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HomeMy WebLinkAbout19-141 Resolution No. 19-141 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH IDEMIA IDENTITY & SECURITY USA, LLC, FOR THE PURCHASE OF LIVESCAN STATION TOUCH-PRINT FINGERPRINT SYSTEMS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9)the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with Idemia Identity & Security USA, LLC, for the purchase of LiveScan Station Touch-Print Fingerprint Systems, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: October 9, 2019 Adopted: October 9, 2019 Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 9th day of October, 2019, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Idemia Identity& Security USA, LLC, a Delaware limited liability company(hereinafter referred to as "IDEMIA" or "Seller"). NOW, THEREFORE, for and in consideration of the promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. PURCHASE. City shall purchase, and IDEMIA shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. 2. TERMS. This agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A. 3. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. IDEMIA hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and IDEMIA agrees that service by first class U.S. mail to IDEMIA, 296 Concord Rd, #300, Billerica, MA 01821, shall constitute effective service. Both parties hereto waive any rights to a jury. 4. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5. MERGER. This agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 6. INTEREST. IDEMIA hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including,but not limited to,pursuant to the Local Government Prompt Payment Act(50 ILCS 505/1,et seq.), as amended,or the Illinois Interest Act(815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 7. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. Reference:IDIL-L081619-05A Page I of 3 idemia Identity&Security USA LLC•5515 East La Palma Avenue.Suite 100.Anaheim.CA 921107•BN%t.idrn4P cPl t 8. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, IDEMIA shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, IDEMIA hereby certifies, represents and warrants to the City that all of IDEMIA'S employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. IDEMIA shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of IDEMIA to determine IDEMIA'S compliance with the provisions of this section, subject to the reasonable security and timing requirements of IDEMIA. In the event the City proceeds with such an audit, IDEMIA shall make available to the City IDEMIA'S relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 9. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e- mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. 10. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall control. 11. PAYMENT. City shall pay the total sum of$41,654 to IDEMIA pursuant to Attachment A within thirty(30)days of installation and delivery of all deliverables,or City's receipt of invoice,whichever is later. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. 12. DELIVERY. IDEMIA shall fully perform, and complete delivery of all goods on or before January 31, 2020. 13. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 14. LIMITATION OF LIABILITY. Except for personal injury or death, 1DEMIA'S total liability, whether for breach of contract, warranty, negligence, strict liability in tort, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the purchase price of the products or services for which losses or damages are claimed. 1DEMIA WILL NOT BE LIABLE FOR ANY COMMERCIAL Reference:IDIL-L081619-05A Page 2 of 3 Idemia Identity&Smirk) USA LLC•5515 East La Palma Avenue,Sutc 190 Anaheim,CA 92807• • ;:n;,;.,,, LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE PRODUCTS, OR THE PERFORMANCE OF SERVICES BY IDEMIA PURSUANT TO THIS AGREEMENT. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one year after the accrual of the cause of action. This limitation of liability survives the expiration or termination of this Agreement. 15. CONFIDENTIAL INFORMATION AND PRESERVATION OF PROPRIETARY RIGHTS. The IDEMIA Standard Software License Agreement ("SLA"), receipt of which the City acknowledges and which is incorporated herein by reference, governs software licensing, ownership, and confidentiality. As to any other information marked "Confidential" and provided by one party to the other, the receiving party will maintain the confidentiality of the information and not disclose it to any third party; take necessary and appropriate precautions to protect the information; and use the information only to further their performance of this Agreement. Confidential information is and will remain the property of the disclosing party, and no grant of proprietary rights in the confidential information is given or intended. IDEMIA, any copyright owner of Non-IDEMIA Software, and any third party manufacturer own and retain all of their proprietary rights in the equipment, parts and software, and nothing herein is intended to restrict their proprietary rights. Except as explicitly provided in the SLA, this Agreement does not grant any right, title or interest in IDEMIA'S proprietary rights, or a license under any IDEMIA patent or patent application. Notwithstanding anything to the contrary,herein, the City's good faith compliance with the provisions of the Illinois Freedom of Information Act(5 ILCS 140/1, et seq.) shall not be construed as, and shall not constitute a breach of this Agreement. IDEMIA IDENTITY & SECURITY USA CITY LGIN LLC Print • Richard G. Ko al, City Manager Attest: aC /' A S City .1- k vital& I . - (4Z&Li✓r Title F',Legal Dept\AgreementWurchasc Agreement-IDEM IA-Fmgerpnnting-10-1-19 docx Reference:IDIL-1081619-05A Page 3 of 3 Idemla Identity&Security USA LLC•5515 East La P.:Inu Asenue,Su.te IMI),Anaheim (A 97807•nun,ldtt�tlJdc C) ATTACHMENT A (( DIDEMIA 5515 East La Palma Avenue Suite 10,1 Anaheim CA 92807 September 11, 2019 Mike Bayard City of Elgin Police Department Elgin, IL Email: BAYARD_M©cityofelgin org Reference No. IDIL-L081619-05A This proposal replaces the previous proposal Reference No. Il)IL-L081619-05 IDEMIA is pleased to provide City of Elgin Police Department with the following proposal for the IDEMIA LiveScan Station equipped with the accepted standard State of Illinois software and workflows. IDEMIA's fully integrated LiveScan solution provides City of Elgin Police Department the following features and benefits: • Single-source vendor for all components of the LiveScan solution, including the AFIS interface for records submission to the State. • Certification to the FBI's Electronic Fingerprint Transmission Specifications • "Hit/No Hit" Response from the State AFIS Search • Automatic fingerprint sequencing and duplicate print checking before scanning is completed, ensuring data integrity • Quick check, review, and edit can be performed on each print • All livescan configurations include on-site installation, training, and 1 year on-site warranty Reference: IDIL-L081619-05A Page 4 of 3 Idemia Identit}&Securii5 USA LLC•5515 East La P.Ina•5.enuc.Suue 100.Anaheim.CA 921107•'AhW.ldia:w-cote: Solution Description and Pricing IDEMIA proposes the equipment and services described in Table 1. 'len t rint/Palmprint -Cabinet Table I.Pride Price source:SL-LAWENF Description Qty Unit Total Price TPE-5600-ED IDEMIA LiveScan Station Cabinet 2 $18,236 $36,472 5600-TPE-ED-W95 Tenprint/Palmprint,including: TPE-COMX-FTP-SSH TPE-COMX-FTP • IDEMIA LiveScan Station Software TPE-CSTX-ILLINOIS • FBI Appendix F Certified Tenprint/Palmprint TPE-CSTX-ILPALM 500PPt Scanner with Moisture Discriminating TPE-SWOX-PRINTPpF Optics Scanners" (MDO)Block Technology TP-NWOX-ADLNIC2 p TPE-SWOX-Dl-OFCS-BPUSH • Computer, Monitor,keyboard TP-IAT-CUSTOM • Ruggedized Cabinet • Standard Illinois defined Workflows and profiles • Demographics Interface • Installation/On-site Training • Warranty 1 Year On-site Advantage Solution warranty, 9X5, Next day on-site response and parts replacement • Freight Current shipping is 90 days after receipt of completed installation documentation, or as otherwise scheduled. .Vote:Stale of Illinois requires capture and subnrission of Photo for submission FEE A PP transactions(,-1 pplicanr). Options and Pricing IDEMIA e•ui.ment o• ions and .ricin: described in Table 2, • .•Ions Prici Description Qty Unit Total Price 'PRT"OUP MT. Printer Black&White Tenprint Card, Duplexer 2 $2,546 $5,092 17UP-YY•S ll)EMIA LiseScan Station - Details Table 3.Details Item Desc Illinois Enterprise • Capture Types: APP,ARR,CUR,FAP,FPQ,JUV, RAR,UFP Customization • Cards: Criminal Justice Applicant, Arrest Card, Custodial Card, FEE Applicant Card,Fingerprint Inquiry Card,Juvenile Arrest Card,Access and Review Card, Conviction Information Request Card, FD884, FD249 and FD258. • Transmits;to Illinois NATMS • Return Messages:Yes via NATMS Protocol • Client Plugtn importers:CJIS_Query,DBI_Flat,XML_File • Server Importers:OFCS,XML TPE-COMX-FTPSSH • Touch Print Enterprise Fingerprint Record Transmission via FTP over SSH(SFTP).Provides secure FTP Communication using SSH(Secure J Customer Responsibilities City of Elgin 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 the necessary agencies. • Providing the necessary local area and wide area networking (LAN and WAN)including service and backend connectivity as well as any required VPN authorizations Reference:IDIL-L0S1619-05A Page 5 of 3 Idemia Identity&Security IDSA LLC•5515 East La Palma Avenue,Suite 100.Anaheim.CA 92807•wvoiLie tn:1CVI.1 • Obtaining all required authorizations for connectivity. Assumptions In developing this proposal, IDEMIA has made the following assumptions: • The proposed IDEMIA LiveScan Station shall conform to the existing IDEMIA LiveScan configuration. Any additional functional requirements may be treated as change orders. • An inter-agency agreement between City of Elgin Police Department and applicable receiving agencies will be in place. • City of Elgin Police Department will provide all necessary communication for connectivity. This includes, but is not limited to hubs, routers, modems,etc. Additional engineering effort by IDEMIA beyond the scope of the standard product will be quoted based on current service rates in effect at the time of the change, plus any related travel or administrative expenses. Assistance with training and questions for the City of Elgin Police Department's database or any programming, scripting, or review of programs beyond work quoted above are excluded from this offer. Prices are exclusive of any and all state, or local taxes, or other fees or levies. Customer payments are due to IDEMIA within 30 days after the date of the invoice. Product purchase will be governed by the IDEMIA Agreement, a copy of which can be furnished upon request. Firm delivery schedules will be provided upon receipt of a purchase order. No subsequent purchase order can override such terms. Nothing additional shall be binding upon IDEMIA unless a subsequent agreement is signed by both parties. IDEMIA reserves the right to substitute hardware of equal value with equal or better capability, based upon market availability. If, however such equipment is unavailable, IDEMIA will makes its best effort to provide a suitable replacement. Proposal Expiration: December 31, 2019 Purchase orders should be sent to IDEMIA by electronic mail, facsimile or U.S. mail. Please direct all order correspondence, including Purchase Order, to: Jayne Goodall 1DE<MIA 5515 East La Palma Avenue,Suite 100 Anaheim,CA 92807 Email: jayne.goodall,u.idcnaa.com;Tel(714)575-2956 We look forward to working with you. Sincerely, Michael Kato Vice President of Public Security, State& Local Government- IDEMIA ATTACHMENT B—SOFTWARE LICENSE AGREEMENT In this Exhibit A,the term"Licensor'means IDEMIA Identity&Security USA LLC,('IDEMIA");"Licensee,"means the Customer;'Primary Agreement' means the agreement to which this exhibit is attached(IDEMIA Short Form Sales Agreement);and'Agreement'means this Exhibit and the appl•cable terms and conditions contained in the Primary Agreement. The parties agree as follows: For good and valuable consideration,the parties agree as follows: SECTION 1.DEFINITIONS 1.1 "Designated Products"means products provided by IDEMIA to Licensee with which or for which the Software and Documentation is licensed for use. 1.2 'Documentation'means product and software documentation that specifies technical and performance features and capabilities,and the user,operation and training manuals for the Software(including all physical or electronic media upon which such Information Is provided). 1.3 'Open Source Software'means software with either freely obtainable source code,license for modification,or permission for free distribution 1.4 'Open Source Software License'means the terms or conditions under which the Open Source Software is licensed. 1.5 "Primary Agreement-means the agreement to which this exhibit is attached(IDEMIA Short Form Sales Agreement). 1.6 'Security Vulnerability'means a flaw or weakness in system security procedures,design,implementation,or internal controls that could be exercised(accidentally triggered or intentions l),exploited)and result in a security breach such that data is compromised,manipulated or stolen or the system damaged. 1.7 'Software'(i)means proprietary software in object code format,and adaptations,translations,de-compilations,disassemblies,emulations or derivative works of such software;(ii)means any modifications,enhancements,new versions and new releases of the software provided by IDEMIA. and(iii)may contain one or more items of software owned by a third party supplier. The term"Software"does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement SECTION 2.SCOPE IDEMIA and Licensee enter into This Agreement in connection with IDEMIA's delivery of certain proprietary Software or products containing embedded or pre-loaded propoelary Software,or both. This Agreement contains the terms and conditions of the license IDEMIA is providing to Licensee.and Licensee's use of the Software and Documentation. SECTION 3.GRANT OF LICENSE 3.1. Subject to the provisions of this Agreement and the payment of applicable license fees,IDEMIA grants to Licensee a personal,I milted,non- transferable(except as permitted in Section 7)and non-exclusive license under IDEMIA's copyrights and Confidential Information(as defined in the Primary Agreement)embodied in the Software to use the Software,in object code form,and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code. 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software,the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's use of the Open Source Software,the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee,IDEMIA will use commercially reasonable efforts to.(i)determine whether any Open Source Software is provided under this Agreement;(ii)identify the Open Source Software and provide Licensee a copy of the applicable Open Source Software License (or specify where that license may be found);and,(ii)provide Licensee a copy of the Open Source Software source code,without charge.if it is publicly available(although distribution fees may be applicable). SECTION 4.LIMITATIONS ON USE 4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Withcut limiting the genera(nature of these restrictions,Licensee will not make the Software available for use by third parties on a"time sharing,'applicat'_on service provider' or"service bureau' basis or for any other similar commercal rental or sharing arrangement. 4.2. Licensee will not,and will not allow or enable any third party to:(i)reverse engineer,disassemble,peel components,decompile,reprogram or otherwise reduce the Software or any portion to a human perceptible 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 or Documentation to any third party,grant any sublicense or other rights in the Software or Documentation to any third party,or take any action that would cause the Software or Documentation to be placed in the public domain:(iv)remove,or in any way alter or obscure,any copyright notice or other notice of IDEMIA's proprietary rights;(v)provide, copy,transmit,disclose,divulge or make the Software or Documentation available to,or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement;or(vi)use,or permit the use of,the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back-up,or disaster recovery purposes;provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software. 4.3. Unless otherwise authorized by IDEMIA in writing,Licensee will not,and will not enable or allow any third party to (Q install a licensed copy of the Software on more than one unit of a Desgnated Product;or(ii)copy onto or transfer Software installed in one unit of a Designated Product onto another device. Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning,if Licensee provides written notice to IDEMIA of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to IDEMIA at the time temporary transfer is discontinued. SECTION 5.OWNERSHIP AND TITLE IDEMIA.its licensors,and its suppliers retain all of their proprietary rights 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 other proprietary rights in or relating to the Software and Documentation(including any corrections,bug fixes,enhancements,updates,modifications,adaptations,translations.de-comp'tabons disassemblies,emulations to or derivative works from the Software or Documentation,whether made by IDEMIA or another party or any improvements that result from IDEMIA's processes or,provision of information services). No rights are granted to Licensee under this Agreement by implication, 7 estoppel or otherwise,except for those rights which are expressly granted to Licensee in this Agreement. Alt intellectual property developed.originated, or prepared by IDEMIA in connection with providing the Software,Designated Products,Documentation or related services,remains vested exclusively in IDEMIA,and Licensee will not have any shared development or other intellectual property rights SECTION 6.LIMITED WARRANTY;DISCLAIMER OF WARRANTY 6.1. If Licensee is not in breach of any of its obligations under this Agreement,IDEMIA warrants that the unmodified Software,when used properly and in accordance with the Documentation and this Agreement,will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software Whether a defect occurs will be determined by IDEMIA solely with reference to the Documentation. IDEMIA does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted, error-free,completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular requirements. IDEMIA makes no representations or warranties with respect to any third party software included in the Software. 6.2 IDEMIA's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant,demonstrable program or documentation errors or Security Vulnerabilities. If IDEMIA cannot correct the defect within a reasonable time,then at IDEMIA's option,IDEMIA will replace the defective Software with functionally-equivalent Software,license to licensee substitute Software which will accomplish the same objective. or terminate the license and refund the Licensee's paid license lee 6.3. Warranty claims are described in the Primary Agreement. 6.4. The express warranties set forth In this Section 6 are in lieu of, and IDEMIA disclaims,any and all other warranties(express or implied, oral or written) with respect to the Software or Documentation, Including, without limitation, any and all implied warranties of condition,title,non-Infringement,merchantability,or fitness for a particular purpose or use by Licensee(whether or not IDEMIA knows,has reason to know,has been advised,or is otherwise aware of any such purpose or use),whether arising by law,by reason of custom or usage of trade,or by course of dealing. In addition,IDEMIA disclaims any warranty to any person other than Licensee with respect to the Software or Documentation. SECTION 7.TRANSFERS Licensee will not transfer the Software or Documentation to any third party without 10EMIA's prior written consent. IDEMIA's consent may be withheld at its discretion and may be conditioned upon transferee paying all applicable license fees and agreeing to be bound by this Agreement. SECTION 8.TERM AND TERMINATION 8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by IDEMIA.unless Licensee breaches this Agreement,in which case this Agreement and Licensee's right to use the Software and Documentation may be terminated immediately upon notice by IDEMIA. 8.2 Within thirty(30)days atter termination of this Agreement.Licensee must certify in writing to IDEMIA that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to IDEMIA or destroyed by Licensee and are no longer in use by Licensee. 8.3 Licensee acknowledges that IDEMIA made a considerable investment of resources in the development.marketing.and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to IDEMIA for which monetary damages would be inadequate. If Licensee breaches this Agreement,IDEMIA may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government), SECTION 9.UNITED STATES GOVERNMENT LICENSING PROVISIONS 8 RESTRICTED RIGHTS LEGEND This Section applies if Licensee is the United States Government or a United States Government agency. Licensee's use,duplication or disclosure of the Software and Documentation under IDEMIA's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs(cx1)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 the Software and Documentation are being provided to the Department of Defense.Licensees use,duplication,or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph(c)(1Xw)of the Rights in Technical Data and Computer Software clause at OFARS 252.227-7013(OCT 1988),if applicable. The Software and Documentation may or may not include a Restricted Rights notice,or other notice referring to this Agreement The provisions of this Agreement will continue to apply,but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above,as applicable to the particular procuring agency and procurement transaction. SECTION 10.CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain IDEMIA's valuable proprietary and Confidential Information and are IDEMIA's trade secrets,and that the provisions in the Primary Agreement concerning Confidential Information apply SECTION 11.GENERAL 11.1. COPYRIGHT NOTICES.The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software. 11.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations,including export laws and regulations of the United States. Licensee will not,without the prior authorization of IDEMIA and the appropriate governmental authority of the United States,in any form export or re-export sell or resell ship or reship,or divert,through direct or indirect means,any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies al the time of the action.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 the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity.to the extent they do not conflict with the laws of the United States,or the internal substantive laws of the State of Delaware If Licensee is not a sovereign government entity. The terms of the U.N.Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Transaction Act.any version of this Act,or a substantially similar law(collectively'UCITA')becomes applicable to a party's performance under this Agreement.UCITA does 8 not govern any aspect of tills Agreement or any license granted under this Agreement,or any of the parties'rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA. 11.4. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of IDEMIA and Licensee. No third party has the right to make any claim or assert any right under th s Agreement,and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing. any licensor or supplier of third party software Included in the Software will be a direct and intended third party beneficiary of this Agreement. 11.5 PREVAILING PARTY. In the event of any dispute arising out of the subject matter of this Agreement,the prevailing party shall recover,in addition to any other damages assessed,its reasonable attorneys'fees and court costs incurred in arbitrating,litigating,or otherwise settling or resolving such dispute. 11.6 SURVIVAL. Sections 4,5,6.3,7,8.9,10,and 11 survive the termination of this Agreement. 9