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HomeMy WebLinkAboutCASHTAX CONTRACT DATE AUGUST 2000Balanced Action, Inc License Agreement LICENSE AGREEMENT by and between Balanced Action, Inc. (`Vendor"), P.O. Box 1031 LaConner, Washington 98257 and Kittitas County ("Customer"), having offices at 205 W. 5" Avenue, Ellensburg, Washington 98926, is made and entered into as of the,,9�day of rA.4jq .2000.- 1. CASHTAX2000 / INVESTMENTMGR2000 LICENSE 1,1 For each Program listed on Exhibit A L€cense Supplement as herein Incorporated by reference, Vendor grants to Customer a perpetual, non-exclusive, non -transferable license to use and allow its Affiliates (for so long as they are affiliates) to Use, the. Program solely for Its and its affiliates Internal purposes on the Hardware and Operating System Software at the site. In this agreement, (a) "Documentation" means user guides, operating manuals, and specifications, whether in print or machine readable media, in effect as of the date of the shipment, (b) "Use" means to load, execute, employ, utilize, store, or display the Program, (c) "Affiliates" means any entity controlling, controlled by, or under common control with Customer, and (d) "Server" means one or more interconnected computer hardware systems configured to run the program(s). Customer shall ensure that its Affiliates comply with the terms of this Agreement and will be liable for any breach by any AffiEiate. Customer may delegate authority to execute Supplements to any Affiliate. 1.2 The Program may be transferred temporarily to a backup computer. The Program may also be transferred to computer hardware or used with an operating system, other than the specified Hardware or Operating System Software. Customer may make a reasonable number of copies of the Program exclusively for testing, training, disaster recovery, inactive backup or archival purposes. Copying or Us@ of the Program or Documentation other than as expressly authorized by this Agreement.is not permitted. 1.3 As soon as practical after signing the Agreement but not later than specified In the Statement Of Work, Vendor shall deliver the Program and Documentation to the site. One (1) copy of each Program per Server and one (1) copy of the Documentation shall be delivered to the Customer. Customer may make and Use additional copies of Programs and machine readable Documentation for the number of users specified on the applicable Supplement. 2. SUPPORT AND MAINTENANCE 2.9 Maintenance entitles Customer to have access to Vendor's electronic support facilities and to receive state tax and regulatory updates necessary to maintain functionality that currently exists in Product and all error correction releases and/or performance enhancement releases of the Programs not separately marketed by Vendor, The license granted to Customer under section t shall extend to each update, correction, and enhancement release received from Vendor. Support entitles Customer's employees to telephone Vendor's Helpilne and to have access to Vendor's electronic support facilities. 2.2 Vendor shall have'no obligation to Support or Maintain the Program for Use on any computer system other than the Hardware and Operating System Software specified in the License Supplement or in the event the Customer modifies the Program or data generated by the Program other than as provided in the Documentation. Vendor shall use commercially reasonable efforts to modify any version of the Program to run with new versions oir releases of the Operating System Software or Hardware. if Customer purchases Maintenance from Vendor for any Programs for Use on specific Hardware or in a specific network, Customer must purchase Maintenance from Vendor for all functionally related Programs licensed from Vendor. for Use on such hardware or network. 2.3 Upon completion of each major release of the Program(s) but not less often than annually, Vendor shall deliver one copy of any Vendor source code for the Program to Vendor's then current escrow agent. Invoices for maintenance will include the name and address of the then current escrow agent. So long as Customer is current on maintenance and is in compliance with the provisions of its agreements with Vendor. In the event Vendor ceases to maintain the Program(s), Customer shall have a right to obtain access to such escrowed source code from the escrow agent. 3. CONFIDENTIALITY AND PROPRIETARY RIGHTS 3.9 Each party shall hold Confidential Information of the other in confidence. "Confidential Information" includes without limitation the terms of this Agreement, the Program(s) and all Documentation, and all methods or concepts utilized therein, plus all information ident€fedy the. disclosing party as proprietary or confidential. All Confidential Information shall remain the sole property of the disclosing party. Upon execution of a non -disclosure agreement'satisfactory to the Vendor, third parties may have access to Confidential Information solely for the purpose of providing services to Customer. . Information will not be considered to be Confidential Information if (i) available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach -of any obligation of confidentiality; (iii) independently developed by a party without access to Confidential Information of the other; (iv) known to the recipient at the time of disclosure; (v) produced In compliance with applicable law or a court order, provided the other party is given notice and opportunity to intervene; or (vi) it does not constitute a trade secret and more that five (5) years have elapsed from the date of disclosure. 3.2 All Programs and Documentation, and any modifications or copies thereof, are proprietary and protected by copyright and/or frade'secret law and no ownership rights are transferred by this Agreement. All proprietary notices incorporated in, marked on, or affixed to a Program or other Confidential Information by Vendor or its suppliers shall be duplicated by Customer on all copies of all or any part of the Program and shall not be altered, removed, or obliterated. Customer shall not reverse engineer, reverse assemble, or reverse compile and Program or part thereof. Customer may modify the Program(s) to the extent and in the manner described in the Documentation for the Program(s). 2 4. WARRANTY 4,1 Vendor warrants that each Program licensed to Customer will operate substantially in conformance with the Documentation for such Program for a period of two years from the. date of the License Supplement of such Program or until completion of Acceptance Testing, whichever shall occur first. Vendor warrants the media on which the Program is delivered to be free of defects in material and workmanship for a period of ninety (90) calendar days following the date of shipment. 4.2 Customer's sole and exclusive remedies for breach of either of the foregoing warranties shall be either replacement of the defective materials or a refund.of the license fee paid for the Program(s) licensed on a Supplement. Such remedies are available only if Vendor is notified within the applicable Warranty period and is provided a reasonable opportunity to cure such breach. 4.3 NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE PROGRAM, DOCUMENTATION OR SERVICES TO BE SUPPLIED BY VENDOR, INCLUDING WITHOUT LIMITATION AND IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. INDEMNITY AGREEMENT 5.1 The Vendor shall indemnify, hold harmless, and defend the Customer and its elected officials, officers, and employees from and against all claims, suits, and actions arising from the negligent acts or omissions of the Vendor, its agents, employees, and volunteers. This Indemnity agreement shall include any claims, suits, or actions involving infringement of any patent, trademark, copyright, or trade secret connected with the subject of Licensing Agreement or Program. 5.2 The Customer shall indemnify, hold harmless, and defend the Vendor, its agents, employees, and volunteers from and against all claims, suits, and actions arising from the negligent acts or omissions by the Customer, its elected officials, officers, and employees. 6. LIMITATION OF LIABILITY The total liability of the Vendor with regard to any damages related to breach of warranty issues shall not in any event exceed the license fee paid by the Customer with respect to the affected Program. Neither the Vendor nor its licensors shall be liable for loss of profits, or indirect, incidental, or consequential damages. This limitation of liability shall not in any way limit damages that may result from negligent acts of the Vendor that may lead to bodily injury, or direct property damage to the Customer, or other third parties. 3 7. GENERAL 7.1 Neither this Agreement nor any license hereunder may be assigned (whether by operation of law or otherwise) by either panty without the other party's prior written consent. In the event that Customer and/or one or more Affiliates, if any, is reorganized such that the Affiliate(s) and/or a portion of the Customer is no longer qualified for Use, Customer may request assignment, which shall not be unreasonably withheld. Any fees for additional users or accounts shall be paid to Vendor. 7.2 From time to time, Vendor may request Customer to provide a certification to the effect that actual Use of the Program is In compliance with the terms of this Agreement and any Supplement. In addition, Vendor may, upon reasonable notice, perform an audit to determine compliance with the terms of this Agreement. If the number of accounts, copies, or users is found to be greater than that specified in the License Supplement or the computer system on which the Program Is in use differs from the Hardware and Operating System Software specified on any Agreement, Vendor shall have the right to charge Customer the applicable current list prices therefore. 7.3 On termination of any license granted pursuant to the Agreement, Customer shall cease Using the Program and Documentation, and Customer shall certify in writing to Vendor that all copies of the Program and Documentation, whether or not modified or incorporated into other materials have been destroyed or returned to Vendor. Termination of this Agreement or any license shall not relieve Customer's obligation to pay all fees Incurred prior to such termination and shall not limit either party from pursuing any other remedies available to it. Each party's obligations under Section 3 hereof shall survive termination of any license or this Agreement. 7.4 Each party's obligations under Section 3 hereof are of a unique character and each agrees that any breach may result in irreparable and continuing damage to the other party. In the event of such a breach, the damaged party will be entitled to injunctive relief and/or a decree for specific performance and such future relief as may be proper. 7.5 This Agreement is subject -to any governmental laws, orders, or other restrictions on the export of Programs and related information and Documentation that may be imposed by governmental authorities. 7.6 If either party materially breaches any of its obligations hereunder and falls to remedy such breach (if such breach can be remedied) within thirty (30) days of written notice of such breach, the other party may terminate any license or this Agreement, Waiver of any breach or condition of this Agreement shall not be deemed a waiver of any prior or subsequent breach. No terms or conditions of this Agreement shall be held to be waived, modified, or deleted except by an instrument, in writing, signed by the parties hereto. All such instruments shall be delivered by overnight delivery service or certified mail, return receipt requested, to the address specified above. Either party may change its address by providing notice in accordance with this Section. 7.7 Any provision of this Agreement which is prohibited by law or is unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. 7.8 Subject to the limitations herein before expressed, this Agreement will endure to the benefit of and be binding upon the parties and their respective successors and assigns. M 7.9 This Agreement, together with the exhibits and addenda hereto, and Supplements issued. hereunder, constitutes the entire agreement of the parties and supersedes all previous and contemporaneous communication, representations, understandings or agreements related to the subject matter hereof. This Agreement may be modified only in writing signed by both parties. Customer may issue a purchase order in lieu of a Supplement, if confirmed by a Vendor invoice or other Vendor confirming document. Preprinted terms and conditions on or attached to any such purchase order shall be of no force or effect. In the event of inconsistencies or conflicts in the terms and conditions of any portions of the entire agreement the order of priority shall be: (I) This License Agreement; (ii) Exhibit A License Supplement to this Agreement as herein incorporated by reference and any addendums thereto; (Iii) Exhibit B Statement(s) of Work as herein incorporated by reference and Change Orders (if any) and any addendums thereto. 7.10 Vendor understands and acknowledges that the Customer will not withhold Federal or State Income taxes. Where required by State or Federal law, Vendor authorizes the Customer to make withholding for any taxes other than income taxes. All compensation received by Vendor will be reported to the Internal Revenue Service at the end of the calendar year in accordance with applicable IRS regulations. It is the responsibility of the Vendor to make the necessary estimated tax payments throughout the year, If any, and Vendor is solely liable for any tax obligation arising from Vendor's performance of this Agreement. Customer will pay sales and use taxes imposed on goods and services acquired hereunder as required by law. Vendor must pay all other taxes including, but not limited to: Business and Occupation Tax, taxes based on Vendor's gross or net income, or personal property to which the Customer does not hold title. The Customer is exempt from Federal -Excise tax. 7.11 This Agreement shall be subject to all laws, rules and regulations of the United States of America, and the. State of Washington, and political subdivisions of the State of Washington. 7.12 The Agreement shall be governed by and construed under the laws of the State of Washington and the venue for such action of litigation shall be in the Superior Court of the State of Washington in and for the County of Kittitas. 5 IN WITNESS WHEREOF, the parties have executed this Agreement this 2_qtt, day of August 2000. VENDOR: BOARD OF COUNTY COMMISSIONERS KITTITAS COUNTY, WASHINGTON . Balanced Action, Inc. See Attached for Signature• Steven Kleinbart, President Perry Huston, Chairman Authorized by firm Bylaws Mailing Address: Max Golladay, Co is io er P.O. Box 1031 LaConner, WA 98257 William Hinkle, Commissioner Business Tax ID Number: Approved: 91-1995572 Bonnie Jump, T easurer By: _h 1A Judy Pless, Budget Finance Director By: Tom Precious, Computer Services Approvya o Fo�m,Only: M RECElkiEE) c4(z5" Prosecuting Attorney 2 We will work jointly to identify and correct any issues as they arise. If at any point it is mutually determined that this environment will not operate acceptably, Kittitas County will be refunded the down payment, and may, at its option, cancel the contract for Cashtax 20001 InvestmentMgr 2000. President Balanced Action, Inc.