HomeMy WebLinkAboutR-2003-161-Microsoft licenses RESOLUTION NO. 2003- 161
A RESOLUTION OF THE CITY OF DANIA BEACH FLORIDA
AUTHORIZING THE CITY MANAGER TO PURCHASE
MICROSOFT LICENSES FOR CITY COMPUTERS IN AN
AMOUNT NOT TO EXCEED $22,919.00, UNDER THE STATE
OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES
CONTRACT NO. 255-001-01-1, WITHOUT COMPETITIVE
BIDDING AND WITHOUT ADVERTISEMENT FOR BIDS;
PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the Charter of the City of Dania Beach, Part III, Article 3, Section 4,
Subsection (J), authorizes the City Manager to purchase supplies, services, equipment
and materials for the city government in amounts in excess of Fifteen Thousand Dollars
($15,000.00) without competitive bidding and without advertisement for bids if he is
authorized to do so in advance by a resolution adopted by the City Commission and if
such purchases are made pursuant to a competitive bid obtained within the last twelve
(12) months by other governmental agencies such as the Federal Government, State of
Florida or a Florida county or municipality; and
WHEREAS, the City Manager has determined that it is necessary to purchase
Microsoft licenses for City computers in an amount not to exceed $22,919.00 ; and
WHEREAS, the City Manager has determined that such purchase can be made at
the least cost to the City by purchasing Microsoft licenses, under a State of Florida
Department of Management Services Contract, No. 255-001-01-1, a copy of which is
attached and made a part of this resolution as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the City Manager is authorized to purchase Microsoft licenses
for City computers under the State of Florida Department of Management Services
Contract, No. 255-001-01-1 in an amount not to exceed $22,919.00.
1 RESOLUTION NO. 2003 - 161
Section 2. That all resolutions or parts of resolutions in conflict with this
resolution shall be repealed to the extent of such conflict.
Section 3. That this resolution shall be in force and take effect immediately upon
its passage and adoption.
PASSED and ADOPTED this 24th day of June, 2003.
1#1A/"'I��
OB ANTO
MAYOR— COMMISSIONER
ATTEST: ROLL CALL:
COMMISSIONER CHUNN - YES
(JAJ COMMISSIONER FLURY—YES
CHARLENE JO N ON COMMISSIONER MIKES - YES
CITY CLERK VICE-MAYOR MCELYEA - YES
MAYOR ANTON - YES
APPROVED AS TO FORM AND CORRECTNESS:
BY: aL
T O AS�S_ N BRO
CITY�TTORNEY
2 RESOLUTION NO. 2003 - 161
-ME S
F0�
Suite 315
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April 30, 2002
FLORIDA MEMORANDUM NO.: (255-001-01-1)-1
DEPARTMENT
OF TO: User Agency
MANAGEMENT
SERVICES FROM: Director, State Purchasing
SUBJECT: Contract No. 255-001-01-1
Title: Principle Technology:
Microsoft Software, Maintenance & Services
JEB BUSH
GOVERNOR The following changes have been made to the subject contract:
o Software House International has changed the contact person on their
CYNTHIA A.HENDERSON Ordering Instructions.
SECRETARY o The Contract Administrator has been changed from Vonnie Allen to
William Spencer.
• Any questions or problems in delivery or service that may arise regarding this
contract should be directed to William Spencer at (850) 921-6027, Suncom
MyFlorida.com 291-6027, spenceb(&dms.state.fl.us.
TM
WS/meb
STATE PURCHASING
4050 ESPLANADE W AY
SL ITE 350
FALLAHASSEE,FLORIDA
3?399-0950
FELEPFIONE:
350-438-4440
FAX:
3*8-5493
INTERNET:
xw1 A'.Ilvl1'FLORIDA.COM
the applicable license or services agreement. Any notice of termination of this agreement must be sent by post,
express, courier, facsimile or email to the addresses and numbers indicated in the cover page to this
agreement. Notices will be deemed delivered on the date shown on the postal return receipt or on the courier,
simile or email confirmation of delivery.
b. Assignment. This agreement and any license agreement may be assigned by either party only to an affiliate,
but assignment will not relieve the assigning party of its obligations under the assigned agreement. If either
party assigns this agreement or any license agreement, it must notify the other party of the assignment in
writing. Neither party may assign any services agreement without the written consent of the other.
c. Severability. If a court holds any provision of this agreement to be illegal, invalid or unenforceable, the
remaining provisions will remain in full force and effect and the parties will amend the agreement to give
effect to the stricken clause to the maximum extent possible.
d. Waiver. No waiver of any breach of this agreement shall be a waiver of any other breach, and no waiver
shall be effective unless made in writing and signed by an authorized representative of the waiving party.
e. Force Majeure. To the extent that either party's performance is prevented or delayed, either totally or in
part, for reasons beyond that party's control, then that party will not be liable, so long as it resumes
performance as soon as practicable after the reason preventing or delaying performance no longer exists.
f. Note on Java Support. The products, fixes or service deliverables may contain support for programs
written in Java. Java technology is not fault tolerant and is not designed, manufactured, or intended for use or
resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the
operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life
upport machines, or weapons systems, in which the failure of Java technology could lead directly to death,
sonal injury, or severe physical or environmental damage. Sun Microsystems, Inc. has contractually
o ligated Microsoft to make this disclaimer.
g. Limitations on actions. Except for any different period required by applicable law, any action arising
under a license or
services agreement must be brought within two years from the date that the cause of action arose.
h. Survival. Provisions regarding warranties, limitations of liability, confidentiality, compliance verification
and obligations on termination or expiration will survive termination or expiration of this agreement and of
any license or services agreement in which they are incorporated.
i Applicable law; Dispute Resolution. The terms of this agreement will be governed by the laws of your
state, without giving effect to its conflict of laws. This choice of law does not prevent either party from
seeking injunctive relief with respect to violation of its intellectual property rights or confidentiality
obligations in any appropriate jurisdiction. Disputes relating to this agreement will be subject to applicable
dispute resolution laws and regulations of your state.
16
Agreement Number: 01-70093
AMENDMENT
O
MICROSOFT SELECT MASTER AGREEMENT
This amends the Microsoft Select Master Agreement between The State of Florida, Department of
Management Services and MSLI, LLC. All terms used but not defined in this amendment will have the
meanings assigned to such terms in the Enterprise Agreement, as amended.
1. Amendment.
1. Section 13b of the Master Agreement, Year 2000 Warranty, is deleted and restated to read in its
entirety as follows:
Year 2000 Compliance Warranty. For purposes of this Year 2000 warranty, the team "Product shall
include software, firmware, microcode, hardware and embedded chip technology.
Vendor warrants that the Product is Year 2000 Compliant. All versions of the Product offered by the
vendor and purchased by the State, for which Vendor is obligated to provide maintenance service are,
and in the future, will be, Year 2000 Compliant. Year 2000 Compliant means the Product will include
the ability to: consistently handle date information before, during, and after January 1, 2000, including
accepting date input providing date output, and processing dates; function before, during and after
January 1, 2000, without the need for program changes caused by the advent of the new century;
properly handle all date related information before and following Jan 1, 2001, including but not limited
to accurate and reliable performance in processing date and date related data, including calculating,
comparing and sequencing; properly process any and all date calculations before, on and after the leap
year date of February 29, 2000 and store and provide output of date information in ways that are
unambiguous as to century.
The duration of this warranty and the remedies available to the State for breach of this warranty shall
be as defined in, and subject to, the terms and limitations of any general warranty provisions of this
contract, provided that notwithstanding any provision tot he contrary in such warranty provision(s), or
in the absence of any such warranty provision(s), defects in the Product with regard to Year 2000
Compliance, if any, will be corrected by Vendor at Vendor's cost within a timeframe mutually agreed
upon with the State. Vendor cannot be held responsible for errors resulting from devices or systems
external to this contract which are permitted to directly access any database provided under this
Agreement and overwrite Product date fields or from the users improper integration of non-Year 2000
Compliant systems. Nothing in this warranty shall be construed to limit any rights or remedies the
State may otherwise have under this contract with respect to defects other than Year 2000
performance.
17
Year 2000 Compliance (Software)
The licensor represents and warrants that the software, which is licensed to licensee hereunder, is
designed to be used prior to, during, and after the calendar year 2000 AD, and that the software will
operate during each such time period without error relating to date data, specifically including any
error relating to, or the product of, date data which represents or references different centuries or more
than one century. Without limiting the generality of the foregoing, Licensor further represents and
warrants (1) that the software will not abnormally end or provide invalid or incorrect results as a result
of date data, specifically including date data which represents of references different centuries or more
than one century; (2) that the software has been designed to ensure year 2000 compatibility, including,
but not limited to, date data century recognition, calculations which accommodate same century and
multi-century formulas and date values, and date data interface values that reflect the century; (3) that
the software included "year 2000 capabilities", which means the software (a) will manage and
manipulate data involving dates, including single century formulas and multi century formulas, and
will not cause an abnormally ending scenario within the application or generate incorrect values or
invalid results involving such dates; and (b) provides that all date-related user interface functionalities
and data fields include the indication of century; and (c) provided that all date-related data interface
functionalities include the indication of century.
Year 2000 Remedy Clause
In the event of any decrease in product functionality related to time and date related codes and internal
subroutines that impede the hardware or software programs from operating beyond the Millennium
Date Change, Licensors and Vendors of Licensors products, agree to immediately make required
corrections to restore hardware and software programs to the same level of functionality as warranted
herein at no charge to the licensee, and without interruption to the ongoing business of licensee, time
® being of the essence.
2. Section 17d of the Master Agreement, Applicable Law, is hereby amended and restated to read in its
entirety as follows:
Applicable law. This agreement is subject to the laws of the State of Florida, U.S.A. and the federal
laws of the United States.
3. Section 17f of the Master Agreement, Confidentiality, is deleted
4. A new Section 18, Limitation of Remedies, is added to the Master Agreement and reads as follows:
Limitations of Remedies Contractor's entire liability and the State's exclusive remedy shall be as
follows:
In all situations involving performance or non-performance of machines or programming (other than
licensed programs) furnished under this Agreement, the State's remedy is (a) the adjustment or repair
of the machine or replacement of its parts by Contractor, or at Contractor's option, replacement of the
machine or correction of programming errors, or (b) if, after repeated efforts, Contractor is unable to
install the machine or a replacement machine, model upgrade or feature in good working order, or to
restore it to good working order, or to make programming operate, all as warranted, the State shall be
entitled to recover actual damages to the limits set forth in this Special Condition. For any other claim
concerning performance or non-performance by Contractor pursuant to, or in any other way related to
® the subject matter of, this Agreement or any order under this Agreement, the State shall be entitled to
recover actual damages to the limits set forth in this Special Condition.
18
If this contract is for purchase of machines, then the following shall apply. Contractor's entire liability
for damages to the State for any cause whatsoever, and regardless of form of action, whether in
contract or in tort including negligence; shall be limited to the greater of$100,000 or the appropriate
price stated herein for the specific machines that caused the damages or that are the subject matter of or
are directly related to the cause of action. The foregoing limitation of liability will not apply to (a) the
payment of cost and damage awards referred to in the General Condition 14 entitled "Patents and
Royalties", or to (b) claims for reprocurement costs or the cost of cover pursuant to State Purchasing
Rule 60A-1.006(4) entitled "Default", or to (c) claims for personal injury or damage to real or tangible
personal property caused by Contractor's negligence or tortious conduct.
If this contract is for the purchase of hardware maintenance services, then the following shall apply:
Contractor's entire liability and the State's exclusive remedy for damages to the State for any cause
whatsoever, and regardless of the form of action, whether in contract or in tort including negligence,
shall be limited to actual damages up to the greater of $100,000 or an amount equal to 12 months
maintenance charges for the specific machines under this Agreement that caused the damages or that
are the subject matter of, or are directly related to, the cause of action. Such maintenance charges will
be those in effect for the specific machines when the cause of action arose. The foregoing limitation of
liability will not apply to (a) the payment of cost and damage awards referred to in General Condition
14 entitled "Patents and Royalties" or to (b) claims for reprocurement costs or costs to cover pursuant
to State Purchasing Rule 60A 1.006(4) entitled "Default", or to (c) claims by the State for personal
injury or damage to real property or tangible personal property caused by the Contractor's negligence
or tortuous conduct.
If this contract is for purchase of software maintenance services, then the following shall apply:
Contractor's entire liability and the State's exclusive remedy for damages to the State for any cause
• whatsoever, and regardless of the form of action, whether in contract or in tort including negligence,
shall be limited to actual damages up to the greater of $100,000 or an amount equal to 12 months
maintenance charges for the specific software product under this Agreement that caused the damages
or that are the subject matter of, or are directly related to, the cause of action Such maintenance
charges will be those in effect for the specific software product when the cause of action arose. The
foregoing limitation of liability will not apply to (a) the payment of cost and damage awards referred to
in General Condition 14 entitled "Patents and Royalties", or to (b) claims for reprocurement costs or
the cost of cover pursuant to State Purchasing Rule 60A 1.006(4) entitled "Default", or to (c) claims by
the State for personal injury or damage to real property or tangible personal property caused by
Contractor's negligence or tortuous conduct.
If this contract is for services other than hardware or software maintenance, then the following shall
apply: Contractor's entire liability and the state's exclusive remedy for damages to the state for any
cause whatsoever, and regardless of the form of action, whether in contract or in tort including
negligence, shall be limited to actual damages up to the greater of$100,00 or an amount equal to the
charges invoiced for the services which are the subject matter of, or are directly related to, the cause of
action. The foregoing limitation of liability will not apply to (a) the payment of cost and damage
awards referred to in "Patents and Royalties" or to (b) claims for reprocurement costs or costs to cover
pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims by the Department
for personal injury or damage to real property or tangible personal property caused by the Contractor's
negligence or tortuous conduct
19
If this contract is for the acquisition of licensed programs, including personal computer licensed
programs, then the following shall apply: Contractor's entire liability and the State's exclusive remedy
shall be as follows: In all situations involving performance or non-performance of licensed programs
furnished under this Agreement, the State's remedy is (1) the correction by the Contractor of licensed
program defects, or(2) if, after repeated efforts, the Contractor is unable to make the licensed program
operate as warranted, the State shall be entitled to recover actual damages to the limits set forth in this
section. For any other claim concerning performance or non-performance by the Contractor pursuant
to, or in any way related to, the subject matter of this Agreement the State shall be entitled to recover
actual damages to the limits set forth in this section. Contractor's liability for damages to the State for
any cause whatsoever, and regardless of the form of action, whether in contract or in tort including
negligence, shall be limited to the greater of$100,000 or the one time charges paid for, or any monthly
license or initial license charges which would be due for 12 months use of the licensed program that
caused the damages or that is the subject matter of, or is directly related to, the cause of action and
shall include any initial or process charges paid to the Contractor. This limitation of liability will not
apply to (a) the payment of cost and damage awards referred to in General Condition 14 entitled
"Patents and Royalties" or to (b) claims for reprocurement costs or the cost of cover pursuant to State
Purchasing Rule 60A 1.006(4) entitled "Default", or to (c) claims for personal injury or damage to real
or tangible personal property caused by the Contractor's negligence or tortuous conduct.
Contractor shall hold and save the State harmless for any and all suits and judgments against the State
for personal injury or damage to real or tangible personal property caused by Contractor's tortuous
conduct in the performance of this Agreement provided that, (a) the State promptly notifies Contractor
in writing of any claim, and (b) Contractor shall be given the opportunity, at its option, to participate
and associate with the State in the control, defense and trial of any claims and any related settlement
negotiations and, provided further, that with respect to any claim, or portion thereof, for which
• Contractor agrees at the initiation of such claim that Contractor shall save and hold the State harmless,
Contractor shall have the sole control of the defense, trial and any related settlement negotiations, and
(c) the State fully cooperates with Contractor in the defense of any claim.
In no event, however, will Contractor be liable for (a) any damages caused by the State's failure to
perform the State's responsibilities, or for (b) any lost profits or other consequential damages, even if
Contractor has been advised of the possibility of such damages, or for (c) any claim against the State
by any other party, except as provided in the hold harmless provision of the preceding paragraph of
this Special Condition and except as provided in the General Condition entitled "Patents and
Royalties", or for (d) any damages caused by performance or non-performance of machines or
programming located outside the United States or Puerto Rico.
5. A new Section 19, Non Year 2000 Compliant Products is added to the Master Agreement and reads as
follows:
The parties recognize that under this agreement that non-compliant products may be supplied or
provided to support systems, legacy or otherwise, and agree that any such products will be identified
via the official Microsoft Year 2000 website at http://www.microsoft.com/year2000. To the extent
there is any conflict between this Section and any other agreement, this Section shall control.
6. A new Section 20, Order of Precedence, is added to the Master Agreement and reads as follows:
• Notwithstanding the language .of Section 19 of the amended Master Agreement, if there is a conflict
between the Microsoft Select Master Agreement, it's Amendment, with the provisions of the General
and Special Conditions then the General and Special Conditions shall take precedence and govern.
20
II. Effect of Amendment.
Both of us agree, on behalf of our respective affiliates, that the terms and conditions of this amendment
are confidential. Each agrees that it will not disclose such terms and conditions to any third party other
than our affiliates, agents, designated or prospective resellers and distributors of such resellers (if any).
Except as specifically amended by this amendment, all provisions of the Enterprise Agreement shall
remain unchanged and in full force and effect. When this amendment is fully executed, you will
receive a confirming copy.
You shall execute and return two (2) copies of this amendment to the below address on or before
in order for the terms and conditions of this amendment to apply.
21
MSLI, LLC
Attn: Dept. 551
6100 Neil Road, Suite 210
® Reno, NV 89511-1132
Company: Contracting Microsoft Affiliate:
Name of Company Name of contracting Microsoft affiliate
STATE OF FLORIDA, DEPT. OF MGMT. SVCS. MSLI, LLC
By By
Name,Title Name,Title
Date Date
Prepared by: Louis Pellegrino
22
Enterprise Agreement Number Ol E50535
Microsoft Business Agreement Number U0275474
MICROSOFT ENTERPRISE AGREEMENT-STATE& LOCAL
This MICROSOFT ENTERPRISE AGREEMENT is entered into between the following entities as of the effective date
identified below. If different from the main contact information,any notices must be addressed to the contact and
locations outlined in the notices section below. We will notify you in writing if our address information changes. You
must notify us in writing if your address changes.
Agency Name State Purchasing Name and address of contracting Microsoft affiliate
Dept.of Management Services MSL1, GP
Street Address and/or post office box Street Address and/or post office box
Ste 315 S 4050 Esplanade Way 6100 Neil Road
Suite 210
City and State/Province City and State/Province
Tallahassee,FL Reno,NV
Country and Postal Code Country and Postal Code
USA 32399-0950 USA 89511-1137
Contact Name Vonnie Allen Account Manager Name, Location and E-Mail Address
Phone Number 850 487-2304 Phone Number
775-823-5600
Fax Number 850 488-5498 Fax Number
775-826-7287
Email Address allenv@dms.state.fl.us Email Address
Sel uest microsoft.com
For the Attention of: For the Attention of:
Dept.551, Volume Licensin
The agreement and attached documents should be sent to
the
above address for approval and processing.
Agency Notices Information (if different from above) All NOTICES should have Copy To:
A enc Name Microsoft Corporation, Law and Corporate Affairs
Street Address and/or post office box
One Microsoft Way
City and State/Province
Redmond, WA
Country and Postal Code
USA 98052
Contact Name
Phone Number
Fax Number
425-936-7329
Email Address
,Microsoft.com
For the Attention of: For the Attention of:
Volume Licensin Attorne
This agreement consists of(1)this cover page,(2) the attached terms and conditions, (3) the terms of the Microsoft
Business Agreement identified above (except that the definitions of the terms "you", "we", and "us" in this agreement
supercede the definition for these terns provided in the Microsoft Business Agreement) , (4) the Product List, (5) the
product use rights applicable to products licensed under this agreement and (6) any enrollment entered into under this
agreement.
By signing below, you represent that you are either the party that signed the Microsoft Business Agreement, or are an
Ot-nation
ate of the entity that signed the Microsoft Business Agreement identified at the top of this cover page, and that the
you provide on each of the attached forms is accurate.
23
MICROSOFT ENTERPRISE AGREEMENT
TERMS AND CONDITIONS
1. Definitions. In this agreement, "you" means the agency which has entered into this agreement with us, and
it or "us" means the Microsoft company which has signed this agreement. The terms "affiliate,"
"ownership," "product," "Product List," "run" and "use" have the meanings given to them in the Microsoft
Business Agreement identified on the cover page of this agreement. In addition, the following definitions
apply:
"additional products" means those products other than enterprise products that an enrolled affiliate chooses to
license under this agreement;
"enrolled affiliate" means the party, either you or any of your affiliates, which has entered into an enrollment
under this agreement;
"enrollment" means the document that you or your affiliate submits to us or one of our affiliates before orders
can be placed under this agreement;
"enterprise" means the enrolled affiliate and the affiliates it includes in its enterprise on its enrollment;
"enterprise product(s)" means the product(s) that an enrolled affiliate chooses on is enrollment to license
throughout its enterprise;
"license confirmation" means the evidence of license provided by us, or by one of our affiliates;
"qualified desktops" means the personal desktop computers, portable computers, workstations and similar
devices, which are used by and for the benefit of an enrolled affiliate or any affiliate included in its enterprise
and which meet the minimum requirements for running any of the enterprise products. Qualified desktops do
not include: (i) any computer that is designated as a server and not used as a personal computer, or (ii) any
system dedicated to run ONLY line-of-business software (e.g., an accounting or bookkeeping program used by
an accountant, or a computer-aided design program used by an engineer or architect); and
"reseller" means a Large Account Reseller authorized by us or one of our affiliates to resell licenses in an
enrolled affiliate's area under this program.
2. Enterprise Agreement program. Upon entering into this agreement, you and your affiliates may submit
enrollments identifying the enterprise products (and, if applicable, the additional products) you or they wish to
license from us. Each enrollment must include at least one enterprise product. Each enrollment will expire in
accordance with its terms or on the earlier termination of this agreement for cause. Nothing contained in this
agreement obligates us to accept an enrollment.
a. Terms of use. The product use rights applicable to products licensed under each enrollment will be
determined as follows. For any version released on or before the date of the enrollment, the product use
rights in effect on the enrollment date for that product and version will apply. For a later version or product,
the product use rights in effect on the date of commercial release under the Enterprise Agreement program
will apply. In lieu of your obligation to indemnify us under various provisions of the product use rights, you
® agree that you will be completely responsible for any and all costs and damages arising from any claim or
action to which your indemnity obligation would otherwise apply.
24
• b. License confirmation. Upon expiration (but not early termination) of each enrollment, we or one of our
affiliates will issue a license confirmation to each enrolled affiliate for its enterprise products and additional
products. We will issue the license confirmation either via post, express courier, facsimile, or Internet
display. The license confirmations will be your enrolled affiliate's evidence of licenses for (i) the latest
version of each enterprise product in a number equal to the total number of qualified desktops identified in
the enrollment, as updated by annual orders for licenses for additional qualified desktops, and (ii) the latest
version of each additional product in the number initially ordered, as updated by subsequent orders. These
licenses will be issued in the language group designated by the enrolled affiliates on the Enterprise Order
Form. Once an enrolled affiliate has received a license confirmation, the listed licenses (but not rights, if
any, to future releases of products) become perpetual, as long as the products are used only as permitted by
this agreement and the product use rights.
c. Transfers of licenses. Once an enrolled affiliate has received a license confirmation, it may transfer the
licenses identified on the license confirmation to an affiliate, or to an unaffiliated third party in connection
with a merger, consolidation or divestiture. For all other transfers of licenses, our written consent is required.
We will not withhold our consent unreasonably.
In order to transfer licenses, an enrolled affiliate must physically transfer the relevant license confirmations. If
transferring only some of the licenses listed on the license confirmation, the enrolled affiliate must record the
transfer on the face of the license confirmation and provide a photocopy of it to the entity to which the licenses
are being transferred. In addition, no license transfer will be valid unless the entity to which the licenses are
being transferred accepts in writing the applicable product use rights, use restrictions and limitations of
liability. Licenses cannot be transferred on a short-term basis.
•An enrolled affiliate may transfer an upgrade license for an operating system product licensed under this
agreement only as part of the sale or transfer of the computer system on which the product was first installed.
The reference prices for a given enrollment take into account ownership of licenses acquired by any legal
means prior to the execution of that enrollment (pre-existing licenses). Therefore, any license confirmations
issued under this agreement replace all pre-existing licenses for the same or prior versions of the products -
accordingly, pre-existing licenses may not be transferred separately from the licenses acquired under this
agreement. `
Any transfer made in violation of the requirements or restrictions of this section will be void.
d. Resellers. Each enrolled affiliate must choose and retain a reseller authorized in the enrolled affiliate's area.
If at any time during the term of its enrollment the enrolled affiliate wishes to terminate the relationship with
its designated reseller, or if we discontinue the reseller's authority to resell licenses under this program, the
enrolled affiliate must choose a replacement. If an enrolled affiliate intends to change its reseller, a change
may only be made on an anniversary of the effective date of the enrollment. To change a reseller, the enrolled
affiliate must notify us and the former reseller of the proposed change in writing, on a form that we provide,
at least thirty (30) days prior to the anniversary on which the change is to take effect. You will be completely
responsible for all costs and damages arising out of any change of reseller you initiate.
e. Country of usage. Each enrolled affiliate will be asked to represent the total number of qualified desktops in
its enterprise, and to provide a list, by country, of its approximate number of qualified desktops located in
• each country in which it has facilities. This information will be for our internal use only, and will not alter the
reference prices for the enterprise products or additional products licensed under this agreement.
25
3. Ordering enterprise product licenses.
a. Initial order. Each enrolled affiliate must submit an initial purchase order for the enterprise products it has
selected to its reseller. Upon submission of the order and our acceptance of the enrollment, the enrolled
affiliate may, during the term of its enrollment, run one copy of the latest version (or any prior version) of
each enterprise product, in any of the languages that are part of the language group chosen on its enrollment,
on each qualified desktop. By including affiliates in its enterprise, the enrolled affiliate sublicenses this right
to each of them.
b. Subsequent enterprise product orders. An enrolled affiliate may add additional enterprise products to their
existing enrollment or they may sign a new enrollment to cover the additional enterprise products for another
36 full calendar month term. To add additional enterprise products to an existing enrollment, the enrolled
affiliate must submit a purchase order to its reseller for the additional enterprise product(s), identifying
country of usage.
c. Enterprise true up orders. Each enrolled affiliate must determine the current number of qualified desktops
in its enterprise at each anniversary of the effective date of its enrollment and at the expiration or early
termination of the enrollment. If the number has increased, the enrolled affiliate must submit a purchase order
to its reseller to license those additional qualified desktops for the enterprise products it has previously
ordered within 15 days following the anniversary, expiration or termination. In each order, the enrolled
affiliate must identify the country of usage of all additional qualified desktops. If the number has not
increased, the enrolled affiliate must submit a statement to that effect on the form vie provide within that
15-day period.
ed. Acquisitions, Divestitures and Mergers. If the number of qualified desktops in an enterprise changes by
more than ten percent as a result of an acquisition or divestiture, we will work with the enrolled affiliate in
good faith to determine how to accommodate its changed circumstances in the context of this agreement. If
you or any entity included within your enterprise merges with an existing enterprise customer, we will work
with you in good faith to accommodate the surviving entity fairly.
4. Ordering additional product licenses.
a. Initial order. Each enrolled affiliate must submit an initial purchase order for the additional products it has
selected to its reseller. Upon submission of the order and our acceptance of the enrollment, the enrolled
affiliate may, during the term of its enrollment, run the number of copies of the latest version (or any prior
version) of each additional product selected in its enrollment, in any of the languages that are part of the
language group chosen on its enrollment.
b. Subsequent orders. Each enrolled affiliate may run copies of additional products that are not part of the
initial order by complying with the terms of this section. At any time before each anniversary of the effective
date of each enrollment, and before the expiration or early termination of the enrollment, each enrolled
affiliate must submit a purchase order to its reseller for any copies of additional products run within its
enterprise for which it has not previously submitted an order or purchased a license.
In each order, the enrolled affiliate must identify the country of usage of all additional products. Orders placed
under this agreement for any copies of additional products will be deemed to satisfy any obligation under any
•other agreement to order licenses for those copies.
26
5. Reference prices and payment. We or one of our affiliates will invoice each enrolled affiliate's reseller for
*any products ordered according to the payment terms outlined in the applicable enrollment. While the
enrollment will contain reference prices, the enrolled affiliate's price and payment terms for all products ordered
will be determined by agreement with the chosen reseller. Reference prices do not include any applicable taxes,
duties, or tariffs. Product support is not included in the reference prices under this program.
6. Making copies of software. Each enrolled affiliate may make as many copies of the products licensed under
its enrollment as necessary to distribute the products to the users within its enterprise. All copies must be true
and complete copies (including copyright and trademark notices) and be made from CI-ROMs, disk sets or a
network source, acquired from or made available by a Microsoft approved fulfillment source. Each enrolled
affiliate may also have a third party make and distribute copies in its place, but the enrolled affiliate is
responsible for third party actions to the same extent it would be if the third party were its employee.
You and your affiliates must make reasonable efforts to make employees, agents and other individuals running
a product aware that the product is licensed from us and may only be run or transferred subject to the terms of
this agreement. In addition each enrolled affiliate has the right to (i) run up to 20 copies of any product in a
dedicated training facility on its premises; (ii) run up to 10 copies of any product for a 60-day evaluation period;
and (iii) make and retain one copy of any licensed product for back-up or archival purposes for each of its
distinct geographic locations.
7. Term and Termination.
a.Term. This agreement will remain in effect unless it is terminated by either party as described below.
*. Termination. Either party to an enrollment may terminate t for cause. If we terminate an enrollment for
cause (including for non-payment due to non-appropriation of funds), we may also terminate this agreement
and all other enrollments under it. Failure of any enrolled affiliate to submit orders or pay amounts owed
shall constitute cause. Except where the cause for termination is by its nature not curable (or not curable
within 30 days), the terminating party will give 30 days notice and opportunity to cure. If we give such notice
to an enrolled affiliate, we wil I give you a copy of that notice as well. If an enrolled affiliate ceases to be your
affiliate, you must notify us of this fact, and we may terminate its enrollment.
Either party may terminate this agreement for any reason upon 60 days written notice. Such termination will
merely terminate either party's ability to enter into new enrollments under this agreement. Such termination will
not affect any enrollment not otherwise terminated, and any terms of this agreement applicable to any
enrollment not otherwise terminated will continue in effect with respect to that enrollment.
If(1) an enrolled affiliate terminates an enrollment for cause, (ii) we terminate an enrolled affiliate's enrollment
because it has ceased to be your affiliate, or (iii) we terminate an enrollment for cause for non-payment due to
non-appropriation of funds, then the enrolled affiliate will be entitled to require that we issue a license
confirmation for either(i) a number of copies of the products it has licensed under this agreement proportionate
to the total amount it has paid at the time of the early termination; or (ii) all copies of the products it has
licensed under this agreement, provided that it pays the total remaining amount due.
8. Miscellaneous.
Entire agreement. The documents identified on the cover page to this agreement constitute the entire
agreement concerning the subject matter hereof, and supersede any prior or contemporaneous
27
communications. The terms of these documents shall control in the following order: (i) the Microsoft
Business Agreement; (ii) this agreement; (iii) the Product List; (iv) the product use rights; (v) any and all
enrollments under this agreement. The terms of any purchase order or any general terms and conditions you
or your affiliates maintain, other than those mandatory terms required by statute or regulation, do not apply.
This agreement (except the product use rights and the Product List) can.be changed only by an amendment
signed by both parties.
b. Survival. Licenses identified in license confirmations and provisions regarding warranties, limitations of
liability, confidentiality, compliance verification and obligations on termination or expiration will survive
termination or expiration of this agreement or any enrollment.
c. Independent contractors. Resellers are independent contractors who act in their own name and for their own
account, and have no authority to bind or impose any obligation or liability upon us.
28
Microsoft Business Agreement Number U0275474
Microsoft Enterprise Agreement Number O1 E50535
AMENDMENT No 1.
TO
MICROSOFT ENTERPRISE AGREEMENT - STATE & LOCAL
This amendment is made and entered into by and between the undersigned for the purpose of amending
that certain Microsoft Enterprise Agreement - State & Local ("agreement" or "contract") identified above
between State of Florida, Department of Management Services("State" or "you") and MSLI, GP ("us", "we"
or "contractor"). All terms used but not defined in this amendment will have the meanings assigned to such
terms in the Microsoft Business Agreement or this agreement.
1. Amendment.
1. In Section 1, Definitions, the term "reseller" is hereby revised in its entirety to read as follows:
"reseller" means the Large Account Reseller (i) authorized by us or one of our affiliates to resell licenses
in an enrolled affiliate's area under this program, and (ii) which you designate as the sole reseller for
product under this agreement.
2. Section 2a of the agreement, Terms of use, is hereby revised in its entirety to read as follows:
. Terms of use. Use of any product that you license from us is governed by product use rights specific to
each product and version and by the terms of this agreement. For any version released on or before the
date of the enrollment, the product use rights in effect on the enrollment date for that product and version
will apply. For a later version or product, the product use rights in effect on the date of commercial
release under the Enterprise Agreement program will apply. We will use commercially reasonable
efforts to provide you with a copy by mail of any changes to the applicable product use rights; upon
written request by you we will provide you a copy by mail of any changes to the applicable product use
rights. In addition, we will make them available to you either by publication on the World Wide Web at
a site we identify to you or by some other reasonable means. You acknowledge that you have access to
the World Wide Web. We do not transfer any ownership rights in any licensed product and we reserve
all rights not expressly granted. To the extent permitted by Florida law, you agree that you will be
completely responsible for any costs and damages arising from any claim or action under the product use
rights pursuant to any settlement between the parties or any adjudicated claim or action.
3. Section 2b of the agreement, License confirmation, is hereby revised in its entirety to read as follows:
b. License confirmation. Upon expiration (but not early termination) of each enrollment, we or one of
our affiliates will issue a license confirmation to each enrolled affiliate for its enterprise products and
additional products. We will issue the license confirmation either via post, express courier, facsimile,
Internet display or e-mail. Notwithstanding the preceding sentence, we will use commercially reasonable
efforts to provide you with a copy by mail of any license confirmations; upon written request by you we
will provide you a copy by mail of any license confirmations. The license confirmations will be your
enrolled affiliate's evidence of licenses for (i) the latest version of each enterprise product in a number
. equal to the total number of qualified desktops identified in the enrollment, as updated by annual orders
for licenses for additional qualified desktops, and (ii) the latest version of each additional product in the
29
number initially ordered, as updated by subsequent orders. These licenses will be issued in the language
group designated by the enrolled affiliates on the Enterprise Order Form. Once an enrolled affiliate has
received a license confirmation, the listed licenses (but not rights, if any, to future releases of products)
become perpetual, as long as the products are used only as permitted by this agreement and the product
use rights.
4. The first paragraph of Section 2c of the agreement,Transfers of Licenses, is hereby revised in its entirety to
read as follows:
c. Transfers of licenses. Once an enrolled affiliate has received a license confirmation, it may transfer
the licenses identified on the license confirmation to an affiliate as defined in the Microsoft Business
Agreement. For all other transfers of licenses to unaffiliated third parties, including in connection with
privatization of government functions, our written consent is required. We will not withhold our consent
unreasonably.
5. Section 2d of the agreement, Resellers, is hereby revised in its entirety to read as follows:
Resellers. The State may choose to retain one reseller authorized to accept enrollments under this
agreement. If at any time during the term of this agreement the State wishes to terminate the
relationship with its designated reseller, or if we discontinue the reseller's authority to resell licenses
under this program, the State must choose a replacement. If the State intends to change its reseller, a
change may only be made on an anniversary of the effective date of the enrollment, or with prior written
approval of Microsoft. To change a reseller, the State must notify us and the former reseller of the
proposed change in writing, on a form that we provide, at least thirty (30) days prior to the anniversary
• on which the change is to take effect. The State will be completely responsible for all costs and damages
arising out of any change of reseller it initiates. State and its affiliates will be responsible for any costs
and damages arising from the use of reseller(s) other than the reseller designated by State to be used for
all enrollments under this agreement.
6. Section 6 of the agreement, Making copies of software, is hereby revised in its entirety to read as follows:
Making copies of software. Each enrolled affiliate may make as many copies of the products licensed
under its enrollment as necessary to distribute the products to the users within its enterprise. All copies
must be true and complete copies (including copyright and trademark notices) and be made from
CD-ROMs, disk sets or a network source, acquired from or made available by a Microsoft approved
fulfillment source. Each enrolled affiliate may also have a third party make and distribute copies in its
place, but the enrolled affiliate is responsible for third party actions to the same extent it would be if the
third party were its employee. We shall work with you in good faith to resolve any issues you may have
in making or obtaining licensed copies of products in a timely manner.
You and your affiliates must make reasonable efforts to make employees, agents and other individuals
running a product aware that the product is licensed from us and may only be run or transferred subject
to the terms of this agreement. In addition each enrolled affiliate has the right to (i) run up to 20 copies
of any product in a dedicated training facility on its premises; (ii) run up to 10 copies of any product for
a 60-day evaluation period; and (iii) make and retain one copy of any licensed product for back-up or
archival purposes for each of its distinct geographic locations.
•
30
7. Section 8a, of the agreement, Entire agreement, is hereby revised to read as follows:
Entire agreement. The documents identified on the cover page to this agreement constitute the entire
agreement concerning the subject matter hereof, and supersede any prior or contemporaneous
communications. The terms of these documents shall control in the order specified in the Microsoft
Business Agreement. The terms of any purchase order or any general terms and conditions you or your
affiliates maintain, other than those mandatory terms required by statute or regulation, do not apply. This
agreement (except the product use rights and the Product List) can be changed only as required by law
or an amendment signed by both parties.
8. A new Section 8d, Copyright Violation, is added to the agreement as follows:
8d. Copyright Violation. Except to the extent you are licensed under this agreement, you shall be
responsible for your violation of our copyright in the products, including payment of license fees
specified in this agreement for unlicensed use. Your liability under this paragraph is subject to the
limitations found in Section 768.28(18), Florida Statutes, and nothing in this paragraph shall be deemed
to alter the limits set forth therein.
9. A new Section 8e, Cost or Pricing Data, is hereby added to the agreement as follows:
8e. Cost or Pricing Data. We will not, under any circumstances, accept an enrollment that would
require the submission of cost or pricing data. Your reseller will provide pricing for products to you.
I1. Effect of Amendment.
iExcept as specifically amended by this amendment, all provisions of the agreement identified above
shall remain unchanged and in full force and effect. This amendment is not legally binding until executed by
both parties and shall become effective on the date of signature of the contracting Microsoft affiliate. When this
amendment is fully executed, you will receive a confirming copy.
You must execute and return two (2) copies of this amendment to the below address on or before
January 15, 2001, in order for the terms and conditions of this amendment to apply.
MSLI, GP
Attn: Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, NV 89511-1137
•
31
SHI Quote # 535257 Page 1 of 1
Johnson, Vern
From: thomas_naelon@shi.com
Sent: Tuesday, June 10, 2003 2:40 PM
To: Johnson, Vern
Subject: SHI Quote#535257
Pricing Proposal
Quotation#: 535257
Quote Valid Until: 6/30/2003
software house intemational
City of Dania Beach SHI Account Exec
Vern Johnson Thomas Naelon
100 West Dania Beach Blvd. 2 Riverview Drive
Dania Beach, FL 33004 Somerset,NJ 08873
Phone:954-924-3636 Phone:954-581-9997
Fax:954-921-2604 Fax: 954-581-9344
*All Prices are in US Dollar(USD)
Product Qty Your Price Total
1 MS Enterprise Agreement-Full Platform-Office Pro/Win Pro/BackOffice CAL 100 219.97 21,997.00
Mfg Part#:A07-00001
2 Windows Server-EA Addon-UA/SA Match 4 141.00 564.00
Mfg Part#:A07-00002
3 Exchange Server-EA Addon-UA/SA Match 1 138.00 138.00
Mfg Part#:A07-00003
4 SQL Server-EA Addon-SA/UA Matchq 1 131.00 131.00
Mfg Part#:A07-00004
5 SMS Server-EA Addon-UA/SA Match 1 89.00 89.00
Mfg Part#:A07-00005
Total 22,919.00
Additional Comments
To process your order,you can e-mail your request to floridateam@shi.com.You can also fax it to 732-868-6055.
Please include a contact e-mail address on all orders,as this is required by most vendors Thanks!
Florida State Contract 255-001-01-1
6/10/2003
_ Agenda Request Form
City of Dania Beach
a
Agenda Item:
Date of Commission meeting: 6/24/2003
Description of Agenda Item: Resolution for 2nd year of Microsoft software license fees
Commission action being requested:
Adopt Resolution or Ordinance ® Expenditure ® Award BID/ RFP ❑
Presentation ❑ General approval of item ❑ Continued from meeting
Other(Please explain} ' r��
,bac
E
JS� mart'exp�lanation,,and F kground �
In July of last year the City purchased, under an 'Enterprise Agreement"with Microsoft through Software
House International, licenses for pc and server operating systems and for application software such as
. MS Office Suite as well as seat licenses for servers and MS Exchange. This contract allows the Govern-
ment agencies to spread the cost of such licenses over three years instead of paying the total cost at
initiation of the contract. This expenditure represents the second year payment on the Agreement.
a
Attached exhibits;and itional backup material§ (Please list):
Resolution
For purchasing requests ONLY
Department: Information Services Amount: $22,919.00
Fund: General: ® Water: ❑ Sewer: ❑ Stormwater: ❑ Grants: ❑ Capital: ❑
Account Name: Program Support and Maintenance Account Number: 00113041053505
Submitted by: Vern Johnson Date: 6/12/2003
Department Director: Bonnie Temchuk Date: 6/13/2003
Admin. Services Director: Date:
Finance Director: Patricia Varney Date: 6/15/2003
City Manager: Ivan Pato Date: 6/16/2003