Loading...
1999-403O IN CENO AN ORDINANCE AWARDING A CONTRACT WITH JDEDWARDS FOR THE PURCHASE OF SOFTWARE AS AWARDED BY THE STATE OF TEXAS GENERAL SERVICES COMMISSIONS THROUGH A QUALIFIED INFORMATION SERVICES VENDOR (QISV) CATALOGUE, PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, pursuant to Resolution 92-019, the State Purchasing General Services Commission has sohclted, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of state law on behalf of the City of Denton, and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the city through the General Services Commission programs at less cost than the mty would expend if bidding these items individually, and WHEREAS, the Clty Council has provided in the City Budget for the appropriation of funds to be used for the purchase of materials, equipment, supplies or services approved and accepted herein, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ~ That the City Council hereby approves the purchase of software and related services from JDEdwards in the amounts set forth in the contract attached hereto as Exhibit "A" which is incorporated herein by reference (the "Contract") The City Council further approves the contract and anthonzes the City Manager or his designee to enter into the Contract on behalf of the City The City Council finds that the purchase price set forth in the Contract is the lowest responsible bid Further the Contract and the prices contained therein constitutes the purchase of software and related services from bids to the General Services Commission of the State of Texas ~ The findings set forth in the preamble of this ordinance are incorporated into the body of tins orrhnance as if fully set forth therein ~ The City Council hereby authorizes the expendature of funds in the amounts set forth in the Contract SECTION 4 Tins ordinance shall become effective immediately upon its passage and approval ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By Page 2 JD] dwards' Software License, Services and I~talntenance Agreement ("AGREEMENT'~ One Technology Way Denver, CO 80237 Th]s Agreement la bet~veen 3 D Edwards and City of Denton A/B #6557926 having its prindpal place of business at 2:1.5 East McKInnev Street. Denton, TX 76201-4229 The terms of this Agreement shall apply to the _~S~_~ ~ro (defined below), and all $ewlces and Maintenance provided by 3 u Edwards to Custohter For purposse of thle Agreement, Customer' shall Include ~ and Its Affiliates (defined below) 3 D Edwards World Solutions Company markets and supports the Licensed Preducl~ (defined below) in the Americas, Including the United Stete~ and Canada .1 D. Edwards Europe, Ltd end 3 D Edwards (Asia Pacific) Pta Ltd market and support the Licensed Products within each entlty's respective territory To the extent that the two foregoing entities have Ucensed Users allocated to their territory pursuant to a Licensed User Allocation Table set forth in any Attachment to this Agreement, they shall become additional obligors under this Agreement. Therefore, .1 D Edwards world Solutions Company, 3 D Edwards Europe, Ltd and ,1~D. Edwards (AMa Pacific) Pta Ltd are referred to collectively as ~,1 D Edwards" herein The Licensed Products are licensed by 3 D. Edwards from .1 D. Edwards World Source Company, a Colorado Corporation (~.1 D Edwards Source") 3 D Edwards and ,1 D Edwards Source are owned ultimately by .1 D Edwards & Company, a Delaware corporation ,1 D Edwards & Company, .1 D Edwards World Solutions Company, and .1 D Edwards Source have their principal places of business at One Technology Way, Denvar~ Colorado 80237:1 D Edwards Europe, Ltd and J D Edwards (Asia Pacific) Pie Ltd have their principal places of business at Dublin, Zreland and Singapore, rospocttvely AR1/CLE ! DEFZNTrZONS For purposes of this Agreement, the following terms shall mean I Accessory Software Software dehvered with the Licensed Products but which require Customer to agree to s separate license with a third party (such as a pop up", 'shrink wrap", "click" or other license) prior to their use 2 Affiliate(a) Those entit es under common control and ownemhip of the entib/fl~t idenhfied as the Customer above Common control and ownemhip is defined as direct or indirect ownership of a voting interest of greater than fifty percent (50%) or the dght or power, directly or iodl~ctly, to elect a majorlb/of the E~oard of Directors Customer agrees to confirm the Affiliate status of an entity upon request by 3 D Edwards [n the event an Affiliate ceases to comply with this definition, this Agreement will terminate solely as it relates to the former Affihate in accordance with the termlnation~ provisions in Article V, Section 9 3 Attachment The dccument by which Customer licenses the Ucensed Products and orders Services and/or Nalntenance and which shall, upon signature of both parties, be incorporated into this Agreement 4 Client(s) The computer (Including operating system) or device used by Licensed Users to access and use the Licensed Products through the means of an end user software program or interface (including a web browser or 3ava enabled interface) and which processes and/or issues commands for processing on a Sewer These Include, but are not I~m tod to personal computer% network computers, Windows Terminals, and other slmi ar hardware or d splay devices 5 Confidential information The a) Licensed products, b) Developed Sofi~vare and c) other Informst~on of the iperties when it is presented In printed, written, graphic, or photographic or other tangible form (but including information received, stored or transmitted electronically) and marked as "Confidential"~ "Proprietary", "Discloser Private"~ or "Ksetrlcted" by the D~scloser Confidential toformation else Includes informabon of the parties, when presented in oral form, that is recorded aa written minutes or notes of such oral presentations and which are man~ed Confidential" and provided to Recipient within thirty (30) days after the date of disclosure 6 Customer System(a) The Deployment Server(s), asscciated enterprise server(s), Clients, applicabon and database servers, and other Servers on which the Licensed products are installed and/or deployed by Customer 7 Deployment Server(a) The Server design~ted on an Attachment to this Agreement and utilized to deploy the Licensed Products to the Oients, enterprise server and/or other Servers on which the Ucensed Produc~s reside in a distributed network environment, 8 Derived Software Software progrsmsL or modifications to the Software created through the use of a development tool licensed hereunder and developed by Customer, Its empidyees or third party agents (not.] D Edwards) 9 Developed Software Software programs or modifications to the Licensed Products developed by .~ D Edwards for Customer under Article Ii! of this Agreement including source (if any) and ob)ect code for such Developed Software and any related documentation 10 Discloser The party disclesmg Confidential Informabon 11 License Fee The fee defined in Article V, Section 10(A) 12 Licensed Product(s) The computer pregrammmg code, mclodlng object code and any source code which may be prowded~ for the sef'oNare programs ~dentified as Licensed products m each Attachment to this Agreement, any Seftware Updates and the Published Product Specifications The bcensed Products do not include Accessory Software 13 Licensed Users Users licensed to access and use the Licensed Products m accordance with any user ~pe deflnlbon(s) contained the Attachment(s) to this Agreement 14 Period of Coverage The time penod during which the Halntonance servzces shall bo available under this Agreement The m~t~al Period of Coverage begins upon sh;pment of the L~cansed Products to Customer's first designated site 15 Published Product Specifications All on line help matedal included within the bcensed Produc~s and all of the user, technical, and training guides (in whatever med~a) associated w~th the Licensed Products, as they may exist from time to time 16 Recipient The pert'/receiving Confidential [nformabon 17 Response Line Services provided by Worldwide Customer Support including telephone support during normal Response Line hours and 3 D Edwards' web based customer selubon center 18 Sewer A device (including operating system) that processes the commands or requests of a Client or multiple Clients, add/or that stores information for use by such Client(s) 19 Soft'ward The Uceesed Products and Developed Software 20 Softwaro Updates Program updates (Including cumulative updates contelmng corrections to the L~censed Products) and new system veraoes and releases containing enhancements and modifications provided dudng the Penod of Coverage 21 Supported Platform(s) The hardware and software platforms which are supported by .] D Edwards for specific release of the Licensed Products as documented from time to time in the Published preduct Specifications 03/99 Swssrvmalnt0399 Copyright 1998.] D E~Jwsrds World Source Company Page 1/6 Edwards Confidential AGREEMENT AR'I'ZCLE ir! SOFTWARE I~CENSE ~'LZCENSE") I LZCENSE GRANT (A) Subject te the terms and cond~pons ~n this Agreement, .~ D Edwards grants to Customer a non exclusive, non transferable, perpetual hmited hcense to uso the Licensed Products on the Customer System(s) indicated in any Attachments executed from time to time by the parties 3 D Edwards represents that It possesses all dghts and interests in the Llcansod Products necessary to enter ~nto this Agreement Customer has the right to uso only the Ucaosed Products selected on any Attachment to this Agreement and shall have no right to uso any other Licensod Products that are delivered to Customer but not soidoted and hcensod hereunder (B) Subject to the terms and cond~tions m this Agreement .1 D Edwards grants to Customer a non exclusive, non ~ransterable perpetual limited license to use any Developed Software (C) 3 D Edwards grants to Customer the right to create Dedved Software without the consont of.1 D Edwards Customer shah own all right, tibe and interest any Derived Software except .1 D Edwards shall retain sole ownership of such portioos of the Dedved Software that contain part or all of the Software Use of such Software mduded in the Derived Software shall remain subject to the provisions of th~s Agreement 2 L~CENSE USE CA) Customer shall use the Software only on the Customer System(s) Identified ~n Attachments attendant to this Agreement or idenbfled m wdflng as provided pursuant to subsoctmn (D) of this section Customer shall not copy the Software without the wr~en permission of .1 D Edwards except for a reasonable number of copies necessary for Customer's backup, archival, and in-houso disaster recovery purposes SubJect to the notification provisions contmned in this Article, Customer may also copy the Sef~vare as reasonably necessary to support the maximum number of Licensed Usors licansod under th~s Agreement Customer w~ll reproduce and mdude the patent, copyright, trade secret, trademark or other restrictive and proprietary legends from the ongmal on all copies All copies will be sub)ect to the terms of this Agreement Customer shall not allow the Software to be usod by anyone other than its employees, except for those accesses provided for under Secbon 3 of this Article and Article V, Section 2 The Software may not be used or subhcansod by Customer for the purpose of commercial timesharing, sorvlca bureau or other rental or sharing arrangements .3 D Edwards may, from time to brae, deny Customer the right to llcanso ~n or move the Software to corta~n countries in order to protect .1 D Edwards intellectual property interests (B) Customer shall not (I) reverse engineer any part of the Software, provided, however, that If the Licensed Products are located in a Jurledlchon whoso laws exphotiy permit some form of reverse engineering, Customer may do so solely to the extent so permitted by such law Customer agrees to notify .1 D Edwards prior to doing so, (Ii) distribute, sell or otherwise transfer any part of the Software, and (iii) remove the patent, copyright, trade secret, trademark, or other proptietery protection legends or noticas that appear on or [n the Software (C) Customer may provide for disaster recovery services on a computer system provided for such purpose by a third party organization The Software loaded upon a disaster recovery system will only be operational, other than for disaster recovery test purposes, in case of disaster conditions and ~noperabllity of the Customer System(s) Customer agrees to cease using the Software on the disaster recovery system immediately upon restoration of the Customer System(s) to proper operating condition Customer agrees to provide .1 D Edwards an original of the .1 D Edwards Non disclosure Agreement executed by the third party organization and notice of the location, computer type, and model and sonal number (if applicable) of the cpu(s) on which the Licensed Products will be installed Customer agrees to be fully responsible to .1 D Edwards for all damages for any unauthorized uso, d~sclosure, or duplication of the Software resulting from Its possession by the third party organization (D) Customer shall notify .1 D Edwards m writing of any of the following changes (0 a change in location of a Deployment Server or Customer System(s) (il) a reallocation of the number of Licensed Usors for any Deployment Server(s) or Customer Syatem(s) (iii) a change in any model, feature, serial number, and allocation of Ucensed Usors for an AS/400 on which the WorldSoftware ~s installed In addition, Customer shall prevlde fifteen (15) days advance written notice for any change in the type of Supported Platform for any Customer System 3 THZRD PARTY ACCESS .1 D Edwards agrees that Customer may allow Its customers, vendors or other entities in a similar relationship to Cueterner to access the Ucensod Products and uso the same for the purpose of conducting inquiries and other limited activities so long as Customer can demonstrate the following (I) none of the aforementioned entities, at any time, has access to -1 D Edwards' source code, (il) their access Is restricted to screen access and te those specific functions they are required to perform, (Ii0 under no drcumstances will they use the Software to operate their own businesses, (iv) the provision of the -1 D Edwards software or sorvices is not the primary purpose, value, performance, or cost of the relefionshlp between Customer and the entity, (v) the entity does not compete with .~ D Edwards, (vi) such access is not a violation of the Article V, Section 11, Export Controls, and (vii) each such user shall be licensed as a LIcensod User under this Agreement [n consideration of this grant of access by .3 D Edwards, Customer agrees to take all necessary steps to insure that the Licensed Products and the trade secret, proprietary and/or confidential information contained within the Licensed Products are not disclosed under this provision to any person other than the entities descnbed above who have a need for access and use as provided above Customer further agrees to be responsible for all the acts and omlssloos of the third partlso who are granted access under the Seotlon as If they were Customer's own acts or omissions, and Customer agrees to Indemnify .1 D Edwards against any damages it incurs resulting from such accesses 4 AUDZ'r On .1 D Edwards' wHtmn request, not more frequen~ than annually, Customer shall furnish 30 Edwards with a signed cerlJfiostion (I) verifying that the Licensed Products are being used pursuant to the provlsloos of this Agreement and Attachment(s), ~nduding the limitabons on Ucensod Usors, and (11) IIs~ng the locations and types of the Customer System(s), and the location of the Ucansod Usors (Iododing usor type) assodated with each Customer System and at any other Iocetion accesolng the Customer System(s) via remote access .1 D Edwards, not more frequendy than annually and at Its own expenso, may audit Customer's usa of the Ucansod Products Any such audit shall be conducted during regular business hours at Customer's fecllities and shall not unreasonably interfere with Customer's business addvities tf a osrtifloste or an audit reveals that Customer has underpaid fees to 3 D Edwards, Customer shall be invoiced for such underpaid fees at .3 D Edwards' then current list prices for the actual number of usors If the underpaid fees exceed five percent (5%) of the Ucenso Fees peld, then Customer also shall pay .1 D Edwards' reasonable costs of conducbng the audit ART'ZCLE Z]! SOFTWARE SERVICES AND TRAIrNTNG ~'SERWCES") 1 SERWCE PROWSZON (A) 3 D Edwards will provide Services to Customer as specified on Attachment $, or as outlined in a engagement letter, scope of work, or exhibit, attached hereto Any additional Services will be provided at Customer's request and subject to availability, in accordance with a mutually agreed to Attachment S, engagement letter or scope of work entered into after execution of this Agreement In addition, .1 D Edwards will provide training sorvloss, subject to availability, In accordance with its then current training schedule and pollo/ (B) 3 D Edwards shall own all right, tltie and Interest In and to any Developed Software provided to Customer pursuant to this Arfide Customer and .3 D Edwards further agree that Developed Software provided to Customer shall be neither a "work made for h~re" nor a "specially commissioned work" as these are defined under U S copyright law Copyright 1998.1 D Edwards Wodd Source Company Page 2/6 03/99 Swservrnalnt0399 ] D Edwards ConfldenUa] AGREEMENT (C) ~ D Edwards will uso reasonable efforts to perform the Services according to its estimates and time schedules but causes beyond ] O Edwards' control, may cause delays in implementing the Services Such causes may include changes to Customer's business plans or practices, or Customer's alteration of project plans, resource commitments, or specifications (D) Customer ackn0wledgss that the Services can be obtained from vendors other than .~ D Edwards and that Customer's decision to purchase such Services from .~ D Edwards was made independently of Customer's decision t~o licenso 3 D Edwards' Licansod products 2 I~IANAGEIflENT CONTROL AND RELATZONSHZP OF PARTIES (A) During a software Implementation or other similar project, .~ D Edwards consultants will work with and under the direction of Customers pro]ec~ team The direction to be provided by Customer's project team Includes, but is not limited to, the creation of a detailed pro)ect plan and the scheduling of Customers Internal and extomal resources (S) Each party shall give wfitten notice to the other party of the key personne~ E shall assign from time to time to perform any software implementation or other similar project hereunder (C) E~ther party may request at any time the removal of any ~ndiwdual assigned to a pro]eot covered by this Ardcle if that party (0 believes that individual is not qualified to pa~form the services required by the project or does not meet appropriate professional standards, and (~i) prewously provided the other party with written notice of the problem and a reasonable opportunity to remedy the situation, considering the gravity and nature of the problem Replacement personnel~ if any, must have sufficient qualifications 3 3 D EDWARDS PERSONNEL AND OBt/GAT~ON$ (A) ~ D Edwards does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any rssponslblllty for CuStomer's business or operations ] D Edwards has the sole right and Sbllgation to supervlso, manage~ contract~ direct, procure, perform or cause to be performed all work to be performed by .~ D Edwards, except as otherwlso provided in this Agreement (B) Customer will inform and 3 D Edwards wdl comply with all reesonable workplace standards and polloes, applicable to Customer's employees, while 3ID Edwards personnel are physically ]oceted at Customer's premlsos (C) 3 D Edwards may subcontract the performance of any of the Services ] D Edwards shall be responsible for all performances under th~s Agreement by its subcontractors and any references to "3 D Edwards' pamonnel" shall be deemed to include any subcontractor or any subcontractor's personnel ARTZCLE IV SOFTWARE UPDATES/RESPONSE LZNE (~HAINTENANCE') :t HAINTENANCE SERVICES (A) Maintenance includes the Sof'~ware Updates and Response Line sorv~ces Customer may request and 3 D Edwards will provide Naintanance for the Licensed Products licensed by Customer under Ardcle [! of this Agreement to the same extent and degree that .] D Edwards makes such Maintenance generally available to its customers Customer may not 'elect to exclude any of the Ucensod Products or hcensod Users from the Maintenance se~ces dudng the Period of Coverage !f the Ucensod Products are being used In a dientJsorver or distributed nebNor~k environment Customer agrees to make a reasonable effort tO establish and maintain an internal competency center or help desk which provides a central point of contact with the 3 D Edwards Response Line to coordinate the Naintenance provided under this Agreemetit (B) Unless canceled by either party by written notice no less than thirty (30) days pndr to the end of the Period of Coverage, Customer agrees that the Period of Coverage for tilalntenance shall autOmstlcally extend for one (1) year at ~1 D Edwards' then current prices (C) Naintenance ~nall be provided in accordance with 3 D Edwards policies in effect at the beginning of each annual renewal of the Period of Coverage Fees for reinstatement of lapsed Haintenanca shall be charged in accordance with .~ D Edwards' policy for reinstatement fees in effect on the data of such reinstatement (D) All software ow date delivered by the Responso Line shall become part of the Licensed products (E) Customer is ,==vvi~s~ble for the installation of upgrades from one release to the next of the Ucensed Produd:s ARTIrCLE V GENERAL I PROPRIETARY R~GHTS (A) The Software provided under th~s Agreement has substantial monetary value and ~s proprietary to .] D Edwards Source The Software contains trade secrets, inventions~ ideas, date, source and objec~ codes, and other works of authorship protected by copyright and trade secret laws, and may be the subject of one or more pending patent applications or ~ssued patents The Licensed Products may also include copyrighted and proprietary material of third parties for which ] D Edwards and .~ D Edwards Source have been granted e fight to use and d~stfibute ~ D Edwards Source and any third party suppliers shall retain ownership of all rights, tide and interest tO their rsspact~ve pardons of the !Jcensed Pr~uc~ and all releases thereof All enhancements and m~dlficetions made by .~ D Edwards which are provided under the warranty or Software Update provisions of this Agreement will remain proprietary to .~ D Edwards Source (B) Upon knowledge of any unauthorized possession or use of, or access to, any Sol, rare licensed hereunder, Customer shall notify ] D Edwards as soon as possible Customer shall promptly fornlsh ] D Edwards with full details of such situation, assist in preventing any recurrence thereof, and cooperate at ] D Edwards' expanse in any lihgatlon or other proceedings reasonably necessary to protec~ the ~ntellectua[ property rights of ] D Edwards' and .~ O Edwards Source (C) The L/tensed Products contain sol,rare protection procedures which, m the event of unauthorized use, may limit access to the L~censod Products or which may limit the number of users having access to the Ucensed products The fun~on of these software protection procedures ~s more fully documented in ] D Edwards Source's Published product Specifications The software protection procedures contained In the Ucensod products will only limit access to the Software and will not destroy any of Customer's programs or data [f the software protection procedures have been enabled when them rs no unauthorized use by Customer, .~ D Edwards will, on a highest priority basis, assist Customer in returning to normal oparstions at no charge to Customer 2 MUTUAL NONDZSCLOSURE Pursuant to this Agreement, each party may, from time to time, furnish the other party to this Agreement with certain Confidential Information Recipient will use the same care to avoid d~sdosure of such Confidential !nformation as it uses with its own similar confidential information which it does not wish to diedoso, but such standard of care shall not be less than a reasonable standard of care The Confidential Information, Indudlng any trade secret, confidential or proprietary Information contained within the Confidential Information, is not to be disclosed to any persons other than the employees of Redplent However, Confidential !nformstlon may be d~sclosed to counsol, consultants, subcontractors or agents of the Recipient who have a need to know, have been instmctod that it ~s Confidential information, and who have executed a nondisclceure agreement substantially in the form of this Section of the Agreement prior to such disdosuro The disclosure of Disctoeer's Confidential Information does not grant to the Redpient any Ilcenee or tights to any trade socrets, or under any patents or copyrights, except as expressly provided by the licenses granted in this Agreement Except as otherwise provided in this Agreement, all Confidential [oformation is provided by the Discloser on an "as Is" basis The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate (or shall not attach) when any of the following occurs 0) ~[t was in the public domain at the time of Discloser's communicabon to Redpient (ii) [t entered the public domain through no fault of Redpient subsoquent to the time of Disclceer's communication to Redpient 0Ii) ~[t was in Reciplent's possession free of any obligation of confidence at the time of Disdosor's communication to Recipient (iv) It was independently developed by Recipient (v) Its disclosure is required by law, valid subpoena, or court or government order, provided, however, that Redpient provides prompt notice of such required disclosure and Recipient shall have made a reasonable effort to obtain a protective order or other reliable assurance affording it confidential treatment and iimibng its uso solely for the purpose for which the law or order requires Page 3/6 03/99 Swssrvmalnt03OO Copyright 1998 ~ D Edwards World Eourse Company ] D Edwards Confidential AGREEMENT Discloser understands that Recipient may develop information internafly, or recewe reformation from other parties, that may be similar to Disdeser's information Accordingly, nothing in th~s Agreement shall be construed as a representation or ~nference that Recipient will not ~ndependenfly develop products, for itself or for others, that compete w~th the products or systems contemplated by Disdoser's Information The parties agree that a breach of the confidentiality obligations by Recipient shall cause ~mmedlata and irreparable monetary damage to Discloser and shaft entitle D~scloesr to injunctive relief in addri~on to all other remedies 3 WARRANTTES (A) Licensed Products i) -1 D Edwards warrants that for a period of s~x (6) months foflowmg the date of delivery of the unmodified L~esnsed Products to Customer's first designated site, the L~censed Products wdl perform in all material respects in accordance with the .1 D Edwards Source Published Product Specifications ~n effect at the date of this Agreement .1 D Edwards further warrants that the -1 D Edwards Source Published Product Specifications are accurate m all material respects Ii) .3 D Edwards warrants that the L~consed Products, when used In accordance with Its Pubhshed Product Specificebons, upon ~nstallaben shall ~n all material respects be capable of accurately processing, providing and/or rece~wng date data from, rote, and between the twentieth and twenty-first centuries (mcludlng the years 1999 and 2000 and leap year calculations), provided that all other products (e g hardware, sof~oNare, mlddleware, firmware, and any other systems) used in combination with the L~consed Products propedy exchange date date with the Licensed Products In addition, for existing Customers who have previously hcensed the WoddSoftware, this warranty shall not apply to WoddSoftware Release A7 2, CUM 7 and all eadler CUMs or Releases of the World Software, and it also shall not apply to WorldSoftware Release A7 3, CUM ! through CUM 3 d0 .1 D Edwards shall have no responsibility for problems ~n the Licensed Products included under (I) and (d) above which are caused by alterations or modifications made by Customer or a third party, arising out of the malfunction of Customer's equipment, or caused by other software products not flcensed by -1 D Edwards (B) Services,' (I) .1 D Edwards warrants that the Services supplied under Article U! shall be performed In a professional and workmanlike manner (ii) .1 D Edwards warrants that the unmodified Developed Software shall operate in all material respects m accordance with the written, mutually agreed upon specification for such Developed Software from the date of completion of such Developed 5oftware for a period of ninety (90) days However, -1 D Edwards shaft have no raspensibfflty for problems in the Developed Software caused by alterations or modifications made by Customer or a third party, or arising out of the malfunction of Customer's equipment or other software products not licensed by .1 D Edwards (C) Maintenance During the Period of Coverage, .3 D Edwards warrants that the unmodified Ucansed Products wdl perform tn all material respects in accordance with the .~ D Edwards Source Published Product Specifications as they may ex~st dunng the Period of Coverage Such Published Product Specificaffons shall be accurate in all material respects but shall be subject to amendment from time to tdme to conform with functionality contained in new releases of the Licensed Products Dudng the Period of Coverage, -1 D Edwards also warrants that the Licensed Products will comply with the warranty contained in Section 3(A)(il) of this Article 4 WARRANTY EXCLUSZON (A) THIS AGREEMENT PROW[DES LICENSES AND SERVICES AND TS NOT A SALE OF GOODS (B) EXCEFT AS EXPRESSLY SET FORTH [N THIS AGREEMENT, THERE ARE NO WARRANT[ES, EXPRESSED OR IMPLIED, INCLUDZNG BUT NOT L[MTI'ED TO, THE IMPliED WARRANT[ES OF MERCHANTABILTTY OR FITNESS POE A PART]CULAR PURPOSE .1 D EDWARDS MAKES NO WARRANTY, EXPRESS OR .IMPLIED, REGARDZNG ACCESSORY SOFTWARE OR ANY MOD.1FZED PORTIONS OF THE SOFTWARE (C) .1 D EDWARDS MAKES NO WAR~ AS TO THE ADEQUACY OR CAPACITY OF ANY HARDWARE OR THIRD PAR'~' SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CUSTOMER MANY FACTORS, INCLUDING BUT NOT LIMITED TO THE TYPE OF NETWORK, THE AMOUNT OF TOTAL NE'~VORK TRAFFIC, AND THE TYPE AND PATTERN OF USAGE OF THE ITCENSED PRODUCTS OR OTHER SOFTWARE ON THE NETWORK W]LL IMPACT THE PERPORMANCE OF THE LICENSED PRODUCTS INSTALLED ON SUCH NE1V~ORK THE I-[CENSED PRODUCTS, WHEN YNSTALLED IN A CLIENT/SERVER OR OTHER TYPE OF DISTRJBIJ3ED N~ORK ENVrRONI'4ENT, ARE SUB3ECT TO CERT~N MINIHUM HARDWARE AND SOF'[V~ARE RE(~UIREMENTS PROV]DED BY -1 D EDWARDS TO CUSTOMER, INCLUDING BUT NOT LIM]'FED TO, THE ENTERPR]SE SERVER, DEPLOYMENT SERVER, AND CLIENTS 5 EXCLUSIVE REMEDTE$ For any breach of warranties contained in Section 3 of this A~icle, Customers exclusive remedy shall be as follows (A) Licensed Products Customer sbell have slx (6) months following dehve~y of the Ucensed Products to Customer's first designated site to vedfi/that the Licensed Products comply with the warranties contained ~n Section 3(A) of this Article Customer shall prowde written notice of any such nonconformance to .1 D Edwards within this six (6) month pedod Such notice shall be ~n sufficient detail to allow .1 D Edwards to duplicate the nonconformance .ID Edwards shall, at no additional charge, correct such nonconformance or provide a mutually acceptable plan for correction by sixty (60) days following the receipt of Customer's notice by .~ D Edwards Should .1 D Edwards fail to pmwde such correction or mutually acceptable plan by such date, Customer's sole and exclusive remedy shall be fo terminate this Agreement by written notice m accordance w~th the termination provisions contained ~n Section 9 of this Article Such notice of termination must be received by -1 D Edwards withe fifteen (15) days following the date for correct, on or plan for correction Upon such notice of termination, Customer shall be entitled to receive a refund of the license Fees paid (B) Services (I) Customer is entitled to re performance of the Services, or If .1 D Edwards cannot perform the Services as warranted, Customer Is entitled to a refund of the fees paid to .1 D Edwards for the Services not In conformance w~th the warranty (a) .1 D Edwards agrees to correct, at no charge, all material nonconformances in the Developed Software of which .1 D Edwards receives written notification during the ninety (90) day warranty period If a material nonconformance is Incapab~e of correction, It shall be considered a breach of warranty and Customer shall be enUtled to return the nonconforming Developed Software and receive a refund of fees paid for the nonconforming Developed Software (C) Maintenance 1 D Edwards agrees to correct any material nonconformance as described in Section 3(C) of this Article at no additional charge subject to the following conditions -1 D Edwards' obligation to provide corrections under this provision shall apply only fo I) the moat current release of the Ucensed Products, and ii) the next preceding release of the licensed Products but only during the six (6) months after the general availability date of the most current release However, this limitation does not limit Customer's access corrections generally mede available to all Customers subscribing Maintenance (through the ~ssuance of cumulative updates or program temporary fixes) Customer shall provide notice fo .1 D Edwards in suffioent detail to allow .ID Edwards to duplicate the nonconformance Should -1 D Edwards fall to provide such correction, Customer's sole and exclusive remedy shall receive a refund of Maintenance fees paid for the Licensed Users assodated with the nonconforming Licensed Product(s) for the Parted of Coverage during which the nonconformance occurred 6 ZNDEMNITZES (A) .1 D Edwards shall ~ndemnify, defend and hold Customer harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Customer In connection with any U S patent, or any copyright or other ~nte[lectual property Infrtngement claim by any third party with respect to the Licensed Products This Indemnity obligation shall apply only to the extent that that Customer promptly notifies -1 D Edwards after Customer heeomes aware of such claim, grants to .1 D Edwards the authority to defend, compromise or settle the claim of infringement, and provides -1 D Edwards any Customer Information relevant to such claim .1 D Edwards shall have no liability for any claims of Infringement that are based on i) a modification to Licensed Products, il) the use of a prior or modified release If the infringement claim could Copyright 1998.1 D Edwards Wedd Source Company Page 4/6 03/99 Swse~maln~03g9 3 D Edwards Confidential AGREEHENT have been avoided by the use of a current unmodified mleese, or Iii) upon a use of the Licensed Products in a manner not contemplated w~thln the Published Product Specifications (Bi 3 D Edwards further agrees that if Customer is prevented from using the Ucensed Product(s) due to an actual or claimed infringement under subsc~oon iA) of this Section, then at `1 D Edwards' option, 3 D Edwards shall promptly either (0 procure fdr Customer, at .1 D Edwards' expense, the dght to continue to use the Ucensed product(a), (Ii) replace or modify the Licensed Product(s), at .1 D Edwards expense, so that the Licensed Product(s) b~:ome non infringing, or (,ii terminate the Agreement as it relates to the infringing bcensed Product and return Customer's License Fees for the mfnnging LicenSed Product(s) in the event that neither (Ii or (il) are reasonably feasible lC) Subsections iA) and (Bi of th~s Section shall constitute .1 D Edwards' entire obligation to Customer with respect to any claim of infringement iD) (ii .1 D Edwards shall defend and indemnify Customer, its employees, officers, directors and agents from and against all costs and damages due to injuries to persons or damage to real or tangible personai~propetty proximately caused by `1 D Edwards dunng the performance by `1 D Edwards of this Agreement However, th~s indemnity shall not apply to the extent that such injury or damage is caused by C~stomer's own negligence or w[llful m~sconduct (ii) Customer shall defend and Indemnify .~ D Edwards, its employees, officers, directors and agents from end against all costs and damages due to inJudes to pemons or damage to real or tangible personal property proximately caused by Customer during the performance of this Agreement However, this indemnify shall not apply to the extent that such injury or damage Is caused by .1 D Edwards' own negligence or willful misconduct 7 LZMTTED LTABZLI'TY EXCEPT FOR a)FAILURE TO COMPLY W[TH THE PROPRIETARY R[GHTE OR b)THE INFRINGEMENT INDEMNITY PROVISIONS CONTAINED IN THIS AGREEMENT iA) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR A MONETARY AMOUNT GREATER THAN THE TOTAL AMOUNTS PAID OR DUE PURSUANT TO THIS AGREEHENT, AND (Bi IN NO EVE~I' SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR IN.1UP~ES TO EARNINGS, PROFTTS OR GOODWILL, OR FOR ANY INCIDENTAL, SPEC[AL, PUNTI'[VE OR CQNSEQUENTr-AL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBIL.rTY OF SUCH DAMAGES THE LIMI*I'A'I'JONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE 8 ARBITRA'F~ON All d~sputes Involving this Agreement, except acbons arising under the patent and copyright provisions of the U S Code, shall be submitted to a panel of three (3) arbitrators appointed and operating under the Uniform Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Aseeelation Such panel shall include only persons with experience in the areas of Information technology or computer software licensing, installation or implementation Each party shall choose one (1) arbitrator, end the third arbitrator shall be chosen by the two (2) arbitrators selected by the parties The arbitration hearing will be confidential and Its location will be chosen by the party not initiating the arbitration or action The written decision of the arbitrators shed be final, bindlrtg and convertible to a court Judgment in any appropriate )urlsdlctlon 9 TERM AND TERMINATION (A)The license granted under this Agreement shall remain In effect perpetually unless otherwise terminated under this Section (Bi Customer may terminate this Agreement at any time upon thirty (30) days written notice to .1 O Edwards, subject to subsection iD) end (E) below Subject to subsection iD) and Article IV, Section 1(8), Customer may terminate Article I[I or IV of this Agreement without terminating the bcense portion of the Agreement Copyright 1998 ~ O Edwards Wodd Source Company lC) If e~ther party materially broaches this Agreement, the uLI,er perU/may give whites notice of its desire to terminate and the specific grounds for termination and, if such default is cepeble of cure and the party m default fails to cure the default within thirty (30) days of the notice, the other party may terminate th~s Agreement Zf such default is incapable of cure, the other patty may terminate this Agreement immediately upon wnften nobce of its desire to terminate iD) Termination of this Agreement, or any porbon of it, shall not Ilmrt either party from pumuing other remedies available to it, including ~njunctive relief Such termination shall not relieve Customer of its obhgation to pay all foes that have accrued or are otherwise owed by Customer under Aracles 1[, ][II, TV and V, Section 10 At,de V, Sections 1, 2, 5, 6, 7, 8, 9(E), 11, 13(D) and 13(M) shall survive termination of this Agreement (E) Upon termination, the bcense to use the Software shall be ~mmedlately revoked and all Licensed Products and supporting materials wdl be returned to .1 D Edwards within ten (10) days, or destroyed and an affidavit supplied to .1 D Edwards certifying destm~on lO PAYMENT iA) In consideration for the Idcense granted ~n Article It, Customer will pay to .1 D Edwards the Idcense Fees listed on any Attachment to this Agreement Customer agrees to pay seventy five percent (75%) of the License Fees upon the execution of such Attachment, and the remaining twenty five percent (25%) within thirty (30) days after execution of such Attachment lB) As compensation for performing Services under A~de 111, Customer agrees to pay .1 D Edwards on a per hour basis based on the individual required and the actual hours expended or, in the case of training, at .1 D Edwards' hst price Customer must make any schedule changes for Services two (2) weeks in advance, otherwise, .1 D Edwards may charge for brae it cannot roschedule Customer agrees to m~mburse `1 D Edwards for al~ reasonable out-of pocket expenses `1 D Edwards incurs ~n providing Services including, but not hmited to, transportation costs, a~rfare, rental vehicles, lodging, meals, and incidental charges, which are reimbursable expenses end not part of .1 D Edwards' toter estimate for the Services If uncontested amounts remain unpaid for thirty (30) days or more, `1 O Edwards may, at Its option, refuse to perform additional services under Arbde II! of this Agreement until such amounts are paid lC) Customer shall pay Mamtenaeee fees In accordance with any Maintenance Attachment attendant to this Agreement and subsequently as an annual charge The first payment shall be due within thirty (30) days of invoicing by .1 D Edwards If Customer fails to remit Maintenance fees, .1 D Edwards wifi have no duty to provide Halntonance under Article ~V iD) In addition to the charges due under this Agreement, and even ff Customer shall provrde e tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes (including sales, use, property, excise, value added and gross receipts but not including taxes based on `1 D Edwards' net income) and ~mport duties and fees levied on Software, Services and Nalntesence provided under this Agreement Customer agrees that if any of the foregoing is peld by `1 D Edwards, Customer shall reimburse .1 D Edwards for the amount paid plus any related expenses tncurred end interest assessed .1 D Edwards accepts full and exclusive liability for the payment of all employer contributions and taxes measured by any payments to `1 D Edwards' employees In the event that Customer is required by any withholding tax or other s~milar law to deduct any amount from the amounts due to `1 D Edwards under this Agreement, Customer agrees that it shall pay a suffidently higher amount so that the net amounts received by .] D Edwards after such withholding equal what was irwolced (E) Customer agrees to pay for all uncontested amounts due under this Agreement within thirty (30) days after the date of invoice Customer shall have thirty (30) days after the invoice date to contest ~n geed faith the amounts and items charged Past due uncontested amounts will bear interest of one and one half percent (1~,%) per month from the due date or the highest rate permitted by law if less (Fi All payments made hereunder are nonrefundable except as specifically provided otherwise In th~s Agreement ~ 12 EXPORT CONTROLS Customer shall not export, re-export, or otherwise transmit, directly or ~ndirectly, any software, Information, date, or other materials received under this Agreemer~t except In full compliance with all United States end other applicable acts, laws, and regulations Customer shall Page 5/6 03/99 Swsennn~lntO3!l!~ Edwards Confidential AGREEMENT indemnify, defend and hold harmless -3 D Edwards from any loss, liability, cost or expense (including reasonable legal fees) related to any action arising from Customer s failure to comply with this section 12 U $ FEDERAL GOVERNMENT CONTRACTORS The Licensed Products are prowdecf to Customer as a commerdal item strictly under the terms and condlt~oes of this Agreement and mdude only those rights customarily avadable to the pubhc The Customer Is not authorized to permit dmclosure by any agency or other part of the Federal Government that exceeds m any way the use and d~sclesure righta (1) conveyed to Customer m thru Agreement or (2) provided in Far 12 2].2 (Computer Sol, rare) and (for Department of Defense use or disclosure) DFAR 227 7202 3 (Rights in Commercial Computer Software or Computer Software Documentabon), whichever set of rights provided In (1) or (2) are the more restrictive Tf an agency or other part of the Federal Government has a need for rights not conveyed under th~s Agreement, it must eegotmte with 3 D Edwards to determine If there are acceptable terms for transfemng such rights Tn such a case, a mutually acceptsb~e written addendum to this Agreement specifically conveying such rights must be included m any contract between the parties 13 GENERAL (A) The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach (B} All notrces shall be ~n writing and either 0 sent by certified ma~l, postage prepaid, return receipt requested or lO dehvered by courier to the address written above or such other address as nobfled in writing to the other party Notlca shall be deemed to be made on the date received under i) and date delivered under ~i) (C) This Agreement shall be the most bamc enumera~on of the terms and conditions under which the contemplated transactions will be governed An Attachment to this Agreement shall modify this Agreement to the extent of any conflict m terms An Addendum shall modify this Agreement and any Attachment hereto to the extent of any conflict in terms No amendments, medificabons or supplements to this Agreement shall be binding unless m writing and mgned by the paraes The headings and titles to the secbons of this Agreement are inserted for convenience only and shall not be deemed a part of, or affect the construction or interpretahon of, the provlmoes of this Agreement (D) All disputes Involwng the subject matter of this Agreement, except actions arising under the patent and copyright provlsloes of the U S Code, shall be determined under the law of the State of Colorado without regard to Its conflict of laws provisions No action, regardless of form, relabeg to the subject matter of this Agreement, may be brought by either part3' more than one (1) year after the claiming party knew or should have known of the cause of arbitration or action (E) Each party eckeewledges that the other park's employees are critical to the servicing of its customem Each party agrees not to employ or otherwise engage an employee of the other party for a pedod of six (6) months fellowing such employee's last involvement in the performance of this Agreement Should a party ~qolate this provision, the hiring party wdi pay the other party one hundred percent (100%) of the former employee's annual se[ary Such payment shall be the other party's sole remedy with respect to the hiring party However, such payment does not restrict the other party's rights or remedies as they relate to such former employee (F) Neither party shall be liable for any costs or damages resulting from ~ts Inability to perform any of Its obllgaboos under this Agreement due to a natural disaster, or actions or decrees of govemmeotal bodies not the fault of the affected party (''Force Majeure Eveot;~ A Force Majeure Event shall not constltote a breach of the Agreement The party so affected shall Immediately give noUca to the other party of the Force Majeure Event Upon such notice, all obligations of the affected party under this Agreement which are reasonably related to the Force Majeure Event shall be immediately suspended, and the affected par[,/ shall do everything reasonably possible to resume performance as seon as prachcable (G) Customer understands that .3 D Edwards' business partnem are Independent enflhes and, except to the extent they are acting as subcontractors pursuant th Article ]I1, Section 3(C) of this Agreement, .3 D Edwards is not liable for nor bound by any acts of such business partner (H) Tf any provlmon of this Agreement is held to be invalid or unenforceable, such decision shall not affect the validity or enforcaablllty of the Agreement or any of the remaining provisions (2) Except as provided in this subsection, this Agreement may not be ses~gned by either party and any attempted assignment shall be void However, either par[y may, upon wdtten notice to the other party, assign this Agreement to any Affiliate .3 D Edwards may assign thru Agreement in the event of the sale of all or sebstentialiy all of its assets or equity (3) This Agreement shall be prepared in two identical and odginal counterparts If a counterpart shall be prepared in a language other than English, then the non English counterpart shall be for convenience only and shall not affect the performance or interpretation of this Agreement Ukew~se, the exchange of a fully executed Agreement by fax (whether by separetely executed counterparts or otherwise) shall be fully binding on the parties with respect to the terms and candltlons of this Agreement (K) All amounts stated in and payable under this Agreement shall be denominated in United States Dollars and shall be payable In ready funds in United States Dollars to .3 D Edwards' designated United States bank account Unless otherwise agreed to by the parties, .3 D Edwards will Invoice all amounts to Customer's address as it appears on Page One of thru Agreement However, Training wdl be billed in accordance with the then current training invoicing policy for related to currency and IocaUon of Training (L) The parties hereto are independent contractors and neither party nor its employees, directors, agents, or consultants shaft hold Itself out to be or allow itself to be considered as an agent or employee of the other party (M) Neither party shall publicly announce or disclose the terms and conditions of this Agreement except that .1 D Edwards may refer to Customer as a .1 D Edwards customer in sales calls~ customer lists, and other similar external communications (N) The parties agree that this Agreement Is not subject to and shall not be interpreted by the United Nations Convention on Contracts for the [nternatlonal Sale of Goods (O) Any purchase order or other Instrument of Customer accompanying either an Attachment to this Agreement or a Customer payment is for Customer's internal use only and Its terms shaft not alter or amend the terms of this Agreement This Agreement, Including its terms and conditions and Its Attachments and Addenda, I. a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent prepo~ale and understandings, whether oral or written, and all other communlcaUons between the parties relating to the subject matter of this Agreement, This Agreement shall not be effective until executed by Customer and accepted by an authorized reprr, entetive o1'3 D Edwards By execuflon,.slgrj.eLcert~fies that, signer Is authorized to accept and execute this~g~l~f~ent on be~lf o~l;~/Edwards Accepted by 3 D Edwa~a~ ~e~ve~s o~ V ~ ~ !~ V~ President & General M~n~er , City ManaKer Copyright 1998.3 D Edwards Wodd Source Company Page 6/6 03/99 Swservmalnt0399 .3 D Edwards Confidential JD£dwards' ATTACHMENT A/O - LZCENSED PRODUCTS WorldSof~ware~. & OneWorldTM - Suite Pricing Customer City of Dei~b~n A/B #6557926 Address 1215 East McKinnev ~E]L[] One Technology Way Denver, Colorado 80237 De,iLui~. TaYa~ 76201-4229 Th~s Attachment 'NO ("Attachment") to the (check on) [] Software License Agreement or [] Sof~vam License, Semces and Maintenance A r ement ("Agreement") $ made by and between 3 D Edwards ("3 D Edwards" shall have the meaning set forth ~n such Agreeme~r)(~:nd Customer in cons~deration of their mutual promises and subiec~ to ~ts terms and cond t OhS This Attachment amends the Agreement dated rl~.T ~, 9 ~gggCustomer agrees to (check appmpnate opbon(s)) [] license, and/or [] upgrade the number of bcensed Users for use on the Customer System(s) The type of Licensed Products dehvered to £ustomer wdl be based on the hardware platform(s) lis~ed on page two and any Supplemental Schedule for each Supported Platform specified as part of the Customer System(s) Required Suite Base Soft:ware Suites (2) prerequisites (1) License Fee ~19.500.00 [] i FoundaUon (3) 1 16.500.00 [] 2 Finandal 1,2 16.500.00 [] 3 LoglCdcS/DlstflbuUon 1,2,3 16.500 00 [] 4 Manufacturing 31.000.00 [] 5 Human Reeource Management (6) [] 6 Payroll (5,6) E~ U S 1 31.000 00 Canadian 1 [] 7 Customer Service Management System ("C:SMS") OneWodd only 1,2,3,4 16,500 00 1,2,3 [] 8 ECS 13.200.00 [] 9 PmJec~ Management 1,2 NOTE Release B73.3 of OneWodd Includes Suites :1. through 9 Additional Suites ara available in WoddSoftwara only and not in Release B73.3 of OneWorld Sof~wara Sultea [] 10 World Vision GUI (4) [] 11 Se~ces [-I 12 Customer Znformat~on System ("C[S") [] 13 U~ser Type Ucense~ J JFees Per Ucensed User J C~pcurmnt (11) $6.300 X $ X $ X $ X C/S Only - Fee per customer 1 1,2,3 1,2,3,11 Total Base bcense Fees (7) ucen~ X # of customers Total Software Ucense Fees ~160.700.00 $630r000.00 $.-- $ $790,700.00 accepted by an authorized representative of.l,D Edwards By execution, signer certlfle~ thatlslgner is .authorized to accept and execute this ~tt~h,F~lent on ~l~e~lf. of 31~a~ l~ted by 3 O EdwardsJ~n~ Jl~dacUve (^~ ~.=.lMt~n Winder Copyright 1998-993 D Edwards World Source Company ] D Edwards Confldentla By execution, signer certifies that signer is authorized'/t~to execute this Attachment on behalf of Customer / CU~fl)MER j /7 _ / Page 1/2 06/99 Attachment AO0399 D!sc~unt (~s7.300.00~ Net Sol,rare bcense Fees $533.400.00 $0,00 Taxes ~ $533.400.00 Total This Attachment, Including Its terms and conditions and the Agreement, Is a complete and exclusive statement of proposals and underetandlngs, wnemer orat or wrltte, to ;ts subject matter Notwithstanding anything to the contrary In the Agreement, in the event of a conflict between this Attachment and the Agreement, this Attachment shall prevail All other terms and conditions remain unchanged and are ratified hereby. This Attachment shall not be effective until executed by Customer and AT[ACHHENT A/O - World$oftwareTM & OneWorldTM ~ IFapp/lcab/e: Location of Customer System(s) Deployment Server & Licensed Users Supported Platfomt Type (8~) (Including By User lype Feature Model and Sanal # Denton, TX A/B #6557926 IBM RS~6000/'rBD '~ '--~ 100 - Concurrent For additional Customer Systems, If any, see "Supplemental Total Licensed Users (9) 100 Schedule of Customer Locations" b~ User AIIocabon Table Customer agrees that, as of the date of th~s Attachment, its proje~on of the location of the bcensed Users spedfled above Is as follows (10) Edwards EnUty Customer User Location % of Total Licensed User Edwards Wodd Solutions Company The Americas (includes North and South Amenca and the Canb~an) 100 % Edwards Europe, Ltd EMEA (includes Europe, A~lCa, & M~ddle Eas~) % Edwards (Asma Pacific) Pta Ltd As~a Paofic % TO~I. 100% NOTES (1) Customer should license all Requtred Prerequisites and Ins~all each licensed $of~vare Suite In its entirety FAILURE TO LICENSE AND INSTALL PREREQUISITE SOFTWARE SUITES WILL VOID ANY AND ALL WARRANT~ES (2) The OneWodd CD Release B73 3 contains the Accessory Programs, Microsoft Internet Explorer 4 01 and Adobe Acrobat 3 01 which each have Individual End User License Agrreereents contained within the programs HIcrceof~ lntarnet Explorer logo Is a trademark of H~crosoft Corporation Adobe Acrobat logo Is e trademark of Adobe Systems, Incorporated Portions of OneWofld Release 873 3 contain third party software which are copyrighted and distributed under s license from Portions Copyright 1985 1997 Hisrosoft Corporation Portions Copyright ]992 1995 Tenberry Software, Inc Portions Copyright 1993 Premla Corporation Portions Copyright (c) 1997 DC Hlcro Development All Rights Reserved The .1 D Edwards I90 9001 registration does not Include products licensed from third parties (3) The Foundation Sof~vare Suite contsms the OneWorld Toolkit and the Development Environment Application for the Woddseftware Customer agrees not to use the functionality of the OneWorld Toolkit and Development Envitonment Appllcabon to develop computer programs which compete with any ] D Edwards Ucensed Products Customer shall Indemnify ] D Edwards against any harm or expanse (including, without limit, reasonable attorney s fees) arising out of any computer programs generated by Customer utilizthg the OneWotid Thobllt or Development Envitonment Application NOTWri~STANDING THE WARRANTY CONTAINED IN THE AGREEHENT, NO WAPEANTY iS HADE THAT THE ONEWORLD TOOLKIT OR THE DEVELOPHENT ENVIRONHENT APPLICATION WILL GENERATE COHPU~R PROGRAHS WITH 'l~lE CHARACTERIS'~'ICS OR SPECIFICATIONS DESIRED BY CUSTOHER OR THAT SUCH GENERATED COHPUTER PROGRAMS WiLL BE ERROR FREE (4) The WoddVIslon GUI Suite Includes sol.rare provided under license to .1 D Edwards by Seagbll Business Sol,rare b v THE SEAGULL SOFTWARE APPLICATION CONTAINS SOFTWAPE PROTECTION PROCEDURES, IF AN A'I-r~HFT IS MADE TO SIHULTANEOUSLY EXECU~ HOPE COPIES OF THE SEAGULL SOFt'WARE APPLICATION THAN HAVE BEENLICENSED~RSETASAL]H1T~REACHCPU~THES~PR~CEDURESWI~PRE~ENT~EEXECUTI~N~FTHEUNLICENSED~RADD1TI~NALCOPIES iF THE SEAGUii SOFTWARE APPLICATION IS EXECUTED ON AN UNLiCENSeD PROCESSOR OR WITH APP. OCESSOR DATE LATER THAN THE AUTHORIZATION DATE, THESE PROCEDURES WILL ALSO PREVENT THE EXECUTION OF THE SOFTWARE The source code for World Vision GUI may not be released by .] D Edwards but Is placed In escrow by the thitd parb/ vendor If a Release Condition In the Escrow Provision Is Invoked with resbec~ fo the third party vendor, the source code will be released to ~ D Edwards The .~ D Edwards ISO 9001 registretion does not Include products Ilsensed from third pardes (5) Payroll Suite requires PAYROLLTAX to be Ilcensod ditestly from Vegex Systems, ]nc For an eddYednal fee 'l~E UNMODIFIED SOF'PgARE APPLICATION IS IN'i~NDED FOR USE IN THE UN1TED STATES OR CANADA AND HAY NOT SUPPORT LOCAL GOVERNMENT REQUIPEHEt~rrs OR EHPLOYMENT pRACTiCES WI~OUT MODIFiCATIONS BY CUSTOMER CANADIAN PAYROLL AVAILABLE UNDER CUHiV/ULATIVE RELEASE! OF VERSION B73 3 (7) LICENSE OF ADDI~ONAL SOFTWARE AND ADDI-rlONAL USERS If Customer licenses edditlonal Software Suites, Customer will pay the Base License Fee and any Increased User R~es Additional Users must be licensed In blocks of ten (10) Users If Customer decreases the number of Licensed Users there shall be no credit given or refund paid on the Ucense Fees already due or pa~d (8) IDENTIFICATION OF C:USTOhlER $yE-I~hl(S3. If Installing the OneWodd Sol,rare, Customer reust Identify each Deployment Server, b/be of Supported Platform, and number of Licensed Users and type of for each Customer System and Deployment Server ]f Installing the WoddSoftware on an AS/,100, Customer must identify the model, feature and serlel number of each A5/400 on which the Licensed Products are Installed and the number of Licensed Users associated with each such AS/400 (9) SOFTWARE PROTECT[ON PROCEDURES THE ONE~VORLD LICENSED PRODUCTS CONTAIN PROCEDURES WHICH LINIT THE NUMBER OF DEPLOYI'4ENTS OF THE LICENSED PRODUCTE TO CLIENT PC PLATFORMS TO AN AMOUNT SPEC]RED AT ]I'VE TINE THE SOFTWARE PRO~ON CODE (~SPC'~ IS ISSUED (10} 3~e Information provided In this section is only Cusfomeds projection of the locations of its Ucensed Users as of the time of the execution of this Attachment It will be used solely for the purpose of allocat]on of the Ucense Fees and Halntensose Fees to be Invelced from each of the .] D Edwards e~ties to Customer and beslgnatlon of the contracting.] D Edwards entitles Unless otherwise agreed to by the pardes, each of the ~] D Edwards' entitles will Invoice (on a single combined Invoice) theit propoAIonate share of Ucense Fees and any associated Nalntenance Fees (based on the percentage allocegon on page one) to Custemer'a address as It appears on Page One of this Attachment Customer may be asked from time to time fo certify the location of Its Users in accordance with the eu~lt clause contelned In the Agreement (11) User Type A 'Concurrent User" shall be defined as a individual with an assigned "user Id" which has executed an application contained In a Licensed Product either through a menu selection, fast path, or hidden selection A User will be counted as a Concurrent User until the User signs off the sy~em, refreshes the librery list, or enters Nldben Selection 30 (AS/400 only) Multiple concurrent sessions on the same Customer System utilizing the same "user Id' InlBated from the same workstation shall be cogrlted as one Concument User However, sessions initiated by one user Id" on more than one workstefion, or by more than one "use~ Id" 0t) th~ ~ame wo~lon, shall be counted as murdple Concurrent Users The total number of ConcurTent Users slmulteneeusly using the Licensed Products at any tiree may not exceed the Concurrent Ucensed Users The SPC prevlded for Deployment Server(s) (as referenced ~n Note 9 above) will reflect the total nureber Licensed Users esslgned to the Deployment Server(s) divided by 6 (Example Customers with 30 Concurrent Users will be able to deploy up t~ Eg dleht PC p]atform, s ur[der this provision) Copyright 1998-99 3 D Edwards Wodd Source Company Page 2/2 06/99 Attachment AO0399 .] D Edwards ConfidenDal JD[dwards' ATTACHMENT T- TRAINZNG & DOCUHENTATZON APPLICATZONS One Technology Way Denver, Colorado 80237 Customer Address Cttv of Deii~on A/lB #6557926 2:L5 East ;4c;;innev Street Denton. TX 7620:L-4229 Th~s Attachment T ("Attachment") to the (check on) [] Software bcense Agreement or [] Software L~cense, Services and between -1 D Edwards World Solutions Company, .1 D Edwards Maintenance Agreement ("Agreement'~) Is made by and ("3 Europe, Ltd and .~ D Edwards (Asia Pacific) Pte Ltd D Edwards") and Customer in considerebon of their mutual prommes and subject to its terms and conditions This Attachment amends the Agreement dated OCT ~ .q ll~ppllcable notes are on Page Two Total Software Software Suites (Licensed Products) (1) License Fee $1o,ooo oo [] 1 ] D I°~.I B2 .1 D $10.000 00 3 .1 D Edwards Custom User Education Suite - CBT Manufactunng Net Software License Fees $70.000.00 Taxes Exemet $0.00 Total Due $70,000.00 The CUE Suite is comprised of the Custom Documentabon Tool and Computer Based Trmmng (CBT) Not all 'Rer 1 languages are available for certain components of the CUE Suite Please consult pubhshed product ~nformatlon for availability of languages Customer Is hcensed for and may order a sufficient number of copies to reasonably support Its Total Licensed Users accessing the World and/or OneWorld Licensed Products pursuant to the Agreement Th~s Attachment, ~nciud~ng ~ts terms and conditJons and the Agreement, ~s a complete and excluave statement of the agreement between the parties relating to its subject matter, and which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the pa~es relabng to its subject matter Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between the Attachment and the Agreement, th~s Attachment shall prevail All other terms and condlbons remain unchanged and are ratified hereby The ALl:achment shall not be effeddve untd executed by Customer and accepted by an authorized representaave of-1 D Edwards By execution, sgner certifies that s~gner is authorized to execute thts Attachment on behalf of .~ D Edwards Accepted by3 D Ed~r~s~n.e~, effeCtivel§gg as of .1 D EDWAI~I)~tf~)RL.~ SO~JT~ONS/OMPANY 3 D EDW~J~'IEURC(PE, urB, /E. LT Vl(:~ie President & General By execution, s~gner certifies that s~gner ~s authorized to execute this Attachment on behalf of Customer 06/09 Attachment T0699 Copyright 1998,99 3.D Edwards World Source Company Page 1/2 3 D Edwards Confidential ATrACHHENT T Notes (1) The "Licensed Products" ~nclude the CUE Suite, any Sof~vam Updates provided pursuant to Maintenance services, the media on which they are dehvered, and any assoaated documentation Customer receives access to the CUE Suite for all Its L~censed Users A "L~censed User" is a User for which a license fee has been pa~d (2) THE WORLD AND ONEWORLD CBT REFLECT CERTAIN FUNCTIONALITY CONSISTENT WITH SPECIFIC RELEASES OF THE J D EDWARDS WORLD AND ONEWORLD SOFTWARE USE BY CUSTONER OF THE LICENSED PRODUCTS WlTH INCONS[STENT RELEASES OF THE J D EDWARDS SOFTWARE NAY PRODUCE iNCONSiSTENT RESULTS ] D EDWARDS SHALL NOT PROVIDE ANY CORRECT~ON, ENHANCEMENT OR REFUND OF LICENSE FEES RE(~UEsI~D BY CUSTONER UNDER THE WARRANTY SECTION OF THE AGREENENT THAT RELATE TO THE USE BY CUSTONER OF THE LICENSED PRODUCTS iN CON]UNCTJON WiTH iNCONSiSTENT RELEASES OF THE ~ D EDWARDS SOFTWARE PLEASE CONSULT THE PUBLISHED PRODUCT INFORMA'r[ON FOR THE AVAILABLE RELEASES FOR THE CUE SUITE (3) THE CUSTOI4 DOCUMENTATION TOOL NAY CREATE CUSTON DOCUI~IENTS WiTH II~IPERFECTJONS IN LAYOUT AND FORNAT WHEN CONPARED TO THE ORIGiNATiNG ] D EDWARDS DOCUI4ENTATiON CUSTONERS SHOULD REVIEW THE CUSTOM DOCUMENTATION TO ENSURE THAT ALL FORr4A~rJNG AND ENBEDDED TABLES, ETC HAVE BEEN CARP~ED OVER iNTO THE NEW CUSTOM DOCUMENT Copyright :Lg08-99.1 D Edwards World Source Company .] D, Edwards Confidential Page 2/2 06/99 Attachment T0698 JDEdwards' Customer Citv of Denton AI'rACHMENT U Maintenance Services A/~ #6557926 One Technology Way Denver, Colorado 80237 Address 2:[5 East McKinnev Street Deii~n, TX 76201-4229 raises and sub ect to its terms and condRqons This Attachment supp!,e..,:,.- __:;,,.- ;_;_. - I~.T 't~-'~' ~ljJlj;J ' a; fnJlnw~ of their mutual pro_r , ~ ,s~ ....... ^~m~n, nr N Malnte Aareement ( Agreemen; ), aa[eu w, --, ,--- , .......... t4alntanance Services - .3 D Edwards shall provide to Customer, sub)oct to the terms and conditions of the Agreement, the Maintenance serv~cse mdlceted below . , .~ _..-. ... ~ ,,,~,/:~ Th. Period of Coveraoe begins upon shipment of the !.Jcensed Produc~ to the des~gnat' '' - ' -''--''-*~eo sim c.us[omer may -u~ eledc to exclude any of the Ucensad Products or Licensed Users from the Ma~ntonance services during the Penod of firSi:Coverage Dunng the Period of Coverage, Customer will be billed additional Maintenance fees resulbng from the addlt]on of Licensed Users or a change to premier Hmn..ten~a_n?e ......... ~e fees s,~ofied below within thirty (30) days of invol~ng by 3 D Edwards Unless canceled by e~the,r, par~y _b.y.w_ntten notice no less than thlAy (30) days pnor m [ne enu o~ irc r~.~ u. ,~.:.~, ..... (1) year at the then current prices Ex,sUng 3 D Edwards Customem Only For exisbng Customers convert3ng to Suite Pnong, Maintenance fees w~ll ~n no event be lower than your r our revious ricing structure ( your ~Maintenance Fee Base'3 Your Maintenance Fees will remain the same as the .Ivlaln~,en~an~ Na ntenance fees undo y P,, P~ ~ - .~^...,~ ~ .... /~. -~,13 D Edwards list nnce for Mmntenance Sute Pnclng increases) so ma[ me Fee Base unless Y ~ ~,-,,~ v wil be then billed for Maintenance fees based on your number of Users under Sute Maintenance fees exceed the Maintenance Fee BaSe If th ....... , .ou Suite Maintenance Standard Maintenance Fee PREMTER Maintenance Fee Re-initiation Charge Maintenance Fees (For the Pedod of Coverage) User Type Licenesd:.~ Maintenance Fees: 100 X (Number of L~ceesed Users) (Fee per Licensed User) User Type Licensed. Maintenance Fees X $ (Number of L~censed (Fee per Licensed Users) User) User Type Uceesed Maintenance Fee~' X $ (Number o'-'---f Licensed (Fee p':~' Licensed Uesrs) User) C[S ONLY Mmntenance Fees (Number of (Fee per customers) customer) Sales Tax Exemnt Total Maintenance Fees See Addendum for Clarification [ This Attachment, including its terms and condlbons and the Agreement, Is a complete and exclusive statement of the agreement between the parties nd which su rsedes all prior or concurrent proposals and understandings whether oral or wdtten, and all other relating to its subject matter, a ..... ~.r ,,- c:,ht~- m~ffmr Notwlthstandlnq anything to the contrary ~n the Agreement, in the event o.f a, communications between the pame~ ,r?at!n_g ~u_,~.~-;:~C-L,,=~;,~..nt ~h-a~l ,,revell A~i other terms and conditions remain unchanged and are ratieea ~rnefll~ b-~ht is~ta~nAent shall not be effective until executed by Customer and acCepted by an authorized representative of] D Edwards ' is authonzed to accept and By execution, signer certifies that signer ~s authorized to execute this By Accepted by 3 D Agreement on behalf of Customer CUST All MichaeX W. Je~ / · Name) r J (P.nt or Ty~ Name) [.~ Pr6$1d6~t & G6~ra~ Ua~ag~F ~ city ~4anager V C~tle) Page U! 9/98 Aq-rACHMENT U 1298 Copyright 1998 3 D Edwards World Source Company Edwards ConfldenUal JD£dwards' ADDENDUM Customer Address City of Denton A/B #6557926 215 East McKinne¥ Street Denton~ Texas 76201-4229 One Technology Way Denver, Colorado 80237 Th~s Addendum amends the Software L~cense, Services and Maintenance Agreement, ("Agreement") dated OCT 2 9 lggg,, by and between J D Edwards ("J D Edwards" shall have the meaning set forth ~n such Agreement) and Customer ~n consideration of their mutual promises and subject to ~ts Terms and Conditions as follows ARTICLE I, DEFINITIONS, Section 1, Accessory Software ~s amended to read as follows "1 Accessory Software Software products owned by third parties delivered with the Licensed Products but which are subject to a separate license agreement" ARTICLE I DEFINITIONS, Section 14, Period of Coverage, shall ~s amended to read as follows "14 Period of Coverage The t~me period dunng which the Maintenance services shall be available under th~s Agreement The ~mbal Period of Coverage begins at the completion of the Imt~al Maintenance Period" ARTICLE I DEFINITIONS, Section 20, Software Update, shall be amended to read as follows "20 Software Updates Program updates and new system versions and releases prowded dunng the Imbal Maintenance Period and any add~bonal Penod of Coverage" ARTICLE I DEFINITIONS, shall be amended by the insertion of the following new Section 22 "22 initial Maintenance Period The four (4) months following delivery of the L~censed Products to Customers first designated site dunng which Maintenance shall be prowded to Customer at no charge" ARTICLE, II, SOFTWARE LICENSE ("LICENSE"), Section 1, LICENSE GRANT, Paragraph (A), tst sentence ~s amended to read as fotlows "Subject to the terms and cond~bons ~n th~s Agreement, J D Edwards grants to Customer a non-exclusive, non-transferable, perpetual I~m~ted I~cense to use the L~censed Products on the Customer System(s) specified on an Attachment to this Agreement' :L2/98 Addendum1298 Copyright 1998 ) D Edwards Wodd Source Company Page 1/7 J D Edwardsconfldential ARTICLE II, SOFTWARE LICENSE ("LICENSE"), Section 2, LICENSE USE, Paragraph (C), 5th sentence ~s deleted ~n ~ts entirety ARTICLE II, SOF'rWARE LICENSE ("LICENSE"), Section 3, THIRD-PARTY ACCESS, last Paragraph, ~s amended to read as follows "In cons~deret~on of th~s grant of access by J D Edwards, Customer agrees to take all reasonably necessary steps to insure that the L~censed Products and the trade secret, proprietary and/or confidential ~nformatlon contained w~thm the L~censed Products are not disclosed under this prows~on tO any person other than the entitles described above who have a need for access and use as prowded above Prior to prowd~ng such access, Customer shall secure such third party's execution of a J D Edwards nond~sclosure agreement covenng the L~censed Products ARTICLE IV SOFTWARE UPDATES/SUPPORT LINE, Section 1(C) shall be deleted ~n ~ts entirety and replaced w~th the following "(C)Support L~ne services shall be prowded in accordance with J D Edwards' Support Line policies ~n effect at the complebon of the Imbal Maintenance Period and at the beg~nmng of each annual renewal of the Penod of Coverage Fees for reinstatement of lapsed Maintenance services shall be charged ~n accordance w~th J D Edwards policy for reinstatement fees ~n effect on the date of such reinstatement ARTICLE V, GENERAL, Section 2, MUTUAL NONDISCLOSURE, Subsection (v) ~s deleted ~n ,ts entirety and the following ~nserted ~n I~eu thereof "(v) Its d;sclosure ~s required by law, valid subpoena, or court or government order Customer agrees to not~fy J D Edwards of any such request for d~sclosure and the legal bases requ~nng release and to cooperate w~th J D Edwards to enable J D Edwards to seek any legal or equitable remedtes it sees fit at ~ts own effort and expense" ARTICLE V, GENERAL, Section 3, WARRANTIES, Paragraph (A) ~s amended as follows "per~od of s~x (6) months" ~s changed to "period of twelve (12) months ARTICLE V, GENERAL, Section 5, EXCLUSIVE REMEDIES, Paragraph (A) ~s amended as follows Each occurrence of the phrase "s~x (6) months" is changed to "twelve (12) months" ARTICLE V, GENERAL, Section 6, Paragraph (A) ~s amended to read as follows "J D Edwards shall ~ndemmfy, defend and hold harmless Customer from and against any claims, including reasonable legal fees and expenses, based upon infnngement by the L~censed Products of any United States copyrtght, trademark or patent, or any other intellectual property r~ght Customer agrees to notify J D Edwards of any such claim promptly ~n wr~bng Customer agrees to cooperate fullyw~th J D Edwards dunng such proceedings J D Edwards shall defend and settle at its sole expense all proceedings arising out of the foregoing, ~nclud~ng the procurement of suitable counsel for Customer's defense Customer's choice of counsel ~ndependent of J D Edwards shall not be Copyright 1998.1 D Edwards Wodcl Source Company Page 2/7 12/98 Addencium1298 Edwards Confidential unreasonably den~ed J D Edwards shall have no hab~hty for any claims of ~nfrlngement that are based on ~) a mod~flcabon to Licensed Products, ~) the use of a prior or modified release ff the mfnngement claim could have been avoided by the use of a current unmodified release, where~n J D Edwards has not~fled the Customer that the current release precludes the ~nfnngement, or m) upon a use of the L~censed Products m a manner not contemplated w~th~n the Pubhshed Product Spec[flcabons ARTICLE V, GENERAL, Section 6, Paragraphs (D)(I) and (D)(i0 are deleted in their enbraty ARTICLE V, GENERAL, Section 8, ARBITRATION ts deleted in ~ts enbrety and the following language ~nserted in heu thereof "Th~s Section governs any and all d~sputes, disagreements, claims or controversies between the parties ans~ng out of or relating to this Agreement or its breach (the "D~sputed Matter") Except for the matters specified ~n secbon D 0), 0~), and (l~l), below, all Disputed Matters shall be submitted to the following dtspute resolubon process (A) Internal Mediation F~rst the Disputed Matter shall be referred jointly to Customer's and J D Edwards' respective V~ce Pras~dents w~th operating authority over the D~sputed Matter or such other senior executives as may be mutually agreed upon by the parties from time to t~me if such executives do not agrae upon a decision wRhm ten (10) day after referral of the matter to them, the part~es shall proceed to the next stage of the d~spute resolution procedure (B) Outside Mediation Either party may, upon written nobce and w~th~n ten (10) days after the conclusion of Internal Mediation, elect to ubhze a non-binding rasolut~on procedure whereby each presents ~ts case at a heanng (the "Hearing") before a panel consisting of a sen~or executive of each of the part~es and a mutually acceptable neutral adwser If a party elects to utlhze outside med~abon the other party agrees to participate (I) The Heanng w~ll occur no more than ten (10) days after a party serves w~tten not~ce to use outside mediation Each party may be represented at the Heanng by lawyers The location of the Heanng w~ll be chosen by the party not in,bating the mediabon (~) If the matter cannot be resolved at such Heanng by the sen~or execubves, the neutral adviser may be asked to assist the sen~or executives in evaluabng the strengths and weaknesses of each party's pos~bon on the ments of the d~sputed matter Thereafter, the semor executives shall meet and try again to resolve the matter 0ii) if the matter cannot be resolved at such meeting, the parbes' only recourse ~s,bind~ng arbitrat~on as prowded for hera~n and the outside mediation proceedings will have been without prejudice to the legal pos~bon of e~ther party No arb~trabon may commence concerning the Disputed Matter unbl f~teen (15) days have elapsed from the first day of the Hearing (~v) The part~es shall each bear their raspecbve costs ~ncurred ~n connecbon with th~s procedure, except that they shall share equally the fees and expenses of the neutral adviser and the costs of the fac~hty for the Hearing (C) ArbRrat~on if the Disputed Matter ~s not submitted to outside mediation or, ~f subtnitted, cannot be resolved pursuant to outside mediation, then e~ther party may w~th~n ten (10) days after the completion of inside or outside med~abon, as appropriate, upon written notice, submit the D~sputed Matter to formal b~nd~ng arb~trabon (I) All d~sputes ~nvolv~ng th~s Agreement and not resolved ~n steps (1) and (2) above shall be determined under the law of the State of Texas and, except as set forth below, shall be submitted to a panel of arbitrators appointed as stipulated below and operating under the Un~form Arbltrabon Act as adopted ~n the State of Colorado and the procedural rules of the Amencen Arbitration Association Copyright 1998.3 D Edwards Wodd Source Company Edwards Confidential P~ge 3/~ 12/98 AddendumJ-298 0i) The location of the arbltrabon hearing w~ll be Dallas, Texas or Denver, Colorado and shall be chosen by the party not m~t~atlng the arbitration 0ii) The part~es will faithfully ab~de by and perform any award rendered by the arbitrators The written decision of the arbitrators shall be final, binding and converbble to a Court judgment ~n any appropriate junsd~cbon (iv) The Disputed Matter shall be submitted to a panel of three (3) arbitrators and such panel shall ~nclude only persons w~th computer software industry experience Each party shall choose one (1) arbitrator, and the third arbitrator shall be chosen by the two (2) arbitrators thus selected by the part~es (v) Customer and J D Edwards agree that any cost associated w~th the arb~tret~on, including the adm~mstrative fee of the American Arbltrabon Assoc~abon, any arbitrators' fees, any legal fees, and the fee for any stenographic record of any heanngs in th~s arb~tret~on w~ll be pa~d by the party not prevailing (D) Neither party will institute any acbon or proceeding against the other party in any court concermng any Disputed Matter other than 0) a request for ~njuncbve relief to halt wolat~ons of a party's obhgat~ons of confldent~ahty, (,) any acbon based upon or ans~ng out of a wolabon of J D Edwards Prepnetary Rights, (u0 any acbon based upon or ansmg out of a wolat~on of a party's copyright under T~tle 17 of the U S Code, or 0v) the entry of a judgment upon or the request for ~njunct~ve rehef ~n support of an award rendered by the arb~tretors pursuant to th~s secbon ' ARTICLE V, GENERAL, Section 9, TERM AND TERMINATION, is deleted ~n its entirety and the following language ~s msertad ~n heu thereof "(A) Effective Date This Agreement shall commence upon the date executed by J D Edwards and shall be a perpetual hcense as stated m Article II, Section I(A) (B) Customer may term~nata th~s Agreement at any time upon thirty (30) days written notice to J D Edwards, subject to subsection (D) and (E) below Subject to subsection (D) and Article IV, Section I(B), Customer may terminate Article III or IV of th~s Agreement w~thout termmabng the L~cense portmn of the Agreement (C) Terminabon Each party shall have the nght to terminate th~s Agreement and the hcense granted here~n as provided elsewhere ~n th~s Agreement or upon the occurrence of e~ther of the following events (an "Event of Default") 0) the other party violates any prowslon of this Agreement, or (u) the other party a terminates or suspends ~ts business, b becomes subject to any bankruptcy or insolvency proceeding under federal or state statute, c becomes ~nsolvent or subject to d~rect control by a trust, receiver or stm~lar authority, or d has wound up or hqu~dated, voluntanly or otherwise In addition to the above, Customer may, at ~ts opbon, and w~thout prejudice to any other remedy ~t may be enbtled to at law or ~n equity or otherwise under th~s Agreement, terminate th~s Agreement by g~ving at least thirty (30) days prior written notice thereof to J D Edwards (C) Not~ce and Opportumty to Cure Upon the occurrence of an Event of Default, a party shall dehver to the defaulting party a Nobce of Intent to Terminate that ~denbfles in detail the Event of Default If the Event of Default remains uncured for thirty (30) days, the party may term~nata th~s Agreement and the license granted here~n by dehvenng to the defaulting party a Notice of Terminabon that ~dentifles the effecbve date of the termination, which date shall not be less than thirty (30) days after the date of dehvery of the Nobce of Intent to Termmata copyright 1998 3 D Edwards World Source Company Page 4/7 1~/98 Addendum~.298 Edwards Confldentla~ (D) Procedure W~thln thirty (30) days after tarm~nabon of the hcense, Customer shall return to J D Edwards L~censed Products and all cop~es thereof or delete or destroy all cop~es of Lmens~d Products" (E) Upon termination of the License Agreement, the L~cense to use the Software shall be ~mmed~ately revoked and all L~censed Products and supporting matenals w~ll be returned to J D Edwards within ten (10) days, or destroyed and an affidawt supplied to J D Edwards certifying destruction ARTICLE V GENERAL, Section 10, PAYMENT, Paragraph (A), second sentence, shall be amended as follows "Customer agrees to pay ten percent (10%) of the L~cense Fees ~n the amount of $60,340 upon execubon of th~s Agreement, and any Attachment attendant to th~s Agreement, and the rema~ning ninety percent (90%) of the L~cense Fee ~n the amount $543,060 on or before November 22, 1999" ARTICLE V, GENERAL, Section 10, PAYMENT, Paragraph (B), ~s amended by the add~bon of the following "J D Edwards agrees that charges for all out-of-pocket travel and lodging expenses shall be made in accordance w~th J D Edwards pubhshed Travel Pohcy as prowded ~n Exhibit 1 Any changes to the rates presented m th~s Exhibit 1 shall be subject to rewew by Customer" ARTICLE V PAYMENT, Section '10(C) ~s deleted ~n its enbrety and the following language ~s inserted ~n lieu thereof "(C) Customer shall pay Maintenance fees ~n accordance w~th any Maintenance Attachment attendant to th~s Agreement and subsequently as an annual charge The first payment shall be due at the exp~rabon of the Initial Maintenance Per~od If Customer fa~ls to remit Ma~ntanance fees, J D Edwards will have no duty to prowde the Maintenance servmes specified under Article IV" ARTICLE V GENERAL, Section '10, PAYMENT, Paragraph (D) is deleted in ~ts enbrety ARTICLE ~V GENERAL, Section 13, General, Paragraph (D), 1st sentence, ~s amended as follows Change "State of Colorado" to "State of Texas" ARTICLE V GENERAL, Section 13, General, Paragraph (E) ~s deleted ~n its entirety ARTICLE V, GENERAL, Section t3, GENERAL, Paragraph (I) ~s deleted ~n its enbrety and the follow~ng lenguage inserted m heu thereof "Neither Customer nor J D Edwards shall assign or otherwise transfer any right of ~ntarest ~n th~s Agreement, tn the System, or any of components of the System, m whole or ~n part, to 12~98 Addenduml298 Copyright 1998 3 D Edwards Wodd Source Company Page 5/7 3 D Edwards Confidential anyone, ~nclud~ng any parent, subsidiaries, affihated enbhes or third part~es, or as part of the sale of any port,on of ~ts bus~ness, or pursuant to any merger, consohdabon or reorgamzabon including by operabon of law, w~thout the other party's prior wr*tten consent Such consent shall not be unreasonably w~thheld" ARTICLE V, GENERAL, Section 13, GENERAL, Paragraph (M) ~s amended by the add,ben of the following new language at the end of the Paragraph "J D Edwards and Customer acknowledge that Customer is a pubhc entity and may be required to d~sclose the contents of th~s Agreement as a result of a Pubhc Records Request Customer may d~sclose the contents of th~s Agreement ~n response to any such request which strictly follows the statutory requirements and procedures governing such request ARTICLE V, GENERAL, Section 13, GENERAL, ~s amended by the addlbon of the following new Paragraphs "(P) Remedies Except as stated in Artmle V, Section 5, no right or remedy granted hereto or reserved to the part~es ~s exclusive of any right or remedy here~n by law or equity prowded or permitted, but each shall be cumulative of every right or remedy g~ven hereunder (Q) Construction of Contract Both part~es have participated fully in the review and revision of th~s Agreement Any rule of construction to the effect that ambiguities are to be resolved against the drafhng party shall not apply to the ~nterpretabon of th~s Agreement" "(R) Read and Understood Each party acknowledges that it has read and understands th;s Agreement and agrees to be bound by ~ts terms ATTACHMENT A/O, Note 3, last sentence is amended as follows For clanftoatlon, NOTWITHSTANDING THE WARRANTY CONTAINED IN THE AGREEMENT NO WARRANTY IS MADE FOR COMPUTER PROGRAMS GENERATED BY THE ONEWORLD TOOLKIT OR THE DEVELOPMENT ENVIRONMENT APPLICATION FOR WORLD SOFTWARE HOWEVER, THE STANDARD WARRANTY CONTAINED WITHIN THE AGREEMENT SHALL APPLY TO THE ONEWORLD TOOLKIT AND THE DEVELOPMENT ENVIRONMENT APLICATION FOR WORLD SOFTWARE THIS ADDENDUM, INCLUDING THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM Notwithstanding anything to the contrary In the Agreement, m the event of a confhct between the terms and cond~bons of th~s Addendum and those contained w~th~n the Agreement, the terms and cond~bons of th~s Addendum shall prevail All other terms and cond~bons remain unchanged and are rabfled hereby Copyright 1998 3 D Edwards World Source Company Page 6/7 ~.2/98 Addendum~.298 Edwards Confidential THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED AND EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF J D EDWARDS By executon, mgner cerbfles that mgner is authorized to execute th~s Agreement on beha f of Customer By execution, signer certifies that signer m authonzed to accept and execute th~s Agreement on behalf of J D Edwards Accepted by J D Edwards and effective as of i31~T ~ q !~lt~ V, cl~d~e"~;'['~G e ne tel Manag;r' (TMe) Arb~trabon agreed to by Attorney for J D Edwards CLtS'T~MER Mfchael~ Je~/ City Manager Arb~trabon agreed to by Att°r n:. ~Z~~/~ :[2/98 Addendum1298 Copyright 1998 ] D Edwards World Source Company Page 7/7 .] D Edwards Conflde.t~al EXHIBIT 1 J D EDWARDS RATES FOR REIMBURSABLE EXPENSES Effective July 1, 1998 MILEAGE Travel to and from Customer's s;te ~n J D Edwards' or J D Edwards' employee's or Authorized Afflhate's own vehicle(s) w~ll be reimbursed at the maximum rate allowed by the Internal Revenue Serwce HOTEL ACCOMMODATIONS if overnight lodging ~s required, hotel accommodations w~ll be reimbursable up to one hundred ten dollars ($110) per mght, plus apphcable taxes This rate ~s shghtl¥ h~gher m Hawa~h New York, Boston, Seattle, San Francisco and internationally MEAL ALLOWANCE If an overmght stay ~s required, a per d~em meal allowance of up to thirty dollars ($30) per day, per person ~s reimbursable w~th receipts This rate is shghtly h~gher ~n A{aska, Canada, Hawaii, New York, Puerto Rico and ~nternatlonally RENTAL VEHICLES If required, rental vehicles are reimbursable up to th~rt¥-mne dollars ($39 00) per day, plus gasoline TOLLS AND PARKING FEES All tolls and parking fees are reimbursable AIRFARE Round-trip, coach class a~rfare MISCELLANEOUS Reasonable misoellaneous expenses which are ~ncurred and which relate to Services performed by J D Edwards or ~ta Authorized Afflhates for Customer The above rates are subject to semi-annual adjustment each January 1 end July 1