HomeMy WebLinkAboutMHC SOFTWARE, INC.INSURANCE NOT REQUIRED
WORK MAY PROCEED
CLERK OF COUNCIL
N-2008-164
DATE: '~ ~ `~ ~~~ SOFTWARE, LICENSE AGREEMENT
(~ _ ~i~a~~c~ (2~
~ 1ra ~~ This Software License Agreement ("Agreement") is entered into between
~~'t' ~`~ MHC Software, Inc., 11900 Portland Avenue South, Burnsville, MN 55337 ("MHC") and
City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701 ("Customer").
1. Definitions.
Software. The term "Software" shall mean the computer program in object code only
and the respective user manuals described in the specifications set forth in Exhibit A,
which is incorporated by reference into this Agreement. The term "Software" includes
any corrections, bug fixes, enhancements, updates or other modifications, including
custom modifications, to such computer program and user manuals.
Document Express Accounts Payable SoftwareTM (hereinafter "DEAP") imports,
prints, and stores laser accounts payable checks.
Document Express Forms SoftwareTM (hereinafter "DEFO'~ imports, prints, and stores
laser documents, including the following initial forms: purchase order.
Document Express 1099 ModuleT"" (hereinafter "DE1099'~ prints and aligns the 1099
data on a preprinted laser form. Includes formatting for 1099 Miscellaneous, 1099
Interest, and 1099 Dividend forms.
AutoDocument Express ModuleT"' (hereinafter "DEAUTODE") Automate Document
Express import and print routines for forms applications without user intervention.
Standalone Computer Use
A "Seat" (hereinafter Seat) is defined as a copy of the Software being loaded on a single
computer. For the following Software Products: DEAP and DE1099, the Customer must
acquire one copy of the Software for each computer (Seat) on which the Softwaze will be
installed. One backup or archival copy of the software may also be loaded on a
computer and used for processing (Backup Seat).
The Customer may use the following software products: DEAP and DE 1099 at the
number of sites listed in Exhibit A, in the quantity stated in Exhibit A (number of seats),
either on a standalone computer or on a network. In addition Customer may make one
(1 }archival copy of the Software.
Site License Use
A site is defined as a specific office building with a specific address, or a contiguous
group of buildings at a "campus" location. The Customer may use the following
Software Products at the number of sites listed in Exhibit A.
The licensed site for the purpose of this software agreement is: City of Santa Ana, 20
Civic Center Plaza, Santa Ana, CA 92701. The DEFO Software may not be used at any
location outside of City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701
unless additional license(s) are purchased. The customer must acquire one copy of the
Software for each additional site. The site license allows the customer to unlimited users
at the above listed site. The site license places no restrictions on number of users that
may access the software at one time. The software maybe installed on standalone
computers or over a network. Additionally, the customer may make one (I) archival
copy of the Software.
License Effective Date. This Agreement and the license granted hereunder shall take
effect upon the date that the last party executes this Agreement.
2. License.
MHC grants to the Customer, pursuant to the terms and conditions herein, a perpetual,
nonexclusive, nontransferable license to use the Software.
Restrictions on Use. Customer agrees to use the Software only for Customer's own
business. Customer shall not (i) permit any parent, subsidiaries, affiliated entities or third
parties to use the Software, (ii) process or permit to be processed the data of any other
party, (iii) use the Software in the operation of a service bureau, or (iv) allow access to
the Software through any terminals located outside of Customer's Site.
Copies. Customer, solely to enable it to use the Softwaze, may make one azchival copy
of the Software's computer program, provided that the copy shall include MHC's
copyright and any other proprietary notices. The Software delivered by MHC to
Customer and the archival copy shall be stored at Customer's Site. Customer shall have
no other right to copy, in whole or in part, the Software. Any copy of the Software made
by Customer is the exclusive property of MHC.
Modifications, Reverse Engineering. Customer agrees that only MHC shall have the
right to alter, maintain, enhance or otherwise modify the Software. Customer shall not
disassemble, decompile or reverse engineer the Software's computer program.
Material Terms and Conditions. Customer specifically agrees that each of the terms
and conditions of this Section 2 are material and that failure of Customer to comply with
these terms and conditions shall constitute sufficient cause for MHC to terminate this
Agreement. The presence of this Section 2 shall not be relevant in determining the
materiality of any other provision or breach of this Agreement by either party.
3. Intellectual Property Rights.
All intellectual property rights in the Software and user documentation are owned by
MHC are protected by United States and Canadian intellectual property laws (including
patent, trademark and copyrights laws), other applicable intellectual property laws, and
international treaty provisions. MHC retains all rights not expressly granted.
Indemnification
MHC shall indemnify and hold Customer harmless from and against any claim of
infringement of a United States patent or copyright based upon the Software, provided
Customer gives MHC prompt notice of and opportunity to defend any such claim. MHC
shall have the right to settle the claim or at MHC option, provide Customer (i) a paid-up
license; (ii) substitute functionally equivalent software; or (iii) a refund of a pro rata
portion of the license fee paid for the software based on a deemed license term of one (1)
year. MHC will not provide indemnification if the Customer modifies the software or
uses the software in a manner that does not comply with this Agreement.
4. Limited Warranty.
From your date of purchase through July 1, 2009, MHC warrants that (i) the Softwaee
will substantially conform to the applicable user documentation and (ii) that the magnetic
media on which the Software is distributed and the user documentation (if any) are free
from defects in materials and workmanship. MHC will, at its option, refund the amount
you paid for the Software or provide you with corrected items at no chazge provided that
the defective item(s) is returned to MHC by 7uly 1, 2009. Any misuse or unauthorized
modification of the Software will void this limited warranty.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, MHC MAKES NO
WARRANTY, REPRESENTATION, PROMISE, OR GUARANTEE, EITHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
SOFTWARE, USER DOCUMENTATION OR RELATED TECHNICAL SUPPORT,
INCLUDING THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY WITH
RESPECT TO THE QUALITY, ACCURACY, FREEDOM FROM ERROR OF THE
OPERATION, USE AND FUNCTION OF THE SOFTWARE.
The warranty and remedies set forth herein are exclusive and in lieu of all others, oral or
written, express or implied. No MHC dealer, distributor, agent or employee is authorized
to make any modification or addition to this warranty. This warranty gives you specific
legal rights, and you may also have other rights, which vary from state to state.
5. Limitation of Liability.
Because software is inherently complex and may not be completely free of errors, it is
your responsibility to verify your work and to make backup copies, and MHC will not be
responsible for your failure to do so. In no event will MHC be liable for indirect, special,
incidental, tort, economic, cover or consequential damages arising out of the use of or
inability to use MHC products or services, including, without limitation, damages or
costs relating to the loss of profits, business, goodwill, data or computer programs even if
advised of the possibility of such damages. In no case shall MHCs' liability for money
damages exceed the amount paid by you for the Software out of which such claim arose.
The foregoing limitations shall not apply to claims relating to death or personal injury
which arise out of products deemed to be consumer goods under applicable law. Some
states or provinces do not allow the exclusion or limitation of implied warranties or
limitation of liability for incidental or consequential damage, so the above exclusion or
limitation may not apply to you.
No action or claim relating to this Agreement may be instituted more than one (1) year
after the event-giving rise to such action or claim. This contract will be governed and
construed in accordance with the laws of the Orange County, CA, and any action taken
regarding this agreement will take place in California.
6. Maintenance and Future Improvements.
This License entitles Customer to the following maintenance services: Document
Express Software upgrades, continuing compatibility with ERP Applications, forms
design and interface changes resident to an E1ZP Software upgrade, and customer service
and technical support through July 1, 2009. The initial maintenance (from purchase to
July 1, 2009) is included in the Combined system purchase price/License Fee. Upon the
signing of this Agreement, Customer and MHC have entered into the following
Maintenance Agreement: commencing after July 1, 2009 and continuing for a term of
three years thereafter, Customer will receive all maintenance, support and future
improvements to the Software. Customer agrees to pay an annual fee equal to 18% of the
current list yrice at the time the maintenance fee is due as specified in Exhibit B. Annual
payments will commence on July 1, 2009 and continue for a period of three years. At the
end of the first and successive three years terms, the Maintenance Agreement shall
automatically renew for a successive three year term unless thirty days written notice is
given by either party to the other in advance of the expiration of such three year term.
The Maintenance Agreement also entitles the Customer to ongoing customer service and
technical support while the maintenance contract is in effect. MHC shall provide
telephone support during the hours of 8:00 am to S:OOpm Central Time, Monday through
Friday, exclusive of national holidays.
a. Support window of 8:OOam to S:OOpm Central Standard Time Support.
b. During crucial processing times, the Document Express Support Team
will make a member available for after hours calls. Examples of these
situations include a first live run using the software or a special payroll
run. Any special hours must be schedule ahead of time with a Document
Express Support Team member.
c. Response times to support calls are handled within four hours; however,
knowing the crucial nature of printing checks, calls are usually handled
much faster.
d. Emergency situations can be handled with a paging option this is for
emergency calls during normal support hours. All calls are routed through
the Document Express Customer Service Team. The service team will
escalate the calls if necessary getting a technical staff member involved to
help with trouble shooting or programming changes.
The Maintenance Agreement does not include additional Custom Programming Services
not licensed for under this Agreement, on-site support or training, and hardware or
related supplies.
MHC reserves the right to terminate the Maintenance Agreement if the Customer is over
30 days delinquent on payment of goods or services to MHC. In the event of any
conflict between the terms and conditions of this Agreement and the terms and conditions
of any purchase order, the terms and conditions of this Agreement shall control.
7. General Provisions.
Complete Agreement. The parties agree that this Agreement and all incorporated
Exhibits, is the complete and exclusive statement of the agreement between the parties,
which supersedes and merges all prior proposals, understandings and all other
agreements, oral or written, between the parties relating to this Agreement.
Amendment. This Agreement may not be modified, altered or amended except by
written instrument duly executed by both parties. Additional software products or
licenses maybe purchased through an amendment to this Agreement.
Waiver. The waiver or failure of either party to exercise in any respect any right
provided for in this Agreement shall not be deemed a waiver of any further right under
this Agreement.
Corporate Authority. Each individual executing this Agreement on behalf of any
corporation or other entity, which is a party to this Agreement, represents and warrants
that he or she is duly authorized to execute and deliver this Agreement on behalf of said
entity.
Notices. All notices required or permitted to be given hereunder shall be in writing and
may be personally served, or deposited in the United States mail registered or certified,
return receipt requested, and postage prepaid. Mailings shall be addressed as follows:
MHC: MHC Software, Inc.
Attn: Catherine Beattie
11900 Portland Avenue South
Burnsville, MN 55337
Customer: City of Santa Ana
Finance and Management Services Agency
Attn: Pamela Arends-King
20 Civic Center Drive (M-17)
P.O. Box 1988
Santa Ana, CA 92702
or to such other address as such party shall have specified most recently by written notice
delivered in such manner. Mailed notice shall be deemed given on the third business day
following the date mailed.
Successors and Assigns. The Agreement shall be binding upon each of the parties, its
successors and assigns.
Severability. If any provision of this Agreement is invalid, illegal or unenforceable
under any applicable statute or rule of law, it is to that extent to be deemed omitted. The
remainder of the Agreement shall be valid and enforceable to the maximum extent
possible.
Terms and Conditions. This Software License Agreement is subject to the above
provisions all of which are hereby agreed to by MHC and Customer. The Customer will
pay al] sales and use taxes. In states that MHC does not collect sales tax, Customer
agrees to pay any applicable use tax directly to the appropriate authority.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
set forth below.
Accepted for Customer:
Accepted for MHC Software, Inc.:
CITY OF SANTA ANA
By
,.(~ignature)
Name: David N. Ream
(Please type or print name)
By:
(Signature)
Name: ~~ ~ ~ ~ ~ ~ (~~
(Please type or print name)
Title: City Manager Title: ~~-'
(MHC Software, Inc.)
Date:
ATTEST:
Pa ricia E. H~ 1 , 'le~f the l;ouncil
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
J
By: ~ -
La ra Sheedy, Assistant City ttorney
Date: ~ ~~ ~ <~
RECOMMENDED FOR APPROVAL:
Francisco Gutierrez, Executive Dire for
Finance and Management Services Agency
Exhibit A to
Software License Agreement Dated as of
License Fee and Payment Schedule
Exhibit A to the Software License Agreement between MHC Software, Inc., 11900
Portland Avenue South, Burnsville, MN 55337 ("MHC") and City of Santa Ana, 20 Civic
Center Plaza, Santa Ana, CA 92701 ("Customer").
Software Modules:
License
Current List
Amount Price
Document Express Software Package Accounts $9,995.00 $11,995.00
Payable
(Includes 1 Site (1 Seat, 1 Back-up))
1099 Module $1,495.00 $2,495.00
Document Express Laser Forms Module $9,995.00 $11,995.00
(Includes 1 Site (1 Seat, 1 Back-up))
Auto Document Express $1,495.00 $2,495.00
Software Total $22,980.00
Software Services will be subcontracted through Lawson Software
Payment Terms: 50% of software purchase price due at time of purchase. Balance due
30 days after software delivery.
Exhibit B to
Software License Agreement Dated as of _
Maintenance Fee Schedule
Exhibit B to the Software License Agreement between MHC Software, Inc., 11900
Portland Avenue South, Burnsville, MN 55337 ("MHC") and City of Santa Ana, 20 Civic
Center Plaza, Santa Ana, CA 92701 ("Customer").
The annual maintenance fee is 18% of current list price at the time the maintenance fee is
due. Listed below are the current list prices of the following Software products as of
Software Agreements License Effective date of
Document Express Accounts Payable Software Module $12,495 00
1099 Module 11,995.00
Document Express Laser Forms Software Module $ 2,495.00
AutoDocument Express Module
Total Software Current List Price: $ 28,980.00.
Annual Mainten