Get documents about "OGC SC504W
Shared by: HC120912102235
-
Stats
- views:
- 0
- posted:
- 9/12/2012
- language:
- English
- pages:
- 44
Document Sample
DOCUMENT INFORMATION AND INSTRUCTIONS
Form Ref: OGC-SC504
Description: Software License Agreement – University as Customer
Purchasing Services uses this form to purchase software for University use. If asked to
"Update page numbers only" or "Update entire table," choose "Update page numbers only"
(refers to Table of Contents).
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
I-1
SOFTWARE LICENSE AGREEMENT
BETWEEN
AND
THE REGENTS OF
THE UNIVERSITY OF MINNESOTA
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
Software License Agreement
Table of Contents
INDUCEMENTS ............................................................................................................................ 1
DEFINITIONS ................................................................................................................................ 2
1. LICENSE ............................................................................................................................ 4
1.1 Grant of License............................................................................................................ 4
1.2 License Fee ................................................................................................................... 4
1.3 Source Code .................................................................................................................. 4
2. TITLE ................................................................................................................................. 4
3. AUTHORIZED USERS ..................................................................................................... 5
3.1 Authorized Users .......................................................................................................... 5
3.2 Number of Users ........................................................................................................... 5
4. PLATFORM SPECIFICATIONS ...................................................................................... 5
4.1 Program Sets ................................................................................................................. 5
4.2 Multiple Platforms ........................................................................................................ 5
5. ENVIRONMENTAL SPECIFICATIONS ......................................................................... 5
6. DELIVERY AND INSTALLATION ................................................................................ 6
6.1 Delivery and Risk of Loss ............................................................................................ 6
6.2 Shipments...................................................................................................................... 6
6.3 Installation by Supplier ................................................................................................. 6
6.4 Installation by University.............................................................................................. 6
7. PAYMENT AND INVOICING ......................................................................................... 7
7.1 License Fee ................................................................................................................... 7
8. INVOICING ....................................................................................................................... 7
8.1 Invoice and Payment ..................................................................................................... 7
8.2 Maintenance Invoices ................................................................................................... 7
8.3 Trade-In Credit ............................................................................................................. 7
8.4 Conversion .................................................................................................................... 8
9. DIVESTITURE OF A SUBSIDIARY ............................................................................... 8
10. SUPPLIER INSURANCE .................................................................................................. 8
11. ACCEPTANCE TESTING ................................................................................................ 8
11.1 Live Environment Testing ............................................................................................ 8
11.2 Correction of Specification Nonconformities ............................................................... 9
11.3 Acceptance Testing ....................................................................................................... 9
11.4 Maintenance During Acceptance Testing ................................................................... 11
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
i
11.5 Failure to Complete Acceptance Testing Successfully............................................... 11
11.6 Use Shall Not Constitute Acceptance ......................................................................... 12
12. DOCUMENTATION AND TRAINING ......................................................................... 12
12.1 Documentation ............................................................................................................ 12
12.2 User Group, Bulletin Boards, and Internet Sites......................................................... 13
12.3 Training ....................................................................................................................... 13
13. MAINTENANCE SERVICES ......................................................................................... 13
13.1 Maintenance (Overview) ............................................................................................ 13
13.2 Maintenance ................................................................................................................ 13
13.3 Response Times .......................................................................................................... 14
13.4 Service Tracking and Reporting ................................................................................. 14
13.5 Maintenance Fee (University Error) ........................................................................... 15
13.6 Maintenance Fees/Cap ................................................................................................ 15
13.7 Revision Levels........................................................................................................... 15
13.8 Inoperability ................................................................................................................ 15
13.9 Reinstatement.............................................................................................................. 15
13.10 Liquidated Damages ................................................................................................... 16
14. WARRANTIES ................................................................................................................ 16
14.1 Media Defects ............................................................................................................. 16
14.2 Function and Features ................................................................................................. 16
14.3 Performance ................................................................................................................ 16
14.4 Compatibility .............................................................................................................. 16
14.5 Ninety-Day Warranty ................................................................................................. 17
14.6 Conformance to Specifications ................................................................................... 17
14.7 Hardware Configuration ............................................................................................. 17
14.8 Pass-Through of Warranties ....................................................................................... 17
14.9 Governmental Consent ............................................................................................... 18
14.10 No Actions, Suits, or Proceedings .............................................................................. 18
14.11 Free and Clear Title .................................................................................................... 18
14.12 Infringement................................................................................................................ 18
14.13 Good and Workmanlike Manner ................................................................................ 18
14.14 Future Support ............................................................................................................ 18
14.15 Warranty of Past Success ............................................................................................ 18
14.16 Warranty of Supplier Capability ................................................................................. 19
14.17 Most Favored Customer.............................................................................................. 19
14.18 Century Date Change Requirements........................................................................... 19
15. MODIFICATIONS AND PROPRIETARY RIGHTS ..................................................... 20
15.1 Supplier Modifications ............................................................................................... 20
15.2 University Modifications ............................................................................................ 21
15.3 Confidential Information of Supplier ......................................................................... 21
15.4 Termination of Supplier's Right to Possess Confidential Information ....................... 21
15.5 Nondisclosure ............................................................................................................. 22
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
ii
16. PROHIBITION ON PUBLICITY .................................................................................... 22
17. EQUITABLE RELIEF AND SURVIVAL OF RESTRICTIONS AND
OBLIGATIONS ............................................................................................................... 22
17.1 Equitable Relief .......................................................................................................... 22
17.2 Survival of Obligations ............................................................................................... 22
18. INDEMNIFICATION ...................................................................................................... 22
18.1 Indemnification ........................................................................................................... 22
18.2 Intellectual Property.................................................................................................... 23
18.3 Judgment ..................................................................................................................... 23
18.4 Personnel ..................................................................................................................... 23
19. ILLICIT CODE ................................................................................................................ 23
20. LIMITATION OF LIABILITY ........................................................................................ 24
21. INDEPENDENT OBLIGATION OF SUPPLIER TO CONTINUE
PERFORMANCE............................................................................................................. 24
21.1 Nature of Independent Obligation .............................................................................. 24
21.2 Liquidated Damages for Breach by Supplier of Independent Obligation .................. 24
22. ASSIGNMENT ................................................................................................................ 25
23. TIME IS OF THE ESSENCE........................................................................................... 25
24. SOURCE CODE ESCROW ............................................................................................. 25
24.1 Release of Escrow ....................................................................................................... 25
24.2 University's Rights and Obligations After Release of Source Code........................... 26
24.3 Escrow Sufficiency ..................................................................................................... 26
24.4 Escrow Verification .................................................................................................... 26
24.5 Source Code Installation ............................................................................................. 27
25. TAXES ............................................................................................................................. 27
26. MISCELLANEOUS ......................................................................................................... 27
26.1 Cumulative Remedies ................................................................................................. 27
26.2 Notices ........................................................................................................................ 27
26.3 Counterparts ................................................................................................................ 28
26.4 Non-Waiver ................................................................................................................ 28
26.5 Entire Agreement ........................................................................................................ 28
26.6 Amendment ................................................................................................................. 29
26.7 Severability of Provisions ........................................................................................... 29
26.8 Benefit of Successors and Assigns ............................................................................. 29
26.9 Relationship of Parties ................................................................................................ 29
26.10 Governing Law and Jurisdiction ................................................................................. 29
26.11 Compliance with Laws ............................................................................................... 29
26.12 Order of Precedence.................................................................................................... 30
26.13 Anti-Kickback Enforcement Act of 1986 ................................................................... 30
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
iii
26.14 Debarment and Federal Funding................................................................................. 30
26.15 Anti-Trust Violations .................................................................................................. 30
EXHIBIT A ..................................................................................................................................... 1
PROGRAM SET............................................................................................................................. 1
EXHIBIT B ..................................................................................................................................... 1
HARDWARE AND SOFTWARE REQUIREMENTS ................................................................. 1
EXHIBIT C ..................................................................................................................................... 1
ESCROW AGREEMENT .............................................................................................................. 1
(attached)......................................................................................................................................... 1
EXHIBIT D ..................................................................................................................................... 1
MAINTENANCE FEE SCHEDULE ............................................................................................. 1
(attached)......................................................................................................................................... 1
EXHIBIT E ..................................................................................................................................... 1
REQUEST FOR PROPOSAL ........................................................................................................ 1
(attached)......................................................................................................................................... 1
EXHIBIT F ..................................................................................................................................... 1
RESPONSE TO REQUEST FOR PROPOSAL ............................................................................. 1
(attached)......................................................................................................................................... 1
EXHIBIT G ..................................................................................................................................... 1
CERTIFICATE OF COMPLIANCE WITH FEDERAL REQUIREMENTS ............................... 1
(attached)......................................................................................................................................... 1
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
iv
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT, including all exhibits attached hereto
and incorporated herein by reference (the "Agreement"), is made and entered into as of the
day of 20 , by and between Regents of the University of Minnesota, a
constitutional corporation, located at Minneapolis, Minnesota ("University") and , Inc., a
corporation, with its principal place of business located at , (Supplier), with
reference to the following facts:
This Agreement is null and void if not executed by both parties within ( )
days of the date first written above.
INDUCEMENTS
A. University is, among other activities, currently engaged in the business of
providing to its customers. University is currently fulfilling the
information processing requirements of through a combination of manually
performed procedures and automated processing performed by an existing
computerized information management system.
B. University has submitted to Supplier a Request For Proposal dated (the
RFP) setting forth certain information regarding . Based on the results of
Supplier's review and analysis of the RFP, Supplier has prepared and delivered to
University a Proposal dated (the “Proposal”) setting forth representations
including conclusions, recommendations, and benefits. The RFP and the
Response are attached as Exhibits E and F respectively. These representations
specify the appropriate hardware, software, services, and related operating
procedures required to provide University with the capabilities specified in the
RFP's technical requirements and specifications for ongoing operations; and
further to provide University with the capability and the flexibility sufficient to
handle its current and reasonable anticipated growth in an economical and
commercially feasible manner. University is relying upon such
recommendations, and University has or will acquire the hardware described in
Exhibit B (the Software and Hardware Requirements) pursuant to the Supplier's
recommendations as set forth in the Proposal (the Recommended Hardware
Configuration).
C. On the basis of the representations contained in Supplier's Proposal, presentations,
other printed material, correspondence, discussions, and the Supplier-developed
functional specifications provided to University on , 20 , and in reliance
upon the expertise of Supplier in analyzing, designing, and providing software
systems appropriate for applications such as information management, University
desires to engage Supplier to license certain software and to implement certain of
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
1
the software development and hardware recommendations contained in the
Proposal on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the inducements, mutual covenants, and
conditions herein contained, the parties agree as follows:
DEFINITIONS
Acceptance Test Procedure means the benchmarks and other performance criteria used to
measure the effectiveness of the Licensed Software and the means used to test such performance.
Acceptance Test Procedures shall be developed by University and Supplier jointly.
Authorized User has the meaning described in Section 3.1.
Confidential Information has the meaning described in Section 15.3.
Conversion Period means a period of time not to exceed six (6) months, during which
University converts to a new Operating System under Section 8.4.
CPU means any computer or computer system that is used in the University's business to store,
process, or retrieve data or perform other functions using operating systems and applications
software.
Critical Program Error means any Program Error, whether or not known to University, that
prohibits or significantly impairs use of the Licensed Software as set forth in the Documentation
and intended in this Agreement.
Documentation means the user's manuals and any other materials in any form or medium
customarily provided by the Supplier to the users of the Licensed Software that will provide to
University sufficient information to operate, diagnose, and maintain the Licensed Software
properly, safely and efficiently.
Effectiveness Level has the meaning described in Section 11.3.3.B.
Final Acceptance has the meaning described in Section 11.
Installation Date means the date upon which the procedures described in Section 6.3 or Section
6.4 are completed.
Licensed Software includes any and all software and Documentation to which University
obtains or is granted any rights under this Agreement.
Module(s) means a collection of routines and data structures that perform a specific function of
the Licensed Software.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
2
Operating System means the control program in a computer that provides the interface to the
computer hardware and peripheral devices, and the usage and allocation of memory resources,
processor resources, input/output resources, and security resources.
Outsourcing means obtaining computing or related services from a source outside of
University's company. Computing or related services may include programming and/or
executing the University's Licensed Software on University's CPUs, programming and/or
executing University's programs and Licensed Software on Outsourcing Company's CPUs, or
any mix thereof.
Outsourcing Company is a company that provides Outsourcing services under contract to
University.
Platform means a specific hardware and Operating System combination that is different from
other hardware and Operating System combinations to the extent that a different version of the
Licensed Software product is required to execute properly in the environment established by
such hardware and Operating System combination.
Product means a Module, a System, or any other software-related item provided by Supplier to
University.
Program Error means code in the Licensed Software that produces unintended results or
actions, or which produces results or actions other than those described in the Specifications. A
program error includes, without limitation, any "Critical Program Error."
Program Set means the group of programs and products, including the Licensed Software
specified in Schedule A plus any additional programs and products licensed by University under
this Agreement for use by University.
Project means the total of all Software, Documentation, and services to be provided by Supplier
under this Agreement.
Recommended Hardware Configuration means the data processing hardware (including all
terminals, auxiliary storage, communication, and other peripheral devices) as recommended by
the Supplier as necessary to meet University's processing requirements.
Specification Nonconformities mean any performance of software that is not in accordance
with Supplier's definitions based on operating manuals, and Supplier's response to the RFP.
Specifications means the information provided by or on behalf of Supplier that fully describes
the capabilities and functionality of the Licensed Software as set forth in any material provided
by Supplier, including the Documentation and user's manuals described herein, and in the
Supplier's response to the RFP.
Subsidiary means any company, partnership, or joint venture directly or indirectly controlled by
University, whether through ownership, contract, or otherwise.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
3
Supplier Modifications has the meaning described in Section 15.1.
System means any collection or aggregation of two (2) or more Modules that is designed to
function, or is represented by Supplier as functioning or being capable of functioning as an
entity.
University means any and all campuses and sites of the University of Minnesota or any such
location under the control of University or is subject to University's control under a contract.
University Modifications shall have the meaning described in Section 15.2.
University's Processing Requirements mean those processing requirements as defined and set
forth in the RFP.
Upgrade shall be any improvement or change in the Software that improves or alters its basic
function.
Warranty Period has the meaning described in Section 14.6.
1. LICENSE
1.1 Grant of License
On the terms and conditions set forth herein, Supplier hereby grants to University
a fully paid, irrevocable, nonexclusive, worldwide, perpetual license to use the
Licensed Software and Documentation, plus any Licensed Software that shall be
added to the Program Set during the term of this Agreement, on or in connection
with any CPU utilized by University to fulfill its own data processing needs.
1.2 License Fee
In consideration of the License granted to University hereunder, University shall
pay to Supplier a License Fee as provided in Exhibit A.
1.3 Source Code
University's rights to utilize the Licensed Software shall include the source code
of the Licensed Software in the event the conditions of Section 24 herein are met.
2. TITLE
Supplier hereby warrants that it is either the sole owner of all right, title, and interest in
and to, or is authorized to license to University the Licensed Software and that it is
authorized to enter into this agreement. Upon request of University, Supplier shall
demonstrate that all aspects of the Licensed Software are its original work or that
Supplier is authorized to sublicense on the terms stated herein.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
4
3. AUTHORIZED USERS
3.1 Authorized Users
University shall not permit any Licensed Software to be used by any other person,
except for employees, agents, consultants, Outsourcing Companies, and
contractors who need to use the Licensed Software in the performance of their
duties for University and who are authorized and enabled by University to access
and utilize the Licensed Software ("Authorized User").
3.2 Number of Users
There shall be no limit on the number of machines, number of users, number of
locations or size of CPU on which University can operate the Licensed Software.
University shall have the right to receive free of charge additional copies of the
Licensed Software and Documentation as required by University for use on
additional or alternate computers for University's business operations.
4. PLATFORM SPECIFICATIONS
4.1 Program Sets
Supplier shall deliver to University one (1) copy of the Licensed Software and
Documentation for each Platform as set forth in Exhibit A. At the request of
University, Supplier shall deliver to University a copy of the Licensed Software in
CD-ROM or other media format, from which University may make copies for its
use consistent with the limitations of this Agreement. Supplier acknowledges that
it has been advised of University's current Platform and warrants that the
Licensed Software will operate in accordance with the Specifications on that
Platform.
4.2 Multiple Platforms
University shall have the right, at no additional cost, to operate simultaneously on,
move, or upgrade the Licensed Software to other hardware Platforms on which
the Licensed Software may operate.
5. ENVIRONMENTAL SPECIFICATIONS
Supplier warrants, represents, and agrees that the Hardware and Software Requirements
set forth in Exhibit B attached hereto include all physical and environmental
specifications necessary (including, without limitation, Operating System version and
feature requirements and limitations, DASD storage requirements, CPU memory
requirements, CPU processor type requirements, CPU feature requirements and
limitations, Internet and remote access capabilities, and equipment configuration and
connection and all other information required by such hardware and software) for the
Licensed Software to be utilized on the Recommended Hardware Configuration in
accordance with the Specifications.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
5
6. DELIVERY AND INSTALLATION
6.1 Delivery and Risk of Loss
All deliveries under this Agreement shall be F.O.B. destination. Title and risk of
loss of all Licensed Software and media on which said Licensed Software is
delivered shall remain at all times with the Supplier until Final Acceptance by the
University.
6.2 Shipments
Within twenty (20) days following execution of this Agreement by University,
Supplier shall ship the Licensed Software to University's place of business.
University, at its sole discretion, may delay delivery for up to ninety (90) days
after execution of this Agreement. Shipments shall be prepared and packed at
Supplier's expense and delivered via air or other fast transportation to minimize
delay. University shall pay all reasonable shipping charges for shipments
requested by University.
6.3 Installation by Supplier
If University has contracted in writing for installation by Supplier, then:
6.3.1 Within thirty (30) days following execution of this Agreement by
University, Supplier shall install the Licensed Software on University's
Platform at the University's place of business and make it ready for
productive use. If delivery is delayed pursuant to Section 6.2, installation
shall occur not more than ten (10) days after delivery of the Licensed
Software to University.
6.3.2 University, at its sole discretion, may delay installation for up to ninety
(90) days after delivery of the Licensed Software.
6.3.3 Supplier shall conduct its standard diagnostic evaluation at University's
site to determine that the Licensed Software is properly installed and fully
ready for productive use subject to Acceptance Testing as provided in
Section 11 below, and shall supply University with a copy of the results of
the diagnostic evaluation promptly after completion thereof.
6.3.4 The Licensed Software shall be deemed to be installed upon successful
completion of the diagnostic test and University's approval of the results
thereof. The installation procedures of this Section 6.3 are in addition to
all acceptance test procedures required under Section 11 hereof.
6.4 Installation by University
If installation is to be performed by University, the Licensed Software shall be
deemed to be installed when all programs, program libraries, and user interfaces
are copied to and initialized on the appropriate CPU(s) and when University
demonstrates that Licensed Software is executable by invoking the primary
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
6
function of each major component on the Platform. The installation procedures of
this Section 6 are in addition to all acceptance test procedures required under
Section 11 hereof.
7. PAYMENT AND INVOICING
7.1 License Fee
7.1.1 In consideration of the License granted to University hereunder and the
services to be performed by Supplier hereunder, University shall pay to
Supplier for each purchase made under this Agreement which will be
invoiced as provided in Section 8.1:
Payment Event Percentage of Total License Fee Payable
Delivery 25.0
Installation 25.0
Preliminary Testing 25.0
Final Acceptance 25.0
7.1.2 The license fee for each product is calculated by multiplying the number
of product(s) licenses purchased by the purchase price for each product.
The total license fee for each purchase is calculated by adding the
individual product license fees.
8. INVOICING
8.1 Invoice and Payment
At the conclusion of each payment event indicated above, Supplier will invoice
University for the appropriate amount, and University will pay any undisputed
invoice within thirty (30) days of receipt of that invoice by University.
8.2 Maintenance Invoices
Invoices for maintenance will be delivered to University by Supplier no later than
sixty (60) days prior to the expiration of the initial Warranty Period and each
subsequent Maintenance Period that is offered on an annual basis pursuant to
Section 13 hereof. Failure to deliver said invoice at least sixty (60) days prior to
the expiration date will have the effect of extending the current warranty or
Maintenance Period to sixty (60) days after receipt of the invoice by University.
All notification periods for renewal of maintenance will be extended for thirty
(30) days after receipt of Supplier's invoice.
8.3 Trade-In Credit
At any time during the Conversion Period, University may elect to return the
Licensed Software and any hardware or other products to Supplier for a credit that
may be applied against future acquisitions of software or other products or
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
7
services from Supplier. This credit will be calculated by reducing the original
license fee by one-sixtieth (1/60) for each month or partial month elapsing
between the date of Final Acceptance and University's return of the Licensed
Software to Supplier.
8.4 Conversion
For the purpose of changing the Licensed Software from one Operating System
environment to a different Operating System environment, Supplier will extend
the rights of this License to the new Operating System environment during the
Conversion Period. After the Conversion Period, University may use the
Licensed Software on the new Operating System without further charge.
9. DIVESTITURE OF A SUBSIDIARY
Not applicable.
10. SUPPLIER INSURANCE
Unless more specific insurance provisions are attached, the following shall apply. At all
times during its performance under this Agreement, Supplier shall obtain and keep in
force comprehensive general and professional liability insurance, including coverage for
death, bodily or personal injury, property damage, including products liability and
automobile coverages, with limits of not less than $1,000,000 each claim and $3,000,000
each occurrence. All such certificates evidencing such insurance shall name the
University as an additional insured and shall specifically cover Supplier's obligations to
defend and hold the University harmless as provided herein. Supplier represents that it
has workers' compensation insurance to the extent required by law and agrees to furnish
proof of such insurance upon request. Supplier shall provide such certificates to the
University prior to commencement of services or delivery of goods.
This Section 10 shall in no way affect the indemnification, remedy, or warranty
provisions set forth in this Agreement or University's right of recovery thereunder.
11. ACCEPTANCE TESTING
11.1 Live Environment Testing
As soon as practicable after installation, University may in its discretion begin
utilizing the Licensed Software in a live environment on the Platform. Upon
completion of Phase 3 below, the Licensed Software shall be deemed finally
accepted (Final Acceptance). Nothing contained in this Section or any other
provision of this Agreement shall be deemed to prevent University from using any
portion of the Licensed Software in a live environment for productive processing
prior to Final Acceptance of the Licensed Software and any such use shall not
alter, amend, or modify any of Supplier's obligations pursuant to this Agreement.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
8
11.2 Correction of Specification Nonconformities
Any Specification Nonconformities revealed during any phase of the Acceptance
Testing Procedure described below (or in connection with any Preliminary
Productive Use) shall be promptly corrected by Supplier, and appropriate
documentation for such correction shall be produced and delivered to University
within thirty (30) days of such correction.
11.3 Acceptance Testing
Upon completion of installation, Supplier and University shall perform
Acceptance Testing of all Licensed Software in the following three (3) phases.
The Acceptance Testing requirements of this section also apply to substitute,
replacement, and conversion products that are acquired by University after the
Licensed Software has passed earlier Acceptance Testing.
11.3.1 Phase One
Supplier shall initially perform its standard test procedures for University's
personnel and shall certify to University in writing that all components
and each applicable Module(s) are operating in accordance with the
Supplier's published specifications and the Specifications provided to
University. In the event the Supplier is unable to, or does not, so certify to
University within thirty (30) calendar days from the installation date, the
System(s) and any applicable Module(s) will be deemed not to have
completed this phase of the Acceptance Testing successfully.
11.3.2 Phase Two
With the advice and assistance of Supplier's representatives, University
will operate the System for five (5) business days, using all software
furnished by the Supplier necessary for the Licensed Software to function
as specified in this Agreement, to perform: (i) the Licensed Software
routine business transactions; (ii) transactions performed during pre-
acceptance testing benchmark or other demonstration included,
referenced, or incorporated into the Acceptance Test Procedures; and (iii)
such other transactions as may be specified in the Acceptance Test
Procedures. This Phase Two will be the Preliminary Acceptance Testing.
In the event the System fails to perform all such transactions, or fails to
run the Licensed Software, in accordance with applicable published
specifications or the Specifications provided to University, and within two
percent (2%) of applicable benchmark or other demonstration results
stated in the Acceptance Test Procedures, for a period of five (5)
consecutive business days, University shall operate the System for
additional consecutive business days until the System so performs such
transactions and runs the Licensed Software for a period of five (5)
consecutive business days. In the event such failure continues in whole or
in part for a period of more than thirty (30) calendar days from the
Installation Date, the System(s) and any applicable Module(s) will be
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
9
deemed not to have completed this phase of the Acceptance Testing
successfully.
11.3.3 Phase Three
With the advice and assistance of Supplier's representatives, University
will operate the System, using all Licensed Software furnished by Supplier
or otherwise specified in this Agreement, to determine whether the
System(s) and each Module(s) of the Licensed Software meet the
Effectiveness Level.
A. Performance Period
1. The Performance Period for Phase Three shall begin on the
date the System successfully completes Phase Two of the
Acceptance Testing for Final Acceptance (Preliminary
Acceptance) and shall end when the System(s) and each
Module(s) have met the standard of performance for a
period of sixty-two (62) consecutive days by operating in
conformity with Supplier's technical specifications, as
quoted in the Specifications provided to the University, and
as otherwise generally published by Supplier, at an
Effectiveness Level of ninety-nine percent (99%) or better.
2. In the event the System(s) or any Module(s) thereof fails to
meet an Effectiveness Level of ninety-nine percent (99%)
after ninety (90) days from the Installation Date, the
System(s) and any applicable Module(s) will be deemed
not to have completed this phase of the Acceptance Testing
successfully.
B. Effectiveness Level
1. The Effectiveness Level for the System or Component shall
be computed by dividing the Operational Use Time of the
System(s) or Module(s) by the sum of that time plus
System(s) or Module(s) Failure Downtime.
2. Operational Use Time for Acceptance Testing of the
System(s) or Module(s) is defined as the accumulated time
during which the applicable System(s) or Module(s) is in
actual operation. During Phase Three of Acceptance
Testing, a minimum of one hundred (100) hours of
Operational Use Time with productive or simulated work
will be required as a basis for computation of the
Effectiveness Level. In the event the actual Operational
Use Time is fewer than one hundred (100) hours, the initial
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
10
thirty (30) consecutive day period will be extended until
such minimum period of use is reached. In the event the
actual Operational Use Time is in excess of one hundred
(100) hours, such actual time will be used for the
computation of the Effectiveness Level.
3. System Failure Downtime is defined as the accumulated
time during which the applicable System(s) or Module(s) is
inoperable due to product failure. Downtime for each
incident during the Performance Period shall be measured
from the time Supplier is notified of failure until the failure
is corrected by Supplier and the System(s) or Module(s)
returns to its prior Effectiveness Level, exclusive of actual
initial response time required by Supplier's maintenance
personnel, not in excess of one (1) hour per day, on the day
such maintenance service is requested. System Failure
Downtime shall not include any down or inoperable time
that Supplier can demonstrate is a result of (i) hardware
malfunctions; (ii) failure to comply with Recommended
Hardware Specifications described in Exhibit B; (iii) failure
to comply with Environmental Specifications described in
Section 5.
4. Operational Use Time and Systems Failure Downtime shall
be measured in hours and whole minutes or the decimal
equivalents thereof.
5. University shall maintain appropriate daily records to
satisfy the requirements of this Section 11.3.3, and shall
notify Supplier in writing of the date of the first day of a
successful Performance Period.
11.4 Maintenance During Acceptance Testing
Supplier agrees to provide Maintenance Services as set forth in this Agreement
during all Acceptance Testing. Such services shall be provided at no expense to
University.
11.5 Failure to Complete Acceptance Testing Successfully
In the event the System(s) or any Module(s) is deemed not to have successfully
completed any phase of the Acceptance Testing, then University may, in its sole
discretion, elect one (1) of the following options, which election shall be effective
upon written notification to the Supplier by University:
11.5.1 University may terminate this Agreement and request the removal of the
Licensed Software and Components failing to meet the applicable phase of
Acceptance Testing, in which event University may pursue any remedy
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
11
hereunder or available at law or in equity, or seek to enforce any damages,
including any liquidated damages that may be specifically set forth in this
Agreement.
11.5.2 Supplier shall install at Supplier's sole cost and expense, within such time
period as may be mutually agreed in writing by University and Supplier, a
direct replacement of the Module(s) or System(s) failing to meet the
applicable phase of the Acceptance Testing. Such replacements, and the
applicable System, shall be subject to Acceptance Testing as provided in
this Section 11. Supplier shall use due care in the removal and
replacement of such Module(s) or System(s).
11.6 Use Shall Not Constitute Acceptance
In no event shall use of any Product by University, for business, profit, revenue,
or any other purpose during any phase of the Acceptance Testing, constitute
acceptance of any Product by University.
12. DOCUMENTATION AND TRAINING
12.1 Documentation
Supplier shall provide to University user manuals and related materials and/or
give access to on-line documentation, sufficient to allow University to utilize fully
the Licensed Software in accordance with the Specifications. Documentation will
include (but is not limited to) overview descriptions of all major functions and
detailed step-by-step operating procedures for each screen and activity. The
Documentation to be provided by Supplier is in addition to any on-line HELP
which is part of the Licensed Software user interface. Supplier shall deliver to
University upon execution of this Agreement ( ) copies of the
Documentation as well as a copy of the Documentation in CD-ROM or other
media format as requested by University. Supplier shall revise such
Documentation as necessary to reflect any modifications made by Supplier to the
Licensed Software. University may copy and incorporate the Documentation in
works prepared for University's business endeavors so long as University includes
all copyright, trademark, and other notices of Supplier in the same form as they
appear on or in the Documentation. Supplier warrants and represents that the
Documentation and all modifications or amendments thereto and any other
Documentation that Supplier is required to provide pursuant to this Agreement
shall be sufficient in detail and content to allow an appropriately skilled
programmer to understand fully, modify, enhance, and correct errors in the
Licensed Software without reference to any other materials or information.
Supplier further hereby warrants and represents that the Documentation and all
modifications or amendments thereto and any other documentation that Supplier
is required to provide pursuant to this Agreement shall be in accordance with the
documentation standards in the present Documentation. If any user manual
(including any on-line documentation) or portion thereof is the proprietary
material or intellectual property of another party, Supplier shall convey to
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
12
University the right (to the extent possible under law) to make copies and to use
the material as University deems necessary.
12.2 User Group, Bulletin Boards, and Internet Sites
In addition to any other maintenance obligation or obligation to provide
Documentation, Supplier shall notify University of any user group, bulletin board,
or Internet site relating to the Licensed Software or services provided by Supplier
under this Agreement, and to the extent necessary, provide access thereto.
12.3 Training
Supplier shall be responsible for providing University and its employees with
such training in the operation and maintenance of the Licensed Software as
University may reasonably request from time to time prior to execution of this
Agreement and for a period of at least one hundred eighty (180) days thereafter or
other agreed-upon time period. Such training shall be provided at University's
principal place of business or other site agreed to by University, through
instructors satisfactory to University in the reasonable exercise of its discretion.
Training will be performed "hands-on" using the actual system and applicable
user manuals. The courses will train University-designated employees or agents,
who can then train the Licensed Software operators, such that University will
have an ongoing in-house Licensed Software training capability. Without
limitation of the foregoing right, Supplier and University shall prepare and agree
upon a proposed training schedule for submissions to University not later than
. University shall be entitled to have any number of its employees attend
any training session held pursuant to this Section 12.3. All training shall be
conducted at Supplier's sole expense. Supplier's employees shall follow all of
University's work rules, confidentiality rules, and drug policies, including the
nondisclosure obligations of Section 15.5 hereof.
13. MAINTENANCE SERVICES
13.1 Maintenance (Overview)
Maintenance is not linked to usage or License rights. Maintenance is an option, to
be acquired at sole option of University. Cancellation of Maintenance Services
by University will not in any way affect this Agreement and the grant of License
herein. Maintenance shall include options to renew and, if elected by University,
shall commence upon expiration of the warranty under Section 14 and shall be
renewed on an annual basis. Renewal of maintenance shall be by invoice and
payment as provided in Section 8.2.
13.2 Maintenance
So long as University pays the Maintenance Fees as specified in Section 13.6,
Supplier shall provide to University all generally publicly available improvements
and additions to the functionality, as well as new functions, of the Licensed
Software and provide the Maintenance services as specified herein. Supplier shall
maintain the Licensed Software so that it operates in conformity with all
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
13
descriptions and Specifications herein or as otherwise provided by Supplier,
including Specifications for the performance of all improved or modified versions
of the Licensed Software that the University has been licensed to use.
Maintenance services shall include, at a minimum, the detection and correction of
any software errors and the implementation of all program changes, updates,
upgrades, and installation of additional programs provided under this Agreement
discovered by the University or otherwise made known to Supplier. Supplier
agrees to respond to University inquiries regarding the use and functionality of the
Software as issues are encountered by Authorized Users.
13.3 Response Times
Supplier will provide on-call support twenty-four (24) hours a day, seven (7) days
a week for the Licensed Software per Exhibit D (Note: This may be amended if
RFP stipulates less service is needed). This will include qualified support
personnel with expertise in the Licensed Software. Response to system problems
shall be within fifteen (15) minutes (Note: 15 minutes may be amended if
stipulated in the RFP) of notification by telephone or other means that shall be
mutually agreed to. A temporary program fix or work around shall be provided
within four (4) hours of notification for any problem designated as a Critical
Program Error. Supplier shall provide a permanent fix or workaround for a
Critical Program Error within twenty-four (24) hours of the temporary fix unless
University agrees in writing to a longer time. Supplier will respond within the
time as specified herein. All other problems will be fixed within five (5) days.
Software warranty service includes repair of any defects or deficiencies in coding
and implementation of the mutually agreed-upon system functionality. Initial
response will normally be by electronic access to University's computer system on
which the Licensed Software resides. Supplier will commit the resources
necessary to solve the Critical Program Error as specified herein. University
agrees to furnish reasonable assistance to Supplier in correcting the Critical
Program Error. If electronic access does not prove effective, Supplier will visit
the site to determine the appropriate actions and resolve the problem. Supplier
will pay for travel, hotel, and per diem expenses unless University agrees in
advance to other arrangements as stated in Section 13.6.
13.4 Service Tracking and Reporting
Supplier shall maintain records of all service calls made by University's
personnel, including the identity of the person calling and the person called, the
nature of the reported problem, and Supplier's response time and disposition of
the service call. Supplier shall provide reports to University on a quarterly basis
summarizing the support activity and detailing the responses made to Critical
Program Errors. The failure of Supplier to resolve or respond to Critical Program
Errors as required in Section 13.3 on more than ( ) times in a given
calendar quarter shall be deemed a failure to provide maintenance under Section
24.1.1.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
14
13.5 Maintenance Fee (University Error)
In the event it is determined by Supplier that the problem was due to University
error in the use of the Licensed Software, as opposed to an error, defect or
nonconformity in the Licensed Software itself, University shall pay Supplier
Supplier's standard commercial time and materials rates charged under Exhibit D
for all on-site service provided, plus Supplier's actual travel and per diem
expenses.
No such expenses will be reimbursed if the University shall have not first
approved such expenses in advance in each instance, or if such expenses are not
consistent with University policy on reimbursable expenses. This policy can be
found at http://purchasing.umn.edu/.
13.6 Maintenance Fees/Cap
The fee for the initial year of maintenance services is and no/100 dollars
($ ). Subsequent Maintenance Fees for each of the succeeding years
included in this agreement shall be the lesser of the then-current Maintenance Fee
Schedule or seven percent (7%) of the then-current License Fee (calculated
pursuant to Exhibit D).
13.7 Revision Levels
University is not obligated to implement other updates, changes, modifications, or
enhancements if said revisions interfere with University's level of intended usage
or operating environment; however, Supplier and University shall work together
with mutual best efforts in order to implement and install all revisions so that they
function properly at the level of the University's intended usage and within the
University's operating environment. Supplier will support releases for no fewer
than five (5) years from Installation Date.
13.8 Inoperability
In the event that the Licensed Software, or a material function of the Licensed
Software, becomes inoperable for a period of five (5) days, the Maintenance
Period may, at University's option, be suspended for the period of the
inoperability, and the amount of time that such period is suspended shall be added
to the end of the then-current Maintenance Period. Such temporary suspension
shall not relieve Supplier of its duties or obligations as described in this
Agreement. In the event inoperability extends for a period of ten (10) days, then
in addition to suspension, the condition will be deemed a failure to provide
maintenance under Section 24.1.1.
13.9 Reinstatement
If University elects to discontinue Maintenance at any time during this seven (7)
year period, and subsequently elects to reinstate Maintenance within five (5) years
from that time, the Maintenance Renewal Fee shall not exceed ten percent (10%)
of the then-current License Fee, with no additional cost or penalty, except to
reimburse Supplier for its direct distribution costs necessary to supply University
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
15
with one (1) copy of the current version of all Program Sets and Documentation
for each licensed Platform, plus any intermediate versions required by virtue of
Supplier's maintenance strategy that may be required to migrate University's
programs and data from the versions under which University is running to the
then-current versions. Any subsequent Maintenance Renewal Fees, occurring
within the original seven (7) year period, shall be subject to the original seven
(7%) percent renewal cap as provided in Section 13.6. University will be
responsible for timely installation of current copies submitted by Supplier.
13.10 Liquidated Damages
Supplier and University agree that the impact of non-availability of the Licensed
Software is impossible to determine in exact dollar amounts for each occurrence,
but recognize that University will suffer significant damages through lost
productivity plus other costs necessary to ensure continued customer service for
each unscheduled period of non-availability. Therefore, Supplier and University
agree that, for as long as University is contracting with Supplier for Maintenance
Services as described in this Section 13, if the Licensed Software fails for any
reason due to a failure of any item provided by Supplier under this Agreement,
and is unavailable for more than thirty (30) minutes in a twenty-four (24) hour
period, Supplier will pay liquidated damages of Four Thousand Dollars ($4,000)
per hour for each hour of unscheduled non-availability or fraction thereof. This
remedy of liquidated damages is in addition to any remedy for any other breach of
this Agreement by Supplier, and is in addition to the source code escrow
provisions of Section 24 of this Agreement.
14. WARRANTIES
14.1 Media Defects
The media, including on-line access, on which the Licensed Software is provided
shall be free of defects in material and workmanship.
14.2 Function and Features
The Licensed Software shall possess all material functions and features as
described in the Specifications of the Request for Proposal and in the Supplier's
Response to the Request for Proposal # .
14.3 Performance
The Licensed Software shall perform in accordance with the Specifications, the
User Manuals, and the Documentation.
14.4 Compatibility
The Licensed Software shall be compatible with the Operating Systems,
application programs, CPUs, and networks specified in the Documentation, the
Recommended Hardware Configuration, and the Environmental Specifications.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
16
14.5 Ninety-Day Warranty
University shall have the right for ninety (90) days following the date of
installation to return the Licensed Software and receive a refund of all license and
maintenance fees paid to Supplier pursuant to this Agreement in the event the
Products do not meet the requirements of University, as University shall
determine in the sole exercise of its discretion.
14.6 Conformance to Specifications
Supplier warrants and represents to University that the Licensed Software shall
operate without Specification Nonconformities for a period of twelve (12) months
from Final Acceptance (the "Warranty Period") for all Sites that implement the
Licensed Software. If, within the Warranty Period, University shall give Supplier
oral or written notice of a Specification Nonconformity contained in the Licensed
Software, Supplier shall investigate such Specification Nonconformity as soon as
possible but not later than two (2) hours after receipt of such notice and will
classify the problem with concurrence by University as either a problem
preventing normal operations (Category A), or other problem (Category B).
Supplier will provide a temporary fix or work around for all Category A problems
within four (4) hours of receipt of such notice and provide a permanent fix or
work around within twenty-four (24) hours unless University agrees in writing to
a longer time. Category B problems will be corrected within five (5) days. No
maintenance charges will be assessed during the Warranty period. Supplier will
provide University with twenty-four (24) hours a day, seven (7) days a week
Maintenance Services as described in Section 13.3. In addition, the provisions of
Sections 13.3 (Response Times), 13.4 (Service Tracking and Reporting), 13.7
(Revision Levels), and 13.8 (Inoperability) shall also apply to the warranty
services provided by Supplier during the Warranty Period. At any time during the
first one hundred eighty (180) days of the Warranty Period, if Supplier has failed
to correct any Specification Nonconformity within thirty (30) days of notification
thereof, University may elect to terminate the Agreement and request a refund of
all fees paid to Supplier pursuant to this Agreement, provided University returns
to Supplier all software licensed hereunder, including documentation, after
University has had a reasonable time to procure substituted software from a third
party.
14.7 Hardware Configuration
Supplier warrants that the Recommended Hardware Configuration shall be
adequate in all aspects for the Licensed Software to function in accordance with
the Specifications and to fulfill the current and reasonably anticipated future
information processing needs of the Licensed Software.
14.8 Pass-Through of Warranties
Supplier shall identify in writing all third-party warranties that Supplier receives
in connection with any Product provided to University. Supplier hereby passes
through the benefits of all such warranties, provided that nothing in this Section
14.8 shall reduce or limit Supplier's obligations under this Agreement.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
17
14.9 Governmental Consent
Supplier warrants that no consent, approval, or withholding of objection is
required from any governmental authority with respect to the entering into or the
performance of this Agreement.
14.10 No Actions, Suits, or Proceedings
Supplier warrants that there are no actions, suits, or proceedings, pending or
threatened, that will have a material adverse effect on Supplier's ability to fulfill
its obligations under this Agreement. Supplier further warrants that it will notify
University immediately if Supplier becomes aware of any action, suit, or
proceeding, pending or threatened, that will have a material adverse effect of
Supplier's ability to fulfill the obligations under this Agreement.
14.11 Free and Clear Title
Supplier warrants that it has and will continue to have free and clear title
(including all proprietary rights) to any Products delivered to University and the
right to license, transfer, or assign any and all software products that are licensed,
transferred, or otherwise provided to University by Supplier pursuant to this
Agreement. Supplier shall not create or permit the creation of any lien,
encumbrance, or security interest in any product sold, rented, leased, or licensed
to University.
14.12 Infringement
In addition to the provisions of Section 18 below, Supplier warrants that
University's use of any Licensed Software or other Product provided in
connection with this Agreement will not infringe any patent, trademark,
copyright, or other proprietary right of any third party. Supplier further warrants
that any information disclosed to University will not contain any trade secrets of
any third party, unless disclosure is permitted by such third party.
14.13 Good and Workmanlike Manner
Supplier warrants that all services performed under this Agreement will be
performed in a good and workmanlike manner.
14.14 Future Support
Supplier warrants that it will support, or provide for support of, the Software for a
period of no fewer than five (5) years from the date of installation of any Software
provided by Supplier.
14.15 Warranty of Past Success
Supplier warrants that the Licensed Software (in unmodified form) has been
installed and is operating in a production capacity at similar user sites.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
18
14.16 Warranty of Supplier Capability
Supplier warrants that it is financially capable of fulfilling all requirements of this
Agreement, that there are no legal proceedings against it that could threaten
performance of this Agreement, and that the Supplier is a validly organized entity
that has the authority to enter into this Agreement. Supplier is not prohibited by
any loan, contract, financing arrangement, trade covenant, or similar restriction
from entering into this Agreement.
14.17 Most Favored Customer
Notwithstanding any other provision of this Agreement, the prices for each item
provided by Supplier under this Agreement and the terms and conditions of this
Agreement are hereby warranted by Supplier to be comparable to, or more
favorable to University than, the comparable prices, terms, and conditions that
have been offered by Supplier to any of its comparable customers for delivery
during the period from to the effective date of this Agreement; as well as
those that are being and will be offered by Supplier to any of its other customers
for delivery during the period from and including the effective date of this
Agreement through and for twelve (12) months thereafter. If at any time during
the period stated above, Supplier shall contract, or have contracted, with any other
comparable customer for the license by Supplier of any Module(s) or Software
substantially similar to those listed in Exhibit A at a price or prices less that the
comparable price or prices specified herein or on terms or conditions more
favorable than the terms or conditions contained herein, then (i) Supplier shall,
within thirty (30) calendar days after the effective date of such other contract(s),
notify University in writing of such fact, specifying the more favorable price,
term, or condition; and (ii) unless a provision is declined by the University by
written notice, this Agreement shall be deemed to be automatically amended,
effective retroactively to the effective date hereof, to provide the more favorable
price, term, or condition to University; and Supplier shall promptly rebate and pay
to University any excess amount (including any taxes thereon) previously paid by
University to Supplier for the Module(s) or Software for which the price has been
reduced pursuant to such amendment, plus, in the event such amount is not paid to
University within thirty (30) calendar days after the effective date of such other
contract, interest on such amount from the effective date of such other contract to
the date of payment to University at the rate of eighteen percent (18%) per
annum, or the maximum legal rate, whichever is lower.
14.18 Century Date Change Requirements
Supplier warrants that the Licensed Software (i) does not have a life expectancy
limited by date or time format; (ii) will record, store, process and present calendar
dates correctly; (iii) will lose no functionality, data integrity or performance with
respect to any date; and (iv) will be inter-operable with other software used by
University that may deliver date records from the Licensed Software, or interact
with date records of the Licensed Software ("Date Warranty"). n the event a Date
Warranty problem is reported to Supplier by University and such problem
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
19
remains unresolved after three (3) days, at the discretion of the University,
Supplier shall be in breach of contract.
In the event of a breach of the warranty referred to above, which precludes
University from successful operation of its data processing system and/or an
application or component critical to operation of such data processing system,
Supplier will begin work within one hour after telephonic notice by University on
rectifying University's problems. Supplier will continue working in a Best of
Service approach (with as many workers as are necessary) on such problems on
an around-the-clock basis until such problems are rectified. University shall not
be charged for any work done in connection with this paragraph.
In the event of a breach of the warranty contained above, Supplier will be
responsible for all damages (including but not limited to consequential, incidental,
and indirect damages) sustained by University up to ( ) times the
amount (pursuant to the formula set forth below) of the fees paid by University to
the Supplier pursuant to this Agreement.
If Supplier has not rectified the breach of the Century Date Change Requirements
representation and warranty within ( ) days, Supplier will be
responsible for all damages (including but not limited to consequential, incidental
and indirect damages) sustained by University up to the amount of ( )
times the fees paid by University to Supplier pursuant to this Agreement.
15. MODIFICATIONS AND PROPRIETARY RIGHTS
15.1 Supplier Modifications
15.1.1 Supplier will correct errors in the Licensed Product pursuant to this
Agreement and may modify from time to time the Licensed Product. Such
error corrections and/or modifications may result in the creation of a new
version(s) of the Licensed Product, under the same or one or more
different names (collectively, the "Supplier Modifications"). Supplier
Modifications shall in all cases be new versions of existing products, and
not new products. Supplier Modifications shall belong to Supplier and
shall be Licensed Software.
15.1.2 As long as the Licensed Product is under Maintenance provided by
Supplier, Supplier shall make available to University, at no extra charge, a
copy of the modified object code for any Supplier Modification not later
than thirty (30) days following general availability of such Supplier
Modification. University shall not be obligated to use any Supplier
Modification (See Section 13.7). In the event that University determines
to utilize any Supplier Modification, it shall be deemed part of the
Licensed Product for purposes of this Agreement; provided, however, that
all warranty provisions herein shall apply to each Supplier Modification
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
20
from the time such modifications are first delivered to University.
Further, the Specifications shall be promptly amended by Supplier to
reflect the addition of each modification, and Supplier shall promptly
deliver to University revisions to the Documentation to allow University
to fully utilize any Supplier Modification in accordance with the
Specifications.
15.1.3 Supplier warrants that for ninety (90) days from the date of a supplied
Supplier Modification installed during and subsequent to the Warranty
Period, the Licensed Product as modified will operate free from defects in
the manner described in the Supplier's Documentation. If any defects are
discovered during the Warranty Period, Supplier will correct them
promptly without charge, but not later than five (5) business days from
notice from University.
15.2 University Modifications
Supplier shall provide assistance to University for University Modifications on a
time-and-materials basis. Supplier assigns all rights to and modifications
resulting from such assistance to University. Supplier will not bill University for
work related to University Modifications without the express prior written consent
of University.
15.3 Confidential Information of Supplier
University agrees it shall not (without obtaining the prior consent in each instance
of Supplier) during the term of this Agreement or thereafter, disclose, make
commercial or other use of, give or sell to any person, firm, or corporation any
information of Supplier that is treated and identified to University by Supplier as
confidential, except University can disclose such information if (i) required to do
so pursuant to applicable law; (ii) it was rightfully in the possession of University
from a source other than Supplier prior to the time of disclosure of said
information to University hereunder ("Time of Receipt"); (iii) it was in the public
domain prior to the Time of Receipt; (iv) it became part of the public domain after
the Time of Receipt by any means other than an unauthorized act or omission on
the part of University; (v) it is supplied to University after the Time of Receipt
without restriction by a third party who is under no obligation to Supplier to
maintain such information in confidence; (vi) it was independently developed by
University prior to the Time of Receipt; or (vii) it was developed by Supplier at
University's expense, or (viii) it is allowed to be disclosed by the Minnesota Data
Practices Act.
15.4 Termination of Supplier's Right to Possess Confidential Information
Upon Final Acceptance or earlier termination of this Agreement for any reason,
Supplier's rights to possession and use of any of the Proprietary Materials or
Confidential Information in connection with the performance of its obligations
hereunder or otherwise shall terminate, and Supplier shall immediately deliver to
University all of the Proprietary Materials and Confidential Information and all
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
21
copies of any portion thereof. Supplier shall, upon completion of such delivery,
certify in writing to University that it has fulfilled its obligations under this
Section 15.4.
15.5 Nondisclosure
Supplier and its employees, subcontractors, consultants, representatives, and
agents agree that any information received during the course of its performance
that concerns the personal, financial or other affairs of the University, its Regents,
officers, employees, agents, contractors, or students shall be kept confidential and
not disclosed to any third party.
16. PROHIBITION ON PUBLICITY
Supplier agrees not to use the name, logo, or any other marks (including, but not limited
to, colors and music) owned by or associated with the University or the name of any
representative of the University in any sales promotion work or advertising, or any form
of publicity, without the written permission of the University in each instance.
17. EQUITABLE RELIEF AND SURVIVAL OF RESTRICTIONS AND
OBLIGATIONS
17.1 Equitable Relief
Supplier hereby acknowledges and agrees that University's remedies at law for a
breach by Supplier of its obligations under Sections 15 and 16 will be inadequate
and University shall, in the event of any such breach, be entitled to equitable relief
(including without limitation preliminary and permanent injunctive relief and
specific performance) in addition to all other remedies provided hereunder or
available at law.
17.2 Survival of Obligations
The terms, provisions, representations, and warranties contained in this
Agreement including but not limited to Sections 1, 14, 15, 17-19, 21, 22, and 24-
26 that by their sense and context are intended to survive the performance thereof
by either or both parties hereunder shall so survive the completion of performance
and termination of this Agreement, including the making of any and all payments
due hereunder, the Secrecy and Nondisclosure Agreements, insurance, any rights
and obligations conveyed by License, and any cause of action that accrued prior
to said termination.
18. INDEMNIFICATION
18.1 Indemnification
Each party to this Agreement agrees to defend, indemnify and hold harmless the
other party from injuries, damages and loss, including costs and attorneys' fees,
arising from the negligent or wrongful acts and omissions of its employees,
officers and agents under this Agreement. Each of the parties assumes no
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
22
responsibility to the other party for any indirect or consequential damages
suffered by another party to this Agreement, or by any person, firm or corporation
not a party to this Agreement.
18.2 Intellectual Property
Supplier agrees it will, at its sole cost and expense, defend, indemnify, and hold
harmless the University from and against all Claims, to the extent such Claims
arise out of, result from, or are attributable to the actual or alleged infringement or
misappropriation of any patent, copyright, trade secret, trademark, or confidential
information of any third party by Supplier or its employees, subcontractors,
consultants, representatives, and agents; provided, however, University gives
Supplier prompt notice in writing of the Claim. Supplier may not settle any
infringement claim that will affect University's use of the Licensed Software
without University's prior written consent, which consent may be withheld for any
reason.
18.3 Judgment
If a judgment or settlement is obtained or reasonably anticipated against
University's use of any Intellectual Property for which Supplier has indemnified
University, Supplier shall at Supplier's sole cost and expense promptly modify the
item or items that were determined to be infringing, acquire a license or licenses
on University's behalf to provide the necessary rights to University to eliminate
the infringement, or provide University with a non-infringing substitute that
provides University the same functionality. At University's election, the actual or
anticipated judgment may be treated as a breach of warranty by Supplier, and
University may receive the remedies provided under Section 14.6.
18.4 Personnel
Supplier shall, at its expense, indemnify and hold harmless the Indemnified
Parties from and against any Claim with respect to withholding taxes, workers'
compensation, employee's benefits, or any other claim, demand, liability, damage,
or loss of any nature relating to any of the personnel provided by Supplier.
19. ILLICIT CODE
Supplier warrants that (a) unless authorized in writing by University, or (b) necessary to
perform valid duties under this Agreement, any programs developed by Supplier
personnel under this Agreement or provided to University by Supplier for use by Supplier
or University shall (i) contain no hidden files; (ii) not replicate, transmit, or activate itself
without control of a person operating computing equipment on which it resides; (iii) not
alter, damage, or erase any data or computer programs without control of a person
operating the computing equipment on which it resides; (iv) contain no key, node lock,
time-out or other function, whether implemented by electronic, mechanical, or other
means, that restricts or may restrict use or access to any programs or data developed
under this Agreement, based on residency on a specific hardware configuration,
frequency of duration of use, or other limiting criteria; (v) contain no virus or similar
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
23
code, whether known or unknown to Supplier (the matters described in (i) - (v) comprise
Illicit Code). Provided and to the extent any program has any of the foregoing attributes,
and notwithstanding any other provision of this Agreement to the contrary, Supplier shall
be in default of this Agreement, and no cure period shall apply. At the request of
University, Supplier must remove any such Illicit Code from the Licensed Software. In
addition to any other remedies available to it under this Agreement, University reserves
the right to pursue any civil and/or criminal penalties available to it against the Supplier.
Supplier agrees, in order to protect University from damages that may be intentionally or
unintentionally caused by the introduction of Illicit Code to University's computer
network, no software will be installed, executed, or copied on University equipment
without the express approval of the University Program Manager.
20. LIMITATION OF LIABILITY
In no event shall either party be liable to the other for indirect, incidental, special, or
consequential damages arising out of this Agreement for the existence, furnishing,
functioning, or University's use of the work product, documentation, or tools provided by
Supplier. The foregoing limitation of liability shall not apply to (i) claims for damages for
personal injury or wrongful death; (ii) claims for damages for which Supplier has
indemnified University; (iii) claims against Supplier for the presence of Illicit Code; and
(iv) claims by University pursuant to Sections 13.10, 15.3, 16, 17, and 21.2.
21. INDEPENDENT OBLIGATION OF SUPPLIER TO CONTINUE
PERFORMANCE
21.1 Nature of Independent Obligation
Because of the critical importance of the Licensed Software and services to be
performed by Supplier hereunder to the operation of University, Supplier assumes
an independent obligation to continue performance of its service obligations
hereunder in all respects regardless of any dispute (including without limitation
any alleged material breach by University) that may arise between University and
Supplier. Such independent obligation shall continue for a period of ninety (90)
days from the date upon which University receives written notice of such alleged
breach from Supplier. The license to the Licensed Software shall continue until
any dispute is resolved and University's use of such Software is determined to be
outside of the scope of this Agreement. Supplier undertakes this independent
obligation without prejudice to any rights or remedies it may otherwise have in
connection with any dispute between Supplier and University.
21.2 Liquidated Damages for Breach by Supplier of Independent Obligation
University and Supplier hereby agree that it will be impossible to ascertain the
amount of damages arising out of a breach by Supplier of its independent
obligation set forth in Section 21.1. Accordingly, in the event of any such breach,
Supplier agrees to pay to University the sum of and no/100 dollars
($ ) as liquidated damages for such breach and such liquidated damages
shall be in addition to and without limitation of any rights or remedies which
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
24
University may have hereunder or at law or in equity arising out of or related to
any other breach by Supplier of its obligations hereunder.
22. ASSIGNMENT
The Supplier may not assign any rights or obligations of this Agreement without the prior
written consent of the University. In the event of any assignment, Supplier shall remain
responsible for its performance and that of any assignee under this Agreement. This
Agreement shall be binding upon Supplier, and its successors and assigns, if any. Any
assignment attempted to be made in violation of this Agreement shall be void at the sole
option of the University.
23. TIME IS OF THE ESSENCE
Time is of the essence in this Agreement. The acceptance of late performance with or
without objection or reservation by University shall not waive any rights of University
nor constitute a waiver of the requirement of timely performance of any obligations on
the part of Supplier remaining to be performed.
24. SOURCE CODE ESCROW
Upon Final Acceptance of the Licensed Software, University and Supplier hereby agree
to enter into the standard source code escrow agreement of the escrow company agreed to
by both parties and attached hereto as Exhibit C (the "Escrow").
24.1 Release of Escrow
University and Supplier agree that the occurrence of any of the following
conditions will trigger a release from Escrow and will be incorporated into the
escrow agreement.
24.1.1 Supplier has defaulted in performance or otherwise has failed to perform
its obligations under (i) the License or (ii) any agreement between
Supplier and University or its customers for the maintenance or correction
of the Licensed Software, and such default or failure to perform has
continued for a period of thirty (30) days following written notice thereof
to Supplier from University.
24.1.2 Supplier has made an assignment for the benefit of creditors, has admitted
in writing its inability to pay debts as they mature, or has ceased operating
in the normal course of business.
24.1.3 A trustee or receiver of Supplier or of any substantial part of Supplier's
assets has been appointed by any court.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
25
24.1.4 An involuntary proceeding has been commenced by any party against
Supplier under any one of the chapters of Title 11 of the United States
Code and (i) the proceeding has been pending for at least sixty (60) days;
(ii) Supplier has consented, either expressly or by operation of law, to the
entry of an order for relief; or (iii) Supplier has been decreed or adjudged a
debtor.
24.1.5 A voluntary petition has been filed by Supplier under any of the chapters
of Title 11 of the United States Code.
24.1.6 Supplier has or announces it will discontinue support, upgrades, or
enhancements of the Licensed Software.
24.1.7 Supplier assigns or attempts to assign or transfer all or a substantial part of
its assets related to the Licensed Software without University's consent.
24.2 University's Rights and Obligations After Release of Source Code
If University obtains the Source code to the Licensed Software pursuant to
Section 24, University may modify, correct, or enhance the Licensed Product in
any manner, and any such modifications, corrections, or enhancements, and any
related materials and documentation (and all proprietary rights therein, including,
but not limited to, copyrights) shall belong exclusively to University ("University
Modifications"). Supplier agrees that any University Modifications to which
Supplier gains access in the performance of its obligations hereunder or otherwise
shall be deemed confidential subject to Section 15.3 hereof.
24.3 Escrow Sufficiency
Supplier warrants that the Escrow maintained on behalf of University shall
contain all information, source code, documentation and tools reasonably
necessary to recreate and maintain the Licensed Software that operates in
accordance with the Specifications in the event that the Escrow is released to
University and University, or University's agent, is required to maintain the
source code.
24.4 Escrow Verification
University shall have the right for the term of this Agreement to verify the
accuracy and completeness of the escrow deposit at any time during normal
business hours with reasonable notification to Supplier by having a representative
of the escrow agent and University present at Supplier's site to verify, audit, and
inspect the escrow deposit, or optionally to pay the escrow agent to perform the
verification on behalf of University. University shall pay all fees for the Escrow
and any related services resulting from this Agreement.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
26
24.5 Source Code Installation
If requested by University, Supplier shall install the Licensed Software Source
Code software on the computer equipment designated by University within three
(3) business days after delivery by the Escrow agent or within such other time that
is mutually agreed between the parties hereto. Such installation shall include a
successful compilation of the Licensed Software Source Code software on such
computer equipment and performance of Supplier's installation tests using
Supplier's test data. Supplier shall promptly provide University with
documentation demonstrating the successful installation of the Licensed Software.
University may elect to install the Source Code by itself or through University's
appointed agent.
25. TAXES
All taxes, including but not limited to federal, state, and local income taxes; franchise
taxes; federal, state, and local sales and use taxes (except sales or use taxes imposed on a
transaction made under this Agreement); gross receipts taxes; property taxes; value-added
taxes; and customs duty taxes are deemed to be included in the price of the Licensed
Software set forth in Exhibit A.
The University is exempt from paying Minnesota sales and use taxes. Except as provided
in Minn. Stat. 297A.70, Subd. 2, Supplier shall not charge University for such taxes.
26. MISCELLANEOUS
26.1 Cumulative Remedies
Except as specifically provided herein, no remedy made available to University
hereunder is intended to be exclusive of any other remedy, and each and every
remedy shall be cumulative and shall be in addition to every other remedy
provided hereunder or available at law or in equity.
26.2 Notices
All notices, requests and other communications that a party is required or elects to
deliver shall be in writing and shall be delivered personally, or by facsimile or
electronic mail (provided such delivery is confirmed), or by a recognized
overnight courier service or by United States mail, first-class, certified or
registered, postage prepaid, return receipt requested, to the other party at its
address set forth below or to such other address as such party may designate by
notice given pursuant to this section:
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
27
If to the University:
University of Minnesota
Attn.:
Minneapolis, MN 55455
Facsimile No.:
E-mail:
With respect to breach of contract or termination only, send a copy to:
University of Minnesota
Office of the General Counsel
Attn.: Transactional Law Services Group
360 McNamara Alumni Center
200 Oak Street SE
Minneapolis, MN 55455-2006
Facsimile No.: (612) 626-9624
E-mail: contracts@mail.ogc.umn.edu
If to the Supplier:
Attn.:
Facsimile No.:
E-mail:
26.3 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same
instrument.
26.4 Non-Waiver
No waiver by any party of any default or nonperformance shall be deemed a
waiver of any subsequent default or nonperformance.
26.5 Entire Agreement
This Agreement constitutes the entire understanding and contract between the
parties and supersedes any and all prior or contemporaneous oral or written
representations or communications with respect to the subject matter hereof. The
terms and conditions included in Supplier's invoice shall be deemed to be solely
for the convenience of the parties. No terms or conditions of any such invoice
shall be binding upon University, and no action by University, including without
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
28
limitation the payment of any such invoice in whole or in part, shall be construed
as binding or estopping University with respect to any such term or condition,
unless the invoice term or condition has been previously agreed to by University
as an amendment to this Agreement. The RFP and the Proposal may be used to
demonstrate University's reliance upon Supplier's expertise and recommendations.
26.6 Amendment
This Agreement shall be amended only in a writing duly executed by all the
parties to this Agreement.
26.7 Severability of Provisions
In the event any provision hereof is found invalid or unenforceable pursuant to
judicial decree, the remainder of this Agreement shall remain valid and
enforceable according to its terms.
26.8 Benefit of Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of each of the
parties and, except as otherwise provided herein, their respective legal successors
and assigns.
26.9 Relationship of Parties
Nothing contained in this Agreement shall be construed as creating a joint
venture, partnership or employment relationship between the parties, nor shall
either party have the right, power or authority to create any obligations or duty,
express or implied, on behalf of the other party.
26.10 Governing Law and Jurisdiction
The laws of the state of Minnesota shall govern the validity, construction and
enforceability of this Agreement, without giving effect to its conflict of laws
principles. All suits, actions, claims and causes of action relating to the
construction, validity, performance and enforcement of this Agreement shall be in
the courts of the State of Minnesota.
26.11 Compliance with Laws
Supplier agrees that all work performed under this Agreement shall comply with
the provisions of the Fair Labor Standards Act of 1938, as amended, and all other
applicable federal, state, county, and local laws, ordinances, regulations, and
codes in the performance of the Agreement, including the procurement of permits
and certificates where needed. Supplier further agrees to indemnify and hold
harmless University and its personnel, officers, directors, parent company, foreign
and domestic subsidiaries and affiliates, agents, successors and assigns from any
loss or damage that may be sustained by reason of Supplier's failure to comply
with the aforementioned federal, state, county, and local laws, ordinances,
regulations, and codes. This Agreement is subject to applicable federal and state
laws and executive orders relating to equal opportunity and nondiscrimination in
employment. Neither Supplier nor its agents or subcontractors shall discriminate
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
29
in their employment practices against any person by reason of disability, age,
race, religion, color, sex, national origin, public assistance status, marital status,
creed, sexual orientation, or veteran status. Supplier agrees to comply, and to
cause its agents and subcontractors to comply, with the provisions of said laws
and orders to the extent any such laws and orders are applicable in the
performance of this Agreement.
26.12 Order of Precedence
In the event of conflict between this Agreement and its exhibits, the following
order of precedence shall prevail:
1. This Agreement and its Exhibits
2. The Request for Proposal
3. The Proposal
26.13 Anti-Kickback Enforcement Act of 1986
This Agreement is subject to the provision of the Anti-Kickback Enforcement Act
of 1986, Public Law 99-634 (41 U.S.C. 52-58). By accepting this Agreement,
Supplier (i) certifies that is has not paid kickbacks directly or indirectly to any
University employee for the purpose of obtaining this or any other University
agreement, and (ii) agrees to cooperate fully with any investigation involving a
possible violation of the Act; and (iii) agrees to report any suspected violations of
the Act to the University's Director of Audits at (612) 625-1368.
26.14 Debarment and Federal Funding
26.14Supplier represents that it is not currently debarred or suspended by any Formatted: Bullets and Numbering
federal agency from doing business with the federal government. Supplier shall
notify University if it becomes debarred or suspended during the term of this
Agreement. The University may immediately terminate this Agreement in the
event of such termination or suspension. If Supplier has been notified by the
University that the goods or services provided hereunder are being procured with
federal funds, the federal requirements set forth in Exhibit G shall be
incorporated into this Agreement and Supplier shall adhere to such additional
requirements. If federal funds are not being used, Supplier will not receive
Exhibit G.
26.15 Anti-Trust Violations
26.15Supplier recognizes that in actual economic practice, overcharges resulting Formatted: Bullets and Numbering
from antitrust violations are in fact usually borne by the buyer. Therefore,
Supplier hereby assigns to the University, as the buyer of goods and services
under this Agreement, any and all claims for such overcharges as to goods and
services purchased in connection with this Agreement.
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
30
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first above written.
Regents of the University of Minnesota Supplier ( , Inc.)
By: By:
Name: Name:
Title: Title:
Date: Date:
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
31
EXHIBIT A
PROGRAM SET
Product Set Description License Fee
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
A-1
EXHIBIT B
HARDWARE AND SOFTWARE REQUIREMENTS
Product Number Product Description
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
B-1
EXHIBIT C
ESCROW AGREEMENT
(attached)
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
C-1
EXHIBIT D
MAINTENANCE FEE SCHEDULE
(attached)
FORM: OGC-SC504
Form Date: 06..29.01
Revision Date: 07.11.02
D-1
EXHIBIT E
REQUEST FOR PROPOSAL
(attached)
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
E-1
EXHIBIT F
RESPONSE TO REQUEST FOR PROPOSAL
(attached)
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
F-1
EXHIBIT G
CERTIFICATE OF COMPLIANCE WITH FEDERAL REQUIREMENTS
(attached)
FORM: OGC-SC504
Form Date: 06.29.01
Revision Date: 07.11.02
G-1
