASE ORDER OR OTHER OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
SIMILAR INSTRUMENT DELIVERED BY CUSTOMER TO UNDER NO CIRCUMSTANCES WILL IDERA OR ITS
IDERA. EACH PARTY ACKNOWLEDGES AND AGREES AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY
THAT, AS A CONVENIENCE TO CUSTOMER AND ONLY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE,
FOR CUSTOMER'S INTERNAL ACCOUNTING EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER
PROCEDURES, CUSTOMER MAY DELIVER TO IDERA A FORESEEABLE OR UNFORESEEABLE OR WHETHER
CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY,
OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION ARISING OUT OF OR RELATED TO CUSTOMER'S USE OF
CONTEMPLATED HEREUNDER AND THAT NO ACTION BY EVALUATION SOFTWARE. IN NO EVENT WILL THE
IDERA,INCLUDING IDERA'S DELIVERY OF ANY LICENSED AGGREGATE LIABILITY OF IDERA OR ITS AUTHORIZED
MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE REPRESENTATIVES INCURRED IN ANY ACTION OR
DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR PROCEEDING RELATING TO CUSTOMER'S USE OF
CONDITIONS CONTAINED IN SUCH CUSTOMER INVOICE EVALUATION SOFTWARE EXCEED ONE HUNDRED
OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR DOLLARS.
INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL
BE VOID AND OF NO FORCE OR EFFECT, UNLESS
ACCEPTED BY IDERA PURSUANT TO A WRITTEN (f) The Evaluation and the evaluation license granted under this
INSTRUMENT SIGNED BY BOTH PARTIES. Section 16 shall automatically terminate immediately upon the
earliest of(i)the expiration of the Evaluation Period,(ii)the date
upon which Customer purchases a commercial license for such
16. TRIAL LICENSE Evaluation Software and (iii)the date upon which either party
(a) If Customer is evaluating Evaluation Software (as defined notifies the other party of its termination of the Evaluation. Upon
below), then only the terms and conditions of this Section 16 expiration of the Evaluation Period or the Evaluation,Customer
(including those Sections of this Agreement incorporated in this shall cease using and shall uninstall and destroy the Evaluation
-6- SLA Ver.090122ns
Software unless Customer has purchased a commercial license LAW RULES. IDERA AND CUSTOMER HEREBY
for such Evaluation Software on or prior to such expiration. IRREVOCABLY AGREE ON BEHALF OF THEMSELVES
THAT THE SOLE AND EXCLUSIVE JURISDICTION AND
(g) Sections 1, 5, 8, 11, 14, 15 and 17(a) through 17(g) of this VENUE FOR ANY LITIGATION ARISING FROM OR
Agreement shall be deemed incorporated by this reference in RELATING TO THIS AGREEMENT OR THE SUBJECT
this Section 16 and the Evaluation license granted under this MATTER HEREOF SHALL BE IN AN APPROPRIATE
Section 16. FEDERAL OR STATE COURT IN THE STATE OF TEXAS
LOCATED IN TRAVIS COUNTY.
17. MISCELLANEOUS (e) Unless otherwise specified herein, the rights and remedies of
(a) Customer shall not assign, delegate or otherwise transfer this Idera set forth in this Agreement are not exclusive and are in
Agreement or any of its rights or obligations hereunder to any addition to any other rights and remedies available to it at law or
other person or entity,whether by contract,merger or operation in equity.
of the law,without Idera's prior written consent. In the event of
any merger of Customer or a sale of substantially all of the (f) This Agreement is not intended to be nor shall it be construed as
assets of Customer in which Customer is not the surviving entity, a joint venture,association,partnership or other form of business
Customer may assign or transfer any licenses granted under this organization or agency relationship.
Agreement; provided,that Customer provides Idera with written
notice of such transfer within thirty days of such merger or sale. (g) Headings used in this Agreement are for reference purposes
Any assignment or delegation in breach of this Section 17(a) only and shall not be used to modify the meaning of the terms
shall be void. This Agreement shall be binding upon the parties and conditions of this Agreement. This Agreement may be
hereto and shall inure to the benefit of the parties hereto and executed in counterparts,all of which shall constitute one single
their respective permitted successors and assigns. agreement between the parties hereto.
(b) All notices or approvals required or permitted under this (h) In consideration of the mutual covenants contained herein,
Agreement must be given in writing and delivered to the including the rights and licenses granted to Customer herein,the
appropriate party at the address set forth in this Agreement or in parties hereto do hereby agree that for a period of two years
any Purchase Order delivered in connection with this following Customer's most recent purchase of any licenses or
Agreement. services, including Maintenance Service, from Idera or its
authorized representative, Customer shall not solicit, induce,
(c) The waiver of compliance with or breach of any term or condition hire, engage, or attempt to hire or engage any employee of
of this Agreement or the failure of a party to exercise any right Idera, or in any other way interfere with Idera's contractual or
under this Agreement shall in no event constitute a waiver as to employment relations with any of its employees, nor will
any other failure to comply or breach, whether similar or Customer hire or engage or attempt to hire or engage any
dissimilar in nature, or prevent the exercise of any right under individual who was an employee of Idera at any time during such
this Agreement. two-year period.
(d) THIS AGREEMENT WILL BE GOVERNED BY AND INTER-
PRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF
[END OF AGREEMENT]
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