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HomeMy WebLinkAboutKeystone Software Systems Software License Agreement , " , ~ ~"" "'''~' ,,' I NAVIGATING INFORMATION STRE'AMS '" , ;. Keystone Software Systems Software License Agreement Agreement made as of April 9, 2007 between Keystone Software Systems, an Indiana corporation, with its principal place of business at 9401 Innovation Dr., Suite 400, P.O. Box 669, Daleville, IN 47334- 0669.("Licensor"), and City of Jeffersonville Sewage Department, with its principal place of business at 500 Quartermaster Court, Jeffersonville, IN 47130 ("Licensee"). Licensor and Licensee agree that the terms and conditions of this License Agreement cover licenses to software programs to be provided by Licensor to Licensee. 1. DEFINITIONS 1.1 Licensed Programs. Licensed Programs means: (i) all of the computer program(s) specified on Schedule 1 to this Agreement, consisting of a series of instructions or statements in machine- readable object code form; (ii) any revisions or updates provided by Licensor to the Licensee, pursuant to the terms of this Agreement; and (iii) the Program Documentation as defmed herein. The collective group of Licensed Programs is sometimes referred to herein as the "Systems." 1.2 Documentation. Program Docu- mentation means the user manuals, handbooks and other written materials relating to the Licensed Programs provided by Licensor to the Licensee pursuant to the terms of this Agreement. 2. PERMITTED USES r", I 2.1 License Grant: Enterprise. Subject to the terms and conditions set forth in this Agreement, Licensor grants to the Licensee a non-transferable, non- exclusive license to use the Licensed Software for any of the business activities of the Licensee in the United States, or any other territory that the parties may from time to time designate in writing. 3. USE RESTRICTIONS 3.1 Copies. Except as otherwise provided herein, Licensee shall not, without prior written consent of Licensor copy in whole or in part the Licensed Programs, provided by Licensor under this Agreement. Licensee is authorized to make one backup copy of the Licensed Programs. All approved copies shall be made in machine readable form, used exclusively for Licensee's internal use, and stored at Licensee's place of business. Licensee shall have the unrestricted right to reproduce the documentation supplied as part of the Systems for Licensee's exclusive use. 3.2 Ownership of Copies. The original, and any copies of the Licensed Programs, in whole or in part, which are made by Licensor or the Licensee or otherwise shall at all times be the sole and exclusive property of Licensor. Each copy shall so state in the following language: "This copy of (See Schedule 1) is the property of Keystone Consulting Services, Inc., protected under the copyright, trade secret and confidentiality laws of the United States." At Licensee's request, Licensor will provide a label to be attached to the copy setting for the foregoing statement. The provisions of this clause shall apply to all Licensed Software, including but without limitation, programs, manuals, instructional materials and all other documentation provided by Licensee. 3.3 Inspection. In order to assist Licensor in the protection of its proprietary rights with respect to the Licensed Programs, Licensor shall have the right to inspect during regular business hours the facility at which the Licensed Program is used and the facility at which the Licensed Programs are stored. Licensee shall provide Licensor with access to the Licensed Programs, including any copies thereof. 3.4 No Reverse Engineering. Licensee shall not have the right under this Agreement: (i) to reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code ofthe Licensed Programs, or their structural framework; or (ii) to use the Licensed Programs in whole or in part for any purpose except as expressly provided under this Agreement. 3.5 Third Parties. In addition to the confidentiality provisions contained herein, the Licensee shall not cause or permit the display, loan, publication, transfer of possession (whether by sale, exchange, gift, operation of law or otherwise), sublicensing or other dissemination of the Licensed Programs or Program Documentation, in whole or in part, to any third party without the prior written consent of Licensor. 3.6 Modifications of Licensed' Pro- BOYC~ . Boyce Systems Software License Agreement - Page I . Keystone Software . Komputrol Software prior written consent of Licensor. The Licensee agrees that a modification or enhancement to the Licensed Program(s) developed by the Licensee with or without advice or support by Licensor or Licensor for the Licensee, whether or not reimbursed by the Licensee and whether or not developed in conjunction with the Licensee's employees, agents, or contractors shall be the exclusive property of Licensor. The Licensee further agrees that modified or enhanced versions of the Licensed Program(s) do not constitute a program different from the Licensed Program(s), and as such, fall under the other terms and conditions of this Agreement. 3.7 No Assignment. Licensee's rights under this Agreement to the Licensed Program shall not be assigned or licensed by Licensee without the prior written approval of Licensor. 4. PROPRIETARY RIGHTS Licensee acknowledges that the Systems have been purchased or otherwise developed by Licensor at great expense and contain formulas and calculations proprietary to and trade secrets of Licensor. Licensee will do nothing to jeopardize the proprietary 'and confidential nature of the material. Licensee agrees to reveal such information only to employees of Licensee as are required to have knowledge of or access to such material in relation to their work. Licensee agrees not to disclose or divulge any information about the Systems, or the Systems themselves, to any third party. Licensee specifically agrees not to allow any other computer software vendor to access or copy the data files or documents of the Systems for any purpose. Licensee shall take all measures necessary to protect the proprietary rights of Licensor as set forth herein. Licensee agrees that a violation of this paragraph may result in imminent, irreparable injury beyond that compensable by monetary payments, and Licensee herewith consents to the issuance of a temporary restraining order or such other injunctive relief as Licensor may elect to obtain. 5. PAYMENT 5.1 License Fee and Other Charges. In consideration of the license to the Licensed Programs granted to Licensee pursuant to this Agreement, the Licensee shall pay to Licensor the license fee set forth on Schedule 1 to this Agreement, in the manner provided on such Schedule. 5.2 Taxes. All amounts payable pursuant to this Agreement are exclusive of all federal, state, local, municipal or other excise, sales, use, property or similar taxes and fees (but not any income tax or any tax on or measured by income), now in force or enacted in the future, and all such taxes and fees shall be paid by the Licensee. The Licensee shall obtain and provide to Licensor any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax, use tax or other tax liability. 6. TERM 6.1 The License granted under this Agreement to the Licensed Programs shall be in effect from the date of this Agreement and shall remain in effect for a term of one (1) year. This Agreement shall automatically be extended for successive one (I)-year periods unless Licensee gives written notice of termination (or "cancellation") to Licensor no less than thirty (30) days prior to the expiration of the current term provided in this Agreement or if Licensee terminates the Annual Maintenance Agreement for any Licensed Program. All terms and conditions of this Agreement shall apply during the renewal term, and other than the ongoing Maintenance Fees charged pursuant to the Annual Maintenance Agreement, there shall be no additional license fee charged for the renewal. Upon termination for any reason, Licensee shall return to Licensor the Licensed Program(s), any copies, and all materials received from Licensor relating to the Licensed Program(s). 6.2 Delivery; Installation and Specifications. Licensor will deliver the Licensed Programs with Program Documentation and install the Licensed Programs in accordance with Schedule 6.1 attached hereto. Licensee shall provide operating systems and hardware which meet the minimum specifications as set forth on Schedule 6.1 attached hereto. 7. SERVICES 7.1 Maintenance and Incorporation of Terms of Software Maintenance Agreement. Concurrent with the execution of this Agreement, Licensor and Licensee shall enter into Licensor's standard form of Annual Maintenance Agreement for Keystone Consulting Services (Software Maintenance Agreement). All revisions, updates, maintenance and support of the Licensed Programs shall be provided to the Licensee only pursuant to the terms ofthe Software Maintenance Agreement. In no event shall Licensor be under any obligation to revise or update the Licensed Program(s) or to maintain or support them in the event of a termination of the software maintenance agreement. Termination of the Software Maintenance Agreement under any circumstances shall cause the Licensee to be considered a user not in good standing and Licensee waives the ten (1 O)-day notice and time to cure allowed under Paragraph 12 before Licensor may terminate this Agreement. The provisions of the Software Software License Agreement - Page 2 -~ Maintenance Agreement are incorporated into this Agreement. 8. OWNERSHIP 8.1 Licensed Programs. Subj ect to the rights granted to the Licensee pursuant to this Agreement, all right, title and interest in and to the Licensed Program(s), including, without limitation, the source code, and all related materials are and shall at all times remain the sole and exclusive property of Licensor. Licensor may use, sell, assign, transfer and license copies of and rights relating to the Licensed Program(s) to third parties free from any claim of the Licensee. If Licensor ceases doing business and it has not sold its assets to a third party purchaser who will continue to support the Licensed Programs, then Licensor will offer to sell to Licensee a nonexclusive ownership in the source code. Licensee would have the right to use the source code solely for its internal uses, and under no circumstances may the Licensor make the source code available to any other party. 9. WARRANTIES 9.1 Right to Grant License. Licensor hereby represents and warrants that it has the right to grant a license to the Licensed Programs to Licensee. 10. DISCLAIMER OF IMPLIED WARRANTIES THE FOREGOING WARRANTY IS iN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, INCLUD- ING, BUT NOT LIMITED TO, THOSE CON- CERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 11. LIMITATION OF DAMAGES 11.1 Direct Damages. Licensee's sole remedy for damages for any cause of action whatsoever, including liability for any claim of infringement of proprietary rights, shall be the return of the license fee paid by Licensee for the Licensed Software, but only during the first annual term of the Agreement, less a prorated amount for the period of time during the first annual term that the Licensee had possession of the Systems and less the costs of any enhancements, custom programming, and development costs attributable to the products and services provided to Licensee by Licensor. 11.2 Consequential Damages. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT; INCIDENTAL, CONSEQUENTIAL OR OTHER TORT DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER. 12. DEFAULT Either party may terminate this Agreement if the other party defaults in the performance of any of its obligations hereunder or under a Software Maintenance Agreement for Licensed Programs, effective after written notification of default and failure to cure the default after ten (10) days. 12.1. Default Defined. Default shall be defmed as either (a) breach of any material term or condition of this Agreement by either party, and it is specifically agreed that a breach of any of the payment obligations placed upon Licensee above shall be considered a breach by Licensee of a material term or condition; (b) the termination of the Annual Maintenance Agreement entered into between the parties, (c) Licensee being declared a user not in good standing by Licensor. Licensor shall have the sole right to declare 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 Systems, related materials, support services or Licensor staff; failure to obtain appropriate training for Licensee staff; ceasing to use the Systems on a regular basis for their intended purposes or replacing the Systems with those of another computer software vendor, or (d) if proceedings in bankruptcy are commenced against either ofthe parties, or either is adjudicated a bankrupt, or a receiver of either is appointed and qualifies. 12.2. Notice of Default. 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. Failure to cure a default within the ten (10) day time limit shall give the party not in default the sole right and power to terminate this Agreement. 12.3 Consequences of Failure to Cure Default. In the event that Licensee does not cure a default within the ten (10) day time period and Licensor elects to terminate the Agreement, then Licensee shall immediately return the Licensed Program(s), any copies, and all related materials to Licensor at Licensee's cost. It is agreed that any payments made to Licensor prior to termination shall be retained as liquidated damages. Licensee shall also be subject to any legal or equitable remedies available to Licensor for breach of this Agreement and default hereunder. Licensee's sole remedy against Licensor for breach hereof or default hereunder shall be the return of the license fee, but only during the first annual term of this Agreement, less a pro rated amount for the period of time during the first annual term that the Licensee had Software License Agreement - Page 3 1e possession of the Systems and less the costs of any enhancements, custom programming and development costs attributable to the products and services provided to Licensee by Licensor. Because unauthorized use or transfer of the Licensed Programs may substantially diminish the value of such materials and irrevocably harm Licensor, if the Licensee breaches the provisions of paragraphs Three and Four of this Agreement Licensor shall be entitled to equitable relief, including, but not limited to, injunctive relief, in addition to other remedies afforded by the law, to prevent a breach of paragraphs Three and Four of this Agreement. 13. GENERAL PROVISIONS 13.1 Governing Law. This Agreement is governed and shall be construed in accordance with the laws of the State ofIndiana, and any action arising out of or in any way connected with this Agreement shall be brought only in the appropriate federal or state court in the State ofIndiana. 13.2 Captions. Captions contained in this Agreement are for reference purposes only and are not part of the Agreement. 13.3 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. 13.4 Severability. In the event that a court of competent jurisdiction should declare any provisions, terms or conditions herein to be void, unenforceable or illegal, then such portions of the Agreement shall be deemed as severed and the remainder hereof shall be binding on the parties as written. 13.5 Entire Agreement. All prior 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 the Annual Maintenance Agreement being entered into by the parties contemporaneously herewith. This Agreement may not be modified or altered except in writing by an instrument duly executed by authorized officers of both parties. 13.6 Attorneys' Fees. If any action is filed in relation to this agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 13.7 Limitation on Actions. Any claim arising out of or related to this Agreement must be brought no later than two (2) years after it has accrued. IN WITNESS WHEREOF, the Licensor and Licensee have caused this Agreement to be executed as an instrument under. seal as of the day first above written by their officers thereunto duly authorized. (Licensee) (~w ' By:' 1J)~0tA0 Title: t.\er~ \~6U\er ti ~L{-o 7- ----' Date: Keystone Software Systems By: /tL;:L//] 4~~ Michael Galliher, CEO Date: /09362_3 Software License Agreement - Page 4 SCHEDULE 1 Application Software Purchase Price Key-Billing for Windows License $33,400.00 Import Water Readings from IA W Import Water Readings also from Watsons and the Town of Sellersburg Cash Drawer Software Cash Drawer Till Auto-Pay (Customer Bank Withdrawal) Final Bill Module Cycle Billing Module Customized Billing Letter/Card Other Charges Module Key-billing to key-ledger interface account number bar coding post office bar code with zip+4 sorting Key-Ledger for Windows License $9,500.00 With Key-Budget to Key-Ledger Interface NOTE: The above Application Software Systems includes License Date Trainine: Visits 4/9/07 Ten (10) 4/9/07 Five (5) Fifteen (15) *on-site training visits. * Any visits past the above listing may result in billable charges at the current hourly rate, including travel time portal to portal and in some circumstances, lodging, per diem and mileage. Software License Agreement - Page 6 " ,. , " , " " ." N ' " " I NAVIGATING INFORMATION STREAMS I Annual Maintenance Agreement for Keystone Software Systems 1. Parties Agreement made as of April 9, 2007, between Keystone Software Systems, an Indiana corporation, with its principal place of business at 9401 Innovation Dr., Suite 400, P.O. Box 669, Daleville, IN 47334-0669.("Licensor"), and City of Jeffersonville Sewage Department with its principal place of business at 500 Quartermaster Court, Jeffersonville, IN 47130 ("Licensee"). Licensor and Licensee agree that the terms and conditions of this Maintenance Agreement cover maintenance services to be provided by Licensor to Licensee for the software licensed by Licensor to Licensee as more particularly described on Schedule A hereto. 2. Definitions Effective Date. The date set forth on Schedule A. Errors, Malfunctions or Defects. Deviations between the Licensed Software and the documentation furnished by Licensor for such Software. Licensed Software. All programs and associated documentation licensed to Licensee under one or more Licenses for Software Products between the parties. Definitions in such Licenses shall apply to this Agreement unless plainly inconsistent. Maintenance Period. The initial period of twelve (12) consecutive months and any twelve (12) consecutive month renewal period thereafter commencing on the Effective Date of this Agreement, or the anniversary thereof. Software Product. A licensed program and associated documentation that has been licensed by Licensor to Licensee. Successor Product. A Software Product generally offered and expressly designated by Licensor in its sole discretion as a successor to a specified Software Product. Support End Date. A date established by Licensor after which Support Service for a specific Software Product is no longer available. Support Service. The Licensed Software support service ordered by Licensee and furnished under this Agreement, as such service is available and constituted from time to time. 3. Support Service Term (a) Commencement. Licensor will begin Support Service for each Software product on the date of installation of such Product or on the Effective Date set forth in Schedule A attached hereto, whichever is later. (b) Continuation. Licensor will continue to furnish Support Service for the Maintenance Period. With respect to each Software Product set forth in Schedule A, this Agreement shall remain in effect for successive Maintenance Periods until terminated by notice from one party to the other. (c) Termination. Except as otherwise provided herein, (i) Notice. Either 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 Isixty (60) days before the end of the Maintenance Period, or by Licensee as to any specific Software Prodtct at any time before the end of the Maintenance Peribd. I (ii) Default. Either party may terminate this Agreement if the other party defaults in the performance of any of its obligations hereunder or under a License Agreement for Software Product, effective after written notification of default and failure to cure the default after ten (10) days. "Default" shall be defined as: (a) breach of any material term of this 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 any License Agreement between the parties; (c) Licensee being declared a user not in good standing by Licensor, or (d) proceedings in bankruptcy are commenced against either of the parties, or either is adjudicated a bankrupt, or a receiver of wither is appointed and qualifies. Licensor shall have the sole right to declare 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 Systems, related materials, support services or Licensor staff; failure to obtain appropriate training for Licensee staff; ceasing to use the Systems on a regular basis for their intended purposes or replacing the Systems with those of another computer software licensor. 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 Annual Maintenance Agreement - Page 1 Boyc~ . Boyce Systems . Keystone Software . Komputrol Software 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. Failure to cure a default within the ten (10) day time limit shall give the party not in default the sole right and power to terminate this Agreement. (iii) Remedies. If Licensee fails to pay any amount owed to Licensor under this Agreement or otherwise breaches this Agreement and Licensor terminates this Agreement as provided in paragraph 3( c )(ii), it is agreed that in addition to any other appropriate remedies, any payments made to Licensor prior to termination shall be retained as liquidated damages. (iv) License Expiration. This Agreement shall terminate automatically upon termination or expiration of all Licenses for Software Products. (v) Termination of Support. Licensor may terminate support service on a Support End Date. 4. Services to be Provided. Licensor shall provide the following services during a Maintenance Period: (a) Error Correction. Licensor shall attempt to correct documented errors in a Software Product when such errors are reported to Licensor and can be repeated by Licensor on its equipment. If a reported error causes a Software Product to be inoperable or if Licensee's notice to Licensor states that such error is substantial and material with respect to Licensee's use of the Software Product, 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. Licensor shall not be responsible for problems or defects in the Software Product caused by negligence, operator error, power failure, or computer hardware or software failure. Further, Licensor reserves the right to charge the Licensee for anyon-site service call. or telephone support service call made in response to any such problems; provided, however, if Licensor, in its sole discretion determines that an error in the Software Product was the reason for the service call it shall not charge Licensee for such service call. If Licensee reports an error to Licensor, Licensee shall give Licensor reasonable access to the Equipment, the Software Product and all relevant documentation and records, and shall provide such reasonable assistance as Licensor may request, including sample output and other diagnostic information, in order to assist Licensor in providing maintenance service. (b) Updates. Licensor shall provide Licensee, at no additional cost, any updates, error corrections, modifications or enhancements (herein collectively called "Updates") for each Software Product under maintenance when such Updates are developed or published by Licensor and made generally available to other licensees of the Software Product at no additional cost. Any other Updates developed or published by Licensor will be offered to Licensee at Licensor's then current published rates. All Updates shall become part of the Software Product and Licensor 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 Licensor. (c) Telephone Support. Licensor shall provide Licensee toll-free telephone support services to help Licensee in answering routine questions with respect to use of the Software Product. All common carrier charges incurred by Licensee and all costs of telephone and terminal equipment incurred by Licensee shall be the responsibility of Licensee. (d) Regulatory and Statutory Requirements. Except for extraordinary changes caused by regulatory or statutory requirements as determined by the Licensor, Licensor will make any changes to the application Software Systems necessitated by new or modified regulatory or statutory requirements of federal or state government agencies at no additional charge. (e) Data Transmittal Programs. Licensor will provide to Licensee, at no additional charge, software programs for magnetic media transmittal of W-2 payroll information to fe~eral and state government agencies. Licensee is responsible for transmittal of its information. Licensor will develop and distribute programs to the Licensee to facilitate electronic transmittal of data to federal and state government agencies, as federal and state government agencies begin to accept electronically transmitted reports, at no additional charge to the Licensee. (f) Newsletter. Licensor publishes a periodic newsletter for clients including announcements and information of interest to clients, and the Licensee will receive the Licensor newsletter. (g) Cooperative Software Development. Licensor may make available to the Licensee the opportunity to participate with other License holders in the cooperative development of custom application Annual Maintenance Agreement - Page 2 software systems. The selection. of any software systems to be developed shall be within the sole discretion of Licensor, and any software systems so developed shall remain the sole property of Licensor. Licensor will advise the Licensee of each such opportunity to be made available to Licensee and the cost of participation in the cooperative development of custom application software systems. 5. Licensee Responsibilities (a) Interface. Licensee shall be responsible for the interface between Software Products 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) Installation and Operation. Except as otherwise provided in Schedule A, Licensee is responsible for installing, managing and operating any Support Service elements delivered under this Agreement. (c) Software License Limitations. Licensee agrees that the rights granted to Licensee, the use limitations and Licensee's responsibilities to prevent unauthorized disclosure specified in the License for Software Products between Licensor and Licensee apply equally to all Support Service elements, such as corrective code, enhancements and Updates furnished under this Agreement. (d) Modifications by Licensee. In no event shall Licensor have any responsibility to correct any errors or damage resulting from changes to or modification of a Software Product made by Licensee. (e) Un installed Updates. Licensor shall not be responsible for correcting any alleged error if Licensee fails to incorporate in a Software Product any Update (as defmed in Clause 4(b) hereof) that Licensor has provided to Licensee. 6. Charges (a) Payment. Licensee agrees to pay Licensor the. annual maintenance fee set forth in Schedule A by the date specified in Schedule A and on or before the anniversary of that date for all renewal terms. Any payment for separately billed services or products shall be due upon receipt of invoice. Additional services to be provided to Licensee by Licensor will be charged Licensor's current rates, which 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 Software. (b) Changes. Licensor may change the charges specified in Schedule A for all or any Software Product effective upon the expiration of the Maintenance Period or at the end of any calendar month thereafter, by giving at least ninety (90) days notice prior to the end of the Maintenance Period. (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. 7. 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 Licensor's liability hereunder for damages shall not exceed the annual maintenance fee paid, or payable, by Licensee for the Software Product, which Licensee claims resulted in Licensee being damaged for the Maintenance Period in which the cause of action accrued. (c) Limitation of Damages. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR TORT DAMAGES. 8. General (a) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges all prior discussions between them, 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 herein or as duly set forth on or subsequent to the Effective Date hereof in writing and signed by a proper and duly authorized representative 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. (b) Force Majeure. If Licensor shall be delayed or prevented from performing this Agreement due to any cause beyond its reasonable Annual Maintenance Agreement - Page 3 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. (c) Licensee Forms and Non-Waiver. 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 conditions of this Agreement nor as an acceptance of any such provision. (d) Notices. Any notice, request, instruction or other document pertaining to this Agreement shall be in writing and delivered personally or sent by certified or registered U.S. Mail, postage prepaid, and addressed as follows: If to Licensor: Keystone Software Systems 9401 Innovation Dr., Suite 400 P.O. Box 669 Daleville, IN 47334-0669 If to Licensee: Attn: Peggy Wilder, Clerk-Treasurer City of Jeffersonville 500 Quartermaster Court Jeffersonville, IN 47130 Either party may change the address to which notice is to be sent by giving written notice thereof to the other party. Nothwithstanding the foregoing, notice by Licensor of any change in charges pursuant to paragraph 6(b) shall also be sufficient under this paragraph 8( d) if sent by electronic mail (email) to the contact person identified above using the email address most recently provided by Licensee or used by Licensee in correspondence with Licensor. (e) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Indiana. J:he exclusive jurisdiction for any legal proceeding regarding this Agreement shall be the appropriate federal or state court in the State of Indiana, and the parties hereto expressly submit to the jurisdiction of said courts. (t) Assignments. None of the Products or Services may be assigned or transferred by the Licensee 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 Licensor's written consent is void. (g) Captions. Captions contained in this Agreement are for reference purposes only and are not part of the Agreement. (h) Attorneys' Fees. If any action is filed in relation to this agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. (i) Limitation on actions. Any claim arising out of or related to this' Agreement must be brought no later than two (2) years after it has accrued. 9. Execution Licensee acknowledges that it has read this Maintenance Agreement and agrees to all the terms 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. (Licensee) (n · By: -W~-~ J( a---- Title: CJ..e-ri- "\ \di:\...,q)f 0 ( Date: ~ -~4 -0 --::y Keystone Software Systems By ~4~1 Michael B. Galliher, CEO Date: 1/2970_4 Annual Maintenance Agreement - Page 4 APPLICA TION SOFTWARE Key-Billing for Windows Key-Ledger for Windows SCHEDULE A EFFECTIVE DATE Date of Installation Date of Installation **NOTE: 1sT YEAR IS INCLUDED WITH THE PURCHASE OF THE PROGRAM ANNUAL MAINTENANCE FEES AFTER THE FIRST YEAR Key-Billing for Windows Key-Ledger for Windows Annual Maintenance Agreement - Page 5 1.1 AMOUNT N/C** N/C** $3,200.00 $1,800.00 "~N A V I GAT I N GIN FOR MAT ION S T REA M S INVOICE Page: 1 KEYSTONE CONSULTING SERVICES INC 9401 INNOVATION DR STE 400 PO BOX 669 DALEVILLE IN 47334-0669 (317) 664-7400 INVOICE NUMBER: 0000328 INVOICE DATE: 04/04/2007 SALESPERSON: 0004 CUSTOMER NO: 1002812 SOLD TO: SHIP TO: JEFFERSONVILLE SEWAGE DEPT 500 QUARTERMASTER COURT JEFFERSONVILLE, IN 47130 JEFFERSONVILLE SEWAGE DEPT 500 QUARTERMASTER COURT JEFFERSONVILLE, IN 47130 CONFIRM TO: PEGGY WILDER CUSTOMER P.O.: ITEM NUMBER UNIT ORDERED PRICE AMOUNT SD-UW-SO/TO KEY -BILLING FOR WINDOWS INCLUDES SEWER CERT MODULE AT NO EXTRA CHARGE EACH 15,000.00 15,000.00 OP-SEWERCERT SEWER CERTIFICATION MODULE OP-IMPORT WATER IMPORT WATER READINGS FROM lAW EACH 0.00 0.00 EACH 2,000.00 2,000.00 OP-IMPORT WATER IMPORT WATER READINGS FROM W A TSONS & SELLERSBURG EACH 2,000.00 2,000.00 OP-CASHDRA WER S CASH DRAWER WITH PLAIN PAPER RECEIPTS EACH 1,200.00 1,200.00 OP- TILL CASH D CASH DRAWER TILL OP- AUTO PAY AUTO-PAY (CUSTOMER BANK WITHDRAWAL) EACH 300.00 300.00 EACH 2,500.00 2,500.00 OP-FINAL BILL FINAL BILL MODULE OP-CYCLE BILL CYCLE BILLING EACH 1,500.00 1,500.00 EACH 1,000.00 1,000.00 Bayc~ . Boyce Systems . Keystone Software CONTINUED . Komputrol Software INVOICE Page: 2 KEYSTONE CONSULTING SERVICES INC 9401 INNOV A nON DR STE 400 PO BOX 669 DALEVILLE IN 47334-0669 (317) 664-7400 INVOICE NUMBER: 0000328 INVOICE DATE: 04/04/2007 SALESPERSON: 0004 CUSTOMER NO: 1002812 SOLD TO: SHIP TO: JEFFERSONVILLE SEWAGE DEPT 500 QUARTERMASTER COURT JEFFERSONVILLE, IN 47130 JEFFERSONVILLE SEWAGE DEPT 500 QUARTERMASTER COURT JEFFERSONVILLE, IN 47130 INVOICE INVOICE NUMBER: 0000328 INVOICE DATE: 04/04/2007 KEYSTONE CONSULTING SERVICES INC 9401 INNOV A nON DR STE 400 PO BOX 669 DALEVILLE IN 47334-0669 (317) 664-7400 SALESPERSON: 0004 CUSTOMER NO: 1002812 SOLD TO: SHIP TO: JEFFERSONVILLE SEWAGE" DEPT 500 QUARTERMASTER COURT JEFFERSONVILLE, IN 47130 JEFFERSONVILLE SEWAGE DEPT 500 QUARTERMASTER COURT JEFFERSONVILLE, IN 47130 Page: 3 CONFIRM TO: PEGGY WILDER CUSTOMER P.O.: ITEM NUMBER UNIT ORDERED AMOUNT PRICE Net Order: Less Discount: Freight: Sales Tax: Order Total: 52,400.00 0.00 0.00 0.00 52,400.00