6To:
From:
CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER-OFFICE MEMORANDUM
The Honorable Mayor & Members of the City Commission
Hector Mirabile, Ph.D., City Manager
South Miami
hOd
rOiP
2001
Date: July 3 I, 2012 Agenda Item No.: ~
SUBJECT:
BACKGROUND:
AMOUNT:
ACCOUNT No.:
DOCUMENTATION:
A Resolution authorizing the City Manager to enter into a one (I) year
contract with Immersive Solutions Corporation for professional services and
software. The expenditures not to exceed $ 24,995 associated with this
project, the expenditures will be charged to account No. 001-13 10-513-3450
(City Manager Other Contractual Service) relating to emergency operations
software and services for the City of South Miami.
The City of South Miami would like to have the resources available to
provide the residents and business owners with cutting edge information in
the event of an emergency that can impact their daily lives. It is essential
that the city engages a firm that can provide all inclusive services related to
emergency operations software and services in a timely, professional and
with accurate results. Having this kind of cutting edge technology, the city
administration is able to provide the residents and the general public peace
of mind before, during and after a natural disaster, should it impact our city.
The expenditures not to exceed $ 24,995 associated with this project will
be charged to account No. 001-13 10-513-3450 (City Manager Other
Contractual Service); with a balance of $ 73,006. A copy of the one (I)
year contract with Immersive Solutions Corporation is attached and made
part by reference.
Not to exceed $ 24,995
001-1310-513-3450
Copy of the one (I) year contract with Immersive Solutions
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RESOLUTION NO. _______ _
A Resolution relating to emergency operations software and services for the
City of South Miami; authorizing the City Manager to enter into a one
(I) year contract for professional services and software with
Immersive Solutions Corporation. The expenditures not to exceed $
24,995 associated with this project, the expenditures will be charged to
account No. 001-1310-513-3450 (City Manager Other Contractual Service).
WHEREAS, the City of South Miami would like to have the resources available to provide
the residents and business owners with cutting edge information in the event of an emergency
that can impact their daily lives; and
WHEREAS, it is essential that the city engages a firm that can provide all inclusive services
related to emergency operations software and services in a timely, professional and with accurate
results. Having this kind of cutting edge technology, the city administration is able to provide the
residents and the general public peace of mind before, during and after a natural disaster, should
it impact our city.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY
OF SOUTH MIAMI, FLORIDA
Section 1. The Mayor and City Commission desire to enter into a one (1) year contract with
Immersive Solutions Corporation; this firm can provide all inclusive services related to emergency
operations software and services. Having this type of cutting edge technology will provide the
residents and general public dependable and accurate information should the city be impacted
with a natural disaster. The expenditures not to exceed $ 24,995 associated with this project will
be charged to account No. 001-1310-513-3450 (City Manager Other Contractual Service); with a
balance of $73,006. A copy of the one (1) year contract with Immersive Solutions Corporation is
attached and made part by reference.
Section 2. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this __ day of ____ , 2012
ATTEST: APPROVED:
41 CITY CLERK MAYOR
COMMISSION VOTE:
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44 Mayor Stoddard:
45 READ AND APPROVED AS TO FORM, Vice Mayor Liebman:
46 LANGUAGE, LEGALITY AND Commissioner Newman:
47 EXECUTION THEREOF Commissioner Harris:
48 Commissioner Welsh:
49
50 CITY ATTORNEY
SOFTWARE DEVELOPMENT, MAINTENANCE AND
SUPPORT AGREEMENT
This agreement ("Agreement") has been entered into on this _ day of , 2012
between the City of South Miami ("South Miami"), a city chartered under the laws of the State
of Florida, whose address is 6130 Sunset Drive, South Miami, Florida 33143, and Immersive
Solutions Corporation ("Developer").
WHEREAS Developer is in the business of creating, writing, licensing and developing
software, and
WHEREAS South Miami, desires to obtain certain databases as generated by
ENCOMPASS from South Miami's data (the "Data"); to purchase a restricted license to that
certain software capability known as ENCOMPASS ("the Software"); and to receive certain
services and products developed by Developer, all of which is important to South Miami's
provision of emergency operations center services to its citizens.
NOW therefore South Miami and Developer (hereinafter referred to as "Parties") hereby
agree, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, to the following obligations, terms and conditions.
1. DEVELOPER OBLIGATIONS.
a. Developer shall sell to South Miami a perpetual, royalty free read only restricted
license for ENCOMPASS, a software capability, as described in Exhibitl,such
license shall include a license to a comprehensive and custom designed Common
Operational Picture (COP) as defined in Exhibit 1 ;such license terms may be
expanded to read/write through the terms of an annual service contract, as defined
in Exhibit 3, the initial terms of which are incorporated in this Agreement as if
originally written therein.
b. Developer shall sell, as further defined in Section 3 below, services that include
the use of a license for that software capability known as RDAC2, as described in
Exhibit 2, for use with ENCOMPASS.
c. The Developer shall offer one maintenance support and service contract for all of
its software, as described in Exhibit 3, and South Miami shall purchase the
Service Contract for the first year and it shall have the right to purchase the same
contract for additional years of maintenance support and services for said
software for the fee as set forth in Exhibit 6.
d. Developer shall work with South Miami as a "Beta Customer."
e. In conjunction with South Miami under the Developer's "Beta Customer"
program, Developer shall use its best efforts and discretion during the term to
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continue to develop its existing ENCOMPASS software and provide tools and
planning services for Emergency Operations Center (EOC) planning and
operational support; Disaster Response (DR) planning support; DR Map
development; predictive models; informational data bases; and GIS predictive
analysis for the Florida hurricane season, as it may decide is useful to South
Miami's needs. '
f. Developer shall undertake to develop the aforementioned tools and provide all its
services in a manner that will aid South Miami with emergency operations
including the safety of citizens, management of city assets, access to new
command and control software and processes, team deployment management to
enhance clearance of transportation routes, improved communications, effective
logistics, and flood surge analysis.
2. WORK PRODUCT STATUS.
a. All data provided by South Miami, and all data bases resulting from manipulation
by ENCOMPASS software, shall be and remain the exclusive property of South
Miami which shall have the exclusive right to control the use of such data at all
times. Developer shall have full access to all data to be manipulated by
ENCOMP ASS and the resulting data output so it may use and manipUlate such
data as it determines is required to provide the services requested by South
Miami.
b. All work performed hereunder by Developer and all work product of any work
performed under this Agreement, whether in final form, draft form, or in only
partially completed form, including all tools provided in Section 1 above, shall be
for Developer'S sole benefit to allow completion of its obligations herein, except
as specified in this Agreement. All of Developer's software code, products and
intellectual property existing as of the date of this Agreement and as may be
modified by work under this Agreement (Existing Developer Property) shall
remain the sole, exclusive property of Developer and South Miami shall have no
right, copyright, patent, title, interest, license or any other right thereto except as
specified in this Agreement. Developer shall have the unfettered right to license
any of its work product, including but not limited to the Software in final form or
any document created to support the Software. In the event that South Miami
ends its contractual arrangement with the Developer, the Developer will deliver
all analytical work products to· South Miami in industry standard Shape File
format and such other items, if any, that may be necessary so that South Miami
will have the capability to continue to use Encompass for the purposes for which
it was purchased.
3. PRODUCTS SOLD. Developer shall sell to South Miami, and South Miami shall
purchase, the following products and services, effective the date of the latest Party's
signature to this Agreement:
a. pursuant to the license attached hereto as Exhibit 4, a perpetual, royalty free, read
only restricted license to use ENCOMPASS; and
b. pursuant to Exhibit 3 hereto, a one year Services Contract that includes use of a
one year license to RDAC2, which license terms are defined in Exhibit 5 hereto.
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c. any ongoing ENCOMPASS support shall be under such terms and conditions as
agreed between the Parties as set forth in Exhibit 3.
4. DEVELOPER REMUNERATION. In return for the work performed for South Miami,
Developer will be paid the amount, and according to the payment schedule, found in
Exhibit 6 hereto, which constitutes the sole consideration due Developer under the terms
of this Agreement.
5. DEVELOPER STATUS. Under this Agreement, Developer acknowledges it is not
acting in the status of an employee or subsidiary of South Miami, but rather as an
independent contractor. Developer further acknowledges it and its employees have no
rights associated with any rights, status or privileges due South Miami's employees.
Developer hereby waives any claim to South Miami employee status and any right to any
benefit normally provided to South Miami's employees, except for rights specifically
adopted by this Agreement. Developer is responsible for the payment of any and all
taxes that arise from, or which may be associated with any work performed under, this
Agreement. Developer acknowledges and agrees that Developer has no right, title,
interest (beneficial or otherwise) or claim in the data resulting from data inputs from
South Miami into ENCOMPASS. Developer shall be responsible for all applicable taxes,
fees and duties required by all governmental jurisdictions.
6. DEVELOPER WARRANTIES. In recognition that South Miami is a "Beta Customer,"
Developer hereby warrants that:
a. As provided to South Miami, the ENCOMPASS Software is free and clear of
all viruses;
b. Developer shall make its best workmanlike efforts to have RDAC2 and the
ENCOMPASS Software perform the tasks as agreed with South Miami free of
defect;
c. that the Software is the result of a workmanlike effort at or better than
industry standards existing at the time the work is performed,
d. the ENCOMPASS and RDAC2 Software as provided by Developer is not
subject to, or in violation of, any copyright, trademark of a third party or
violation of any third-party U.S. intellectual property rights or trade secrets;
e. Developer shall use its best endeavors to remedy any breach of warranty
forthwith
f. Developer makes no other warranties, including any warranty of
merchantability for fitness for intended use.
g. The Software will be free from material reproducible programming errors and
defects in workmanship and materials, and will substantially conform to the
Specifications in the Development Plan when maintained and operated in
accordance with Developer's instructions. If material reproducible programming
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errors are discovered during the warranty period, Developer's obligation shall be
to promptly remedy them at no additional expense to South Miami
7. REMEDIES ON BREACH AND APPLICABLE LAW. In the case where injunctive
or other equitable relief is required to assure compliance with the terms ofthis
Agreement, South Miami agrees that money damages would not be a sufficient remedy to
cure any such breach of this Agreement. In such circumstances, the Developer shall be
entitled to equitable relief such as injunction and specific performance without a showing
of irreparable harm or the insufficiency of a remedy of money damages, in addition to
any other remedies available at law or at equity. Developer also hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts located in
Florida for any legal proceedings arising out of or relating to this Agreement and the
transactions contemplated hereby. The laws of Florida shall apply to any action based on
this Agreement without regard to principles of conflict of laws. Venue as to all matters
arising out ofthis Agreement shall be in Miami-Dade County, Florida.
8. ARBITRATION. Except for issues of injunctive relief, any controversy or claim arising
out of or in relation to this Agreement, or to the breach of it, shall be settled by arbitration
in accordance with the Florida International Commercial Arbitration Act. The venue shall
be South Miami in Florida. The arbiter shall be jointly agreed upon by the Parties.
Judgment upon the award rendered by an arbitrator may be entered into any court having
jurisdiction of the matter. Each party shall bear its own attorneys' fees, costs and
expenses in connection with the dispute or controversy. The arbitrator shall have no
power or authority to render an award for damages, or other remedies, not specifically
provided for in this Agreement nor shall th~ arbitrator have any power or authority to
address any issue or matter that is not specifically addressed in this Agreement.
9. MISCELLANEOUS PROVISIONS.
a. No failure or delay by the Parties in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power or privilege hereunder.
b. If any term or provision of this Agreement, or the application thereof to any
person or circumstances, shall to any extent be invalid or unenforceable, each
Party agrees to forthwith execute an agreement with terms identical to the
remainder of this Agreement effective as of the effective dates of this
Agreement.
c. This Agreement contains the entire and only agreement between the Parties
and any oral statements or representations or prior written matter with respect
thereto not contained herein shall have no force and effect.
10. NON ASSIGNMENT. Developer may not assign this Agreement without the written
consent of South Miami.
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11. TERM. The work performed as part of the Beta Customer program may terminate, in
Developer's discretion, one year after the effective date of this Agreement but only if the
Developer has delivered a program that will provide South Miami with a functional COP
capable of providing, at a minimum, EOC planning and operational support; DR planning
support; DR Map development; predictive models; informational data bases; and GIS
predictive analysis for the Florida hurricane season, all of which will provide for
managing the life cycle of a disaster as defined in Exhibit1
12. INFRINGEMENT INDEMNIFICATION. Developer shall indemnify, defend, and
hold South Miami harmless from all damages, costs, and liability ("Damages") arising or
stemming from the use or operation of the licensed Software if Damages result or stem
from a claim of infringement of third-party U.S. intellectual property rights or trade
secrets asserted against South Miami or any South Miami Licensee with respect to any
Software ("IP Claim). South Miami may, at its sole option: (i) procure for a Licensee, at
Developer's expense, the right to continue using the Software; (ii) require Developer at
Developer's sole expense, to replace or modify the Software to be non-infringing without
material decrease in functionality.
To the extent any material used by Developer contains matter proprietary to a third party,
Developer shall obtain a license from the owner permitting the use of such matter and
granting Developer the right to sub-license its use to South Miami.
13. NOTICE OF BREACH. Developer shall give notice to the Licensor as soon as it is
reasonably able upon becoming aware of any breach of warranty, representation or
undertaking. Developer agrees to give all assistance to South Miami or South Miami's
Licensee as may be reasonably necessary. Should there be an identified actual material
breach of this Agreement, the non-breaching party shall provide notification in writing
and allow a 30 day cure period to allow any material breach to be remedied. If so
remedied, the Agreement shall continue as if no breach occurred.
14. WRITTEN AGREEMENT. No representations or statements of any kind made by
either party that are not expressly stated herein or in any written amendment hereto shall
be binding on such Party. The Parties agree that this Agreement and all of its Exhibits,
shall constitute the complete and exclusive statement of the Agreement between them,
and shall supersede all prior or contemporaneous proposals, oral or written, and all other
communications between them relating to the subject matter hereof. The Whereas
Clauses written above are made a part of this Agreement as if written in the body herein.
SEEN AND AGRED THIS ___ DAY OF AUGUST, 2012.
IMMERSIVE SOLUTIONS CORPORA nON CITY OF SOUTH MIAMI
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BY: ______________________ _ BY: ____________ _
TITLE: TITLE:
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EXHIBIT 1
ENCOMPASS SOFTWARE DEFINED
Encompass is a User Define Operational Picture (UDOP) solutions for any Emergency Operations Center.
Encompass provides an economical capability to create an operational picture and display the "Ground
Truth" before, during and after a disaster. Encompass integrates relevant information and displays
operational status, information requirements, disaster response plans, with a geospatial view of the area of
interest.
Encompass key functionality shall include:
• Portable virtual Emergency Operations Center (software component only)
• Management capability for events, incident and requests for help
• Tracking and management capability for resources and tasks
• Information sharing for incident management team members
• Financial expenditure tracking pre, during and post-incident for enhanced reimbursement
• Incident Action Plan Development and vetting Standard Operating Procedures capability
• Incident activities documentation for post-event analysis and reporting (NIMS)
• Information Requirements, Events and Assets geospatially presented and viewed
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EXHIBIT 2
RDAC2 DEFINED
The Rapid Dynamic Analytical Capability's (RDACTM) Geospatial solution is a dynamic, high-speed
analytical application capable of performing rapid, real-time, geospatial data analysis. RDACTM can
provide critical analysis in via stand-alone or distributed and scalable geospatial architectures. RDAC is
adaptable to most industry verticals ..
RDAC helps organizations develop predictive analysis based on events. Whether determining a flood
surge effect, optimal assets and personnel staging areas, or the effects of an event on homes, RDAC will
help to develop the operational picture.
The RDAC application is model agnostic, working with almost any government or commercial model. It
will also publish maps or data to a webpage, smart phone, tablet computer, or other GIS software
package.
RDAC key functionality includes:
• Develop a table top training simulations using real regional information
• Print and develop maps of all types and sizes
• Publish GIS layers to an Operational Picture
• Aggregate models into a common view
• Integrate live sensor feeds from cameras, GPS, or any IP addressable sensor
• Access tens or hundreds of desperate data sources
• Easily work with your data with drag and drop functionality
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EXHIBIT 3
ANNUAL SOFTWARE DEVELOPMENT, SERVICE,
MAITENANCE AND SUPPORT AGREEMENT
WHEREAS Immersive Solutions Corporation ("Developer") is in the business of
providing services associated with its software and other areas of work, and
WHEREAS the City of South Miami, 6130 Sunset Drive, South Miami, Florida 33143, a
city chartered under the laws of the State of Florida, ("South Miami") (collectively with
Developer, the "Parties") desires to obtain certain services to supplement the Agreement entered
into with Developer of even date with such associated services as defined herein.
NOW therefore the Parties hereby agree, for good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, to the following obligations, terms and
conditions.
1. DEVELOPER SERVICES
Developer shall perform the following basic services pursuant to its best judgment
and under those terms and conditions that it determines best complement and supplement
the software as provided to South Miami, to the reasonable satisfaction of South Miami's
stated objectives.
• Monitor hurricane season, download and input into the program all
available storm data from credible sources such as NOAA and update
storm models
• Develop prediction models for hurricane season
• Develop flood prediction models
• Provide basic off-site GIS support for city EOC; for example the
development of prediction maps and models from ISC facilities.
• Develop an offline Common Operating Picture capability
• Integrate Encompass with Miami Dade County Web EOC implementation
• Create EOC specific GIS layers
II. FURTHER DEVELOPER ACTIVITIES
In addition to the services in Section I above, Developer shall execute the
following tasks:
• Provide a copy of Encompass to manage the South Miami EOC
• Lease a copy of RDAC2 during service period for use with the services
which lease shall be renewable at a cost as set forth in Exhibit 6
• Create an electronic, department based task oriented Disaster Response
Plan (DRP)Survey the city personnel, including the City Manager, to
determine its view of Critical Assets, Information Requirements, and
Event Categories
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• Facilitate the HSIP Freedom database access request
• Integrate City GIS data with EOC operations
• Integrate weather feeds from NOAA
• In conjunction with South Miami, help and support the implementation of
a portable EOC capability
• Integrate all relevant software
III. COOPERATION
The Parties shall cooperate to allow implementation of the above tasks, including
South Miami's providing all required information and resources, including but not
limited to data, city personnel availability and equipment and building standards for
proper task implementation. All services shall be provided in accordance with
Developer's best judgment and to South Miami's satisfaction.
IV. FURTHER RESOURCE AVAILABILITY
South Miami shall be responsible for providing conditions and resources
objectively necessary for performance of this Agreement, including but not limited to
personnel and equipment should any task or project implementation require resources in
addition to the cost of services outlined in Exhibit 6 ..
V. WRITTEN DELIVERABLES
Developer shall deliver all written materials and electronic deliverables in useable
format and in a timely manner.
SEEN AND AGRED THIS ___ DAY OF AUGUST, 2012.
IMMERSIVE SOLUTIONS CORPORATION CITY OF SOUTH MIAMI
BY: __________________________ ___ BY: ______________ _
TITLE: TITLE:
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EXHIBIT 4
ENCOMP ASS END USER LICENSE AGREEMENT
End User License Agreement
PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA")
CAREFULL Y BEFORE USING THIS SOFTWARE FROM IMMERSIVE SOLUTIONS
CORPORATION (HEARAFTER, "WE," "US," "OUR" OR "ISC")
BY DOWNLOADING, INSTALLING OR USING ISC'S SOFTWARE, INCLUDING ANY
UPDATE, IMPROVEMENT OR NEW VERSION, YOU ACKNOWLEDGE AND AGREE
THAT YOU, INCLUDING ANYONE OR ANY ENTITY ON WHOSE BEHALF YOU ARE
,ACTING, ACCEPT AND ARE BOUND BY THE TERMS OF THIS LICENSE. YOU AGREE
AND CONSENT THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN
NEGOTIATED AGREEMENT SIGNED BY YOU OR ANY PERSON OR ENTITY ON
WHOSE BEHALF YOU ARE ACTING. YOU FURTHER AGREE THAT THIS
AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY PERSON OR ENTITY
THAT OBTAINED THE SOFTWARE OR ON WHOSE BEHALF IT IS USED THROUGH
YOU ORANY OF YOUR ASSIGNS OR DESIGNEES.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL, DOWNLOAD NOR USE
THIS SOFTWARE~ AND IF THE ISC SOFTWARE WAS ACCESSED ELECTRONICALL Y,
CLICK "DISAGREEIDECLINE".
NOW, THEREFORE, for good and valuable consideration given pursuant to the terms,
conditions and covenants contained herein, and in consideration for the foregoing recitals, ISC
and YOU as Licensee hereby agree as follows:
1. DEFINITIONS.
"Product" means the SOFTWARE, in particular, any release, version or upgrade ofISC'S
ENCOMP ASSTM software and any and all documentation delivered in connection therewith.
Particular releases, versions or upgrades of ENCOMPASS may be specified in the applicable
SOFTWARE sale or lease agreement entered into with a particular Licensee.
2. PRODUCT LICENSE GRANT.
2.1 Evaluation License Grant. If you are accessing the Product for evaluation purposes,
then subject to the terms and restrictions set forth in this EULA and the Agreement, we grant to
you a non-exclusive, non-transferable, limited, perpetual and revocable license for the Product,
in object code form only, for up to three authorized users to use the Product internally for the
sole purpose of evaluating its capabilities and considering a potential purchase of a Commercial
Product License. This License will terminate automatically thirty (30) days after the Effective
Date unless ISC otherwise agrees in writing.
2.2 Commercial License Grant. Subject to the terms and restrictions set forth in this
EULA and the Agreement, including your payment in full of all applicable license fees, we grant
to you a non-exclusive, non-transferable, non-assignable, perpetual, revocable (in case of
breach), license for the Product, in object code form only to: (i) permit your use of the Product
by as many of your authorized users or on as many of your servers for which you have purchased
or obtained rights for you or your entity under the Agreement (ii) use the Product for your
organization's internal purposes (including use by your third-party consultants who must, as a
condition to their use under this Agreement, agree to be bound by the terms and conditions of
this Agreement); and (iii) make up to one copy of the Product for archival or disaster recovery
purposes only.
2.3 Support Services. No support services are provided by ISC under this agreement.
Support services may, however, be provided under separate written agreement with the payment
of a yearly maintenance fee.
2.4 Audit. ISC shall have the right to gain access to, examine and audit, during standard
business hours upon at least five (5) business days prior written notice to Licensee, all locations,
servers, computers, records, accounts and other information granted by the Licensee and/or any
authorized users as may be necessary for ISC, in its sole discretion, to examine for purposes of
determining whether Licensee is in compliance with the terms and conditions ofthis EULA
including, but not limited to, whether Licensee is in compliance with the scope and number of
licenses grantep: under this EULA. Licensee, once found to be in violation of this End User
License Agreement shall at its expense cooperate and provide all information reasonably
requested by ISC in the course of any audit conducted hereunder. If South Miami shall not
provide such access, necessary to determine such compliance, it shall provide an independent
contractor of its choosing to make any determinations required in this section.
2.5 Further Agreement. Each sale or lease of additional SOFTWARE may be
accompanied by a further written agreement specifying additional terms and conditions,
including payment terms, of SOFTWARE use. Such further written agreement shall be
incorporated by reference in toto into this Agreement. In case any term of such further written
agreement may conflict with the terms of this Agreement, the terms of the further written
agreement shall prevail. In all cases where the Licensee is an entity created by operation of law,
as opposed to a natural person, the Licensee agrees, and shall ensure, that all its officers,
directors, third party professionals, employees, contractors, agents and similar individuals shall
be bound by, and shall adhere to, all the terms of this Agreement.
3. PRODUCT LICENSE RESTRICTIONS.
3.1 Prohibited Purpose. Aside from such uses as permitted and contemplated for
Licensee's own use herein, and situations in which the Developer has breached its agreement to
provide maintenance, or otherwise fails to provide maintenance and/or support to Licensee for
the Product, Licensee is prohibited from using the Product as a basis to create or develop or
contribute to the creation or development of any standalone software program for distribution
that incorporates any portion of the Product or that makes direct function calls to or operation of
which is otherwise dependent upon any portion of the Product. Aside from such uses as
permitted and contemplated for Licensee own use herein, Licensee shall not create or develop or
contribute to the creation or development of any program or suite of programs functionally
similar to the Product unless independently developed by Licensee without access, or reference,
to the Product. Notwithstanding the foregoing, the terms of any third party licenses that govern
certain open source components of the Software govern the use of those components as separate
from the Software.
3.2 Restrictions. Licensee agrees, except as provided in section 3.1 above, not to directly
or indirectly (i) modify or create any derivative works of the Product, including translation and
localization; (ii) copy or reproduce the Product, in any manner, other than as expressly permitted
under this EULA; (iii) decompile, disassemble, decompress, reverse engineer, or otherwise
attempt to derive the source code for the Product; (iv) redistribute, encumber, sell, rent, lease,
sublicense or otherwise transfer rights to the Product; (v) use the Product without a current fully
paid license and if the license is not current then the Product must be deleted from all your
systems; or (vi) allow any person or entity to commit any of the actions described in this
paragraph.
3.3 Required Actions. Promptly upon notice or knowledge of any prohibited or
unauthorized access or use under this Agreement, Licensee will take all necessary measures to
promptly terminate the prohibited or unauthorized access or use and provide notice thereof to
ISC.
3.4 Personnel Restrictions. Licensee shall be responsible for ensuring that its employees,
agents, corisultants and anyone or any entity acting on its behalf comply with the terms and
conditions of this EULA, and shall be responsible for the failure of such employees, agents or
consultants to abide hereby.
3.5 Further Restrictions. Irrespective of any other provision herein, this license is royalty
free and perpetual for· the City of South Miami only, subject to the restrictions herein. It is a read
only license. This license shall transform into a read/write license only during such time as an
associated, fully paid services contract is in full force and effect with ISC. Such license shall
include all uses by ISC to permit it to execute the services ISC has agreed to provide. The
provisions of this section shall supersede any other provision of this EULA and any conflicting
terms shall be resolved in accordance with the intent of this section.
4. PROPRIETARY RIGHTS/CONFIDENTIALITY PROTECTION.
4.1 Rights and Limitations. ISC retains all intellectual property rights in the Product and
ISC confidential information, including without limitation, all derivative works thereto. You
agree to retain all proprietary marks, legends, patent and copyright notices that appear on the
Product and the ISC confidential information delivered to you and all partial copies thereof. You
may not copy or otherwise use the Product and any related documentation, in whole or in part,
except as expressly permitted in this Agreement. You recognize that the Product contains certain
confidential information, and you must reasonably protect the confidential information contained
in the Product and provide at least the same safeguards afforded your own confidential
information, but in no event, shall you apply less than a reasonable standard of care to protect the
confidentiality of our confidential information. Use of any third party's intellectual property or
software product(s) or other information, that is not required for the operation of the Product,
shall be governed by a separate license agreement between you and such third party(s) but ifit is
contemplated as being used with the Product provided by the Developer, the third party license
shall allow for its use in conjunction with the Product.
4.2 Consents. Licensee shall be solely responsible for obtaining any and all required
consents and/or rights from third parties associated with any information and/or content
(collectively, "Content") derived through the use of the Product and shall comply with any
conditions, restrictions and/or limitations imposed thereon in connection with the downloading
and use of such Content, unless the derivation is contemplated as necessary to the intended or
anticipated use of the Product. In the event of the failure of Licensee to comply with the
provisions of this subsection, ISC shall have the right to terminate this Agreement without
liability on the part ofISC. Nothing in this Agreement shall be deemed to create any duty on
the part of ISC to review and/or monitor Licensee's use of the Product to determine if a violation
has occurred. ISC'S action or inaction under this Agreement shall not constitute an approval of
any of Licensee's, or any its employees' or other users', activities or use of the Product or any
Content derived there from.
5. TERM AND TERMINATION.
5.1 Term. The term ofthis EULA shall commence on the Effective Date which shall be
the date when the last party executes this Agreement and shall remain perpetually in effect, in
each case unless earlier terminated in accordance with Section 5.2 below. In all cases and
irrespective of any other agreement, the Effective Date commence no later than the date you first
install the Product or cause it to be installed on any computer or server.
5.2 Termination. The license to use the Product shall immediately terminate upon
expiration or termination of this EULA or any agreement under which this License was obtained.
This Agreement and/or the licenses granted hereunder, as applicable, will terminate
automatically based on a material breach by Licensee. Should there be an identified actual
material breach of this Agreement, ISC will provide notification in writing and allow a 30 day
cure period to allow any material breach to be remedied. If so remedied, this License continue as
if no breach occurred. Upon termination for any reason, you agree that you will cease to use the
Product and destroy or return to us all copies of the Product and related documentation in
accordance with any other applicable law, code or regulation. Sections 2.3 and 3 through 13
shall survive termination of this EULA.
6. LIMITED WARRANTY. NO WARRANTIES WHATSOEVER ARE PROVIDED
BY ISC UNDER THIS EULA AND ISC HEREBY DISCLAIMS ALL WARRANTIES NOT
EXPRESSLY SET FORTH IN THIS AGREEMENT OR ATTACHMENTS THERETO, ,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS AND NONINFRINGEMENT FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE PRODUCTS. USER ACKNOWLEDGED THAT ENCOMPASS IS IN
DEVELOPMJ;:NT, ALL RISKS THEREFROM USER HEREBY ACCEPTS.
7. LIMITATION OF LIABILITY. ISC SHALL HAVE NO LIABILITY UNDER THIS
EULA TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER FOR ANY
REASON, INCLUDING, WITHOUT LIMITATION, REGARDING THE RESULTS AND/OR
PERFORMANCE OF THE PRODUCT, LOSS OF REVENUE OR PROFIT, LOST OR
DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE
FORESEEABLE, OR FOR CLAIMS BY A THIRD PARTY. THE FOREGOING
LIMITATION DOES NOT, HOWEVER, AFFECT OR ALTER THE EFFECTIVENESS OF
ANY WARRANTIES GRANTED TO YOU UNDER THE AGREEMENT.
8. INDEMNIFICATION FOR CERTAIN VIOLATIONS. LICENSEE SHALL DEFEND,
INDEMNIFY AND HOLD HARMLESS ISC AGAINST ANY PROCEEDING AND
ASSOCIATED COSTS FROM A THIRD PARTY BASED UPON ITS BREACH OF ANY OF
THE TERMS AND CONDITIONS IN THIS AGREEMENT, PROVIDED THAT (A) ISC
SHALL NOTIFY LICENSEE IN WRITING OF ANY CLAIM MADE AGAINST IT
PROMPTLY AFTER IT HAS BEEN MADE, (B) ISC SHALL HAVE EXCLUSIVE
CONTROL OVER THE DEFENSE AND SETTLEMENT OF THE PROCEEDING, (C)
LICENSEE SHALL PROVIDE SUCH ASSISTANCE IN DEFENSE OF THE PROCEEDING
AS ISC MAY REASONABLY REQUEST, AT LICENSEE'S REASONABLE EXPENSE,
AND (D) ISC SHALL COMPL Y WITH ANY SETTLEMENT OR COURT ORDER MADE IN
CONNECTION WITH THE PROCEEDING.
9. EXPORT. Licensee shall not export or transmit the Product directly or indirectly, to any
countries where such export is restricted under law or in any manner that would violate United
States laws and regulations as shall from time to time govern the license and delivery of
technology abroad by persons subject to the jurisdiction of the United States, including the
Export Administration Act of 1979, as amended, and any export administration regulations
issued thereafter.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Product has been supplied to the
U.S. Government, the Product is classified as "restricted computer software" as defined in clause
52.227 -19 of the Federal Acquisition Regulations (or any successor regulations) (the "FAR").
The U.S. Government's rights in the Product are as provided in clause 52.227-19 of the FAR in
addition to any other restrictions under the terms by which the Software has been provided.
11. GENERAL. This Agreement may not be assigned by you without our prior written
consent. If any provision of this Agreement is held to be invalid or unenforceable under any
circumstances, you agree to promptly execute a new Agreement to be effective under the same
term as this Agreement, but without the invalid or unenforceable clauses. No waiver of any
right under this EULA by either party shall be effective unless given in writing by that party. No
waiver of any right by either party shall be deemed to be a waiver of any other right arising
under this EULA. This Agreement does not establish the relationship of partnership, joint
venture, franchise or principal and agent among the parties, and neither party shall have any
authority to incur obligations or take other actions on behalf of the other party.
This Agreement shall be interpreted and construed in accordance with the Copyright laws of the
United States and the internal laws of the Commonwealth of Virginia, without regard to the
conflicts of law principles thereof, and any action brought in relation to this Agreement shall be
brought in a Federal or state court in the State of Florida and venue shall be in Miami-Dade
County, Florida. ISC and Licensee hereby irrevocably consent to the jurisdiction of such courts,
and both parties hereby waiving any claim or defense that such forum is not convenient or
proper. Each party hereby consents to service of process by any means authorized by Virginia
law (other than by publication). Each party waives any right to trial by jury with respect to any
dispute, suit, action or proceeding arising out of or relating to this Agreement or otherwise
relating to the relationship of the parties, whether in contract, tort or otherwise. In no event will
this Agreement be governed by and the parties explicitly agree to opt out of the Uniform
Computer Information Transactions Act. The parties agree that the United Nations Convention
on Contracts for the International Sale of Goods is specifically excluded from application to this
Agreement.
12. THIRD PARTY SOFTWARE AND ADDITIONAL TERMS AND CONDITIONS. The
Licensed Software contains certain third party software. Certain additional terms and conditions
and notices with respect to portions of the Licensed Software are located at ENCOMP ASSTM
Software Noti.ce and/or Additional Terms and Conditions (collectively, the "Additional Terms").
Additionally, the Licensed Software is accompanied by certain third party software
(collectively, the "Separate Software") that is licensed to you under separate terms and
conditions by the respective licensors of such software. The Separate Software and terms and
conditions applicable to it are described at ENCOMP ASSTM Software Notice and/or Additional
Terms and Conditions. In the event of a conflict between the Additional Terms and this
Agreement, this Agreement shall govern.
13. ENTIRE AGREEMENT. You agree that this EULA is the complete and exclusive
agreement between you and us, and that it supersedes any proposal, discussions or prior
agreement or license, oral or written, and any other communication relating to the subject matter
hereof. We are not bound by any provision of any purchase order, receipt, acceptance,
confirmation, correspondence or otherwise, unless we specifically agree to the provision in
writing.
EXHIBIT 5
RDAC2 END USER LICENSE
End User License Agreement
PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA")
CAREFULL Y BEFORE USING THIS SOFTWARE FROM IMMERSIVE SOLUTIONS
CORPORATION (HEARAFTER, "WE," "US," "OUR" OR "ISC")
BY DOWNLOADING, INSTALLING OR USING ISC'S SOFTWARE, INCLUDING ANY
UPDATE, IMPROVEMENT OR NEW VERSION, YOU ACKNOWLEDGE AND AGREE
THAT YOU, INCLUDING ANYONE OR ANY ENTITY ON WHOSE BEHALF YOU ARE
ACTING, ACCEPT AND ARE BOUND BY THE TERMS OF TH.IS LICENSE. YOU AGREE
AND CONSENT THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN
NEGOTIATED AGREEMENT SIGNED BY YOU OR ANY PERSON OR ENTITY ON
WHOSE BEHALF YOU ARE ACTING. YOU FURTHER AGREE THAT THIS
AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY PERSON OR ENTITY
THAT OBTAINED THE SOFTWARE OR ON WHOSE BEHALF IT IS USED THROUGH
YOU OR ANY OF YOUR ASSIGNS OR DESIGNEES.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL, DOWNLOAD NOR USE
THIS SOFTWARE, AND IF THE ISC SOFTWARE WAS ACCESSED ELECTRONICALLY, .
CLICK "DISAGREE/DECLINE".
NOW, THEREFORE, for good and valuable consideration given pursuant to the tenns,
conditions and covenants contained herein, and in consideration for the foregoing recitals, ISC
and YOU as Licensee hereby agree as follows:
1. DEFINITIONS.
"Product" means SOFTWARE, in particular RDAC-ETM, RDACgTM or RDAC2™ or any
release, version or upgrade, as applicable and any and all documentation delivered in connection
therewith.
2. PRODUCT LICENSE GRANT.
2.1 Evaluation License Grant. If you are accessing the Product for evaluation purposes,
then subject to the tenns and restrictions set forth in this EULA and the Agreement, we grant to
you a non-exclusive, non-transferable, limited, and revocable license for the Product, in object
code form only, for up to three authorized users to use the Product internally for the sole purpose
of evaluating its capabilities and considering a potential purchase of a Commercial Product
License. This License will terminate automatically thirty (30) days after the Effective Date
unless ISC otherwise agrees in writing.
2.2 Commercial License Grant. Subject to the terms and restrictions set forth in this
EULA and the Agreement, including your payment in full of all applicable license fees, we grant
to you a non-exclusive, non-transferable, non-assignable, perpetual, revocable (in case of
breach), license for the Product, in object code form only to: (i) permit your use of the Product
by as many of your authorized users or on as many of your servers for which you have purchased
or obtained rights for you or your entity under the Agreement; (ii) use the Product for your
organization's internal purposes (including use by your third-party consultants who must, as a
condition to their use under this Agreement, agree to be bound by the terms and conditions of
this Agreement); and (iii) make up to one copy of the Product for archival or disaster recovery
purposes only.
2.3 Support Services. No support services are provided by ISC under this Agreement.
Support services may, however, be provided under separate written agreement with the payment
of a yearly maintenance fee.
2.4 Audit. Subject to applicable legal restrictions on Licensee, ISC shall have the right to
gain access to, examine and audit, during standard business hours upon at least five (5) business
days prior written notice to Licensee, all locations, servers, computers, records, accounts and
other information of Licensee and/or any authorized users as may be necessary for ISC, in its
sole discretion, to examine for purposes of determining whether Licensee is in compliance with
the terms and conditions of this EULA including, but not limited to, whether Licensee is in
compliance with the scope and number of licenses granted under this EULA. Licensee, once
found to be in violation of this End User License Agreement shall at its expense cooperate and
provide all information reasonably requested by ISC in the course of any audit conducted
hereunder. If Licensee shall not provide such access, necessary to determine such compliance, it
shall provide an independent contractor of its choosing to make any determinations required in
this section.
3. PRODUCT LICENSE RESTRICTIONS.
3.1 Prohibited Purpose. Aside from such uses as permitted and contemplated to Licensee
for its own use herein, Licensee is prohibited from using the Product as a basis to create or
develop or contribute to the creation or development of any standalone software program for
distribution that incorporates any portion of the Product or that makes direct function calls to or
operation of which is otherwise dependent upon any portion of the Product. Aside from any
product developed pursuant to Agreement with Licensor, Licensee shall not create or develop or
contribute to the creation or development of any program or suite of programs functionally
similar to the Product unless independently developed by Licensee without access, or reference,
to the Product. Notwithstanding the foregoing, the terms of any third party licenses that govern
certain open source components of the Software govern the use of those components as separate
from the Software.
3.2 Restrictions. Licensee agrees not to directly or indirectly, except as provided in
section 3.1 above, (i) modify or create any derivative works of the Product, including translation
and localization; (ii) copy or reproduce the Product, in any manner, other than as expressly
permitted under this EULA; (iii) decompile, disassemble, decompress, reverse engineer, or
otherwise attempt to derive the source code for the Product; (iv) redistribute, encumber, sell,
rent, lease, sublicense or otherwise transfer rights to the Product; (v) use the Product without a
current fully paid license and if the license is not current then the Product must be deleted from
all your systems; or (vi) allow any person or entity to commit any of the action's described in this
paragraph. '
3.3 Required Actions. Promptly upon notice or knowledge of any prohibited or
unauthorized access or use under this Agreement, Licensee will take all necessary measures to
promptly terminate the prohibited or unauthorized access or use and provide notice thereof to
ISC.
3.4 Personnel Restrictions. Licensee shall be responsible for ensuring that its employees,
agents, consultants and anyone or any entity acting on its behalf comply with the terms and
conditions of this EULA, and shall be responsible for the failure of such employees, agents or
consultants to abide hereby.
3.5 Specific Restrictions. Irrespective of any other provision herein, this license is for
use only in association with services to be provided to The City of South Miami by ISC. Such
license shall run solely to ISC to permit execution of the services ISC has agreed to provide.
This license shall expire when such agreement expires, normally at the end of one year unless the
City purchases a subsequent license and/or software and/or contract for service and support. The
provisions of this section shall supersede any other provision of this EULA and any conflicting
terms shall be resolved in accordance with the intent of this section.
4. PROPRIETARY RIGHTS/CONFIDENTIALITY PROTECTION.
4.1 Rights and Limitations. ISC retains all intellectual property rights in the Product and
ISC confidential information, including without limitation, all derivative works thereto. You
agree to retain all proprietary marks, legends, patent and copyright notices that appear on the
Product and the ISC confidential information delivered to you and all partial copies thereof. You
may not copy or otherwise use the Product and any related documentation, in whole or in part,
except as expressly permitted in this Agreement. You recognize that the Product contains certain
confidential information, and you must reasonably protect the confidential information contained
in the Product and provide at least the same safeguards afforded your own confidential
information, but in no event, shall you apply less than a reasonable standard of care to protect the
confidentiality of our confidential information. Use of any third party's intellectual property or
software product(s) or other information, that is not required for the operation of the Product,
shall be governed by a separate license agreement between you and such third party(s).
4.2 Consents. Licensee shall be solely responsible for obtaining any and all required
consents and/or rights from third parties associated with any information and/or content
(collectively, "Content") derived through the use of the Product and shall comply with any
conditions, restrictions and/or limitations imposed thereon in connection with the downloading
and use of such Content, unless the derivation is contemplated as necessary to the intended or
anticipated use of the Product. In the event of the failure of Licensee to comply with the
provisions of this subsection, ISC shall have the right to terminate this Agreement without
liability on the part of ISC. Nothing in this Agreement shall be deemed to create any duty on
the part ofISC to review and/or monitor Licensee's use of the Product to determine if a violation
has occurred. ISC'S action or inaction under this Agreement shall not constitute an approval of
any of Licensee's; or any its employees' or other users', activities or use of the Product or any
Content derived there from.
5. TERM AND TERMINATION.
5.1 Term. The term of this EULA shall commence on the Effective Date which is the
date on which the agreement is signed by both Parties and shall remain in effect, in the case of a
Commercial paid license, in perpetuity, in each case unless earlier terminated in accordance with
Section 5.2 below. In all cases and irrespective of any other agreement, the Effective Date
commence no later than the date you first install the Product, or cause it to be installed on any
computer or server.
5.2 Termination. The license to use the Product shall immediately terminate upon
expiration or termination of this EULA or any agreement under which this License was obtained.
This Agreement and/or the licenses granted hereunder, as applicable, will terminate
automatically based on a material breach by Licensee. Should there be an identified actual
material breach of this Agreement, ISC will provide notification in writing and allow a 30 day
cure period. ISC may, in its discretion, grant any additional "cure" period to allow any material
breach to be remedied. If so remedied following the additional cure period, this License shall
become effective again in the discretion ofISC. Upon termination for any reason, you agree that
you will cease to use the Product and destroy or return to us all copies of the Product and related
documentation in accordance with any other applicable law, code or regulation. Sections 2.3 and
3 through 13 shall survive termination of this EULA.
6. LIMITED WARRANTY. NO WARRANTIES WHATSOEVER ARE PROVIDED
BY ISC UNDER THIS EULA AND ISC HEREBY DISCLAIMS ALL WARRANTIES,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS AND NONINFRINGEMENT FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCTS UNLESS EXPRESSLY
SET FORTH IN THIS AGREEMENT OR ATTACHMENTS THERETO,.
7. LIMITATION OF LIABILITY. ISC SHALL HAVE NO LIABILITY UNDER THIS
EULA TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER FOR ANY
REASON, INCLUDING, WITHOUT LIMITATION, REGARDING THE RESULTS AND/OR
PERFORMANCE OF THE PRODUCT, LOSS OF REVENUE OR PROFIT, LOST OR
DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE
FORESEEABLE, OR FOR CLAIMS BY A THIRD PARTY. THE FOREGOING
LIMITATION DOES NOT, HOWEVER, AFFECT OR ALTER THE EFFECTIVENESS OF
ANY WARRANTIES GRANTED TO YOU UNDER THE AGREEMENT.
8. INDEMNIFICATION FOR CERTAIN VIOLATIONS. LICENSEE SHALL DEFEND,
INDEMNIFY AND HOLD HARMLESS ISC AGAINST ANY PROCEEDING AND
ASSOCIATED COSTS FROM A THIRD PARTY BASED UPON LICENSEE'S BREACH OF
ANY OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, PROVIDED THAT (A)
ISC SHALL NOTIFY LICENSEE IN WRITING OF ANY CLAIM MADE BY A THIRD
PARTY AGAINST IT PROMPTLY AFTER IT HAS BEEN MADE, (B) ISC SHALL HAVE
EXCLUSIVE CONTROL OVER THE DEFENSE AND SETTLEMENT OF THE
PROCEEDING, (C) LICENSEE SHALL PROVIDE SUCH ASSISTANCE IN DEFENSE OF
THE PROCEEDING AS ISC MAY REASONABLY REQUEST, AT LICENSEE'S
REASONABLE EXPENSE, AND (D) ISC SHALL COMPLY WITH ANY SETTLEMENT OR
COURT ORDER MADE IN CONNECTION WITH THE PROCEEDING.
9. EXPORT. Licensee shall not export or transmit the Product directly or indirectly, to any
countries where such export is restricted under law or in any manner that would violate United
States laws and regulations as shall from time to time govern the license and delivery of
technology .abroad by persons subject to the jurisdiction of the United States, including the
Export Administration Act of 1979, as amended, and any export administration regulations
issued thereafter.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. Ifthe Product has been supplied to the
U.S. Government, the Product is classified as "restricted computer software" as defined in clause
52.227-19 of the Federal Acquisition Regulations (or any successor regulations) (the "FAR").
The U.S. Government's rights in the Product are as provided.in clause 52.227-19 of the FAR in
addition to any other restrictions under the terms by which the Software has been provided.
11. GENERAL. This Agreement may not be assigned by you without our prior written
consent. If any provision of this Agreement is held to be invalid or unenforceable under any
circumstances, you agree to promptly execute a new Agreement to be effective under the same
term as this Agreement, but without the invalid or unenforceable clauses. No waiver of any
right under this EULA by either party shall be effective unless given in writing by that party. No
waiver of any right by either party shall be deemed to be a waiver of any other right arising
under this EULA. This Agreement does not establish the relationship of partnership, joint
venture, franchise or principal and agent among the parties, and neither party shall have any
authority to incur obligations or take other actions on behalf of the other party.
This Agreement shall be interpreted and construed in accordance with the Copyright laws of the
United States and the intemallaws of the Commonwealth of Virginia, without regard to the
conflicts of law principles thereof, and any action brought in relation to this Agreement shall be
brought in a Federal or state court in the State of Florida and venue shall be in Miami-Dade
County, Florida. ISC and Licensee hereby irrevocably consent to the jurisdiction of such courts,
and both parties hereby waiving any claim or defense that such forum is not convenient or
proper. Each party hereby consents to service of process by any means authorized by Virginia
law (other than by publication). Each party waives any right to trial by jury with respect to any
dispute, suit, action or proceeding arising out of or relating to this Agreement or otherwise
relating to the relationship of the parties, whether in contract, tort or otherwise. In no event will
this Agreement be governed by and the parties explicitly agree to opt out of the Uniform
Computer Information Transactions Act. The parties agree that the United Nations Convention
on Contracts for the International Sale of Goods is specifically excluded from application to this
Agreement.
12. THIRD PARTY SOFTWARE AND ADDITIONAL TERMS AND CONDITIONS. The
Licensed Software contains certain third party software. Certain additional terms and conditions
and notices with respect to portions of the Licensed Software are located at RDAC Software
Notice and/or Additional Terms and Conditions (collectively, the "Additional Terms") .
Additionally, the Licensed Software is accompanied by certain third party software (collectively,
the "Separate Software") that is licensed to you under separate terms and conditions by the
respective licensors of such software. The Separate Software and terms and conditions
applicable to it are described at RDAC Software Notice and/or Additional Terms and Conditions.
In the event of a conflict between the Additional Terms and this Agreement, this Agreement
shall govern.
13. ENTIRE AGREEMENT. You agree that this EULA is the complete and exclusive
agreement between you and us, and that it supersedes any proposal, discussions or prior
agreement or license, oral or written, and any other communication relating to the subject matter
hereof. We are not bound by any provision of any purchase order, receipt, acceptance,
confirmation, correspondence or otherwise, unless we specifically agree to the provision in
writing.
EXHIBIT 6
FEES AND COSTS
The City of South Miami is a "Beta" customer and the fees and costs listed herein
represent special pricing for "Beta" customers only because of the special status, work and
conditions associated with "Beta" status. Such fees and costs are limited to this Agreement only
and may not be used in association ~ith any other project, Agreement, plans or offerings.
1. All fees are due and payable upon final execution of the applicable agreement and
presentation of all necessary invoices and services descriptions.
2. The combined discounted Beta Customer one year service contract and software fees for
the Encompass and RDAC2 offering shall be $24,995.00.
3. . IfRDAC2 ceases to be provided pursuant to the terms of the applicable agreements
hereunder, RDAC2, may be purchased at $24,995 or then prevailing retail rates,
whichever is less, or any other software, at the Client's option, with the same or better
capabilities that is in use by Developer and able to be resold by Developer at that time,
which shall be supplied to the Client at Developer's lowest prevailing retail rates.
4. While the applicable agreements are not automatically renewable, in the event that the
City Commission, for the City of South Miami, decides to renew these software licenses
and service contracts by resolution, the Beta Customer Fees for the combined one year
service contracts and software licenses for the Encompass and RDAC2 offering shall be
$24,995.00 per year, for each renewal, if any, up to three (3) consecutive years, and
thereafter, shall not increase at a rate greater than 2%, after Beta Customer discount, of
each previous year's service contracts and software license fees.
5. All discounts are applied to both software and services costs.
6. The Beta Customer applicable discount is 50%.
1