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HomeMy WebLinkAbout2003-115 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2003- us Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Diamond Software Inc, Red Deer, Alberta, to enter into a license agreement for the municipal application. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1 . THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a contract between Diamond Software Inc, Red Deer, Alberta, and said Corporation; and 2. THAT the contract attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 23'tfuy of Jun~ 2003. 23rd By-law read a third time and finally passed this day of .' - ,-" - -- - - ~ ~ . ,Mavor--.. - -/""- -:;.-- John DIAMOND SOFTWARE INC. END USER LICENSE AGREEMENT THIS AGREEMENT made this_1;21VN_b day of a-1 A.D., X2603. (hereinafter referred to as the"Agreement") BETWEEN: DIAMOND SOFTWARE INC., -and- a corporation incorporated under the laws of Alberta, having an office at Municipality of Clarington #3,6264-67A Street 40 Temperance Street Red Deer.Alberta.Canada Bowmanville,ON (hereinafter referred to as"Diamond") (hereinafter referred to as"Customer") Whereas, Diamond will grant a license to use versions of (b) modified versions of the Programs,or computer software applications programs developed by Diamond (excluding any Microsoft Business Solutions Great Plains software (c) any form of the Programs whether alone or in components); conjunction with other software,or And Whereas Customer is a person desirous of obtaining rights to (d) the Information,or use these programs; (e) the Materials, Now therefore in consideration of the mutual covenant contained in this Agreement, Diamond and Customer agree as is expressly forbidden. follows: 2.4 The Customer will use reasonable measures to protect the 1, License Information from disclosure or transfer to, or use by, a third party. 1.1 Diamond hereby grants, and Customer accepts, a non- except for agents and employees of the Customer wherein Diamond's exclusive, nontransferable (subject to paragraph 7) license proprietary rights as outlined in paragraph 2.2 above would be (hereinafter referred to as the "License") to use, or execute, each acknowledged and Information disclosure would be disallowed,except of the registered software application programs (hereinafter as permitted in the paragraph herein. referred to as the "Programs" and each individually being a "Program") for the Customer's business purposes and to make no 2,6 The Programs are licensed only to the Customer and, other use whatsoever of the Programs,all on the terms,and subject subject to paragraph 7 herein,the Customer may not transfer the to the conditions,set forth in this Agreement. License without the written consent of Diamond. 2. Proprietary Rights 2.7 The Customer shall indemnify and save harmless Diamond 2.1 The License granted herein does not constitute a sale of from any and all liabilities or damages of every nature and kind with the Programs or any copy thereof, respect to any and all third party claims or actions against Diamond or any claims or actions by Diamond against third parties which arise 2.2 The Customer acknowledges the claim and proprietary out of the Customer's use of the Programs,including Diamond's costs interest of Diamond in any and all information contained in the of defending or advancing claims,on a solicitor and own client basis. Programs and information about the Programs (hereinafter collectively referred to as the "Information") contained in 2,8 The Customer shall not: materials (hereinafter referred to as the "Materials") furnished from time to time by Diamond, including but not limited to any (a) use the Programs or the Information in the operation of a magnetic tapes, diskettes or other computer media. User service bureau;or documentation is proprietary to, and embodies trade secrets of Diamond and the Customer acknowledges that Diamond owns all (b) allow any third party to use the Programs,the Information copyrights in the Materials as unpublished works of authorship, or the Materials;or 2.3 Unauthorized copying of: (c) reverse engineer or de-compile the Programs. (a) the Programs or any part thereof,or 2.9 In addition to adhering to the provisions of this Agreement,the Customer must adhere to all licensing agreements(the Diamond Software Inc. Page i of 5 "Licensing Agreements")for all software products installed within (ii) Diamond disposes of all or substantially all of its assets. the scope of this Agreement. This includes,but is not limited to: 5.4 Diamond may terminate this Agreement immediately, by (a) Microsoft Business Solutions. The Customer must written notice to the Customer if: adhere to all licensing agreements set forth by Microsoft Business Solutions for use of any and all Great Plains (i) the Customer, or any of its agents or employees, makes software products, unauthorized disclosure of any Information or Material;or (ii)the Customer commits a Material breach of this Agreement If the Customer fails to adhere to any of the Licensing and fails to remedy that breach fully within fifteen(1S)calendar Agreements,the Customer-will be responsible for and does hereby days after notice to that effect from Diamond. indemnify and save harmless Diamond from any and all liabilities of every nature and kind with respect to any breach or non- 5.5 Upon termination of this Agreement,the License granted herein shall terminate and the observance by the Customer,or any persons claiming through or y Dia mond and Customer all b will return to Diamond under the Customer of the Customer's obligation t to adhere to the forthwith by means agreeable by Diamond Licensing Agreements. The indemnity provided this section Information and Materials and shall deliver to Diamond any copies shall survive the termination of this Agreement. or counterparts of them made by Customer and shall erase or destroy the media representing those copies or counterparts, and shall 3. Payment remove the coding from its hardware. These actions by Customer 3.1 The Customer will pay Diamond a fee for the License. will not eliminate its obligations to ensure confidential treatment of The License shall not transfer to the Customer until license fees the Information and Materials, which obligations shall survive the have been paid in full. The License shall transfer to the Customer termination of this Agreement. in relation to both current and future versions of application software. 6. Warranties and Liabilities 6.1 If it is determined at any time following the period of software 3.2 The License fee shall not be refundable, in whole or in installation and for a period of twelve consecutive months thereafter, part,either before or after termination of this Agreement, or in any given calendar year during which the Customer has a current Annual Enhancement Plan in effect with Diamond,that any Program 3.3 In addition,each calendar year,in consideration of a fee fails to perform in accordance with its published specifications, as set from time to time by Diamond,the Customer may purchase Diamond will use commercially reasonable efforts to correct an "Annual Enhancement Plan", provided that if the Customer significant deviations in the Program coding,and that shall be the sole opts not to purchase an Annual Enhancement Plan in a given obligation of Diamond with respect thereto. calendar year, future purchases of such a plan shall be in the sole 6.2 Subject to section 6.1, neither Diamond, its directors, discretion of Diamond. For purposes of this Agreement, an officers, employees, servants, agents, distributors, nor any one else "Annual Enhancement Plan" entitles the Customer to current involved in the creation, production, delivery, installation, updates of and enhancements to the application software in maintenance,or support of the Programs warrant,guarantee or make consideration for the payment of an annual fee by the Customer to Diamond. any representations regarding the use of the Programs, the Information or the Material, or the results of such use, in terms of 4. Copying of Material correctness, accuracy,reliability,currentness,or otherwise,nor shall 4.1 While each License is in effect, Customer may make such parties be liable to the Customer for any loss or damage, copies or counterparts of Material covered by it for its use under howsoever caused claimed to have resulted from the use or inability this Agreement,including,for example,to replace Material that is to use the Programs, the Information or the Material or from the wearing or to provide copies for emergency backup, or to create licensing of the Programs. Without limiting the generality of the modifications desired by Customer, as long as copyright notices foregoing, in no event will Diamond, its directors, officers, and labels used by Diamond are included on all copies or employees,servants,agents,distributors,or any one else involved in counterparts so made, all of which are deemed to be Material for the creation, production, delivery, installation, maintenance, or purposes of this Agreement. However, Customer may have no support of the Programs be responsible for any indirect, pecial, more that three p) copies or counterparts of any particular incidental,or consequential damages,including loss of profits. Material at any time and may not have any Material away from its premises except one (1) archival copy of each particular item of 6.3 Subject to section 6.1,the Programs,the Information and the Materials are provided"as is"without condition or warranty of Material. any kind. 5. Term and Termination 6.4 THE WARRANTIES CONTAINED IN THIS SECTION 6 5.1 Subject to paragraphs 5.2,5.3 and 5.4 each License shall be a perpetual License and shall begin on the date the Customer ARE THE ONLY WARRANTIES OF ANY KIND THAT ARE receives a magnetic tape, diskette or other medium for the MADE BY DIAMOND WITH RESPECT TO ANY AND ALL Programs which can be introduced into, and used e executed on SERVICES OR PRODUCTS PROVIDED PURSUANT TO THE hardware approved by Diamond. TERMS OF THIS AGREEMENT. DIAMOND DOES NOT MAKE ANY OTHER WARRANTIES,EXPRESS OR IMPLIED, 5.2 The Customer may, without cause, terminate this STATUTORY OR OTHERWISE,INCLUDING,WITHOUT Agreement at any time upon 90 days written notice. LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR 5.3 The Customer may terminate this Agreement PURPOSE. ALL WARRANTIES AND CONDITIONS,EXPRESS immediately,by written notice to Diamond if: OR IMPLIED,INCLUDING THOSE IMPLIED PURSUANT TO (i) Diamond becomes bankrupt or insolvent;or STATUTE,ARE EXCLUDED. Diamond Software Inc. Page 2 of 5 4 of origin or of destination,the notice shall be given by such specified 6.5 This Agreement sets forth the entire agreements and mode as will be most reliable and expeditious and least affected by understandings of the parties hereto in respect of the subject such dispute or situation. matters hereof and supersedes all prior agreements,arrangements, discussions,information,advice and understandings,verbal or 10. Ownership of Data written,related to the subject matters hereof as of the date of The Customer has sole ownership of all data contained within the execution and delivery of this Agreement. No representation, system. Upon termination of this agreement,Diamond will not in any promise,inducement or statement of intention,verbal or written, event erase or destroy the data in any manner and shall return all data has been made by any party which is not embodied in this to the Customer and will not make copies of the data or otherwise use Agreement,and no party shall be bound by or liable for any alleged the data for any other purpose other than fulfilling its obligations representation,promise,inducement or statement of intention not under this Agreement. so set forth. Specifically,without limiting the foregoing,no information or advice,oral or written,provided to the Customer 11. General Provisions by,or on behalf of,Diamond shall create a warranty or any way 11.1 This Agreement shall be construed and enforced in increase the scope of the warranties provided hereunder,and the accordance with and the rights of the parties shall be governed by the Customer may not rely on any such information or advice. laws of the Province of Alberta. Any court of competent jurisdiction in Province of Ontario shall have non-exclusive jurisdiction over this 7. Assienment Agreement and its enforcement by Diamond as against the Customer 7.1 In the event that the Customer changes either legal but any court of competent jurisdiction in Alberta shall have status and/or legal name, this contract will be automatically exclusive jurisdiction over this Agreement and its enforcement by the assigned to the Customer under the new name and/or legal status Customer as against Diamond only. and the obligations of the Customer hereunder shall thereafter become the obligations of the Customer under the new legal status 11.2 Every provision of this Agreement shall be construed as and/or new legal name. If the Customer is amalgamated with being severable and if any term or provision hereof in whole or in another company, legal entity or government body, this contract part,provided the same is not a fundamental term or provision going will be assigned to the company,legal entity or government body to the root of this Agreement, shall be determined to be invalid or created by the amalgamation,and the obligations of the Customer unenforceable for any reason whatsoever, such invalidity or hereunder shall thereafter become the obligations of the company, unenforceability shall not affect the validity or enforceability of any legal entity or government body created by the amalgamation, other provision hereof and this Agreement shall be construed as if subject to approval by Diamond. such invalid or unenforceable provision or part thereof were omitted. 7.2 Excepting transfers or assignments pursuant to section 11.3 The Recitals to this Agreement are incorporated in and 7.1, the Customer may not transfer, assign, rent, lease, sell or form a part of this Agreement. otherwise dispose of the Programs, the Information or the Material, whether temporarily or permanently, without the written consent of Diamond. 7.3 This Agreement will enure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. 8. Modifications and Waiver 8.1 No modifications or amendments to this Agreement shall be binding upon the parties unless in writing signed by both parties. 8.2 A failure of either party to enforce its rights under this Agreement shall in no way be construed to be a waiver of such rights or a modification of the terms of the Agreement or to be a continuing waiver. 9. Notices Any and all notices or other information to be given by one of the parties to the other shall be deemed sufficiently given when forwarded by prepaid registered or certified first class airmail or by cable,telegram,telex,telefax,or hand delivery to the other party at their respective addresses first set out above. Such notices shall be deemed to have been received five (5) business days after mailing if forwarded by mail, and the following business day if forwarded by cable, telegram, telex, or by hand. The aforementioned address of either party may be changed at a time upon giving seven (7) days prior notice to the other party in accordance with the foregoing. In the event of a generally prevailing labour dispute or other situation which will delay or impede the giving of notice by any such means,in either the place Diamond Software Inc. Page 3 of 5 DIAMOND SOFTWARE INC. x (signature) (name) MU ICPALITY OF CLARINGTON (Patt '�tuttnn, Mayor /J Barrie, 'Municipal Clerk Va aoo,3 Date Diamond Software Inc. Page -1 of 5 4 Appendix A Diamond Software Licensed Modules MODULE NAME 1. 20 concurrent users 2. Interfund 3. Cash Receipts 4. GST Rebating 5. Cash Receipts Importer Page 5of5