HomeMy Public PortalAbout2018.01.11 Novotx-Elements XS4 Software License AgreementNOVOTX LLC
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is made as of i ) JA 2008 (the "Effective Date"), by and
between NOVOTX LLC, a Utah limited liability company with offices at 1436 Legend Hills Drive, Suite 335, Clearfield Utah
84015 ("Novotx") and the party identified below ("Licensee").
Licensee��:
Address:'
Contact name:
Contact title:
Contact email
Contact phone:
Licensee desires to obtain a license to certain proprietary software of Novotx. Novotx is willing to license such software to
Licensee and provide certain software maintenance and support services in relation to such software, to the extent set forth in
this Agreement and subject to the terms and conditions hereof.
1. BACKGROUND
1.1 Definitions. As used in the Agreement or in any
Exhibit hereto:
(a) "Confidential Information" means all trade
secrets and all non-public business and financial
information, computer software and documentation,
machine and operator instructions, business methods,
procedures, know-how, and other information that relates
to the business or technology of either party.
(b) "Documentation" means the Novotx user
guides, manuals and associated documentation provided
to Licensee with or for the Licensed Software.
(c) "License Limits" means the permitted number
of users of the Licensed Software, the organizational
unit(s) permitted to use the Licensed Software, the
maximum organization size, and/or other applicable
limitations or conditions associated with the pricing of
Licensee's license, as specified in the Sales Order.
(d) "License Term" means the duration of the
software license being procured by Licensee under this
Agreement, as specified in the Sales Order and as may be
renewed and/or terminated in accordance with this
Agreement.
(e) "License Type" means the type of license (such
as a production license, evaluation license, or
development and/or demonstration license) being
procured by Licensee under this Agreement, as specified
in the Sales Order. If the License Type is not specified in
the Sales Order, it will be presumed to be a production
license or, if no license fees are being charged, a non -
production evaluation license.
(f) "Licensed Software" means Novotx's computer
software program(s) for which Licensee is procuring a
license pursuant to the Sales Order, and any modules,
add-ons, interfaces, modified versions, updates or
enhancements to such programs that Novotx may provide
to Licensee pursuant to Maintenance and Support or
pursuant to the Sales Order or a separate, applicable
services agreement (if any) between Licensee and
Novotx.
(g) "Maintenance and Support" has the meaning
given in Section 4.2.
(h) "Sales Order" means the Novotx order form or
similar document that references or is attached to this
Agreement, as executed by Licensee and Novotx, and that
identifies the software being licensed hereunder.
(i) "Online Services" means any web, software, or
data services or components, such as third -party
geographic information services (GIS) or utility billing
services, that supply information to, perform tasks for, or
otherwise interact with the Licensed Software via the
internet.
1.2 Applicability of Certain Terms. As more
specifically indicated herein, certain terms and conditions
of this Agreement apply only if the license to the Licensed
Software is of a certain type or duration. The applicability
of those terms and conditions will be determined by the
License. Type or License Term indicated in the Sales
Order. Any terms or conditions of a Sales Order or other
document submitted by Licensee that are in addition to or
inconsistent with the terms of this Agreement will not be
binding on Novotx unless Novotx expressly agrees to the
applicability of such terms in writing signed by an
authorized officer of Novotx.
1.3 Acceptance of Terms. Licensee will be deemed
to have accepted this Agreement either by signing this
document or by submitting the Sales Order.
2. LICENSE GRANT AND SCOPE
2.1 Grant. Subject to the terms and conditions of this
Agreement, Novotx grants to Licensee a non-exclusive,
non -transferable license, during the License Term and
within the License Limits, to:
(a) install and use the Licensed Software, in
executable form only, solely to the extent and for the
purpose(s) described in Section 2.2 for the given License
Type;
(b) configure the Licensed Software, using the
macro or scripting languages, published application
programming interfaces (APIs), and/or other mechanisms
provided or specified by Novotx for that purpose,
consistent with all applicable configuration instructions and
other guidelines set forth in the Documentation; and
(c) reproduce the Licensed Software solely on
necessary to facilitate its instaUaUon, uonfigunoUon, and
use aoauthorized above.
2.2 Scope of Use. Unless otherwise expressly
agreed inthe Sales Order, the Licensed Software may be
installed only onservers owned orcontrolled byLicensee,
configured and used only for Licensee's internal business
or organizational purpouoo, and accessed only on
compatible devices via the web -based n,other imerfano(a)
enabled and documented by Novotx. The scope of
Licensee's permitted installation and use of the Licensed
Software iofurther limited based on the License Type, as
(a) Production License. If the License Type is a
production license, the Licensed Software may be
installed and used only: (i) on one server for production
use; (ii) on one oen/or uo|o|y for non -production staging
and testing purposes; and (iii) on one server uo|o|y for
backup or emergency hoi|'overpurpoaea (to be used only
ifand when the primary production server iaunuvui|ab|o).
(b) Non -Production Licenses Generally. If the
License Type is not e production |ioenon. the Licensed
Software may not be installed or used in o production
anvimnment, but may be installed and used only: (i) on
one server solely for the kind(o)ofuse that are associated
with the specific non -production License Type, as set forth
below; and (ii) on one server an|e|y for backup or
emergency fail -over purposes (to boused only ifand when
the primary server iaunovoi|ab|n).
(c) Beta or Evaluation. A beta and/or evaluation
License Type allows Licensee to heoi and nvu|uuto the
Licensed Software in a non -production environment in
order to: (i) identify innuoo in the Licensed Software and
provide feedback to Novotx; and/or (ii) assess whether to
procure nproduction license from Novotx.
(d) Development. A development License Type
allows Licensee to use the Licensed Software in e non -
production environment directly in support of Licensee's
development and $aaUng of its own software applications
orservices that interface orinhemporouawith the Licensed
Software. For o|arity, o development License Type does
not include or imply any rights to reverse engineer or
create derivative works ofthe Licensed Software.
(e) Demonstration. Adnmom*radon License Type
allows Licensee to use the Licensed Software in a non -
production environment to demonstrate the Licensed
Software and, /f combined with a development License
Type. to demonstrate Licensee's own software
applications orservices that interface urintempano\e with
the Licensed SoMwam, in each 0000 for the purpose of
directly or indirectly encouraging third parties to |imnnoo
the Licensed Software from Nuvom or its authorized
channel partners. For o|arity, a demonstration License
Type does not include orimply any license rights under
Nov6tx'o tnudemarko, or any rights to sublicense or
distribute the Licensed Software. Licensee will make no
representations, wmrronhoo, orother statements regarding
the Licensed Software that are inconsistent with Nnvom'u
published literature nrthat state orimply any endorsement
by Novo1x or any authority to speak or act on Novntx'o
behalf.
(f) Other License Types. Kthe License Type is of
ukind not described above, the Licensed Software may bo
installed and used only to the extent and for the
purpooe(o)expressly described inthe Sales Order.
2.3 Use by Representatives. The license rights
granted above will extend to Licensee's emp|oy000,
agents, oonou|tantu, and independent nontractom, but
solely tothe extent they are acting onLicensee's behalf
and otherwise comply with the terms and conditions ofthis
Agreement. Lioon000 will be responsible for all of such
persons' acts and omissions in relation to the Licensed
Software as if they were Licensee's own mob and
omissions.
2.4 License Limits. Licensee acknowledges that the
pricing of the |ivanao granted under this Agreement is
based in part on the License Limits set forth in the Sales
Order.
(a) User Limits. Any stated limit on the number of
uoom indicates the maximum number ofindividuals who
may at any time possess login orodanda|o to aooeon or
use the Licensed Software under Licensee's license.
Multiple individuals may not share the name login
(b) Organizational Units. If the Sales Order
indicates that the license is for use byorfor any particular
organizational unit(s) (for oxump|e, a department or
division within Umanooe'o organization), then the license
granted hereunder extends only to use byorfor (en the
case may be) such organizational unit(a).
(c) Organization Size. Any stated limit on the size
oyLicensee's organization orapplicable organizational unit
shall, unless otherwise provided inthe Sales Order, refer
to the total number of individuals employed by or
otherwise regularly working within that organization or
organizational unit.
(d) Increasing License Limits. |fany change (such
as any increase in the number /f uuam or growth of
Licensee's organization) would cause the License Limits
to be axoeoded, then in order to continue using the
Licensed Software, Licensee must increase the License
Limits commensurate with those changes, byexecuting o
new or revised Sales Order with Novotx and paying the
corresponding additional fees that are then ineffect.
2.5 Restrictions. Licensee moknmv|odgoo that the
Licensed Software and its atruouue, organization, and
source code constitute valuable trade secrets ofWovotx
and its licensors, Except as expressly permitted by this
Agreemen1. Licensee agrees that Licensee shall not, and
nhoU not permit any third party that acquires m000ao
through its relationship with Licensee, to: (i)modify, adapt,
a|ue,, trano|ate, or mnaoa dnhvmUva works of the Licensed
Software; (ii) oub|inenee, diothbuh*, aeU, use for service
bureau use, |eaua, rent, kmn. o,otherwise transfer the
Licensed Software Voany third party; (iii)reverse engineer,
d000mpi|e, divaooemb|o, or otherwise attempt on derive
the source code for the Licensed Software (except huthe
oxtent, if any, that applicable law prohibits restrictions on
such activities); (iv) emovn, m|tor, cover orobfuscate any
copyright notices or other proprietary rights notices
included in the Licensed Software; or (v) otherwise install,
configure, reproduce, or use the Licensed Software except
as expressly permitted under Section 2.1.
2.6 Reservation of Rights. As between the parties,
the Licensed Software, and all worldwide intellectual
property rights therein, are the exclusive property of
Novotx and its licensors. All rights in and to the Licensed
Software not expressly granted to Licensee in this
Agreement are reserved by Novotx and its licensors.
Novotx shall have the unrestricted right to use or act upon
any suggestions, ideas, enhancement requests, feedback,
recommendations or other information provided by
Licensee or any other party relating to the Licensed
Software, except to the extent, if any, that it contains
Confidential Information of Licensee that is not specifically
related to the Licensed Software, as acknowledged by
Novotx in writing.
3. DELIVERY AND ACCEPTANCE
3.1 Delivery. Novotx will deliver the Licensed
Software to Licensee by making it available for download
by Licensee, or by installing it via remote access to
Licensee's designated server(s), as specified in the Sales
Order or otherwise mutually agreed by the parties.
Licensee agrees to provide Novotx will all cooperation
reasonably necessary to enable such delivery, and
acknowledges that installation or other implementation
services by Novotx may be subject to additional fees, as
specified in the Sales Order or a separate services
agreement between the parties.
3.2 Additional Materials. The Licensed Software
may be accompanied by, or Novotx may separately make
available to Licensee, Documentation, additional software,
software developer kits, APIs, scripts, templates, and/or
other materials that relate to the Licensed Software
(collectively, "Additional Materials"). The Additional
Materials may be furnished under separate licensing terms
(including open -source license terms, where applicable),
and you agree to read and comply with any such terms as
they apply to the Additional Materials. Except as otherwise
provided in any such licensing terms (as applicable), or in
the absence of such terms, you may use the Additional
Materials only in support of your authorized installation,
configuration, and use of the Licensed Software, and such
Additional Materials will be subject to the same restrictions
and reservations of rights that apply to the Licensed
Software as set forth in this Agreement.
3.3 Acceptance. The Licensed Software will be
deemed accepted upon delivery as set forth above, except
to the extent otherwise expressly agreed in the Sales
Order. In any event, the Licensed Software will be deemed
accepted no later than Licensee's deployment or use
thereof in a production environment.
4. TRAINING; MAINTENANCE AND SUPPORT
4.1 Training Services. Novotx will provide the
training services defined in the applicable Sales Order, if
any, in exchange for the fees specified therein. Licensee
will be invoiced separately for any travel related expenses
incurred by Novotx employees in connection with any such
training services.
4.2 Maintenance and Support. If the License Type
is a production license or other form of paid license,
Novotx will provide Licensee with application maintenance
and technical support services for the Licensed Software
("Maintenance and Support") as described in the
attached Exhibit A, subject to Licensee's payment of all
applicable fees as provided therein.
5. FEES AND PAYMENT
5.1 Fees. Licensee will pay the license, Maintenance
and Support, and other fees specified in the original Sales
Order and any revised or subsequent Sales Orders
executed by both parties.
5.2 Payments. The fees will be payable in
accordance with the payment schedule, if any, specified in
the applicable Sales Order. If not otherwise specified in
the Sales Order: (i) license fees are due and payable in
advance at the beginning of the License Term and, if
applicable, each renewal period; and (ii) Maintenance and
Support fees, if applicable, are due and payable in
advance at the beginning of the relevant Maintenance and
Support period, as more fully set forth in the attached
Exhibit A. All payments must be made in U.S. dollars.
Any amounts not paid within thirty (30) days of the invoice
date will accrue interest at the lesser of one and one-half
percent (1.5%) per month or the maximum rate permitted
by applicable law, from the due date until paid. Licensee
shall reimburse Novotx for all its costs and expenses,
including reasonable fees of its legal counsel, reasonably
incurred by Novotx in collecting any amounts past due
from Licensee that are not subject to good faith dispute.
5.3 Price Changes. Novotx's prices are subject to
change, except as otherwise agreed in the Sales Order.
Any periodic license or Maintenance and Support
renewals, and any increase in License Limits, will be
charged at the fees then in effect. By permitting the
License Term or Maintenance and Support term to renew
after being informed of any price change, Licensee agrees
to pay the updated fees upon such renewal.
5.4 Taxes. Fees exclude, and Licensee will bear, all
applicable sales, use, and other taxes and all applicable
export and import fees, customs duties and similar
charges. When applicable, Novotx may include any taxes
that it is required to collect as a separate line item on an
invoice.
5.5 Audit Rights. On Novotx's request, no more
frequently than annually, Licensee shall furnish to Novotx
an executed certification: (i) verifying that the Licensed
Software is being used pursuant to the terms of this
Agreement; (ii) verifying the number of users or metrics
relevant to the applicable License Limits; and (iii) listing
the site(s) where the Licensed Software is installed.
Licensee agrees to grant Novotx reasonable access to
Licensee's relevant site(s), systems and personnel upon
two (2) weeks prior written notice during normal business
hours to audit the use of the Licensed Software for the
purpose of verifying compliance with this Agreement.
6. WARRANTY AND DISCLAIMERS
6.1 Performance Warranty. If the License Type is a
production license, for a period of -ninety (90) days after
the Licensed Software is first accepted under Section 3.3
(the "Warranty Period"), Novotx warrants that the
Licensed Software, when used as permitted by Novotx
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and in accordance with Who Documaotabon, will operate
substantially an described in the DocumontaUon. Novotx
does not warrant that the functions provided by the
Licensed Software will meet all of the requirements of the
Licensee or that the Licensee's use of the Licensed
Software will be error -free or uninterrupted. If the
foregoing warranty in breaohnd. NovutxwiU. atits expense
and for cure period ofsixty (OO)days after written notice
of the bmooh, use commercially reasonable efforts to
correct any material, reproducible error in the Licensed
Software reported to Novotxby Lioonuoo in writing during
the Warranty Period. |fNovutxiu unable to remedy the
breach ofthis warranty within the sixty (00)day cure
period, Licensee ahm|| have the right to terminate this
license upon the end of such cure period for refund of
Licensee's prepaid license fees. The foregoing sets forth
Novotx'usole obligation and Licensee's exclusive remedy
for any breach ofwarranty. Any error corrections, updates,
or the like provided to Licensee will not extend the
Warranty Period. The limited warranty granted under this
Section does not extend to: (i) changes or errors in the
operating system or hardware on which the Licensed
Software operates; (ii) problems caused by the improper
installation or use of, or any u|termUnna to. the Licensed
Software by Licensee orany third party receiving occana
to the License Software through Licensee; (iii) problems
caused by any data input into the Licensed Software; or
(iv) problems oouuod by third -party mquipment, oofmvare,
or services, including but not limited to any unavailability
of, errors in, o,changes Voany Online Services.
6.2 No Other VVorronbww. THE EXPRESS
WARRANTIES IN SECTION 8.1 ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS. IMPLIED OR
STATUTORY, REGARDING THE LICENSED
SOFTWARE, ADDITIONAL MATERIALS, MAINTENANCE
AND SUPPORT, AND OTHER SERVICES FURNISHED
HEREUNDER. AND NOVOTX EXPRESSLY DISCLAIMS
ALL OTHER WARRANTIES, INCLUDING ANY
WARRANTIES OFMERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SECUR|TY, TITLE AND NOW
INFRINGEMENT OFTHIRD PARTY RIGHTS. LICENSEE
ACKNOWLEDGES THAT IT HAS RELIED ON NO
WARRANTIES OTHER THAN THE EXPRESS
WARRANTIES PROVIDED HEREIN AND THAT NO
WARRANTIES ARE MADE HEREIN BY ANY OF
NOVOTX'8L|CEN3URS.
6.3 Online Services. Any Online San,ioma that
Nuvotx |ovanogom or makes accessible through the
Licensed Software will be obtained from sources believed
to be reliable, but their avai|abi|i1y, acuunooy,
uomp|etanaou, tine|ineon, and suitability are not
guaranteed. Licensee agrees that Novoo' is not
responsible -for the Online Son/ineu, for any change,
intannpUon, ennr, or discontinuation of any Online
Semioeu, or for any resulting adverse effects upon the
performance oroutput ofthe Licensed Software.
6.4 Licensee Responsibilities.
(a) Business Expertise; Suitability. Linwn000
acknowledges that the Maintenance and Support and
other services furnished hereunder are provided to monio1
Licensee in the use of the Licensed Software and not as a
replacement for Licensee's expertise and knowledge of its
business. Licensee assumes all risks associated with the
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manner and application(s) in which it chooses to use or
rely upon the Licensed Software. Licensee iaresponsible
for confirming the aoounuoy, ouf5cinnny, time|inesy, and
suitability of any output of the Licensed Software before
acting or relying upon the same in any way that could
cause property damage, personal injury, economic loss, or
other harm. Licensee shall not use the Licensed Software
inapplications orenvironments requiring fault -tolerant or
fail-safe performance.
(b) Professional Advice. Given the complex and
changing nature of laws, rules and regulations, the
Licensed Software and Maintenance and Support may not
ro0eut, and cannot ensure licensee's compliance with, all
applicable legal requirements, Novgx is not rendering
accounting, box. |eOa|, or other professional advice. The
anftwmna and onmi000 furnished by Novnt". and the
information obtained through use of the Licensed
8ofmvam, should not be used as a substitute for
consultation with professional accounting, tax, |ngn| or
other competent advisers.
(c) Input and Configuration. Licensee is ao|o|y
responsible for any data input into the Licensed Sofwano,
for providing all necessary intornotconnectivity and other
infrastructure or system resources necessary for proper
operation of the Licensed Softmare, and for the moounaoy
and suitability of any configuration of the Licensed
Software requested or made by Lioonoon, including
situations where Novotx has worked with licensee to
configure the Licensed Software at Licensee's request.
Licensee should perform u complete review and testing of
the Licensed Software and any Additional K4ateriu|o, as
each may be updated from time to time, bnhnm
implementing or using the same in u production
environment.
(d) Security. Licensee agrees that it has full
responsibility for the security of its systems and data.
7. INDEMNITIES
7.1 Infringement Claims. Novotx will defend at its
'own expense any action against Licensee brought by m
third party to the extent that the action is based upon a
o|uim that the Licensed Software infringes any patents or
any copyrights or misappropriates any trade secrets of
third party, and NovotxwiU pay those costs and damages
finally awarded against Lioeoaoo in any such action that
are specifically attributable to such claim or those costs
and damages agreed to in o monetary settlement ofsuch
action. If the Licensed Software becomes. or in Novotx'a
opinion is likely to bocomo, the subject of an infringement
o|aim. Novotx may, at its option and expense, either: (i)
procure for Licensee the right to continue using the
Licensed Software; (ii) replace or modify the Licensed
Software so that it becomes non -infringing; or(iii) accept
return ofthe Licensed Software, terminate this Agreement
in whole or in port as appropriate upon written notice to
Licensee, and refund to Licensee a pro -rota portion of the
fnoa paid for such Licensed Snfhvano (if any) to reflect the
period of lost use. If the License Tenn is porpe\ua|, such
pro-naba refund will be computed according toathirty-six
(36) month straight-line amortization schedule beginning
upon delivery of the Lionnong Software; otherwise, the
pro-nuta refund will be the unused portion of license fees
paid for the period affected by the termination.
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Notwithstanding the foregoing, Novotx will have no
obligation under this Section 7.1 or otherwise with respect
to any infringement claim based upon: (i) use of the
Licensed Software not in accordance with this Agreement;
(ii) use of the Licensed Software in combination with
products, equipment, software, data, or services not
supplied by Novotx; (iii) use of any release of the Licensed
Software other than the most current release made
available to Licensee; or (iv) modification of the Licensed
Software by any person other than Novotx or its
authorized agents or subcontractors. THIS SECTION 7.1
STATES NOVOTX'S ENTIRE LIABILITY AND
LICENSEE'S EXCLUSIVE REMEDY FOR ANY CLAIMS
OF INFRINGEMENT.
7.2 Third -Party Claims. Licensee will defend at its
own expense any action against Novotx brought by a third
party arising out of Licensee's use of the Licensed
Software except to the extent that the action is covered
under Section 7.1, and Licensee will pay those costs and
damages finally awarded against Novotx in any such
action that are specifically attributable to such claim or
those costs and damages agreed to in a monetary
settlement of such action.
7.3 Conditions. The indemnifying party's obligations
under this Section 7 are conditioned on the other party: (i)
notifying the indemnifying party promptly in writing of the
action for which defense or indemnity is sought; (ii) giving
the indemnifying party sole control of the defense thereof
and any related settlement negotiations; and (iii)
cooperating and, at the indemnifying party's request and
expense, assisting in such defense.
8. LIMITATION OF LIABILITY. NOVOTX'S TOTAL
CUMULATIVE LIABILITY IN CONNECTION WITH ANY
LICENSED SOFTWARE, ADDITIONAL MATERIALS, OR
MAINTENANCE AND SUPPORT OR OTHER SERVICES
PROVIDED UNDER THIS AGREEMENT, WHETHER IN
CONTRACT, TORT OR OTHERWISE, WILL NOT
EXCEED THE AMOUNT OF FEES PAID BY LICENSEE
TO NOVOTX UNDER THIS AGREEMENT FOR THE
LICENSE OF THE LICENSED SOFTWARE OR (IF
APPLICABLE) FOR THE RELEVANT SERVICES. IN NO
EVENT WILL NOVOTX BE LIABLE TO LICENSEE OR
ANY THIRD PARTY CLAIMING THROUGH LICENSEE
FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY,
PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, OR
FOR ANY LOST, DAMAGED OR CORRUPTED DATA,
LOST PROFITS, LOST BUSINESS OPPORTUNITIES,
LOSS OF GOODWILL OR REPUTATION, BUSINESS
INTERRUPTION, WASTED MANAGEMENT TIME, DATA
CONVERSION ISSUES, DAMAGE TO LICENSEE'S
COMPUTERS OR COMMUNICATIONS NETWORK, OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES, ARISING FROM OR RELATING TO
THIS AGREEMENT OR THE LICENSED SOFTWARE,
ADDITIONAL MATERIALS, MAINTENANCE AND
SUPPORT, OR OTHER SERVICES PROVIDED
HEREUNDER, HOWEVER CAUSED AND UNDER ANY
THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED
TO NEGLIGENCE, TORT, INTENTIONAL
MISCONDUCT, STRICT LIABILITY, CONTRACT OR
OTHERWISE, EVEN IF SUCH DAMAGES WERE
FORESEEABLE OR NOVOTX HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
9. CONFIDENTIALITY
9.1 Confidentiality Obligations. Each party agrees
to maintain any Confidential Information received from the
other party in confidence using the same degree of care
that it uses to maintain its own Confidential Information in
confidence, but in no event not less than reasonable care.
The recipient of any Confidential Information shall not
disclose such Confidential Information to any third party
without prior written approval of the disclosing party or use
such Confidential Information for any purpose not
contemplated by this Agreement. The foregoing
restrictions shall not apply to any information for which the
receiving party can document: (i) was already lawfully
known to the receiving party at the time of disclosure by
the disclosing party; (ii) is disclosed to the receiving party
by a third party who had the right to make such disclosure
without any confidentiality restrictions; (iii) is, or through no
fault of the receiving party has become, generally
available to the public; or (iv) is independently developed
by the receiving party without access to, or use of, the
disclosing party's Confidential Information. In addition, the
receiving party may disclose Confidential Information of
the other party to the extent required by applicable law or
regulation; provided that the party required to make such
disclosure gives the other party prompt written notice and
sufficient opportunity to object to such disclosure, or to
request confidential treatment.
9.2 Return of Confidential Information. The
receiving party will return to the disclosing party or destroy
all Confidential Information of the disclosing party in the
receiving party's possession or control and permanently
erase all electronic copies of such Confidential Information
promptly upon the written request of the disclosing party
upon the expiration or termination of the Agreement. The
receiving party will certify in writing signed by an officer of
the receiving party that it has fully complied with its
obligations under this Section 9.2.
10. TERM AND TERMINATION
10.1 Term. The term of the Agreement will begin on
the Effective Date and will continue in force until the
expiration of the License Term (as the same may be
renewed in accordance with this Agreement) or indefinitely
if the License Term is perpetual, subject to termination as
provided in Section 10.2.
10.2 Termination.
(a) For Breach. Either party may terminate the
License Term and this Agreement if the other party
breaches any material provision of the Agreement and
does not cure such breach within thirty (30) days after
receiving written notice thereof.
(b) Evaluation Licenses. If the License Type is a
non -production beta and/or evaluation license, the License
Term and this Agreement may be terminated by Novotx at
any time, and will automatically expire (without renewal
option, unless otherwise specified in the Sales Order) at
the end of the stated License Term. License is under no
obligation to purchase a paid license during the evaluation
License Term, but must do so in order to continue using
the Licensed Software after the evaluation License Term
ends.
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10.3 License Renewal. If the License Term is not
perpetual, it will be renewable (i.e., subscription -based) or
non-renewable (i.e., fixed -term) as specified in the Sales
Order. If not so specified, it will be presumed to be
renewable if the License Type is a production license or
non-renewable otherwise. If the License Term is
renewable, it will automatically extend for successive
renewal periods, each equal to the initial license duration
stated in the Sales Order (unless otherwise indicated
therein), unless and until either party notifies the other of
non -renewal at least thirty (30) days in advance. Either
party may exercise its non -renewal right for any reason or
no reason.
10.4 Effects of Termination. Upon termination or
expiration of the Agreement for any reason: (i) any
amounts owed to Novotx under this Agreement before
such termination or expiration will be immediately due and
payable; (ii) all license rights granted in the Agreement will
immediately cease to exist; and (iii) Licensee must
promptly discontinue all use of the Licensed Software,
erase all copies of the Licensed Software from Licensee's
computers, and return to Novotx or destroy all copies of
the Licensed Software on tangible media in Licensee's
possession. For avoidance of doubt, termination of this
Agreement will not preclude either party from pursuing any
available legal remedies for any default of the other party's
obligations.
10.5 Survival. Sections 0, 2.6, 5.3, 5.5, 6.1, 6.3, 7, 8,
9, 10.4, 10.5, and 11, together with any accrued payment
obligations, will survive expiration or termination of the
Agreement for any reason.
11. GENERAL
11.1 Assignment. Except as permitted below, this
Agreement may not be assigned or transferred by either
party without the other party's prior written consent, and
any attempt to do so will be void. Either party shall have
the right to assign this Agreement to any successor to its
business or assets to which this Agreement relates,
whether by merger, sale of assets, sale of stock,
reorganization or otherwise; provided, however, that
Licensee may not transfer this Agreement, by assignment,
merger, change of control, operation of law, or otherwise,
to any software company or competitor of Novotx. In the
event of an assignment, merger or change of control of
Licensee, Licensee will promptly notify Novotx of the
transaction, consult with Novotx regarding the anticipated
impact of such transaction in relation to the License Limits
and other restrictions of this Agreement, and take all
actions (including those described in Section 2.4(d))
reasonably necessary in order to remain in compliance
with this Agreement.
11.2 Notices. Any notice required or permitted by this
Agreement will be in writing and will be deemed effective
upon receipt, when sent by confirmed email or when
delivered in person or by express delivery service, or
mailed, first class, registered or certified mail, postage
prepaid, to the address of the party specified in this
Agreement or such other address as such party may
specify in writing.
11.3 Governing Law and Arbitration. This
Agreement will be governed by and interpreted in
accordance with the laws of the State of Utah, without
reference to its choice of laws rules. The prevailing party
in any dispute under this Agreement will be entitled to
recover from the other party its reasonable attorney fees
incurred with respect to that dispute.
11.4 Waivers. All waivers must be in writing to be
effective. Any waiver or failure to enforce any provision of
the Agreement on one occasion will not be deemed a
waiver of any other provision or of such provision on any
other occasion.
11.5 Severability. If any provision of the Agreement is
unenforceable, such provision will be changed and
interpreted to accomplish the objectives of such provision
to the greatest extent possible under applicable law and
the remaining provisions will continue in full force and
effect.
11.6 Force Majeure. No party shall be liable for failure
or delay in performing its obligation (other than payment of
money) for causes beyond its reasonable control.
11.7 Entire Agreement; Counterparts. This
Agreement, together with any Exhibits and related Sales
Orders, constitutes the entire agreement between the
parties regarding the subject hereof and supersedes all
prior or contemporaneous agreements, understandings,
and communication, whether written or oral. This
Agreement shall not be modified except by a subsequently
dated written amendment signed by an officer of Novotx
and a duly authorized representative of Licensee. This
Agreement may be executed in counterparts, which taken
together shall form one legal instrument.
The parties by their authorized representatives have entered into this Agreement as of the Effective Date.
NOVOTX LLC
Signed:
Name:
Title:
Date:
President
Justin Gough
12/26/2017
LICENSEE:
Signed:
Nami
Title:
Date:
6
Exhibit A
Maintenance and Support
Novotx will provide technical support and maintenance services for the Licensed Software based upon the following terms and
conditions and those set forth in the Software License Agreement ("Agreement") to which this Exhibit is attached. Capitalized
terms used but not defined in this Exhibit have the meanings given in the Agreement.
1. Technical Support Services: Technical support
services shall include call management, entitlement
verification, issue prioritization, basic installation
assistance, issue analysis, program error re-creation,
application diagnostics and the corresponding resolution
of such issue or issues through operational instruction,
work-arounds, or corrections to the object code of the
application. Training, implementation, configuration, and
customization services are outside the scope of technical
support, and are subject to additional charges.
2. Maintenance Services: Maintenance services shall
include delivery of all updates (as described below) for the
Licensed Software that are commercially released during
the term of Licensee's Maintenance and Support
entitlement. Updates consist of new releases that may
provide functional enhancements and error corrections.
New products, separately serialized modules, and
software customizations are not considered updates and
are not included in the maintenance services. Licensee
will have sole responsibility for the installation of any
updates.
3. Scope of Services: Services will be provided during
Novotx's normal hours of operation, Monday through
Friday from 7:00 AM to 6:00 PM Central Time, excluding
national holidays. Basic services will include unlimited
phone and email access to technical support as well as
online access to Novotx's client services website.
Enhanced services may also be made available by Novotx
from time to time and contracted by Licensee.
4. Term: Subject to the terms of the Agreement and
Licensee's payment of all fees specified below, Licensee
is entitled to receive the Maintenance and Support
described herein: (i) for the duration of the License Term if
the License Term is fixed -term or subscription -based; or
(ii) for a period of one year, measured from the the end of
the Warranty Period (and subject to renewal as provided
below), if the License Term is perpetual.
5. Annual Renewal of Service: If the License Term is
perpetual, then thirty (30) days prior to the annual
expiration date of Maintenance and Support service,
Novotx will invoice Licensee for the annual renewal of
service pursuant to the current terms, conditions and
pricing then in effect. Such service will be automatically
renewed unless canceled in writing by Licensee prior to
the annual expiration date or in the event of non-payment
by the renewal date.
6. Fees: Fees for Maintenance and Support services
are: (i) included in the fees paid for a fixed -term or
subscription -based license to the Licensed Software
(provided such license is not granted free of charge); or (ii)
charged on an annual basis, in an amount equal to twenty
percent (20°/a) of the then -current list price of the Licensed
Software (or the most recent list price if the Licensed
Software version being used is no longer available for sale
by Novotx) if the License Term is perpetual. The annual
fee for Maintenance and Support in connection with
perpetual license will be calculated as of the beginning of
the annual period based upon the list price of the Licensed
Software as if a perpetual license were being purchased at
such time. Licensee will be invoiced for annual renewals
on or before the date of expiration of the then current term.
Novotx reserves the right to amend its fees annually with
prior written notice and Licensee shall have the right to no
longer subscribe for Maintenance and Support.
7. Applicability to Free Licenses: If the license for the
Licensed Software is granted free of charge, Licensee will
not be entitled to Maintenance and Support unless
expressly agreed by Novotx in the Sales Order, in which
case fees for Maintenance and Support will be as set forth
in the Sales Order, subject to change as provided above.
8. Exclusions: Novotx has no obligation to perform
technical support services related to: (i) hardware,
software, data, or services not supplied by Novotx
(including but not limited to Online Services); (ii)
modifications or customizations made to the Licensed
Software by anyone other than Novotx or its
representatives; (iii) installation or use of the Licensed
Software other than as authorized in the Agreement and
described in the Documentation; or (iv) Licensee's failure
to implement error corrections, work-arounds, or updates
furnished by Novotx (collectively, the "Excluded
Causes"). Without limiting the foregoing, Novotx reserves
the right to charge Licensee additional fees for services
rendered in connection with reported program errors that
are subsequently determined to have been due to any of
the Excluded Causes. Any such fees will be charged on a
time -and -materials basis.
9. Payment: Licensee is responsible for the full
payment, including any applicable sales and/or use taxes,
for services received. Licensee's Maintenance and
Support entitlement shall immediately expire if payment is
thirty (30) days past due. If Licensee cancels services at
any time, no refund, pro -rated or otherwise, will be
provided.
10. Reinstatement of Services: In the event of
cancellation of or non-payment for Maintenance and
Support, any subsequent renewals will be subject to a
reinstatement charge of 25% of the then -current Licensed
Software perpetual license fee, plus any unpaid historical
and current annual fees.
11. Registered Users: Licensee shall provide and
maintain a list of registered users that may be contacted
by Novotx in relation to Maintenance and Support.
Licensee may amend the list of registered users at any
time by providing written notice to Novotx.
12. Conditions of Service: The receipt and use of the
Licensed Software and associated Maintenance and
Support is subject to the terms and conditions of the
original Agreement and Licensee's adherence to
associated documentation and maintenance of the system
requirements of the Licensed Software. Novotx reserves
the right to suspend Maintenance and Support for any
outdated versions of the Licensed Software with prior
notification to Licensee.
8
Sales Agreement 1 City of McCall, ID
Novotx, L.L.C.
1436 Legend Hills Drive, Suite 335
Clearfield, UT 84015
801.682.1400
September 12, 2013
Customer Information
City of McCall, ID
216 East Park Street
McCall, ID 83638
(208) 634-3458
Project Description
Peter Borner
Public Works Director
(208) 634-3458
pborner@mccall.id.us
Elements XS Site License for up to 30 users with Caselle and ArcGIS Server 10.1 integration.
Products & Services
Quantity Rate
Total
Software Licenses
Elements XS Site License
• Up to 30 Users
• Caselle Integration (Read Only)
• ArcGIS Server 10.1 Integration (Read / Write)
Training & Implementation
Project Management
Business Requirements and Gap Work
Application Installation & Configuration
GIS Configuration and Consulting " 2
Inventory Configuration 1
Application Configuration Training 2
Reports Management and Generation Training 2
Custom Report Generation
3 $
Document Generation & Workflow Configuration 3
Onsite End User Training
Certified Product Testing and DB Admin Training 1 $
Go Live Support
Post Go Live Support
2
$30,000.00 $30,000.00
Days Rate Total
8 • $ 1,200 Included
2 $ 1,200 • $ 2,400
1,200 $ 3,600
1,200 ' $ 2,400
1,200 $ 1,200
1,200 ` $ 2,400
1,200 ` $ 2,400
1,200 $ 3,600
1,200 ` $ 3,600
1,200 $ 2,400
1,200 $ 1,200
1,200 $ 2,400
1,200 $ 1,200
Products & Services
Annual Maintenance
Annual Maintenance (20% of software value
Quantity Rate Total
$6,000.00 $0.00
Technical Support & Maintenance
Annual Maintenance fee includes application updates as well as phone, online, and email support. First
annual maintenance fee is due 12 months after software has been installed.
Travel & Related Expenses
Actual travel and related expenses will be billed as they occur.
Payment Terms & Additional Information
Payment for software is due upon contract signing. Remaining project balance to be paid
upon project completion.
,7:
Authorized Signature (City of McCall)
Autonzed Signature (Novotx, L.L.C.)
Date
Date
13
elements
Project Proposal
Asset & Work Management Software
City of McCall, ID
216 East Park St.
McCall, ID 83638
Sue DeVere
j sdevere@mccall.id.us
1208.634.8945
Payment Terms
Payment terms are outlined below.
Item Amount
ROW Permit Configuration I $6,000
Project Overview
Payment Terms
50% due upon contracting, 50% due upon project
completion.
This project includes the setup, configuration, and training for Right of Way Permitting in Elements X54. The current
paper process at the City will be replaced with an electronic process, integrated with GIS and utility billing, to better
manage fees, inspection timelines and responsibilities, and other permit -related follow up actions within the City.
Qty I Description Rate Total
5 I Daily billable rate for configuration of ROW permitting in Elements XS4 $1,200 $6,000
Terms of Sale
Company has ordered and agrees to purchase from Novotx the products and services defined under this Sales
Agreement at the listed quantities and rates. Upon receipt of an executed Sales Agreement Novotx shall ship all products
to the Company address and contact defined above and services shall be scheduled and initiated.
Company acknowledges that Novobes products and services are subject to the terms and conditions of a separate
Software License Agreement between the Company and Novotx unless they are contrary to this Agreement. Novotx
hereby disclaims all representations and warranties with respect to any product which is not manufactured or otherwise
created by Novotx, whether express, implied or statutory including but not limited to, any warranties of merchantability,
fitness for a particular purpose, title or non -infringement.
Payment for products and services shall be made by the Company based on the Payment Terms defined in the Sales
Agreement. Company understands and agrees that it is responsible for paying any sales, use, excise or transaction taxes
with respect to the products and services under this Sales Agreement. If Company is tax exempt, company shall provide
Novotx with such tax exemption documentation, If Company is not tax exempt or does not provide exemption
documentation, Novotx shall invoice for such applicable taxes on each invoice. In the event that Novotx does not invoice
sales or similar taxes to Company and such taxes are ultimately determined to be due by a government entity or court of
law, Company agrees to pay in full all such taxes, including any applicable interest or penalties. In the event the tax
exemption documentation provided by the Company is disallowed or deemed invalid, Company agrees to pay in full all
such taxes, including any applicable interest or penalties.
Page 2
elements XS
Additional Transaction Terms
Asset & Work Management Software
ESRI's ArcGIS for Server Standard together with ArcGIS Desktop Standard or higher is required for this Elements XS
deployment. The pricing here does not include this software and the Customer is responsible for purchasing, installing,
and maintaining these applications.
Additional consulting or services beyond the scope of this sales agreement will be billed at $1,200 per day; any additional
fees beyond the scope of this agreement will require separate Sales Agreements and must be approved by the Customer
prior to performing the services. Hourly service rates are $150 per hour for services that require less than 1 day.
Services beyond the scope of this agreement include:
• Any scripts, interfaces, reports or program code requested by the Licensee, other than Program Modifications to
the Elements XS applications that provide specific functionality uniquely designed for the Licensee
• Consulting services for Custom Applications or Custom Programming performed specifically for the Licensee
Quote Expiration
This quote is valid for 30 days.
Execution Instructions
Execute each page, date, and email to lustin@novotx.com
The undersigned has purchasing authority for the Company above and agrees to purchase the products and services
listed.
Name Jackie J. Aymon
Title
Signature
Date
Mayor
eptember 7, 201
Page 3