HomeMy WebLinkAboutUtiliSync, LLC - 811 Ticket Management System Licensing - 2025 UTILISYNC SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement"), is made and entered into the last date
signed on the signature page (the "Effective Date"), between UtiliSync, LLC, a Utah limited liability
company(the"Company")and the undersigned(the"Licensee").
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Article 1 Interpretation
1.1 Definitions. In this Agreement, the following terms shall have the meanings set forth
below:
(a) "Affiliate" means any entity that controls, is controlled by, or is under common control
with the Licensee. The term"control"as used herein means the possession of the power to direct or cause
the direction of the management and the policies of an entity, whether through the ownership of a
majority of the outstanding voting securities or by contract or otherwise.
(b) "Confidential Information"means the Software,Upgrades,and other information of the
parties,excluding information that:
(i) was in the public domain at the time of the Discloser's communication to the
Recipient;
(ii) enters the public domain subsequent to disclosure through no fault of the
Recipient;
(iii) The Recipient can demonstrate was in the Recipient's possession free of any
obligation of confidence at the time of the Discloser's communication to the Recipient;
(iv) The Recipient can demonstrate was independently developed by the Recipient;or
(v) the disclosure of which is required by law, valid subpoena, or court or
government order, provided, however, that the Recipient provides prompt notice of such
required disclosure and the Recipient shall have made a reasonable effort to obtain a
protective order or other reliable assurance affording it confidential treatment and
limiting its use solely for the purpose for which the law or order requires.
(c) "Data" means the information, facts, and figures produced by the Licensee from using
the Software.
(d) "Derivative Technology" means (i) for copyrightable or copyrighted material, any
translation, modification, correction, addition, improvement, compilation, abridgment, revision, or other
form in which such material may be recast, transformed, or adapted; (ii) for patentable or patented
material, any improvement thereon; and(iii)for material that is a protected trade secret,any new material
that incorporates or is adapted from such existing trade secret material,including new material which may
be protected by copyright,mask work right,patent and/or trade secret.
(e) "Discloser"means a party disclosing Confidential Information.
(f) "Documentation" means all operator, technical and user manuals, training materials,
guides, listings,specifications,and other materials that describe the functionality of the Software,whether
in hard copy or electronic forms,as may be furnished by Company from time to time.
(g) "Recipient"means a party receiving Confidential Information.
(h) "Services"means the professional services and the maintenance and support services.
(i) "Software" means the Company's computer software product described in Schedule A,
any Upgrades thereto and any Derivative Technology, as may be furnished to the Licensee from time to
time, including any source code and object code, technical documentation, paperwork, instructions,
computer programs that comprise a series of instructions,rules,routines,or statements that allow or cause
a computer to perform a specific operation or series of operations and the recorded information
comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related
material that would enable the computer program to be produced or created. Further it means the
graphical interface,images,design materials,and schema design.
(j) "Territory"means those countries listed in Schedule A.
(k) "Update"means the object code revisions to the Software that are made by the Company,
including without limitation all new revisions, enhancements, modifications, bug fixes, corrections and
workarounds.
(1) "Upgrades"means a new release of the Software.
Article 2 Software Licenses
2.1 Grant of License. Subject to the terms and conditions of this Agreement,the Company
hereby grants to the Licensee a limited,non-exclusive,royalty free,non-transferable right and license(the
"License") to use the Software, for Licensee's internal use in connection with the operation of its
business. The parameters of the Licensee's use, including plan level, Territory, division/department,
number of authorized users and free trials granted,are set forth in Schedule A hereto.
2.2 Restrictions on Use. Without limiting any other restrictions and/or limitations set forth
in this Agreement, the Licensee agrees to comply with the following restrictions and limitations,and the
Licensee agrees not to permit others to violate them without the prior written consent of the Company: (i)
the Licensee may not sell,rent,copy,lease,lend,publish,or distribute the Software;(ii)the Licensee may
not alter or remove any copyrights, trademark, patent or other protective notice contained in or on the
Software or Documentation; (iii)the Licensee may not use the Software outside of the Territory;(iv)the
Licensee may not allow more than the permitted number of authorized users to use the Software;and(v)
the Licensee may not reverse engineer, decompile or disassemble the Software or otherwise attempt to
derive its source code.
2.3 Sublicense. The Licensee may not transfer, assign or sublicense, in whole or in part,the
right and License granted to the Licensee without the express written consent of the Company. If
Company does permit the Licensee to sublicense this Agreement,the Licensee will require the sublicense
to comply with the provisions of this Agreement and will remain responsible for any violation or breach
of this Agreement due to the acts or omissions of such sublicensee and the failure of Licensee to enter into
a sublicense with such person. In addition, the Licensee will include a provision in each sublicense
agreement that the Company is an intended third-party beneficiary of such agreement and will have the
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right to enforce directly all rights of and restrictions imposed by the Licensee on the sublicensee with
respect to the Software. Any attempted or actual transfer, assignment or sublicense in violation of the
provisions of this Section will be void and the Licensee will be liable for any damages resulting from such
attempted transfer,assignment or sublicense.
2.4 Royalty Free. The License granted to the Licensee pursuant to this Article 2 are royalty
free.
2.5 Equitable Remedies. The Licensee acknowledges and agrees that in the event of any
breach of the provisions of this Section,the Company would suffer irreparable injury for which monetary
damages would be an inadequate remedy, and, without limitation of any other rights or remedies of the
Company, the Company will be entitled to seek equitable relief, including injunctive relief, for such
breach in any court of competent jurisdiction.
2.6 Delivery of Software. Upon signing this Agreement, the Company will permit the
Licensee to download the Software.
2.7 Storage of Data.All Data,as it relates in any way to this Agreement,shall be stored by a
third-party hired by the Company. The Licensee, may at their expense, store duplicate copies of all Data
that the Licensee has input, that is subsequently stored on the Company's third-party servers. The
Company will store the Data with a reputable third-party. The Licensee stores Data with the Company at
its own risk. The Company will not be liable for any Data that is lost or stolen. The Company will have
the non-exclusive right to use and analyze the Data.
Article 3 Development,Maintenance and Support Services
3.1 Provision of Maintenance and Support Services. The Licensee acknowledges and
agrees that the Company is under no obligation to provide to Licensee any maintenance,support services
or training, other than the support needed to ensure that the Software is working properly.
Notwithstanding the above,if the Licensor creates any updates,Upgrades,new versions,improvements or
other derivative works with respect to the Software, then the Company shall provide the same to the
Licensee and such works will be deemed licensed to the Licensee as part of the Software.
3.2 Transition Services. Upon the termination or expiration of this Agreement, the
Company shall (upon the Licensee's request) provide to the Licensee all reasonably requested services
relating to the Licensee transitioning its use of the Software to the use of different software application(s)
performing similar functions ("Transition Services"). This may include transferring a copy of the Data
to the Licensee. All Transition Services will be performed at Company's then current time and materials
hourly rate.
3.3 Warranty Disclaimer. THE SOFTWARE IS PROVIDED BY THE COMPANY "AS
IS." THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SECURITY AND
WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE
COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S
REQUIREMENTS,WILL OPERATE WITHOUT INTERRUPTION,OR WILL BE ERROR FREE.
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Article 4 Fees and Payment
4.1 Fees. In consideration for the License and other benefits and rights conferred upon
Licensee, Licensee shall pay to Company a set-up fee, as set forth in Schedule A hereto (the "Set-up
Fee"). In addition to the Set-up Fee, the Licensee will pay an annual fee to the Company based on the
level of plan that the Licensee signed up for, as set forth in Schedule A hereto(the"Annual Fee"). The
Set-up Fee and Annual Fee shall be payable upon the later of(a) execution of this Agreement and (b)
receipt of the Software. In order to maintain a License to use the Software, the Licensee must pay the
Annual Fee each year before the anniversary of the Effective Date. If the Licensee fails to make a timely
payment of the Annual Fee,the Company may cancel or suspend the license and require that the Licensee
pay the Set-up Fee again before using the Software.
4.2 Taxes. The Licensee shall be responsible for all sales,use,excise and value added taxes
(but not including taxes based on the Company's income) imposed by any federal, provincial, state or
local governmental entity for the Software or the services provided under this Agreement.
4.3 Books and Records. Licensee shall keep and maintain as its offices complete and
accurate books of account and records relating to the use of the Software.
4.4 Audit. During the Term, the Company, at its own expense, may audit the Licensee's
books and records. Any such audit shall be conducted during regular business hours at the Licensee's
facilities and shall not unreasonably interfere with the Licensee's business activities. If an undisputed
audit reveals that the Licensee has underpaid allowed people outside of the authorized department or more
than the authorized number of users use of the Software, the Licensee shall pay the amount that would
have been required to License those unauthorized users,plus 10%interest per annum penalty fee.
Article 5 Intellectual Property
5.1 All Rights Reserved. The Company retains title to and ownership of,and all other rights
with respect to the Software, including, without limitation, any related copyrights, trademarks, trade
secrets, patents, and other intellectual property rights associated therewith. The Licensee has only the
limited license granted with respect to the Software as expressly set forth in this Agreement, and the
Licensee has no other rights, implied or otherwise. The Licensee acknowledges and agrees that the
Software is licensed, not sold, and that rights to access the Software are acquired only under this
Agreement. The structure and organization of the Software (a) may not be distributed, disclosed or
otherwise provided to third-parties and(b) may be used only internally,and only in conjunction with and
for the Licensee's own authorized internal use.
5.2 Unauthorized Possession or Use of the Software. The Licensee shall notify the
Company as soon as possible upon knowledge of any unauthorized possession or use of,or access to,the
Software. The Licensee shall promptly furnish the Company with full details of such situation, assist in
preventing any recurrence thereof, and co-operate at the Company's expense in any litigation or other
proceedings reasonably necessary to protect the intellectual property rights of the Company.
Article 6 Confidentiality
6.1 Obligation of Confidentiality. Pursuant to this Agreement,each party may,from time to
time, furnish the other party to this Agreement with certain Confidential Information. The Recipient shall
use the same care to avoid disclosure of such Confidential Information as it uses with its own similar
Confidential Information which it does not wish to disclose, but such standard of care shall not be less
than a reasonable standard of care. The Recipient shall not disclose the Confidential Information,
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including any trade secret, confidential or proprietary information contained within the Confidential
Information, to any persons other than its directors, officers,employees,contractors,agents,professional
advisors or other representatives who have a need to know the Confidential Information, and who are
under an obligation of confidentiality substantially similar to the terms of this section prior to such
disclosure.
6.2 Injunction. The parties agree that a breach of the confidentiality obligations in Section
6.1 by the Recipient would cause immediate and irreparable damage to the Discloser and will entitle the
Disclosure to make application to a court of competent jurisdiction for injunctive relief in addition to all
other remedies available at law.
6.3 Circumvention. The Licensee may not (i) utilize any equipment, device, software, or
other means to (or designed to) circumvent or remove any form of technical protection used by the
Company in connection with the Software. Without limitation of the generality of the foregoing, the
Licensee may not utilize any equipment, device, software, or other means to(or designed to)circumvent
or remove any tool or technical protection measure provided or made available by the Company for
managing, monitoring or controlling access to the Software.The Licensee may not utilize any equipment,
device, software, or other means to (or designed to) circumvent or remove any usage restrictions, or to
enable functionality disabled by the Company, in connection with the Software. The Licensee may not
bypass or delete any functionality or technical limitations of the Software that (or that are designed to)
prevent or inhibit the unauthorized copying or access to the Software.
Article 7 Term and Termination
7.1 Term. The term (the "Term") of this Agreement begins on the Effective Date and ends
one year thereafter. Provided the Licensee has made the Annual Payment to the Company on or before
the anniversary of the Effective Date or any renewal term,the Term will be automatically extended for an
additional year. If the Annual Payment has not been timely made,use of the Software will be suspended.
7.2 Termination. In the event of any default under this Agreement which remains uncured
30 days following receipt of written notice of such default, the non-defaulting party may terminate this
Agreement upon delivery of written notice to the defaulting party. Upon termination of this Agreement,
all rights granted to the Licensee in respect of the subject matter of the termination shall revert to the
Company, the Licensee shall immediately discontinue use of the Software and, upon request by the
Company, the Licensee shall certify in writing to the Company within 30 days that the affected copies of
the Software have either been returned to the Company and use discontinued.
7.3 Survival of Provisions. Expiration or earlier termination of this Agreement,in whole or
in part, through any means and for any reason shall not relieve the parties of any obligation accruing prior
thereto, including, but not limited to, the obligations to pay all undisputed invoices outstanding as of the
date of termination. Notwithstanding the expiration or earlier termination of this Agreement, in whole or
in part, the provisions of Sections 2.7, 3.2, 4.4, 5.1 and Article 6, and Article 8, will survive such
expiration or earlier termination and shall be without prejudice to the rights and remedies of either party
with respect to the antecedent breach of any of the provisions of this Agreement.
Article 8 General Provisions
8.1 No Consequential Damages. Under no circumstances,including negligence,shall either
of the parties be liable for any loss of profits, savings or goodwill, loss or inaccuracy of data, or any
indirect, punitive, exemplary, incidental, special or consequential damages (whether in contract, tort,
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including negligence, or otherwise), even if the parties have been advised of the possibility of such
damages.
8.2 Affiliates. The Licensee shall ensure compliance with the terms of this Agreement by its
Affiliates as if such Affiliates were the Licensee hereunder.
8.3 Applicable Law. This Agreement shall be construed, interpreted and governed by the
laws of the State of California without regard to their conflict of laws rules. All disputes will be settled in
the courts of California and the parties hereby agree to such exclusive jurisdiction.
8.4 Assignment. This Agreement may not be assigned by either party without the prior
written consent of the other party,not to be unreasonably withheld; provided that each party will have the
right to transfer this Agreement, and assign all of its rights and delegate all of its obligations hereunder,to
any Affiliate or any successor by way of merger or consolidation, or in connection with the sale or
transfer of substantially all of its business and assets (upon notice to the other party) provided that the
assignee agrees in writing to perform (and can perform) all of the obligations of the assignor hereunder.
All the terms and conditions of this Agreement shall be binding upon and for the benefit of the parties
hereto and their successors and permitted assigns.
8.5 Counterparts. This Agreement may be executed in counterparts and by facsimile,email
attachment, or other electronic or digital means, each of which will together, for all purposes, constitute
one and the same instrument, binding on the parties, and each of which will together be deemed to be an
original,notwithstanding that the parties are not signatories to the same counterpart.
8.6 Entire Agreement. This Agreement, including any exhibits and documents referenced
herein, constitutes the entire agreement among the parties concerning the subject matter hereof, and
supersedes all written or oral, express or implied, prior agreements or understandings, with respect
thereto.
8.7 Force Majeure. Neither party shall be liable for any costs or damages resulting from its
inability to perform any of its obligations under this Agreement due to acts of God,the elements, strikes,
actions or decrees of governmental bodies or any other causes beyond the reasonable control of the
affected party (a "Force Majeure Event"). A Force Majeure Event shall not constitute a breach of this
Agreement. The party so affected shall immediately give notice to the other party of the Force Majeure
Event. Upon such notice, all obligations of the affected party under this Agreement which are reasonably
related to the Force Majeure Event shall be immediately suspended, and the affected party shall do
everything reasonably possible to resume performance as soon as practicable.
8.8 Power and Authority; No Conflict. The Company represents and warrants that it is the
owner of the Software and has the authority to grant this License. Each party to this Agreement
represents and warrants that it has the full right, power and authority to enter into this Agreement and to
discharge its obligations hereunder. Each party further represents and warrants that neither the execution,
delivery and performance of this Agreement by such party nor the consummation by such party of the
transactions contemplated hereby will conflict with, or result in a breach of, any of the terms,conditions
or provisions of such party's governing documents,or any other agreement to which it is a party.
8.9 Headings. The headings in this Agreement are solely for convenience of reference and
shall not be used for purposes of interpreting or construing the provisions thereof.
8.10 Notice. Any notice, demand, request, waiver or other communication required or
permitted to be given pursuant to this Agreement must be in writing(including electronic format)and will
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be deemed by the parties to have been received (i) upon delivery in person (including by reputable
express courier service) at the address set forth below; (ii) upon delivery by facsimile (as verified by a
printout showing satisfactory transmission) at the facsimile number designated below (if sent on a
business day during normal business hours where such notice is to be received and if not, on the first
business day following such delivery where such notice is to be received); (iii) upon delivery by
electronic mail (as verified by a printout showing satisfactory transmission)at the electronic mail address
set forth below (if sent on a business day during normal business hours where such notice is to be
received and if not, on the first business day following such delivery where such notice is to be received);
or (iv) upon three business days after mailing with the United States Postal Service if mailed from and to
a location within the continental United States by registered or certified mail, return receipt requested,
addressed to the address set forth below. Any party hereto may from time to time change its physical or
electronic address or facsimile number for notices by giving notice of such changed address or number to
the other party in accordance with this section.
If to the Company at: Matthew Stayner
UtiliSync,LLC
9980 South,300 West,Ste 200
Sandy,UT 84070
Email: EDstayner@utilisync.com
With a copy(which will not Amy Morrissey
constitute notice)to: Freeman l Lovell,PLCC
9980 South,300 West, Ste 200
Sandy,UT 84070
Email: Amy.morrissey@freemanlovell.com
If to the Licensee at: Arturo Gonzalez
City of National City
1243 National City Blvd.
National City,CA 91950
Email: arturog@nationalcityca.gov
8.11 No Waiver. No notice of waiver of any term of this Agreement shall be effective unless
in writing signed by the parties making such waiver. No failure to exercise and no delay in exercising,on
the part of either party, any right,power or privilege hereunder shall operate as a waiver thereof,nor shall
any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the
same right or the exercise of any other right hereunder.
8.12 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or
construed as creating a joint venture or partnership between the parties to this Agreement.No party is by
virtue of this Agreement authorized as an agent, employee, or legal representative of any other party.No
party shall have the power to control the activities and operations of any other, and their status is,and at
all times will continue to be, that of independent entities with respect to each other. No party shall have
any power or authority to bind or commit any other.
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8.13 Severability. If any provision of this Agreement is held invalid or otherwise
unenforceable, the enforceability of the remaining provisions shall not be impaired thereby and, in such
an event, such provisions shall be interpreted so as to best accomplish the intent of the parties within the
limits of applicable law.
[Signature Page Follows]
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SIGNATURE PAGE
IN WITNESS WHEREOF each of the parties hereto has executed this Agreement the respective
date set forth below.
UtiliSync,LLC City of National City,CA
by its authorized signatory: by its authori signatory:
g4 " ,Atia
Name: Matthew Stayner Name: ° W H U�
Title: President Title: iktrEavvt C I I4'I/kCf .
Date: 6/26/2025 Date: 7///�.09,c
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SCHEDULE A
This agreement entitles the Licensee to the software as described below.
Software
UtiliSync TMS.An 811 ticket management system that integrates with ArcGIS, allowing locators to view
their 811 tickets and GIS utility information on the same map.
Territory
City of National City, CA boundary and area outside of the city where National City has city-owned
utilities.
Number of Users
Up to 100 811 Locate User
Number of Tickets Processed Annually
Up to 2,000 tickets
Term
Time period: 1 year
One-time Implementation Fee
$795
Cityworks Integration Annual Fee
$995
3 Months Fee(April,May,and June)
$300(No charge for April)
Annual Fee
$1,800
The first invoice, due upon receipt,will be for$1095.This covers$300 for TMS service for April,May,
and June(no charge for April),and a$795 implementation fee.
The second invoice will be for$2795. This covers$1800 annual TMS service fee and$995 annual
Cityworks Integration fee, covering the period from July 1,2025,to June 30, 2026.
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