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HomeMy Public PortalAboutCaselle - Software Use Agreement 1-16-20.pdfSOFTWARE USE AGREEMENT CASELLE, INC. CITY OF TYBEE ISLAND 1656 S. East Bay Blvd. 403 Butler Ave suite 140 Tybee Island, GA 31328 Provo, UT 84606 ("Caselle") ("You" or "Your") You agree to Use the Software and Purchase the services detailed below ("Items"), and Case]le, Inc. agrees to provide them, subject to the terms and conditions on pages two and three of this Agreement. Total Price $110,413.00 Deposit: $55,207.00 Balance Due $55,206.00 Items License Type I lasted Total Training $33,213.00 Total Setup 28,800.00 Total Conversion 48,400.00 Total Price $110,413.00 The attached Proposal is considered part of this Agreement. The signatures below indicate each party's acceptance of this Agreement. Each party has caused this Agreement to be executed by its duly authorized representative. CASELLE, INC. By: /4 S � Name & Title: Alan S. Hutchings, President Date: January 10, 2020 CITY OF TYBEE ISLAND B Name & Title: 3}j liq t ey 56-S5Iv,U t k4A\ x -- Date: 1— 1(0 - 2D CASELLE, INC.. SOFTWARE USE AGREEMENT Grant of Right Caselle, Inc. and its Licensors. agrees. to grant, and You agree to accept a'limited, non -transferable; non-exclusive right ("Right") to use the computer programs, with the accompanyingmanuals, literature and other materials ("Software"). as detailed under Items,subiect to the terms and cpuditions.of this SoRware. Use Agreement and_s_ubiect to termination as provided herein. The term Sofhvare shall also include all revisions, updates. enhancements and new modules or: add-ons to. the existing SoftWatt as detailed under. Items. Payment The Balance. shall.be paid by You upon execution of this Software Use Agreement. Payment shall be in U.S. Dollars and shall not be .deemed to have been received by Caselle until Your check clears the banking process. Any costs incurred in collecting Your check. due to insufficient funds or any other. reason, shall be reimhursed byyou. Late payments shall. be: subject:to a FINANCE CHARGE. OF 1.5% PER MOl±i.Tl-1 OR I8%PER ANNUM. Taxes: Prices and fees are exclusive. of all federal; state, municipal, or other government excise, duties, sales, use, occupational, or like ta.Xes now or hereafterin farce, and are therefore. subject to increase in an amount. equat to any.tax Caselle.may be: required to collect or.payupon licensing. or delivery of any Items, otber than federal; state and local taxes based on Caselle's income. You also agree to pay all personal:property taxes which accrue. to you by, reason of.this Agreement. Title and Confidentiality Title and full ownership rights to the Software licensed under this Agreement, including; withoutlimitation, 'all intellectual property rights therein and thereto andany copies You make, remain with Casella. lr is agreed.the Software is the proprictary..coniidential, trade secret property of Case[ le,: -whether or not any portions thereof are or may be copyrighted and You shall . take all reasonable steps necessary to protect the confidential nature of the Softwamas: You would take to protect Your ownconfidential-and trade 'secret information. You further agree that You shall not make any disclosure of any or all such Software (iiicludim methods or concepts utilized therein) to anyone, except to employees, agents, or contractors working for You to whom such disclosure is necessary to the use for which ri is ares hereunder: You shall a roriately notify all em to ees: agents, and contractors to: whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by ahem. Upon Caselle's request. such employees, agents..and contractors shall enter into an appropiate confidentiality agreement for secrecy= and nonuse. of such information which by its terms shall be enforceable by iniunctive relief at therequest of Caselle. If Caselle makes such a request, itzshall provide You with the appropriate.confidentiality agreements. The obligations teed by this- sect upon. You. Your employees, agents,. and contractors, shall survive and continue ager any termination of rights under -this Agreement. It shall not be a breach. of this Agreement if vou: are .required to disclose or make the Soft►sart available to a third -party or to a,. court if the. Sofhvam is subpoenaed or Otherwise ordered by an administrative agency or court_af competent iurisdiction to be produced or: disclosed: -2- Rights You may not: a] Rem, -lease. sublicense,. assign, sell. loan or otherwise transfer this Right, in whole or in part. except aa expressly permitted .by this Agreement.. b) Inspect, disassemble, decotnpile;. reverse engineer or in any way attempt . to determine the internal methods of the Software. c): Modify the Software or merge.it into any other product without the express written consent of Caselle. d) Reproduce, prepare derivative works bbd upon, transmitor distribute.. the Software.. or any part: of it, in any form or by any means except as expressly permitted .in this Agreement.. e) Transfer or assign the SoRware and the rights under this agreement. to. another party without the express written .consent of Caselle. Any •attempt to do any of the above (a to . e) shall void and terminate this Agreement. Term This Software Use Agreement is and shall be effective from.the. date of:full execution -arid shall remain in force until terminated. You may terminate this Agreement at any time by notifying Caselle in writing at least 34. days. prior to the date .oftermination Your Right terminates. automatically if you materially :fail to comply with: any terms or. conditions of this Agreement. Warranty Caselle warrants .that it Has sufficient 'right. and title to the Softwareto grant You this Right. -For one (l).year .from . the date .of.receipt of the Software("Warranty Period"), CaselIe. also: warrants the Software media to be free from defects in. materials and. workmanship under normal use;. and Sofhvab-- operation will substantiallyconform to the specification published by Caselle. If an error ar a defect in the Soflivare or its media becomes: apparent within..the Warranty Period You must promptly notify Casella; in'writing,. describing the -.defect. Up an confirming the error or defect Caselle will, at its exclusive. option; repair or replace the item or refund the. price paid for the defective item. Casella does not warrant that the. functions contained: in the Software will meet. Yourrequirements or that the operation of the Software willbe uninterrupted or error free, The Warranty does not cover Software modified by anyone other than Caselle and problems with or caused by,. computer Hardware or: non -C aselle software. This limited warranty is VOID if failure of the licensed Software.has resulted from accident, abuse or misapplication. Disclaimers and Limitations of.Warranty and Remedies FXCEPT.A5 SPECIFICALLY STATED IN THE WARRANTY SECTION OF THIS AGREEMENT, THE SOFTWARE IS LICENSED "ASIS" WITHOUT ANY OTHER WARRANTY.. EXPRESS OR IMPLIED, INCLUDING; BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN NO EVENT SHALL CASELLE BE. LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES: INCLUDING, BUT NOT LIMITED TO. LOSS OF ANTICIPATED PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION,:ARISING FROM THE USE .OF OR INABILITY TO USE. THE SOFTWARE OR BREACH OF ANY EXPRESSED. OR IMPLIED WARRANTY. EVEN IF CASELLE OR ITS AGENT HAS BEEN ADVISED OF THE. POSSIBILITY .OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY.NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL. PURPOSE. OF ANY LIMITED REMEDY. CASELLE'S.AGGREGATE .LIABILITY UNDER THIS.AGREEMENT FOR DAMAGE WILL NOT, IN ANY EVENT, WHETHER BASED UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR ANY OTHER BASIS; EXCEED THE LICENSE FEES PAID BY'YOU 'FOR THE. LICENSED..SOFTWARE: GIVING RISE TO SUCH LIABILITY. Returns a) No.returns will .be accepted .without a wmitten request to Caselle. To receive fulI.credit, less the cancellation.fee.(aet.forth beknv); such requests must be made -in writing to and received by Caselle's corporate office.. within.: thirty .(30) days :of this agreement. No returns will be considered for credit until appropriate. notice has occurred withinthe time limits specified .and all related materials are .retumedto Caselle's corporate office within ten (10) days of notice, b) Pre approved returns occurring after the thirty—day period has lapsed will be allowed 75°Io credit, if such requests are made in writing to and:received by Casefle's corporate office within sixty .(60) days of this agreement. Any returns : attempted after the sixty-day period has :lapsed will receive no credit.. c) A. minimum cancellation fee.of 10% will be assessed to all pre - authorized returns. A) In addition, You agree that You will return all written materials received from Caselle; including program.materials, itistructiori manuals, and any and all training materials to Caselle. Additional Services Support, Training. and Data .Conversion for die Software will. be provided directly by .Caselle, or its authorized support centers. and are -subject: to separate agreements. . 3,_ General a) This .Agreement:shall be govemed and construed in accordance with the.Ia"'s of the State of Georgia. and You hereby consent to the jurisdiction .of5.tate and Federal courts in Georgia. If any part of this :Agreement violates applicable law, that part shall be deemed. to be amended to.the extent necessary to comply with the law. h) This Agreement constitutes the entire. Agreement .behween. Caselle and. You and supersedes. any prior Agreement. or understanding, written or oral, relating wthe subject matter of this Agreement. Except as. provided herein, this Agreement ritay.not be amended or .supplemented except in writing and properly executed by both parties. c) If any provision of this Agreement. shall. beadjudged by a court to be void or unenforceable, the. same shall in no way affect any other .provision of this Agreerrient .or the validity or the enforceability of this Agreement: d) All rights and'remcdies provided herein are cumulative and are. in addition to all other rights and remedies: available at. taw or equity, e) In the event that either party successfully takes legal action to enforce any provision. of this Agreement the unsuccessful party shall .pay full costs and expenses of such action, including. reasonable attorney's. fees. f) Any notice required by this Agreement shalI be deemed to have been properly given if sent by registered or certified mail to the: address set forth in this Agreement.. g). The waiver of any breach or default of this Agreement shall constitute a waiver only as to such particular breach.or default and shaft not constitute a waiver of any other breach or default. Failure to act by either. party in. exercising any right, power, or remedy under this Agreement, except as .specifically provided herein, shall not operate. as a: waiver of any such right, -power or remedy.. and will -riot affect the validity of the yrhole:or any part of this Agreement; or prejudice such party's right to take subsequent: action. h) Neither: party shall .be held liable for delays in any of its performance resulting from acts .of God, ar; civil disturbance, court order, labor dispute or any other cause beyond its control. i) The relationship of die Parties shall he solely that of. independent ::contractors. No partnership, joint venture, employment, agency or otherrelationship is formed,intended or to be inferred under this Agreement. Neither party to this Agreement' shall: attempt to bind.the, other; incur liabilities on behalf .of the other, act as: agent of the. other, or authorize any representation contrary to. the :foregoing. 0) This Agreemem is binding upon and.shali inure to thebenefit. of the parties, their successors and assigns. However, this Agreement is not assignable. byyou. This Agreeitent is personal to you and neither the Agreement, nor the rights or duties hereunder, may be voluntarily or involuntarily,. directly or indirectly, assigned or otherwise transferred without the prior written consent of Caselle. Any unauthorized. .assigninent :or transfer shall constitutea breach.hereof and shall be voidable by Caselle. 663884 18104