AGENDA COVER MEMORANDUM Page 2C.M. #________ Date:__________crime solution and prosecutions. Funds are needed in Machinery and Equipment account.The Bode Technology Group, Inc. for DNA processing $22,690.00The Police department is working three (3) recent high profile homicide cases that have beenreviewed and it is determined that the investigative value of DNA analysis techniques and theDNA database search capabilities are important for case reconstruction. This powerful toolsupports law enforcement efforts in identifying suspects, convict the guilty, and exonerate theinnocent. Funds are needed in the contractual services account.Police Lap Top Docking Stations and printers $ 46,000.00The police vehicle equipment wiring, lap top docking stations, printers, and inverters had to bereplaced on approximately 100 vehicles throughout FY 2013. To complete this project, thedepartment requires funds to be re-allocated in an operating expense account to cover thepurchase of the last 45 printers, 30 docking stations and additional inverters and wiring.S.W.A.T. rifles for 20 team membersReplacement of the police department’s SWAT team rifles with one that provideS enhancedballistic performance and accuracy at greater distances. Current rifles are 15 years old and thedepartment only has 11 for a 20 member team. The new model rifle will be uniform with therifles carried by our snipers and patrol personnel and allow more efficient purchases ofammunition and training. Funds are currently available from budget line item for SWAT Tac 6Plus HP protective vests, which will not be needed due to additional year of expiration oncurrent vests.Travel and Training for Personnel Development $95,000The Chief of Police has committed to personnel development training and strategic planning inline with the mission of the City to provide visionary and creative governmental leadership. Thedepartment is focused on developing tomorrows leaders by creating a culture of participantswho are challenged to use the theories and strategies taught to increase the motivation,satisfaction and performance within their organization and to support organizational change.This includes train-the-trainer programs to develop our instructors.Contractual Services $25,000Various annual contractual services for hiring, training, and operational support required forcontinuing services.Police Building repairs and maintenance $43,700The Police Administration building at 600 Banyan Boulevard is now 20 years old and a facilitiesreview of immediate repairs and maintenance was done by the new Facilities Supervisor. Toaddress the most critical of needs and unanticipated repairs additional budget is required.Repairs that already occurred and were unfunded include removal of stored toxic chemicals($13,000), plumbing repairs ($6,700); Termite discovery, treatment, and replacement of gun railpanels ($11,500); Electrical ($4,600); Fire line and pump repairs ($2,200), offsite data wiringand equipment repairs ($3,800), and two additional first floor surveillance cameras ($1,900).Fiscal Note
AGENDA COVER MEMORANDUM Page 3C.M. #________ Date:__________Current Year:$276,890.00Annualized:Budgeted:Fully BudgetedUnbudgeted:Funding Source:OperatingComment: Budgeted funds are available from personnel services due to several vacanciesthroughout the fiscal year.Electronic Attachments:Click here for assistance with naming convention.Is this ACM related to a Grant? Yes NoOriginating Department - Approved by: Vincent Demasi on 08/02/201308/05/2013 Finance Department08/07/2013 City Attorney's Department08/07/2013 Asst. City Administrator08/07/2013 City AdministratorReturn to Agenda
RESOLUTION NO. 235-13 (F)Budget DetailA RESOLUTION OF THE CITY COMMISSION OF THE CITY OF WEST PALM BEACH,FLORIDA, AUTHORIZING THE APPROPRIATION OR TRANSFER OF CITY FUNDS INFISCAL YEAR 2012/13 IN ACCORDANCE WITH SECTION 4.03 OF THE CITY CHARTEROF THE CITY OF WEST PALM BEACH, FLORIDA, FOR THE PURPOSE OF AMENDINGTHE GENERAL FUND BUDGET FOR THE POLICE DEPARTMENT FOR CHANGES INESTIMATED EXPENDITURES AND TO REALLOCATE APPROPRIATIONS FROMPERSONNEL SERVICES TO CONTRACTUAL SERVICES AND EQUIPMENT; PROVIDINGAN EFFECTIVE DATE; AND FOR OTHER PURPOSES.NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COMMISSION OF THECITY OF WEST PALM BEACH, FLORIDA, that:SECTION 1: Funds are hereby appropriated within various funds as follows:FUND 001- GENERAL FUNDExpendituresRegular Salaries & Wages 001-031201-521-500120 ( 20,000)Regular Salaries & Wages 001-031302-521-500120 (129,700)Regular Salaries & Wages 001-031601-521-500120 (127,190)Other Contractual Services 001-031200-521-500340 25,000Travel and Per Diem 001-031200-521-500400 35,000Training 001-031200-521-500403 30,000Repair and Maintenance 001-031201-521-500460 43,700Operational Expense 001-031300-521-500490 46,000Contractual Services - DNA 001-031600-521-500340-13023513 22,690Travel and Per Diem 001-031600-521-500400 30,000Machinery and Equipment AFIS 001-031600-521-500640-13023513 44,500SECTION 2: The City Clerk is hereby directed to furnish one (1) certified copy of this Resolution tothe Finance Director, one (1) certified copy to the Budget Office and one (1) copy to thePurchasing Division of the City of West Palm Beach after passage.SECTION 3: This Resolution shall take effect as provided by law.PASSED AND ADOPTED THIS DAY OF , 2013.(CORPORATE SEAL)ATTEST:CITY OF WEST PALM BEACHBY ITS CITY COMMISSION____________________________PRESIDING OFFICERCITY CLERKCity Attorney’s OfficeApproved as to form and legalityBy: _______________________
OE400SPSQUOTE NO. ACCOUNT NO. DATEDPNM216 0420857 7/25/2013BILL TO:CITY OF WEST PALM BEACHPO BOX 3366SHIP TO:CITY OF WEST PALM BEACHAttention To: FINANCE DEPT ACCOUNTSPO BOX 3366Accounts PayableWEST PALM BEACH , FL 33402-3366Customer Phone #561.659.8040WEST PALM BEACH , FL 33402-3366Contact: JAMESBALDWIN 561.704.6109Customer P.O. # HAVIS GD DOCKSQUOTEACCOUNT MANAGER SHIPPING METHOD TERMS EXEMPTION CERTIFICATEMIGUEL ROJAS 866.339.5848DROP SHIP-GROUNDNet 30 Days-GovtState/LocalGOVT-EXEMPTQTY ITEM NO. DESCRIPTION UNIT PRICE EXTENDED PRICE30 1912740 HAVIS DOCKING STATION W/PWR F/GD8000Mfg#: DS-GD-101-2Contract: National Joint Powers Alliance111309-CDW675.00 20,250.00SUBTOTALFREIGHTTAX20,250.000.000.0020,250.00CDW Government230 North Milwaukee Ave.Vernon Hills, IL 60061 Fax: 312.705.9143Please remit payment to:CDW Government75 Remittance DriveSuite 1515Chicago, IL 60675-1515This quote is subject to CDW's Terms and Conditions of Sales and Service Projects athttp://www.cdw.com/content/terms-conditions/product-sales.aspFor more information, contact a CDW account manager.
OE400SPSQUOTE NO. ACCOUNT NO. DATEDPHF283 0420857 7/19/2013BILL TO:CITY OF WEST PALM BEACHPO BOX 3366Accounts PayableWEST PALM BEACH , FL 33402-3366Customer Phone #561.659.8040SHIP TO:CITY OF WEST PALM BEACHAttention To: FINANCE DEPT ACCOUNTSPO BOX 3366WEST PALM BEACH , FL 33402-3366Contact: JAMESBALDWIN 561.704.6109Customer P.O. # BROTHER QUOTEACCOUNT MANAGER SHIPPING METHOD TERMS EXEMPTION CERTIFICATEMIGUEL ROJAS 866.339.5848UPS GroundNet 30 Days-GovtState/LocalGOVT-EXEMPTQTY ITEM NO. DESCRIPTION UNIT PRICE EXTENDED PRICE45 1936328 BROTHER ROLL PAPER FEEDER VEH MOUNTMfg#: LB3689Contract: National Joint Powers Alliance111309-CDW45 2236125 BROTHER POCKETJET 6 PLUS ENG 300DPIMfg#: PJ623Contract: National Joint Powers Alliance111309-CDW45 2149511 STARTECH 10FT USB 2.0 A-MINI B CBLMfg#: USB2HABM10Contract: National Joint Powers Alliance111309-CDW45 1912881 BROTHER CAR ADAPTR HARD WIRED 14FTMfg#: LB3692Contract: National Joint Powers Alliance111309-CDW8 2148770 BROTHER PERFORATED ROLL PAPER 6PKMfg#: LB3663Contract: National Joint Powers Alliance111309-CDW84.00 3,780.00305.00 13,725.003.00 135.0015.00 675.0045.00 360.00SUBTOTALFREIGHTTAX18,675.000.000.0018,675.00CDW Government230 North Milwaukee Ave.Vernon Hills, IL 60061 Fax: 312.705.9143Please remit payment to:CDW Government75 Remittance DriveSuite 1515Chicago, IL 60675-1515This quote is subject to CDW's Terms and Conditions of Sales and Service Projects athttp://www.cdw.com/content/terms-conditions/product-sales.aspFor more information, contact a CDW account manager.
1250 North Tustin AvenueAnaheim, CA 92807Tel: (714) 238-2000Fax: (714) 238-2049July 26, 2013Mr. King C. Brown, MS, CSCSA, CFPH, CLPEWest Palm Beach Police Department600 Banyan Blvd.West Palm Beach, FL 33401Tel: (561) 822-1711E-mail: KBrown@wpb.orgReference #MTFL-A072613-01Dear Mr. Brown:This proposal replaces the previous proposal Reference 00-1205-03MorphoTrak, Inc. is pleased to provide West Palm Beach Police Department with the following quotation toupgrade the West Palm Beach Police Department existing latent workstation at the same time as the Palm BeachCounty Sheriff’s Office upgrades its AFIS to the MorphoTrak MorphoBIS.BackgroundWest Palm Beach Police Department has an existing MorphoTrak (Printrak) Latent Workstation that submits to thePalm Beach County Sheriff’s Office (CSO) AFIS. The Palm Beach CSO is upgrading its AFIS to a MorphoTrakMorphoBIS which will require an upgrade of the Latent Workstation installed at West Palm Beach PoliceDepartment.Solution Description and PricingMorphoTrak proposes the equipment and services described in Table 1.Latent Expert Workstation Upgrade Table 1. Pricing and MaintenanceDESCRIPTIONLatent Expert Workstation Hardware and Software Upgrade, including:• Latent Expert Workstation Application Software• Third-party Software Licenses• Control Computer, keyboard, mouse• Infinity Latent Camera• Monitor 24” LED• Installation• Training• Warranty: 1 Year On-site Advantage Solution warranty, 9X5, Next day onsiteresponse and parts replacement• FreightPER UNITPRICE$44,500Standard shipping is 45-60 days after receipt of order, or as otherwise scheduled.Reference: MTFL-A072613-01 Page 1 of 7MorphoTrak ● CORPORATE HEADQUARTERS: 113 South Columbus Street Suite 400, Alexandria, VA 22314 ● www.morphotrak.com
Customer ResponsibilitiesWest Palm Beach Police Department is responsible for the following: Providing necessary facility resources required for equipment installation and operation including access, space,environmental control, electrical power and networking. To obtain and maintain the required transmission lines and hardware for remote communications to and from thenecessary agencies. Maintaining all required authorizations for connecting to the Palm Beach CSO.AssumptionsIn developing this proposal, MorphoTrak has made the following assumptions: There are no external interfaces to support which includes but is not limited to records management system, etc. An inter-agency agreement between West Palm Beach Police Department and Palm Beach CSO will remain inplace. West Palm Beach Police Department will provide all necessary communication to connect to Palm Beach CSO.This includes, but is not limited to hubs, routers, modems, etc.Additional engineering effort by MorphoTrak beyond the scope of the standard product will be quoted at a firmfixed price based on our current service rates in effect at the time of the change, plus any related travel oradministrative expenses. Assistance with training and questions for the West Palm Beach Police Departmentdatabase or any programming, scripting, or review of programs beyond work quoted above are excluded from thisoffer. MorphoTrak assumes that organizations requesting these utilities have advanced programming expertise andwill assume all responsibility for the deployment and support of the final application.Prices are exclusive of any and all state, or local taxes, or other fees or levies. Customer payments are due toMorphoTrak within twenty days after the date of the invoice. Product purchase will be governed by the MorphoTrakAgreement, a copy of which is attached for your convenience. Firm delivery schedules will be provided uponreceipt of a purchase order. No subsequent purchase order can override such terms. Nothing additional shall bebinding upon MorphoTrak unless a subsequent agreement is signed by both parties.MorphoTrak reserves the right to substitute hardware of equal value with equal or better capability, based uponmarket availability. If, however such equipment is unavailable, MorphoTrak will makes its best effort to provide asuitable replacement.Proposal Expiration: October 31, 2013Purchase orders should be sent to MorphoTrak by electronic mail, facsimile or United States mail. Please direct allorder correspondence, including Purchase Order, to: Jayne Goodall, MorphoTrak, Inc., 1250 North Tustin Avenue,Anaheim, California 92807; Tel: (714) 575-2956; Fax: (714) 238-2049; Email: firstname.lastname@example.org.We look forward to working with you.Sincerely,Barry FisherSenior Sales DirectorReference: MTFL-A072613-01 Page 2 of 7MorphoTrak ● CORPORATE HEADQUARTERS: 113 South Columbus Street Suite 400, Alexandria, VA 22314 ● www.morphotrak.com
By signing this signature block below, West Palm Beach Police Department agrees to theterms and pricing stated in this proposal for the product and services as referencedabove. My signature below constitutes the acceptance of this order and authorizesMorphoTrak, Inc. to ship and provide these product and services:Signature Authorization for Order:SignatureNameDateTotal Purchase Price (including any Options): ___________________________________Please provide Billing Address:Check if Billing Address is same as Shipping Address: Please provide Shipping Address (if different from Billing Address):PLEASE PROVIDE A COPY OF YOUR CURRENT TAXEXEMPTION CERTIFICATE (if applicable).Reference: MTFL-A072613-01 Page 3 of 7MorphoTrak ● CORPORATE HEADQUARTERS: 113 South Columbus Street Suite 400, Alexandria, VA 22314 ● www.morphotrak.com
MorphoTrak Short Form Sales Agreement1. Scope. MorphoTrak, Inc., (“MorphoTrak” or “Seller”) having aplace of business atand, (“Customer”), having a place of business at, enter into this Sales Agreement (“Agreement”), pursuant to whichMorphoTrak, Inc. will sell to Customer and Customer will purchase fromSeller the equipment, parts, software, or services related to theequipment (e.g., installation) described in Seller’s Proposal or LetterQuote dated __________________. These terms and conditions,together with the Proposal or Quote, comprise the “Agreement.”Customer may indicate its acceptance of this Agreement by signingbelow or by issuing a purchase order that refers to either theProposal/Quote or to a Customer solicitation to which theProposal/Quote responds. Only these terms and conditions apply to thetransaction, notwithstanding any inconsistent or additional terms andconditions contained in the purchase order or Customer solicitation.2. Price and Payment Terms. The Contract Price is U.S.$_________________, excluding applicable sales, use, or similar taxesand freight. Seller will submit invoices to Customer for products whenthey are shipped and, if applicable, for services when they areperformed. Customer will make payments to Seller within twenty (20)days after the invoice date. Seller will pre-pay and add all freightcharges to the invoices. Title and risk of loss to equipment or parts willpass to Customer upon shipment. Title to software will not pass toCustomer at any time. Seller will pack and ship all equipment, parts orsoftware in accordance with good commercial practices.3. Software. If this transaction involves software, any softwareowned by Seller (“MorphoTrak Software”) is licensed to Customer solelyin accordance with Seller’s Software License Agreement (“SLA”), whichis attached as Exhibit A and incorporated herein by this reference. Anysoftware owned by a third party (“Non-MorphoTrak Software”) islicensed to Customer in accordance with the standard license, terms,and restrictions of the copyright owner unless the owner has granted toSeller the right to sublicense its software pursuant to the SLA, in whichcase the SLA applies and the owner will have all rights and protectionsunder the SLA as the Licensor. Seller makes no representations orwarranties of any kind regarding Non-MorphoTrak Software.4. Express Limited Warranty and Warranty Disclaimer. MorphoTrakSoftware is warranted in accordance with the SLA.7. Confidential Information and Preservation of Proprietary Rights.The SLA governs software confidentiality. As to any other informationmarked “Confidential” and provided by one party to the other, thereceiving party will maintain the confidentiality of the information and notdisclose it to any third party; take necessary and appropriate precautionsto protect the information; and use the information only to further theperformance of this Agreement. Confidential information is and willremain the property of the disclosing party, and no grant of proprietaryrights in the confidential information is given or intended. Seller, anycopyright owner of Non-MorphoTrak Software, and any third partymanufacturer own and retain all of their proprietary rights in theequipment, parts and software, and nothing herein is intended to restricttheir proprietary rights,. Except as explicitly provided in the SLA, thisAgreement does not grant any right, title or interest in Seller’sproprietary rights, or a license under any Seller patent or patentapplication.8. Miscellaneous: Each party will comply with all applicable laws,regulations and rules concerning the performance of this Agreement oruse of the products. Customer will obtain and comply with all FCClicenses and authorizations required for the installation, operation anduse of the products. This Agreement and the rights and duties of theparties will be governed by and interpreted in accordance with the lawsof the State in which the products are installed. This Agreementconstitutes the entire agreement of the parties regarding this transaction,supersedes all previous agreements and proposals relating to thissubject matter, and may be amended only by a written instrumentexecuted by both parties. Seller is not making, and Customer is notrelying upon, any representation or warranty except those expressedherein. There are no certifications or commitments binding Sellerapplicable to this transaction unless they are in writing and signed by anauthorized signatory of Seller.SignedNameTitleDateMORPHOTRAK, INC. (“SELLER”):5. Delays and Disputes. Neither party will be liable for its nonperformanceor delayed performance if caused by an event,circumstance, or act of a third party that is beyond a party’s reasonablecontrol (a “Force Majeure”). Each party will notify the other if it becomesaware of a Force Majeure that will significantly delay performance. Theparties will try to settle any dispute arising from this Agreement (exceptfor a claim relating to intellectual property or breach of confidentiality)through good faith negotiations. If necessary, the parties will escalatethe dispute to their appropriate higher-level managers. If negotiationsfail, the parties will jointly select a mediator to mediate the dispute andwill share equally the mediation costs. Neither party will assert a breachof this Agreement without first giving the other party written notice and athirty (30) day period to cure the alleged breach.6. LIMITATION OF LIABILITY. Except for personal injury ordeath, Seller's total liability, whether for breach of contract,warranty, negligence, strict liability in tort, or otherwise, will belimited to the direct damages recoverable under law, but not toexceed the purchase price of the products or services for whichlosses or damages are claimed. SELLER WILL NOT BE LIABLEFOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE,TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OROTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIALDAMAGES IN ANY WAY RELATED TO OR ARISING FROM THISAGREEMENT, THE SALE OR USE OF THE PRODUCTS, OR THEPERFORMANCE OF SERVICES BY SELLER PURSUANT TO THISAGREEMENT. No action for contract breach or otherwise relatingto the transactions contemplated by this Agreement may bebrought more than one year after the accrual of the cause of action.This limitation of liability survives the expiration or termination ofthis Agreement.SignedNameTitleDateNAME (“CUSTOMER”)Reference: MTFL-A072613-01 Page 4 of 7MorphoTrak ● CORPORATE HEADQUARTERS: 113 South Columbus Street Suite 400, Alexandria, VA 22314 ● www.morphotrak.com
EXHIBIT AIn this Exhibit A, the term “Licensor” means MorphoTrak, Inc.,(“MorphoTrak”); “Licensee,” means the Customer; “Primary Agreement”means the agreement to which this exhibit is attached (MorphoTrakShort Form Sales Agreement); and “Agreement” means this Exhibit andthe applicable terms and conditions contained in the PrimaryAgreement. The parties agree as follows:For good and valuable consideration, the parties agree as follows:SECTION 1. DEFINITIONS1.1 “Designated Products” means products provided byMorphoTrak to Licensee with which or for which the Software andDocumentation is licensed for use.1.2 “Documentation” means product and softwaredocumentation that specifies technical and performance features andcapabilities, and the user, operation and training manuals for theSoftware (including all physical or electronic media upon which suchinformation is provided).1.3 “Open Source Software” means software with either freelyobtainable source code, license for modification, or permission for freedistribution.1.4 “Open Source Software License” means the terms orconditions under which the Open Source Software is licensed.1.5 “Primary Agreement” means the agreement to which thisexhibit is attached (Biometrics Products and System Sales Agreement).1.6 “Security Vulnerability” means a flaw or weakness in systemsecurity procedures, design, implementation, or internal controls thatcould be exercised (accidentally triggered or intentionally exploited) andresult in a security breach such that data is compromised, manipulatedor stolen or the system damaged.1.7 “Software” (i) means proprietary software in object codeformat, and adaptations, translations, de-compilations, disassemblies,emulations, or derivative works of such software; (ii) means anymodifications, enhancements, new versions and new releases of thesoftware provided by MorphoTrak; and (iii) may contain one or moreitems of software owned by a third party supplier. The term "Software"does not include any third party software provided under separatelicense or third party software not licensable under the terms of thisAgreement.SECTION 2. SCOPEMorphoTrak and Licensee enter into this Agreement in connection withMorphoTrak's delivery of certain proprietary Software or productscontaining embedded or pre-loaded proprietary Software, or both. ThisAgreement contains the terms and conditions of the license MorphoTrakis providing to Licensee, and Licensee’s use of the Software andDocumentation.SECTION 3. GRANT OF LICENSEof the license grant of the applicable Open Source Software Licenseswill take precedence over the license grants in this Agreement. Ifrequested by Licensee, MorphoTrak will use commercially reasonableefforts to: (i) determine whether any Open Source Software is providedunder this Agreement; (ii) identify the Open Source Software andprovide Licensee a copy of the applicable Open Source SoftwareLicense (or specify where that license may be found); and, (iii) provideLicensee a copy of the Open Source Software source code, withoutcharge, if it is publicly available (although distribution fees may beapplicable).SECTION 4. LIMITATIONS ON USE4.1. Licensee may use the Software only for Licensee's internalbusiness purposes and only in accordance with the Documentation.Any other use of the Software is strictly prohibited. Without limiting thegeneral nature of these restrictions, Licensee will not make the Softwareavailable for use by third parties on a "time sharing," "application serviceprovider," or "service bureau" basis or for any other similar commercialrental or sharing arrangement.4.2. Licensee will not, and will not allow or enable any third partyto: (i) reverse engineer, disassemble, peel components, decompile,reprogram or otherwise reduce the Software or any portion to a humanperceptible form or otherwise attempt to recreate the source code; (ii)modify, adapt, create derivative works of, or merge the Software; (iii)copy, reproduce, distribute, lend, or lease the Software orDocumentation to any third party, grant any sublicense or other rights inthe Software or Documentation to any third party, or take any action thatwould cause the Software or Documentation to be placed in the publicdomain; (iv) remove, or in any way alter or obscure, any copyright noticeor other notice of MorphoTrak's proprietary rights; (v) provide, copy,transmit, disclose, divulge or make the Software or Documentationavailable to, or permit the use of the Software by any third party or onany machine except as expressly authorized by this Agreement; or (vi)use, or permit the use of, the Software in a manner that would result inthe production of a copy of the Software solely by activating a machinecontaining the Software. Licensee may make one copy of Software tobe used solely for archival, back-up, or disaster recovery purposes;provided that Licensee may not operate that copy of the Software at thesame time as the original Software is being operated. Licensee maymake as many copies of the Documentation as it may reasonablyrequire for the internal use of the Software.4.3. Unless otherwise authorized by MorphoTrak in writing,Licensee will not, and will not enable or allow any third party to: (i) installa licensed copy of the Software on more than one unit of a DesignatedProduct; or (ii) copy onto or transfer Software installed in one unit of aDesignated Product onto another device. Licensee may temporarilytransfer Software installed on a Designated Product to another device ifthe Designated Product is inoperable or malfunctioning, if Licenseeprovides written notice to MorphoTrak of the temporary transfer andidentifies the device on which the Software is transferred. Temporarytransfer of the Software to another device must be discontinued whenthe original Designated Product is returned to operation and theSoftware must be removed from the other device. Licensee mustprovide prompt written notice to MorphoTrak at the time temporarytransfer is discontinued.SECTION 5. OWNERSHIP AND TITLE3.1. Subject to the provisions of this Agreement and the paymentof applicable license fees, MorphoTrak grants to Licensee a personal,limited, non-transferable (except as permitted in Section 7) and nonexclusivelicense under MorphoTrak’s copyrights and ConfidentialInformation (as defined in the Primary Agreement) embodied in theSoftware to use the Software, in object code form, and theDocumentation solely in connection with Licensee's use of theDesignated Products. This Agreement does not grant any rights tosource code.3.2. If the Software licensed under this Agreement contains or isderived from Open Source Software, the terms and conditions governingthe use of such Open Source Software are in the Open Source SoftwareLicenses of the copyright owner and not this Agreement. If there is aconflict between the terms and conditions of this Agreement and theterms and conditions of the Open Source Software Licenses governingLicensee’s use of the Open Source Software, the terms and conditionsMorphoTrak, its licensors, and its suppliers retain all of their proprietaryrights in any form in and to the Software and Documentation, including,but not limited to, all rights in patents, patent applications, inventions,copyrights, trademarks, trade secrets, trade names, and otherproprietary rights in or relating to the Software and Documentation(including any corrections, bug fixes, enhancements, updates,modifications, adaptations, translations, de-compilations, disassemblies,emulations to or derivative works from the Software or Documentation,whether made by MorphoTrak or another party, or any improvementsthat result from MorphoTrak’s processes or, provision of informationservices). No rights are granted to Licensee under this Agreement byimplication, estoppel or otherwise, except for those rights which areexpressly granted to Licensee in this Agreement. All intellectualproperty developed, originated, or prepared by MorphoTrak inconnection with providing the Software, Designated Products,Documentation or related services, remains vested exclusively inReference: MTFL-A072613-01 Page 5 of 7MorphoTrak ● CORPORATE HEADQUARTERS: 113 South Columbus Street Suite 400, Alexandria, VA 22314 ● www.morphotrak.com
MorphoTrak, and Licensee will not have any shared development orother intellectual property rights.SECTION 6. LIMITED WARRANTY; DISCLAIMER OF WARRANTY6.1. If Licensee is not in breach of any of its obligations underthis Agreement, MorphoTrak warrants that the unmodified Software,when used properly and in accordance with the Documentation and thisAgreement, will be free from a reproducible defect that eliminates thefunctionality or successful operation of a feature critical to the primaryfunctionality or successful operation of the Software. Whether a defectoccurs will be determined by MorphoTrak solely with reference to theDocumentation. MorphoTrak does not warrant that Licensee’s use ofthe Software or the Designated Products will be uninterrupted, errorfree,completely free of Security Vulnerabilities, or that the Software orthe Designated Products will meet Licensee’s particular requirements.MorphoTrak makes no representations or warranties with respect to anythird party software included in the Software.6.2 MorphoTrak’s sole obligation to Licensee and Licensee’sexclusive remedy under this warranty is to use reasonable efforts toremedy any material Software defect covered by this warranty. Theseefforts will involve either replacing the media or attempting to correctsignificant, demonstrable program or documentation errors or SecurityVulnerabilities. If MorphoTrak cannot correct the defect within areasonable time, then at MorphoTrak’s option, MorphoTrak will replacethe defective Software with functionally-equivalent Software, license toLicensee substitute Software which will accomplish the same objective,or terminate the license and refund the Licensee’s paid license fee.6.3. Warranty claims are described in the Primary Agreement.6.4. The express warranties set forth in this Section 6 are inlieu of, and MorphoTrak disclaims, any and all other warranties(express or implied, oral or written) with respect to the Software orDocumentation, including, without limitation, any and all impliedwarranties of condition, title, non-infringement, merchantability, orfitness for a particular purpose or use by Licensee (whether or notMorphoTrak knows, has reason to know, has been advised, or isotherwise aware of any such purpose or use), whether arising bylaw, by reason of custom or usage of trade, or by course ofdealing. In addition, MorphoTrak disclaims any warranty to anyperson other than Licensee with respect to the Software orDocumentation.SECTION 7. TRANSFERSLicensee will not transfer the Software or Documentation to any thirdparty without MorphoTrak's prior written consent. MorphoTrak’s consentmay be withheld at its discretion and may be conditioned upontransferee paying all applicable license fees and agreeing to be boundby this Agreement.SECTION 8. TERM AND TERMINATION8.1 Licensee’s right to use the Software and Documentation willbegin when the Primary Agreement is signed by both parties and willcontinue for the life of the Designated Products with which or for whichthe Software and Documentation have been provided by MorphoTrak,unless Licensee breaches this Agreement, in which case this Agreementand Licensee's right to use the Software and Documentation may beterminated immediately upon notice by MorphoTrak.8.2 Within thirty (30) days after termination of this Agreement,Licensee must certify in writing to MorphoTrak that all copies of theSoftware have been removed or deleted from the Designated Productsand that all copies of the Software and Documentation have beenreturned to MorphoTrak or destroyed by Licensee and are no longer inuse by Licensee.8.3 Licensee acknowledges that MorphoTrak made aconsiderable investment of resources in the development, marketing,and distribution of the Software and Documentation and that Licensee'sbreach of this Agreement will result in irreparable harm to MorphoTrakfor which monetary damages would be inadequate. If Licenseebreaches this Agreement, MorphoTrak may terminate this Agreementand be entitled to all available remedies at law or in equity (includingimmediate injunctive relief and repossession of all non-embeddedSoftware and associated Documentation unless Licensee is a Federalagency of the United States Government).SECTION 9. UNITED STATES GOVERNMENT LICENSINGPROVISIONS & RESTRICTED RIGHTS LEGENDThis Section applies if Licensee is the United States Government or aUnited States Government agency. Licensee’s use, duplication ordisclosure of the Software and Documentation under MorphoTrak’scopyrights or trade secret rights is subject to the restrictions set forth insubparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable,unless they are being provided to the Department of Defense. If theSoftware and Documentation are being provided to the Department ofDefense, Licensee’s use, duplication, or disclosure of the Software andDocumentation is subject to the restricted rights set forth insubparagraph (c)(1)(ii) of the Rights in Technical Data and ComputerSoftware clause at DFARS 252.227-7013 (OCT 1988), if applicable.The Software and Documentation may or may not include a RestrictedRights notice, or other notice referring to this Agreement. Theprovisions of this Agreement will continue to apply, but only to the extentthat they are consistent with the rights provided to the Licensee underthe provisions of the FAR or DFARS mentioned above, as applicable tothe particular procuring agency and procurement transaction.SECTION 10. CONFIDENTIALITYLicensee acknowledges that the Software and Documentation containMorphoTrak’s valuable proprietary and Confidential Information and areMorphoTrak’s trade secrets, and that the provisions in the PrimaryAgreement concerning Confidential Information apply.SECTION 11. GENERAL11.1. COPYRIGHT NOTICES. The existence of a copyright noticeon the Software will not be construed as an admission or presumption ofpublication of the Software or public disclosure of any trade secretsassociated with the Software.11.2. COMPLIANCE WITH LAWS. Licensee acknowledges thatthe Software is subject to the laws and regulations of the United Statesand Licensee will comply with all applicable laws and regulations,including export laws and regulations of the United States. Licensee willnot, without the prior authorization of MorphoTrak and the appropriategovernmental authority of the United States, in any form export or reexport,sell or resell, ship or reship, or divert, through direct or indirectmeans, any item or technical data or direct or indirect products sold orotherwise furnished to any person within any territory for which theUnited States Government or any of its agencies at the time of theaction, requires an export license or other governmental approval.Violation of this provision is a material breach of this Agreement.11.3. GOVERNING LAW. This Agreement is governed by thelaws of the United States to the extent that they apply and otherwise bythe internal substantive laws of the State to which the Software isshipped if Licensee is a sovereign government entity, or the internalsubstantive laws of the State of Delaware if Licensee is not a sovereigngovernment entity. The terms of the U.N. Convention on Contracts forthe International Sale of Goods do not apply. In the event that theUniform Computer Information Transaction Act, any version of this Act,or a substantially similar law (collectively "UCITA") becomes applicableto a party's performance under this Agreement, UCITA does not governany aspect of this Agreement or any license granted under thisAgreement, or any of the parties' rights or obligations under thisAgreement. The governing law will be that in effect prior to theapplicability of UCITA.11.4. THIRD PARTY BENEFICIARIES. This Agreement isentered into solely for the benefit of MorphoTrak and Licensee. No thirdparty has the right to make any claim or assert any right under thisAgreement, and no third party is deemed a beneficiary of thisAgreement. Notwithstanding the foregoing, any licensor or supplier ofthird party software included in the Software will be a direct and intendedthird party beneficiary of this Agreement.11.5. PREVAILING PARTY. In the event of any dispute arisingout of the subject matter of this Agreement, the prevailing party shallrecover, in addition to any other damages assessed, its reasonableReference: MTFL-A072613-01 Page 6 of 7MorphoTrak ● CORPORATE HEADQUARTERS: 113 South Columbus Street Suite 400, Alexandria, VA 22314 ● www.morphotrak.com
attorneys' fees and court costs incurred in arbitrating, litigating, orotherwise settling or resolving such dispute.11.6 SURVIVAL. Sections 4, 5, 6.3, 7, 8, 9, 10, and 11 survivethe termination of this Agreement.Reference: MTFL-A072613-01 Page 7 of 7MorphoTrak ● CORPORATE HEADQUARTERS: 113 South Columbus Street Suite 400, Alexandria, VA 22314 ● www.morphotrak.com