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HomeMy WebLinkAboutPOSM (Pipeline Observation System Management) - Software LLC License PDSM .A a POSM Software LLC License Customer Name: City of Yakima Main Contact: Marc Cawley Address: 2220 East Viola Avenue Product Type: POSM Pro Serial: 522832 Registration Key: 1815 - 5506 - 7873 -7362 Thank you for purchasing your POSM product accompanied by 5 (five) years of technical support with an additional 5 (five) year option. Contract Start: September 22, 2016 Contract Expiration: September 22, 2026 Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /posmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /posmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 POSM SOFTWARE LLC LICENSE AGREEMENT READ THIS LICENSE AGREEMENT ( "AGREEMENT ") CAREFULLY BEFORE DOWNLOADING, INSTALLING, UPDATING, OR USING POSM SUPPLIED SOFTWARE. THIS DOCUMENT CONSTITUTES AN AGREEMENT TO USE THE SOFTWARE ON THE TERMS AND CONDITIONS APPEARING BELOW. BY DOWNLOADING, INSTALLING, UPDATING OR USING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY THIS MAINTENANCE AND SUPPORT AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE, THEN DO NOT DOWNLOAD, INSTALL, UPDATE OR USE THE SOFTWARE. The following terms govern your use of the Software except to the extent a particular program (a) is the subject of a separate written agreement with POSM or its dealers or (b) includes a separate "click -on" license agreement as part of the installation and /or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the written agreement, (2) the click -on agreement, and (3) this Software License. This License Agreement is entered into between POSM, the Agent and /or the owner of all rights in respect of the software (herein referred to as "Licensor ") of the one part and the City of Yakima (herein referred to as "Licensee "), on the other. THIS AGREEMENT ( "Agreement ") is entered into on September 22, 2016, between POSM SOFTWARE LLC ( "Licensor "), with its principal place of business located at PO BOX 110967 Naples, FL 34108 and City of Yakima ( "Licensee "), with its principal place of business located at 129 North 2n Street, Yakima WA, 98901 and shall be effective as of September 22, 2016 (the "Effective Date "). RECITALS WHEREAS, Licensor is engaged in the business of computer application development, including technical software support and maintenance, WHEREAS, Licensor has created and implemented for Licensee certain software identified as POSM Pro Serial key # 522832 ( the "Software" or "Licensed Product "). WHEREAS, Licensee will from time to time require maintenance and support regarding the use of the Software. NOW THEREFORE, Licensor and Licensee agree as follows: 1. Scope of Services Licensor agrees to perform, and Licensee agrees to accept, the maintenance and support services referred to in Exhibit A (Statement of Work) with respect to the Software. Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /bosmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 2. Price and Payment Terms Licensee will pay Licensor for Licensor's Work on the terms and conditions set forth herein and in Exhibit A (Statement of Work). 3. Term and Termination Unless terminated as provided herein, this Agreement will extend for a period of five (5) years, and will automatically renew for one five (5) year term unless otherwise terminated. Licensor may terminate this Agreement without cause upon thirty (30) days written notice. In the event of termination without cause, Licensee agrees to pay Licensor for all of Licensor's Work performed up to the date of termination, return all copies of the Software to Licensor without demand or notice, or (ii) permanently delete or destroy all copies of the Software in its possession and submit to Licensor a sworn affidavit signed by Licensee attesting to such destruction. 4. Ownership of Intellectual Property Licensor will retain ownership of all proprietary rights in Licensor's Licensed Product, including certain rights, if any, that Licensor has pursuant to license from another party. Upon full payment of the fees set forth in this Agreement, Licensor will grant to Licensee a non - exclusive license to use the Software, as modified or enhanced, in its own business. Licensee is not authorized to sell, license, or permit the use of the Software or rights thereto to any other person or firm. 5. Confidential Information a. All information or data (hereinafter "Confidential Information ") provided by, disseminated by or relating to Licensor shall be confidential and proprietary. Licensee will hold such Confidential Information in confidence and will not disclose, distribute, or use Licensor's Confidential Information unless required under the Washington State Public Records Act or other federal or state law. b. This obligation of confidentiality will extend for an indefinite period after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation. 6. Obligations of Licensor a. Licensor will promptly notify Licensee of any material defects or malfunctions in the Software or related documentation that it learns from any source. b. Licensor will, from time to time, supply Licensee with copies of the Software and relevant documentation revised to reflect significant updates and enhancements to the software made by Licensor, if any, during the period of this Agreement. Such enhancements may include, without limitation, modifications to the Software that increase its speed, efficiency, and /or ease of operation. Licensor will supply copies of any of these updates and /or enhancements without additional charge, so long as maintenance and support agreement are current. Licensor will give Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /oosmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 reasonable assistance to Licensee in installing and operating any new release or enhancement, provided, however, that if such assistance is to be provided at Licensee's facility, such services will be charged at Licensor's then current consulting rate. c. Within a reasonable time after being given written notice thereof, Licensor will correct inherent material errors in the Software that are not caused by Licensee's misuse, improper use, alteration or damage of the Software. d. Licensor will supply Licensee with reasonable means of accessing modifications and enhancements to the Software, including diskette, compact disk, or through network download. Licensor is not obligated under this Agreement to perform on- site installation of modifications and enhancements. 7. Warranty and Disclaimer This paragraph was removed by agreement of the parties. 8. Limitation of Liability, Indemnification Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of Licensor's Work, whether in contract, tort, or otherwise, even if the other has been advised of the possibility of such loss or damages. Licensee will indemnify and hold Licensor harmless against any claims incurred by Licensor arising out of or in conjunction with Licensee's breach of this Agreement, as well as all reasonable costs, expenses and attorneys' fees incurred therein. Licensor's total liability under this Agreement with respect to the Work, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Licensee to Licensor during the six (6) month period prior to the date the claim arises. 9. Relation of Parties The performance by Licensor of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Licensor and Licensee, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties. 10. Non - assignment Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without prior written consent of the other party, which may be withheld for any reason. 11. Arbitration Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /posmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 by and construed and interpreted in accordance with the laws of the state of Washington. The arbitration will be held in Washington State. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction. 12. Attorneys' Fees If any party should bring an action or suit for recovery of any sum due under this Agreement, or because of the breach of any provisions of this Agreement, or for any other relief, or in the event of any other arbitration or litigation between the parties with respect to this Agreement, then all costs and expenses, including collection agency fees and reasonable attorneys' fees incurred by the prevailing party in such litigation, court proceeding, appeal, petition for review therefrom or in any proceeding before a U.S. Bankruptcy Court, shall be paid by the other party, such amount to be set by the court before which the matter is heard, which obligation on the part of the other party shall be deemed to have accrued on the date of the commencement of such action and shall be enforceable whether or not the action is prosecuted to judgment. 13. Severability If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect. 14. Force Majeure Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control. 15. No Waiver The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto. 16. Whenever notice is required to be given under this Agreement, a writing signed by an officer of the party serving such notice, and mailed by certified mail, return receipt requested, to the other party, shall be deemed good and sufficient notice. Such notices shall be addressed as follows: Licensor: Licensee: Robert M. Katter, President Marc Cawley, Wastewater Superintendent POSM Software, LLC City of Yakima P.O. Box 110967 129 N. 2nd Street Naples, FL 34108 Yakima, WA 98901 Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /posmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 Copy To: Copy To: Robert M. Katter, President Cliff Moore, City Manager POSM Software, LLC City of Yakima PO BOX 110967 129 N. 2n Street Naples, FL 34108 Yakima, WA 98901 17. Entire Agreement This Agreement together with any attachments referred to herein constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein and by using POSM Software adhere to this agreement. Licensor: 1 ©�� � <` 6 Printed Name: Robert M. Katter Date: ( i24/ 4 4; 2 1 ,2 Signature: Title: President, POSM Software LLC Licensee: Printed Name: Marc Cawley Date: /0 /2 - Z U ( 47 Signature: 7% 'ri ( ' ■ Title: Wastewater Superintendent City of Yakima: / Printed Name: Cliff Moore Date: l D ii U // to Signature: .�� ,- , Title: Yakima City Manager CITY CONTRACT NO: al!, r X 88 RESOLUTION NO: 4/a Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /posmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 EXHIBIT A: STATEMENT OF WORK TABLE OF CONTENTS PREAMABLE 1.0 Technical Support 2.0 Payment 3.0 Supporting Documentation 4.0 Expenses and Taxes PREAMBLE This Statement of Work accompanies an Agreement that has been executed by the parties. All statements of fact contained in this Statement of Work are subject to the terms and conditions set forth in such Agreement. The terms and conditions set forth in the Agreement control in the event of any inconsistency between such terms and conditions and the matters set forth in this Statement of Work. 1. Technical Support Licensee will be provided with exclusive benefits from POSM Software LLC, including and not limited to, new releases, updates, customized reports using POSM Database Template Editor, and a free ESRI GIS database conversion to be exported into POSM Pro (limit 1 free conversion per Licensee, not based on number of licenses and support contracts). Licensee will also be provided technical assistance with POSM Software via telephone support, online remote support (if supported), and online training modules, Monday- Friday 8:00 am — 5:00 pm, EST. POSM Software LLC will be closed in honor of the following major holidays: Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Years. Licensee may be eligible for free ESRI GIS database conversion if Licensee falls within POSM Software LLC's certified map. For a copy of the certified map, please contact POSM telephone support. In the event a call is not answered immediately by POSM Support, please leave a detailed message and a support representative will be in contact as soon as possible. This support contract does not include onsite travel, in the event onsite travel is requested, a separate charge will apply. POSM Software LLC is not responsible for loss of data, software or hardware failure; all hardware is deemed the responsibility of the original manufacturer. 2. Payment Payment is due thirty (30) days after date of invoice. Licensee may not withhold any amounts due hereunder and Licensor reserves the right to cease work without prejudice if amounts are not paid when due. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one (1) percent per month or Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /posmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478 fraction thereof until paid. 3. Supporting Documentation The POSM Manual, POSM License Agreement & POSM demo videos can be located on the following website: http: / /posm.us. 4. Expenses and Taxes Prices quoted for Services do not include and Licensee will reimburse Licensor for its reasonable and necessary cost of travel and out -of- pocket costs for photocopying, overnight courier, unusual long distance telephone and the like. All non -local trips must be approved by Licensee before commencing. Any applicable sales tax is to be paid by Licensee. Pipeline Observation System Management Email » info @posmsoftware.com \\ Website » http: / /posmsoftware.com/ Phone » 859 - 274 -0041 \\ Fax » 707 - 238 -1478