HomeMy WebLinkAboutCerulean Technology/CCC CARNIEL/CLFIY CONiN. CTR Fax:3175712585 liar 26 '01 15:03 P.02/03
) C2z,/ .(2/.Oz/"AppROVI!O, AS1'
· FOIM
ADDENDUM TO END USER BETA EVALUATION
AND NON-DISCLOSURE AGREEMENT
WHEREAS, on or about Isdai',;h 1_.8, 2001, Cerulean Technology, Inc., a Massachusetts cc~rporalion
("Cerulean") and the City of Carreel, Indiana. by and through its Board of Public Works and Safer}
("City"), entered into that certain "End User Beta Evaluation and Non-Disclosure/,grccment
("Agrcemex~t"), attached hereto and marked as ~xhibit A.
WIiEREAS. the parties to the Agreement now wish to amend same as set forth hcrcin-
NOX~'. THEREFORE, the parties agree as follows:
The foregoing Recitals are incorporated heroin by this reference.
2, Notwithstanding the terms and conditions contained in the Agreement and particularly.
although not exclusively, paragraphs 5 and 8 thereof. the parties hereto agree that the
Agreement and this Addendure constitute disclosable public records, and that thc..~_____~ City
release to the public documents and information which may be deemed by Cert lean Io he
"confidential". "secret" or "trade secrets" pursuant to the Indiana Public ~cccss To
P, ecords Act, IC 5-14-3, as the sin'no may be amended from time to time. or pursuant to
court order. Te~City agrees to notify Cerulean Dcforc releasing such documents
information in this manner.
3. in addition to the terms and conditions set forth in paragraph 10 of the AgreemenL
Cerulean shall engage in no advertising, sales promotion or printing of other materials
identifying City or this Agreement without the prior written review and consent c,f City.
4. Cerulean agrees that it and all of its officers, employees, agents, contr;:.dors
subcontractors shall comply with all existing and future laws of the United State.~;. the
of Indiana and City prohibiting discrimination against any employee. ap~fiicant f~r
employment or other person in the provision of any Goods and Services provided b_v this
Agreement with respect to their hire. tenure. terms. conditions and prl, ileScs
employment and any other matter related to their employtnent or subcontracim ;, because:
of race, religion, color, sex. handicap, national origin, ancestry. age, disabled vch.'ran status
and/or Vietnam era veteran status.
5. All od~er provisions contained in the Agreement not specifically amended or m..xiificd b_~
this Addendure shall be unaffected thereby and shall rcnaain in full force ;tnd ct'l~ct
pursuant to the terms thereof.
CARMEL/CLAY COMN. CTR Fax:5175712585
Man 26 "01 15:04 P. 03/03
6- This Addendure shall become effective as of the date it is last executed by a pal-ty hereto
and shall thereafter remain in effect as long as the Agreement remains in elferr, unless
earlier modified in writing by the parties hereto,
IN WITNESS THEREOF, the parties have caused this Addendure to be cxccutged by the ir duly
authorized representatives on the date(s) shown below,
CITY OF CARMEL, iNDIANA
By and through its Board of Public
Works and Safety
CERULEAN TECHNOLOGY, IN(,
.lamese~ramard, Presiding Offic~
Date:
Billy Walker, Member
Dater
ATTE~N
BY:
Printed Name
Title
FID/SSN:
2
CERULEAN TECHNOLOGY, INC.
End User Beta Evaluation and Non-Disclosure Agreement
(January 2000 version)
THIS END USER BETA EVALUATION AND NON-DISCLOSURE AGREEMENT (the "Agreement") dated as of March 8,
2001. between CERULEAN TECHNOLOGY, INCORPORATED, a corporation organized under the laws of the State of
Delaware whose principal place of business is located at 300 Nickerson Road, Marlborough MA, 01752 (hereinafi:er referred to
as "Cerulean") and Carreel Clay Communications Center. whose principal place of business is located at 31 First Avenue. NW..
Carmel. IN 46302, (hereinafter referred to as "END USER").
WHEREAS, Cerulean and END USER desire to enter into a non-exclusive arrangement to install a Beta version of a Cerulean
product (s) (the "Pruduct(s)") at the END USER'S site for purposes of testing, analysis and evaluation; and
WHEREAS, pursuant to a separate agreement, END USER is a current end user of Cerulean Products;
WHEREAS, each party has determined that it will be beneficial to each of them to enter into a definitive agreement to test,
analyze, and evaluate the Product(s); and
WHEREAS, END USER wishes to license, take delivery of, and use the Product(s), subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties as hereinafter set forth, Cerulean and
END USER agree as follows:
1. GRANT OF LICENSE
1.1
Subject to the terms and conditions set forth in this Agreement, Cerulean hereby grants to END USER a
personal, nontransferable, nonexclusive license to use the Product(s) exclusively for purposes of testing and
evaluation of the Product(s).
2. USE OF MATERIALS AND SOFTWARE
2.1
2.2
"Software" shall include without limitation all machine and human readable programs and all supporting
documentation without limitation provided to END USER by Cerulean as part of, or with respect to, the Beta
Evaluation Product(s).
This license allows END USER to install each copy of the Product(s) provided by Cerulean under this
Agreement on a single server located at END USER's site. END USER agrees not to reverse compile or
disassemble the Product(s) and will not either itself or permit others to create, by reverse compiling or
disassembling or otherwise, the source programs or any part thereof from the object programs or from other
information made available by Cerulean, whether oral, written, tangible or intangible. END USER will not
transfer, sell, assign, or otherwise convey the Product(s) to another party without Cerulean's prior written
consent. Software listed on Schedule A may be used only on the Beta Evaluation Product(s) server specified in
Schedule A. END USER may not copy, sublicense, transfer, or assign the Beta Evaluation Product(s) or any
portion or copy thereof, to any third party nor copy or use the Beta Evaluation Product(s) other than for the
express purpose of this Agreement.
3. TERM
This Agreement shall take effect on the date specified above (the "Effective Date") and unless modified or ea~ier terminated
shall continue for a period of two (2) months from the date hereof. The termination or extension of this Agreement shall not
affect the obligations of either party for any existing Order issued under any other Agreement, and any other Order(s) shall
continue in effect as though this Agreement had not been signed, terminated or extended, unless otherwise agreed by the parties.
This Agreement may be extended for an additional two (2) month period(s) by mutual consent of the parties provided END
USER and Cerulean mutually agree to such intention in writing at least thirty (30) days prior to the end of the current term.
For use by Cerulean Technology, Inc. Direct Sales
END USER BETA EVALUATION AND
NONDISCLOSURE AGREEMENT
EXI4 I~ITnA-n
SC6Pi
4.1
4.2
Cerulean's present intentions are to develop a commercial product from the Beta Evaluation Products. It is
nevertheless agreed that Cerulean does not commit, promise, or agree to finally release and/or offer for sale the
Beta Evaluation Product(s), whether or not perfected, and that Cerulean has the right to unilaterally cease and
abandon the Beta Evaluation Product(s) project at any time without any obligation or liability whatsoever to
END USER.
END USER shall have no obligation or commitment with respect to the purchase of the Beta Evaluation
Product(s), whether perfected or not, from Cerulean. Cerulean makes no commitment or obligation to END
USER as to any consideration for END USER's entering into this Agreement.
5. NONDISCLOSURE BY END USER
5.1
END USER acknowledges that the Product(s) is a proprietary product and process of Cerulean that embodies
certain valuable trade secrets and other proprietary or confidential information; that Cerulean has rights of
copyright therein; that Cerulean's rights extend to both the intellectual processes and to the actual expressions
and articulations contained in the Product(s); and that no fights of ownership or title to the intellectual propeay
in the Product(s) is transferred to the END USER. END USER may not remove from or deface any decal or
imprint on the Product(s) naming Cerulean or any other party as propdetur thereof or do any other act
inconsistent with such proprietorship. All improvements or revisions to the Product(s) made or conceived by
Cerulean or its agents or employees or by END USER in the course of use of the Product(s) under this
Agreement are the property of Cerulean. User agrees that END USER will not use for its own benefit or
disclose to or use for the benefit of any other person, except as permitted under this Agreement, any of such
property without Cerulean's prior written consent.
5.2
END USER agrees to keep any information concerning the Product(s), including status, function and
performance, confidential. END USER agrees not to disclose that it is a pre-release site, nor disclose any
information with regard to the Product(s), without the prior written consent of Cerulean.
5.3
All of the software programs delivered to END USER by Cerulean for the Beta Evaluation Product(s) or for use
in connection therewith, shall remain the sole and exclusive property of Cerulean or the copyright holder and
shall be returned to Cerulean within three (3) business days after receipt of written notice from Cerulean to
terminate this agreement as specified in Sections 8.1 and 8.2 of this Agreement, or upon request by Cerulean.
All reports, designs, specifications, and other materials and all fights in all media made and/or developed under
this Agreement directed to enhancement of the Beta Evaluation Products, whether prepared by Cerulean or
END USER during the course of or as a result of this Agreement, shall be the exclusive property of Cerulean
throughout the world; and all such reports, designs, specifications or other materials and all media shall be kept
confidential by END USER. In addition, Cerulean shall have the sole and exclusive right to register copyright
of such materials in its own name in any and all countries and to obtain renewals and manufacture, reproduce,
publish, distribute and sell such media.
6. DEVELOPMENT - - TITLE/SUPPORT
6.1
The Beta Evaluation Product(s) at all times remain the sole and exclusive property of Cerulean or the copyright
holder. Cerulean or the copyfight holder also retains all title and interest therein subject only to the right of
END USER to use the Beta Evaluation Product(s) in accordance with this Agreement. The Beta Evaluation
Products shall be physically identified as being owned by Cerulean. END USER shall make no copies of the
manuals and/or documentation supplied with the Beta Evaluation Products.
6.2
The Beta Evaluation Product(s) shall be used only by END USER's employees and only in a proper and lawful
manner and for no purposes other than those for which it was designed.
6.3
In the event of malfunction or failure, END USER shall promptly notify Cerulean and make the software
available for return to Cerulean. END USER shall neither perform, nor attempt to perform, maintenance except
as expressly authorized by Cerulean.
6.4
END USER shall make no alteration, addition, or improvement to the Beta Evaluation Product(s) without the
prior consent of Cerulean. All shipping and in-transit insurance charges in connection with this Beta Evaluation
Product(s) use shall be borne by Cerulean. However, END USER shalI bear all risk-of-loss for damage to a
Beta Evaluation Product(s) after its tender to END USER by Cerulean and shall reimburse Cerulean for such
losses.
7. DISCLAIMER OF LIABILITY
7.1
EXCEPT AS SET FORTH IN THIS AGREEMENT, END USER RECOGNIZES THAT
THE BETA EVALUATION PRODUCT(S) TO BE DELIVERED HEREWITH ARE
PRERELEASE VERSIONS AND MAY HAVE DEFECTS OR DEFICIENCIES WHICH
CANNOT OR MAY NOT BE CORRECTED BY CERULEAN. THEREFORE, THE BETA
EVALUATION PRODUCTS ARE PROVIDED TO END USER ON AN "AS IS" BASIS,
IT BEiNG UNDERSTOOD THAT CERULEAN DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF
PRODUCT(S), APPLICATIONS, OR SERVICES FURNISHED HEREUNDER OR IN
CONNECTION HEREWITH. CERULEAN DISCLAIMS ALL IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE BETA EVALUATION PRODUCT(S), ITS USE, OPERATION OR
SUPPORT.
7.2
iN NO EVENT SHALL CERULEAN BE LIABLE FOR ANY SPECIAL, iNCIDENTAL,
THIRD PARTY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR THE
LOSS OF PROFIT, REVENUE, SOFTWARE OR DATA EVEN IF CERULEAN HAD
BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
iN NO EVENT SHALL CERULEAN'S LIABILITY OR ITS SUPPLIERS' LIABILITY
FOR DAMAGES OF ANY NATURE EXCEED THE PURCHASE PRICE OF THE
PRODUCTS, APPLICATIONS, OR SERVICES PROVIDED UNDER THESE TERMS.
8. NON-DISCLOSURE
8.1
Non-Disclosure of A~reements. Neither party will make any disclosure regarding the terms of this Agreement
or the business arrangements described herein without obtaining the prior written consent to the other party;
provided, however, that (i) the parties may communicate with Customers and Prospects to the extent
masonably required to perform hereunder (but will obtain prior approval of the other party hereto before
identifying such party in advertisements, mass mailings or general publicity); (ii) after notice to the other party,
each party will be permitted to make such disclosures as are required by legal or regulatory requirements
applicable to, and beyond the reasonable control of, the party; and (iii) either party may disclose the terms of
this Agreement and the business arrangements described herein to employees of their affiliates who have a need
to know, so long as such affiliate employees are advised of and agree to be bound by the provisions of this
Article.
8.2
Confidential Information. The parties recognize that in the course of performing this Agreement, both parties
have had and will continue to have access to certain confidential or proprietary information. belonging to the
other and each desires that any such confidential and proprietary information remain confidential. Each party
agrees that, both during the term hereof and for a period of three (3) years after the termination of this
Agreement each party will use the same means it uses to protect its own confidential proprietary information,
but in no event less than reasonable means, to prevent the disclosure and to protect the confidentiality of both
(i) written information received form the other party which is marked or identified as confidential, and (ii) oral
or visual information identified as confidential at the time of disclosure which is summarized in writing and
provided to the other party in such written form within twenty (20) days after such oral or visual disclosure
("Confidential Information"). Confidential Information does not include information that is (i) already known
by the recipient party without an obligation of confidentiality, (ii) publicly known or become publicly known
through no unauthorized act of the recipient party, (iii) rightfully received from a third party, (iv) independently
developed by the recipient party without use of the other party's Confidential Information, (v) disclosed
without similar restrictions to a third party by the party owning the Confidential Information, (vi) appreved by
the other party for disclosure, or (vii) required to be disclosed pursuant to a requirement of a governmental
agency or law so long as the disclosing party provides the other party with notice of such requirement prior to
any such disclosure.
Trade Secrets. The term "Trade Secrets" as used in this Agreement means Confidential Information that:
8.3.1 derives economic value, actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value from its disclosure or
use; and
8.3.2 is the subject ~f eff~rts that are reas~nab~e under the circumstances t~ maintain its secrets. The parties
agree that neither will use for any purpose whatsoever or disclose Trade Secrets of any party at any
time hereafter except as necessary for the performance of its duties under this Agreement or until such
Trade Secrets become generally available to the public by independent discovery or development or
publication. The rights of the parties to protection of their Trade Secrets in this Agreement are in
addition to the rights which the parties have under common or statutory law for the protection of Trade
Secrets.
8.4
Remedies. Each party acknowledges that the other would suffer irreparable damage in the event of any breach
of the provisions of this Article. Accordingly, in such event, a party will be entitled to temporary, preliminary
and final injunctive relief, as well as any other applicable remedies at law or in equity against the party who has
breached or threatened to breach this Article;
8.5
No Riohts Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights
by license or otherwise in any Confidential Information or Trade Secrets disclosed to the receiving party. All
Confidential Information and Trade Secrets shall remain the property of the disclosing party and shall be
returned by the receiving party to the disclosing party upon request. All notices, abstracts, memoranda, or other
documents prepared by receiving party which contain Confidential Information or Trade Secrets or any
discussion thereof, shall be destroyed or returned to the disclosing party upon written request. If the parties
hereto decide to enter into any licensing development or other arrangement regarding any Confidential
Information or Trade Secrets or present or future patent claims disclosed hereunder, it shall only be done on
the basis of a separate written agreement between them. No disclosure of any Confidential Information or
Trade Secrets hemunder shall be construed a public disclosure of such Confidential Information or Trade
Secrets by either party for any purpose whatsoever.
8.6
Limitation on Obligations. The fumishing of Confidential Information or Trade Secrets hereunder shall not
obligate either party to enter into any further agreement or negotiation with the other or to refrain from entering
into an agreement or negotiation with any other party.
9. TERMINATION
9.1 Termination.
9.1.1
9.1.2
9.1.3
This Agreement may be terminated by either party with or without cause by giving thirty (30) days prior
written notice. Upon material breach or default under this Agreement by either party, if the other party
gives notice of such breach or default and the same is not cured within thirty (30) days, then without
limitation of any other remedy available hereunder, the non-defaulting party may terminate this
Agreement immediately by delivery of a notice of termination simultaneously with the notice of default
or at any time thereafter. This Agreement may be immediately terminated by a party without prior
written notice in the event that the other party violates any of the conditions of Section 8.2 relating to the
Confidential Information, or a party shall have ceased doing business, been adjudged bankrupt or
insolvent, made an assignment for the benefit of creditors, and/or filed for a petition in bankruptcy or
reorganization.
Following expiration or termination of this Agreement, except for the obligations of the parties set forth
in Section 8.2 below, the parties will have no further obligation or responsibility to each other.
Upon termination of this Agreement, END USER will cause the immediate return to Cerulean of all
existing copies of all Product(s) delivered to END USER under this Agreement, accompanied by a
certification by an officer of END USER that the items so returned constitute all of the existing copies
(whole or partial) of the Product(s) and that END USER has not retained or disposed of any copies.
9.2
Survival of Obligations Upon Expiration of Term or Termination of Ac, reement.
9.2.1
9.2.2
All obligations of the parties arising hereunder and relating to any Beta Evaluation Product(s) existing on
the date of expiration or termination shall continue in full force and effect subsequent to and
notwithstanding the termination or expiration of this Agreement and shall in no way affect the fights and
obligations of Cerulean and END USER under any then-existing agreement or similar form of agreement
between the parties, except to the extent set forth therein.
All representations, warranties and covenants of the parties set forth in Section 5.1, Section 6.1 and
Article 8 shall survive the termination of this Agreement for a period of three (3) years.
"2
10. PUBLICITY
No advertising, sales promotion or printing of other materials by END USER identifying Cerulean or identifying this Agreement
in any manner will occur without the prior review and written consent of Cerulean.
11. GENERAL
11.1
11.2
Assignment. This Agreement is personal to each party hemto and neither may assign or otherwise transfer its
rights or delegate its duties hereunder without the prior written consent of the other, which consent shall not be
unreasonably withheld; provided, however, either party may upon written notice to the other assign any of its
rights or obligations hereunder to (i) an Affiliate of the assigning party or (ii) the purchaser of or successor in
interest to all or substantially all of the assigning party's assets unless (with respect to an assignment by END
USER) in the reasonable judgement of Cerulean the assignee is a competitor of Cerulean, in which case the
assignment by END USER shall not be valid or binding between the parties without Cerulean's prior written
consent.
Notices. Except as otherwise provided in this Agreement, all notices or other communications which are
required or permitted hereunder shall be in writing and shall be valid and sufficient if delivered by: a) registered
or certified mail, postage prepaid; b) hand delivery; c) ovemight courier prepaid; d) facsimile transmission
upon confirmation of receipt; or e) overnight courier as follows:
To Cerulean:
Cerulean Technology, Inc.
300 Nickerson Drive
Marlborough, Massachusetts 01752-4694
Attn: Tom Holier, VP, Finance and CFO
Phone: 508-460-4000
Fax:508-460-4099
To END USER:
11.3. Governing Law and Forum. This Agreement shall be govemed by the laws of the Commonwealth of
Massachusetts, excluding its conflict of laws rules.
12. ENTIRE AGREEMENT.
This Agreement, together with any attached Exhibits, Schedules or Amendments, constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the
parties hereto are expressly canoeled and/or superseded. Any modifications of this Agreement must be in writing and signed by
a duly authorized officer of both parties hemto.
IN WITNESS WHEREOF, the parties have caused this End User Beta Evaluation and NonDisclosure Agreement to be executed
by their duly authorized representatives on the date(s) shown below.
CERULEAN TECHNOLOGY, INC.
Name:
Title: V'?
Date:
CARMEL CLAY COMMUNICATIONS CENTER
By:(j~'END USE" '//LC~
Name:
Title:
Date:
Ol~lO0 '
SCHEDULE A
CERULEAN BETA EVALUATION PRODUCT(S)
1. SOFTWARE
· Beta Version of PacketCluster Patrol 4.3.1 Software;
· Beta Version of PacketCluster Rescue 4.3.1 Software
HARDWARE
· Use of existing on-site PacketCluster Server
DOCUMENTATION
· PacketCluster 4.3.1 Beta Release Notes
· PacketCluster 4.3.1 Beta Documentation
4. TRAINING:
· Training for PacketCluster Rescue Users will be given informally on-site at time of installation.
May 4, 2001
Mr. Tom Holier, VP
CERULEAN TECHNOLOGY, INC.
300 Nickerson Drive
Marlborough, Massachusetts 01752-4694
Dear Mr. Holler:
On April 18, 2001, the Board of Public Works and Safety approved a contract and addendure to
do business with your company. Enclosed is a fully executed copy of that Agreement for your
records.
If you have any questions or concerns, please do not hesitate to contact me at 317.571.2413.
Sincerely,
COPY
Carrie A. Gallagher
Deputy Clerk-Treasurer
Enclosure