Stellent™ SOFTWARE LICENSE AGREEMENT
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This Stellent™ SOFTWARE LICENSE AGREEMENT (this "Agreement") is made and entered into this ___ day of ______, 2002 (the “Effective Date”) between Stellent, Inc. ("Stellent"), a Minnesota corporation with principal offices at 7777 Golden Triangle Drive, Eden Prairie, MN 55344 and The City of Phoenix(“the City”) a municipal corporation with principal offices at 251 West Washington St., Phoenix, Arizona 85003 .
This Agreement supercedes any "shrink-wrap" or other form of license agreement which may be packaged with the Software or incorporated into the media on which the Software is shipped.
THE STELLENT SOFTWARE (the “Software”) IS COPYRIGHTED AND LICENSED (NOT SOLD). STELLENT DOES NOT SELL OR TRANSFER TITLE TO THE SOFTWARE TO the City.
1.Definitions. As used in this Agreement:
1.1.“Contributor” means an individual who is the City’s employee or contractor and who has access to the Software, authority to submit and edit managed content, and authority to perform standard end-user functions, including, but not limited to, searching, viewing and printing managed content.
1.2."User" means any individual who has authority to perform standard end-user functions, including, but not limited to, searching, viewing and printing managed content, but is not authorized to submit or edit managed content.
1.3.“Software” means the object code version of the Software along with the specific modules and functionality listed in Attachment A, together with any fixes, updates, modifications, enhancements, and new versions (if any) as may, from time to time, be provided to the City as part of Stellent’s support service(s). The term “Software” also includes the documentation and other written materials packaged with this Agreement, together with such additional documentation and materials as may, from time to time, be provided by Stellent to the City for use in connection with the Software (collectively, the “Documentation”).
2.Grant of License. In consideration of the City’s payment of the applicable fee, Stellent grants the City a perpetual, nonexclusive, nontransferable license to use one (1) copy of the Software on a single server at a single location (except as otherwise expressly stated in Attachment A) on the terms and conditions set forth in this Agreement. The City may use the Software only for the internal benefit of the City’s business and only to manage documents on internal and external Web sites in accordance with the Documentation. The City may also make one (1) copy of the Software for archival purposes. The number of Contributors and Users who may access the managed content via the Software is specified in Attachment A. The City may transfer any copy of the Software to another server as dictated by the City’s legitimate business needs, so long as the number of copies concurrently in use does not exceed the number of copies licensed to you.
3.Ownership. This Agreement does not grant the City any right to use the Software except as expressly set forth herein, nor does it grant the City any ownership right, title or interest in or to the Software. All right, title and interest in and to the copyrights, trademarks, patents, trade secrets and other intellectual property rights in the Software are and shall remain with Stellent and/or Stellent’s suppliers.
4.Protection of Intellectual Property. The City acknowledges that the Software contains confidential and proprietary information and substantial and valuable trade secrets of Stellent and its third party suppliers. The City agrees to use the same care to protect the Software against any use, copying, disclosure or dissemination not expressly authorized by this Agreement that it uses to protect the City’s own most valuable proprietary information and materials, but in no event less than the care a reasonable business person would use under similar circumstances. Without limiting the foregoing, the City may not give any third party access to the Software (other than as Users), except third-party contractors who need access to the Software to perform services for the City and who have signed a non-disclosure agreement agreeing to protect the confidentiality of the Software.
5.Restrictions. The City may not, nor may the City authorize or permit third parties to (a) use, copy, modify, or prepare derivative works of the Software or any part thereof, except as expressly authorized in this Agreement; (b) distribute, lease, sublicense, lend, give, transfer, assign or otherwise make all or any portion of the Software available to any third party; (c) reverse engineer, decompile or disassemble the Software or cause or allow discovery of the source code of the Software or attempt to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law; (d) use the Software to manage or process documents or data on behalf of any third party without Stellent’s prior written consent; (e) use the Software for any multiple-user or time-sharing arrangement, or for any dial-up, remote access, interactive or other on-line service (for example, an ASP service), or for any other type of commercial venture that generates revenue as a direct result of the Software (for example, a service bureau or a subscription service) without Stellent’s prior written consent.
6.Price and Payment. In consideration for the license granted in this Agreement, the City agrees to pay the fees as stated in Attachment A. The City also agrees to pay directly or to reimburse Stellent for all sales, use or other taxes resulting from the transaction covered by this Agreement, except taxes based on Stellent’s net income. Payment is due as set forth in Attachment A.
7.Term and Termination. The City’s rights under this Agreement will commence upon the Effective Date. The City’s rights under this Agreement will terminate 30 days after the City’s receipt of written notice without further action required of Stellent upon the City’s material breach of this Agreement unless the material breach is cured within the notice period. Upon the termination of this Agreement, the City must (a) cease all use of the Software, (b) destroy or return to Stellent all copies of the Software in the City’s possession or under the City’s control, and (c) upon request, deliver to Stellent a certificate signed by an officer of the City’s company verifying compliance with subsection (b) of this Paragraph 7.
8.Warranties. Stellent warrants, for the City’s benefit alone (a) that it has the right to grant the license granted in this Agreement; and (b) that for a period of ninety (90) days after the Effective Date, the Software, when operated with the equipment configuration and in the operating environment specified in the Documentation, will perform substantially in accordance with the technical specifications included or referred to in the Documentation and will perform the functional requirements listed in Attachment C. ALL THIRD PARTY SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND AND THE CITY IS RESPONSIBLE FOR THE ENTIRE RISK WITH RESPECT TO ITS QUALITY AND PERFORMANCE.
9.Remedies. As the City’s sole and exclusive remedy for any defect or error covered by the warranty set forth in Paragraph 8(b) above, and as Stellent’s entire liability in contract, tort, or otherwise, Stellent shall use commercially reasonable efforts to correct or cure such defect or error by issuing corrected instructions, a fix or a bypass. If Stellent has not corrected such defect or error after it has had a reasonable opportunity to do so, the City shall have the right to terminate this license with respect to the defective or nonconforming module(s) of the Software, provided however that if the Software is significantly impaired, the City may terminate the entire Agreement. In such event, Stellent shall refund the amount paid by the City as the Net License Fee and the Net First Year Maintenance and Support Fee for the defective or nonconforming module(s) of the Software, or in the event the entire Agreement is terminated, Stellent shall refund all monies paid under the Agreement. These remedies are provided on the condition that (a) the City reports the defect or error within the warranty period and provide Stellent with information sufficient to allow Stellent to reproduce the defect or error; and (b) the City has not modified, misused or damaged the Software. Ongoing Software support and maintenance is available from Stellent at additional cost.
10.DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH IN PARARGRAPH 8 ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES ON THE PART OF STELLENT AND ITS SUPPLIERS WITH RESPECT TO THE SOFTWARE. EXCEPT AS EXPRESSLY STATED IN PARAGRAPH 8, STELLENT MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, STELLENT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE CITY’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. ALL THIRD PARTY SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND, AND THE CITY IS RESPONSIBLE FOR THE ENTIRE RISK WITH RESPECT TO ITS QUALITY AND PERFORMANCE.
11.Limitation of Liability. In no event shall Stellent or its suppliers be liable for any indirect, special, incidental, consequential, or exemplary damages, including without limitation, damages for lost profits or revenues, loss of use of any software or hardware, loss of data, or interruption of business, whether claimed in contract, tort, or otherwise, even if Stellent is informed of the possibility of such loss or damage. The provisions of this paragraph shall not apply to Stellent’s liability arising or resulting from damage or injury (including death) to the property or person of anyone or to Stellent’s liability for infringement of intellectual property rights pursuant to Paragraph 12.
12.Intellectual Property Indemnification. Stellent agrees to defend, at its own expense, and to indemnify and hold harmless City and its officers, agents, and employees from and against all judgments, claims, damages, suits, liabilities, settlements, costs, and demands, including reasonable attorneys' fees, suffered or incurred by City as a result of any claim that the Software provided within the scope of this Agreement infringes any copyrights, patents, trademarks, trade secrets or other intellectual property rights of third parties, provided that Stellent is notified promptly in writing of such claim. Stellent shall have the sole right to control the defense of all such claims, lawsuits, and other proceedings including the right to settle the same. In no event shall City settle any such claim, lawsuit or proceeding without Stellent's prior express written approval. City shall cooperate with Stellent in a reasonable way to facilitate the settlement or defense of such claim. If as a result of any claim of infringement, Stellent or City is enjoined from using the Work Product provided under this Agreement, or if Stellent reasonably believes that the Work Product is likely to become the subject of a claim of infringement, Stellent may, at Stellent's option and expense, (1) procure the right for City to continue to use the Work Product, or (2) replace or modify the Work Product so as to make it non-infringing and capable of serving the purpose for which the Work Product was provided. The foregoing provisions of this Section will not apply to the extent that such infringement or unauthorized use arises from, or could have been avoided except for (1) the City’s modification of the Software; (2) the failure of the City to use any corrections or modifications made available to City by Stellent; (3) information, materials, instructions or specifications provided by the City; or (4) the use of the Software in combination with any product not provided by Stellent, unless Stellent’s Work Product infringes the third party’s rights in the absence of such combination. This Section 12 states the entire liability of Stellent with respect to infringement of any intellectual property rights by the Software or any parts thereof.
13.Copyright Infringement of Third Party Content. THE CITY’S USE OF ANY MATERIALS OBTAINED BY USE OF THE SOFTWARE IS SUBJECT TO APPLICABLE COPYRIGHT LAWS AND NEITHER STELLENT NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INFRINGEMENT FOR WHICH THE CITY IS RESPONSIBLE. The City agrees to defend Stellent and its third-party suppliers at the City’s expense and pay all damages that a court finally awards against Stellent and/or its suppliers arising out of the infringement of any third-party content the City accesses using the Software.
14.Injunctive Relief. The City acknowledges that the use, copying, disclosure or dissemination of the Software, or the trade secrets embodied therein, in a manner not authorized by this Agreement may cause irreparable harm to Stellent that could not be fully remedied by monetary damages. The City therefore agrees that Stellent shall be entitled, in addition to any other remedies available to it at law or in equity, to seek injunctive or other equitable relief as may be necessary or appropriate to prevent such unauthorized use or disclosure without the necessity of proving actual or irreparable damage by reason of any such unauthorized use, disclosure, dissemination or copying.
15.Governing Law. This Agreement shall be governed by the laws of the State of Arizona and the parties consent to personal jurisdiction and venue in Arizona. The United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to this Agreement. The City will comply with all foreign and domestic laws and will not export or re-export the Software without Stellent’s prior written authorization and without appropriate United States or foreign government licenses and approvals.
16.Assignment. Neither party may transfer or assign its rights or obligations under this Agreement without the prior written consent of the other party , and any transfer or assignment without such prior consent is void. The provisions of this Section 16 shall not apply in the case of an acquisition of all or substantially all of the business of the assigned party.
17.Notice. All notices, demands and requests required or permitted to be given under this Agreement shall be in writing and delivered (a) personally or by local courier, (b) by a nationally recognized overnight courier or (c) sent by United States certified mail, return receipt requested, postage prepaid and addressed to the parties at their respective addresses set forth above. Notices shall be effective upon receipt if delivered personally, by local courier or by certified mail and on the next business day if sent by overnight courier.
18.Source Code Escrow. Stellent has contracted with Ft. Knox Escrow Services, Inc. (now D.S.I.) to maintain a deposit of the Stellent software source code (the “Escrow Agreement”). Stellent agrees to cause you to be listed as a “Licensee” entitled to release of the deposited materials under the terms and conditions of the escrow agreement which provides for release of the source code to a Licensee in the event Stellent (the “Producer”) “…fail(s) in a material respect to support the applicable Systems as required by a license agreement … between Licensee and Producer or that Producer has otherwise defaulted in a material respect under the License Agreement ("Producer Default")…”
19.Miscellaneous.
19.1.Amendments. No amendment to this Agreement shall be binding unless made in writing and signed by a duly authorized representative of the party against whom enforcement is sought.
19.2.Consents. Whenever the consent of a party is required, such consent may be withheld in that party’s sole and absolute discretion.
19.3.Non Waiver. The failure of either party at any time to require performance of any provision of this Agreement or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by either party of any breach of any provision of this Agreement or of any right provided for herein shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
19.4.Remedies are cumulative. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
19.5.Entire Agreement. This Agreement contains the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all previous communications, negotiations and agreements, whether oral or written, between the parties with respect to such subject matter.
19.6.Survival. Any obligations that by their nature should continue after the expiration of this Agreement shall remain binding upon the parties.
19.7.Force Majeure. Neither party shall be responsible for delay or failure of performance due to extraordinary causes (Force Majeure) that are reasonably beyond the control and without the fault or negligence of such party, which could not, in the exercise of commercially prudent business practices, have been anticipated and the consequences managed by the affected party.
19.8.Cancellation. All parties hereto acknowledge that this Agreement is subject to cancellation by the City pursuant to the provisions of Section 38-511, Arizona Revised Statutes.
19.9.Nondiscrimination. Stellent, in performing under this Agreement shall not discriminate against any worker, employee, or applicant, or any member of the public, because of race, color, religion, gender, national origin, age, or disability nor otherwise commit an unfair employment practice. Stellent will take affirmative action to ensure that applicants are employed, and employees are dealt with during employment without regard to their race, color, religion, gender, or national origin, age, or disability. Such action shall include but not be limited to the following: Employment, promotion, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training; including apprenticeship. Stellent further agrees that this clause will be incorporated in all subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this Agreement.Contractor further agrees that this clause will be incorporated in all subcontracts, job-consultant agreements or subleases of this agreement entered into by Contractor.