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EXHIBIT "A"
<br />1 ucityT`t Software License Agreement
<br />Lucity has primary control of its defense and settlement; and (C) Licensee
<br />provides Lucity with reasonable assistance in its defense and settlement.
<br />(b) Injunctions. If Licensee's use of any Program(s) under the terms of this
<br />Agreement is, or in Lucity's opinion is likely to be, enjoined due to the type
<br />of infringement or misappropriation specified in Section 8(a)(i), then Lucky
<br />may, at its sole option and expense, either:
<br />(i) procure for Licensee the right to continue using such Program(s) under
<br />the terms of this Agreement;
<br />(ii) replace or modify such Program(s) so that it is noninfringing and
<br />substantially equivalent in function to the enjoined Program(s); or
<br />(iii) if options (i) and (ii) above cannot be accomplished despite the
<br />reasonable efforts of Lucity, then Lucity may both;
<br />(A) terminate Licensee's rights and Lucity's obligations under this
<br />Agreement with respect to such Program(s); and
<br />(B) refund to Licensee the unamortized portion of the License Fee paid
<br />based upon a 5 year straight-line depreciation, such depreciation to be
<br />deemed to have commenced on the effective date of this Agreement.
<br />(c) Exclusive Remedy. The foregoing are Lucity's sole and exclusive
<br />obligations, and Licensee's sole and exclusive remedies, with respect to
<br />infringement or misappropriation of intellectual property rights, Lucity
<br />makes no separate warranty of noninfringement under or in connection with
<br />this agreement.
<br />(d) Exceptions. Lucity will have no obligations under this Section 8 with
<br />respect to infringement or misappropriation arising from: (i) modifications to
<br />the Program(s) that were not made by Lucity (whether or not authorized by
<br />Lucity); (ii) Program(s) specifications or modifications requested by
<br />Licensee; or (iii) the use of Program(s) with products (including but not
<br />limited to software) not provided by Lucity.
<br />9. CONFIDENTIAL INFORMATION.
<br />(a) Definition. "Confidential Information" refers to: (i) the Program(s),
<br />including but not limited to their software source code, and any related
<br />documentation or technical or design information related to the Program(s);
<br />(ii) the business or technical information of Lucity, including but not limited
<br />to any information relating to Lucity's product plans, designs, costs, product
<br />prices and names, finances, marketing plans, business opportunities,
<br />personnel, research, development or know-how; (iii) any information
<br />reasonably and appropriately designated by Lucity as "confidential" or
<br />"proprietary" or which, under the circumstances taken as a whole, would
<br />reasonably be deemed to be confidential under applicable law; and (iv) the
<br />terms and conditions and existence of this Agreement.
<br />(b) "Confidential Information" will not include information that:
<br />(i) is in or enters the public domain without Licensee's breach of this
<br />Agreement;
<br />(ii) Licensee receives from a third party without restriction on disclosure
<br />and without breach of a nondisclosure obligation; or
<br />(iii) Licensee party develops independently, which it can prove with clear
<br />and convincing written evidence.
<br />(c) Confidentiality Obligations. Licensee agrees to take all measures
<br />reasonably required in order to maintain the confidentiality of all Confidential
<br />Information in its possession or control, which will in no event be less than
<br />die pleasures Licensee uses to maintain the confidentiality of its own
<br />information of equal importance.
<br />(d) [Employee Confidentiality Procedures. Licensee agrees to inform its
<br />employees of their confidentiality obligations regarding the Program(s) and
<br />other Lucity Confidential Information. Licensee further agrees to ensure that
<br />contract employees (including temporary employees) of Licensee agree to
<br />confidentiality obligations similar to those of this Agreement.
<br />(e) Compliance with Law. Lucity acknowledges the Licensee will comply
<br />with all laws regarding the release and disclosure of information, including
<br />but not limited to, the Public Records Act (Chapter 42.56 RCW).
<br />10. MAINTENANCE AND SUPPORT.
<br />(a) Named Products Licensing. Lucity and Licensee may, by mutual
<br />agreement, include the maintenance and support services described in the
<br />software's online help for the Progrinn(s) under this Agreement by
<br />exchanging documents (i.e., a purchase order from Licensee and
<br />acknowledgment front Lucity) referencing this Agreement and the
<br />Program(s) to be included under such services. The parties agree that such
<br />purchase orders and acknowledgments shall have no effect on the terms and
<br />conditions of this Agreement, under which such Program(s) arc licensed.
<br />Maintenance and support services are provided at a rate and for a term as
<br />mutually determined by Lucity and Licensee for the scope of services to be
<br />provided by Lucity for the Program(s) to be included under such services.
<br />(b) Named Users Licensing. The Annual Fee for the Program(s) included
<br />under this Agreement includes the maintenance and support services
<br />described in the software's online help.
<br />1 I . LIMITATIONS OF LIA RILL n .
<br />Licensee acknowledges that input and/or edits of data by means other than the
<br />Lucity standard Program(s) interface may result in loss of data, and/or
<br />improper operation of the Program(s). The Licensee agrees that in no event
<br />will Lucky be liable to Licensee under this Agreement for costs necessary to
<br />diagnose, recover data and/or restore proper operation of the Program(s)
<br />resulting from improper operation of the Program(s)..
<br />12. TERM AND TERiMINATION.
<br />(a) Term — Named Products Licensing. Except as expressly provided in this
<br />Section 12, this Agreement will continue in full force and effect perpetually.
<br />(b) Term — Named Users Licensing. Except as expressly provided in this
<br />Section 12, this Agreement will continue in full force and effect for one
<br />(year) from the Effective Date of this Agreement, with automatic renewal for
<br />subsequent one (I) year periods.
<br />(c) Termination. Either party will have the right to terminate this Agreement
<br />if other breaches any material term or condition of this Agreement and fails to
<br />cure such breach within thirty (30) days of written notice.
<br />(d) Effect of Termination — Named Products Licensing, If this Agreement is
<br />terminated, Licensee will immediately return to Lucky, or Lucity's
<br />designated representative, or (at Lucity's request) destroy all copies of the
<br />Program(s) in its possession or control, and an officer of Licensee will certify
<br />to Lucity in writing that it has done so.
<br />(e) Effect of Termination — Named Users Licensing. If this Agreement is
<br />terminated, license codes for the Program(s) included under this Agreement
<br />will expire and the Program(s) included under tins Agreement will be
<br />effectively disabled.
<br />(I) Survival. The provisions of Sections 4 (Proprietary Rights), 6(b) ('faxes),
<br />7(b) and (c) (Warranties Exclusive Remedy and Disclaimer), 8(c) and (d)
<br />(Infringement Exclusive Remedy and Exceptions), 9 (Confidential
<br />Information), and I 1 (Limitations of Liability) will survive termination of this
<br />Agreement for any reason.
<br />(1) Nonexclusive Remedy. The exercise by Lucity of any remedies under this
<br />Agreement will be without prejudice to its other remedies under this
<br />Agreement or otherwise.
<br />13. GENERAL PROVISIONS.
<br />(a) Audit Rights. Licensee agrees to allow Lucity, at Lucity's sole expense,
<br />upon reasonable written notice, and during Licensee's ordinary business
<br />hours, to visit the facilities in which Licensee uses the Program(s) and review
<br />Licensee's practices with regard to the Program(s).
<br />(b) Assignment. This Agreement will bind and inure to the benefit of each
<br />party's successors and assigns, provided that either party may not assign this
<br />Agreement, in whole or in part, without written consent of both parties.
<br />(c) Modifications. This Agreement may only be modified, or any rights
<br />under it waived, by a written document executed by both parties.
<br />(d) Conflicting Terms. Purchase orders or similar documents relating to the
<br />Program(s) issued by Licensee will have no effect on the terms of this
<br />Agreement.
<br />(e) Notices, All notices under this Agreement will be deemed given when
<br />delivered personally or upon receipt of by U.S. certified mail, return receipt
<br />requested, to the address shown below or as may otherwise be specified by
<br />either party to the other in accordance with this Section.
<br />(I) Severability. If any provision of this Agreement is found illegal or
<br />unenforceable, it will be enforced to the maximum extent permissible, and the
<br />legality and enforceability of the other provisions of this Agreement will not
<br />be affected.
<br />(g) Waiver. No failure of either party to exercise or enforce any of its rights
<br />under this Agreement will act as a waiver of such rights.
<br />(h) Entire Agreement. This Agreement is the complete and exclusive
<br />agreement between the parties with respect to the subject matter hereof,
<br />superseding and replacing any and all prior agreements, communications, and
<br />understandings (both written and oral) regarding such subject matter. No
<br />purchase orders, acknowledgments, invoices, or other documents exchanged
<br />in the ordinary course of business shall modify or add to the terms and
<br />conditions of this Agreement.
<br />(i) Choice of Law. This Agreement will be governed by and construed in
<br />accordance with the laws of the state in which Licensee is located.
<br />Copyright 0 lois Lucity, loc. All rights reserved
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