HomeMy WebLinkAbout24285CONTRACT #250186J
THE CALIFORNIA ENDOWMENT
One-E-App ELE LICENSE AGREEMENT
This License Agreement (this "Agreement")is entered into and made effective as of August 1,2004 (the
"Effective Date"),by and between The California Endowment ("TCE"),and Fresno County Department of
Employment and Temporary Assistance,with its place of business at 3151 North Milbrook,Fresno,CA 93703
("Licensee").
Whereas,TCE has rights in certain software products known as "One-e-App ELE",a technology platform
for automating enrollment in public health insurance programs (the "Software"as defined below);and
WHEREAS,TCE makes such software available to certain governmental agencies through a program in
which participating licensees use the Software in part through accessing and using portions of the Software
residing on Web-based servers (the "Program"),where the Program is administered by TCE's designated
contractor,currently Deloitte Consulting LLP ("Contractor");and
WHEREAS,Licensee wishes to receive a license to the Software,all in accordance with the terms set forth
in this Agreement,in order to participate in the Program.
NOW,THEREFORE,in exchange for and in consideration of the mutual promises,premises and covenants
herein,and for other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged,TCE and Licensee hereby agree as follows:
1.DEFINITIONS.
"Documentation"means the standard user
documentation for the Software that TCE or
Contractor makes generally available to its
customers.
"Intellectual Property Rights"means patent
rights (including patent applications and disclosures),
copyrights,trademarks,trade secrets,know-how and
any other intellectual property rights recognized in
any country or jurisdiction in the world.
"Software"means the software products known
as "One-e-App ELE,"in object code form,and
related Documentation,as may be provided by TCE
or Contractor hereunder for use on Licensee
computers and/or through remote access through the
Internet.The Software shall also include any error
corrections,modifications and updates thereto that
may be provided by TCE to Licensee from time to
time.
2.LICENSE.
2.1 Grant of License.Subject to Licensee's
compliance with the terms and conditions of this
Agreement,TCE grants to Licensee a nonexclusive,
perpetual license:(a)to use the Software on
computers owned or controlled by Licensee,and only
for Licensee's internal use,and to access and use the
Software as it may be included and operated on Web
servers as part of the Program;and (b)to copy the
Software as reasonably necessary to exercise the
license rights granted in subsection (a),including
making a reasonable number of copies for backup
and archival purposes.
2.2 License Restrictions.Licensee has no
right to transfer,sublicense or otherwise distribute
the Software to any third party.Licensee
acknowledges that access to portions of the Software
residing on Web servers and provided as part of the
Program may be subject to additional terms of use
with Contractor as set forth on the terms of such
site(s),and Licensee's use of the Software shall also
be subject to those additional terms,which are
incorporated here by reference.Licensee will not
copy or modify the Software,in whole or in part,
except as expressly authorized in this Agreement.
Licensee will not lease,lend or rent the Software,use
the Software to provide service bureau,time-sharing
contract #250186J
or other computer services to third parties,or
otherwise provide or make the functionality of the
Software available to third parties.Licensee
acknowledges that the Software contains trade secrets
of TCE and its licensors,and,in order to protect such
trade secrets and other interests that TCE and its
licensors may have in the Software,Licensee agrees
not to disassemble,decompile or reverse engineer the
Software nor permit any third party to do so,except
to the extent such restrictions are prohibited by law.
2.3 Limited Rights.Licensee's rights in the
Software will be limited to those expressly granted in
this Agreement.TCE reserves all rights and licenses
in and to the Software not expressly granted to
Licensee under this Agreement.
2.4 Ownership.Licensee expressly
acknowledges that,as between TCE and Licensee,
TCE owns all worldwide right,title and interest in
and to the Software,including all worldwide
Intellectual Property Rights therein.Licensee will
not delete or in any manner alter the copyright,
trademark,and other proprietary rights notices
appearing on the Software as delivered to Licensee.
Licensee will reproduce such notices on all copies it
makes of the Software.
3.MAINTENANCE AND SUPPORT.
Licensee acknowledges that TCE is not responsible
for providing any maintenance or support services in
connection with the Software.Any such
maintenance or support services shall be provided,if
at all,by the Contractor in accordance with
applicable terms of the Program.
4.PAYMENT.License fees for use of the
Software are hereby waived.
5.DISCLAIMERS.TCE does not warrant
that the Software will meet Licensee's requirements,
that the Software will operate in the combinations
that Licensee may select for use,that the operation of
the Software will be error-free or uninterrupted or
that all Software errors will be corrected.THE
SOFTWARE IS PROVIDED "AS IS",AND TCE
DISCLAIMS ALL WARRANTIES,EXPRESS OR
IMPLIED,INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE,AND
NONINFRINGEMENT,AND ANY WARRANTIES
ARISING OUT OF COURSE OF DEALING,
USAGE OR TRADE.NO ADVICE OR
INFORMATION,WHETHER ORAL OR
WRITTEN,OBTAINED FROM TCE OR
ELSEWHERE WILL CREATE ANY WARRANTY
NOT EXPRESSLY STATED IN THIS
AGREEMENT.
6.CONFIDENTIALITY.The parties
agree that Licensee will not disclose any confidential
information of Licensee to TCE in connection with
this Agreement,and the disclosure of any
confidential information to Contractor in connection
with maintenance or support services for the
Software shall be governed by the terms of an
applicable agreement between Licensee and
Contractor.
7.LIMITATION OF LIABILITY.
7.1 Total Liability.TCE'S TOTAL
CUMULATIVE LIABILITY TO LICENSEE FROM
ALL CAUSES OF ACTION AND UNDER ALL
THEORIES OF LIABILITY WILL BE LIMITED
TO AND WILL NOT EXCEED THE LICENSE
FEES PAID TO TCE BY LICENSEE PURSUANT
TO THIS AGREEMENT,AND IF SUCH
LIABILITY RESULTS FROM LICENSEE'S USE
OF THE SOFTWARE OR FROM SERVICES
PROVIDED BY TCE,SUCH LIABILITY WILL BE
LIMITED TO THE ACTUAL FEES PAID BY
LICENSEE FOR THE SPECIFIC SOFTWARE OR
SERVICES GIVING RISE TO THE LIABILITY.
7.2 Exclusion of Damages.IN NO EVENT
WILL TCE BE LIABLE TO LICENSEE FOR ANY
SPECIAL,INCIDENTAL,PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING
LOSS OF USE,DATA,BUSINESS OR PROFITS)
OR FOR THE COST OF PROCURING
SUBSTITUTE PRODUCTS OR SERVICES
ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR THE USE OR
PERFORMANCE OF THE SOFTWARE OR THE
MAINTENANCE SERVICES,WHETHER SUCH
LIABILITY ARISES FROM ANY CLAIM BASED
UPON CONTRACT,WARRANTY,TORT
(INCLUDING NEGLIGENCE),STRICT
LIABILITY OR OTHERWISE,AND WHETHER
OR NOT TCE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE.
THE PARTIES HAVE AGREED THAT THESE
LIMITATIONS WILL SURVIVE AND APPLY
EVEN IF ANY LIMITED REMEDY SPECIFIED IN
THIS AGREEMENT IS FOUND TO HAVE
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FAILED OF ITS ESSENTIAL PURPOSE.
7.3 Basis of Bargain.The parties expressly
acknowledge and agree that TCE has set its prices
and entered into this Agreement in reliance upon the
limitations of liability specified herein,which
allocate the risk between TCE and Licensee and form
a basis of the bargain between the parties.
8.TERM AND TERMINATION.
8 .1 Term.This Agreement will begin on the
Effective Date and will remain in effect thereafter
unless terminated earlier in accordance with the terms
of this Agreement.
8.2 Termination.Each party will have the
right to terminate this Agreement or any Software
license granted hereunder if the other party breaches
any material term of this Agreement and fails to cure
such breach within thirty (30)days after written
notice thereof.Further,TCE will have the right to
terminate this Agreement upon thirty (30)days notice
without cause,including without limitation in the
event of termination or expiration of the Program.
Termination of this Agreement pursuant to this
Section 8.2 terminates all Software licenses granted
hereunder.
8.3 Effect of Termination.Upon
termination of this Agreement Licensee will
promptly return to TCE the applicable Software and
all copies and portions thereof,in all forms and types
of media,and provide TCE with an officer's written
certification,certifying to Licensee's compliance
with the foregoing.
8.4 Survival.The rights and obligations of
the parties that are intended by their nature to survive
termination of this Agreement shall survive any such
termination or expiration.
9.GENERAL.
9.1 Assignment.Licensee will have no right
to assign this Agreement,in whole or in part,by
operation of law or otherwise,without TCE's express
prior written consent.Any attempt to assign this
Agreement,without such consent,will be null and of
no effect.Subject to the foregoing,this Agreement
will bind and inure to the benefit of each party's
successors and permitted assigns.
9.2 Governing Law.This Agreement will be
governed by and construed in accordance with the
laws of the State of California excluding that body of
laws known as conflicts of law.The parties
expressly agree that the United Nations Convention
on Contracts for the International Sale of Goods will
not apply.
9.3 Nonexclusive Remedy.Except as
expressly set forth in this Agreement,the exercise by
either party of any of its remedies under this
Agreement will be without prejudice to its other
remedies under this Agreement or otherwise
9.4 Severability.If for any reason a court of
competent jurisdiction finds any provision of this
Agreement invalid or unenforceable,that provision of
the Agreement will be enforced to the maximum
extent permissible and the other provisions of this
Agreement will remain in full force and effect.
9.5 Waiver.The failure by either party to
enforce any provision of this Agreement will not
constitute a waiver of future enforcement of that or
any other provision.
9.6 Notices.All notices required or
permitted under this Agreement will be in writing
and delivered by confirmed facsimile transmission,
by courier or overnight delivery services,or by
certified mail,and in each instance will be deemed
given upon receipt.All communications will be sent
to the addresses set forth above or to such other
address as may be specified by either party to the
other in accordance with this Section.Either party
may change its address for notices under this
Agreement by giving written notice to the other party
by the means specified in this Section.
9.7 Force Majeure.Neither party will be
responsible for any failure or delay in its performance
under this Agreement due to causes beyond its
reasonable control,including,but not limited to,
labor disputes,strikes,lockouts,shortages of or
inability to obtain labor,energy,raw materials or
supplies,war,terrorism,riot,acts of God or
governmental action.
9.8 Relationship of Parties.The parties to
this Agreement are independent contractors and this
Agreement will not establish any relationship of
partnership,joint venture,employment,franchise,or
agency betweenthe parties.Neither party will have
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CONTRACT #250186J
the power to bind the other or incur obligations on
the other's behalf without the other's prior written
consent.
9.9 Export Control.Licensee agrees to
comply fully with all relevant export laws and
regulations of the United States ("Export Laws")to
ensure that neither the Software,nor any direct
product thereof are:(a)exported or re-exported
directly or indirectly in violation of Export Laws;or
(b)used for any purposes prohibited by the Export
Laws,including but not limited to nuclear,chemical,
or biological weapons proliferation.
9.10 Entire Agreement.This Agreement
constitutes the complete and exclusive understanding
and agreement between the parties regarding its
subject matter and supercedes all prior or
contemporaneous agreements or understandings,
written or oral,relating to its subject matter.Any
waiver,modification or amendment of any provision
of this Agreement will be effective only if in writing
and signed by duly authorized representatives of both
parties.
9.11 Counterparts.This Agreement may be
executed in counterparts,each of which will be
deemed an original,but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed as of the date written
below by their duly authorized representatives.
THE CALIFORNIA ENDOWMENT
By:/~~d-
IAwr'l EbJV(fl
PrPfJraW1tJ(rt[;fVr
?/"t,I 0 s '
Name:
Title:
Date:
40841382.1
FRESNO COUNTY DEPARTMENT OF
EMPLOYEMENT AND TEMPORARY
ASSISTANCE
By ~~~Name:_)0 \\-L \+om bC\.L'<-
Title:0 \rtL ~r
IflIt J(}~Date:
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CONTRACT #250186J
year first hereinabove written.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day and1
2
3 ATTEST:
CONTRACTOR:4
5 THE CALIFORNIA
ENDOWMENT6
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PLEASE SEE PREVIOUS
SIGNATURE PAGE
Mailing Address:
21650 Oxnard Street,Suite 1200
Woodland Hills,CA 91367
(818)703-3311
Contact:Program Director
COUNTY OF FRESNO
By:
Martin GIBloom
Facility S~rvices &Purchasing Agent
Dme:~
PLEASE SEE ADDITIONAL
SIGNATURE PAGE ATTACHED
-5 -COUNTY OF FRESNO
Fresno,CA
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CONTRACT #250186J
1 APPROVED AS TO LEGAL FORM:
DENNIS A.MARSHALL,COUNTY COUNSEL2
3
By:?¥~Date:4
5
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APPROVED AS TO ACCOUNTING FORM:
VICKI CROW,C.P.A.,AUDITOR-CONTROLLER!
TREASURER-TAX COLLECTOR8
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BY~u1~~Date:
REVIEWED AND RECOMMENDED FOR
APPROVAL
By Date:
lie\Hornback,Directd
ment of Employment and
Temporary Assistance
Fund:0001/10000
Organization:56107001
Account/Program:7870/0
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4),£Jo~
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COUNTY OF FRESNO
Fresno,CA