HomeMy WebLinkAboutTokay Software agreement - signedTokay Software End Leser License Agreement - Terms and Conditions
1.. Grant of License. Tokay Software hereby grants to The City of Auburn a limited, perpetual, non-exclusive, non-
transferable (except as set forth in Section 4(b) below) license to Use the Software on the terms and conditions set forth in
this End User License Agreement ("Agreement").
2. Introduction.
(a) Tokay Software grants The City of Auburn a license of the scope described herein to Use the Software comprised of
the Program and the Documentation) only upon the conditions that The City of Auburn or someone acting on The City of
Auburn's behalf and at The City of Auburn's direction has:
(1) Placed an order with Tokay Software for either an initial license or an upgrade (such as for more users, additional
modules, etc.), or a support plan for future maintenance releases ("Maintenance Software") and/or for Water
Purveyor support, and Tokay Software has accepted such order and Enabled Use of the Software; and
(2) Accepted all of the terms and conditions of this Agreement either before or during installation of the Program.
(b) THE CITY OF AUBURN WILL INDICATE ITS ACCEPTANCE OF THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS
BY DOING ONE OR MORE OF THE FOLLOWING OR ALLOWING OR AUTHORIZING A THIRD PARTY TO DO IT FOR THE CITY OF
AUBURN:
(1) CLICKING "I AGREE" ORA SIMILAR AFFIRMATION, AS APPLICABLE, THAT APPEARS DURING INSTALLATION OF
THE PROGRAM, OR
(2) USING THE PROGRAM.
(c) IF THE CITY OF AUBURN DOES NOT AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT (IN ITS ENTIRETY AND
WITHOUT CHANGE TO OR ADDITION TO ITS TERMS AND CONDITIONS), THEN THE CITY OF AUBURN DOES NOT HAVE A
LICENSE TO USE THE SOFTWARE,
3. Definitions. As used herein, the following terms have the following meanings:
(a) "Affiliate" means any entity that controls The City of Auburn, that The City of Auburn control or that is under common
control with The City of Auburn where "control" means the ownership, directly or indirectly, of equity securities or other
ownership interests which represent more than 50% of the voting power of such affiliate.
(b) "Documentation" means the Program specifications that are set forth in the help files of the Program and any release -
related notes, guides or manuals Tokay Software publishes specific to the current version of the Program.
(c) "Enabled Use" means Tokay Software's having fulfilled the applicable software delivery process (whether by shipping
tangible goods including recorded media containing the Software, enabling downloading of the Software, delivering
activation codes for the Software, or otherwise), thereby enabling Use of the Software.
(d) "Error" means a reproducible failure of the Licensed Software to perform in substantial conformity with the Licensed Software
specifications set forth in the corresponding User's Manual, help files or other printed documentation.
(e) "Maintenance Software" means Software that Tokay Software delivers because The City of Auburn have
purchased a subscription to a support plan,
(f) "Program" means the computer program, a part of which includes the install routine that when executed causes this
Agreement to be displayed.
(g) "Tokay Software" means the Tokay Software company that publishes the Software.
(h) "Software" means collectively, the Program and the Documentation, and any part thereof.
(i) "Supplemental License Terms" means the additional terms and restrictions that are specific to the Program licensed by
The City of Auburn under this Agreement.
Il) "Use" means to install and execute the Program, provided that:
(1) The City of Auburn installs the Program only on a computer system that The City of Auburn owns or only on a
computer system not owned by The City of Auburn if The City of Auburn will be the only party with access to the
installed Program, and
(2) The City of Auburn executes the Program (i) for its intended purpose solely in connection with the management
of the organization that The City of Auburn and The City of Auburn's Affiliates conduct, and (ii) solely to the
extent of any and all applicable limitations (whether as to specific modules or other parts of the Program, or
number of production or backup server computers) set forth in this Agreement and the Supplemental License
Terms; and
(3) The City of Auburn may.make only a reasonable number of backup copies of the Program solely for the purpose of
reinstalling the Program, if reinstallation becomes necessary; and
(4) The City of Auburn may make one copy of the Program for Use in a testing environment solely for testing purposes; and,
(5) The City of Auburn may make and install one copy of the Program at a disaster recovery site for The City of Auburn's
use only for so long as a disaster or other emergency prevents the City of Auburn from Using the Program at the
City of Auburn's original installation site.
(k) "The City of Auburn" or "The City of Auburn's" means or refers to the organization or person that Tokay Software has registered
as the licensee for the Software.
4. Limits of License. The license contained in this Agreement does not include the right to perform, and The City of
Auburn agrees to refrain from performing, any of the following:
(a) Except as expressly set forth in section 3(j) above, making any copy of the Software, except as an essential step in The
City of Auburn's licensed Use thereof.
(b) Distributing any copy of the Software (whether by renting, leasing, lending, sublicensing, time-sharing, or otherwise), except
that, if Tokay Software consents in writing, which consent will not be unseasonably denied. The City of Auburn may transfer the
Software to a purchasing party after the close of a sale of either The City of Auburn's entire organization, or all, or substantially all, of
the assets of The City of Auburn's organization, provided that the purchasing party reads and accepts (in writing to Tokay Software) the
terms and conditions of this Agreement, the purchasing party agrees to other reasonable transfer requirements, and The City of Auburn do
not retain a copy of the Software.
(c) Using the Software for personal, family, household, or other non -business purposes;
(d) Altering, modifying, translating, decompiling, disassembling or reverse -engineering the Software or creating any derivative work
based upon the Software;
(e) Removing or obscuring any copyright or trademark notices from the Software.
(f) Using the Software in excess of (1) the limitations set forth in this Agreement and Supplemental License Terms, and (2) the number
and types of users, seats or licenses The City of Auburn purchase or rightfully acquire.
5. Additional Restrictions.
(a) Any report -writing software contained within the Program maybe subject to a restriction such that its use maybe limited to
accessing only the data that is created by, or used by, the Program;
(b) The City of Auburn may not Use, export, re-export or otherwise transfer the Software in violation of any domestic or foreign laws or
regulations in effect from time to time in the jurisdiction in which The City of Auburn are a resident or in which the Software is Used. The
City of Auburn represent and warrant that The City of Auburn is not located in, under the control of, a national or resident of, any restricted
country or of any entity or person designated as restricted.
6. U.S. Government Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S.
Government is subject to restrictions as set forth in paragraphs (a) --(d) of the Commercial Computer Software - Restricted Rights clause at
48 CFR 52.227-19, or Section 227.7202 of the DFARS. The Manufacturer is the Tokay Software company identified above, having a place of
business at 1 Edgell Road, Framingham, Massachusetts 10701.
7. Limited Warranty and Disclaimers.
(a) Tokay Software warrants that, during the one hundred and eighty (180) day period (the "Warranty Period") that commences on the
date that Tokay Software Enabled Use of the Software (whether for an initial license, an upgrade or a maintenance release under a
support plan), the Program, when properly Used, shall perform substantially in accordance with the Documentaticn.Tokay
Software does not warrant or represent that The City of Auburn's Use of the Program will be uninterrupted or error -free. If The City of
Auburn reports to Tokay Software in writing within the Warranty Period any non -conformity between the Documentation and
the Program, and if Tokay Software is able to replicate and verify that such non -conformity exists, Tokay Software shall make commercially
reasonable efforts to correct such non -conformity and, if successful, shall supply The City of Auburn with such correction at no additional
cost to The City of Auburn. If such efforts are unsuccessful and the non -conformity is material: (1) Except for Maintenance Software, The
City of Auburn may terminate this Agreement, discontinue Use of, and return all copies The City of Auburn has of the Software, and Tokay
Software will ensure that The City of Auburn receives a refund of the license fee The City of Auburn paid and credit for any license fee The
City of Auburn owes for the Software; and (2) For Maintenance Software, The City of Auburn may terminate The City of Auburn's support
plan, discontinue use of, and return all copies The City of Auburn has of the Maintenance Software, and Tokay Software will ensure that
The City of Aubum receives a refund of, or credit for, the service fee the City of Auburn incurred for the purchase of the most recent
support plan. The foregoing states The City of Auburn's SOLE AND EXCLUSIVE REMEDY for any breach of this warranty.
(b) With respect to any media by which The City of Auburn may have received The City of Auburn's installation copy of the Program,
Tokay Software warrants that the media is free from defects in materials and workmanship under normal use for the Warranty Period.
THE CITY OF AUBURNS SOLE AND EXCLUSIVE REMEDY under this warranty is limited to replacement of defective media.
(C) OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED ABOVE IN THIS SECTION, TOKAY SOFTWARE AND ITS SUPPLIERS EXPRESSLY
DISCLAIM TO THE FULLEST EXTENT PERMITTED BYLAW ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND
GUARANTEES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED AND STATUTORY, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTIES, CONDITIONS OR GUARANTEES (1) OF MERCHANTABILITY, (2) OF FITNESS FORA PARTICULAR PURPOSE, (3)
OF NON -INFRINGEMENT OF PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND (4) ARISING FROM CUSTOM OR
TRADE USE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. THE CITY OF AUBURN UNDERSTANDS AND AGREES THAT. (1)
THE CITY OF AUBURN IS SOLELY RESPONSIBLE FOR DECIDINGWHEN AND IF TO UPGRADE THE CITY OF AUBURNSSOFTWARE, AND (2) TOKAY
SOFTWARE DISCLAIMS ANY RESPONSIBILITY TO DELIVER LATER -RELEASED SOFTWARE OR OTHERWISE RENDER ANY WATER PURVEYOR
SUPPORT SERVICES EXCEPT AS MAY BE SPECIFIED IN A SEPARATE WATER PURVEYOR MAINTENANCE AND SUPPORT AGREEMENT.
(d) Other Limitations. Tokay Software will have no responsibility under these limited warranties for any Software or media that has been
modified, lost, stolen or damaged by accident, abuse or misapplication. No employee, agent or representative of Tokay Software or any
other third party, is authorized to make any warranty with respect to the Software, except those expressly stated in this Agreement,
and The City of Auburn may not rely on any such unauthorized wa rranty.
8. Exclusions of and Limitation of Liability.
(a) The City of Auburn acknowledges its understanding that software is inherently complex and may not be fres from errors, and that The
City of Auburn has been advised to verify the work produced by the Program. Neither Tokay Software nor its suppliers shall be liable for
any special, indirect, incidental, consequential or punitive damages resulting from any defect in the Software or media, even if Tokay
Software has been advised of the possibility of such damages. This means Tokay Software is not responsible or liable for damages or costs
incurred as a result of loss of time, loss of data, loss of anticipated profits, lost opportunity cost or loss of use of the Software, nor for
damages or costs incurred in connection with obtaining substitute software, claims made against The City of Auburn by others or similar
costs. IN NO EVENT SHALL TOKAY SOFTWARE'S LIABILITY TO THE CITY OF AUBURN ARISING OUT OF OR IN CONNECTION WITH THE
SOFTWARE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE LICENSE FEE ACTUALLY PAID BY THE CITY
OF AUBURN TO PURCHASE THE LICENSE FOR THE SOFTWARE. The City of Auburn acknowledges and agrees that this Agreement
allocates risk between The City of Auburn and Tokay Software as authorized by applicable law, and that the pricing of Tokay Software's
products reflects this allocation of risk and the exclusions and limitations of liability contained in this Agreement. If any remedy hereunder
is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall
remain in full force and effect.
(b) The City of Auburn acknowledges that unless The City of Auburn and Tokay Software agree in writing for Tokay Software to provide
software imp€ementation services to implement the Program at The City of Auburn's place of business, The City of Auburn is responsible for
engaging a qualified party to provide implementation services for The City of Auburn on its own terms to negotiate. The City of Auburn
also acknowledges that The City of Auburn is responsible for independently investigating the skills and qualifications of such third party to
ensure that they provide The City of Auburn with the level of skill and service The City of Auburn's organization requires. The City of
Auburn agrees that Tokay Software shall have no liability whatsoever for any failure associated with such implementation services, even if
the party The City of Auburn engages is an authorized or certified Distributor, consultant, or installer of Tokay Software products.
9. Indemnification.
(a) If The City of Auburn receives notice of any claim that The City of Auburn's use of any part of the Software infringes any third
party's intellectual property right in a patent, copyright, or trade secret, Tokay Software shall defend, and shall indemnify and hold The
City of Auburn harmless by paying any resulting costs and damages finally awarded by a court with respect to any such claim provided
that The City of Auburn:
(1) Notify Tokay Software in writing promptly upon becoming aware of the claim,
(2) At Tokay Software's request and expense, give Tokay Software such information and assistance as is reasonable under
the circumstances, and
(3J Give Tokay Software the right to settle the claim in Tokay Software's sole discretion and at Tokay Software's expense.
(b) This indemnification does not extend to any claim based upon any alleged infringement arising from the combination of the Software
with other elements not under Tokay Software's sole control, or arising from any part of the software that The City of Auburn or a t ird-
party modify, or that incorporates specifications, designs or formulas that The City of Auburn provide. If The City of
Auburn is prevented from Using the software because of an actual or claimed infringement, then at Tokay Software's
option, Tokay Software shall promptly either obtain for The City of Auburn the right to continue Using the affected part of
the Software, replace or modify the affected part of the Software so that it becomes non -infringing, or if none of the
foregoing alternatives are possible after Tokay Software exercises commercially reasonable efforts, The City of Auburn may
terminate this Agreement and any support plan, and Tokay Software shall ensure that The City of Auburn receive a refund
of, or credit for;
(1) the service fee The City of Auburn incurred for the purchase of The City of Auburn's most recent support plan; and
(2) a pro rata portion of the license fees The City of Auburn incurred for the purchase of The City of Auburn's initial license and
all upgrades, which pro rata portion will be determined on the basis of the remaining period of a useful life of (5) five years,
where the five year useful life begins on the date of The City of Auburn's purchase of The City of Auburn's initial license.
(c) THIS SECTION 9 SETS OUT TOKAY SOFTWARE'S ENTIRE FINANCIAL LIABILITY FOR ANY INTELLECTUAL PROPERTY
CLAIMS OR ACTUAL INFRINGEMENTS RELATING TO THE SOFTWARE.
(d) To the fullest extent permitted by law, The City of Auburn, agrees to indemnify and hold harmless Vendor, its officers,
agents, servants and employees against any and al! liability, judgments, costs, expenses, attorney's fees and other loss, and
against all claims or actions based upon or arising out of or resulting from (1) Water Purveyor's misuse or negligent or grossly
negligent use of the Software, or (2) Water Purveyor's breach of any of the material terms and conditions of this Agreement, or
(3) damage or injury (including death) to persons or property caused by or sustained by any backflow incident as the term
"Backflow" is defined here by the U.S. Environmental Protection Agency Office of Ground Water & Drinking Water: "The flow of
water or other liquids, mixtures or substances, under positive or reduced pressure in the distribution pipes of a potable water
supply from any source other than its intended source."
10. Jurisdictional Rights. This Agreement gives The City of Auburn specific legal rights, and The City of Auburn may also have other rights,
which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability
for incidental or consequential damages, so some or all of those sections of the Agreement may not apply to The City of Auburn.
11. Term. This Agreement is effective from the date of the City of Auburn's acceptance and continues in effect until terminated. The
City of Auburn may terminate this Agreement at any time, at which point The City of Auburn's license hereunder will terminate. This
Agreement and the license granted herein will terminate automatically and without notice if The City of Auburn fails to comply with
any term or condition of this Agreement. The City of Auburn agrees upon termination to return the original Software to Tokay
Software and to destroy all other Software copies in The City of Auburn's possession. Any provision in this Agreement which when
reasonably read is intended to survive the termination of this Agreement shall survive, including without limitation, the disclaimer of
warranties and limitations of liability.
12. Entire Agreement and Severability. This Agreement (including the Supplemental License Terms and the Proposal dated March 21,
2014, which are incorporated by reference and made a part hereof) represents the complete and exclusive understanding between The
City of Auburn and Tokay Software regarding the Software, and supersedes any prior purchase order, confirmation, advertising,
representation, or other communication. This Agreement may not be modified except by a written agreement signed by an authorized
Tokay Software representative. If any provision of this Agreement is found to be void, invalid, or unenforceable, it shall be severed from
and shall not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such severed provision shall
be replaced with a similar provision, which conforms to applicable law and embodies as closely as possible the original intent of the
parties.
13. Dispute Resolution, Waiver of Collective or Class Action, Choice of Law, Statute of Limitations and Language. Any cause of
action or claim arising out of or relating to this Agreement or the breach thereof, including without limitation, the validity, enforceability
or scope of this Agreement, shall be settled by binding arbitration pursuant to this section 10 and the applicable rules of the National
Arbitration Forum in effect at the time the claim is filed. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. In addition, The City of Auburn agrees that any cause of action or claim will be arbitrated individually
and that The City of Auburn will not consolidate or seek class treatment for any claims, unless previously agreed to in writing by The City
of Auburn and Tokay Software. This Agreement shall be governed by the laws of (1) the State of Washington and venue for any action shall
be in King County, Washington.
Acceptance
The parties, each acting under due and proper authority, have executed this Agreement as of the date written below:
CITY OF AUBURN, WA By: C10i
Signature
Date: MAR 2 8 2014
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IV. City of Auburn : Proposal, Tokay SQL - Cross -Connection Control Software
■ Tokay SQL is a Microsoft SQL Server 2005/2008 /2012 database.
■ Tokay SQL utilizes Crystal Reports (notices and reports) and Excel,
Tokay SQL
PC) 9,)x 2439
Fforninghurn. MA 0173
800-865-2955
F: 800-4'A -8-459
www'?0kay.ccm
cs: Qk(jy.com
Base Application
$ 11,050
$ 11,050
User Licenses: 2 named users & 1 floating user
Datasets: 2
Former User Discount
-($2,400)
-($2,400)
Support —first year
Included
Included
Link to Springbrook Water Customer database
2,900
2,900
Conversion — backflow records in XC2
1,800
1,800
Total:
$ 13,350
Suggested Options
Training Workshop — 3 days, on-site 6,900 6,900
Software Setup, Data Verification & User Training
Additional Options
User License Sets -2 named users / 1 floating user 2,900
Datasets — per dataset 950
Tokay Assist - Web Test Entry No setup fees
annual support 600
per test fee *1.00
*credit card fees additional (if applicable)
Support — after the first year
Support — Base Application — annual & optional 1,250
Support — Per Additional User License Set 450
Support — Per Additional Dataset 150
Date: March 26, 2014
Terms: 509 due at time of order, 25% due at completion of Training
The final 25% due 30 days after go -live is complete and mutual acceptance from both parties.
Quotation: Valid for 60 days
Prepared By: Sue Brown
tokay
software
PQ Box 2434
Fro rnir gharn, MA 01 743
8i'H.]-$65-2955
F: 800-414-8459
www.tokay.com
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IV. City of Auburn: Proposal, Tokay Navigator - Cross -Connection Control Software
■ Navigator is a Visual Studioldbf database,
■ Navigator utilizes the Tokay Word Processor, Microsoft Word and Excel.
Tokay Navigator
Navigator 11
Tracks an unlimited number of assemblies
Former User Discount
Multi-user License
Allows for unlimited number of workstations
Support - annual and optional
Link to Springbrook Water Customer database
Conversion — backflow records in XC2, per database
Total
Suggested Options
Training Workshop — 3 days, on-site
Software Setup, Data Verification & User Training
Additional Options
Tokay Assist -Web Test Entry
annual support
per test fee
*credit card fees additional (if applicable)
4,200 2,200
-(2,400) -(2,400)
2,650 2,650
790 790
2,500 2,500
1,800 1,800
$7.540
6,900 6,900
No setup fees
600
1.00
Date: March 26, 2014
Terms. 50% due at time of order, 25% due at completion of Training
The final 25% due 30 days after go -live is complete and mutual acceptance from both parties.
Quotation: Valid for 60 days
Prepared By: Sue Brown
OA