HomeMy WebLinkAboutMINUTES - 03191996 - C35 4
To: _ ,BOARD OF SUPERVISORS SE.-
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FROM:
Phil Batchelor, County Administrator Costa
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County
DATE: March 12, 1996
SUBJECT:
Agreement for Computer Software Services from Informix Inc.
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)8 BACKGROUND AND JUSTIFICATION
I. RECOMMENDED ACTION:
Approve and authorize the Chair of the Board of Supervisors to execute on behalf of the
County an agreement with Informix, Inc. to purchase computer software at a cost of
$185,205.
H. REASON FOR RECOMMENDATION AND BACKGROUND:
This computer software is being purchased for use in the County's new Human
Resources, Benefits and Payroll System. Details of the system are presented in a
determination item on the Board Agenda.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON March 19, 1996 APPROVED AS RECOMMENDED X OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS(ABSENT r AND CORRECT COPY OF AN ACTION TAKEN
AYES: __.NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
cc- CAO ATTESTED March 19, 1996
Human Resources PHIL BATCHELOR,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
BY DEPUTY
M382 (10168)
,
rJ' INFORMI)C Contract#:
SOFTWARE LICENSE AGREEMENT
Informix Software, Inc. ("Informix"), and the person this Agreement for their internal business purposes on the
or entity listed in the signature block below ("Licensee") Computer Systems.
hereby agree that, after execution of this agreement (this
"Agreement") by Licensee and acceptance by Informix, the 2. Use of the Products is restricted to the number of users,
terms and conditions of the following sections A through G and the Computer Systems which correspond to the machine
and those of any Informix Schedules shall apply to the use of class, if applicable,for which license fees have been paid.
the Products. All capitalized terms used herein and not
otherwise defined are defined in section G. 3. Except as specifically permitted by this Agreement,
Licensee shall not directly or indirectly (a) use any
A. Licensee's rights. representations and obligations. 1. Confidential Information of Informix to create any computer
Informix hereby grants and Licensee hereby accepts the software program or user documentation which is
nonexclusive, nontransferable, royalty-bearing right and substantially similar to any Product; (b) reverse engineer,
license within the United States and Canada ("Territory"), in disassemble or decompile, or otherwise attempt to derive the
accordance with the User Documentation and this Agreement source code for, any Product; (c) encumber, time-share, rent,
and only in conjunction with the Computer System(s),to: or lease the rights granted by this Agreement; (d) copy,
manufacture, adapt, create derivative works of, translate,
(a)use the Products for internal business purposes; localize, port or otherwise modify any Products or other
Confidential Information of Informix or grant anyone a license
(b) copy object code of a Product into any computer readable to engage in similar conduct. Results of any benchmark or
form for back-up purposes in support of Licensee's use of the other performance tests run on the Products may not be
Products; disclosed to any third party without Informix's prior written
consent.
(c) distribute the Products to Affiliates who have agreed to be
bound by provisions substantially similar to those contained in
The following Schedules which are attached hereto,are initialed by Licensee and made a part of this Agreement by this reference:
Informix Payment Schedule
LICENSEE: LIC S E CC T NCE:
CONTRA COSTA COUNTY
30 DOUGLAS DRIVE Si a
MARTINEZ,CALIFORNIA 94553 e f Smith, Chair, Board of Sin=ervi cors
ATTN: STEVEN ST ECHER Pod!Pm
m�'d�iTls 6
(510)313-1305 lyy
Date
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INFORMIX: INFORM CEP A
INFORMIX SOFTWARE,INC.
4100 BOHANNON DRIVE Sig' re
MENLO PARK,CALIFORNIA 94025 vid H.Stanle Vice President al and General Counsel
ATTN:GENERAL COUNSEL Printed Name and Title 2
(415)926-6300 cl
Effective Date ^�`
mar.8.96 contra.ceu
C- 35'
4. Licensee does not have, and shall not claim that it has, any 3. Money or damages will not be an adequate remedy if this
right in or to any of the Products or the Confidential section B is breached and therefore, either party may, in
Information received from Informix other than as specifically addition to any other legal or equitable remedies, seek an
granted by this Agreement. Licensee_shall promptly notify injunction or similar equitable relief against such breach.
Informix of any actual or suspected unauthorized use of the
Products or use or disclosure of the Confidential Information C. Limited Warranties and Remedies. 1. Informix warrants
received from Informix, and shall provide reasonable that: (a) the use of unmodified Products, will not violate the
assistance to Informix (at Informix's expense) in the intellectual property rights of any third party under copyright,
investigation and prosecution of such unauthorized use or trademark or trade secret law of the United States; (b) it has
disclosure. full power and right to enter into this Agreement; and (c)
provided Licensee purchases and maintains INFORMIX-
5. Licensee shall comply with the Export Laws. Licensee Assurance or INFORM IX-OpenLine for Products licensed,
hereby assures Informix that it will not export or re-export during the first 365 days from the date Licensee receives an
directly or indirectly (including via remote access) any part of unmodified Product ("Warranty Period") manufactured by
the Product(s) or any Confidential Information to any country Informix,the media for those Products will, under normal use,
for which a validated license is required under the Export be free of defects in materials and workmanship and the
Laws without first obtaining a validated license. If at any time Development Products will substantially conform to the User
Informix determines the laws of any country in the Territory Documentation.
are or become insufficient to protect Informix's intellectual or
proprietary rights in the Products, both parties will in good 2. EXCEPT FOR THESE EXPRESS LIMITED WARRANTIES,
faith work with each other to protect Informix's intellectual or LICENSEE ACCEPTS THE PRODUCTS "AS IS," WITH NO
proprietary rights in that country. OTHER EXPRESS OR IMPLIED WARRANTIES OR
CONDITIONS OF ANY KIND, INCLUDING, WITHOUT
6. Products acquired with United States Federal Government LIMITATION, WARRANTIES OF MERCHANTABILITY OR
funds or intended for use within or for any United States FITNESS FOR A PARTICULAR PURPOSE. INFORMIX
federal agency are provided with "Restricted Rights" as MAKES NO WARRANTIES REGARDING THE
defined in DFARS 252.227-7013(c)(1)(ii)or FAR 52.227-19. APPLICATION(S) OR THE MEDIA OF THE PRODUCTS
MANUFACTURED BY LICENSEE. Some jurisdictions do not
B. ConfidentialitK. 1. Except for the specific rights granted by allow limitations on how long an implied warranty lasts, so the
this Agreement, neither party shall use or disclose any above limitation may not apply to Licensee.
Confidential Information of the other party. A party receiving
Confidential Information from the other shall use the highest 3. In the case of an alleged breach of sections C.1.(a) or (b),
commercially reasonable degree of care to protect that Informix shall, at its expense, indemnify, defend, save and
Confidential Information, including ensuring that its hold harmless Licensee from and against any claim, loss,
employees with access to such Confidential Information have expense or judgment (including reasonable attorney fees)
agreed in writing not to disclose the Confidential Information. provided (a) Licensee promptly gives Informix written notice
Within 15 days of the request of the disclosing party, and in of the claim; (b) Licensee provides all reasonable assistance
its sole discretion,the receiving party shall either return to the to defend against the claim; and (c) Informix has the right to
disclosing party originals and copies of any Confidential control the defense or settlement of the claim. In the event
Information and all information, records and materials that a preliminary injunction, temporary restraining order or
developed from them by the receiving party, or destroy the final injunction shall be obtained, with respect to Licensee's
same. Either party may only disclose the general nature, but use of any Product, Informix shall, within the time necessary
not the specific financial terms, of this Agreement without the so that Licensee's use of such Product is not interrupted:
prior consent of the other party, provided Informix may
provide a copy of this Agreement to any financial institution in (i) obtain the right for continued use of the infringing
conjunction with a receivables financing transaction if such Product;or
financial institution agrees to keep this Agreement
confidential. (ii) replace the infringing Product with a non-infringing
Product with at least equivalent functionality, or
2. Notwithstanding the foregoing, nothing herein shall prevent
a receiving party from disclosing all or part of the Confidential (iii) modify the infringing Product to avoid such
Information which is necessary to disclose pursuant to the infringement while retaining at least equivalent
lawful requirement of a governmental agency or when functionality,
disclosure is required by operation of law, provided, however,
that prior to any such disclosure,the receiving party shall use If, after using commercially reasonable efforts to do so,
reasonable efforts to (a)promptly notify the disclosing party in Informix is unable to perform either (i), (ii) or (iii) above,
writing of such requirement to disclose, and (b) cooperate Informix shall provide a refund to Licensee of all License Fees
fully with the disclosing party in protecting against any such paid for such infringing Product amortized over a five (5) year
disclosure and/or obtaining a protective order. period from the date of delivery of such Product.
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4. Licensee's sole remedy for Informix's breach of section 3. Notwithstanding section D.2. above, if Informix reasonably
C.1.(c) shall be that during the Warranty Period, Informix suspects that Licensee has breached sections A.3., B.1. or
shall, in its sole discretion, provide modifications to keep the D.1., Informix may audit Licensee's Product related activities
Products in substantial conformance with the User upon 24 hours'notice.
Documentation, replace the Products, or refund the license
fees paid to Informix for the defective Products. 4. Unless otherwise specified, Licensee shall pay to Informix
a license fee for Products ("License Fee") and fees for
5.(A) INFORMIX'S LIABILITY TO LICENSEE OR ANY THIRD maintenance and support services at the price set forth in the
PARTY FOR A CLAIM OF ANY KIND RELATED TO THIS Price List.
AGREEMENT, ANY PRODUCT OR ANY PRODUCT
SERVICE, WHETHER FOR BREACH OF CONTRACT OR 5. Licensee shall have the right to finance its payment
WARRANTY, STRICT LIABILITY, NEGLIGENCE OR obligations hereunder through financing arranged through a
OTHERWISE, SHALL NOT EXCEED THE AGGREGATE OF financing company reasonably satisfactory to Informix.
FEES PAID TO INFORMIX FOR THE PRODUCT OR Licensee's failure to obtain such financing, however, shall not
SERVICE INVOLVED IN THE CLAIM. (B) IN NO EVENT defer or otherwise relieve Licensee of such payment
WILL INFORMIX BE LIABLE FOR INDIRECT, SPECIAL OR obligations.
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST REVENUES OR PROFITS, LOST DATA, 6. Licensee shall pay any amounts owed to Informix on the
WORK STOPPAGE, COMPUTER FAILURE OR date specified in and according to the terms of this
MALFUNCTION), EVEN IF ADVISED OF THE POSSIBILITY Agreement and any applicable Informix Schedule. If a due
OF SUCH DAMAGES. Some jurisdictions do not allow the date is not specified, the related payment shall be made by
exclusion or limitation of incidental or consequential damages, Licensee in accordance with Informix's invoice. If Informix
so the above limitation or exclusion may not apply to determines that Licensee's credit rating does not support
Licensee. NO ACTION, REGARDLESS OF FORM, ARISING "net-30" terms, Licensee shall prepay all fees. Each party is
OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT solely responsible for its own expenses incurred in the
MAY BE BROUGHT BY LICENSEE MORE THAN 1 YEAR performance of this Agreement. If Licensee fails to make any
AFTER THE EVENTS WHICH GAVE RISE TO THE CAUSE payment when due, Informix may suspend delivery of
OF ACTION OCCURRED. Products or services until the past due payment is made. Any
payment which falls due on a weekend or public holiday shall
6. Licensee shall, at its expense, indemnify, defend, save and be due on the business day immediately preceding the
hold harmless Informix from any claim brought or filed by a weekend day or public holiday.
third party against Informix due to any failure by Licensee, its
employees or agents to act in accordance with the terms of 7. If a receiver or other liquidating officer is appointed for
this Agreement. substantially all of the assets or business of Licensee, if
Licensee makes an assignment for the benefit of creditors, if
D. Records. Audits and Payments. 1. Licensee shall maintain Licensee becomes insolvent or bankrupt or the rights or
complete and accurate records indicating where each Product interests of Licensee under this Agreement become an asset
has been installed and the number of users for each Product under any bankruptcy, insolvency or reorganization
and if applicable, the machine class ("Copy Records"). If proceeding, then Licensee must prepay all fees, and this
Licensee has been granted manufacturing rights or Agreement and any Informix Schedules shall be governed by
Licensee's Territory extends beyond the United States and the then current, applicable bankruptcy and insolvency laws.
Canada, then within 10 business days of the end of every
other month, Licensee shall deliver to Informix the Copy 8. Payments shall be in United States dollars. Any overdue
Records applicable to the prior two-month period, amount shall bear interest at the maximum rate allowed by
accompanied by any payment due to Informix relating to such law. Costs of conversion, outside collection and related bank
Copy Records. charges shall be paid by Licensee. Licensee shall be
responsible for all taxes, tariffs and transportation costs
2. No more than once each year, at Informix's expense and related to this Agreement(including any value added or sales
with 5 days'prior written notice, Informix may audit all records taxes) other than taxes on Informix's income. All shipments
of Licensee relating to this Agreement during Licensee's by Informix shall be F.O.B.origin.
normal business hours. If an audit reveals that the amount
which should have been paid to Informix is 5% or more E. Termination, 1. This Agreement shall be effective until
greater than the amount reported by Licensee, Licensee shall terminated. This Agreement shall terminate: (a) for cause or
pay the cost of the audit to Informix. Any shortfall uncovered for failure to pay any amount when due, upon 30 days prior
as a result of an audit, as well as the cost of the audit, if written notice by either party to the other, unless the cause is
required by the preceding sentence, shall be paid by Licensee susceptible of being and is cured within the 30 day notice
to Informix within 30 days of the date Informix notifies period; or (b) immediately upon written notice to Licensee in
Licensee that an amount is due. the event Licensee breaches section A.3. The date
termination becomes effective is called the "Termination
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coo
Date." Termination of this Agreement terminates all Informix only. If any court of competent jurisdiction determines that
Schedules. any provision of this Agreement is invalid, the remainder of
the Agreement will continue in full force and effect. The
2. (a) If this Agreement is terminated because of a breach of offending provision shall be interpreted to whatever extent
section A.3., all rights granted under this Agreement will possible to give effect to its stated intent.
terminate. (b) If this Agreement is terminated for any other
reason, all rights granted under this Agreement will terminate, 6. Failure to require performance of any provision or waiver of
except for Licensee's continued right to use Products for a breach of a provision does not waive a party's right to
which the license fees have been paid to Informix. Use after subsequently require full and proper performance of that
the Termination Date shall be subject to those provisions of provision. Singular terms will be construed as plural, and vice
this Agreement which survive termination. versa. Section headings are for convenience only and will not
be considered part of this Agreement.
3. Subject to section E.2.(b), within 30 days of the
Termination Date, all Products, related materials and 7. This Agreement is governed by the laws of the State of
Confidential Information in Licensee's possession or control California,without giving effect to its conflict of law provisions.
shall be returned to Informix or, upon Informix's written The United Nations Convention on Contracts for the
request,destroyed by Licensee. International Sale of Goods will not apply to this Agreement.
Each party submits to the jurisdiction of the appropriate state
4. If Licensee's breach is the cause of termination, no or federal courts in California. Informix may seek to
additional Product shall be provided to Licensee on account specifically enforce or prevent a breach of any term of this
of any remaining balance of any prepayment and such Agreement in the appropriate courts of any state or country in
amount shall be retained by Informix. which the Products are deployed by Licensee or in which
Licensee maintains an office. The prevailing party in any suit
5. Sections A.3., 4., and 5.; B.; C., D., E.; and F.5. and 7. will under this Agreement shall recover all costs, expenses and
survive any termination of this Agreement. reasonable attorney fees incurred in such action. Nothing in
this Agreement will be deemed a waiver by either party of any
F. General Provisions, 1. Informix and Licensee are and all available legal or equitable remedies.
independent contractors and will so represent themselves in
all regards. Neither party may bind the other in any way. G. Definitions. "Affiliate" means any person, corporation or
other entity which, directly or indirectly, through one or more
2. Licensee may not assign this Agreement without the prior intermediaries, controls or is controlled by, or is under
written consent of Informix, which consent will not be common control with another person, corporation or entity.
unreasonably withheld. Any purported assignment in
contravention of this section is null and void. A transfer of a "Computer Systems" means the computer systems on which
controlling interest in the equity of Licensee shall be deemed Informix has made the Products generally commercially
an assignment for purposes of this subsection. Subject to the available.
foregoing,this Agreement will bind and inure to the benefit of
any successors or assigns. "Confidential Information" means Informix pricing or
information concerning new Informix products, trade secrets
3. Neither party will be responsible for failure of performance, and other proprietary rights; and any business, marketing or
other than for an obligation to pay money, due to causes technical information disclosed by Informix or Licensee in
beyond its control, including,without limitation, acts of God or relation to this Agreement, and identified in writing as
nature; labor disputes; sovereign acts of any federal, state or confidential by, or proprietary to, the disclosing party.
foreign government;or shortage of materials. Confidential Information does not include information (a)
already in the possession of the receiving party without an
4. Notices will be delivered to a party's address stated in the obligation of confidentiality, (b) hereafter rightfully furnished to
signature block of this Agreement, or to another address the receiving party by a third party without a breach of any
which a party properly notified the other that notices should separate nondisclosure obligation, (c) publicly available
be sent. without breach of this Agreement (i.e., information in the
public domain), (d)furnished by the disclosing party to a third
5.This Agreement is the complete and exclusive statement of party without restriction on subsequent disclosure, or (e)
the parties to this Agreement on these subjects, and independently developed by the receiving party without
supersedes all prior written or oral proposals and reliance on the Confidential Information.
understandings relating thereto, including the End User
Agreement enclosed with the "shrink-wrap" version of a "Development Product" means the standard proprietary
Product. This Agreement may only be modified by a writing Informix computer software packages made generally
signed by an officer of Informix and an authorized commercially available by Informix within the Territory, which
representative of Licensee. This Agreement takes include the object code form of the computer programs on
precedence over any purchase order issued by Licensee, magnetic media, User Documentation and an End User
which is accepted by Informix for administrative convenience Agreement.
mar.8.96 conva.ceu
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"Effective Date" means the date reflected in the signature "Schedule Effective Date" means the date reflected on the
block of this Agreement. front of an Informix Schedule.
"End User" means, as appropriate, either Licensee or any "User Documentation" means the Informix user manual(s)
third party individual, business or governmental entity which and other written materials on proper installation and use of,
acquires one or more copies of the Products for personal or and which are normally distributed with, the software portion
internal business use, and not for transfer to others. of the Products.
"End User Agreement" means the standard Informix
agreement accompanying each copy of the Products which
specifies the terms and conditions by which an End User may
use the Products.
"Export Laws" means all laws, administrative regulations, and
executive orders of any applicable jurisdiction relating to the
control of imports and exports of commodities and technical
data, including, without limitation, the Export Administration
Regulations of the U.S. Department of Commerce, the
International Traffic in Arms Regulations of the U.S.
Department of State, and the Enhanced Proliferation Control
Initiative.
"Illustra Products" means a subset of the Products and
include the Illustra server and those Illustra software
programs made generally commercially available specifically
for use with the Illustra server.
"Informix Schedule" means a form containing additional terms
and conditions of this Agreement which is (i) attached to this
Agreement or, (ii)when placed after the Effective Date, refers
to this Agreement and initialed by Licensee.
"New Product" means a release and any associated User
Documentation which Informix in its sole discretion
designates as a New Product; is made generally
commercially available by Informix; and is marketed by
Informix as a New Product even if it is capable of being
integrated with a Product.
"Price List" means the Informix price list for the United States
and Canada, in effect at the time Licensee orders from'
Informix. The price for Products deployed within the United
States and Canada shall be as set forth in the Price List. The
price for Products deployed outside the United States and
Canada shall be as set forth in such local country's Price List.
Products deployed outside the United States and Canada
shall be ordered from the local country in which such
Products shall be deployed.
"Product" means, as applicable, the Development Products,
the Runtime Products or all such products as Informix makes
generally commercially available.
"Runtime Product" means a portion of the Development
Product which is composed of various modules and libraries
made generally commercially available by Informix within the
Territory as either runtime files or files which are included only
in a linked form. Runtime Products include an End User
Agreement but do not include User Documentation.
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