HomeMy WebLinkAboutAGMT - Thomas Brothers Maps (Database License Agmt) S
Agreement No._
DATABASE LICENSE AGREEMENT
THIS DATABASE LICENSE AGREEMENT("Agreement")is made and entered into as of (the "Effective Date")by
and between THOMAS BROS. MAPS®, a California corporation,having offices at 17731 Cowan,Irvine, CA 92714("TBM")and__
C` ,1 of fit- Z4-0..cm , a municipality or public agency, having offices at Z tt 8r+ $4, SC"u-&tiw,c A ("Licensee").
RECITALS yolyo
A. TBM is the owner of the proprietary Database described on Exhibit A attached hereto(the "Database");
B. Licensee is a municipality or other public agency and desires to the use the Database solely for its internal,noncommercial
governmental use and purpose(the"Purpose");and
C. TBM desires to grant to Licensee and Licensee desires to obtain from TBM a nonexclusive nontransferable license to use
the Database for the Purpose in accordance with the terms and on the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements set forth herein, the parties to this
Agreement agree as follows:
1. GRANT OF RIGHTS. TBM hereby grants to Licensee(including any non-competitive contractors or consultants that Licensee may
engage to install or integrate the Database in support of Licensee's Purpose; provided that any such third party first enters into a user
agreement in the form attached hereto as Exhibit B),and Licensee hereby accepts,subject to the terms and conditions of this Agreement,a
nonexclusive,nontransferable, and nonassignable license to use the Database described in Exhibit A attached hereto and incorporated by
reference herein and the TBM user manual and related documentation pertaining thereto (the "Documentation") solely for the Purpose,
from the Effective Date hereof until terminated or expired in accordance herewith. Without limiting the foregoing, Licensee understands
and agrees that it shall in no event use the Database either CO in connection with any other commercial street map database for any
purpose or (ii) to publish maps of any kind, or map-related or other information using the Thomas Bros. Maps Page and GridT", for any
use or purpose other than the Purpose. Licensee may modify and/or add new features to the Database to the extent that such new features
and changes contribute to the Purpose("Derivative Products")and may sublicense those certain Derivative Products set forth in Exhibit A,
solely for the Purpose, to a third party(other than to a third party data provider),provided that Licensee enters into a user agreement with
such third party in the form attached hereto as Exhibit B. Licensee shall be entitled to use the Derivative Products solely for the Purpose.
2. LICENSE FEE DELIVERY AND SUPPORT. Licensee shall pay the license fee,including applicable taxes, set forth on Exhibit A.
TBM shall deliver the database in the manner set forth on Exhibit A. During the term of this Agreement,TBM shall provide telephone
consulting support to Licensee,at Licensee's request, in order to assist Licensee in using the Database.
3. PROTECTION OF DATABA ONFID NTIA ITY INn1NCTIV F I F M SCE ANEO S. Licensee agrees to be
bound by the terms and conditions regarding the protection and ownership of the Database, confidentiality, injunctive relief and other
miscellaneous provisions set forth in Annex A attached hereto and incorporated by reference herein.
4. WARRANTY.
4.1 Limited Warranty. TBM represents and warrants to Licensee that the Database will perform substantially as described in TEM's
Documentation for the Database as of the Effective Date for a period of ninety (90) days from the date of delivery of the Database.TBM
further warrants that it owns the Database and Documentation licensed under this Agreement. Should TBM be in breach of its
representation and warranty under this Section 4.1, TBM's entire liability and Licensee's exclusive remedy shall be, at TBM's option,
either(a)return of the Database in exchange for the refund of the Database License Fee paid, or(b)repair or replacement of the Database
upon its retum to TBM; provided,'however, that TBM receives written notice from Licensee during the warranty period of a breach of
warranty. Any replacement Database will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is
longer.
4.2 Disclaimer of Warranties. THE WARRANTY STATED IN SECTION 4.1 ABOVE IS THE SOLE AND THE EXCLUSIVE
WARRANTY OFFERED BY TBM. THERE ARE NO OTHER WARRANTIES RESPECTING THE DATABASE,
DOCUMENTATION, OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY OF DESIGN, AGAINST INFRINGEMENT, OF MERCHANTABILITY, OR OF FITNESS FOR A
PARTICULAR PURPOSE, EVEN IF TBM HAS BEEN INFORMED OF SUCH PURPOSE.NO AGENT OF TBM IS AUTHORIZED
TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF TBM AS SET FORTH HEREIN.
4.3 J.imitation of Liability and Licensee's Indemnity.
(a) LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH TBM IS CHARGING HEREUNDER
DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY TBM OF THE RISK OF LICENSEE'S DAMAGES,
INCLUDING CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S
USE OF THE DATABASE OR DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT TBM SHALL NOT BE
LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF THE LICENSING OR USE OF THE DATABASE, DERIVATIVE PRODUCTS,
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R DOCUMENTATION. Any provision herein contrary notwithstanding, the maximum li of TBM to any person, firm, •
rrporation whatsoever arising out of or in conn with any license, use, or other employmen he Database delivered to License
:reunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort,or otherwise,shall in no .
Ise exceed the actual Database License Fee paid to TBM by Licensee for the Database the license, use, or other employment of which - .
yes rise to the liability. .
b)TBM shall have no liability or obligation with respect to any Derivative Products or other modifications of the Database by Licensee.
urther, if any claim is asserted by a third party that,as a result of such Derivative Products or modifications by Licensee, the Database as
modified infringes an intellectual property right of the third party, Licensee shall indemnify TBM with respect to all costs or damages
:suiting from such claim (including attorneys' fees) and any judgment that may be awarded against TBM to the extent based upon such
codification.
(c) TBM shall indemnify Licensee from and against any third party claim that the Database infringes the intellectual property rights of a
iird party.
5. TERM OF AGREEMENT. This Agreement shall be effective for the period of one(1)year(unless earlier terminated in accordance
+ith the terms and conditions of Section 6) and shall thereafter be renewed for successive one-year(1-year) terms unless notice of non-
°newal is given by either party within sixty(60)days prior to the expiration of the original term or any successive term.
DEFAULT AND TERMINATION.
6.1 Events of Default This Agreement may be terminated by the nondefaulting party if any of the following events of default occur. (a)
party materially fails to perform or comply with this Agreement or any provision hereof(including any failure to make any payment
ereunder when due); (b)a party fails to strictly comply with the provisions of Annex A (Protection of Database, Confidentiality) or
nakes an assignment in violation of Annex A (Nonassignability); (c)any transfer, sale, merger, or acquisition of more than fifty percent
50%) of the issued and outstanding shares or assets of either party; (d) a party ceases doing business, becomes insolvent or admits in
vriting its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (e)a petition under any foreign,
;tate,or United States bankruptcy act,receivership statute,or the like,as they now exist,or as they may be amended,is filed by a party;or
f)such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not
esolved favorably within ninety(90)days.
6.2 Effective Date of Termination. Termination under subparagraphs 6.1(b),(c), (d),(e),or(f) above shall be effective on notice. In all
Aber cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been 1
:ured within such thirty-day(30-day)period.
7. Obligations on Non-Renewal or Termination. Upon non-renewal or termination of this Agreement,Licensee shall cease and desist all
use of the Database, and Licensee shall deliver to TBM within three (3) days of termination all full or partial copies of the Database and
Documentation and any variations thereof, including any Derivative Products, in Licensee's possession or under its control, along with
written certification that all copies of the Database and/or Derivative Products have been deleted form Licensee's computers. Licensee
acknowledges that its failure to comply with the obligations of this Section 7 will constitute unauthorized use of the Database, entitling
TBM to equitable relief under Annex A(injunctive relief). Licensee may continue to use the Database and Derivative Products under the
terms and conditions herein for a period of a period of two (2) years after the non-renewal of the last updatehenewal, provided that
Licensee is not in breach of this Agreement. Licensee may elect to maintain and use Derivative Products solely for the Purpose for a
period of five (5) years after the expiration of this Agreement at no cost to Licensee by giving notice of such election to TBM, provided
that said Derivative Products are not similar to or provide replacement for layers in the Database in content or function, and said
Derivative Products shall not be used to enhance, improve or otherwise transfer data that was originally in the Database with any other
database. Licensee may request additional five year extensions to this use of Derivative Products and TBM shall not unreasonably
withhold approval of such requests. .
8. SURVIVAL.Sections 3,4,6,8,9 and Annex A shall survive the non-renewal of this Agreement.
9. GOVERNING LAW.
The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California,
without regard to the conflicts of laws principals thereof. .
IN WITNESS WHEREOF,the parties have caused their duly authorized representatives to execute and deliver this Agreement as of the
date first set forth above.
THOMAS BROS. MAPS LICENSEE
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By By
/ gZ)0
Title Title City Manager
City of Seal Beach
GIS Data Order Form la
tructions: (a) Complete this form Return sined
,eck/purchase order to: Thomas Bros. Maps,tDigital Data Licensing, 17731 bCowan Irvine, CA agreemen[ with
1. Customer Information 2. Billing Information
City Name: Lrt•( op SC-'00- teVh.LH
Billing address:
Dept. I)CUcLca.erer Sea.:.tss Name _La. L.. L te+t6a .
Address 2-1 STN S' TLC J
Dept. 1✓cruon.-apme>..r
City/Zip Sills(' \,.c.+ CA
ctcTYo Address 2-it
Technical BT I 5 E tt� r
Contact: 1�At:-u-`( b City/Zip .sew-, j ,.c L ✓1 9•»Yo
Ship to address:
t4at .w (s.crfli Phone (3to) y 3 - 2S z7
Address 2 t 1 BTM Fax: �3 t°) 93/ — `10 67
City/Zip SEWL Bee --1, 64 50790 Purchase Order#:
Phone tied yr) - 2527 (Check or Purchase Order must accompany this order)(It tN) 141 !— 9067 P Y )
3. Thomas Bros. Maps Information.
The standard TBM Database includes street centerlines,street address ranges,street name annotation and non-street layers.
TBM Phone: (800) 899-6277, or (714) 863-1984 TBM fax: (714) 757-1564
If calling, ask for the appropriate department: Digitial Data sales/admin; Digital Data Technical Support;
Source/Corrections.
External distribution of TBM Database layers is prohibited (except to city contractors-- see page I, Section 2).
Cities may externally distribute the following electronic Derivative layers with execution of a signed User Agreement:
(a) General Plan; (b) Zoning; (c)Traffic Analysis Zones (arterial streets only); All other distribution of Derivative layers
needs prior permission, in writing, from TBM.
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4. Annual License Type: Number of Seats License Fee TBM Use Only
check appropriate boxes
1„Per-seat License 0r•1 500
❑ City-wide License Not applicable
❑ Workstation License
❑ TRW-Redi License
ta Sales Tax See sales tax table in instructions 33 75
.icense Fee Total
531;3. 15
PROTECTION OF DATABASE;CONFIDENTIALITY;INJUNCTIVE RELIE rISCELLANEOUS
1 0 PROTECTION OF DATABASE. •
1.1 Proprietary Notices. TBM claims and reserves all ownership and rights afforded at law and in equity in all data, compilations, and
materials that constitute the Database, including, but not limited to, all rights under federal copyright law. Licensee agrees to respect and not to remove,
obliterate,or cancel from view any copyright,trademark,confidentiality,or other proprietary notice,mark,or legend appearing on the Database or on the
Visual Output, including, but not limited to, any such notices displayed to the user during the operation of the Database and any such notices in the ■
Documentation,and agrees to reproduce and include the same on each copy of the Database or any portion thereof. All map printouts and plots of the
Database shall bear the notice:"(c)Thomas Bros. Maps.All rights reserved."
1.2 Ownership. Licensee further acknowledges and agrees that the Database in any form provided by TBM or made by Licensee and any
copies thereof,including,without limitation,all portions of the Derivative Products that are copied from or based on the Database,are the sole property of
TBM. Licensee shall not have any right,title,or interest in or to said portions of the Database or Derivative Products or Documentation or any copies of
any of the foregoing except as expressly provided in this Agreement, and further shall secure and protect the Database consistent with maintenance of
TBM's proprietary rights therein. All copyrights associated with the Database and all other rights thereto not specifically granted to the Licensee in this
Agreement are reserved by TBM. Nothing contained in this Agreement shall be construed as conferring any license or right with respect to any
trademark,trade name,brand name,or the corporate name of TBM.
2.0 •d U pl■ i It :J• 1 11 g U t I .
2.1 Acknowledgment Licensee hereby acknowledges and agrees that the Database is a valuable proprietary product,embodying substantial
creative efforts, trade secrets, and confidential information, ideas, and expressions of Licensor. Accordingly, Licensee agrees to treat (and take
precautions to ensure that its employees treat)the Database as confidential information in accordance with the confidentiality requirements and conditions
set forth below.
2.2 u.'r r r . • r r •: t •.n• .t. Licensee agrees to keep confidential all confidential information disclosed to it by TBM in
accordance herewith,and to protect the confidentiality thereof,in the same manner in which it protects the confidentiality of similar information and data
of its own(at all times exercising at least a reasonable degree of care in the protection of confidential information);provided,however,that Licensee shall
not have such obligation with respect to the use or disclosure to others of any confidential information that can be established to have: (a)been known
publicly;(b)been known generally in the industry before communication by TBM to Licensee;(c)become known publicly,without fault on the part of
the Licensee,subsequent to disclosure by TBM;(d)been known otherwise by the Licensee before communication by TBM;or(e)been received by the
Licensee without any obligation of confidentiality from a source(other than TBM)lawfully having possession of such information. Upon ten(10)days'
written notice to Licensee,TBM shall have the right to inspect and audit Licensee's procedures and to examine Licensee's computer systems in order to
determine whether such procedures and computer systems comply with the requirements set forth in this Agreement.
2.3 Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer, assignment, sublicensing, or disclosure of the Database,
Documentation, Derivative Products or copies thereof will (i) substantially diminish the value to TBM of the trade secrets, copyrights, and other
proprietary interests that are the subject of this Agreement;(ii)render IBM's remedy at law for such unauthorized use,disclosure,or transfer inadequate;
and(iii)cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the
Database,Documentation, or Derivative Products,TBM shall be entitled to equitable relief to protect its interests therein, including, but not limited to,
preliminary and permanent injunctive relief,and Licensee waives any requirements that a bond be posted in connection therewith.
2.4 Survival. Licensee's obligations under this Annex A Section 2 shall survive the termination of this Agreement or of any license granted
under this Agreement for whatever reason.
3.0 NONASSIGNABILI Y. Licensee shall not assign or transfer this Agreement or all or any part of its rights hereunder,by operation of law
or otherwise,without the prior written consent of TBM. Any unauthorized assignment or transfer shall be null and void and shall constitute grounds for
immediate termination of this Agreement by TBM under Agreement Section 6 above. This Agreement shall inure to the benefit of and be binding upon
any permitted sucrresor or assign.
4. NOTICES. All notices, authorizations, and requests in connection with this Agreement shall be deemed given(a) five days after being
deposited in the mail, postage prepaid, certified or registered, return receipt requested; or (b) one day after being sent by overnight courier, charges
prepaid;and addressed as first set forth above or to such other address as the party to receive the notice or request so designates by written notice to the
other.
5.MISCELLANEOUS.
5.1 If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid,or unenforceable,the remaining
provisions shall remain in full force and effect.
5.2 This Agreement and the exhibits attached hereto contain the entire understanding and agreement between the parties respecting the subject
matter hereof and all prior quotations, invoices, negotiations, understandings, representations,and agreements of the parties,whether oral or written, are
superseded in their entirety.
5.3 This Agreement may not be supplemented, modified,amended,released,or discharged except by an instrument in writing signed by each
party's duly authorized representative.
5.4 This Agreement shall supersede, replace,and terminate in its entirety any purchase order of Licensee for the Database or Documentation
and all such purchase orders are subject to acceptance by TBM. In no event will any additional terms and conditions on a purchase order be effective
unless expressly accepted by TBM in writing.
5.5 All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of
any of its provisions.
5.6 Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any
subsequent default or breach of the same or a different kind.
5.7 If the performance of this Agreement or any obligations hereunder is prevented, restricted or interfered with by reason of fire, or other
casualty or due to strikes,riot,storms,explosions,acts of God,war,or a similar occurrence or condition beyond the reasonable control of the parties,the
party so affected shall, upon giving prompt notice to the other party, be excused from such performance during such prevention, restriction or
interference,and any failure or delay resulting therefrom shall not be considered a breach of this Agreement.
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EXHIBIT B
DATABASE USER AGREEMENT
A. Thomas Bros. Maps®, a California corporation, having offices at 17731 Cowan,
Irvine, CA 92714 ("TBM"), and City of Seal Begred into that certain Database
License Agreement dated8/26/9 6a copy of which is attached hereto as Exhibit A and
incorporated by reference herein (the "Database License Agreement").
B. User (as each is defined in the Database License Agreement) is a consultant or
contractor of Licensee or other party having business with Licensee and desires to use the
Database and/or Derivative Products, solely for User's internal, noncommercial use and
purpose (the "Purpose") pursuant to the Database License Agreement;
1. GRANT OF RIGHTS.
THIS AGREEMENT SHALL BE NULL AND VOID UNLESS AND UNTIL USER HAS
DELIVERED THIS AGREEMENT TO TBM.
User understands and agrees that it is acquiring the right to use the Database,
Documentation and Derivative Products (as each is defined in the Database License
Agreement) solely for its internal, noncommercial use and purpose pursuant to the Database
License Agreement, which right is nonexclusive, nontransferable and nonassignable. User
shall have the right to use the Database and the Documentation to produce printouts, plots,
displays, photographic film, and printed matter (the 'Visual Output") for the Purpose, from
the Effective Date hereof until expiration or termination of this Agreement as set forth herein.
Without limiting the foregoing, User understands and agrees that it shall in no event use the
Database to publish maps of any kind, or map-related or any other information using the
TBM Page and Grid®, for any purpose or use other than the Purpose. User further
understands and agrees that it shall be bound by and subject to the terms and conditions
contained in Sections 3, 4, 5, 6, 7 and Annex A of the Database License Agreement.
IN WITNESS WHEREOF, the User has caused its duly authorized representatives to
execute and deliver this Agreement as of the date first set forth below.
USER
/
By
Title City Manager
Dept. City of Seal Beach
or company
Address 211 - 8th Street
City/ZipSeal Beach, Calif. 90740
Phone (310) 431-2527
Date August 26 , 1996 .
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