Pleading - Orange County, California

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1、CONTRACT NO. X1000000415FORHyland Software, Inc. Licenses, Software Services, Consulting Services andMaintenance and Support ServicesThis Master Contract X1000000415 for Software Licenses, Software Services, Consulting Services and Maintenance and Support Services (hereinafter referred to as “Contra

2、ct”) is entered into this 29th day of June 2009 (hereinafter referred to as Effective Date) by and between the County of Orange, a political subdivision of the State of California (hereinafter referred to as “County”) and Hyland Software, Inc., an Ohio corporation with its principal offices at 28500

3、 Clemens Road, Westlake, Ohio 44145 (hereinafter referred to as “Contractor”) with County and Contractor which are sometimes individually referred to as “Party” or collectively referred to as “Parties”.RECITALSWHEREAS, Contractor is qualified and experienced in providing Software licenses, Software

4、Services, Consulting Services and Maintenance and Support Services as further set forth in this Contract; andWHEREAS, the County of Orange Board of Supervisors has authorized the Purchasing Agent or his designee to enter into this Contract to be used as a Master Contract for County departments and a

5、gencies to purchase such Software licenses, Software Services, Consulting Services and Maintenance and Support Services;WHEREAS, THEREFORE, in consideration of mutual covenants and conditions hereinafter set forth, the Parties agree as follows:TERMS AND CONDITIONS:DEFINITIONS1A.Software. The term “S

6、oftware” shall mean: (i) the OnBase Information Management System product modules in machine-readable object code only and the Documentation related to such product modules listed in the Perpetual Use Software License and Annual Maintenance Price List set forth in Attachment A which is attached here

7、to and incorporated by this reference as if fully set forth; and (ii) any other OnBase Information Management System product modules in machine-readable object code only and the Documentation related to such product modules which may not be listed in Attachment A; (iii) any Work Products developed b

8、y Contractor under any Subordinate Contract that constitute computer software, including configurations of any OnBase Information Management System product module licenses obtained by County under this Contract to function in accordance with any applicable Specifications. The term “Software” include

9、s any Upgrades and Enhancements products included in the Supported Software and Documentation.1B.Supported Software. The term Supported Software shall mean: (i) the current released version of the Software obtained by County, and (ii) at any time after Contractor has delivered to County a new versio

10、n of such Software as an Upgrade and Enhancement, the released version of such Software last released prior to the current released version; provided, that the Supported Software will not include any prior released version of such Software that has been superseded for more than two (2) years (as det

11、ermined from the date that Contractor first announced publicly, through its web site or otherwise, the general release of the next later version of such Software) by any later released version of such Software.2.Annual Maintenance Fees. The term Annual Maintenance Fees shall mean all amounts payable

12、, as more fully set forth in Attachment A, by County to Contractor as outlined in Attachment B, Section 4(A) in connection with Countys purchase of annual Maintenance and Support Services from Contractor.3.Consulting Services. The term Consulting Services shall mean professional consulting, implemen

13、tation and integration services provided by Contractor to County in connection with projects related to the implementation and integration of the Software in the Countys environment.4.County. The term “County” shall mean the County of Orange, California and shall include any individual County of Ora

14、nge department or agency entering into a Subordinate Contract under this Contract in the specific Subordinate Contract it has entered into.5.Documentation. The term Documentation shall mean written or electronic materials, including user manuals; published by Contractor and provided by Contractor to

15、 County for the Software and that relate to the functional, operational or performance characteristics of the Software.6.Error. The term Error shall mean any defect or condition inherent in the Software that causes the Software to fail to perform in accordance with the applicable current Documentati

16、on and Specifications.7.Innovations. The term Innovations shall mean all designs, processes, procedures, methods and innovations that are developed, discovered, conceived or introduced by Contractor, working either alone or in conjunction with others, in the performance of Services under this Contra

17、ct.8.Maintenance and Support Services. The term Maintenance and Support Services shall mean professional services in the nature of Error correction services and technical support services related to Countys operation and use of the Software, that are provided by Contractor to County.9.Services. The

18、term “Services” shall mean any or all Software Services, Consulting Services and Maintenance and Support Services10.Services Fees. The term Services Fees shall mean all amounts payable by County to Contractor in connection with Countys purchase of Consulting Services and/or Software Services from Co

19、ntractor.11.Software License Fees. The term Software License Fees shall mean all amounts payable by County to Contractor as license fees for the licensing of Software.12.Software Services. The term Software Services shall mean professional installation and training services related to the Software p

20、rovided by Contractor to County.13.Subordinate Contract. The term Subordinate Contract shall mean a written contract between a County department or agency and the Contractor that sets forth and incorporates all or a portion of the specific terms and conditions of this Contract, upon which Contractor

21、 will provide Software licenses, Consulting Services, Software Services and/or Maintenance and Support Services to a specific County department or agency. Each Subordinate Contract shall be executed individually and shall incorporate by reference all or a portion of the terms and conditions of this

22、Contract with an applicable scope of work which sets forth the specific Software, Services and any applicable Specifications the individual County department or agency shall be purchasing from Contractor.14.Specifications. The term Specifications shall mean the functional specifications for Software

23、 or Work Products obtained under this Contract, if any, mutually agreed upon by the Parties and contained in or produced in writing under a Subordinate Contract.15.Upgrades and Enhancements. The term Upgrades and Enhancements shall mean any and all new versions, improvements, modifications, upgrades

24、, updates, fixes or additions to the Supported Software that Contractor commercially releases to its end users generally during the term of this Contract to correct deficiencies or enhance the capabilities of such Supported Software, together with updates of the Documentation to reflect such new ver

25、sions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules, re-platformed Software or new functionality.16.Work Products. The term Work Products shall mean all work product, documentation, mat

26、erials, computer software (including source code, object code and algorithms associated with such computer software), custom scripts, rules, instructions, or combinations of the foregoing that configure any Software to function in accordance with any applicable Specifications, formulae, ideas, techn

27、iques, know-how, inventions, product/service specifications, research, experimental work, development and design details and Specifications that are developed, discovered, conceived or introduced by Contractor, working either alone or in conjunction with others, in the performance of Services in a S

28、ubordinate Contract.17.Certificate of Completion and/or Delivery. The term “Certificate of Completion and/or Delivery” shall mean a written notice, signed by Contractor, certifying that the Software, Work Products and/or Services contemplated under any written Subordinate Contract have been complete

29、d and/or delivered. 18.Module. The term “module” shall mean an area of functionality or grouping of related areas of functionality licensed by Contractor for use by County in a specified manner or for a specified purpose. A module does not always constitute a piece of software and in some cases may

30、not correspond at all to any actual software program code.CONTRACTSECTION 1.SCOPE OF WORKThis Contract is for the Software licensing, Software Services, Consulting Services, and Maintenance and Support Services as more fully detailed herein. Contractor agrees to provide all products and Services at

31、the annual fixed price specified in Attachment A, in accordance with incorporated herein by this reference, in accordance with all of the terms and conditions of this Contract.SECTION 2. MASTER CONTRACTThis Contract is to be used as a Master Contract against which Subordinate Contracts will be creat

32、ed and issued by County departments or agencies based on the fixed pricing, terms and conditions set forth herein. The Subordinate Contract must end prior to or be coterminous with this master Contract. For the Contractors full and complete performance of its obligations under this Contract during a

33、ny period of this Contract, the County shall compensate the Contractor the fixed prices set forth in Attachment A as may be annually adjusted by Contractor. The pricing set forth in Attachment A shall be in effect on the Effective Date of this Contract and shall remain firm for the first period of t

34、his Contract.As required by County policy, some Subordinate Contracts created against the master Contract may require Board of Supervisors approval.SECTION 3.LICENSE3.1SOFTWARE LICENSE. Upon payment of Software License Fees by County as required under each Subordinate Contract, and subject to County

35、s compliance with this Contract, Contractor grants to County, pursuant to the terms and conditions of this Contract, a perpetual (except as otherwise provided in Section 16), nonexclusive, nontransferable, limited license to use the Software, solely for use by County, it agents and employees, intern

36、ally, and only for capturing, storing, processing and accessing Countys own data. County acknowledges that each Software and/or Module of the Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and that the Software control

37、s such use. County shall be entitled to use one (1) production copy of each Software and/or Module licensed. In addition, County shall be entitled to make: one (1) additional copy of the Software and/or Modules licensed (but specifically excluding any Client Modules listed in Attachment A) for custo

38、mary back-up purposes; one (1) additional copy of the Software and/or Modules licensed for customary remote disaster recovery purposes; and one (1) additional copy of Software and/or Modules licensed to be used exclusively in a non-production environment and solely for the purposes of experimenting,

39、 integrating and testing the Software and training Countys employees on the Software. County shall not make additional copies of the Software. County shall not make any use of the Software in any manner not expressly permitted by this Contract. The Software is licensed for use by County and may not

40、be used for processing of third-party data as a service bureau, application service provider or otherwise. County agrees: (a) not to remove any Contractor notices in the Software; (b) not to sell, transfer, rent, lease, time share or sub-license the Software or Documentation to any third party; (c)

41、not to alter or modify the Software; and (d) not to reverse engineer, disassemble, decompile or attempt to derive source code from the Software, or prepare derivative works therefrom. Use of Software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes

42、 called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. County is prohibited from using any software oth

43、er than Contractors Client modules or Query API module to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Contractor has given its prior written consent to Countys use of such other softw

44、are and County has paid to Contractor the Software License Fees with respect to such access to the Software or data stored in the Software database in accordance with Contractors licensing policies applicable to the Software modules that provide access to the Software application modules and data st

45、ored in the Software database.3.2WORK PRODUCTS LICENSE. Subject to Countys payment in full of all Services Fees under any Subordinate Contract pursuant to which Contractor develops any Work Products that are not Software, and subject further to Countys compliance with this Contract, Contractor grant

46、s to County a perpetual (except as provided in this Contract), non-exclusive, non-assignable, non-transferable limited license to use the Work Products that are not Software. This license is granted only to County and for the sole purpose of using such Work Products in connection with the Software.

47、Except as otherwise provided in this Contract, County may not make or authorize the making of copies or adaptations of any Work Products. County agrees: (a) not to remove any Contractor notices in the Work Products or any copies thereof; and (b) not to sell, transfer, rent, lease, time share or subl

48、icense the Work Products to any third party.3.3GRANT OF LICENSE FOR DEMONSTRATION SOFTWARE. Contractor grants to County a royalty-free, revocable, non-exclusive, non-assignable, non-transferable, personal and limited license to use one (1) copy of the OnBase Software modules added to Attachment A at

49、tached hereto under the caption Demonstration Software (the Demonstration Software), in machine-readable object code form only, solely for Countys internal use with Countys own data for evaluation, testing, internal demonstration and other non-commercial and non-production uses in an internal test e

50、nvironment, and on servers located only at the County of Orange Enterprise Data Center. County acknowledges that each module of the Demonstration Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and that the Software con

51、trols such use. County shall not make additional copies of the Demonstration Software. County shall not make any commercial use of the Demonstration Software or use the Demonstration Software in any other manner not expressly permitted by this Contract. From time to time during the evaluation period

52、, Contractor may notify County that Upgrades and Enhancements to the Demonstration Software are available. Provided that County is then in compliance with the Contract and with any and all other Contracts and contracts between County and Contractor, Contractor agrees to deliver one (I) copy of any s

53、uch Upgrade and Enhancement to the Demonstration Software (and one (I) copy of any updated documentation) to County promptly upon the receipt of a written request from County for such Upgrade and Enhancement. County acknowledges ano agrees that all Upgrades and Enhancements delivered in accordance w

54、ith this paragraph shall be considered to be Demonstration Software for all purposes of the Contract and the term Demonstration Software, as used in the Contract, shall include any such delivered Upgrades or Enhancements.County acknowledges and agrees that Contractor shall not be obligated to provid

55、e any Maintenance and Support Services with respect to the Demonstration Software to County; and that Contractors customer service center, technical services department and integration services team are not available to County for the Demonstration Software. All questions or requests regarding the D

56、emonstration Software should be directed to Contractors sales department.Except as provided in this Section 3.3, which shall supersede any conflicting provisions of this Contract with respect to the Demonstration Software only, the Demonstration Software shall be deemed and considered by the parties

57、 to be Software subject to the other restrictions, limitations and provisions of this Contract.SECTION 3A.CONSULTING SERVICES AND SOFTWARE SERVICES3A.1REQUEST FOR CONSULTING SERVICES OR SOFTWARE SERVICES. County may in good faith request Consulting Services and/or Software Services from Contractor a

58、t any time during the term of this Contract. If Contractor in good faith agrees to provide such Services, the Parties will enter into a Subordinate Contract. Either Party may, at its sole discretion, elect not to enter into any Subordinate Contract for Services. A Subordinate Contract will become ef

59、fective and binding between the Parties only upon execution thereof by authorized representatives of both Parties. , and may require the approval of the Orange County Board of Supervisors. Subordinate Contract issued for Services may contain additional information and provisions as the Parties deem

60、necessary, including, as appropriate, a description of such Services set forth in a Scope of Work/Specifications; a schedule for the performance of such Services and any milestones associated therewith; the identification of any Work Products; a description of the Parties responsibilities; and a des

61、cription of the total compensation to be paid to the Contractor for providing such Services, and the method of calculation and a schedule of payments.3A.2COSTS AND EXPENSES RELATING TO CONSULTING SERVICES OR SOFTWARE SERVICES. In addition to all other amounts payable by County under this Contract, C

62、ounty will reimburse the Contractor in accordance with the then current IRS Per Diem Rates (IRS Publication 1542) for meals, lodging and incidental expenses shall be responsible for all customary and reasonable out-of-pocket costs and expenses incurred by Contractor in connection with the performanc

63、e of Services requested by County under this Contract or any Subordinate Contract. Further, County will reimburse Contractor for all other out-of pocket expenses incurred by Contractor in connection with the performance of Services requested by County under this Contract or any Subordinate Contract

64、including, but not limited to, airline travel (Contractor will not seek reimbursement for airline travel for more than the cost of a coach class ticket for each traveling employee for the applicable flight) and car rental. Examples of out-of-pocket costs and expenses include, without limitation, tra

65、vel, meals and lodging expenses. Contractor shall invoice County for all costs and expenses hereunder in accordance with the invoicing procedures set forth in Attachment B.3A.3PERFORMANCE / DELAYS. Upon execution of a Subordinate Contract for Services outlined in this Section, Contractor agrees to provide the Services as described in each Subordinate Contract. If any delays in such Services occur solely as a result of any incorrect information or assumption (as such items are described in Section 3A.4 below), the scheduled completion date for the affected