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.
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