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ZOLL Data Systems, Inc. Sales Order #:
<br />MASTER SOFTWARE LICENSE AGREEMENT
<br />Terms and Conditions
<br />ZOLL shall provide Software and perform Maintenance Services and Services from time to time pursuant to this MSLA and any subsequent SOW executed by both parties. Each
<br />subsequent SOW executed by the parties will include, and incorporate therein, the applicable terms and conditions of this MSLA. Except for the execution of SOWS for Services, any
<br />different or additional terms of a related purchase order, confirmation or similar form signed by the parties after the date hereof shall have no force or effect.
<br />1. DEFINITIONS.
<br />1.1 "Deployment Date" means the date upon which the deployment of the Software is complete and the Software is able to function as described in the Documentation.
<br />1.2 "Documentation" means the user's manuals provided to Customer along with the Software.
<br />1.3 "Executable Code" means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
<br />1.4 "Fees" means, collectively, the Software Fees, the Maintenance Fees and the Services Fees.
<br />1.5 "Initial Order" means the written, mutually executed document preceding these terms and conditions.
<br />1.6 "Intellectual Property Rights" means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract
<br />rights and other proprietary rights.
<br />1.7 "Maintenance Fees" means ZOLL's then - current standard, annual fees for the Maintenance Services.
<br />1.8 "Maintenance Services" means those maintenance and support services to be provided by ZOLL to Customer with respect to the Software pursuant to Section4 below.
<br />1.9 "Order Form" means a written document mutually agreed to and signed by the parties and made apart of this MSLA, setting forth such additional Software and /or user seats to be
<br />provided to Customer under the terms of this MSLA during the Term.
<br />1.10 "Service Fees" means the fees for the provision of Services set forth in this MSLA and on subsequent applicable SOWS executed by the parties.
<br />1.11 "Services" means those installations, professional and other services and assistance to be provided by ZOLL or its subcontractors to Customer as described in this MSLA and the
<br />City's RFP as well as any subsequent applicable SOW executed by the parties.
<br />1.12 "Software" means the computer software program or programs described in the Initial Order and any Order Form, as well as any modified, updated or enhanced versions of such
<br />programs that ZOLL may provide to Customer pursuant to the Services and /or Maintenance Services.
<br />1.13 "Software Fees" means ZOLL's then - current standard fees for the license of Software set forth in the Initial Order or any subsequent Order Form.
<br />1.14 "Source Code" means the human - readable version of a software program that can be compiled into Executable Code.
<br />1.15 "SOW" means the engagement plan for Services as defined in the City's RFP to be performed by ZOLL. All subsequent SOW's must be agreed to and signed by both parties
<br />before becoming effective.
<br />2. LICENSE GRANT, RESTRICTIONS AND OWNERSHIP.
<br />2.1 Software License Grant. Subject to the terms and conditions of this MSLA, ZOLL grants to Customer a perpetual (subject to Section11.2), non - exclusive, non - transferable
<br />license to: (a)install and use the Software in Executable Code form only on Licensee's servers and workstations, only for Licensee's internal business purposes, and subject to any
<br />limitations specified on the Initial Order; (b) make 1 copy of the Software solely for backup or archival purposes; and (c)copy and reproduce the Documentation provided to Licensee
<br />solely for the purposes of facilitating Licensee's use of the Software.
<br />2.2 Restrictions On Use. Except as expressly permitted by this MSLA, Customer shall not, and shall not permit any third parry, to: (a)reproduce, modify, adapt, alter, translate, or
<br />create derivative works from the Software or the Documentation; (b)merge the Software with other software; (c)sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or
<br />otherwise transfer the Software or the Documentation to any third party; (d)rcverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Software,
<br />except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (e)remove, alter, cover or obfuscate any copyright notices or other
<br />proprietary rights notices included in the Software; or (f)otherwise use or copy the Software except as expressly permitted under Section2.1.
<br />2.3 Proprietary Rights. The Software and Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of ZOLL and its suppliers. All rights in
<br />and to the Software not expressly granted to Customer in this MSLA are reserved by ZOLL and its suppliers.
<br />3. DELIVERY. ZOLL shall deliver the Software and Documentation FOB the City of San Marcos, Information Technology Department, 630 E. Hopkins, San Marcos, Texas.
<br />4. SERVICES. If Customer has executed a SOW subsequent to the execution of this MSLA for the performance of Services, then subject to payment by Customer of the Service
<br />Fees in accordance with any payment schedule agreed to by the parties, ZOLL will use commercially reasonable efforts to perform the Services in accordance with such SOW and the
<br />terms ofExhibit B. ZOLL shall only be liable for failure to meet time frames or completion dates if such failure is due solely to ZOLL's negligence, and its liability will be limited to the
<br />Service Fees paid for the deficient Services. If Customer fails to schedule installation within 6 months from the Effective Date, or postpones or cancels a scheduled installation with less
<br />than 30 days notice, ZOLL may charge, and Customer shall pay, an additional installation fee plus any additional costs incurred as a result. If either party proposes in writing a change
<br />to the scope or timing of the Services, the other party will reasonably and in good faith consider and discuss with the proposing party the proposed change and a revised estimate of the
<br />costs for such change. If Customer elects to have ZOLL develop custom software, Customer agrees that the functionality provided by the custom software is not essential to Customer's
<br />use of the Software.
<br />5. MAINTENANCE SERVICES. At its option, Customer may procure Maintenance Services from ZOLL on an annual basis. Subject to Customer's payment of all applicable
<br />Maintenance Fees, ZOLL shall provide Customer with those Maintenance Services described in Exhibit A. ZOLL will provide the Maintenance Services only for the most current
<br />release and the two immediately preceding major releases of the Software. ZOLL may elect to cease supporting a platform upon 6 months notice to Customer.
<br />6. FEES AND PAYMENT.
<br />6.1 Software Fees. Customer will pay to ZOLL the Software Fees set forth in the Initial Order and any Order Form in accordance with the terms and conditions specified on the order.
<br />Except as expressly provided in this MSLA, all Software Fees are non - refundable.
<br />6.2 Maintenance Fees. If Customer elects to procure Maintenance Services from ZOLL, then 60 days following the Deployment Date, ZOLL will invoice Customer for Maintenance
<br />Services to commence on the date ofexpimtion ofthe Software Warranty Period (as defined in Section? below). ZOLL will invoice Customer on an annual basis thereafter for all further
<br />Maintenance Fees unless Customer notifies ZOLL within 30 days of the end of the then - current Maintenance Services period. ZOLL will have no obligation to provide Maintenance
<br />Services to Customer if any invoice issued under this Section 6.2 is past due. If Customer elects to discontinue Maintenance Services at anytime, to reinstate Maintenance Services and
<br />receive the applicable updates and new releases, Customer must pay the Maintenance Fees for all time periods missed. Failure of the Customer to renew support services will not void
<br />the remaining terms of this MSLA and the Customer may resume support services by bring support service payments current. In accordance with this Section. All Maintenance Fees are
<br />non - refundable.
<br />6.3 Service Fees and Expenses. Customer will pay all Service Fees to ZOLL in accordance with the payment schedule and terms set forth in this MSLA and any subsequent
<br />applicable SOW. Unless otherwise provided in the applicable SOW Customer will reimburse ZOLL for all reasonable out -of- pocket expenses (including travel and accommodation
<br />expenses) incurred by ZOLL in providing the Services.
<br />6.4 Payment Terms. Unless otherwise expressly provided in this MSLA or an applicable SOW, Customer will pay ZOLL all amounts due under this MSLA within 30 days after the
<br />City's receipt of the invoice, pending resolution of any disputed amounts. All payments must be made in U.S. dollars, unless otherwise agreed by the parties. Any amounts not paid
<br />when due will accrue interest at the lesser of 1 %% per month or the maximum rate permitted by applicable law from the due date until paid. Any amounts not paid when due may result
<br />in the forfeiture of any discounts offered on the Effective Date.
<br />6.5 Taxes. Fees exclude, and Customer will make all payments of the Fees to ZOLL free and clear of, all applicable sales, use, and other taxes and all applicable export and
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