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COMMERCE BUSINESS DAILY ISSUE OF SEPTEMBER 21,1995 PSA#1436National Institutes of Health, Division of Procurement, SPOB, 6120
Executive Blvd., Room 815, Rockville, MD 20892 70 -- WORDPERFECT MAINTENANCE UPGRADE SOL 263-95-Q(DQ)-1661 DUE 100495
POC Clara Kabore, Purchasing Agent, 301-402-3343. The contractor shall
provide the ODLan Support Center, National Institutes of Health (NIH),
Bethesda, Maryland with Wordperfect Maintenance. The maintenance shall
be equal to, or better than, the maintenance supplied by Softmart
Inc., 467 Creamery Way, Exton, Pennsylvania 19341-2549. The maintenance
shall include the following: Item Number 1a: Qty. 1260 Licenses., Desc.
Wordperfect Maintenance/Upgrade License, Cat. #WPCAPUSP001416.
ADDITIONAL TECHNICAL SALIENT CHARACTERISTICS: The contractor shall
automatically upgrade the license as soon as a new version is released
and shall provide for the electronic distribution of software, and
upgrades which shall result in reduced personnel support costs for
installation and maintenance of the software. The contractor shall also
provide Multi-Platform licenses which shall allow for easier migration
between computing platforms (E.G. A move from DOS to Windows or
Macintosh). PUBLIC HEALTH SERVICE ENTERPRISE License AGREEMENT CUSTOMER
ADVANTAGE PROGRAM (''CAP'') GENERAL TERMS AND CONDITIONS This Agreement
is made by and between Novell, Inc. (''Novell'') and Public Health
Service. 1. OWNERSHIP AND PROPRIETARY NATURE OF PROGRAMS Novell
represents that the software programs listed in Appendix 1 of this
Agreement (attached hereto and incorporated herein by this reference)
are proprietary products of Novell and are protected by copyright laws
and international treaty. It is expressly agreed that Novell retains
sole title to and ownership of these software products, and licensee
(as defined herein) hereby obtains only the rights to the use thereof
as set forth in this Agreement. II. DEFINITIONS: For purposes of this
Agreement, the following definitions shall apply: A. ''Software'': The
Novell software programs listed in Appendix 1, Part A. B.
''Licensee'': Public Health Service and its subsidiaries and divisions
in which Public Health Service holds controlling interest, and their
respective employees and individuals acting as consultants or
contractors within the Enterprise. On or before the date Public Health
Service signs this Agreement, Licensee shall supply Novell with a
lsting (including names and addresses) of all subsidiaries and
divisions participating in this Agreement. C. ''Enterprise'': The
business operation of the Licensee, including its facilities and
offices. D. ''Effective Date'': The effective date of this Agreement
shall be the date of execution of the Agreement by Novell. E. ''In
Use'' or ''Use'': For a single-user computer or workstation not
attached to a network, the Software is considered In Use or at Use
(thus requiring a license) when any portion of the software is either
loaded in memory or virtual memory (defined as ''Loaded'') or stored on
a hard disk or other storage device (defined as ''Stored''). For
single-user computers or workstations attached to a network, the
quantity of the Software In Use or at Use (other than in the case of
WordPerfect office) is considered to be the greater of (1) the maximum
number of computers on which Software is loaded at any one time, or
(11) the maximum number of computer on which the Software is Stored. On
a multi-user computer, the quantity of the Software In Use or at Use
(other than in the case of WordPerfect Office) is considered to be the
maximum number of sessions executed at any one time. In the case of
WordPerfect Office, if it is used on computers or workstations attached
to a network or on a multi-user computer, Licensee must obtain a
license of each ''mailbox'' created and maintained. A ''mailbox'' is a
message database created for an individual user of WordPerfect Office
or a group of users sharing a message database. F. ''Upgrade'': A
revised version of the Software, with a version number change,
immediately to either the right or left of the decimal (e.g. WP DOS 5.1
to WP DOS 6.0, WPWin 5.1 to WPWin 5.2, or WPMac 2.1.1). G. ''Interim
Release'': A revised version of the Software, without a version number
change immediately to the right or left of the decimal (note under the
Macintosh numbering system, an interim release will be reflected by a
second decimal and an additional digit., e.g. WPMac 2.0 to WPMac
2.1.1). H. ''Multi-Platform License'': A license to use equivalent
versions of the Software on multiple operating system platforms as set
forth from time to time by Novell. Current information is provided in
the Multi-Platform License Information Table. I. ''Multi-Lingual
License'': A license to use any or allequivalent supported language
versions of the Software in support of a single user on one machine at
any one time. The Multi-Lingual Suggested Retail Pricing is set forth
in Appendix II (attached hereto and incorporated herein by this
reference). III GRANT OF LICENSE/LICENSE LIMITATIONS A. Grant of
Rights: Subject to Licensee's compliance with the terms of this
Agreement, Novell grants Licensee the following non-exclusive and
non-transferrable rights to: 1. Use one or more copies of the Software
within the Enterprise, in as many total copies at any one time as are
authorized under the terms herein. 2. Create copies of the Software as
Licensee deems necessary for use within the Enterprise in as many total
copies as are authorized under the terms herein. 3. Distribute within
the Enterprise either directly or indirectly through Licensee's
authorized agent electronic copies of the Software. 4. Utilize the
Multi-Platform License for the Software. 5. Utilize the Multi-Platform
License for the Software (if so purchased pursuant to the terms of
Appendix II). 6. Make copies of the documentation in support of the
authorized use of the Software. 7. Create such archival copies of the
Software as Licensee deems necessary and reasonable in support of the
authorized use of the Software. 8. For each copy of the Software
authorized to be in Use within the Enterprise under this Agreement
create an additional copy of the Software for Use on a portable
computer or other computer outside of Licensee's premises or facility,
as long as the additional copy created under this provision is never
loaded at the same time the Software is loaded on the primary computer.
This licensing provision does not apply if the Software has been
obtained under Novell's educational or charitable institution pricing
programs. 9. Install evaluation copies (60 days per product) of any
Novell product that is available on a CAP CD- ROM as Licensee deems
reasonably necessary. 10. Purchase licenses for the Software at the
scheduled prices set forth in Parts A and B of Appendix I and Appendix
II. B. License Limitations. Notwithstanding anything to the contrary
set forth herein. Licensee shall not: (1) rent or lease the Software or
otherwise transfer the Software without the written consent of Novell:
(11) decompile, disassemble, everse engineer, or create derivative
works from the Software: or (III) copy, distribute or use the Software
in a manner inconsistent with the intent of this Agreement. Novell
shall make available information concerning the Software which Licensee
is entitled by law to receive for interoperability purposes and which
could otherwise only be obtained by decompiling or disassembling the
Software. C. Copyright and License Compliance: By complying with the
terms and conditions of this Agreement, including without limitation
the reporting and licensing obligations set forth herein. Licensee
shall at all times during the term hereof be deemed to be in compliance
with applicable copyright laws and licensing provisions which govern
the use of the Software. IV. LICENSE REPORTS, CERTIFICATION & PAYMENT
A. Quarterly Reports: Within fifteen (15) days after the end of each
calendar quarter. Licensee shall provide to Novell a single report of,
(1) the number of any additional copies of Software In Use within the
Enterprise during the quarter, (11) evidence of the purchase of
sufficient licenses to support the reported level of Use, and (111) any
changes to the listing of subsidiaries or divisions participating in
this Agreement. At such time as Licensee reports a quantity of licenses
that results in a price category change under Part A of Appendix I.
Novell shall notify Licensee of the price change which shall be
effective ten (10) business days after receipt of Licensee's quarterly
report. B. Annual Summary and Certification: Accompanying the fourth
quarter report shall be a summary of Licensee's maximum Use of the
Software during the prior four quarters and a certification by an
authorized representative of Licensee that sufficient licenses have
been purchased t support the maximum Use during the previous year. C.
Form of Reports: All reports and information required under this
Agreement shall be submitted in a form specified by Novell. D. Use of
Agent: If Licensee wishes to engage a reseller as a third party agent
to assist Licensee in complying with its obligations under this
Section, including assistance with the invoicing and payment process,
Licensee shall first obtain approval from Novell and shall in any event
remain fully responsible to Novell for the complete performance of all
of Licensee's obligations herein. V. CAP MINTENANCE AND PREMIUM
SUPPORT (optional Provisions) Upon Licensee's execution of Part C of
Appendix I, and subject to Licensee's compliance with the terms and
conditions of this Agreement, including the payment and performance
obligations set forth in Part C. Novell shall provide CAP Maintenance
to Licensee for the Software as follows: A. Novell shall provide master
copies of the Software covered by CAP Maintenance. B. Licensee shall
have the right to create copies of Upgrade of the Software to replace
copies of prior releases of the Software up to the number of licenses
for which maintenance has been purchased. C. Licensee shall be
authorized to distribute the Software as permitted under Section III
above in as many total copies as are authorized under CAP Maintenance.
D. Licensee shall be entitled to receive the maintenance services set
forth in Appendix I, Part C. E. Premium Support: Licensee may purchase
on a preferred basis the large account support benefits offered under
Novell's Platinum, Gold or Silver Support Programs. Contact Novell for
more information on available terms and conditions. VI. INSPECTION
RIGHT If Novell has reason to believe that Licensee is not in
compliance with the licensing or reporting provisions of this
Agreement. Novell may at its own expense and upon not less than
forty-eight (48) hours prior to written notice, audit Licensee's Use of
the Software. If the audit shows that Licensee has understated its Use
of the Software. Licensee shall immediately purchase sufficient
licenses to support the actual Use. If License has understated its Use
by more than five percent (5%), Licensee shall also pay the reasonable
expenses of the audit. Licensee shall maintain adequate records
evidencing its Use and licensing of the Software during the term of
this Agreement and until two years after termination or expiration
hereof. VII. TERM/TERMINATION A. Initial Term: The initial term of this
Agreement is 1 year and may be renewed thereafter upon mutual written
agreement signed by both parties. B. Event of Breach: In the event of
breach by either party, this Agreement may be terminated by the non-
breaching party giving the other party thirty (30) days written notice
of termination during which time the breach may be cured. If at the
end of said notice period the breach is not cured, this Agreement shall
terminate without further notice. C. Efect of Termination or
Expiration: Within thirty (30) days following termination or expiration
of this Agreement, Licensee shall (I) submit a summary of Licensee's
Use of the Software since the end of the last calendar quarter, (II)
submit a summary of the licenses obtained during the previous four
calendar quarters, (III) obtain sufficient licenses to support the
actual Use level, and (IV) provide a certification of compliance with
the licensing provisions of this Agreement as set forth above in
Subsection IV.B. Upon termination or expiration of this Agreement,
Licensee's rights under paragraphs 2, 3, 4, 5, 6, 9, and 10 in
Subsection III. A., and under Section V. if any, shall immediately
expire. D. Remedies: Nothing in this Agreement is intended to waive or
limit any remedies available to Novell at law or in equity, including
without limitation any remedies available under U.S. copyright law.
VIII. WARRANTY/LIABILITY LIMITATION/SUPPORT A. Limited
Warranty/Liability Limitation: THE SOFTWARE IS LICENSED AS Is. IF FOR
ANY REASON LICENSEE IS DISSATISFIED WITH THE SOFTWARE, LICENSEE MAY
RETURN The SOFTWARE WITHIN 90 DAYS OF THE END OF THE CALENDAR QUARTER
In WHICH THE SOFTWARE WAS PURCHASED TO LICENSEE'S RESELLER Or TO NOVELL
FOR A REFUND. IF THE SOFTWARE IS RETURNED TO NOVELL THE AMOUNT Of THE
REFUND WILL BE THE CAP SUGGESTED RETAIL LESS A 20% TRANSACTION FEE. If
LICENSEE PURCHASES DEFECTIVE MEDIA OR MATERIALS RELATING To THE
SOFTWARE, LICENSEE MAY RETURN THEM TO NOVELL WITHIN 90 DAYS Of THE DATE
OF PURCHASE AND THEY WILL BE REPLACED AT No CHARGE. THESE WARRANTIES
ARE IN LIEU OF ANY OTHER WARRANTIES EXPRESS Or IMPLIED, INCLUDING THE
IMPLIED WARRANTIES Of MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. In NO EVENT WILL NOVELL BE LIABLE TO LICENSEE FOR DAMAGES,
INCLUDING ANY LOSS Of PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT Of LICENSEE'S USE OF OR INABILITY TO
USE THE SOFTWARE. EVEN If NOVELL OR AN AUTHORIZED NOVELL
REPRESENTATIVE HAS BEEN ADVISED Or THE POSSIBILITY OF SUCH DAMAGES. B.
Support: Novell will provide free ''Classic Service'' end user support
(toll charges may apply) on all current versions of the Software. If
novell generally releases an upgrade, such support shall continue on
the previous version for a period of one (1) year after the date of
such release. Nvell will address technical support requests on a
reasonable effort basis only and may not be able to resolve all
problems or requests. Novell agrees to support the Software only if it
is used under operating conditions, and in conjunction with hardware
systems, components, and software operating systems for which it was
designed. IX. This section applies if the Software and any accompanying
materials are purchased by or for the benefit of the Government of the
United States of America. The Software and any accompanying materials
are provided with Restricted Rights. Use duplication or disclosure by
the U.S. Government is subject to restrictions as set forth in
subparagraph (c)(I)(II) of The Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013, or subparagraphs (c)(1) and (2)
of the Commercial Computer Software-Restricted Rights at 48 CFR
52.227-19, as applicable. Contractor/manufacturer is Novell with
offices at 1555 North Technology Way, Orem, Utah. X. MISCELLANEOUS A.
Modifications/Amendments: Subsection VIII.B., Parts A and B and Subpart
2 of Part C of Appendix I and Appendix II may be modified by Novell
upon 120 days prior written notice. All other modifications require a
mutual written agreement signed by both parties. B. Superseding
Agreement: This agreement is the entire agreement between the parties
with respect to its subject matter, and supersedes any prior agreement
(written or oral) between the parties related thereto. During the term
hereof, this Agreement shall govern Licensee's Use of all Software (as
defined herein), wherever and however lawfully acquired. Following
termination or expiration hereof for any reason. Licensee's continued
use of the Software shall, in the absence of any successor agreement,
be governed together with any applicable Novell (or former WordPerfect
License lawfully obtained by the Licensee from tine to time, whether
before, during or after the term hereof. C. Governing Law: Unless the
laws of the state or country of Licensee's domicile require otherwise,
this Agreement shall be governed be the laws of the State of Utah and
applicable federal (U.S.) laws. D. severability: The inability to
enforce any provision hereof shall not affect the right to enforce any
other provision, provided, however, that if any material element of
this Agreement is found to be unenforceable, this Ageement may be
terminated by the party attempting to enforce such element. E. Binding
Effect/Assignment: This Agreement is binding upon the parties
respective representatives, successors, and assigns, however, Licensee
shall not assign this Agreement without the prior written consent of
Novell. F. Survival: The provisions of Sections III.B., VI, VIII.A., IX
and X shall survive termination or expiration of this Agreement. G.
Taxes: Licensee shall be responsible for and pay all applicable sales,
use, property, value-added, and other federal, state, or local taxes
arising out of this Agreement (other than taxes imposed on the net
income of WPCorp). Upon execution of this Agreement, Licensee shall
provide tax exemption certificates from the appropriate tax
authorities, if applicable. H. Legal Status: Public Health Service
warrants that it is a corporation organized and existing under
applicable law. For purposes hereof, ''corporation'' may refer to a
municipal or quasimunicipal corporation. (0262) Loren Data Corp. http://www.ld.com (SYN# 0238 19950920\70-0001.SOL)
70 - General Purpose ADP Equipment Software, Supplies and Support Eq. Index Page
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