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HomeMy WebLinkAbout2014-025FILE REFERENCE FORM 1 2014-025 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials First Amendment to Contract -Ordinance No. 2017-092 03/21/17 JR ORDINANCE NO. 2014-025 AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF A LABORATORY INFORMATION MANAGEMENT SYSTEM (LIMS) AND A THREE (3) YEAR SOFTWARE MAINTENANCE AGREEMENT FOR CONTINUED VENDOR SUPPORT OF THE SOFTWARE, WHICH IS AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5441 AWARDED TO LABWARE, INC. IN THE THREE (3) YEAR NOT -TO -EXCEED AMOUNT OF $72,840). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTIONw 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBERm VENDOR AMOUNT 5441 LabWare, Inc. $72,840 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. 5'ECTION' 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5441 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of �� �: , 2014. MARK . B1�.. „MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: �H ... File 544V„ LabWare LIMS Master Software License Agreement This Master Software License Agreement (hereinafter referred to as "Agreement") is entered into by and between LabWare Inc., having its offices at 3 Mill Road, Suite 102, Wilmington, DE 19806 (hereinafter referred to as "LabWare") and City of Denton having its offices at 1100 S. Mayhill Rd., TX 76208 (hereinafter referred to as "Licensee"). Both LabWare and Licensee agree that the terms and conditions contained in this Agreement shall govern the sale, licensing and discounting of all Software offered to Licensee by LabWare. 1.0 DEFINITIONS a. Employee — Shall mean any employee of LabWare. b. LabWare Software - Shall mean any available LabWare licensed program that may be obtained, by license, from LabWare under this Agreement. C. Effective Date — Shall be the date listed on Addendum 1. d. Capacity — Shall mean the number of concurrent users authorized for simultaneous access to an instance of the LabWare Software. e. Third Party Software — Shall mean a third parry's proprietary software that LabWare either sublicenses or which is acquired by license and embedded in the LabWare Software. 2.0 SCOPE OF AGREEMENT During the Term of this Agreement, Licensee is hereby granted the right to purchase nonexclusive LabWare Software licenses and equipment at the prices and in accordance with the terms and conditions that are listed in Addendum 2, which is attached hereto and made a part hereof. 2.1 Licensee Purchase Orders Licensee shall acquire a license for LabWare Software by issuance of individual purchase orders that reference and are subject to the terms and conditions of this Agreement. In the event of any inconsistencies between the language of this Agreement and any purchase orders issued, the language of this Agreement shall control. All purchases made under this Agreement shall be considered to have been made in the Country and City identified on Addendum 1, and this Agreement shall be considered to have been executed in the Country and City identified on Addendum 1. 2.2 Other LabWare Products LabWare products, software, and equipment that are not listed in Addendum 2 are not covered by this Agreement but may be incorporated into this Agreement by issuing supplemental Addendums as may be agreed to in writing by both parties. 2.3 Agreement Documents a. Whole Agreement This Agreement and all Addendums referred to herein or attached hereto, all of which are incorporated by reference, together constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous discussions, documents, agreements and prior course of dealing and will not be effective until signed by both parties. b. Validity of Parts LabWare Master Software License Agreement Page I of I I LabWare LIMS Master Software License Agreement If any word, phrase, clause, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, article or provision shall be modified or amended to; (1) make the Agreement valid and enforceable; and (2) continue to reflect the original intent of the parties to this Agreement. C. Captions and Headings The captions of each Article of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement. d. Effect of Waiver A waiver by either party hereto of any right hereunder, or of any failure to perform, or of any breach by any party will not be a waiver of any other right hereunder or of any subsequent breach or failure by the other party, whether of similar nature or otherwise. 2.4 Right to Transfer Neither this Agreement, nor any portion of this Agreement, nor any rights, licenses or obligations hereunder, may be assigned, encumbered or in anyway transferred by Licensee without the prior written approval of LabWare, which approval may be withheld for any reasonable reason whatsoever. 2.5 Changes and Modifications Any and all modification to the terms and conditions of this Agreement shall be made by mutual agreement between the two parties and must be evidenced by issuance of a written addendum signed by an authorized representative of both LabWare and Licensee. 2.6 Applicable Laws a. Notices and Compliance with Laws LabWare and Licensee agree that they shall give all notices and comply with all laws, ordinances, rules, regulations, codes, and orders of any public authority having jurisdiction over their respective activities, as it applies to the scope of work covered by this Agreement, and shall comply with all terms and conditions of any insurance policies covering any part of the work. b. Jurisdiction This Agreement shall be construed in accordance with the laws of the jurisdiction identified on Addendum 1, without giving effect to the principles of conflict of laws of such jurisdiction. Licensee and LabWare hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be in the venue identified on Addendum 1. 3.0 TERM OF AGREEMENT L-i�;+et�sr-����tcl-�am�der� tla�ag��rtraai-�11-�t�a�aa..�t�-� �r9I-r�tl-eflc�_a��-perrpet�arl�`� tmnle LabWare Master Software License Agreement Page 2 of 11 LabWare LIMS Master Software License Agreement � y , 11111010, IN It- x^ 4.0 PRICE The pricing schedule specified in Addendum 2 to this Agreement shall remain firm until the date set forth on Addendum 2, or if no date is set forth for a period of ninety (90) days from the date of the Addendum 2. 5.0 GRANT OF LICENSE 5.1 Grant of License Under the provisions of this Agreement, LabWare shall grant to Licensee a nonexclusive license to use LabWare Software on equipment and systems owned, leased, rented, operated or otherwise controlled by Licensee. Each installation of the LabWare Software shall require a programmatic key called a "license SLL", which shall be provided by LabWare in the form of an electronic file and installed as part of the LabWare Software. Use of the License shall be subject to a capacity limitation, expressed as the number of concurrent users authorized for simultaneous access to the Production Instance (as defined in Section 5.2 below). The Capacity limitation for each license shall be set by and encoded in the license SLL. Notwithstanding such capacity limitations, Licensee may designate any number or persons as authorized users. Licensee may add capacity at any time by purchasing additional licenses at a fee to be agreed to by the parties. 5.2 Implementation LabWare will issue one or more license SLL file(s) and shall provide such file(s) to Licensee with the delivery of Licensee's LabWare Software. For each license SLL Licensee may implement a single Production Instance of the LabWare Software (an Instance shall mean a single database occurrence including a single LabWare Software database schema, where the schema is defined as the database tables delivered with and thereafter configured for use with the LabWare Software) of the LabWare Software. Licensee may use any number of licenses for non -production use for training, development, testing, maintenance, enhancements, and/or troubleshooting conducted in connection with Licensee's production environment at the production site. The creation and use of such non -production Instances shall be subject to the following condition: Each such non - production Instance shall be used for development, testing, training, maintenance, enhancement and/or troubleshooting of the same single Production Instance (Production Instance shall mean that database Instance used to store and retrieve Licensee's live data, such live data being that data derived from Licensee's actual business operations in connection with Licensee's use of the LabWare Software) for which the purchased license is intended to be used. 5.3 Copyright Protection The LabWare Software covered by this Agreement, including without limitation, all copies thereof and passwords therefore and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein and/or appurtenant thereto, shall remain the property of LabWare and shall only be licensed to Licensee for authorized use as described in this Agreement. Licensee shall not, by virtue of this Agreement or otherwise, acquire any proprietary rights LabWare Master Software License Agreement Page 3 of 11 LabWare LIMS Master Software License Agreement whatsoever in the LabWare Software, each being confidential information of LabWare and the sole and exclusive property of LabWare. Any right not expressly granted to Licensee by this Agreement is hereby expressly reserved by LabWare. All LabWare Software is protected by United States copyright laws and international treaty provisions. Licensee agrees to secure and protect the LabWare Software in a manner consistent with the maintenance of LabWare's right therein, and in accordance with the terms of this Agreement, and to take appropriate action by instruction or agreement with its employees who are permitted access to the LabWare Software to satisfy its obligations hereunder. Licensee shall cooperate with and assist LabWare in identifying and preventing any unauthorized use, copying or disclosure of the LabWare Software. Without limitation of the foregoing, Licensee shall advise LabWare immediately in the event Licensee learns or has reason to believe that any person has violated or intends to violate the confidentiality of the LabWare Software or the proprietary rights of LabWare, and Licensee will, at Licensee's expense, cooperate with LabWare in seeking injunctive or other equitable relief against any such person. Licensee acknowledges that the disclosure of any aspect of the LabWare Software or any other confidential information referred to herein, or any information which at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to LabWare inadequately compensable in damages at law, and LabWare shall be entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available and Licensee hereby consents to the obtaining of such injunctive relief. 5.4 Backup Copy Licensee may make a reasonable number of copies of each LabWare Software program obtained under the terms of this Agreement solely for backup or archival purposes. 5.5 Printed Material Licensee may not copy or reproduce any of the written materials accompanying the LabWare Software without first obtaining the written permission of LabWare, such permission not to be unreasonably withheld. 5.6 Restrictions Licensee shall not rent, lease, grant sublicenses or resell LabWare Software to others, nor shall Licensee reverse engineer, decompile or disassemble any LabWare Software obtained under the terms of this Agreement. Any attempt to do any of the above shall be void without effect and will be grounds for immediate termination of this Agreement and revocation of the licenses granted to License hereunder. 5.7 Non LabWare Software LabWare's Software is designed to operate in conjunction with certain third party operating systems ( including Windows 2000, windows NT and Windows XP), databases (including Oracle, SQL Server and DB2 running on most platforms including Microsoft, Unix or AS400) and software provided by others, including Third Party Software (including Citrix and SAP). LabWare will assist Licensee in identifying the requirements for these products but assumes no responsibility or liability for the purchase, use or maintenance thereof. Further, certain Third Party Software may be provided with the LabWare Software. Licensee agrees to comply with the terms of any license under which the Third Party Software is provided. 6.0 TERMS OF PAYMENT Licensee shall pay LabWare the net value of each submitted invoice, within 30 calendar days from the date the invoice is actually received by Licensee. Time is of the essence with respect to all LabWare Master Software License Agreement Page 4 of 11 LabWare LIMS Master Software License Agreement payments by Licensee. Past due payments of more than thirty (30) days shall bear interest at the rate of one and one-half (1 ''/z%) percent per month or the maximum interest rate permitted by law from the due date, whichever is less. The fees payable under this Agreement are exclusive of and Licensee shall pay and hold LabWare harmless from all taxes, levies, imposts, duties, VAT charges, or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or an instrument or agreement required hereunder, and all interest, penalties, or similar liabilities with respect thereto, except such taxes as are imposed on or measured by LabWare's net income or property. All sums stated in this Agreement as being payable by Licensee to LabWare are exclusive of VAT or similar other taxes, use and sales taxes, which amounts shall be borne exclusively by Licensee. Licensee shall provide evidence that all applicable taxes have been paid to the appropriate taxing authority by delivering to LabWare receipts thereof within thirty (30) days after the due date for such tax payments. 7.0 TERMINATION OF AGREEMENT The licenses purchased by Licensee shall remain in full force and effect in perpetuity unless after such termination Licensee violates Sections 5 or 10, which Sections, as well as Sections 2.1, 5, 7, 10, 12, 13, 14, 15 and 16, shall survive termination of this Agreement for so long as Licensee is in possession of or is using the LabWare Software. In the event Licensee violates Sections 5 or 10 at any time, Licensee shall within thirty (30) days of written notice from LabWare return all LabWare Software to LabWare. Without prejudice to any other rights, LabWare may terminate this Agreement upon written notice at any time, if. (i) Licensee fails to perform any of its obligations under this Agreement; or (ii) Licensee transfers, by operation of law or otherwise, or attempts to transfer, without LabWare's written consent, any interest in, or right, privilege or obligation under this Agreement; or (iii) There is a material change, however accomplished, in the direct or indirect ownership or operating management of Licensee without LabWare's prior written consent which, in the reasonable opinion of LabWare, impairs Licensee's ability to perform its obligations under this Agreement in a fashion consistent with the understandings of the parameters of this Agreement; or (iv) Licensee becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against Licensee, or if a court appoints a temporary or permanent receiver, trustee, or custodian for the assets of Licensee, or if Licensee makes an assignment for the benefit of creditors, or if Licensee fails for any reason to function in the ordinary course of business; or (v) Licensee defaults under the terms of any other agreement it had entered into with LabWare. Licensee will have a period of thirty (30) days after receipt of written notice to cure the breach (provided the breach is capable of cure). If Licensee fails to do so, LabWare may immediately terminate this Agreement. Also, if during any twelve (12) month period, LabWare gives more than two (2) termination notices to Licensee pursuant to this Section, then, regardless of whether Licensee cures the underlying breaches or defaults, LabWare may immediately terminate this Agreement. If LabWare terminates the Agreement for any of the above reasons or any other LabWare Master Software License Agreement Page 5 of t l LabWare LIMS Master Software License Agreement reason of default, the license for LabWare Software sold hereunder shall be immediately revoked and Licensee agrees to return all property of LabWare to LabWare, or certify that it has been destroyed within thirty (30) days of receipt of written notice that it is in default of this Agreement. Further, LabWare has the right to pursue any legal action and equitable remedies that may be available. Licensee may terminate this Agreement in whole if LabWare becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against LabWare, or if a court appoints a temporary or permanent receiver, trustee or custodian for the assets of LabWare, or if LabWare makes an assignment for the benefit of creditors, or if LabWare fails for any reason to function in the ordinary course of business, or LabWare fails to perform a material obligation set forth in this Agreement, or fails in any way to comply with any of the conditions or provisions of this Agreement. Licensee shall provide LabWare with a thirty (30) day grace period to remedy any default hereunder. The grace period shall commence upon receipt of a written notice of default by LabWare. In the event LabWare fails to remedy said default, Licensee may, without limiting any other remedy available to it in law or equity, either withhold performance that may otherwise be due under this Agreement or terminate the Agreement. In such case the licenses purchased hereunder shall remain in full force and effect unless or until Licensee violates Sections 5 or 10 of this Agreement. If termination hereunder is due to a default on the part of LabWare, then Licensee shall be entitled to return the LabWare Software to LabWare and receive a refund of eighty percent (80%) of the License fee it has paid for the LabWare Software. No refund will be allowed once the LabWare Software has been operational for six (6) months. In the event Licensee desires to retain the LabWare Software there will be no refund of any amount. 8.0 INDEPENDENT CONTRACTOR The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligations on behalf of the other party for any purpose whatsoever. 8.1 LabWare Employees LabWare shall be responsible for supervising, directing, hiring, firing and training its employees and shall only assign individuals to Licensee's account that meet industry standards and qualifications. LabWare further affirms that it shall maintain complete control over, and responsibility for, its own employees and operations and those of its subcontractors. 8.2 Subcontractors No provision of this Agreement, or any subcontract awarded by LabWare, shall be construed to create a contractual relationship between the subcontractor and Licensee or to create an obligation to pay or be responsible for the payment of any monies that may be due to any subcontractor from LabWare. 8.3 Unforeseen Delays LabWare shall not be liable for delays in the performance of its obligations hereunder due to causes beyond its control including, but not limited to, acts of God, acts of Government authorities, strikes or inability to obtain labor or materials on time. LabWare Master Software License Agreement Page 6 of 11 LabWare LI5 Master Software License Agreement 8.4 Employment Practices During the Term of this Agreement, both LabWare and Licensee agree not to purchase the services of each other's current employees, either directly as a consultant or indirectly as an independent contractor working through another business entity representing that employee. However, this provision shall not apply to employees of either party responding to advertisements made at job fairs, through either parties internal communications or in media circulated to the general public at large, or former employees, agents, or subcontractors of either party. 9.0 WARRANTY 9.1 LabWare warrants and guarantees that the Software provided to Licensee under the terms of this Agreement shall be of the proper kind and quality, suitable for their intended use and that all workmanship shall be in accordance with industry standards that are in effect at the time of completing the work. 9.2 Any repair or replacements that are required to be performed by LabWare under the provisions of this Warranty shall comply with all of the requirements and specifications of this Agreement. 9.3 The warranty provided hereunder extends for one (1) year from the Purchase Date.. LABWARE MAKES NO OTHER WARRANTIES, WHETHER WRITTEN ORAL, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR PURPOSE OR MERCHANTABILITY. LABWARE MAKES NO WARRANTIES AS TO THE PERFORMANCE OR FITNESS OF ANY THIRD PARTY SOFTWARE. 10.0 CONFIDENTIALITY The information to be exchanged or discussed in implementing this Agreement is considered by LabWare or Licensee, as the case may be, to be confidential, proprietary, or trade secret in nature whether such information is marked as such or not and regardless of the form of media ("Proprietary Information"). With respect to all such Proprietary Information, LabWare and Licensee each agree to: (i) Use commercially reasonable efforts to maintain the same in confidence, (ii) Not disclose the same to any third party, (iii) Use the same only for the purposes of implementing the undertakings of the respective parties under this Agreement, and (iv) Limit access to the Proprietary Information to the employees of LabWare or Licensee, as the case may be, who have a need to know, who have agreed to honor the terms hereunder, and who will safeguard such disclosed Proprietary Information against disclosure with at least the same degree of care as with their Company's own Proprietary Information. This duty of confidentiality shall expire five (5) years after the date of the last disclosure of such Proprietary Information hereunder, or five (5) years after Licensee last uses the LabWare Software, whichever is later. The foregoing obligations shall not apply, however, to any such Proprietary Information which: LabWare Master Software License Agreement Page 7 of I I Master Software License Agreement (i) Can be demonstrated to have been in the possession of LabWare prior to its disclosure by Licensee or Licensee prior to its disclosure by LabWare. (ii) Is now or hereafter becomes generally available to the public other than by violation of this Agreement, (iii) Is disclosed to LabWare by a third party having no obligation to Licensee or disclosed to Licensee by a third party having no obligation to LabWare, or (iv) Is developed by LabWare or Licensee, as the case may be, without reference in any manner to the disclosed Proprietary Information. (v) Is disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or as to which disclosure is required by operation of law; provided, however, that LabWare or Licensee, as the case may be, will first have given written notice of such required disclosure to the other party, and taken reasonable steps to allow the other party to seek to protect the confidentiality of the information required to be disclosed. Simply because a particular aspect of the Proprietary Information is included, but not specifically disclosed in the more general information otherwise available to the public or Licensee or LabWare, as the case may be, does not operate to relieve LabWare or Licensee of their respective confidentiality obligations herein. Notwithstanding expiration or termination of this Agreement, the duties of confidentiality undertaken as to Proprietary Information disclosed prior to such expiration or termination shall survive thereafter provided above. -_____ lrvstsctirr with tle-Iter I€rrar�+I tlti Agreer,a4, eacl��rrmty._.here4r shu9malrtmafyrtwl�ll harmless the..otlter tat ty ( hi h t trr , a t r� rc itt this Asti lei; 1 I cleetne d tracltade lir° kt �t11Io�;;-tt��yaa,--r�g��rtts.-att��--st�t��4�,-)-�=�ttt�-rtaf�haat--arty..rtrt�l-alb-��tl�tliti:s� ala�i�=tt�„ &ctsser�;�; dittt'ragc�s,+r.....esltettss„ ttlrc#tttg—rrmttwot�allccut�s...._fees; Alt+=tl3et. arrrrtg-1aictrct ..urr�iler. a�trttplettctn-c�tlte-trl�-lt�tr�ettnd�ta�; �+�r���-,tttay-last r�retrt�rec�3tstiaalry�tl-tttlaer.liar=t-yr-�t�t,tt-�!'" its art l ty�r lay r atrt rt t:rl; ay as t t'ttn�sLL«i tat„ t isa trtduat.p tt�l g erica„ -or -de fau�lki-.144 -part-AdAlie nulernttrl it � h ar r y rnitl ty t ..�r tat :t r lat,t,trrttactt ar I tltrt irtc4 trrtr f" it�ptattr t„y; 12.0 WAIVER OF CONSEQUENTIAL DAMAGES NEITHER PARTY HERETO SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, LabWare Master Software License Agreement Page 8 of 11 Master Software License Agreement INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. 13.0 PATENTS 13.1 LabWare shall, at LabWare's own expense, defend all suits or proceedings instituted against Licensee and shall pay any award of damages and costs that may be assessed against Licensee, for any claim that the LabWare Software furnished by LabWare under this Agreement, or any part thereof, constitutes an infringement of any valid patent, trademark, copyright, or other property rights. 13.2 Licensee shall give LabWare prompt notice of the institution of any such suit or proceeding and shall furnish LabWare (at LabWare's expense) all needed information, authority, and assistance to enable LabWare to defend the same. 13.3 If any LabWare Software is held to constitute an infringement and its use is enjoined, LabWare shall, within a reasonable time, secure for Licensee at LabWare's own expense, the right to continue using said LabWare Product, by suspension of the injunction, by procuring for Licensee a license, or otherwise, or shall, at LabWare's own expense, as Licensee may elect, replace such Product with suitable non -infringing software, equipment, or apparatus, or modify same so that it becomes non -infringing, all without damage or injury to any other property of Licensee. 13.4 The foregoing shall not be construed to impose upon LabWare any liability whatsoever in respect to United States patents for methods and processes to be carried out with the aid of said software, equipment or apparatus, except those which are inherent in the LabWare Software as furnished. Licensee agrees that LabWare's liability hereunder for damages, except with respect to liability for patent and copyright infringement, is limited to the fees paid by Licensee hereunder. Licensee acknowledges that the LabWare Software and Products may be subject to United State or other governments' export laws and regulations, and any use or transfer of the LabWare Software or Products must be permitted or authorized under those regulations. Except as expressly permitted in this Agreement, Licensee shall not export or import the LabWare Software or Products. To the extent any export or import is permitted under this Agreement, Licensee shall be responsible for ensuring that it complies with all laws and regulations of the United State and other applicable governments relating to the LabWare Software or Products. Licensee at its own expense shall indemnify, defend and hold LabWare free and harmless from any and all claims, damages, losses, costs, actions and expenses, including attorney's and experts' fees, arising from any breach of the foregoing obligation. For so long as Licensee is in possession of LabWare Software, LabWare shall have the right, upon forty-eight (48) hour notice, to access Licensee's facilities in order to determine whether the LabWare Software is being used in accordance with this Agreement. Each audit will be conducted at Licensee's place of business during Licensee's normal business hours. LabWare will pay for the cost of such audit. Audit information will only be used for purposes of this Agreement, including, without limitation, judicial enforcement of the obligations of Licensee. LabWare Master Software License Agreement Page 9 of 11 LabWare LIMS Master Software License Agreement 17.0 COMMUNICATIONS AND COMMITMENT AUTHORITY Written notice shall be deemed to have been duly made when it is given directly to an authorized representative of either LabWare or Licensee, or to the person or persons so designated by either party, or is sent by the US Postal Service or commercial document express carrier to the last known address of either LabWare or Licensee. 17.1 LabWare a. Authority to Commit The individuals named in Addendum 1 shall have the authority to commit and represent LabWare in all commercial and technical dealings with Licensee during the Term of this Agreement. b. Mailing Address In the case of written notice to LabWare, if given directly to the above individuals, or if mailed to LabWare at the address indicated on Addendum 1. 17.2 Licensee The individuals named in Addendum 1 shall have the authority to commit and represent Licensee in all commercial and technical dealing with LabWare during the Term of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date stated below. Licensee -Rf e n B BY �� ....... ..._ y .. -�� .. .. Title ... l`iIC 10„gy'i p..._.. �W Date l Date r --.., .... , END APPROVED AS TO FORM: CITY ATTORNEY CITY OF DENTON, TEXAS LabWare Master Software License Agreement Page 10 of 11 LabWare LIMS Master Software License Agreement 1. LabWare Inc. 3 Mill Road, Wilmington, DE 19806 2. Effective Date: TBD 3. Location of purchase pursuant to Section 2.1 4. 5. Jurisdiction pursuant to Section 2.6 (b) '-`'vR-�- , Texas USA 6. Litigation Venue pursuant to Section 2.6 (b) r,ahwyar L A Texas, USA 7. LabWare individuals authorized to represent LabWare, Inc. (a) David H Nixon (b) Carlisle Peet (c) David Ferrell (d) Vance Kershner 8. Individuals authorized to represent Licensee: a) Commercial Terms and Conditions. Contractual correspondence, including, but not restricted to, terms, conditions, price adjustment, or any change to the non -technical scope of the Agreement should be addressed to: 1) 2) 3) b) Technical Issues and Scope of Work. All technical correspondence and communications related to the scope of work should be addressed to: 1) 2) LabWare Faster Software License Agreement Page 11 of 11 LabWare LIMS Master Software License Agreement 3) LabWare Master Software License Agreement Page 12 of 11 LabWare LIMS Master Services Agreement This Master Services Agreement (hereinafter referred to as "Agreement") entered into between LabWare Global Services, Inc., having its offices at 3 Mill Road, Suite 102, Wilmington, DE 19806, (hereinafter referred to as "LabWare"), and City of Denton having its offices at 1100 S. Mayhill Rd., TX 76208 (hereinafter referred to as "Licensee"). Both LabWare and Licensee agree that the terms and conditions contained in this Agreement shall govern the purchase and performance of all services offered to Licensee by LabWare. 1.0 DEFINITIONS a. Services — Shall mean all support services offered by LabWare to Licensee on a time and materials basis, which shall include but not limited to training and implementation of projects. Services shall not include any on -going development and support of LabWare Software licensed under a Master Software License Agreement, or maintenance provided under a Master Maintenance Agreement, which maintenance includes but is not limited to new releases, upgrades, interim fixes, enhancements and improvements to the operation and functionality of the LabWare Software. b. Employee - Shall mean any employee of LabWare. C. Deliverables — Shall mean any tangible work product developed by LabWare, either solely or jointly with others, in connection with work performed under this Agreement for and/or on behalf of Licensee, whether as individual items or a combination of components. By way of example only, a Deliverable may consist of a plan, report, design, methodology, process, specification or a software configuration. Deliverable will not mean, by way of example only, the LabWare software licensed under a license agreement with LabWare or any enhancements, fixes, both interim and permanent, upgrades, new releases, and improvements to the operation and functionality of the licensed software. 2.0 SCOPE OF AGREEMENT During the Term of this Agreement, Licensee shall be granted the privilege to purchase Services at the prices and in accordance with the terms and conditions that are listed in Addendums, which are hereby incorporated into this Agreement. Each time Services are requested by Licensee, the scope and charges for such Services shall be set forth in an Addendum. 2.1 Agreement Documents Whole Agreement This Agreement and all Schedules or Addendums referred to herein or attached hereto, all of which are incorporated by reference, together constitute the entire agreement between the parties with respect to the subject matter hereof and supercedes all prior and/or contemporaneous discussions, documents, agreements and prior course of dealing and will not be effective until signed by both parties. b. Validity of Parts If any word, phrase, clause, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, article or provision shall be la bWare Master Services Agreement Page 1 of 7 LabWare LIMS Master Services Agreement modified or amended to; (1) make the Agreement valid and enforceable; and (2) continue to reflect the original intent of the parties to this Agreement. C. Captions and Headings The captions of each Article of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation of construction of this Agreement. d. Effect of Waiver A waiver by either party hereto of any right hereunder, or of any failure to perform, or of any breach by any party will not be a waiver of any other right hereunder or of any subsequent breach or failure by the other party, whether of similar nature or otherwise. 2.2 Right to Transfer Neither this Agreement nor any portion of this Agreement, nor any rights, licenses or obligations hereunder, may be assigned, encumbered or in anyway transferred by Licensee without the prior written approval of Licensor, which approval may be withheld for any reasonable reason whatsoever. 2.3 Changes and Modifications Any and all modification to the terms and conditions of this Agreement shall be made by mutual agreement between the two parties and must be evidenced by issuance of a written addendum signed by an authorized representative of both LabWare and Licensee. 2.4 Applicable Laws a. Notices and Compliance with Laws LabWare and Licensee agree that they shall give all notices and comply with all laws, ordinances, rules, regulations, codes, and orders of any public authority having jurisdiction over their respective activities, as it applies to the scope of work covered by this Agreement, and shall comply with all terms and conditions of any insurance policies covering any part of the work. Jurisdiction This Agreement shall be construed in accordance with the laws of the State of fie, Texas without giving effect to the principles of conflict of laws of such state. Licensee and LabWare hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate federal or state court in the State of Pelawaf , Texas leeatea in New Cast � 3.0 TERM OF AGREEMENT It is the intention of the City of Denton to award a contract for a one (1) year period. The City a A to renew this contract for an Denton and shall LabWare Master Services Agreement Page 2 of 7 LabWare LIMS Master Services Agreement optionof the section titled "termination". At the , , may be finiher extended as needed, not to exceed a total of six (6) months. 4.0 TERMS OF PAYMENT Licensee shall pay LabWare the net value of each submitted invoice, within 30 calendar days from the date the invoice is actually received by Licensee. Time is of the essence with respect to all payments by Licensee. Past due payments of more than thirty (30) days shall bear interest at the rate of one and one-half (1 ''/z%) percent per month or the maximum interest rate permitted by law from the due date. The fees payable under this Section 4 are exclusive of and Licensee shall pay and hold LabWare harmless from all taxes, levies, imposts, duties, VAT charges, or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or an instrument or agreement required hereunder, and all interest, penalties, or similar liabilities with respect thereto, except such taxes as are imposed on or measured by LabWare's net income or property. All sums stated in this Agreement as being payable by Licensee to LabWare are exclusive of VAT or similar other taxes, use and sales taxes, which amounts shall be borne exclusively by Licensee. Licensee shall provide evidence that all applicable taxes have been paid to the appropriate taxing authority by delivering to LabWare receipts thereof within thirty (30) days after the due date for such tax payments. 5.0 TERMINATION OF AGREEMENT Without prejudice to any other rights, either party may terminate this Agreement upon written notice at any time, if: (i) The other party fails to perform any of its obligations under this Agreement; or (ii) The other party transfers, by operation of law or otherwise, or attempts to transfer, without written consent, any interest in, or right, privilege or obligation under this Agreement; or (iii) The other party becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against it, or if a court appoints a temporary or permanent receiver, trustee, or custodian for the assets of that party, or if the other party makes an assignment for the benefit of creditors, or if it fails for any reason to function in the ordinary course of business; or (iv) The other party defaults under the terms of any other agreement it had entered into with the other party. The party alleged to be in default will have a period of thirty (30) days after receipt of written notice to cure the breach (provided the breach is capable of cure). If that party fails to do so, the other party may immediately terminate this Agreement. Also, if during any twelve (12) month period, one party gives the other more than two (2) termination notices pursuant to this Section, then, regardless of whether the defaulting party cures the underlying breaches or defaults, the non -defaulting party may immediately terminate this Agreement. LabWare Master Services Agreement Page 3 of 7 LabWare LIMS Master Services Agreement 6.0 INDEPENDENT CONTRACTOR The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligations on behalf of the other party for any purpose whatsoever. 6.1 LabWare Employees LabWare shall be responsible for supervising, directing, hiring, firing and training its employees and shall only assign individuals to Licensee's account that meet industry standards and qualifications. LabWare further affirms that it shall maintain complete control over, and responsibility for, its own employees and operations and those of its subcontractors. 6.2 Subcontractors and LabWare Implementation Partners No provision of this Agreement, or any subcontract awarded by LabWare, shall be construed to create a contractual relationship between the subcontractor and Licensee or to create an obligation to pay or be responsible for the payment of any monies that may be due to any subcontractor from LabWare. 6.3 Unforeseen Delays LabWare shall not be liable for delays in the performance of its obligations hereunder due to causes beyond its control including, but not limited to, acts of God, acts of Government authorities, strikes or inability to obtain labor or materials on time. 6.4 Employment Practices During the Term of this Agreement, both LabWare and Licensee agree not to purchase the services of each other's current employees, either directly as a consultant or indirectly as an independent contractor working through another business entity representing that employee. 7.0 WARRANTY 7.1 Any Services that are required to be performed by LabWare under the provisions of this Agreement shall be warranted to be in compliance with all of the requirements and specifications of this Agreement and may be verified by the performance of additional qualification and testing as may be required by Licensee. 7.2 The rights and remedies provided to Licensee herein are not exclusive but shall be cumulative and in addition to other rights and remedies existing under this Agreement, at law or otherwise. LABWARE MAKES NO OTHER WARRANTIES, WHETHER WRITTEN ORAL, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR PURPOSE OR MERCHANTABILITY. 8.0 CONFIDENTIALITY The information to be exchanged or discussed in implementing this Agreement is considered by LabWare or Licensee, as the case may be, to be confidential, proprietary, or trade secret in nature LabWare Master Services Agreement Page 4 of 7 Master Services Agreement whether such information is marked as such or not and regardless of the form of media ("Proprietary Information"). With respect to all such Proprietary Information, LabWare and Licensee each agree to: (i) Use commercially reasonable efforts to maintain the same in confidence, (ii) Not disclose the same to any third party, (iii) Use the same only for the purposes of implementing the undertakings of the respective parties under this Agreement, and (iv) Limit access to the Proprietary Information to the employees of LabWare or Licensee, as the case may be, who have a need to know, who have agreed to honor the terms hereunder, and who will safeguard such disclosed Proprietary Information against disclosure with at least the same degree of care as with their Company's own Proprietary Information. This duty of confidentiality shall expire five (5) years after the date of the last disclosure of such Proprietary Information hereunder, or five (5) years after Licensee last uses the LabWare Software. The foregoing obligations shall not apply, however, to any such Proprietary Information which: (i) Can be demonstrated to have been in the possession of LabWare prior to its disclosure by Licensee or Licensee prior to its disclosure by LabWare. (ii) Is now or hereafter becomes generally available to the public other than by violation of this Agreement, (iii) Is disclosed to LabWare by a third party having no obligation to Licensee or disclosed to Licensee by a third party having no obligation to LabWare, or (iv) Is developed by LabWare or Licensee, as the case may be, without reference in any manner to the disclosed Proprietary Information. (v) Is disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or as to which disclosure is required by operation of law; provided, however, that LabWare or Licensee, as the case may be, will first have given written notice of such required disclosure to the other party, and taken reasonable steps to allow the other party to seek to protect the confidentiality of the information required to be disclosed. Simply because a particular aspect of the Proprietary Information is included, but not specifically disclosed in the more general information otherwise available to the public or Licensee or LabWare, as the case may be, does not operate to relieve LabWare or Licensee of their respective confidentiality obligations herein. LabWare Master Services Agreement Page 5 of 7 Master Services Agreement Notwithstanding expiration or termination of this Agreement, the duties of confidentiality undertaken as to Proprietary Information disclosed prior to such expiration or termination shall survive thereafter provided above. 9.0 PROPERTY RIGHTS LabWare acknowledges and agrees that Licensee shall have exclusive, unlimited ownership rights to all Deliverables. All of the Deliverables created hereunder shall be deemed to be works made for hire and made in the course of services rendered and shall belong exclusively to Licensee, with Licensee having the sole right to obtain, hold and renew, in its own name and for its own benefit, patents, copyrights, registrations and other protection which may be appropriate to the subject matter. Nothing contained herein shall be construed to give Licensee any rights in LabWare's software or any new releases, upgrades, interim or permanent fixes, enhancements and improvements to the operation and functionality of the LabWare software. Further, in the course of performing the services provided for herein, LabWare may use enhancements, processes, methods, designs and know-how whether or not copyrightable or patentable that we conceived during the course of other engagements. In addition, LabWare may independently develop enhancements, methods, designs or know-how during the term of this agreement and Licensee acknowledges that LabWare may use such enhancements, processes, methods, designs and know- how in its business operations with other customers provided that such usage does not utilize any of Licensee's confidential information. 1» c tie w.. vitli the roerdo�`a �7i�� cat #laic a �e�r�e �a h l a ity I r t hall ind ninny and4i(+kl effieers, employees, agents, and -servants", ."---in and agai.— , da�nag ,, r.__�aefflti' „ to :wltscling c na l l+ .., ,a ray l 1 ,, l et]a �.....marisint-1 i4 ---or --after e�ro�nl�lti�tir:�a�-trot=tl�e-wvoz-l�-l�e�ua�der,�+�vl�i��l�-�;�-be--i�rourr���I-��r-t�ri��ec6��y-tbstl��sr-.l�ar%y-��t�ym �rol'` it a a�rol l yee ,.l y �roi a:t y vi,m n + t a , nriseea ach c t 1 w gl oraee roro...c fw �l; tl par—H-11-41 inder��ni liro�g-part y;-.or a.�.roy, ��loy�;..agean �-��r-st�4�e�;ant-a'acrt��r-o1=tl�-ial�ler �r�it-l�erty.. NEITHER PARTY HERETO SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. Licensee agrees that LabWare's liability hereunder for damages is limited to the fees paid by Licensee hereunder. 1 1 q Written notice shall be deemed to have been duly made when it is given directly to an authorized representative of either LabWare or Licensee, or to the person or persons so designated by either LabWare Master Services Agreement Page 6 of 7 LabWare LIMS Master Services Agreement party, or is sent by the US Postal Service or commercial document express carrier to the last known address of either LabWare or Licensee. 13.1 LabWare a. Authority to Commit The following individuals shall have the authority to commit and represent LabWare in all commercial and technical dealings with Licensee during the Term of this Agreement. David Ferrell David Nixon J. Carlisle Peet b. Mailing Address In the case of written notice to LabWare, if given directly to the following individuals, or if mailed to LabWare Global Services, Inc. at Three Mill Road, Suite 102, Wilmington Delaware 19806. 13.2 Licensee The following individuals shall have the authority to commit and represent Licensee in all commercial and technical dealing with LabWare during the Term of this Agreement: a. Commercial Terms and Conditions Contractual correspondence, including but not restricted to, terms, conditions, price adjustment, or any change to the non -technical scope of the Agreement should be addressed to: b. Technical Issues and Scope of Work All technical correspondence and communications related to the scope of work should be addressed to: IN WITNESS WHEREOF, the parties have each caused this Agreement to be executed by its duly authorized representatives as of the date stated below. WlxaB.'' obal Services, Inc. Licensee v. l3 .y klt V Title . Date / / Date .- END APPROVED AS TO FORM: CITY ATTORNEY LabWare Master Services Agreement Page 7 of 7 CITY OF DENTON, TEXAS BY LabWare LIMS Master Services Agreement LabWare Master Services Agreement Page 8 of 7 LabWare LIMS Master Maintenance Agreement This Master Maintenance Agreement (hereinafter referred to as "Agreement") is entered into by and between LabWare, Inc., having its offices at 3 Mill Road, Suite 102, Wilmington, DE 19806 (hereinafter referred to as "LabWare"), City of Denton having its offices at 1100 S. Mayhill Rd., TX 76208 (hereinafter referred to as "Licensee"). Both LabWare and Licensee agree that the terms and conditions contained in this Agreement shall govern the maintenance services offered to Licensee by LabWare. 1.0 DEFINITIONS a. Employee — Shall mean any employee of LabWare. b. LabWare Software - Shall mean any available LabWare licensed program that may be obtained, by license, from LabWare under the LabWare Master Software License Agreement. C. Maintenance — Shall mean the on going development and support of LabWare Software, including, but not limited to, new releases, upgrades, interim fixes, enhancements and improvements to the operation and functionality of the LabWare Software. d. Effective Date — Shall be the date on which the second of the parties hereto have executed this Agreement. e. Support Service — Shall mean phone and e-mail support and access to on-line knowledge bases. 2.0 SCOPE OF AGREEMENT During the Term of this Agreement, Licensee, who has purchased a license for LabWare Software pursuant to a separate License Agreement, may purchase Maintenance services and/or Support Service pursuant to this Agreement for said LabWare Software. 2.1 Agreement Documents a. Whole Agreement This Agreement and any Schedules or Addendums which may be attached hereto, all of which are incorporated by reference, together constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous discussions, documents, agreements and prior course of dealing and will not be effective until signed by both parties. b. Validity of Parts If any word, phrase, clause, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, article or provision shall be modified or amended to; (1) make the Agreement valid and enforceable; and (2) continue to reflect the original intent of the parties to this Agreement. C. Captions and Headings LabWare Master Maintenance Agreement Page I of 10 LabWare LIMS Master Maintenance Agreement The captions of each Article of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement. d. Effect of Waiver A waiver by either party hereto of any right hereunder, or of any failure to perform, or of any breach by any party will not be a waiver of any other right hereunder or of any subsequent breach or failure by the other party, whether of similar nature or otherwise. 2.2 Right to Transfer This Agreement may be assigned by either party without the prior written approval of the other. 2.3 Changes and Modifications Any and all modification to the terms and conditions of this Agreement shall be made by mutual agreement between the two parties and must be evidenced by issuance of a written addendum signed by an authorized representative of both LabWare and Licensee. 2.4 Applicable Laws a. Compliance with Laws LabWare and Licensee agree that they shall comply with all laws, ordinances, rules, regulations, codes, and orders of any public authority having jurisdiction over their respective activities, as it applies to the scope of work covered by this Agreement, and shall comply with all terms and conditions of any insurance policies covering any part of the work. b. Jurisdiction This Agreement shall be construed in accordance with the laws of the Country, State or other local jurisdiction identified on Addendum 1, without giving effect to the principles of conflict of laws of such jurisdiction. Licensee and LabWare hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate federal, state or other local court in the jurisdiction identified on Addendum 1. 3.0 TERM OF AGREEMENT 3.i initial T. r-m- '44w,4mtia1zWrtn-aaf-tl i gr� ac rri 11 1'i r ; m e o i aa# y�r + o mna* %t g w tl°re Ti t r lal lltia-c��t11 b..�atrttl aw solxndit pt tts-rlataflrovidel Herein. '�ttb�jevt-tt��t+ae#rl�l>��tlt-patatiesi�-t�rtd�:�t�tittl-laa��t..W��f themes-etm..1"dt�tlr��a Artt�ettt;�.�tli�-Att�ettt�a�tta;y���t-etetiec�l--4i°��t�ltlit+rttiN-c�a�-tea+�r� t�l�t��alY2�..tra��tltt eaeh, as t f .-a, in c ti 4.1 below. awardIt is the intention of the City of Denton to a LabWare Master Maintenance Agreement Page 2 of 10 LabWare LIMS Master Maintenance Agreement optionof the section titled "termination". At the needed,extended as 4.0 MAINTENANCE LabWare shall provide Licensee with Maintenance service, including new releases, upgrades, interim fixes, enhancements and improvements to the operation and functionality of all LabWare Software programs that Licensee has purchased under the terms of the License Agreement. While the herein described Maintenance service does not include telephone support, it does provide for online access to LabWare's DevTrack and LabTrack. 4.1 Costs and Charges The following costs and charges will be assessed for Maintenance of each LabWare Software program held by Licensee: a. Initial Purchase Maintenance will be provided to Licensee for a period of twelve (12) months from the purchase date of the initial software license from LabWare at no cost. b. Additional Purchases For the purposes of this Agreement, the purchase of additional licenses of the LabWare Software shall not extend or modify the Effective Date for calculating the time period for providing free Maintenance for the LabWare Software. A Maintenance charge shall be paid immediately on all licenses purchased after the first anniversary of the Effective Date. Payment shall be prorated on a daily basis, from the shipping date of the additional licenses to the next anniversary of the Effective Date Supplemental Maintenance On or before thirty (30) days prior to the anniversary of the Effective Date of the LabWare Software program, Licensee shall have the option to purchase additional one (1) year periods of supplemental Maintenance coverage for each LabWare Software program licensed to Licensee, by giving to LabWare written notice of its intent to so purchase. d. Fees for Additional Maintenance Service The cost to purchase additional one (1) year periods of supplemental Maintenance coverage shall be charged as a percentage of the aggregate value for the total number of licenses held by Licensee. For the first year of additional coverage under this Agreement, the percentage shall be set forth on Addendum 2. LabWare shall have the right to increase these percentages in any future year by giving the Licensee written notice of its intention to increase such fees at least thirty (30) days prior to the start date of the relevant Maintenance period, ; provided, however, that the percentage amount of any annual increase shall not exceed the aggregate percentage increase in the Index listed on Addendum 1, for the period (i) commencing on the later of (A) the first day of the first full calendar month preceding the Purchase Date or (B) the first day of the first full calendar month preceding the effective date of the most recent prior annual increase, and (ii) continuing through the first day of the first full calendar month preceding the effective date of the annual increase to be announced; and provided further that in no event shall any such increase result in Licensee being LabWare Master Maintenance Agreement Page 3 of 10 LabWare LIMS Master Maintenance Agreement charged a rate that exceeds LabWare's standard rate applicable to new customers. 4.2 Implementation of New Releases, Upgrades, Fixes and Enhancements During the term of this Agreement, Licensee shall have an option to accept or reject the implementation of any and all new releases, upgrades, fixes and enhancements provided by LabWare as part of the Maintenance service. LabWare agrees that it will fully maintain the current version and the two previous versions of the then current version of the LabWare Software programs licensed to Licensee, provided that the Licensee has extended this Agreement and the Maintenance coverage as provided herein for such LabWare Software programs. Should Licensee elect not to implement a new release, upgrade, bug fix or enhancement to a LabWare Software program, LabWare shall no longer be obligated to honor the Maintenance service requirements of this Agreement if the bug fix requested cannot be fixed in the version of the LabWare Software currently in use by the Licensee. 4.3 Reinstatement of Maintenance Service Should Licensee discontinue Maintenance Service for any period of time and at a later date desire to reinstate the Maintenance service, Licensee must first make a payment to LabWare in an amount equal to the payments that would have been made if Licensee had not had an interruption in Maintenance service. 4.4 Error Classification and Fault Resolution The services provided hereunder are solely for addressing problems in the standard product. The Licensee will be asked to provide verification information so that LabWare can reproduce the fault on LabWare's support system. The LabWare team will provide general help on a per case basis, but reserves the right to charge for consultancy services for general assistance and help with all other forms of fault fixing, and support including but not limited to; (i) Errors resulting from operator error; (ii) errors resulting from configuration changes or ineffective testing; (iii) errors resulting from modifications made by the Licensee; and (iv) errors resulting from environmental problems with the Licensee's IT infrastructure, e.g. database, network, ODBC drivers, SMS. Once an error has been reported to the LabWare team and verified by LabWare as a LabWare product bug, the priority of the resolution shall be agreed to between the support representatives of Licensee (who must have passed a LabWare training class and be competent with LabWare Software) and LabWare. In exceptional circumstances, should urgent fixes be required, LabWare will endeavor to provide workarounds or individual bug fixes. The norm will be that maintenance releases are provided every three to five months. The Licensee plays a major role in maintaining the desired reliability by adopting appropriate testing prior to going live and/or the introduction of any changes. This includes the modification of static data which is the most common form of system error. LabWare does not warrant to fix all bugs. Obscure or minor bugs may be simply documented in the LabWare knowledge bases for the benefit of all users. Bugs with efficient workarounds may be closed with an explanation of the suggested workaround. 5.0 SUPPORT SERVICE If requested, LabWare shall provide Licensee with telephone "Hotline" support services for all of the LabWare Software for the hours and locations listed on Addendum 1 ("Telephone Support Service"). In the event that Licensee subscribes to the maintenance service in Section 4 above, Licensee must subscribe to the support service described herein. LabWare agrees to use its best efforts, expertise and resources to resolve Licensee's technical questions and operational issues in the shortest time possible. It is understood and agreed that this Support Service does not include LabWare Master Maintenance Agreement Page 4 of 10 LabWare LIMS Master Maintenance Agreement anything covered by the maintenance hereunder, including but not limited to bug fixes and improvements to functionality or enhancements that are introduced by LabWare in new releases and/or upgrades to the LabWare Software program. Further, for each fee paid below, one (1) person (the "named user"), identified in writing by Licensee to LabWare, shall be permitted to contact LabWare. The individual identified by Licensee must attend or have attended and passed a LabWare training session, and must be competent with the LabWare Software. The Support Service is not to be used for training, configuration or implementation. 5.1 Terms of Support Service The following costs and charges will be assessed for Support Service: a. Support Service Licensee shall have the option to purchase Support Service for one (1) year beginning on the Effective Date for all of LabWare Software programs, at a price to be determined each year by LabWare. b. Supplemental Support Service On or before thirty (30) days prior to the anniversary of the Effective Date of the LabWare Software program, Licensee shall have the option to purchase additional one (1) year periods of Support Service coverage for each LabWare Software programmed licensed to Licensee, by giving to LabWare written notice of its intent to so purchase. 5.2 Online Support Service Each named user identified by Licensee shall have access to LabWare's online support resources which include SupportTrack and KnowledgeTrack. 6.0 TERMS OF PAYMENT Licensee shall pay LabWare the net value of each submitted invoice, within 30 calendar days from the date the invoice is actually received by Licensee. Time is of the essence with respect to all payments by Licensee. Past due payments of more than thirty (30) days shall bear interest at the rate of one and one-half percent (1 ''/z%) per month or the maximum interest rate permitted by law from the due date, whichever is less. The fees payable under this Section 6 are exclusive of and Licensee shall pay and hold LabWare harmless from all taxes, levies, imposts, duties, VAT charges, or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or an instrument or agreement required hereunder, and all interest, penalties, or similar liabilities with respect thereto, except such taxes as are imposed on or measured by LabWare's net income or property. All sums stated in this Agreement as being payable by Licensee to LabWare are exclusive of VAT or similar other taxes, use and sales taxes, which amounts shall be borne exclusively by Licensee. Licensee shall provide evidence that all applicable taxes have been paid to the appropriate taxing authority by delivering to LabWare receipts thereof within thirty (30) days after the due date for such tax payments. 7.0 TERMINATION OF AGREEMENT This Agreement shall automatically terminate if not renewed on an annual basis as set forth in Section 3. LabWare Master Maintenance Agreement Page 5 of 10 LabWare LIMS Master Maintenance Agreement Without prejudice to any other rights, LabWare may terminate this Agreement upon written notice at any time, if- (i) Licensee fails to perform any of its obligations under this Agreement; or (ii) Licensee becomes insolvent or is unable to pay its debts as they mature, or a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against Licensee, or a court appoints a temporary or permanent receiver, trustee, or custodian for the assets of Licensee, or Licensee makes an assignment for the benefit of creditors, or Licensee fails for any reason to function in the ordinary course of business; or (iii) Licensee defaults under the terms of any other agreement it had entered into with LabWare. Licensee will have a period of thirty (30) days after receipt of written notice to cure the breach (provided the breach is capable of cure). If Licensee fails to do so, LabWare may immediately terminate this Agreement. Also, if during any twelve (12) month period, LabWare gives more than two (2) termination notices to Licensee pursuant to this Section, then, regardless of whether Licensee cures the underlying breaches or defaults, LabWare may immediately terminate this Agreement. Further, LabWare has the right to pursue any legal action and equitable remedies that may be available. Licensee may terminate this Agreement in whole if LabWare becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against LabWare, or if a court appoints a temporary or permanent receiver, trustee or custodian for the assets of LabWare, or if LabWare makes an assignment for the benefit of creditors, or if LabWare fails for any reason to function in the ordinary course of business, or LabWare fails to perform a material obligation set forth in this Agreement, or fails in any way to comply with any of the conditions or provisions of this Agreement. Licensee shall provide LabWare with a sixty (60) day grace period to remedy any default hereunder. The grace period shall commence upon receipt of a written notice of default by LabWare. In the event LabWare fails to remedy said default, Licensee may, without limiting any other remedy available to it in law or equity, either withhold performance that may otherwise be due under this Agreement or terminate the Agreement 8.0 INDEPENDENT CONTRACTOR The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligations on behalf of the other party for any purpose whatsoever. 8.1 LabWare Employees LabWare shall be responsible for supervising, directing, hiring, firing and training its employees and shall only assign individuals to Licensee's account that meet industry standards and qualifications. LabWare further affirms that it shall maintain complete control over, and responsibility for, its own employees and operations and those of its subcontractors. 8.2 Subcontractors and LabWare Implementation Partners No provision of this Agreement, or any subcontract awarded by LabWare, shall be construed to create a contractual relationship between the subcontractor and Licensee or to create an obligation LabWare Master Maintenance Agreement Page 6 of 10 LabWare LIMS Master Maintenance Agreement to pay or be responsible for the payment of any monies that may be due to any subcontractor from LabWare. 8.3 Unforeseen Delays LabWare shall not be liable for delays in the performance of its obligations hereunder due to causes beyond its control including, but not limited to, acts of God, acts of Government authorities, strikes or inability to obtain labor or materials on time. 8.4 Employment Practices During the Term of this Agreement, both LabWare and Licensee agree not to purchase the services of each other's current employees, either directly as a consultant or indirectly as an independent contractor working through another business entity representing that employee. 9.0 WARRANTY Any repair or replacements that are required to be performed by LabWare under the provisions of this Warranty shall comply with all of the requirements and specifications of this Agreement and shall be in accordance with industry standards that are in effect at the time of completing the work. LABWARE MAKES NO OTHER WARRANTIES, WHETHER WRITTEN ORAL, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR PURPOSE OR MERCHANTABILITY. FURTHER, LABWARE MAKES NO WARRANTIES AS TO THE PERFORMANCE OF ANY THIRD PARTY SOFTWARE. 10.0 CONFIDENTIALITY The information to be exchanged or discussed in implementing this Agreement is considered by LabWare or Licensee, as the case may be, to be confidential, proprietary, or trade secret in nature whether such information is marked as such or not and regardless of the form of media ("Proprietary Information"). With respect to all such Proprietary Information, LabWare and Licensee each agree to: (i) Use commercially reasonable efforts to maintain the same in confidence, (ii) Not disclose the same to any third party, (iii) Use the same only for the purposes of implementing the undertakings of the respective parties under this Agreement, and (iv) Limit access to the Proprietary Information to the employees of LabWare or Licensee, as the case may be, who have a need to know, who have agreed to honor the terms hereunder, and who will safeguard such disclosed Proprietary Information against disclosure with at least the same degree of care as with their Company's own Proprietary Information. This duty of confidentiality shall expire five (5) years after the date of the last disclosure of such Proprietary Information hereunder, or five (5) years after Licensee last uses the LabWare Software. The foregoing obligations shall not apply, however, to any such Proprietary Information which: LabWare Master Maintenance Agreement Page 7 of 10 LabWare LIMS Master Maintenance Agreement (i) Can be demonstrated to have been in the possession of LabWare prior to its disclosure by Licensee or Licensee prior to its disclosure by LabWare; or (ii) Is now or hereafter becomes generally available to the public other than by violation of this Agreement; or (iii) Is disclosed to LabWare by a third party having no obligation to Licensee or disclosed to Licensee by a third party having no obligation to LabWare; or (iv) Is developed by LabWare or Licensee, as the case may be, without reference in any manner to the disclosed Proprietary Information; or (v) Is disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or as to which disclosure is required by operation of law; provided, however, that LabWare or Licensee, as the case may be, will first have given written notice of such required disclosure to the other party, and taken reasonable steps to allow the other party to seek to protect the confidentiality of the information required to be disclosed. Simply because a particular aspect of the Proprietary Information is included, but not specifically disclosed in the more general information otherwise available to the public or Licensee or LabWare, as the case may be, does not operate to relieve LabWare or Licensee of their respective confidentiality obligations herein. Notwithstanding expiration or termination of this Agreement, the duties of confidentiality undertaken as to Proprietary Information disclosed prior to such expiration or termination shall survive thereafter provided above. 041: M...et�ployer� ...t�ac rvt�tl itat atd g�irrt-�ny...d-a6l lital��iti talai�ns„ la�«es, trltekae�ca.1..k1ae��v��r1=N�lt�t�aalerlaa�~ ata�1� i�ati�taa-r�r=a�.a�taiaa�d-ley-tlaa��atltea=��aa�y-��r-ar�r�..�:�I" ats n pl y+ i° as i of p r y a rani }c � , a air cua c as ,t.;..neg-ligamot—, 4.aa..deFat+lt-(:,n tlaeµpai --c+khe ialel+erl-naafyit+g...I�t+tty; tar-��+ay--�pl�ay�,aagea�-a=rt-�a+�laa�ata a� ie�a<<-q al-laa�...iaa<le+++aall'ya+ag..,Naa ly 12.0 WAIVER OF CONSEQUENTIAL DAMAGES NEITHER PARTY HERETO SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. 13.0 LIMITATION OF LIABILITY Licensee agrees that LabWare's liability hereunder for damages of any nature whatsoever, except with respect to liability for patent and copyright infringement, is limited to the fees paid by Licensee hereunder. LabWare Master Maintenance Agreement Page 8 of 10 LabWare LIMS Master Maintenance Agreement 14.0 COMMUNICATIONS AND COMMITMENT AUTHORITY Written notice shall be deemed to have been duly made when it is given directly to an authorized representative of either LabWare or Licensee, or to the person or persons so designated by either party, or is sent by the US Postal Service or commercial document express carrier to the last known address of either LabWare or Licensee. 14.1 LabWare a. Authority to Commit The individuals named in Addendum 1 shall have the authority to commit and represent LabWare in all commercial and technical dealings with Licensee during the Term of this Agreement. b, Mailing Address In the case of written notice to LabWare, the notice shall be given directly to the individuals referred to above, or mailed to LabWare at the address indicated on Addendum 1. 14.2 Licensee The individuals listed in Addendum 1 shall have the authority to commit and represent Licensee in all commercial and technical dealing with LabWare during the Term of this Agreement: IN WITNESS WHEREOF, the parties have each caused this Agreement to be executed by its duly authorized representatives as of the date stated below. LabW ne- By �. x° Tit e Date /- iG END Licensee B Title Date LabWare Master Maintenance Agreement Page 9 of 10 LabWare LIMS Master Maintenance Agreement 11 1 1. LabWare Inc. 3 Mill Road, Wilmington, DE 19806 2. Effective Date: TBD 3. Location of purchase pursuant to Section 2.1 4. Jurisdiction pursuant to Section 2.4 (b) Delaware, Texas, USA 5. Litigation Venue pursuant to Section 2.4 (b) Delaware, Texas, USA 6. LabWare individuals authorized to represent LabWare, Inc. (a) David H Nixon (b) Carlisle Peet (c) David Ferrell (d) Vance Kershner 7. Individuals authorized to represent Licensee: a) Commercial Terms and Conditions. Contractual correspondence, including, but not restricted to, terms, conditions, price adjustment, or any change to the non -technical scope of the Agreement should be addressed to: 1) 2) 3) b) Technical Issues and Scope of Work. All technical correspondence and communications related to the scope of work should be addressed to: LabWare Master Maintenance Agreement Page 10 of 10 LabWare LIMS Master Maintenance Agreement 1) 2) 3) LabWare Master Maintenance Agreement Page 11 of 10