03-041 Comcate Technology License./
CITY OF
CUPERTINO
Office of the City Attorney
10320 S. DeAnza Blvd., # 1 D
Cupertino, CA 95014
Ph: (408) 777-3403
Fax: (408) 777-3401
March 27, 2003
Rick Kitson
Public Information Officer
10300 Torre Avenue
Cupertino, CA 95018
Re: Comcate License Agreement
Dear Rick,
Charles T. Kilian
City Attorney
Eileen Murray
Assistant City Attorney
Our office has reviewed the final licensing agreement provided to you by
Comcate. The changes we requested in our letter of February 27, 2003 have been
included. Our office approves the agreement :~s to form. However, I reiterate my
previous warning. Be advised that software licensing agreements such as this one, do not
offer any warranty protection to the licensee. It is important that you determine prior to
the purchase that the software is fit for your particular purpose. You purchase at your
own risk.
Sincerely,
:j
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Eileen H. Murray
assistant City Attorney
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TECHNOLOGY LICE:vSE AGREEMENT
This Technology License Agreement ("Agreement") is made as of April 1, 2003 (the
"Effective Date") between Comcate, Inc. (the "Licensor"), a Delaware corporation, and City
of Cupertino (the "Licensee").
RECIT.~LS
A. Licensor has certain rights, interests and title to technology providing a web
based citizen contact management tool, more fully described below.
B. Licensee is a California municipal corporation.
C. Licensor desires to license to Licensee certain of its technology to be used by
Licensee in connection with its efforts to improve its delivery of services to the public, and
Licensee desires to accept such license.
NOW THEREFORE, in consideration of the te~:ms and conditions of this Agreement, the
parties agree as follows:
1. Grant of License and Use of Product.
(a) Subject to the terms and conditions set forth herein, Licensor grants to Licensee a limited,
revocable, non-exclusive and nontransferable licf;nse to use the technology set forth in
Exhibit A hereto (the "Technology"), and any aa~ompanying documentation provided to
Licensee by Licensor, for Licensee's internal use only.
(b) Licensee may not, and may not permit others. to:
(i) alter or modify, or create derivative works from the Technology or the
accompanying documentation;
(ii) publish, rent, sell, loan, lease, distrib~.~te, redistribute, transmit, license, sublicense
or otherwise transfer or assign the Technology or the accompanying documentation
whether by operation of law or otherwise:, with or without consideration, and through
any means including without limitation the Internet or other electronic means;
(iii) translate, decipher, reverse assemble, reverse compile or reverse engineer the
Technology, or otherwise attempt to discover any source code or underlying
Proprietary Information (as that term is defined below);
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(iv) publish or provide any results of Amy tests run, accounts or other information
regarding the Technology to any third party without Licensor's prior written consent
or permit any third party to perform such tests;
(v) delete, remove or obscure any proprietary notices of Licensor on the Technology
or accompanying documentation; or
(vi) develop or support any computer software product which is derived from, or
based on, the Technology. Licensee agre:es that none of the Licensee's employees
receiving or having access to Proprietary Information under this Agreement, shall be
employed in the design, development, sale or support of software products
functionally equivalent to the Technology and/or competitive with the Technology
during the term of this Agreement and for a period of ninety (90) days following
termination hereof.
(c) Notwithstanding any provision of this agreement to the contrary, Licensor acknowledges
and agrees that Licensee, as a California public agency subject to the California Public
Records Act, cannot be held liable for information released in compliance with the Act.
2. Ownership.
(a) Intellectual Property. Title to, ownership of and intellectual property rights in the
Technology, the accompanying documentation, Proprietary Information (as defined
below) and all copies thereof shall be and at all times remain with Licensor or its
designees, as applicable. All rights not expressly licensed herein are reserved to
Licensor. Any corrections, bug fi:~ces, enhancements, updates, modifications
(including custom modifications), materials, information, ideas, concepts or know-
how to the Technology or accompanying documentation, provided by Licensee or
otherwise, shall be owned by Licensor, as applicable. Licensee hereby
acknowledges that this Agreement is a license agreement and not an agreement for
sale.
(b) Ownership of Licensee's Data. All data and databases owned by Licensee prior to
the term of this Agreement and all data, including but not limited to all citizen
letters, replies, and notes generated by, on behalf of or at the request of Licensee in
connection with the use of the Technology (collectively, "Licensee's Data") shall be
and remain the sole property of Licensee. Upon termination of this Agreement,
Licensor will, at the request of Licensee, return or destroy all of Licensee's Data in
the possession of Licensor promptly following such request. Licensor will not use
Licensee's data without the express written consent of Licensee.
3. License Fee. Licensee shall pay to licensor an amount equal to $10,000 (the
"License Fee") for use of the Technology between April 1, 2003 and April 1, 2004 (the
"Initial Use Term"). Payment of the License Fee is due on the 30th day following the
effective date of this Agreement. Payment oj~ the License Fee will be delinquent if not
received by May 1, 2003. The License Fee does not grant to Licensee the right to any
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maintenance or support services, or to any enhancement or updates of the Technology, except
as described in Section 4 below.
4. Maintenance: Enhancements and Updates; Additional Technical Services.
(a) Licensor will design "initial customizations" of the Technology which can be
accomplished through designed adminis~xative panels, including such items as
categories, employee accounts, logos, anal the like, and, after the delivery and
acceptance of the Technology, Licensor will provide routine technical and support
training with respect to the use of the Technology. Initial customizations are deemed
completed as of the first day the Technology is accessible by the residents of the
Licensee. Licensor shall provide five (5) hours of free of on-site training on use of
the Technology. Licensor will also provide whatever routine maintenance, trouble
shooting and repairs as are necessary to ensure Licensee's access to the Technology
and Licensee's Data. Except to the exte~rt that upgrades of the Technology include
new modules or features not previously ~~ffered as part of the Technology as of the
date hereof, Licensee is entitled to maintenance upgrades of the Technology within
the cost of this Agreement. All support services shall be provided during Licensoe's
normal business hours (9:00 a.m. to Noon and 1 p.m. to 5:00 p.m. Pacific Time)
telephonically, via a-mail or via modem connection. Licensor will provide Licensee
with a hard copy user's manual and install "help screens" within the Technology to
assist Licensee utilize the Technology.
(b) Other than as set forth in this Section 4, this Agreement does not grant to Licensee
any right to support services, enhancements, or any supplemental modules, in
connection with the Technology or accompanying documentation.
(c) In addition to the services provided above which are included within the annual
License Fee, following initial customization the Licensor agrees to provide the following
additional services for the fees shown below.
(i) design customized modifications of tl~~e Technology for Licensee applications
which require coding - $125/hr;
(ii) provide on-site training beyond the five (5) hours provided in Subparagraph (a)
above - $40/hr;
(iii) after completion of "initial customizations", at request of Licensee, attend
meetings at the office of the Licensee: to discuss any aspect of the Technology,
additional customizations, or additional modules - $35/hr;
(iv) develop additional modules or pr~~ducts which are not currently part of the
Technology and which could be used in conjunction with the Technology, upon
request of the Licensee for a mutually agreeable fee;
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(v) at request of Licensee following "irritial customizations", complete tasks which
can be accomplished through designed administrative panels, including such items as
adding or editing categories, employee a~xounts, logos, and the like - $45/hr.
In connection with the delivery of any of the services described in subparagraphs (a) and (c)
above, Licensor shall also be reimbursed for all ,actual out-of-pocket expenses, such as travel,
meals, overnight delivery service, long distance telephone calls, copying charges, and the
like.
Payments of any fees or expenses incurred pursuant to this Section 4 shall be due within 30
days of the date of Licensor's invoice for such se-rvice.
Acknowledgments.
(a) Licensee expressly acknowledges that Licensee is solely responsible for any use
of the Technology, and such use will. be entirely at Licensee's own risk. Licensee
agrees that the Technology shall not be used for or in connection with any illegal
purpose (including but not limited tc~ intellectual property infringement, fraud or
defamation).
(b) Licensor acknowledges that it will "host" the Technology and agrees that it will
backup data and take appropriate meiisures to protect and store Licensee's Data.
(c) Licensor has contracted with OC Hosting, Inc. (the "Provider") of San Clemente,
California to host the Technology on the Internet. Licensor has purchased from
the Provider a 99.9% uptime guaran~.tee. Licensor warrants that it will remain in
"good financial standing" with the Provider, which is a condition of the 99.9%
uptime guarantee. To maximize the uptime of the Technology, Licensor has also
contracted with other hosting companies which maintain Licensoe's development
and quality assurance servers.
(d) Licensor is required to uphold the following performance standards to be
considered in compliance with this Agreement:
(1) Licensor shall maintain separ~~te storage files for and access rights to
Licensee's Data and shall secure such data.
(2) As requested by Licensee, Licensor shall make, what Licensor considers to be
routine changes to Licensee's Data that cannot be modified by Licensee within
three (3) business days of receipt of request.
(3) Routine maintenance within Lirensor's control requiring downtime will be
done at off-peak hours and, unless otherwise consented to by Licensee, for a
maximum of two (2) hours per incid~rnt. Licensee shall be notified in advance of
such scheduled maintenance.
(4) Licensor warrants the Technology can be accessed by Microsoft Internet
Explorer 3.0 and above.
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6. Nondisclosure.
(a) Licensee acknowledges that, in the course of using the Technology pursuant to
this Agreement, Licensee may obtain confidential or proprietary information
relating to the Technology, the <<ccompanying documentation or Licensor,
including without limitation all technical, know-how and specifications
("Proprietary Information"). For lpurposes of this Agreement, Proprietary
Information further includes any information and data which is, or should be
reasonably understood to be, confidential or proprietary to the disclosing party,
which may include, without limitation, proprietary technical, financial, personnel,
marketing, pricing, sales and/or commercial information with respect to the
products and services of the parties, as well as ideas, concepts, designs, computer
programs and inventions and all record bearing media containing or disclosing
such Proprietary Information which. are disclosed pursuant to this Agreement.
Such Proprietary Information shall belong solely to Licensor. Proprietary
Information shall not include information that is or becomes publicly known
through no wrongful act of Licensee or other licensees of the Technology.
Licensee shall not use or disclose Pr~~prietary Information to third parties without
the prior written consent of Licensor, and Licensee agrees to undertake
reasonable measures to maintain the Proprietary Information in confidence.
Licensee agrees to report immedi~itely to Licensor any unauthorized use or
disclosure of Proprietary Information of which Licensee has actual knowledge.
(b) Licensor acknowledges that, in the course of supporting and maintaining the
Technology for the Licensee, Licensor may obtain information regarding the
Licensee or its users of the Technology. Notwithstanding that certain parts of
such data may become a public reco~~d, the Licensor shall not disclose or use any
such public information or any of L,icensee's Data (referred to in Section 2 (b)
hereof) which accumulates as the re;~ult of the Licensee's use of the Technology
to any person or entity without the Licensee's prior written consent. Licensor
agrees to take all appropriate steps to protect the integrity and confidentiality of
the Licensee's Data.
(c) Each party shall protect and safegu~crd the Proprietary Information of the other
party using at least the same degrec; of care such party uses to protect its own
Proprietary Information of like importance. Each party agrees that all employees
and subcontractors to whom Proprietary Information is disclosed will have signed
a confidentiality agreement in form and substance reasonably acceptable to the
disclosing party, copies of which will. be provided upon request.
7. Warranty Disclaimer. Licensor has n~~ control over the conditions under which
Licensee uses the Technology and does not an~i cannot warrant the results obtained or not
obtained by such use.
EXCEPT AS OTHERWISE SPECIFIED IN SE('TIONS 4 AND 5 OF THIS AGREEMENT,
LICENSOR HEREBY EXPRESSLY DISCLAI>\nS ANY WARRANTY THAT
LICENSEE' S USE OF THE TECHNOLOGY Vb'ILL BE UNINTERRUPTED OR THAT
THE OPERATION OF THE TECHNOLOGY V1~ILL BE ERROR-FREE OR SECURE.
LICENSOR FURTHER DISCLAIMS ALL WA:EtRANTIES, EXPRESS OR IMPLIED,
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RELATING TO THE TECHNOLOGY INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE
ACKNOWLEDGES THAT THE TECHNOLOGY IS PROVIDED "AS IS" AND MAY
NOT BE FUNCTIONAL ON ANY MACHINE OR IN ANY ENVIRONMENT.
LICENSEE ASSUMES ALL RISK OF THE USE, QUALITY, AND PERFORMANCE OF
THE TECHNOLOGY.
8. Limitation of Remedies and Dama es. IN NO EVENT SHALL LICENSOR OR ITS
AFFILIATES, OR ANY OF THEIR DIRE(~TORS, OFFICERS, EMPLOYEES AND
AGENTS BE RESPONSIBLE OR LIABLE FOR ANY LOST PROFITS, LOSS OF
GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, LOSS OF INFORMATION,
LOSS OF DATA, OR ANY DIRECT, INDIF;ECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (EVEN IF LICENSOR
HAS BEEN ADVISED OF THE POSSIBILI'CY OF SUCH DAMAGES) UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT
OF OR RELATING IN ANY WAY TO THE TI~CHNOLOGY OR ANY OTHER SUBJECT
MATTER OF THIS AGREEMENT. LICENSOR SHALL NOT BE LIABLE FOR ANY
LOSS OR DAMAGE CAUSED BY DELAY I:w FURNISHING THE TECHNOLOGY OR
ANY OTHER PERFORMANCE UNDER Tl-IIS AGREEMENT. LICENSEE'S SOLE
REMEDY FOR DISSATISFACTION WITH ACHE TECHNOLOGY IS TO TERMINATE
THIS AGREEMENT PURSUANT TO SEC'T'ION IS BELOW. IN THE EVENT OF
LICENSOR'S BREACH OF THIS AGREEMENT, LICENSEE IS ENTITLED TO SEEK
RECOVERY OF ANY FUNDS PAID TO LICENSOR. IN NO EVENT SHALL
LICENSOR' S LIABILITY EXCEED THE AMOUNT, IF ANY, THAT LICENSEE HAS
ACTUALLY PAID TO LICENSOR FOR THE'.[2IGHT TO USE THE TECHNOLOGY.
9. Indemnification.
(a) Licensee shall defend, indemnify and hold Licensor harmless against any and
all claims, damages, losses, co:~ts or other expenses (including reasonable
attorneys' fees) that arise directly or indirectly out of or from Licensee's
breach of this Agreement or thy; use of the Technology by Licensee or by
others to whom Licensee has provided access to the Technology.
(b) Licensor shall defend, indemnify and hold Licensee harmless against any and
all claims, damages, losses, co;~ts or other expenses (including reasonable
attorneys' fees) that arise directly or indirectly out of or from Licensor's
breach of this Agreement.
10. Nonassi agn bility. Neither Licensee's ri;;hts nor Licensee's obligations arising under
this Agreement are assignable or otherwise transferable by Licensee (whether voluntarily or
by operation of law) without the express written consent of Licensor, and any such prohibited
assignment or transfer shall be void and without effect. If Licensor should so consent in
writing, the assignee shall be bound by all of she terms and conditions of this Agreement.
Licensor may assign any or all of its rights or ~~bligations hereunder without the consent of
Licensee. Subject to the provisions of this Section 10, this Agreement shall inure to the
benefit of and be binding upon each of the parties hereto and their respective permitted
successors and assigns.
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11. Term; Right of Cancellation. The initial term of this Agreement shall commence on
the date hereof and continue for 365 days (AI-ril 1, 2004 representing the 365 day initial
period) or until terminated by mutual agreement: of the parties or by either party as provided
herein. This Agreement may be renewed for subsequent one-year periods upon mutual
agreement of the parties, for a fee to be mutually agreed upon.
12. Applicable Law and Forum. This Agreement is entered into in the State of California
and shall be governed by and construed in accordance with the laws of the State of
California, exclusive of its choice of law rules. Each party to this Agreement hereby submits
to the exclusive jurisdiction of the state and federal courts sitting in the County of Santa Clara
in the State of California for the purpose of resolving any dispute arising under or relating to
this Agreement, and each party hereby waives any jurisdictional, venue or inconvenient
forum objections to such courts. In any action to enforce this Agreement, the prevailing
party will be entitled to costs and attorneys' fees.
13. Entire Agx'eement: Amendment. Eacl- party acknowledges that it has read this
Agreement and the exhibits attached to this Agreement, understands them, and agrees to be
bound by their terms, and further agrees that the` are the complete and exclusive statement of
the agreement between the parties which supersedes and merges all prior proposals,
understandings, and all other agreements, oral ar-d written, between the parties relating to this
Agreement. This Agreement may not be modified or altered except by written instrument
duly executed by both parties.
14. Equitable Relief. Licensee acknowledges and agrees that, due to the unique nature of
the Technology and Proprietary Information, there can be no adequate remedy at law for any
breach of its obligations hereunder, that any such breach may allow Licensee or third parties
to unfairly compete with Licensor resulting in irreparable harm to, and therefore, that, upon
any such breach or threat thereof, Licensor shall be entitled to injunctions and other
appropriate equitable relief in addition to whatever remedies they may have at law.
15. Termination. This Agreement may be terminated by (a) either party in the event of a
breach by the other party of a material representation, warranty, or covenant made in this
Agreement by the other party and such breach is not cured within thirty (30) days after
receipt by the other party of written notice there~~f, or (b) by the Licensee without cause upon
90 days written notice to the Licensor. In the event that this Agreement is terminated without
cause, the Licensee shall not be entitled to ar-y refund or credit of fees paid or payable
hereunder. If the termination was a result of Licensor's breach of this Agreement Licensee
shall be entitled to a refund of that portion of the License Fee paid for the months that this
Agreement is no longer in effect. The following provisions shall survive expiration or
termination of this Agreement: Sections 2, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19 and
20.
Upon expiration or termination of this Agreement, (a) Licensee will immediately destroy or
erase all copies of the Technology and any Proprietary Information and, upon Licensor's
request, promptly confirm destruction of same b~/ signing and returning to Licensor an
"affidavit of destruction" acceptable to Licensor and (b) Licensor shall transfer to Licensee
all of Licensor's Data in form acceptable to both the Licensee and Licensor.
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Without terminating this Agreement, the Licensee may suspend public access to the
Technology at any time for any reason, and if it l~ecomes necessary for Licensor to facilitate
the temporary suspension of such access, Licenser agrees to facilitate such suspension
following receipt of a written request of License: to take such action.
16. Taxes. Licensee will pay all federal, state and local sales, personal property, ad
valorem and any other taxes (but not including I,icensor's income taxes) arising as a result of
this Agreement.
17. Relationship of Parties. The parties to this Agreement are independent contractors.
No joint venture, agency or partnership, express or implied, is granted under this Agreement.
For purposes of this Agreement, neither party is an agent of the other party, and neither party
has any express or implied authority to act on behalf of, or make any representations
whatsoever on behalf of, the other party.
18. Headinfs. The headings used in this Areement are for convenience only and shall
not be considered in construing or interpreting this Agreement.
19. Notice. Unless herein provided otherwise, any notices required or permitted under
this Agreement shall be sent to Licensor by registered or certified mail or by express,
overnight delivery, addressed to 44 Montgomery Street, Suite 4200, San Francisco, CA
94104 (or at such other address of which Licensor may from time to time notify Licensee) or
by emailing techsupport cr,comcate.com. Licensee may report any technical problems
regarding the Technology to Licensor by calling 415-517-1547 or emailing
techsupport(c~,comcate.com; any notices required or permitted under this Agreement shall be
sent to Licensee at 10300 Torre Ave., Cupertino, CA, 95014 Attn: City Manager.
20. Severability. If any provision of this Agreement is invalid under any applicable
statute or rule of law, it is to that extent to lie deemed omitted. The remainder of the
Agreement shall be valid and enforceable to the maximum extent possible.
21. Waiver. No waiver will be implied from conduct or failure to enforce rights. No
waiver will be effective unless in writing signed on behalf of the party against whom the
waiver is asserted. A waiver at one time shall not constitute a subsequent waiver of the same
condition, breach, default or occurrence at any other time unless such waiver explicitly so
provides. The waiver or failure of either party to exercise in any respect any right provided
for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
22. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and eal;h of which together shall constitute a single
instrument.
23. Force Majeure. Neither party shall be responsible for failure to perform in a timely
manner under this Agreement when its failure is due to causes beyond its reasonable control
and without its fault or negligence.
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24. Further Assurances. Each party shall take such action (including, but not limited to,
the execution, acknowledgement and delivery oi' documents) as may be reasonably requested
by any other party for the implementation or continuing performance of this Agreement.
25. Attorney's Fees. In the event of any legal proceeding between the parties arising
under this Agreement, the prevailing party in any action shall be entitled to recover, in
addition to any other relief awarded or grants, its costs and expenses (including reasonable
attorney's fees) incurred in any such proceeding.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
shown above.
COMCATE, INC.
"LICENSOR"
w,_~~._D.P. ~,~-~-
Print Name: David G. Casnocha
Its President
CITY OF CUPERTINO
"LICENSEE"
By:
Print Name;~~lt~ t ~ tn~ ~~(~'l~ ~(~
Its
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