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HomeMy WebLinkAbout 16-07 Approving Caselle Software License & Software Maintenance AgreementRESOLUTION NO. A RESOLUTION APPROVING A SOFTWARE LICENSE AGREEMENT AND SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT WITH CASELLE, INC. WHEREAS, the Town of Firestone desires to license software and purchase software maintenance and support services for the purpose of installing and implementing software for Town general operations including but not limited to the following: general ledger, payroll, timekeeping, human resources, utility management, animal and business licenses, and materials management; and WHEREAS, a software license agreement and software maintenance and support agreement for such software and related services have been proposed between the Town and Caselle, Inc.; and WHEREAS, the Board of Trustees has determined that the proposed software license agreement and software maintenance and support agreement are in the best interests of the Town and its citizens and desires to enter into such agreement; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: Section 1. The proposed Software License Agreement ("License Agreement") and the proposed Software Maintenance & Support Agreement ("Maintenance Agreement") between the Town of Firestone and Caselle, Inc. are hereby approved in essentially the same form as the copies of such agreements accompanying this resolution. Section 2. The Mayor is hereby authorized to execute the License Agreement and Maintenance Agreement, except that the Mayor and Town Manager are hereby fiuther granted the authority to negotiate and approve such revisions to said agreements as the Mayor and Town Manager determines are necessary or desirable for the protection of the Town, so long as the essential terms and conditions of the Agreement are not altered. INTRODUCED, READ AND ADOPTED this 'day of F� /°i , 2016. Town Clerk 1 SOFTWARE LICENSE AGREEMENT CASELLE, INC. TOWN of FIRESTONE 1656 S. East Bay Blvd. 151 Grant Avenue Suite 100 PO Box 100 Provo, UT 84606 Firestone, CO 80520 ("Caselle") ("You" or "Your" or "Town") You agree to License the Software and Purchase the services detailed below ("Items"), and Caselle, Inc. agrees to provide them, subject to the terms and conditions of this Agreement. Phase 1--Total Price $136,968.00 Deposit $68,484.00 Balance Due $68,484.00 The attached Phase I Proposal is considered part of this Agreement. Software support (after the "qualified" free support period) is $2,399 per month, per the Software Maintenance and Support Agreement ("Software Assurance"). Total Software $94,200.00 Total On -site Training 17,000.00 Total Setup 19,200.00 Total Conversion 6,568.00 Total Price $136,968.00 Phase 2 -- Total Price $42,550.00 Balance Due $42,550.00 The attached Phase II Proposal is considered part of this Agreement. Software Assurance will increase by $568 per month to $2,967 per month. Total Software License $20,350.00 Total Training %000.00 Total Setup 55000400 Total Conversion 8,200.00 Total Price $42,550.00 Phase 3 -- Total Pl•ice $70,441.00 Balance Due $70,441.00 The attached Phase III Proposal is considered part of this Agreement. Software Assurance will increase by $1,036 per month to $4,003 per month for all three phases. Total Software License $40,095.00 Total Training 18,000.00 Total Setup 9,000.00 Total Conversion 35346400 Total Price $70,441.00 Total Price for all three Phases $2499959 The signatures below indicate each party's acceptance of this Agreement. Each party has caused this Agreement to be executed by its duly authorized representative. CASELLE, Inc. Name &Title: Alan S. Hutchings, President Date: TOWN of FIRESTONE By: Paul Sorenson, Mayor Date: ATTEST: Carissa Medina, Town Clerk eke AGLIC 10/03 Grant of License Caselle, Inc. and its Licensors agrees to grant, and You agree to accept a limited, non -transferable, non-exclusive license ("License") to use the computer programs, with the accompanying manuals, literature and other materials ("Software") as detailed under each Phase, as described above, and on the attached exhibits, in perpetuity subject to the terms and conditions of this Software License Agreement and subject to termination as provided herein. The term "Software" shall also include all revisions, updates, enhancements and .new modules or add-ons to the existing Softvare as detailed under each Phase. Additional Services Support, Training and Data Conversion for the Software will be provided to You as detailed in the attached Software Maintenance & Support Agreement ("Software Assurance"). The Town agrees to pay Caselle for the monthly maintenance and support in accordance with the attached Software Assurance and payment policy. Payment The Deposit for Phase I shall be paid by You upon execution of this Software License Agreement. The Balance shall be paid within sixty (60) days of delivery and acceptance of the Software, which delivery You agree to accept, notwithstandine earlier termination by You as provided hereinafter. Pam for Phase II and Phase III shall be paid within sixty (60) days of the delivery and acceptance of the Software for Phase II and Phase III. respectively, which delivery You agree to accept, notwithstanding earlier termination by You as provided hereinafter. Payment shall be in U.S. Dollars and shall not be deemed to have been received by Caselle until Your check clears the banking process. Any costs incurred in collecting Your check, due to insufficient funds or any other reason, shall be reimbursed by you. Late payments shall be subject to a FINANCE CHARGE OF 1.5% PER MONTH OR 18% PER ANNUM, Taxes Prices and fees are exclusive of all federal, state, municipal, or other• government excise, duties, sales, use, occupational, or like taxes now or hereafter in force. The Town represents to Caselle that the Town is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices or paid by Town to Caselle. You shall not be obligated to pay or reimburse Caselle for any taxes attributable to or measured by net or gross income, capital, net worth, franchise, or privilege. You shall provide Caselle with, and Caselle shall accept in good faith, resale, direct pay, governmental or other exemption certificates as applicable. Title and Confidentiality Title and full ownership rights to the Sofivare licensed under this Agreement, including, without liinitation, all intellectual property rights therein and thereto, and any copies You make, remain with Caselle. It is agreed the Software is the proprietary, confidential, trade secret property of Caselle, whether or not any portions thereof are or may be copyrighted and You shall take all reasonable steps necessary to protect the confidential nature of the Software as You would take to protect Your own confidential and trade secret information. You further agree that You shall not make any disclosure of any or all such Software (including methods or concepts utilized therein) to anyone, except to employees, agents, or contractors working for You to whom such disclosure is necessary to the use for which rights are granted hereunder. You shall appropriately notify all employees, agents, and contractors to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by them. Upon Caselle's request, such employees, agents, and contractors shall enter into an appropriate confidentiality agreement for secrecy and nonuse of such information which by its terms shall be enforceable by nctive relief at the request of Caselle. If Caselle makes such a request, it shall provide You with the appropriate confidentiality aereements. The obligations imposed by this section upon You, Your employees, agents, and contractors, shall survive and continue after any termination of rights under this Agreement. It shaIt not be a breach of this Agreement if you are required to disclose or make the Software available to a third party or to a court if the Software is subpoenaed or otherwise ordered by an administrative agency or court of competent Jurisdiction to be produced or disclosed. License You may: a) Use the Software on a single CPU or network ("System") for the appropriate number of users. The Software may be moved to and used on another System, but shall under no circumstances be used on more than one System at a time. b) Make System readable copies of the software media provided with the Sofivare as required for backup protection. Such copies may only be used in support of Your use of the Sofivare on the System and may not be used for any other purpose. Each of these copies must have a label placed on the media indicating the Software is a proprietary product of Caselle. You may not: a) Rent, lease, sublicense, assign, sell, loan or otherwise transfer this Software, in whole or in part, except as expressly permitted by this Agreement. b) Inspect, disassemble, decompile, reverse engineer or in any way attempt to determine the internal methods of the Software. c) Modify the Software or merge it into any other product without the express written consent of Caselle. d) Reproduce, prepare derivative works based upon, transmit or distribute the Software, or any part of it, in any form or by any means except as expressly permitted in this Agreement. e) Permanently transfer or assign the Software and the rights under this License to another party without the express written consent of Caselle. Any attempt to do any of the above (a to e) shall void and terminate this Agreement. Term This Soitvare License Agreement is and shall be effective from the date of full execution and shall remain in force until terminated. You may terminate this Agreement at any time by notifying Caselle in writing and returning all copies and modifications of the Software within 30 days of such notification. Your License terminates automatically if you materially fail to comply with any terms or conditions of this Agreement and You must return all copies and modifications of the Software to Caselle within 30 days of receipt of written notification of such termination. For each day You retain the Software without a valid License You agree to pay Caselle $100. Warranty Caselle warrants that it has sufficient right and title to the Software to grant You this License. For one (1) year from the date of receipt of the Software ("Warranty Period"), Caselle also warrants the Software media to be free from defects in materials and workmanship under normal use, and Software operation will substantially conform to the specification published by Caselle. If -2- AGLIC 10/03 an error or a defect in the Software or its media becomes apparent within the Warranty Period, You must promptly notify Caselle, in writing, describing the defect. Upon confirming the error or defect Caselle will, at its exclusive option, repair or replace the item or refund the price paid for the defective item. Caselle does not warrant that the functions contained in the Software will meet Your requirements or that the operation of the Sof ware will be uninterrupted or error free. The warranty does not cover Software modified by anyone other than Caselle and problems with, or caused by, computer hardware or non- Caselle software. This limited warranty is VOID if failure of the licensed Software has resulted from accident, abuse or misapplication. Disclaimers and Limitations of Warranty and Remedies EXCEPT AS SPECIFICALLY STATED IN THE WARRANTY SECTION OF THIS AGREEMENT, THE SOFTWARE IS LICENSED "AS IS" WITHOUT ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN NO EVENT SHALL CASELLE BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, ARISING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR BREACH OF ANY EXPRESSED OR IMPLIED WARRANTY, EVEN IF CASELLE OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, CASELLE'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, SHALL BE LIMITED TO THE LESSER OF (A) YOUR ACTUAL DIRECT DAMAGES OR (B) TWO (2) TIMES THE AMOUNT OF TOTAL FEES PAID BY YOU UNDER THIS AGREEMENT, THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN RELIANCE UPON THIS LIMITATION OF LIABILITY. Insurance Prior to performing services under this Agreement, Caselle agrees to provide you with certificates of insurance evidencing the following minimum insurance coverage: a) Commercial General Liability with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000) each occurrence, TWO MILLION DOLLARS $2,000,000 aggregate. The General Liability Insurance will add the Town, its officers and its employees, as additional insureds, with primary coverage as respects the Town for claims which Caselle is liable, its officers and its employees, and shall contain a severability of interests provision; b) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000) each occurrence; c) Professional Liability of at least THREE MILLION DOLLARS ($3,000,000) which includes Technology Services Errors and Omissions and Technology Products Liability for the following risks: (i) technology services and miscellaneous professional services liability by reason of an act, error or omission in the performance of technology services or miscellaneous professional services; (ii) Technology products liability by reason of an act, error, or omission by Caselle that results in the failure of technology products to properly perform the function intended; (iii) Liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer's or third person's computer, computer system, network or similar computer related property and the data, software, and programs thereon; d) Workers Compensation complying with applicable statutory requirements; In the event that the insurance required by this Agreement is written on a claims -made basis, Caselle warrants that any retroactive date under the policy shall precede the Effective Date of this Agreement; and that either continuous coverage will be maintained or an extended discovery period will be exercise for a period of two (2) years beginning at the time work under this Agreement is completed. If such insurance is maintained on an occurrence form basis, Caselle shall maintain such insurance for an additional period of one (1) year following termination of this Agreement. If such insurance is maintained on a claims -made basis, Caselle shall maintain such insurance for an additional period of three (3) years following termination of this Agreement. Returns a) No returns will be accepted without a written request to Caselle. To receive full credit, less the cancellation fee (set forth below), such requests must be made in writing to and received by Caselle's corporate office within thirty (30) days of this Agreement. No returns will be considered for credit until appropriate notice has occurred within the time limits specified and all Software and related materials are returned to Caselle's corporate office within ten (10) days of notice. b) Pre -approved returns occurring after the thirty (30) day period has lapsed will be allowed 75% credit, if such requests are made in writing to and received by Caselle's corporate office within sixty (60) days of this agreement. Any returns attempted after the sixty-day period has lapsed will receive no credit. c) A minimum cancellation fee of 10% will be assessed to all pre -authorized returns. Caselle has a right, but not an obligation to retrieve the returned Software. Caselle will assume no liability for Software that is damaged or lost in transit while being returned. Additionally, such returns shall occur at Town's expense. d) In addition to the return of the Software, Town agrees that it will delete and remove all copies from all computer systems within its control. Town also agrees that it will return all written materials received from Caselle, including program materials, insttaction manuals, and any and all training materials to Caselle provided directly by Caselle, or its authorized support centers, and are subject to separate agreements. General a) This Agreement shall be governed and construed in accordance with the laws of the State of Colorado and You hereby consent to the jurisdiction of State and Federal courts in Colorado. If any part of this Agreement violates applicable law, that part shall be deemed to be amended to the extent necessary to comply with the law. b) This Agreement constitutes the entire Agreement between Caselle and You and supersedes any prior Agreement or understanding, written or oral, relating to the subject matter of this Agreement. Except as provided herein, this Agreement may not be amended or supplemented except in writing and properly executed by both parties. c) If any provision of this Agreement shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this Agreement or the validity or the enforceability of this Agreement. d) All rights and remedies provided herein are cumulative and 3- AGLIC 10/03 are in addition to all other rights and remedies available at law or equity. e) In the event that either party successfully takes legal action to enforce any provision of this Agreement the unsuccessful party shall pay full costs and expenses of such action, including reasonable attorney's fees. 0 Any notice required by this Agreement shall be deemed to have been properly given if sent by registered or certified mail to the address set forth in this Agreement. g) The waiver of any breach or default of this Agreement shall constitute a waiver only as to such particular breach or default and shall not constitute a waiver of any other breach or default. Failure to act by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall not operate as a waiver of any such right, power or remedy, and will not affect the validity of the whole or any part of this Agreement, or prejudice such parry's right to take subsequent action. h) Neither parry shall be held liable for delays in any of its performance resulting from acts of God, war, civil disturbance, court order, labor dispute or any other cause beyond its control. i) The relationship of the Parties shall be solely that of independent contractors. No partnership, joint venture, employment, agency or other relationship is formed, intended or to be inferred under this Agreement. Neither party to this Agreement shall attempt to bind the other, incur liabilities on behalf of the other, act as agent of the other, or authorize any representation contrary to the foregoing. j) This Agreement is binding upon and shall inure to the benefit of the parties, their successors and assigns. However, this Agreement is not assignable by you. This Agreement is personal to you and neither the Agreement, nor the rights or duties hereunder, may be voluntarily or involuntarily, directly or indirectly, assigned or otherwise transferred without the prior written consent of Caselle. Any unauthorized assignment or transfer shall constitute a breach hereof and shall be voidable by Caselle. Intellectual Property Infringement Indemnification Caselle will defend you against any third parry claims) that the Software infringes a third party's patent, copyright, or trademark, or misappropriates its trade secrets, and will pay the amount of any resulting adverse final judgment (or settlement to which Caselle consents). You must notify Caselle promptly in writing of the claim and give Caselle sole control over its defense or settlement. You agree to provide Caselle with reasonable assistance, cooperation, and information in defending the claim at Caselle's expense. Caselle's liability for damages and expenses arising out of an intellectual property infringement claim, whether based on a theory of contract or tort, including negligence and strict liability shall not be limited to the amount of Software fees paid by you. Caselle's obligations under this Section will not apply to the extent the claim or adverse final judgment is based on your: (a) use of a previous version of the Sofhvare and the claim would have been avoided had You installed and used the current version of the Softtivare; (b) combining the Software with any product or device not provided, contemplated, or approved by Caselle; (c) altering or modifying the Software, including any modification by third parties at your direction or otherwise permitted by you; (d) use of the Sofivare in contradiction of this Agreement, including with non -licensed third parties; or (e) willful infringement, including use of the Software after Caselle notifies you to discontinue use due to such a claim. If Caselle receives information concerning an infringement or misappropriation claim related to the Software, Caselle may, at Caselle's expense and without obligation to do so, either: (a) procure for you the right to continue its use; (b) modify it to make it non -infringing; or (c) replace it with a functional equivalent, in which case you will stop running the allegedly infringing Software immediately. If, as a result of an infringement or misappropriation claim, your use of the Software is enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to which Caselle consents), Caselle will, at Caselle's option, either: (a) procure the right to continue its use; (b) modify it to make it non -infringing; (c) replace it with a functional equivalent; or (d) terminate your license and refund the license fee paid for the infringing Software. This section provides your exclusive remedy for third party copyright, patent, or trademark infringement and trade secret misappropriation claims. Indemnification Caselle will indemnify and hold harmless the Town and your agents, officials, and employees fiom and against any and all direct claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by our negligence or willful misconduct. To the extent permitted by applicable law, you will indemnify and hold harmless Caselle and its agents, officials, and employees from and against any and all direct claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by your negligence or willful misconduct. Colorado Governmental Immunity Act The parties understand and agree that the Town is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, § 24-10-101 et seg., 10 C.R.S., as from time to time amended, or otherwise available to the Town, its officers, or its employees. No Multi -year Fiscal Obligation; Non -Appropriation This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of future appropriations by the Board of Trustees of the Town of Firestone, contrary to Article X, § 20 Colorado Constitution or any other constitutional or statutory debt tation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of the Town which may arise under this this Agreement in any fiscal year after 2016, in the event the budget or other means of appropriations for any such year fails to provide fiords in sufficient amounts to discharge such obligation, such failure shall not constitute a default or breach of this Agreement, including any sub -agreement, attachment, schedule, or exhibit thereto, by the Town. If the Town should not appropriate or otherwise make available funds sufficient to purchase, lease, operate or maintain the products or services set forth in this Agreement, or other means of performing the same functions of such products, the Town may unilaterally terminate this Agreement only upon written notice to Caselle specifically setting forth the termination date which shall be no less than thirty (30) days later than the date Caselle receives such notice. 663884 10/03 -4- AGLIC 10/03 SOFTWARE MAINTENANCE & SUPPORT AGREEMENT (SOFTWARE ASSURANCE) CASELLE, INC. TOWN of FIRESTONE 1656 S. East Bay Blvd. 151 Grant Avenue Suite 100 and PO Box 100 Provo, UT 84606 Firestone, CO 80520 ("Caselle") ("YOU" 01' "YOUY'" Or r�TOWn") agree that Caselle will provide You with unlimited telephone support on Caselle's Software, for the purpose of answering Your questions, giving usage instructions, providing updates and attempting to resolve problems on a best efforts basis, for the consideration of $2,399.00 monthly for Phase I; the consideration shall increase to $2,976 monthly for Phase II; the consideration shall increase after implementation of Phase III to $4,003 monthly for all support for all three phases, subject to the following terms and conditions, Availability Support calls, covered by this Agreement, will be answered by Caselle's Support Center, on the designated support telephone number, between 7:30 am and 5:30 pm Mountain Time, Monday through Friday, except holidays. Coverage This Maintenance & Support Agreement covers all Caselle application sofrivare licensed to You as described in the Sofbvare License Agreement. It does not cover third party software or products. Support may, on a best efforts basis, be provided for third party products, such as operating systems and hardware. Extended, after hours support may be billable at Caselle's regular hourly billing rate. Charges Charges cover Software installed as described in the Software License Agreement and will remain fixed for one year providing You license no new applications other than those described in the Software License Agreement. If You license new applications or change user levels, charges will be modified. Following the first year, charges may be increased, at Caselle's discretion. Updates Caselle will provide program updates within the same operating system through normal software releases at no extra charge. Additional software packages, add -on modules and custom programming are not covered by this Agreement and will be billed at current rates. Caselle will determine which enhancements and/or materials will be part of a software release, add -on package or custom programming. Upgrades Caselle will provide software upgrades within the same operating system at no extra charge if this agreement is still in effect at the time the upgrade is made available and if this agreement is not cancelled or terminated for a period of five (5) years. Term and Termination This Software Maintenance &Support Agreement is effective for one year from the date of the Agreement. Thereafter, it will automatically be renewed monthly, unless either party gives written notice of termination, at least 30 days in advance. If the Agreement is terminated Caselle will honor commitments to support You until the date of termination. Payment Payment terms shall be monthly in advance in U.S. Dollars and shall not be considered received until Your check clears the banking process. Any charges or costs incurred in the collection of Your check, due to insufficient funds or any other reason, shall be reimbursed by You. Late payments, any payments not paid within sixty (60) days, shall be subject to extra charges, If payment is not received when due, Caselle reserves the right to suspend Your support until payment is received. Such suspension wilI not relieve You of payment obligation. Indemnification Caselle will indemnify and hold harmless the Town and your agents, officials, and employees from and against any and all direct claims, losses, liabilities, damages, costs, and expenses (including reasonable attomey's fees and costs) for personal injury or property damage to the extent caused by our negligence or willfttl misconduct. To the extent permitted by applicable law, you will indemnify and hold harmless Caselle and its agents, officials, and employees from and against any and all direct claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by your negligence or willful misconduct. Limitations of Remedies Your Remedies. Your sole and exclusive recourse and remedy for any loss, including your right to over damages shall be as set forth in this Section. Caselle's liability with respect to any and all actual losses incurred during the Term (or a Renewed Term) of the Agreement shall not exceed t h r e e (3) times the amount paid by You to Caselle at the last billing. You shall provide Caselle with documentation sufficient to demonstrate any expenses that You actually incurred for which You seek damages from Caselle. Caselle shall not be responsible for any loss incurred by You from a claim that is settled or compromised by You without the prior written approval of Caselle. No Liability for Consequential Damages. In no event shall Caselle be liable to You or to any third party for any indirect, special, punitive, incidental, consequential or compensatory losses, damages, claims or causes of action in excess of the amount of compensation paid hereunder, including, but not limited to, those arising from loss of business or profits or any other economic loss, even if Caselle was aware of the possibility of such damages. General (a) You shall not assign, sublicense or transfer any of Your rights under this Agreement without the prior written consent of Caselle. (b) This Agreement shall be governed and construed in accordance with the laws of the State of Colorado. If any part of this Agreement violates applicable law that part of the Agreement shall be deemed to be amended to the extent necessary to comply with the law. (c) This Agreement constitutes the entire agreement behveen Caselle and You and supersedes any prior agreement or understanding, written or oral relating to support services. Except as provided herein, this Agreement may not be varied, amended or supplemented except in writing and properly executed by both parties. (d) If any provision of this Agreement shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this Agreement or the validity or the enforceability of this Agreement. (e) A11 rights and remedies provided herein are cumulative and are in addition to all other rights and remedies available at law or equity. (f) In the event either party successfully takes legal action to enforce any provision of this Agreement the non -prevailing party shall pay full costs and expenses of such action, including reasonable attomey's fees. (g) Any notice required by this Agreement shall be deemed to have been properly given if sent by registered or certified mail to the address stated above or such other address as may be designated in writing by either party. (h) The waiver of any breach or default of this Agreement shall constitute a waiver only as to such particular breach or default and shall not constitute a waiver of any other breach or default. (i) Neither party shall not be held liable for delays in any of its performance resulting from acts of God, war, civil disturbance, court order, labor dispute or any other cause beyond its control. (j) The relationship of the Parties shall be solely that of independent contractors. No partnership, joint venture, employment, agency or other relationship is formed, intended or to be inferred under this Agreement. Neither party to this Agreement shall attempt to bind the other, incur liabilities on behalf of the other, act as agent of the other, or authorize any representation contrary to the foregoing. Colorado Governmental Immunity Act The parties understand and agree that the Town is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000 per person and $990,000 per occurrence) or any other rights, immunities, and 1 protections provided by the Colorado Governmental Immunity Act, § 24-10-101 et sea., 10 C.R.S., as from time to time amended, or otherwise available to the Town, its officers, or its employees. No Multi -year Fisea l Obligation; Non - Appropriation This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of future appropriations by the Board of Trustees of the Town of Firestone, contrary to Article X, § 20 Colorado Constitution or any other constitutional or statutory debt limitation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of the Town which may arise under this this Agreement in any fiscal year after 2016, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default or breach of this Agreement, including any sub -agreement, attachment, schedule, or exhibit thereto, by the Town. If the Town should not appropriate or otherwise make available funds sufficient to purchase, lease, operate or maintain the products or services set forth in this Agreement, or other means of performing the same functions of such products, Caselle, Inc. the Town may unilaterally terminate this Agreement only upon written notice to Caselle specifically setting forth the termination date which shall be no less than thirty (30) days later than the date Caselle receives such notice. Upon termination, the Town shall remit payment for all products and services delivered to the Town and all expenses incurred by Caselle prior to the termination date as set forth in the written notice. The signatures below indicate each party acceptance of this Agreement. Each party has caused this agreement to be executed by its duly authorized representative. CASELLEI INC. By A+ Name & Title: Alan S. Hutchings, President Date: TOWN of FIRESTONE By: Name: Title: ATTEST By: Date: Confidential 2