Request For Proposal # <><><>
AWARD TERMS AND CONDITIONS
ANY AWARD MADE AS A RESULT OF THIS RFP PROCESS WILL BE GOVERNED BY THE REGENTS OF THE
UNIVERSITY OF MINNESOTA AWARD TERMS AND CONDITIONS.
IF YOU TAKE EXCEPTION OR WISH TO PROPOSE A DEVIATION TO ANY TERM OR CONDITION BELOW, DO SO
CLEARLY AND CONSPICUOUSLY IN YOUR PROPOSAL BY REFERENCING THE SPECIFIC SECTION NUMBER OF
THE TERM OR CONDITION AND BY DESCRIBING THE EXCEPTION OR DEVIATION.
IF YOU DO NOT CLEARLY AND CONSPICUOUSLY TAKE AN EXCEPTION OR PROPOSE A DEVIATION TO A
SPECIFIC TERM OR CONDITION, YOU SHALL BE BOUND BY SUCH TERM OR CONDITION IN THE EVENT AN
AWARD IS MADE TO YOU.
THE UNIVERSITY RESERVES THE RIGHT TO EACH INSTANCE TO (1) ACCEPT WITH DEVIATIONS OR
EXCEPTIONS, (2) NEGOTIATE DEVIATIONS OR EXCEPTIONS OR (3) REJECT A PROPOSAL WITH DEVIATIONS
DEEMED UNACCEPTABLE BY THE UNIVERSITY AND ITS OPTION AND IN THE EXERCISE OF ITS SOLE
DISCRETION.
SOFTWARE LICENSE AGREEMENT
BETWEEN
__________________________________
AND
THE REGENTS OF
THE UNIVERSITY OF MINNESOTA
Software License Agreement
Table of Contents
INDUCEMENTS ............................................................................................................................ 6
DEFINITIONS ................................................................................................................................ 6
1.
LICENSE ............................................................................................................................ 9
1.1
Grant of License ....................................................................................................... 9
1.2
License Fee .............................................................................................................. 9
1.3
Source Code ............................................................................................................. 9
2.
TITLE.................................................................................................................................. 9
3.
AUTHORIZED USERS ..................................................................................................... 9
3.1
Authorized Users ..................................................................................................... 9
3.2
Number of Users ...................................................................................................... 9
4.
PLATFORM SPECIFICATIONS ....................................................................................... 9
4.1
Program Sets ............................................................................................................ 9
4.2
Multiple Platforms ................................................................................................. 10
5.
ENVIRONMENTAL SPECIFICATIONS........................................................................ 10
6.
DELIVERY AND INSTALLATION ............................................................................... 10
6.1
Delivery and Risk of Loss ...................................................................................... 10
6.2
Shipments............................................................................................................... 10
6.3
Installation by Supplier .......................................................................................... 10
6.4
Installation by Customer ........................................................................................ 11
7.
PAYMENT AND INVOICING ........................................................................................ 12
7.1
License Fee ............................................................................................................ 12
8.
INVOICING ...................................................................................................................... 12
8.1
Invoice and Payment ............................................................................................. 12
8.2
Maintenance Invoices ........................................................................................... 12
8.3
Trade-In Credit ...................................................................................................... 12
8.4
Conversion ............................................................................................................ 12
9.
DIVESTITURE OF A SUBSIDIARY .............................................................................. 12
10.
SUPPLIER INSURANCE ................................................................................................ 13
11.
ACCEPTANCE TESTING ............................................................................................... 13
11.1 Live Environment Testing .................................................................................... 13
11.2 Correction of Specification Nonconformities ....................................................... 13
11.3 Acceptance Testing ............................................................................................... 13
11.4 Maintenance During Acceptance Testing ............................................................. 15
2
11.5
11.6
Failure to Complete Acceptance Testing Successfully ......................................... 15
Use Shall Not Constitute Acceptance ................................................................... 16
12.
DOCUMENTATION AND TRAINING .......................................................................... 16
12.1 Documentation ...................................................................................................... 16
12.2 User Group, Bulletin Boards, and Internet Sites ................................................... 16
12.3 Training ................................................................................................................. 16
13.
MAINTENANCE SERVICES ......................................................................................... 17
13.1 Maintenance (Overview)....................................................................................... 17
13.2 Maintenance .......................................................................................................... 17
13.3 Response Times .................................................................................................... 17
13.4 Service Tracking and Reporting ........................................................................... 18
13.5 Maintenance Fee (Customer Error)....................................................................... 18
13.6 Maintenance Fees/Cap .......................................................................................... 21
13.7 Revision Levels ..................................................................................................... 18
13.8 Inoperability .......................................................................................................... 18
13.9 Reinstatement ........................................................................................................ 18
13.10 Liquidated Damages ............................................................................................. 19
14.
WARRANTIES ................................................................................................................ 19
14.1 Media Defects ....................................................................................................... 19
14.2 Function and Features ........................................................................................... 19
14.3 Performance .......................................................................................................... 19
14.4 Compatibility ........................................................................................................ 19
14.5 Ninety-Day Warranty ............................................................................................ 19
14.6 Conformance to Specifications ............................................................................. 20
14.7 Hardware Configuration ....................................................................................... 20
14.8 Pass-Through of Warranties.................................................................................. 20
14.9 Governmental Consent.......................................................................................... 20
14.10 No Actions, Suits, or Proceedings ........................................................................ 20
14.11 Free and Clear Title............................................................................................... 20
14.12 Infringement .......................................................................................................... 21
14.13 Good and Workmanlike Manner .......................................................................... 21
14.14 Future Support ...................................................................................................... 21
14.15 Warranty of Past Success ...................................................................................... 21
14.16 Warranty of Supplier Capability ........................................................................... 21
14.17 Most Favored Customer ........................................................................................ 21
14.18 Century Date Change Requirements ..................................................................... 22
15.
MODIFICATIONS AND PROPRIETARY RIGHTS ...................................................... 22
15.1 Supplier Modifications.......................................................................................... 22
15.2 Customer Modifications........................................................................................ 23
15.3 Confidential Information of Supplier .................................................................... 23
15.4 Termination of Supplier’s Right to Possess Confidential Information ................. 23
15,5 Nondisclosure……………………………………………………………………29
16.
PROHIBITION ON PUBLICITY ..................................................................................... 24
17.
EQUITABLE RELIEF AND SURVIVAL OF RESTRICTIONS AND
3
OBLIGATIONS ................................................................................................................ 24
17.1 Equitable Relief .................................................................................................... 24
17.2 Survival of Obligations ......................................................................................... 24
18.
INDEMNIFICATION ....................................................................................................... 24
18.1 General .................................................................................................................. 24
18.2 Intellectual Property .............................................................................................. 24
18.3 Judgment ............................................................................................................... 24
18.4 Personnel ............................................................................................................... 25
19.
ILLICIT CODE ................................................................................................................. 25
20.
LIMITATION OF LIABILITY ......................................................................................... 25
21.
INDEPENDENT OBLIGATION OF SUPPLIER TO CONTINUE PERFORMANCE .. 25
21.1 Nature of Independent Obligation ......................................................................... 25
21.2 Liquidated Damages for Breach by Supplier of Independent Obligation ............. 26
22.
ASSIGNMENT ................................................................................................................. 26
22.1 Supplier Assignment ............................................................................................. 26
22.2 Customer Assignment ........................................................................................... 26
23.
TIME IS OF THE ESSENCE ........................................................................................... 26
24.
SOURCE CODE ESCROW ............................................................................................. 26
24.1 Release of Escrow ................................................................................................. 26
24.2 Customer’s Rights and Obligations After Release of Source Code...................... 27
24.3 Escrow Sufficiency ............................................................................................... 27
24.4 Escrow Verification .............................................................................................. 27
24.5 Source Code Installation ....................................................................................... 28
25.
TAXES .............................................................................................................................. 29
26.
MISCELLANEOUS ......................................................................................................... 29
26.1 Cumulative Remedies ........................................................................................... 29
26.2 Notices .................................................................................................................. 29
26.3 Counterparts .......................................................................................................... 29
26.4 Waiver ................................................................................................................... 29
26.5 Entire Agreement .................................................................................................. 29
26.6 Amendment ........................................................................................................... 29
26.7 Severability of Provisions ..................................................................................... 30
26.8 Benefit of Successors and Assigns........................................................................ 30
26.9 Relationship of Parties .......................................................................................... 30
26.10 Governing Law; Choice of Forum and Attorneys Fees ........................................ 30
26.11 Compliance with Laws.......................................................................................... 30
26.12 Order of Precedence……………………………………………………………..37
26.13 Anti-Kickback Enforcement Act of 1986……………………………………….37
26.14 Debarment and Federal Funding………………………………………………...37
26.15 Anti-Trust Violations……………………………………………………………38
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EXHIBITS............................................................................................................................. 32
Exhibit A - Program Set ........................................................................................................ 33
Exhibit B - Hardware and Software Requirements ............................................................... 34
Exhibit C - Escrow Agreement ............................................................................................. 35
Exhibit D - Maintenance Fee Schedule................................................................................. 36
Exhibit E - Request for Proposal……………………………………………………………44
Exhibit F - Response to Request for Proposal………………………………………………45
Exhibit G - Certificate of Compliance with Federal Requirements………………………...46
5
Software License Agreement
THIS SOFTWARE LICENSE AGREEMENT, including all Exhibits attached hereto and incorporated herein by
reference (the Agreement), is made and entered into as of the ___________ day of __________ 20___, by and
between The Regents of the University of Minnesota____________________, a constitutional
corporation._____________ located at Minneapolis, Minnesota______________________, (Customer) and
___________________________, Inc., a _________________ Corporation with its principal place of business
located at ____________________, (Supplier), with reference to the following facts:
This Agreement is null and void if not executed by both parties within ______ days of the date first written
above.
INDUCEMENTS
A.
Customer is, among other activities, currently engaged in the business of providing
______________________________________________________ to its customers. Customer
is currently fulfilling the information processing requirements of
_________________________________ through a combination of manually performed
procedures and automated processing performed by an existing computerized information
management system.
B.
Customer has submitted to Supplier a Request For Proposal dated _____________ (the RFP)
setting forth certain information regarding
_________________________________________________. Based on the results of Supplier’s
review and analysis of the RFP, Supplier has prepared and delivered to Customer a Proposal
dated ___________________ (the Proposal) setting forth representations including conclusions,
recommendations, and benefits. The RFP and the Response are attached as Exhibits E and F
respectively. These representations specify the appropriate hardware, software, services, and
related operating procedures required to provide Customer with the capabilities specified in the
RFP’s technical requirements and specifications for ongoing operations; and further to provide
Customer with the capability and the flexibility sufficient to handle its current and reasonable
anticipated growth in an economical and commercially feasible manner. Customer is relying
upon such recommendations, and Customer has or will acquire the hardware described in Exhibit
B (the Software and Hardware Requirements) pursuant to the Supplier’s recommendations as set
forth in the Proposal (the Recommended Hardware Configuration).
C.
On the basis of the representations contained in Supplier’s Proposal, presentations, other printed
material, correspondence, discussions, and the Supplier-developed functional specifications
provided to Customer on _____________, 20__. In reliance upon the expertise of Supplier in
analyzing, designing, and providing software systems appropriate for applications such as
information management, Customer desires to engage Supplier to license certain software and to
implement certain of the software development and hardware recommendations contained in the
Proposal on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the inducements, mutual covenants, and conditions herein contained,
the parties agree as follows:
DEFINITIONS
6
Acceptance Test Procedure means the benchmarks and other performance criteria used to measure the
effectiveness of the Licensed Software and the means used to test such performance. Acceptance Test
Procedures shall be developed by Customer and Supplier jointly.
Authorized User has the meaning described in Section 3.1.
Confidential Information has the meaning described in Section 15.3.
Conversion Period means a period of time not to exceed six (6) months, during which Customer converts to a
new Operating System under Section 8.4.
CPU means any computer or computer system that is used in the Customer’s business to store, process, or
retrieve data or perform other functions using operating systems and applications software.
Critical Program Error means any Program Error, whether or not known to Customer, which prohibits or
significantly impairs use of the Licensed Software as set forth in the Documentation and intended in this
Agreement.
Customer means any and all campuses and sites of the University of Minnesota or any such location under the
control of Customer or is subject to Customer’s control under a contract.
Customer's Processing Requirements mean those processing requirements as defined and set forth in the RFP.
Customer Modifications shall have the meaning described in Section 15.2.
Documentation means the user’s manuals and any other materials in any form or medium customarily provided
by the Supplier to the users of the Licensed Software which will provide to Customer sufficient information to
operate, diagnose, and maintain the Licensed Software properly, safely and efficiently.
Effectiveness Level has the meaning described in Section 11.3.3.B.
Final Acceptance has the meaning described in Section 11.
Installation Date means the date upon which the procedures described in Section 6.3 or Section 6.4 are
completed.
Licensed Software includes any and all software and Documentation to which Customer obtains or is granted
any rights under this Agreement.
Module means a collection of routines and data structures that perform a specific function of the Licensed
Software.
Operating System means the control program in a computer that provides the interface to the computer
hardware and peripheral devices, and the usage and allocation of memory resources, processor resources,
input/output resources, and security resources.
Outsourcing means obtaining computing or related services from a source outside of Customer’s company.
Computing or related services may include programming and/or executing the Customer’s Licensed Software on
Customer’s CPUs, programming and/or executing Customer’s programs and Licensed Software on Outsourcing
7
Company’s CPUs, or any mix thereof.
Outsourcing Company is a company that provides Outsourcing services under contract to Customer.
Platform means a specific hardware and Operating System combination that is different from other hardware
and Operating System combinations to the extent that a different version of the Licensed Software product is
required to execute properly in the environment established by such hardware and Operating System
combination.
Product means a Module, a System, or any other software-related item provided by Supplier to Customer.
Program Error means code in the Licensed Software that produces unintended results or actions, or which
produces results or actions other than those described in the Specifications. A program error includes, without
limitation, any “Critical Program Error.”
Program Set means the group of programs and products, including the Licensed Software specified in Schedule
A plus any additional programs and products licensed by Customer under this Agreement for use by Customer.
Project means the total of all Software, Documentation, and services to be provided by Supplier under this
Agreement.
Recommended Hardware Configuration means the data processing hardware (including all terminals,
auxiliary storage, communication, and other peripheral devices) as recommended by the Supplier as necessary to
meet Customer's processing requirements.
Specification Nonconformities mean any performance of software that is not in accordance with Supplier
definitions based on operating manuals, and Supplier’s response to the RFP.
Specifications means the information provided by or on behalf of Supplier that fully describes the capabilities
and functionality of the Licensed Software as set forth in any material provided by Supplier, including the
Documentation and user’s manuals described herein, and in the Supplier’s response to the RFP.
Subsidiary means any company, partnership, or joint venture directly or indirectly controlled by Customer,
whether through ownership, contract, or otherwise.
Supplier Modifications has the meaning described in Section 15.1.
System means any collection or aggregation of two (2) or more Modules that is designed to function, or is
represented by Supplier as functioning or being capable of functioning as an entity.
Upgrade shall be any improvement or change in the Software that improves or alters its basic function.
Warranty Period has the meaning described in Section 14.6.
8
1.
2.
LICENSE
1.1
Grant of License
On the terms and conditions set forth herein, Supplier hereby grants to Customer a fully paid-up,
irrevocable, nonexclusive, worldwide, perpetual license to use the Licensed Software and
Documentation, plus any Licensed Software which shall be added to the Program Set during the
term of this Agreement, on or in connection with any CPU utilized by Customer to fulfill its own
data processing needs.
1.2
License Fee
In consideration of the License granted to Customer hereunder, Customer shall pay to Supplier a
License Fee as provided in Exhibit A.
1.3
Source Code
Licensee’s rights to utilize the Licensed Software shall include the source code of the Licensed
Software in the event the conditions of Section 24 herein are met.
TITLE
Supplier hereby warrants that it is either the sole owner of all right, title, and interest in and to, or is
authorized to license to Customer the Licensed Software and that it is authorized to enter into this
agreement. Upon request of Customer, supplier shall demonstrate that all aspects of the Licensed
Software are its original work or that Supplier is authorized to sublicense on the terms stated herein.
3.
4.
AUTHORIZED USERS
3.1
Authorized Users
Customer shall not permit any Licensed Software to be used by any other person, except for
employees, agents, consultants, Outsourcing Companies, and contractors who need to use the
Licensed Software in the performance of their duties for Customer and who are authorized and
enabled by Customer to access and utilize the Licensed Software (Authorized User).
3.2
Number of Users
There shall be no limit on the number of machines, number of users, number of locations or size
of CPU on which Customer can operate the Licensed Software. Customer shall have the right to
receive free of charge additional copies of the Licensed Software and Documentation as required
by customer for use on additional or alternate computers for Customer’s business operations.
PLATFORM SPECIFICATIONS
4.1
Program Sets
Supplier shall deliver to Customer one copy of the Licensed Software and Documentation for
each Platform as set forth in Exhibit A. At the request of Customer, Supplier shall deliver to
Customer a copy of the Licensed Software in CD-ROM or other media format, from which
Licensee may make copies for its use consistent with the limitations of this Agreement. Supplier
acknowledges that it has been advised of Customer’s current Platform and warrants that the
Licensed Software will operate in accordance with the Specifications on that Platform.
9
4.2
5.
Multiple Platforms
Customer shall have the right, at no additional cost, to operate simultaneously on, move, or
upgrade the Licensed Software to other hardware Platforms on which the Licensed Software may
operate.
ENVIRONMENTAL SPECIFICATIONS
Supplier warrants, represents, and agrees that the Hardware and Software Requirements set forth in
Exhibit B attached hereto include all physical and environmental specifications necessary (including,
without limitation, Operating System version and feature requirements and limitations, DASD storage
requirements, CPU memory requirements, CPU processor type requirements, CPU feature requirements
and limitations, Internet and remote access capabilities, and equipment configuration and connection and
all other information required by such hardware and software) for the Licensed Software to be utilized
on the Recommended Hardware Configuration in accordance with the Specifications.
6.
DELIVERY AND INSTALLATION
6.1
Delivery and Risk of Loss
All deliveries under this Agreement shall be F.O.B. destination. Title and risk of loss of all
Licensed Software and media on which said Licensed Software is delivered shall remain at all
times with the supplier until Final Acceptance by the Customer.
6.2
Shipments
Within twenty (20) days following execution of this Agreement by Customer, Supplier shall ship
the Licensed Software to Customer’s place of business. Customer, at its sole discretion, may
delay delivery for up to ninety (90) days after execution of this Agreement. Shipments shall be
prepared and packed at Supplier’s expense and delivered via air or other fast transportation to
minimize delay. Customer shall pay all reasonable shipping charges for shipments requested by
Customer.
6.3
Installation by Supplier
If Customer has contracted in writing for installation by Supplier, then:
6.3.1
Within thirty (30) days following execution of this Agreement by Customer, Supplier
shall install the Licensed Software on Customer’s Platform at the Customer’s place of
business and make it ready for productive use. If delivery is delayed pursuant to Section
6.2, installation shall occur not more than ten (10) days after delivery of the Licensed
Software to Customer.
6.3.2
Customer, at its sole discretion, may delay installation for up to ninety (90) days after
delivery of the Licensed Software.
6.3.3
Supplier shall conduct its standard diagnostic evaluation at Customer’s site to determine
that the Licensed Software is properly installed and fully ready for productive use subject
to Acceptance Testing as provided in Section 11 below, and shall supply Customer with a
copy of the results of the diagnostic evaluation promptly after completion thereof.
6.3.4
The Licensed Software shall be deemed to be installed upon successful
10
completion of the diagnostic test and Customer’s approval of the results thereof. The
installation procedures of this Section 6.3 are in addition to all acceptance test procedures
required under Section 11 hereof.
6.4
Installation by Customer
If installation is to be performed by Customer, the Licensed Software shall be deemed to be
installed when all programs, program libraries, and user interfaces are copied to and initialized
on the appropriate CPU(s) and when Customer demonstrates that Licensed Software is
executable by invoking the primary function of each major component on the Platform. The
installation procedures of this Section 6. are in addition to all acceptance test procedures required
under Section 11 hereof.
11
7.
PAYMENT AND INVOICING
7.1
License Fee
7.1.1 In consideration of the License granted to Customer hereunder and the services to be
performed by Supplier hereunder, Customer shall pay to Supplier for each purchase made
under this Agreement which will be invoiced as provided in Section 8.1:
Payment Event
Delivery
Installation
Preliminary Testing
Final Acceptance
7.1.2
8.
9.
Percentage of Total License Fee Payable
25.0
25.0
25.0
25.0
The license fee for each product is calculated by multiplying the number of product(s)
licenses purchased by the purchase price for each product. The total license fee for each
purchase is calculated by adding the individual product license fees.
INVOICING
8.1
Invoice and Payment
At the conclusion of each payment event indicated above, Supplier will invoice Customer for the
appropriate amount, and Customer will pay any undisputed invoice within thirty (30) days of
receipt of that invoice by Customer.
8.2
Maintenance Invoices
Invoices for maintenance will be delivered to Customer by Supplier no later than sixty (60) days
prior to the expiration of the initial Warranty Period and each subsequent Maintenance Period
that is offered on an annual basis pursuant to Section 13 hereof. Failure to deliver said invoice at
least sixty (60) days prior to the expiration date will have the effect of extending the current
warranty or Maintenance Period to sixty (60) days after receipt of the invoice by Customer. All
notification periods for renewal of maintenance will be extended for thirty (30) days after receipt
of Supplier’s invoice.
8.3
Trade-In Credit
At any time during the Conversion Period, Customer may elect to return the Licensed Software
and any hardware or other products to Supplier for a credit which may be applied against future
acquisitions of software or other products or services from Supplier. This credit will be
calculated by reducing the original license fee by one-sixtieth (1/60) for each month or partial
month elapsing between the date of Final Acceptance and Customer’s return of the Licensed
Software to Supplier.
8.4
Conversion
For the purpose of changing the Licensed Software from one Operating System environment to a
different Operating System environment, Supplier will extend the rights of this License to the
new Operating System environment during the Conversion PeriodAfter the Conversion Period,
Customer may use the Licensed Software on the new Operating System without further charge.
DIVESTITURE OF A SUBSIDIARY
Not applicable.
12
10.
SUPPLIER INSURANCE
Unless more specific insurance provisions are attached, the following shall apply. At all times during its
performance under this Agreement, Supplier shall obtain and keep in force comprehensive general and
professional liability insurance, including coverage for death, bodily or personal injury, property damage,
including products liability and automobile coverages, with limits of not less than $1,000,000 each claim
and $3,000,000 each occurrence. All such certificates evidencing such insurance shall name the
University as an additional insured and shall specifically cover Supplier’s obligations to defend and hold
the University harmless as provided herein. Supplier represents that it has worker’s compensation
insurance to the extent required by law and agrees to furnish proof of such insurance upon request.
Supplier shall provide such certificates to the University prior to commencement of services or delivery
of goods
This Section 10 shall in no way affect the indemnification, remedy, or warranty provisions set forth in
this Agreement or Customer’s right of recovery thereunder.
11.
ACCEPTANCE TESTING
11.1
Live Environment Testing
As soon as practicable after installation, Customer may in its discretion begin utilizing the
Licensed Software in a live environment on the Platform. Upon completion of Phase 3 below,
the Licensed Software shall be deemed finally accepted (Final Acceptance). Nothing contained
in this Section or any other provision of this Agreement shall be deemed to prevent Customer
from using any portion of the Licensed Software in a live environment for productive processing
prior to Final Acceptance of the Licensed Software and any such use shall not alter, amend, or
modify any of Supplier’s obligations pursuant to this Agreement.
11.2
Correction of Specification Nonconformities
Any Specification Nonconformities revealed during any phase of the Acceptance Testing
Procedure described below (or in connection with any Preliminary Productive Use) shall be
promptly corrected by Supplier, and appropriate documentation for such correction shall be
produced and delivered to Customer within thirty (30) days of such correction.
11.3
Acceptance Testing
Upon completion of installation, Supplier and Customer shall perform Acceptance Testing of all
Licensed Software in the following three (3) phases. The Acceptance Testing requirements of
this Section also apply to substitute, replacement, and conversion products that are acquired by
Customer after the Licensed Software has passed earlier Acceptance Testing.
11.3.1 Phase One
Supplier shall initially perform its standard test procedures for Customer’s personnel and
shall certify to Customer in writing that all components and each applicable Module are
operating in accordance with the Supplier’s published specifications and the
Specifications provided to Customer. In the event the Supplier is unable to, or does not,
so certify to Customer within thirty (30) calendar days from the installation date, the
System and any applicable Module will be deemed not to have completed this phase of
the Acceptance Testing successfully.
11.3.2 Phase Two
13
With the advice and assistance of Supplier’s representatives, Customer will operate the
System for five (5) business days, using all software furnished by the Supplier necessary
for the Licensed Software to function as specified in this Agreement, to perform: (i) the
Licensed Software routine business transactions; (ii) transactions performed during preacceptance testing benchmark or other demonstration included, referenced, or
incorporated into the Acceptance Test Procedures; and (iii) such other transactions as may
be specified in the Acceptance Test Procedures. This Phase Two will be the Preliminary
Acceptance Testing. In the event the System fails to perform all such transactions, or
fails to run the Licensed Software, in accordance with applicable published specifications
or the Specifications provided to Customer, and within two percent (2%) of applicable
benchmark or other demonstration results stated in the Acceptance Test Procedures, for a
period of five (5) consecutive business days, Customer shall operate the System for
additional consecutive business days until the System so performs such transactions and
runs the Licensed Software for a period of five (5) consecutive business days. In the event
such failure continues in whole or in part for a period of more than thirty (30) calendar
days from the Installation Date, the System and any applicable Module will be deemed
not to have completed this phase of the Acceptance Testing successfully.
11.3.3 Phase Three
With the advice and assistance of Supplier’s representatives, Customer will operate the
System, using all Licensed Software furnished by Supplier or otherwise specified in this
Agreement, to determine whether the System and each Module of the Licensed Software
meet the Effectiveness Level.
A.
B.
Performance Period
1.
The Performance Period for Phase Three shall begin on the date the
System successfully completes Phase Two of the Acceptance Testing for
Final Acceptance (Preliminary Acceptance) and shall end when the System
and each Module have met the standard of performance for a period of
sixty-two (62) consecutive days by operating in conformity with Supplier’s
technical specifications, as quoted in the Specifications provided to the
Customer, and as otherwise generally published by Supplier, at an
Effectiveness Level of ninety-nine percent (99%) or better.
2.
In the event the System or any Module thereof fails to meet an
Effectiveness Level of ninety-nine percent (99%) after ninety (90) days
from the Installation Date, the System and any applicable Module will be
deemed not to have completed this phase of the Acceptance Testing
successfully.
Effectiveness Level
1.
The Effectiveness Level for the System or Component shall be computed
by dividing the Operational Use Time of the System or Module by the sum
of that time plus System or Module Failure Downtime.
2.
Operational Use Time for Acceptance Testing of the System or Module is
defined as the accumulated time during which the applicable System or
Module is in actual operation. During Phase Three of Acceptance Testing,
14
a minimum of one hundred (100) hours of Operational Use Time with
productive or simulated work will be required as a basis for computation
of the Effectiveness Level. In the event the actual Operational Use Time is
less than one hundred (100) hours, the initial thirty (30) consecutive day
period will be extended until such minimum period of use is reached. In
the event the actual Operational Use Time is in excess of one hundred
(100) hours, such actual time will be used for the computation of the
Effectiveness Level.
3.
System Failure Downtime is defined as the accumulated time during
which the applicable System or Module is inoperable due to product
failure. Downtime for each incident during the Performance Period shall
be measured from the time Supplier is notified of failure until the failure is
corrected by Supplier and the System or Module returns to its prior
Effectiveness Level, exclusive of actual initial response time required by
Supplier’s maintenance personnel, not in excess of one (1) hour per day,
on the day such maintenance service is requested. System Failure
Downtime shall not include any down or inoperable time that Supplier can
demonstrate is a result of (i) hardware malfunctions; (ii) failure to comply
with Recommended Hardware Specifications described in Exhibit B; (iii)
failure to comply with Environmental Specifications described in Section
5.
4.
Operational Use Time and System Failure Downtime shall be measured in
hours and whole minutes or the decimal equivalents thereof.
5.
Customer shall maintain appropriate daily records to satisfy the
requirements of this Section 11.3.3, and shall notify Supplier in writing of
the date of the first day of a successful Performance Period.
11.4
Maintenance During Acceptance Testing
Supplier agrees to provide Maintenance Services as set forth in this Agreement during all
Acceptance Testing. Such services shall be provided at no expense to Customer.
11.5
Failure to Complete Acceptance Testing Successfully
In the event the System or any Module is deemed not to have successfully completed any phase
of the Acceptance Testing, then Customer may, in its sole discretion, elect one (1) of the
following options, which election shall be effective upon written notification to the Supplier by
Customer:
11.5.1 Customer may terminate this Agreement and request the removal of the Licensed
Software and Components failing to meet the applicable phase of Acceptance Testing, in
which event Customer may pursue any remedy hereunder or available at law or in equity,
or seek to enforce any damages, including any liquidated damages that may be
specifically set forth in this Agreement.
11.5.2 Supplier shall install at Supplier’s sole cost and expense, within such time period as may
be mutually agreed in writing by Customer and Supplier, a direct replacement of the
Modules or System failing to meet the applicable phase of the Acceptance Testing. Such
replacements, and the applicable System, shall be subject to Acceptance Testing as
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provided in this Section 11. Supplier shall use due care in the removal and replacement of
such Modules or Systems.
11.6
12.
Use Shall Not Constitute Acceptance
In no event shall use of any Product by Customer, for business, profit, revenue, or any other
purpose during any phase of the Acceptance Testing, constitute acceptance of any Product by
Customer.
DOCUMENTATION AND TRAINING
12.1
Documentation
Supplier shall provide to Customer user manuals and related materials and/or give access to online documentation, sufficient to allow Customer to utilize fully the Licensed Software in
accordance with the Specifications. Documentation will include (but is not limited to) overview
descriptions of all major functions and detailed step-by-step operating procedures for each screen
and activity. The Documentation to be provided by Supplier is in addition to any on-line HELP
which is part of the Licensed Software user interface. Supplier shall deliver to Customer upon
execution of this Agreement _______ copies of the Documentation as well as a copy of the
Documentation in CD-ROM or other media format as requested by Customer. Supplier shall
revise such Documentation as necessary to reflect any modifications made by Supplier to the
Licensed Software. Customer may copy and incorporate the Documentation in works prepared
for Customer’s business endeavors so long as Customer includes all copyright, trademark, and
other notices of Supplier in the same form as they appear on or in the Documentation. Supplier
warrants and represents that the Documentation and all modifications or amendments thereto and
any other Documentation that Supplier is required to provide pursuant to this Agreement shall be
sufficient in detail and content to allow an appropriately skilled programmer to understand fully,
modify, enhance, and correct errors in the Licensed Software without reference to any other
materials or information. Supplier further hereby warrants and represents that the
Documentation and all modifications or amendments thereto and any other documentation which
Supplier is required to provide pursuant to this Agreement shall be in accordance with the
documentation standards in the present Documentation. If any user manual (including any online documentation) or portion thereof is the proprietary material or intellectual property of
another party, Supplier shall convey to Customer the right (to the extent possible under law) to
make copies and to use the material as Customer deems necessary.
12.2
User Group, Bulletin Boards, and Internet Sites
In addition to any other maintenance obligation or obligation to provide Documentation, Supplier
shall notify Customer of any user group, bulletin board, or internet site relating to the Licensed
Software or services provided by Supplier under this Agreement, and to the extent necessary,
provide access thereto.
12.3
Training
Supplier shall be responsible for providing Customer and its employees with such training in the
operation and maintenance of the Licensed Software as Customer may reasonably request from
time to time prior to execution of this Agreement and for a period of at least one hundred eighty
(180) days thereafter or other agreed upon time period. Such training shall be provided at
Customer’s principal place of business or other site agreed to by Customer, through instructors
satisfactory to Customer in the reasonable exercise of its discretion. Training will be performed
“hands-on” using the actual system and applicable user manuals. The courses will train
16
Customer-designated employees or agents, who can then train the Licensed Software operators,
such that Customer will have an ongoing in-house Licensed Software training capability.
Without limitation of the foregoing right, Supplier and Customer shall prepare and agree upon a
proposed training schedule for submissions to Customer not later than _______. Customer shall
be entitled to have any number of its employees attend any training session held pursuant to this
Section 12.3. All training shall be conducted at Supplier’s sole expense. Supplier’s employees
shall follow all of Customer’s work rules, confidentiality rules, and drug policies, including the
nondisclosure obligations of Section 15.3 hereof.
13.
MAINTENANCE SERVICES
13.1
Maintenance (Overview
Maintenance is not linked to usage or License rights. Maintenance is an option, to be acquired at
sole option of Customer. Cancellation of Maintenance Services by Customer will not in any way
affect this Agreement and the grant of License herein. Maintenance shall include options to
renew and if elected by customer, shall commence upon expiration of the warranty under
Section 14 and shall be renewed on an annual basis. Renewal of maintenance shall be by invoice
and payment as provided in Section 8.2.
13.2
Maintenance
So long as Customer pays the Maintenance Fees as specified in Section 13.2, Supplier shall
provide to Customer all generally publicly available improvements and additions to the
functionality, as well as new functions, of the Licensed Software and provide the Maintenance
services as specified herein. Supplier shall maintain the Licensed Software so that it operates in
conformity with all descriptions and Specifications herein or as otherwise provided by Supplier,
including Specifications for the performance of all improved or modified versions of the
Licensed Software which the Customer has been licensed to use. Maintenance services shall
include, at a minimum, the detection and correction of any software errors and the
implementation of all program changes, updates, upgrades, and installation of additional
programs provided under this Agreement discovered by the Customer or otherwise made known
to Supplier. Supplier agrees to respond to Customer inquiries regarding the use and functionality
of the Software as issues are encountered by Authorized Users.
13.3
Response Times
Supplier will provide on-call support twenty-four hours a day, seven days a week for the
Licensed Software per Exhibit D. (Note: This may be amended if RFP stipulates less service is
needed.) This will include qualified support personnel with expertise in the Licensed Software.
Response to system problems shall be within fifteen (15) minutes (Note: 15 minutes may be
amended if stipulated in the RFP) of notification by telephone or other means that shall be
mutually agreed. A temporary program fix or work around shall be provided within four hours of
notification for any problem designated as a Critical Program Error. Supplier shall provide a
permanent fix or workaround for a Critical Program Error within twenty-four hours of the
temporary fix unless Customer agrees in writing to a longer time. Supplier will respond within
the time as specified herein. All other problems will be fixed within five (5) days. Software
warranty service includes repair of any defects or deficiencies in coding and implementation of
the mutually agreed-upon system functionality. Initial response will normally be by electronic
access to Customer’s computer system on which the Licensed Software resides. Supplier will
commit the resources necessary to solve the Critical Program Error as specified herein.
Customer agrees to furnish reasonable assistance to Supplier in correcting the Critical Program
Error. If electronic access does not prove effective, Supplier will visit the site to determine the
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appropriate actions and resolve the problem. Supplier will pay for travel, hotel, and per diem
expenses unless Customer agrees in advance to other arrangements as stated in Section 13.6.
13. 4 Service Tracking and Reporting
Supplier shall maintain records of all service calls made by Customer’s personnel, including the
identity of the person calling and the person called, the nature of the reported problem, and
Supplier’s response time and disposition of the service call. Supplier shall provide reports to
Customer on a quarterly basis summarizing the support activity and detailing the responses made
to Critical Program Errors. The failure of Supplier to resolve or respond to Critical Program
Errors as required in Section 13.4 on more than ____ times in a given calendar quarter shall be
deemed a failure to provide maintenance under Section 24.1.1.
13.5
Maintenance Fee (Customer Error
In the event it is determined by Supplier that the problem was due to Customer error in the use of
the Licensed Software, as opposed to an error, defect or nonconformity in the Licensed Software
itself, Customer shall pay Supplier, Supplier’s standard commercial time and materials rates
charged under Exhibit D for all on-site service provided, plus Supplier’s actual travel and per
diem expenses
No such expenses will be reimbursed if the University shall have not first approved such
expenses in advance in each instance, or if such expenses are not consistent with University
policy on reimbursable expenses. This policy can be found at www.Purchasing.umn.edu.
. 13.6 Maintenance Fees/Cap
The fee for the initial year of maintenance services is $___________. Subsequent Maintenance
Fees for each of the succeeding years included in this agreement shall be the lesser of the thencurrent Maintenance Fee Schedule or seven (7%) percent of the then-current License Fee
(calculated pursuant to Exhibit D).
13.7
Revision Levels
Customer is not obligated to implement other updates, changes, modifications, or enhancements
if said revisions interfere with Customer’s level of intended usage or operating environment;
however, Supplier and Customer shall work together with mutual best efforts in order to
implement and install all revisions so that they function properly at the level of the Customer’s
intended usage and within the Customer’s operating environment. Supplier will support releases
for no less than five years from installation date.
13.8
Inoperability
In the event that the Licensed Software, or a material function of the Licensed Software, becomes
inoperable for a period of five (5) days, the Maintenance Period may, at Customer’s option, be
suspended for the period of the inoperability, and the amount of time that such period is
suspended shall be added to the end of the then-current Maintenance Period. Such temporary
suspension shall not relieve Supplier of its duties or obligations as described in this Agreement.
In the event inoperability extends for a period of ten (10) days, then in addition to suspension, the
condition will be deemed a failure to provide maintenance under Section 24.1.1.
13.9
Reinstatement
If Customer elects to discontinue Maintenance at any time during this seven (7) year period, and
subsequently elects to reinstate Maintenance within five (5) years from that time, the
Maintenance Renewal Fee shall not exceed ten (10%) percent of the then-current License Fee,
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with no additional cost or penalty, except to reimburse Supplier for its direct distribution costs
necessary to supply Customer with one copy of the current version of all Program Sets and
Documentation for each licensed Platform, plus any intermediate versions required by virtue of
Supplier’s maintenance strategy that may be required to migrate Customer’s programs and data
from the versions under which Customer is running to the then current versions. Any subsequent
Maintenance Renewal Fees, occurring within the original seven (7) year period, shall be subject
to the original seven (7%) percent renewal cap as provided in Section 13.2. Customer will be
responsible for timely installation of current copies submitted by Supplier. (Note: we need to
rethink or reword this. It seems unclear.)
13.10 Liquidated Damages
Supplier and Customer agree that the impact of non-availability of the Licensed Software is
impossible to determine in exact dollar amounts for each occurrence, but recognize that
Customer will suffer significant damages through lost productivity plus other costs necessary to
ensure continued customer service for each unscheduled period of non-availability. Therefore,
Supplier and Customer agree that for as long as Customer is contracting with Supplier for
Maintenance Services as described in this Section 13, that if the Licensed Software fails for any
reason due to a failure of any item provided by Supplier under this Agreement, and is unavailable
for more than thirty (30) minutes in a twenty-four (24) period, Supplier will pay liquidated
damages of $4,000.00 per hour for each hour of unscheduled non-availability or fraction thereof.
This remedy of liquidated damages is in addition to any remedy that for any other breach of this
Agreement by Supplier, and is in addition to the source code escrow provisions of Section 24 of
this Agreement.
14.
WARRANTIES
14.1
Media Defects
The media, including on-line access, on which the Licensed Software is provided shall be free of
defects in material and workmanship.
14.2
Function and Features
The Licensed Software shall possess all material functions and features as described in the
Specifications of the Request for Proposal and in the Supplier's Response to the Request for
Proposal # ____________
14.3
Performance
The Licensed Software shall perform in accordance with the Specifications, the User Manuals,
and the Documentation.
14.4
Compatibility
The Licensed Software shall be compatible with the Operating System, application programs,
CPUs, and networks specified in the Documentation, the Recommended Hardware
Configuration, and the Environmental Specifications.
14.5
Ninety-Day Warranty
Customer shall have the right for ninety (90) days following the date of installation to return the
Licensed Software and receive a refund of all license and maintenance fees paid to Supplier
pursuant to this Agreement in the event the Products do not meet the requirements of Customer,
as Customer shall determine in the sole exercise of its discretion.
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14.6
Conformance to Specifications
Supplier warrants and represents to Customer that the Licensed Software shall operate without
Specification Nonconformities for a period of twelve (12) months from Final Acceptance (the
Warranty Period) for all Sites that implement the Licensed Software. If, within the Warranty
Period, Customer shall give Supplier oral or written notice of a Specification Nonconformity
contained in the Licensed Software, Supplier shall investigate such Specification Nonconformity
as soon as possible but not later than two (2) hours after receipt of such notice and will classify
the problem with concurrence by Customer as either a problem preventing normal operations
(Category A), or other problem (Category B). Supplier will provide a temporary fix or work
around for all Category A problems within four (4) hours of receipt of such notice and provide a
permanent fix or work around within twenty-four hours unless Customer agrees in writing to a
longer time. Category B problems will be corrected within five (5) days. No maintenance
charges will be assessed during the Warranty period. Supplier will provide Customer with
twenty-four (24) hours a day, seven (7) days a week Maintenance Services as described in
Section 13.3. In addition, the provisions of Sections 13.4 (Response Times), 13.5 (Service
Tracking and Reporting), 13.7 (Revision Levels), and 13.8 (Inoperability) shall also apply to the
warranty services provided by Supplier during the Warranty Period. At any time during the first
one hundred eighty (180) days of the Warranty Period, if Supplier has failed to correct any
Specification Nonconformity within thirty (30) days of notification thereof, Customer may elect
to terminate the Agreement and request a refund of all fees paid to Supplier pursuant to this
Agreement, provided Customer returns to Supplier all software licensed hereunder, including
documentation, after Customer has had a reasonable time to procure substituted software from a
third party.
14.7
Hardware Configuration
Supplier warrants that the Recommended Hardware Configuration shall be adequate in all
aspects for the Licensed Software to function in accordance with the Specifications and to fulfill
the current and reasonably anticipated future information processing needs of the Licensed
Software.
14.8
Pass-Through of Warranties
Supplier shall identify in writing all third-party warranties that Supplier receives in connection
with any Product provided to Customer. Supplier hereby passes through the benefits of all such
warranties, provided that nothing in this Section 14.8 shall reduce or limit Supplier’s obligations
under this Agreement.
14.9
Governmental Consent
Supplier warrants that no consent, approval, or withholding of objection is required from any
governmental authority with respect to the entering into or the performance of this Agreement.
14.10 No Actions, Suits, or Proceedings
Supplier warrants that there are no actions, suits, or proceedings, pending or threatened, that will
have a material adverse effect on Supplier’s ability to fulfill its obligations under this Agreement.
Supplier further warrants that it will notify Customer immediately if Supplier becomes aware of
any action, suit, or proceeding, pending or threatened, that will have a material adverse effect of
Supplier’s ability to fulfill the obligations under this Agreement.
14.11 Free and Clear Title
Supplier warrants that it has and will continue to have free and clear title (including all
proprietary rights) to any Products delivered to Customer and the right to license, transfer, or
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assign any and all software products that are licensed, transferred, or otherwise provided to
Customer by Supplier pursuant to this Agreement. Supplier shall not create or permit the
creation of any lien, encumbrance, or security interest in any product sold, rented, leased, or
licensed to Customer.
14.12 Infringement
In addition to the provisions of Section 18 below, Supplier warrants that Customer’s use of any
Licensed Software or other Product provided in connection with this Agreement will not infringe
any patent, trademark, copyright, or other proprietary right of any third party. Supplier further
warrants that any information disclosed to Customer will not contain any trade secrets of any
third party, unless disclosure is permitted by such third party.
14.13 Good and Workmanlike Manner
Supplier warrants that all services performed under this Agreement will be performed in a good
and workmanlike manner.
14.14 Future Support
Supplier warrants that it will support, or provide for support of, the Software for a period of not
less than five (5) years from the date of installation of any Software provided by Supplier.
14.15 Warranty of Past Success
Supplier warrants that the Licensed Software (in unmodified form) has been installed and is
operating in a production capacity at similar user sites.
(This is subject to change if University is agreeing to be a beta site)
14.16 Warranty of Supplier Capability
Supplier warrants that it is financially capable of fulfilling all requirements of this Agreement,
that there are no legal proceedings against it that could threaten performance of this Agreement,
and that the Supplier is a validly organized entity that has the authority to enter into this
Agreement. Supplier is not prohibited by any loan, contract, financing arrangement, trade
covenant, or similar restriction from entering into this Agreement.
14.17 Most Favored Customer
Notwithstanding any other provision of this Agreement, the prices for each item provided by
Supplier under this Agreement and the terms and conditions of this Agreement are hereby
warranted by Supplier to be comparable to, or more favorable to Customer than, the comparable
prices, terms, and conditions that have been offered by Supplier to any of its comparable
customers for delivery during the period from _____________ to the effective date of this
Agreement; as well as those that are being and will be offered by Supplier to any of its other
customers for delivery during the period from and including the effective date of this Agreement
through and for twelve (12) months thereafter. If at any time during the periods stated above,
Supplier shall contract, or have contracted, with any other comparable customer for the license
by Supplier of any module or Software substantially similar to those listed in Exhibit A at a price
or prices less that the comparable price or prices specified herein or on terms or conditions more
favorable than the terms or conditions contained herein, then (i) Supplier shall, within thirty (30)
calendar days after the effective date of such other contract(s), notify Customer in writing of such
fact, specifying the more favorable price, term, or condition; and (ii) unless a provision is
declined by the Customer by written notice, this Agreement shall be deemed to be automatically
amended, effective retroactively to the effective date hereof, to provide the more favorable price,
term, or condition to Customer; and Supplier shall promptly rebate and pay to Customer any
21
excess amount (including any Taxes thereon) previously paid by Customer to Supplier for the
module or Software for which the price has been reduced pursuant to such amendment, plus, in
the event such amount is not paid to Customer within thirty (30) calendar days after the effective
date of such other contract, interest on such amount from the effective date of such other contract
to the date of payment to Customer at the rate of eighteen percent (18%) per annum, or the
maximum legal rate, whichever is lower.
14.18 Century Date Change Requirements
Licensor warrants that the Licensed Software: (i) does not have a life expectance limited by date
or time format; (ii) will record, store, process and present calendar dates correctly; (iii) will lose
no functionality, data integrity or performance with respect to any date; and (iv) will be interoerable with other software used by licensee which may deliver date records from the Licensed
Software, or interact with date records of the Licensed Software ("Date Warranty"). In the event a
Date Warranty roblem is reported to Supplier by Customer and such problem remains unresolved
after three days, at the discretion of the Customer, Supplier shall be in breach of contract.
In the event of a breach of the warranty referred to above, which precludes Licensee from
successful operation of its data processing system and/or an application or component critical to
operation of such data processing system, Licensor will begin work within one hour after
telephonic notice by Licensee on rectifying Licensee’s problems. Licensor will continue working
in a Best of Service approach (with as many workers as are necessary) on such problems on an
around-the-clock basis until such problems are rectified. Licensee shall not be charged for any
work done in connection with this paragraph.
In the event of a breach of the warranty contained above, Licensor will be responsible for all
damages (including but not limited to consequential, incidental, and indirect damages) sustained
by Licensee up to ______ ( ___ ) times the amount (pursuant to the formula set forth below) of
the fees paid by Licensee to the Licensor pursuant to this Agreement.
If Licensor has not rectified the breach of the Century Date Change Requirements representation
and warranty within _____ ( __ ) days, Licensor will be responsible for all damages (including
but not limited to consequential, incidental and indirect damages) sustained by Licensee up to the
amount of ______ ( ___ ) times the fees paid by Licensee to Licensor pursuant to this
Agreement.
15.
MODIFICATIONS AND PROPRIETARY RIGHTS
15.1
Supplier Modifications
15.1.1 Supplier will correct errors in the Licensed Product pursuant to this Agreement and may
modify from time to time the Licensed Product. Such error corrections and/or
modifications may result in the creation of a new version(s) of the Licensed Product,
under the same or one or more different names (collectively, the Supplier Modifications).
Supplier Modifications shall in all cases be new versions of existing products, and not
new products. Supplier Modifications shall belong to Supplier and shall be Licensed
Software.
15.1.2 As long as the Licensed Product is under Maintenance provided by Supplier, Supplier
shall make available to Customer, at no extra charge, a copy of the modified object code
for any Supplier Modification not later than thirty (30) days following general availability
22
of such Supplier Modification. Customer shall not be obligated to use any Supplier
Modification. (See Section 13.7) In the event that Customer determines to utilize any
Supplier Modification, it shall be deemed part of the Licensed Product for purposes of
this Agreement; provided, however, that all Warranty provisions herein shall apply to
each Supplier Modification from the time such modifications are first delivered to
Customer. Further, the Specifications shall be promptly amended by Supplier to reflect
the addition of each modification, and Supplier shall promptly deliver to Customer
revisions to the Documentation to allow Customer to fully utilize any Supplier
Modification in accordance with the Specifications.
15.1.3 Supplier warrants that for ninety (90) days from the date of a supplied Supplier
Modification installed during and subsequent to the Warranty Period, the Licensed
Product as modified will operate free from defect in the manner described in the
Supplier’s Documentation. If any defects are discovered during the Warranty Period,
Supplier will correct them promptly without charge, but not later than five (5) business
days from notice from Customer.
15.2
Customer Modifications
Supplier shall provide assistance to Customer for Customer Modifications on a time-andmaterials basis. Supplier assigns all rights to and modifications resulting from such
assistance to Customer. Supplier will not bill Customer for work related to Customer
Modifications without the express prior written consent of Customer.
15.3
Confidential Information of Supplier
Customer agrees it shall not (without obtaining the prior consent in each instance of
Supplier) during the term of this Agreement or thereafter, disclose, make commercial or
other use of, give or sell to any person, firm, or corporation, any information of Supplier
that is treated and identified to Customer by Supplier as confidential, except Customer
can disclose such information if (i) required to do so pursuant to applicable law; (ii) it
was rightfully in the possession of Customer from a source other than Supplier prior to
the time of disclosure of said information to Customer hereunder (Time of Receipt); (iii)
it was in the public domain prior to the Time of Receipt; (iv) it became part of the public
domain after the Time of Receipt by any means other than an unauthorized act or
omission on the part of Customer; (v) it is supplied to Customer after the Time of Receipt
without restriction by a third party who is under no obligation to Supplier to maintain
such information in confidence; (vi) it was independently developed by Customer prior to
the Time of Receipt; or (vii) it was developed by Supplier at Customer’s expense (viii) is
allowed disclosure by the Minnesota Data Practices Act.
15.4
Termination of Supplier’s Right to Possess Confidential Information
Upon Final Acceptance or earlier termination of this Agreement for any reason, Supplier’s rights
to possession and use of any of the Proprietary Materials or Confidential Information in
connection with the performance of its obligations hereunder or otherwise shall terminate and
Supplier shall immediately deliver to Customer all of the Proprietary Materials and Confidential
Information and all copies of any portion thereof. Supplier shall, upon completion of such
delivery, certify in writing to Customer that it has fulfilled its obligations under this Section 15.4.
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15.5
16.
Nondisclosure. Supplier and its employees, subcontractors, consultants, representatives, and
agents agree that any information received during the course of its performance, which concerns
the personal, financial or other affairs of the University, its Regents, officers, employees, agents,
contractors, or students shall be kept confidential and not disclosed to any third party.
PROHIBITION ON PUBLICITY
Supplier agrees not to use the name, logo, or any other marks (including, but not limited to, colors and
music) owned by or associated with the University or the name of any representative of the University in
any sales promotion work or advertising, or any form of publicity, without the written permission of the
University in each instance.
17.
18.
EQUITABLE RELIEF AND SURVIVAL OF RESTRICTIONS AND OBLIGATIONS
17.1
Equitable Relief
Supplier hereby acknowledges and agrees that Customer’s remedies at law for a breach by
Supplier of its obligations under Sections 15 and 16 will be inadequate and Customer shall, in the
event of any such breach, be entitled to equitable relief (including without limitation preliminary
and permanent injunctive relief and specific performance) in addition to all other remedies
provided hereunder or available at law.
17.2
Survival of Obligations
The terms, provisions, representations, and warranties contained in this Agreement including but
not limited to Sections 1, 14, 15, 17-19, 21, 22, and 24-26 that by their sense and context are
intended to survive the performance thereof by either or both parties hereunder shall so survive
the completion of performance and termination of this Agreement, including the making of any
and all payments due hereunder, the Secrecy and Nondisclosure Agreements, insurance, any
rights and obligations conveyed by License, and any cause of action that accrued prior to said
termination.
INDEMNIFICATION
18.1
General
Supplier agrees to defend, indemnify and hold harmless the University from injuries, damages
and loss, including costs and attorneys’ fees, arising from the negligent acts and omissions of its
employees, officers and agents under this Agreement.
18.2
Intellectual Property
Supplier agrees it will at its sole cost and expense, defend, indemnify, and hold harmless the
Indemnified Parties from and against all Claims, to the extent such Claims arise out of, result
from, or are attributable to the actual or alleged infringement or misappropriation of any patent,
copyright, trade secret, trademark, or confidential information of any third party by Supplier or its
employees, subcontractors, consultants, representatives, and agents; provided, however,
Customer gives Supplier prompt notice in writing of the Claim. Supplier may not settle any
infringement claim that will affect Customer’s use of the Licensed Software without Customer’s
prior written consent, which consent may be withheld for any reason.
18.3
Judgment
24
If a judgment or settlement is obtained or reasonably anticipated against Customer’s use of any
Intellectual Property for which Supplier has indemnified Customer, Supplier shall at Supplier’s
sole cost and expense promptly modify the item or items which were determined to be infringing,
acquire a license or licenses on Customer’s behalf to provide the necessary rights to Customer to
eliminate the infringement, or provide Customer with a non-infringing substitute that provides
Customer the same functionality. At Customer’s election, the actual or anticipated judgment
may be treated as a breach of warranty by Supplier, and Customer may receive the remedies
provided under Section 14.6.
18.4
19.
Personnel
Supplier shall, at its expense, indemnify and hold harmless the Indemnified Parties from and
against any Claim with respect to withholding taxes, worker’s compensation, employee’s
benefits, or any other claim, demand, liability, damage, or loss of any nature relating to any of the
personnel provided by Supplier.
ILLICIT CODE
Supplier warrants that (a) unless authorized in writing by Customer, or (b) necessary to perform valid
duties under this Agreement, any programs developed by Supplier personnel under this Agreement or
provided to Customer by Supplier for use by Supplier or Customer shall: (i) contain no hidden files; (ii)
not replicate, transmit, or activate itself without control of a person operating computing equipment on
which it resides; (iii) not alter, damage, or erase any data or computer programs without control of a
person operating the computing equipment on which it resides; (iv) contain no key, node lock, time-out
or other function, whether implemented by electronic, mechanical, or other means, which restricts or
may restrict use or access to any programs or data developed under this Agreement, based on residency
on a specific hardware configuration, frequency of duration of use, or other limiting criteria; (v) contain
no virus or similar code, whether known or unknown to Supplier (the matters described in (i) - (v)
comprise Illicit Code). Provided and to the extent any program has any of the foregoing attributes, and
notwithstanding any other provision of this Agreement to the contrary, Supplier shall be in default of this
Agreement, and no cure period shall apply. At the request of Customer, Supplier must remove any such
Illicit Code from the Licensed Software. In addition to any other remedies available to it under this
Agreement, Customer reserves the right to pursue any civil and/or criminal penalties available to it
against the Supplier. Supplier agrees, in order to protect Customer from damages that may be
intentionally or unintentionally caused by the introduction of Illicit Code to Customer’s computer
network, no software will be installed, executed, or copied on Customer equipment without the express
approval of the Customer Program Manager.
20.
LIMITATION OF LIABILITY
In no event shall either party be liable to the other for indirect, incidental, special, or consequential
damages arising out of this Agreement for the existence, furnishing, functioning, or Customer’s use of
the work product, documentation, or tools provided by Supplier. The foregoing limitation of liability
shall not apply to (i) claims for damages for personal injury or wrongful death; (ii) claims for damages
for which Supplier has indemnified Customer; (iii) claims against Supplier for the presence of Illicit
Code; and (iv) claims by Customer pursuant to Sections 13.10, 15.3, 16, 17, and 21.2.
21.
INDEPENDENT OBLIGATION OF SUPPLIER TO CONTINUE PERFORMANCE
21.1
Nature of Independent Obligation
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Because of the critical importance of the Licensed Programs and services to be performed by
Supplier hereunder to the operation of Customer, Supplier assumes an independent obligation to
continue performance of its service obligations hereunder in all respects regardless of any dispute
(including without limitation any alleged material breach by Customer) which may arise between
Customer and Supplier. Such independent obligation shall continue for a period of ninety (90)
days from the date upon which Customer receives written notice of such alleged breach from
Supplier. The license to the Licensed Programs shall continue until any dispute is resolved and
Customer’s use of such Software is determined to be outside of the scope of this Agreement.
Supplier undertakes this independent obligation without prejudice to any rights or remedies it
may otherwise have in connection with any dispute between Supplier and Customer.
21.2
22.
23.
Liquidated Damages for Breach by Supplier of Independent Obligation
Customer and Supplier hereby agree that it will be impossible to ascertain the amount of
damages arising out of a breach by Supplier of its independent obligation set forth in Section
21.1. Accordingly, in the event of any such breach, Supplier agrees to pay to Customer the sum
of ($_______) as liquidated damages for such breach and such liquidated damages shall be in
addition to and without limitation of any rights or remedies which Customer may have hereunder
or at law or in equity arising out of or related to any other breach by Supplier of its obligations
hereunder.
ASSIGNMENT
22.1
Supplier Assignment
Supplier may not assign this Agreement or any of its rights or obligations hereunder (including
without limitation rights and duties of performance) to any third party including as part of the
sale in whole or part of Supplier’s operations or entity, and this Agreement may not be
involuntarily assigned or assigned by operation of law, without the prior written consent of
Customer, in the sole exercise of its discretion.
22.2
Customer Assignment
Customer shall have the right to assign or transfer this Agreement or any of its interests herein
(including without limitation rights and duties of performance) within the University.
There shall be no charge to Customer for any assignment or transfer hereunder.
TIME IS OF THE ESSENCE
Time is of the essence in this Agreement. The acceptance of late performance with or without objection
or reservation by Customer shall not waive any rights of Customer nor constitute a waiver of the
requirement of timely performance of any obligations on the part of Supplier remaining to be performed.
24.
SOURCE CODE ESCROW
Upon Final Acceptance of the Licensed Software, Customer and Supplier hereby agree to enter into the
standard source code escrow agreement of the escrow company agreed to by both parties and attached
hereto as Exhibit C (the Escrow).
24.1
Release of Escrow
Customer and Supplier agree that the occurrence of any of the following conditions will trigger a
release from Escrow and will be incorporated into the escrow agreement.
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24.1.1 Supplier has defaulted in performance or otherwise has failed to perform its obligations
under (i) the License; or (ii) any agreement between Supplier and Customer or its
customers for the maintenance or correction of the Licensed Software, and such default or
failure to perform has continued for a period of thirty (30) days following written notice
thereof to Supplier from Customer.
24.1.2 Supplier has made an assignment for the benefit of creditors, has admitted in writing its
inability to pay debts as they mature, or has ceased operating in the normal course of
business.
24.1.3 A trustee or receiver of Supplier or of any substantial part of Supplier’s assets has been
appointed by any court.
24.1.4 An involuntary proceeding has been commenced by any party against Supplier under any
one of the chapters of Title 11 of the United States Code and (i) the proceeding has been
pending for at least sixty (60) days; or (ii) Supplier has consented, either expressly or by
operation of law, to the entry of an order for relief; or (iii) Supplier has been decreed or
adjudged a debtor.
24.1.5 A voluntary petition has been filed by Supplier under any of the chapters of Title 11 of
the United States Code.
24.1.6 Supplier has or announces it will discontinue support, upgrades, or enhancements of the
Licensed Software.
24.1.7 Supplier assigns or attempts to assign or transfer all or a substantial part of its assets
related to the Licensed Software without Customer’s consent.
24.2
Customer’s Rights and Obligations After Release of Source Code
24.2
If Customer obtains source code to the Licensed Software pursuant to Section 24,
Customer may modify, correct, or enhance the Licensed Product in any manner, and any
such modifications, corrections, or enhancements, and any related materials and
documentation (and all proprietary rights therein, including, but not limited to,
copyrights) shall belong exclusively to Customer (Customer Modifications). Supplier
agrees that any Customer Modifications to which Supplier gains access in the
performance of its obligations hereunder or otherwise shall be deemed confidential
subject to Section 15.3 hereof.
243
Escrow Sufficiency
Supplier warrants that the Source Code Escrow maintained on behalf of Customer shall contain
all information, source code, documentation and tools reasonably necessary to recreate and
maintain the Licensed Software that operates in accordance with the Specifications in the event
that the Escrow is released to Customer and Customer, or Customer’s agent, is required to
maintain the source code.
24.4
Escrow Verification
Customer shall have the right for the term of this Agreement to verify the accuracy and
completeness of the escrow deposit at any time during normal business hours with reasonable
27
notification to Supplier by having a representative of the escrow agent and Customer present at
Supplier’s site to verify, audit, and inspect the escrow deposit, or optionally to pay the escrow
agent to perform the verification on behalf of Customer. Customer shall pay all fees for the
Escrow and any related services resulting from this Agreement.
24.5
Source Code Installation
If requested by Customer, Supplier shall install the Licensed Software Source Code software on
the computer equipment designated by Customer within three business days after delivery by the
Escrow agent or within such other time that is mutually agreed between the parties hereto. Such
installation shall include a successful compilation of the Licensed Software Source Code
software on such computer equipment and performance of Supplier’s installation tests using
Supplier’s test data. Supplier shall promptly provide Customer with documentation
demonstrating the successful installation of the Licensed Software. Customer may elect to install
the source code by itself or through Customer’s appointed agent.
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25.
TAXES
All taxes, including but not limited to federal, state, and local income taxes; franchise taxes; federal,
state, and local sales and use taxes (except sales or use taxes imposed on a transaction made under this
Agreement); gross receipts taxes; property taxes; value-added taxes; and custom duty taxes are deemed
to be included in the price of the Licensed Software set forth in Exhibit A.
The University is exempt from paying Minnesota sales and use taxes. Except as provided in Minn. Stat.
297A.25, Subd. 11, Supplier shall not charge University for such taxes.
26.
MISCELLANEOUS
26.1
Cumulative Remedies
Except as specifically provided herein, no remedy made available to Customer hereunder is
intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and
shall be in addition to every other remedy provided hereunder or available at law or in equity.
26.2
Notices
Except as otherwise expressly specified herein, all notices, requests or other communications
shall be in writing and shall be deemed to have been given if delivered personally or mailed, by
certified or registered mail, postage prepaid, return receipt requested, to the parties at their
respective addresses set forth above, or at such other addresses as may be specified in writing by
either of the parties. All notices, requests, or communications shall be deemed effective upon
personal delivery or three (3) days following deposit in the mail.
26.3
Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
26.4
Waiver
Performance of any obligation required of a party hereunder may be waived only by a written
waiver signed by the other party, which waiver shall be effective only with respect to the specific
obligation described therein.
26.5
Entire Agreement
This Agreement constitutes the entire understanding and contract between the parties and
supersedes any and all prior or contemporaneous oral or written representations or
communications with respect to the subject matter hereof. The terms and conditions included in
Supplier’s invoice shall be deemed to be solely for the convenience of the parties. No terms or
conditions of any such invoice shall be binding upon Customer, and no action by Customer,
including without limitation the payment of any such invoice in whole or in part, shall be
construed as binding or estopping Customer with respect to any such term or condition, unless
the invoice term or condition has been previously agreed to by Customer as an amendment to this
Agreement. The RFP and the Proposal may be used to demonstrate Customer’s reliance upon
Supplier’s expertise and recommendations.
26.6
Amendment
This Agreement shall not be modified, amended or in any way altered except by an instrument in
writing signed by vice presidents of each party. All amendments or modifications of this
Agreement shall be binding upon the parties despite any lack of consideration.
29
26.7
Severability of Provisions
In the event any provision hereof is found invalid or unenforceable pursuant to judicial decree,
the remainder of this Agreement shall remain valid and enforceable according to its terms.
26.8
Benefit of Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of each of the parties and, except
as otherwise provided herein, their respective legal successors and assigns.
26.9
Relationship of Parties
Nothing contained in this Agreement shall be construed as creating a joint venture, partnership or
employment relationship between the parties, nor shall either party have the right, power or
authority to create any obligations or duty, express or implied, on behalf of the other party.
26.10 Governing Law; Choice of Forum and Attorneys Fees
Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed
by the laws of the state of Minnesota without regard to or application of choice of law rules or
principles. Both parties hereby consent to the exclusive jurisdiction of such courts, and expressly
waive any objections or defense based upon lack of personal jurisdiction or venue.
26.11 Compliance with Laws
Supplier agrees that all work performed under this Agreement shall comply with the provisions
of the Fair Labor Standards Act of 1938, as amended, and all other applicable federal, state,
county, and local laws, ordinances, regulations, and codes in the performance of the Agreement,
including the procurement of permits and certificates where needed. Supplier further agrees to
indemnify and hold harmless Customer and its personnel, officers, directors, parent company,
foreign and domestic subsidiaries and affiliates, agents, successors and assigns from any loss or
damage that may be sustained by reason of Supplier’s failure to comply with the aforementioned
federal, state, county, and local laws, ordinances, regulations, and codes. This Agreement is
subject to applicable federal and state laws and executive orders relating to equal opportunity and
nondiscrimination in employment. Neither Supplier nor its agents or subcontractors shall
discriminate in their employment practices against any person by reason of disability, age, race,
religion, color, sex, national origin, or veteran status. Supplier agrees to comply, and to cause its
agents and subcontractors to comply, with the provisions of said laws and orders to the extent
any such laws and orders are applicable in the performance of this Agreement.
26.12 Order of Precedence
In the event of conflict between this Agreement, its exhibits, the following order of precedence
shall prevail:
1. This Agreement and its Exhibits
2. The Request for Proposal
3. The Proposal
26.13 Anti-Kickback Enforcement Act of 1986. This Agreement is subject to the provision of the
Anti-Kickback Enforcement Act of 1986, Public Law 99-634 (41 U.S.C. 52-58). By accepting
this Agreement, Supplier (i) certifies that is has not paid kickbacks directly or indirectly to any
University employee for the purpose of obtaining this or any other University Agreement, and (ii)
agrees to cooperate fully with any investigation involving a possible violation of the Act; and (iii)
agrees to report any suspected violations of the Act to the University’s Director of Audits at
(612) 625-1368.
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26.14 Debarment and Federal Funding. Supplier represents that it is not currently debarred or
suspended by any federal agency from doing business with the federal government. Supplier shall
notify University if it becomes debarred or suspended during the term of this Agreement. The
University may immediately terminate this Agreement in the event of such termination or
suspension. If Supplier has been notified by the University that the goods or services provided
hereunder are being procured with federal funds, the federal requirements set forth in Exhibit G
shall be incorporated into this Agreement and Supplier shall adhere to such additional
requirements. If federal funds are not being used, Supplier will not receive Exhibit G.
26.15 Anti-Trust Violations. Supplier recognizes that in actual economic practice, overcharges
resulting from antitrust violations are in fact usually borne by the buyer. Therefore, Supplier
hereby assigns to the University, as the buyer of goods and services under this Agreement, any
and all claims for such overcharges as to goods and services purchased in connection with this
Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above written.
SUPPLIER ( _____________, Inc.)
CUSTOMER ( ________________, Inc.)
By: ____________________________
By:
________________________________
(Print)___________________________
(Print) ________________________________
Title: ___________________________
Title:
________________________________
Date:____________________________
Date:
________________________________
31
EXHIBITS
32
.
Exhibit A - Program Set
Product Set Description
License Fee
Platform
33
.
Exhibit B - Hardware and Software Requirements
Product Number
Product Description
34
Exhibit C - Escrow Agreement
35
Exhibit D - Maintenance Fee Schedule
36
Exhibit E - Request for Proposal
37
Exhibit F - Response to Request for Proposal
38
EXHIBIT G
Certificate of Compliance with
Federal Requirements
39