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HomeMy WebLinkAboutAnnual Maintenance Agreement 11-01-2011 4 A V 1 ( 3 AT 1 N G I N F O R M AT I O N S T R E A M S Keystone Software Systems Annual Maintenance Agreement For Doc E Serve'"' Software 1. PARTIES This Annual Maintenance Agreement ( "Agreement") is entered Into by and between Keystone (a division of A.E. Boyce & Co., Inc. an Indiana corporation), with Its principal place of business at 9401 Innovation Drive, Suite 400, Daleville, Indiana 473340669 ("Licensor'), and Jeffersonville Sewage Department with its principal place of business at 500 Quartermaster Court, Jeffersonville, Indiana 47130 ("licensee"). 2. SCOPE OF AGREEMENT The terms and conditions of this Agreement cover maintenance services to be provided by Licensor with respect to certain software known as Doc E Serve TM software licensed under a separate sublicense agreement between licensor and Licensee. 3. DEFINITIONS a. Effective Date. The Effective Date of this Agreement is Sixty (60) days after the date of installation of the Licensed Program(s) or the date specified in Schedule A, which Is attached and made a part of thus Agreement, whichever Is later. Errors. Failure of the Licensed Program(s) to perform one or more Functionalftics, as that term is defined Identified In the License Agreement. b. License Agreement. The sublicense agreement entered into for the Licensed Programs by and between Licensor and Licensee, dated October 16, 2007. The License Agreement is incorporated into and made a part of this Agreement. c. Licensed Program(s). The Doc e Serve software program(s) licensed by Licensee from Licensor under the License Agreement and has the same meaning as defined in the License Agreement. d. Maintenance Period. A period of twelve (12) consecutive months commendng on the Effective Date of this Agreement, or the anniversary thereof. e. Minimum Support Period. An initial period of 12 consecutive months commencing on the Effective Date of this Agreement. f. Manufacturer. Manufacturer means AIG Technology, Inc. and its licensors and their successors in interest. Licensor is an authorized distributor of the Licensed Program(s). g. Support End Date. A date established by Licensor after which Support Service for a specific Software Product is no longer available. h. Support Service. The software maintenance and support services t0 be provided by Licensor under this Agreement as further described in paragraph 6, below. Updates. Updates, error corrections, modifications, enhancements or versions to or of the Licensed Program(s) provided to Licensee under this Agreement. j. Other defined terms. Definitions in License Agreement shall apply to this Agreement unless plainly inconsistent. '''" 1 • Boyce Systems • Keystone Software • Komputrol Software 4. TERM AND TERMINATION a. Tenn. The term of this Agreement will begin on the Effective Date and, unless earlier terminated under the provisions of this Agreement, shall continue during the Initial 12- month Maintenance Period. In addition, the Agreement shall automatically be renewed for successive Maintenance Periods thereafter unless earlier terminated in accordance with the provisions of this Agreement. b. Termination. Except as otherwise spedfically provided herein, 1. Termination on Notice (a) Ether party may terminate this Agreement as of the end of any Maintenance Period by giving written notice to the other, such notice to be given by Licensor not less than sixty (60) days before the end of the Maintenance Period. (b) Licensee may terminate this Agreement as to any speclfic Licensed Program before the end of the Maintenance Pedal with a minimum of thirty (30) days advance written notice to Licensor, provided such termination date is after the end of the Minimum Support Period with respect to such Licensed Program(s). 11. Termination for Default (a) Ether party may terminate this Agreement if the other party defaults in the performance of any of its obligations hereunder or under the License Agreement. (b) "Default" shall be defined as: (a) breach of any material term of thls Agreement, including but not limited to, the failure of Licensee timely to pay Licensor fees or charges owed; or (b) breach of any material term or condition of the License Agreement; or (c) Licensee being declared a user not in good standing by Licensor. Licensor shall have the sole right to dedare Licensee a user not In good standing for just cause, which shall include but not be limited to the following: abuse or misuse of the Licensed Program(s), related materials, Support Services or Ucensor staff; and/or failure to obtain appropriate training for Licensee staff. (c) In the event of a default by either party, including that Licensor elects to declare Licensee a user not in good standing, then the party declaring the default shall give the other written notice of such declaration. The party receiving a declaration of default shall then have ten (10) days after receipt of such notice to cure the declared default, except for events of default for which the License Agreement or thls Agreement provides for immediate or automatic termination. Failure to cure a default within the applicable 10-day time limit shall give the party not in default the sole right and power to terminate this Agreement without further notice. iii. License Termination This Agreement shall terminate automatically upon termination of the License Agreement. Iv. Termination of Support Licensor may terminate Support Service under this Agreement at any time effective as of a Support End Date. 5. REMEDIES. If Licensee falls to pay any amount owed to Licensor under this Agreement or otherwise breaches this Agreement and Licensor terminates this Agreement as provided in paragraph 4(c) (ii), it is agreed that Doc -E -Servo Maintenance Agreement - Page 2 in addition to any other appropriate remedies, any payments made to licensor prior to termination shall be retained as liquidated damages. Furthermore, Licensee shall be responsible for Licensors reasonable attorneys fees and court costs if Licensor successfully prosecutes an action against Licensee. 6. SUPPORT SERVICES a. Error Correction. Licensor shall attempt to correct documented Errors in the licensed Program(s) when such Errors are reported to licensor and can be repeated by Licensor on its equipment. If a reported Error causes a Licensed Program to be inoperable or if Licensee's notice to Ucensor states that such Error is substantial and material with respect to licensee's use of the Licensed Program(s), Licensor shall, as expeditiously as possible, use its best efforts to correct such Error, or to provide a software patch or bypass around such Error. However, under no circumstances does Licensor warrant or represent that all Errors can or will be corrected. Ucensor shall not be responsible for Errors, problems or defects in the Licensed Program(s) caused by negligence, operator error, power failure, computer hardware failure, or licensee's failure to use the Licensed Program(s) only with approved operating systems and equipment as specified in the license Agreement. Further, licensor reserves the right to separately charge the Licensee for any on -site service call or telephone support service call made in response to any such problems. If licensee reports an Error to licensor, Licensee shall give Licensor reasonable access to the hardware and equipment, the licensed Program(s) and all relevant documentation and records, and shall provide such reasonable assistance as Ucensor may request, including sample output and other diagnostic information, in order to assist licensor in providing Support Service. b. Updates. Licensor shall provide Licensee, at no additional cost, any Updates for the Licensed Program(s) under maintenance when such Updates are developed or published by Manufacturer or Licensor and made generally available to other licensees of the Licensed Program(s) at no additional cost. Any other Updates developed or published by Manufacturer or licensor will be offered to licensee at Licensors then current published rates. All Updates shall become part of the licensed Program(s) and Licensor and /or Manufacturer shall be free to license others with respect thereto. Determination of whether an Update will be made available at no additional cost or will be made available only for an additional cost is the sole and exclusive right of Ucensor and /or Manufacturer. Updates shall be installed by licensor at Licensors then current rates and Licensor may separately invoice for installation services. Licensee shall not install Updates without Licensee's prior written approval. c. Hotline Service. Licensor shall provide Licensee toll -free telephone support services to help licensee in answering routine questions with respect to use of the Licensed Program(s). All common carrier charges incurred by licensee and all costs of telephone and terminal equipment incurred by Licensee shall be the responsibility of Licensee. 7. LICENSEE RESPONSIBILITIES a. Interface. Licensee shall be responsible for the interface between Licensed Program(s) for which Support Service is available and all other software used by Licensee, whether or not such software is licensed to Licensee by licensor or by others, or has been developed by licensee. b. Software License Limitations. Licensee agrees that the rights granted to Licensee, the use limitations and Licensee's responsibilities to prevent una thoraed disdosure specified in the License Agreement apply equally to all Updates furnished under this Agreement. e. Modifications by Licensee. In no event shall Licensor have any responsibility to oarect any Errors or damage resulting from changes to or modification of the licensed Program(s) made by Licensee. Doc -E -Serve Maintenance Agreement - Page 3 d. Uninstalled Updates. Licensor shall not be responsible for correcting any alleged Error if Licensee fails to incorporate Into the Licensed Program(s) any Update that Licensor has provided to Licensee. 8. CHARGES a. Payment. Licensee agrees to pay Licensor the annual maintenance fees for Support Services set forth in Schedule A upon execution of this Agreement. Any payment for separately billed services or products shall be due upon receipt of invoice. Additional services to be provided re Licensee by Licensor will be charged Licensor's current rates Mich vary depending upon the service provided. A listing of Licensor's current rates will be available at Licensee's request. No invoice under this Agreement shall be subject to credit for any period of non -use by Licensee for any reason, including defects in the Licensed Program(s). b. Changes. Licensor may change the charges specified in Schedule A for all or any Licensed Program(s) effective upon the expiration of the Minimum Support Period or at the end of any calendar month thereafter, by giving at least ninety (90) days written notice prior the effective date of such change in charges. c. Taxes. In addition to charges due under this Agreement, the Licensee agrees to pay amounts equal to any sales, use or similar tax, and personal property taxes, if any, resulting from this Agreement. 9. LIMITATION OF LIABILITY AND REMEDIES a. Limited Warranty. LICENSOR MAKES NO WARRANTIES HEREUNDER, EITHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). b. Limitation of Remedy. Licensee agrees that Licensors liability hereunder for damages shall not exceed the annual maintenance fee paid, or payable, by Licensee for the Licensed Program which Licensee claims resulted in Licensee being damaged for the Maintenance Period in which the cause of action accrued. Furthermore, if Licensee maintains a legal adion of any kind against Licensor arising under this Agreement and Licensor successfully defends such action, the licensee shall pay all costs and expenses, induding reasonable attorneys' fee, incurred by Licensor in defending such action. Licensor is deemed to have successfully defended the action taken by Licensee if Licensee does not recover all relief requested. c. Limitation of Damages. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR TORT DAMAGES. 10. GENERAL a. Assignments. This Agreement may not be assigned or transferred by the Licensee in whole or in part without the prior written consent of Licensor. Any attempt by Licensee to assign or transfer any of the rights, duties, or obligations of this Agreement without Ucensor's written consent is void. b. Captions. Captions contained in this Agreement are for reference purposes only and are not part of the Agreement. c. Entire Agreement. All prior discussions, proposals understandings, and other agreements, whether oral or written, between the parties that relate to this subject matter are hereby superseded and merged into this Agreement, and neither of the parties • shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided Doc -E -Serve Maintenance Agreement - Page 4 herein. This Agreement may not be modified or altered except in writing by an instrument duly executed by authorized officers of the party to be bound thereby. No provision appearing on any form originated by Licensee shall be applicable unless such provision is expressly accepted In writing by Licensor. d. Force Majeure. 0 Licensor shall be delayed or prevented from performing this Agreement due to any cause beyond its reasonable control, such delay shall be excused during the continuance of such delay, and the period of performance shall be extended to such extent as may be necessary to enable Licensor to perform after the cause of delay has been removed. e. Governing Law. This Agreement shall be governed by and construed and enforced In accordance with the laws of the State of Indiana. The exclusive jurisdiction for any legal proceeding regarding this Agreement shall be the appropriate federal or state tour in the State of Indiana, and the parties hereto expressly submit to the jurisdiction of said courts. f. Licensee Fortis. Any provision of Licensee's order that is in any way inconsistent with or in addition to the terms and conditions of this Agreement shall not bind Licensor, and Licensor's failure to object to any such provision shall neither be construed as a waiver of the terms and oondl0ons of this Agreement nor as an acceptance of any such provision. U. Non - Waiver. Licensor's failure to assert its legal rights under this Agreement or to object to actions of Licensee shall not be construed as a waiver of the terms and conditions of this Agreement, nor shall waiver of any of the terms and conditions of this Agreement on any occasion constitute or be deemed to constitute a waiver of the terms and conditions of the Agreement as to any subsequent act or failure to act by Licensee. h. Notices. Any notice, request, instruction or other document pertaining to this Agreement shall be in writing and delivered personally or sent by U.S. Mall, postage prepaid, and addressed as follows: If to Licensor: Keystone Alin: Cathy Brantley PO Box 669 Daleville, Indiana 47334 -0669 0 to Licensee: Jeffersonville Sewage Department Attn: Peggy Wilder, Clerk- Treasurer 500 Quartermaster Court Jeffersonville, Indiana 47130 Either party may change the address to which notice Is to be sent by giving written notice thereof to the other party. 11. EXECUTION Licensee acknowledges that it has read this Agreement and agrees to all the terns and conditions .stated herein. The parties have hereunto set their hands and seals as of the day and year first above written by their duly authorized officers. ergo - age De rtment ACC PTED BY KEYST NE J> (Lie ,t) � 1 By: L A By. PPP Name: oncea,- L 1 .•rrn Name: Michael B. Gallaher 1 Title: si 1 Cs' .c..•. • Title: President Dater 1 12 1 4111 Date: Auoust 23, 2011 Doe -E -Serve Maintenance Agreement - Page 5 SCHEDULEA Effective Date: November 1, 2011 Licensed Programs Maintenance Fees 1. Doc -E -Serve Software 1,820.00 2. Cass Certification 2,395.00 Total Annual Maintenance Fees $ 4,215.00 Doc -E-Serve Maintenance Agreement - Page 6