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2014-04-25 Beehive Industries Software-CemeteryBEEHIVE INDUSTRIES SOFTWARE AND SERVICE AGREEMENT This Software and Service Agreement ( "Agreement ") is made by and between Beehive Industries, LLC, a Nebraska limited liability company, having an address for notice purposes of 151 North 8th Street, Suite 300, Lincoln, Nebraska 68508 ( "Beehive ") and the City of Blair Nebraska ( "Client "). WHEREAS, the Client desires to engage Beehive to provide software and services. WHEREAS, Beehive will render services and software to the Client. NOW, THEREFORE, in consideration of mutual promises, covenants and agreements contained herein, the receipt and sufficiency of which is acknowledged, the parties agree as follows: 1. SOFTWARE LICENSE Beehive shall provide the Client with a non - resalable license to utilize the Beehive software for its own community's use. This license represents a site license and can be utilized by an employee of the Client. Parameters of the License are enumerated in the Attachment A — Beehive End User License Agreement. 2. PROJECT SCOPE AND COMPENSATION Details of scope, compensation, and renewal can be found in Attachment B — Project Scope and Compensation. 3. LIMITATION ON LIABILITY in no event will Beehive, its affiliates, suppliers, or certificate authorities be liable to the Client for any loss, damages, claims, or costs that exceed the fees paid by client to Beehive, Beehive's entire liability and Client's exclusive remedy shall be at the option of Beehive to either (a) return the most recent license fee paid, or (b) repair or replace the Software. Beehive is not responsible for any additional liabilities including any consequential, indirect or incidental damages, any lost profits or lost savings, any damages resulting from business interruption, personal injury, or failure to meet any duty of care or claims by a third party, even if a Beehive representative has been advised of the possibility of such loss, damages, claims, or costs. 4. INTELLECTUAL PROPERTY AND CONFIDENTIALITY a. The software and any authorized copies that are made are the intellectual property of and are owned by Beehive. The structure, organization, and code of and within the software are valuable trade secrets and confidential information of Beehive. The software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant the Client any intellectual property rights in the software and all rights not expressly granted are reserved by Beehive. b. The parties shall use and protect confidential information solely for performing its obligations to the other party. The parties shall not sell or distribute confidential information. The parties shall give access to confidential information only to employees or individuals that have need of the information to perform their work functions. 5. INDEMNIFICATION The parties shall indemnify and hold each other harmless from and against any claims, demands or causes of action, including without limitation those arising on account of Client's modification or enhancement of the Software or arising out of, or resulting from, the specific use of the software when the software was responsible for providing data, analysis, reporting, or other information that was used by the Client to the detriment of their equipment, personnel, services, or related parties. 6. TERM AND TERMINATION a. Term. This agreement shall begin on the date of the last signature on this agreement and continue in force throughout the entire License period, inclusive of any License extensions by way of renewals described in Attachment B — Project Scope and Compensation. b. Termination. If either party breaches this agreement, the non - breaching party may terminate this agreement upon notice to the breaching party plus (3) days. c. Curing Breach. If the breaching party notifies an intent to cure within (3) days of the notice received by the non - breaching party of the breach, the breaching party has the right to cure breach within (30) days. If the breaching party does cure the breach within the allotted time, then the agreement continues under the stated rules of this document. 7. JURISDICTION Any acts or proceedings that may be brought, in connection with or by reason of this agreement shall be brought in state or federal court in Lincoln, Lancaster County, Nebraska, and the Client hereby submits to the jurisdiction of such courts. 8. ASSIGNMENT Beehive has the right to assign this agreement and subcontract components of this agreement without prior consent from the Client. The Client may not assign this agreement to another without Beehive's prior written consent. In the case of an assignment, the Client will be notified within (30) thirty days of said assignment. 9. PUBLICITY Both parties to this agreement may use or reproduce any logo, trademark, or service mark of the other party, or any of its affiliates as it relates to the public business the parties are engaged in and in conjunction with reasonable distribution or marketing channels. 10. AMENDMENT This agreement may be modified only by a written instrument signed by a duly authorized representative of each party. This agreement constitutes the entire agreement, inclusive of the attachments and the End User License Agreement, between the parties with respect to the services and supersedes any and all prior and contemporaneous agreements, written or verbal, between the parties with respect to the services. 11. NO EXCLUSIVITY Both parties agree that this agreement is not exclusive. 12. NATURE OF RELATIONSHIP All parties to this agreement are and shall be deemed to be independent contractors, and this agreement shall not be construed in any way to create an employment relationship, agency relationship or the relationship of a partnership, joint venture, franchise or other business entity. 13. COUNTERPARTS This agreement may be executed in multiple counterparts, each of which shall constitute an original instrument, but all of which shall constitute one and the same agreement. 14. HEADINGS Any headings contained in this agreement are for reference purposes only and shall not affect, in any way, the meanings and interpretation of this agreement. 15. SEVERABILITY Any provisions of this agreement which shall prove to be invalid, void or illegal shall in no way affect impair or invalidate any other provision of this agreement and such other provisions shall remain in full force and effect. 16. THIRD -PARTY BENEFICIARIES This agreement is for the sole and exclusive benefit for the Client and Beehive. Nothing in this agreement shall be construed to grant any other person any right, remedy or claim under or in respect of this agreement. 17. SURVIVAL Sections 3, 4, 5, 7, 8, 9, 16 shall survive the termination or expiration of this agreement. 18. LEGAL COMPLIANCE Nothing in this document shall prohibit parties from complying with applicable law, regulation, court order or subpoena, provided that prior notice of any such compliance is provided, if legally allowed, to the other party. 19. NOTICES Any notice required hereunder shall be given in writing by registered or certified mail or overnight delivery through a nationally recognized courier, to the address set forth in the first paragraph above, or to such other address or addressee that either party provides in writing to the other party. IN WITNESS WHEREOF, the parties hereto have executed this SOFTWARE AND SERVICE AGREEMENT by their duly authorized agents as of the dates below. BEEHIVE INDUSTRIES, LLC BY: - m NAME: William C. Sheldon TITLE: President DATE: Attachment A — Beehive End User License Agreement Carefully read all of the terms and conditions of this Agreement prior to using Beehive Software [hereafter referred to as the "SOFTWARE "]. Do not install or use the software until LICENSEE has read this entire Agreement. Installation or use of this software indicates your acceptance of these terms and conditions. End -User License Agreement ( "EULA ") is a legal agreement between LICENSEE (either an individual or a single entity) and Beehive Industries, LLC ( "BEEHIVE" ) for the Beehive software product(s) identified in the Order Form, Service Contracts, and /or Support Contracts which may include associated software components, media, printed materials, and "online" or electronic documentation. Definitions A. License. The rights granted by Beehive to Licensee to copy, install, use, access, display, run and /or otherwise interact with the Software for Licensee's normal business purposes. B. Software. All Beehive object code delivered or made available to Licensee, including any updates, upgrades, support and content (e.g., audio and visual information, documents) in the course of using the product covered by this EULA. C. Warranty Period. Time, inclusive of all agreements, where licensee is in good standing and is available to receive all benefits of this agreement. D. Data. Information entered into, residing within or otherwise managed by the Licensee as part of its interaction with the Software. Grant and Distribution A. General. Beehive grants Licensee a License to the Software subject to Licensee's obligation to pay and any rights and limitations described in this license. This License is non - exclusive, non - perpetual, and is not transferable (unless specifically allowed). The ability to use the Software may be affected by minimum system requirements or other factors. Beehive reserves all rights not expressly granted. B. Distribution. Licensee may install, use, and execute the software on computers owned or leased and used by Licensee, for the express purpose of supporting the activities of Licensee. C. Limitations on Use. Licensee shall not rent, lease, lend, resell, or host to or for third parties any service or Software covered by this Agreement. III. Fees Licensee agrees to pay to Beehive the fees in the amounts and at the times specified in Attachment B — Project Scope and Compensation. IV. Term and Termination A. Term. The term of this EULA is defined as consistent and dependent on the continuing business relationship of the parties as defined in the applicable software and service agreement and /or project scope and compensation agreement. B. Termination. Governance of termination, late fees and /or penalties for early termination is defined in the applicable software and service agreement and /or project scope and compensation agreement. C. Termination. Without prejudice to any other rights, Beehive may terminate this EULA if Licensee fails to comply with the terms and conditions of this EULA or any other applicable Agreement. In such event, Licensee must destroy within (30) days all of Licensee's copies of the Software and all of its component parts. V. Reservation of Rights A. Copyright. The Software is protected by copyright and other intellectual property laws and treaties. Beehive owns the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold. Beehive reserves all rights not expressly granted to Licensee in this EULA. B. No Right to Re- engineer. Licensee may not reverse engineer, decompile, or disassemble the Software without prior written consent from Beehive. VI. Transfer Outside of the strictures of the Beehive Reseller Partner Agreement, there are no provisions for any transfer, operation, or use of the software by any party other than the original buyer of the Software from Beehive. VII. Product Support Services A. Rights and Obligations. Under this EULA, Beehive is responsible for providing working software and the necessary customer support for a typical customer to operate the software. This support may include customer phone support, direct email access to support personnel, training videos and other support services. However, nothing in this EULA requires Beehive to provide support in a specific instance or through a specific media — including in person support. B. Consent for Use of Data. Licensee agrees that Beehive may collect and use technical information gathered as part of support services provided to Licensee, if any. Beehive may use this information solely to improve products, or to provide customized service and /or technologies to Licensee and will not disclose this information in a form that personally identifies Licensee. VIII. Disclaimer of Warranty A. Beehive expressly disclaims any warranty of service beyond the purpose for which the software was created. . The software and any related documentation are provided "as -is" and with all faults, without warranty beyond this stated purpose, either expressed or implied. Licensee bears the risk of using the Software and the entire risk arising out of use or performance of the Software remains with the Licensee. B. If the Licensee performs modifications, extensions, or alterations to the underlying Software or its code base, Beehive provides no warranty of use. IX. Remedies In no event will Beehive, its affiliates, suppliers, or certificate authorities be liable to the Client for any loss, damages, claims or costs that exceed the fees paid by client to Beehive, Beehive's entire liability and Licensee's exclusive remedy shall be at the option of Beehive to either (a) return the most recent license fee paid, or (b) repair or replace the Software. Beehive is not responsible for any additional liabilities including any consequential, indirect or incidental damages, any lost profits or lost savings, any damages resulting from business interruption, personal injury or failure to meet any duty of care or claims by a third party, even if a Beehive representative has been advised of the possibility of such loss, damages, claims or costs. X. Acknowledgement By using this product Licensee acknowledges that Licensee has read this agreement, understands it, and agrees to be bound by its terms and conditions. A. Applicable Law The laws of the State of Nebraska shall govern this agreement. Licensee may have additional consumer rights under Licensee's local laws which this agreement cannot change. To the extent permitted under Licensee's local laws, Beehive excludes the implied warranties of merchantability, fitness for a particular purpose, and non - infringement. XI. Data Management A. Content. Beehive, Licensee, associated account users and third parties may be able to post or store materials, including Data, documents, information, communications, messages, and links to third party websites ( "content ") in the Software. In the Case of Termination. If this license terminates, then: Section); The rights granted by one party to the other will cease immediately (except as set forth in this 2. Beehive will provide Licensee access to, and the ability to export, the Licensee's Data for 90 days at Beehive's then - current rates for the applicable Software; 3. Upon request each party will promptly use commercially reasuriable efforts to return or destroy all other Confidential Information of the other party. C. Intellectual Property Rights. Beehive does not sanction or approve the unauthorized use of content protected by copyright and other intellectual property rights. Licensee understands that sharing content that violates others' copyrights and intellectual property rights violates this Agreement. Licensee represents and warrants that the use and publication of the content by Licensee and others does not violate the intellectual property rights of any third party. Licensee understands that Beehive may remove content at any time without notice when the content violates this Agreement or an applicable code of conduct, or when Beehive has a good faith reason to believe it is necessary to do so. D. Posting Content. Licensee acknowledges that Beehive does not control or endorse the content that it and others post or provide on the Software. Beehive does not claim ownership of content that Licensee and others post or provide. E. Ownership of Data. Beehive will not own any Licensee data. Licensee is solely responsible for maintaining and backing up any Licensee data that it uses with the Software, as represented by said backup file. Licensee, not Beehive, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use such data. Beehive shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data that Licensee uses with the Software. XII. Third Party Software Licensee acknowledges that for this Agreement to be executed, the Software may require certain third party software not provided by the Beehive. The acquisition of necessary licenses and installation and support for this software shall be the sole responsibility of the Licensee. Licensee acknowledges that the software does not cover third party software unless otherwise specified. XIII. Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Software and Service Agreement (if any), Support Agreement (if any), EULA, Purchase Order Form (if any) and Project Scope and Compensation Agreement (if any). XIV. Approval This agreement is deemed to have been accepted by either a formal contract instrument to which it is attached or the downloading of software by the Licensee. Attachment B — Project Scope and Compensation PROJECT O. This project implements the following Beehive modules: HomeBase Public Access Portal $ 2,880 Beehive Water module $ 2,880 Beehive Sign module $ 2,880 Beehive Cemetery module $ 2,880 Beehive Cemetery Public portal $ 2,880 Total: $14,400 The scope includes: • Installation • Configuration • Conversion of any existing digital data delivered in the first six weeks following approval • Training FEES/ SCHEDULE Assumed project related milestones and estimated dates for this project: 5/1/2014 Project start $ 3,600 6/1/2014 Software on -site $ 10,800 Total $ 14,440 Maintenance period - 6/1/2014 through 5/31/2015 Maintenance includes: • Software license for unlimited seats • All software updates • Unlimited technical support • Ongoing training • Cloud Hosting — (no onsite server required)