Master Software and Services Agreement

Document Sample
Master Software and Services Agreement Powered By Docstoc


Check Products That Apply
x License 2000®
x License 2000® Integrated Imaging Module
x MyLicense

protected by United States copyright laws and international treaty provisions. Part of this
SOFTWARE may have been developed by a third party software supplier, which holds
copyright and other proprietary rights to the SOFTWARE. The customer‟s acceptance of
the SOFTWARE constitutes acceptance of this license.

PERPETUAL LICENSE. SA grants to the State of Oregon_, (the Licensee), and the
Licensee accepts from SA, a perpetual, nonexclusive and non-transferable license to use
and reproduce for storage and disaster recovery purposes the SOFTWARE in non-
printed, machine readable form only. This License Agreement is the Licensee‟s “Proof-
of-License” to exercise the rights granted herein and must be retained.

RESTRICTIONS ON LICENSE. The Licensee shall not (i) permit any affiliated
persons, organizations, or entities, other than the Licensee, or third party independent
contractor retained by Licensee, to use the SOFTWARE, (ii) process or permit to be
processed the data of any other party, or (iii) transfer, sublicense, rent, distribute or grant
the Licensee‟s rights in the SOFTWARE, or in the License Agreement, to others.
Notwithstanding these restrictions, third party contractors retained by Licensee may use
SOFTWARE within the scope of the license granted to Licensee. The Licensee agrees
that only SA shall have the right to alter, maintain, enhance, or otherwise modify the
SOFTWARE. The Licensee shall not disassemble, decompile, reverse engineer, or create
derivative works based on the SOFTWARE.

LICENSE FEE. In consideration for the license granted by SA under this License
Agreement, the Licensee shall pay SA a fee as set forth in Contract No. 4136_ (the

TERMINATION. SA reserves the right to terminate this License Agreement upon
material breach of the terms and conditions of this License. Prior to termination, SA
shall provide Licensee with notice of any material breach, and thirty (30) days
opportunity to cure such breach. In the event of termination, the Licensee will
immediately return all copies of the SOFTWARE to SA or, with SA‟s prior written
consent, provide SA with a certificate of destruction of all copies of the SOFTWARE.

LIMITED WARRANTY. In addition to warranting that it has the right to grant the
license contained in this Agreement, SA warrants that the magnetic media on which the
SOFTWARE is recorded and any user manual provided under the terms of this
Agreement are free from defects in material and workmanship under normal use. SA
further warrants that the SOFTWARE will perform substantially in accordance with the
specifications found in the user manual in effect as of the date of this Agreement. SA
warrants that all deliverables will comply with the descriptions and representations as to
performance capabilities, completeness, specifications, configurations and functions that
appear in Exhibit B. The warranties contained in this subsection are made for a period of
ninety (90) days from the date on which the SOFTWARE has successfully passed
acceptance testing by Licensee, unless a different warranty period is stated in the
Contract in which case the warranty period stated in the Contract shall control.

LIMITATIONS ON WARRANTY. SA does not warrant that the functions contained in
the SOFTWARE will meet the requirements of the Licensee or that the operation of the
SOFTWARE will be uninterrupted or error free. The warranty does not cover any copy
of the SOFTWARE or any user manual which has been altered or changed in any way by
the Licensee, or any person other than SA. SA is not responsible for problems caused by
changes in or modifications to the operating characteristics of any computer hardware or
operating system for which the SOFTWARE is procured, nor is SA responsible for
problems which occur as a result of the use of the SOFTWARE in conjunction with
software or hardware which is incompatible with the operating system for which the
SOFTWARE is being procured, except where SA had represented that such hardware or
software is compatible with the SOFTWARE.

MANUFACTURERS‟ WARRANTIES. SAC shall assign to Licensee all pre-existing
manufacturer‟s warranties relating to any product supplied by SAC to the extent
permitted by said warranty.

warranty period, SAC shall (a) provide Licensee any software updates, software code
fixes, and enhancements to the SOFTWARE which are issued by SAC, and (b) notify
Licensee of any new SOFTWARE modules which become available for purchase.
Licensee may extend this service by purchasing continuing maintenance service pursuant
to the attached Maintenance Agreement.

OR FITNESS FOR A PARTICULAR PURPOSE. Only an authorized officer of SA may
make modifications to this warranty or may make additional warranties binding on SA.
All modifications or additional warranties must be in writing. Accordingly, additional
statements such as those made in advertising or presentations, whether oral or written, do
not constitute warranties by SA and should not be relied upon as such.

LIMITATION OF REMEDIES. Except as provided in the Contract, SA‟s entire liability
and the Licensee‟s exclusive remedy shall be the replacement by SA of any magnetic
media or user manual not meeting SA‟s Limited Warranty. SA DISCLAIMS, AND THE
POSSIBILITY OF SUCH DAMAGES. Except as provided in the Contract, the Licensee
also specifically agrees that any liability on the part of SA arising from breach of
warranty, breach of contract, negligence, strict liability in tort, or any other legal theory
shall not exceed amounts paid by the Licensee to SA in fees for the use and maintenance
of the SOFTWARE.

JURISDICTION. This License is governed by the laws of the State of Oregon.

INDEMNIFICATION. Notwithstanding anything stated herein to the contrary and
subject to the limitations of Article XI, § 7 of the Oregon Constitution and the Oregon
Tort Claims Act (ORS 30.260 through 30.300), the Licensee shall indemnify, defend and
hold harmless, within the limits of and subject to the restrictions in the Tort Claims Act,
SA and any of its officers, directors, employees and/or representatives, (individually and
collectively,) against any and all claims, demands, suits, actions, recoveries, and
judgments for personal injury or damage to life or property for negligent activity arising
solely out of the use by the Licensee and/or any of its employees, agents, representatives
or assignees of the customized software system in a manner inconsistent with the
operating procedures specified in the SOFTWARE user manual; provided, however, the
Licensee shall not be required to indemnify the Contractor for any such liability arising
out of the wrongful acts of Contractor, its officers, employees or agents.

SOFTWARE and will retain ownership rights pursuant to this License Agreement in
perpetuity. However, any customized source code SAC writes solely to meet specific
Licensee system requirements, equipment, and other deliverables, that is produced solely
for Licensee shall be owned solely by the Licensee (hereinafter “Licensee Technology”).
Licensee recognizes that, unless SAC notifies Licensee in writing otherwise, the software
written by SAC as part of the customization effort under this Agreement is not written
solely to meet specific Licensee needs and is not Licensee Technology but rather remains
subject to this License Agreement. SAC shall no have no proprietary rights to Licensee
Technology, and SAC agrees to execute any and all documents, or to take any additional
actions at the cost of Licensee which may be necessary to effectuate fully the terms and
conditions of this provision.

ESCROW AGREEMENT. Contractor shall, within thirty (30) days of the date of the
Contract, register Licensee as an escrow beneficiary in Contractor‟s existing „SAFE
Agreement‟ escrow arrangement with DSI Technology Escrow Services (hereinafter
“Escrow Agent”). Under this arrangement, Contractor shall maintain a true and correct
copy of the most recent version of the source code for the SOFTWARE, an executable
machine readable version of the SOFTWARE, program documentation sufficient to
allow a competent programmer to use and maintain the source code programs
(“Deposited Programs”) with the Escrow Agent. The escrow agreement shall authorize
the escrow agent to release the Deposited Programs to Licensee in accordance with the
Release Conditions specified in DSI‟s Safe Agreement. Contractor will ensure, to the best
of its ability, that the coverage under the escrow agreement will not be substantially
altered in the future.

The Software Maintenance Agreement (“Agreement”) is entered into this ___th day of
________, 200_, by and between System Automation Corporation, a corporation
organized under the laws of the District of Columbia and having a principal place of
business at 4041 Powder Mill Road, Suite 600, Calverton, Maryland 20705 (“Supplier”),
and the State of

an agency organized under the laws of the State of ______________and having a
principal place of business at



   A. Definition of Product(s).
   The term “Licensed Product” used throughout this Agreement refers to the following
   Automation product(s) as indicated by the letter „X‟:

                License 2000®
                Other (specify_______________)

   B. Scope of Agreement.
   The terms of this Agreement supplement the Price Agreement and any Contract
   entered pursuant to it. Any conflict between a provision of this Agreement and a
   provision of the Price Agreement shall be resolved according to Section 4 of the Price
   Agreement. During the term of this Agreement, as set forth in Section 2, Supplier
   agrees to provide Customer Standard Maintenance and Non-Standard-Maintenance
   Technical Services as set forth in Sections 3 and 5, for the Licensed Product. Non-
   Standard-Maintenance Technical Services are subject to charges in addition to the
   annual Maintenance Fee. The Licensed Product is subject to the License Agreement
   between Supplier and Customer dated ______________________(“License

2. TERM.

   A. Effective Dates.
       The term of this Agreement shall be from __________, 200_, to _____________,
   B. Renewal Option.
   This Agreement may be renewed by the Customer annually, by payment of the fee set
   forth in paragraph 6 below, 30 days prior to expiration.
   C. Termination Date.
   Notwithstanding the forgoing or anything else in this Agreement to the contrary,
   Supplier may terminate Customer‟s right to renew this Agreement by sending notice
   of termination at least 30 days prior to the anniversary date of this Agreement.

3.1 Scope of Services.
During the term of this Agreement, Supplier will provide Customer the following
Standard Maintenance Services for the Licensed Product, to consist of Support Service
and Update Service:
    A. Support Service.
    The term “Support Service” means support for the Licensed Product to include:
    (i)    problem determination,
    (ii)   corrections of substantial defects in the Licensed Product so that the Licensed
           Product will operate as described in the appropriate contractual deliverables
           (user manuals or other applicable documentation specifying requirements of
           the Licensed Product),
    (iii)  user assistance.

Note: No system other than systems developed by Supplier are allowed to write into the
Licensed Product Database.

Support Service shall be provided by Supplier during extended business hours, 8:00 a.m.
and 5:00 p.m. Pacific Time, Monday through Friday (Federal holidays excluded).
Support Service may be requested by the Customer either by telephone request to
Supplier‟s Customer Service representative at (301) 837-8000 x258, (800) 839-4729
x258, written facsimile using Supplier‟s designated form addressed to Supplier‟s
Customer Service representative at (301) 837-8001, or E-mail addressed to Supplier will provide response within four business
hours measured from the time the request for service is received until the Supplier‟s
Customer Service representative commences service. All requests for service must be
made by Customer‟s Point of Contact, designated pursuant to section 8 below.

In addition, Supplier will provide electronic support via a web site at Electronic support will enable the Customer‟s authorized
personnel to report problems on-line, browse a problem database, or request fixes

Supplier will provide support via remote access through a virtual private network
(“VPN”) connection to the Customer‟s network. Customer will be required to provide
access to the Customer‟s network location of Licensed Product via the VPN. The VPN
will allow both Supplier‟s Customer Service and Supplier‟s product development teams
direct access to the Licensed Product for maintenance and troubleshooting. The
Customer will control all access to the network and Licensed Product installation.
If the Customer cannot or is not willing to provide VPN access, the Customer may elect
to have Supplier install a Remote Access Server (RAS) to provide this level of support.
The RAS is an option which is not included in the Licensed Product maintenance contract

B.     Update Service.
The term “Update Service” means periodic updates of the Licensed Product that may
       (i)   corrections of any substantial defects;
       (ii)  fixes of any minor bugs;
       (iii) The Customer will receive for its use from Supplier periodic updates of
             the Licensed Product relating to the version and modules (functionality)
             originally purchased by the Licensee. Use of updates with or in place of
             the Licensed Product shall be for use exclusively by the Customer, and the
             Customer shall destroy any portion of the Licensed Product replaced by an
             update. Quarterly updates to U.S. Postal Zip Code data will also be
             provided where applicable. Updates will not include software modules not
             originally purchased by the Customer.

In the event that on-site labor is required to implement the update on the customer site,
time-and-material labor charge will apply (see section 5.)

3.2. Services Not Included.
Standard Maintenance Services do not include anything except Support Service and
Update Service. Among other things not included, therefore, are:
       i.     Enhancements that are offered to Customers for an additional license fee
              (“Licensed Enhancements”).
       ii.    Custom Programming Services.
       iii.   On-site support.
       iv.    Training.
       v.     Hardware and related supplies.
       vi.    Diagnosis, repair, or replacement of the Licensed Product components that
              have been improperly altered or affected by the actions or inaction of the
              Customer, its employees, contractors or agents.
       vii.   Support of the “platform” upon which the Licensed Product executes,
              including workstations, servers, Local Area Network (LAN).
       viii. Database administration (DBA). However, Support Service does include
              corrections to the database, or providing the customer with database
              update utilities to be executed by the Customer‟s support personnel or
              contractors, when database corrections are warranted as the result of the
              improper functioning of the Licensed Product.
       ix.    If Supplier‟s analysis of a problem report determines that it does not come
              under Standard Maintenance Services, the Customer will be billed for
              Non-Standard Maintenance Technical Services, as detailed in Section 5
              and after prior notice to Customer.

  From time to time Supplier may make available to Customer new modules for the
  Licensed Product upon payment of an additional license fee established by Supplier.
  The additional license fee shall be discounted for the Customer if the enhancement is
  released and the Customer agrees to purchase during the period that this agreement is
  in effect. The discounted additional license fee will be established by the Supplier.


     If a matter is not covered under Standard Maintenance Services, at the request and
     authorization of the Customer and acceptance of Supplier, Supplier shall provide
     the Customer with support for the Licensed Product of a technical nature, both on-
     site and off-site, for an hourly fee set forth in this paragraph or otherwise agreed
     to by the parties. All requests for Non-Standard-Maintenance Technical Support
     must be made by the person designated in Section 8 below as the Customer‟s
     Point of Contact, or such other person designated from time to time by prior
     written notice to Supplier. All technical support services provided pursuant to
     this section, unless otherwise agreed to by the parties, shall be charged to the
     Customer by Supplier a rate of $200.00 per hour with a minimum of 2 hours to be
     charged. Parts (including software and hardware) and travel expenses (including
     transportation, room and board), if applicable, will be charged in addition to
     hourly service charges.


  A. Amount of Fee.
  See Exhibit E

  The annual Maintenance Fee includes the annual escrow fee required to maintain the
  Customer‟s SW escrow account. Supplier shall register Customer as an escrow
  beneficiary in Contractor‟s existing „SAFE Agreement‟ escrow arrangement with DSI
  Technology Escrow Services (hereinafter “Escrow Agent”). Under this arrangement,
  Supplier shall maintain a true and correct copy of the most recent version of the
  source code for the Software, an executable machine readable version of the
  Software, program documentation sufficient to allow a competent programmer to use
  and maintain the source code programs (“Deposited Programs”) with the Escrow
  Agent. The escrow agreement shall authorize the escrow agent to release the
  Deposited Programs to Customer in accordance with the Release Conditions specified
  in DSI‟s Safe Agreement. Supplier will ensure, to the best of its ability, that the
  coverage under the escrow agreement will not be substantially altered in the future. If
  the Software Maintenance Agreement is not renewed, the Customer will be removed
  from the list of escrow account subscribers. The Customer will have the option to
procure the escrow services from the Supplier in order to maintain the SW escrow
B. Discontinuance. Customer understands that if it discontinues and then desires to
      resume purchase of Standard Maintenance Services, Customer will be required to
      pay Supplier:
(i)       An additional cost to restart maintenance (e.g., contract enrollment, update
          service and other activities) in order to bring the customer‟s version of the
          Licensed Product to the current product maintenance level.
(ii)      Technical labor at time-and-material rates to determine whether a pre-existing
          condition has occurred during the lapse in maintenance coverage. If such a
          condition is discovered, Customer will be apprised. The problem must be
          rectified by the Customer or Supplier staff (at time-and-material rate), before
          maintenance coverage can commence.
(iii)     Maintenance Fee for the term of Standard Maintenance Services then

A. Customer Contact.
   Customer shall notify Supplier of two (2) Customer‟s designated points of contact
   (“POC”) for all calls to Supplier.
   The following communication is required when making a maintenance call:
    The caller‟s name, agency, and site ID;
    Is the call regarding a new or existing issue? If new, the POC will be given a
      tracking number. If existing – the POC provides the open call tracking
    A description of the problem, the products involved, and the impact on system
      and business operation;
    Any changes made to Customer‟s product environment since Customer‟s last
      call to Supplier;
    A phone and/or pager number where POC can be reached, and a secondary
    Any available error messages, reports, screen prints and/or system diagnostics.
B. Installation.
   Customer agrees to install all corrections of substantial defects, minor bug fixes
   and updates, including any enhancements, for the Licensed Product in accordance
   with the instructions provided by Supplier. Failure to install any of the above
   within 180 days may incur additional support charges.
C. Facility and Personnel Access.
   Customer agrees to grant authorized Supplier‟s representative appropriate,
   controlled access, as defined by Customer, to Customer‟s facilities and personnel
   concerned with the operation of the Licensed Product to enable Supplier to
   provide services.

Event of Termination.
Supplier shall have the right to terminate this Agreement and all services provided
pursuant to this Agreement (i) upon termination of the Customer‟s Software License
Agreement by either party for any reason.


Customer acknowledges that Supplier owns all proprietary rights, including patent,
copyright, trade secret and other proprietary rights, in and to the Licensed Product
and any corrections, bug fixes, enhancements, updates or other modifications,
including custom modifications, to the Licensed Product.