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Contract - Azteca Systems - 2011-01-18 1 , t. . Azteca Systems,Inc. Phone:(801)523-2751 11075 South State St. Cityworksa.,,''" s FAX(801)523-3734 Suite 24 •7 Email:Ateca@cityworks.com Sandy,Utah 84070 http://www.cityworks.com CITYWORKS ° SOFTWARE LICENSE AGREEMENT Contract No. C147110 This is a license agreement and not an agreement for sale. This license agreement (Agreement) is between Costa Mesa Sanitary District, CA (Licensee) and Azteca Systems, Inc. (Azteca Systems), a Utah corporation, with its principal place of business at 11075 South State Street, Suite#24 Sandy, Utah, 84070, and gives Licensee certain limited rights to use the proprietary software The Software Cityworks and Related Materials. All rights not specifically granted in this Agreement are reserved to Azteca Systems. 1. Definitions: As used herein, the following words, phrases, or terms in this Agreement shall have the following meanings: 1.1 "The Software Cityworks"means the actual copy of all or any portion of the computer programs delivered as listed in paragraph 5.1 Licensed Software, inclusive of backups, updates, or merged copies permitted hereunder or subsequently supplied by Azteca Systems. 1.2 "Related Materials" means all of the printed materials, user documentation, training documentation, and confidential activation code for The Software Cityworks supplied by Azteca Systems under this Agreement. 1.3 "Effective Date" shall mean the date on which Licensee receives the Software Cityworks and Related Material from Azteca Systems. 2. Term: This Agreement shall become effective on the Effective Date and.shall be valid for as long as Licensee complies with the Permitted Uses and Uses Not Permitted provisions of this Agreement. Azteca Systems may terminate this Agreement by 30 calendar days' prior written notice to Licensee if Licensee fails to comply with the Permitted Uses and Uses Not Permitted provisions of this Agreement. Unless otherwise agreed in writing, Licensee shall have 60 days after receiving notice of such failed compliance from Azteca Systems to cure the default. If this Agreement is terminated either under Section 8 or Section 17 below, Licensee shall then return to Azteca Systems all of The Software Cityworks, related modules, related updates, and any • whole or partial copies, codes, modifications, and merged portions in any form. Azteca will for no additional charge to Licensee and at Licensee's option either grant a perpetual license to the Licensee which will allow Licensee to retain the ability to access records and data contained in The Cityworks Software or will provide hard copies of all files needed by the Licensee. The parties hereby agree that all provisions which operate to protect the intellectual rights of Azteca Systems shall remain in force should breach occur. Software License Agreement,Page 1 of 12 • 3. Reservation of Ownership and Grant of License: Azteca Systems retains exclusive title and ownership of any copy of The Software Cityworks and Related Material licensed under this Agreement and grants to Licensee a personal, nonexclusive, nontransferable license to use The Software Cityworks and Related Materials pursuant to the terms and conditions of this Agreement. From the Effective Date, Licensee agrees to use reasonable effort to protect The Software Cityworks and Related Materials from unauthorized use, reproduction, distribution, or publication. 4. Copyright: The Software Cityworks and Related Material are owned by Azteca Systems and are protected by United States copyright laws and applicable international treaties and/or conventions. Licensee agrees not to export The Software Cityworks into a country which does not have copyright laws that will protect Azteca System's proprietary rights. 5. Licensing and/or Royalty Fees: In consideration of the License fees ("License Fees") paid under Purchase Order No. W-2139.01/2D, dated 11/30/2010 (see attachment A), Azteca Systems grants to Licensee a nonexclusive, nontransferable license to use the Licenses obtained under this Agreement as follows: 5.1 Licensed Software Cityworks Desktop— 1 License Initial 5.2 Permitted Uses: • Licensee may use the number of copies of The Software Cityworks specified in paragraph 5.1 for which License Fees have been paid on the computer systems(s) and/or specific computer networks(s) for Licensee's own internal use. • Licensee may install the number of copies and modules of The Software Cityworks specified in paragraph 5.1 for which License Fees have been paid onto the permanent storage device(s) on the computer system(s) and/or specific computer network(s). • Licensee may maintain one (1) copy of The Software Cityworks to a CD or DVD type medium for archival purposes during the term of this Agreement unless the right to make additional copies is granted to Licensee in writing by Azteca Systems. Regularly scheduled full system and partial system archival backups are allowable and specifically exempted from this provision. • Licensee may use, copy, alter, modify, merge, reproduce, and create derivative works of the on-line documentation accessible on MyCityworks.com for Licensee's own internal use. The portions of the on-line documentation merged with other software, hard copy, and digital materials shall continue to be subject to the terms and conditions of this Agreement and shall provide the following copyright attribution notice acknowledging Azteca Systems proprietary rights in the on-line documentation: "Portions of this document include intellectual property of Azteca Systems and are used herein by permission. Copyright © 2008 Azteca Systems, Inc. All Rights Reserved." 5.3 Uses Not Permitted: Software License Agreement, Page 2 of 12 • Licensee shall not sell, rent, lease, sub-license, lend, assign, time-share, transfer or export, in whole or in part to unlicensed third parties, or provide access to prior or present versions of The Software Cityworks, any updates, or Licensee's rights under this Agreement. Nothing in this Section shall prevent use of and access to The Software Cityworks by Licensee's employees, agents or others performing work for or on behalf of the Licensee. • Licensee shall not reverse engineer, decompile, or disassemble The Software Cityworks, or make any attempt to unlock or bypass The Software Cityworks keycode, as applicable, subject to local law. • Licensee shall not make additional copies of The Software Cityworks and Related Materials beyond that described in the Permitted Uses section above. • Licensee shall not remove or obscure any Azteca Systems copyright or trademark notices. 6. The Software Cityworks Update and Support: The Software Cityworks Update and Support: A one (1) year period of complimentary update and support services are provided to Licensee at no additional charge above the License Fees with each License effective from Effective Date. Update and support services consists of updates to The Software Cityworks and Related Materials, documentation updates and access to telephone user support, email support, web support, and other benefits deemed appropriate by Azteca Systems as outlined in the Attachment B - Complimentary Update and Support Services attached to this Agreement. Update and support services for The Software Cityworks beyond the complimentary period is available if Licensee and Azteca Systems have executed a Cityworks Update and Support Agreement. Fees for any such support services in excess of the complimentary period shall be governed by the Cityworks Update and Support Agreement. 7. Limited Warranty: Limited Warranty: Azteca Systems warrants that it owns or has the full right and authority and all associated intellectual property rights necessary to grant Licensee rights and licenses set forth in this Agreement to The Software Cityworks and Related Materials. Azteca Systems warrants that The Software Cityworks, unaltered, will substantially conform to the Related Materials for a period of one (1) year from the Effective Date ("Warranty Period"). Azteca Systems warrants that the media upon which The Software Cityworks is provided will be free from defects in materials and workmanship under normal use and service during the Warranty Period. AZTECA SYSTEMS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE CITYWORKS. AZTECA SYSTEMS DOES NOT WARRANT THAT THE OPERATIONS OF ITS RESPECTIVE SOFTWARE AND RELATED MATERIALS WILL BE UNINTERRUPTED AND/OR ERROR FREE. 8. Exclusive Remedy and Limitation of Liability: Exclusive Remedy and Limitation of Liability: One(1) year from the Effective Date and during the Warranty Period, Azteca System's entire liability and Licensee's exclusive remedy for breach of the warranties against defect(s) in Software License Agreement, Page 3 of 12 materials and workmanship shall be to request Azteca Systems correct the defect(s)by whatever means reasonably available to Azteca Systems such as remedy the defect(s), or provide a suitable work around, or replace The Software Cityworks in accordance with the Cityworks Update and Support Agreement(if then in effect with Licensee). If Azteca Systems exhausts available remedies and is unable to remedy the defect(s) Licensee may by written notice of its election to , Azteca Systems, terminate this Agreement for its convenience and have Azteca Systems return 100%of the License Fees paid upon the Licensee's return of The Software Cityworks to Azteca Systems. Azteca Systems shall not be liable for indirect, special, incidental, or consequential damages related to Licensee's use of The Software Cityworks, unless such damage is caused by Azteca System's actual negligence. IN NO EVENT SHALL AZTECA SYSTEMS BE LIABLE TO THE LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE SOFTWARE AND RELATED MATERIALS, UNLESS SUCH LOSS OR DAMAGE IS CAUSED BY AZTECA SYSTEM'S ACTUAL NEGLIGENCE. 9. Indemnity: Indemnity: Azteca Systems, at its own expense, will hold harmless, defend and indemnify Licensee from all claims that The Software Cityworks or Related Materials furnished under this Agreement infringes a U.S. Copyright or other intellectual property rights of a third party, provided that Licensee gives Azteca Systems prompt written notice of such claims and permits Azteca Systems the sole right to control the defense of such claims and provides Azteca Systems all reasonable cooperation. As to The Software Cityworks which are or in the opinion of Azteca Systems may become subject to a claim of infringement, Azteca Systems, at its option, will obtain the right for Licensee to continue using The Software Cityworks or replace or modify The Software Cityworks so as to make them non-infringing. If none of the alternatives is available on commercially reasonable terms, then Licensee agrees to, upon Azteca Systems' written request, terminate for convenience the Agreement upon the Licensee returning The Software Cityworks to Azteca Systems and Azteca Systems will refund to the Licensee 100% of the License Fees paid. Azteca Systems will not indemnify or defend Licensee from any infringement claim resulting from Licensee's unauthorized modification or alteration of The Software Cityworks or Related Materials. This section states Azteca System's entire obligation to Licensee and Licensee's sole and exclusive remedy for infringement. 10. Additional Software Licenses: Additional copies and modules of The Software Cityworks licenses may be ordered without signed amendments provided the following language is incorporated in the signed Purchase Order: "By accepting this order, both parties agree to amend the Master Software License Agreement Contract No. C147110 between Costa Mesa Software License Agreement,Page 4 of 12 Sanitary District, CA and Azteca Systems, Inc., dated p l a),_ \ /, which is incorporated herein by reference, to include the above software licenses, which are hereby licensed under the same terms and conditions. " 11. Export Regulations: Licensee acknowledges that this Agreement and the performance thereof are subject to compliance with any and all applicable United States laws, regulations, or orders relating to the export of computer software or know-how relating thereto. The Software Cityworks are determined to be Technical Data under United States export laws. Licensee agrees to comply with all laws, regulations, and orders of the United States in regard,to any export of such Technical Data. Licensee agrees not to disclose or re-export any Technical Data received under this Agreement in or to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Licensee has obtained prior written authorization from Azteca Systems and the U.S. Office of Export Control. 12. Force Majeure: Neither party shall be liable to the other for failure or delay in the performance of a required obligation during any period where such failure or delay is caused by strike, riot, fire, flood, natural disaster, or other similar cause beyond such party's control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible. 13. Severability: If any provision(s) of this Agreement shall be held to be invalid, illegal, or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The provisions of this Agreement shall be enforceable to the extent permissible under the laws of the State of California. 14. No Implied Waivers: No failure or delay by Azteca Systems or Licensee in enforcing any right or remedy under this Agreement shall be construed as a waiver of any future or other exercise of such right or remedy by Azteca Systems. 15. Order of Precedence: Any conflict between the terms of this License Agreement and any Purchase Order or other terms shall be resolved in favor of the terms of this License Agreement. 16. Governing Law: This Agreement, entered into in the County of Orange shall be construed and enforced in accordance with, and be governed by, the laws of the State of California without reference to conflict of laws principles. The parties hereby consent to the personal jurisdiction of the courts of this county and waive their rights to change venue. 17. Termination for Convenience: In the event that either funding from the Licensee or other sources is withdrawn, reduced, or limited, or the authority of the Licensee to perform any of its duties is withdrawn, reduced, or limited in any way after the Effective Date of this Agreement and prior to normal completion, the parties shall have the authority to exercise the Termination for Convenience option to terminate this Agreement, in whole or in part. If a party to this Agreement chooses to terminate for convenience that party may do so by thirty(30) days written notice to the other party. Software License Agreement,Page 5 of 12 If this Agreement is terminated for convenience, the Licensee is only liable for payment required by the terms of this Agreement for services rendered or software received and accepted prior to the Effective Date of termination. Also, set forth elsewhere in this Agreement are specific provisions which allow the parties to terminate this Agreement for convenience (see Exclusive Remedy and Limitation of Liability provision). 18. Mediation Clause: Azteca Systems and Licensee will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail then the dispute will be mediated by a mutually acceptable mediator to be chosen by Azteca Systems and the Licensee within thirty (30) days after written notice by one of the parties demanding non-binding mediation. Neither party may unreasonably withhold consent to the selection of a mediator. Azteca Systems and the Licensee will share the cost of the mediation equally. By mutual agreement, however, Azteca Systems and Licensee may postpone mediation until both parties have completed some specified limited discovery about the dispute. The parties may also agree to replace mediation with some other form of non-binding alternate dispute resolution procedure ("ADR"). Any dispute which cannot be resolved between the parties through negotiation or mediation within two (2) months of the date of the initial demand for it by one of the parties may then be submitted to a court of competent jurisdiction in the County of Orange, California. Both Azteca Systems and Licensee consent to jurisdiction by such a court. The use of any ADR procedures will not be considered under the doctrine of latches, waiver or estoppel to affect adversely the rights of either party. Nothing shall prevent either of the parties from resorting to the judicial proceedings mentioned in this paragraph if(a) good faith efforts to attempt resolution of the dispute under these procedures have been unsuccessful; or(b) interim relief from the court is necessary to prevent serious and irreparable injury to one of the parties or others. 19. Entire Agreement: This Agreement constitutes the sole and entire agreement of the parties as to the matter set forth herein and supersedes any previous agreements, understandings, and arrangements between the parties relating hereto. Except as otherwise expressly provided herein, any Amendments to this Agreement must be in writing and signed by an authorized representative of each party. Software License Agreement, Page 6 of 12 20. Data Confidentiality Statement: For any client data and/or confidential information(data) provided to Azteca Systems, we will take reasonable measures to assure that the data is not inappropriately accessed or distributed to any third-party. Data provided to Azteca Systems by the client will be loaded onto Azteca Systems servers or employee computers for the purpose of testing Cityworks software, database structure, or database values, and related ESRI software to resolve database or software performance issues, software enhancements and software defects ("bugs"). At no time will the data be distributed to individuals or organizations who are not Azteca Systems employees without first receiving written approval from the client. If requested by the client, and once the testing has been completed, Azteca Systems will delete all data provided by the client. IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective, valid, and binding upon the parties as of the date below as executed by their duly authorized representatives. Accepted and Agreed: Costa Mesa Sanitary District, CA Azteca Systems, Inc. (Licensee) (Aztec-) By: 14 Authorized Signatur e 'uthorized Signatur. Printed Name: r5/°' E < ccccy.\ Printed Name: Brian L. Haslam Title:GE'net:ci„A &no.CT-- Title: President Date: lC- Date: It 5?) Rol Witness Witness By: Bye Software License Agreement,Page 7 of 12 Attachment A—Purchase Order • Software License Agreement, Page 8 of 12 Attachment B—Complimentary Update and Support Services THE PARTIES AGREE AS FOLLOWS: 1. DEFINITIONS 1.1 "Licensed Software" shall mean the particular Software identified in the Cityworks Software License Agreement,paragraph 5.1,page 2, Software License Agreement. 1.2 "Custom Applications" shall mean any scripts, interfaces, reports or program code requested by the Licensee, other than Program Modifications to the Cityworks applications that provide specific functionality uniquely designed for the Licensee. Any Custom Applications delivered to Licensee shall NOT become part of the Licensed Software unless otherwise specified in section 5.1, page 2, Software License Agreement. The Custom Applications scripts, interfaces, reports and program code shall be provided to the client as a deliverable and client shall have full ownership rights for the Custom Applications. However, Azteca Systems shall retain the right to utilize, modify and enhance the scripts, interfaces, reports or program code of the Custom Applications as Azteca Systems deems appropriate. 1.3 "Effective Date" shall mean the date on which Licensee receives the Licensed Software from Azteca Systems (unless otherwise agreed to in writing by Azteca Systems and Licensee) in accordance with the Software License Agreement, Contract No. C147110,between Licensee and Azteca Systems dated 0 Inn- 1.4 "Program Fixes" shall mean minor corrections to the Licensed Software to correct deviations in the Licensed Software. Any Program Fixes delivered to Licensee shall become part of the Licensed Software under the Software License Agreement. 1.5 "Program Modifications"shall mean new versions of or additions to the Licensed Software, which adds to or alters the function(s)of the Licensed Software and new modules or products adapted to interface with the Licensed Software and add to or alter the function(s) of the Licensed Software, requested by the Licensee. Any Program Modifications delivered to Licensee shall become part of the Licensed Software under the Software License Agreement. 1.6 "Product Updates"are Program Fixes, Program Upgrades and Program Modifications. 1.7 "Program Upgrades" shall mean new versions of, or additions to,the Licensed Software prepared by Azteca Systems that improve its operating performance but do not add to or alter its basic function(s). Any Program Upgrades delivered to Licensee shall become part of the Licensed Software under the Software License Agreement. 1.8 "Software" shall mean Cityworks source code, machine-readable code, and related documentation. Software License Agreement, Page 9 of 12 1.9 "Complimentary Update&Support Period" shall mean the initial support period commencing upon the Effective Date of this Agreement. 2. SUPPORT 2.1 The services to be provided during the Complimentary Update& Support Period include Azteca Systems Product Updates to Azteca System's Cityworks applications including Program Fixes, Program Upgrades and Program Modifications (not Custom Applications). Azteca Systems will ensure upward compatibility for The Cityworks Software applications within a reasonable timeframe for minor and major ESRe ArcGIS and Cityworks supported databases revisions. If identified as"Licensed Software", Azteca Systems will ensure upward compatibility within a reasonable timeframe for Custom Applications when there are minor ArcGIS and Cityworks supported databases revisions(for example, from rev 9.1 to rev 9.2). Azteca Systems will not ensure upward compatibility for Custom Applications when there are major ESRI ArcGIS and Cityworks supported databases revisions(for example, from rev 9.x to rev 10.x), Azteca Systems will make all reasonable efforts to provide upward compatibility. 2.2 Azteca Systems shall, with out additional charge(except as allowed for in paragraph 3.4), during the Complimentary Update and Support period: (a)Make all reasonable efforts to provide those Program Fixes, if any,that are necessary to assure the Licensed Software is functioning properly;provided Licensee provides Azteca Systems with written notice specifying particularity, in a narrative non-technical terms, to the best of Licensee staff's ability, the apparent error in the system and the manner in which the Licensed Software is not functioning properly(as provided in Section 8); and .(b) Deliver to Licensee any Program Upgrades relating to the Licensed Software made available to others. (c) Provide Telephone Licensee Support, Email Support, Web Support, during normal business hours Monday through Friday(excepting Holidays) and after hour emergency support through messaging service, and other benefits deemed appropriate by Azteca Systems such as on-line support. (d) Implement and maintain a means of secure, remote direct network access (Web- access, dial-up, etc) to the Licensee's systems in order to perform thorough remote diagnostics and effect remote repairs, upgrades, and fixes. • 2.3 The following items, among others, however, are specifically excluded as support services under this section of this Agreement: (a)interpretation of program results; Software License Agreement, Page 10 of 12 (b) assistance with questions related to computer hardware and peripherals that are not related to the use of the Licensed Software; (c)assistance with computer operating system questions not directly pertinent to the Licensed Software or Program Modifications; (d) data debugging and/or correcting; (e) services necessitated as a result of any cause other than authorized ordinary and proper use by the Licensee of the Licensed Software, including but not limited to neglect, abuse, unauthorized modification,unauthorized updates or electrical, fire, water or other damage; and (1) consulting regarding Custom Applications created to function with the Licensed Software unless the Custom Application is identified as Licensed Software in paragraph 5.1,page 2, Software License Agreement. 3. PROCEDURES FOR ACCESSING SUPPORT 3.1 All problem categories from routine, non-critical and critical that occur during normal business hours shall procedurally occur as follows: 1) Licensee's system administration staff as first line of support, 2) Azteca Systems staff as the second line of support. Azteca Systems will make all reasonable efforts to acknowledge all requests for support during normal business hours within 4 hours. 3.2 Prior to calling Azteca Systems for support services, the Licensee will first attempt to isolate any problems that occur with the System. The Licensee will try to reduce the problem down to a specific software or system component. If it is determined that the problem is The Cityworks Software component the Licensee will first try and resolve the problem without Azteca Systems' involvement. If the Licensee cannot resolve the problem or isolate the problem, the Licensee will call Azteca Systems directly. 3.3 For critical problems that occur outside of Azteca Systems' normal business hours (8 AM to 5 PM, Mountain Time) and cannot be isolated and resolved by the Licensee, Azteca Systems will provide an after-hours phone number or pager number that will forward the call or page to the currently assigned Azteca Systems support staff. Azteca Systems will make all reasonable efforts to acknowledge and respond to the request for support for critical problems that occur outside of normal business hours within 4 hours of receipt of the call from a designated and authorized Licensee representative. Critical problems are defined as problems that cause several users to be unable to perform their duties. Depending upon the type of problem, Azteca Systems support staff may need to be sent from Azteca Systems offices to the Licensee location. Azteca Systems project management will confer with the Licensee's representative or project management before making this decision. The speed at which remote Azteca Systems staff can respond may be limited by the driving time or the airline flights that are available. The Licensee will Software License Agreement, Page 11 of 12 reimburse Azteca Systems for all reasonable and customary travel expenses associated with resolving the problem. For routine and non-critical problems the Licensee will submit requests for support during normal business hours. 3.4 For all problems involving The Cityworks Software component that are resolved without Azteca Systems' involvement, the Licensee will document the problem and the resolution and send a report to Azteca Systems so that it can be tracked, monitored, and historically recorded. Software License Agreement,Page 12 of 12