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HomeMy WebLinkAboutR-79-0055Ar C / tb i/15/19 "SUP'OF'TIVE DOCUP:":ENfS FOLLOW" RESOLUTION No,= A TMLUTION NAGER ToTENTERIN0 THE INTO CONTRACTS BETWEEN. CITY MA THE CITY of MIAMI AND WISHER ASSOCIATES; INC, PROVIDING FOR THE PURCHASE, INSTALLATION AND MAINT_. NANCE or TRE AX COMPUTERIZED CASH FEOt FOt1ECASTING AND INVESTMENT MANAGEMENT SYSTEM FOR THE FINANCE DEPARTMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS coNTAINED IN 'THE ATTACHED AGREEMENTS, WITH FUNDS THEREFOR TO EE APPRO- PRIATED PROM THE GENERAL FUND, USING INCREASEb INTEREST EARNINGS 79 55 WHEREAS, the City desires to maximize its return on investments; and WHEREAS, for a total acquisition and installation cost of $62,860 and an estimated total annual operating of $17,000; and WHEREAS, the estimated increase in City revenues from the use of MONEYMAX is $225,000 to $400,000; NOW, THIREFORE, BE 1T RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1 The City Manager is authorized to enter into contracts between the City and Wismer Associates, Inc. providing for the purchase, installation and maintenance the MONEYMA) computerized cash flow forecasting and investment management system for the Finance Department in accordance with the conditions contained in the attached agreements, with funds therefor to be using increased interest appropriated earnings. from the General Fund, PASSED AND ADOPTED this18th _day RALPk\G, ONGIE, CITY CLERK PREP RED AND APPROVED ROB1;RT F. CLARK 13Y; of January, 1979. MAURICE A. FERRE MAURICE A. FERRE, MAYOR ASSISTANT CTTY ATTORNEY err Al!rpr•. L 1, ,. „' ...''. ITEM NO, CITY COMMISSION MEETING OF JANiS1919 2 9 "55 amig 11A0N44.1,4,,,,:.,ttl,.,,:.: RPC/tb i/1sl/g RESOLUTION NOs A RESOLUTION AUTHORI2INC THE CITY MANAGER TO ENTER INTO CONTRACTS ttTWttEN THE CITY OF' MIAMI ANb WISMER ASSOCIATES, INC, PROVtbt14G. POR THE PURCHASE, INSTALLATION ANb MAINTENANCE Ot+~ THE MONEYMAX COMPUTERIZED CASH Ftot PDP.ECASTtNC AND INVESTMENT MANAOEMEt4T SYSTEM POR THE PINANCt t)EYARTMENT IN. ACCoRtiANCi WITH THE TERMS AND CONDITIONS CONTAINEb IN THE ATTACHED AGREEMENTS, WITH PUNDS THE1 OR TO t t APPRO= PRtATtb FROM THE GENERAL FUND, USING INCREASED INTEREST EARNINGS: WHEREAS, the City desires to ma titnize its return Oft ihVestments; and WHEREAS, for cost of $62,860 and an estimated total annual operating cost of $1.7,000; and WHEREAS, the estimated increase in City revenues from the use of MONEYMAX is $225,000 to $400,000; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1.' The City. Manager is authorized to enter into contracts between the City and.Wismer Associates, Inc. providing for the purchase, installation and maintenance of the MONEYMAX computerized cash flow forecasting and investment management system for the Finance Department in accordance with the terms conditions contained in the attached agreements, with funds therefor'to b appropriated from the General Fund, using increased interest earnings. ATT a total acquisition and installation PASSED AND ADOPTED this 18thday of January, 1979 RAU ONGIE, CITY CLERK ROBERT 1, CLAttK, AP1 R MAURICE A. FERRE MAURICE A. FERRE, MAYOR A$$ISTANT O Y ATTAR IEY ` FORMA 1 Agreement Date Wr8MtR ASSCaATE8 ► INC t 0S5 TOPANdA CANYON t O LEVARb WOObLAN i } ILLS r CALIFORNIA n.67 -LEASE AdREEMENT Requested Date of Installation TtiIS LEASE PCREEMENT. is made bet=; een WISMER ASSOCIATES,, INC. (here- inafter called "Lessor") and the City of Miami, Florida 33133 (hereinafter called Custcmer ) whoseplace of business 1.5 located at: 3500 Pan American Drive, Miami, Florida Subject Matter of Lease In accordance with the terms `and conditions of this Agreement, Lessor hereby agrees to lease to: Customer and Customer hereby agrees to lease frcm Lessor the following items of equipment (hereinafter referred to as the "Equipment") . This Agreement amends and supersedes'any previous lease ag::eement with re spect to the Equipment to which Customer is a party. • Model Description Monthly Rental Total. Monthly Rental Each Unit 1 1 LA36 DE DECwriter $ 89.00 $ 89.00 Terminal 2 1 36 MB Option Logic $ 4.00 $ 400 Board 3 1 36 CVu Right Side Panel -$ 3.00 $ 3.00 4 l 36 LV Forms Control $ 6.00 $ 6.00 5 1 36 CE EIA-Interface $ 2'.00 $ 2.00 6 1 36 LF 14-Key Numeric $ 4.00 $' 4.00 Pad 1 Techtran 815 Data Cassette 1 VEARS-_Att dONDIT(.8-,OR,14Agt..A('LA2tMtItt'_*.' 0 -inUe4 iistalation Equipment tnstal latidft is at Customer i s fadi :ity lo dated at: -. SOa_Pafi_Amer,icat.t tive,_Mianli► .1toti.da _13 .3 _ Term of Lease This lease shall remain in full force, except as may be other.. wise provided herein, for '6s,. months, iths, and may be • terminated by Customer upon the expiration of said term by written notice of termination to Lessor not less than thirty (3) days prior thereto. :mans orta t.ion and Installatiofi_:-Expe isas A-11 transportation, rigging and drayage charges in connection with delivery, installation and/or return of the Equipment shall be paid by the Customer. Payments 5.1 Monthly rental and any appropriate charges shall be due and payable in 'advance on the first day of each month. The rental charges shown above shall remain in effect during the initial term hereof (see °Term of Lease") . After the expiration of such initial tern, the rental charges are subject to change by Lessor upon thirty (30) days' notice to Custcmer. If any monthly rental is changed after the initial tern hereof has expired, the Customer may terminate this agreement: as hereinbefore provided; otherwise, the new charge shall become effec- tive. Inasmuch as. Lessor undertakes to make repairs promptly after being given notice of the need therefore there shall be no abatement of the charges set forth herein during any period when the Equipment shall be inoperable. 5.2 When Equipment is installed for a part of a calendar month, the monthly charge for the partial month will be prorated. 5.3 If Customer's account is not paid when due, Lessor may add an amount not in excess of 15 percent of the balance then owing to cover its expenses of collection, transpor- tation and preparation charges to nearest Wismer Associ- ates office, legal fees and other reasonable cost of collection and same shall become additional rent U 1� here "i f � er. Lesser will charge interest or late charges at '�i7 i�i,.'te maximum rate provided by law on any portion of ' ._ t, Customer's account which is over thirty (30) days past DO ' i' '! t vt t._ I .; !due. The provision will be exercised in `a manner con I (� 1A 11slstent wit Lie eral Deserve Reg„ ation Sec ....6 4 (c) L�.d� effective July 1, 1969, governing late payments, delin- quency, default, and reinstatement charges. r it VFPOR,TL\/R, connection with the DOCU"ENT'll provide all parts FOLLOW, -.lad 5C LEASE AO"tEMENT Continued TAXes There shall be added to the above charges aiiounts equal to any taxes, however designated, levied or bated, on the charges provided for heroin, or obi this agreement, or on the Equipment or its use, including state and local privilege or excise taxes based oti gross ss revenue, ` any taxes or amounts ift lieu thereof paid or payable by wi8Mer associates, inc. or the Equipment, but not including taxes based on the net income of Wis ler Associates, ItiCG: Customer is responsible for providing wistner associates, Inc. with a tax exemption certificate. If the certificate is not prow-ided, Customer will be liable for tax a5 invoiced. Maintenance 7.1 Subject to the terms and conditions herein set forth, Lessor shall provide preventive and remedial maintenance service to maintain the Equipment it good operating condi- tion. Preventive maintenance (required: to inspect, lubri- cate, and adjust the Equipment) shall be performed during normal business hours, as herein defined. Lessor shall determine thefrequency and the duration of preventive maintenance required in respect to all Equipment. Custom- er shall not permit persons other than authorized repre- sentatives of Lessor to effect adjustment or repairs to the Equipment and Lessor shall be in no way responsible to Customer for damage to, or loss of the use of, the Equipment occasioned by adjustments and repairs made by persons other than its own representatives or personnel approved by Lessor. 7.2 The monthly charge shall entitle the Customer to on -call remedial maintenance service during normal business hours. 7.3 If the Customer requests unscheduled, on -call remedial maintenance to be performed at a time which is outside the normal business hours, the service will be furnished at Lessor's standard hourly rates and terms then in effect, including without limitation, overtime charges and special charges for service over a specified distance from Lessor's service center. Travel time and expenses are billable. There is a minimum char. e of two hours, includ- ing travel time, for calls taken outside of normal busi- ness hours 7.4 The normal business hours, unless otherwise agreed to by the parties in writing, shall consist of the time between the Hours of 9 3.M and 5 PM five (5) days per week, Monday through Friday, excluding holidays. service provided needed. herein, Lessor Alterations and/or attachments to the Equipment may riot be. trade without prior written consent of Lesson this written! consent may be withdrawn by Lessor if the Equipment opera° tiofi or Maintenai5ce is impaired. Additional EViDmgftt Items of Equipment, in addition to the above, will be fur- nished, if available, to the Customer under this Agreement, at the schedule of charges in effect on the data such: Equipment is delivered ready for uses ?or each item of Equipment SO added, term of lease will comitence on the first day of charge for Monthly rental for such item. Re- quests for such additional Equipment must be in writing and specify product number, quantity, term of lease and ;maintenance plan. Location and Identification of Equipment The Equipment shall be located by the Customer at the place or places designated in this lease, and shall not be changed without prior written approval of Lessor. Customer shall not remove or obliterate any labels, tags, or other indicia of Lessor's ownership of ; the Equipment appearing thereon. Customer shall return said Equipment to Lessor. upon expiration of this Agreement in the same condition in which said Equipment was received, normal wear and tear excepted. Customer shall be liable for any expenses in- curred because of relocation of Equipment without the written permission of Lessor. 11. Risk of Loss and Title to Eauioment While the Equipment is in transit or in the possession of the Customer, Lessor and its insurers, if any, relieve the Customer of responsibility for risk of loss or damage to the Equipment, except for loss or damage arising from neglect, misuse, "other than normal use", cr theft (unless theft was reported to the police by Customer' immediately upon the discovery thereof) of the Equipment. A1.1 Equip- ment remains Lessor's property, and may be removed by (f) Lessor or any officer of the law immediately upon the ter- • urination of this lease or if Customer shall be in default in the performance of any of its obligations hereunder LL.I without demanc or further notice and without legal prccess, '�-- Q and in such event Lessor shall have the right, and the Q c:_' „_J Customer hereby authorizes Lessor, through its agents, to enter upon the premises wherever the Equipment may be LL. ( Q located and to remove same. The Customer or his insurers Q u... shall be responsible for all damages to anv Equipment and accessories resulting from neglect, misuse, amuse, "other than normal use", or theft, as stated above, 1 Extent of Liability 12.1 There are no warranties, expressed or implied, oral of Britten, in fact, by operation of law Or otherwise, except as herein expressly stated In no event shall Lessor be liable for any indirect, special of dohtd- quential damages, such as, but not limited to, loss of anticipated profits or other economic lOt8 in connec- tion with or arising out of the existence, furnishing, function, or the CustoMer l s use of, any it of tquip� tnent or services provided for in this agreement. Lessor shall not be liable or deemed to be in default for any. delay or failure in performance under this agreement or for any interruptions resulting, directly or indi- rectly, from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explo- sions, earthquake, floods, and the elements, strikes, labor disputes, shortages of Suitable parts, materials, labor or transportation, or any similar or dissimilar cause beyond reasonable control of Lessor. 12.2 Customer shall indemnify Lessor and hold Lessor harm- less from any loss, claim or damage to persons or property arising out of Customer's use of possession of the equipment which indemnity shall survive the termination of this agreement. Default Any one or more of these events shall constitute a default on the part of the Customer hereunder: (a) Failure of use charge which same (b) "SUp� ORT;\IE) OCU �� ENTto D „ FOLLOW Assignment' This agreement is not assignable by the Customer-. None of the Equipment may be sublet or transferred by the Custcmer without the prior written consent of Lessor and any attempt to sublet or transfer any of the Equipment or the right of Custcmer to pay any regular monthly. within 15 days after the date upon shall become due. Any breach or failure of Custcmer to observe or perform any of its obligations herein. Customer becoming insolvent, making an assign- ment for the benefit of 'creditors, consenting to the appointment of a trustee, receiver or a trustee or receiver being appointed for a Customer, and the Customer filing a petition under any bankruptcy act, or being adjudicated a bankrupt. ' tAAV , A4b CON T Oi`' 0 ' 8t d Ea t'L • the Custotiier without suoh•oohteht is voidable by Lesson Should•Lesso 15eri'tiit the sublease dt traht fer.. of atyy of the tquiptneht, any euoh sublease of transfer dust•be made subjeot to all of the terms and cotiditiohs of. this aC eettent, Whieh terttie and cohditioht thai1 be bihding • oh the sublessee or; transferee', however,•ho Stich per mitted trahsfeis shall release dr discharge: Custcfer from any of.its obligations hereuhder. Lessor may assign its .interest ih this agreement, and. the path �ehts to be received •hereunder, but no such •assig'eht shalj: relieve .Lessor froth its obligations hereitl. CustC-bier shall keep the Equipment•free.from any and all liens and c1a:ms, and shall not do orpermit. and+ act or thing whereby Lessor's title or right to. the Equipment may be encuribered or•impair ed. • 15. GoverninG Laws This agreement •shall be governed by the laws of the State of ` LoR m A and Constitutes the •.entire agreement within its. -written •terms; • no -previous nor contemporaneoUs oral-agreenents between the parties hereto shall have any fcrce of eff and Lessor.. The ec �• between. theCustcmer forecloinC' ter:118 and Condit .oils shall prevail not,siths Land- ing any variance. from the terms and •conditions of any order submitted-,-by-.the- Customer in respect to, the Equip-"H. mTent or. services or Lessor ,-to. which the agreement pertains. ti � U Ir1^ 1"'�T"1 I� SV ��S . . ►�. DOC;' FOL' «' 1/71 • Lease Accepted By: Lease Accepted By: CITY CF MTAMI-, FLORIDA WISHER ASSOCIATES, INC. Customer Signature Signature Name Title Name David A. Wismer TitlePresident Date Date `t'11 Y A':1•.,..l. . 41 W1S11E11 ASSOCIATES. INC. G ht tt hANOA CANYON �OULtrVM1 WOObLANb NtLLs,CALlt ORNIA 91 Gd Agreement No. NON IXCLUSIVI= LICI=N€ ALIMENT, SINr;L PAYMENT OPTION THIS AGREEMENT is made between WISMER ASSOCIATES, INC: (hereinafter called COMPANY) and - th.e_Gity of Miami, Florida called CUSTOMER) whose place of business is located at: 3500 Pan American Drive b Miami, I'L 33133 WISMER ASSOCIATES, INC, by its acceptance hereof does hereby grant to Customer a Non•Exctusive License to use at the location and for the cost sit forth below, in accordance with this Agreement, the beloW named prop,ietaty computer program (hereinafter referred to as PRODUCT). In implementation of this License, Company shall furnish: 1. Availability of the Product via the remote computer terminal to be found at Customer's facility location, 3500 han American Drivel ^Miami, PU 33133 2. Initial installation of Product including _1 copies of the SLIM l it d UsersGuide, on -site training, and technical support for a period of _90 _c1ayS PRODUCT NAME MONBYMAX (M COSTS Installation Fee •_,:..'C_04_000 Travel Expenses At Cost Customer shall request that installation of Product be made by Company not later than three. (3) months from the date that this Aggreement is accepted by Company, this period may be extended by mutual agreement. In the event that Customer does not so request, Company shall have the tight atanytume; theivalter to terminate its obligations hereunder. Additional Product or Service may he c:rdered at the then current price tender all terms and conditions of this Agreement upon written notice to Company by an authorized representative of Customer. PAYMENT Fifty percent (50%) of the Installation Fee payment is due upon execution of this Agreement. The remainder of the Installation Fee is due upon installation of Product. All other payrnt uts shall be made in full within twenty (20) days of the date of invoice. A finance charge of 1'h percent per month will be assessed on late: payments. TERM OF AGREEMENT This Agreement is effective from the date of acceptance by the President of Company and shall remain in force until terminated by Customer upon ninety (f10) days print mitten notice. Company shalt have the right to terminate this Agreement in the event of any breach by Customer, SUPPLEMENTAL TERMS AND CONDITIONS CUSTOMER AGREES THAT THIS AGREEMENT IS SUBJECT TO THE SUPPLEMENTAL TERMS AND CONDITIONS SET FORTH ON THE REVERSE SIDE HEREOF=, AND THAT CUS1OMLR HAS READ AND UNDERSTANDS ALL OF SUCH TERMS AND CONDITIONS. Accepted By: CITY OF M]AM I FLORIDA Customer Signature Name Title Date erfy4.i(t NFY 1.14O)004 Accepted By: WISMER ASSOCIATES, INC. Signature Name ._.—Dt V4-d— 4,--i`; .sn1_oS` Title Pros.i t ent Date "SUPPORTIVE 'DOCUMENTS ',� LLOW �„i Prt0bUCT NAME ISMER ASSOCIATES, INC, 'UtANtA CANYON BOULEVA #b WOOOLANb HILLS, CALIPO NIA PRO' PAM MAINTENANCE ANC, SUPPOPIT sertvict sUI SCI1IM'1ON POIAM TM Program Maintenance and Support Service, (PMSS) for the location designated below Will he provided fora _1 _ h bhth Period beginning .:..__9 0._ days horn Product installation, This subscription shall be renewed autornatically for �11,?—__ntonths at the end of this and each subsequent period of service at the then current PMSS subscription fee unless terminated by either Party by prior Written notice of at least 30 days. The subscription fee is subject to change at the end of each period of service tipon 30 days prior written notice by WISMEn ASSOCIATES, INC, (WAI). The following services, limited to the designated facility location, are included in the Program Maintenance and Support Setvtcet a 01 fsite technical support Off -site technical support shaft include consultation on the propel use and operation of the system which can be accomplished by telephone o. written correspondence and does not require an on -site visit. lit the perfotmance of this support, the WAI Technical Suppoi t tiepresentative will be provided by the Customer with such necessary Customer User Identification Codes as will permit remote access to the Customer's on-line files b. Program improvements as applicable Pr°Tarn impiovements shall include improved versions of existing functions, enhancements, and new minor features: New modules or options priced separately are not included. c. Program error analysis Program error analysis shall include correction of any programming errors detected by Customer except that errors in Custom Progiams shall not be corrected unless this Agreement so specifies. Library sharing of the basic Product prograrns The latest version of Product with all wog' am improvements shall be available to Customer at no cost for program storage. Technical documentation updates Written technical docunlentdllorl describing program improvements to Product wilt be provided from time to time as new features are irnpleinenteci: Program Maintenance and Support Service shall be on a continuous basis following installation; otherwise, Customer shall pay for the period of lapse up to a maximum of one (1) year at the then current subscription fee. Alt costs of operating Product nu d remote timesharing computi” service shall be invoiced monthly by WAI and paid by Customer for each month of ope!rzition, Those costs shall include (1) Timesharing Computer Service:, (2) Market Price Data Service, and (3) Data Keypunching Service. Program Maintenance and Support Service _$_2► 400rtper yeaµr_fol_lowing g0-day Warranty. --- Opel ating Expenses Defined in Paragraph Four (4); Timesharing Computer. Service , — At actua 1 cost based on Supplier's invoice At actual cost based on Supplier's invoice Market Price Data Service Data Keypunching Service At actualcost based on Supplier's: invoice "SUPPORTIVE DOCV 11 F��`. CUSTOMER FACILITY FOghtpof'.31500 Pan American Drive Maami,_FI.. _ - 33i 33 Payment of all costs shall be made in full within twenty (20) days alter the date of invoice. A finance charge of 1'/? percent pet. month will he assessed on late payments, Accepter) hy: CITY OF MIAMI FLORIDA Costume; Signature Name Tii1V,rrrusrinnifs PaW • 1 y r*i , T TOPIf ANfl tt 1 1 it11. I a+l O I-14 Accepted by; WiSMER ASSOCIATES, INC, 'iignattre Name stne: President pate 1 TITLE 1,1 title and lull bWnetship rights to the Product licensed under this Agreement remain with f;ot?ipany. the Product It agreed to be Cd proptietary information and trade secrets, Whe'her or net ahy portion thereof is of May be validly Copyrighted or patented. 1,2 Custortier's tights in and to the Product, as a result of thit License, may not be assigned, Iicented, of otherwise transferred voluhterily, by operation of IaW bf otherwise Without prior written consent from Company. 1.3 Upoh any termination of the Lieense herein granted; Cuttomer shall deliver to Company all materials furnished by Company and pertaining to the Product and thall alto Warrant that all copies thereof have been returned to Company or destroyed. 1.4 the - Customer acknowledges that Company has exclusive rights, title and interest in and to the Product computer program and holds the tole end exclusive copyright oh Product and any other rights as May exist therein. Customer agrees that it Will not at any tithe do or cause to be done any act or thing impairing or tending to irripair any part of such tights, title and interest. the Customer agrees that its use of Product shall not create in Custorfter's favor any right, titre or interest in or to Product but all use of Product by Customer shall inure to the benefit of Company, 2, USE OE THE PRODUCT 2:1 The Product may be used only tor, by or on behalf of the Customer and only at the facility location set forth on the first page of thit Agreement. Any change of location requires the prior written consent of Company. 2.2 All data processed by the Product shall be the property of the Cuttomer, 3. WARRANTY 3.1 Company warrai,ts that the Product, as delivered by Company will perform in accordance with the standard Users Guide and that Company hat the SUPPL€MtN'tAL'TE MS ANb CONbItIbNS right to grant this. License to ute. the Product, However, Company's sole obligation under this warranty. shall be to correct tuch Product to that it will so perform. Company shall have no liability to Customer or any other party because of the failure of such Product to so perform or the ineffectiveness of such grant for:any'teason. • - 3.2 THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED To, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 4. LIMITATION OF LIABILITY 4.1 The maximum liability assumed by Company under this Agreement shall be limited to the cost of -correction or replacement of the service rendered or product licensed, or• the price for such corrected or replaced service or product, whichever, is lest. IN NO EVENT ,SHALL COMPANY BE LIABLE FOR SPECIAL. INCIDENTAL, OR CONSEOULNTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF -THE POSSIBILITY •OF SUCH DAMAGES: 4,2 • The Customer agrees to indemnify and hold Company harmless from any and all claims -of third parties arising from the Customer's use of Product or that may arise from this Agreement. • 4.3 Neither Company, nor the owner of any computer program licensed to Company, shall be liable for any application of the results obtained from the use of Product or. for unintended or unforeseen results obtained by Customer in the •use of Product. - 4.4 Company shall not be liable for any •claim or -damage arising directly or indirectly from the furnishing of computer or data services or equipment for - the operation of Product at the Customer location set forth above. 4.5 No action, regardless of form, arising out of the transactions under this Agreement may be brought by either party more than one year after the cause of action has accrued, except that, an action for nonpayment may be brought within one year alter the date of last payment. 5, NONDISCLOSURE Customer shall take..all, steps necessary. to -ensure .that the Product programs, or any portion thereof, -are not made available by. the Customer or by any of his employees to any other person, term, governmcntal..entity, or corporation. Customer warrants that all those individuals having access to the Product under this Agreement shalt observe and perform this nondisclosure covenant, and that he. will establish procedures for this purpose satrslactory to Company and advise Company thereof... 6. TAXES • There shall be added to the payments by Customer to Company amounts equal. to all Federal, State or Local Governmental taxes, however designated, levied or based on such payments or on this Agreement, including any sale and use taxes and any state and local privilege or excise taxes based '• on gross revenue, -and any taxes or amounts -in lieu theteot paid or payable by Company in respect to this Agreement, exclusive, however, of taxes based • on net income. 7, GENERAL 7.1 Titles and paragraph headings are for convenient reference and are not a part of this Agreement. It is expressly agreed that this Agreement embodies the: entire contractual Agreement of the parties, in relation to the subject matter hereof, and that no other Agreement.or- understanding, verbal or otherwise, exisis between the parties except as herein expressly set forth. -.7.7 Company shall not be :liable for delays in any of its performance hereunder due to causes beyond its reasonable control, including, but not .limited • - 10, acts •of God, strikes or inability •to obtain labor or materials on time. 7.3 No waiver of any breach of any provision of this Agreement shall .constitute a waiver of any prior, concurrent or subsequent breach of the same or • any other provisions hereof and no waiver shall be effective unless made in writing. In the event that any provision of this Agreement shall be illegal or • otherwise unenforceable., such provision shall be severed .and the entire Agreement shall nut tail on account thereof and the balance• of the Agreement shall continue in ifull force end effect. 7.4 All notices Which either party hereto is required or may desire to give the other party hereunder shall be given by addressing the communication to the address set forth on the.lust page of the Agreement, end,depositing-rt in the United Stine* mails; postage prepaid by registered •or certified mail. • Notices so sent yvill be deemed effective on the fifth day totluwing date of such deposit. 1kIQ 7.5 This Agreement shall be governed by the laws of the State of and constitutes the entire agreement between the Customer and Company_, with respect to the Product. - 7.� - In the :eye(); that .any action or ;proceeding ,i; brought. in connection with thit Agreement, the preyailine party therein shall be entitled to recover its costs end reasonable attorney's lee;. 7.7 This Agreement may not be modified or terminated orally, and no claimed modification, termination or waiver be binding tlnle;; in writing and signed by troth parties "SUPPORTIVE DOCUMENT'S FOLLOW' T • TITLE EUNIjt€MENIAL TEEM ANC) CONbi1ibNg 1,1 Title and full bWrierthip right Id the Ptoduct 'retitled under this Agreerftent remain with Company, The Product is aigfer d to be Cothdeffy : proprietary infOrentitiOn and trade secrets, whe,her of not any portrun thereof it or May be validly copyrighted or patented. 1:2 duttotner's rights in end to the Product, at a result of this License, may not be assigned, licensed, or otherwise transferred volunta'ily, by ope'ratit n Of lade or otherwise Without prior written Consent front Company. 1.3 Upon any terrination of the Lrcente herein granted, Customer theft deliver to Compahy all Mate hilt furnished by Company and pertaining td the Product and shall also Warrant that aft copies thereof have been returned to Company or destroyed. 1.4 the CuttOrrier ackndskledget that Company hat exclusive rights, title and interest in and to the Product computer program and holds the sble end exclusive copyright" on. Product and any other tightt as may exist therein. Customer agrees that it Will not at any time do or cause to be done any act or • thing impairing or tending to impair any part of such rights, title and interest, The Customer agrees that its use of Product shall not create to Customer`s favor arty right, title or rnterett in or to Product but all use of Product by Customer thall inure to the benefit of Company. 2: USE OE THE PRODUCT 2.1 • the Product may be used only for, by or on behalf of the Customer and only at the facility location set forth on the first page of this Agreement. Any change of location requires the prior written consent of Company, 2.2 All data processed by the Product shall be the property of the Cuttomer. 3, WARRANTY • It Company warrants that the Product, as delivered by Company. will perform in atcordance with the'standard Users Guide and that Company hat the. right to grant this license to use the Product. However,. Company's sole •obligation under this Warranty shall be tocor►ect such Product kr that it Will -- so perform. Company shall have iotiabilrty to Customer or any other party because of the failure of such Product to to perform or the ineffectiveness of such grant for any reason, 3.2 THE FOREGOING WARRANTY I5 IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. • 4, LIMITATION'Of= LIABILITY 4.1 The maximum liability assumed by Company under this Agreement shall be limited to the'cost of •correction -or replacement of the service rendered' or product licensed, or the price for •such corrected -or replaced service or product, whichever is:less. IN NO EVENT SHALL COMPANY BE LIABLE j FOR SPECIAL; INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF. SUCH --DAMAGES. 4,2 ' The Custorer agrees to indemnify and hold Company harmless from any and all claims of third parties arising from the Customer's use of Product -. or that may arise from this Agreement: 4.3 . Neither Company, nor the owner of any computer program licensed to Company; shall be liable for any application of the results obtained from the adi • - .- use of •Product or for unintended or unforeseen results obtained by Customer in the use of Product. 4:4 Company shall not be liable for any claim ar damage arising directly or indirectly from the furnishing of computer or data'services or equipment for - the operation of Product at• the Customer location set forth above, 4.5 No action, regardless of form; arising out of the transactions under this Agreement may be brought by either party more than one year. after the . muse of action has accrued; except that, en action tor nonpayment may be brought within one year after the date of last payment. 5. NONDISCLOSURE Customer shall take all steps necessary to ensure that the Product programs, or any portion thereof, are not made.available by the Customer or by...; ' any of his employees to any other person, firm, governmental entity, or corporation. Customer warrants that all those .individuals having access tope Product under. this Agreement shall observe•andpertorm this nondisclosure covenant, and that he will establish procedures for this purpose satisfactory to -- Company and advise Company thereof, 6. .TAXES There shall be added to the payments by Customer to Company amounts equal to all Federal, State or Local Governmental taxes, however designated, levied or. based on such payments or on this Agreement, including any sale and use taxes and any state and local privilege or excise taxes based on gross revenue, and any taxes or• amounts in lieu -thereof paid or payable by Company in respect to this Agreement, exclusive, however, of taxes based on net income. 7:: GENERAL 7.1 Titles and paragraph headings are for convenient reference and are not a part of this Agreement. It is expressly agreed that this Agreement embodies the entire contractual Agreement ,of the parties in relation to the subject matter hereof, and that no other Agreement or understanding, verbal or otherwise, exists between the parties except es herein expressly set forth: 7,2' Company shall not be habte for delays in any of its performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God; strikes or inability to obtain labor or materials on ume.• 7 3 No waver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof and no waiver shall be effective unless made in wilting. In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall tie severed and the entire' Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect. 7.4 All notices which either party hereto is required or may desire to give the other party hereunder shall be given by addressing the communication to the address set forth on the lust page of the Agreement, and depositing it in the united States mils, postage prepaid by registered or certified mail. Notices so sent will be deemed effective on the filth day following ddtc of such deposit. ictPm 7 5 This Agreement shall be governed by the Taws at the State of and constitutes the entire agreement between the Customer and Company.. - with respect to the Product. 74 In the event that any action ar proceeding is brought in conneetipn with this Agreement, the prevailing party therein shall be entitled 10 recover it; cost; and reasonable attorney'; tees, 7.7 This Agreement may not be modified or terminated orally, and no claimed modificetlan,termination or waiver shall be bending unfets in writing and "SUPPORTIVE DOCUMENIS • FOLLQW" signed by both. parties.