#08 (CS Stars Agreement)
CS STARS
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CONFIDENTIAL
SOFTWARE LICENSE AND SERVICES AGREEMENT
This SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreemenf') is entered into as of
November 24, 2008 (the "Effective Date") by and between CS STARS LLC, a Delaware limited liability company
with offices at 500 West Monroe Street, Chicago, Illinois 60661 ("Licensor"), and Collier County Board of County
Commissioners at 3301 E Tamiami Trail, Building D, Naples, Florida 34112 ("Client"). In consideration of the
mutual agreements contained herein and intending to be legally bound hereby, Licensor and Client hereby agree to all
of the following terms and conditions.
1. Definitions.
(a) "Affiliate" shall mean, with respect to a
party, its parent company and subsidiaries and/or
controlled corporations or entities which are directly
or indirectly controlled (through ownership of more
than fifty percent (50%) of the voting stock or rights,
by control of a majority of the directors of the
corporation, by contract or arrangement, or otherwise)
by a party.
(b) "Client Data" shall mean the data
provided or inputted by or on behalf of Client,
including personally identifiable information, for use
with the Licensed Software, excluding any
Confidential Information of Licensor.
(c) "Confidential Information" shall mean,
subject to Chapter 119, Florida Statutes, also known
as the Public Records Law, collectively, this
Agreement, as well as all confidential and proprietary
information of a party, including, without limitation,
regarding a party's business plans and strategies;
products and technology; software, source code and
object code; clients or prospective clients; data models;
inventions, developments, formulae and processes;
know-how, show-how, discoveries, improvements,
works of authorship, concepts, mask works, and ideas,
or expressions thereof, whether or not subject to
patents, copyright, trademark, trade secret protection
or other intellectual property right protection (in the
United States or elsewhere); and whether or not stored,
compiled or memorialized physically, electronically,
graphically, photographically or in writing. Client
Data shall be considered Confidential Information of
the Client.
(d) "Custom Software" shall mean
specifically modified versions or modules of the
Software created by Licensor pursuant to a signed
Statement of Work, Services Addendum or other
written agreement between the parties.
(e) "Documentation" shall mean, in printed
or electronic form, each of the manuals, user guides,
technical specification docwnents and other
instructional and reference materials generally
distributed by Licensor regarding the Software or
distributed by Licensor to Client regarding the Custom
Software, all as updated and redistributed by Licensor
from time to time.
(t) "Fees" shall mean the applicable license,
implementation, conversion, customization, consulting,
maintenance, support and services fees payable
pursuant to this Agreement, including as set forth in
the Compensation Summary and the Billing Schedule
in any Statement of Work.
(g) "Licensed Software" shall mean the
Software, Upgrades and Custom Software.
(b) "Licensed Technology" shall mean the
Licensed Software and Documentation.
(i) "Proprietary Rights" shall mean all
copyright, patent, trademark, trade secret and other
intellectual property and proprietary rights.
(j) "Restricted Entity" shall mean any
individual, partnership, limited liability company,
corporation, joint venture, trust, association or other
entity owned or controlled by, or acting as an agent for,
any person or entity with whom a U.S. citizen,
national, or company organized under the laws of or
operating in any state or territory of the U.S. is
prohibited from engaging in any transactions by U.S.
laws, including without limitation, a person on the
Specially Designated Nationals List published by the
United States Department of the Treasury's Office of
Foreign Assets Control ("OF AC"), or any other
person or entity with whom or which transactions are
prohibited by OF AC regulations.
(k) "Seat" shall mean an individual
(including an employee or agent of a Service Provider)
using or accessing the Licensed Software.
FORM CS STARS SOFTWARE LICENSE AND SERVICES AGREEMENT - NON-TRANSACTIONAL TEMPLATE
Version: February 7, 2008
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(I) "Service Provider" shall mean a third-
party service provider of Client's or of its Affiliate(s)
that provides services on behalf of and for Client or its
Affiliate(s) (and not as a service bureau).
(m) "Services" shall mean the
implementation, support, maintenance, programming
and other services specified in any Statement(s) of
Work, work orders or services addenda, or otherwise
provided by Licensor pursuant to this Agreement.
(n) "Software" shall mean the object code
version of the software products set forth in the
deliverables section of any applicable Statement of
Work hereto and made available to Client under this
Agreement by Licensor.
(0) "Statement of Work" shall mean any
statement of work entered into and mutually approved
by the parties pursuant to this Agreement from time to
time and attached hereto in Exhibit A.
(p) "Upgrades" shall mean all updates, new
versions, modifications and subsequent releases of the
Software. Upgrades shall not include new or different
applications, platforms or editions which are not
extensions to or replacements for the Licensed
Software, but which may use some or all ofthe code
from the Licensed Software.
2. License Grant and Restrictions.
(a) License. Subject to all the terms and
conditions of this Agreement, Licensor hereby grants
to Client, for the term of this Agreement, a non-
exclusive, non-transferable, non-assignable, non-
sublicensable, limited license for Client and its
Affiliates (subject to Sections 2(d) and (e)) to access,
display and use the Licensed Technology solely for
the internal business purposes of Client and its
Affiliates and to manage information relating only to
Client and its Affiliates, but not any third parties, and
not for any other purpose or in any other manner.
(b) License Restrictions. Nothing in this
Agreement shall be construed as a grant to Client of
any right to, and Client shall not, and shall not permit
any third party to: (i) reproduce any of the Licensed
Technology or any portion thereof, (provided, that
Client shall be permitted to make a reasonable number
of copies of the Documentation and any locally-hosted
Licensed Software for its internal training, testing and
backup purposes); (ii) distribute, disclose or allow use
of any of the Licensed Technology, or any portion
thereof, in any format, through any timesharing
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CONFIDENTIAL
service, service bureau, network or by any other
means, to or by any third party; (iii) decompile.
disassemble, or otherwise reverse engineer or attempt
to reconstruct or discover any source code or
underlying ideas or algorithms of the Licensed
Technology in any manner; (iv) create derivative
works from, modify or alter any of the Licensed
Technology in any manner whatsoever; (v) use the
Licensed Software or any component thereof
(excluding Client Data) to construct a database of any
kind or to improve the quality of any data sold or
contributed by Client to any third party; (vi) store the
Licensed Software (excluding Client Data), in its
entirety or in any part in databases for access by Client
or any third party; (vii) distribute any database
systems containing data (excluding Client Data)
obtained from the Licensed Software; (viii) create
Internet "links" to or from the Licensed Software or
"frame" or "mirror" any of Licensor's content which
forms part of the Licensed Software; (ix) use or access
the Licensed Technology in a manner, or act otherwise
in any manner, that could damage, disable, overburden,
or impair any Licensor servers or the networks
connected to any Licensor server; (x) interfere with
any third party's use and enjoyment ofthe Licensed
Technology; or (xi) attempt to gain unauthorized
access to the Licensed Technology, accounts,
computer systems, or networks connected to any
Licensor server through hacking, password mining, or
any other means.
(c) Seats. The number of permitted Seats
shall be as set forth in the Statement of Work. Client
acknow ledges and agrees that each Seat shall access
and use the Licensed Technology through a unique
and reasonably secure usemameluser identification
and password. Except Client's and its Affiliates'
system administrators where reasonably necessary for
administrative or security purposes, no Seat may use
the username/user identification or password of any
other Seat.
(d) Third Party Access. Subject to Section
2(e), Client shall also have the right for Client and
Affiliates to permit its Service Providers to access,
display and use the Licensed Technology solely for
the benefit of Client and its Affiliates, and in
accordance with the terms and conditions of this
Agreement, provided that:
(i) except as otherwise expressly agreed
by Licensor in writing, no such Service
Provider is engaged in, or is an affiliate or
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subsidiary of any person or entity engaged in,
the claims, compliance or risk management
software business;
(ii) Client shall provide thirty (3D) days'
advance written notice of such Service
Provider to Licensor and Licensor does not
object to such Service Provider within fifteen
(15) days of Licensor's receipt of such notice
from Client; and
(Hi) no Service Provider shall have any
right to access, display or use the Licensed
Technology unless the Service Provider has
agreed in writing in advance: (I) to be bound
by at least the same restrictions with respect to
the Licensed Technology as the Client, and (2)
to use, access and display the Licensed
Technology solely for the benefit of the Client
or Client's Affiliates and as necessary to
perform the Service Provider's authorized
duties for or on behalf of Client or its
Affiliates.
(e) AffiUatest Service Providers; Generally.
Client acknowledges and agrees that:
(i) those of Client's Affiliates who will be
using, accessing or displaying the Licensed
Technology shall be set forth on Schedule
2(e)(i), as amended from time to time, of this
Agreement. Client shall provide an updated
list of such Affiliates to Licensor semi-
annually if there are any changes or additions
to such list of Client's Affiliates;
(ii) any rights granted hereunder with respect
to the Licensed Technology to any of Client's
Affiliates and Service Providers shall expire
or terminate immediately upon the expiration
or termination of the Agreement in accordance
with its terms;
(iii) all access and use of the Licensed
Technology by Client's Affiliates and Service
Providers shall be subject to all of the terms
and conditions of this Agreement; and
Client shall be fully responsible for (1)
ensuring tbe compliance of all such Client's
Affiliates and Service Providers with the
terms and conditions of this Agreement; and
(2) all violations of the terms or conditions of
this Agreement by Client's Affiliates and
Service Providers.
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CONFlVfl;NTlAL
(0 Proprietary Rights. As between Client
and Licensor, Client acknowledges that Licensor is the
exclusive owner of all right, title and interest in and to
all Licensed Technology and aU Proprietary Rights
related thereto, regardless of any participation or
collaboration by Client in the design, development or
implementation of any such Licensed Technology.
No title or ownership of Proprietary Rights in and to
the Licensed Technology, or any component thereof,
is transferred to Client, its Affiliates or any third
parties hereunder. To the extent that any such
Proprietary Rights do not otherwise vest in Licensor
or its licensors, Client hereby agrees to promptly
assign such Proprietary Rights to Licensor or its
licensors, and to do all otber acts reasonably necessary
to perfect Licensor's or its licensors' ownership
thereof, without additional consideration of any kind.
(g) Notices or Infringement; Assistance. In
the event Client discovers or is notified of an actual or
suspected infringement or misappropriation of the
rights of Licensor or its licensors in or to the Licensed
Technology, or any component thereof, or any
unauthorized disclosure of, access to, or use of the
Licensed Technology (each, an "Infringement"),
Client shall: (i) immediately notify Licensor of such
known or suspected Infringement; and (ii) terminate
such Infringement if and to the extent within Client's
or its Affiliates' control.
(h) Proprietary Notices. Client shall not
remove any copyright, patent, trademark or other
proprietary or restrictive notice or legend contained in
any of the Licensed Technology, and Client shall
reproduce all such notices and legends on all copies of
the Licensed Technology that are permitted to be
made hereunder. Client further agrees to reasonably
cooperate with and assist Licensor (at Licensor's sole
expense) in protecting, enforcing and defending
Licensor's rights in and to the Licensed Technology.
(I) Client Obligations. In furtherance of the
foregoing, Client shall: (i) provide Licensor with
reasonable access to Client's premises as appropriate
to enable Licensor to perform its obligations
hereunder; (ii) provide adequate resources to
participate in or facilitate the performance of the
Services; (Hi) timely participate in meetings relating to
the Services; (iv) assign personnel with relevant
training and experience to work in consultation with
Licensor. if applicable; (v) provide the equipment and
software (including obtaining any third party software
licenses) required to operate the Licensed Software in
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accordance with, and to otherwise comply with, the
hardware/software specifications for the Licensed
Software; (vi) safeguard the user ID's, passwords and
other security data, methods and devices furnished to
Client in connection with the Licensed Software and
prevent unauthorized access to or use of the Licensed
Software; (vii) be responsible for all maintenance of
Client networks, equipment and system security
required or appropriate in connection with the
Licensed Software; (viii) have sole responsibility for
the accuracy, quality, integrity, legality, reliability and
appropriateness of all Client Data; Ox.) transmit Client
Data in an encrypted format, to be mutually agreed by
the parties, if Client Data is transmitted by electronic
transfer or sent in physical media by or on behalf of
Client; and (x) take such other actions as are required
of Client pursuant to this Agreement, including
without limitation, any Statement of Work.
(j) Client Warranty - Client Data. The
parties acknowledge and agree that during the term of
this Agreement Client, its Affiliates, the Service
Providers or other third parties may disclose certain
Client Data, including personally identifiable data
regarding employees or other individuals, to Licensor
for the benefit of Client or its Affiliates. Client
represents and warrants to Licensor that: (i) Client its
Affiliates, the Service Providers, and such other third
parties are authorized to disclose the Client Data to
Licensor for use pursuant to this Agreement; (ii) such
disclosure does not and shall not violate applicable
law or, if applicable, Client's or its Affiliates'
agreements with or privacy notices to individuals with
respect to whom the Client Data relates; and (iii)
Client shall not request Licensor to use, disclose or
otherwise process Client Data in any manner that
would not be permissible under applicable law or, if
applicable, Client's or its Affiliates' agreements with
or privacy notices to individuals with respect to whom
the Client Data relates, if done by Client.
(k) Non-Licensor Events. Client
acknowledges and agrees that Licensor shall not be
responsible or liable for any delay or failure in its
performance of any duties or obligations pursuant to
this Agreement, including, without limitation, under
any Statement of Work or schedule hereunder, if such
delays or failures result or arise from any Non-
Licensor Events. "Non-Licensor Events" shall mean,
collectively: any (i) act or omission of Client, its
Affiliates or the Service Providers, including without
limitation, any delays by Client in its performance or
16 E 21
CONFIDENTIAL
cooperation with respect to the obligations set forth in
Section 20) or any Statement of Work; (ii) failures of
Client's or third party equipment or software (other
than the Licensed Software); or (Hi) Force Majeure
Event (as defined below).
3. Services.
During the term of this Agreement, Licensor shall
perform the Services in accordance with this
Agreement, including without limitation, the
Statement(s) of Work.
4. Fees and Payments.
(a) Fees. Client shall pay to Licensor the Fees
in accordance with the Compensation Summary
included in any Statement of Work or as otherwise
agreed in writing by the parties. Fees for additional
services or expenses, if any, will be invoiced monthly
as incurred, after execution by the parties of a written
change order to the applicable Statement of Work.
(b) Expenses. Client shall reimburse
Licensor for all reasonable, documented out of pocket
travel, lodging, meal and other expenses reasonably
incurred by Licensor in the course of performing the
Services. Travel expenses shall be reimbursed as per
Section 112.061 Fla. Stats.
Reimbursements shall be at the following
rates:
Mileage:
Breakfast:
Lunch:
Dinner:
Airfare:
Rental car:
$ .445 per mile
$6.00
$11.00
$19.00
Actual ticket cost
Actual rental cost of
midsize or smaller
car
Actual cost of reasonable
lodging at single
occupancy rate
Actual cost of parking
Lodging:
Parking:
Reimbursable items other than travel expenses shall be
limited to the following: telephone long-distance
charges, fax charges, photocopying charges and
postage. Reimbursables wiII be paid only after
Licensor has provided all receipts. Licensor shall be
responsible for all other costs and expenses associated
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with activities and solicitations undertaken pursuant to
this Agreement.
(c) Taxes. Client shall be liable for any taxes
(including but not limited to federal manufacturers'
and retailers' excise, state and local sales and use taxes,
and personal property taxes), public charges, tariffs,
and export and import duties, however designated, and
any interest and penalties thereon, arising under this
Agreement, other than taxes based on Licensor's
income. Any taxes assessable on Client's copy of the
Licensed Software on or after its delivery to Client
shall also be borne by Client. All such taxes from
which Client is not legally exempt shall be included in
amounts invoiced to Client. Client warrants that
Client is sales tax exempt pursuant to Chapter 212,
Florida Statutes. Client will provide Licensor with a
copy of Client's current certificate of tax exempt
status during the term of this Agreement.
(d) Payments. All Fees under this Agreement
shall be payable by Client pursuant to and in
accordance with the Billing Schedule set forth in the
Compensation Summary described in any Statement
of Work or as otherwise agreed by the parties, and
shall be due in accordance with Section 218.70,
Florida Statutes, also known as the "Local
Government Prompt Payment Act". Payments
remitted after forty-five (45) days shall bear interest in
accordance with Section 218.70, Florida Statutes. also
known as the "Local Government Prompt Payment
Act". Except as provided in Sections 6(b) and 8(a), all
Fees paid hereunder are non-refundable. If Client
does not pay an invoice by the later of seventy-five
(75) days after its due date or fifteen (15) days after
notice that Licensor intends to terminate this
Agreement for nonpayment, then this Agreement and
all of Client's rights hereunder will terminate without
further notice.
5. Confidentialitv.
(a) Confidential Information. Each party
acknowledges and agrees that during the term ofthis
Agreement it may be furnished with or otherwise have
access to Confidential Information of the other party.
The party that has received Confidential Information
(the Receiving Party). in fulfilling its obligations
under this Section 5, shall exercise the same degree of
care and protection with respect to the Confidential
Information of the party that has disclosed
Confidential Information to the Receiving Party (the
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L.cONFIlENTIAL
Disclosing Party) that it exercises with respect to its
own Confidential Information, but in no event shall
the Receiving Party exercise less than a reasonable
standard of care. The Receiving Party shall only use,
access and disclose Confidential Information as
necessary to fulfill its obligations under this
Agreement, including any Statement of Work, or in
exercise of its rights expressly granted hereunder.
Receiving Party shall not directly or indirectly
disclose. sell, copy, distribute, republish, create
derivative works from, demonstrate or allow any third
party to have access to any of Disclosing Party's
Confidential Information; provided, however, that:
(i)( 1) Receiving Party may disclose the Disclosing
Party's Confidential Information to its Affiliates who
have a need to know, and (2) Licensor shall have a
right to disclose Client's Confidential Information to
Client's Affiliates and Service Providers. and
Licensor's employees and other agents; and (ii) alJ use
of the Disclosing Party's Confidential Information
shall be subject to all the restrictions set forth in this
Agreement. This Section 5(a} is subject to Chapter
119, also known as the Public Records Law.
(b) Exclusions. The following information
shall not be considered Confidential Information
subject to this Section 5: (i) information that is
publicly available or later becomes available other
than through a breach of this Agreement; (ii)
information that is known to the Receiving Party or its
employees. agents or representatives prior to such
disclosure or is independently developed by the
Receiving Party or its employees, agents or
representatives subsequent to such disclosure' or (iii)
informat~o~ that is subsequently lawfully ob~ined by
the Recelvmg Party or its employees, agents or
representatives from a third party without obligations
of confiden.tiality. If the Receiving Party is required
by law to dIsclose any portion of the Disclosing
Party's Confidential Information, including, without
limitation, pursuant to the terms of a subpoena, court
order ~r oth~rwi~e by applicable law, Receiving Party
shall gIve pnor timely notice of such disclosure to
Disclosing Party to permit Disclosing Party to seek a
protective or similar order, and, absent the entry of
such an order, Receiving Party shall disclose only
such Confidential Information as is necessary to be
disclosed in response to such subpoena, court order or
other similar document. This Section 5(b) is subject
to Chapter 119. also known as the Public Records Law.
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(c) Survival. The obligations set forth in this
Section 5 shall expire two (2) years after termination
or expiration of this Agreement; provided, however,
that the confidentiality obligations for Confidential
Information constituting trade secrets (as determined
under applicable law) shall survive the termination or
expiration of this Agreement for as long as such
Confidential Information remains a trade secret. This
Section 5(c) is subject to Chapter 119, also known as
the Public Records Law.
6. Term and Termination; Mieration.
(a) Term. This Agreement shall commence
upon the Effective Date and remain in effect for an
initial term of three (3) years (the "Initial Term"),
unless terminated sooner in accordance with this
Section 6. This Agreement may be renewed for one (1)
additional two (2) year period (a "Renewal Term"),
upon mutual agreement by the parties in writing;
provided, however, that Client:
(i) is not in breach of this Agreement and is
current on all amounts due Licensor under this
Agreement;
(ii) gives Licensor written notice of Client's
intention to renew at least ninety (90) days
prior to the expiration of the Initial Term; and
(iii) acknowledges and agrees that: (1) such
Renewal Term will be at Licensor's then-
current rates and Client will also be
responsible for all Fees and expenses
associated with any additional Services agreed
upon between the parties at Licensor's then-
current rates; (2) the Licensed Software
available to Client and supported by Licensor
during the Renewal Term may be a different
version or release than as available and
supported during the Initial Term.
(b) Termination. This Agreement may be
terminated by: (i) Licensor pursuant to Section 4(d) or
Section 8(a); or (ii) either party if the other party
breaches any material term and fails to cure such
breach within thirty (30) days after receipt of written
notice thereof. If Client terminates the Agreement for
Licensor's breach in accordance with this Section 6(b),
Licensor shall refund to Client, within forty-five (45)
days of the effective date of such termination, any
prepaid but unearned Fees paid to Licensor in advance
by Client.
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(c) Events Upon Expiration, Termination.
Upon the expiration or termination of this Agreement
for any reason, Client shall: (i) promptly cease all use
of the Licensed Technology; (ii) promptly discontinue
providing access to and remove all links to the
Licensed Technology; (iii) within ten (10) business
days after expiration or earlier termination of this
Agreement, return to Licensor, or upon Licensor's
request. destroy, all copies of the Licensed
Technology in Client's, its Affiliates and the Service
Providers' possession or control; and (iv) certify
within fifteen (15) business days to Licensor in
writing that it has done all of the foregoing after
expiration or earlier termination of this Agreement.
Upon any expiration or termination of this Agreement,
Licensor shall invoice Client for all accrued Fees,
including, without limitation, the amount of any
implementation and migration fees earned by the
Licensor as specified in the Statement of Work, and
all reimbursable expenses, and Client shall pay the
invoiced amounts, including from previously issued
invoices, in accordance with Section 218.70, Florida
Statutes, also known as the "Local Government
Prompt Payment Act".
(d) Migration. During the term of this
Agreement, Licensor may design and put into
production a new version of the Software, including
which operates on another platform, with respect to
each type of Software listed in the relevant
Statement(s) of Work, "New Software") that is
intended to replace the then-current version of the
Software. Client acknowledges and agrees that during
the term of this Agreement Client shall negotiate in
good faith with Licensor with respect to any proposal
made by Licensor relating to migmtion of the Client to
the New Software.
(e) Survival. Except as otherwise set forth
herein, in the event of termination of this Agreement
for any reason, the provisions of Sections 2(t),U), 5,
6(c), 7(e),(t), 8,9, 10. II, 13 and 14, as well as all
payment obligations. shall survive.
7. Limited Warranties and Disclaimer.
(a) Software Warranty. Licensor warrants
that the Licensed Software will perform in all material
respects in accordance with the Documentation when
used in accordance with the terms of this Agreement
on the hardware and with the third-party software
specified by Licensor from time to time. Client's sole
remedy for any breach by Licensor of the warranty
6
provided in this Section 7{a) shall be replacement of
the nonconforming Licensed Software, at Licensor's
sole expense, as described herein. If Client discovers
that any Licensed Software fails to conform to the
warranty provided in this Section 7(a), Client shaIl
give Licensor written notice of such nonconformity
within thirty (30) days after delivery of the Licensed
Software or component thereof to Client and promptly
after such discovery (and, in no event later than five (5)
business days after expiration of the Warranty Period
(as defined below). Licensor shall deliver to Client
replacement Licensed Software, a work-around and/or
an errorlbug fix as may be necessary to correct the
nonconformity. In the event that Client gives Licensor
notice of an apparent nonconformity that Licensor
reasonably determines is not due to any fault or failure
of the Licensed Software to conform to the warranty
provided herein, all time spent by Licensor resulting in
such determination, including time spent attempting to
correct the problem, shaIl be charged against Client's
client service hours, or, if client service hours have
been exhausted, charged to Client at Licensor's then
current hourly rate for such services.
(b) Services. Licensor represents and
warrants that the Services shall be performed in a
professional and commercially reasonable manner
consistent with the standard of care exercised by
Licensor in performing similar services for other
clients. Client's sole remedy for breach of this
warranty shall be re-performance of the
nonconforming Services, provided that Licensor must
have received written notice of the nonconformity
from Client within a reasonable period of time after
discovery of the nonconforming Services by Client
(but in no event later than one (I) year after the
original performance of the Services by Licensor.)
(e) Software Virus. Licensor warrants that,
to the best of Licensor's knowledge, prior to its
delivery to Client, the Licensed Software does not
contain any programming devices (e.g., viruses, key
locks, back doors, trap doors, etc.) which would: (i)
disrupt the use of the Licensed Software or any system,
equipment or software to which Client's networks are
interfaced or connected; or (ii) destroy or damage data
or make data inaccessible or delayed, except for file
and purge routines necessary to the routine
maintenance of the Licensed Software (collectively,
"Disabling Code"). Licensor will use reasonable
practices and security procedures necessary to avoid
insertion of Disabling Code prior to the delivery of the
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CONFIDENTIAL
Licensed Software to Client and, as Client's sole
remedy, shall remove any such Disabling Code so
inserted, at Licensor's cost and expense.
(d) Authority. Each party represents and
warrants that it has full power and authority to enter
into this Agreement and grant the rights granted herein.
(e) Disclaimer. EXCEPT AS OTHERWISE
EXPRESSLY STATED IN THIS AGREEMENT,
LICENSOR MAKES NO WARRANTY OR
REPRESENT ATION WHATSOEVER, EITHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE
LICENSED TECHNOLOGY OR SERVICES,
INCLUDING QUALITY, PERFORMANCE,
MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-
INFRINGEMENT. NO LICENSOR AGENT OR
EMPLOYEE IS AUTHORIZED TO MAKE ANY
EXPANSION, MODIFICATION OR ADDITION TO
TillS LIMITATION AND EXCLUSION OF
WARRANTIES IN THIS AGREEMENT. Licensor
shall not be responsible for: (i) any non-conformities
of the Licensed Software with Documentation,
omissions, delays, inaccuracies or any other failure
caused by Client's, its Affiliates' or any Service
Providers' computer systems, hardware or software
(other than the Licensed Software), including by
interfaces with such third party software, or any
inaccuracies that such systems may cause within the
Licensed Software; (ii) any inaccuracies in or failures
of the Licensed Software to conform to the
Documentation arising out of the use of a version or
release of the Licensed Software other than the most
recent version or release provided to Client by
Licensor; (iii) any data that Licensor receives from
Client or third party sources, including its PPOs, and
including the data's accuracy or completeness, or
Client's claim handling decisions; or (iv) the Licensed
Software to the extent it is modified by anyone other
than Licensor. To the extent the Licensed Software
utilizes Internet systems to transmit data or
communications, Licensor disclaims any liability for
interception of any such data or communications,
including of encrypted data. Client agrees that
Licensor shall have no responsibility or liability for
any damages arising in connection with access to or
use of the Licensed Technology by Client, its
Affiliates or Service Providers other than as
authorized by this Agreement. Licensor is also not
responsible for the reliability or continued availability
7
of the telephone lines and equipment used to access
the Licensed Software.
(I) Third-Party Websites. The content of
third party Websites, systems, products or
advertisements that may be linked to the Licensed
Software are not maintained or controlled by Licensor.
Licensor is not responsible for the availability, content
or accuracy of third party Websites, systems or goods
that may be linked to, or advertised on, the Licensed
Software. Licensor does not: (i) make any warranty,
express or implied, with respect to the use of the links
provided on, or to, the Licensed Software; (ii)
guarantee the accuracy, completeness, usefulness or
adequacy of any other Websites, systems, products or
advertisements that may be linked to or referenced in
the Licensed Software; or (iii) make any endorsement,
express or implied, of any other Web sites, systems,
products or advertisements that may be linked to or
referenced in the Licensed Software.
(g) Warranty Period. The representations
and warranties contained in this Section 7 shall be in
force, as to each version or release of the Software, for
a period of one (1) year after it is first delivered or
otherwise made available to Client by Licensor (the
"Warranty Period").
8. Indemnification bv Licensor.
(a) Indemnification. Licensor agrees to
indemnify, defend, settle, or pay any claim or action
against Client, its Affiliates, and their officers,
directors, members, managers, shareholders, and
employees for infringement of any U.S. patent or
copyright arising from Client's use in accordance with
this Agreement of the Licensed Software. If the
Licensed Software or any part of the Licensed
Software is held to infringe and the use thereof is
enjoined or restrained or, if as a result of a settlement
or compromise, such use is materially adversely
restricted. Licensor shall, at its own expense and as
Client's sole remedy therefore, either: (i) procure for
Client the right to continue to use the Licensed
Software; or (ii) modify the Licensed Software to
make it non-infringing, provided that such
modification does not materially adversely affect
Client's authorized use of the Licensed Software; or
(iii) replace the Licensed Software with a functionally
equivalent non-infringing program at no additional
charge to Client; or (iv) if none of the foregoing
alternatives is reasonably available to Licensor,
terminate this Agreement and refund to Client any
16 E21-
CONFIDENTIAL
~;\, j
, ;
prepaid but unearned Fees paid to Licensor in advance
by Client prior to the effective date of the termination.
(b) Exclusions. Licensor's indemnification
obligations under Section 8(a) shall not apply where
the claim is based in whole or in part on: (i)
modifications to the Licensed Software or any
component thereof made by anyone other than
Licensor; (ii) use of any Licensed Software in
combination with a product not supplied by Licensor;
(iii) use of any Licensed Software other than in
accordance with this Agreement or the Documentation;
or (iv) use of a version of the Licensed Software other
than the most recent version or release provided to
Client by Licensor.
(c) Conduct. Licensor shall have the sole
right to conduct the defense of any such infringement
claim or action and all negotiations for its settlement
or compromise. and to settle or compromise any such
claim. Client agrees to cooperate and ensure that its
Affiliates cooperate with Licensor in doing so. Client
agrees to give Licensor prompt written notice, in no
case longer than within seven (7) days of receipt or
discovery, of any threat, warning, or notice of any
such claim or action, with copies of any and all
documents Client, its Affiliates or Service Providers
may receive relating thereto.
9. Indemnification bv Client.
Subject to Section 768.28. Florida Statutes, pursuant
to authority in Article 10. Section 13, Florida
Constitution (1968), Client agrees to indemnify,
defend and hold harmless Licensor, its Affiliates, and
all their officers, directors. members, managers,
shareholders. employees and other agents for and
against any damage, cost, liability, expense, claim,
suit, action or other proceeding, to the extent based on
or arising in connection with any breach of this
Agreement by Client, its Affiliates or the Service
Providers.
10. Limitation of Liabilitv.
(a) Disclaimer. IN NO EVENT WILL
LICENSOR BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT FOR
INDIRECT, SPECIAL. PUNITIVE, INClDENT AL
OR CONSEQUENTIAL DAMAGES IN ANY
ACTION ARISING FROM OR RELATED TO THIS
AGREEMENT. WHETHER BASED IN
CONTRACT, TORT, INTENDED CONDUCT OR
OTHERWISE, INCLUDING WITHOUT
8
LIMITATION, DAMAGES RELATING TO THE
LOSS OF PROFITS, INCOME, GOODWILL OR
REVENUE, COSTS INCURRED AS A RESULT OF
DECISIONS MADE IN RELIANCE ON THE
LICENSED TECHNOLOGY, LOSS OF USE OF
THE LICENSED TECHNOLOGY OR ANY OTHER
SOFTWARE OR OTHER PROPERTY. LOSS OF
DATA, THE COSTS OF RECOVERING OR
RECONSTRUCTING SUCH DATA OR THE COST
OF SUBSTITUTE SOFfW ARE, SERVICES OR
DATA, OR FOR CLAIMS BY THIRD PARTIES,
EVEN W ADVISED OF THE POSSffiILITY OF
SUCH DAMAGES.
(b) Limitation of Liability. UNDER NO
ClRCUMST ANCES SHALL LICENSOR'S
AGGREGATE MAXIMUM LIABILITY UNDER
OR IN CONNECTION WITH TillS AGREEMENT
EXCEED THE PAYMENTS ACTUALLY MADE
TO LICENSOR HEREUNDER DURING THE
TWELVE (12) MONTHS PRECEDING THE DATE
ON WHICH ANY CLAIM IS MADE AGAINST
LICENSOR.
11. Publicitv.
Neither party shall issue a general press release
naming the other party regarding the existence of this
Agreement, without the prior written consent of the
other party.
12. Foreilm Use.
If Client chooses to access the Licensed Software
from outside the United States, it is responsible for
compliance with foreign and local laws. The Licensed
Technology is not available through Licensor or its
Affiliates to any Restricted Entity. Client represents
and warrants that it is not a Restricted Entity and is not
using the Licensed Technology on behalf of or for the
benefit of a Restricted Entity.
13. Records.
Client shall use reasonable efforts to maintain records
regarding its use of the Licensed Technology,
including, without limitation, the name and
username/user identification and password of each
Seat, (collectively, the "Records"). Client shall
maintain such Records during the term of this
Agreement and for two (2) years thereafter. At
Licensor's expense, Licensor (or at Licensor's election,
its representatives) shall have the right to examine,
inspect and audit Client's offices, information systems
and Records, and make extracts of information and
16 E 2} 1 ....;
CON)<'IDENTIAL
copy any part of the Records at any reasonable time
during normal business hours upon ten (10) business
days' notice to Oient in order to monitor Client's
compliance with this Agreement. If any such audit
reveals that Client has more (i) Seats accessing or
using the Licensed Technology, or (ii) transactions
than Client has paid for during the period to which the
audit relates (as determined prior to the
commencement of the audit), then Client shall
promptly pay for such additional Seats or transactions,
as applicable (beginning from the date of first access
by each additional user or first additional transaction)
at the rates set forth in the applicable Statement(s) of
Work, and the reasonable cost of such audit shall be
borne by Client; provided that Licensor shall make
reasonable efforts to ensure that audit hours are not
unnecessarily charged to Client. In addition, if any
such audit reveals that Client has more five percent
(5%) or more Seats accessing or using the Licensed
Technology or transactions than for which Client has
paid, Licensor shall have the right to charge Client
interest in accordance with Section 218.70, Florida
Statutes, also known as the "Local Government
Prompt Payment Act, on all amounts payable by
Client for such additional Seats or transactions, as
applicable.
14. General.
(a) Neither party shall have the right to assign.
transfer, or sublicense any obligations or benefit under
this Agreement without the prior written consent of
the other party. The foregoing notwithstanding,
Licensor may assign this Agreement in its entirety
pursuant to a sale of all or substantially all of
Licensor's assets, voting interests or stock to a buyer
or transferee; provided that such buyer or transferee
assumes in writing all of Licensor's responsibilities
and obligations hereunder. Except as otherwise
provided herein, this Agreement shall be binding on
and inure to the benefit of the respective successors
and permitted assigns of the parties.
(b) Any notice required or permitted to be
delivered pursuant to this Agreement shall be in
writing and shall be deemed delivered: (i) upon
delivery if delivered in person; (ii) three (3) business
days after deposit in the United States mail, registered
or certified mail, return receipt requested, postage
prepaid; (Hi) upon transmission if sent via facsimile,
with a confirmation copy sent via overnight mail; or
(iv) one (1) business day after deposit with a national
9
overnight courier, in each case addressed to the
following addresses:
If to Licensor:
CS STARS LLC
AUn: Executive Vice President
Professional Service
500 West Monroe Street
Chicago, IL 60661
Facsimile: (312)627-6590
With a copy to:
CS STARS LLC
Attn: Corporate Counsel
500 West Monroe Street
Chicago, IL 60661
Facsimile: (312)627-6590
If to Client:
Collier County Government
Attn: Jeff Walker
3301 E Tamiami Trail, Building D
Naples, R.. 34112
Phone: (239) 252-8906
or to such other address as may be specified by either
party hereto upon notice given to the other.
(c) The failure of either party to enforce any
of its respective rights under this Agreement at any
time for any period shall not be deemed or construed a
waiver by such party of such rights.
(d) Notwithstanding any provision hereof, for
all purposes of this Agreement each party shall be and
act as an independent contractor and not as partner,
joint venturer or agent of the other party and shall not
bind nor attempt to bind the other party to any contract
or other undertaking.
(e) No changes or modifications to or waivers
of any provision of this Agreement shall be effective
unless evidenced in a written amendment that is
signed by authorized representatives of both parties.
(0 In the event that any provision of this
Agreement shall be determined to be illegal or
unenforceable, such provision shall be limited or
eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force
and effect and enforceable.
16E2I~ ,~
CONFIDENTIAL
(g) This Agreement shall be governed by and
construed in accordance with the laws of the State of
Plorida without regard to the conflicts of laws
provisions thereof.
(h) Headings herein are for convenience of
reference only and shall in no way affect interpretation
of the Agreement.
(i) Licensor shall have no liability for any
failure or delay in performance of its obligations under
this Agreement because of circumstances beyond its
reasonable control, including without limitation, acts
of God, fires, floods, earthquakes, wars, civil
disturbances, terrorism, sabotage, accidents, unusually
severe weather, labor disputes, governmental actions,
power failures, viruses that are not preventable
through generally available retail products, inability to
obtain labor, material or equipment, catastrophic
hardware failures, usage spikes, attacks on Licensor's
server, or any inability to transmit or receive
information over the Internet, (each, a "Force Majeure
Event") nor shall any such failure or delay give Client
the right to tenninate this Agreement.
(j) Client acknowledges that its breach of this
Agreement may cause irreparable injury to Licensor
that may not be adequately compensable in money
damages, and for which Licensor shall have no
adequate remedy at law. In the event of breach of
Sections 2 or 5 of this Agreement, Licensor shall be
entitled to seek equitable relief to protect its interests,
including but not limited to preliminary and
permanent injunctive relief. Client hereby waives any
requirement of the posting of a bond that may apply
for issuance of any injunctions, orders or decrees.
(k) This Agreement takes precedence over any
conflicting statement or provision in any Statement of
Work and any other document furnished by Licensor.
This Agreement, including all Exhibits hereto, is the
complete statement of the agreement of the parties
with respect to the subject matter of this Agreement
and supersedes all prior oral and written agreements
with respect to the subject matter hereof.
(I) This Agreement may be executed in
counterparts, each of which will be deemed an original
but all of which together shall constitute one and the
same Agreement.
10
16 E21
':;~
.~
'JIl~
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as ofthe Effective Date.
ATTEST:. ", . '.f ~'~'I'/,
:~.irIE. Brock,Q~:~fCOurts
Datect' . : ", :.~ 1, .~ . .
. - (S;E;AL)'\. .,~:-' .
At~t."'e~.CM1.... .
s10nature onl"
BOARD OF COUNTY COMMISSIONERS
::LU~i;~
Tom Henning, Chairman
CS STARS LLC
.~.R= ~-
First Witness
B}" f~~:e~
C)r'\t-TC,,,,::.;;,/ &. (j"-"u./lt ~Je..f
Typed signa and ti tIe '
JK~ ~~~~~
iType/print ess amei
Approved as to form and
legal sufficiency:
'"
1~ '.
Assistant County Attorney
\,{) I ~l- { k 1!Lf: /YjlJLtvr fURy
Print Name
llam# J" IE 1d
Agenda I_I ncJ,,~
Date ~
~~~d IO/~l/o~
11