HomeMy Public PortalAboutCaselle - Service Agreement 1-16-20.pdfCASUL , INC.
Software as a Service Agreement
Caselle, Inc. City of Tybee Island.
1656 S East Bay Blvd 403 Butler Ave
Suite 100 Tybee Island, GA 31328
Provo, UT 84606
TERMS OF SERVICE.
These Terms of Service constitute an agreement (this "Agreement"j by and Between Caselle; Inc.; a Utah.
Corporation, ("Provider") and the City of Tybee Island, GA,. ("Recipient").
1. Definitions.
(a)' "Account" refers to the Service plans and features selected by Recipient at the time of this
Agreement and accepted by Provider, as such pians and features may change by mutual consent
of the parties, as recorded by Provider.
(b) "AUP" refers to Provider's acceptable use.policy as described in Schedule B,
(c) "Authorized. Representative" refers to an. individuaI wha is authorized. under applicable law to
bind and/or consent on behalf of the Provider or Recipient.
(d) "Data Policy refers to Provider's standard data deletion policy as described in Schedule A of this
Agreement.
(e) "Effective Date" -refers to .the date of this Agreement:
(f) "Materials." refers to written and graphical content provided by or through the Service,
including, without limitation, text, photographs, illustrations, and designs; whether provided. by
Provider, another customer of the Service, or any other third party.
(g). "Recipient Data" refers to data in electronic form input or collected through the Service by or
from Recipient.
(h) "Service" "refers. to Provider's hosted version of the:Case IIe Connect software., The :Serv1ce
includes such features -as are setforth on Provider's website (www.caselle.corn), as Provider
may change.such features from time to time, in its sole discretion..
(1) "Service Failure" refers to an event during which Recipient is unable to access or use the service
for. more than four (4). hours.
2. Service & Payment.
(a) . Service. Provider will provide. the Service to Recipient pursuant to its standard policies and
procedures then in effect.
(b) Payment. Upon completion of data conversion and training,: Recipient will pay Providers
monthly Service fee of $5,871.00. The Service fee will be considered due..five (5) -days before the
start of the. calendar month of Service.
3. Service Level Agreement.
In the event of any "Service Failure;' as that term is defined above, Provider will.issue Recipient a
.credit. Credit will be 105 of the Recipient's monthly Service fee. Credits issued will apply to
outstanding or future payments only and are forfeited upon termination of this Agreement. Provider
is not required to. issue refunds or to. make payments against such credits under any circumstances,
includingwithout limitation termination of this Agreement. Credits issued are the Recipient's sole
remedy for the Service Failure in question. Provider shall not be liable for service failures caused by
factors beyond thereasonable control of the Provider, such as, but -not limited to; strikes,
insurrection, war; fire, lack of energy, acts. of God, mechanical or electricalbreakdown,
governmental.acts. or regulations, .computer ma Ifunction;.quality of data from.the customer's
software or acts of third parties.
4. Materials Software & IP:
(a) Materials. Recipient recognizes and agrees that: (1) the .M.aterials are the property of Provider or
its licensors and are protected by copyright, trademark, and other intellectual property caws;
and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the
limited and temporary right to.usethem as necessaryfar Recipient's use of the Service.
(b) Intellectual Property in General.. Provider retains all right, title, and :interest in and to the Service,
including without limitation all software used to provide the Service and all logos and
trademarks reproduced.through the. Service, and this Agreement does not grant Recipient any
intellectual property rights in or to the Service or any of its corn pone nts.
S. Online Policies.
(a) A'UP..Recipient will to comply with the AUP: In the event of Recipient's material breach of the
AUP, including without Him itation.any copyright infringement, Provider may suspend or
terminate Recipient's access to the Service,.in addition to such other remedies as. Provider may
have at law or.pursuant to this Agreement. Neither this.Agreement northe AUP requires that
Provider take. any action .against Recipient or any other customer for violating.the AUP, .but
Provider.is free. to take any :such action it sees fit.
(b). Privacypolicy. The. Privacy. Policy applies only to the service. and.does not apply to. any third
party site -or service linked to the Service or recommended or referred to through the Service or
by Provider's eniployees.
6. Each .Pa 's Warranties.
(a) Recipient's.. Identity., Recipient warrants:(i} that it has accurately identified itself through its
Accourit and.will maintain the accuracy of such identification; and (ii) that it. is.a corporation..or
other business entity authorized to do business pursuant to applicable law.
(b) Right to Do. Business. Each party warrants that it has the full right and.authority to enter into,
execute, and perform its obi igatlons.under this Agreement and that no pending or threatened
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claim or litigation known. to it. would. have a material adverse impact on its ability to perform as
required:.by.this Agreement.
(c) Disclaimers: Except for the.express warranties specified in this section, THE SERVICE IS
PROVIDED "AS iS".AND AS. AVAILABLE, AND PROVIDER MAKES NO WARRANTIES; EITHER
EXPRESS .0R IMPLIED, INCLUDING WITHOUT LIMITATION.ANY IMPLIED WAR RANTIES.OF.
MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS, Without limiting the generality of the foregoing, (i) PROVIDER
HAS. NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO
INFRINGEMENT OF INTELLECTUAL. PROPERTY RIGHTS; and:(ii) Provider does not warrant thatthe
Service will performWithout error or immaterial interruption.
7.: limitation of UalbilitV:
IN NO EVENT: (a) WILL PROVIDER'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED THE AMOUNT PAID FOR 60 DAYS :OF SERVICE; AND (b) WILL PROVIDER BE LIABLE FOR,ANY
CO NSEQUENTIAL,'INDIRECT, SPECIAL,.INCIDENTAL, OR PUNETIVE DAMAGES. THE LIABILITIES LIMITED
BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS 0F.THE FORM OF
ACTION, WHETHER:IN CONTRACT, TORT, STRICT PRODUCT LIABILITY; OR OTHERWISE; (iii) EVEN IF
PROVIDER IS. ADVISED IN ADVANCE OF THE.:POSSIBILITY OF THE..DAM.AGES IN QUESTION. AND EVEN
IF SUCH DAMAGES WERE FORESEEABLE;.ANQ (iv) EVEN.IF RECIPIENT'S REMEDIES FAIL OF THEIR
ESSENTIAL: PURPOSE. If appiicable law limits the application of the provisions of this Section .7,
Provider's liability will be.l.irnited:.to the maximum extent permissible..
.8. Data Management.
(a) .Access, Use, & Legal Compulsion: Unless it receives Recipient's prior written consent;. Provider:
(i) will not access or use Recipient Data other than as necessary to facilitate the Seryice;.antl. (ii)
will not give.anythird party access to Recipient Data. Notwithstanding the foregoing, Provider
may disclose Recipient Data as required by applicable law or by proper legal or governmental
authority. Provider will give Recipient prompt notice of any such legal .or :governmental.demand
and reasona bly. cooperate with Recipient: in any effort to seek aprotective order or otherwise to
contest such required. disclosure, at. Recipient's expense.
(b) Recipient's. Rights. Recipient possesses and retains all right, title, and interest in and to Recipient
Data, and Provider's use and possession thereof is solely as Recipient's:agent.
(c) Retention & Deletion. Provider will retain all Recipient Data until erased pursuant to the Data
policy.
(d) injunction. Provider agrees that.violation of the provisions of this Section 8 might cause
Recipient irreparable injury, for which monetary damages would not provide adequate
compensation, and that in addition to any other remedy; Recipient will be entitled to injunctive
relief against such breach or threatened breach, without proving actual damage or Hosting a
bond:or other. security.
9. Term & Termination.
(a) Term. This Agreement will continue for one (1) year following the Effective Date (a "Terra"),
Thereafter, this Agreement will renew for subsequent terms.{'Terms") of thirty (30) days, unless
either party notifies the other of i.ts intent not to renew thirty (30) or more days. before the
beginning of the next.Term.
(b). Termination for Cause. Either party mayyterminate this Agreement for material breach by
written notice, effective in 36days, unless the other party first. cures: such breach.
(c) Effects of Termination. The following provisions will survive termination of this.Agreement:..(i)
any obligation of Recipient to pay for Service rendered before termination; (ii) :Sections 4, 5(bj,
6(c), and 7 of this Agreement; and (iii) any other provision of this Agreement that.must survive.
termination to fulfill its.essential purpose.
10. Miscellaneous.
(a) Notices.. Providermaysend notices pursuant.to this Agreement to Recipient's address at City. of
Tybee Island, 443 Butler Ave, Tybee Island, GA 31328, and such notices will be deerned received
ten (10) .days after the.Y.are sent. Recipient may send notices pursuant to this Agreement to.
Caselle, Inc; 1656 5 East Bay Blvd, Suite. 100, Provo, UT 84606, and such notices will be deemed
received ten(1p) days.after they:are sent.
(b.) Amendment. Provider m.ay amend this Agreement (including the SLA and Data. Policy) from time..
totime by posting anamended version at. its website and sending Recipient written notice
thereof. Such amendment will. be deemed accepted and become effective 30 days after such
notice (the: "Proposed Amendment Date") unless.Recipient first gives Provider. written notice. of
rejection. of the amendment. In the event of such rejection, this Agreement will continue under
its. original provisions, and the. amendment will become effective. at.th.e start .of Recipient's:. next
Term following the. Proposed Amendment Date (unless Recipient first terminates this
Agreement pu.rsuant.to Section 9 above).. Recipient's continued use of the Service following the
effective date.of an amendment will confirm Recipient's consent thereto. This Agreement may.
not be amended in any other way except through a written agreement executed by Authorized
Representatives of each party. Notwithstanding the foregoing, Provider may amend the. AUP:or
:Privacy Pot icy at any time.by. posting a new.version.at its website and/or sending Recipient
notice thereof, an.d..such amended.version will become: effective 30 business days after such
notice is sent.
(c) independent Contractors. The parties are independent contractors and will so represent
themselves in. all. regards.. Neither party is the agent of the other and neither may bind the other
in any way.
(d) No Waiver: Neither party will be deemed to have waived. any of its, rights under this Agreement
by lapse of time or by any statementor representation other than (1) by an Authorized
Representative and (ii) in an explicit written waiver: No waiver of a. breach of this Agreement will
constitute a waiver. of any prior or subsequent breach of this Agreement.
(e) Force. Majeure. To. the extent: caused by farce majeu re, no delay, failure, .or default will
constitute a breach of this -Agreement.
(f). AssignMent & Successors.. Neither partymay assign this Agreement: or any of its rights or
obligations hereunder without the other's.express written consent, except that either party may
assign this Agreement to the surviving partyina merger of that party into. another entity. Except
to the extent -forbidden in the previous.sentence, this Agreement will be.binding upon and. inure
to the benefit of the. respective successors and: assigns of the. parties,
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(g) Choice of Law & Jurisdiction. This Agreement will be governed and construed solely by the laws
of the State of Georgia, without reference to such State's principles of conflicts of law. The
parties consent to the personal and exclusive jurisdiction of the state courts of Georgia.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision
of law that would render any clause of this Agreement invalid or otherwise unenforceable in any
respect. In the event that a provision of this Agreement is held to be invalid or otherwise
unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum
extent permitted by applicable law, and the remaining provisions of this Agreement will
continue in full force and effect.
0) Certain Notices. Pursuant to 47 U.S.C. Section 230(d), Provider hereby notifies Recipient that
parental control protections (such as computer hardware, software, or filtering services) are
commercially available that may assist in limiting access to material that is harmful to minors.
Information regarding providers of such protections may be found on the Internet by searching
"parental control protection" or similar terms.
(j) Conflicts among Attachments. In the event of any conflict between the terms of this main body
of this Agreement and those of any accompanying schedule, the terms of this main body will
govern. In the event of any conflict between this Agreement and any Provider policy posted
online, including without limitation the AUP and Privacy Policy, the terms of this Agreement will
govern.
M Entire Agreement. This Agreement sets forth the entire agreement of the parties and
supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to
the subject matter hereof. Neither party has relied upon any such prior or contemporaneous
communications.
Note: The attached proposal is considered part of this Agreement.
The signatures below indicate each party's acceptance of the Agreement. Each party has caused this
Agreement to be executed by its duly Authorized Representative.
CASELLE, INC.
By. �-
Name: Alan S. Hutchings
Title: President
Date: January 10, 2020
CITY OF TYBEE ISLAND
By: T �Z; cry
Name: ji fldl�uy 5E5510A�5
Title:
Date: 1-1&,,20
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Schedule A — Data Policy
(a) Access, Use, &.LegatCompulsion. Unless it receives Recipient's prior written consent, Provider: (i)
will dot .access`or use data in electronicform collected through the :Services .from Recipient's
customers or other third parties, or collected or. access 1ble.directly from Recipient, (collectively,
"Data") otherthan as necessary to: facilitate the Services; and (H) will not give:any third party access
to Data. Notwithstanding the foregoing, Provider may disclose Data -as required by: applicable law or
by proper] egaI or governmental authority. Provider will. give Red pient. prom pt notice of ahy such
legal or govern mental demand and reasonably cooperate with Recipient in any effort to seek a
pro tective.order or otherwise to contest such requ ired: disclosure, at Recipient's.expense..
(b) Recipient's Rights. Recipient possesses and retains all right, title, and interest in and to ProJect Data,
and. Provider's use and possession thereof is solely as ReciOle nes agent.
(c) Retention & Deletion. Provider will retain any Data in its possession until Erased. Provider will Erase:
(i) all copies of Data prom ptly.after Recipient's written request; and (ii) all copies of Data no. sooner
than 9.0 days after termination of. this Agreement and no later than 120.days after such termination.
Promptly after Erasure pursuant to this Subsection (c), Provider will certify such. Erasure in writing to
Recipient. ("Erase" and "Erasure" refer to the.destruction of data so: that no copy of the data
remains or can be. accessed or restored in any way.)
(d) lndividuals'Access. Provider will not allow any of its employees to access Data,.except to the.extent
that an employee needs access in order to facilitate the Services and executes a written agreement
with Provider agreeing to comply with Provider's obligations set forth in this Section..
(e) Compliance with Law & Policy.. Provid er will comply with all applicable. federal and state laws and
regulations governing the handling of Data.
(f) Leaks..Provider will promptly. notify. Recipient of any actual or potential exposure or
misappropriation of Data (any. "Leak".) that comes to Provider's attention. Provider will .cooperate
with Reciplent and with law enforcement authorities in investigating any such Leak, at Provider's
expense. Provider will likewise cooperate With Recipient and with law enforcement agencies in any
effort to notify: injured or potentially injured parties; a.nd such cooperation will be at Provider's
expense, except to the extent that the Leak was caused by Recipient, The remedies and. obligations
set forth in this Subsection (f) -are in additionto any:others Recipient may have.
N.
Schedule B.— Acceptable Use Policy
A:. Unacceptable .Use
Provider req uires that all customers and other users of. Provider's service (the "Service") conduct
themselves. with respect for others. In particular; please observe the following rules in your use of the
Service:
1) Privacy: Do not violate the privacyrights,af-any person. 4o not collector disclose any personal
address, social security number, or other personally identifiable informationwithout:each holde?'s
written permission. Do not cooperate in or facilitate identity theft..
2) Intellectual Propertyr Do not.infringe upon thie copyrights, trademark rights, trade secret rights, or
other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate
software, audio recordings; video recordings, photographs, articles, or other works of.auth.orsh.ip
without the written permission .of the copyright holder.
3) Hacking, Viruses,.& Network Attacks: Do not access.any computer or communications system.
without authorization, incl.uding.the computers used to provide the Service. Do not attempt to
penetrate or.disabie:any security system. Do not intentionally distribute a computer virus, launch a
denial of service attack, or in any other way atterript to interfere with the functioning of any
computer, communications system, or we.bsite..po not:attempt to access or otherwise interfere.
with the accounts of other users of the Service.
4) f=raud: Do. not issue fraudulent offers to sell or buy products, services, or investments. Do not
mislead anyone about the details or nature of a commercial transaction. Do not commit fraud in any
other way..
5) Violations of Low. Do not violate any law..
B. Consequences of Violation
Violation of this Acceptable.Use Policy (this "AUP") may lead to suspension or termination of the
Recipient's use of the Service or legal action..In..addition, the Recipient.may be required to pay for the
costs of investigation and remedia1.action related.to. AUP violations.
.C.. Reporting Unacceptable Use
Provider requests that anyone with information about a violation of this AUP report it to thefollowing
address. Caselle, Inc, 1656 S Bast Bay Blvd, Suite.100, Provo, Utah 84605: Please provide the date and
time of the violation:and any identifying information regarding the violator, including e-mail or I
(in.ternet protocol) address if available,. as well as.detaiIs of the violation.
D. Revision of.AUP
Provider may change this AU at any time by posting a new.version on it's website (ww.w.caselle.com) or
by sending the Recipient written notice thereof. The new version will become effective on the date of
such notice.
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