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HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9166586Clint Andrews, IT Director, Application Services OR Ed Bonnette, Senior Buyer, Purchasing City of Fort Collins 215 N Mason Street, PO Box 580, Fort Collins, CO , 80522 candrews@fcgov.com; ebonnette@fcgov.com 970-416-2516; 970-221-6775 Annie Safoian CFO 09/30/2016 Ordering Document - 4 EXHIBIT A __________________________________________________________________ This GOOGLE SEARCH APPLIANCE CUSTOMER Agreement (this “Agreement”), is made and entered into as of 9/27/2016 (the “Effective Date”), between SADA Systems Inc., a corporation organized under the laws of the state of California, with offices at 5250 Lankershim Blvd., Suite 620, North Hollywood, CA 91601 (“SADA”), and City of Fort Collins, a corporation organized under the laws of the state of Colorado with offices at 215 N Mason, Fort Collins, CO 80524 ("Customer"). In connection with this Agreement, Customer has entered into a corresponding ordering document (“Ordering Document”) for the Services, the terms of which are incorporated by reference herein. 1. PRODUCTS AND TERMS OF SERVICE 1.1 Products. This Agreement establishes the terms under which SADA, as an independent Google Enterprise Authorized Reseller, will provide Customer with a non-sublicenseable, non-transferable, non- exclusive, limited license to use the Google Search Appliance products set forth in the Ordering Document (the “Product(s)”) during the License Term (as defined in Section 4.1).The license grant provided under this Agreement is limited to indexing the number of documents Customer may index (“Documents”), as specified in the Ordering Document. 1.2 Google Terms of Service. Customer understands and agrees that the Google Terms of Service (the “Google TOS”) will govern Customer’s use of the Product(s). Google will present the Google TOS to Customer for Customer’s acceptance upon Customer’s first log in to the Product(s). The Google TOS terms are hereby incorporated in the terms of this Agreement; provided that Section 3 (Charges and Payment) of this Agreement will supersede and replace the payment terms in Section 4 of the Google TOS. The Google TOS can be viewed at http://www.google.com/work/gsa/terms_v13.html or such other URL as may be provided by Google. 1.3 Support. Subject to Customer’s payment of the fees set forth in this Agreement, Google will provide technical support services to Customer for the Product(s) at the Support Level and for the Support Period set forth in the Ordering Document in accordance with the technical support guidelines in effect when the Product is ordered (“TSSG”), as set forth at https://www.google.com/work/gsa/terms_v13.html (or such other URL as Google provides). SADA is hereby authorized by Customer as a Customer Contact (as defined in the TSSG) to submit Customer support issues to Google on behalf of Customer. In the event that Customer desires SADA to raise support issues with Google, Customer agrees to provide SADA with access to its Google support panel. If Google makes a material change to the TSSG, Google will notify Customer. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify Google via the Google’s secure site and online portal provided by Google, accessed at https://support.google.com/ (or such other URL as Google provides) within 30 days after receiving notice of the change, in which case Customer will remain governed by the TSSG in effect immediately prior to the change until the end of the Support Period. 1.4 Delivery. The Product(s) will be delivered to Customer at the address specified by Customer in the Ordering Document. SADA will bear the risk of loss for the Product(s) until the Product(s) are received by Customer. Upon receipt by Customer, Customer bears all risk of loss for the Product. 2. CUSTOMER REPRESENTATIONS AND OBLIGATIONS. Ordering Document - 5 2.1 Place of Business; Compliance with Agreement and Law. Customer represents and warrants that its principal place of business is located within the United States or Canada. Customer will comply with all laws, rules and regulations applicable to its use of the Product(s). 2.2 No Resale. Customer will not, and will not allow others to: (A) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Product(s) or any component thereof; (B) alter the number of Documents; (C) create license keys that enable the Google proprietary computer software, in binary executable form only, which is installed on the Google proprietary computer hardware (“Software”); (D) copy the Software except as provided in the Google TOS with respect to Updates (as defined in the TSSG); (E) use the Product(s) for High Risk Activities (as defined in the Google TOS); (F) transfer, sublicense, loan, sell, lease, or use for timesharing or service bureau purposes the Product(s) or any component of the Product(s); or (G) remove or alter any trade names, trademarks, service marks, logos, domain names or other proprietary notices on or in the Product(s). 3. CHARGES AND PAYMENT 3.1 Fees. Customer will pay SADA the fee(s) set forth on the Ordering Document for the Product(s) and the support services described in Section 1.3 on a full prepaid basis for the License Term (as defined in Section 4.1). For orders where SADA issues an invoice, fees are due upon Customer’s receipt of the invoice, and are considered delinquent 30 days after the date of the applicable invoice. 3.2 Support Charges. Any support to be provided by SADA under Section 1.3 of this Agreement will be performed on business days between the hours of 9:00 a.m. to 6:00 p.m. Pacific Time, at no additional cost. Any support services requested by Customer outside these hours will be billed to Customer at an hourly rate of $292.50. 3.3 Taxes. Customer is responsible for any taxes associated with Customer’s purchase of the Product(s) and Customer will pay SADA without any reduction for such amounts. If SADA is obligated to collect or pay taxes, the taxes will be invoiced to Customer (in the case of invoiced fees) or added to Customer’s credit card charges (in the case of credit card payments), unless Customer provides SADA with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any taxes from its payments to SADA, Customer must provide SADA with an official tax receipt or other appropriate documentation to support such payments. 3.4 Delinquent Payments. Until paid in full, delinquent payments will accrue interest from the first date of delinquency at the lower of 1.5% per month or the highest rate permitted by law. Customer is responsible for all reasonable expenses (including attorneys’ fees) incurred by SADA in collecting unpaid or delinquent amounts, except where these unpaid or delinquent amounts are due to billing inaccuracies attributable to SADA. 4. TERM, TERMINATION AND ADDITIONAL END USER ACCOUNTS 4.1 Term. Subject to Customer’s payment of the fees set forth in this Agreement, the term of the license granted in this Agreement for the Product(s) will begin on the date of shipment and continue for the License Term set forth in the Ordering Document, unless terminated earlier as set forth in this Agreement. 4.2 Termination and Effects of Termination. Either party may terminate this Agreement if: (A) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice; (B) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (C) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. If the Agreement is terminated for a breach by SADA or Google, the licenses granted herein regarding Customer’s use of the Product(s) may, at Customer’s option, continue for the remainder of the License Term, subject to Customer’s continued compliance with this Agreement (including the Google TOS). If the Agreement is terminated for Customer’s breach, then: (i) the License Term and all other rights and Ordering Document - 6 licenses granted by one party to the other, or any services provided by SADA or Google to Customer, will cease immediately; (ii) all payments owed by Customer to SADA are immediately due; and (iii) Customer must immediately return the Product to SADA or Google, as instructed by SADA. Upon receipt by SADA or Google, title in the hardware will revert to the receiving party. 4.3 Effects of Expiration. The Product(s) will cease functioning upon expiration of the License Term. Customer may: (A) return the non-functioning Product(s) to Google in accordance with the TSSG; or (B) retain possession of the Product hardware, but only if Customer erases all Software as instructed by Google. If Customer chooses to retain the hardware and delete the Software, Customer must provide written certification to SADA of this deletion within ten business days of the expiration of the License Term. 5. DISCLAIMER OF WARRANTIES. Except as expressly provided in the Google TOS, to the maximum extent permitted by applicable law, SADA AND GOOGLE, AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS MAKE NO WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS A PARTICULAR USE AND NON INFRINGEMENT. NEITHER SADA NOR GOOGLE, NOR ANY OF THEIR LICENSORS OR SUPPLIERS, WARRANT THAT THE OPERATION OF THE PROPDUCT WILL BE ERROR-FREE OR UNINTERRUPTED. THE PRODUCT(S) ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES (AS DEFINED IN THE GOOGLE TOS). 6. LIMITATION OF LIABILITY. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO SADA UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 7. GENERAL PROVISIONS 7.1 Notices. All notices, consents, approvals, acknowledgements and waivers under this Agreement must be in writing and delivered to the applicable party, sent to the physical and/or electronic address for notification purposes set forth in the Ordering Document. SADA and Customer each agree that notices and other communications under this Agreement may be received by email, unless otherwise required by law. Notice will be deemed given: (A) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (B) when verified by automated receipt or electronic logs if sent by facsimile or email. A party may change its address, facsimile number or designee for notification purposes by giving the other party written notice of the new address, facsimile number or designee and the date upon which it will become effective. 7.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Colorado, without regard to its choice of law principles. For any litigation that may arise under this Agreement, the parties consent to personal jurisdiction in and the venue (and waive any claim of forum non conveniens) of the state and federal courts located in Larimer County, Colorado. The parties further consent to the jurisdiction of any court located within a district that encompasses assets of a party against which judgment has been rendered for the enforcement of such judgment or award against the assets of such party. 7.3 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief. 7.4 Binding Nature and Assignment. This Agreement will be binding upon the parties and their respective successors and assigns. SADA may assign this Agreement in its entirety, but not in parts, in connection with a merger, consolidation, or sale or other disposition of all or substantially all of its assets. Any other assignment will be null and void, except with the other party’s prior written consent. Ordering Document - 7 7.5 Publicity. Customer hereby consents to SADA’s inclusion of Customer’s name in a customer list, but only if Customer is not the only customer appearing on the list. Other than this, neither party may make any public statement regarding the relationships contemplated by this Agreement without the consent of the applicable party. 7.6 Third Party Beneficiary. The parties agree that Google is a third party beneficiary of this Agreement. There are no other third party beneficiaries to this Agreement. 7.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. Customer acknowledges that SADA is not an agent of Google and has no authority to bind Google. 7.8 Waiver of Default. Failure to enforce any provision of this Agreement will not constitute a waiver. 7.9 Survival. The provisions of Section 3.3, Section 4.2, Section 4.3, Article 5, Article 6, and this Article, as well as any other provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive expiration or termination of this Agreement. 7.10 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a circumstance (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control. 7.11 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. The remainder of this Agreement will remain in full force and effect. 7.12 Entire Agreement; Incorporation; Amendment. This Agreement and the Ordering Document(s) constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference. Any amendment must be agreed upon in writing and expressly state that it is amending this Agreement. 7.13 Counterparts. The parties may enter into this Agreement in counterparts, each of which shall be deemed an original and, which taken together, will constitute one instrument. Any signature delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data or other e-Signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, “.pdf” or e-Signature were an original thereof. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE LEGALLY BOUND BY IT. IN WITNESS WHEREOF, this Agreement has been executed by the parties through their duly authorized officers as of the date set forth above.